Pardij and Girsinka

FAMILY COURT OF AUSTRALIA

PARDIJ & GIRSINKA (FORMERLY PARDIJ)

[2008] FamCA 3

FAMILY LAW – CHILDREN – With whom a child lives – Parents of different cultures – Each parent seeking to preserve their own culture for the child – Child being referred to by different names

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Johnson v Johnson (2000) 201 CLR 488
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Rice v Asplund (1979) FLC 90-725

APPLICANT:

MR PARDIJ

RESPONDENT:

MS GIRSINKA (formerly PARDIJ)

INDEPENDENT CHILDREN’S LAWYER:

SEPTIMUS JONES & LEE

FILE NUMBER:

MLF

778

2006

DATE DELIVERED:

10 January 2008

PLACE DELIVERED:

MELBOURNE

PLACE HEARD:

MELBOURNE

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

5, 7, 8 NOVEMBER 2007; 2, 3 & 4 JANUARY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

MR CURTAIN

SOLICITOR FOR THE RESPONDENT:

O'CONNOR SRAJ LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MS DELLIDIS

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

SEPTIMUS JONES & LEE

Orders

That all existing parenting orders be discharged.
That the child [Maya Pardij] born … July 2002, live with the wife.
That the wife be restrained from denigrating the husband to or in the presence and hearing of the child.
That the husband be restrained from denigrating the wife to or in the presence and hearing of the child.
That the wife be restrained from encouraging or permitting the child to refer to her father by his first name and from encouraging or permitting the child to refer to the wife’s husband …, as her father and from permitting any other person from so doing.
That save for the matters set out in paragraph (7) hereof, the husband and the wife have equal shared parental responsibility for making decisions about major long-term issues in relation to the child.
That the wife have sole responsibility for making decisions in relation to the child concerning:
(a) education; and
(b) health.
Notwithstanding paragraph (7) hereof, before any long-term decision is made in respect to the education of the child:
(a)the wife shall advise the husband by email transmission (to an electronic address nominated by the husband) of her proposal relating to the child; and
(b)if the husband wishes to comment on the wife’s proposal, he shall, within 7 days after the date on the wife’s email transmission, advise the wife by email transmission, to the address from which the wife sent her communication, of his views; and
(c)upon receipt of any comment or proposal by the husband, the wife shall give consideration to his views; and
(d)after the wife has considered the husband’s comments, she shall make a decision and electronically advise the husband of the outcome immediately after making that decision.
That for the purposes of paragraph (8) hereof, if the husband does not electronically respond as provided by (8)(b) the wife shall be entitled to presume that the husband does not wish to be involved and she may decide the issue accordingly.
The husband may attend all school and extra-curricular activities of the child at which parents would normally attend.
That each of the husband and the wife have liberty to disclose the details of these orders to all principals and teachers of schools that the child attends, together with all hospital, medical, dental and other health professionals attended by the child.
That in respect of paragraph (7)(b) hereof, the wife shall advise the husband by email transmission of:
(a)advice as to all hospital, medical, dental or health professional appointments for the child (other than those of normal everyday childhood illness); and
(b)any advice as to medication being administered to the child as a result of any such professional advice,
and the husband may attend upon any such hospital, medical practitioner, dental health practitioner or other health professional relating to the child other than at the same time as the wife unless she otherwise consents.
That the child spend time with the husband as follows:
(a)from 3.00pm on Friday until 7.00pm on the following Sunday in each alternate weekend to commence on 11 January 2008;
(b)on each alternate Monday from 3.00pm until 7.00pm commencing on 21 January 2008;
(c)as and from 1 February 2009, sub-paragraph (a) hereof shall be extended to conclude upon the commencement of school on the Monday morning;
(d)as and from 1 February 2010, sub-paragraph (b) hereof shall be varied so that the time spent by the child with the husband shall be from 3.00pm on the Monday until the commencement of school on the following Tuesday morning in each alternate week during school terms (being the Monday and Tuesday immediately following the weekend when the wife has spent time with the child);
(e)for one half of all school term holidays from the conclusion of school on the last day of term until 10.00am on the mid-point day commencing with the school holidays commencing at the end of Term 1 in 2008;
(f)during each long summer holidays as follows:
(i)on 26 December in each year from 9.00am until 9.00pm;
(ii)for one week from 9.00am on 7 January in each year;
(iii)for one week from 9.00am on 21 January;
(g) on Father’s Day in each year from 10.00am until 5.00pm;
(h)on the child’s birthday in each year from 12 noon until 5.00pm should it fall on a non-school day or from the conclusion of school until 6.00pm should it fall on a school day;
(i)on the husband’s birthday from 12 noon until 5.00pm should it fall on a non-school day or from the conclusion of school until 6.00pm should it fall on a school day.
(i) that as and from 1 December 2011, paragraph (13)(f) is discharged and in lieu thereof during the long summer holidays, the husband spend time with the child for one half of the holidays by agreement and failing agreement, from the conclusion of school on the last day of term until 10.00am on the mid-point day in each odd numbered year and from the mid-point day until 10.00am on the day before school resumes in each even numbered year;
(ii) from 9.00am to 9.00pm on 26 December in each year.
That until 24 July 2012, the husband confirm by email to the wife no later than one calendar month prior to all school term holidays and the long summer holidays under which pursuant to these orders he is to spend time with the child, that he will be taking recreation leave from his employment and no later than 21 days prior to the commencement of those school holidays, the wife shall confirm by email that she has received the husband’s email. If the husband fails to provide the notice by email as required, the wife shall be entitled to presume that the husband is not taking recreation leave from his employment and thereupon, the provisions of these orders for the husband to have time with the child are suspended for that period. Should the holiday time be so suspended, the provisions of paragraph (13)(a) and (b) shall not be suspended and otherwise apply.
That save as otherwise provided, during all school holiday periods, the provisions of paragraph (13) (a) and (b) of these orders are suspended and they shall resume immediately after school resumes as if they had not been so suspended.
Where changeover of the child does not take place at her school, the husband or his nominee collect the child from outside of the 7-11 store on the corner of …, M and the wife or her nominee collect the child from the husband’s residence at the conclusion of each such period under these orders.
The husband’s time with the child under these orders is also suspended during the following:
(a) on Mother’s Day from 10.00am until 5.00pm;
(b)on the child’s birthday, should it fall during a period when the child is otherwise spending time with the husband, from 12 noon until 5.00pm if a non-school day or from the conclusion of school until 6.00pm if a school day;
(c)from 6.00pm on 24 December until 9.00am on 26 December in each year;
(d)on the mother’s birthday should it fall during a period when the child is otherwise spending time with the husband, from 12 noon to 5.00pm if a non-school day or from the conclusion of school until 6.00pm if a school day.
That the husband communicate with the child by telephone to the wife’s mobile telephone and the wife facilitate such telephone calls on each Tuesday and Thursday afternoons between 5.00pm and 5.30pm.
That the wife communicate with the child by telephone to the husband’s mobile telephone between 9.00am and 9.30am on Saturdays when the child is not otherwise living with the wife.
Each of the husband and the wife communicate with each other by email once each week for the purposes of exchanging any information relevant to the child’s education, health or welfare and not by SMS message, telephone or email unless the situation is urgent concerning the child’s health.
That the parties maintain a communication book which shall travel with the child. Each party shall maintain entries in the book only in relation to issues as to medication, behaviour of the child and matters pertinent to the child’s welfare.
That each party keep the other informed at all times in writing of their mobile telephone number and residential address.
That the wife authorise the principal of the child’s school to provide to the husband at his expense, copies of all progress reports, photographs and newsletters that would otherwise be documentary information to which a parent of a child of the school would be entitled.
That the husband and the wife, their servants and agents, be and are hereby restrained from removing or attempting to remove or causing or permitting the removal or attempted removal of the child [Maya Pardij] (sometimes known as [Sri Pardij] and [Maya Sri]) born … July 2002 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the watch list until the Court orders its removal.
As soon as practicable, the solicitors for the wife serve a sealed copy of this order upon the proper officer of the Australian Federal Police at Melbourne AND IT IS REQUESTED that the Australian Federal Police give force and effect to this order.
That forthwith, the order appointing the Independent Children’s Lawyer be discharged.
Pursuant to s 118 of the Family Law Act 1975 (Cth) (“the Act”), until further order the father must not without leave of a court having jurisdiction under the Act, institute proceedings under the Act for parenting orders relating to the child.
That each of the husband and the wife undertake and complete a post-separation parenting course at either Relationships Australia or the Family Mediations Centre at M and provide to the other parent a certificate of completion by 31 December 2008.
Pursuant to s 65L of the Act compliance with these parenting orders is to be supervised by a family consultant nominated by the Manager, Child Dispute Services of the Melbourne Registry of the Court and that supervisor shall give any party to the parenting order such assistance as is reasonably requested by that party in relation to compliance with and the carrying out of, the parenting orders.
That save as to any issue of costs as between the parties and any claim for costs by the Independent Children’s Lawyer, the applications of the husband and the response of the wife in respect of all outstanding parenting issues are dismissed.
That in respect of any issue as to costs as provided for in paragraph (31) hereof, those issues shall be determined on written submissions to Justice Cronin and such submissions shall be:
(a)filed with the Associate to Justice Cronin by 4.00pm on 31 January 2008; and
(b) served on the other party by that date.
That any party receiving a submission as to costs as provided by paragraph (32) hereof, shall have until 15 February 2008 to reply, such written reply to be provided to the Associate to Justice Cronin.
That any issue as to costs be determined in chambers.
That all proceedings be otherwise removed from the list of cases awaiting a hearing.
That after 1 March 2008 all exhibits be returned to the practitioner producing them.
That all material produced pursuant to subpoenae in relation to the parenting proceedings be returned to the recipient of the subpoena.
That pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Cronin delivered this day will for all publication and reporting purposes be referred to as Pardij & Girsinka (formerly Pardij).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 778 of 2006

MR PARDIJ

Applicant

And

MS GIRSINKA (formerly PARDIJ)

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

The child Maya Pardij is just five years of age having been born in July 2002.
The two main disputes between the parties are predominately about who should have what time for the child’s care and who should make decisions about her long term future. These issues were complicated by arguments between the parties about the background of their relationship, some orders about the child made on 11 July 2006 and a subsequent variety of contested proceedings heard in this Court by the Senior Registrar and two judges.
In respect of the two main disputes, it is the husband’s case that:
(a)he and the wife should have equal shared parental responsibility; and
(b)the time for each parent with the child should be a week-about or “50/50” time.
It is the wife’s case that:
(a)she should have sole responsibility for health and education decisions relating to the future of the child; and
(b)she should be the predominant parent and the husband spend time with the child each alternate weekend.
It was the Independent Children’s Lawyer’s position after the evidence closed that the wife’s proposal (subject to some minor variation) was the appropriate one.
The child was attending a kindergarten in 2007 and one of the disputed subjects of these proceedings is where she where she will start school in 2008.
The wife wants to enrol and commence the child at a local Catholic school. She says this school is convenient and close by. The husband says a number of things about schooling but doing the best I can to understand his position, he says the school should not be a Catholic school because of his concern that the child will be indoctrinated about beliefs which are inconsistent with his beliefs. In an odd twist towards the end of the case, the husband said that in respect of the dispute about future decision-making concerning education and health, the wife could choose which of those two she would have responsibility for and he would have the other. This would indicate a little less concern of the husband about his clash of religious ideologies than he would have the Court believe.
Another issue is about the child’s name and the husband wants to ensure that it is not changed. The problem stems to some degree from a clash of cultures. The husband asserts it is a deliberate move to exclude him from the child’s life. The child attends a European language and culture school and there, she is openly called Ivana. Her name is clearly marked on things taken to the school as “[Ivana]”. To compound the husband’s suspicion, at a very recent concert, the child announced to the assembled gathering including the husband, that her name was Ivana Piotr. Piotr is the wife’s new husband’s first name. The wife expressed surprise at where the latter concept came from but explained the former on the basis that the language teacher could not pronounce “[Maya]” and hence all at the school adopted the name, Ivana. Whilst I have some reservation about this and will return to it, I am satisfied that the wife has not set about changing the child’s name to exclude all reference to the husband and his culture but as a precaution, I propose to make orders about it.
Although as I have said, this case has predominately been about parenting orders, the husband also sought orders for departure from child support under the Child Support (Assessment) Act 1989 (Cth). At the opening of the case, he conceded that he had not attached any of the appropriate assessments to the documentation nor had he served a copy of any such application on the Child Support Agency. As this document was filed on 30 October 2007 and it was a new issue from the wife’s perspective, I ruled that I would not allow the husband to proceed to have that matter litigated. I pointed out to him that there is another forum for that issue.
Before dealing with the other issues in dispute, it is helpful to understand the cultural backgrounds and the circumstances under which the child is currently being, and will in the future, be raised.
The child’s natural language is a European language. Her mother with whom she lives most of the time, was born in Europe in 1975. Although the mother speaks fluent English, it appears that the European language is her language of choice and hence the child speaks it.
I have already mentioned religion. In so far as religion is of any significance in these proceedings, the mother is of Christian persuasion. She has married a European-born man. Together, they have a child born in May 2007.
The father was born in India in 1970. His native tongue is Hindi but his English is excellent. His profession is in electronics. He obtained a Bachelor degree in electronics in Europe in 1994, a Masters Degree in electronics in Europe in 1996 and was conferred with a doctorate of philosophy in electronics in 2001. He also holds a Masters Degree in business. He is of the Hindu religious faith.
To add to the complexity of the proceedings, there is now an application under s 118 of the Family Law Act 1975 (Cth) (“the Act”).
In relation to the application for orders under s 118, the husband’s position was simple; if the wife would agree to an order, he would agree to it. I queried the husband about whether he would only make that concession if the wife did so and he made clear that that was his position. This is a curious one because it makes abundantly clear his acknowledgment of not only the basis for such an order but also for the need for one. In his final submission, the husband said there should be s 118 orders and they should be mutual. I disagree. Unlike other consent orders where the parties agree on things for commercial reasons or with a denial for the reasoned basis for orders, it is hard to see how a fettering of access to the judicial system can be justified except:
(a)in circumstances where one party (or both) has in the past unreasonably harassed the other and is likely to do so again; and
(b)the past proceedings have been frivolous or vexatious.
Importantly, s 118 says that unlike consent orders, the Court has to be satisfied that it is appropriate to make the order. The wife’s position was that there was nothing in her conduct which was frivolous or vexatious to warrant such an order. The husband put to her that if she had no intention of returning to court why would she not agree to a mutual order. This “equal-balancing” of concepts is a theme that permeates the husband’s view about what is fair. In respect of the s 118 issue, he failed to understand that the allegation of the wife was that his constant referral to litigation was wearing her down. The wife says:
Our family finds this is all extremely stressful because the court proceedings take up the precious time which could otherwise be spent with children. It has indeed become a financial burden depriving our children of the funds that could be available for their upbringing.

There ought be no criticism of parties litigating if they have legitimate justiciable grievances. Here, the transcripts of previous hearings before Mushin J and Kay J show that the husband brought applications for unnecessary and at times, inappropriate reasons. Kay J warned the husband about orders under s 118 and as such, it is not something about which the husband was unaware.
In his final submissions, the husband suggested that I should order a continuation of the Independent Children’s Lawyer. His view is that that person should act as some form of mediator and in respect of disputed issues, the parties would be bound by that decision. Having regard to the history to which I shall turn, that submission strongly suggests that the litigation between these parties will not end unless there is clarity and finality in the orders. Even then, having regard to some of the matters that the husband has raised in previous litigation and his views about what should be negotiated now, I find that it is likely, given the opportunity to do so, the husband would bring further unnecessary applications before the Court.
This is a case where I propose to make an order under s 118 against the husband. I say this is necessary even in the light of the bizarre piece of cross-examination by the husband of the wife in which he gave her an unfettered opportunity to tell me all of the things about him that she would like to see changed. The underlying theme of her response was for him to stop the constant haranguing of her through criticism of her parenting. I suspect that without s 118 orders, despite the husband taking note of what the wife said, he will not be satisfied and want to come back again.
In relation to the parenting dispute, the husband’s position was that he wanted the child to spend equal time with him and the wife. Initially, he said that it should start on Wednesday and conclude on the following Wednesday but in submissions, said there should be a weekend changeover. Both the impracticability of that and the absence of evidence as to how the child would cope with that period of time away from her mother either now or in the future, makes me say with little hesitation that it would not be in her best interests.
The husband also raised an issue about the wife’s new husband Mr Girsinka. It was the husband’s case that Mr Girsinka had “serious” driving offences recorded against him and as a consequence, the child should not be driven by him. This must also be seen in the context of the wife not having a driver’s licence. The husband’s attitude to that was that she could travel by public transport. That in itself created complications as the parties were living on opposite sides of the city of Melbourne. There was some discussion at the commencement of the hearing in November about the husband moving out of his then rented accommodation. The Independent Children’s Lawyer even suggested that if the husband moved closer to the wife, different orders could be made. There is no evidence before me notwithstanding the period of time between the adjournment in November and the resumption in January, about what arrangements the husband has made.
The husband said that he got his information about Mr Girsinka from subpoenaed material. Mr Girsinka said he had been a professional taxi driver and had offences but only one speeding offence in recent years. I arranged for the subpoenaed material to be brought to court. The husband cross-examined Mr Girsinka about a recorded breach in 2003 and another in 2006. They were not court convictions nor were they “serious” driving offences. The husband put to Mr Girsinka that there “must” be more than those that were recorded although he proffered no basis for his belief. Mr Girsinka denied it. I have no reason to doubt what Mr Girsinka said but I have an uncomfortable feeling about why the husband really raised the issue in the first place.
The husband did not cross-examine the wife about her new husband’s driving record.
The husband has not been represented by lawyers during the proceedings before me save for a short period to which I shall refer in a moment. Least it be thought that the husband was disadvantaged as a consequence, I unequivocally say that he was not. The husband asked me to read (and he relied upon) an affidavit that ran to 141 pages with a further 55 annexures. In addition, he provided a summary of his argument that ran to 37 pages. He also provided another 12 page document with material. Despite not being represented and not presumably having any legal training, his cross-examination showed that he is an intelligent and articulate man who had come well prepared and understood what cross-examination was about. He had voluminous notes from which he conducted his cross-examination and although I had to redefine many of his convoluted questions, each one had a purpose and many were relevant to the issues in dispute. In circumstances where I felt there was a critical issue for my determination, and about which the husband did not cross-examine, I pointed out to him the importance of that untested evidence and generally speaking, he began to cross-examine the witness on that point.
The husband’s documents show that he has researched the Act and the Family Law Rules 2004 in some detail and his voluminous material is indicative of the efforts to which he has gone to put the material that he desires before the Court. I was very conscious of the fact that as a litigant without legal representation, the husband needed to be told of the requirements set out in Re F: Litigants in Person Guidelines[1] and I have endeavoured to explain the process to the husband but I have little doubt that in respect of the issues relevant to my determination under the Act, he was well versed.
[1] (2001) FLC 93-072; 27 Fam LR 517
In an unusual twist, the proceedings had to be adjourned part-heard in November to be resumed on 2 January 2008. In December, the Court received correspondence from a firm of legal practitioners apparently saying that they were acting for the husband and they would need to extend the adjournment to get on top of matters. At the solicitor’s request, the matter was relisted before me for mention in December and counsel appeared for all parties. Two things should be noted about this mention:
(a)the wife’s lawyers appeared under protest saying that there was no need for the matter to be so listed and because the husband’s lawyers had prepared a written submission, they had had to respond; and
(b)the written material indicated an adjournment of the resumption date was proposed but on the matter being mentioned, no such application was sought.
Mr Houlihan of counsel for the husband told me that he was seeking to call new evidence about the husband’s proposed future marital status and also to file a Notice of Risk of Child Abuse arising out of a particular paragraph in the family consultant’s report. I was told by Mr Houlihan that he had read the transcript and that as far as he was concerned, the husband had been fairly treated. I then discussed with Mr Houlihan in the presence of the parties all of the problems I foresaw about not only equal shared parental responsibility but also an equal division of time.
At the mention, I fixed the wife’s costs and reserved them on the basis that the wife had done significant work in anticipation of an adjournment application that was not forthcoming. The two bases upon which Mr Houlihan ultimately had the matter mentioned were really insignificant. As it turns out, the husband did not lead any evidence on the resumed hearing about his marriage plans and more importantly, I am quite satisfied having read the report of the family consultant that there was no basis to file a Notice of Risk of Child Abuse having regard to the fact that the husband was not making any allegation of physical violence perpetrated on the child. Accordingly, the mention became a complete waste of time.
On the resumption of the hearing on 2 January 2008, the husband attended. Again he was unrepresented. On the morning of the Court resuming, his lawyers filed a Notice of Ceasing to Act for him.
The husband began in January by saying that he had a ten minute submission to make but I explained that if he was seeking particular orders, he should make the submissions about them. He said he thought he was wasting his time because I had made up my mind as a result of the dialogue with Mr Houlihan in December. I explained that that was not so and that I would hear all of the evidence before determining anything. I felt it appropriate in December to follow the edict of the High Court of Australia in Johnson’s case[2] and do anything other than sit here as the immutable sphinx. I made it clear in December that I saw problems with the husband’s approach to equal shared parental responsibility and equal time because of the communication issue but I would still be open to be persuaded otherwise. It must be remembered that at that stage, I had heard the husband’s case to completion.
[2] (2000) 201 CLR 488; 174 ALR 655; 74 ALJR 1380
During the resumed hearing, I endeavoured to provide the husband with assistance in conducting his case.
At the close of the day on 2 January 2008, the husband said he was not returning to the Court on 3 January. I advised him that that was his choice but that I proposed to hear all of the evidence anyway. The husband attended and participated on 3 January.
When the proceedings commenced in November 2007, I asked the husband what orders he wanted me to make.
The husband initially sought “three options” but he abandoned Options 1 and 2. In evidence, he said he had thought about Options 1 and 2 and decided that they were not in the best interests of the child. That change of direction had a significant impact on this case having regard to the fact that the wife and the Independent Children’s Lawyer prepared their respective cases on the basis of the three potential options and the family consultant had to deal with those issues as well. The husband filed his summary of argument document on 30 October 2007 and even in that document, he still referred to the three options. Needless to say, I will only be dealing in this judgment with Option 3.

The wife’s material

I have mentioned the material of the husband. In her trial affidavit filed on 24 August 2007, the wife sought leave to refer to four affidavits from 29 March 2006 to 17 April 2007. That was inappropriate because the evidence is supposed to be in one affidavit but more importantly, these affidavits would have to be cross-referenced to the affidavits of the husband at that time to make any sense. In her summary of argument, the wife said she was relying on three affidavits filed 24 August 2007, 22 October 2007 and 26 October 2007. Those are the affidavits which I have relied upon. However, much of the evidence of both parties was directed at argument rather than fact making the historical detail about how each cared for or promoted the child’s welfare and development, difficult to ascertain.
Thus returning to the parenting issues between the parties, this is a case where both equal shared parental responsibility, that is the decision-making about parenting and also the division of time have to be determined separately and I propose to do that.
This hearing has been extended because of the width of the dispute as will be evidenced by the orders that the husband sought leaving aside the three options I have already mentioned. The very breadth of the orders indicate the intensity with which the husband prepared and conducted his case but they also shed significant light on the complaint by the wife about the husband’s attitude towards her which could only be described as control. I shall return to that subject below. The husband sought the following orders in these precise words:
C. Option 3 (Least preferred option)
1.That all previous Parenting Orders made by the Family Court at Melbourne be and are hereby discharged
2.That, subject to the Order in paragraph 1 (Section D, page 16), the parties have equal shared parental responsibilities for the care and development of the child of the marriage namely […] born [July 2002].
3.That the daughter […] resides with the father for at least 2½ years from the date of the decision of this application
4.That in addition to the 2½ year period pursuant to paragraph 3 herein (Option 3), the daughter […] resides with the father for a further period of lost contact with the daughter between the date of this application and the date of the decision of this application.
5.That for the period of daughter’s residence with the father pursuant to paragraphs 3 and 4 herein (Option 3), the daughter […] has contact with the mother as follows:
5.1From 12:00pm Saturday till 12:00pm Sunday every alternate weekend
5.2That the child spends time with the mother as follows
5.2.1For half of all school-term holidays once the child is at school
5.2.2From 10:00am until 5:00pm on Mother’s day
5.2.3From 10:00am until 5:00pm on the Mother’s Birthday
5.2.4On the child’s birthday
a)From 6:00pm until 8:00pm if it falls on weekday
b)From 12:00 noon until 5:00pm if it falls on Saturday or Sunday
c)From after school until 7:00pm whenever it falls on weekday in 2008 and thereafter
5.2.5At such times as may be agreed between the parties
5.3The changeovers required to facilitate the wife spending time with the child take place outside [F Street] (or at such other place as may be agreed between the parties)
6That pursuant to the residence arrangements of the daughter as per paragraphs 3 and 4 herein (Option 3)
6.1The father pays all expenses associated with the care and development of the daughter
6.2The mother pays child support to the husband pursuant to the Child Support Assessment Act 1989.
7That after the period of daughter’s residence with the father pursuant to paragraphs 3 and 4 herein (Option 3), the daughter spends equal time with both parents as follows
7.1During school terms as follows
7.1.1During the first week as follows
a)From Monday to Wednesday with the father.
b)From Thursday to Sunday with the mother.
c)The mother drops the child to school on Monday morning and the father picks the child from the school on Monday evening.
d)The mother picks the child from school on Wednesday evening
7.1.2During the second week as follows
a)From Monday to Wednesday with the mother.
b)From Thursday to Sunday with the father.
c)The father drops the child to school on Monday morning and the mother picks the child from the school on Monday evening.
d)The father picks the child from school on Wednesday evening
7.1.3During the following third and fourth weeks as per paragraphs 7.1 1 and 7.1.2 herein respectively (Option 3), and the above sequence is repeated until the school term finishes
7.2The daughter spends half of the school holidays with the father and half of the school holidays with the mother as may be agreed between the parties
7.3The daughter spends half of the Christmas and New Year holidays with the father and half with the mother as may be agreed between the parties
7.4The daughter spends full day with the mother on her birthday (25^th December) from 9:00am to 5:00pm, if not living the mother on that day.
7.5The daughter spends full day with the father on his birthday (15^th January) from 9:00am to 5:00pm, if not living the father on that day.
7.6The daughter spends equal time with mother and father on her birthday on 24^th July.
7.7As may be agreed between the parties
8That pursuant to the residence arrangements of the daughter as per paragraph 7 herein (Option 3) both parents share daughter’s all expenses equally as follows
8.1The mother is responsible for all living expenses while residing with her
8.2The father is responsible for all living expenses while residing with him
8.3The father and mother equally share all educational expenses (formal and informal including school fee, books, stationery etc.) as well as all medical expenses
8.4The father and mother share equally all other unforeseen expenses not specified above
9That pursuant to the residence arrangements of the daughter as per paragraph 7 herein (Option 3), the changeovers required to facilitate the wife spending time with the child will be determined according to the best interest of the child and the current residential addresses of the mother and father at the time.
D.     Additional Final Orders Sought by the Applicant Husband Common to all of the above 3 Options:
1.That the wife is Ordered to have all obligations, while in her company, to protect the child […] from any physical violence and psychological abuse or harm by herself, her mother […] and her boyfriend […] or any other members of her extended family that may have or will have contact the child in the future.
2.That the wife's mother (child's grandmother) […] is restrained from denigrating the father and damaging his relationship with his daughter […].
3.That the wife be at liberty to arrange for another adult person to effect changeover of the child on her behalf providing that she informs the husband of the identity (name, surname, date of birth, address and contact phone number) of the person who will be attending at the changeover.
4.That if the person effecting the contact referred to in paragraph D3 herein is other than the wife's mother […], the wife also provides the police clearance certificate to the Family Court about that person before he or she can exercise the contact with the child.
5.That if the person effecting the contact referred to in paragraph D3 herein is other than the wife's mother […] and he or she is driving the child in his or her car without the presence of a parent, the wife also provides the Licence Searches Certificate from VicRoads to the Family Court about that person before he or she is permitted to drive the child.
6.That the parties do all things necessary to enrol the child in school with effect from the commencement of the school year in 2008.
7.That the parties each provide the details and addresses of daughter's schools and educational institutions (formal or informal) prior to her commencing to attending them.
8.That the parties each authorise the other, upon the child commencing kindergarten or school, to obtain at his or her sole expense (if any), copies of any progress reports, photographs, newsletters, or the like, and attend any kindergarten, school or extra-curricular or sporting event a parent would normally attend.
9.That the parties advise each other of any appointments they have with the child's school teachers, instructors and medical practitioner treating the child.
10.That the parties advise each other of any sporting and cultural events or functions the daughter attends or participates.
11.That each party is to keep the other informed of their current residential address and telephone number and advise each other within two days of any future change to the residential address and telephone numbers.
12.That the parties each be restrained by injunction from changing the place of residence of the children to any place outside the Melbourne metropolitan area without the prior written consent of the other party or by order of the Court
13.That each party, their servants and/or agents be and are each hereby restrained from removing the child from the Commonwealth of Australia
14.That the parties are restrained from obtaining any foreign passport(s) for the daughter […] without prior consent of the other party or without a Court Order
15.That the wife provides to the husband two certified copies of the daughter's current Australian passport and/or any renewed Australian or any foreign passports in the future, and the wife, if in her possession, also provides copies of child's other documents (e.g, birth certificate, immunisation certificate etc.) requested by the husband
16.That the wife made available daughter's Australian passport to the husband for facilitating her lifelong visa to India
17.That the wife be restrained from changing the child's religion, faith and names without the prior written consent of the husband
18.That the parties each notify the other as soon as reasonably practicable in the event of an accident or medical emergency befalling the child, and keep each other informed from time to time, as circumstances require of medical, dental and any other health or developmental treatment of the child and each authorise the other, at his or her sole expense to contact and discuss the child's health or development with any of the child's treating professionals
19.That the wife pays the husband's costs under section 117AB, Schedule 1 (Part 1) of the Shared Parental Responsibility Amendment Act 2006 incurred
19.1   For the hearing of 19^th March 2007
19.2For the hearing of 20th April 2007 plus costs associated with subpoenaing documents following false evidence provided by the wife
19.3All other hearings that resulted from false evidence provided by the wife
20.That the wife pays husband's all costs arising from the proceedings for final trial commencing 01 June 2007.

The wife’s position was that the husband should have alternate weekends with the child from 6.00pm on Friday to 6.00pm on Sunday but from 4.00pm on the Friday or as I understand it, the conclusion of school once the child starts that schooling. She also sought orders for an equal sharing of the school term holidays commencing in 2008, two weeks of non-consecutive time over the long summer holidays together with ancillary days and fixed telephone time.
The Independent Children’s Lawyer’s position was initially reserved but in essence, supported the concepts set out by the family consultant in her report. That changed marginally at the conclusion of the case.
Another issue in dispute but which was not dealt with as a preliminary issue was the fact that orders were made by Senior Registrar Fitzgibbon on 11 July 2006. Those orders were expressed to be final parenting orders. On that day, all parties were represented before the Senior Registrar. There were two orders made on that day. The first was an order relating to property interests and is clearly marked as an interim order. The second however is a parenting order which is clearly noted on the court record and the sealed copy of the orders, as being final. The husband denies that the orders were final and says that they are interim.
All parties were represented by lawyers at the hearing on 11 July 2006. The orders arose out of a handwritten set of minutes. The typed orders refer to specific time that the husband is to spend with the child. Most importantly, they refer to school-term holidays “once the child is at school”, specific time on Boxing Day and 1 January and for a period of 12 days in January “each year once the child is at school”. There is a reference in the order to the discharge of orders that had only been made six weeks prior to these orders and most importantly, to the discharge of the Independent Children’s Lawyer.
About those orders, the husband says:
(a)he did not know until March 2007 that they were final;
(b)he did not intend them to be final and that they were to be “temporary”;
(c)he did agree to “stop the proceedings” for the sake of the child in July 2006;
(d)he was represented by counsel and solicitor about whom he said:
It appears that my then lawyer Mr Beswick (from the Kempsons Lawyers firm) did not do a good job nor did he instruct my Counsel Mr Pierre Testart properly on 11 July 2006. Further, I believe (and I was quite upset about it) that wife’s (sic) lawyer Mr Farmer has been able to manipulate something in the process. On 11 July 2006, as everything was handwritten and in the absence of Form 1 Application seeking such Orders it was understood by me that they were interim orders. Hence I signed them. Later Mr Farmer had these handwritten Orders engrossed and sent to the Court Registry for Court approval and official seal. In the past it was always my lawyer who was doing this exercise (because I was the applicant). For example, the orders of 22nd May 2006 were typed by my lawyer and a copy was later provided to the wife’s solicitor.
As far as I am concerned, the only difference between interim and final is that those orders were made using Form 2 and Form 1 Applications respectively.
(e)He read the handwritten minutes before signing them but they were prepared by the wife’s practitioners and they represented what she wanted as I have set out above; and
(f)He agreed to the orders in July 2006 because the wife’s mother was there (assisting the wife to care for the child) at that time.
In paragraph 104 of the husband’s affidavit he adds a footnote about his lawyers and says:
For example, having applied the presumption of share (sic) parental responsibility in paragraph 1 of these Orders, my counsel at least should have discussed with me the assumption (sic) of spending equal time with both parents which the amended Act already had the provision for.
The husband was cross-examined at some length about this issue. In responding, he said that the lawyers were looking at the orders as the end of the story. That is that they were looking at final orders but he was reading them and wondering why those things were in the minutes.
Having indicated that about March of 2007, he realised that the orders were of a final nature, he said that he had exhausted all avenues with the wife before he could, as he described it, “start” the proceedings. Having said “start” the proceedings, he altered that a second later to “restart”.
Also in March 2007, the husband wrote to the then solicitors for the wife and said that the wife was on notice about parenting issues, that he would not enter into negotiations, that he wanted “proper access” and that he wanted to undo the damage for lost contact in the past. This last point was a reference to the fact that the wife had gone to Europe for a significant part of the child’s earlier years.
All of these matters could be construed as being consistent with his view that the July 2006 orders were temporary or interim. As he said, he had waited as long as he could to sort out the longer term issue and was unsatisfied. However, I do not accept that he did not understand the orders were final. All of the written documents suggest the orders were intended to be just that. His position about intending to try and negotiate some other arrangement thereafter other than the time allocated in the 11 July 2006 orders is untenable having regard to the findings I will set out below that I have made in relation to the relationship between the husband and wife both before and after 11 July 2006.
If the orders were final, then the husband would be required under the test in Rice v Asplund[3] to show a change of circumstances. He says (para 106) that circumstances have changed. I do not accept there is evidence of that. If the orders were interim, then under Part VII of the Act I would be obliged to ignore the basis upon which they were made but I would certainly be also obliged to take into account what time had been spent between each party and the child subsequent to separation.
[3] (1979) FLC 90-725; (1978) 6 FamLR 570
Whatever be the case, there is no question that as at 11 July 2006, the husband agreed to the wife having the full-time care of the child and all of his complaints about what had occurred to that point in time must be seen as being less significant. If they were live issues up until 11 July 2006, his consent to the orders on 11 July 2006 must have meant that he was satisfied to the extent that they did not have any impact upon his decision to give the wife that caring responsibility. Therefore, much of the husband’s evidence about parenting in the first 100 paragraphs of his affidavit is of little relevance. However, even though I find that the orders were final, the proceedings have been conducted by both parties (as they had to be by the wife) on the footing that these were contested parenting procedures notwithstanding the rule in Rice v Asplund[4]. That issue matters little for the reasons to which I shall now turn.
[4] ibid
The background of the child’s life has to be seen in the context of the way in which her parents have raised her whether by consensus or otherwise.
The parties were married in Europe in January 1998 and came to Australia in February 1998. They lived in NSW until June 2000. The child was born in July 2002 in Europe. The wife went to Europe for the birth of the child and the husband arrived there two days before she was born. When the child was six weeks old, the parties came back to Australia and lived in Sydney. For the first six months of the child’s life, the wife looked after her on a full-time basis. Although there was some significant dispute about that, I find that the husband was at work from 9.00am until 5.00pm and outside of those hours, he assisted. There is little doubt that he was a significant help doing the shopping and getting up during the night with the changing of nappies and the helping of the feeding of the child.
At the six month mark, the wife returned to work on a part-time basis. The husband disputed the extent of the working time of the wife but having regard to the finding that I have made about the finality of the orders in July 2006, it matters little.
In November 2004, the wife left Australia with the child to live with her mother in Europe. A significant amount of the husband’s evidence is spent on the fact that this move was without his consent and that he was extremely upset. He asserted that the wife stole $800 from his credit card at the airport prior to boarding the plane. He said that when the wife was in Europe, she would not speak to him on the telephone to explain why she had taken the course that she had. That is the evidence that the husband gave. However he then added that he had in fact obtained a new job at that particular time and because the child would have had to have gone into child care, it was he who had proposed that the wife could go for a “short period”. The short period of time to which he was referring was a maximum of two to three weeks but he then added that she had left without agreeing with him and deceived him by leaving a false note.
There are two quite disconcerting facts about this particular period of time. The first is that the wife unilaterally chose to stay in Europe. That is leaving aside the question of just exactly what the husband knew about the wife going there anyway. Notwithstanding the wife had been the primary carer of the child up until that time, the ensuing twelve month period saw the husband excluded from the child’s life and as a consequence, that affected her attachment to him. During the same twelve month period, whilst the parties were discussing a reconciliation, the wife returned to Australia leaving the child in the care of her mother in Europe. Whilst the wife’s mother had been a significant person in the child’s life, I found it disconcerting that the wife would remove from the child’s life the only other constant attachment figure.
Interestingly, despite that absence of both mother and father, the child is clearly very much attached to her mother whom she sees as the predominant carer in her life and still has a close and loving relationship with her father. I shall deal with the evidence of the family consultant below but she gave evidence about the fact that she saw little enthusiasm in the child for any relationship with her father. The husband cross-examined the family consultant at length about that but in reality, whatever the reason was for the child’s reluctance, that is what the family consultant observed. There is no evidence from the wife nor for that matter from the husband indicating that that is the child’s usual reaction to the husband.
The husband complained that whilst the wife was in Europe, she changed the child’s religion and had her christened without his consent or knowledge. The change of religion came about because as he saw it, the child had “already formally been introduced to Hinduism”. It must be kept in mind that at that time, the child was just two years of age.
The wife’s position in relation to the religion was that she saw no problem with the child sharing in the spiritual life of each of her parents. She missed the point. My concern was the fact that the wife had unilaterally chosen to introduce the child into a religion that was inconsistent with that of the husband without both consultation and discussion with him. The saving grace in this case for the wife is the fact that the child was very young at the time and would not have understood what was happening. The evidence about religious observances subsequent to that time was very scanty. My understanding however is that the wife has not been involved in any regular orthodox religious practice in any event. Similarly, in respect of the husband’s position, whilst he seems to observe certain parts of his religion, there is no evidence as to the depth of that commitment nor the regularity of any observances.
Notwithstanding the husband’s assertion that the wife had no intention of coming back, there appears to have been at least some negotiation about the potential for an ongoing relationship. Counsel for the wife put to the husband that whilst the wife was in Europe, the husband had reflected on the marriage and he agreed. That reflection however, has to be seen in the context of a document that is dated January 2005 which refers to the terms and conditions of the wife’s return to the marriage. The husband was shown this document and initially said that it seemed “familiar” but then acknowledged that he created it and sent it to the wife. This same document had been before the Court on a previous occasion before Kay J on 20 April 2007 wherein his Honour referred to it as “chilling” and “frightening”. Although the husband said that Kay J did say that, his view was that the document it was all taken out of context. Having heard the evidence of the husband, I agree with Kay J.
I do not propose to deal with the document in great detail however I accept that notwithstanding the protestations of the husband that it has been taken out of context, it really does reflect his perception of parenting and the role of the wife. The document itself is an exhibit. Its cover sheet is headed “Terms and conditions of your return”. It contains a table of contents. Immediately after the contents table is a page headed “Warnings”. It contains the rather chilling statement as follows:
You may find the terms and conditions contained in the agreement unreasonable (in fact they are not!) and you will perhaps be angry as well upset (sic) with me as go (sic) through them. So take good care of yourself while reading this document.
The document sets out a long preamble in which the husband unburdens himself. He then says:
In the past my position has been that I will make your life miserable if you create troubles but I will not initiate a divorce and that it should only come from you. In essence, it meant that a divorce is probably not the solution of these issues, but it would be acceptable if you reach a point that you are extremely unhappy.
The husband in an audacious statement said that the child was the real victim. That was rather prophetic.
The document which was never signed, sets out a number of conditions. Those conditions include that if the mutual trust was broken, the husband would file for a divorce immediately and that:
Furthermore you shall automatically lose the custody of all children and right to any assets accumulated during our marriage.
The last quote appears a number of times. Whilst the husband brushes those matters aside saying that he was endeavouring to sort out his marriage in the context of the wife having, as he saw it, unilaterally taken his child to Europe away from him, it is hard to see how the document can be anything other than what it appears on its face. In my view, having seen the husband in evidence as well as cross-examining the wife, condition number 7 epitomises the problem. In the document, the following appears:
From now onwards, you agree that our marriage will be based on patriarchal model whereby you will obey and follow your husband (me).
Thereafter follows the automatic loss of custody and assets statement.
At paragraph 256 of the husband’s trial affidavit, he said:
The letter was a genuine attempt solely for the purpose of identifying current issues in our marriage and putting forward a proposal including that of the wife (if she had any) to avoid future problems in case the wife wanted to continue the relationship.
He went on to say in paragraph 265 that had he known the letter would have ended up in court, he “perhaps” would never have written it.
The husband’s affidavit is replete with examples of his autocratic nature. At paragraph 250, for example, he said that the wife “often lacked the fundamental knowledge of human relationship and cannot get along with people well”. At paragraph 252 again referring to the 2005 document, the husband said:
…the wife is selfish by nature and possess self-pride and inflexibility that are unnecessary in such a precious relationship as marriage.
Each of the quotes to which I have just referred are taken from the affidavit affirmed by the husband on 11 August 2007 well after receiving the report of the family consultant.
The other context that the husband would have me believe is that he is really referring to the fact that the wife had to separate herself from her mother whom he saw as having a dominating influence. I have looked at the document a number of times and can find no such reference. In my view, the document was prepared effectively as an ultimatum to the wife.
The significance of this document is its consistency with everything else about the way the husband viewed the relationship with the wife and her role in the life of the child and sadly, I suspect the way that relationship will continue into the future unless the husband adopts a far more conciliatory approach and focuses his attention on what is in the best interests of the child. The husband certainly constantly says he is only thinking of the child and her best interests but I have significant misgivings. The family consultant who objectively saw the parties and the child makes remarks that are of serious concern and I shall return to them below. The husband’s consistent theme is that the wife is a selfish person whose interest is not in relation to the child. The husband was given a number of opportunities to confirm that notwithstanding all of his complaints, he really did not see the wife as a bad mother and that she had been promoting his relationship with the child. The best the husband could do was to say that the wife was a “nice person”. All of this evidence also has to be seen in the context of someone who is extremely intelligent and very articulate.
Notwithstanding the appalling document prepared in January 2005, the wife returned from Europe to Australia without the child in July 2005. The maternal grandmother looked after the child in Europe during that time. The parties then seemed to negotiate her return. The husband accused the wife of blackmailing him into allowing a resumption of the relationship on the basis that her mother would be able to come to Australia and that as he was desperate to see his child at any cost, he agreed not only to the wife’s condition but he also paid for his mother-in-law’s air ticket as well. I reject the husband’s desperation as the basis of the wife’s return. There is no evidence to support that.
Accordingly, the child came back to Australia at the end of September 2005 accompanied by her grandmother.
I pause at this point in time to point out that at that stage, the husband had not seen the child for 11 months.
The relationship was relatively short thereafter as the parties finally separated in February 2006. Between September 2005 and February 2006, the husband conceded that he worked full-time and the wife did not. However during this time, he also studied and completed his Masters degree which required studies sometimes on evenings and weekends and otherwise, research at the local library. He conceded that the wife did work part-time but during that period of time the maternal grandmother was caring for the child.
The husband would not accept that the wife only worked two days per week which was her evidence. I accept the wife’s evidence in respect of that issue.
There was a sterile argument between the husband and counsel for the wife in which it was put to the husband that the wife was assisted by her mother. The husband’s response was that that was totally wrong and that in fact, the grandmother did the caring assisted by the wife. I do not accept that the wife abdicated her responsibility to her mother.

Needless to say, the relationship during those five to six months was very poor and there were frequent arguments. Sadly, the husband acknowledged that the child had been “severely affected by these regular arguments in the house”. The husband blamed the maternal grandmother but it seems to me irrelevant having regard to the fact that the child even on the husband’s evidence, witnessed it all.
Up until the time of separation therefore, in my view, there was a clear picture of the wife being the person primarily responsible for the day to day management and care of the child no doubt assisted at various times by the husband.
Subsequent to separation until 11 July 2006, there is little doubt that the wife was the primary carer of the child. On 22 February 2006, the wife left the home and did not return.
The separation between the parties was unpleasant. At that time, the wife’s mother was living with the parties. I find that on 20 February 2006, there was an argument between the husband and the wife in the evening after the child had gone to bed. I accept the version of the wife and her mother that during the argument, the wife’s mother entered their bedroom and requested that they tone down their voices because the child was asleep. The parties disagree strongly about what happened thereafter. Suffice to say, the wife’s mother was excluded from the residence and the husband and wife remained apart.
There was considerable discussion and cross-examination about who pushed who and who opened the door to ensure that one or more of the adults ended up outside of the residence. In my view, it matters little. What did occur was that the wife’s mother received a broken finger in the altercation in which I find all three adults were involved. Surprisingly, the child was not disturbed.
This incident took on some significance not just because of the fact that separation occurred at that time. According to the husband, on the following morning in the kitchen, the child accused him of breaking her grandmother’s finger. The husband said that the wife must have told the child of that but I cannot make that finding. It is just as conceivable that the grandmother told the child. More importantly, I find that the grandmother did not receive medical treatment until after that time. I accept that when the grandmother was treated by a medical practitioner, the diagnosis of the break in the finger was discerned and that the child was present during that examination. It is therefore conceivable that the child learned of the incident simply by being present during the discussion between her mother, grandmother and the medical practitioner.
Mr Curtain on behalf of the wife said that it was not his case to seek a finding about the altercation notwithstanding that it may have some impact on the question of the presumption of equal shared parental responsibility. I heard evidence from both the husband and the wife but also from the wife’s mother. All three were subjected to cross-examination. The evidence of the wife and her mother was consistent. What I am satisfied about is that all three adults grappled with one another.
The wife in cross-examination by the husband said that after the incident, she barricaded herself in the bedroom because she was frightened of the husband. This evidence was in the context of the wife making no other assertion of physical violence by the husband during their relationship. I accept however the wife’s version that she was in fear that night and that that incident precipitated her leaving the residence of the parties. My finding about the aggression of the husband that particular night is supported by the fact that the wife called evidence from a Ms O. Ms O was a friend of both parties up until the time of separation. She gave evidence about a number of observations during the relationship none of which were of any significant assistance to my determination. However, she pointed out that immediately after the separation of the husband and the wife, she observed the wife to be quite frightened. This is a woman who had known both parties for a number of years and therefore would have been able to say that something had happened to change the demeanour of the wife. I drew this to the attention of the husband suggesting that he might contemplate whether he wished to cross-examine Ms O but he made no challenge to her evidence on that point. I have no reason to doubt Ms O’s objectivity and with her observations about the time of separation with the wife’s statement about what occurred on the night of separation, I accept that the husband was aggressive creating fear in the mind of the wife.
Two days after the fracas on 20 February 2006, the wife left the home. The husband immediately sought injunctions to prevent her removing the child from Australia. Over the ensuing two weeks, the husband sent SMS messages and emails which were blunt but clearly conveyed his desire to see the child. In her affidavit material, the wife gave examples of three such messages but ironically, the husband gave evidence in his affidavit of seventeen.
On 10 March 2006, the wife sought and obtained an interim intervention order on an exparte basis. The facts set out in the complaint were vague and referred to the separation incident. Ironically, no mention was made of the SMS and email messages. The facts set out in the application alone would not have justified an injunction and it seems that on the ultimate defended hearing date at the end of March 2006, the magistrate agreed. The husband wanted to lead evidence about what the magistrate said. I explained to him that I was not interested in the statements of the magistrate but rather he should cross-examine about inconsistencies between what the wife was saying now and what she told the magistrate then. It is important to understand that the magistrate according to the husband, was not happy about the evidence of the wife and perhaps that is the reason why her application was dismissed. I am not in a position to say what the basis was and to a very large degree, it is irrelevant. The important issue is that the complaint was dismissed. The husband asserted that the wife took the proceedings to exclude him from the child’s life. I reject that notwithstanding the child’s name was placed on the initial order because the usual provisions were contained in the orders that this Court could override the injunctive orders. The intervention order proceedings provide little assistance to me.
Proceedings during these first few weeks after separation culminated in orders being made on 22 May 2006 for the child to initially spend limited time with the husband. During that same period of time, an Independent Children’s Lawyer was appointed. When the case returned to court on 11 July 2006, the final orders were made to which the husband consented and to which I have already referred. Under those orders, he was to see the child who was then aged just less than four years, up to three times per week but not overnight. The wife must have had sufficient confidence in the husband’s parenting capacity to consent to the orders and the husband must have accepted that the child was still very young not to have overnight time.
Before turning to the period from the July 2006 orders until now, it is important to look back at a controversial issue of family violence.
The wife made no allegation of physical violence against the husband towards her and when he cross-examined her about that, she said he had been psychologically violent.
The husband made allegations of physical violence against the wife. In his affidavit, he referred to an incident in G where he said that she had pointed a knife at him. In the same affidavit, he referred to the incident as an assault and in criminal law terms, the pointing of the knife would be. He said it occurred in an argument when the wife was angry but then she put the knife down and scratched his hand with her fingernails. He pointed to his January 2005 missive to the wife in which he wrote that she was not to hurt him again, as some form of corroboration of this incident.
The wife denied not only the incident with the knife but also maintained that the argument to which the husband was referring had occurred earlier when the parties were still living in Sydney and before they came to live in G.
Decisions about these sorts of issues where there is no objective corroboration have to be made on the balance of probabilities. However, where there is a serious allegation or the consequences for such a finding are serious, the provisions of s 140(2) of the Evidence Act 1995 (Cth) apply. In other words, whilst still determined upon the balance of probabilities, I would need to be satisfied to a greater degree than normal in determining such an issue. In respect of the knife incident, there was no indepth cross-examination of the wife and certainly nothing to corroborate either parties’ version. The incident is shrouded in mystery as to date, time, location and circumstances. On that basis, I could not make any finding about what actually occurred and I propose not to do so.
Between 22 February 2006 and May 2006, there was no physical contact between the husband and the child. Much was made by the husband of the fact that during the period of five months after separation, he had no time with the child and that the wife was deliberately preventing him from having any relationship with her. This was also a subject of some concern to the family consultant who was critical of the wife. However, notwithstanding the protestations of the husband that he was deprived of that time, he made the following statement on p 35 of his affidavit of evidence in chief:
I was not in the capacity to care for the daughter immediately after the separation. I had no relatives in Australia or close friends in Melbourne (as we had just moved to here about a year ago from Sydney) to assist me at this difficult time of separation. Due to the distractions caused by the legal proceedings initiated by the wife, my performance at work had also dropped to the point that there was a significant risk of losing my job. That meant significant financial hardships for me to support my daughter. So it was important to stabilise my job first.
The husband went on to say that he was also having to deal with issues associated with financial settlement and that he was handling those processes alone, all of which took his attention away from the child. He then said that those were now resolved and he could fully focus on the care of the child.
During the hearing, the husband asserted that the wife had accused him of suffering from a mental illness requiring psychiatric treatment and consequently that any contact between he and the child should be supervised. This arose from a paragraph in the affidavit of the wife that she swore on 30 March 2006 and which was filed in the proceedings. When cross-examined about the assertion, the wife said that she had been told to put the paragraph in the affidavit by her then legal practitioner and had opposed it being there but nonetheless signed the affidavit. Whilst I have reservations about that answer, it is to be noted that no further similar allegation was made and in any event, nothing in the outcome of the proceedings between May 2006 and July 2006 would suggest that the orders were affected by any concern of the Court about the husband’s mental health or state of mind. I am not convinced that the issue is of any relevance.
In May 2006, the Court put in place some interim orders and made an appointment for an Independent Children’s Lawyer. The matter then returned to the Court before Senior Registrar Fitzgibbon on 11 July 2006 and that was when the orders were made to which I have earlier referred.
The period subsequent to those orders however highlights the real problem between the parties and which forms the basis of the view that I have that equal shared parental responsibility in this case will not work in the child’s best interest nor would an equal sharing of time between the parents.
One example of the dilemma which the husband acknowledges and says has now evaporated is the poor state of the relationship between the parties and their consequent lack of trust. No better example of that can be shown than as recent as 16 September 2007. Many of the facts of this incident are not in dispute.
It appears that the child was involved in a concert that day. The husband had requested the wife in writing to collect the child at the conclusion of the concert performance. The wife’s new husband Mr Girsinka attended but did not wait inside during the concert. He came into the foyer of the hall to find the child’s readily identifiable bag sitting unattended. Knowing that he was to participate in the collection of the child and taking her home, he took the bag and subsequently met up with his now wife, the grandmothers and the child. Mr Girsinka told me that he and the others dressed the child for the trip home during which time, the husband was no more than two metres away. The husband did not participate in any activity other than standing there. When they were ready to leave, Mr Girsinka looked for the husband but was unable to find him and the parties duly returned home.
The husband cross-examined Mr Girsinka about the issue along the lines that he had deliberately taken the bag and excluded the husband from saying goodbye to the child. The husband did not challenge Mr Girskinka’s version that he was only two metres away. The husband gave no evidence as to where he went such as would explain Mr Girsinka’s inability to find him. The husband suggested on a number of occasions to Mr Girsinka that he was deliberately endeavouring to be destructive of the relationship between father and child. I reject that. I also find that Mr Girsinka’s evidence was simple, straightforward and honest. I accept that what he said was accurate.
The matter did not end there. It transpired that the father left the concert and went to the local police station. The wife endeavoured to lead some evidence without calling the witness on this issue and the husband objected. Accordingly, the police constable was called to give evidence. No affidavit was filed but the parties were in possession of his statement. There are some date inaccuracies in that statement but they do not matter for the purposes of this trial. I inquired of the husband whether he wished to cross-examine the constable and he insisted that he did.
The constable gave evidence that he was on the reception desk at about 2.30pm. He said that it was 19 September 2007 but I accept that it was in fact 16 September and immediately after the concert concluded. He described the husband as attending the police station and that he was “a bit agitated” and “a bit excited”. He described the husband as keen to press home the points that he wanted to make. Fundamentally, what the constable said was that the husband attended the police station to make an allegation of theft of the child’s bag. He said that they discussed the concept of theft as it was known in law and he was satisfied that no theft had occurred because the husband acknowledged that Mr Girsinka had taken the child home with the bag. Having resolved that issue, the husband told the constable that he was concerned that Mr and Mrs Girsinka had “kidnapped” the child. Sensibly, the constable was concerned because he treated it as a serious allegation. He was clearly not in possession of all of the facts and certainly not made aware that there was a letter in writing from the husband that the wife was to take the child home. To his credit, the constable telephoned the wife to check that the child was fine. I am satisfied that he made two telephone calls at the instigation of the husband.
The husband cross-examined the constable about a number of matters most of which were unhelpful and irrelevant to the proceedings. The constable was forthright and a good witness. He had no hesitation in saying that the description I have set out above was accurate. He made clear that his view was that the husband was being mischievous even to the extent that had the husband pressed the point, he would have contemplated charging him with making false reports. The constable said that the interview between he and the husband ended with him asking the husband to leave. He said that his presentation made it clear that he was annoyed and indignant.
I raise this issue at this point in time because the husband told me that he had learned a lot and had made significant changes in his life much of which had come from his receipt of the family report which I note was dated 29 June 2007.
I find that as late as September 2007, the husband was mischievous and irresponsible but more significantly, had no trust in his former wife as a parent and that he was unjustified in adopting that view. That is a view that has not changed despite all of the things that he said in court and I have little doubt that it will not change in the future. I have already mentioned that the document that Justice Kay referred to as “chilling” shows the husband as a dominant personality and notwithstanding his protestations that the document is being taken out of context, the incident at the concert convinces me otherwise.
In the same vein, the husband in the orders that he finally sought, asked me to continue the involvement of the Independent Children’s Lawyer even at his expense so that issues between husband and wife could be negotiated with the assistance of the ICL and that in the event that a determination was needed, each party be bound by that determination of the ICL. I make two points about that as my reasons for rejecting it. The first is that for a court to delegate that responsibility would be wrong. The second is that having regard to the husband’s attitude as conveyed by what occurred at the concert, I can imagine only constant and ongoing disputes requiring not only the involvement of the Independent Children’s Lawyer but also the wife because of the husband’s attitude. That is not in the child’s best interests nor the interests of the parties.
A significant problem in 2007 has been the enrolment for the child in school for 2008. The wife said that she began raising the subject in January 2007 and sent him an email containing the website addresses of the schools in her area. Initially, the husband said that he would not sign any enrolment forms unless the school was located in the area of the former matrimonial home but that was not how he acted. In March 2007, he sent to the wife four completed forms effectively permitting the wife to enrol the child in local schools including Catholic schools. This must also be seen in the context of his evidence before me in which he made clear his objection to the Catholic school system on the basis of indoctrination of the child. In his affidavit, the husband referred to the fact that both he and the wife had applied for a number of schools for the year 2008. Having regard to his cross-examination of the wife about schooling, I have little doubt that this is an unresolved issue for the husband and likely to cause difficulties in the future. It was quite clear that as at the conclusion of the trial notwithstanding the break between November and January, the parties had not been able to come up with a consensual form of schooling for the child in 2008. Having regard to the importance of getting the child stabilised as quickly as possible, it is my view appropriate for the wife to make the decision as part of the parental responsibility and I propose to order that.
Throughout the hearing in January 2007, the husband has been at pains to point out that my assessment of the poor communications between the parties was wrong. This came out of a discussion that I had with his counsel Mr Houlihan in December. The husband maintains that the communication level is now satisfactory. However, it should be noted that in the early part of 2007, the husband made 22 telephone calls to the wife in 10 days and sent 14 emails in April 2007, 12 emails in May 2007 and 22 emails in June 2007. All of these relate to either parenting issues or criticisms of the wife. These were dealt with by Kay J but it is important to note the flavour of that sort of dialogue. On 3 March 2007, the husband sent a letter to the wife’s solicitor saying:
Your client is hereby put on notice that she faces serious legal and financial consequences if she does not abandon her selfishness in relation to the child.
Three days before, there had been a text message in similar fashion.

Another unusual incident occurred on 19 August 2007 at a changeover. The changeover at this point of time was taking place in F Street in Melbourne. The wife deposed to the fact that the husband came up to her and took a flash picture without her consent, then quickly hid the camera in his pocket and left. The husband did not cross-examine the wife about this issue but did her husband. This was puzzling because Mr Girsinka’s only evidence was about what the wife told him and her distressed reaction. The husband put to Mr Girsinka that the incident was effectively made up because there would have been no reason for him to have taken the photograph as he had hundreds of them at home. This was puzzling and avoided the real question of what in fact occurred and why. It is perhaps consistent with the husband’s attitude as set out in his affidavit (p 36):
The wife’s overall attitude is that I am only an expense-paying parent and I have no other roles to play in the life of the daughter. This is not acceptable to me. The current Orders need to be changed for me to play a more active role in the life of the daughter including spending much more time that the current Orders allow.
I have already mentioned that Mr Girsinka and the wife now have a child who was born in May 2007. The husband is very critical of the wife for having the child whilst still married to him. I am not entirely clear on the basis behind the criticism but in his affidavit, the husband referred to the fact that:
This child is a result of forced circumstances (especially outside marriage) because she never had enjoyed the motherhood.
That particular attitude was apparently conveyed by the husband to the family consultant. It reflects poorly upon the husband and having regard to his educated circumstances, I do not accept it is simply a cultural issue. I find that it is part of his attitude towards the wife generally. More importantly, he criticised the wife for having the child on the basis that it would have a significant effect upon her capacity to care for the parties’ child in the future. He had every opportunity to cross-examine the wife about that issue and did not do so. In the period of time subsequent to the birth of the second child, the wife has complied with all orders for the husband to spend time with the child and as I understand the evidence, the wife managed to deliver the child whilst still dealing with her baby. I could find no basis upon which the wife could be criticised nor any justification for the husband to do so.
I have already mentioned the fact that there is a dispute about decisions in relation to the child’s digestive health. The husband’s evidence was that the child’s digestion is a significant problem. There is no question that the child suffers from a digestive problem. The parties differ markedly as to why. The husband says that it is because the wife has introduced meat into the child’s diet when he, for cultural reasons, only provides her with vegetables. He put this to the wife in cross-examination and she responded by saying that she had been to the specialist who has been dealing with the child’s problem and received advice that meat was not the cause of the problem. The child has been placed on medication for the condition. If the husband firmly believed that meat was the cause of the problem, he had every opportunity to call the child’s medical practitioner to that end. He failed to do so. I have no reason to doubt what the wife told me was correct.
Another issue associated with the digestive complaint was the fact that the wife said that the medical practitioner had given her advice that she could reduce prescribed medication. Even on that issue, the parties could not agree and were in dispute about whether the wife had acted irresponsibly or was simply following advice. The husband’s view was that she had simply stopped the medication completely but the wife’s response was that this was not so. She gave evidence about the fact that the doctor had suggested a reduction and that was exactly what she was doing. That reduction meant that during the period of time that the father spent with the child, he did not have the medication. I could see no reason to criticise the wife and have no reason to doubt what she was telling me was exactly what happened. Accordingly, this is another example of how the husband highlights an issue unnecessarily and has a different view about important issues for the child such as health and that in turn justifies giving the wife the responsibility for decision-making about such matters.
In a similar related issue, the husband was at pains to point out that the child was “very often” getting hurt and as a consequence, he criticised the wife for not caring for her “well”. He exhibited a number of photographs to his affidavit showing various bruises and injuries and when these were put to the wife relating to incidents in February 2007, she simply said that they were childhood falls and that she had gone to the trouble of getting a medical advice confirming that. The husband seemed more concerned about the fact that the wife was not taking the child in a stroller but rather making her walk as a result of which these sorts of injuries occurred. He asserted that on “multiple occasions” the child had been hurt in the childcare centre and yet the wife had no knowledge as to what happened. The injuries in the wife’s care and in the childcare centre would tend to suggest that they were simply childhood injuries. I explained to the husband that I was not prepared to accept just looking at the photographs what the injuries were and whether they were serious or not and that it behoved him to call medical evidence if that was what he was saying. Again, this indicates the control issue about the husband and one that troubles me about the future.
A similar issue occurred in February 2007 when the wife told the husband that the child had an eye infection and that the child should go to the doctor for a check-up. Here, the dispute was about when the child should be taken. I accept that the wife is a dedicated and concerned parent and she would not have taken any risk with the child’s health and that the accusation of the husband again highlights his focus on criticisms of the wife rather than on the needs of the child. This particular incident was put to the wife in cross-examination by the husband and she responded by saying that the problem had gone away of its own accord and that meant that medical treatment was not necessary. In the circumstances, it is hard to criticise the wife.
The husband also sought an order that the wife sign any necessary document to enable the child to have a lifelong visa to India under a new scheme initiated by the Indian Government. The husband has the benefit of that. The benefit for the child in having such a visa means that it would save a lot of problems in the future in obtaining a visa from the Indian Embassy and in addition, there are less restrictions in India. It seems to me that it is not a necessity at this stage as there were no indications of immediate likelihood of travel for the child out of Australia in the foreseeable future. Under those circumstances, albeit that it is a matter of convenience, I do not see a necessity for such a visa being granted at the moment.
Pursuant to orders made on 1 June 2007, the parties and the child attended upon family consultant Ms C for the purposes of a report. I received that report into evidence on 3 January 2008. Ms C saw the parties on 25 June 2007 and attended the final day of the hearing in January 2008 for the purposes of cross-examination. In her report, Ms C described the husband as a very intense, articulate man who tended to examine every detail of a subject and who had very definite views. That is certainly consistent with what I witnessed.
Ms C detailed the list of complaints by the husband most of which were matters that I heard in evidence.
Of the wife, Ms C said that she presented as a sensible and sensitive mother who found it extremely difficult to cope with the husband’s many demands and threats in the litigation process. That was also consistent with my observations of the wife.
Ms C interviewed the child who was then aged four years and eleven months. The interview was difficult because it had to be conducted through an interpreter. Ms C described the child as an intelligent, lively child with excellent verbal skills and an ability to relate easily to strangers.
The child made a number of complaints to Ms C including that her father had broken her grandmother’s finger and that he was mean. The child described her father by his first name and indicated that after the marriage to her mother, he had changed his mind and thrown her out. Ms C expressed concern about those statements as only being possible in the child’s vocabulary because they came from the wife. Sadly, everything that the child said about her father to Ms C was negative. The negativity continued when father and daughter were conjointly interviewed and observed. The interview was short. The husband cross-examined Ms C about the fact that she was biased against him. I reject that. Ms C made clear that she was simply reporting what she observed. As I pointed out at the time, those observations do not mean very much because there is no suggestion that there is an inappropriate or unpleasant relationship between father and daughter. What Ms C witnessed was not asserted as the regular problem between father and daughter nor is there any suggestion of any separation anxiety when the child goes from mother to father. The husband maintained that there was reluctance on the part of the child to leave him and return to her mother but that issue was not canvassed in any substantial way before me.
The child also made comments to Ms C about the fact that her father hit her with a broom and kicked her and that he pushed her to the ground and nearly broke her arm. In cross-examination by the husband, Ms C said that she thought that the child said those things jokingly and certainly she took little notice of them. That must be the case because there is no evidence from either of the parties of anything of that nature having occurred.
Ms C drew attention to the fact that in her recommendations, she said that both parties should equally share the parental responsibility for the child. When she was questioned about that, she alluded to the fact that there was some policy or indication in the Act to that effect. Regardless of what view Ms C took about that, my obligation under the Act is to deal with the presumption and make decisions in the best interests of the child based upon the evidence and that is what I propose to do.
When Ms C was cross-examined by counsel for the Independent Children’s Lawyer, she acknowledged that there were things that worried her about the wife’s responsibilities as a parent. She said that she was concerned about the use of the husband’s first name by the child, the travelling overseas without telling the husband, leaving the child in Europe with the grandmother, changing the child’s name at the European school, failing to tell the husband about treatment for the child’s digestive complaint, the finger breaking incident and the fact that the child referred to the husband as throwing her mother and she out of the house. As I have pointed out, some of these matters have to be taken in context and I am satisfied that none of them has now any significance to the decision that I have to make.
The husband suggested to the family consultant that the wife had brainwashed the child and hence the picture she obtained about the child was inaccurate. Ms C said that she was not able to comment on that but there is no evidence that that was what the wife had done. The husband endeavoured to elicit from Ms C the reason why the child might say the things that she said and again, Ms C was unable to say that there was any explanation.
The fundamental issue that came out of the family consultant’s evidence before me was the fact that she could not recommend anywhere near the time sought by the husband with the child commencing school in a few weeks time. Ms C was very concerned that the child’s first year of school would require a settling process and she needed the primary attachment and home base. Ms C was tested about whether the period between father and daughter should conclude on Monday morning but she was opposed to that on the basis that the child needed to go to school from her mother’s home each Monday morning and to settle down again after a weekend with her father on the Sunday night. Ms C was very strongly opposed to any extension of time outside of weekend time and an evening meal during the alternate week. In respect of that meal, Ms C was adamantly opposed to an overnight sleep at the home of the husband at this stage on the basis that it would be disruptive to the child’s routine which she obviously needed to establish in settling into school. Ms C was cross-examined by everybody about a variety of options but she would not waver in respect of the immediate situation to which I have just referred.
There was also some cross-examination of Ms C about when time could be extended beyond those current proposals and she vacillated. Much depends upon how the child settles and continues her relationship with her father and there is no simple answer. When I come to deal with the issues under s 60CC of the Act, there are competing and conflicting questions about making sure that proceedings are concluded between the parties with some finality as against trying to predict what will be best for a very young child in the years ahead.
The husband said that the child was missing his care, love and attention but there is no evidence of that from the wife nor from the family consultant. The husband did not cross-examine the wife about any such problem in her household nor did he cross-examine the wife’s new husband about it. Accordingly, I find there is no evidence to suggest that the child is distressed by her absence from her father.
A significant criticism of the wife by the husband is the fact that the child is disadvantaged in not being able to participate in his culture. He made some observations about the wife’s refusal or inability to take the child to Indian dance classes by saying that she would not do so because she could not drive a motor car. The wife for her part said that she was happy for the child to study Hindi which was a language that she studied.. The wife went on to say that when the husband was in India in January 2007, she and her new husband took the child to the Indian exhibition at the Immigration Museum in Melbourne. In all of this however, it is important to note the husband’s own observation (para 115) that the child speaks fluent English and a European language and as she was growing up, both husband and wife agreed that they would teach the child the European language first because they spoke that language at home. He said that when he and the child were alone, he then spoke to her in Hindi.
The wife was not cross-examined by the husband seriously about her attitude to cultural issues and I have no reason to doubt that she means what she says. Accordingly, I accept that the wife will continue to promote the husband’s cultural background for the child and that it will be a significant part of her future life.
Section 61DA(1) says:
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA)
Although in this case, I am asked to make orders both in respect of the allocation of parental responsibility and time, I propose firstly to deal with the allocation of responsibility. Because the parties do not agree on responsibility, the presumption applies.
Section 61DA(2) says:
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b)family violence.
Section 61DA(2) displaces or rebuts the presumption if there has been family violence. In this case, I would not rebut the presumption on the basis of the evidence that I have heard. I say that notwithstanding the finding that I have made that on 22 February 2006, the wife left the home at a point in time at which she was fearful of the husband. However, that is not the basis upon which I would rebut the presumption. Section 61DA(4) says:
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
On the evidence, I find that it would not be in the best interests of the child for there to be an order for equal shared parental responsibility. Accordingly, the presumption has been rebutted.
Section 65DAA relates to time as distinct from parental responsibility. It only applies if parents are to have equal shared parental responsibility pursuant to an order. Here, with the presumption rebutted, s 65DAA does not apply but it is a useful guide to enable the determination of the allocation of time between the parents.
Starting with the husband’s position of the parties sharing responsibilities jointly, I say that such a proposal is not in the child’s best interests. Notwithstanding in July 2006, the parties agreed to that equal shared responsibility and Ms C in her initial report, even recommended it. The evidence in this case is overwhelming that in respect of education and health, the parties could not reach agreement about many things and that cannot be in the best interests of the child. For that reason, I propose to make orders resolving that issue.
As I earlier pointed out, the husband suggested that he have one responsibility and the wife have the other. That would be an inappropriate way to determine the issue having regard to the evidence. In my view, it is appropriate for the wife to have both responsibilities.
I then turn to the question of the sharing of time. The husband’s position was an equal sharing. For a shared care arrangement of anything like equality to be a viable option, a number of conditions need to be met. They are:
(a)geographic proximity;
(b)the ability to parent together along in a business-like or working relationship;
(c)arrangements had to child-focussed;
(d)the child to be kept out of the middle of any dispute;
(e)arrangements needed to focus on activities to be included in the parenting schedule;
(f)a commitment by all parties to make shared care work;
(g)some financial independence for each party;
(h)a degree of competence in relation to caring for the child.
At the moment, there is no geographic proximity. The parties cannot get along in business-like or working relationship. As I have pointed out, the husband’s view about arrangements is not child-focussed. There is a significant dispute about health and education. There is clearly no evidence of the commitment to make a shared care arrangement work. On that basis, equality of time or anything like it would not be in the child’s best interest.
Ultimately, the decision that I have to make must be in the best interests of the child and the Act says that in determining that question, I am obliged to look at the factors set out in s 60CC.

Section 60CC says:
How a court determines what is in a child's best interests
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Consent orders
(5)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(6)For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii)to develop a positive appreciation of that culture.
The two primary considerations need to be considered first.
Notwithstanding the negativity that Ms C witnessed, the evidence is that the child enjoys the time with her father and as such, has a meaningful relationship with her from which she benefits. She clearly has a very strong relationship with her mother as was witnessed by Ms C.
A meaningful relationship must be healthy, worthwhile and advantageous to the child. In my view, what the husband has been fostering is such a relationship to the extent that the child is keen to spend time with him.
The second primary consideration relates to the protection of a child from being embroiled in, or part of, family violence. As I have pointed out, there is no evidence of family violence within the definition in the Act about which I can be satisfied but it is clear that the child is affected by what is going on between her parents and under the orders that I propose to make, that conflict should be reduced or minimised.
I turn then to the additional considerations set out in s 60CC(3). The first relates to the views expressed by a child. Having regard to the child’s age, it is hard to give any weight to her views.
It is clear on the evidence that the child enjoys a good relationship with each parent in their own particular way and there is a very strong relationship between the child and the wife’s new husband. Other people in her life such as her maternal grandmother have had a significant role but I do not detect that that significance is overwhelming because from time to time, the wife’s mother has returned to Europe. There is another child in the Girsinka household about whom I know little other than the fact that the evidence suggests that the parties’ child is attached to that child.
In respect of the willingness of the parties to facilitate the relationship between the child and the other, I am satisfied that the wife has adopted a sensible and proper approach notwithstanding the reservations expressed by Ms C. It is also to be noted that the husband was cross-examined about this issue by counsel for the wife and he conceded that the wife adopted a responsible attitude about fostering his relationship with the child. As such, I have no criticisms of the wife. In relation to the question of the husband’s facilitation of the relationship between the child and her mother, notwithstanding his controlling and what I would describe as obsessive behaviour, there is no evidence that he has done anything destructive of that relationship.
In relation to the future, I am quite satisfied that the orders I propose to make will not adversely affect the child because of her separation from her father.
There are no practical difficulties in the child maintaining her relationship with her father as I understand that he proposes to move closer to where the wife lives. The orders I propose will have little impact on that situation.
Each parent has the capacity to provide for the needs of the child including physical and emotional and intellectual needs. Both parties are intelligent and articulate and each has the skills to provide for a future for the child which is extremely bright. I have no concerns about the wife’s capacity to provide the predominant caring role as she has done in the past.
I have expressed considerable disquiet about the husband’s attitude to the responsibilities of parenthood. To a large degree that is reflected also in s 60CC(4). The husband has made the life of the wife very difficult as has been clear in the inappropriateness (as described by Kay J) in bringing the applications that he did, the attitude that he took towards the wife in respect of her parenting and his insistence that she “toe the line”. These matters reflect poorly on the husband and indicate that he proposes to parent the child in his own way albeit that it may be inconsistent with that of the wife. The prospect of the parties having an agreement as to how the child is to be brought up on simple issues such as discipline seems most unlikely. On that issue alone, there is every reason to give the wife the responsibility to continue what she has been doing for the years of the child’s infancy.
I have already made findings about family violence and family violence orders and say no more about them.
Section 60CC requires me to make an order that would be least likely to lead to the institution of further proceedings in relation to the child. That is difficult having regard to a number of unknown issues. Two issues about which I am uncertain are where the husband is going to live and the question about his future relationship with his wife to be. I can only determine the matter on the evidence and it seems to me that the orders I am proposing will not be affected by either of those two issues. In relation to the question of the extension of time between the husband and the child in the future, as I have pointed out, it is difficult to presently say at what point in the child’s life, she will be able to manage more time than that suggested by Ms C. I feel that it is important having regard to the nature of the relationship that I have heard about between the child and her father, to give that every opportunity to build over the ensuing two years.
Section 60CC(4) requires me to consider the extent to which each parent has fulfilled or failed to fulfil their responsibility as a parent in the ways set out in the Act. Whilst there was some clear criticism of the wife, those matters predate the final orders to which the husband consented in July 2006. Subsequent to that time, the wife has established a stable relationship and home life for the child about which I could not find any reason to be critical. Since the orders were made in July 2006, the wife certainly seems to have facilitated the relationship. In relation to s 60CC(4)(a), I have taken into account what occurred subsequent to February 2006 by setting out in my reasons above my concerns about the first few months after February 2006 but to a large degree, that has been ameliorated by the fact that the husband himself concedes that he was endeavouring to establish his financial position and sort other matters out. Those matters however have also been largely resolved by the orders made in July 2006.
In the circumstances, it is appropriate that I make orders which I propose and say that they are in the best interests of the child.
In the reasons above, I have set out why I propose to make an order under s 118 of the Act. The husband maintained that that order should be made against both parties. As I have pointed out there is no basis to say that the wife has acted unnecessarily or frivolously and in those circumstances, there should not be an order made against her.
Finally, in respect of the handover of the child, the wife sought an order that the husband not come to her home but rather to a close-by store. Until such time as the relationship between the parties can improve, I see no reason why that order should not be made.

I certify that the preceding One Hundred and Fifty Six (156) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 10 January 2008

[2008] FamCA 3

29 January 2008

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