PARKS & COLLINS

Case •

[2014] FCCA 1786

•

14 August 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARKS & COLLINS [2014] FCCA 1786
Catchwords:
FAMILY LAW – Parenting orders – young child – father’s inconsistent time with child – whether overnights – whether supervised or unsupervised – geographical issues – child’s ability to cope with travel.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA
MRR v GR [2010] HCA 4
Applicant: MR PARKS
Respondent: MS COLLINS
File Number: WOC 416 of 2012
Judgment of: Judge Altobelli
Hearing date: 16 June 2014
Date of Last Submission: 17 June 2014
Delivered at: Wollongong
Delivered on: 14 August 2014

REPRESENTATION

Counsel for the Applicant: Ms Conte-Mills
Solicitors for the Applicant: Phillip A Wilkins & Associates
Counsel for the Respondent: Ms Humphreys
Solicitors for the Respondent: Sward Law
Counsel for the Independent Children's Lawyer: Mr Maurice
Solicitors for the Independent Children's Lawyer: Helen Volk Lawyers

ORDERS

PARENTAL RESPONSIBILITY

  1. That the Mother have sole parental responsibility for the Child, [X], born [omitted] 2010.

LIVING ARRANGEMENTS

  1. That the Child live with the Mother.

SPENDING TIME ARRANGEMENTS

  1. That the Child spend time with the Father:

    (a)For two hours, each alternate weekend for 8 visits, from the making of these orders, supervised by Care South, or such other supervisor as is agreed between the parents, at the Father’s expense, and in lieu of agreement, on Saturday, from 12noon until 2:00pm, with such time to take place in the Illawarra area;

    (b)subject to the Father’s compliance with Order 10, at the conclusion of the time the Child spends with the Father pursuant to the preceding subclause for 8 visits, unsupervised for 2 hours each alternate weekend, and in lieu of agreement, on Saturday, between the hours of 12noon until 2:00pm, with such time to take place in the Illawarra area;

    (c)at the conclusion of the time the Child spends with the Father pursuant to the preceding subclause, for 8 visits, for a period of 4 hours, unsupervised, each alternate weekend, and in lieu of agreement, from 12 noon until 4:00pm on Saturday, with such time to take place in the Illawarra area;

    (d)at the conclusion of the time the Child spends with the Father pursuant to the preceding subclause, unsupervised, for 6 hours, each alternate weekend, and in lieu of agreement,  from 10:00am until 4:00pm on Saturday, and, in lieu of agreement, with such time to take place in the Illawarra area;

    (e)on Christmas Day 2014, in lieu of agreement, from 12noon until 2:00pm in the Illawarra area;

    (f)on Christmas Day 2015 and each year thereafter, in lieu of agreement, from 11:00am until 3:00pm;

    (g)such further times as the may parties agree.

SUSPENSION OF TIME

  1. That the time the Child spends with the Father pursuant to these Orders, shall be suspended on one occasion during the NSW Public School Christmas holiday period, with the Mother to provide the Father with not less than 2 months written notice of the date of the suspended visit.

CHANGEOVER

  1. That, within 14 days of the making of these Orders, the parties do all things necessary to enrol to use Catholic Care Supervised Contact and Changeover Centre in Wollongong (CCSCCC), or such other agency as the parties agree, for the purposes of facilitating the Child spending unsupervised time with the Father, with each parent to bear their own cost.

TELEPHONE COMMUNICATION

  1. That, once the Child commences spending time with the Father pursuant to Order 3(c), the Child communicate with the Father by telephone each Saturday that she does not spend time with the Father, between the hours of 3-4:00pm, with:

    (a)the Mother to provide a telephone number to the Father not less than 14 days prior to the commencement of such communication;

    (b)the Father to provide the Mother with his mobile telephone number not less than 14 days prior to the commencement of such communication; and

    (c)with the Father to make the telephone call on the number supplied to the Father.

RESTRAINTS

  1. That the Father be restrained from:

    (a)attending the Child’s school without the express written consent of the Mother;

    (b)attending the Mother’s residence or any place at which the Mother works;

    (c)denigrating the Mother, or any member of the Mother’s family or household, in the presence or hearing of the Child;

    (d)communicating with the Mother in any way other than in writing except in case of emergency, which, at all times, shall be respectful and courteous;

    (e)consuming or being effected by any illicit drug, or alcohol, during any time the Child spends with him, and for the period of 12 hours prior to the commencement of such time.

  2. That the Mother be restrained from denigrating the Father, or any member of the Father’s family or household, in the presence or hearing of the Child.

  3. That each parent immediately remove the Child from the presence of any person who denigrates either parent, or any member of either parents’ family or household in the presence or hearing of the Child.

SPECIFIC ISSUES

  1. That the Father, forthwith, do all things necessary to enrol in and complete the following parenting courses, and provide evidence of the completion of such courses to the mother and the Independent Children’s Lawyer:

    (a)“Keeping Kids in Mind”, CatholicCare; and

    (b)“Parenting After Separation”, Relationships Australia.

PARENTAL COMMUNICATION

  1. That the parents communicate matters pertaining to the Child by email, except in case of emergency, with each parent to provide the other with an email address, within 7 days.

  2. That the Mother inform the Father, in writing, of decisions made by her in respect of the long term care, welfare and development of the Child, within 14 days of the making of such decision.

  3. That in the event the Child suffers any accident or injury during any time the Child spends with the Father, the Father forthwith notify the Mother by telephone on the mobile telephone number provided to the Father pursuant to Order 6.

  4. That the Mother inform the Father of:

    (a)any medication the Child is required to take, during any time the child is to spend time with him pursuant to these Orders, and provide all information in respect of the required dosage and timing of administration of such medication.  If the medication is prescription medication, that the Mother provide such medication to the Father; and

    (b)Any specific dietary requirements for the Child.

  5. That the Mother be permitted to cause the Child, [X] born [omitted] 2010, to travel overseas at any time without the written consent of the Father.

  6. That the Mother be authorised to apply for and receive an Australian passport for the Child without the written consent of the Father.

  7. In the event any passport issued to the Child expires, that the Mother is authorised to apply for and receive a new Australian Passport for the Child without first obtaining the written consent of the Father.

  8. That the Father ensure that an age appropriate car seat be installed in any vehicle in which the Child shall travel.

  9. That the Father provide to the Mother a copy of his driver’s licence prior to the Father driving the Child.

  10. That any Order relating to the Child made before the date of the present Order, be discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 416 of 2012

MR PARKS

Applicant

And

MS COLLINS

Respondent

REASONS FOR JUDGMENT

Introduction and Background

  1. This case is about [X], who is 4 years old.  Her father is the Applicant.  He is 24 years old, and lives in [omitted].  [X]’s mother is the Respondent.  She is 22 years old, and lives in [omitted].  [X]’s parents commenced cohabitation in 2009.  By May 2011, they had separated on a final basis.  Their brief relationship was a tempestuous one.  There had been a separation, and reconciliation in that period.  The period after separation was, according to the Mother, equally difficult.

  2. Whilst, by the end of the hearing, the parents agreed that [X] should spend time with her father, there was considerable disagreement between them about the basis of this.  These reasons explain why the orders have been made as they have.

The Proposals

  1. The Father’s proposal was contained in a handwritten Minute of Order provided by his Counsel on the afternoon of the second day of the hearing.  It is reproduced in the First Schedule to these reasons.  By way of summary, it provides that [X] spends time with the Father, initially for a period of three months from 10:00am to 12noon each Tuesday, to occur in the South Western Sydney area, and thereafter for a further three months from 10:00am to 4:00pm each Tuesday, again to occur in the South Western Sydney area.

  2. Thereafter, the Father proposed a period of six months from 10:00am Saturday until 4:00pm Sunday in the South Western Sydney area.  After that time, the spend time with arrangement would be from 5:00pm Friday until 4:00pm Sunday each alternate weekend, and half the school holiday periods, as well as special days.

  3. By the time of the close of the hearing, the Mother’s proposal, and the Independent Children’s Lawyer’s proposal, were consistent, with the exception of five specific issues orders that will be discussed below.  The Mother and the Independent Children’s Lawyer propose that there be an order for sole parental responsibility, that [X] live with her mother, and spend time with her father on the following basis.  For the first eight visits, it would be two hours each alternate weekend, supervised by Care South or such other supervisor as is agreed between the parents, and at the Father’s expense, with such time to take place in the Illawarra area.

  4. Subject to compliance with the forgoing, there would be a further eight visits, unsupervised for two hours each alternate weekend, with such time to take place in the Illawarra area.  If this time proceeds satisfactorily, [X] would spend time with her father for eight visits for a period of four hours unsupervised, each alternate weekend, progressing to six hours each alternate weekend unsupervised, again in the Illawarra area.  There was also a proposal for special occasions.  The changeover was to take place at Catholic Care Supervised Contact and Changeover Centre.  There are a number of other orders.  The detailed orders are set out in the Second Schedule.   

  5. The Mother proposed five further orders dealing with specific issues relating to overseas travel, passports, use of an age appropriate car seat, and provision of a driver’s license.  These further specific issues orders are reproduced in the Third Schedule.

Issues

  1. Whereas the Mother and Independent Children’s Lawyer proposed sole parental responsibility, the Father’s Counsel, in submissions, proposed equal shared parental responsibility.  Whereas the Father’s proposal involves the implementation of immediate unsupervised time with a temporary restriction to the South Western Sydney, the Mother and Independent Children’s Lawyer’s proposal provided for a longer period of supervised time, before moving to unsupervised time, and in each case with the time to occur in the Illawarra area.

  2. There was a dispute between the parents about the discrete specific issues orders sought by the Mother.

  3. There was, at one stage, an issue as to whether the Court ought to make interim orders, or final orders.  To the extent that it was part of the Father’s case that interim orders should be made, this was strongly opposed by the Mother and the Independent Children’s Lawyer.  For the Father’s part, it was not an argument advanced with much enthusiasm.  This lack of enthusiasm probably reflected the reality that an interim order was not in [X]’s best interests, as the litigation needed to be brought to an end.  However, there was consensus between all the parties that the making of final orders, which did not progress to overnight time, would not act as a bar to the father seeking to agitate overnight time at an appropriate time in the future and subject, of course, to intervening events, especially the nature of his relationship with [X]. 

  4. The Court completely agrees.  For reasons that will become obvious, it is not appropriate or in [X]’s best interests to make orders for overnight time at this stage.  All going well, in terms of her development and in terms of her relationship with her father, overnight time may well be a natural progression and one that occurs even without the intervention of the Court.  Whilst it is impossible to anticipate future events and it is certainly not in [X]’s best interests that this Court binds the hands of a future Court having to deal with the issue, as it presently stands, neither the Court, nor the parties, would wish a Rice & Asplund issue to prevent a consideration of overnight time for [X] at some time in the future.

The evidence

  1. The Father relied on the following documents:

    a)Initiating Application filed 27 February 2012 ; and

    b)Affidavit of Mr Parks filed 23 May 2014.

  2. The Father was cross-examined. 

  3. The Mother relied on the following documents:

    a)Affidavit of Ms Collins filed 2 October 2013;

    b)Affidavit of Ms C filed 2 October 2013;

    c)Affidavit of Ms Collins filed 12 December 2013; and

    d)Affidavit of Ms Collins filed 16 May 2014.

  4. The Mother was cross-examined. 

  5. In the Mother’s case, reliance was also placed on an Affidavit of Ms C, the maternal grandmother.  She too was cross-examined. 

  6. A Family Report was prepared by Family Consultant, Dr H.  It is dated 22 March 2013.  Dr H was cross-examined. 

  7. There are credit issues as between the Mother and the Father.  Where the evidence of the Mother and the Father is inconsistent, the Court prefers the Mother’s evidence. 

  8. In cross-examination, the Father was often quite unconvincing in his answers.  He was frequently unresponsive to the question that was asked of him.  Most significantly, however, he came across as a very poor historian unable to recall events, or facts, which had clearly occurred.  Indeed, of all the answers to questions that he gave in cross-examination, the most frequent ones were “can’t recall” or “don’t recall” or “can’t remember”.  With great respect to the Father, it is hard to accept the evidence of someone whose most frequent answer is that they don’t remember, particularly when those answers are in response to questions or propositions put in cross-examination that are clearly against his interest.

  9. By contrast, the Mother’s evidence was far clearer, more consistent, and she was far more assertive.  She appeared to be able to recall events with convincing clarity.

  10. As it turns out, however, credit issues will not determine the outcome of this case.  Thus, for example, credit issues will pay some small role in contributing to a finding that there has been family violence, and that the presumption of equal shared parental responsibility should not apply.  However, the most compelling reason why the presumption does not apply is because it is not in [X]’s best interests, a finding that does not depend on credit findings as between the parents.

The Applicable Law

  1. In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

  2. The objects and principles of Part VII are set out at s.60B:

    60B  Objects of Part and principles underlying it

    (1)    The objects of this Part are to ensure that the best interests of children are met by:

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

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

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

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

    (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

    (a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

    (c)     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d)    parents should agree about the future parenting of their children; and

    (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

    (3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

    (a)    to maintain a connection with that culture; and

    (b)    to have the support, opportunity and encouragement necessary:

    (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

    (ii)    to develop a positive appreciation of that culture.

  3. At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

    61DA  Presumption of equal shared parental responsibility when making parenting orders

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

    (2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

    (a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

    (b)    family violence.

    (3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

    (4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

  4. If the presumption applies, the Court is required to consider certain things:

    65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

    Equal time

    (1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

    (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

    (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

    (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

    Substantial and significant time

    (2)    If:

    (a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

    (b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

    the court must:

    (c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

    (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

    (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

    (3) will be taken to spend substantial and significant time with a parent only if:

    (a)    the time the child spends with the parent includes both:

    (i) days that fall on weekends and holidays; and

    (ii)    days that do not fall on weekends or holidays; and

    (b)    the time the child spends with the parent allows the parent to be involved in:

    (i) the child’s daily routine; and

    (ii)    occasions and events that are of particular significance to the child; and

    (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

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

    Reasonable practicality

    (5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

    (a)    how far apart the parents live from each other; and

    (b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

    (c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

    (d)    the impact that an arrangement of that kind would have on the child; and

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

  1. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

    60CC 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).

    (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(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 extent to which each of the child's parents 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;

    (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

    (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 thechild'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 thechild 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)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

    (i)  the nature of the order;

    (ii)  the circumstances in which the order was made;

    (iii)  any evidence admitted in proceedings for the order;

    (iv)  any findings made by the court in, or in proceedings for, the order;

    (v)  any other relevant matter;

    (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.

    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 Islanderculture

    (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.

  2. In MRR v GR [2010] HCA 4 the High Court said

    8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

    "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

    (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

    (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

    (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

    Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

    "(c)   consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

    (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

    (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

    Sub-section (3) explains what is meant by the phrase "substantial and significant time".

    9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

  3. A little later in the judgment the High Court said:

    13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

Dr H’s evidence

  1. Dr H’s report is dated 22 March 2013, and was released to the parents on 26 March 2013.  It sets out some historical matters, for example, at the time of the interviews, the Father was proposing equal shared parental responsibility and equal time, and the Mother was proposing a final supervised contact order.  Whereas, the Father acknowledged that his claim was an “ambit claim”, the Mother meticulously explained to Dr H the basis for her concerns, and why supervised contact was necessary.

  2. The observations that Dr H made are important, and are set out at paragraphs 27-31:

    THE Child and HER Relationships

    [27]  [X] presented as a pretty, nicely groomed little girl who looked healthy and well-nourished. She was not timid and engaged with me readily in the presence of her mother and grandmother. Her speech and language seems normal for age. She showed secure base behaviour towards her mother and grandmother when exploring a new environment. She protested separation from her mother briefly when Ms Collins left the room to speak to me privately but was quickly soothed by her grandmother. Her mother and grandmother dealt with her appropriately –following her play interests but also providing structure and guidance and requiring pro-social behaviour of her. [X] appeared to have an affectionate trusting relationship with both of them.

    [28] [X] was taken for a toilet and morning tea break before her father arrived. Her mother brought her back to the waiting room after Mr Parks had been shown into the playroom. [X] was excited when I told her Daddy had brought her presents. Nonetheless, she would not come with me to see Daddy and insisted Mummy come too. When her mother explained only [X] was going to see Daddy [X] asked Nanny to come. Nanny declined. Ms Collins accompanied her daughter to the hallway outside the playroom. The door was open so [X] could see her father sitting down with the pretty Easter gift bag in front of him. Her mother encouraged her to go in but [X] clung fiercely said “No I don’t like him.” Ms Collins said “Yes do you” and encouraged her to go in.  With her mother’s encouragement [X] entered reluctantly. Her mother waited up the hall out of view.  [X] looked at each gift as her father offered it, each time running outside to show her mother, who always recommended she go back in and draw with Daddy ( he was sitting at a little table which had pencils and paper on it).

    [29] On one of [X]’s brief forays Mr Parks asked her for a kiss and cuddle, which she gave him but then wriggled away again immediately. He stayed calm and spoke to her tenderly but could not engage her in play activity despite her mother’s encouragement to go back and play each time she ran out. Mr Parks said he heard [X] say to her mother “I don’t love him I love Nanny” I only heard the first part of the sentence. He started to speculate that [X] had been “fed” these words by her grandmother. I ignored this conversational gambit as inappropriate while the child was within earshot. Finally [X] ran off down the hall to the waiting area. The play observation was discontinued as it was clear [X] would not stay in the room with her father.

    [30] Mr Parks claimed that [X] did not reject him like this during contact visits. He insisted that there could be no other explanation for a two year old saying “I don’t like him” than that the grandmother’s attempts to alienate the child’s affections from him. I offered other hypotheses for his consideration, such as that he was not yet a trusted familiar and [X] was seeing him in a strange place with a strange at a time of day when she normally had a nap and thus might be less stress-hardy than when he usually sees her. Mr Parks disputed this posited relationship between stress-hardiness and the reliance of a child [X]’s age on a  predictable nap time (I had confirmed with Ms Collins that 12 was [X]’s usual nap time, and that she took an earlier nap on the days she went to visit her father)

    [31] During her individual interview the mother had wondered if [X] would recognise the father in a strange place, saying that when they saw him in the open rather than in the Children’s Contact Centre [X] did not seem to know him. Some children’s perceptions are very field-dependent. This is also true of some adults. For example, I often fail to recognise familiar people when I meet them out of context.  Mr Parks was not open to musing over any explanation for the child’s resistance to contact with him in a strange place except hostile influence by the grandmother. He said “I don’t see why she has to be here anyway” I explained the need for someone to assist with child care during adult interviews.

  3. The evaluation set out at paragraphs 32 and 33 is very insightful, because it reflects today, what the Court has observed to be the respective perspectives of the parents:

    EVALUATION

    [32] Ms Collins opposes unsupervised contact, especially overnight contact, on the basis of allegations about Mr Parks’s prior aggression, irresponsible lifestyle, his unreliability about contact to date, undesirable associates, acrimony towards her and her family, the child’s age and weak affectional bond with her father, poor parental communication and distance between the parents’ homes

    [33] Mr Parks dismisses most of these concerns and contends that virtually all obstacles to increasing contact are a result of the acrimony of the maternal grandmother towards him. He contends that Ms Collins is unduly influenced by her parents, particularly her mother. This assertion logically entails the claim that the mother has not psychologically individuated from her own parents, and hence her judgements show child-like dependence rather than adult independence of mind.

  4. Dr H rejects any concerns about the nature of the Mother’s relationship with the maternal grandmother.  She believes that the Mother is part of a close family unit, and that her family, especially the maternal grandmother, offer her moral and practical support.

  5. At paragraph 38, Dr H formed a view of the Father that, in part at least, reflects the court’s ultimate conclusion about him, having heard all the evidence:

    [38] My impression at interview was that Mr Parks has reactive frame of mind with regard to Ms C which blinkered him to his child’s predicament in context.  It possible [X] sensed some tension in her grandmother and mother about her meeting with her father or about the assessment context generally. When fear is in the air a child clings to her main protector(s). Even supposing Ms C had deliberately prompted [X] to reject her father consider what that ploy would say the child’s lived experienced: her favourite, trusted people dislike her father. A two year old cannot navigate such contradictions of the heart and would find the easiest course was to reject the newcomer in favour of the beloved.  Many children of [X]’s age would protest separation from their mother in a strange place with strangers. Saying “I don’t like him” might simply be the best rationalisation [X] could come up with at the time to pre-empt separation. In resisting her mother’s encouragement to go in and see Daddy [X] had an alternative (Nanny was in the room at the end of the hall) whereas at the contact centre [X] does not have any choice – if she is being forced to leave Mummy she must go to Daddy Nanny is not available to appeal to or flee to.

  6. As it turns out, the Court agrees that the Father still struggles to understand how [X] experiences the time she spends with her father, the transitions to and from that time, and how she might experience some of the very practical issues inherent in the father’s proposals.

  7. Paragraph 39 is also prescient in this regard:

    If nothing else this father-daughter interaction demonstrates that as yet Mr Parks is not an effective stress regulator for the child. The fact that Mr Parks could only focus on the malign intentions of the grandmother meant he could not adopt a curiosity-driven investigative stance about his child’s inner world.  He needs to develop a better child-focus in order to help [X] cope with the stress of handovers.  It is inherently difficult for kids to move between warring parties. Many children who are older than [X] find it too stressful to endure.  More time is required for [X] to build up a trusting relationship with her father before more extensive visits could be planned. He claims she enjoyed a recent visit to the park with him, and indeed that sort of daytime outing would be the logical next step in developing their relationship. She is too young for overnight visits at present and is unlikely to be ready anytime soon. 

  8. Once again, the Court’s findings about the Father are consistent with this, particularly the concerns raised about the Father’s ability to develop a better child focus, the need for more time, and the inappropriateness of overnights.

  9. Dr H states at paragraphs 40-41:

    [40] Research suggests that the developmental equipment for overnight separations from the main caregiver emerge in most children after three years of age, assuming that the child has an attachment to the secondary caregiver, that the main caregiver has confidence in the parenting ability of the secondary caregiver and that the parents can communicate effectively to ensure the comfort and safety of the child on overnight visits. (For a synopsis of empirically-supported advice see the AAIMH Guidelines for the care of infants on overnight visits, which was previously supplied to all legal representatives and the ICL .

    [41] At present [X] does not appear to have the linguistic, cognitive or emotional competence to communicate her needs clearly or self-soothe during a lengthy visit, the mother has no confidence in the father’s parenting and the parents cannot communicate to ensure the arrangements are flexibly adaptable to the child’s needs. The mother appears to have a sincere desire to preserve her daughter’s link to her father, but due to their previous relationship and his unreliability about visitation arrangements she has no confidence in his ability to exercise due parental diligence. Furthermore, she is concerned that the father’s temperament, home environment and lifestyle might pose immediate risks of harm to [X].

  10. Paragraphs 43-45 are also insightful:

    [43] On the other hand Mr Parks may not be a discerning judge of [X]’s best interests. He is only 23 and may not have achieved the degree of emotional maturity required for parental altruism. It is worth noting that he plans to stay in Sydney for his own reasons rather than move to Wollongong to facilitate his participation in his daughter’s life. This is despite currently having no family responsibilities or partnership obligations in Sydney (he asserts he has ended his association with Ms R) and no contract with an employer. After the last Court date he chose to let contact lapse from November to late January because he felt in need of recuperation, and he did not anticipate public holiday closure.

    [44] In that instance Mr Parks showed a lack of forethought, no parental reflectiveness and a preference to prioritise his own needs over the child’s. A negative impact on the emerging father-child relationship was a predictable result of such a long break in contact. Good parenting requires self-sacrifice in order to make arrangements which suit the child’s needs. Good parenting also requires taking the long view – foreseeing and pre-empting likely challenges for the child in a planned care arrangement. On that basis Mr Parks seems ill-prepared for assuming the care of a young child under  circumstances likely to stress the child – such as a long car trip followed by  adjustment to a strange place and more strangers (his sister’s family) a strange bed and separation from Mummy. Since Mr Parks is young and inexperienced as a parent he may not appreciate that young children are discombobulated by change and require a predictable routine.

    [45] A longer period of favourable reports about supervised visits faithfully attended by the father would be needed to allay reasonable concerns about his reliability as a parent.  Parental communication would also need to improve before overnight contact would be in [X]’s best interests. Given the distance between the parents’ homes, it is predictable that the logistics of handovers will need fine tuning. In order for Ms Collins to facilitate visits with an easy mind she needs to know Mr Parks can and will call her in a crisis, and for a channel for communication to be opened up. 

  1. It is significant to note that whereas he was staying in Sydney at the time of the report interviews, the father moved to [omitted], thus making contact even harder, in a logistical sense.  Dr H is critical of the father’s lapses in contact, which as it turns out is a recurring theme.

  2. Dr H’s recommendations are contained at paragraphs 47-53 inclusive:

    Recommendations

    [47] If the Court determines Mr Parks displays violent tendencies or an anti-social lifestyle which would pose an immediate risk of harm to a child in his care then no time with the father should be ordered and sole parental responsibility to the mother will be in [X]’s best interests.

    [48] If the evidentiary material shows Mr Parks poses no immediate risk of harm to a child in his care then supervised visits should continue between father and daughter.

    [49] Progress from supervised to unsupervised to visits should be monitored and reviewed by an appropriate professional. Due to disruptions in contact the stopwatch should be turned back to zero.

    [50] After Mr Parks has demonstrated consistent attendance at visits over a six month period during which no visit was missed or cancelled at very short notice by him, consideration could be given to commencing unsupervised daytime visits in the local area for a further period.

    [51] The parents must insulate the child from family conflict. Handovers for unsupervised daytime should occur at a children’s contact centre, and no third parties should attend (i.e. neither Ms C nor any partner of Mr Parks’)

    [52] The distance between the parents’ home is too great and the parental teamwork too poor for weekend visits to be in [X]’s best interests while she is of pre-school age.  Should Mr Parks have established a home in his daughter’s local area when she is between 38-60 months of age the Court might consider the impediment to be lessened. Nonetheless, the parents should continue to follow professional guidance about the introduction and length of more extended visits.

    [53] Leave should be granted to release this report to Relationships Australia (or other equivalent organization or  private practitioner) to whom the family is referred for assistance in monitoring and reviewing the implementation of parenting orders, especially with regard to being flexibly responsive to the child’s needs over time. Minor disputes arising should be resolved in discussion with that professional.

  3. Dr H was cross-examined on the second day of the hearing.  All of the updated evidence had been made available to her.  She acknowledged that she was aware of the Father’s inconsistent contact with [X] since the date of the report.  In particular, she confirmed, specifically, that in addition to the time when the Father had ceased contact before the report interviews, he ceased again in August 2013, and it was not resumed until March 2014, but had been maintained with good continuity since then.  Dr H explained that with the Father’s track record, from [X]’s perspective he was most likely a friendly visitor, and not an attachment figure.  She suggested this meant proceeding with caution, even at this stage, because [X] would, at most, still be getting to know her father.

  4. Dr H was quite concerned about the prospect of [X] having to travel to [omitted], for the purposes of spending time with her father.  She said that as a young child, travel would be stressful for her, and she needed an attachment figure to regulate her stress.  Regrettably, the Father was not at the stage of being able to play that role because of his inconsistent involvement in her life.  Dr H again reiterated the concerns she expressed in her report about why the Father would choose to live so far away from his daughter, for no apparent reason.  She explained that the benefits of [X] spending time with her father locally is that, amongst other things, if something happened the Mother would be able to respond quickly because she was nearby, thus soothing any anxiety that [X] might be experiencing, which was a matter ultimately to the benefit of [X]’s relationship with her father.

  5. Dr H was supportive of the Independent Children’s Lawyer’s proposal, but also strongly agreed that making an order for overnight time at this stage was not in [X]’s best interests.  Not enough was known about the nature of his relationship with her.  Not enough was known about his ability to soothe any distress that she suffers, particularly in the context of a transition to school which would in any event be a stressful period for her.  Another relevant factor, Dr H opined, was ensuring that the Mother was adequately supported, and was adequately confident about the Father’s parenting capacity.

  6. Dr H rejected any proposition that the Mother was, somehow, seeking to obstruct the Father’s relationship with [X].  She thought that the Mother was acting appropriately to protect the interests of her daughter. 

  7. Dr H also emphasised in cross-examination that she was well aware of the very positive reports of [X]’s supervised time with the Father, that had been provided through Care South.  That did not detract from the need for the progression from supervised to unsupervised time to be carefully managed over a period of time.  Dr H kept emphasising the need to move slowly, and cautiously, particularly in the context of a case where allegations of family violence had been made.  She did not accept the proposition that just because a certain number of supervised visits had occurred, it was now time to progress.  Her view was that there was no magic number of supervised contact visits, that if the Court felt that there was reason to be cautious, then there was nothing to be lost.  She accepted what was put to her about the expense to the Father but explained that her focus was on the best interests of [X], and that there were things that the Father could control such as where he lived, and whether he worked.

  8. Counsel for the Father sought to attract Dr H to the Father’s proposition of contact in south-western Sydney, rather than in the Illawarra.  Dr H remained concerned about the stress on [X] of the travel, and how this might ultimately detract from the development and evolution of her relationship with the Father, in any event.  She clearly urged the Father to take a telescopic view, not microscopic view, about his relationship with [X] and how [X] might experience issues such as long car trips.  She also staunchly rejected the proposition that it was time to move to overnights, emphasising that there was no benefit to [X] in doing this, that she needed the solid relationship with her Father that she does not presently have, and reminding the Father that given his inconsistent track record with contact he needed to prove himself.

  9. The Court accepts Dr H’s evidence. No attempt to challenge or undermine her recommendations was successful. Dr H clearly endorsed the Independent Children’s Lawyer’s proposed orders for [X]. 

Meaningful Relationship

  1. The Court finds that all of the proposals put before it in relation to [X] would provide to her the benefit of a meaningful relationship with both her mother and her father.  Meaningful relationship in this regard needs to be understood in the context of what Dr H quite correctly described to be [X]’s emerging relationship with her father.  Whilst it must be difficult for the Father, indeed even possibly offensive, to hear Dr H’s description of his relationship as being that of a “friendly visitor, not an attachment figure”, the Father must take on board the reality of the description.  His time with [X] has been limited. The circumstances, and reasons for this are partly of his own creation.  The positive thing for the Father must surely be that provided he remains engaged, committed, and consistent, in terms of spending time with [X] there is every opportunity for the relationship to continue to flourish.  What Dr H is saying, however, is that he must remain patient.

Protecting [X] From Harm

  1. It is clearly a part of the Mother’s case that because of the family violence that she says she experienced and that was perpetrated by the Father, there is a risk to [X] presented by the Father.  She has concerns about his ability to regulate his emotions, particularly his anger.  As it turns out, it is not necessary to go into the details of the allegations and denials that each makes against the other, pertaining to family violence.  This is because any findings about family violence are not determinative of the outcome.  Other matters are determinative.  Overall, the Court believes that the Father did perpetrate family violence during the relationship with the Mother, and possibly afterwards.  He has certainly acted rashly. 

  2. The Court is satisfied that there was an incident on 10 June 2014, less than a week before this hearing commenced, in which the Father, at the very least acted inappropriately, and probably acted in an abusive and threatening manner to the Mother at the conclusion of the supervised visit.  The Court accepts the Mother’s evidence that [X] was present at the time, and said to her mother, “Daddy said naughty words.”  Whilst the incident itself was possibly quite benign, the fact that it would occur immediately after supervised contact, and in such close proximity to the hearing, does not reflect well on the Father and his ability to contain his emotions.  Moreover, the Mother’s concerns about the Father’s family violence and abuse are corroborated by the fact of an AVO, whether made without admissions or not, and by the maternal grandmother’s experience of the Father’s aggression, even though it was indirect.

  3. As indicated above, however, the reason why [X]’s time with her father is being supervised is not because of a finding of family violence against him.  [X]’s time with her father needs to be supervised because of the nature of her relationship with her father, his inconsistent involvement in her life, and in part because of the geographical isolation that he has created for himself. 

The Nature of [X]’s Relationship with Her Father

  1. Without wishing to repeat what has already been articulated in these reasons, the evidence is what it is.  Even the positive observations of the relatively short periods of supervised contact that the Father has spent with [X] does not suggest that the rapid progression to unsupervised time, as well as the extension in the amount of time, and eventual progression to overnight time, is in [X]’s best interests.  [X] has an emerging relationship with her father.  It has much potential, but whether the potential can be realised or not depends upon him, and his patience and persistence.  With great respect to him, his proposal to the Court demonstrated a lack of insight into [X]’s need, and a preoccupation with his.

  2. The Court fully recognises the financial burden that would be imposed on the Father, on the Independent Children’s Lawyer’s proposal.  But he himself acknowledged both to Dr H, and to the Court in evidence, that the only reason why he was not working during these proceedings was that he would otherwise lose his grant of legal aid. The proceedings are over.  Presumably his grant of aid is over.  He seemed supremely confident of getting work if he wanted to.  That should deal with the financial burdens on him, noting of course that the paid supervised visits are only for the first eight visits anyway.

  3. Moreover, the evidence indicates that the nature of [X]’s relationship with the Father was one which would not tolerate lengthy periods of travel, particularly where there was what the Court considers to be a quite understandable doubt about the Father’s ability to regulate her emotions, should she become distressed.  Again, with great respect to the Father, if he could not control his feelings towards the Mother after a supervised contact visit less than a week before the start of this hearing, then surely both the Mother and the Court’s scepticism about his ability to not only control his feelings, but regulate [X]’s feelings, becomes understandable.

  4. Again, the Court wishes to emphasise to the Father its confidence that if he is prepared to be patient, and persistent, he will be rewarded with an excellent relationship with his daughter.  Whether this happens or not, is entirely up to him.  His lack of patience and persistence in the past is historically demonstrated by the inexplicable, or inadequately explained, missed supervised contact visits, even to the point that Catholic Care would not have him any more, because of his inconsistencies. 

The Willingness and Ability of the Parents to Facilitate and Encourage [X]’s Relationship with Each Other

  1. It was clearly a part of the Father’s case that the Mother was not encouraging [X]’s relationship with him.  The Court does not accept this.  The Mother’s demonstrated reluctance was entirely justified, in the circumstances.  The Father’s actions amply demonstrate why the Mother would be so conservative in the proposals that she advanced to the Court.  Indeed, the Court recognises that the Mother’s eventual final proposal to the Court reflects a significant shift in her position about what was appropriate in the circumstances for [X].  Her movement was no doubt influenced by the advice that she was getting having regard to the evidence as it unfolded.  A few hints from the bench might not have hurt either.

  2. Indeed, if any lingering doubt remains in terms of parents facilitating relationships, it must be the extent to which the Father would support [X]’s relationship with her Mother.  He clearly harbours ongoing resentment about the Mother, and cannot see his role in the many problems that they confront in terms of their parental relationship, especially the lack of trust, and singular inability to communicate.

The likely effect of change on [X]

  1. All the proposals before the court involve potentially significant change for [X], but the expert evidence, and the Mother herself seems to acknowledge that the Independent Children’s Lawyer’s proposal is a proposal for change that should be able to be managed by [X].  The Court agrees.  Whereas the Father’s proposal would be a revolution in terms of [X]’s relationship with him, the independent children’s lawyer’s proposal is more a logical, natural and child-focused evolution of that relationship.

Issues of practical difficulty and expense

  1. The Mother, Independent Children’s Lawyer, and Dr H all emphasise the importance to [X] of her time with her father being spent in the Illawarra, at least for the foreseeable future, and before overnights start.  The Father must have understood, or at least begun to understand how [X] might experience extended times in the car getting to and from contact, because he eventually proposed that his time with [X] take place in south-western Sydney where he has relatives.

  2. The Father has shown himself to be quite resourceful in recent months in managing to get himself down to the Illawarra for the purposes of supervised contact, notwithstanding his own loss of driver’s licence.  The Father appears to have quite a wide network of family and friends who are able to assist him with regards to his time with [X].

  3. Whether [X]’s time with her father occurs in the Illawarra, or in south-western Sydney, these issues of practical difficulty and expense can be overcome by the father.  In the circumstances, therefore, this consideration is not determinative.

Issues of parental capacity

  1. This consideration will be considered together with its closely-aligned statutory cousin, parental attitudes.

  2. Both parents can be criticised for their inability to communicate, and their lack of trust.  In the Mother’s case, however, given that the Court prefers her evidence about the family violence and abuse, there certainly appears to be some basis for understanding her reticence about the Father.

  3. In terms of ability to meet [X]’s needs, there is no question that the Mother has done very admirably, and largely without the assistance of the Father.  The Mother, Independent Children’s Lawyer, and Dr H all expressed concerns about the Father’s capacity to meet [X]’s needs, other than in the very limited context in which he has enjoyed time with her.  Dr H’s observations during the family report interviews demonstrate some of the issues that arise in the context of an emerging relationship.  Other than in the context of the short periods that have taken place, and that are contemplated in the Independent Children’s Lawyer’s proposal, the Court finds there is basis for concerns about his ability to meet [X]’s needs in the broader sense.

Family violence

  1. Some findings, and observations, have already been made about family violence.  The apprehended violence order made against the Father was a final order.  In those circumstances, it is irrelevant whether it was made without admissions or not.

  2. Counsel for the Father urged the court not to make findings about family violence, as no clear findings were possible.  The Court does not accept this.  For the reasons previously articulated, the Court prefers the Mother’s evidence, and the event on 10 June 2014 reflects poorly on the Father.  The Court accepts that there are some inconsistencies between the Mother’ evidence about a particular incident as opposed to the police report, but even if it is the case that this was an attempt to exaggerate what took place, even accepting the Father’s own evidence of the events in question, it is not very flattering from his perspective, and again demonstrates his inability to control his emotions, particularly his anger.

  3. Indeed, there was a curious dissonance between the Father’s evidence in cross-examination that he did not need to go to anger management counselling and the closing submissions of his Counsel who suggested that the degree of his anger was not high.  Both propositions are inconsistent with the evidence before the court.

Making an order least likely to lead to the institution of further proceedings

  1. The absence of any order for overnight time will probably mean that this matter will need to be re-litigated in a few years time, unless the parents are able to reach consensus about overnight time.  There are clear reasons for not making an order for overnight time, particularly in the nature of [X]’s relationship with her father, and the need for it to develop and evolve over time into one in which overnight time is sustainable.  The risk of overnight time litigation is recognised, and accepted, but does not detract from a conclusion that it is in the best interests of [X] not to make such an order at this stage.  In any event, the Court accepts the submission of Counsel for the Independent Children’s Lawyer that the risk of further litigation was probably greater if an order for overnight time had been made, because of the nature of the Father’s relationship with [X].

Parental responsibility

  1. The Court accepts the submission of the Independent Children’s Lawyer and the Mother’s Counsel that it is not in [X]’s best interests for equal shared parental responsibility to apply. The presumption is rebutted. The discussion above of the relevant section 60CC considerations compels an outcome consistent with the Independent Children’s Lawyer’s proposal, and also explains why the statutory presumption is rebutted. The Court has no confidence in the ability of these parents to communicate in any constructive sense whatsoever or to make child-focused decisions about [X].

Equal time, or substantial and significant time

  1. Should the Court be wrong in its assessment that a presumption of equal shared parental responsibility has been rebutted, the Court will consider equal time or substantial and significant time.  Neither is in the best interest of [X], nor is it reasonably practicable.  The evidence speaks for itself in this regard.  Not even the Father’s case proposed either substantial or significant time, or equal time.

Orders in the best interests of [X]

  1. Having regard to the matters set out above, the Court concludes that the orders proposed by the Independent Children’s Lawyer, and supported by the mother, are in fact in the best interests of [X].

  1. The Court is satisfied that each and every other order proposed is warranted by the evidence, is a proportionate response to the issues raised, and is in the best interests of [X].

  2. What is missing from the Independent Children’s Lawyer’s proposed orders is one dealing with the possibility that the Father once again becomes inconsistent with his commitment to spending time with [X].  This would be a significant setback for her, and in terms of her relationship with her father.  There is nothing the Court can do, in any realistic way, to compel his compliance with these orders but if he is consistently inconsistent the most likely occurrence is that the matter will come back to Court on the application of either the Mother, or the Father.  The Court would be surprised, and disappointed, if this were to occur.  The Father’s most recent form has been consistent and surely even he must be able to see the benefits in terms of [X]’s relationship with him.  Notwithstanding this comment, the Court does not intend to be prescriptive about this possibility.  If it happens, it will be dealt with in the appropriate way, at the appropriate time, by the appropriate person.

  3. Not much was said on behalf of the Father about the further specific issues orders sought on behalf of the Mother.  Many of these issues might be implicitly subsumed to the order for sole parental responsibility made in her favour.  Nonetheless, in the case of the order relating to the issue of an Australian passport, experience demonstrates that a specific order is required.  In her evidence, the Mother did raise concerns about the Father not having an appropriate car seat for [X], and thus order 7 of the Mother’s proposed orders is appropriate.

  4. In relation to order 8 of the Mother’s proposed orders, about the provision to the Mother of the Father’s driver’s licence, this is understandable.  He is currently without a licence.  The Father contests the allegations the police make against him, in terms of the speed that he was travelling at the time he was disqualified.  The Father’s own evidence is ample basis for making these orders.  Accordingly, the Court will make the further orders proposed by the Mother.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:  14 August 2014

Schedule One

FAMILY LAW ACT 1975

IN THE FEDERAL MAGISTRATES COURT
OF AUSTRALIA
AT WOLLONGONG  WOC416/2012

BETWEEN:             MR PARKS
  Applicant

AND                 MS COLLINS
  Respondent

AND   INDEPENDENT CHILDREN’S LAWYER

FATHER’S PROPOSED MINUTE FOR FINAL ORDERS

  1. That the child spend time with the father as follows:

    a.For a period of four (4) months from 10:00am until 12noon each Tuesday to occur in the Illawarra area;

    b.For a period of four (4) months from 10:00am until 4:00pm to occur in the South Western Sydney area;

    c.For a period of six (6) months from 10:00am Saturday until 4:00pm Sunday to occur in the South Western Sydney area;

    d.From 5:00pm Friday until 4:00pm Sunday each alternate weekend;

    e.For one half of each school holiday period being the first half in even numbered years and the second half in odd numbered years to commence once the child commences  Primary school;

    f.From 10:00am until 12noon on Father’s Day in 2014;

    g.On the weekend of Father’s Day from 10:00am Friday (or 5:00pm once the child commences school) until 5:00pm Sunday;

    h.From 12 noon until 3:00pm on Christmas Day in 2014;

    i.From 3:00pm Christmas Eve until 2:00pm Christmas Day in 2015 and each alternate year thereafter;

    j.From 2:00pm Christmas Day until 4:00pm Boxing Day in 2016 and each alternate year thereafter;

    k.On the Easter long weekend as agreed or if failing agreement from 4:00pm Holy Thursday until 4:00pm Easter Saturday in 2014 and each alternate year thereafter and from 4:00pm Easter Sunday until 4:00pm Easter Monday in 2016 and each alternate year thereafter;

    l.On the child’s birthday from 4:00pm until 7:00pm if on a weekday and from 10:00am until 2:00pm of on a weekend and the child would otherwise be spending time with the mother;

    m.At such other times as agreed between the parties.

  2. For the purpose of the father’s time with the child changeover shall occur at [omitted] Children’s Contact Service or McDonalds [address omitted] if the Contact Service is closed.

  3. That the father notify the mother twenty-four (24) hours prior to the commencement of the father’s time with the child if he is unable to attend.

Schedule Two

IN THE FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT WOLLONGONG  NO (P) WOC416/2012

BETWEEN:             MR PARKS

APPLICANT FATHER

AND:  MS COLLINS

RESPONDENT MOTHER

AND:  THE INDEPENDENT CHILDREN’S LAWYER

MINUTE OF ORDER PROPOSED BY THE INDEPENDENT CHILDREN’S LAWYER

PARENTAL RESPONSIBILITY

  1. That the Mother have sole parental responsibility for the child, [X] born [omitted] 2010.

LIVING ARRANGEMENTS

  1. That the child live with the mother.

SPENDING TIME ARRANGEMENTS

  1. That the child spend time with the father:

a.For two hours, each alternate weekend for 8 visits, from the making of these orders, supervised by Care South, or such other supervisor as is agreed between the parents, at the father’s expense, and in lieu of agreement, on Saturday, from 12noon until 2pm, with such time to take place in the Illawarra area;

b.subject to the father’s compliance with Order 10, at the conclusion of the time the child spends with the father pursuant to the preceding subclause for 8 visits, unsupervised for 2 hours each alternate weekend, and in lieu of agreement, on Saturday, between the hours of 12noon until 2pm, with such time to take place in the Illawarra area;

c.at the conclusion of the time the child spends with the father pursuant to the preceding subclause, for 8 visits, for a period of 4 hours, unsupervised, each alternate weekend, and in lieu of agreement, from 12 noon until 4pm on Saturday, with such time to take place in the Illawarra area;

d.at the conclusion of the time the child spends with the father pursuant to the preceding subclause, unsupervised, for 6 hours, each alternate weekend, and in lieu of agreement,  from 10am until 4pm on Saturday, and, in lieu of agreement, with such time to take place in the Illawarra area;

e.on Christmas day 2014, in lieu of agreement, from 12 noon until 2pm in the Illawarra area;

f.on Christmas day 2015 and each year thereafter, in lieu of agreement, from 11am until 3pm;

g.such further times as the may parties agree.

SUSPENSION OF TIME

  1. That the time the child spends with the father pursuant to these Orders, shall be suspended on one occasion during the NSW Public School Christmas holiday period, with the mother to provide the father with not less than 2 months written notice of the date of the suspended visit.

CHANGEOVER

  1. That, within 14 days of the making of these Orders, the parties do all things necessary to enrol to use Catholic Care Supervised Contact and Changeover Centre in Wollongong (CCSCCC), or such other agency as the parties agree, , for the purposes of facilitating the child spending unsupervised time with the father, with each parent to bear their own cost.

TELEPHONE COMMUNICATION

  1. That, once the child commences spending time with the father pursuant to Order 3(c), the child communicate with the Father by telephone each Saturday that she does not spend time with the father, between the hours of 3-4pm, with:

    (a)the mother to provide a telephone number to the father not less than 14 days prior the commencement of such communication;

    (b)the father to provide the mother with his mobile telephone number to the mother not less than 14 days prior to the commencement of such communication; and

    (c)with the father to make the telephone call on the number supplied to the father.

RESTRAINTS

  1. That the father be restrained from:

a.attending the child’s school without the express written consent of the mother;

b.attending the mother’s residence or any place at which the mother works;

c.denigrating the mother, or any member of the mother’s family or household, in the presence or hearing of the child;

d.communicating with the mother in any way other than in writing except in case of emergency, which, at all times, shall be respectful and courteous;

e.consuming or being effected by any illicit drug, or alcohol, during any time the child spends with him, and for the period of 12 hours prior to the commencement of such time.

  1. That the mother be restrained from denigrating the father, or any member of the father’s family or household, in the presence or hearing of the child.

  1. That each parent immediately remove the child from the presence of any person who denigrates either parent, or any member of either parents’ family or household in the presence or hearing of the child.

SPECIFIC ISSUES

  1. That the father, forthwith, do all things necessary to enrol in and complete the following parenting courses, and provide evidence of the completion of such courses to the mother and the Independent Children’s Lawyer:

    (a)“Keeping Kids in Mind”, CatholicCare; and

    (b)“Parenting After Separation”, Relationships Australia.

PARENTAL COMMUNICATION

  1. That the parents communicate matters pertaining to the child by email, except in case of emergency, with each parent to provide the other with an email address, within 7 days.

  1. That the mother inform the father, in writing, of decisions made by her in respect of the long term care, welfare and development of the child, within 14 days of the making of such decision.

  1. That in the event the child suffers any accident or injury during any time the child spends with the father, the father forthwith notify the mother by telephone on the mobile telephone number provided to the father pursuant to Order 6.

  1. That the mother inform the father of:

a.any medication the child is required to take, during any time the child is to spend time with him pursuant to these Orders, and provide all information in respect of the required dosage and timing of administration of such medication.  If the medication is prescription medication, that the mother provide such medication to the father; and

b.Any specific dietary requirements for the child.

DATED:  17 June 2014

……………………………………………………….
HELEN ELIZABETH VOLK
INDEPENDENT CHILDREN’S LAWYER

Schedule Three

IN THE FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG
NO (P) WOC416/2012

MR PARKS
APPLICANT FATHER
MS COLLINS
RESPONDENT MOTHER

Typescript of Mothers Proposed orders and additional orders

  1. That the mother have sole parental responsibility for the care, welfare and development of the child of the relationship namely [X] born [omitted] 2010 (the child).

  2. That the child live with the mother.

  3. That the child spend time with the father as agreed by the mother.

  4. That the Mother be permitted to cause the child to travel overseas at anytime without the written consent of the Father.

  5. That the Mother be authorized to apply for and receive an Australian Passport for the child without the written consent of the Father

  6. In the event any passport issued to the child expire, that the Mother is authorized to apply for and receive a new Australian Passport for the child without first obtaining the written consent of the Father.

  7. That the Father ensure that an age appropriate car seat be installed in any vehicle in which the child shall travel.

  8. That the Father provide to the Mother a copy of his driver’s license prior to the Father driving the child.

Key Legal Topics

Areas of Law

  • Family Law

Legal Concepts

  • Jurisdiction

  • Remedies

  • Injunction

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Statutory Material Cited

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MRR v GR [2010] HCA 4