Pilio & Apetto

[2008] FamCA 394

FAMILY COURT OF AUSTRALIA

PILIO & APETTO [2008] FamCA 394

FAMILY LAW – CHILDREN – With whom a child spends time – Contraventions

APPLICANT: Mr Apetto

RESPONDENT: Ms Pilio

INDEPENDENT CHILDREN’S LAWYER: Mr Scally

FILE NUMBER: NCC 105 of 2007

DATE DELIVERED: 9 May 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Newcastle

JUDGMENT OF: Cohen J

HEARING DATE: 15 April 2008

COUNSEL FOR THE APPLICANT: Mr Quinn

THE RESPONDENT: In person

THE INDEPENDENT CHILDREN’S LAWYER: Mr Scally, Legal Aid Commission of NSW

Orders

IT IS ORDERED, UNTIL FURTHER OR FINAL ORDER:

1. That the child born … December 2003 shall spend time with the father each weekend from 9:…am on Saturday until 4:….pm on Sunday.

2. For the purpose of implementing Order 1, the mother shall deliver the child to the father at D Railway Station when the train from L which is due to arrive at D at 9:…am on Saturday in fact arrives and the father shall return her to the mother at D Railway Station on Sunday when the train to L which is due to arrive at D at 5:…pm in fact arrives.

3. That the said child shall at the mother’s cost speak to the father by telephone each Tuesday and Thursday for not more than 10 minutes between 6:00pm and 7:00pm.

4. That the child shall at the father’s cost speak to the mother if the child requests to do so for not more than 10 minutes at any reasonable time of the child’s choosing on one occasion on each weekend when she is in the father’s care.

5. For the purpose of implementing Order 3 the father shall forthwith convey to the mother a telephone number at which he can be contacted and the mother shall be responsible for initiating the child’s telephone calls to the father.

6. For the purpose of implementing Order 4 the mother shall forthwith convey to the father a telephone number at which she can be contacted and the father shall be responsible for initiating the child’s telephone calls to the mother.

7. That all orders currently in force for the child to spend time with the father for Christmas are discharged.

8. That the child shall spend from 9:00am on Christmas Day to 10:00am on Boxing Day 2008 with the father.

9. For the purposes of order 8. changeovers shall be at D Railway Station.

IT IS ORDERED:

1. That the mother shall pay such of the Independent Children’s Lawyer’s costs as shall be determined by this Court on a date or dates to be fixed and for that purpose that aspect of these proceedings is reserved and adjourned for hearing on Monday 26 May 2008 in the Newcastle Registry of this Court.

2. Except for such costs as are ordered to be paid pursuant to Order 7, costs are hereby reserved.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 105 of 2007

MR APETTO

Applicant

And

MS PILIO

Respondent

REASONS FOR JUDGMENT

1. These proceedings involve two principal applications. One is an Appeal from the decision made on 12 November 2007 by a Judicial Registrar finding that the mother had contravened an order without reasonable excuse and imposing a sanction for the contravention. The other is an application by the mother to vary consent orders for the time the father is to spend with the parties’ child. These were made on 30 March 2007.

2. The child is a daughter who is now about 4½ years old and was born in December 2003. The appeal from the Judicial Registrar’s orders is limited to the issue of whether or not the mother has established a reasonable excuse for the breach of orders, the issue of the seriousness of the breach and the sanctions which are to be imposed. These issues were dealt with by way of a rehearing. There was no challenge to the Judicial Registrar’s finding that a breach had occurred, it being that on 22 December 2007 the mother failed to comply with the order of 30 March 2007 by failing to deliver the child to the father so she could spend from 10am that day to 4:30pm on the next day with the father. There was no contact at all during that period.

3. On 9 January 2008 the mother filed an interlocutory application. The consent orders of 30 March 2007, among other things, provided that the father spend time with the child each week from 10am on Monday to 4:30pm on Tuesday and that changeovers take place at the Rainbows Childrens Contact Service of Relationships Australia (Rainbows). For this changeover arrangement to be implemented each party was ordered to arrange an appointment for an intake assessment with Relationships Australia within seven days. Now the mother seeks that until final hearing all the orders made by the Court be set aside and that the child spend time with the father in each alternate week from 5pm Friday to 5pm Sunday, have telephone contact twice each week and that there be alternating Christmas and Boxing Day contact each year. The mother also seeks, in this application, that changeover be at “Unifam, Harris Park Contact Service” which she has also called “Harris Park Children Contact Centre”. Although one might think the mother really means the Central West Contact Service, Harris Park, her misdescription is significant, as shall be demonstrated.

4. Before dealing with the facts and merits, it is necessary to mention an aspect of the hearing before me. On 11 February 2008 the matter came before Mullane J. The mother was represented by Counsel, the father appeared in person and the Independent Children’s Lawyer, Mr Scally, appeared. His Honour listed both the mother’s appeal and her interlocutory application for hearing on the day and at the time I commenced to hear it. Yet, for the hearing before me, the father failed to appear. As in each of the matters the onus was on the mother to prove her case and was required to commence, the matter proceeded, in effect, as only defended by the Independent Children’s Lawyer. As the finding of contravention was not the subject of appeal, that finding stood despite the appeal. I need only decide whether the mother has a reasonable excuse for the contravention and, if not so satisfied, whether the contravention is either a less or more serious one for the purposes of subdivisions E and F of Division 13A of the Family Law Act 1975 and, what, if any, sanction should be imposed on the mother.

5. The wife’s interim application to vary the orders of 30 March 2007 is to be regarded as undefended. There can be no serious doubt that the father knows that this matter was to be heard on the same date; 15 April 2008, as the appeal because Mullane J made an order to that effect on 11 February 2008 in the father’s presence.

6. There are relatively few significant facts before me in either of the two matters. The parties, who are not greatly different in age; the mother now being 29 years old, commenced residing together in early 2000. They ceased to do so on 23 June 2006 although there was at least one earlier separation. The mother alleges the father was, during the relationship, violent towards her and that she has had an apprehended violence order made against the father to protect herself. She claims that in July 2006 the father broke her ribs during a bout of violence. However, her evidence about this is deficient, imprecise, confused and somewhat inconsistent. It seems clear that despite what she says was a serious injury after a history of violence towards her, she failed to report this allegedly serious assault to the police; at least for a considerable time and possibly not at all. In fact, the mother, who gave oral evidence, was a most unconvincing witness. I am not confident she can be relied on to tell the truth. A version of the facts which she believes will best support her claims irrespective of its truth is likely to be the one she relies on in sworn evidence.

7. Before the parties separated they had lived in the Newcastle area. After separation the father lived north of Newcastle and the mother lived south of Newcastle. After the orders of 30 March 2007 were made, they were not complied with in some respects. I regard the non-compliance as relevant to the assessment of the seriousness of the contravention and to any sanction which might be imposed.  

8. As I have mentioned, the consent orders provide for a scheme which recognises that to be able to have Rainbows supervise changeovers the parties needed to have an assessment for their suitability. The orders provided that each party contact Rainbows within seven days of the orders being made and arrange an assessment appointment and attend that appointment. The mother, I am quite satisfied, made no proper or timely attempt to be assessed. The father did not meet the qualification requirements until June 2007. Accordingly, it was not possible to use the supervised contact changeover service. Instead, the parties agreed to changeovers at convenient places, usually a petrol station at the intersection of the Pacific and New England Highways. The mother’s failure to diligently and expeditiously arrange or to make any arrangement for her own suitability assessment is extremely strong evidence that she was not so afraid of the father that she felt a need for the protection afforded by supervised changeovers.

9. Both parties were required by the orders to attend a Keeping in Contact program conducted by Unifam. I am satisfied, neither made a proper effort to comply with that order which required them to get in touch with Unifam within seven days of the orders and, if unable to arrange attendance within two months, then in concert with the Family Court arrange an alternative program.

10. It is germane to mention that the mother relied on what I have no doubt were blatant lies to excuse her failure to make arrangements to attend the intake assessment for Rainbows and the Keeping in Contact course. She said she was unable to attend both because of a flood in Broadmeadow. It is common knowledge that the flood did not occur until mid 2007. The mother still has not made arrangement to attend the Rainbows assessment. The father completed it in mid 2007. By May 2007, the father had not contacted the Keeping in Contact program organisers. The mother; had made contact with the program organisers by then but neither party has attended any part of the program. Appointments were made for the parties’ attendance in July 2007 and for the mother in October 2007 and March 2008. They did not keep these appointments. The mother’s excuse is that, by the time she was given the appointment in March 2008, she had moved to Sydney, where early in 2008 she had contacted the Parramatta office of Unifam to make arrangements. She has still not undertaken any course there.

11. The July 2007 appointment for the mother is very concrete proof of the deceptiveness and thus falsity of her evidence on the issue. She said the Unifam building at Broadmeadow was damaged by the flood and the centre was not operating. That is why she could not attend. Exhibits A and B contain letters sent to the mother on 12 July 2007 making the appointment for 25 July 2007. All appointments, in fact all correspondence, with Unifam are with its Newcastle office. It is Rainbows which is at Broadmeadow.  The flood, which may have caused it to cease to operate for a period, could only have done so, as shall be seen, after the mother had refused to permit the father to have contact with the child.  

12. Very significantly, the mother, through the police, applied, on 8 May 2007, for an apprehended violence order against the father. An interim order seems to have been made on that date. Then, before it was served, it was renewed on 7 August and 5 September 2007. By this time the mother was living north of Newcastle. It is quite curious that the mother sought this order in May 2007 in the face of the fact that there is no allegation of violence between her and the father between 30 March 2007, when she consented to the contact orders, and May 2007 when she first sought the AVO. The interim order has been continued until after the hearing before me. No final order has been made as a result of this May 2007 application. The inference is that she was planning to use the claim of fear when she made the complaint of violence in May 2007. The likelihood is that she was then planning to end contact or change its terms, probably because she was planning to move to Sydney.

13. The mother relies on an incident in 26 June 2007 to establish her claim of reasonable excuse for the contravention. In her original affidavit she said it happened on 3 June 2007. I accept that it probably occurred on 26 June 2007. She and the father had arranged to meet so she could collect the child from him on the Pacific Highway, Wyong, at the car park of the service centre which is there. This was convenient for the mother because she was then living south of Newcastle and the father was bringing the child from Sydney where she and the father had been visiting his parents. The agreed changeover was to be at 4;30pm. The father was late and did not arrive until about 5:05pm. He had notified the mother that traffic and “potty stops” were delaying him. The mother does not have a car and was driven to the service centre by a friend, Ms G. Ms G provided an affidavit but was not available for cross examination. Her affidavit evidence about the incident is virtually identical to that of the mother.                

14. Contrary to any suggestion that she feared the father, according to her and Ms G, when he arrived she went directly to his vehicle and opened the passenger side front door. The child was in the back but it is a two door car. The father objected to the mother entering his car. Whether he was being unreasonable and/or wishing to start or continue a confrontation, I cannot say. Despite absence of evidence about the incident from him, I found the mother so completely unreliable as a witness that I do not wholly accept her evidence. Ms G’s evidence is compromised by her non availability at Court. It seems to me that the situation which is most likely was that each party was feeling exasperated and inclined to conflict with the other.                 

15. The mother, on being told by the father to get out of his car, persisted in attempting to get the child out of it. She says, but I am not satisfied that it occurred, that she noticed the father’s hands were shaking; something she said she recognised from past experience as an indication he was about to assault her. If this is what occurred, it did not deter the mother, who did not seem to be intimidated by the father. She says that as she was attempting to undo the child’s safety harness the father pushed her on the left shoulder and that this caused her to bump her head and fall backwards. Notwithstanding this and her claimed fear of the father, she then persisted in attempting to extricate the child from the car. The mother claims she did this because she believed the father would drive off with the child and that it was her strong instinct to protect the child which made her act as she did notwithstanding her fear.

16. After retrieving the child, the mother was not satisfied. She then attempted to recover a bag of the child’s things which was also in the back of the husband’s vehicle. It was not that she was driven by any need to protect the child and that overcame her fear of the husband. It was a mere wish to recover some clothing and toys. Her fear, I am satisfied, was not great despite any immediate assault by pushing which, if it occurred, might be expected to have worsened any fear the mother had for her own safety.        

17. I do not believe her. I am not satisfied she believed that the father would harm the child. She said in evidence he had never done so and she did not fear he would. The father, she said, had once before failed to return the child. If he had taken her this time he would not have harmed her. There is no suggestion that when he failed to return her previously he had harmed her. In any event, I am not satisfied the father gave the mother any reason to believe he would spirit the child away or that she believed he would. He had, after all, been in the process of returning her and, since the March 2007 orders, is not alleged to have failed to return her. It seems from what the mother and Ms G say of his words and actions during the incident that he was in the process of seeking police protection from harassment by the mother. Ms G’s description of the incident confirms the mother’s aggressive actions at the time. In court, the mother behaved in an aggressive and unrestrained manner. She appeared to me to be wilful, self indulgent and very assertive.

18. On 3 July 2007, the mother’s then solicitor wrote to the then solicitor for the father advising of the mother’s intention to “suspend contact until the matter is again before the Court.” The mother applied on 23 July 2007 to suspend contact between the father and the child. This application was dismissed on 14 September 2007 because of the mother’s want of prosecution and failure to appear. Despite the mother’s claim that the police were notified of the incident, there is no suggestion that they charged the father over it or sought any further AVO based upon it. There was no interim application to suspend contact. Nevertheless, the mother chose to ignore the orders of 30 March 2007 and the fact that the application to suspend them was dismissed. The spirit of the orders was to ensure that the child was not deprived of the presumed benefit of spending time with her father. The mother ignored this aspect too.

19. I accept, because the mother has not denied, that she did not produce the child for contact with the father on 17 occasions between 26 June 2007 and 22 October 2007. It is in that context that I must decide the seriousness of her contravention by her failure to deliver the child on 22 October 2007. It should be no surprise that there was actually no contact between the child and the father between 26 June 2007 and 14 September 2007. However, between 14 September 2007 and the present, despite the dismissal of the application to suspend contact and the finding of contravention there has continued to be no contact. What should probably not come as a surprise is that the mother says that, immediately after the incident of 26 June, she moved to Sydney with the child. She claims this was because she feared the father. I do not believe her.

20. The Act rigidly limits the applicability of the claim of reasonable excuse as a defence to a contravention of an order. Under the Act, reasonable excuse is not really a defence. If a contravention is established, the Court must then decide whether it is of a less serious or more serious character. The characterisation of the degree of seriousness of a contravention also determines the type of orders which can be made in response.

21. The Act, to some extent, prescribes what can amount to a reasonable excuse. Section 70NAE(5) is the only appropriate consideration here. It provides that a mother can establish a reasonable excuse for contravening a contact order if she believed on reasonable grounds that not allowing contact was necessary to protect her and the child’s health or safety and the contravention was no more extensive then necessary to do so. This is the basis of the mother’s defence. I do not accept  that she believed that she or the child were in any danger to their health and/or safety from contact including from delivering or collecting the child for the purpose of contact. Although s. 70NAE(1) permits excuses which are outside those prescribed in the other subsections of s. 70NAE, the mother did not rely on any excuse other then that which comes within the ambit of s. 70NAE(5).

22. Subdivision E of Division 13A: less serious contravention, usually applies where, as is the case here, a Court has not previously imposed a sanction or taken action for breach of the primary order against a person who has been found to have contravened it. There is an exception provided by s. 70NEA(4). It permits the Court to deal with the contravention as a more serious one if it is satisfied that that person has behaved in a way that showed serious disregard for his or her obligations under the primary order.

1. I regard the mother’s conduct to amount to evidence which satisfies me she has shown serious disregard for the contact order which she contravened; that is, order 2. made 30 March 2007. The conduct in question is her failure to appear to prosecute her claim for suspension of the March 2007 orders; a claim which was also for supervised contact, together with her contravention in the context that it was the 18^th occasion she failed to deliver the child for contact and that after the suspension application was dismissed she continued to refuse to allow the child to have contact with the father. It is no excuse at all that she claims to be afraid for her or the child’s safety at the hands of the father. She has used that excuse for all failures. I have found that she has not been truthful in her assertion of that fear and because, even if she was being truthful, the proper course was not to simply ignore the orders, it was to approach the Court and diligently pursue her claim for suspension and/or a variation of the orders and to abide by the decision of the Court. In finding that the mother has a serious disregard for her obligations under the relevant orders, I have also relied on my observation of her in Court, both in and out of the witness box. I regard her as believing that she can do as she likes notwithstanding the Court’s orders and that the Court will do nothing to disadvantage her if she does. She seems to confuse the ordinary atmosphere and proper conduct in the courtroom and the insistence that the Law take its proper course with lack in the Court of resolution to enforce its orders.

2. Because of s. 70NFB, the Court must make an order under paragraph (2)(g) of that section that the mother pay the father’s and the Independent Children’s Lawyer’s costs of the contravention proceedings unless it is satisfied it would not be in the best interests of the child to make it. The failure to say on what basis costs should be ordered ie party party, solicitor client, indemnity or partial leaves me with the strong conclusion that the Court is left to decide what type of costs order to make and therefore whether to order them to be taxed or assessed by the Court or order costs of the whole of the relevant proceedings or only part of them.  It also, if it makes an order under (2)(g), must consider making another of the orders by way of sanction against the mother which are listed in s. 70NFB(2). If it does not make an order under (2)(g), it must make one of the other orders listed in subsection (2).

3. In this instance, I have a clear view that the most appropriate order to make would be for compensatory contact. At the same time, it is quite necessary to vary the orders of 30 March 2007 to ensure that the child spends enough time with the father to allow her to re-establish, until final orders are made, what appears to have been the normal or unexceptional relationship she had with him before contact was stopped in mid 2007. Section 70NBA gives the Court power to vary the contact order which was breached for that purpose. However, the Court must, where there has been a serious contravention, in determining whether or not to vary the primary order not only take into  account the best interests of the child but also take into account the failure of the mother to attend the post separation parenting program she consented to and was ordered to attend; the Keeping in Contact Program run by Unifam, more correctly named the Keeping Contact program. Probably when it was tactically useful and convenient in early 2008, she contacted Unifam, Parramatta, to attend but has not actually attended the course. She ignored correspondence from Unifam’s Newcastle office informing her of her intake assessment and to her appointments. I shall take all these aspects of the case into account.

4. Before deciding what compensatory contact order and what, if any, costs order I should make, it is necessary to deal with the applications to discharge or vary the orders of 30 March 2007. The issue of travel for contact and the times and dates of what should be the usual contact have a bearing on what compensatory contact order should properly be made and what costs should be ordered against the mother.

5. Only a few facts are before me which are germane to the mother’s interim application and have not been mentioned. The first is that when the orders were made in March 2007 the parties were both living in the Central Coast, Newcastle, area. The mother has moved to Sydney; to her parent’s home in C. She has been living there, she says, since soon after the 26 June incident and the father has not taken any action other than the contravention application to require the child to live closer to his home. He still lives in the area north of Newcastle.

6. When the consent orders were made the mother was not in employment, the father, who was, had Mondays and Tuesdays, but not weekends, off. The evidence is that the mother now has a regular 9 – 5 weekday job and the father’s employment no longer involves weekend work. He too now works in an ordinary Monday to Friday job.

7. The father has placed no evidence before the Court in answer to the mother’s application to vary the currently ordered contact arrangements. However, he filed an application on 11 February 2008 in which he asked for contact from 5:00pm on a Friday to 5:00pm on a Sunday of each week with changeovers to take place at Rainbows. The mother’s application, filed 9 January 2008, seeks, to the extent it is now relevant:

   a.That all the 30 march 2007 orders be set aside;

   b.That the child live with the mother and spend time with the father from 5:00pm Friday to 5:00pm Sunday each second week;

   c.That for Christmas 2008 the child spend from 9:00am on Christmas day to 10:00am on Boxing Day with the father and from 10:00am Boxing Day to 10:00am the next day with the mother and alternate these periods each year thereafter. As these are interim proceedings and final orders should not be made, I am not prepared to deal with any Christmas period thereafter. As there is little doubt that the father would not oppose the order the mother seeks for Christmas and Boxing Day 2008, I shall make orders accordingly.

   d.That changeovers all take place at the Unifam Harris Park Contact Centre. There is no such place. Unifam has a counselling and mediation centre in Parramatta. The Harris Park centre is called the Central West Contact Service and is operated by an entirely independent body from Unifam. It is an indication of the mother’s level of commitment to attend this contact centre that she does not distinguish between it and the Unifam counselling service.

   e.That the child communicate by telephone with the father “at least twice per week” between 6:00pm and 7:00pm in each instance.

   f.That the child communicate by telephone with the mother each evening between 6:00pm and 7:00pm while she is spending time with the father.

8. Overwhelming considerations relating to the child’s best interests and also the parties’ undoubted wishes and needs on the issue of the time the father spends with the child and the place or places where changeovers for that purpose are to occur arise from the parties’ work commitments and the locations of their homes. They live about 210 km apart; that, is, about 2 ½  to 3 hours travel by car or at times more. The mother does not drive or does not own a car. Because both work, transport on Friday evening appears to me to be quite impractical, even if each travels to a meeting point between their respective homes. For the father to come to Harris Park would probably require him to leave work early to be able to return to his home north of Newcastle at a reasonable time. To give the child something to eat and drink on the way with a toilet stop would probably result in arrival at home after 8:00pm; late for a 4 or 5 year old after a long trip. However, I think the major factor militating against the collection regime sponsored by the mother is the danger up to 7 or more hours of driving after a full week’s work will entail for the father and the child. Of course, another practical problem is that neither party has been in contact with the Central West Childrens Contact Service and I have not been told its operating hours, availability or willingness to be used by the parties to facilitate contact. It do not know when, whether or on what terms the service will accept the parties.

9. No doubt for tactical reasons, the mother claims to have taken the first steps to make arrangements with Unifam. I do not know whether it will facilitate changeovers at its premises or, if it will, which I think is unlikely as I have not had an instance in any hearing before me when its offices were suggested to be available for such use, what its terms, conditions and availability are. I am not satisfied the mother or the parties will be able to arrange supervised changeovers on Friday evenings, Saturday mornings, Sunday evenings or at Christmas at Harris Park or Parramatta.

10. The 30 March 2007 Orders provide for changeovers at Rainbows Centre, Broadmeadow. The father has undergone the qualifying intake procedure; the mother has not. She obviously does not wish to because it is so far from her Sydney home. If I order changeovers there or leave the 2007 orders as they stand, I am not confident she will, in the near future, undertake the qualifying procedure. She is only likely to do so if she is forced or virtually forced to by actual contravention proceedings or the threat of them. In any event, there has been no suggestion by the father that, since the mother’s move to Sydney, there is any compelling reason why changeovers should take place at Broadmeadow, rather than a place which involves a greater travel burden on him. The father has taken no action to ensure that Broadmeadow becomes the permanent changeover point. The parties have never used it. When there was contact, changeovers usually took place by agreement at the Service Centre on the Pacific Highway. This creates a problem if the mother cannot get a lift because she has no car or does not drive.

11. The child’s welfare has little relevance to the place for changeover, if it is assumed, as it should be, that Saturday morning is a more practical and appropriate time for delivery to the father. She will be subjected to much the same travel times and distances irrespective of the changeover point.

12. It was suggested by the mother’s counsel that there is a contact centre at Gosford which could be used for changeovers. In view of the uncertainties already canvassed in relation to Sydney changeover centres which would also apply to Gosford, I am not satisfied that this could be used with the immediacy which I regard as necessary to resuming the child’s contact with the father or at all. As before, each party will have ample opportunity to defeat any requirement for immediate resumption of contact by failing to pursue enrolment with sufficient diligence.

13. I do not regard supervised changeovers as necessary or appropriate. Such an arrangement cannot but create in the child, because it must create such an impression, that there is something wrong with one of the parties. This will not be of assistance to her because it is in her interest that she think highly of each parent. It is unnecessary because I do not regard the mother as having any true fear of the father. Her claimed fear was tactical. The changeover arrangements which are warranted, then, are those which are warranted by practical considerations and are fair to the parties in all the circumstances. Fairness is important because, if the incident of 26 June 2007 is any measure, the parties are quite conflictual and aggressive. Their relationship is most likely to deteriorate more if one has reason to believe the transfer arrangements are unfair to himself or herself. It is in the child’s interests that the level of conflict between the parties diminishes and their ability to communicate face to face and in a normal manner improves.

14. It seems to me, to be both fair and practical, that the mother have a substantially greater burden in relation to having to travel to and from the point of changeover than that which she has applied for. Unsupervised changeovers are more likely to achieve better communication and lowered conflict, despite past history, than supervised changeovers at a contact centre will. The parties will eventually realise, if they have not already done so, that they will have to learn to co-operate and communicate courteously and respectfully with one another. The poisonous relationship which currently seems to exist cannot be allowed to continue for too long because of the potential its continuance has to do the child harm. In any event, supervised contact centre changeovers are only available in the relatively short term. They do not provide long term supervision. The parties must start learning to behave properly without the need for supervision. They will have to do so eventually and it is in the child’s best interests that they do it as soon as possible.

15. The mother lives at C. This is close to L railway station. The train goes directly to D and return from or to L. The journey takes about 1 hour 20 minutes each way, so to or from the mother’s home is likely to take about 1 ½ hours. From north of Newcastle to D is about 137 km. According to the internet website the trip will take about 1 hour 45 minutes by car. In the circumstances, I am of the view that changeovers at D Railway Station are appropriate. They are as fair and convenient as I can make. Although I do not agree that there is a need to organise a changeover which will protect the mother or alleviate her fear of the father, a changeover at a railway station when the train arrives or is about to leave is so public that it is likely to avoid the failure of either to exercise the self-restraint needed to prevent inappropriate incidents from taking place in the child’s presence while at the same time appearing to the child to be the logical and normal place for delivery and collection. I say this knowing the last unseemly incident took place in a public place.

16. A train which leaves L a little before eight on Saturday morning arrives at D at a little after nine. On Sunday a train arrives at a little before 5 and leaves D at almost six which arrives at L at just before 7. I regard these trains as providing the most suitable times to transport the child to the father on Saturday and return on Sunday.

17. In deciding what interim parenting orders to make; specifically in this case, contact orders, I must primarily consider the benefit of the child having a meaningful relationship with both parents and the need to protect her from physical or psychological harm from abuse or family violence. Neglect is not said to be a feature of the case now before me.

18. There is no issue that the child will be able to maintain a meaningful relationship with the mother. The mother would restrict development of flexibility in the father’s contact by supervised changeovers. These restrictions will undermine the child’s entitlement to contact which is more natural and appropriate to immediate circumstances and the development of a proper relationship with the father. In my assessment the mother will from time to time continue, if allowed, to try to undermine the child’s relationship with the father in order to meet her own needs and convenience. This is why she grossly exaggerated her fears of him. This exaggerated fear and the motivation for its exaggeration is a very strong reason why supervised changeovers should be rejected. They would, after all, have the likely effect of creating the belief in the child’s mind that the mother really does fear the father and that the fear is, therefore, justified. For the mother to foster this situation is nothing less than emotional abuse of the child if it is not emotionally violent towards her. In using the word “abuse” I am not using it in its statutory meaning created by s4 of the Family Law Act, nor do I, in using “emotionally violent”, mean any element of the meaning of “family violence” in the same section of the Act. I use each term in the sense its ordinary meaning has and find that, to protect the child from the risk of psychological harm, I should make orders which avoid the inferences which arise from supervised changeovers. Changeovers in a public place are, in this instance, fair and practical and the best compromise to protect the child from being exposed to family violence like that which occurred at the service centre and meet the need to avoid the inferences of supervision. I am not satisfied there is a likelihood of any new family violence occurring now that the parties are separated.

19. There are additional considerations which the Court must undertake pursuant to s60CC(3). There is no sufficient evidence which will allow any useful consideration of the paragraphs (a) and (h) of that subsection.

20. I do not know much of the relationship which the child has with each parent, although I do know that it is now some time since she has seen her father and that the relationship between them may have been damaged by that degree of distancing. In the absence of any more illuminating evidence, the best I can do to promote the child’s welfare is, within the constraints of practicality, initiate significant contact forthwith and maintain as much frequency as possible. There is no evidence to suggest she should not immediately stay overnight with the father. I know nothing of the child’s relationship with any other significant person.

21. I do know that the mother is somewhat unwilling but not otherwise unable to facilitate and encourage a close relationship between the child and the father. She only asked for supervised changeovers, not supervised contact. I think she probably attempted to use denial of contact to achieve her end which was to alter the contact arrangements to suit herself, especially with respect to transport. The damage to the relationship between the child and the father has probably been no more than incidental to the mother’s quest for contact which is convenient for her. I do not regard her as intent on undermining their relationship per se. There is no material before me to suggest that the father will not encourage the child to maintain a proper relationship with the mother.

22. So far as is relevant to the matters I am dealing with, the only change in the child’s circumstances which has been significant is the move to Sydney with the mother. The result will be that on resumption of contact with the father she will be involved in travelling for 3 or more hours each way if she is to see her father in the most appropriate setting; his home. Most of the effects on the child which the terms of the changeover will have, have already been mentioned. The place, however, needs to be one which puts the minimal burden and stress on both parents so that the child can be transported safely and that each parent is minimally, in view of the circumstances, undermined in his or her ability to parent the child. I regard D Railway Station as the place where the optimum result is likely to be achieved. Both parties will suffer about the same level of inconvenience and therefore burden of travel, so the adverse effect on the child of their reaction to having to travel will be minimised.

23. The practical difficulties inherent in contact are obvious. As both parties work ordinary weekday hours, it is impractical to have midweek contact or to have a Friday delivery. Saturday morning delivery to the father and Sunday evening collection by the mother are the best practical alternatives in view of the child’s age and the fact that she will benefit from significant and substantial time with the father including overnight time. I need only deal with the period before or a little after she commences school because these are interim proceedings. As both parties are employed, they can afford the relatively small cost of transport for contact. The cost and the practical difficulties will not, in my assessment, prevent the child from seeing her father each week. I think she needs to do this to be sure her relationship with him will not be undermined by the prolonged loss of contact with him. At her age and level of maturity, she should, because of previously regular and frequent contact with him, have developed a sufficiently strong attachment to him to be able to resume contact without problems rather than undertake any graduated reintroduction to him.

1. I do not know much of the father’s capacity to provide for the child’s emotional and intellectual needs. The mother has not suggested there is any defect in it. My experience of the mother gives me no concerns about her capacity to meet the child’s intellectual needs but I am quite concerned about her capacity to care properly for the child’s emotional needs because she so selfishly prevented the child from having proper contact with the father. Both parent’s behaviour at the service centre in mid-2007 leaves me with serious doubts about their ability to control their impulses and so avoid the likely emotional harm to the child of being embroiled in their unseemly and self-indulgent behaviour.

2. There is nothing related to the child’s sex, level of maturity, background and lifestyle which I have not already referred to but should consider.

3. Neither parent impresses me as paying much regard to his or her parental responsibilities. The father did not even bother to appear for the last day of the proceedings; the day when the issues involved in the mother’s claim to vary the consent contact orders and when the determination of the consequences of the mother’s breach of orders was heard. The mother’s lack of responsibility is amply demonstrated by her deceitful attempt to place her needs above those of the child for her own convenience by cancelling contact for no good reason and attempting to make the father take the burden of contact travel despite the inherent risk to the child involved in the father having to drive for so long.

4. I have already dealt with the issue of family violence on the question of whether the mother had a reasonable excuse for failing to comply with the orders of March 2007. The incident which occurred at the service centre could have been avoided by each party. That it was not is a measure of their lack of parental responsibility. I shall make orders which are designed to ensure the parties realise they must behave civilly at changeovers and learn to do so. As I have said, supervision of these opportunities to either behave or misbehave will teach them nothing and avoid the need they have to learn to interact and communicate effectively; something they must do for the child’s sake.

5. It is always my intention to make orders which are least likely to lead to further proceedings between the parties. I maintain that intent here. I have mentioned all the matters which I regard as relevant to determining proper orders for face-to-face contact.

6. I have the firm view that until final orders, the child should spend each weekend with her father. There should be collection at D Railway Station on Saturday morning by the father from the mother when the train which is supposed to leave L at almost eight arrives at D a bit after 9 am. The father should return the child to the mother when the train which is due to arrive at L on Sunday evening at almost 7 pm arrives at D before 6 pm. These arrangements are likely to be suitable for the child who should have no trouble waking in the morning in time to catch the train, then getting to school on the Monday morning although she has not arrived home in C until a little after 7:00pm on Sunday.

7. I shall make orders accordingly. I shall not make the telephone contact orders the mother seeks. They are likely to be too intrusive into the child’s time with the father. However, I shall permit the child to speak by telephone with the mother once each weekend while she is with the father, if the child chooses to call her. I shall not specify a time but the call should be for no more than 10 minutes. More would be too much for a child of this age. I agree that the child should call the father at the times and with the regularity requested by the mother in her application.

8. Because I regard proper contact with the father as involving each weekend until final orders can be made and because there is no practical way of providing the father with meaningful compensatory contact as a sanction for the mother’s breach of orders, I shall make no orders for such contact. However, I think a costs order or costs orders will best bring home to the mother the need to abide by orders of the Court. The mother should pay some or all of the costs of the Independent Children’s lawyer. It is not appropriate to make such an order in favour of the father. It would have little effect because he was unrepresented before Mullane J., and failed to appear at the sanction hearing before me. In any event, a costs order in his favour would have a high degree of likelihood of increasing the animosity the mother feels toward the father and this would not be in the child’s best interests. I shall stand the matter over to a day when I am next sitting in Newcastle to give all parties the opportunity to address on the precise terms of the order I should make in favour of the Independent Children’s Lawyer against the mother. The adjournment will give the Independent Children’s Lawyer the opportunity to inform the parties and the Court of his costs and of the order he seeks and the mother the opportunity to put proper evidence of her financial circumstances before the Court.

9. I can see no purpose in ordering the mother to attend a parenting course despite her non-attendance so far. The consent order of March 2007 still stands and she has made arrangements to attend Unifam, Parramatta. I am of the view that she is not committed to gaining any benefit from such a course and will merely attend so she has complied with orders of the Court. It serves no useful purpose to order any additional attendance at counselling.

I certify that the preceding fifty four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate: 

Date:  9 May 2008