PITRESSO & BAUKHAM (No.2)
[2019] FCCA 2529
•13 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PITRESSO & BAUKHAM (No.2) | [2019] FCCA 2529 |
| Catchwords: FAMILY LAW – Parenting – conflicted parental relationship – child focus not always priority for parents – consequential orders. |
| Legislation: Family Law Act 1975 (Cth), s.60CC |
| Applicant: | MR PITRESSO |
| Respondent: | MS BAUKHAM |
| File Number: | PAC 3597 of 2016 |
| Judgment of: | Judge Dunkley |
| Hearing dates: | 6 and 7 September 2018, 12 October 2018 and 5 August 2019 |
| Date of Last Submission: | 29 August 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 13 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Givney |
| Solicitors for the Applicant: | Lama Family Lawyers |
| Counsel for the Respondent: | Ms M. Rebehy |
| Solicitors for the Respondent: | Johnson Horsley Lawyers |
ORDERS
All prior parenting order are discharged.
The mother shall have sole parental responsibility for [X] born … 2013, subject to orders 8, 9, 10, 11 16, 18 and 19 hereof.
[X] shall live with her mother.
[X] shall spend time with her father:
(a)During school term time from after school Friday to before school Monday commencing the second Friday after the making of these orders and recommencing the 2nd Friday of each new school term.
(b)From 9am on the middle Sunday to 6pm on the last Sunday of Terms 1, 2 and 3 school holidays.
(c)For one half of the Term 4 school holidays being the first half in 2019/2020 and each alternate year thereafter and the second half in 2020/2021 and each alternate year thereafter.
(d)On Father’s Day from 9am to 5.30pm.
(e)At such other times as the parents agree.
Changeovers shall occur as follows:
(a)If a changeover takes place on a non-school day or outside of school hours then:
(i)The father shall collect the child from the mother or her nominee at the maternal grandparents' residence at the beginning of his time with the child.
(ii)The father shall return the child to the mother or her nominee at the maternal grandparents’ residence at the end of the father's time with the child.
(b)If changeover takes place on a school day, the father shall collect the child from school if his time with the child commences after school and the father shall return the child to school if his time with the child concludes before school.
That the parties shall keep each informed by email as soon as is reasonably practicable of:
(a)Any medical problems or illness suffered by the child, whilst in their care, and in the case of serious injury or illness, will advise the other parent within 1 hours of the injury or illness occurring, with details of the hospital or medical facility, or doctor's surgery, that has treated the child and the full name and contact details of the treating medical professional.
(b)Any medication that has been prescribed for the child.
(c)Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child.
That the parties shall notify each other of any change to their email address.
Each party can be in attendance at the child’s school for any event at which parents are invited to be in attendance.
Both parties are permitted to attend any sporting or extra‑curricular activity that the child is attending, which parents are ordinarily invited to attend.
That both parties are authorised to receive direct from the child's school a copy of the child's school reports, school photos (at that party's cost) and school newsletters from time to time.
The mother is to provide a copy of these orders to any school attended by [X].
Each of Mr Pitresso born … 1970 and Ms Baukham born … 1974 and their servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of [X] born … 2013 (female) from the Commonwealth of Australia.
[X] be and is hereby restrained from leaving the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to the preceding order by placing the name(s) of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until 31 December 2023.
Upon expiration of the period referred to in Order 14 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child names from the Watch List.
Neither party shall denigrate the other party or a member of that party’s family or household in the presence or hearing of the child nor permit the child to remain in the presence or hearing of any person who engages in such denigrative behaviour.
The father is restrained from:
(a)Being present whilst the child is bathing.
(b)Attending himself to the child’s personal hygiene consequent upon her bathing or toileting.
(c)Himself being naked in the presence of the child.
(d)Cutting the child’s hair.
(e)Apply for a passport for the child.
Each party is permitted to enrol the chid in or engage the child with any sporting or extra‑curricular activity of their choice.
Neither parent is required to facilitate the child’s attendance at or engagement with any sporting or extra‑curricular activity.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding Applications and Responses are removed from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Pitresso & Baukham (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3597 of 2016
| MR PITRESSO |
Applicant
And
| MS BAUKHAM |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Pitresso (the father) and Ms Baukham (the mother) are the parents of [X] aged 5, who was born on … 2013.
This case is about:
·Whether there is an unacceptable risk arising for [X] if she spends time with her father?
·If not, then the time [X] spends with her father?
·What order for parental responsibility is made?
·Ancillary orders including overseas travel, obtaining passports, extra‑curricular activities, the child’s surname.
There was during the hearing an issue raised as to who would possess embryos stored for the parents by their IVF provider.
Further hearing time was appointed to deal with this later issue.
Just prior to the date for further hearing, the parties’ legal representatives advised my chambers they had resolved the issue of possession of the embryos. For this reason that issue is not dealt with as part of this judgment.
It became apparent during the hearing that for the parents this case is mostly about them each having control relevant to their daughter’s life and day to day events. The parents have a history of poor interpersonal relationships with each other.
The parlous state of that relationship was brought more sharply into focus by the additional evidence lead on 5 August 2019 consequent upon leave having been granted to the mother to reopen to the case to lead further evidence.
Orders Sought
By minute of order the father sought at the final hearing the following orders:
1.The Mother and Father shall have equal shared parental responsibility for the Child, [X] (“the Child”) born … 2013.
2.Subject to Order 3, the Child shall live with the Mother and shall live with the Mother at the times specified in Order 4.
3.The child shall live with the Father as follows:-
3.1.Commencing from the date of the making of these Orders in a fortnightly cycle until 30 January 2019 as follows:-
3.1.1.In Week 1 from 5.30pm on Friday to 7.30am on Monday or 8.00pm on Monday if Monday is a public holiday
3.1.1.1.For the purpose of facilitating Order 3.1.1, the Father shall collect the Child from the Mother’s home at the commencement of his time with the Child and the Mother shall collect the Child from the Father’s home at the conclusion of his time with the Child.
3.1.2.In Week 2 from 5.30pm on Monday to 8.30pm on Monday.
3.1.2.1.For the purpose of facilitating Order 3.1.2, the Mother shall deliver the Child to the Father’s home at the commencement of time and the Father shall deliver the Child to the Mother’s home at the conclusion of his time with the Child.
3.1.3.In Week 2 from 5.30pm on Wednesday to 8.30pm on Wednesday.
3.1.3.1.For the purpose of facilitating Order 3.1.2, the Mother shall deliver the Child to the Father’s home at the commencement of time and the Father shall deliver the Child to the Mother’s home at the conclusion of his time with the Child.
3.1.4.In Week 2 from 5.30pm on Thursday to 8.30pm on Thursday.
3.1.4.1.For the purpose of facilitating Order 3.1.3, the Mother shall deliver the Child to the Father’s home at the commencement of time and the Father shall deliver the Child to the Mother’s home at the conclusion of his time with the Child.
3.2.Commencing 1 February 2019 to 30 January 2020 in a fortnightly cycle consistent with Order 3.1.
3.2.1.In Week 1 from after school on Friday to before school on Monday
3.2.2.In Week 2 from after school on Wednesday to before school on Thursday.
3.2.3.In Week 2 from after school on Monday to 8.30pm on Monday with mother to pick up from father’s home at the conclusion of the child’s time with the Father.
3.2.3.1.For the purpose of facilitating Orders 3.2.1 to 3.2.3, the Father shall collect the Child from after school and deliver the Child to school.
3.2.4.During school holidays [in a fortnightly cycle consistent with Orders 3.2.1 to 3.2.3.
3.2.4.1.In Week 1 from 5.30pm on Friday to 7.30am on Monday or 8.00pm if Monday is a school holiday
3.2.4.1.1.For the purpose of facilitating Order 3.3.4.1, the Father shall collect the Child from the Mother’s home at the commencement of his time with the Child and the Mother shall collect the Child from the Father’s home at the conclusion of his time with the Child.
3.2.4.1.2.In Week 1 from 5.00pm on Monday to 8.00pm on Monday.
3.2.4.1.2.1.For the purpose of facilitating Order 3.2.4.1.1, the Mother shall deliver the Child to the Father’s home at the commencement of his time with the Child and the Father shall deliver the Child to the Mother’s home at the conclusion of his time with the Child.
3.2.4.2.In Week 2 from 5.30pm on Wednesday to 7.30am on Thursday
3.2.4.2.1.For the purpose of facilitating Order 3.2.4.2. the Mother shall deliver the Child to the Father’s home at the commencement of time and the Father shall deliver the Child to the Mother’s home at the conclusion of his time with the Child.
3.3.From 1 February 2020 in a fortnightly cycle consistent with Order 3.2 as follows:-
3.3.1.In Week 1 from after school on Friday to before school on Monday.
3.3.2.In Week 2 from after school on Wednesday to before school on Thursday.
3.3.3.In Week 1 from after school on Monday to before school on Tuesday.
3.3.3.1.For the purpose of facilitating Orders 3.3.1 to 3.3.3, the Father shall collect the Child from after school and deliver the Child to school.
3.3.4.During school holidays [in a fortnightly cycle consistent with Order 3.3.1 and 3.3.2:-
3.3.4.1.In Week 1 from 5.30pm on Friday to 7.30am on Monday or 8.00pm on Monday if Monday is a public holiday.
3.3.4.1.1.For the purpose of facilitating Order 3.3.4.1, the Father shall collect the Child from the Mother’s home at the commencement of his time with the Child and the Mother shall collect the Child from the Father’s home at the conclusion of his time with the Child.
3.3.4.2.In Week 2 from 5.30pm on Wednesday to 7.30am on Thursday:
3.3.4.2.1.For the purpose of facilitating Order 3.3.4.2, the Mother shall deliver the Child to the Father’s home at the commencement of time and the Father shall deliver the Child to the Mother’s home at the conclusion of his time with the Child.
3.3.4.3.In Week 1 from 5.30pm on Monday to 7.30am on Tuesday with the Mother to deliver the child to the Father’s home at commencement of his time with the Child.
3.4.From 8.00am to 8.00pm on Australia Day in odd numbered years and from 8.00am to 8.00pm on Anzac Day in even numbered years.
3.5.From 8.00am to 8.00pm on Country C National Holiday which falls on 9 July each year but in the event that Country C National Holiday falls on a weekday then from 8am to 8pm on the Saturday or Sunday before or after the Country C National Holiday with the Father to provide to the Mother 14 days’ notice of which day he elects to spend time with the Child.
3.6.From 4.00pm on Easter Thursday to 12.30pm Easter Saturday in odd numbered years and from 12.30pm Easter Saturday to 8.00pm on Easter Monday in even numbered years.
3.7.From 11.00am on Christmas Eve to 11.00am on Christmas Day in even numbered years;
3.8.From 11.00am on Christmas Day to 11.00am on Boxing Day in odd numbered years.
3.9.From 11am on Boxing Day in even numbered years to 8.00pm on 9 January the following year.
3.10.From after school to 8.00pm when the Child’s birthday falls on a weekday and the Child is not otherwise spending time with the Father, or if the Child’s birthday falls on a weekend then from 8.00am to 1.45pm in even numbered years, and 1.45pm to 8.00pm in odd numbered years.
3.11.From after school to 8.00pm on the Father’s birthday when the Father’s birthday falls on a weekday and the Child is not otherwise spending time with the Father, or from after school on Friday to 8.00pm on Sunday if the Father’s birthday falls on a weekend.
3.12.From 5.00pm on Saturday before Father’ Day to 8.00pm on Father’s Day unless the Father is already spending time with the Child.
3.13.At all other times as agreed by the parties in writing.
4.Notwithstanding the provisions contained in Order 3, the Child shall spend time with the Mother as follows:
4.1.From 8am to 8pm on Australia Day in even numbered years and from 8.00am to 8.00pm on Anzac Day in odd numbered years.
4.2.From 4.00pm on Easter Thursday to 12.30pm Easter Saturday in even numbered years and from 12.30pm Easter Saturday to 8.00pm on Easter Monday in odd numbered years.
4.3.From 11.00am on Christmas Eve to 11.00am on Christmas Day in odd numbered years;
4.4.From 11.00am on Christmas Day to 11.00am on Boxing Day in even numbered years.
4.5.From 11.00 Boxing Day in odd numbered years to 8.00pm on 9 January the following year.
4.6.From after school to 8.00pm when the Child’s birthday falls on a school day and the Child is not otherwise spending time with the Mother, or if the Child’s birthday falls on a weekend then from 8.00am to 1.45pm in odd numbered years, and 1.45pm to 8.00pm in even numbered years.
4.7.From after school to 8.00pm on the Mother’s birthday when the Mother’s birthday falls on a school day and the Child is not otherwise spending time with the Mother, or from after school on Friday to 8.00pm on Sunday if the Mother’s birthday falls on a weekend.
4.8.From 5.00pm on the Saturday before Mother’s Day to 8.00pm on Mother’s Day unless the Mother is already spending time with the Child.
4.9.at all other times as agreed by the parties in writing [or by text message].
5.The Mother and Father are not to telephone to speak to the Child whilst the Child is spending time with the other parent unless that parent has been informed that the Child is not well pursuant to Order 24.
6.The Child may communicate with the other parent at any time the Child requests and the parent that the Child is spending time with will facilitate communication with the other parent.
7.The Mother and Father are restrained from entering each other’s place of residence.
8.The Mother and Father are only to communicate with each other concerning matters relating to the Child and such communication is to be in writing which includes SMS and email
9.For the purpose of these Orders, school holidays shall be the holiday dates published by the New South Wales Department of Education and Training for the relevant period in each year.
10.The Mother shall have responsibility for making decisions for the day-to-day issues of the Child when she lives with her and the Father shall have responsibility for making decisions regarding the day-to-day care issues of the Child when she lives with him.
11.Each party shall notify the other, not less than 7 days before any change to their address and not more than 24 hours after any change to their landline and/or mobile telephone numbers and/or their email address.
12.That the Mother and Father shall each be permitted to take the Child for a total of no more than 15 days for the purposes of holidays each calendar year and subject to the following:
12.1.any unused holiday time does not carry forward to the following year.
12.2.so far as practical the occasions, on which the Mother or Father take the Child on holidays, are to coincide with normal school holidays.
12.3.the Mother and Father will not later than 12 weeks prior to the commencement of any overseas holiday and 4 weeks prior to the commencement of any holiday within NSW or interstate furnish to the non-travelling parent an accurate itinerary to include the departure date and return date and the country or countries the travelling parent and the Child will be travelling to, the approximate dates on which the travelling parent and the Child will arrive and depart each country and a telephone number and address at which the travelling parent and the Child can be contacted in each country.
12.4.the non-travelling parent shall have contact (including but not limited to telephone, Skype or email) with the Child on 1 occasion each week between 5.30pm and 6.00pm.
12.5.the non-travelling parent will not seek an order for the immediate return of the Child in the event of their return to Australia being held up by unforeseen circumstances such as airline strikes or adverse weather conditions beyond the travelling parent’s control.
12.6.the non-travelling parent shall not request make up time with the Child on the Child’s return from holidays and the provisions of Order 2 and Order 3 shall continue as if the Child had not travelled interstate or overseas.
12.7.once every 3 calendar years each parent may travel with the Child up to 28 days provided that the Child is not to be absent from school for more than 8 days of school with each parent in each 3year period for the purpose of holidays and Father and Mother shall provide to the non-travelling parent 6months written notice of their intention to travel overseas pursuant to this Order.
12.8.the period between Boxing Day and 9 January of the following year is included in the holiday periods that each parent takes the Child on holidays in accordance with Order 13.7.
12.9.the Mother and Father are restrained from informing the Child of the other parents’ holiday plans with the Child.
13.That the Child be removed from the Family Law Watch List.
14.That the Father shall retain the Child’s Language D and Country C Passports in his possession.
15.That the Australian Passport shall be retained by the Father on the Mother’s return from her overseas holiday with the Child and the Mother shall retain the Child’s Australian Passport on return of the Father’s overseas holiday with the Child.
16.The Mother and Father shall do all acts and things and sign all documents necessary to obtain an Australian Passport for the Child and shall 6 months prior to the expiration of each passport do all acts and things and sign all documents necessary to renew each of the Child’s passports to ensure that the Child has at all times a valid Australian, Country C and Language D passport.
17.That the Mother and Father shall forthwith authorise any childcare centre, pre-school or school the Child may attend to provide to the other parent photocopies of reports, newsletters and announcements of centre/school activities, or otherwise pertaining to the education of the Child, or if none have been made available in writing, then the Mother and Father shall provide written particulars, which includes by email, of such reports and/or activities to the other parent within 3 days of such documents or particulars being received by that parent from the school, and the Mother and Father shall authorise staff members at any Childcare centre, pre-school and school the Child may attend, to discuss the Child's progress with the other parent.
18.That within 7 days of the date of these making of these Orders, the Mother and Father shall do all acts and things and sign all documents necessary to enrol the Child in Language D Parents Group at Suburb E Community Aid at F Road, Suburb E and the Child shall commence attending in the first week after the Child’s enrolment is accepted by Language D Parents Group and the Child’s enrolment at Language D Parents Group shall conclude 1 week prior to the Child’s enrolment in Kindergarten on 30 January 2019.
19.That the Mother and Father shall do all acts and things and sing all documents necessary to enrol the Child at G School, Suburb H with the Child’s enrolment to commence in the first week of Term 1 in 2019.
19.1.The Child shall continue attending at G School until such time as the Mother and Father agree in writing to terminate the Child’s enrolment at school.
19.2.The Mother and Father shall do all acts and things to ensure that the Child attends at G School.
20.That the Mother and Father should do all acts and things necessary to enrol the child at Suburb L.
21.To facilitate the Father’s residency with the child after she commences school the Mother shall be responsible for the payment of before school care and after school care should the Father be required to utilise such facilities provided that such payments do not occur more than twice per week in any week during school terms.
22.The Mother and Father shall do all acts and things and sign all documents necessary to enrol the Child in:
22.1.Sports at Area J Sports Club commencing 1 February 2018.
22.2.Music lessons at Music School, Area J, with lessons to commence on 1 April 2018.
22.3.Sports, with Suburb K Sports Club commencing 1 February 2019
23.Each parent is permitted to attend all childcare centre, pre-school and school activities, functions, sporting events and all other extra‑curricular activities organised by the Child’s childcare centre, pre-school or school to which parents are invited to attend.
24.The Mother and Father shall provide to each other the names, addresses and telephone numbers of all medical professionals who may treat the Child and authorise each of the medical professionals in writing to provide copies of any test results, letters of referrals, reports, and letters received from other medical professionals to the Father and authorise them to discuss any aspect of the Child's health with the Father.
25.Each party shall notify the other, as soon as possible and no later than 1 hour after any serious injury or illness is suffered by the Child whilst with that party and provide the name and telephone number of the medical professional that the Child has attended and details of the injury or illness suffered by the Child.
26.The Mother and Father shall ensure that the Child’s “Blue Book” (health record book) is available at each medical appointment that the Child attends and the party who brings the “Blue Book” shall provide the “Blue Book” to the other parent at the conclusion of each medical appointment
27.That each party shall use their best endeavours that the Child attends all sporting and extra-curricular activities in which the Child is enrolled and at which attendance is required during the period of time the Child lives with each respective parent.
28.Each party shall keep the other informed of all sporting, religious, cultural and educational activities in which the Child is involved.
29.The Mother and Father shall not enrol the Child in pre-school, before school care, after school care, primary school or secondary school or extra-curricular activity, without the other parent’s written consent.
30.In the event either party wishes to enrol the child in extra‑curricular activity other than as determined in Order 22, the following shall apply:
30.1.The parent wishing to enrol the Child in an extra‑curricular activity shall provide to each other 1 month’s written notice of their intention to enrol [X] in such activity;
30.2.The Mother and Father shall ensure that the other parent is listed on the enrolment form and as the point of contact;
30.3.The Mother and Father shall be entitled to attend all extra‑curricular activities that the Chid is enrolled;
30.4.The Mother and Father are to inform the parent 1 hour before [X]’s scheduled extra-curricular activity if she will not be attending on any particular day.
31.The Mother and Father shall not withdraw the Child’s enrolment from a pre-school, before school care, after school care, primary school or secondary school or extra-curricular activity, without the other parent’s written consent.
32.The Mother and Father shall provide to the other parent 1 month’s written notice of their intention to change, terminate or modify [X]’s health fund cover
33.The Mother and the Father shall follow the recommendations of the Child’s treating doctor to ensure that her Body Mass Index remains below the “Overweight” index.
34.The Mother and Father shall not denigrate each other to the child or in the presence of hearing of the child and will endeavour that members of their respective families do not denigrate the other parents to the child or in the presence or hearing of the child.
35.The Mother and Father shall do all acts and things and sign all documents necessary to contact IVF Australia and request that all embryos be destroyed.
Initially by minute of order, the mother sought the making of the following orders:
1.That the mother shall have sole parental responsibility for the child [X] born … 2013 (the child) and except in the event of an emergency, before making any decisions about major long term issues in relation to the child, the mother will consult with the father as follows:
(a)Advise the father in writing not less than 21 days in advance of any decision on major long-term issues in relation to the child proposed to be made by the mother;
(b)Provide the father with all relevant information relating to the major long term issue which is in the possession of the mother.
(c)Provide any necessary authorities to enable the father to obtain any additional information from any relevant health or educational institution;
(d)Consider any response from the father before making a decision; and
(e)Inform the father of any decision made as soon as reasonably practicable and no later than 7 days after the making of the decision.
2.The child shall live with the mother.
3.The child shall spend time with the father as agreed in writing between the parties and failing agreement as follows:
(a) In a two week cycle:
(i)Each alternate weekend from Friday after school (or 3pm) to 5.30pm Sunday.
(ii)In the alternate week, from after school Thursday to 7pm.
(b)On Father's Day from 9am until 7.30pm.
(c)In 2018, and in each even numbered year, from 2pm on Christmas Day until 5pm on Boxing Day.
(d)In 2019, and in each odd numbered years from 11am on Christmas Eve until 2pm on Christmas Day.
(e)From 3pm on 31 December in each odd numbered year until 7pm the following day (1 January).
(f)From 9am until 6pm on Australia Day in 2019 and all odd numbered years thereafter.
(g)From 9am until 6pm on Anzac Day in 2020 and all even numbered years thereafter.
(h)From 9am until 7.30pm on Country C National Holiday in 2019 (or on the Saturday or Sunday closest to that day) at those times.
(i)On the father's birthday from after school until 7.30pm if it falls on a night when there is school the next day or for 24 hours if it falls on a Friday or Saturday.
(j)For half of Easter in 2019, namely from after school on Thursday before Good Friday until 12.30pm on Easter Saturday each year.
4.The father's time with the child is suspended (and the child shall be with the mother) on the following special occasions:
(a)For the mother's birthday from 9am on 19 January to 9am on 20 January in each year.
(b)From 5pm on the Saturday preceding Mother's Day until school on Monday.
(c)From 9am until 6pm on Australia Day in 2020 and all even numbered years thereafter.
(d)From 9am until 6pm on Anzac Day in 2019 and all odd numbered years thereafter.
(e)During one half of each of the NSW school holiday periods as nominated by the mother, provided she gives 14 days' notice to the father.
(f)From 11am on Christmas Eve until 2pm on Christmas Day in even numbered years.
(g)From 2pm on Christmas Day until 5pm on Boxing Day in odd numbered years.
(h)From 3pm on 31 December in each even numbered year until 7pm the following day (1 January)
(i)From 12.30pm Easter Sunday till 5pm Easter Monday each year.
5.The father shall within 14 days of these orders, and at his cost, obtain a referral to a clinical psychologist for diagnosis and treatment, and attend treatment for a period of not less than 6 months or such further period as recommended by the treater, and shall provide the mother with a report confirming that he has been compliant with treatment.
6.Leave is granted to the father to provide a copy of the Family Report dated 2 June 2017 and these orders to any of his treating medical practitioners. And the father shall provide the family report and these orders to his clinical psychologist in order 5 above.
7.In the event the father complies with order 5 above, then the child shall spend time with the father as follows:
(a) For a period of 12 months, in a two week cycle:
(i)Week 1 - from after school Friday until school on Monday (or until 9am if it is a non-school day);
(ii)Week 2 - from after school until 7pm Thursday.
(b) Thereafter, in a two week cycle:
(i)Week 1 - from after school Friday until school on Monday (or until 9am if it is a non-school day)
(ii)Week 2 - from after school Thursday until before school Friday (or until 9am if it is a non-school day).
(c)For a block period of up to 5 days, in 2019: and for up to 15 days (14 consecutive nights) from 2020 and each year thereafter providing that:
(i)the father gives the mother not less than 28 days’ notice of the dates he intends to spend with the child.
(ii)Such time does not coincide with the mother's special occasion contact provided for in the orders above.
(iii)If the father is travelling (in Australia) with the child, he shall provide the mother with details of all addresses at which the child will be staying, any applicable flight numbers and contact telephone numbers that can be used to contact the child during the holiday.
8.That in the event that the child makes a reasonable request to telephone the other parent, the parent with whom the child is living or spending time, shall do all things to cause the other parent's home number to be dialled and to place the child on the phone to speak to that parent.
Changeovers
9.Changeovers shall occur as follows:
(a)If a changeover take place on a non-school day, outside of school hours, or before the child commences kindergarten then:
(i)On Mondays, Tuesday, Wednesdays and Thursday, the father shall collect the child from the maternal grandparents' residence at the beginning of his time with the child.
(ii)On Fridays, Saturdays, Sundays or public holidays, the father shall collect the child from the mother's residence at the beginning of his time with the child.
(iii)The mother shall collect the child from the father's residence at the end of the father's time with the child.
(b)Once the child commences kindergarten, the father shall collect the child from school if his time with the child commences after school and the father shall return the child to school if his time with the child concludes before school, but otherwise all changeover shall occur in accordance with order 9(a) above.
Information Sharing
10.That the parties shall keep each informed as soon as is reasonably practicable of:
(a)Any medical problems or illness suffered by the child, whilst in their care, and in the case of serious injury or illness, will advise the other parent within 1 hours of the injury or illness occurring, with details of the hospital or medical facility, or doctor's surgery, that has treated the child and the full name and contact details of the treating medical professional.
(b)Any medication that has been prescribed for the child.
(c)Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child.
11.That the parties shall provide each other with their contact details (residential address, telephone number, mobile phone number and email address) at all times and advise of any change to their residential address at least 7 days in advance of the change occurring.
Education
12.That each party shall forthwith do all things and sign all necessary document to cause the child to be enrolled into Suburb L Primary School for the 2019 school year and thereafter each party shall be restrained by injunction from changing the child's enrolment.
13.That pending the child's commencement at Suburb L Primary school, that each party is restrained from changing the child's current enrolment at Preschool M.
14.Both parties are permitted to attend any school, sporting or extra‑curricular activity that the child is attending, which parents are ordinarily invited to attend.
15.That both parties are authorised to receive direct from the child's preschool or school a copy of the child's school reports, school photos (at that party's cost) and school newsletters from time to time.
Airport Watch list.
16.That the Applicant Father Mr Pitresso born … 1970, his servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal of the child [X] born … 2013, from the Commonwealth of Australia.
17.It is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in forces at all points of arrival and departure in the Commonwealth of Australia (both air and sea) and maintain the child's name on the Watchlist until the Court orders its removal.
18.The mother is authorised to apply to the Registrar of Births, Deaths and Marriages to enable the child "[X]" born … 2013 to be registered as "[X]-Baukham" or [X] Baukham-Pitresso".
19.In the event that the father fails or refuses to facilitate the change of name referred to in the preceding order, the mother is authorised, pursuant to these orders, to provide her consent to the change and the Court hereby dispenses with the need for the father to provide his consent.
20.The mother is authorised, pursuant to these orders, to apply for an Australian passport for the child and the Court hereby dispenses with the need for the father to provide his consent to the issue of the passport.
21.That the mother shall retain the following documents on behalf of the child:
(a)The child's Australian passport;
(b)The child's Language D, Country C passport, and any other passports in the child's name that the father has in his possession;
and for the purposes of this order, the father shall surrender any such document named above to the mother within 7 days of these orders.
Restraints
22. The father is restrained by injunction from:
(a) Undressing in the presence of the child.
(b) Bathing the child or otherwise attending to the child's hygiene.
(c) Permitting the child to see him naked.
23.That the father shall be restrained from cutting the child's hair, or otherwise causing the child to have a haircut.
24.The father is restrained by injunction from applying for or obtaining a Language D and/or Country C passport for the child.
25.The father is restrained from enrolling the child in any sporting or extra-curricular activity that would involve a commitment from the mother in terms of cost or an obligation to take the child to such activity during periods that the child lives with the mother, without the mother's written consent.
26.That the father shall not take the child to a hospital or medical practitioner, without first obtaining the mother's written consent, except in the case of an emergency.
Costs
27.That the father pay the mother's costs of and incidental to these proceedings.
Notation
The parties agree that neither of them will deal with their embryos held by IVF Australia without the written agreement of the other.
Upon re‑opening of the case the mother’s position changed and she sought the following orders:
1.That the Mother shall have sole parental responsibility for the child [X] born … 2013 (the child)
2.The child shall live with the mother.
3.The child shall not spend time with the father except as agreed in writing between the parties.
4.That the Applicant Father Mr Pitresso born … 1970, his servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal of the child [X] (or [X]-Baukham) born … 2013, from the Commonwealth of Australia.
5.It is requested that the Australian Federal Police give effect to this Order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia (both air and sea) and maintain the child's name on the Watchlist until the Court Orders its removal.
6.The Mother is authorised, pursuant to these Orders, to apply for an Australian passport for the child and the Court hereby dispenses with the need for the Father to provide his consent to the issue of the passport.
7.That the Mother shall retain the following documents on behalf of the child:
(a) The child's Australian passport;
(b) The child's Language D, Country C passport, and any other passports in the child's name that the Father has in his possession;
and for the purposes of this Order, the Father shall surrender any such document named above to the Mother within 7 days of these Orders.
8.The father is restrained by injunction from applying for or obtaining a Language D and/or Country C passport for the child.
9.That the Father pay the Mother's costs of and incidental to these proceedings.
Documents
·Father’s affidavits sworn 6 April 2018, 16 July 2018, 2 August 2018, 11 April 2019 and 5August 2019
·Affidavit of Ms N sworn 28 March 2018
·Affidavits of mother affirmed 28 March 2018, 23 May 2018, 12 July 2018, 5 March 2019 and 30 July 2019 (with tender bundle)
·Affidavit of Mr O Baukham affirmed 28 March 2018
·Affidavit of Dr P affirmed 5 April 2018
·Family Report by Family Consultant Mr Q dated 2 June 2017
·Written submissions from counsel for the mother received on 19 August 2019 and from counsel for the father received on 29 August 2019
·Exhibits
Chronology
| … 1970 | Father born |
| … 1974 | Mother born |
| 2009 | Parties start living together |
| … 2013 | [X] born |
| 21 February 2015 | Parents separate |
| August 2015 | [X] conferred with Country C citizenship at Consulate |
| 4 August 2016 | Father files Initiating Application |
| 14 September 2016 | Interim parenting orders made by consent: · [X] lives with mother · [X] spends time with father: - in week 1 alternate Wednesday 4.30pm to 7.30pm - in week 2 alternate Thursday 4.30pm to 7.30pm - Alternate weekends 4.30pm on Friday to 7.30pm on Sunday |
| 6 May 2018 | [X] first tells mother she takes her father’s clothes off |
| 15 May 2018 | Mother makes report to FACS on their helpline |
| 24 May 2018 | [X] interviewed by FACS caseworkers at her preschool |
| 28 May 2018 | Scheduled final hearing adjourned on father’s application Interim orders made for father to have supervised time with [X] |
| 6 August 2018 | Rescheduled final hearing adjourned due to illness of mother’s counsel |
| 6 & 7 September 2018 and 12 October 2018 | Final hearing. Decision reserved |
| 6 March 2019 | Mother files Application in a Case seeking leave to re-open |
| 14 June 2019 | Mother granted leave to re-open |
| 5 August 2019 | Further hearing. Written submissions ordered. Decision to be reserved |
Evidence
Each of the parents filed lengthy affidavits and subsequent affidavits trawling in minute detail into aspects of their life together both before and after the birth of [X]. On 5 August 2019 the focus of the evidence turned to a volume of emails and legal correspondence sent during the period after 12 October 2018.
It is clear both parents are “heavily invested” in this case and took many opportunities to criticise the other and, in their email and oral communication, denigrated the other.
Leaving aside the verging on obsessional nature of the above evidence it is clear both are very devoted parents to [X].
Unwisely the father indulged [X] in 2 sets of “playful interactions” in which she undressed him preparatory to their showering and in one of the incidents [X] touched his penis.
These actions of the father were not intentionally sinister. The father described them as funny and innocent. To my mind, unwise and unthinking is a better description. During the second incident, the father became alert to how unwise the incidents were and put a stop to it and there has been no repetition.
The mother has also described what she considers to be sexualised behaviour by [X], which the mother says [X] has told her is encouraged by the father.
Those incidents were notified to FACS. The initial notification resulted in a FACS investigation which caused the making of interim supervised time with orders on 28 May 2018. The later notification to FACS were not investigated because by then the mother had ceased to permit [X] to spend time with her father.
The orders of 28 May 2018 were subsequently discharged by consent on 6 August 2018.
On 25 June 2019 NSW Police took out a provisional AVO on the mother’s behalf. On 10 July 2019 the Area J Local Court granted an interim AVO to protect the mother. As a consequence of these orders the mother again ceased to allow [X] to spend time with her father.
[X] attends a Language D school on weekends and is well on the way to becoming bi‑lingual in Language D and English with English being her first and currently most fluent language.
In recent years the father has become fixated on [X]’s health including on [X]’s weight despite evidence from [X]’s paediatrician Dr P that there is little to be concerned about.
The father during the time the parents lived together was very controlling of the mother. Well after separation from mid October 2018 he embarked upon a course of emailing the mother that was foul and objectionable in its personalised content.
He is prone to stressful and anxious reactions and in one instance damaged a neighbour’s car in the midst of a stressful and anxious over‑reaction. He demonstrates limited capacity to restrain his denigrative behaviour of the mother.
He has a generalised anxiety disorder and has consulted Dr Q about this. His treatment seems not to have borne any positive improvement for him especially in relation to his interactions with the mother.
The father also engaged in denigration of the mother. In the past he has physically assaulted her on occasions.
The father said [X] has Language D, Country C and Australian citizenship. She previously had a Language D passport but it has now expired.
He has family in Country C. He would like [X] to visit them in Country C.
He lives in Suburb R.
He has re‑partnered with Ms N although they don’t live in the same home.
The mother has also perpetrated family violence on one occasion by grabbing the father’s testicles.
The mother lives in Suburb L and works most days in the city and one day from home.
[X] is in kindergarten at Suburb L Public School, which is a seven minute walk from the mother’s home.
The mother still permits [X] to co‑sleep with her.
The mother and her father, Mr O Baukham are both anxious about [X]’s interactions with her father and both feel [X] is intimidated by her father. The mother asserts and strongly believes [X] is at risk of harm both sexually, emotionally and psychologically if [X] were to spend time with the father.
Family Consultant – Mr Q
He interviewed the parents and [X] on 28 May 2017.
He also interviewed the mother’s parents and the father’s partner, Ms N. His Family Report became exhibit D.
Mr Q observed a mutually involved and substantial relationship existed between [X] and her father.[1]
[1] Family Report paragraph 41
Mr Q observed a close and affectionate relationship to exist between [X] and her mother.[2]
[2] Family Report paragraph 42
Mr Q described [X] as a “robust three year old who appeared to be emotionally secure with a strong relationship to both parents … who indicated some distress when required to part from her mother”.[3]
[3] Family Report paragraph 43
In paragraphs 47 to 51 of the Family Report, Mr Q expressed a number of opinions arising from his interviews:
47. When observed with the parties [X] impressed as a robust child. It was clear that she loves both parents; her interaction with each was affectionate and involved. Her reluctance to part from Ms Baukham however, may be significant and indicate that she is primarily attached to her mother. Mr Pitresso said that he was excluded, by Ms Baukham, from attending to [X] when she was a baby, and since the child was fifteen months old she has been in Ms Baukham care predominantly. Thus, [X]’s opportunity to develop an attachment to her mother was greater. It seems that Ms Baukham has been the parent who has provided the child with nurturing and care, and that attachment, a normal process binding a child to her caregiver during her formative years, has occurred and will continue to occur until she starts school. A substantial change in parenting arrangements or the withdrawal of her primary attachment figure is likely to interrupt the attachment process, damage [X]’s emotional security, and reduce her ability to function socially as an adult. Mr Pitresso was not critical of Ms Baukham parenting or nurturing ability and nothing emerged to suggest that she is an inadequate parent.
48. Although Ms Baukham may be [X]’s primary attachment figure, it was apparent that Mr Pitresso an important and significant figure for [X] and she should spend as much time as possible with him. The assessment does not, however, indicate that she should eventually leave her mother’s care by progressing towards living with her father, unless she is at risk of harm or abuse; and nothing emerged to suggest that she is. It might also be noted that [X]’s maternal grandparents have been a constant source of care and attention since her birth. If [X] were to live with Mr Pitresso then it is probable that the child’s separation from her grandparents would be detrimental.
49. As indicated above, it was apparent that open hostility is not a feature of the parties’ relationship. It was clear, however, that they do not communicate to the extent that each wants sole parenting responsibility. Therefore, apart from attachment, the parties’ relationship is a significant issue related to the determination of this matter.
50. The parties’ failure to communicate and confer, contraindicates an equal care parenting arrangement. Equal care parenting, requires clear and unambiguous parenting information about health, education, day to day schooling, emotional state, recreation arrangements, social activities, and peer group involvement to be passed between parents. Parents need to be able to discuss the events and subtleties of the child’s life freely so that her management, between homes, can follow with as little disruption as possible. [X] needs parenting arrangements that are reliable, predictable, and dependable and she needs those arrangements to be conducted within a relatively amicable atmosphere. If she senses hostility, by the parties’ failure to communicate personally, then she may become emotionally caught in the uncertain confusion of her parents’ antagonism. Within the context of equal care, the incongruity of having parents who love her, but do not love each other may become more acute, emotionally damaging, and confusing; and this confusion may lead to a dissonance which the child may resolve by aligning with one parent and rejecting the other.
51. Accordingly, [X] might live with one parent and spend time with the other. Such an arrangement is necessary because the parties do not possess the qualities necessary for successful equal care parenting, and sole parenting responsibility would, by definition, exclude meaningful communication.
Mr Q concluded his report with a number of recommendations as follows:
· [X] live with her mother and spend time with her father as is presently ordered.
· When she starts school she might spend time with her father on alternate weekends from after school on Friday to before school on Monday, plus on one evening during the intervening week from after school to before school the next day.
· [X] might spend half the school holidays with each parent.
When he was cross examined he expressed an opinion that [X] would benefit from spending 4 nights per fortnight with her father and otherwise live with her mother. He thought in 2 or 3 years’ time [X] could spend 5 nights a fortnight in the care of her father.
The mother regards the report as out of date and no longer reflective of [X]’s relationship with her father. She has repeatedly sought to have a Part 15 expert prepare a new family report and assess the father’s mental health. Her first such application was made prior to the final hearing, and then at the start of the final hearing. The application was rejected. She again tried for such an order at the re‑opening. Again her request was dismissed.
Determination
The father is often abusive of the mother in his email communication, especially since October 2018. He seeks to excuse his behaviour. He has made insincere apologies for the behaviour. There is no excuse acceptable for his behaviour. His comments were gratuitous, offensive, denigrative, intimidatory and inflammatory.
Given the mother’s anxious personality, she finds the volume, tone, content and frequency of the father’s emails to be overwhelming and counter‑productive to her good parenting. It is entirely reasonable and understandable that she feels this way.
It is not possible in these circumstances, for the parents to make joint decisions about long term issues relevant to [X].
Sole but not unfettered parental responsibility will be vested in the mother. Such an order is in [X]’s best interest. Whatever her short comings she has a demonstrated capacity to be able to focus on promoting good outcomes for [X]. The father is too self‑absorbed and prone to frustration to be continuously child focussed.
[X] has an attached loving relationship with her mother that should not be disturbed.
Too many nights in the care of her father, absent her mother, might cause distress for [X] given the father’s tendency towards frustration motivated behaviour. His more obsessive nature, over time, may become apparent to [X]. To date, it has not.
The strength of [X]’s relationship with her father helps limit the anxiety she experiences moving from her mother’s care to her father’s care. Several days in one block in the care of her father is sustainable for [X], without disrupting her relationship with her mother in the opinion of the consultant. The evidence from the mother is [X] enjoys their interactions.
There is little evidence about [X]’s views.
What there is, is inferential and often relayed to one parent in the absence of the other, thereby likely indicating a desire within [X] to please the listening parent.
[X] has a relationship with the father’s partner, Ms N, and with her maternal grandparents that is unconcerning.
The parents are very poor communicators.
The father’s generalised anxiety condition and propensity to catastrophise, don’t help with parental communication.
The mother’s propensity to act unilaterally, and not seek input from the father, does not help parental communication. Nor does his incessant emailing of the mother help in their communication.
[X] is now settling into primary school.
[X] is well treated by her general practitioner and by her paediatrician, Dr P.
Mutual family violence has during the parents’ relationship and the time they lived together not helped the parents develop a mutually respectful post separation relationship. The existing interim AVO might help to moderate the father’s behaviour. The AVO as currently exists, has the usual conditions about family law orders.
[X] has, until June 2019, had a reasonable period of experiencing overnight care by her father and living with her mother. There is no evidence that causes me to conclude that parenting arrangements was not beneficial for [X].
The father I am satisfied is now much more circumspect about bathing and toileting arrangements for [X].
There is no unacceptable risk of sexual harm to [X] arising from her father. He loves her dearly and would not intentionally harm her. Restraining orders will serve as a useful reminder to him.
There is no risk of emotional or psychological harm for [X] in spending time with her father. Transient harm is possible arising from conflicted behaviours between the parents at changeovers. As far as possible, changeovers at school without both parents being involved mitigates this risk. On other days, changeovers at the maternal grandparents’ home can achieve the same outcome.
Any change from living with her mother and spending time with her father will not be in [X]’s best interest in the opinion of Mr Q and I give significant weight to this opinion. Although the report dates from 2017, it is still reliable evidence.
Both parents live in Sydney’s suburbs and issues of practical difficulty and expense will not arise from the parenting orders in this case.
The father’s capacity as a parent is not diminished by his generalised anxiety disorders. It does, however, diminish his capacity to co‑parent.
The mother is a very capable parent but a parent who needs to guard against being dismissive of the importance of [X]’s relationship with her father.
Both parents need to focus on relaying to [X] by word and action the importance of the other parent having a continuing relationship with her.
In recent times there has not been any physical family violence between the parents, they have however, mainly the father, perpetrated denigrative and demeaning behaviour which is a form of family violence.
[X] is now enrolled at primary school presumably with the surname “Pitresso”. All her medical records are in this name.
No name change for these two reasons is in her best interest, adding the mother’s surname to Pitresso in a hyphenated form might increase [X]’s identity with her mother. However, there is a greater risk it would send a negative message to her about her important relationship with her father, especially given her mother’s propensity to act in ways that diminish the importance of that father/daughter relationship.
Spending 3 nights per fortnight during school terms in her father’s care from Friday after school to Monday before school, is on balance, having regard to the above reasons, in [X]’s best interest.
A week during each shorter term school holiday and one half of the longer school holiday is not too great an expansion to be contrary to [X]’s best interest. It also adds meaning to the father/daughter relationship in a way that enhances the benefit of that relationship for [X].
I am not satisfied that the father will be able to refrain from his tendency to email the mother in a denigrative, abusive and intimidatory fashion once the AVO has expired. His tendency to act out of frustration in a self-absorbed way is too longstanding to give confidence. This tendency of the father negatively impacts on the mother’s parenting and that does not benefit [X]. Additional it creates for the mother tension leading up to changeovers. Too frequent changeovers or too long periods of time for [X] with her father, raises the mother’s anxieties and limits her parenting capacity.
On balance 3 night periods each fortnight with longer school holiday periods are the maximum that are beneficial at this time for [X], so as to ensure her mother who has the majority of her care is not compromised in her parental capacities. It also reduces the number of changeovers and any disruption for [X] in moving from one parenting style to another, where the parents have such divergent views on [X]’s health, the types of activities that she enjoys and the capacity to in a non‑conflictual way, co‑parent.
A continuation of the Watch List order until 31 December 2023, by when [X] will be 10, will enable a settling into the above regime. Thereafter [X] can travel overseas with either parent during the time she is in their respective care.
At that time, [X] will have strong Language D language skills which will benefit from exposure to and immersion in Language D or Country C culture and heritage she shares with her father.
The father’s long term relationship with Ms N, and the length of time the father has lived and worked in Australia, mitigate any risk he would retain [X] overseas.
Each party can enrol [X] in extra‑curricular activities as they please.
The other parent will not be required to consent to, or support that engagement, and will not be required to cause [X]’s engagement with those activities if they are not the enrolling parent, whilst [X] is in their care. This is a form of parallel parenting intended to limit the need for parental consensus. Whilst it might be somewhat disruptive for [X], it is better than the current conflict between the parents. In time, the parents might learn to focus on [X] in this aspect rather than their own agendas. If not, [X] will only have semi regular attendance at activities. She will still attain a benefit.
Conclusion
A more communicative and respectful and child focussed post separation parenting relationship will need to be established before it is likely a greater sharing of parenting responsibility relevant to [X] will be in her best interest. Given the long history of parental conflict, it is unlikely that they will develop a cordial parental relationship which will be a prerequisite before long periods of time between [X] and her father would be in [X]’s best interest.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Dunkley
Associate:
Date: 13 September 2019
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