POINTER & CHEADLE

[2017] FCCA 3356

FEDERAL CIRCUIT COURT OF AUSTRALIA

POINTER & CHEADLE [2017] FCCA 3356

Catchwords:
FAMILY LAW – Parenting – interim – 5 year old Child – time arrangements with Father – parenting capacity – Mother’s ability to support relationship between Child and the Father – Child to spend regular overnight time and holiday time with Father.

Legislation:

Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 61DA, 65D, 65DAC

Applicant: MR POINTER

Respondent: MS CHEADLE

File Number: SYC 7392 of 2013

Judgment of: Judge Sexton

Hearing date: 23 November 2017

Date of Last Submission: 23 November 2017

Delivered at: Sydney

Delivered on: 27 November 2017

REPRESENTATION

Solicitors for the Applicant: In person

Counsel for the Respondent: Ms Sproston

Solicitors for the Respondent: Swaab Attorneys

ORDERS

Orders made by consent on 23 November 2017

THE COURT ORDERS BY CONSENT AND PENDING FURTHER ORDER THAT:

1. The Child X, born (omitted) 2012, (“X”) live with the Mother.

2. The Mother and Father do all acts and things and sign all documents to commence and continue to attend family therapy with Mr P of Relationspace with the Mother and Father to meet the costs of any joint therapy and/or therapy with X equally and otherwise be solely responsible for the costs of any individual therapy.

3. Without admissions the Mother and Father be restrained from denigrating the other party in the presence or hearing of X.

4. Without admissions the Mother and Father be restrained from discussing the proceedings in the presence of hearing of X.

5. Both parents be at liberty to attend X’s extra-curricular events and activities including, but not limited to, concerts and awards celebrations.

THE COURT FURTHER ORDERS PENDING FURTHER ORDER THAT:

1. With the exception of orders made on 23 November 2017, all previous parenting orders be discharged.

2. X spend time with the Father during school terms as follows:

   (a)Each alternate weekend commencing Friday 1 December 2017 from after daycare/school/after school care on Friday until before daycare/school/before school care on Monday, with the exception of the Mother’s Day weekend when X will live with the Mother and spend the following two weekends with the Father to reinstate the alternate weekend pattern.

   (b)Each alternate Thursday commencing Thursday 7 December 2017 from daycare/school/after school care until before daycare/school/before school care on Friday.

   (c)Commencing Monday 11 December 2017 (the Monday following X’s weekend with the Mother) each alternate Monday afternoon from after daycare/school/after school care until 7.00 pm.

   (d)On X’s birthday from daycare/school/after school care until 6 p.m or if a weekend, from midday until 6 p.m.

   (e)On Father’s Day from 10 a.m. until 5 p.m. if a non-contact weekend.

   (f)At any other time by agreement.

3. X spend time with the Father during Christmas school holidays 2017/18 as follows:

   (a)From 9 a.m. Christmas Eve until 2 p.m. Christmas Day 2017.

   (b)From 9 a.m. on 8 January 2018 until 6 p.m on 16 January 2018, when the Father be permitted to travel with X to Brisbane.

   (c)From 9 a.m. on Thursday 25 January to 4 p.m. on Monday 29 January 2018.

   (d)At any other time by agreement.

4. X spend time with the Father during short school holidays as follows:

   (a)Unless otherwise agreed in writing, from after school on the last day of each school term until the middle Saturday of the school holidays at midday.

   (b)At any other time by agreement.

5. X’s time with the Father during school terms be suspended during school holiday periods, being from the last day of the school term until the first day of the next school term.

6. The Father be permitted to accompany X and the Mother to X’s first day of school and attend any parent event at the school on the first morning of school.

7. For the purpose of changeover, unless changeover is to occur at daycare/school/after school care the Mother deliver X to the Father at the commencement of time and the Father return X to the Mother at the conclusion of time.

8. The Father email the Mother by 9.00am on the Sunday morning of his contact weekend to briefly advise the Mother in relation to X’s state of health and welfare. 

9. The Mother forthwith give written authority to (omitted) Public School to provide all information, including reports and notices of events and any other details of X’s progress to the Father, and the Mother to include the Father’s name on the school records as an emergency contact.

10. Upon X commencing school, the Father provide a sealed copy of these Orders to the school principal.

11. The parties communicate in the usual course by email in respect of issues relating to X, and the other party to respond within no more than 24 hours, and all such communications be respectful, and by SMS or telephone in an emergency or when an immediate response is required.

12. Each party be restrained from:

    (a)Communicating with the other in a negative, denigrating, abusive, disrespectful or offensive manner;

    (b)Communicating with the other party or X when in the other party’s care between 8 p.m. and 8 a.m. except in an emergency.

    (c)Attending upon the other party’s residence when X is in that party’s care unless invited in writing to do so.

    (d)Without admissions, using any form of physical discipline on X.

13. Each party ensure the other party has his/her current mobile telephone number on which that party can be contacted.

14. Each party notify the other, and keep the other notified, of any medical treatment that X undergoes including providing details of medical practitioner, and any prescribed medication.

15. Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

THE COURT NOTES THAT:

1. The parties agree to give consideration to requesting Mr P to provide a short report to the Court at the conclusion of family therapy.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7392 of 2013

MR POINTER

Applicant

And

MS CHEADLE

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

Introduction

1. These reasons are given orally.  This case concerns interim parenting arrangements for the parties’ only child X, born (omitted) 2012, now aged five years.  The parties separated after a three-year relationship, which included a period of marriage, in (omitted) 2013 when X was seven months of age, although they remained living separated under the one roof for another seven months when X was approximately 14 months of age.

2. The parties first reached agreement as to X’s parenting arrangements in April 2014 when orders were made by consent.  Those orders provided for X to spend daytime periods varying in length with the Father on five separate days a fortnight, although the Father reports difficulties in implementation from the beginning, with X rarely spending longer than two or three hours at a time with him, prompting him to file an application for contravention.

3. The Mother does not refer to any problems with the orders until February 2016.  The Mother told the Court expert in 2015 she believed that the Father was exposing X to conditions precipitating asthma attacks, starting in May 2014 when X was first diagnosed with asthma.  The Father denied this, but to ensure X spent regular time with him between August and December 2014 he allowed the Mother to sleep on the couch at his place when X was staying with him overnight on 13 occasions.

4. Further interim orders were made on 26 October 2015 after a report had been prepared for the Court by the expert, Dr L.  The Mother had told Dr L in October 2015 that she proposed X’s time with the Father remain supervised moving forward.  The Father was seeking gradually increasing time until X was spending alternate weekends with him Friday to Monday morning by the time she was four years of age.

5. The October 2015 interim orders provided for X to spend three afternoons a week with the Father, after daycare, till 7 pm, and then on alternate weekends the whole day Saturday and the whole day Sunday, all the time to be unsupervised.  The Father’s application for contravention was dismissed at that time.  On 11 February 2016, the Court made a further order by consent for the Mother to be permitted to travel with X to (country omitted) for approximately two weeks.  It was noted on that order that the parties intended to develop a co-parenting plan for X, and the matter was withdrawn from the active cases pending list.

6. The Father has now filed the application resulting in this interim hearing.  While the parties agree that since the February 2016 order was made X has spent overnight time with the Father, the Mother says she has not been happy with that arrangement and denies X has spent as much overnight time with the Father as he alleges.  The Mother says she has been coerced into allowing X 45 nights with the Father this year.  The Father said X had spent alternate weekends and two nights each week with him since February 2016 until a few weeks ago when the Mother unilaterally stopped X’s overnight time with him.  The Mother says this is because when X stays overnight with the Father she gets sick with colds and viruses and is at risk of a serious asthma attack which could cause her death.

7. As a result of the Mother’s decision to stop overnight time, the Father filed an application on 10 November which was given an urgent listing.  Each party filed a detailed affidavit with annexures upon which each party sought to rely.  The Father represented himself and the Mother was represented by counsel at the interim hearing.

8. At that hearing last week, a number of orders were made by consent. The appointment of an independent children's lawyer; the Mother to undertake a parenting after separation course and a Circle of Security course, both courses having been completed by the Father;  a mutual non-denigration order;  and importantly, the Father agreed with the Mother’s proposal that X could attend (omitted) Public School when she starts school in 2018, as long as she remains at that school during her primary years.  With the consent of the parties, I made an order for the preparation of a family report as soon as possible, and as proposed by both parties, I made an order for the parties to engage in therapy with Mr P of the RelationSpace commencing in January 2018. I note that such therapy was recommended by Dr L over two years ago. 

9. However, the parties were unable to reach agreement on the time X should spend with the Father.  Now I give reasons for the orders I will shortly make on that issue.

Background

1. The Mother was born in (country omitted) and moved to Australia in (omitted) 2008.  She lives with X in (omitted) and is employed by the (employer omitted), with some flexibility in her hours. 

2. The Father, aged 38 years, lives in (omitted) with his partner Ms A, aged 40 years.  He is employed as an (occupation omitted).

Current arrangements

1. The Father says that until very recently, X spent time with him in week 1 on Monday mornings following his full weekend until he dropped her at preschool, and then on Tuesdays and Thursdays after preschool till before preschool the following morning.  In week 2 on Mondays after preschool and Wednesday after preschool until preschool the following morning; and then Friday afternoon to Monday morning.

2. The Father says that while there were a lot of changes between households, X understood that if the Mother dropped her at preschool, her Father picked her up, and if her Father dropped her at preschool, the Mother picked her up. The Father deposes to the Mother imposing certain conditions on X’s overnight time with him, including him having to send text messages at midnight, 3 am and 6 am.  This condition was strictly enforced by the Mother, because on occasions she has called the Father if he failed to send a text.  He says the Mother has personally visited and inspected X before her bedtime, sometimes late in the evening. 

3. The Father has complied with these conditions since February 2016 when overnight started, but told the Mother in October he was no longer willing to comply as it was not in X’s interest that he do so.  The Father deposes to X spending 158 nights in his care since February 2016, but only because he submitted to the Mother’s conditions for X spending overnight time with him.  He annexes his record of those specific nights to his affidavit.  On 16 October 2017 the Mother stopped the overnights and reverted to the orders of October 2015, which provide for daytime only. 

4. The Mother denies X has ever spent regular overnight time with the Father.  She says on one occasion in January this year she spent one block period of five nights with him when he let X get seriously sunburnt.  She has concerns about X’s health as a result of the time she has spent with the Father and believes X’s ill health is a direct result of the Father’s inadequacies as a parent. 

Orders sought by the Father

1. In his initiating application filed on 10 November 2017 in relation to X’s time with him, the Father sought an order for previous parenting orders to be discharged, for X to spend overnight with him in week 1 on Mondays and Wednesday nights, from Friday after preschool until Monday morning; in week 2, from 4.30p.m. Tuesday and Thursday overnight, as well as time on special days.  At hearing he conceded that those time arrangements might not be in the best interests of X any longer, as X would start school early next year.  He seeks block time in the Christmas school holidays 2017 from 20 December until 1 January 2018 so he can take X to his extended family in Brisbane for a holiday.

Orders sought by the Mother

1. In her Response, the Mother seeks orders for X to live with her and for leave “to particularise the orders she seeks for X’s time with the Father following the parties’ attendance at family therapy at the RelationSpace”[1].

   [1] Order 3 of Orders sought in the Mother’s Response filed 22 November 2017

Legal principles

1. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration. To determine the child’s best interests it must consider the primary considerations set out in section 60CC(2) and the additional considerations set out in section 60CC(3). Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, the Court must consider all the factors before making a determination.

2. The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Court must give greater weight to the second primary consideration.[2] The primary considerations are consistent with the first two objects of the Act set out in section 60B to which the Court must have careful regard.

   [2] Section 60CC (2A), Family Law Act 1975 (Cth)

3. The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:

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

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

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

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

4. The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

THE PRIMARY CONSIDERATIONS    

The benefit to the child of having a meaningful relationship with both of the Child’s parents

1. It is common ground that X will benefit from a meaningful relationship with both her parents.  Both parties acknowledge X’s close bond with the other parent.  X has always lived with her Mother so her attachment to her Mother is not in question.  Dr L observed X to have a very secure attachment to her Father at the assessment in October 2015.  

2. The Mother’s proposal, if adopted, would deny X any overnight time with the Father, which would deny her the opportunity to experience her Father in the wide range of contexts needed to maximise the quality of that relationship. While the Mother claims to support X’s relationship with her Father, her proposal that she only see him during the day, raises a question as to how genuine her commitment really is.  This question needs to be further explored.     

The need to protect the Child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. “Abuse” is defined in section 4 of the Family Law Act 1975 as:

   (a)     an assault, including a sexual assault, of the child; or

   (b)     a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)     serious neglect of the child.

2. “Neglect” is not defined in the Family Law Act and therefore must be given its ordinary meaning.

3. Section 4AB(3) provides that “For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.”

4. Family violence is defined at section 4AB(1) of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family….or causes the family member to be fearful.”

5. Section 4AB(4) outlines examples of situations that may constitute a child being exposed to family violence which include (but are not limited to) the child:

   (a)    overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

   (b)     seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

   (c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

   (d)     cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

   (e)     being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.”

6. Section 4AB(2) provides a non-exhaustive list of examples of behaviour that may constitute family violence, which include:

   (a)     an assault; or

   (b)     a sexual assault or other sexually abusive behaviour; or

   (c) stalking; or

   (d)     repeated derogatory taunts; or

   (e)     intentionally damaging or destroying property; or

   (f)      intentionally causing death or injury to an animal; or

   (g)     unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h)     unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i)     preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j)     unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.”

1. Both parties allege the other behaved aggressively during the relationship. The Father alleges that the Mother once threatened him with a knife while he had X in his arms and the Mother alleges that the Father pushed her on 13 October 2017 causing her to fall down the stairs, when she came to his home to check on X. The Mother alleges repeated incidents of verbal abuse by the Father, and the Father deposes to frequent aggressive behaviour by the Mother.  

2. I can only make limited specific findings at this interim stage about each party’s allegations, but the evidence certainly suggests a high degree of volatility in the relationship, and that X was at times exposed to aggressive exchanges between the parties. However, I am not persuaded on the evidence before me at this interim stage that X is at risk of harm in the care of either party.

3. I find that the parties would benefit from professional assistance, which I have ordered with their consent, and that their face‑to‑face contact should be minimised at this stage to protect X from exposure to conflict between them. 

RELEVANT ADDITIONAL CONSIDERATIONS

The extent to which each of the Child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the Child; and to spend time with the Child; and to communicate with the Child

1. This is not an issue here. Both parties have been involved in decision-making for X, both have been closely involved in her day-to-day care.

The extent to which each of the Child’s parents has fulfilled, or failed to fulfil, his/her obligations to maintain the Child

1. The issue is not a factor relevant to my decision. 

The likely effect of any changes in the Child’s circumstances, including the likely effect on the Child of any separation from either of his parents, or any other Child, or other person (including any grandparent or other relative of the Child), with whom he has been living

1. The Father argues that since the Mother stopped all overnight time in mid-October, X would be missing him and missing her usual routine, given she is used to spending half her time with him.  She is used to the Father picking her up from day-care on the days the Mother takes her to day care and vice versa.  The Father argues that X was settled in those arrangements though he accepts that a variation in those times is inevitable given X will start school next year.   

2. The Mother, on the other hand, deposes to X being unsettled in those overnight arrangements because she constantly gets sick in the Father’s care.  She also denies that X has spent overnights with the Father as often as the Father claims.

3. It is certainly common ground that X has spent numerous overnights with the Father since early last year until mid-October. Dr L highlighted the close, warm relationship X enjoyed with her Father even before that overnight time started. It is therefore likely that X has been adversely affected by reduced time with her Father.   

The practical difficulty and expense of a Child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the Child's right to maintain personal relations and direct contact with both parents on a regular basis

1. This is not an issue.

The capacity of each of the Child’s parents and any other person (including any grandparent or other relative of the Child) to provide for the needs of the Child, including emotional and intellectual needs and  attitude to the Child, and to the responsibilities of parenthood, demonstrated by each of the Child’s parents

1. Dr L notes in her report the parties’ tension over how X should be parented from the time she was born. The Father said the Mother never approved of how he did anything.  The Father told Dr L he was very concerned about what the Mother said to X, as she would tell him that he (the Father) made her sick and her Mother makes her better[3]. 

   [3] At paragraph 26 of Dr L’s report dated 26 October 2015

2. Dr L noted the Mother’s need at the assessment interviews to emphasise the Father’s shortcomings to persuade her he posed a risk to X.  She noted that the Mother told X to remind her Father that she must wear more clothes.  (X was not 3 years old at the time of these interviews). She raised concerns about the numerous medical interventions X has been subjected to. She emphasised the need for agreement on X’s asthma management.

3. The Mother presented to Dr L as set out in paragraph 51 of her report. She says this[4]:

   Ms Cheadle currently presents as having an extremely high and palpable level of anxiety in respect of X’s safety in Mr Pointer’s care.  She holds Mr Pointer in very poor esteem as a parent and has negligible faith and trust in his capacity to provide child-focused and responsible care for X.  This is impacting adversely on her ability to foster the father-daughter relationship beyond a maximum of three hours and indeed she proposes that any time X spends with Mr Pointer in future is supervised.  Hence, while Ms Cheadle articulates the desire to foster X’s relationship with Mr Pointer, her capacity to operationalise this is sorely lacking.

   [4] At paragraph 51 of Dr L’s report dated 26 October 2015

4. Dr L did not accept the Mother’s assertion that X is ill on every occasion she returns from her Father.  She described it as “extreme and improbable”[5].  She did not support the need for supervised time between X and the Father.  She assessed the Mother as needing help to deal with her anxieties.  She anticipated that unless she does, “this matter could become intractable with the Father never being able to reach the bar as an adequate parent.” Dr L cautions the Mother might even turn to allegations of abuse[6].  Dr L says “her need to control and micromanage X’s care is extreme… and there is a likelihood X will face a life trajectory of having court proceedings as a travelling companion.”[7] 

   [5] At paragraph 52 of Dr L’s report dated 26 October 2015

   [6] At paragraph 53 of Dr L’s report dated 26 October 2015

   [7] At paragraph 57 of Dr L’s report dated 26 October 2015

5. Dr L raised several concerns about the Mother and her long term capacities as a parent including poor attention to X’s emotional needs, and poor attunement shown by her demonstrated limited ability to interact with X in a child focussed way. She also encouraged X to take the parental role with the Father, and undermined him in X’s presence.  The Mother told Dr L that X cuddles the Mother and tells her to be happy when the Mother is upset, indicating an inappropriate mother/child role reversal.  She urged her to participate in a parenting course such as Circle of Security or Triple P which the Mother has not yet done.  Dr L questioned whether X is picking up on her Mother’s anxiety when X is with her Father and whether her asthma attacks are a reaction to this.

6. Dr L was impressed by the Father’s proposals for time, and to his efforts to remain a visible presence in X’s life and to support her and the Mother, despite the obstacles placed in his path by the Mother.  Dr L observed him to respond to X in a child focussed way.  He was nurturing and soothing while also setting appropriate limits when needed.   Dr L found the Father presented as the parent who is more amenable to X having a free and unrestricted relationship with both parents. She was impressed by the Father’s completion of various courses to understand the impact of separation on X.

7. The Father deposes to his routine when X is with him, which includes a range of activities, lots of books, craft and insight into his need to support X’s relationship with her Mother and the Mother’s family. He has a photo collection of X’s extended family in Brisbane and in (country omitted) on both his and the Mother’s side, including photos of the Mother. 

8. The Father involves X in bike riding, (hobbies omitted).  He organised a birthday party for her friends including friends associated with the Mother.  The Father has regularly arranged extracurricular activities, (language omitted) lessons, (hobbies omitted). He arranges regular play dates for her.   She has developed a good relationship with his partner Ms A.  He describes the importance for X of the parents working cooperatively together for X’s benefit. 

9. The Father deposes to organising X’s immunisations, her dental appointments, visits to GPs.  He has arranged and paid for X’s appointments with Dr H, paediatrician, to manage her asthma.  The Father deposes to his extensive knowledge of first aid.

10. The Father is actively engaged in X’s preschool serving on the parents’ committee, and helping at preschool events and attending events involving parents.   

11. As noted, the Father deposes to the Mother’s demands of him if X is to spend overnight with him including text messages during the night.  The Father also deposes to the Mother’s conversations with X denigrating his care of her.

12. I refer to the Father’s affidavit sworn on 10 November 2017.  At paragraph 109.1 he says this:

    Several times the Mother has told X that she will die in my care.  For example, Tuesday, 7 February 2017, the mother brought X to my place at 11.50 pm, then on the way home with X left a recorded message on my phone yelling at X.  The mother said, among other things, “You want to see him, you’ll be dead.  He will make you dead.  Do you want to die?  Don’t see him.  Next time you want to see him, you’re going to die?  Okay.  I’m telling you.” 

    X was very distressed. I made a report to the Department of Community Services Child Protection (Report number (omitted)), and asked the police to make a welfare check on X (Police report: (omitted)).

13. At paragraph 109.3, the Father says:

    Saturday, 27 May 2017, X fell asleep earlier than usual at 7.16 pm at my place because she had a big day.  I explained to the Mother that X was fine but the Mother insisted on seeing her, or otherwise she told me she would pick X up. 

14. At 109.5 he says:

    Sunday, 17 September, at 3.07 am, after sleeping through his alarm, the Mother knocked loudly at his door.  The Mother insisted that either I woke up X and brought her to the door or let her enter my residence to inspect X, or otherwise she said she would pick X up in the morning.

15. At 109.6 he says:

    Saturday, 30 September, X was unwell with a cold at my place.  At 7.30 pm X was in her bed ready to sleep when the mother arrived and insisted she take X.  X told her Mother that she didn’t want to go and then ran into my room and said, “No, mama  will take me.”  X returned to her bed and soon fell asleep.  The mother still insisted that I should take X downstairs, even though X was asleep.  The Mother called the police.  Two police officers arrived and checked X and then asked the Mother to leave. 

16. At 109.7:

    Friday, 13 October, I informed the mother that I would stop sending text messages throughout the night.  The Mother arrived at my place at 8 pm.  X did not want to leave and ran into my bedroom.  While I was talking to the mother X walked closer to listen.  The mother snatched X and began to carry X downstairs.  X began crying and shouting at her mother saying, “Stop mama. No.” X started calling for me crying “Baba”. 

    I walked to X and X held on to my arm tightly.  I held X and walked her back to my place.  X soon calmed down and fell asleep.  The mother called the police.  The police officers came, checked X, asked me some questions about what happened, and then asked the mother to leave. 

17. At paragraph 111 of the father’s affidavit he says this:

    X’s routine as described in this affidavit has been increasingly disrupted by the mother and X’s overnight time with me has not been supported by the mother.  Notably, on Friday, 27 January, until Wednesday, 5 April, the mother accused me of causing X to be sick.  Tuesday, 4 July until Friday, 21 July, the mother accused me of causing X to be sick.  Monday, 24 July until Thursday, 3 August, the mother accused me of not checking X at night.  Friday, 18 August till 1 September, the mother accused me of causing X to be sick. 

18. If the Father’s assertions are true, the Mother’s capacity to parent and her attitude to her parental responsibilities are in issue.  While the Mother deposes to engaging X in diverse range of activities including contact with friends and family, and I accept this is likely, her apparent need to involve X in adult issues, and to micromanage X’s time with the Father raises questions about her parental capacity and attitude to X’s relationship with her Father, which will need to be comprehensively explored. I find it noteworthy however, that the Mother’s approach was a concern to Dr L 2 years ago and it seems nothing has changed, given the Mother’s proposal for X’s time with the Father is very limited.

Parental Responsibility

1. Neither party pressed for a parental responsibility order at this stage, and I find any such order would be premature.  It is hoped that with professional assistance, the parties will find a way to work together constructively for X’s benefit, and it will ultimately be in X’s best interests for an order to be made for equal shared parental responsibility.  However, I do not make that order today. 

Discussion and Determination 

1. I have decided it is in X’s best interests to spend regular overnight time with the Father, given the history of her time with him and given the contents and recommendations of Dr L’s expert report in 2015.   In reaching my decision, I have weighed a number of factors including but not limited to:  

   a)X has spent regular overnight time with the Father over at least the last 18 months and probably longer;

   b)The Mother acknowledges the importance of X’s relationship with the Father and her love for the Father;

   c)While the Mother opposes overnight time, she has permitted overnight time to continue over a long period;

   d)The Mother has made demands of the Father which raise concerns about the Mother’s attitude to her parental responsibilities, which need further assessment;

   e)Dr L identified concerns 2 years ago about the Mother’s willingness/capacity to support X’s relationship with the Father;

   f)The Mother’s admitted involvement of X in the parental dispute and her regular denigration of the Father in front of X raise significant issues about the Mother’s parenting capacity.  Dr L recommended that if the Mother persisted with this kind of conduct that consideration may need to be given to changing X’s place of residence.  Given that is a possibility, it is important X’s relationship with her Father is strongly supported by giving her meaningful time with him.

2. I have decided that X will spend alternate weekends with the Father for 3 consecutive nights, so she can establish herself comfortably in her Father’s home and benefit from time with him away from her Mother each alternate weekend.  Given her young age and her previous pattern of regular overnight time, I have decided she will also spend alternate Thursday nights with the Father so she goes no longer than a week without spending a night with him.  She will also spend alternate Monday afternoons (following her weekend with the Mother) with the Father when he will collect her from daycare or school and take her home to her Mother at 7.00 p.m. 

3. In determining interim overnight time, I have taken into account the Mother’s anxiety about X spending overnight time and have ordered that the Father telephone the Mother each Sunday after the overnight to reassure her that X is well.

4. In relation to school holidays, the Father sought at least a week with X over the Christmas school holidays so he could take her to Brisbane for a holiday to spend time with her extended family.  The Father deposes to X’s close relationship with her grandmother via frequent video calls, long conversations, playing games together on the phone and sending gifts, paintings, craft. I have decided this holiday proposed by the Father is in X’s best interests.  She will travel with the Father from 8 to 16 January.  The Mother has her first appointment with Mr P on 10 January 2018, so the Father can arrange his first appointment on a date after he gets back.  X will spend the long weekend in January with the Father from Thursday morning at 9.00 a.m. until Monday afternoon at 4.00 p.m.  X will spend Christmas Eve until 2.00 p.m Christmas Day with the Father because she has not woken up on Christmas day in her Father’s household.  The Mother says her family are travelling from (country omitted) for 3 weeks from 18 December to stay, so apart from that short period on Xmas Eve/Xmas Day, X will have the benefit of time with her extended maternal family over that period. Overall, X will spend more time with the Mother than the Father over the next holiday period.   During the short term holidays, X will spend a week with her Father, being the first week unless otherwise agreed.  Week time or term time contact will be suspended during the school holidays.

5. I am confident that X will maintain her strong relationship with both her Mother and her Father under this regime.  Changeover arrangements will remain as they are unless otherwise specified.

6. X has had recent changes to her care arrangements.  These interim orders will give her much needed stability and predictability in her routine which is essential, particularly given her young age.

7. I have made orders in relation to information exchange and a restraint on each party from contacting the other party or coming to their home when X is in that party’s care between 8.00 p.m. and 8.00 a.m. unless an emergency or unless invited to do so.  Without admissions, I have restrained each party from using any form of physical discipline.   These ancillary orders are designed to minimise any opportunity for conflict between the parties.  

8. The matter will return to court in February 2018 to ensure the parties have engaged with Mr P, that the Mother has enrolled in the courses I have ordered her to undertake, that orders are being complied with, and by then, the Independent Children’s Lawyer will have been appointed and I anticipate will have met X.   

9. Having regard to all these matters, I am satisfied the orders set out at the beginning of these reasons are in the best interests of X on an interim basis. 

I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for judgment of Judge Sexton

Date:  8 February 2018