Raymond and Ryde
[2009] FMCAfam 301
•24 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAYMOND & RYDE | [2009] FMCAfam 301 |
| FAMILY LAW – Parenting – amount of time to be spent with the father – ongoing conflict between the parents – considerable distance between father’s home and child’s school – father’s failure to participate in child’s school life – father’s choice to go on a golfing trip rather than spending time with the child in accordance with orders. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Applicant: | MS RAYMOND |
| Respondent: | MR RYDE |
| File Number: | MLC3803 of 2008 |
| Judgment of: | Riley FM |
| Hearing date: | 1 April 2009 |
| Date of Last Submission: | 1 April 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 24 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Patrick O'Shannessy |
| Solicitors for the Applicant: | Maria Barbayannis & Co |
| Counsel for the Respondent: | Albert Skerlj |
| Solicitors for the Respondent: | M K Steele & Giammario |
ORDERS
All previous parenting orders be discharged.
The mother and the father have equal shared parental responsibility for the child [A] born in 2000 (“[A]”).
[A] live with her mother.
[A] spend time with her father as follows:
(a)during school terms from after school on Friday until 5.00 pm on Sunday in alternate weeks commencing 24 April 2009, save that if the Monday immediately following the Sunday time is a non school day then [A]’s time with her father shall be extended to 5.00 pm Monday and if the Friday is a non school day then [A]’s time with her father shall commence from after school on Thursday;
(b)during term school holidays, excluding the long summer vacation, from the conclusion of school on the last day of school term for seven consecutive nights until 5.00 pm on the following day, commencing at the conclusion of second term in 2009;
(c)during first term school holidays in 2009:
(i)from after school Friday 3 April 2009 until 5.00 pm Tuesday 7 April 2009; and
(ii)from 5.00 pm Wednesday 15 April 2009 until 5.00 pm Sunday 19 April 2009;
(d)during the long summer vacation each year:
(i)from the conclusion of school on the last day of the school year for seven consecutive nights until 5.00 pm on the following day;
(ii) from 5.00 pm 3 January until 5.00 pm 10 January; and
(iii) from 5.00 pm 17 January until 5.00 pm 24 January;
(e)on special occasions:
(i)from 5.00 pm Christmas Day until 5.00 pm Boxing Day in 2010 and each alternate year thereafter and [A] shall live with her mother from 5.00 pm Christmas Eve until 5.00 pm Christmas Day in 2010 and each alternate year thereafter;
(ii)from 5.00 pm Christmas Eve 2009 until 5.00 pm Christmas Day and each alternate year thereafter and [A] shall live with her mother from 5.00 pm Christmas Day until 5.00 pm Boxing Day in 2009 and each alternate year thereafter;
(iii)from 11.00 am New Years Eve 2009 until 11.00 am on New Years Day, 2010 and each alternate year thereafter;
(iv)if Father's Day falls on a weekend [A] is living with her mother, then from 10 am to 5.00 pm on that day;
(v)if Mother's Day falls on a weekend [A] is spending time with her father then her time with him shall cease and be suspended from 10 am on that day until the next occasion of time to be spent with her father pursuant to these orders;
(vi)on the father’s birthday, if [A] is not otherwise spending time with her father pursuant to these orders:
a. if a school day from after school until 7.00 pm;
b. if a non school day from 10 am until 5.00 pm;
(f)as otherwise agreed by the parties.
The periods in Order 4 (a) shall recommence in each school term upon the same sequence as if such periods had been uninterrupted by school holidays.
Changeover at the conclusion of each period in order 4 (a) and 4 (c) (i) and (ii) occur at the [B] Contact Centre, [W].
All remaining changeovers shall occur:
(a)at [A]'s school on those occasions when the father's time with [A] coincides with her school attendance;
(b)on a non-school day at the [G] Contact Centre, [M] at the commencement of any spend time period and at the [B] Contact Centre, [W] at the conclusion of any spend time period;
(c)on a non-school day, when the [G] Contact Centre, [M] is closed or unavailable, at the [O] Police Station at the commencement of a spend time period and, when the [B] Contact Centre, [W] is closed or unavailable, at the [R] Police Station at the conclusion of a spend time period.
The father and the mother each authorise [A]'s school to provide to the other, at their own expense, copies of school newsletters, reports, photo order forms and like documents and to be provided with such information as parents are usually provided with.
Each of the parties inform the other as soon as practicable of any significant health issue concerning [A].
Each of the parties do all things to authorise the other to obtain access to [A]'s medical information.
Each of the parties, subject to direction of the school, be authorised to attend school functions and events as parents usually attend.
Each party be and is restrained from denigrating the other parent to or in the hearing of [A] and to or in the hearing of the parents of [A]'s school peers.
The parties ensure that [A] attends her after school activities in the [O] area and she not be enrolled in new activities without agreement between the parties first being obtained in the event that such activity will involve the child in a commitment during the time the child lives with the other party.
All extant parenting applications be otherwise dismissed and the proceeding be removed from the current list of cases awaiting determination.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001, it is certified that it was reasonable for each of the parties to employ an advocate.
Pursuant to ss.62B and 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 Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Raymond & Ryde is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC3803 of 2008
| MS RAYMOND |
Applicant
And
| MR RYDE |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter is the continuation of a contravention application, insofar as it concerns a possible variation of previous final parenting orders, and an application for parenting orders in relation to [A] born in 2000 (“[A]”), who is now eight years old. Her parents married in April 1998 and separated on 20 September 2004.
Previous orders
Interim orders were made on 27 January 2005 partly by consent and partly by the court as follows:
IT IS ORDERED
1.That the child [A] born in 2000 reside with the husband and the wife as follows:
(a)with the husband:
(i) from 10.00 a.m. Saturday to 6.00 p.m. Sunday on the weekends commencing Saturday 29 January 2005 and 12 February 2005 with the wife to deliver the child to the husband’s residence and the husband to return the child to the wife’s residence ;
(ii) thereafter from 3.00 p.m. Friday to 6.00 p.m. Sunday commencing 25 February 2005 and alternate weeks thereafter for 3 occasions and thereafter from 3.00 p.m. Friday until prior to kindergarten or 9.00 a.m. Monday;
(iii) from 3.00 p.m. Monday to 9.00 a.m. Tuesday commencing 7 February 2005 and alternate weeks thereafter; and
(iv) for one half of the child’s kindergarten /school holiday periods as agreed and failing agreement the first half thereof commencing 3.00 p.m. Friday on the last day of term commencing 2nd term kindergarten holidays in 2005; and
(b)with the wife at all other times save as otherwise agreed between the parties and as hereinafter provided.
2.That the said child have contact with the husband if it is not a contact weekend on the weekend of Father’s Day from 3.00 p.m. Friday to 6.00 p.m. Sunday.
3.That if it is a contact weekend of the husband it be suspended on Mother’s Day weekend and she be with the wife on that weekend from 3.00 p.m. Friday to 6.00 p.m. Sunday.
4.That unless specified otherwise in these orders the husband be responsible for all contact transport.
IT IS ORDERED BY CONSENT
4.That the said child have contact with the husband:
(a)from 5.00 p.m. Christmas Eve to 3.00 p.m. Christmas Day 2005 and alternate years thereafter;
(b)from 3.00 p.m. Christmas Day to 5.00 p.m. Boxing Day 2006 and alternate years thereafter.
5.That the said child have contact with the wife:
(a)from 5.00 p.m. Christmas Eve to 3.00 p.m. Christmas Day 2006 and alternate years thereafter;
(b)from 3.00 p.m. Christmas Day to 5.00 p.m. Boxing Day in 2005 and alternate years thereafter.
IT IS FURTHER ORDERED
6.That 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 those particulars are included in these orders.
7.That all extant interim applications be otherwise dismissed and removed from the list of matters awaiting finalisation.
8. That all final applications be referred to the Trial Notice List on a date to be appointed.
[A] spent time with each of her parents more or less in accordance with those orders until 15 November 2006. On that date, final orders were made by consent. They extended the amount of time [A] spent with her father. The consent orders made on 15 November 2006 were as follows:
1.That the husband and wife retain shared parental responsibility for the care, welfare and development of the child [A] born in 2000 (“[A]”).
2.That save when [A] lives with the husband as provided herein, [A] shall live with the wife.
3.[A] shall live with the husband as follows:
(a)During school term and commencing Friday, 17 November, 2006 from after school or after karate class on a Friday until before school on the following Tuesday morning and each alternate week on those days thereafter until the operation of paragraph (b).
(b)During school term and commencing from the first alternate week in second term of 2007 and provided paragraph 4 is complied with, then from after school on a Friday until before school on the following Wednesday morning.
(c)During school holidays:
i. For one-half of each school term holiday, and in default of agreement, the first half of each holiday commencing at the conclusion of school on the last day of school term.
ii. For one-half of Christmas holidays and in default of agreement commencing with the first part of those holidays in 2006/2007 and alternate years thereafter and the second half in 2007/2008 and alternate years thereafter but calculated so that [A] is returned to the wife on the Friday at 3.00 p.m. prior to school starting.
iii. The paragraph 3 (a) & (b) blocks are suspended during school holidays.
(d) On special occasions:
i. If Father’s Day falls on a weekend [A] is living with the wife, then from 3.00 p.m. on the Friday until Monday morning before school.
ii. If Mother’s Day falls on a weekend [A] is living with the husband then [A] shall live with the wife from 3.00 p.m. Friday until the Monday morning before school.
iii. On Christmas Day 2006 from 3.00 p.m. Christmas Day until 5.00 p.m. Boxing Day in 2006 and each alternate year thereafter and [A] shall live with the wife from 5.00 p.m. Christmas Eve until 3.00 p.m. Christmas Day in 2006 and each alternate year thereafter.
iv. On Christmas Day 2007 from 5.00pm Christmas Eve until 3.00 p.m. Christmas Day in 2007 and each alternate year thereafter and [A] shall live with the wife from 3.00 p.m. Christmas Day until 5.00 p.m. Boxing Day in 2007 and each alternate year thereafter.
v. From 2.00 p.m. 1 January, 2007 until 2.00 p.m. on 2 January, 2007 and each alternate year thereafter and [A] shall live with the wife form 2.00 p.m. New Years Eve 2006 until
2.00 p.m.New Years Day 2007 and each alternate year thereafter
vi. From 2.00 p.m. New Years Eve 2007 until 2.00 p.m. on 1 January, 2008 and each alternate year thereafter and [A] shall live with the wife from 2.00 p.m. New Years Day until 2.00 p.m.
2 January, 2008and each alternate year thereafter.
vii. As otherwise agreed between the parties.
4.That on or prior to the operation of paragraph 3 (b) herein (the Friday to Wednesday block) the husband shall:
(a)Obtain his own accommodation with a radial distance of 20 kilometres of [A]’s school in [O].
(b)Ensure [A] has her own bed.
5.That all living with changeovers shall occur:
(a)On a school day from and to school.
(b)On a non-school day from the McDonald’s Restaurant, [O].
6.That the husband communicate with the child by telephone during the wife’s time as follows:
(a)During school term by calling the wife’s mobile number provided each Wednesday between 7.00 p.m. and 7.30 p.m.
(b)During school holidays each Wednesday and Sunday at those times.
7.That the wife communicate with the child by telephone during the husband’s time as follows:
(a)During school term on a Sunday between 7.00 p.m. and 7.30 p.m. by calling the husband’s mobile number provided.
(b)During school holidays each Wednesday and Sunday at those times.
8.That the husband and wife each authorise [A]’s school to provide to the other (at their own expense) copies of school newsletters, reports, photo order forms and like documents and to be provided with such information as parents are usually provided with.
9.That each of the parties inform the other as soon as practicable of any significant health issue concerning [A].
10.That each of the parties do all things to authorise the other to obtain access to [A]’s medical information.
11.That each of the parties, subject to direction of the school, be authorised to attend school functions and events as parents usually attend.
12.That each party be and is restrained from denigrating the other parent to or in the hearing of [A] and to or in the hearing of the parents of [A]’s school peers.
13.That all extant children’s applications are dismissed.
14.That pursuant to Section 65L these orders be supervised on a reportable basis for 12 months.
15.That the parties ensure that [A] attends her after school activities in the [O] area and she not be enrolled in new activities without agreement between the parties first being obtained in the event that such activity will involve the child in a commitment during the time the child lives with the other party.
16.That during December, 2007 either party at their own election may give notice to the other in writing (“the election”) that such party seeks to obtain a report from Vincent Papaleo (“the counsellor”) or such other counsellor as the parties may agree a report (“the report”) as to the welfare of the child and for the purposes of this report:
(a)The party making the election pay the cost of the report.
(b)The parties abide the lawful instructions of the counsellor relating to the preparation of the report, including making the child available for consultations.
(c)Copies of the report be made available to each of the parties and the Court at the election of either party.
17.That pursuant to Section 65DA(2) and Section 62B 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 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.
Subsequent events
[A]’s time with her parents proceeded more or less in accordance with the 15 November 2006 orders until 24 December 2007 when changeover did not occur. The circumstances surrounding that scheduled changeover and subsequent events are set out in my judgment delivered on 12 June 2008. That judgment concerned a contravention application filed by the father on 22 April 2008 and an application filed by the mother on 29 April 2008 seeking orders that service be dispensed with, the Registrar be permitted to sign a passport application for [A], and [A] be permitted to travel to Greece for one month in July and August 2008.
Those applications were heard by the court on 5 June 2008. The court found that the mother had a reasonable excuse for each of the alleged contraventions. Orders were made on 5 June 2008 although the reasons for those orders were not delivered until 12 June 2008. The orders made on 5 June 2008 were as follows:
1.The matter be adjourned to 2 September 2008 at 9.30 am for further hearing in the duty list.
2.Until further order, all previous parenting orders insofar as they provide for the child [A] born in 2000 (“[A]”) to spend time with her father are suspended.
3.The parties forthwith enrol at [B] Contact Centre, [W], for supervised contact and changeover, with the question of the amount of time [A] is to spend with her father being reserved until 2 September 2008.
4.The parties forthwith agree upon a family therapist to undertake therapeutic counseling, with the mother to nominate three therapists and the father to choose one of them.
5.The parties forthwith arrange to undertake family therapy pursuant to section 13C(1)(a) of the Family Law Act 1975 and attend as directed by the family therapist.
6.The parties forthwith give a copy of these orders and the reasons for decision to the family therapist.
7.The costs of the family therapy be shared equally between the parents.
8.Pursuant to s.62G(2) of the Family Law Act 1975, the parties and [A] attend upon Jay Manya on 16 June 2008 for the purposes of the preparation of a Family Report to be given to the parties and the court on or before 30 June 2008.
9.The Family Report is to be paid for in the first instance by the parties in equal shares.
10. The Family Report deal with the following matters:
(a)any views expressed by [A] and any matters (such as [A]’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of [A].
11.The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Consultant.
12.Forthwith, the solicitor for each of the parties (or, if unrepresented, then the party himself or herself) deliver or cause to be delivered to the Family Consultant copies of the following documents:
(a)all relevant applications, responses and affidavits filed by the party in these proceedings;
(b)these orders and the reasons for decision; and
(c)any intervention or restraining orders currently in force.
13.Until further order, the father be restrained from sending any text or other messages, or in any way communicating with the mother, except via her solicitor.
14.The applicant mother is authorised and permitted to apply for and receive an Australian passport for the child [A] without first obtaining the written consent of the respondent father.
15.The mother is at liberty to take [A] for a holiday to Greece from 15 July 2008 until 17 August 2008.
16.The mother forthwith execute a written charge over her home situate at Property N in the sum of $20,000 in the father’s favour and consent to him lodging a caveat over the said home.
17.Upon [A]’s return to Australia, the mother immediately deposit with the Registrar of this court any passport in the name of [A] born in 2000.
18.The Registrar hold any Australian passport so deposited in safe custody until further order.
The intent of the orders made on 5 June 2008 was to enable the parties to attend therapeutic counselling and have the benefit of a family report, and to enable [A] and the mother to have the trip to Greece, before determining whether there should be any variation to the existing parenting orders and, if so, what variation. As such, the contravention application was not fully determined on 5 June 2008.
The family report
In accordance with the orders on 5 June 2008, [A] and her parents attended upon Jay Manya on 16 June 2008 for the preparation of a family report. Ms Manya’s report dated 22 August 2008 notes that [A] had not spent time with her father since early December 2007. The mother told Ms Manya that [A] had strongly refused to spend time with her father and he had said that he did not wish to have a relationship with [A] or financially support her but had subsequently changed his mind. The father told Ms Manya that the mother was extremely hostile towards him and [A] was afraid of upsetting her mother by spending time with him.
At paragraph 15 of her family report, Ms Manya said, of the mother:
She did not believe that the father was worthy of being in [A]’s life, therefore she was unwilling to put any more pressure on [A] to have an active relationship with her father particularly when [A] stated that she did not even miss her father and did not wish to spend any time with him. The mother insisted that [A] had nothing positive to gain from being forced to spend time with her father against her will and clearly expressed wishes.
In relation to her interview with [A], Ms Manya said the following:
28.After several positive exchanges with the writer about her father and mother and with lot of assurances from the writer that nothing bad was going to happen to her, to her mother and to her father, [A] gradually relaxed. She then confided that she missed her father but did not wish to see him when her mother was around because she knew that her mother did not like the idea. [A] was unable to articulate her feelings except that she was scared of the possible conflicts between her parents which had taken place many times in front of her. At such times [A] felt out of control and petrified of the outcomes of the arguments between her father and mother.
29.After a while [A] was able to show some interest in meeting her father and before that could happen made sure that her mother and father did not have a meeting together. [A] was informed that her parents were different rooms and when she was ready to receive Mr Ryde he would come in to spend time with her. After a while [A] shyly asked the writer to bring her father in.
30.When Mr Ryde came in, [A] ran to hug him and Mr Ryde greeted her warmly, addressed her as ‘sparky’ and ‘my baby’ and kissed her. [A] was clearly happy to see her father, was able to give and receive her father’s affectionate gestures and volunteered information about her life in general. Mr Ryde seemed excited and happy in his daughter’s company.
31.[A] voluntarily shared news about her home, relatives, pets and friends. She explained to her father that she and her mother may not go to Greece as her friend’s wedding date was cancelled. She asked her father endearingly if he missed her and declared that she had missed him a lot. She asked how her room was decorated at her father’s new home and warned Mr Ryde to not allow anyone else in the family to use it because it belonged to her. Her father assured that he would never do so. She further stated to the writer that she loved her father to attend her school as in the past and felt sad that Mr Ryde could not attend her school anymore.
32.[A] drew a picture of her and wanted her father to put it in his room so that he was able to see her everyday. She apologised to her father for not going with him on the Christmas day although she was unable to explain why she did so. Mr Ryde also stated that he was sorry about his dispute with her mother and he asked his daughter if she really wanted him to walk away from her he would do so because he did not wish to distress her on a regular basis. At that [A] hugged her father and tearfully pleaded with him not to walk away from her. She worried that he father might forget about her. Mr Ryde then assured her that he will always be there for her. [A] seemed happy. Mr Ryde appreciated his daughter stating she was ‘a bright and beautiful daughter.’
33.[A] told her father that she was very upset because her mother and other members of her family made fun of her father when they saw his picture on the website. She also added that she sometimes stated to her mother that she did not like her father just to make her mother happy. With that [A] suddenly decided to call her mother to come into the room. The writer asked her if she was sure about that. [A] insisted that she wanted her mother to join her.
34.The mother came in. [A] continued to play with her father, hug him, kiss him, sit on his lap, ask him to lift her in the air and insisted on giving tight squeezing embraces. The child wanted something from her father to take home with her and requested that he gave her the ring he was wearing at the time. She was happy and excited, whispered in her father’s ears. The mother sat in a shocked state for a while watching her daughter in disbelief. [A] then tried to sit squeezed in between her parents and whilst holding hands with her mother tried to hug her father as if to join the two parents together.
35.The mother stated to [A] a few times that why did [A] tell her that she did not wish to see her father if she was so eager to spend time with him. The child did not respond but continued to play with her father in a free flowing manner. The mother also stated that if [A] wished to see her father she would not stop her from doing so. Ms Raymond stated that she regretted spending so much money in litigation because she genuinely believed that [A] did not wish to have a relationship with her father but the observed interactions of her daughter with her father on the day had convinced her that her daughter was not being truthful to her with regard to the relationship with her father.
In her evaluation, Ms Manya said:
37.[A] is a normal, healthy and generally happy child. Based on the observations made during the report interviews and her interactions with her parents, the writer believes that the reported problems that [A] has experienced going between her parents since December 2007, has nothing to do with any intrinsic personal difficulties or is an outcome of some inherent relationship complications on [A]’s part. In fact it is amazing that in spite of the immensely troubled relationship between the parents, [A] has retained her attachment with each of them. As explained in the body of the report if [A] is place in a tranquil and conflict free environment she would thrive well in the care of her mother as well as her father.
38.Nonetheless both parents have to address their own negative behaviour that is ‘circular and going nowhere’ quite seriously. Both parents recognise that each of them are strong willed and have unyielding mental makeup that is reflected in their recent behaviour at changeovers. There is a lot of competition and very little cooperation as well as tug of war for power and control between the parents particularly since mid 2007. It is hard to pinpoint what sparked the active warfare between them in recent times although both recognise that there was an ever-present simmering hostility factor between them over the years. The writer believes that both parents have failed to protect their daughter from experiencing unnecessary emotional pain and anguish in recent times.
39.The parents need to understand that the emotional game played between them as to how each episode starts, develops, takes turns and twists finally ending in a predictable manner causing much emotional hurt and anger to each of them. Although each parent can anticipate and predict the final outcome at each step of the game, they both seem to proceed as if there are no other options except moving circularly with their off-putting behaviour. Both need to gain insight in to their own behaviour and make every effort to not repeat their negative way of communication and their intent to cause more hurt to the other parent than that is being dished out.
40.The reasons for such behaviour could be varied and many. It may be due to the dysfunctional parent-child relationships in the original family of the parents, there being unresolved emotional separation between the parties, fear and angst about the former partner finding better life, arguments involving finances, an effort to gain support of the child by pressuring to take one’s side or as simple as wanting to be validated as a good and lovable person by the other parent.
41.The disputes between the parties are also fuelled by ‘not what one is asking the other but how they are asking it’. In their anxiety to outdo each other this couple seem to forget the terrible impact of such on their young child’s psyche which is going to become a part of [A]’s personality and a source of relationship difficulties in her future.
42.Mr Ryde has difficulty containing his negative emotions when provoked. He at times is rash and impulsive but regrets later when it is too late. Ms Raymond does not want to share [A] with him when she perceives or recognises unconstructive behaviour of Mr Ryde. She then refuses to encourage [A] to connect with her father and delivers many mixed messages to the child which leads [A]’s refusal to link with her father. It is interesting that in the tape that was recorded during a difficult changeover [A] continually repeats ‘I cant’ refusing to go with her father and not ‘I don’t want to or I won’t’ But the parents are so busy in their own arguments they fail to recognise their child’s loud message to each of them.
43.On the day of the report interviews the mother seemed shocked to see an undeniable positive connection between the father and child and her child’s pressing need to be receive affection and attention from her father. Ms Raymond stated to the writer that in the future she will not merely depend on what [A] expresses to her in relation to her father. The writer is of the view that [A] has no problems spending time with her father when Mr Ryde is not busy blaming and exchanging arguments with Ms Raymond in her presence or even in the absence of her, he presents as an affectionate and protective father.
Ms Manya’s recommendations were that:
46.Based on the above discussion it is recommended that [A] spends time with her father each week on the Saturday from 10am to 4pm for the first 4 weeks with the changeovers at the Centre followed by an overnight stay for the next
8 weeks from Friday evening to Saturday evening after which [A] could spend time with her father from fortnightly Friday evening to Sunday evening for the next 2 months. At this time to maintain weekly frequency, [A] could spend time with her father on the alternate Wednesday after school till 7.00pm. The changeover could occur at the local police station close to the mother’s home at 7.00pm on the Wednesday.
47.After that period [A]’s time with her father could change to fortnightly Friday after school to Monday morning to school and in the off week she could continue to spend time with her father on the Wednesday after school.
48.During the school holidays the child could spend shared time with the parents. The parents also need to agree on time share with [A] on special days in the year and during long summer holidays.
49.It is essential that [A] is provided her own sleeping arrangement at both homes and the father refrains from consuming alcohol when he is in the role of a sole carer to avoid further conflicts and litigation. Both parents need to give a commitment to not speak ill of the other parent even on a subtle basis and learn to state some positive aspects of the other parent for the benefit of the child.
50.The parents could gain positively from attending 4 to 6 sessions at Relationship Australia to improve their communication skills with each other. [A] does not need to attend counselling if the parents attempt to address and change their behaviour. If in the future [A] requires counselling assitense both parents need to be involved in the process.
[A] and her mother went to Greece from mid-July to mid-August 2008. Ms Manya’s report dated 22 August 2008 was provided to the parties at about the date of the report.
The interim orders of 2 September 2008 and later events
The matter returned to court on 2 September 2008. Orders were made by consent on 2 September 2008 as follows:
1.The parenting orders of the Family Court of Australia made 15/11/2006 be suspended.
2.The Husband and Wife retain shared parental responsibility for the child of the marriage [A] born in 2000 (“the child”).
3.The child live with the Wife.
4.The child spend time with the Husband as follows:
a.On father’s Day 07/09/2008 from 10am to 5pm
b.On Saturday 13/09/2008 from 10am to 4pm
c.On Saturday 20/09/2008 from 10am until 4pm
d.On Saturday 27/09/2008 from 10am to 4pm
e.From conclusion of school Friday 03/10/2008 to 5:00pm Saturday 04/10/08
f.From conclusion of school Friday 17/10/08 to 5:00pm Saturday 18/10/2008
g.From conclusion of school Friday 31/10/2008 to 5:00pm Saturday 1/11/2008
h.From conclusion of school Friday 14/11/2008 to 5:00pm Saturday 15/11/2008
i.From conclusion of school Friday 28/11/2008 to 5:00pm Sunday 30/11/2008 and alternate weekends thereafter from conclusion of school Friday to 5:00pm Sunday.
j.From 3:00pm Christmas Eve to 4pm Christmas Day 2008
k.From 3:00pm New Years Eve 2008 to 2:00pm New Years Day 2009
l.At such other times as agreed.
5.That all changeovers that do not occur at [A]’s school take place at the [W] Centre, [W] or otherwise at such location as agreed between the parties (save for Fathers Day 2008 where collection shall be outside the [O] Police Station at the commencement and the [R] Police Station at the conclusion.)
6.The parties attend therapeutic Counselling with Dr N Psychologist as directed by Dr N.
7.That the parties limit their communications to those specifically relating to the welfare of the child and ensure that all communications are not insulting or derogatory in any way.
8.That the child’s school be provided with a copy of these Orders.
9.That pursuant to S65DA(2) and S62B 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 the attached Fact Sheet and these particulars are included in these orders.
10.That pursuant to Rule 19.50 of the Family Law Rules 2004, this matter reasonably required the attendance of counsel.
11.The Applicant file and serve any amended Applications and Affidavits on which she seeks to rely 28 days prior to trial.
12.The Respondent file and serve Response and Affidavit 14 days prior to trial.
13.
All extant applications be adjourned for a 1 day trial on
27 March 2009at 10:00am
[A] recommenced spending time with her father in accordance with the orders. The orders of 5 June 2008 required the parties to undertake therapeutic counselling. They had not done so as at 2 September 2008. The orders of that date again required the parties and [A] to attend therapeutic counselling. They then undertook a number of sessions with Dr N. Dr N swore an affidavit on 23 March 2009 at the joint request of the parties. Dr N said that she had seen both parents and [A] on a number of occasions and said:
My approach has been focused on relieving [A] of some of the pressures arising from the chronic and bitter conflict between her parents. Very early on I decided that in order to assist [A] better, counselling should be aimed at facilitating parental communication and cooperation. To this end I have been unsuccessful.
Unfortunately, and despite the length of time since separation, the emotions between the parents remain highly charged.
I would strongly recommend that parenting arrangements keep the parents from face-to-face contact with each other, especially in [A]’s presence, and that orders reflect the parents’ limited ability to negotiate or cooperate around [A]’s care. Precise and detailed orders without ambiguity is the best way to manage this for [A]’s sake.
It seems almost inevitable that [A]’s emotional development is likely to be affected by the poor relationship between the parents in many ways, and even in the model of interpersonal relationships this provides to her.
[A]’s capacity to deal with the pressures of parental conflict seems to have caused varying instances of emotional and psychological collapse for her, and refusing to see one parent I would suggest reflects perhaps her only way of dealing with this.
In terms of parenting arrangements, my experiences with [A] suggest that she is coping relatively well, within the qualifications already identified above, under the present schedule. (emphasis added)
The mother filed an amended application on 10 March 2009 in which she sought a variation of the parenting orders. That application and the remainder of the contravention application were heard on 27 March 2009 and 1 April 2009. At the conclusion of the hearing, orders were pronounced on the basis that reasons would be delivered at a later stage. These are the reasons for the orders set out at the commencement of this judgment.
Neither party suggested that there was a Rice v Asplund point in this case. On any view, [A]’s “meltdown” in December 2007, and the reasons for it, constituted a change of circumstances that warranted a re-examination of the parenting arrangements for her.
Proposals of the parties
The father proposed that the court reinstate the orders of 15 November 2006, although he was not opposed to smaller blocks of time over the summer school holidays. The mother initially proposed:
1.That all previous Parenting Orders be discharged.
2.That child [A] born in 2000 live with the wife.
3.That the child spend time with the husband as follows:
(a)Each alternate weekend from the conclusion of school on Friday until 5pm Sunday;
(b)From 4pm Christmas Day until 6pm Boxing Day in 2009 and in each alternate year thereafter;
(c) From 3pm Christmas Eve until 4pm Christmas Day in 2010 and in each alternate year thereafter;
(d)From 3pm New Years Eve until 2pm New Years Day in 2010/2011 and in each alternate year thereafter;
(e)From 10am until 5pm on Father’s Day, the father’s weekend period to be suspended from 10am on Mother’s Day each year;
(f) At such other times as agreed;
4.That save where changeovers occur at [A]’s school, changeover shall occur as follows:
(a)At the commencement of time spent periods at [G] Contact Centre, [M]; and
(b)At the conclusions of time spent periods at [B] Contact Centre, [W]
5.That the changeovers which occur at [B] Contact Centre, [W] and [G] Contact Centre, [M] continue for a period of two years and thereafter, changeovers which do not occur at school shall occur at [O] Police Station at the commencement of time spent periods and [H] Police Station at the conclusion of time spent periods.
6.That the husband’s time spent periods be suspended as follows:
(a)From the conclusion of school on Friday until 5pm Sunday on the Greek Orthodox Easter weekend each year;
(b)For a period of four weeks each year provided the wife gives the husband at least two weeks notice of her intention to exercise said suspension.
The mother initially opposed [A] spending any time with her father over the school holidays, except for the usual weekends. The mother initially proposed that [A]’s time with her father be suspended for four weeks each year to enable the mother and [A] to go on an extended holiday together.
However, between the first and second days of the hearing, to her credit, the mother changed her proposal to provide for [A] to spend half of the school term holidays and two one week blocks of time over the summer school holidays with her father. The mother suggested that the weeks should be 3 to 10 January and 17 to 24 January each year. It was common ground that [A] had about eight weeks holiday in summer, from about 11 December to about 5 February.
The mother proposed that [A]’s time with her father during school term holidays should be from Saturday to Saturday, with a contact centre changeover. The mother proposed that, to let the dust settle, [A] should recommence spending half school term holidays with her father in the June/July school holidays, rather than the April school holidays, which were very imminent. The father was amenable to that proposal.
The parties agreed to the reinstatement of certain of the more standard orders made on 15 November 2006. Those orders have become orders 8, 9, 10, 11, 12 and 13 of the orders made on 1 April 2009.
The father said at the outset of the hearing that he did not wish to take up the recommendation of Ms Manya that he spend time with [A] from after school until 7 pm on alternate Wednesdays. He said the travel time made it not worth collecting [A] from school, taking her back to his house, and then returning her to the mother. Ms Manya explained in oral evidence that she anticipated that the father would remain in the vicinity of [A]’s school with her on the Wednesday afternoons, and they would do activities there, such as having a meal together. However, the father did not seek to resurrect this option.
The issues between the parties were:
a)whether [A]’s alternate weekend time with her father should conclude:
i)at 5pm on Sunday, as the mother suggested;
ii)at the commencement of school on Monday, as Ms Manya suggested; or
iii)at the commencement of school on Wednesday, as the father suggested;
b)whether, over the summer holidays, [A] should spend with her father:
i)two one week blocks, as the mother suggested;
ii)two nine day blocks, as Ms Manya suggested; or
iii)half of the holidays, in any arrangement the court saw fit, as the father suggested;
c)whether, during school term holidays, [A]’s week with her father should:
i)commence at 5pm Saturday, as the mother suggested; or
ii)
commence after school on the last day of term, as
Ms Manya and the father suggested;
d)whether there should be special provision for Greek Easter, as the mother proposed, or not, as the father proposed;
e)whether Christmas changeover should be at 3pm, 4pm or 5pm; and
f)the arrangements for New Year’s Eve.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
However, the best interests of the child are not the only consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations. Additionally, the court must consider the matters set out in subsections (4) and (4A). I will address those considerations in order.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
The mother conceded in her case outline that [A] will benefit from a meaningful relationship with both of her parents. There is no doubt that she will benefit from a meaningful relationship with her mother. There is also, in my view, no doubt that [A] will benefit from a meaningful relationship with her father. The family report interviews amply demonstrated that [A] has a close bond with her father, despite all that has happened. Although the father’s relationship with the mother is dysfunctional, he has a good deal to offer [A].
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The mother submitted that [A] needs to be protected from being exposed to the father’s hostility to and criticism of the mother. Some of the detail of that hostility and criticism is set out in the judgment delivered on 12 June 2008. I refer to and rely on the findings made in that judgment.
In addition, the mother alleged that the father had sabotaged the therapeutic counselling with Dr N by being abusive of her. These allegations were put to Dr N in cross examination. Dr N denied that the father had sabotaged the therapeutic counselling or had been abusive, but said the discussion between the parties had been heated. Dr N said that she would not allow a party to be abusive in counselling. I accept Dr N’s evidence on these points. I consider that a person of her experience would be alert to and would recognise abuse and sabotage of therapeutic counselling. As an independent professional, Dr N could be expected to give unbiased and accurate evidence and I accept that she did in this case.
The mother played a tape recording to the court of some messages left on her new partner’s answering machine at or about 1.49 pm, 3.02 pm and 4.29 pm on 28 July 2006. The messages were left prior to the final orders made by consent on 15 November 2006. The messages were threatening and included repeated percussive sounds that were reminiscent of gun shots. The mother said that the voice on the messages was the father’s. The father denied that it was his voice. On the evidence as it stands, I am not able to be satisfied that the father did in fact leave the messages. The mother’s allegation on this point is a very serious one, and only very sound evidence would be sufficient to substantiate the allegation.
The mother produced her own telephone records from after separation on 20 September 2004 to the time of the consent orders on
15 November 2006. The father conceded that the records showed dozens and dozens of text messages from him to the mother, many on the same day. The father clearly had difficulty accepting that the relationship was over. As Ms Manya’s evidence set out below indicates, the father apparently considered that negative attention from the mother was better than no attention at all.
The father denied in sworn evidence on 5 June 2008 that he had snatched the mother’s sunglasses from her face on 31 December 2007 and maintained that he had taken them from the dashboard. However, he admitted to Ms Manya in the family report interviews that he had actually taken the mother’s sunglasses from her face. He also acknowledged that he had thrown a cup of Coke over her car. The father denied to Ms Manya that he had ever been physically violent towards the mother. The father is under a misapprehension. Snatching the sunglasses from the mother’s face was physical violence towards her.
The sunglasses and Coke incidents occurred in [A]’s presence. They could well have caused the mother to be fearful for her wellbeing and safety. These incidents constitute abuse and family violence from which [A] needs protection. In addition to these incidents, there was the other behaviour described in detail in the reasons for decision delivered on 12 June 2008. It is obviously very distressing for [A] to witness either of her parents being abused, assaulted, mistreated or criticised.
The father relied on exhibit PJR-2 to his affidavit sworn on
30 November 2004, shortly after separation. That exhibit included a list of text messages sent by the mother to the father. It included the following:u being a prik as usual;
I will fight u till I die;
fuk off
U r pathetic u fukn drunk go and fuk yrself. By the way I will be dropn a bomb 4 you soon so sit tite b-c wen it explodes u will be goin on a nice trip! Hav a gd day!;
U fukn send me one more text other than details abov my daughter I wil get a restraining order against u. Get fukd. Seek wot u desire u fukn poisonous prik u think I don’t know wot u and yr family r about? Just leave me alone.
U r a thief and a shifty prik and you betr wotch it [name] or u wont b workin 4 telstra much longer and that is a threat I will play at yr level asshole …
U r a [name] the prik fuk off
Gd ridence little boy!
U r pathetic parasite and remember the boy comment? That is al u r!
Fuk off cunt I hate u. U pathetic person u make me sick just fukn leave me alone …
These text messages are deplorable. They are consistent with the dysfunctional relationship that the mother and father still have with each other. There is no suggestion that [A] was aware of the detail of these messages, although she is well aware of the dysfunctional nature of the relationship between her parents.
The father also relied on the passage quoted above from Ms Manya’s report where she said:
[A] told her father that she was very upset because her mother and other members of her family made fun of her father when they saw his picture on the website.
The mother maintained that there is no picture of the father on the web, so [A] must have been mistaken. The mother said that she and her family did not denigrate the father in [A]’s presence.
Whether or not the father’s photograph is on the web, I accept
Ms Manya’s evidence that [A] told her father that she was very upset because her mother and other members of her family made fun of the father. I find that the mother and other members of her family have made fun of the father in [A]’s presence. That conclusion is consistent with the mother’s general attitude towards the father and is consistent with [A] feeling that she could not leave her mother at changeover in December 2007 and January 2008 to go with her father.
When one parent denigrates the other in the presence of a child, it is abuse of the denigrated parent but also abuse of the child. Every child needs to be able to feel proud of both of his or her parents. If the most important people in the child’s life put each other down, it undermines the child’s own sense of self-worth.
Ms Manya recommended in oral evidence that both parents in this case should make a point of regularly making positive comments to [A] about her other parent. This type of positive behaviour would help to overcome some of the damage that has already been done to [A]’s emotional and psychological development, as explained by Ms Manya below.
Ms Manya’s oral evidence also highlighted that the ongoing conflict between the parents is likely to cause serious, lifetime damage to [A]’s psychological and emotional well being. The ongoing conflict between the parents is a form of abuse of [A]. The court asked Ms Manya to spell out in detail the psychological effect on [A] of the ongoing conflict between her parents. Ms Manya said:
[A] will have to carry a lot of emotional stress, because she is like another party to all this conflict. She will learn very wrongly about relationships, that if there are conflicts, how do people resolve it. … what do they do. They keep … going on hurting each other and trying to hurt each other more and more … So she can grow up not knowing - if she has a conflict with her boss, her partner, her boyfriend, her husband, her children - she may not even know how to resolve issues because she has learnt if you have a conflict, you keep beating the other person in every way possible, and it doesn't get her anywhere.
Apart from that, there is a lot of personal negative impact on her, like her sense of self-esteem will be very low. She has self-doubts about who she is, whether she is loved by her mother or father. … is she worthy of love. [Do] her parents really love her, if they fight like this about her and where does she stand in her life position. … she is not okay, nobody else is okay either ….
So people often make things happen in their life to prove their psychological positions. So she might end up feeling nobody is all right in this world anyway. Everybody fights and this can lead to her, in her late years, if she doesn't resolve it through supportive relationships or through counselling (indistinct) by some people, by their own experiences they come through, but most people continue and her life cycle will be exactly the same.
From what I see in my 24 years, children who grow up in this, they also separate at the exact year, the exact reasons and she may have a very modelled relationship with her own life partner.
Then also it can lead to a lot of psychosomatic - "If people don't listen to anything that is important to me, how else I can get attention from people?" By being sick, by being - you know, in different ways it can affect her physical health. Not just emotional health.
Apart from nightmares, bedwetting and forever she is in conflicted place with the relationship. If she loves one, she cannot love the other. It can apply to many, many people in her life. … if she loves one, she has to hate another one. So she can become quite unpopular with her peers … as she gets along because people think she is stupid …. She doesn't know how to get along. She creates fights between people, … she plays the game of courtroom - like she goes from one person to the other, talks bad about them and then people don't like her. She can become, you know, not popular at school and not successful.
All this will - ultimately adds up to who she is going to be, how much useful she is going to be to this world, and how much enjoyment she is going to receive from this world. It can be a deterrent in all those aspects.
… just because people separate, children don't end up being psychologically affected, but ongoing conflict - whether they are together or separated, and also on this level of conflict where parents are children, [A] can end up being the parent to them, and which is absolutely not good for her.
She can end up having depression, by the time she is 25 to 30 years of age, when she has her first child, all her memorable points in her life. She can revert back to being depressed and once people are depressed, if they don't take care, it can lead to anything. It's a waste of life, basically - of a beautiful child with a lot of potential. It's very damaging to her and both parents say they love her so much but they seem to love the fights between them more than they love the child.
The court also asked Ms Manya how the parents could get out of the cycle they are in. Ms Manya said:
Yes, the cycles go on an expected basis … So this is a game. … The game stops when people give unexpected answers … It stops the game. Then that person thinks, "That's not what you're supposed to say," you know, because they know what's the response coming from that person because they're already for the next step, you know, so it all goes into an expected bad feeling for everybody.
So they can start appreciating each other. Say little thank you - "Thank you that you took care of her. Thank you. You got her back. You know, I think you're a good father," or, "You are an excellent mother." Things, you know, saying positive things.
People often do this to get negative attention because they don't get positive attention from people or it could be that they also have got this world view of personal position that, you know, "I'm not okay. She's not okay." That can only be repaid by saying positive things. If they start saying one positive thing about the other party once a day, then maybe - and start saying that which is very difficult for them. If they start saying that, that could help.
They also have to learn to contain their emotions. For that, they have to - they have to work on themselves rather than trying to change the other person. Here, the problem is each one to change the other to what they think is the right. Actually, if I change, the person who is, you know, transacting with me also has to change. …
So they have to give up their controlling position which neither of them are willing to do. They're afraid of, I don't know, losing what but one of them will have to take - whoever cares more, I often say, has to take that position of, "Okay, I will submit. What can I do to make this okay for you?" and stick to their word. If you make a promise, keep it, and then slowly things will change but this way it will never change. It will be forever until one of them is so tired they can't play it any more.
So ultimately what they want is to feel good but, when games are played, people only get bad feelings … So they are never - you are never …
… whoever cares for the child more, whoever who wants to see [A] as a strong, confident, healthy person, has to say, "Look, I'll give up control. Okay. You don't want me to have her tonight. That's not the court order. If you want it, I will do that. That's fine." But they're scared if they did that, the other person will take over the whole thing but they're not reasonable people. They're not mentally, you know, unhealthy, so one of them has to change the way they react with the other. Then maybe change will come and I think that's what probably Dr N tried to do but it has not been successful.
The court asked Ms Manya if therapeutic counselling could be successful for the parents in this case. Ms Manya said:
Yes, I can never say people don't change. People change and there was a positive relationship before, so they may be able to change. I mean, we all, us people, have capacity to change but whether they learn that, whether they're willing to follow that, whether they're going to let the other person - each one has to say, "She's not going to change," or, "He's not going to change," but, "I'm going to change," and take control of their life instead of just being puppets. Whatever she says, if she says, "You're getting angry. I'm going to scream," he will do that exactly. Then he has got really no power but he thinks, "I'm powerful because now I throw some Coke on her car." So, you know, she thinks, "He didn't get the child today. That's the punishment for him." So it's a waste of life again and [A] will learn all this and she'll be an expert. Even if people don't want to play with her, she'll be inviting people in to playing that. So she has to learn different ways of conflict resolution. How to resolve if there is a conflict. "Okay, sometimes I give. Sometimes you give."
… they can't even say, "Have a coffee," and just talk to each other. Fair enough, before father was still attached to the mother and he was trying to - from 2004 he has tried to get her back in a nice way, then in a bad way and then, "If you don't come back, you'll totally unworthy." He has gone through all that but if he has come to a place where he says, "Well, we both might have made it work. We both are responsible. Now I'm going to move on,"really, not just say the words, then there has to be some visible measurable changes. Not, "I'll change one day." - "I'm not going to say anything negative to the mother even if she abuse me next time," an d he'll have to just [make] very measurable changes. …
You know, people say, "I'll change next year," but it's nothing like that. It's measurable little changes and sometimes he come and demand and the mother can say, "Okay, he was really not nice when he asked," and say, "Look, I'm not happy with the way you have asked but I still will let the child go with you. That 's fine." So if she changes like that, then people can't - when people are nice you can't keep fighting. …
One way or another, it is imperative for [A] that her parents stop their ongoing conflict and stop thereby abusing her. At this stage, the parents did not comply with the orders of 5 June 2008 to attend therapeutic counselling and their attempt to comply with the orders of
2 September 2008requiring therapeutic counselling has been unsuccessful. [A] has a real need for her parents to be able to deal with each other with courtesy and respect. Sadly, neither parent, to date, has demonstrated an ability to put [A]’s needs ahead of his or her own desire to continue their fight.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
In an affidavit sworn on 10 March 2009, the mother said that [A] had told her that she did not wish to spend more time with her father. I do not accept that is [A]’s real wish. The family report shows that the mother is unable to accurately comprehend [A]’s wishes. Ms Manya described the mother as looking shocked when she saw the close bond between [A] and her father at the family report interviews. The mother said that [A] must have lied to her when she said that she did not want to spend time with her father. In view of the mother’s affidavit sworn as recently as 10 March 2009, it appears that the mother has gained no insight into how her attitude to the father impacts on what [A] tells her about her wish in regard to the father.
The family report interviews amply demonstrate that [A] wishes to spend time with her father. [A] specifically told Ms Manya that:
she loved her father to attend her school as in the past and felt sad that [the father] could not attend her school anymore.
[A], appropriately, was not asked how much time she wished to spend with her father. In view of her young age, I consider that some weight, but not determinative weight, should be given to [A]’s views. It remains a matter for the court to determine the amount of time that [A] should, in her best interests, spend with her father.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
[A] has a good relationship with both of her parents, notwithstanding that [A] spent no time with her father for a period of about nine months, and except to the extent that, to please her mother, [A] felt that she could not spend time with her father. This is a major flaw in [A]’s relationship with her mother.
The father gave undisputed evidence, which I accept, that [A] has a good relationship with her paternal grandmother and the grandmother’s husband. There was also undisputed evidence that [A] has a good relationship with her father’s sister, and her two daughters aged 14 and 10.
Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The father has in general terms facilitated and encouraged a close and continuing relationship between [A] and her mother. However, as indicated, the relationship between the parents is highly conflicted. The extreme conflict between the parents, if it continues, is likely to eventually undermine [A]’s relationship with both of her parents. I understand that conclusion to be supported by research from the social sciences.
It was common ground that there was no ability for [A]’s parents to facilitate telephone contact by [A] with her other parent. They have continued in the four and a half years since separation to be unable to have a courteous conversation with each other. The parents should know that this is not normal. Most separated parents have the maturity, self-restraint and ability to place priority on their child’s needs to at least be able to discuss with courtesy basic issues about their child’s care and activities. The parents, for [A]’s sake, should certainly be aiming to reach that point.
The mother, on 15 November 2006, consented to orders enabling [A] to spend five nights per fortnight with her father. To that extent, the mother facilitated and encouraged a close and continuing relationship between [A] and her father.
However, it is now apparent that, in the lead up to December 2007, the mother put [A] in the tragic situation of feeling that, to please her mother, she had to refuse to spend time with her father. Not only did the mother not facilitate and encourage [A] spending time with her father, but, to use a colloquialism, the mother messed with [A]’s mind. The mother’s conduct amounted to seriously deficient parenting, and risked long term damage to [A]’s emotional and psychological development. Having said that, as the judgment delivered on 12 June 2008 and Ms Manya’s evidence shows, the father by his unacceptable conduct contributed to the mother’s attitude to him.
The mother maintained that the conflict between the parents was largely the father’s fault. Ms Manya tried to explain that highly conflicted interactions of the sort that the parents in this case have with each other are like a dance, where each parent takes a step in response to the other’s step. Ms Manya explained that if one parent does not take the usual step, the dance cannot go on and the conflict will end. In that way, it does not matter who started the conflict. The issue is, who will end it? Ms Manya said the one who ends the conflict will be the parent who loves [A] more than he or she loves the fight.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The proposed changes, to the extent that they would result in a decrease in the time [A] is to spend with her father from the time specified in the orders made on 15 November 2006, would reduce or completely eliminate the occasions when the father would take [A] to school.
The proposed changes, to the extent that they would result in an increase in the time [A] is to spend with her father from the time specified in the interim orders made on 2 September 2008, are in general terms, likely to better promote a relationship between [A] and her father.
In relation to [A] spending time with her father on school days, I note that [A] attends [O] College. In the past, it was not disputed that the father had not attended any of [A]’s parent-teacher interviews and had not attended any of her Friday afternoon school assemblies, although they finish when the father’s time with [A] starts in alternate weeks. She is now in Grade 3. The father in addition did not wish to take up Ms Manya’s recommendation that he spend time with [A] from after school on alternate Wednesdays until 7 pm. The mother conceded that the father had attended [A]’s end of year school concerts.
The father lives in Property R. Order 4(a) of the orders made on
15 November 2006required the father to live within 20kms of [A]’s school, before [A] began spending time with her father from Friday to Wednesday in alternate weeks. By my calculation, the father now lives just over 20 kilometres from [A]’s school, as the crow flies. Whether that calculation is accurate or not, on any view, the father is now living at the outer limit of what the parties considered in 2006 to be an acceptable distance from [A]’s school. The parties focussed on the time the trip from the father’s home to [A]’s school would take.
The father conceded that [A] needs to be in the school grounds by 8.30 am and the bell rings at 8.40 am. The mother said in her affidavit sworn on 10 March 2009 that it would take two hours to travel from [R] to [O] in peak hour traffic. The mother had not done the trip herself at that time of day, but said in oral evidence that it took one hour and
10 minutes to do a comparable trip from her home in Property N to the [W] Contact Centre on a Sunday afternoon.
The father said that he had never driven [A] to school from his present home in [R] but had driven her to school many times from his previous home in [U]. He said that trip, which was a little further, took 45 minutes or a maximum of one hour on Monday, Tuesday and Wednesday mornings. He said he usually woke [A] at 7.30 am and they usually left at 8 am though sometimes at 7.50 am or 7.55 am. He said he had only been late once, due to an accident on the freeway.
There was no evidence from the school to show whether [A] had been late for school or not while in the father’s care. However, the father has not been entirely truthful to the court, as explained elsewhere. I am not persuaded, simply on the basis of the father’s oral assertions, that [A] has only been late for school once while in his care. The travelling distance between the father’s home and [A]’s school, and the fact that the father has to travel on busy roads, makes it foreseeable that, from time to time, there will be traffic accidents or other problems that will add considerably to the duration of the trip.
The father said that, to take [A] to school, he would travel down [roads omitted].
He said, in the past, when he lived in [U], which was five to 10 minutes further out, it took him 45 minutes to one hour to get [A] to school. On the father’s evidence, deducting the five to 10 minutes, it would now take him, from [R], 35 to 55 minutes to get [A] to school. If he left as early as 7.50 am, and the trip took only 35 minutes, he would get [A] to school at 8.25 am, that is, just before she was required to be in the playground and 15 minutes before the school bell. That is the best case scenario.
If, however, he left at 8 am, as he said he usually would, and it took
55 minutes, as he said it sometimes would, [A] would get to school at 8.55 am. That would mean that she would arrive 25 minutes after the scheduled time for her to be in the playground and 15 minutes after the school bell. If they left at 8 am and the trip took only 35 minutes, [A] would arrive at 8.35 am. She would arrive 5 minutes after the scheduled time to be in the playground and five minutes before the school bell. All in all, on the father’s evidence, if the father left home at 8 am, as he said he usually would, [A] would be somewhere between a little late and very late for school.
Although he now lives in [R] rather than [U], the father continued to estimate that it would take 45 minutes to one hour to get [A] to school. There is a question about whether that estimate is reasonably accurate. In support of his estimate, the father said it took him 10 to 15 minutes to get from [R] to [F] in morning peak hour because he was going against the traffic. That is patently untrue. The traffic in the morning would go from [R] to the city, via [F]. However, I accept that, once the father was on the [omitted] Freeway, he would be going against the traffic.
It is noteworthy that the father then said it took 10 to 15 minutes to get from [R] to [F] at 7.30 am. However, the father had claimed that he left for school between 7.50 am and 8.00 am. It is a matter of common knowledge that traffic in Melbourne builds considerably between
7.30 amand 8.00 am.
When the court queried with the father [A]’s arrival time if it took
45 minutes to reach school, the father said that they left the father’s place at 7.50 am or 8.00 am (from [U]). When the court put to the father that, on his evidence, he would have needed to leave home at 7.30 am to be confident of getting [A] to school by 8.30 am, he at first said, 7.45 am or 7.50 am but eventually conceded that he would have had to have left at 7.30 am.
The changes in the father’s evidence on this issue did not give the court confidence in his estimates of the duration of the journey. All in all, I do not find the father’s evidence about travel times to be credible. For the reasons given elsewhere, I am not persuaded that the father has been a truthful witness overall.
The paternal grandmother, who was not cross examined, said that it took her 45 minutes to travel from her home in [U] to [A]’s school on a Friday afternoon and about one hour to do the return trip to the father’s house in [R]. The mother said school finishes at 3.20. Accordingly, I assume that the trip to school would start at about 2.30 pm and the return trip would start at about 3.30 pm. I consider that the return trip would involve some travel during the beginning of the afternoon peak.
I do not accept the mother’s estimate that the trip from the father’s home to [A]’s school would take two hours. Her estimate was entirely speculative. I do not accept the father’s claim that it would take 35 or 55 minutes to travel from the father’s home to [A]’s school if the father left at 7.30 am or later. I consider that the trip would take about one hour if the father left his home between 7.15 and 7.30 am. If he left his home at 8 am, I consider that the trip would take about one and a half hours. I base these conclusions on:
a)the notorious fact that the traffic builds up considerably between 7.30 am and 8 am;
b)the mother’s evidence that a comparable but somewhat longer trip from her home in Property N to [W] takes one hour and 10 minutes on a Sunday afternoon; and
c)the paternal grandmother’s evidence that it took her about one hour to travel from [A]’s school to [R] at about 3.30 on a Friday afternoon.
I am bolstered in my estimate of the time of the trip by the fact that the father, perhaps inadvertently, said that the trip from [R] to the city was 15 to 20 minutes at 7.30 am. I consider that the father actually aimed to leave for school at about 7.30 am rather than 8 am, but frequently left at about 7.50 am.
The consequence of the trip taking the times I have found is that [A] would be late for school if she left after 7.30 am, which is what the father claimed she did.
I consider that it is likely that the father did sometimes get [A] to school late in the past and would sometimes get [A] to school late in the future. That conclusion is consistent with the evidence that the father had been late for the changeover in [W], about 10 minutes from his home, on numerous occasions. The father accepted that evidence, but said it was because [A] was reluctant to leave him. That is not an adequate explanation. Capable parents acting with goodwill are able to get their children to changeover on time. I do not accept the father’s claim that it was easier to get [A] ready for school because she was happy to go. The father’s claim that they usually left at 8 am was not consistent with his evidence that it took only 15 minutes to get to [F] at 7.30 am.
There are obvious problems for a child in being late for school. They miss out on the social interaction in the playground before school starts. They miss out on the settling in time in the classroom. They miss out on the first part of the lessons for the day. They might get anxious and embarrassed about being late. They might get into trouble with the teacher for being late. They might be ridiculed by their peers for being late.
In any event, it is well established that it is difficult for children to be in a substantially shared care arrangement where the parents are in a state of ongoing conflict. It is particularly difficult for a child to spend school days in two households where the parents are in conflict. For example, children often forget items such as their school readers, sports uniforms, projects or musical instruments as they move from one house to another. If the parents are in conflict, the child will feel that she cannot ask one of her parents to help her out by delivering the forgotten item to the other parent’s household. The child is then likely to be stressed or embarrassed by not having the appropriate item.
Unfortunately, I presently have no reason to believe that the parents in this case will be able to let go of their conflict. Two orders for therapeutic counselling have been to no avail.
It is also notoriously difficult for a child to live in a substantially shared care arrangement where her parents live a considerable distance apart. In this case, the orders of 15 November 2006 required the father to live within 20 kilometres of [A]’s school before she increased her time with her father up to Wednesday mornings. The father took that order to the very brink if not beyond it. While the father was within his rights to live almost 20 kilometres from [A]’s school, the order was probably premised on the assumption that [A]’s parents would have resolved their conflict.
The distance between the parents’ homes makes it difficult for a child if she does forget something, because it is that much more difficult for her parents to help her out by delivering the forgotten item to her. It also makes it difficult for the child to spend time with her friends after school and on weekends because she is so far away. The distance also makes it harder for the child to continue with her sporting and other activities on the weekend.
The mother said that, when the father returned [A] to her on Sundays, her lunch box had not been washed, and her underwear and school uniform had not been washed. The father denied this. I prefer the mother’s evidence, on the basis that I consider her to be a more truthful witness overall than the father, for the reasons explained elsewhere, and because the father not attending to the washing of [A]’s things seems to me to be consistent with his uncooperative attitude towards the mother. However, there was no evidence that the father did not properly prepare [A] for school in the past.
All in all, I conclude that [A] spending school days with her father would be likely to have some deleterious effects on her as described above.
On the other hand, [A] expressly told Ms Manya that she wanted the father to come to her school. The father received Ms Manya’s report, with [A]’s statement in it, before the consent orders were made on
2 September 2008. Notwithstanding [A]’s express wish, the father has not taken the opportunity to attend [A]’s school on alternate Friday afternoons to collect her or to attend her school assemblies.
The father maintained that, as a self-employed [occupation omitted], his working hours are completely flexible. However, since the orders were made on 2 September 2008, the father has not once collected [A] from school. He said he is giving the paternal grandmother and her partner the opportunity to spend time with [A] by collecting her from school.
It is generally good for children to spend regular time with their grandparents. However, it is also generally good for children if their own parents attend their school from time to time and meet their school friends, meet the parents of their school friends, exchange a few words with their teacher and generally show an interest. The father’s explanation for not taking the opportunity to spend this time with [A] once since September 2008 is inadequate.
It would be to [A]’s benefit for her father to participate in her school activities. The father might be encouraged to participate in [A]’s school activities if she spent some school days with him. However, the father has failed to collect [A] or attend her school assemblies on alternate Fridays and has failed up to the time of trial to attend a parent-teacher interview. He did not seek to take up Ms Manya’s recommendation of spending time with [A] on alternate Wednesdays from after school until 7 pm.
If orders were made for [A] to spend time with her father from Friday afternoon until Wednesday morning in alternate weeks, the father would at least collect her from school on Mondays and Tuesdays. The father said that on those days, [A] would go to after school care, which she enjoyed, and he would collect her at about 4.30 pm. This would be of some benefit to [A], in that it would enable the father to have some involvement, albeit a small one, in her school life.
Unfortunately, in all the circumstances, I am not satisfied that [A] spending some school days with the father would actually result in him participating significantly in her school life. Consequently, the benefits to [A] spending some school days with her father are likely to be outweighed by the detriments described above. The considerations set out above do not apply to school holiday time. Increasing the time from the present level that [A] spends with her father on school holidays could be expected to promote a meaningful relationship with him and benefit [A] overall.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There are the practical difficulties arising from the distance between the parents’ homes which are described above.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Both parents are well able to provide for [A]’s emotional and intellectual needs, except to the extent that they engage in ongoing conflict. That is causing damage to [A], as described above.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The mother has a Greek background and the father is half Anglo-Australian and half Greek. The mother wanted special orders about Greek Easter and the father asked that Greek Easter just lie where it falls. The mother did not seek special orders about Greek Easter when the interim orders were made in 2004 or when the final orders were made in 2006. She did not give evidence about the special significance of Greek Easter to her or to [A].
In relation to the maturity of the parents, it is apparent that they have an immature way of relating to each other. They need to understand that a fight to the death does not benefit anyone, least of all their own daughter. They also need to understand that relationships between mature people involve cooperation, generosity of spirit and a reasonable amount of give and take from both parties.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor does not apply in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
As to the father’s responsibility to financially support [A], he conceded that he had sometimes been in arrears with his child support. However, he had discharged all arrears prior to the hearing, including a payment of $1,800. The father conceded that he made no other contribution to [A]’s upkeep while she was with the mother and, more particularly, made no contribution to [A]’s school fees or costs of excursions.
The father said he paid for everything while [A] was with him. However, the father also requested that certain payments made by him on [A]’s behalf be treated as non-agency payments by the Child Support Agency. Those payments were:
a)14 March 2005: $65 for runners;
b)13 March 2007: $232.90 for a sports uniform;
c)4 June 2007: $34.85 for medicine;
d)18 June 2007: $65 for a school jumper; and
e)31 July 2007: $25.85 for medicine.
The father may have been within his rights to ask that these items be treated as non-agency payments. However, in doing so, as an apparently successful [occupation omitted], the father appears to have been mean-spirited (especially in relation to the medicines) and appears to have simply been continuing his antagonistic behaviour towards the mother. However, on the state of the evidence, I am unable to make any findings about these matters.
It was also common ground that the father had said, in [A]’s presence, that he would agree to not seek to spend time with her in exchange for his child support obligations being terminated. Obviously, these statements would have been very disturbing for [A]. They also indicate that the father, at least for a time, did not intend to not fulfil his financial responsibilities to [A] or his emotional and caring responsibilities. Fortunately, the father changed his mind.
Shortly before the trial, the mother asked the father to contribute half the cost of [A]’s singing lessons and he did so promptly.
The father conceded that he had not attended any parent-teacher interviews in respect of [A] and had not participated generally in her school life. Before December 2007, he had taken [A] to and from school when she was in his care. Since contact resumed in September 2008, the father had not attended [A]’s school but had arranged for his mother to collect [A] from school on Friday afternoons. This demonstrates a less than ideal attitude to his parenting responsibilities.
The father said that the mother did not tell him about special events at school that he could have attended. However, the father is an adult. He could have made his own enquiries. The father now says that he wishes to take [A] to and from school on those school days when she is with him, except Fridays. That indicates an improved attitude to his parenting responsibilities.
The mother has demonstrated a good attitude to her parenting responsibilities, except in relation to her persistent conflict with the father and except in relation to her not adequately facilitating and encouraging a close and continuing relationship between [A] and her father. Both parents have failed in their responsibility to [A] by continuing to engage in their conflict.
Having said that, I am sure that both parents do love [A] very much. With the exceptions I have mentioned, they both appear to care for [A] well while she is with them.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
There has been the constant abuse and conflict, already described, and the sunglasses incident, already described. The father also maintains that the mother’s brother assaulted him shortly after separation. However, this issue was not explored sufficiently in evidence for me to be able to make any findings about it.
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
It was not suggested that there were any current family violence orders. The mother’s application for an intervention order against the father was dismissed following a contested hearing.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In general terms, it is preferable to bring finality to the existing litigation and to make the order that would be the least likely to lead to further litigation. However, I am unable to predict what order would be the least likely to lead to further litigation in this case. The parties are both inclined to fight each other regardless of the consequences for themselves or their daughter.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
Each party thought the other was unreasonable when the father wanted to change his time with [A] from after school on Friday
31 October 2008 to 5 pm on Saturday 1 November 2008 to the same times on another weekend. The reason for the proposed change was that the father had booked a golfing trip about one year earlier and he was due to depart on the Friday. He said the trip was for seven or nine days. He said he had tried to change his flights but he could not get another flight until the Sunday. The father said that he knew about the golfing trip when he consented to the orders made on 2 September 2008. Those orders specifically provided for [A] to spend time with her father on the weekend in question. The mother refused the father’s request. The father went on his golfing trip and did not see [A] between 19 October 2008 and 13 November 2008 inclusive.It seems to me that this was a perfect opportunity for the mother to do what Ms Manya suggested, and just go along with the request made by the father. It would have helped to build up trust and goodwill between the parents. It would also have given [A] the benefit of spending time with her father. The mother did not suggest that there was any particular reason that [A] should not spend a different Friday night with the father rather than the Friday night nominated in the orders.
Having said that, the fact that the father chose to spend time golfing, rather than with his daughter, when he had only just started seeing her again after a nine month absence, suggests that he is not as devoted to [A] as he has suggested. This is especially so, given that he could have got another flight on the Sunday, and only missed two days of his seven to nine day trip.
Both parties also thought that the other was unreasonable in relation to the father’s request to change his night with [A] from Friday 14 November 2008 to Saturday 15 November 2008. At that time, the orders provided for [A] to return to her mother at 5pm on the Saturday. The father wanted to swap nights, so that [A] could attend his birthday party on the Saturday night. The mother said that she preferred that [A] spend the Friday night with her father but that she would collect [A] from the venue at 10pm on the Saturday to enable [A] to attend the earlier stages of the party. The father rejected that offer because he thought [A] would be upset about having to leave early.
The father had led the mother to believe that she had to agree to [A] staying on the Saturday night or [A] would miss out on the party. However, all along, the father had tentatively booked the venue for both the Friday and the Saturday nights. This fact became known to the mother during therapeutic counselling, prior to the relevant weekend. The issue of the birthday party became a cause for heated discussion at the counselling session. As it turned out, the party was held on the Friday night and [A] attended it.
Again, this was a perfect opportunity for the mother to simply accommodate the father’s request. There was no suggestion that the mother had any particular reason for not wanting [A] to spend the Saturday night with her father. If the mother had accommodated the father’s request, it may be that the father would accommodate a request in the future by the mother, to go to Greece, for example.
Section 60CC(4): Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii)communicating with the child; and
c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
These matters have been addressed previously.
Section 60CC(4A): If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The circumstances since separation have been addressed previously.
Equal shared parental responsibility
Section 61DA of the Act provides as follows:
1.When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2.The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
3.When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
4.The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The parents were in agreement that equal shared parental responsibility should apply in this case. I support that view, notwithstanding the serious conflict between the parents. It seems to me that providing for the parents to have equal shared parental responsibility leaves scope for them to focus appropriately on [A]’s needs in the future and to learn to treat each other with more courtesy and respect.
Equal or substantial and significant time with each parent
Where the parents have equal joint parental responsibility for a child, s.65DAA of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. That section provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
4.Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Neither parent sought equal time in this case. I consider that [A] spending equal time with each of her parents is not appropriate in all of the circumstances of this case, particularly the ongoing conflict between the parents and the distance between their homes.
Taking into account all the relevant considerations and all the circumstances of this case, as discussed above, I do not consider that it would be in [A]’s best interests to spend substantial and significant time with her father, to the extent that such time would involve school days on Mondays, Tuesdays and Wednesdays. However, as the mother eventually recognised, it would be in [A]’s best interests to spend a good deal of time with her father over school holidays.
Alternate weekend time
The parties were in agreement that [A]’s alternate weekend time with her father should generally begin from the conclusion of school on Friday. The father proposed that if [A] was not required to attend school on the Friday, his time should commence after school on the Thursday. The mother did not strenuously resist this proposal. I consider that it would be in [A]’s best interests. It would enable her to spend more time with her father without the problems associated with the father getting her to school.
The major issue between the parties was when [A]’s alternate weekend time with her father should conclude. The mother proposed Sunday at 5 pm, Ms Manya proposed Monday before school and the father proposed Wednesday before school.
As indicated above, I do not consider that it would be in [A]’s best interests to spend time with her father on Mondays, Tuesdays and Wednesdays if those days are school days. However, if the Monday is not a school day, I consider that it would be in [A]’s best interests to have the additional time with her father.
With the utmost respect to Ms Manya, I do not accept her recommendation for [A]’s time with her father to extend to the Monday morning on school days. Ms Manya made this recommendation initially in her report dated 22 August 2008. Ms Manya stood by her recommendation in her oral evidence on 27 March 2009. However, it is not clear that Ms Manya had fully factored in or been aware of all of the following matters:
a)the failure of the therapeutic counselling;
b)the continuing conflict between the parents;
c)the time it would take [A] to get to school from the father’s home;
d)the fact that the father had been repeatedly late for changeover at the [W] Contact Centre, which is a short distance from his house;
e)the fact that the father had not once collected [A] from school since resuming contact with her in September 2008;
f)the fact that the father had not once attended a parent teacher interview although [A] is now in Grade 3;
g)the fact that the father did not seek to take up Ms Manya’s recommendation to spend time with [A] on alternate Wednesdays from after school until 7 pm;
h)the fact that the father had behaved uncooperatively by not washing [A]’s things before returning her to her mother;
i)the fact that both parents were unable to act cooperatively in relation to the father’s requests to change dates in October and November 2008; and
j)the fact that the father preferred to go on a golfing trip rather than spend time with his daughter in November 2008, even though he could have seen her and missed only two days of the seven to nine day trip.
Most importantly, I note that [A] has had a traumatic time of late. Her “meltdown” in December 2007 was clearly the result of enormous emotional pressure. I repeat that Dr N said that:
[A]’s capacity to deal with the pressures of parental conflict seems to have caused varying instances of emotional and psychological collapse for her ….
This is serious. [A] needs to be spared as much stress as possible, to give her a chance to recover from the damage already done to her by her parents’ conflict. I also note that Dr N was of the opinion that:
In terms of parenting arrangements, my experiences with [A] suggest that she is coping relatively well, within the qualifications already identified above, under the present schedule.
Dr N saw [A] in January 2009, which is more recently than Ms Manya, who last saw [A] in August 2008. Dr N has seen [A] more than once after she had recommenced spending weekend time with her father, whereas Ms Manya only saw [A] on the day when she was reunited with her father. In these circumstances, it is proper to give considerable weight to Dr N’s observation that [A] is coping relatively well under the present regime. It is implicit in Dr N’s report that altering that regime would pose a risk to [A]’s wellbeing.
Taking into account all of the circumstances of the case, including all of the relevant considerations and including the benefit to [A] in having a meaningful relationship with her father, I consider that it is in [A]’s best interests that she continues to spend the night before school in her home base. This will enable [A] to return to her routine, enable her mother to ensure that everything is ready for school for the week, and permit [A] to have a relatively short trip to school in the morning. If, however, the Monday is a non-school day, it would be in [A]’s best interests to spend the extra day with her father, to further promote a meaningful relationship with him.
I appreciate that concluding [A]’s time with her father on a Sunday necessitates a contact centre changeover rather than a school changeover. I also appreciate that any contact between the parties, even at a contact centre, should be minimised, because of the conflict between them. However, for the reasons already given, I consider, on balance, that the Sunday afternoon changeover is in [A]’s best interests.
Holiday time
The mother initially proposed that [A] should have no holiday time with her father apart from the usual alternate weekends. However, she later proposed that [A] should spend half of school term holidays with her father, starting at 5 pm on the first Saturday, and two specified blocks of seven days over the summer holidays. Ms Manya suggested half school term holidays and two nine day blocks over summer. The father sought the reinstatement of the 15 November 2006 orders which provided for [A] to spend half of all school holidays with him, although he was flexible in relation to the duration of the blocks of time.
I consider that it is in [A]’s best interests that she spend a substantial amount of time with her father in school holidays. In addition to half of school term holidays, I consider that it is in [A]’s best interests that she spend three one week blocks with her father over the summer holidays. This will give her three days more in the summer holidays than Ms Manya suggested, but will spread them over three blocks. I consider that it is in [A]’s best interests to have slightly shorter but more frequent blocks of time with her father, due to her relatively young age.
Given the continuing conflict between the parents, and the fact that they have had difficulty in the past agreeing on the meaning of previous orders specifying changeover dates, it is necessary that the court specifies the dates with as much clarity as possible. The dates proposed by the mother seem reasonable to me, but, in addition, there should be one more week before Christmas.
I consider that it is in [A]’s best interests that her school holiday time with her father commence on the Friday after school as usual rather than the Saturday. I consider that the regime for these parties needs to be as simple and as consistent as possible, to minimise the chances of confusion or argument, and to make things easier for [A]. The Friday changeover will also make for one less interaction between the parents. The mother argued that the Saturday changeover would permit her to get [A] ready for the holidays. However, I see no reason why the father would not be able to get [A] ready for the holidays.
Christmas changeover time
There was a dispute around the changeover time for Christmas Eve, Christmas Day and Boxing Day. I consider it to be in [A]’s best interests that changeover be at 5 pm. That changeover time has the benefit of consistency with the other changeover times, and will allow [A] and her family to have a leisurely lunch on Christmas Day. There was nothing put forward to suggest that there were any special issues that arose in connection with Christmas.
New Year
There was also a dispute around the changeover time for New Year’s Eve. [A]’s paternal grandfather died on New Year’s Eve and her father’s family has a regular commemoration for him in the afternoon of New Year’s Eve. New Year’s Day is significant in the mother’s family because it is [A]’s maternal grandfather’s name day. The father wanted time with [A] each alternate year to enable her to participate in her paternal grandfather’s commemoration and in the other year from New Year’s Day to 2 January. The mother argued that it was too much for [A] to spend time with her father from New Year’s Day to 2 January.
I consider that it is [A]’s best interests for changeover for New Year to occur at 11 am. This will enable [A] to participate as much as possible in the special events on both sides of her family. I consider that it is also in [A]’s best interests that she spend a day each year with her father around New Year. This will help to promote her relationship with him, even though it will necessitate more changeovers. The day will begin on New Year’s Eve or New Year’s Day in alternate years.
Greek Easter
I do not consider that it is in [A]’s best interests for special provision to be made for Greek Easter. Neither party sought provision for Greek Easter in the previous orders made by the court and neither party adduced evidence suggesting that Greek Easter was of any special significance to them or [A], such that she should be with one or the other of them at Greek Easter time.
Holidays in April 2009
The father accepted the mother’s view that [A]’s school holiday time with him should begin in the June/July school holidays in 2009. However, that acceptance was premised on [A] spending more time with the father over the weekends than has been ordered. In the circumstances, I consider that it is in [A]’s best interests that she spend extended weekend time with her father during the school holidays in April 2009.
Other matters
Otherwise, there were some fairly mechanical matters about the place of changeover and special days and so on. The parties were able, commendably, to agree on the bulk of these issues. Hopefully, the parties will be able to put the past behind them and, for [A]’s sake, learn to deal with each other with courtesy, respect and flexibility.
I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Ashika Kanhai
Date: 24 April 2009
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