Richards and Whipp

FAMILY COURT OF AUSTRALIA

RICHARDS & WHIPP

[2009] FamCA 107

FAMILY LAW – CHILDREN - parenting - interim - what interim orders are in two year old child’s best interest when current attachment to father fragile - father attending from overseas for block period - pending application against mother for contempt - pending application about appropriate forum

Family Law Act 1975 (Cth)

APPLICANT:

Mr Richards

RESPONDENT:

Ms Whipp

FILE NUMBER:

SYC

4363

2007

DATE DELIVERED:

11 February 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

12 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton

SOLICITOR FOR THE APPLICANT:

Meyer Pigdon

COUNSEL FOR THE RESPONDENT:

Mr Batey

SOLICITOR FOR THE RESPONDENT:

Adrian Twigg & Co

Orders

Orders made 12 December 2008

The father’s application for contempt filed 9 December 2008 be listed for hearing before Justice Le Poer Trench on 3 April 2009.
On or before 30 January 2009 the solicitors for the mother provide written notice to the solicitors for the father as to whether or not Ms B is required to give oral evidence at the contempt hearing and whether or not her counselling memorandum dated 1 December 2008 can be admitted without objection as evidence.
The following applications be listed before me for hearing on 8 April 2009:
3.1.The mother’s application filed 26 September 2008;
3.2.The mother’s application filed 24 September 2008;
3.3.The application filed 11 December 2008 by the mother for a stay of Orders 12 and 13 made by Justice Cohen on 28 November 2008;
3.4.The application for the orders sought by the father numbered 1 to 6 in Exhibit “CC”.
In the event that the mother’s application of 26 September 2008 is unsuccessful the parties and the child and any other significant adult shall attend the family consultant, Ms B, for interviews on 21 April 2009 and the family consultant is to provide to the court a family report on those matters referred to in s 60CC Family Law Act which the family consultant considers relevant.
On or before 20 February 2009 each party file and serve:
5.1.All affidavits upon which the parties rely;
5.2.A list of any relevant material which either party has already filed and any other material that is on the court file
relevant to the matters that are set for hearing on 8 April 2009.
On or before 20 March 2009 each party file and serve a written outline of arguments in dot point form relevant to the mattes that are set for hearing on 8 April 2009.
Orders 1.3, 1.4 made 10 December 2008 be discharged.
Orders 5, 6 and 7 made by Justice Cohen on 28 November 2008 be discharged.
The child born … March 2007 spend the following periods of time with her father:-
9.1.From 9am to 12 noon on 1, 2 and 4 April 2009.
9.2.From 9am to 2pm on 6 and 7 April 2009.
9.3.From 9am to 5pm on 9 - 13 April 2009 and 15 - 26 April 2009.
During the times referred to in Order 9:-
10.1.Subject to Order 10.3 and 10.4, a person nominated by the mother or otherwise agreed upon between the parties in writing will facilitate the contact between the child and her father and be present during these periods.
10.2.That person is not to be the maternal grandmother.
10.3.That person will absent themselves for one hour on 9 April 2009 and during the following four occasions and thereafter will absent themselves for a period of two hours for the remaining occasions with the intent that those periods of one hour and two hours will be periods when the father will have one to one time with the child.
10.4.The parties can agree on some different arrangement (including times) as long as it is in a written document they have both signed.
Liberty be granted to the parties to reapply on 24 hours notice in respect of the periods referred to in Order 10.3 in the event that the child has any significant adverse reaction at these times.
Both parties costs be reserved.

NOTATION

In the proceedings listed for hearing on 3 April 2009, the father intends in his case to rely upon a counselling memorandum dated 1 December 2008 as a proof of the oral evidence that could be given by the family consultant, Ms B.
The reasons for these Orders will be published at a later date.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4363 of 2007

MR RICHARDS

Applicant

And

MS WHIPP

Respondent

REASONS FOR JUDGMENT

This application came into my list on an urgent basis in circumstances where orders were sought that the mother be dealt with for contempt of a court order based on an assertion she had breached an order made by Cohen J. There also was an issue as to whether the matter be heard in Australia or in New York.
Cohen J had ordered the parties have leave to seek to obtain a three day hearing in relation to the forum issue. In addition, Cohen J had ordered that the parties attend a reportable conference with a Family Consultant. It is this order the mother is alleged to have breached.
Exhibit AA is a Child Responsive Program memo by the Family Consultant. It records that at a meeting with the mother on 1 December 2008:-
“The mother presented herself at Court for the scheduled Intake and Assessment Meeting. However, she advised that following legal advice, she is not prepared to proceed with the meeting at this point in time due to there being ongoing legal proceedings in New York which are scheduled to commence in America on 16 December 2008. In this conversation [the mother] also indicated that she would not be available to attend the Child and Family Meeting in the Sydney Registry of the Family Court of Australia on 11 December 2008 as she would ‘not be here’.”
On the basis of the information I had and upon the ex parte application of the father, I made an injunctive order stopping the mother from leaving the country and putting her on the watch list.
On 11 December 2008 Mr Batey appeared on behalf of the mother and indicated that the mother would attend the Child and Family Meeting with the child (although that had not happened on 11 December, which was the scheduled day, because the child had become unwell and had developed acute tonsillitis). Mr Batey indicated from the bar table that the mother had been given certain advice and that the legal advice referred to in the memorandum was not from an Australian lawyer, but a lawyer associated with the proceedings in America.
On 11 December the mother agreed, after some discussion, to attend upon Ms B for the intake interview and if the child was well enough, to attend with the child on the following day, on 12 December.
On that day the child had recovered sufficiently to attend with the mother at the Child and Family Meeting.
Notwithstanding the fact that the mother has now fully attended the meeting, the father still wishes to proceed with his application that the mother be dealt with for contempt.
On 12 December 2008 I made some procedural orders setting the application for contempt down for a hearing before Justice Le Poer Trench on 3 April 2009.
Further, I set for hearing before myself on 8 April 2009 an argument in relation to whether or not this Court is an appropriate forum to determine the final parenting applications between the parties. In the event that the mother is unsuccessful in respect of the challenge to this Court being the forum for the final resolution of the parenting issues between the parties, I then made an order that the parties attend upon a Family Consultant on 21 April 2009 for the purposes of the preparation of a full Family Report. I made it clear on more than one occasion that that appointments for the preparation of the Family Report will only take place in the event that the mother’s application to stay the father’s parenting application in Australia is unsuccessful.
It was clear that the father probably had to arrange his itinerary so that he was available on 21 April 2009 if it turned out that the mother’s challenge to forum was unsuccessful.
In those circumstances, I was informed that the father would make arrangements to next come to Australia between 1 April 2009 and 26 April 2009. The parties will be involved in processes in this Court on 3 April 2009, 8 April 2009 and provisionally on 21 April 2009.
On Thursday 11 December 2008 I indicated that the Court would reconvene on Friday 12 December 2008 as soon as Ms B had finished what she had to do with the parties and the child.
Some time was lost on 12 December 2008 due to the unavailability of counsel when the matter was due to recommence at the conclusion of the parties’ time with the Family Consultant. As was clear to the parties, I had to leave to catch a plane. There was insufficient time to provide reasons on that day or prior to me commencing my leave over the Christmas/January period. I now provide those reasons.
The father sought that I make interim orders that the child be able to see him during the next block period when he came back to Australia in 2009.
On Thursday 11 December Ms B was in the court room. There was a discussion as to the terms of the father’s application for interim orders. The father’s proposal then was that he spend time with the child for about 14 out of 21 days between the hours of 9am and 5pm. Initially it seemed that the father was saying that these days could either be consecutive or non consecutive. On 11 December counsel for the father said that the father’s position was that supervision of the child’s time with him was not necessary and that his primary proposal was that the child’s time with him would take place without supervision so that he would see the child alone. Up until this time, the mother or someone nominated by the mother had been with the child when the father had been seeing the child.
So far as I am aware, the discussions between the father and Ms B and the cross examination of Ms B proceeded on the basis that the father’s proposal was to spend time with the child between the hours of 9am and 5pm each day with that time to be supervised.
After Ms B had given evidence on 12 December counsel for the father presented an amended and consolidated application (Exhibit CC), which counsel for the mother had seen prior to his cross examination of Ms B.
That application, amongst other things, sought final orders for equal shared parental responsibility. Orders 9, 10 and 11 sought final orders in the following terms:
9.That the child spend time with her father over a three week cycle in Sydney (counsel for the father indicating orally that the father intended to come to Australia at least three times a year) as follows:-
1.1From 9am to 5pm on Monday, Wednesday, Thursday, Friday and Sunday in the first week;
1.2From 9am to 5pm on Tuesday, Wednesday, Thursday and Friday and Sunday in the second week; and
1.3From 9am to 5pm on Tuesday, Wednesday, Thursday and Friday in the third week
provided that the father gives the mother at least four weeks advanced written notice of his intended visit to Sydney, including arrival and departure dates, via email.
10.That for the purpose of facilitating care periods pursuant to these orders, the supervisors nominated by the mother or as otherwise agreed between the parties in writing, will facilitate and be present during the care periods with the child on an interim basis (if the Court deems such supervision necessary).”
11.That for the purpose of facilitating the care periods, the mother and/or her nominee will deliver the child to the father’s residence at the commencement of each care period.
The father ended up seeking interim orders in accordance with paragraphs 9 through to 11 of Exhibit CC (although the period was to be longer than three weeks). In the end the father varied what he sought on an interim basis in order 10, having heard Ms B’s evidence, so that a supervisor as nominated by the mother would be present on the first three occasions and that for the next three occasions, not be there in the mid two hour period and thereafter be dispensed with.
The issue before me on an interim basis was what time the child should spend with her father between 1 April and 26 April 2009 and whether or not it should be “supervised”, given the difficulties in the child’s attachment with her father described by Ms B which are more fully described below.
The mother’s primary position in relation to the interim application was that no order should be made. She asserted that it should be left up to her to determine, without the intervention of a court order, what time she made the child available to the father during the next period when he came to Australia and in what circumstances.
Alternatively counsel for the mother submits that the court should act cautiously and await the interviews and see what the Family Report says before the Court would move to make any order. That submission of course ignores the mother’s own case. There will be a hearing in relation to what is the appropriate forum on 8 April 2009. If the mother is successful in her application then the interviews for the Family Report and the preparation of that Report will not take place.
Counsel for the mother made no formal adjournment application in relation to the father’s application for me to deal with the issue of interim time.
Counsel for the mother challenged the jurisdiction of the Court to make orders on an interim basis. Whilst it was raised, the issue of whether or not it was appropriate for me to exercise jurisdiction to make an interim order in circumstances where there was a challenge to the Court making final parenting orders, was not argued in submissions by counsel for the mother. I find there is an ability to make interim orders notwithstanding an objection to jurisdiction to make final orders that is yet to be determined.The mother opposed the making of any interim orders because she did not want to be a party to orders which may affect the proceedings in New York.
Counsel for the mother was involved in the proceedings before me. Counsel for the mother on 11 December indicated that it might be beneficial for me to have a short form report to assist me in making a determination about the father’s application for parenting orders. On the following day, counsel for the mother sought to cross examine the Family Consultant as did counsel for the father.
Counsel for the mother sought to and did make submissions in respect of the issue of interim time. He submitted that I needed to consider what was in the child’s best interests and consequently I needed to consider those matters set out in s 60CC of the Family Law Act 1975 (“the Act”). He submitted that if an interim order was to be made it should not be immediately from 9am to 5pm but graduated in some way and it was clear the mother’s position was that supervision was in her view necessary.
It seemed agreed between the parties that the mother could (and ordinarily would be) the person who provided the “supervision”, although she could nominate other people who had an attachment to the child.
At the request of the father, I read the following evidence:
29.1.Affidavit of the father sworn 20 August 2008, filed 21 August 2008;
29.2.Affidavit of the father filed in court 28 November 2008;
29.3.Reasons for Judgment of Ryan J delivered 7 March 2008.
As requested by counsel for the mother, I read the mother’s affidavits filed 24 September 2008, 26 September 2008 and 28 November 2008. Counsel for the mother indicated on 11 December 2008 that the mother intended to file a further affidavit but so far as I am aware she did not do so and I have not taken any further evidence from her into account.
There was an issue about whether or not I read a judgment of Mushin J and the transcript of the proceedings before him on 4 July 2007. I said that I would read those documents on the basis that either counsel could address me as to whether or not I, as a matter of discretion, take anything from them into account. Neither counsel made any submission arising from those documents.
There was an issue as to whether or not the maternal grandmother could be a “supervisor”. Counsel for the mother initially asserted that there was no evidence to support such an application by the father. That submission was withdrawn when specific parts of the evidence were referred to by counsel for the father. Counsel for the father referred to paragraph 40 of the father’s affidavit filed 21 August 2008 as setting out evidence of some unfortunate exchanges between the maternal grandmother and the father. The mother’s counsel pointed out that the mother has not answered that allegation, which relates to an alleged incident involving 20 minutes of yelling and berating, in any affidavit she has yet filed. There is other evidence in the material that would lead one to the view that the father and the maternal grandmother have some history of not getting along and I formed the view that there was no point in complicating the child’s time with her father by adding that tension to the situation.
It was conceded before me on 12 December that the order restraining the mother from leaving the country by consent could be discharged. The mother before me on 12 December did not seek to have the existing order restraining the child from leaving the country changed in any way, but I note that there was an application that that order be stayed, which has now been set down for hearing before me on 8 April 2009.
When determining an application for an interim parenting order, in respect of a child who is within the jurisdiction, in circumstances where there is an issue as to whether the court would hear the final hearing for parenting orders (or whether that will happen in some overseas jurisdiction), the matter is not to be determined upon the “clearly inappropriate forum” test but rather upon a summary hearing applying that the best interests principle (see Kwon and Lee (2006) FLC 93-287, particularly at paragraph 83 and Karim v Khalid (2007) FLC 93-348). There is no question in this case that the jurisdiction of the court has been regularly invoked.
Whether or not making interim orders has some forensic impact upon what the mother is attempting to achieve in the United States is not my paramount concern.
The parties have energetically litigated about the child in three different jurisdictions for most of her life (and she is not yet two years of age). There were defended proceedings involving the Central Authority in the Sydney Registry of the Family Court of Australia. In those proceedings the mother opposed the Central Authority’s application that the child be returned to New York. The mother was successful in that application. The father, according to his documents, filed material in New York, and then an appeal. The father’s evidence is that he has attempted to discontinue his proceedings overseas with the mother’s consent but she will not provide that. The mother has now instituted her own proceedings in New York. On 26 September 2008 she filed an application seeking that the father’s application for parenting orders filed in the Family Court of Australia be summarily dismissed or permanently stayed or stayed pending a determination of the father’s appeal in New York.
There are assertions on the father’s side in affidavit material that the mother has done things in the past which have not promoted his relationship with the child. These include raising the father’s paternity of the child as an issue; allegations that the mother failed to cooperate in complying with orders in respect of the child’s birth certificate and allegations by the father which if true point to the mother being a flight risk. A question has been raised about the mother’s willingness to comply with a court order. Against that background of assertion by the father, it is reasonable in my view for him to ask the Court to make orders in respect of the mother’s obligations on the next occasion he attends Australia to see the child rather than leaving it simply for the mother’s discretion. As explained below, I have also formed the view that it is in the child’s best interests for the child to see her father more extensively than the mother wishes. That is another reason for making an order rather than making no order as requested by the mother. Given the controversy between the parties about the child, I find that it is not in her best interests to make no order about what is going to happen in April.

I find that it is necessary and in the child’s best interests to determine what interim parenting order would take advantage of the fact that the father intends to return to Australia between 1 April and 26 April 2009.
The father did not press on an interim basis any application for equal shared parental responsibility and there is no mandatory requirement that I consider equal time or substantial and significant time in the context of the limited application which I am hearing. Obviously the tyranny of distance in this case is the most significant matter when considering whether or not it is reasonably practicable for the child to have substantial and significant time with her father. As will become clear, whether or not the father has significant and substantial time with the child during the period 1 April and 26 April is a matter that I need to consider in the context of considering the current critical state of the child’s attachment with her father.
In deciding whether to make a particular interim parenting order, my paramount consideration is the child’s best interests.
To determine what is in her best interests I must primarily consider two things (s 60CC(2) of the Act) and additionally consider thirteen other things (s 60CC(3) of the Act). My ability to do so within the ambit of such a limited hearing about such a limited period of time is necessarily confined.
The primary considerations are:-
42.1.The benefit of the child having a meaningful relationship with both her parents. As I discuss below, Ms B has no doubt about the development of the child’s meaningful relationship with her mother. The crucial question in the short term in this case however is the threat to the child’s ability to have a meaningful relationship with her father based on the child’s current lack of attachment to him. This primary consideration is what in the end most significantly guides the decision I make.
42.2.The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. As I mention below, there is no issue from the Family Consultant’s point of view that the child’s father presents as somebody who poses no physical or psychological harm to her, apart from the risk that the child may suffer separation anxiety from those to whom she is currently attached. In any orders that I make I need to be careful to not leave the child alone with her father for periods that I consider would be an unacceptable risk in relation to her developing some type of separation anxiety.
In relation to the additional matters that I need to consider, the child is too young to have any view. In relation to the relationships, willingness of parents to facilitate relationships, and capacity for the parents to provide for the child’s needs and responsibility to parenthood I refer to Ms B’s evidence which I shortly discuss.
The child has formed attachments with persons other than the mother. Counsel for the father asserted and it is not a matter of dispute that the mother has travelled outside the jurisdiction, leaving the child with her parents for extended periods of time, in the last few months of 2008. The mother also intended to travel to the United States in December 2008 without the child.
The mother argues that there should be no change to the current arrangements. That is, she says there should be no formal order and it should be a matter for her as to when the child sees her father. As I have already said, I think it is in the child’s best interests for the current situation to be changed so that there is an order which regulates what time the child spends with her father. I need to be mindful in relation to effecting a change in this case which would leave the child exposed to the risk of separation anxiety and the orders that I fashion attempt to minimise the effect of any such change.
No submission was made that family violence is a matter that I need to consider nor are there any family violence orders.
The order I make is for a limited period and I do not need to consider whether or not the order is least likely to lead to further proceedings.
After Ms B had seen the mother on Thursday 11 December and had seen the parties with the child on 12 December, Ms B gave oral evidence and was cross examined.
I had asked Ms B to report on the following matters:
49.1.Attachments between the child and her parents;
49.2.Her opinion of the parties' respective proposals in relation to the child in relation to supervision when she's with the father;
49.3.Her opinion as to the parties' respective proposals in relation to the child’s time with the father on an interim basis;
49.4.Any other matters that she consider relevant.
Ms B made the point that what Cohen J had ordered was not a full family assessment and the issue of attachments is difficult to assess in the limited circumstances in which Ms B saw the parties and the child. Ms B said that attachments between a child and her parents are primarily formed in the first three years of a child’s life. Ms B considered that the child had not spent any significant time with her father over an important attachment phase and that is going to limit the child’s ability to form attachments with her father. Ideally to form attachments, Ms B said that there should be regular and frequent contact over a consistent period of time.
In her observations Ms B said that the child is familiar with her father and she did refer to him as “daddy”, but the level of attachment is questionable because the child has not had the opportunity to spend significant time with her father over a range of normal activities. This severely limits her ability to use her father as a secure base. By “secure base” Ms B explained she meant the ability of a child to use a parent as a source of comfort at a time of stress or anxiety. That ability typically develops between the ages of 7 months and 2 ½ to 3 years. The child at the date of my orders was almost 21 months old. Ms B indicated that in order to develop the type of attachments to which she is referring, the child would need a consistent and regular schedule of time with the father over a 12 to 18 month period from this time. This would mean that the parties had to live in close proximity to one another and obviously in the same country. That is not happening at the present time and it appears it will not happen in the near future. Ms B indicated that the limited opportunity for the child and her father to form attachments to date means that even that type of regime might lead to a diluted attachment in the long term between the child and her father.
Ms B commented upon what she understood the father’s arrangement to be, which was unsupervised time with the child. Ms B’s evidence was that it was not just a matter of attachments but also a matter of the child’s memory. The child is now at an age where she is able to retain images in her memory but those remembered images are highly cue dependent. They are dependent upon other people, particularly the mother, helping the child remember those memories and Ms B commented that the good work that had been done in the last three weeks between the child and her father would basically be lost at the child’s age after a break of a number of months.
The evidence of Ms B was that there was a need on the next occasion to have another period of reintroduction and reconnection and for the child to receive maximum benefit from that future time she would need to have the support of her mother and those other persons in the mother’s family who have a significant attachment with the child.
Ms B gave evidence that the father’s future time with the child should allow him to involve himself in significant activities with the child, such as meal times, bath times, putting the child down for a nap, being there when she wakes up, play time and activities of that nature. It is an involvement in such a range of activities of this nature that will give the child some chance to form a child/parent relationship with her father.
Ms B gave evidence that so far as she could see, the child’s relationship with her mother was developing appropriately and that as one would expect given that the mother has been the primary carer for the child during the first twenty one months of her life.
There is nothing to indicate that the child is in any risk of physical or psychological harm in her father’s care, apart from anxiety she might feel about being with somebody with whom she has no significant attachment.
The issue of supervision in this case, as explained by Ms B, is more about the child being with somebody with whom she is familiar, and whom she can use as a secure base while she is with her father and whilst she is reconnecting and getting to know her father. Ms B gave evidence that the child is getting to the age range where separation anxiety comes into play and tends to peak. At her age, the child is currently exploring the world a little bit more and things become a little more scary. Consequently she needs somebody there as a secure base while she is getting to reconnect with her father.
In relation to the father’s initial proposal of an immediate period of unsupervised contact between 9am and 5pm, Ms B opined that this proposal was not in the child’s best interests because there would need to be a period of re-establishment on the next occasion or occasions. Ms B was unable to be specific about what level of “supervision” was necessary to ensure that the child would not develop undue anxiety while she was initially with her father. Ms B made the point that some care needs to be taken given that patterns of anxiety that are established at this age can be difficult to reverse later on and consequently the Court should tread carefully in allowing totally unsupervised time. Ms B’s evidence was that as at December 2008 it was too difficult to predict what level of “supervision” would be required to ensure that there was no unacceptable risk of the child developing long term adverse affects from seeing her father arising from her current lack of significant attachment with him. Her future progress will depend upon how developmentally she is coping with things. Ms B opined that it was likely that the most appropriate result for the child would be one that moved at a pace which was faster than the mother wanted but slower than the father wanted. For the child’s best interests to be met it would require goodwill on behalf of both parents and for the child’s emotional needs to be sensitively considered by both parents.
Counsel for the mother cross examined Ms B and confirmed that the supervisor needed to be somebody with whom the child has a current attachment and relationship. Ms B was asked whether or not 14 consecutive days or non consecutive days of unsupervised time was too much. Ms B said it would depend upon the environment that existed between the parents and those supporting the mother. If there was a lot of tension then 9am to 5pm would be a very long time for a child to be in that environment and it would depend on how much down time the child had in that period. Ms B opined that 9am to 5pm maybe a long time for the child to spend with her father at this time but it would depend upon the environment that the father created and that the supervisor created. Patterns of activities during the time are important.
In my view, the amount of time that the child can spend with her father during April 2009 does impact upon the opportunities that he has during April 2009 to do what Ms B has given evidence should be done in order to maximise the child’s chances to form a relationship and attachment with her father that will provide a base for a future parent/child relationship.
Ms B agreed that the father’s proposal of contact on Monday, Wednesday, Thursday, Friday and Sunday between 9am to 5pm (without the father proposing for any attachment figure to be present) is excessive at the moment. Ms B said if the child wasn’t coping it would be very easy for that to be noticed and opined that 9am to 5pm was a long time for a child of this child’s age to be without someone with whom she has an attachment. Ms B indicated that a re-introduction period building up the time over the period the father is here was something that would be preferable.
Counsel for the father asked Ms B whether or not each day or each alternate day would be preferable. Ms B indicated there was no magic answer. It is highly dependent upon the ability of the parents to be able to work together. It is very important that the parents work together and attempt to minimise any anxiety the child feels at being reintroduced to her father. Ms B gave evidence that the mother informed her that she was prepared to cooperate in attempting to allow the child to establish a meaningful relationship with her father. Ms B indicated there was nothing that she had seen in her time observing the child with her father that indicated that the father was not sensitive to the child’s needs nor that he lacked the capacity to think about her needs nor that he had other than an appropriate attitude to the child and to his responsibilities as a parent. This evidence was given despite Ms B reporting that both parents are critical of the other in relation to the other’s respective parenting capacity. That critical attitude is consistent with the amount of litigation that has taken place between the parties about the child in the first twenty one months of her life.
The ideal situation for the child would be if both parents lived in the one country. Ms B emphasised that on a number of occasions. If the parties lived near one another then Ms B says the ideal pattern in the longer term would for the child to spend a number of hours with the father every two to three days. That however is not the current situation. The parties live in different countries. The current situation is less than ideal and as Ms B said on a number of occasions, there is no magic solution. I have to do what I think is in the child’s best interests on the evidence I have available to me.
At the end of the day I agree with Ms B that the orders to be made in the child’s best interests for the limited period in April 2009 should be more than the mother wishes but less than the father seeks. I agree with the mother’s contention that there should not be an immediate period where the child spends between the hours of 9am and 5pm with the father. I substantially accept the mother’s position that the child should not be left alone with her father without somebody with whom the child is attached being present. Having said that however, there needs to be some opportunity for the child to develop with her father on a one to one basis.
I find that the child will be sufficiently comfortable with her father after five days with him fully “supervised” to spend one hour of the time that she is with her father alone and I find that after five such occasions, that periods of “supervised” time could be extended to two hours without there being a unacceptable risk to the child of her developing separation anxiety. As Ms B says however, that risk, although I found it not to be unacceptable, still needs to be monitored and for that purpose a liberty will be granted on short notice to bring the matter back before me.
There will be two days when the father is in Australia where the child will not see him because of the parties’ involvement in this court. There may be a further day (21 April 2009) where the child is in the Sydney Registry of the Family Court for the interviews for the Family Report and if so, it is likely she will be alone with her mother for some of that day while Ms B is interviewing the father and observing mother and daughter.
Because of the current fragility in the child’s attachment with her father, I find that it is in the child’s best interests for the next period when the father is in Australia (at which time the child will be already two years old) for the opportunities of the child to develop some attachment with her father to be maximised. I am mindful that this might mean for that period the mother and/or those she nominates will be inconvenienced by the duty of “supervision” but, in my view, that is something that should happen in the child’s best interests.
In making these orders I have focused specifically on the period 1 April to 26 April 2009 and attempted to maximise the opportunities created by that period given the current fragile state of the child’s attachment with her father. It should not be assumed that what I have ordered is an appropriate template of time and supervision in the longer term. On an interim basis I have decided that the child’s time with her father should be maximised but that should be balanced with the child’s “supervision” also being maximised. Whilst counsel for the mother submitted from the bar table that the father really did not make a complaint about what has been happening or that the mother has attempted to frustrate the father’s visits with the child, I have found that the father has reasonable grounds of asking that the Court make a formal order that ensures that the child’s opportunities in April 2009 to develop her attachments with her father be maximised.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate:

Date: 11 February 2009

[2009] FamCA 107

11 February 2009

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