RIDLEY & RIDLEY

[2014] FamCA 1231

FAMILY COURT OF AUSTRALIA

RIDLEY & RIDLEY [2014] FamCA 1231

FAMILY LAW – PRACTICE & PROCEDURE – Procedural Fairness – Where the applicant mother failed to attend the final hearing – Where the mother was afforded procedural fairness and it was proper for the hearing to proceed in her absence.

FAMILY LAW – CHILDREN– Best interests – Where it is uncontentious that the child should continue living with the mother – Where the child’s relationship with the father is valuable and significant – Where the parties agreed the child’s relationship with the father needed to be re-established and promoted without undue delay – Where an “equal time” or “substantial and significant time” arrangement is not practicable given the distance between the parties’ households – Child to live with the mother – Child to spend increasing amounts of time with the father.

FAMILY LAW – CHILDREN – Parental Responsibility – Where the occurrence of past family violence means the presumption of equal shared parental responsibility does not apply – Where the parties nonetheless agreed they should have equal shared parental responsibility – Parties to have equal shared parental responsibility for the child.

Family Law Act 1975 (Cth), ss 62B, 65DA, 65Y

APPLICANT: Ms Ridley

RESPONDENT: Mr Ridley

FILE NUMBER: NCC 2245 of 2012

DATE DELIVERED: 12 December 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 12 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

Orders

1. All former parenting orders relating to the child M Ridley, born
   … 2010 are discharged.

1. The mother and father shall have equal shared parental responsibility for the child.

1. The child shall live with the mother.

1. Each of the parties shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:

   a.On Sunday 21 December 2014 from 10am until 1pm;

   b.On Monday 22 December 2014 from 10am until 1pm;

   c.On Sunday 28 December 2014 from 10am until 2pm;

   d.On Monday 29 December 2014 from 10am until 2pm;

   e.On Saturday 10 January 2015 from 10am until 3pm;

   f.On Sunday 11 January 2015 from 10am until 3pm;

   g.On Sunday 25 January from 10am until 4pm;

   h.On Monday 26 January from 10am until 4pm;

   i.Thereafter, from and including Saturday 7 February 2015, up to and including Saturday 13 June 2015, on every alternate Saturday from 10am until 6pm;

   j.From 10am on Saturday 27 June 2015 until 6pm on Tuesday 30 June 2015; and

   k.Thereafter;

   i.During school terms, every third weekend from 4pm Friday until 6pm Sunday, commencing on the first Friday of each school term;

   ii.For the first half of each Autumn, Winter and Spring school holiday period, commencing at 4pm on the last day of term and concluding at 6pm on the second Saturday; and thereafter

   iii.From 10am on 26 December until 6pm on 7 January every year.

2. For the purposes of implementing Orders 4a to 4i hereof, the mother shall cause the delivery and the father shall cause the collection of the child at the commencement of the time to be spent with the father at the McDonalds Restaurant at Town T, NSW, and the father shall cause the delivery and the mother shall cause the collection at the conclusion of the time at the same place.

1. For the purposes of implementing Orders 4j and 4k hereof:

   a.The mother shall cause the delivery and the father shall cause the collection of the child at the commencement of the time to be spent with the father at the McDonalds Restaurant at Town T, NSW; and

   b.The father shall cause the delivery and the mother shall cause the collection of the child at the conclusion of the time spent with the father at A Park, Town U, NSW.

2. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with:

   a.The father each Wednesday at 6pm when the child is living with the mother, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time;

   b.The mother each Wednesday at 6pm when the child is spending time with the father pursuant to Order 4k hereof, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time;

c.The parent with whom the child is not then staying, on the child’s birthday at 6pm, and for that purpose the parent with whom the child is not staying shall telephone the child on the telephone number provided to them by the parent with whom the child is staying, and the parent with whom the child is saying shall ensure that the child is able to receive the other parents calls on that number at that time.

1. Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

2. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

10.Leave is granted to the parties to provide a sealed copy of these orders to the Principal of any school attended by the child.

11.Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

12.Any and all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ridley & Ridley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2245 of 2012

Ms Ridley

Applicant

And

Mr Ridley

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The proceedings before the Court are a dispute between the applicant mother and the respondent father about parenting arrangements for their only child, born in 2010, who is a daughter now nearly five years of age. 

2. On 16 October 2014, when the matter was set down for hearing in December 2014, it was noted as follows:

   Notation A:  The parties agree that the duration of the hearing can be confined to one day given that they agree they should have equal shared parental responsibility, the child should live with the mother, and the child should be reintroduced to the father pursuant to a graduating regime.

   Notation B:  The issues outstanding between the parties are:

   (a)the venue at which the child should be exchanged between them, at least in the initial stage of the graduated parenting regime. The father proposes use of a contact centre and the mother objects;

   (b)the rate at which the graduated regime of the child’s reintroduction to the father will accelerate;  and

   (c) the amount of time spent by the child with the father at the zenith of the graduation period.

3. The applicant mother thereafter failed to file any evidence in readiness for the final trial and failed to attend the Court at the time appointed for trial. The proceedings were adjourned for several days but then were heard in the mother’s absence, for which no explanation was advanced.

History 

1. The parties began to live together in a de facto relationship in or about late 2003. The father was then aged 16 years, and the mother was aged 17 years.  The parties were married in 2009. During December 2009, the parties moved to Town T. The mother was then pregnant with the child, who was later born in 2010. The parties finally separated on 7 October 2011, when the child was approximately 20 months of age. 

2. The separation of the parties appears to have coincided with some psychological ill health experienced by the father, who had two admissions to mental health facilities at or about that time. The first admission was in

   
   

   October 2011, and the second admission was in March 2012. The father deposed in his affidavit that he has recovered from his mental health ailments and no longer requires treatment or medication.

3. The mother is now in another relationship, which began several months after her final separation from the father, and she has lived with her new partner since early 2012. 

4. The parties’ separation, the mother’s establishment of a new domestic relationship, and the father’s psychological instability in early 2012 obviously stimulated some disharmony between them. 

5. On 28 February 2012, the father was served with a provisional apprehended domestic violence order for the protection of the mother and the child. The order prevented the father from approaching the mother and the child. The father conceded that on 15 March 2012 he breached the apprehended domestic violence order, for which breach he was charged and then suspended from his public service employment at Town T. It is common ground that that apprehended violence order was subsequently dismissed in November 2013. The father overcame his difficulties and was reinstated to the New South Wales public service in February 2013, consequent upon which he was stationed at Town U.

6. The parties’ dispute over the child remained unresolved.  She was not spending any time with the father. 

7. The family consultant reports that the parties attended mediation in early 2012 in an attempt to resolve the parenting dispute, at which time the mother proposed that the child spend time with the father under supervision at a contact centre, but at that time the father was resistant.  He later changed his mind. 

8. In December 2012 the father sought that the child do spend time with him in a supervised setting and agreement was reached between the parties, but the mother later rescinded her consent to that arrangement and the stalemate continued.

9. By then these proceedings were underway, and interim orders were made on

   
   

   19 July 2013 providing for the child to spend time with the father at the T Contact Centre. However, it was several months later in

   
   

   September 2013 that those orders were actually implemented. The father deposed that between the time of the parties’ separation in October 2011 and the implementation of the interim orders in early September 2013, the child spent no time with him. The family consultant reported that from

   
   

   September 2013 the interim orders were implemented unremarkably, though compliance with the orders has broken down in recent times.

Procedural fairness

1. There was no appearance by or on behalf of the applicant mother before the Court today.

2. It was the mother who commenced these proceedings in August 2012, but her application at that time was only for orders in relation to property settlement pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”). The father sought parenting orders when he filed his Amended Response in

   
   

   February 2013. The mother joined issue on the parenting dispute when she filed a Reply in May 2013. The mother remained engaged with the proceedings until relatively recently. 

3. On 16 October 2014 the matter was set down for trial in respect of the parenting dispute, at which time the mother was represented by a solicitor.  Relevantly, the mother was ordered to file and serve any Amended Application by 24 October 2014, and her affidavit evidence by 21 November 2014. 

4. The mother’s solicitor filed a Notice of Ceasing to Act on 23 October 2014, and the mother did not file any Amended Application nor any affidavit material.

5. She failed to appear at the Court for trial on 9 December 2014. On that occasion the matter was adjourned for several days, until today, and the father was ordered to serve the procedural orders made that day upon the mother at her last known address. 

6. The procedural orders made on 9 December 2014 contain notations to the following effect:

   Notation B: The applicant mother’s former solicitor filed a Notice of Ceasing to Act on 23 October 2014 notifying the mother’s last known residential address as ….

   Notation D: The trial on 12 December 2014 will proceed on an undefended basis in the absence of the applicant mother. 

7. The father previously attempted service upon the mother of his Amended Response dated 31 October 2014 and his affidavit evidence.  He deposed in his affidavit to those efforts.

8. On 3 November 2014 he sent by registered post his Amended Response to the address of the mother notified in her solicitor’s Notice of Ceasing to Act. The registered post envelope was marked “refused” and dated 10 November 2014. The envelope was returned to him on 12 November 2014. 

9. The father then sent his documents by registered post to the shop at Town T, which he believes is the location from which the mother has conducted her business. That registered post package was returned to him “refused” on 17 November 2014. On 12 November 2014 he also sent an email to an email address which he believed was used by the mother. He was aware of that because it was an email address the mother had previously used when communicating with the contact centre. 

10. On 12 November 2014 the father also attempted to telephone the mother on her mobile telephone number and he was given an automated reply to the effect “the phone number you are calling has call diversions to an invalid number”.  The father then tried telephoning the telephone number revealed by the mother’s former solicitor’s Notice of Ceasing to Act and he received the message bank of the mother. He left a message on that service for her and also sent a text message to the mobile number.

11. The father deposed that he has received no reply of any sort from the mother since 24 October 2014 to any of his postal packages, emails or text messages.

12. The father has today given evidence of his compliance with Order 2 made on

    
    

    9 December 2014, which required him to forthwith send a sealed copy of those orders by express registered post to the last known address of the mother. He gave evidence from the witness box about having sent the orders by express registered post to the address of the mother and tendered (as Exhibit F1) was a copy of the Australia Post receipt he identified.

13. I am satisfied the mother has been afforded procedural fairness. She has been given the chance to be heard, but voluntarily eschewed it. She knew what she needed to do to be ready for hearing, but she did not do it. She knew the date of trial, but she failed to appear. She knew the matter might be heard in her absence and that did not persuade her to attend. I am satisfied it was proper for the hearing to proceed in her absence.

Father’s proposal and evidence

1. The father proposed the orders set out in his Amended Response dated

   
   

   31 October 2014, in support of which he relied upon his affidavit filed on

   
   

   20 November 2014 and the two family reports dated 17 October 2013 and

   
   

   5 March 2014. 

2. The father was not challenged on his evidence and so I accept it.  The family consultant was not challenged on her evidence and so I accept it too.

Legal principles

1. Orders in respect of children are regulated under Part VII of the Act. The Act defines the meaning of a parenting order. When invited to make a parenting order the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects in determining the nature of the parenting orders which ought properly be made.

2. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration. The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child.

3. The Court is required to apply a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents. Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents.  The legislation dictates the manner in which equal shared parental responsibility is to be exercised in respect of decisions relating to, “major long term issues” concerning the child, being matters such as education, religion, culture, health, name and changed living arrangements, and also in respect of decisions which do not relate to such significant issues.

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence, and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption says nothing about the amount of time the child should live or spend time with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents or, alternatively, living primarily with one and spending substantial and significant time with the other.  If parental responsibility for the child is allocated in some other way, then the Court’s discretion is at large in the determination of the parenting orders warranted but the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Child’s best interests – primary considerations

1. I turn then to consider the child’s best interests pursuant to s 60CC of the Act, and begin with the primary considerations enumerated under s 60CC(2) of the Act.

2. It is beyond dispute that the child has a meaningful relationship with the mother.  It is also uncontentious that the child should continue living with the mother, from which it is clear the parties understand the child will continue to derive benefit from that meaningful relationship.

3. The nature of the child’s relationship with the father is, however, in a different category. As already indicated, the child had no contact of any sort with the father between October 2011 and September 2013. When the child was observed by the family consultant in the company of the father in March 2014 the father engaged well with the child and the child “warmed up” to the father very quickly. The child’s demeanour, in the opinion of the family consultant, was just as it had been with the mother, namely, happy, upbeat and conversational. The family consultant observed that the child and the father engaged in a range of games and the father demonstrated appropriate child-focused parenting approaches with the child throughout the session.

4. The family consultant invited the mother to observe the interactive session between the child and the father, which invitation the mother accepted. The family consultant indicated that what the mother observed was generally consistent with the rest of the observation session between the child and the father which had not been directly witnessed by the mother. The family consultant considered that the observation session indicated the child’s relationship with the father had progressed to a point where she was comfortable in his sole presence.

1. At the conclusion of the observation session between the child and the father, the family consultant advised both parties that she considered the child had a sufficient relationship with the father that re-introduction of the child to the father at a contact centre was no longer necessary.

2. Clearly, the child’s relationship with the father is still not yet as important to the child as her relationship with the mother, but her relationship with the father is nonetheless valuable and significant. The relationship the child has with her father needs to be nurtured without undue delay so that she is able to derive a full measure of benefit from it in the mid to long term.

3. One concerning aspect of the evidence is that the child has been encouraged or at least permitted to refer to the mother’s partner as “daddy”. The father is often referred to by the child, the mother and the mother’s partner by his first name “X”. The family consultant opined that every child needs to be aware of their accurate identity and it is beneficial for children to have such awareness as early as possible in their lives. In her opinion, given the child’s lack of certainty about her paternity, it is important that the child is now assisted to acquire clarity about the father’s accurate role in her life as soon as possible.

4. The family consultant was also concerned the child had been “made aware of adult issues” by the mother, which the family consultant felt had “clearly impacted on her capacity to feel completely comfortable in her relationship with the father”. In light of those unchallenged opinions, it seems important that the child’s valuable and significant relationship with the father should be promoted. 

5. Happily, no allegations of abuse or neglect, or the risk thereof, have been made in these proceedings.

6. There was some evidence of family violence between the parties at or about the time of their final separation and the father’s contemporaneous experience of mental ill health. Nonetheless, the family consultant opined in the first family report that, despite the allegations of family violence, there appears to be agreement between the parties that the child is not at unacceptable risk of harm in the care of the father and she should spend increasing amounts of time with the father to the point where she spends overnight time and school holiday time with him.

Child’s best interests – additional considerations

1. Turning to the additional considerations prescribed by s 60CC(3) of the Act, it should be noted that the father does not have much parenting experience, but he is clearly trying.

2. He has persevered with ensuring visits with the child at considerable expense and inconvenience. The father lives in Town U and the mother lives with the child in Town T. Those townships are approximately 280 kilometres apart and, according to the evidence of the father, the journey takes three hours to drive in each direction. In addition, the visits cost him approximately $90 on each occasion, when expenses are aggregated for petrol, contact centre fees, and food and drink he supplies to the child.

3. He has also read books and undertaken courses to enhance his parenting incapacity. He completed a course at Interrelate, which course was of six weeks duration, entitled “Parents Not Partners”. He completed that course in August 2013. Prior to that he completed a course at Centacare called “Building Connections” and another course called “How To Now” in February 2012. Certificates verifying the completion of those courses were annexed to the father’s affidavit. 

4. The father has not baulked at meeting his financial responsibility in respect of the child either. He continues to pay $711.42 per month in child support, apparently in compliance with his child support liability, notwithstanding the paucity of his interaction with the child.

5. Significantly, the parties are agreed about the need for the child’s relationship with the father to be re-established and promoted without undue delay. During her discussions with the family consultant in October 2013, the mother informed the family consultant that the next step after the contact centre was for the father to spend time with the child during the day at a venue such as a park. She also told the family consultant she was working towards the child spending overnight time with the father, though the geographical distance between their households was a factor which would influence implementation of such an arrangement. Although the mother disagreed with the father about the rate of acceleration of the graduated process, the mother did tell the family consultant she was prepared to be guided by the court about the rate at which the graduated regime should accelerate. 

6. The mother also told the family consultant she accepted it was important for the child to have a relationship with the father and she wished for it to progress to unsupervised time as soon as the child and father had rebuilt their relationship. The mother told the family consultant she wanted the child to have:

   …a strong connection with the father, someone to talk to who she can call if she needs support, that back up for her and hopefully he will be an important part of her life.

7. Those sentiments expressed by the mother have been the subject of adherence.  When the mother again conferred with the family consultant nearly six months later in March 2014, she said some similar things. She told the family consultant that she ultimately proposed that the child spend time with the father for full weekends twice per term in Town T and once per term in Town P or Town U (the significance of Town P being that the maternal grandparents and the paternal grandmother live in the Town P district). Even more recently in May 2014, while the mother was still active in the proceedings and legally represented, her solicitor sent a letter to the father which, in part, said:

   Given that both parties now agree there should be a progression of unsupervised time, the issue as far as we see it is the speed with which that progression should occur.

8. According to the evidence adduced by the father, which was unchallenged, following his receipt of that letter in May 2014, the child commenced spending time with him on an unsupervised basis.

9. Nevertheless, that has not been entirely without complication. The evidence adduced by the father indicates that the mother’s conduct has tended to impede progression of the graduated regime of unsupervised time. On one occasion in June 2014, when the child was apparently resistant to the mother’s departure from the venue to which she was delivered to the father, the parties had a conversation to the following effect:

   Mother:I don’t know what to do.  She obviously doesn’t want to go with you.

   Father:We cannot let this continue.  If we do, the child will continue to behave like this.  You will just have to leave her with me.

   Mother:There is no way I’m just going to leave her.

   Father:This is why I wanted to go back to the contact centre to avoid this issue.

   Mother:I’m not going back to the contact centre.

10. It should be noted that at the time the parties conferred with the family consultant some months before in March 2014, they were in agreement that a contact centre should have been used not for the purposes of supervision but, rather, as a venue for exchanges of the child at least in the initial phases of the re-introduction of the child to the father.

11. On another occasion some weeks later in July 2014, a discussion of a similar type occurred between the parties to the following effect:

    Father:This cannot keep going on.

    Mother:Do you have any suggestions?

    Father:You can just leave her with me.  If I can’t settle her then I can call you to come pick her up.

    Mother:There is no way I’m going to leave her.

    Father:The only other thing to try is the contact centre again.

    Mother:No, I’m not going back there.

12. Self-evidently, the mother has been resistant to the idea of delivering the child into the care of the father and departing the scene to leave the child in the father’s unattended care. The father has complied with the mother’s demands to this point in time but, inferentially, the continued presence of the mother at the venue where the child is delivered to the father appears to be disturbing the child.

13. In late October 2014, the father attended Interrelate at Town P to inquire as to the availability of that service as a changeover venue. He was advised that, on sufficient notice, they could accommodate changeovers on most days. While it was wise of the father to check on available options, it is clear the mother is highly resistant to the use of a contact centre as a changeover venue and the changeover venue at Town P hardly seems optimally suitable to the parties, one of whom lives in Town T and the other in Town U, notwithstanding that the grandparents of the child live in Town P.

14. As earlier indicated, the father has heard nothing from the mother since October 2014. The child has not had any interaction with the father now for approximately six weeks and that situation cannot be allowed to continue.

Conclusions and orders 

1. Having regard to the ambit of the dispute between the parties, by reference to concessions they earlier made to the Court, and the evidence that has been uncontroversially placed before the Court, several conclusions follow. 

2. First, the occurrence of past family violence means the presumption of equal shared parental responsibility does not apply, but parental responsibility may still be allocated in that manner if it would promote the child’s best interests. 

3. The parties informed the court that they should have equal shared parental responsibility for the child. On 24 June 2014, with the parties’ consent, an interim order was made investing the parties with equal shared parental responsibility for the child and a notation was made to the effect that the parties agreed they should finally have equal shared parental responsibility for the child. When the procedural orders were later made on 16 October 2014 fixing the matter for trial, as I have already indicated, a notation was made to the effect that the parties agreed they should finally have equal shared parental responsibility for the child. I am satisfied that that is so and an order for equal shared parental responsibility will be made. 

4. Such an order invokes operation of s 65DAA of the Act, which requires the court to consider, firstly, orders which would require the child to live for equal time with both parties or, if that result would either be impracticable or not in the child’s best interests, alternative orders under which the child lives with one party and spends substantial and significant time with the other.

5. An equal time arrangement is clearly not practicable because the mother lives at Town T, the father lives at Town U, and their homes are some three hours drive apart. The parties had concurrent views that the child should continue to live with the mother, which would perpetuate the regime that has existed since the parties separated several years ago. 

6. I turn, therefore, to consider the child spending “substantial and significant time” with the father while living primarily with the mother. An arrangement for substantial and significant time is not practicable for the same reason. It is not feasible for the father to have the child with him for substantial and significant time in the manner envisaged in s 65DAA(3) of the Act because of the distance between the parties’ households. The lack of reasonable practicability in respect of both equal time and substantial and significant time arrangements means it is superfluous considering whether or not it would be in the child’s best interests.

7. The child’s time with the father needs to build up under a graduated regime, as the parties have consistently told the family consultant and the Court.  According to the contents of the second family report, the mother anticipates that the child will commence kindergarten in the 2015 academic year. As a consequence, the regime of the child’s interaction with the father will need to factor that probability into account. It would be better not to make too many changes in the child’s life at a time when she is adjusting to her school attendance.

8. The opinions offered by the family consultant are instructive, given that they have not been challenged. The family consultant indicated that the child is certainly at the developmental stage where she is able to spend overnight time with the father, and her age means that such a change is able to occur at an increased pace. When she last offered her views in March 2014, the family consultant indicated it would be in the child’s best interests for a well-settled arrangement to be in place before she begins kindergarten in 2015, which is little more than six weeks hence. Given the passage of time, it is not now possible to make a parenting regime on a final basis that is “well-settled” within six weeks. The Court will have to do the best it can with the evidence it has. 

9. In her earlier family report in October 2013, the family consultant indicated that while a contact centre had provided a positive setting for the child’s re-introduction to the father, contact centres are quite restrictive settings and, if possible, less intrusive options should be accessed. As my reasons have already revealed, the mother is resistant to the use of the contact centre as a changeover venue. I infer that the father’s attraction to use of a contact centre as a changeover venue was merely to exclude the mother’s further involvement in the exchange process, once the child was delivered to the contact centre. In my view, that can adequately be achieved without imposing upon the parties use of a contact centre, particularly when the mother is resistant to it, by appropriately prescriptive orders.

10. The orders I intend to make seek to achieve a balance between adherence to the family consultant’s suggestions on the one hand and the adoption of simplicity in preference to complexity on the other. The father was invited to make any submission he wished to make about the apparent complexity of the regime he proposed in his amended application, but he said nothing to dissuade me from the view that his proposal is far too complex and intricate. I therefore intend to impose orders which attempt to simplify the orders and increase the prospect of adherence to them.

11. I have chosen as an initial venue for the changeover of the child between the parties for the next six months the McDonald’s restaurant at Town T, because each of the visits of the child to the father over the next six months are relatively brief, so the prospect of the father being able to take the child away from Town T is very restricted. A changeover venue in near vicinity of the mother’s home is preferable, and the McDonald’s restaurant was previously selected consensually by the parties as an appropriate changeover venue.

12. After the expiry of the initial phase of six months, when the child begins spending weekends and half of school holidays with the father, the father will have the opportunity to take the child further afield from Town T. In those circumstances, I am satisfied that the parties should share the travel burden equitably and from that point on the father will collect the child from the mother at the same venue, being the McDonald’s restaurant Town T, but the mother will then have to collect the child from the father at a venue closer to his home, and I select for that purpose A Park at Town U, which is one of the changeover venues proposed by the father in his Amended Application.

13. Of course, if the parties are dissatisfied with those venues, they are at liberty to reach agreement as to alternate venues.

14. I also intend to make orders which require the parties to exchange their contact details. They will need to know how to contact one another, so as they can properly exercise their equal shared parental responsibility for the child, and they will need to contact one another in the event of any emergency about the child.

15. I also intend to make an order restraining the parties from denigrating the other in the presence or hearing of the child. 

16. The father made many other proposals in his Amended Application, which I reject. 

17. Proposed Order 4 required the parties’ compulsory attendance at professional counselling. It is highly unlikely the order that he proposes is an order of the type that the Court has power to make. Even if the power exists, I am not satisfied that the evidence exists which would persuade exercise of discretion to impose such an order. I therefore decline to make it.

18. Proposed Order 5 requires the parties to do everything necessary to submit the child to “ongoing counselling” in Newcastle. I decline to make that order. There is no evidence that would require such an order to be made. That is to say nothing of the impracticability and expense of implementing such an order when the child and the mother live, and apparently intend to continue living, in Town T. 

19. Proposed Order 19 requires the parties to:

    …keep each other informed of the location of the child within 12 hours if the parent is taking the child away from its place of residence for more than three days.

    I decline to make such an order.  There is no evidentiary basis for it.

20. Proposed Order 21 requires that if either party is unable to care for the child for a period of more than 12 hours, then the parent must immediately notify the other parent and offer that other parent the opportunity to care for the child instead. I decline to make that order.  It is utterly impracticable, given that the parties live nearly 300 kilometres apart. 

21. Proposed Order 22 imposes an injunctive obligation upon the parents to make information available to one another through the child’s school and treating health professionals. I decline to make that order. It is wholly unnecessary, given that I have allocated equal shared parental responsibility for the child to the parents. 

22. Proposed Order 23 requires the parties to notify one another in the event of some injury or illness occurring to the child. I decline to make that order. The parties have equal shared parental responsibility for the child. In the event that the child suffers an injury or illness which is more than transitory or trivial it will be necessary in the exercise of equal shared parental responsibility for the parent in whose care the child then is to notify the other parent. 

23. Proposed Order 26 provides that:

    …all medical certificates must be issued prior to any ordered time by a general practitioner stating the child’s illness, and specifically that time ordered with the father would impact on her recovery.

    I do not make that order because it is meaningless.

24. Proposed Order 27 provides:

    In the event that the child states words to the effect of, “I don’t want to go”, and/or, “I’m not going”, the mother will leave the immediate area, leaving the child with the father, to give the opportunity to calm the child. If the father is unable to calm the child, the father will contact the mother for her to collect the child.

    I decline to make that order. It is pointless. The orders about the manner in which the child will spend time with the father are intended to be prescriptive and enforceable. Such an addition to the orders as proposed by Order 27 would do nothing to clarify any dispute between the parties, but merely obfuscate and engender the prospect of further litigation between them.

25. Proposed Orders 28 to 35 inclusive are a series of orders related to the issue and possession of the child’s passport and her entitlement to travel overseas. I decline to make any of those orders. There is no evidence at all about any party’s intention to travel internationally with the child. The situation is adequately covered by s 65Y of the Act and the Australian Passports Act 2005 (Cth).

1. For those reasons, I make the following orders.

Orders delivered

I certify that the preceding eighty two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 12 December 2014.

Associate: 

Date:  27 April 2015