Ridley & Ridley (No 2)

[2015] FamCA 1122

FAMILY COURT OF AUSTRALIA

RIDLEY & RIDLEY (NO 2) [2015] FamCA 1122

FAMILY LAW – PRACTICE & PROCEDURE – Where interim parenting orders were previously made which provided for the child to move to live with the father pending the release of a limited issues family report – Where the child has had no contact with the mother since that time – Where the parties’ respective interim applications for parenting orders were considered in light of the fresh evidence within the family report

FAMILY LAW – CHILDREN – Interlocutory Application – Best Interests – Where the mother’s eagerness to demonstrate her commitment to the child’s maintenance of a loving relationship with the father must be accepted with some degree of caution – Where the child’s relationship with the father is capable of restoration but the child still needs more time to form her own independent views of the father, free from any influence of the maternal family – Where the child has a deep and loving relationship with the mother and it is unlikely to be disturbed – Child to remain resident with the father – Where the embargo on the mother’s face-to-face contact with the child should remain in place for a further two months, after which time there will be a short period of supervision, followed by visits every third weekend and for half of school holidays – Parental Responsibility – Where an order for equal shared parental responsibility would not serve the child’s best interests – Where the parties are not able to communicate constructively with one another – Where the party with whom the child lives should have exclusive parental responsibility – Father to have sole parental responsibility

Family Law Act 1975 (Cth), ss 60CC, 61C, 61DA, 61DB, 62B, 65DA

Ridley & Ridley [2014] FamCA 1231
Ridley & Ridley [2015] FamCA 1032
M v M (1988) 166 CLR 69
U v U (2002) 211 CLR 238

APPLICANT: Mr Ridley

RESPONDENT: Ms Ridley

INDEPENDENT CHILDREN’S LAWYER: Emalene Gemmel Solicitor

FILE NUMBER: NCC 2245 of 2012

DATE DELIVERED: 10 December 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 10 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Duane

SOLICITOR FOR THE APPLICANT: Peter Hamilton & Associates

COUNSEL FOR THE RESPONDENT: Ms Kearney

SOLICITOR FOR THE RESPONDENT: Duncan Maclean & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Davies

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Emalene Gemmell Solicitor

Orders

BY CONSENT IT IS ORDERED THAT

1. The Application-Contravention filed by the father on 2 September 2015 is dismissed.

2. No order as to costs in respect of the preceding order.

PENDING FURTHER ORDER, IT IS FURTHER ORDERED THAT

1. Orders 2, 3 and 4 made on 13 November 2015 are discharged.

2. All former parenting orders relating to the child B, born … 2010, (“the child”) (including the Orders made on 5 June 2015) are suspended.

3. The father shall have sole parental responsibility for decisions about “major long-term issues” (as defined in the Family Law Act) related to the child.

4. The child shall live with the father.

5. The parties shall take all reasonable steps to ensure that the child spends time with the mother as follows, or as otherwise agreed:

   a.Once per week for two hours under the supervision of staff at Town T Family Support Services (“the supervisor”), with the first visit not to occur before Saturday, 13 February 2016.

   b.Following the completion of four visits pursuant to Order 7(a) hereof:

   i.During school terms, every third weekend from 5:00 pm Friday until 5:00 pm Sunday, commencing on the second Friday after the last visit pursuant to Order 7(a) hereof;

   ii.For the first half of each autumn, winter and spring school holiday periods commencing at 5:00 pm on the last day of term and concluding at 5:00 pm on the second Saturday; and

   iii.From 10:00 am on 26 December 2016 until 6:00 pm on 9 January 2017 and for the same period each year thereafter.

6. For the purpose of implementing Order 7(a) hereof:

   a.The parties shall contact the supervisor within seven days  to arrange an appointment for assessment and to participate in any intake assessment;

   b.The parties shall comply with all reasonable rules of the supervisor;

   c.The parties shall comply with all reasonable requests or directions of the supervisor;

   d.The father shall deliver the child to, and collect the child from, the supervisor at the times and on the days specified by the supervisor; and

   e.The father shall be responsible for the costs of supervision.

7. For the purpose of implementing Order 7(b) hereof:

   a.The father shall cause the delivery, and the mother shall cause the collection, of the child at the commencement of time spent with the mother at C Park, C Town; and

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

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

   a.The mother each Wednesday at 6:00 pm when the child is living with the father and for that purpose the mother shall telephone the child on the telephone number provided to her by the father, and the father shall ensure that the child is able to receive the mother’s calls on that number at that time.

   b.The father each Wednesday at 6:00 pm when the child is spending time with the mother and for that purpose the father shall telephone the child on the telephone number provided to him by the mother, and the mother shall ensure that the child is able to receive the father’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 6:00 pm, 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 staying shall ensure that the child is able to receive the other parent’s calls on that number at that time.

9. 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.

10. 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.

11. Leave is granted to the parties to provide a sealed copy of these Orders to the principal of any school attended by the child.

12. Within seven days hereof the father shall cause the child to speak privately with the Independent Children’s Lawyer to have explained to her the effect of these orders, and if deemed appropriate by the Independent Children’s Lawyer, the reasons for such orders.

13. 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.

14. Save as to costs, any and all outstanding applications for interim orders are dismissed.

15. No order as to costs in relation to today’s interim hearing.

NOTATION

A.The proceedings remain listed before the Registrar on 21 December 2015 for further procedural directions.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ridley & Ridley (No 2) 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

Mr Ridley

Applicant

And

Ms Ridley

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. These reasons should be read in conjunction with those delivered to explain orders previously made on 12 December 2014 (see Ridley & Ridley [2014] FamCA 1231) and 13 November 2015 (see Ridley & Ridley [2015] FamCA 1032) because they form a composite narrative.

2. On 13 November 2015, interim parenting orders were made between the applicant father and respondent mother in respect of their only child, the effect of which were to reverse the child’s residence so she would live with the father instead of the mother. As was submitted today on behalf of the father, those orders were not made lightly.

3. For a long time beforehand, an orthodox parenting regime under which the child would live with the mother and spend time with the father was breaking down. The reasons behind the failure to implement the orders were contentious, but the fact of the failure was not. For whatever reason, the child’s experiences in the mother’s household caused her to strongly resist spending any time with the father and to barely submit to telephone communication with him. Nothing in the evidence implied any adverse experience while in the care of the father was the cause of the child’s resistance to interaction with him.

4. The reversal of the child’s residence a month ago was designed to test the quality of the child’s relationship with the father, free from any influences in the mother’s home. It was important to glean some undistorted evidence about that issue because the benefit the child should derive from meaningful relationships with both parents is the only primary consideration of relevance in these proceedings under s 60CC(2) of the Family Law Act1975 (Cth) (“the Act”). It has long been recognised that, absent situations of abuse, children usually benefit from the development of good relationships with both parents (see U v U (2002) 211 CLR 238 at 285-286; M v M (1988) 166 CLR 69 at 76).

5. Pursuant to the orders made in November 2015, the parties and child have consulted with a Family Consultant and her Limited Issues Family Report (“the Family Report”) is now available as additional evidence to assist in the determination of interim parenting orders that promote the child’s best interests. As envisaged by those orders, the parties’ respective interim parenting applications will now be considered in light of the fresh impartial evidence. 

Proposals

1. In view of the change in the family’s circumstances within the last month, understandably, the parties now press amended applications.

2. The father and Independent Children’s Lawyer jointly pressed for orders that maintain the child’s residence with the father, vest sole parental responsibility for the child in the father, and restore the child’s interaction with the mother on a cautious basis. They proposed the current embargo on the child’s interaction with the mother should continue for another two months before the introduction of weekly visits under supervision at a commercial contact centre.

3. The Independent Children’s Lawyer departed from the father’s proposal at that point. While the father proposed the supervision continue indefinitely, the Independent Children’s Lawyer proposed it only apply for four visits, after which the child would start spending time with the mother under the same type of regime the child would have been spending with the father had the last set of final orders made in June 2015 continued to operate successfully. 

4. The mother pressed for Orders 1 to 3 inclusive set out in her Amended Response filed on 9 December 2015. She abandoned her application for Orders 4 and 5. She proposed the child return to live primarily with her, but that the child live with the father for specified parts of the upcoming Summer school holidays, before reverting in the New Year to the regime prescribed by the final orders made in June 2015 – being every third weekend in the first school term of 2016. However, her proposal did not comprise any order that would operate beyond the first school term of 2016 and she made no proposal or submission about the allocation of parental responsibility for the child. 

Evidence

1. The father relied upon his affidavit filed on 10 December 2015. 

2. The mother relied upon her affidavit filed on 9 December 2015. 

3. The parties and Independent Children’s Lawyer all relied upon the Family Report dated 3 December 2015. 

Legal Principles

1. It is unnecessary to again recite to the parties the statutory provisions of the Act that guide the determination of these proceedings. They have heard of and presumably read them before in the earlier judgments to which I have already referred.

Best interests – Primary considerations

1. For reasons given on 13 November 2015 (see Ridley & Ridley [2015] FamCA 1032 at [29]-[30]), s 60CC(2)(b) of the Act is not presently relevant. Indeed, no submission was made that it was. Section 60CC(2)(a) remains the only primary consideration of relevance.

2. The outcome of this interim hearing, insofar as it is influenced by

   
   

   s 60CC(2)(a), was conceptualised by the Family Consultant, both parties, and the Independent Children’s Lawyer as a dichotomy. Either:

   (a)the child’s relationship with the father is well on the way to recovery and there is sufficient evidence to found confidence the relationship will now continue to flourish, even if the child returns to live with the mother, which was the case promulgated by her; or

   (b)although the child is showing signs of restoration of her meaningful relationship with the father, insufficient time has passed to consolidate the relationship and the child’s return to live with the mother is likely to sweep away the progress already made and nothing will have usefully been achieved, which was the case promulgated by the father and Independent Children’s Lawyer.

3. One thing has certainly been achieved. The mother now overtly recognises the importance to the child of her retention of a meaningful relationship with the father.

4. The mother deposed that she recently completed a “Building Connections” parenting course with Centacare in Town T, which course assisted her to understand the effects the parental separation may have had on the child and helped her to learn strategies to ensure she and the father are able to communicate and ensure the child transitions between them seamlessly.

5. She also deposed she was pleased the child’s relationship with the father had improved over the past month and she considered that, henceforth, the problems previously confronted at changeovers would be alleviated.

6. She assured the Court she was aware of the importance of: ensuring the child should refer to the father, and not her partner, by the epithet “Dad”; the child identifying by her proper surname and not the surname now adopted by the mother; and the need for the parenting arrangements regulating the child’s care to be implemented without rancour.

7. Those sentiments she expressed in her affidavit replicated comments she earlier made to the Family Consultant. She told the Family Consultant she was sure the child’s residence with the father for a month had been helpful for the child and, in the future, there would be no need to graduate the child’s re-introduction to him. She also told the Family Consultant she regarded the child’s relationship with the father to be progressing well and she saw no impediment to “future block time” taking place between the child and the father.

8. I do not reject the mother’s evidence, but it must be accepted with some degree of caution for two reasons. First, her fervent desire to persuade of her converted attitude is borne of her desperation to have the child back in her primary care. Second, the father is suspicious of the genuineness of her sentiment and there is a reasonable basis for him to hold such suspicion. 

9. Despite the mother’s eagerness to demonstrate her commitment to the child’s maintenance of a loving relationship with the father, her evidence still engendered, rather than eradicated, concern. 

10. Her assertion she can now ensure the child regularly spends time with the father contradicts, without any sufficient explanation, her previous assertions to the Court to the effect she had said and done everything she possibly could as a competent parent to ensure the child spent time with the father, but her efforts had been in vain.

11. She said to the Family Consultant that the breakdown of the previous parenting orders was “no one’s fault ... It was just the way it happened”.  She re-asserted to the Family Consultant she had done everything possible to help the child adjust to the parental separation.

12. She also said in her affidavit “I do not concede that I have acted in a way which has caused [the child] to form the views she has, or had of her father” and “I am not sure why [the child] has formed the view that I hate [the father] as reported in the Family Report.” 

13. Such evidence demonstrated the limitations of her insight. Her past failure to ensure the child referred to the father, rather than her partner, as “Dad”, her insistence to the child’s school that she be known by the surname “Ridley” instead of “Ridley”, her failure in the eyes of third parties to actively encourage the child’s interaction with the father, and her involvement of the child in the conflict all stand in stark contrast to her denial of having acted thoughtlessly, even if not deliberately. 

14. The child innocently told the Family Consultant how the mother told her of the father’s alleged family violence, which the child did not apparently witness for herself. The child is alive to the opposition of both the mother and her partner to her interaction with the father. Even if that is not how the mother and her partner really feel, there is no doubting that is the child’s honest perception and nothing done by them has been able to disabuse her of that notion. 

15. When asked by the Family Consultant about the comments made by the child to her, the mother told the Family Consultant “I’m sure she’s picked up on the vibe from me.” Such a concession tends to contradict her assertion in evidence that “I am not sure why [the child] has formed the view that I hate [the father].” 

16. The father deposed the mother has not contacted him since the child moved into his care pursuant to the orders made on 13 November 2015.  He deposed to his expectation the mother would want to know about the child and how she was coping with the change, even though the orders made no provision for the mother to speak directly with the child. The failure of the mother to contact the father to inquire about the child’s progress remains curiously unexplained. It is a matter to which I shall return shortly.

17. The current state of the child’s relationship with the father is encouraging, but little more. The father reported to the Family Consultant the child cried when he originally picked her up from school pursuant to the orders made in November 2015 and she took some time to settle in with him and his partner, but he said she was now very comfortable and familiar with the routines that operate in their house.

18. The Family Consultant observed the child to be very happy when she arrived in the Court precincts with the father and his partner. The Family Consultant reported the child presented as “a happy and vibrant child throughout the formal observation and during the times I informally observed her on the day of the assessment”.  She appeared to be very happy in the company of both the father and the father’s partner. The Family Consultant thought their interaction was relaxed and comfortable and the child insisted on the father being engaged in her play. The conversation between them was spontaneous and natural and the child made good eye contact with the father and his partner at all times.  The Family Consultant formed the view that the child had a warm, comfortable and familiar relationship with the father and his partner. There was no indication on the part of the child of any distress or lack of comfort.

1. A note of caution is, however, warranted. The Family Consultant reported that, when the child was interviewed separately, her demeanour significantly changed to a flatter effect, particularly when she was speaking negatively about the father. The child told the Family Consultant that things had been “good” while staying with the father, but she was then content to engage in conversation about not wishing to go with him and not liking him because he had once hurt the mother. She also engaged the Family Consultant in conversation about her perception of the mother and the mother’s partner disliking the father and them regarding him as a danger to her. 

2. The father’s partner reported to the Family Consultant that, at home, the child can sit happily on the father’s lap playing with him and then “like a switch is flipped” she lashes out at the father.

3. That vacillation in the child’s temperament was observed by the Family Consultant herself when she witnessed the rather extraordinary change between the child’s happy demeanour in the company of the father and her flatter effect in his absence when engaged in conversation about him. The Family Consultant observed that, on the child’s return to the father and his partner, she instantly returned to her former happy self. 

4. The conclusion of the Family Consultant was expressed thus:

   I am confident that [the child] has a warm, familiar and comfortable relationship with her father. Her ability to be freely affectionate with him is continuing to develop and will continue to further develop as long as she continues to live with her father.  It may also continue to develop if she lives with the mother and spends substantial, regular and consistent time with the father. The ability of this to occur, however, depends on whether loyalty demands will be placed on [the child] by the mother.

   (emphasis added)

5. The Family Consultant recognised the mother’s stated positive intention about the future interaction between the child and the father, but her concern about the mother was not entirely allayed.  She concluded her observations thus:

   Of some concern, however, is that the information conveyed to me by [the child] was in vast contrast to the information presented by the mother.  Notably, [the child] was certain her mother hated her father and was emphatic that her mother had no capacity to change her attitude towards the father.

6. If the child’s relationship with the father was beyond salvage, I would today have ordered her return to live with the mother, but it is not. The relationship is clearly capable of restoration and the child will still be able to derive the benefit from it she ideally should. The child needs more time to form her own independent views of the father, free from any influence of the maternal family. 

Best interests – Additional considerations

1. The mother asserted the change of residence has been positive so far, but to perpetuate it now would risk the child’s emotional harm by separation from her, because she has historically been her primary carer. 

2. She contended the orders made in November 2015 should be regarded as a circuit-breaker and, now the circuit has been broken, normal circumstances should resume.

3. The change of residence for the child was indeed intended to be temporary, but temporary in the sense that the change would prevail until circumstances warranted any further change.

4. The risks of the child’s undue emotional disturbance and of damage to her relationship with the mother are powerful considerations, but the evidence suggests those risks are relatively modest. The child has a deep and loving relationship with the mother and it is unlikely to be disturbed. Undoubtedly, the child will miss the mother, but she will have telephone communication with her and will resume seeing her soon under a regime which is much the same as the mother envisaged for the father in reverse.

5. The submissions of the mother, though meritorious, are outweighed by the submissions put jointly by the father and Independent Children’s Lawyer. 

6. Self-evidently, not every sub-paragraph of s 60CC(3) has been addressed in these reasons, but that is because the parties have sensibly seen fit to not make pointless submissions on those aspects of the evidence that have no influence on the outcome of the interim hearing. 

Conclusions

1. No evidence placed before the Court today attracts operation of s 61DA(2) of the Act and so the presumption of equal shared parental responsibility applies.

2. In November 2015, s 61DA(3) of the Act was invoked (see Ridley & Ridley [2015] FamCA 1032 at [73]-[75]), and so the presumption of equal shared parental responsibility was not then applied. I am not so satisfied that

   
   

   s 61DA(3) should apply today. There are “major long-term issues” for the child requiring imminent decisions. They relate to the school she should attend in the 2016 academic year and whether she should repeat kindergarten in 2016. The exercise of parental responsibility for the child is therefore pressing.

3. I am satisfied, pursuant to s 61DA(4) of the Act, that the presumption of equal shared parental responsibility is rebutted by the evidence, which establishes such an order would not promote the child’s best interests. The reasons for that conclusion are as follows.

4. The father deposed that, once the child was taken into his care, he attended the D School at Town U to consult with the principal of the school. The child was accepted into that school and she commenced her pupillage there the following day, being 18 November 2015. Subsequent to her enrolment, staff at the school conducted tests to assess the child’s progress and the results were regarded by the father as “concerning”. The father was told by the school principal the child was at “term 1 level” despite it being term 4, and he later received a letter from the school recommending she repeat kindergarten in 2016. A copy of that letter was annexed to his affidavit. He was assured the child’s academic progress can be corrected if she repeats kindergarten next year. He independently checked the child’s exercise books against her classmates’ exercise books and found what he regarded to be a “significant difference.” According to the father, his impression is the child enjoys attendance at the new school because he alleged the child told him “I love my new school.”

5. The mother deposed to how the child attended a school close to her home prior to the orders being made in November 2015. The public school she formerly attended only had eight pupils enrolled, although apparently more students are to attend the school next year and the school combines activities with three other local schools on a fairly frequent basis so the children can engage with a wider group of peers. The mother deposed that, a week or so ago, she had a telephone conversation with the child’s former teacher and was told the child had been progressing well and there was no reason for holding her back in kindergarten next year.

6. Plainly enough, on the evidence adduced, the parties have an irreconcilable difference of opinion about whether the child should repeat kindergarten or move onto Year 1 in the 2016 academic year. Not a single submission was made about that issue by any of the counsel and I impute it remains an issue in dispute between the parties. It is unwise in that situation to leave parental responsibility for the child vested conjointly in the parties pursuant to s 61C of the Act, because a deadlock will result. A decision needs to be made and it needs to be made soon because enrolments for next academic year are nigh.

7. Regrettably, the parties are not able to communicate constructively with one another. They have not enjoyed a co-operative parenting relationship for a long time. A short while ago, I referred to the father’s allegation the mother did not contact him over the past month since the child has been in his care. The mother must have had a burning desire to know how the child was progressing, but she could not bring herself to contact him to make such a simple inquiry. For his part, the father deposed he did not contact the mother because he did “not want it to be seen to be patronising”. Whether he had reasonable grounds to feel that way is beside the point. Obviously, the mother, despite wanting to know what was happening with her child, made no attempt to find out and the father could not bring himself to contact the mother for fear it would stimulate an adverse response. 

8. In the reasons delivered in November 2015, it was noted (at [52]) the father contacted the mother in an attempt to break the impasse that then existed over the implementation of the parenting orders. The father told the mother he wanted her to accompany him with the child to a psychologist, but the mother refused to do so.

9. Those simple examples demonstrate how the parties are unable to deal with each other in a satisfactorily courteous and co-operative way. I see no alternative but to vest parental responsibility for the child exclusively in one of them and it would be absurd not to vest that responsibility in the person with whom she shall temporarily live. 

10. There is another aspect of the evidence that vindicates that decision and it relates to the child’s medical care. The father deposed that shortly after the child came into his care, she spoke to him about needing glasses and her having had her eyes tested at her previous public school. The father immediately booked the child in for eye testing at Town U. The test found the child needed glasses and so the father procured them for her. Since then, the father has made inquiries of the organisation who conducted the eye test at her former public school and he was provided with a copy of the letter which he attached to his affidavit. That letter is dated 17 February 2015 and it recommended to the parent to whom it was addressed (which at that time was the mother) that the child’s eyes be fully tested by an eye health professional as she may require spectacles or treatment for reduced vision. The letter went on to say:

    You are advised to carry out this recommendation as soon as possible.

11. The mother deposed in her affidavit that the child has one eye which does not focus correctly. She said she had the child examined by an optometrist in Town T, who informed her the child’s vision was “fine”, but it should be monitored. The mother did not depose to when she received that advice, but I impute it was not after she received the contrary advice in February 2015. The mother then went on to say the child had a “further check up” organised through the school and she was subsequently advised the child “did not require any correctional glasses at this stage, however, to keep monitoring it”. As a consequence, she booked the child in for a further check-up with the optometrist on 24 November 2015, but since the child moved into the care of the father about two weeks beforehand, the optometry appointment was not kept. 

12. I find it difficult to accept the mother’s evidence in the face of the letter sent to her in February 2015 indicating the child’s eye test should occur “as soon as possible”. The father did as recommended. He acted quickly and responsibly and the child now has the spectacles she has apparently needed for nearly the past year. 

13. For those reasons, s 61DA(4) applies. Parental responsibility will be vested exclusively in the father, but that decision will not bind the future allocation of parental responsibility (s 61DB).

14. The child should remain resident with the father for the time being so she is able to consolidate her relationship with him.

15. The child should spend time with the mother under a graduating process. That will entail maintenance of the existing embargo for a further two months which, by the time she resumes spending time with the mother, will have been for a total period of three months.

16. Afterwards, the restoration of the child’s relationship with the mother should occur under supervision, which will afford an impartial and controlled setting.  Supervision reports will be available at final hearing and will avoid any controversy between the parties about the success or otherwise of the child’s re-engagement with the mother. The supervision should only be short-term, for the reasons articulated by the Independent Children’s Lawyer.

17. The father deposed to his willingness to convey the child to and from the Town T contact centre and to also meet all of the supervisor’s expenses. The orders so provide. 

18. The order for telephone communication will ameliorate the harshness of the embargo period which will continue for another two months. The telephone communication will commence immediately on Wednesday nights. I am satisfied that the electronic communication should occur by way of telephone, rather than audio-visual link over the computer by way of Skype, FaceTime, or the like, because I expect the mother would be distressed on her re-introduction to the child and if the child is able to see the mother’s distress it is liable to distress the child.

19. During the course of submissions, the Independent Children’s Lawyer indicated his willingness to explain the orders to the child. The rationale for that proposal was the observation by the Family Consultant that, to this point in time, the mother’s absence from the child’s life has been explained by her suffering some form of illness. I accept the submissions made that it is unhelpful for the child to continue believing her mother is sufficiently unwell to preclude her care for her. That misapprehension should be cured immediately and, rather than be cured by either the father or the mother, the child should receive the benefit of an impartial explanation from the Independent Children’s Lawyer. 

20. The remaining orders I have made, which I have not addressed discretely, either reflect proposals put by one or other of the parties or could not attract any reasonable criticism. 

21. For those reasons, the orders I announced at the commencement of these reasons reflect the child’s best interests.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Austin delivered on 10 December 2015.

Associate: 

Date:  15 December 2015.