Rusken and Jenner

FAMILY COURT OF AUSTRALIA

RUSKEN & JENNER

[2009] FamCA 282

FAMILY LAW – CHILDREN – With whom a child lives – Surrogacy

APPLICANT:

Mr Rusken

RESPONDENT:

Ms Jenner

INTERVENOR:

Ms A Woedene

INDEPENDENT CHILDREN’S LAWYER:

John Blayney

FILE NUMBER:

BRC

7008

2007

DATE DELIVERED:

13 March 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

11 & 12 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dickie of Counsel

SOLICITOR FOR THE APPLICANT:

Canning Craymer Lawyers

FOR THE RESPONDENT:

The Respondent appeared on her own behalf

FOR THE INTERVENOR

The Intervener appeared on her own behalf

Orders

Each party have responsibility for making day-to-day decisions in respect of the care, welfare and development of the child … born … June 2000 during the time that he spends with each of them in accordance with these orders.
The father shall have sole parental responsibility in respect of all major long-term issues in respect of the child save that the father shall prior to making the sole ultimate decision about any such issue:
a.   use his best endeavours to advise the mother in writing of the decision intended to be made;
b.   seek the mother’s written response in relation thereto;
c.   consider by reference to the child’s best interests any such response prior to making any such decision;
d.   advise the other in writing as soon as reasonably practicable of their ultimate sole decision.
That the child live with the father.
That the child spend time with the mother as follows:
a. For 6 periods of time in each calendar year upon the mother giving of 14 days written notice to the father of her intention to exercise such time with the child.
b. That any time the child spend with the mother be at a Children’s Contact Centre or such other place as may be agreed and that all such time be supervised.
That the mother be at liberty to communicate with the child by sending letters, cards and gifts to the child, care of the father’s address.
That the mother is hereby restrained from, and an injunction issue, prohibiting the mother from removing the child from Australia.
That the child not depart Australia unless he is in the company of the father.
That the child’s name be placed upon the Family Law Airport Watch List.
That the intervener may contact the respondent by telephone at times when the respondent may be with the child, but not otherwise spend any time with the child.

10. That the father, at the end of each school year write an academic and general progress report on the child and forward such report to the mother by express post no later than the 20^th of December every year.

11. That the father, at the end of each school year, sends to the mother no less than 2 current printed, colour photographs of the child by express post no later than the 20^th of December every year.

12. That the father immediately do all things necessary to arrange and facilitate the child’s attendance upon a recognised psychologist for the purposes of explaining the effect of these orders and assisting the child in any therapeutic capacity as determined by the psychologist.

13. The respondent be restrained from using any other name for the child than ….

14. The father send to the South African Department of Home Affairs, a copy of the Orders as soon as they issue, so that the Department of Home Affairs may have regard to these Australian orders when making a decision about the Application by the intervener Ms Woedene to alter the child’s birth details and/or amend the child’s birth certificate.

15. The mother is hereby restrained from, and an injunction issue prohibiting the mother, from attending upon the child’s school or place of residence.

16. Each parent shall keep the other informed of their current residential address and mobile telephone numbers and shall notify the other of any change as soon as practicable.

17. Each party shall immediately notify the other party of any medical emergency affecting the children as soon as practicable.

18. Neither party shall denigrate the other party to, or in the presence of, or hearing of the child.

19. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS FURTHER ORDERED BY CONSENT:

20. The passport of the child, currently being held by the Applicant’s solicitors, be released to the father.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC7008 of 2007

MR RUSKEN

Applicant

And

MS JENNER

Respondent

REASONS FOR JUDGMENT

This is an application on the part of Mr Rusken hereinafter referred to as the applicant for parenting orders in relation to a child of his marriage to the respondent, Ms Jenner. The parties were born in South Africa, the applicant in December 1944 and the respondent mother, being Ms Jenner, in March 1958. They married in 1991. The mother sought to give birth to a child. She was unsuccessful and, as a result of that, she was either introduced or met the intervenor, Ms Woedene, and as a result of donor sperm and fertilisation techniques, Ms Woedene became pregnant and carried to full term a boy who was born in June 2001. He is the subject of this application.
Much has been made by the respondent to the extent that she is either a possible biological mother, she may not be the mother of the child, she may be the mother of the child. The reason why she says this is, I believe, correct me if I am wrong, is that her eggs were injected, obviously, placed in Ms Woedene and it may be, see Ms R’s report, that the mother is not the biological mother but it may be Ms Woedene and that is why, as I understand, both Ms Woedene and the respondent do refer to Ms Woedene as the possible biological mother and Ms Jenner also is the possible biological mother.
Notwithstanding that, obviously, the birth mother was Ms Woedene. There appears to have been some contact between Ms Woedene and the parties up until about 2002 when the parties migrated to Australia. I am referring to the applicant and the respondent.
As Ms Woedene has said to Ms R, for a considerable period she lost contact with Ms Jenner but in or around about 2004 or 2005 she commenced some telephone communication with Ms Jenner and thereafter she says she has had regular telephone contact with the child.
Ms Woedene, the intervenor, in her application, seeks an order that the child be returned to South Africa, that she, as the birth mother, has all the rights according to her and that Mr Rusken the emotional father has none and it may be that Ms Jenner does not have many either because she says, and I emphasise that, according to South African law, she is the person who has the right of “custody”.
The boy was registered in the names of the applicant and the respondent with the respondent being declared the mother or being described rather as the mother and the applicant described as the father.
It appears that Ms Woedene has, unilaterally, as I understand, approached the relevant department in South Africa and has had or is in the process of having the birth certificate changed to indicate that she is the birth mother and that the father is unknown. The sperm for the creation of the child is donor sperm.
She may be able to do that without giving notice to who appears on the face of it, to be the registered father and the registered mother. I see an order has been sought by the independent children’s lawyer that a copy of this order be forwarded to the Department of Home Affairs which is very proper. I consider that comity between two countries such as Australia and South Africa would be advanced by their being aware of orders which have been made here in Australia. Obviously, of course, my orders in no way bind any of the authorities in South Africa and I would not even dream of contemplating such.
The parties separated in or about the month of June 2004 and thereafter the father did not see the child – I use the word “father” advisedly – did not see the child for about five months, perhaps for some short periods.
Once again in 2004 the respondent sought an order that the child live with her and did not seek any formal spending time with between the child and the father. The father responded seeking shared cared. Subsequent thereto, there was a shared care arrangement which came into being for a period. It appears as though it worked. In December 2004 orders were made that the child spend six nights with his father and eight nights with his mother per fortnight.
A family report was prepared by Sue W. Such report is not before me and consequently, it would be difficult for me to consider whether or not the report was biased as has been alleged by the respondent. In December 2005, consent orders were made in relation to shared care. In December 2006, the applicant remarried and is continuing in that marriage.
The respondent and the child, it appears were required, in order to get permanent residency status, to leave Australia for a period and return thereto in June 2007. The boy and the mother, but with the consent of the father, left and went to Vietnam for a period. They returned and the mother now has, as I understand, permanent residency and I understand the father, Mr Rusken, has also.
Thereafter there were difficulties with the boy spending time with his father. There were difficulties with the boy attending school. The mother in 2007 kept him away for a period of approximately two months. Because of some reason or other she considered that the father might abduct him from school or that he was not getting on well at school and was being bullied. The Department of Education did not approve of this because of the shared care order (see letter which is exhibit 1).
On or about 28 August 2007, a further application was filed by the applicant for parenting orders. It came on before O’Reilly J who made certain orders and the applicant was to have supervised access to the child at the D Contact Centre. It came before Barry J who reinstated the week about arrangements. As a result of the alleged conduct of the mother in or about the month of April 2008, the D Contact Centre withdrew its services to the mother.
A family report then was prepared by Ms R. Ms R has done, as is her want, an in-depth and meaningful report. She is at present resident in London and unfortunately her cross-examination took place by way of telephone. I will be referring to Ms R’s report in more depth at a later stage.
In April of 2008, the mother suffered some form of breakdown which necessitated her being admitted to the D Hospital for a period and she was again admitted some one month later. The first of the admissions was where the mother had taken some drugs. She, at this stage, made some comments to the effect that it would be better for the child to be injected with heroin and as a direct result of that, as she concedes, she was compulsorily put into the D Hospital, not only on one occasion but on two occasions. However, she was discharged in May 2008. Dr C has referred to this in his cross-examination and indicates that this is – could not say normal but it happens frequently that people who reach a crisis and, in effect, do become confused, if I can use that word or word which was not used by Dr C, that this type normally recovers remarkably speedily and resumes their life in general.
She did that and she has not been readmitted to any mental institution since that time. She has, of course, given evidence that she was taking Stillnox which is a sleeping tablet and that her dosage was – she showed me the packet – four 20 milligram tablets per day. Dr C expressed amazement at the amount of the dose. He said it was a massive dose. However, she now says she no longer uses them.
RECORDED : NOT TRANSCRIBED
In May, as a direct result of what happened, and particularly the statements made by the mother, an urgent interim hearing was brought before O’Reilly J who then ordered that the child live with the applicant father and spend supervised time with the respondent. She was, once again, admitted to the D Hospital in June. Since that time, the mother has spent little or no time with the child. She has seen him during the reporting processes but she has not, as I understand, had any supervised contact with him at a contact centre or at all.
A report was made by Ms T which is another, I consider, important document in this case, and it is dated 6 August 2008. As I said, since that time, the mother has spent virtually no time with the child.
What then is the difficulty in this case? The difficulty in this case is encapsulated, particularly, in the evidence, the report of Ms R, supported by the evidence and report of Ms T and, in particular, I am referring to para 104 and I read in to these my reasons for judgment, those paragraphs which commence at 104 with:
"There is no doubt that Ms [Jenner] is closely attached to [the child]."
That is patently obvious:
"Their appearance per se is not of relevance -"
I consider that that is the case too as well:
"- in consideration of parenting skills. However, her excessive preoccupation with her image may have reflected a degree of self absorption that impacts on her capacity to consider [the child’s] needs and views as separate to her own."
(105):
"In my opinion, the major concern relating to Ms [Jenner] centres on her lack of support for [the child’s] relationship."
Based on this interview process, she is intent on undermining and negating Mr Rusken’s position as the child’s father and sees nothing of value in this relationship for the child. Her overriding determination to exclude Mr Rusken from any role in the child’s life has resulted in her acting in ways that appear uncontained and have impacted on broader areas of the child’s life such as his educational experience, the removing him from school for a number of months. She has similar negativity in regard to Mr Rusken’s role.
It goes on further (106).
"Ms [Jenner] presents with little capacity to contain her feelings towards Mr [Rusken]. Based on her comments and those of [the child], there is evidence that she has actively embroiled [the child] in the dispute, thus, it is likely that, in his mother’s household, [the child] will have little or no encouragement to maintain his relationship with Mr [Rusken]. There was nothing elicited to lead me to conclude that Ms [Jenner] is likely to moderate her views in this regard (see subsequently Ms [T’s] report)."
Paragraph 112:
“Since conducting interviews with Ms [Jenner], I have been provided with a report of the latter from the [D] Children’s Contact Centre dated 9 April 2008 regarding their withdrawal of service to Ms [Jenner]. The contents of this letter reinforce concerns relating to Ms [Jenner’s] lack of boundaries and containment in relation to the dispute. It is possible that her behaviours may be escalating as further Court processes approach. Should the Court decide [the child] live with his father, it is possible that Ms [Jenner] would experience further difficulty in containing her behaviours and reaction. In this context, her threat to abduct [the child] or otherwise disregards orders are of significance."
I say in passing that it may not be a threat to abduct the child but a threat that she wishes to remove the child from Australia and return him to Aunty A as the intervenor who is referred to and that is where Ms R suggests that there may be a period of initial supervised time with the child. She recommends that the child live with the father.
She was unaware when that report was prepared of the conduct of the mother in relation to making a threat to inject the child with heroin, nor of her collapse as a result of excess stress and/or some form of overdose of drugs.
Ms T came into the scene, as I have said, in August and she did a children’s and parents’ issues assessment. She was particularly concerned with the mother’s attitude towards the father and as she refers to both the mother and the father, and this is perhaps a very excellent way of putting it, she refers to them as the “emotional and social parents of the child”. Whether or not Ms Jenner is a biological mother or not, Mr Rusken is not a biological father and as a result – but she says quite clearly:
"The child recognises both Ms [Jenner] and Mr [Rusken] as his father and mother.
It is important that people recognise that because the child, as Ms T found at page 5 of her report:
"is struggling to cope with the protracted parental conflict and if this continues his emotional wellbeing will be increasingly compromised to the point of experiencing difficulties developing and maintaining intimate relationships in adulthood."
Ms T had the opportunity subsequent to that of seeing the mother with the child for a period of four occasions. These concerned her. She refers particularly, I am not quite sure whether it was the third or the fourth, where the mother brought certain presents for the child for Christmas but immediately took them back and did not allow him to take them back to the place where he was residing at this time. Ms T expressed extreme surprise at the callous nature of the mother in doing that to the boy.
On the fourth visit, there was the watch episode where the mother gave to the child a very fine looking watch, according, to Ms T, but immediately took it back because as she said, someone suggested that the father would throw it in the bin. Ms T did check with the child about that and said “No, that would not happen”. This was after the mother had left.
She treated the child, according to Ms T, in a babyish type fashion. She discussed trips to South Africa which caused the child, as I accept from the evidence of the emotional father, a great deal of concern. He was afeared he was going to be removed from Australia permanently. She said that the father had promised that the child would go to South Africa, initially, for Christmas. This did not take place and it was not agreed to by the father and she again mentioned the fact that she would return to Aunty A. I refer to it and incorporate in these my reasons for judgment not only the assessment by Ms T dated 6 August but subsequently her long family report which is dated 10 February 2009.
She refers to the promises to return to Africa at para 17 of the second of the reports wherein she says: “Ms [Jenner’s] comments” – this took place in front of Ms T by the way. It was not reported to her. This is direct evidence:
"Ms [Jenner’s] comments to [the child] often appeared to be an attempt to convince [the child] that he was part of Aunty [A’s] family and that he needed to meet and spend time with the family in South Africa. Initially, and on numerous occasions she would state to [the child] that "we are going to Aunty [A’s] at Christmas" which later became “well we didn’t go to South Africa because of Christmas but we will be going at Easter.". These comments were made despite my ongoing comments to both her and [the child] that [the child] would not be going to South Africa without permission from the Court or Mr [Rusken]”.
This is totally insensitive for this boy. She is offering promises which she cannot at that stage and could not at that stage have brought to fruition. It was absolutely scandalous. I also think that her conduct in taking the presents back from the child, notwithstanding the fact that Ms T says he accepted it, was insensitive in the extreme. I refer to the dropping of (indistinct) which is contained in para 18 of that self same report.

She goes on to say that in each session that the child appeared with the mother that he was initially tentative and did not appear comfortable. At para 21, Ms T sets out some of the comments made by the mother as follows:
"When showing [the child] photographs of Aunty [A] and her family, Ms [Jenner] made comments to [the child] such as, 'Aunty [A] is going to phone you. You ask daddy to let you phone her. Aunty [A] says she loves you very much. I told Aunty [A] that you will come to South Africa at Christmas."
Ms Jenner then looked at the writer and said:
"I think he must, his siblings are over there”.
I do not feel that I should enter into the allegations of lack of sensitivity, of self absorption in any more detail other than to incorporate in these, my reasons, the statements made by Ms T and Ms R. Ms T in two reports and Ms R in the original report of April 2008.
All the experts are concerned about the self absorption, about the lack of sensitivity towards the child’s feelings and they are extremely concerned that this continued predilection with the child returning to South Africa, with her failure to understand the boy, is causing him a great deal of emotional harm and Ms T has now gone so far in her final report at page 8 under heading “Recommendations” recommended as follows:
“That given Ms [Jenner] has previously been banned from one of the contact centres -”
I mentioned that –
“- because of her uncontained behaviours, it would be my view that unless the Court is convinced to the contrary in relation to her capacity to do so that she has three supervised visits each year with [the child] at a contact centre”.
That appears to me to very Draconian. It is limiting the child’s right to see his mother for three periods during the year. I have asked for submissions from the parties on that matter. Ms Jenner has indicated that she, if the worst comes to the worst, would want more time and, I must confess, I am somewhat sympathetic towards her. The independent children’s lawyer does not believe that it should be any more than three, neither does, as I understand, the applicant notwithstanding in his draft orders presented to the Court, he seeks an order for supervised contact each alternate weekend, if my memory serves me correctly. I can make that quite clear now if, in fact, I find that the child resides with the father, that is too much.
Dr C was a very impressive witness. Dr C is a psychiatrist. He has examined the mother. Two things concerned him gravely. On the Wednesday under cross-examination, Ms Jenner used the following words:
"Don’t you think it would be better for [the child] to be dead rather than living through the hell he is doing."
Once again, she just cannot recognise how that is not to the advantage either herself or to the boy. She has fallen back into this business of getting rid of the child to protect him from what she considers to be a dreadful lifestyle. It is quite surprising that since the child went to live with his father on a more permanent basis that he has now become resistant to the mother. He does not despise her. He does not hate her. He loves her but he is to use words which he referred to Ms T “is uncomfortable with her”. She, of course says that that cannot be right because all the time he was being very difficult with his father. He did not want to go to him, he fought him for weeks on end. He fought the police but now that he appears to have changed his view in relation to the mother, he is now lying. She refers, in particular, to the allegation made by the child – not really put forward by the father but made by the child – that his mother kicked him whilst in the contact centre here in Court, or at Court. She denies that this took place. There is some evidence that she has observed a CCTV and indicates that nothing of that nature took place and that is one of the things he is lying about.
Dr C was also staggered at the taking of such enormous dose – he was of the opinion that it was an enormous dose of Stillnox that the mother was taking. This may have affected her in her general attitude with which would not, I would have thought, benefit her in anyway at all. He, when pressed by the mother asking what more could she do to make the child happy, he just said – and I was very impressed with this – he said:
"What you have to do is to become a good enough mum. It is not to be a good mum but is to be good enough."
This statement comes from another psychologist, an English psychologist, who has developed this theory, that it is not to be a good mum but is to be a good enough mum or parent as the case may be. The mother has failed. She has not done the proper thing by the child. She has put an enormous amount of pressure upon that child not only in so far as South Africa is concerned, but her obvious disregard and almost hate of the father which she cannot control. There may be many reasons for that. There may be and she may be quite justified but she cannot not control her feelings in relation to the child.
The child has feelings for his father. She may not understand that he could possibly have but he has and her - I hate to use the word, but the word “attack” upon the child’s feelings has not advanced her welfare at all. It has not advanced any claim she may have had in having either residence of the child or spending unsupervised time with the child for any length of time. It is quite tragic that for some reason or other she has not been able to recognise that. It may be that she is the lioness in the den protecting her cubs and cannot see black from white but she has, with great respect, has been her own worst enemy.
She has not put forward a good case and her reliance upon Ms Woedene’s view that Mr Rusken not being the father has no rights. She puts that forward herself that he has no rights. She said that to Ms R, that he has no rights. It is not his rights that we are concerned about. It is not her rights we are concerned about. It is the child’s.
It is not Ms Woedene’s rights which may be fair under the South African law. It is not here. We have jurisdiction. We apply our laws. It has been set as long ago as 1979 in Gronow that being a mother does not give you a preferential position. It is a factor, an important factor but it does not give the mother a preferential position. The Court has to consider all matters, an important factor which is the mother. That leads me then on to Ms Woedene.
Ms Woedene was paid to become pregnant. She indicated to me she received some 50,000 to 60,000 rand. I have not been informed of the exchange rate but it is something like 6 or 5 rand to the Australian dollar. That is on the bank rate. She was paid something like nine to $10,000. She indicates that, as a result of that, as a result of her being the birth mother, the child should return to South Africa, should be wrenched away from his father, should be wrenched away from the environment which he has known since 2002, even though he was only a baby at the time, be wrenched away from his emotional mother, his emotional father, be wrenched away from his school, from whatever friends he has, and returned to South Africa where Ms Woedene has four children of her own, all of whom are adult and has fostered two other children. She runs a shop.
She has not put before me one jot of evidence which would convince me that the child’s welfare would be advanced by his being wrenched away, not from Australia but from his present environment and I cannot, for one moment, accept that that would be to his benefit. In fact, I reject her claim totally. It may be I might be persuaded to allow her to be able to contact the child when he is with his mother but not otherwise.
Ms Jenner believes that every expert that she has ever come across is biased. She has made threats and she worries about the question of perjury. Perhaps she might be more concerned about defamation, particularly in relation to her alleging that the applicant is a heroin user and all his friends are heroin users. This was the letter that she wrote to Ms T. It did not do her any good at all. She has these other letters where she has referred Dr C to the Medical Board for what she says is his biased and unfair report. I looked upon his report as being very fair, in fact, more in favour of her than the others but she really let go and she let sprays go everywhere about all of the – how is it that every reporter, every expert is against her. She says, what about Dr K or N.
RECORDED : NOT TRANSCRIBED
She put quite properly put this report to Dr C and he said:
"It has got nothing to do with what we are dealing with now."
He was looking at a specific condition and I will refer to it when I get the report. What he said to her about being a narcissist or not, is unfortunately not admissible in that form. The letter is admissible as she quite properly put. Dr C was not convinced. Dr C was particularly concerned that the mother has a “profound personality disorder” with narcissistic overtones. She gets very cross at being classed as “narcissistic” but he thinks that she has these symptoms of narcissism. It is a person of the profound personality disorder which concerns me.
She has made what could be considered by some other person less charitable than myself, threats against the like of the child on at least two occasions. How could she possibly expect any Court to be persuaded that, after having made these threats, that she will not carry them out. It is all very easy to say “I will kill you but I did not intend to do so”. That just does not advance her case at all and I would sincerely hope she would listen and that is not a lost cause. She must consider that the child is a young man. He is a sensitive young man and he should be encouraged to feel respect not only for his father, for his mother as well. I am sure that will be done. If not it will come back before me.
What then can we do? As I have said, it is the child’s right to know his mother. I think that three two hour sessions at a contact centre is a waste of time for everybody. Ms Jenner seeks more. Personally the child is entitled to more. I think he should see his mother more often but then I cannot on the evidence before me give unsupervised contact for each alternate weekend. Ms R did say in her report of last year that the child spend time on alternate weekends subject, of course, to the consideration raised in 113 to which I have already referred wherein she was concerned, that is para 113, she was concerned that there be no contact between the parties themselves (indistinct) or otherwise.
I make it quite clear that under the provisions of the Act, I have to consider now whether there should be a joint parental spending time with. It is quite clear on the evidence before me that that cannot work. It would not be in the interests of the child. Should the child’s meaningful relationship be encouraged by her. There is more chance of it being encouraged by being in the father’s possession than that of the mother’s. There is little or no chance of a meaningful relationship between the father and his son taking place if he was in the unsupervised position of living with the mother.
What I have to consider is 2(b) of s 60CC.
I have to consider the need to protect the child from physical or psychological harm. Quite clearly, in my opinion, should in fact he be in the possession of his mother for any lengthy time, he would suffer this. It may not be intentional. It may not be intentional but her whole attitude is not advancing and could not be said to advance the child and would expose him to those harms. I tend to think that what I am required to consider whether there were any views expressed by the child. I tend to think that that is unfortunate. I do not think that ever should have been in but I am directed to do so. The child here loves both his parents, emotional parents and he should not be put through the wringer of indemnity to ascertain whether, in fact, he loves one more than he loves the other. I would have thought that standing back with objective tests would indicate to the parties that Ms T, Ms R, are all of the opinion that he has a great deal of love and regard for his mother if he is allowed to develop it.
It appears to me at this stage that he does wish to stay with his father because, this has been pointed out by both Ms T and Ms R, the stability is there. It is not stable with the mother. I have touched upon the nature of the relationship of the child, s 60CC I have touched upon, the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
I do not believe it is incumbent upon me to go through each of these sub-pars seriata. I have indicated what I consider to be the difficulty on the mother’s case and that is her self absorption, her inability to consider the sensitivity of the child and not putting the child’s wishes and/or needs before her own. In those circumstances, I consider that I have no other option rather than to order:
ORDER DELIVERED
The question of spending time with the mother has concerned me deeply. I think she is right in saying three periods during the year is – she never said it but I will say it - a waste of time, not only to her but to the child. It gives him no opportunity of endeavouring to maximise his relationship with his mother who he loves. I recognise it is exceptionally difficult for me to make an order between alternate weekends which I think is too much at this stage although later on I would think it can be increased and so doing the best I can on the evidence I have to, perhaps, take the coward’s way out and say something in between and I would think that the mother should have contact or spend time with her son at a contact centre six times per year.
This can only take place if the mother gives 14 days’ notice of her intention to avail herself of that period and indicate to the father where and when such contact centre will be available. I make it quite clear, it may be because of the offer made by the father in his draft orders that a person known to both the mother and the father may be willing to take the difficult step of supervising contact or spending time with for a longer period than which I believe contact centres will only give them those two hours which is not very much.
RECORDED : NOT TRANSCRIBED
I have been given draft orders from both the applicant and the independent children’s lawyer.
RECORDED : NOT TRANSCRIBED
ORDERS DELIVERED
Insofar as Ms Woedene is concerned, Ms Woedene’s application is dismissed. She may contact Ms Jenner and the child at such times as Ms Jenner and the child are spending time together, otherwise not.
RECORDED : NOT TRANSCRIBED

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell.

Associate:

Date: 17 April 2009

[2009] FamCA 282

13 March 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies

Statutory Construction