S and S - [2002] FMCAfam 9

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & S

[2002] FMCAfam 9

CHILDREN – Contact – residence.

Applicant:

G A S

Respondent:

K A S

File No:

ZB3227 of 2001

Delivered on:

25 January 2002

Delivered at:

Darwin

Hearing Date:

10 December 2001

Judgment of:

Brown FM

REPRESENTATION

Counsel for the Applicant:

Mr Warwick Hodges

Solicitors for the Applicant:

Hillhouse Burrough McKeown

Counsel for the Respondent:

Mr J Linklater-Steel

Solicitors for the Respondent:

Noel Woodall & Associates

ORDERS

That the child of the marriage A J M S born 9 May 1996 (“the said child”) reside with the wife.
That the parties have joint responsibility for decisions concerning the long term care, welfare and development of the said child.
That each party have responsibility for day-to-day decisions concerning the care, welfare and development of the said child at all times when the said child is with him or her.
That the husband have contact with the said child as follows:
(a)Each alternate weekend from after school Friday until 7.00pm the following Sunday or in the event that the following Monday is a pupil free day or public holiday until 7.00pm on that Monday;
(b)For half of each school holiday period including Easter, being the first half in 2002 and the second half in 2003 and alternating thereafter;
(c)In the event that Father’s Day is not on a contact weekend from 9.00am to 5.00pm on Father’s Day;
(d)For three hours on the said child’s birthday at a time to be agreed between the parties and failing agreement, if a school day from after school for three hours and if a non school day from 1.00pm to 5.00pm;
(e)For the Christmas school holidays 2002 from 12.30pm Christmas Day to 9.00am Boxing Day and for the year 2003 from 5.00pm Christmas Eve to 12.00 noon Christmas Day and alternating between such times in each year thereafter;
(f)By telephone on Tuesdays and Thursdays of each week between 6.30pm and 7.00pm. The wife to initiate each such call and ensure that when she initiates such call that it takes place in a quiet environment;
(g)At such other time that may be agreed between the parties.
That neither party denigrates the other in the presence of the said child.
That the parties ensure that their family and friends do not denigrate either party in the presence of the said child.
That the wife advise the husband of all medical treatment received by the said child whilst the said child is in her care and the husband advise the wife of all medical treatment received by the said child whilst the said child is in his care.
That the wife ensure that the husband is provided with a copy of all of the said child’s school reports and that he is advised of all school functions, parent teacher nights and all other school activities involving the said child and which parents may attend from time to time and the husband is permitted to attend such occasions.
That the parties advise the other in writing within 7 days of any change of address or telephone number.
That the wife be restrained from changing the said child’s place of residence to any place beyond a radius of 10 kilometres of where she presently resides without further order of this Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DARWIN

ZB3227 of 2001

G A S

Applicant

And

K A S

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to these proceedings are G A S (hereinafter referred to as “the husband”) and K A S (hereinafter referred to as “the wife”).
The husband and wife are the parents of one child A J M S (hereinafter referred to as “A”) born 9 May 1996. Accordingly at the present time A is five years and seven months old.
The parties met in September of 1993 and married at W in Q on

19 November 1994. A is the only child of the parties although the wife has two children from an earlier marriage namely C who was born on 13 August 1984 and J who was born on 18 January 1989. The parties finally separated in September of 1999 in T. Since separation A has lived with the wife. Both parties seek orders that A should live with him or her and that the other party should have defined contact to her. It is the determination of these competing applications for parenting orders in respect of A that is currently before the court.
A number of interim orders have been made in respect of the husband’s contact to A since he instituted proceedings in this court on 26 March 2001. On 30 April 2001 Federal Magistrate Rimmer ordered that the husband have contact to A each alternate weekend from 9.00 am Saturday until 5.00 pm the following Sunday and telephone contact each Tuesday between 6.00 pm and 7.30 pm. On 6 June 2001 Federal Magistrate Rimmer further ordered that the husband have contact to A each alternate weekend from 5.30 pm on Friday until 5.00 pm on Sunday and during the June and September school holidays. Orders were made in respect of the location for the collection and return of A on contact.
The matter was heard before me in B on 10 and 11 December 2001. Each party was represented by counsel.

Applications

The husband is the applicant in these proceedings. He filed a form 3 application with the court on 26 March 2001. During the hearing of the matter he submitted a minute of the orders he sought from the court in respect of A as follows:
1)That the child of the marriage, A J M S born 9 May 1996 reside with the father.
2)That the father have sole responsibility for the day-to-day care, welfare and development of the child whilst the child is residing with the father.
3)That the mother have sole responsibility for the day-to-day care, welfare and development during periods of contact with the mother.
4)That the mother and father have the long-term care, welfare and development of the said child.
5)That the mother have contact with the said child at all reasonable times as may be agreed between the parties and failing agreement, as follows:
(a)each alternate weekend from after school Friday to delivery to the school Monday morning, extended to Tuesday if a pupil-free day or public holiday;
(b)one half of all gazetted school holidays including Easter, being the first half in 2001 and the second half in 2002 and alternating thereafter;
(c)telephone contact each Tuesday, Thursday and Sunday of the non-contact weekend between the hours of 6.00 pm and 7.00 pm with the mother to initiate the call from a land line phone;
(d)after school Wednesday to delivery to school Thursday morning each week;
(e)Mother’s Day of each year from 9.00 am to 5.00 pm if not otherwise a contact weekend;
(f)for three hours on the child’s birthday at a time to be agreed between the parties, failing agreement, if a school day from after school for three hours and if a non-school day from 1.00 pm to 5.00 pm;
(g)if Father’s Day falls on a weekend, contact shall conclude at 9.00 am on the Sunday;
(h)for the Christmas school holidays 2001 from 12.30 pm Christmas Day to 9.00 am Boxing Day and for the year 2002 from 5.00 pm Christmas Eve to 12 noon Christmas Day and alternating between such times in each year thereafter.
6)That the parties advise the other in writing within seven (7) days of any change of address or telephone number.
7)That neither party denigrate the other in the presence of the child.
8)That the parties ensure that their family and friends do not denigrate either party in the presence of the child.
9)This order shall be sufficient authority for any school the child attends to provide information to the mother in relation to school functions, activities and/or events that parents may attend from time to time and the mother is permitted to attend such occasions.
10)This order is sufficient authority for any medical practitioner or other professional to provide information to the mother in relation to the child.
11)For all contact changeovers other than at the child’s school, the mother collect the child from the father’s residence at the commencement of the contact and the father collect the child from the mother’s residence at the conclusion of the contact periods.
12)That the mother continue to reside in the northern suburbs of B.
In her form 3A Response filed with the court on 4 June 2001 the wife indicated that she seeks the following orders:
1)That the child of the marriage A J M S born 9 May 1996 reside with the respondent mother.
2)That the respondent mother have the sole responsibility for the day to day care, welfare and development of the child.
3)That the applicant father have contact with the child at all reasonable times which may be agreed between the parties and this to include:
(a)every second weekend between 9.00 am Saturday and 5.00 pm Sunday;
(b)weekly telephone contact to occur at a time and on a day agreeable by the parties;
(c)Father’s Day of each year from 9.00 am to 5.00 pm; and
(d)on the child’s birthday times as agreed between the parties.
4)That the applicant father advise the respondent mother in writing within five days of any change of residential address or telephone number.
5)That the applicant father will not either directly or indirectly make negative comments to the child in relation to the respondent mother or talk of her in a disparaging or negative way.

The husband relied on the following affidavits filed on his behalf:
a)Of himself filed on 26 March 2001, 6 June 2001 and 30 November 2001;
b)Of his father A B S filed on 26 March 2001;
c)Of his mother M W E filed on 26 March 2001;
d)Of L A filed on 26 March 2001;
e)Of D B filed on 26 March 2001;
f)Of R B filed on 26 March 2001;
g)Of his current partner R M S filed on 26 March 2001 and
30 November 2001.
Of these witnesses the husband, Mr S Snr, Mrs E, Ms B and Ms S were called to give oral evidence and were cross-examined by counsel for the wife, Mr Linklater-Steele. In addition the husband tendered a number of tape recordings of his telephone contact and attempts to have telephone contact with A that had occurred in January and February of 2001.
The wife relied on the following affidavits filed on her behalf:
a)Of herself filed on 17 September 2001;
b)Of her mother R C filed 20 November 2001;
c)Of N B filed 4 June 2001;
d)Of her current partner A D P filed on 8 December 2001;
e)Of A’s current pre-school teacher L G filed on 8 December 2001.
All of these witnesses were called to give oral evidence and each was cross-examined by counsel for the husband, Mr Hodges.
In addition the court had the benefit of a family report which was prepared by John de Laurence, a psychologist and Family Court Counsellor. Mr de Laurence was required for cross-examination by both parties.

Background

The husband was born on 6 August 1963. The wife was born on 2 July 1965. After their marriage the parties lived in T from 1995 until 1999, where A was born. The husband was not engaged in paid work for the first two years of A’s life. The parties initially separated in August of 1999 but attempted a reconciliation until finally separating on 30 September 1999. Following separation A lived with the wife. The husband left T shortly after separation and moved to the Sunshine Coast. The wife, A, C and J also left T on 2 November 1999 and travelled by rail to N. Thereafter she and the children lived at premises at W and K. She moved to accommodation situated at 237 D Road, K in February of 2001. Currently she lives at A Road, K, accommodation which she obtained recently. C, who is now seventeen years of age, left her mother’s home in January 2001. The wife is not presently engaged in paid employment.
In October of 1999 the husband met R S. He and Ms S are currently engaged in a de facto relationship. In January of 2001 they purchased a 1.5 acre property at D V, M. This is where they currently live with Ms S’ daughter B who is currently aged about five. She will be starting Grade 1 at Primary School in 2002. The husband is working at present for a company that sells lifting equipment. Ms S is currently working in property management.
From November 1999 until January 2001 the husband had contact, including overnight contact to A. It seems that after separation the parties were able to reach some agreement between themselves in respect of care arrangements for A following a Legal Aid Conference that was held in December of 1999. It is also common ground between the parties that this contact broke down following a holiday visit to T that the husband made with A and Ms S and B during the Christmas and New Year holiday of 2000/2001. The reasons for this breakdown in contact arrangements are a central issue in the case and will be discussed further in these reasons for judgement. After this breakdown in contact arrangements the husband commenced these proceedings.
It has also undoubtedly been the case that there has been a high level of mutual mistrust and antagonism between the parties since at least January of 2001. The reasons for this mistrust must also be discussed further in these reasons for judgement.
A commenced at K S Pre-School on 13 February 2001. She is scheduled to attend primary school during 2002.
On 21 March 2001 the wife applied for a protection order at the P Magistrates’ Court. This order was made for a period of two years without any admission of wrong doing being made by the husband.
On 4 June 2001 the wife filed a Notice of Child Abuse with the court. This alleged that A had made a disclosure on 17 May 2001 to the wife of sexual abuse at the hands of the husband whilst the wife and A were attending at the Counselling Section of the Family Court at B.

The issues

It is common ground between the parties that A has been in the care of the wife since separation in September 1999. The husband wishes to change this arrangement. It is his position that the wife has failed to provide adequate physical, intellectual and emotional care for A both before and after separation. Further he contends that the wife has occasioned emotional abuse to the child by depriving her of the opportunity to have contact with him in the period between January and May 2001, that is in the period prior to orders being made by Federal Magistrate Rimmer, by maliciously concocting excuses to deny contact and obstructing his contact at every turn. As such it is his position that it is not in A’s best interests to remain in the wife’s care. He fears that if the current arrangements are allowed to stand his contact with A will be interrupted in future and his current loving relationship with her undermined. It is also the husband’s case that the wife’s residential arrangements since separation have been chaotic with several changes of address in contrast to his own which have been stable. He argues that in the long term he and his partner, Ms S are better placed to meet A’s needs than the wife and her partner Mr P. The husband is also critical of the wife’s family. He categorises them as inappropriate role models for A because of their involvement in criminal activities in the past and their high level of animosity towards him and his family. He alleges that the wife’s parents and in particular her step-mother have been extensively involved in the care of A since separation and that this is inappropriate. In short the husband is highly critical of the wife’s abilities as a mother and homemaker. He alleges that A is not properly fed when in the wife’s care and that she fails to maintain a hygienic home for A.
It is the wife’s case that on the current evidence available there is no compelling reason to change what has been a long standing arrangement for A’s care since the parties separated and no evidence that A’s well being has been jeopardised by her being in the care of her mother during this time. It is the wife’s case that she has been A’s primary carer since birth and certainly since separation and it would not be in her best interests for this arrangement to be changed at this time. Further the wife contends that the husband has an extremely negative view of her abilities as a mother and as such the court should have concerns that because of the entrenched nature of the husband’s animosity towards her that if there is a change of residence in respect of A that it is highly likely that he will attempt to undermine the relationship between A and her mother. She points to the fact that since orders for contact were made by the Court in May of 2001 that she has complied with the orders. She categorises the husband as being irrationally critical of her and her abilities as a parent too such an extent that he is incapable of seeing any benefits to A of maintaining her relationship with her mother. She further categories the husband as being controlling and domineering.
Both parties concede that there is a high level of animosity between them and that in such an environment a shared cared arrangement between them in respect of A is impossible.

The evidence

Findings of fact on disputed issues are made on the balance of probabilities. In these reasons statements of fact should be taken as findings of fact.
I found the husband to be a truthful witness. There was however no doubting the level of his antipathy towards the wife. During cross-examination he was hard pressed to find one positive thing to say about her, conceding only that since separation she had been able to put a roof over A’s head and feed her, albeit inadequately. The husband struck me as a more organised and methodical person than the wife. This is reflected in the fact that he has kept a diary of events that have occurred in respect of arrangements for his contact to A since separation and has on occasions electronically recorded his telephone contact with her. He is readily able to catalogue what he perceives as examples of the wife’s failings as a parent both before and after separation. His view of the wife as a parent is unremittingly negative.
The husband struck me as a person unable to empathise in any way with the position the wife found herself in following separation. I have no doubt that he and Ms S are in a superior financial position to that of the wife. They are purchasing their own home. They are both in paid employment. The wife is renting her accommodation and is in receipt of social security benefits. In my view this discrepancy in financial resources is a source of great insecurity for the wife and as a result has been the course of much mistrust and suspicion between the parties. As the wife no doubt views it, the husband and Ms S are much better placed than she is to offer material benefits to A.
My impressions of the husband and wife accord with those of Mr de Laurence, who viewed the husband as belonging to a middle class socio-economic grouping whilst the wife belonged to a lower socio-economic grouping. As a result of their different backgrounds and circumstances the parties have very different aspirations for A and views as to what is appropriate for her. This has been a constant source of suspicion and mistrust between them since separation.
The wife was not an impressive witness. She was insecure and evasive in the witness box. She was disingenuous in respect of a number of issues about which she was questioned, in particular the status of her relationship with Mr P and what occurred following the husband’s contact to A at Christmas in 2000. She struck me as being a somewhat immature person and certainly not a sophisticated or worldly one. Certainly she appeared to have none of the organisational skills displayed by the husband. It seemed to me that she was insecure emotionally, particularly in regards to her relationship with A. I believe that the overwhelming motivation for her behaviour in respect of A since separation has been a fear that she will eventually loose the residence of A to the husband. This fear coloured her evidence and influenced her behaviour in respect of A, particularly following the T contact visit over the Christmas period of 2000/2001.

Having said that the wife’s behaviour to the husband in respect of his contact and interaction with A since separation has been reprehensible and unpardonable. She was quite frank in her evidence that she would prefer it if the husband had no contact with A. Her actions have done nothing to reduce the tensions between the parties and have in fact exacerbated what was already a tense and difficult situation between the parties. It is sad but perhaps not unexpected that various members of the parties’ families should have been drawn into the dispute on the side of their particular relative. As a result acrimony and criticism marked the proceedings before me with neither side having anything positive to say of the other.
However at this stage I should record my opinion that both parties love A very much and each in his or her own way has her interests to heart. Notwithstanding this each of them has a very different view as to what is likely to be in A’s best interests and in both their cases their evidence was coloured to a large degree by their diametrically opposed positions in respect of the matter and their essentially negative view of the other party.

Events prior to separation

The husband called evidence from himself, his mother Mrs M E and from a friend of his of eighteen years standing, Ms D B in respect of the wife’s home making and parenting abilities. Each of them was highly critical of the wife in this regard.
It is the husband’s position that the wife is lazy and failed to attend to domestic duties during the marriage leaving the house unkempt and unhygienic. In addition he says that the wife failed to provide nutritious meals for both him and A during the marriage and that that there was an over reliance on take-away food in their diet as a result. The wife denies these allegations. In support of her position she relies on evidence of her step-mother R C, who visited the parties in T following A’s birth. She was supportive of the wife’s abilities as a cook and home maker. However her visit was a brief one.
The husband also points to six specific incidents that occurred during the marriage, which he says are indicative of the wife’s inability to properly supervise A.
The husband’s evidence is that he was unemployed for the first two years of A’s life and as a result of this and the wife’s laziness responsibility for the care of A and the performance of other household tasks devolved to him and the wife’s daughter, C. As I have already indicated the husband is unfailingly critical of all aspects of the wife’s abilities as a mother and home maker. In my view a large part of his criticism stems from his current level of hostility towards her and also from their different backgrounds and upbringing. It is important to note that the husband acknowledges that he returned to the workforce when A was aged about two. At that stage he was content to leave A primarily in the wife’s care during his hours of work. He was also content, at least initially, to leave A with the wife when the parties finally separated in September of 1999.
Mrs E’s evidence is limited to her observations during a short visit she paid to the parties’ former matrimonial home between 15 and 18 September 1999. This was a short time before the parties finally separated and when it would be expected that tension between them would be at a high level. Both she and Ms B are highly partisan in their support of the husband and in my view this has consequences for the objectivity of their observations. The husband was present in the home at the times they make their criticisms of the wife yet none of their criticisms are directed towards him. It is assumed from their evidence that whatever shortcomings they saw in the household attached to the wife alone. House keeping, like many other things is a highly subjective matter. In this case there is no independent and impartial evidence to support the criticisms of the wife made by the husband. There is no independent evidence that during this period that A’s well being was really seriously compromised by the standard of the wife’s care of her.
From my observations of her and the evidence before me I do not believe that the wife could be described as an exemplary home maker. However on the other hand in all the circumstances of this case I do not believe that the wife is as black as the husband would paint her. The fact remains that he was content to allow things to go on as they were for a number of years and raises his criticisms when he has an agenda for change to pursue. To my mind it smacks of hypocrisy to criticise someone for an overall reliance on takeaway food in her diet after having sat down earlier and consumed the food with that person.
In his affidavit filed with the Court on 26 March 2001 the husband details in graphic detail six separate incidents that he says demonstrate the laxity of the wife in her supervision of A. These incidents include A allegedly gaining access to some bleach, panadol, spray paint and scissors and also on occasions wandering away from the family home or going under the house. In her affidavit in response the wife either denies responsibility for each of these incidents or down plays their seriousness. The fact remains that fortunately in none of the incidents did A come to any harm. In my view it is apparent that the husband is willing to use every pretext to demonise the wife. Once again the husband is critical when he has an agenda to pursue. It is in my view telling that when A sustained some minor injury involving a horse when she was in the husband’s care that this is characterised by him as “a bit of an accident” rather than described as a major omission. It confirms my view that the husband sees things in very black and white terms where his conduct and the conduct of the wife are concerned. This is readily explicable when the atmosphere of mutual mistrust and antagonism between the parties is considered.

Events since separation

The husband met Ms S in October of 1999. She was an impressive witness. Ms S and the husband began their relationship soon after meeting. I have no doubt that their relationship is a permanent and stable one. It was apparent to me that Ms S and the husband share much the same aspirations and ambitions. They have very much the same parenting style and the same concerns regarding parenting. They purchased their current home at M in January of 2001. The property is in a bushland setting and is comprised of 1.5 acres. The couple owns a variety of animals including two dogs, two cats and a shetland pony. The husband and Ms S enjoy all the trappings of a middle class life style. They are of course not to be criticised for this. I have no doubt that both of them have worked and continue to work very hard to maintain such a lifestyle. It is the sort of life with the sort of trappings that I would imagine is calculated to appeal to a five-year-old girl. As I have already indicated it is the sort of lifestyle that would compound the insecurities of the wife. I have no doubt that Ms S is a competent parent who would be more than capable of caring for A. Ms S impressed me as a person who had become warmly involved with A in the time she had known A.
Following separation both parties left the T area. Initially the wife went to live with her family in W. The husband in his evidence indicates that he moved to the S C in November of 1999 in order to maintain contact with A. The parties attended a Legal Aid Conference on 21 December 1999 and at that stage were able to reach agreement in respect of parenting arrangements for A. It was agreed between the parties that A would live with the wife and that the husband would have contact with her each alternate weekend from 9.00 am on Saturday until 5.00 pm the following Sunday and for one further week each year when he was on holiday from his employment. The terms of this agreement were never formalised in an order of the court.
The wife has changed her address at least five times since she left T. She moved to another property in W in March of 2000. In July of 2000 she moved in with Mr P’s mother also in W. In February of 2001 she moved to accommodation situated at 237 D Road, K. She has recently moved again to another property in K. In each case she did not inform the husband of her change of address. It seems to me that her life since she separated from the husband has been far from a stable one.
After the Legal Aid conference the husband did have some contact to A. He complains that the wife was late in collecting A for contact and continually changed arrangements at the last minute. The wife says that this contact occurred “approximately every second weekend for the entire weekend”. The husband says that it ceased after five weekends. I am satisfied that some contact did take place but believe that it was far from satisfactory. I have no doubt that the wife was unco-operative with the arrangements. I suspect that she hoped that if she placed enough obstacles in the way of the husband’s contact that ultimately he would desist with his wish to maintain contact with A.
For this behaviour she gives herself no credit. However regrettably from January of 2001 her behaviour went from bad to worse. On the evidence before me I am satisfied that from this time she actively tried to sabotage the husband’s contact to A and used every pretext she could think of to prevent contact. This behaviour coincided with the husband’s successful holiday with A, Ms S and B to T and the purchase of the husband and Ms S home at M. It seems to me that at this time the wife was becoming increasingly more and more insecure about her continuing role in A’s life and as she saw it the increasing role of the husband and Ms S. As a result she went to extreme lengths to frustrate the husband’s contact to A. Inevitably this increased tensions between the parties and their respective families and supporters. A difficult situation got worse.
In my view it is telling that both parties refer to a conversation that took place between them in their affidavit material although each of them puts a slightly different gloss on it. The wife says that the husband said to her words to the effect of “there might be a day when I might take A for a visit and might not bring her back”. The husband says that the conversation was “one day A might want to come and live with me”. Whatever was said in my view such conversations are indicative of the growing sense of insecurity the wife was feeling. She responded to her feelings with dishonesty and manipulation.
I accept the evidence of the husband and Ms S that it was agreed between the parties that the husband would have contact for a period of two weeks at Christmas 2000/2001. Even if this was not the case it does not justify the subsequent conduct of the wife in arbitrarily withholding contact.
The wife lied to the husband about her intention to move to C and withheld from him information about where she was actually going to live with A in a further effort to deny contact. The husband’s only means of maintaining contact with A was by means of telephoning the wife’s mobile phone. This was arbitrarily turned off from time to time. When the husband did get through to the wife his requests for contact were met with a blunt refusal. The wife refused to supply her conventional telephone number to the husband. However he gained it by other means. At this time Mr S Snr was in B and wished to see A. The wife begrudgingly agreed to supervised contact between him and the husband at a park at C on 4 February 2001. She supervised the contact.
It was about this time that allegations of sexual abuse involving A began to appear and exacerbate the already high level of tension between the parties. These allegations were used as a further pretext to prevent the husband having contact with A as envisaged by the agreement the parties had reached at the Legal Aid Conference over twelve months earlier. The allegations initially involved concerns regarding B inserting a pencil in A’s vagina and then changed in nature to include allegations that J had inappropriately dealt with her. Whatever the allegations were they were unspecific in their nature. Perhaps inevitably given the wife’s insecurities and her mistrust of the husband, the allegations also came to include in her mind the possibilty that the husband was also involved in some way. Whatever was the situation it became a further basis on which she refused contact. No doubt it was the reason for the supervised contact on 4 February 2001.
It was against this background that the unfortunate incident occurred at the K Bowls Club on the evening of Friday 9 February 2001. The husband learnt that A was at the Bowling Club with her mother and Mrs C as a result of intelligence received from a friend. I have no doubt that he was angry and frustrated by his continual inability to see A. For that reason he decided that he would himself attend at the Bowling Club in an attempt to take A for what he perceived as being his entitled weekend contact. With the benefit of hindsight it would have been better if he had not attended there. Mrs C reacted badly to what she perceived to be an unwarranted intrusion into her privacy. As a result she behaved in a most unseemly fashion abusing the husband as “child bashing mongrel” and “rock spider” and a “cunt”. It was immature and unseemly behaviour and does her no credit. It also seems apparent that she had become infected with the belief that the husband had been behaving inappropriately with A although there was no firm evidence of this. I accept the wife was not involved directly in this altercation and removed A from its worst aspects. However I have no doubt that it was a most unpleasant and unsettling incident for A. The husband demanded that the police be called to the scene and they subsequently attended at the Bowling Club. The husband continued to demand to see A and as a result of the intercession of the police he spent a brief amount of time with her during which he told A that he loved her but that the wife would not let him see her. In my view it would have more prudent and mature if the husband had withdrawn from the Bowling Club at the first sign of discord. His continued presence at the Club only served to further inflame the situation and potentially cause distress to A.
As a result of his frustration with the situation the husband began to electronically record his telephone contact with A. These tape recordings were played into evidence before me. In those conversations A poignantly asked her father if he knew the way to her home to come and visit her. At that time the husband was still unaware of the wife’s address. A also told her father that she had not wanted to be removed from the Club. The tape recordings show a normal little girl who is willing to talk to her father about the sorts of things that interest a five year old such as riding bicycles and her pair of new shoes. There is no evidence of any reluctance on her part to talk to her father.
I also heard some brief conversation between the parties in which the wife told the husband that she had been to see solicitors and was going to see a paediatrician and “well within her rights to withhold visitations at the moment until I get it all sorted out”.
On 6 March 2001 A was examined by Dr F, a paediatrician at R H who indicated that there was no evidence of any penetration of her vagina. Notwithstanding this evidence the wife still refused to allow contact until orders were made by the court on 30 April 2001.
On 16 February 2001 the wife applied for a Protection Order against the husband pursuant to the Domestic Violence (Family Protection) Act. Her application was granted by the P Magistrates Court on

21 March 2001 without any admission by the husband. The granting of this order served to further sour the relations between the parties.
On 26 March 2001 the husband instituted the present proceedings. On 4 June 2001 the wife filed a Notice of Child Abuse with the court. The nature of this notice was that A had disclosed to her that her father had inappropriately touched her. This disclosure was allegedly made at the Family Court Counselling Service on 17 May 2001. The Notice was filed with the court after orders had been made granting the husband contact to A on an alternate weekend basis. The wife has never seriously sought to pursue the issue and now concedes that no abuse has ever taken place.
However on the evidence before me I am satisfied that at least in part her use of the allegations of sexual abuse was motivated by a desire on her part to frustrate the husband’s contact to A. Such allegations flourished readily in her mind in the atmosphere of mistrust she had for the husband. It would seem to me that A did raise some concerns with her parents during 2000, which could possibly be construed as amounting to sexual abuse and which as a result did warrant further investigation. The allegations were vague and as it transpired without substance. The wife dealt with the allegations immaturely and inadequately and as I have found readily seized on them as a basis for denying contact when it was inappropriate for her to do so. It is demonstrative of the inadequacy of her parenting relationship with the husband that she was not capable of discussing the issue with him.
On the evidence before me I am satisfied that no lasting harm has been occasioned to A as a result of the wife’s conduct between January 2001 and the weekend of May 12 2001 when the orders made by Federal Magistrate Rimmer concerning the husband’s contact came into effect. Despite the attempts of the wife A has maintained a good relationship with her father that was readily resumed when contact began again.
In my view it is also a matter of some importance that since the orders for contact were made on 30 April 2001 that the contact has taken place albeit that the husband continues to be critical of the quality of the telephone contact that he has to A. This contact has included one week of extended contact in the September school holidays. Although as I have already indicated the wife would prefer that the contact not take place it has taken place. It remains far from perfect, chiefly as I believe due to the continuing mistrust and suspicion between the parties and the different backgrounds of the parties and their parenting styles.
The wife and her family are deeply suspicious and bitterly resentful of what they see are unwarranted intrusions into their private lives. As I have already indicated the backgrounds and socio-economic circumstances of the two families are markedly different. The husband is critical of what he sees as the potential for criminality within the wife’s family and has been vocal in expressing his concerns as to what he sees as the potential for harm in the exposure of A to them. To this end he subpoenaed the criminal histories of both Mr P and Mr C, the wife’s father. This action seems to have deepened the wife’s sense of insecurity and her family’s resentment towards the husband.
Mr C did not give evidence in the case, although he did participate in interviews for the family report. I understand his occupation is driving a motorcycle stunt rider around Q. He has a criminal record including convictions for stealing between 1968 and 1985 and a conviction for cultivating cannabis and the possession of an unlicensed weapon in 1997. None of his convictions has resulted in him serving a term of imprisonment. Certainly the convictions bring no credit to Mr C however in my view it is drawing a long bow indeed to argue that Mr C poses some sort of threat to his grand-daughter because of his criminal record.
Mrs C gave evidence in the case. She readily agreed that from time to time she used foul language. She could not be described as genteel. In my view her evidence and presentation served to demonstrate the chasm that exists between the two families.

Mr P also gave evidence. He is currently employed as a house mover. He was not an impressive witness nor was he articulate. He was an unsophisticated working man who disliked the fact that he had had to come to court to give evidence. The impression he gave was of some resentment at having to be involved in business that had nothing to do with him. His lack of interest in the matter was in sharp contrast to Ms S. He readily admitted having had a serious drinking problem some three or four years ago but indicated that he now drank considerably less due to liver problems. He also admitted smoking marijuana. He had prior convictions for possession of cannabis in 1999, exceeding .05 in 1985, stealing in 1985 and obscene language in 1983. In my view none of these convictions are relevant. Certainly they do not indicate that he is an inappropriate person to have any dealings with A. In my view his stance in respect of the wife’s care of A was that this was a matter for her and which largely did not concern him.
The wife was somewhat evasive as to exactly when her relationship with Mr P began describing him as her flatmate to Mr de Laurence. Given the circumstances of the case and in particular her feelings of insecurity at the prospect of her household being compared to that of the husband’s, I can readily understand her disingenuousness. Mr P could not be described as an asset in her application in respect of A, particularly when compared with Ms S. Again a comparison between Mr P and Ms S serves to emphasis the socio economic gulf between the parties and their families. Ms S raising criticisms of A’s table manners and the like. My impressions of Mr P are that he would not be greatly concerned by such things.
The wife also called evidence from L G, who is currently A’s pre-school teacher. Ms G’s evidence was that A was always neat and well presented when she attended school and was a bright and enthusiastic child. Ms G had no concerns about the wife’s care of A. She said that the wife brought her to school regularly and punctually. In my view Ms G had no reason to tailor her evidence in respect of the matter and accordingly it must be given some weight.
The husband is a punctilious and well-organised person. In contrast the wife’s household seems to be somewhat chaotic. When contact resumed in May the husband kept a journal in respect of his contact to A. Extracts from this journal are attached to his affidavit. He complained in this that his telephone contact was disrupted by the sound of the television and the noise of people talking. In my view there is nothing particularly sinister in this. It merely reflects the very different nature of the two households and the personalities of the parties concerned.
In the journal the husband noted such things as the wife’s complaint to him that he not quiz A about what she was eating and recorded her comment to him that A does in fact eat nutritious meals. He also records his comment back “Well if she’s eating nutritional meals it shouldn’t bother you for me to ask”. Such an exchange demonstrates the dysfunction of the parental relationship between the parties. It seems to me that the husband has somewhat self- righteously gone out of his way to catalogue everyone of what he sees as the wife’s failings. As a result he has nothing positive to say about the wife’s parenting abilities. He seemed always to be on the look out for some fresh ground to level criticism at her. No doubt his constant hectoring tone has increased the insecurity of the wife. I am concerned that his attitude demonstrates a propensity to undermine the role of the wife in A’s life.
Both parties report that since contact was resumed that from their different viewpoints A has on the part of the wife been reluctant to go on contact visits with her father and on the part of the husband to return to the mother at the conclusion of contact. Ms S in her affidavit confirms the husband’s evidence in this regard, indeed characterises A’s behaviour as amounting to hysteria. In my view, having regard to the evidence of Mr de Laurence, it is not surprising that A should manifest such anxiety at hand over time, given the obvious high level of tension between her parents. In Mr de Laurence’s view, such behaviour was “not that surprising”. He indicated in his evidence that children are “phenomenal barometers” to the moods of their parents and very receptive of feelings of anxiety. I have no doubt that every change over after contact is charged with emotion on the part of both the wife on one hand and the husband and Ms S on the other. The only way to lessen this display of emotion on A’s part if for her to become aware that her parents have adopted a more co-operative parenting style. At the present time the dilemma that confronts A at each contact hand over is that she must shift alliances from one parent to the other.
As I have already indicated A has been attending K Pre-School for much of this year. The wife enrolled A at K without any consultation with the husband. In my view she has also actively tried to conceal details regarding A’s attendance and progress at pre-school from the husband. This does her no credit.
The husband has indicated his and Ms S’s intention to sell their current property and move closer to where the wife currently lives. They intend to purchase an acreage property in the North B area. This would be to facilitate contact between A and the wife in the event that the husband is successful in his application for residence. In the long term the husband proposes a private school education for A.

The family report

Two family reports were prepared in this matter by Mr de Laurence. His initial report was completed on 21 September 2001 and was followed by a supplementary report that involved interviews with Mr P and Mr and Mrs C. The supplementary report was completed on

16 November 2001.
Mr de Laurence is a psychologist in private practice in B. In the past he has been employed by the Family Court to prepare Family Assessment Reports. He was employed for a period of over twenty years with the New South Wales Department of Community Services and in that role was involved in child protection work. As a result he prepared many family reports and assessments in relation to care and protection matters. He is experienced in interviewing and observing children. I found him to be an impressive and well-qualified witness. I accept his evidence.
A expressed to Mr de Laurence that she loved both her parents. She seemed to be a chatty and energetic child. He had no concerns about her presentation and her involvement with activities during his observation of her with each of her parents. He was of the view that she was quite a determined child. It was also clear to him that A had a very close relationship with her father and had missed him when contact had not taken place. Mr de Laurence found it hard to determine whether A was more attached to her father or her mother. However he was of the view that from his observations of each of the parents with A that of them it was Mr S who was the more child focussed with A and that her behaviour was more settled in his presence than with her mother.
In the summary to his first report Mr de Laurence wrote as follows:
“Ms S appears to be rather immature emotionally and Mr S’s presentation is quite intense. It is easy to see how such a combination would lead to difficulties and particularly is likely to explain Ms S’s sense of being controlled by Mr S, although there does not appear to be any particular evidence of this.
In my view, the lack of trust that exists between the parents would make any consideration of shared care an impractical arrangement. Which means that the question is, in which household will A have her long term best interests most appropriately met?
Mr S and his partner are quite impressive and the stability of their relationship and the obvious attachment of A to her father, together with his ability to set appropriate limits for her, suggest that she would be capably cared for in this environment.
Ms S would appear to have more difficulties and there are suggestions that her household has been somewhat unstable with relationship changes and problems with her eldest daughter, C. However, A has lived with her mother the whole of her life and the continuity of care and the importance of this should not be ignored. A does not seem to be showing any sign of emotional disturbance or anxious attachment and the only significant comment made about the result of Ms S’s parenting has been about the child’s lack of table etiquette and social skills. This may reflect nothing more than the difference in how these behaviours are valued by the parents and not be indicative of poor parenting.
The sorts of aberrant features typically associated with attachment disorders are withdrawal, lack of connection with activities in the immediate surroundings, depressive reactions, apprehension, irritability, distress and detachment. None of this is evident in A. Neither does her behaviour or presentation suggest maltreatment or that she is rejected. There are some indicators that Ms S is somewhat ineffectual in her parenting, especially around A complying with her wishes, but this is qualified by the fact that the observation period does not offer a prolonged opportunity to observe the mother and child’s interactions over a variety of settings and situations.
From all of the above, I would conclude that A is much loved by both her mother and father and she seems to be a reasonably well-adjusted child. Although it is evident that Mr S and his partner would provide very satisfactory care to A, I do not believe that the evidence available through the assessment is strong or conclusive enough to warrant a change in her current residency. It also needs to be considered whether Mr S would support ongoing contact between A and her mother if she came to live with him, due to his highly negative perceptions of her. This same question can also be asked of the mother, however, her compliance with the current orders provide some confidence that with formal orders being in place she will co-operate with these.
Regular and predictable contact is essential for A. She has a strong relationship with her father and this deserves to be promoted and protected. Ms S and Mr S ideally should set out some consistent parenting guidelines which will be adopted across both households as this will provide continuity and consistency for the child. All conflict in front of the child must also cease…”
As a result of these observations Mr de Laurence recommended that A should continue to live with her mother unless evidence came to light that suggested that if such a placement was continued A’s welfare would be jeopardised to such an extent that she would be considered a child in need of care pursuant to the relevant state child protection legislation. No doubt this proviso stemmed from his understanding of the serious allegations regarding the wife’s care of A that the husband and Ms S had made and his understanding that these issues would be investigated by the court. As I have already indicated Mr de Laurence has considerable experience in child protection matters. It was opinion from his observations of A with each of her parents that she did not show any of the clinical signs of maltreatment or emotional abuse.
Mr de Laurence also recommended that the husband should have regular and predictable contact with A by way of weekend contact from 7.00 pm Friday until 7.00 pm Sunday each alternate weekend; mid week contact, if practicable; and for half of all school holidays. He also recommended twice weekly telephone contact. Finally he recommended that the parties attend on-going counselling in order to develop some sort of agreed plan between them in respect of the future parenting of A.
As I have indicated Mr de Laurence completed a supplementary report. As I understand matters this was as a result of criticism from the husband that neither Mr & Mrs C nor Mr P had been involved in the initial report and the Mr de Laurence was not aware of the full extent of the allegations regarding the criminality of the wife’s family that had been made by the husband.
Mr de Laurence observed A with Mr & Mrs C and described her as being “relaxed in their company and exuberant in front of them.” He was of the view that there was no difficulty in the relationship between A and her maternal grandparents and that the relationship was a significant one to her.
After having viewed the criminal histories of Mr C and Mr P and also having considered further the husband’s criticisms of the wife’s parenting skills, Mr de Laurence remained of the view that “the significant issue is the question of disturbing a placement where the child has been settled in the continuous care of her mother since birth.”
In his additional report Mr de Laurence commented that:
“…children require stability, familiarity of face and place, and although they can adapt very well to change, the reality in this case is that A’s stability has been with her mother…The need for this continuity should deter decision makers from disturbing a known successful placement, even if another placement may have the potential to be better. This is not to say that children should remain in risk situations but rather that decisions to disrupt a placement need to be made with a great deal of caution. Hence the report writer’s comment that A’s placement should only be disrupted if it could be established under the criteria of the relevant Child Protection Legislation that A could be defined as a child at risk.”
As a result of his further assessment Mr de Laurence was not inclined to change his earlier recommendations in respect of A.

The relevant law

The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the object of this Part of the Family Law Act. The object is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying this object are set out in section 60B(2) of the Act. These principles include, except where it would be contrary to a child’s best interests:
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children.
In the present case, regrettably the parties are unable to agree about the future parenting arrangements for A.
The application of these objects is subject to the provisions of section 65E which regards the best interests of the child concerned as being the paramount consideration in the making of any determination concerning the care of children.
In deciding the parenting arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in section 68F of the Family Law Act. The various sub-sections contained in section 68F comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755.

Section 68F(2) factors – Determining the best interests of the child

(a)The child’s wishes

A is five years and seven months old. Clearly she is still of tender years. Because of her age Mr de Laurence did not seek her views in respect of where and with whom she would prefer to live. In my view there is no clear evidence as to what her preference is in this regard. In any event given her age A’s wishes are not a strongly determinative factor in a case such as this one.

(b) The nature of the relationship between the child, her parents, and other significant people

I accept that A has a close and loving relationship with her father and Ms S. It is a relationship that has persisted in spite of what I have found have been prolonged and serious attempts by the wife to sabotage and undermine it. Mr de Laurence was impressed with both the husband and Ms S as parents and the child-focused nature of that relationship. He also noted that A interacted well with B.
I am also satisfied that A has a close and loving relationship with her mother. There can be no doubt that the wife has played a significant role in her life since the time of her birth. For the past two years she has lived for the vast majority of time with the wife. Whatever the short comings of the wife’s parenting may be I am of the view that A and her mother share a deep love for one another which has result from the wife being the central figure in A’s life.
I also accept, primarily on the basis of Mr de Laurence’s evidence that A has a significant relationship with her maternal grandparents, Mr and Mrs C. I have no doubt that the wife has relied on them in the past to assist her with the care of A, particularly in the early stages following her separation from the husband when she lived with them at W. As a result A has spent a deal of time with them. In my view the amount of time A has spent with them has lessened over time as the wife has established her own accommodation. Nonetheless the relationship is still a significant one. Mr de Laurence noted that Mr and Mrs C’s interactions with A were warm and natural and child-focused. He was also impressed with their ability to interact with another child in the Day Care Room. Mrs C may be a rough diamond but she is not a monster.
I have some reservations concerning the role of Mr P in A’s life. There is a paucity of evidence concerning this important issue. He did not avail himself of the opportunity to take part in any meaningful way with the preparation of the family report. The wife was, in my view, disingenuous about the nature of her relationship with Mr P for reasons to which reference has already been made. Mr P himself simply deposed that he did not wish to take over parenting duties in respect of A and that his children and the wife’s children from time to time spent time together at the weekend and that “there were no major relationship problems between my children and A and J”. However in my view there is nothing in the evidence to suggest that his relationship with A, whatever its full nature may be, is in any way malign or inappropriate.
There is nothing to suggest that A’s relationship with her half-siblings, J and C, is in any way inappropriate. J told Mr de Laurence that he was “fond” of A. Given her age, C is likely to be living her own life in future.

(c) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

i.either of her parents; or
ii.any other child, or other person, with whom she has been living

In Mr de Laurence’s view this was the central issue in the case. He urged caution in changing what he saw was a situation where A had been settled in the continuous care of her mother since birth and certainly since the parties separated, a period now in excess of two years. In his view, due to the potentially deleterious effects on the child concerned if this stability of care was changed, Mr de Laurence recommended that A’s current care arrangements should only be altered if there were compelling grounds to believe that her welfare was in serious jeopardy under the current arrangements.

The husband disputes that the wife was the primary carer of A for the first two years of her life. The fact remains that he did return to the work force whilst the parties were still married in T and it seems to me clear that whatever was the status of care before this, responsibility for the care of A thereafter fell to the wife. Additionally when the parties did finally separate it seems to me clear that the husband was content for the care of A to remain with the wife. This was certainly his stance at the Legal Aid Conference that took place in December of 1999 and at which he agreed to A continuing to live with the wife. His change in attitude seems to have arisen following the difficulties with contact that arose in January of 2001 and thereafter. On any view the arrangement that A live with her mother is a long standing one and in this regard

I agree with the opinion of Mr de Laurence that any decision to change it should be approached with a great deal of caution and only on the basis of compelling evidence that such a change would serve A’s best interests.
I am concerned about the potential for emotional harm being occasioned to A if her residence is changed. I have no doubt that such a change of residence between two very different households would be very unsettling for her. There is no evidence to suggest that A does not have a sense of attachment and belonging at her mother’s residence. This after all is the home and situation that she has known for the past two years.

(d) The practical difficulty and expense of the child having contact

Neither party proposes moving from the south east area of Q and in particular the area north of B. As I have already indicated the husband proposes moving closer to the present place of residence of the wife in K. At the present time there are no practical impediments to either party having contact with A regardless of what the outcome of the proceedings given their present proposals. The wife has moved a number of times since she left T. The husband is concerned by this and critical of the wife for it. He remains concerned that she may move again. I can understand his concerns given the history of his contact with A since separation and particularly since January of 2001. I am satisfied that it would be a crushing blow to A to remove her from frequent and regular contact with Mr S. In the absence of specific proposals I cannot consider the practical difficulty and expense of maintaining contact or the effect distance could have on A’s right to maintain a relationship with both her parents. I can however make orders which ensure A is not removed from the B area without notice or the consent of her father or mother.
The husband was also critical of the quality of his telephone contact with A. He complained of background noise during contact. In my view this noise reflects the somewhat chaotic nature of the wife’s household. I can readily accept that hers is a household in which the television is often on. In my view orders could be made to facilitate telephone contact by making such contact take place at a fixed time during the week and ensuring that the contact take place in a quieter location.

(e) The capacity of each parent, or any other person, to provide for the needs of the child, including emotional and intellectual needs

The husband has been strongly critical of the wife’s capacity to nurture and care for A both physically and emotionally. In respect of physical care it his case that the wife does not adequately feed A or ensure that she is properly washed or clothed. He is critical of the content of her diet and the reliance of the wife on takeaway and convenience foods. As I have already found, he was however content to leave A in the care of the wife following separation. He has no solid evidence to support his contention that A is currently not being properly fed. In my view his criticisms of the wife in this regard stem in large part from his very different views from those of the wife as to what is an appropriate diet for A and this in turn flow from their different social backgrounds. The parties have different views as to what constitutes a “normal” diet and indeed what constitutes appropriate table manners for a child of A’s age.
I am satisfied that the wife would not knowingly deprieve A of adequate nourishment or care and that it could not be said that A is a child in need of protection or at risk in the sense envisaged by Mr de Laurence. In this regard I pay heed to the evidence of A’s pre-school teacher Ms G who had no cause for concern regarding A’s attendance at school.
The husband is on balance probably better placed than the wife to meet A’s future intellectual needs, as she grows older. The wife suffers from dyslexia and acknowledges that she has not had access to a great deal of educational opportunities for herself. The husband proposes a private school education for A. The impression I got was that this education was dependent on him being successful in his application for residence. Needless to say if the parties agree, A would still be able to have access to such education regardless of her place of residence. The differing educational aspirations of the parties for A reflect once again their different socio economic orientations.
The husband was highly critical of the wife for her behaviour in respect of contact, particularly after the Christmas holiday in T in 2000. In his submission this amounted to emotional abuse of A and as such was a ground for a change of residence in respect of A. On any view A enjoys a close and loving relationship with her father. A relationship that has not been effected by the behaviour of the wife. As I have indicated this behaviour by the wife was a result of her immaturity and insecurity and no doubt her hostility towards the husband. In behaving as she did she put her own needs before those of A. However I have no reason to believe that she does not deeply love A. As Mr de Laurence indicated in the family report, A was not a child who displayed the psychological indicia of emotional abuse. There are also signs that the wife is slowly coming to terms with her hostility towards the husband. Contact has proceeded with some regularity since orders were made on an interim basis. The husband has indicated a willingness to undergo a course of counselling with the wife as recommended by Mr de Laurence in order to improve their ability to cooperate as parents.
This was a case marked very much by hostility between the parties and for that reason each of them concentrated in their respective cases on what they saw as the negative aspects of the other’s parenting of A. As a result each of them was unwilling to see any positive aspects in the other’s interaction with A. This was particularly marked in the case for the husband. However I have no reason to believe that both of them do not love A very much and according to their abilities that each are capable of providing for her needs, including her emotional and intellectual needs.

(f) The child’s maturity, sex and background

I do not believe that this subsection has any relevance in this particular case.

(g) The need to protect the child from physical or psychological harm

In my view neither party would ever do anything intentionally to psychologically harm A. However the fact remains that there is clear evidence that the wife put her own needs and emotions before those of A when she unilaterally decided to with hold contact after the T visit. Having said that I accept that there has been a marked improvement in respect of contact since the orders for contact were made by the court. Further there is no evidence to indicate that A has come to any psychological harm as a result of her failing to have contact with her father during the early portion of 2001. Certainly Mr de Laurence could find no indicia of A having suffered emotional abuse from his observation of her. I am satisfied that A would not come to physical or emotional harm if she is permitted to remain living with her mother.

(h) The attitude to the child, and to the responsibilities of parenthood

demonstrated by each of the child’s parents

I am satisfied that each of the parties is committed to responsible parenting. However in the case of each of them, residual hostility and poor communication skills have eroded that commitment. As a result in their conduct of this case each of have them has relied on perceived shortcomings in the other’s parenting, rather than on the other’s strengths. This has led each of them to vilify the other. As a result of this I have concerns in respect of both of them as to their abilities to foster the relationship between A and the other parent. I was left with the impression that each of them would be quite content if A had nothing ever to do with the other parent in future. This is notwithstanding the fact that A obviously has a loving relationship with both her parents and will need both of them to reach her full potential.

(h) Any family violence involving the child or a member of the child’s family

(j) Any family violence order that applies to the child or a member of the child’s family

As has already been indicated, the wife obtained a Protection Order against the husband on 21 March 2001 following the incident at the K Bowls Club. The order is still in force. The incident at the Bowling Club was a regrettable incident from everyone’s point of view. It seems to have happened in the heat of the moment between the husband and Mrs C senior when the husband arrived at the Bowling Club unexpectedly. I am however satisfied that it was an isolated incident and one unlikely to be repeated. Certainly I have no concerns about A being exposed to family violence in the future.

(k)Orders least likely to lead to further proceedings

Finality is usually preferable in children’s cases. In this case it is important that a final decision is made and A is released from the stress she is presently experiencing.

Conclusions

I am satisfied that A’s best interests will be fostered by her remaining predominantly in the care of the wife and living at her home. In my view she has a strong relationship with her mother that has developed since the time of her birth. She has been in the sole care of the wife since the parties separated, which is a period in excess of two years. It is my view that it is important that the continuity of A’s care be maintained. As I have indicated I can find no sufficiently compelling reason or reasons to change what in any view is a long standing arrangement.
As I have found A enjoys a strong and healthy relationship with her father. It is important that this relationship be maintained by him having regular fixed contact to her father.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate:

Date: