Shaw and Brennan

FAMILY COURT OF AUSTRALIA

SHAW & BRENNAN

[2008] FamCA 656

FAMILY LAW - CHILDREN - Best interests

Family Law Act 1975 (Cth)

APPLICANT:

Mr Shaw

RESPONDENT:

Ms Brennan

INDEPENDENT CHILDREN’S LAWYER:

Adamsons Lawyers

FILE NUMBER:

SYF

3250

2006

DATE DELIVERED:

12 August 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

21-23 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Watkins

SOLICITOR FOR THE RESPONDENT:

Mr Bransgrove

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Braine

Orders

General

The parties have equal shared parental responsibility for the major long-term issues in relation to the child, …, born … March 2006 (the Child).
The Child live with the mother as set out hereunder and at those times the mother be responsible for the Child's day to day care, welfare and development.
The Child live with the father as set out hereunder and at those times the father be responsible for the Child's day to day care, welfare and development.
For the purpose of this order the weeks of the year are divided up into either odd or even, where the first whole week of year in which 1 January falls is week 1, an odd week.
Each week is to start on a Monday and conclude on a Sunday.

Father’s Weekly Time Periods

The child is to live with the father during the following periods:
(a)       At present taking effect from the date of these orders:
(i)commencing the first Wednesday following these Orders, the Child is to spend the night with the father from 6.00 pm every Wednesday to 8.00 am the following morning
(ii)the Child is to spend every Friday with the father from 8.00 am to 6.00 pm
(iii)commencing the second Saturday from the date of these orders, the Child spends 1 night with the father each alternate weekend from 10.00 am Saturday to 10.00 am Sunday.
(b)       Commencing 8 March 2009 (the child’s 3rd Birthday):
(i)the Child is to spend the night with the father from 6.00 pm every Wednesday to 8.00 am the following morning
(ii)the Child is to spend 2 nights with the father each alternate week from 10.00 am Friday to 10.00 am Sunday.
(c)       Commencing 1 January 2011 when the child is aged 5:
(i)the Child is to spend the night with the father each alternate week from 6.00 pm on Wednesday to 8.00 am the following morning
(ii)the Child is to spend 3 nights with the father each alternate week from the later of, 8.00 am Friday or the conclusion of school on Friday, to the later of 8.00 am Monday or the commencement of school on Monday morning.
(d)       Commencing when the Child is 7 years of age:
(i)The Child is to spend the night with the father each alternate Wednesday from the later of 8.00 am or the commencement of school to the latter of 8.00 am the following morning or the commencement of school
(ii)The Child is to spend 4 nights with the father each alternate week from the later of 8.00 am or the conclusion of the child’s school day on Thursday to the latter of 8.00 am Monday or the commencement of school.
(e)       Commencing when the Child is 10 years of age:
(i)The Child is to spend the week with the father each alternate week from the conclusion of school on Monday to 8.00 am or the commencement of school the following Monday.

School Holidays

From the time the Child reaches the age of 5 and from the time the Child commences school, the Child will spend one half the school holidays with the father, and the orders dealing with time with the father are otherwise suspended, as agreed. Failing agreement, in years that end with an odd number the Child will spend the first half of all school holidays that commence in that year with the father and conversely years that end with an even number the child will spend the second half of all school holidays that commence within that year with the father.

Other Days

Father
(a) The Father is to spend time periods with the Child:
(i)from 6.00 pm on Christmas Eve to midday on Christmas Day in 2008 and in even numbered years thereafter
(ii)from midday to 7.00 pm on Christmas Day in 2009 and in odd numbered years thereafter
(iii)from 8.00 am to 6.00 pm on the father’s birthday
(iv)from 8.00 am to 6.00 pm on Fathers Day.
(b)In respect to the Child’s Birthday, if it does not fall within the father’s weekly entitlement above, the father is to spend time with the child:
(i)from 3.00 pm to 6.00 pm that day if the Child’s birthday falls on a daycare or school day
(ii)from 10.00 am from 3.00 pm that day if the Child’s birthday does not fall on a daycare or school day.
In the event that the father is unable by virtue of his work commitments to collect the child, the child may at the father’s option be collected for contact by the paternal grandmother, Ms B Shaw, the paternal aunt, Ms C Shaw, or the parental great-aunt, Ms U, or such other person as the parties may agree.
The father shall provide to the mother by facsimile transmission or email a copy of each of his work rosters at least seven days prior to the commencement of the roster whilst ever he remains employed in the transport industry on roster.
In the event that the father is required to work whilst on standby he is to provide the mother with 12 hours notice of the cancellation of any period when he is to spend time with the child but nothing in this provision will prohibit the parties agreeing that in lieu of the child spending time with the father the child may spend time with one or more of the persons nominated in order (9) hereof, or any other agreed person.
Mother
(a)Save as provided for the child to live with the father the child shall live with the mother.
(b)The mother is entitled to spend the following time periods with the Child if any or all of the following days fall on the father’s “Weekly Time Periods” or “School Holiday” time periods:
(i)from 3.00 pm to 6.00 pm that day if the Child’s birthday falls on a daycare or school day
(ii)from 10.00 am to 3.00 pm that day if the Child’s birthday does not fall on a daycare or school day
(iii)from 8.00 am to 6.00 pm on the mother’s birthday
(iv)from 8.00 am to 6.00 pm on Mothers Day.

Pick-up and Drop-off

Unless otherwise agreed, that, for the purpose of the father spending time with the Child pursuant to these Orders, the father or his nominee collect the Child at the mother’s or other family residence, the Child’s daycare facility or the Child’s school, as appropriate. The mother or her nominee will collect the Child at the appropriate time from the father’s or other family residence and return the Child to the mother’s residence, the Child’s daycare facility or the Child’s school, as appropriate, except when the Child has spent the night with the father and is attending daycare or school the following day, then the father or his nominee will deliver the Child to the Child’s daycare facility or the Child’s school, as appropriate.

Communications

The parties, unless otherwise agreed between them, communicate with each other in relation to the Child by email, except in the case of emergency.
Within 7 days of the date of these Orders and within 48 hours of any change of such details, the mother is to provide to the father by email the names, addresses and telephone numbers of the Child’s treating doctors, dentists and childcare facilities.
The mother authorise and request all treating doctors, dentists, childcare facilities, preschools and schools attended by the Child at any time to communicate with and to provide to the father copies of reports, correspondence, newsletters, et cetera.

Travel

Both parties do all acts and things necessary to obtain a passport for the Child in the event that one party requests the other party’s cooperation in obtaining such passport.
In the event that the father wishes to take the Child out of the Commonwealth of Australia, the mother provide the father with the Child’s passport within 7 days of the father requesting same and that the father return the Child’s passport to the mother within a reasonable time after the conclusion of the father’s overseas trip with the Child.

Illness

In the event that the Child is seriously ill, is admitted or is to be admitted to hospital, the party in whose care the Child is at that time is to immediately notify the other party.
The mother is to retain a non-family member as the Child’s treating doctor or other medical practitioner or provider and provide information to the father of the address and contact telephone numbers of such health care provider such that the father can contact any such provider when needed and discuss the Child’s medical needs at any time. Nothing in this order shall prevent or prohibit the mother from consulting a medically qualified family member concerning the child’s health in the event of a medical emergency.

Child’s Name

The Child is to retain either her maternal or paternal family name.
If the mother changes her family name from “[Brennan]”, the Child is to adopt her father’s family name “[Shaw]”, such that the Child’s family name reflects at least one of her parent’s family names.
The mother is restrained from publishing or permitting to be published to the child any documents or records or account of these proceedings or otherwise discussing these proceedings with the child.
Pursuant to Section 65DA(2) and Section 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.

Costs

Any applicant for any order for costs is to file an application, which has a note of the costs sought and the basis on which they are sought, and serve it on any respondent to the application within 28 days of today’s date together with a written submission in support of such an application.
Any respondent to any application for costs file within a further 21 days their response to the application, accompanied by a written submission in support of such response.
In the event that either party wishes to adduce affidavit evidence in support of their application or response that material is to be filed with their written submissions.
In the case of the father and mother, a statement of current financial affairs is to be filed in support of any such application or response.
In the event that no applications are filed within 28 days the Court will not thereafter entertain an application for an order for costs.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF3250 of 2006

MR SHAW

Applicant

And

MS BRENNAN

Respondent

REASONS FOR JUDGMENT

Introduction

In this case a child was born following the breakdown of a relationship between two parties which was going to become a marriage, but which did not take place because of the decision of the father to end the engagement.
The ensuing hurt and humiliation has, I think, in large measure, led to the problems that beset the parties in resolving their conflict, one in which each of them articulates a desire and enthusiasm for and support of a good relationship between the child and the other party, but has difficulty in adopting an agreed method to achieve that end and fully develop the participation of the father in the child’s life.
The mother appears overprotective of the child and, on the basis of the evidence, would always find it difficult to be satisfied that her child was safe alone in the care of her father, because of some unspecified psychological condition.
Those concerns, in the Court’s view, have shadow but not substance. The father had been ill but is now well. The father’s care is, on independent account, and indeed on the mother’s own evidence, child focussed and is care in which the child basks in the love of her father and his family. She returns that love in as full a measure as a child of these years does.
For all the problems that the relationship between the parties has, there are glimmers of hope for it to become one in which there is free communication and exchange. It also has the signs of being, with a little encouragement, one in which each of them and their respective families may contribute to the child developing her highest potential. Certainly the evidence of the father was that he wholeheartedly embraced the concept and prospect of free communication between himself and the mother and the mother’s family in achieving what appeared to be a joint purpose.
The court notes that litigation never brings out the best in people and this case is no exception. It is its hope that the orders herein having been made, and the parties having had the opportunity for mature reflection, they will put their dispute behind them and not subject this little girl to ongoing conflict between two people she loves, and it seems two families she loves.

Background Facts

In 1992 the parties met.
In 1993 the parties commenced a sexual relationship which lasted approximately 18 months.
In July 2002 the parties renewed their relationship.
In May 2005 the parties renewed their sexual relationship.
In July 2005 the mother became pregnant and the parties became engaged and planned a wedding for October 2005.
On 29 July 2005 the father terminated the engagement.
In October 2005 the father, formerly living in Cairns, accepted employment in Sydney.
In March 2006 the child was born.
On 21 June 2006 the father commenced proceedings.
On 10 July 2006 consent orders were made under which the father can spend one hour with the child on three occasions in each week.
On 9 August 2006 the mother returned to work on a full time basis.
On 4 October 2006 Orders were made by consent for the father to spend limited time with the child at the mother’s residence and for a psychiatric report to be prepared in relation to the father’s mental health.
On 9 November 2006 Dr R made an assessment of the father.

Dr R was appointed by the father.
On 9 November 2006 Dr A, a psychiatrist appointed by the mother, made a report on the father.
On 30 March 2007 the Less Adversarial Trial started before Justice Steele.
On 5 October 2007 there was a single expert report by Associate Professor D.
On 14 July 2008 Dr D issued a further report, updating her earlier report.

The Issues

The issues in this case were significantly reduced in part by reason of concessions made by the mother. Those concessions included:
a)she did not object to an order that the child’s surname not be changed from “[Brennan]” other than to “[Shaw]”
b)she supported the view that in the first instance communication be between the parties by email or, if oral, that it be confirmed by email
c)she had been and would continue to be as flexible as she could in relation to the arrangements for the child’s time with her father knowing that the exigencies of his work in the transport industry. In particular, she knew that his requirement from time to time to be “on call” needed to be accommodated in order that the child should be able to develop a close and loving relationship with the father.
d)that the child loves the father
e)that the child benefited from the father’s love
f)that the father was a dedicated father
g)that the father and the child should spend time with each other, and that contact should change as the child grew older
h)that the father should have access to information as to the child’s welfare, progress and education. She had facilitated the child spending time with her father at pre-school so that he had the opportunity of interacting with her in that environment.
The parties agreed:
a)that the parties should share parental responsibility for the child
b)that the mother, having married Dr E, would refer to him in future as the child’s “stepfather” rather than “dadda” as was presently occurring, so that the true nature of the child’s relationships with relevant adults would be supported
c)there was no issue that the child would spend more time with the mother than the father
d)there was no issue that, given the father’s present employment, equal time was not presently an option
e)there was agreement that having regard to the father’s present occupation, a measure of flexibility was required, and the mother pointed out that she had been flexible in the past.

During the course of the proceedings, however, the significant issues narrowed to be:
f)how much time the child should spend with the father. In this regard, somewhat strangely, the mother said that she had not turned her mind to the subject and yet her case outline document talked of maintaining the present situation
g)whether, having regard to the father’s “mental health issues” (if any), that time should be supervised and, if so, by whom
h)whether the father had a need to undergo ongoing psychiatric treatment and therapy
i)whether he did or not, whether he should be obliged to supply to the mother psychiatric reports of his condition for a period of time, perhaps two years
j)whether an order might be made providing for certain nominated persons to spend time with the child in the event that the father was unable to spend time with the child because of his employment.

Credit

The parties gave evidence orally and by affidavit.
The father presented in the witness box as a forthright and personable man, who was responsive to questions. Indeed, in submissions the mother’s solicitor described him as an “affable and nice person”.
The father was prepared to admit matters which were against his interest in a way which showed he had developed a better understanding of the causes of his current dilemma. He, for example, saw the present problems of communication as stemming from the insistence of a lawyer previously engaged by him, requiring the mother to only communicate through that lawyer. He saw that process as unproductive and provoking. He expressed real contrition about it. He gave evidence in an open way about the fact that he had discussed the possibility of abortion with the mother prior to the birth of the child. The responsive nature of his answers and his capacity to acknowledge facts which might have been thought adverse to his case was refreshing. He impressed me as a witness of truth.
The mother was warned by me on one occasion, after a series of questions made it apparent that she was not concentrating on the question asked and rather pursuing some other line, that a failure to be responsive to questions is a matter which can be taken into account in making an assessment of evidentiary preference. Notwithstanding that warning, which she said she understood, she was at times hesitant in answering. Her answers were, on many occasions, non responsive and on one occasion she said words to the effect “I am thinking how you are going to trip me up.” It appeared to me, that if she thought the answer to a question might harm her, she travelled on another course or made a speech. Whilst there is much to admire about the mother’s care for the child and her obvious contribution to raising a delightful little girl on all accounts, not much can be admired about the way in which she gave her evidence and where her evidence and that of the father conflicts I, in most cases prefer the evidence of the father.
It was submitted by the solicitor for the mother, Mr Bransgrove, that the father ought not to be believed. He pointed to the evidence he gave to the psychiatrists and aliunde that he was prescribed a dose of the drug Effexor at a dosage of 300 milligrams but commenced taking that drug at the rather lower dose of 75 milligrams a day. The effect of the father’s evidence is simply that he was prescribed 300 milligrams. It is, he says, a drug where you work up to the prescribed dose and commence with 75 milligrams a day and then increase to the higher dose. His explanation rang true and is accepted by me.

The enthusiasm with which the explanation was sought to be scorned and belittled by the mother’s solicitor was, in my view, only a reflection of inexperience and perhaps a measure of partisanship arising out of the common filiation with the mother rather than any justified attack on credit and as such an attack I reject it.

Other Evidence

Evidence was adduced by each of the parties from psychiatrists. In the case of the father, Dr R, and in the case of the mother, Dr A. In addition, evidence was provided by Dr D, the court appointed expert. It was submitted by Mr Braine, the Independent Children’s Counsel, with which submission I respectfully agree, that the willingness of the father to submit himself to the explorations of three such experts speaks to his credit and to which I would add it also speaks to his patience.
The evidence of the two privately retained experts can be summarised as follows, as to matters in issue in these proceedings. Dr R attested that at the time of assessment the father, who had previously suffered from depression, was not exhibiting any signs of depression. Dr A attested in the same fashion as Dr R that the father was not demonstrating symptoms of depression at the time of assessment.
The father detailed a history to each of the psychiatrists of mild to moderate depression which was treated primarily with the drug Effexor. He gave evidence of, in due course, reducing the dosage of the drug and he no longer takes it or needs to take it. He has had no relapse.
In the conduct of this case, the mother’s solicitor spent a deal of time seeking from the father a concession as to the aetiology of his depression and it is true that as his understanding has unfolded over time he has given different possible explanations for it, and in the event he does not know. He points to the following possible joint and/or several causes.
The father said he was afflicted with an unusual disease, L, one of the known side effects of which is depression. This is a matter he drew to the attention of Dr D on the occasion of her second report.
At the time he became depressed he had been engaging in the task of building a house at Cairns which was not without some difficulty and, in conjunction with the demands of his job, was listed as a possible cause for anxiety.
He was also diagnosed as having coeliacs disorder but subsequently was told that his symptoms related to gluten intolerance. He also suffered, it appears, from irritable bowel syndrome.
Once again, it seems to me to be not possible to determine the cause of the depression. What we can determine is that there is clear evidence of not one, but three psychiatrists that he is not presently depressed and appears to have been in that state for a considerable period of time.
The father has sought counselling as he reported to Dr A. He has done so after discussions with his then partner about the need to have someone on whom he could unload the tension of a defended court case, in circumstances where he was acting for himself.
His partner and he were, in my view, wise indeed in seeking such an avenue. It must have had the prospect of making life at his home much the better than it would have been otherwise if he had used his partner for that purpose.
The mother’s solicitor sought to introduce into evidence a document purporting to be the notes of the counsellor in sessions with the father and which tender I rejected under section 135 of the Evidence Act 1995.
The notes had been subpoenaed to Court in October last year. The court was not aware of any attempt being made to bring the counsellor to court. The notes were not the father’s notes and their production, without that author, did not in my view give them any significant probative value. Their use in my view would have unfairly prejudiced the father. It is not evidentially acceptable for the mother’s solicitor to place his own interpretation on them when they are not his notes either and where there is no ability to cross examine the author, or have them placed by the author in appropriate context.
The mother’s solicitor urged me to ignore the provisions of section 135 of the Evidence Act saying that he had attended a one day course in family law and had been informed that the rules of evidence did not apply in children’s matters. The source of his inaccurate submission is not particularly helpful to the court nor, it seems, to the mother’s solicitor.
In my view, the father adopted in cross examination little of what the mother’s solicitor put to him in relation to what he might have said to the counsellor and what it might have meant.
Where he agreed he had said something it was with an explanation which was credible and was delivered in a credible way. None of his explanations, in my view, gave rise to any concern and in the event there was nothing in the admissible evidence which led me to the conclusion that much could be drawn from the consultation with the Counsellor.
The mother’s solicitor subsequently cross examined Dr D in relation to this matter. He asked Dr D if she had been informed by the father that he had been consulting a clinical psychologist. He informed Dr D, who was cross examined on the telephone and did not have her original notes with her, that she had not mentioned this matter in her report.
The fact is that the father referred in his consultation with Dr A to consulting a counsellor, not a clinical psychologist, although that may have been the counsellor’s qualification in any event. The mother’s solicitor put a number of hypothetical situations to Dr D which have not been found to be facts before me.
The cross examination did nothing, in my view, to undermine the findings of the independent expert. Dr D, not having her reference documents and only her report with her would not have had the benefit of being able to recall upon a consideration of Dr A’s report, which she did have before her at the time of the making of the report, that the father was indeed consulting a counsellor.
In any event, the father’s attendance on that counsellor has ceased.
Dr R, who was not cross examined, deposed that he found no mental health reason to suggest that the father should in any way be restricted from being involved in the child’s upbringing.
Dr A (the psychiatrist retained by the mother), who also was not called to be cross examined concluded that the father did not exhibit any signs of depression.
Dr D, in her concluding remarks, says in summary in part that the child has a strong attachment to her mother and a very significant attachment to her father and also both grandmothers. She further comments that both parents appear well equipped to meet the physical and intellectual needs of the child.
I note that on the evidence before me there appears to have been some attempt by the mother to place limitations on the relationship of the father to the child and the child to the father. I see this as the vestigial remains of feelings generated at the time of the breakdown of the parties’ relationship, coupled with an excessive anxiety.
That anxiety is demonstrated in this case by references to newspaper reports of allegedly depressive men who have killed their children. If what she sought to draw from those events were true, no one who had ever suffered depression would have time with their children unsupervised. I reject as irrelevant the mother’s conclusion from a few tragic events unrelated to this family, this father and this child. It was not clear to Dr D that there was an adequate basis for the mother’s concerns.
Dr D says there is no evidence of ongoing depression in the father. She also says that it is not apparent that the father has any Personality Disorder. If his history can be relied upon she says there is no indication that he requires ongoing assessment or monitoring. Dr D says the issues raised by the mother regarding perhaps her excessive anxiety may suggest that she would benefit from counselling. She further says that there does not appear to be any reason why the father should not spend time with the child as sought by him. She goes on to say that there are no issues apparent to her to suggest that the child is at risk whilst in the care of the father or his family. In particular, Dr D suggested that the asserted concern of the mother about the paternal grandmother because she is a student and teacher of Yoga is without substance and that the paternal grandmother appears as an ordinary devoted grandmother. She goes on to say, and I respectfully agree:
there seems to be no reason why [the child] should not continue to develop strong bonds with both parents and with both families. It would seem to be in her best interests to continue to develop as normal a relationship as possible with her father and his family.
A lacuna in the evidence was found in the scarcity of evidence from the mother as to the development of the child and her various relationships in the last 18 months. The mother said she had not filed any such evidence because she thought that it was covered by the evidence of the independent expert

Dr D, with whose report she agreed.
The only assumption I can make is that during that time the child has been happy in her relationship with her father and her mother and the extended families on both sides, as seems evident from the report of Dr D.
There was a concession from the father that as a young man he had smoked marijuana. His evidence is that he does not now and has not for some time used it. There is no evidence, apart from the father’s concession as to past use, which demonstrates that he has used the drug of recent times, and no evidence to suggest that he is presently using it. A photograph which was tendered was accepted by the mother’s solicitor as not evidence that he was using the drug when the photograph was taken, but in any event I accept the father’s evidence.

Submissions

The Court heard submissions from each of the representatives of the parties and the Independent Children’s Lawyer.
The father sought the following orders:
1.        GENERAL
1.1That the parties have equal shared parental responsibility for the major long-term issues in relation to the child, […], born […] March 2006 (the Child).
1.2That the Child live with the mother and that the mother be responsible for the Child's day to day care, welfare and development at those times when the Child is in the mother's care.
1.3That the Child live with the father as follows and at those times the father be responsible for the Child's day to day care, welfare and development
1.4Weeks of the year are divided up into either odd or even. Where the first whole week of year that 1 January commences is week 1, an odd week.
1.5Each week is to start on a Monday and conclude on a Sunday.
2.        FATHERS WEEKLY TIME PERIODS
2.1      Present
2.1.1Commencing the first Wednesday of these Orders, the Child spends the night with the father every Wednesday from 6 pm to 8:00am the following morning.
2.1.2The Child spends every Friday with the father from 8:00am to 6:00pm
2.1.3Commencing the second Saturday from the date of these orders, the Child spends 1 night with the father each alternate week from 10:00am Saturday to 10:00am Sunday
2.2      Commencing […] March 2009 ([the child]’s 3rd Birthday)
2.2.1The Child spends the night with the father every Wednesday from 8:00am to 8:00am the following morning.
2.2.2The Child spends 2 nights with the father each alternate week from 10:00am Friday to 10:00am Sunday
2.3      Commencing 1 January 2011 when [the child is] aged 5
2.3.1The Child spends the night with the father each alternate week on Wednesday from 8:00am to 8:00am the following morning.
2.3.2The Child spends 3 nights with the father each alternate week from the latter of, 8:00am Friday or the conclusion of school, to the latter of 8:00am Monday or the commencement of school.
2.4      The Child Age 7
2.4.1The Child spends the night with the father each alternate Wednesday from the latter of 8:00am or the commencement of school to the latter of 8:00am the following morning or the commencement of school.
2.4.2The Child spends 4 nights with the father each alternate week from the later of 8:00am or the conclusion of [the child]’s school day on Thursday to the latter of 8:00am Monday or the commencement of school.
2.5      The Child Age 10
2.5.1The Child spends the week with the father each alternate week from 8am or the conclusion of school Monday to 8:00am or the commencement of school the following Monday.
3.        SCHOOL HOLIDAYS
3.1From the time the Child reaches the age of 5 and from the time the Child commences school, the Child will spend half the school holidays with the Father, and the orders dealing with time with the father are otherwise suspended, as agreed, but failing agreement, in years that end with an odd number the Chid will spend the first half of all school holidays that commence in that year with the father and conversely years that end with an even number the child will spend the second half of all school holidays that commence within that year with the father.
4.        OTHER DAYS
4.1      Father
4.1.1The Father is to spend time periods with the Child:
4.1.1.1From 6:00pm on Christmas Eve to midday on Christmas Day in 2008 and in even numbered years thereafter;
4.1.1.2From midday to 7:00pm on Christmas Day in 2009 and in odd numbered years thereafter;
4.1.1.3From 8:00am to 6:00pm on the father’s Birthday;
4.1.1.4From 8:00am to 6:00pm on the Fathers Day;
4.1.2In respect to the Child’s Birthday, if it does not fall within the fathers weekly entitlement above, the father is to spend time with [the child];
4.1.2.1From 3:00pm to 6:00pm that day if the Child’s birthday falls on a daycare or school day;
4.1.2.2From 10:00am from 3:00pm that day if the Child’s birthday does not fall on a daycare or school day.
4.2In the event that the father is unable by virtue of his work commitments then the child, at the fathers option, maybe cared for by the paternal grandmother, [Ms B Shaw], the paternal aunt, [Ms C Shaw], or the paternal great aunt, [Ms U], or such other person as the parties agree.
4.3      Mother
4.3.1The mother is entitled to spend the following time periods with the Child if any or all of the following days fall on the fathers ‘Weekly Time Periods’ or ‘School Holiday’ time periods;
4.3.1.1.From 3:00pm to 6:00pm that day if the Child’s birthday falls on a daycare or school day;
4.3.1.2From 10:00am from 3:00pm that day if the Child’s birthday does not fall on a daycare or school day.
4.3.1.3From 8:00am to 6:00pm on the mothers Birthday;
4.3.1.4From 8:00am to 6:00pm on Mother’s Day;
5.        PICK-UP AND DROP-OFF
5.1Unless otherwise agreed, that, for the purpose of the father spending time with the Child pursuant to these Orders, the father or his nominee collect the Child at the mother’s or other family residence, the Child’s daycare facility or the Child’s school, as appropriate. The mother or her nominee will collect the Child at the appropriate time from the father’s or other family residence and return the Child to the mother’s residence, the Child’s daycare facility or the Child’s school, as appropriate except when the Child has spent the night with the father and is attending daycare or school the following day, the father or his nominee will deliver the Child to the Childs daycare facility or the Childs school as appropriate.
6.        COMMUNICATIONS
6.1That the parties communicate with each other in relation to the Child by email, except in the case of emergency.
6.2That within 7 days of the date of these Orders and within 48 hours of any change of such details, the mother is provide to the father by email the names, addresses and telephone numbers of the Child’s treating doctors, dentists and childcare facilities.
6.3That the mother authorise all treating doctors, dentists, childcare facilities, preschools and schools attended by the Child at any time to communicate with and to provide to the father copies of reports, correspondence, newsletters, etc.
7.        TRAVEL
7.1That both parties do all acts and things necessary to obtain a passport for the Child in the event that one party requests the other party’s cooperation in obtaining such passport.
7.2In the event that the father wishes to take the Child out of the Commonwealth of Australia, that the mother provide the father with the Child’s passport within 7 days of the father requesting same and that the father return the Child’s passport to the mother within a reasonable time after the conclusion of the father’s overseas trip with the Child.
8.        ILLNESS
8.1In the event that the Child is seriously ill, is admitted or is to be admitted to hospital, that the party in whose care the Child is at that time immediately notify the other party.
8.2The mother is to retain a non-family member as the Child’s treating Doctor or other medical practitioner or provider such that the father can contact any such doctor when needed and discuss the Child’s medical needs at any time.
9.        CHILDS NAME
9.1The Child is to retain either her Maternal or Paternal family name.
9.2If the mother changes her family name from ‘[Brennan]’, the Child is to adopt her fathers’ family name ‘[Shaw]’, such that the Child’s family name reflects at least one of her parent’s family names.
The Independent Children’s Lawyer sought the same orders as the father, save for the following amendments:
Amendments to Short Minutes of Order sought by father
2.1.1Delete “8.00 pm” and insert “6.00 pm”
4.2Delete order and insert
“For the purposes of the father spending time with the child, and in the event that the father is unable by virtue of work commitments to collect the child, the child, at the fathers option, may be collected for contact by the paternal grandmother, [Ms B Shaw], the paternal aunt, [Ms C Shaw], or the paternal great-aunt, [Ms U], or such other person as the parties agree.
6.4Insert “The father shall provide to the mother by facsimile or email a copy of each of his […] work rosters at least seven days prior to the commencement of the roster, whilst ever he remains employed within the [transport] industry.”
6.5Insert “In the event that the father is required to work whilst on standby, he is to provide the mother with at least twelve hours notice of cancellation of any period when he is to spend time with the Child.
The mother sought the following orders:
1. Equal shared parental responsibility for the long term issues.
2.The Father spend time with [the child] in accordance with the existing regime.
3.If the Father undertakes a period of one years evaluation by a psychiatrist with no less than one consultation per month and submits to urine tests for the first two months then orders should be made after that one year period in accordance with the original application for final orders.

Submissions of the Independent Children’s Lawyer

The submissions of the Independent Children’s Lawyer were, inter alia:
The substantial area of dispute, and this was narrowed during the course of the mother’s cross examination, is the degree to which the child’s time spent with the father should be supervised.
I agree that this is the substantial dispute between the parties.
I have had the benefit of three psychiatric reports specified above.
There is no evidence that the father has suffered any substantial relapse into a depressive state since he ceased using Effexor the anti depressant drug he was prescribed. He has suffered as we all do the usual stresses of his workplace.
I agree with this submission.
The Court can accept the conclusions of each of the Psychiatrists privately retained and Dr [D] where they are not substantially challenged before this Court by the legal representative of the mother.
I agree and note that the mother accepts the reports.

To the extent that Dr [D] was cross examined the ambit of that cross examination was narrow. There was no systematic endeavour to undermine the criteria or the underpinnings of that report.
I agree that did not occur.
There was no attempt to undermine the conclusions of the other two psychiatrists by bringing them to Court and testing their evidence by cross examination and seeking to undermine their conclusions.
I note that also did not occur.
The mother suggested that the father had been dishonest … I am unable to make submissions to your Honour that, after hearing the father’s evidence over a day and a half, your Honour should not accept him as a witness of truth.
I agree with this submission and find the father to be a witness of truth.
I am unable to take you to any substantial matter which would so sufficiently undermine his credibility that that may lead to any submission, proper submission that could be made to suggest that he today has a significant illness which would place [the child] at risk if he were to have unsupervised contact.
I have come to the same conclusion.
He made submission to the effect that contact with the father which has now been supervised in one form or another through a series of interim orders on about 173 occasions does not need to continue to be supervised. I agree with that submission and will so order.
The evidence is that the father has been committed to the contact in the face of … a constant stream of correspondence between the parties. … Your Honour should form the view … that the father has showed a degree of determination to enjoy a relationship with his daughter and he should be commended for his commitment to his daughter and encouraged to maintain that commitment in the future in a regime of unsupervised time spent with [the child].
I agree with this submission and so find.

Submissions of the mother

The submissions of the mother were as follows.
Mr Bransgrove submitted that the only thing he wanted to address the Court on was the safety of the child and none of the matters for consideration under the Family Law Act 1975 (the “Act”) otherwise. He asserted that his failure to review the law was motivated by a hearty desire to leave the jurisdiction and never return. The Court must of course consider all matters relevant to its decision under the Act, even if unaided by Mr Bransgrove.
He submitted firstly that the objection of the father’s Counsel to the mother’s proposal to permit the documents in these proceedings to be read by the child was objected to.
He said he asked his client about that, and she had said, “Are they not all in the public domain.”
That submission has convinced me that I should make the injunctive orders hereinafter set out, in relation to the publication of the material relating to these proceedings to the child, a prospect which I find does nothing to support a view that the mother is solely motivated by a concern for her daughter.
It was submitted by the mother’s solicitor that the father’s objection to the receipt of evidence of a document, the author of which was not proposed to be called, and which I subsequently ruled as unduly prejudicial, was somehow a matter which should give rise to grave concerns. It does not, and I reject the submission.
Nothing, in my view, of any probative value arises from the document. Mr Bransgrove further sought to use those notes to impugn the capacity of the father’s mother to care for the child. Once again, without the author, the context and the meaning the notes have no probative value and certainly no judge could safely draw any such conclusion as the court was asked to by the mother’s solicitor. Neither the author of the notes nor either of the two experts retained privately were cross examined at all in relation to the matters sought to be averred by the mother’s solicitor.
Some attack was sought to be made on the paternal grandmother because she had attended an “Ashram” which was run by a “guru”. There was no evidence of significance in relation to that and the attack of the mother’s solicitor was rejected. In reply the mother’s solicitor said:
There is no evidence whatsoever of what an Ashram is and how it differs …. India’s right next to Afghanistan. That’s where they believe in female circumcision. We just don’t know. These are issues we want to know and we’ve made clear we want to know. You can’t ambush us two days before and say “Guess What? The mother is essentially making an application to have this child alone.” We need time to consider, we need to subpoena her documents and we would if that application is properly made. I don’t intend to give it more credit than it deserves, other than to show that here are issues raised about it, because it comes down to the old question “Who’s lying?” “Who’s mad?” Is the mother mad when she makes these wild allegations against [the father] or is the father mad?” Is there something wrong with [the paternal grandmother] or is it part of [the father]’s personality disorder? They can’t both be okay. It’s a Newtonian universe that we live in for questions like this: For time travel let’s consult Einstein – but there is a question here raised about whether she is an abusive name caller who doesn’t see people or whether that is all in [the father]’s head.
The court was not much assisted by this submission.
It was submitted on behalf of the mother that the assessment of the father by

Dr D was flawed because she relied on the ongoing status of the father as a professional in the transport industry. She refers to the psychological testing done at the time of his recruitment. She assumes, she says, that as a professional in the transport industry he would be subject to a high level of scrutiny and medical review.
The father was attacked by the solicitor for the mother in relation to this matter because a period elapsed between taking of Effexor at a dosage higher than the manufacturer’s recommendation (but not a dose which even the mother’s retained expert said was unusual) and reporting that dose to his employer.

The father says he followed the directions of the doctors he had consulted as to the dose that he was taking. He was not told not to practice his profession. He was not aware he was obliged to report the dose until he did his next medical. He then did. He was not prohibited from working.
The solicitor for the mother attacked the father on the basis that he had three points (he (the father) thought) on his driving licence. He was not sure that they were still current given the effluxion of time. He says the points were incurred in respect of an offence of exceeding the speed limit by not more than 15 kilometres per hour. It was submitted that the Court had to insist on seeing his full driving record from the Roads and Traffic Authority before entertaining any application for orders allowing him to drive the child. Mr Bransgrove goes on to say:
I can’t imagine that it would be normal practice where there is a question raised about someone’s driving record, it’s known that they’re not a good driver, but it is not known the extent of how bad it is and it’s, again, one of those issues here we just don’t know and we have to cross and dot our t’s.
I reject the submission that there is evidence on which I could assume that the father will not responsibly transport the child. He responsibly transports hundreds of people for a living. I do not assume that safe ground transport of his daughter whom he loves dearly, will, in the light of his driving record, prove to be a problem. The error the mother’s solicitor falls into is to assume that if something is not known it is evidence of danger. I reject that assumption as I do his assertion of the Court’s responsibility to make inquiry into the matter.
In general, the mother sought to say that the evidence was incomplete in some way. Courts deal in facts. The obligation of the parties is within the confines of the legal system to bring the evidence of facts to be relied upon to the court. It is for the court to oversee the testing of the evidence and arrive at findings of fact. That is what this court will do as it is bound to do on the evidence before it.

Relevant Law

Legal principles

The principles governing this case are set out in the Act. In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child’s parents are to have equal shared parental responsibility.
It is a matter of common accord that there should be an order for shared parental responsibility and I find that no reason exists not to make such an order.
There appears to be no issue between the parents that in the circumstances of their present occupations and the present age of the child it is not reasonably practicable for the parents to spend equal time with the child at this time. I find however that at the time specified in the order I propose to make it will be practicable for the child.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

Both parties agree that it is in the interest of the child that she have meaningful relationship with each of her parents and in the orders that I propose that relationship of the child with the father will be made the more practically meaningful by removal of the restrictions presently placed upon it.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
I find on the evidence that there is no basis upon which this child would by reason of the orders I propose be subject to physical or psychological harm or be subjected to or exposed to abuse neglect or family violence. The evidence in this case is of a caring, aware and child focussed father.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The child is too young to express views which could be given weight. It appears on all accounts she has a close and loving relationship with each of her father and her mother and significant members of each of their families.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The relationship of this child with each of her parents and her extended families, as attested in the report of Dr D, is appropriate, close and loving.
(c)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
The mother and father each has expressed a desire and willingness for a close and continuing relationship between the child and the other parent. I accept that the parents have the ability to facilitate and encourage that relationship, the mother’s anxiety notwithstanding.
(d)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 his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
It appears to me that given the staged nature of the proposed time to be spent with the father and the availability of persons whom the child knows and loves that there is unlikely to be any adverse effect on the child by reason of the changes which the orders I propose to make will give effect to.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Apart from the father’s profession in the transport industry with its attendant work rosters about which I propose to make orders, I find that there are no difficulties or expense likely to be occasioned by the orders I propose.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
Each of the families of the mother and the father have demonstrated to the joint expert their capacity to provide for the needs of the child and there is nothing in the evidence before me which would lead to a conclusion otherwise.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The child is very young. There are no particular cultural traditions which appear relevant. The child appears to love all her relatives and each of her parents.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This is not applicable.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The father has met his financial obligations. He has, in contemplation of his having time with his daughter at his residence (presently at his mother’s home), taken steps to ensure that it is safe for her. The father has diligently pursued time with his daughter. That the daughter is a delight is an obvious tribute to her mother and to her father and all those who have been engaged in her care. I find that each of the parents has demonstrated an appropriate attitude to the child and to the responsibilities of parenthood.
(j)any family violence involving the child or a member of the child’s family
There is no such violence.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is not such an order.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In my view it is important in this case to make a staged order for some time ahead to seek to avoid the possibility of further litigation.

Section 60CC(4) & (4A)

The father has taken every reasonably available opportunity to see his daughter even though on occasion the exigencies of work have required his attendance to the detriment of being able to see her. He is a committed parent and is so by common accord. The mother has been flexible in trying to fit in arrangements for the father and the child consistent with his working hours, although she sought to provide different contact with the father but withdrew that proposal when the father took it to be additional to his existing arrangements where she apparently thought it to be in substitution. It seemed to me that that incident did not stand to her credit. Otherwise, I make the findings set forth above concerning the support of the child. It does seem that the father has not been consulted as much as perhaps he ought in relation to decisions concerning the child, for example who was to be the provider of medical care for her. It is my hope that there will be fuller consultation on all relevant matters and the orders I propose to make are designed to facilitate a freer flow of information to the father concerning the child.

Section 61DA

Unless the court makes an order changing the statutory conferral of joint parental responsibility, section 61C(1) provides that until a child turns 18 years each of the child’s parents has parental responsibility for the child.
“Parental Responsibility” means all the duties powers and authority which by law parents have in relation to children. Parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan entered into by the parties.
The presumption that parties should exercise joint parental responsibility is displaced if it is in the opinion of the Court that a consideration of promoting the best interest of the child rebut the presumption, or the person with whom the child has lived has engaged in abuse of the child. No such evidence exists in this case. In addition, there is a clear capacity with these parties to communicate each with the other by email and hopefully increasingly by telephone.

Section 65DAA / Section 65DAA(5)

In the event neither party at this time seeks and equal time regime with the child. However, I do not consider it inappropriate for such a regime in the future as specified in the orders, as the child achieves greater maturity, and greater experience of movement between the mother and the father. Until that event it seems to me that the time proposed will provide the child with a staged process of increasing real and substantial time with the father.
I have considered those matters which I am required to consider by virtue of section 65DAA(5) and note that both parents remain in the metropolitan area of Sydney and currently both live on the North Shore.
The arrangements I propose for the child to spend substantial and significant time with her father are ones which will be only adversely affected by the time constraints on the father arising by reason of his current employment. Given the orders I propose to make in relation to notice, and the determination I have observed in the father to have a real and meaningful relationship with his daughter, and the expressed desire of the mother to facilitate that relationship and her statement that she is both aware of the need for, and is prepared to be flexible in, the arrangements, I do not think that there will be any lack of capacity to implement the arrangements I propose.
I have made provision in relation to the form of communication between the parties and each of them attests that that form of communication has been successful. It is noted that there has also been successful oral communication between them and I hope this continues and grows. I think that there is every expectation that the parties have the ability to achieve that and, will, I hope, when the dust settles, also have the will to do so.

It is my view that the orders that I have made will afford to the child the opportunity in full measure to benefit from both her parents and to have their support, help and guidance in achieving her maximum potential. On reports the parents have much to be proud of now and the court has every expectation that with their support, the child will be an ongoing testament to their parenting.

Costs

In relation to applications for costs I have no up to date evidence of the mother’s means or those of the father. I accordingly make the directions set forth above.

I certify that the preceding one-hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: …

Date: 12 August 2008

[2008] FamCA 656

12 August 2008

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Costs