SHIVELY & GANN (No.2)

[2020] FCCA 1052

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHIVELY & GANN (No.2) [2020] FCCA 1052

Catchwords:
FAMILY LAW – Whether the father’s time should recommence on a supervised basis – whether the father’s time should move immediately to overnight time – what time the father should spend with the child during school holidays – whether final orders are to be made now – final orders made for recommencement of daytime time for four alternate weekends followed by progression to overnight time – changeover take place at the paternal grandmother’s home.

Legislation:

Family Law Act 1975 (Cth), s.60CC.

Applicant: MR SHIVELY

Respondent: MS GANN

File Number: DGC 2579 of 2017

Judgment of: Judge Burchardt

Hearing date: 23 April 2020

Date of Last Submission: 23 April 2020

Delivered at: Dandenong

Delivered on: 8 May 2020

REPRESENTATION

Counsel for the Applicant: Self-represented

Solicitors for the Applicant: Not applicable

Counsel for the Respondent: Self-represented

Solicitors for the Respondent:	Not applicable
Advocate for the Independent Children's Lawyer:	Mr Lynch
Solicitors for the Independent Children's Lawyer:	Peter Lynch

ORDERS

1. All previous parenting orders be discharged.

2. The mother have sole parental responsibility for the child X born in 2013 (“the child”).

3. The father spend time and communicate with the child as follows:

   (a)Each alternate weekend from 9:00am Saturday until 5:00pm Saturday and 9:00am Sunday until 5:00pm Sunday for a total of four visits commencing 16 May 2020;

   (b)Thereafter, every second weekend from 9:00am Saturday to 5:00pm Sunday;

   (c)During school holidays, the time spent on order 1(a) shall be extended from 5:00pm Friday to 5:00pm Sunday;

   (d)On the child’s birthday, from the conclusion of school until 6:00pm if a school day and from 10:00am until 2:00pm if a non-school day;

   (e)On Father’s Day, from 10:00am until 4:00pm;

   (f)On … (Name Day) each year from 4:30pm until 8:00pm;

   (g)By telephone, Facetime, text message and email at any reasonable times;

   (h)At Christmas:

   (i)From 12.00pm Christmas Eve to 12.00pm Christmas Day in even-numbered years;

   (ii)From 12.00pm Christmas Day to 12.00pm Boxing Day in odd-numbered years;

   (i)At Catholic Easter:

   (i)From 12.00pm Easter Saturday to 12.00pm Easter Sunday in even-numbered years;

   (ii)From 12.00pm Easter Sunday to 12.00pm Easter Monday in odd-numbered years;

   (j)At Country C Orthodox Easter:

   (i)From 12.00pm Easter Saturday to 12.00pm Easter Sunday in even-numbered years;

   (ii)From 12.00pm Easter Sunday to 12.00pm Easter Monday in odd-numbered years;

   (k)At such other times as agreed between the mother and father in writing.

4. The father’s time with the child be suspended as follows:

   (a)On Mother’s Day from 10:00am until 4:00pm;

   (b)On the child’s birthday from 10:00am to 2:00pm if the birthday falls on a non-school day that the child is otherwise spending time with the father.

5. The father be and is hereby restrained from using illicit drugs while the child is in his care.

6. Changeover take place at the home of the paternal grandmother with the child to be delivered by the mother or any agent of her choosing and the father is not to be present.

7. In the event that this cannot be facilitated by the paternal grandmother, there be changeover at Suburb Q Police Station or another police station nominated by the mother.

8. The father undergo a hair follicle test (for drug detection for the preceding 6 months) with Australian Workplace Drug Testing Services at his own expense and produce a copy of the result of this test to the mother.

9. The father continue to attend upon his general practitioner Dr B psychologist and ensure that:

   (a)The two mental health professionals liaise with each other; and

   (b)He accepts the mental health practitioners’ reasonable directions.

10. The father provide updated reports from Dr B to the mother for the next two six monthly periods (i.e. one report after each six month period).

11. Each party facilitate the child contacting the other party be telephone, Facetime, text message or email, as she wishes to.

12. The parties communicate respectfully by text message and email in relation to the child’s welfare.

13. Both parties be permitted to attend events at the child’s school, including but not limited to, parent/teacher interviews, sport events, cultural events and special days and to obtain from the school copies of school reports, school photographs, notices, newsletters and the like.

14. If the child suffers any serious illness or injury the party in whose care the child is at the time notify the other party as soon as practicable and provide the other party with details of the child’s location, the nature of the illness or injury and the names and contact details of the child’s treating medical practitioners.

15. Each party keep the other advised of their residential address, email address and telephone numbers at all times and advise the other party of any changes thereto within 24 hours of such change.

16. Both parties be permitted to remove the child from the Commonwealth of Australia for purposes of a holiday overseas during their scheduled time with the child, provided that the party intending to travel with the child gives the other party:

    (a)60 days’ notice in writing of their intention to take the child overseas;

    (b)A list of the countries the child will visit; and

    (c)The proposed dates of travel, including the date of departure from Australia and the date of return to Australia.

17. Within 21 days of the child’s departure from Australia the party travelling with the child provide to the other party a detailed itinerary including flight numbers and times, accommodation details and telephone contact numbers during the period of absence from Australia.

18. The party travelling with the child facilitate the child contacting the other party by telephone on each fourth day at times to be agreed during the child’s absence from Australia.

19. The child’s passport be retained by the mother.

20. The mother provide the child’s passport to the father at his request at least 30 days prior to the child travelling with the father and the father return the passport to the mother within 14 days of the child’s return to Australia.

21. The mother is authorised and permitted to apply for and receive an Australian passport for the child X born in 2013 without first obtaining the written consent of the other parent.

22. The mother and the father be restrained by injunction from threatening, insulting, belittling, or otherwise denigrating the other party, or a member of the other party’s family, to or in the presence or hearing of the child, or allowing another person to do so.

23. The order appointing the Independent Children’s Lawyer dated 9 February 2018 be discharged.

24. The Applicant’s Contravention Application filed 8 January 2020 be dismissed.

THE COURT DIRECTS THAT:

1. The father provide a copy of these reasons for judgment to Dr B.

THE COURT NOTES THAT:

1. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Shively & Gann (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2579 of 2017

MR SHIVELY

Applicant

And

MS GANN

Respondent

REASONS FOR JUDGMENT

Introductory

1. On 20 September 2019, I published judgment and orders in this matter.  These reasons for judgment are to be read in conjunction with those former reasons.  For the reasons then described, I made interim orders and foreshadowed a further hearing, which took place on 23 April 2020.  In short form, the reasons for that adjournment were so that their father could conduct a six-month hair follicle test, and so that the outcome of his then-commenced treatment with Dr B could be evaluated.

2. As things have boiled down in the rehearing, the question is whether the father’s time should recommence on a supervised basis, whether it should move immediately to overnight time, what should happen in school holidays, and whether or not there should be final orders made now.  There is an ancillary but important issue also as to changeover.

3. For the reasons that follow, I am going to order that there be a recommencement of daytime time for an introductory period of some four alternate weekends followed by progression to overnight time, as originally ordered in September last year.  I propose to make final orders.  I will be making orders the changeover take place at the home of the paternal grandmother, with the father not to be present, and in the event that this cannot be facilitated by the paternal grandmother, that there be changeover at a police station nominated by the mother.

The materials filed by the parties since the first judgment

1. The first matter filed was a contravention application filed by the father on 8 January 2020, which alleged that on multiple occasions, the orders for the child X, to spend time with him, had not been complied with.  It should be noted that that matter was adjourned to the same date as the current trial.  At the commencement of the proceeding, I indicated that I would deal with the adjourned trial first, and, if need be, the contravention application thereafter.  When the matter concluded, no one reminded me, and I did not, in fact, myself remember, that the contravention application was still extant.  I will return to this matter at the end of this judgment. 

2. Both parents have filed several affidavits since the last hearing.  The father’s material essentially consists of complaints that the mother had endeavoured, unreasonably, as he would put it, to change times to suit the mother’s own circumstances.  He also deposed to an incident on 9 February 2020 to which I will return when I deal with the evidence given at Court. Whatever happened on that date, however, there have been Interim Intervention Orders made, and the matter is proceeding in the Magistrates’ Court of Victoria.

3. The mother’s affidavits pointed to the fact that X is often is invited to friends’ on Saturdays for birthday parties and playdates, and proposed more limited time for the father than the orders made in September 2019 would provide for. 

4. The father’s most recent affidavit, filed on 14 April 2020 exhibits a report from his psychologist, Dr B, dated 6 April 2020.  That report relevantly notes:

   As a result of the above assessments, I have diagnosed Mr Shively with an Adjustment Disorder (with Anxiety and Low Mood).  This condition could be described as an inability to adjust to difficult life circumstances.

   In the case of Mr Shively, the causes of his Adjustment Disorder is predominantly based on the stressful interactions with his ex-wife and mother-in-law, in conjunction with his infrequent access to his young daughter.  Mr Shively reported that despite a court order granting him access to his daughter, his ex-wife repeatedly breaches the terms of the court order and repeatedly denies him access to his daughter.

1. The report notes that Mr Shively’s treatment was based on a combination of psychoactive medication and psychotherapy, and went on to say:

   Progress in reducing symptoms has been slow and this, in part can be attributed to ongoing pressure from his ex-wife who has been instigating frequent legal action in the form of intervention orders which Mr Shively has constantly tried to contest.  His ex-wife asserts that Mr Shively represents a risk of harm to both her and their daughter. 

   Based on my assessments and throughout my dealings with Mr Shively I see no evidence to suggest that he represent any danger to his ex-wife, his daughter or anybody else. 

   At this stage treatment is ongoing and will require at least a further 6 months.

The submissions made and the evidence given at Court

1. It should be noted that, as in the previous proceeding, both parents were not legally represented, and this presented all too familiar forensic difficulties.

2. Mr Shively opened and said, essentially, that about 30 per cent of the Court ordered time had not taken place.  He wanted to know why there were no visits with his daughter.  He adopted his affidavits as true and correct. 

3. Under cross-examination by the mother as to whether he was prepared to undertake drug testing on a continuing basis once or twice a year, the father said he had already done a hair follicle test and was not prepared to do anything more.

4. Under cross-examination by the Independent Children’s Lawyer, it emerged that the hair follicle test that the father had undertaken, which produced a clean result, probably had only covered the previous three months, because his hair had not fully grown out.  The father said that he was not a scientist, and that the matter on the report were just figures to him.

5. The father was asked if Dr B and his GP were not liaising, as was foreshadowed in the previous judgment, and he said that this had been happening through regular updates.  He is still taking the prescribed drugs.  His treatment, of course, is now limited by the COVID-19 emergency.

6. The father was questioned as to why Dr B was not on affidavit, but he said that he had not sought that Dr B file such an affidavit.  He understood that doctors did not normally file affidavits. 

7. When it was put to him that a six-month test was required, he indicated that he was prepared to do it.  He confirmed that Dr B had read the report of Ms D.  He had taken it with him when he saw Dr B.  They had only discussed the report briefly.  The father said that his mother had been involved in changeover but it broke down later in last year.  There was no reason why there should be no changeover at his mother’s residence.  When he was asked why changeover had not taken place at his mother’s residence, the father said he had no idea, an answer I find utterly unbelievable.  He said the orders were sometimes complied with. 

8. When asked why changeover to his mother’s residence has stopped, he said to the Independent Children’s Lawyer, “you should ask her”.  He indicated that he could call his mother in the afternoon to give evidence.  He gets on as usual with his mother.  He was prepared to agree to changeover at the paternal grandmother’s.  They wanted to collect the child at a halfway point or from school.  He thought that his mother would agree to changeover at her place.

9. When it was put to him that the mother had chopped and changed times in September and December of last year, the father said this was correct.  It had happened this year also.  He had not seen his child since the incident on 9 February 2020.  It was an incident involving the maternal grandmother.  He had been reported to police but the matter was adjourned.  The maternal grandmother turned up to collect the child.  This was before 5:00pm so he had not handed her over.  He has said he would hand her over at a police station at Suburb E.

10. The mother would not wait until 6:00pm for the parental grandmother to be available.  The maternal grandmother was at his door with friends demanding the child and he told her this was prior to 5:00pm.  He went to the police.  When it was put to him it might have been simpler just to hand the child over, the father’s answer was telling.  He said, “It was my child.  It was not fair.”  He confirmed that the time at which the maternal grandmother had arrived was 4:45pm.  He said he was not at all inflexible. 

11. The mother had applied for an Intervention Order with the child not listed but this was struck out at the first hearing date.  She reapplied with the child and that application is listed for 15 June 2020.  He will contest it.  He denied he had any pending criminal charges or police investigations.

12. The Independent Children’s Lawyer reminded the father of orders made on 17 March 2020 for supervised time.  This was to take place at a family contact centre.  He said he had applied for it but under cross-examination it emerged that he had not responded to a request from the agency for more information.  He said it was about affordability.  He went onto say (and I have no doubt this is the true reason), “I don’t see why I should have to pay to see my child”.  He conceded it was possible he had not provided the information required and this was partly because of financial issues.  He then repeated, “Also, she is my daughter and I don’t see why I should pay to see her”.

13. He understood what the mother’s position was.  He said she was trying to limit his time and it was all stalling and she would never comply.  He did not agree with supervised time.  He thought that unsupervised time can recommence straight away.  He proposed changeover at McDonald’s or school. 

14. The McDonald’s was half way and the mother opposes a police station.  Changeover at his mother’s home was all right.  The McDonald’s at Suburb R is half way, some 15 minutes between their houses.  The police stations could be Suburb E or Suburb Q, or Suburb S if it was to be in between. 

15. The father said his relationship with his daughter is normal.  When she has not seen him for some time, she is shy at first but soon overcomes this.  She sees his mother regularly and also extended family.  There are three cousins, aged 4, 9 and 10.  He is not sure what is happening with X’s schooling.  He had been told he was not allowed to contact the school but would like to do so if possible.  He was not now concerned about overseas travel. 

The submissions and evidence of the mother

1. The mother said she had a reason why she did not want changeover at the paternal grandmother’s.  She tried to take out an Intervention Order in October 2019 because of abusive text messages from the father.  She felt unsafe.  The father was often there in the front of his mother’s house in a car.  It was quite complicated and she therefore sought a contact centre.  She wanted a length of time so that she would not cross paths with the father.  She did not want contact with him at all.  It was impossible there would be any agreement between them.  She was disappointed the father did not take up opportunities to see X. 

2. X’s passport has expired, and she wishes to renew it, and she sought orders to enable this to occur.  She wanted drug tests until X was an adult.  The father was abusing drugs when she was a baby.  She had no faith in him for the future.  X gets invited to birthday parties.  She is in grade 1 and this is everything to her.  She does not want the father attending such parties.  She complained that the father had no flexibility.

3. Under cross-examination by the father, which was essentially accusatory in the form of asking her why she was lying, the mother said she had offered make up time.  She said birthdays are everything to X.  Under cross-examination by counsel for the Independent Children’s Lawyer, the mother accepted there was no evidence that the father uses illicit drugs.  She referred to various historical concerns.  She wants a yearly hair follicle test until X is an adult and is prepared to pay half of such a test.  She did not think that the report from Dr B was comprehensive.  She questioned whether Dr B had seen the police reports and the risk assessment.  She would need a progress report.  She said that regular reports from Dr B would satisfy her.

4. She conceded that she had chopped and changed and that this had not worked.  She said she would respect orders made by the Court.  She sought supervised time until October, as this was enough time to see if the father’s behaviour improved.  She conceded that there had been angry text exchanges about various changes of time.  It was put to her that the problem was simply the texts exchanged between her and the father and the incident with her mother.  She appeared to concede that this was correct.  Apart from 9 February 2020, X has never complained of time with her father.  She is not unduly hungry on return.  She has not complained of the father’s behaviour.  The abusive texts have stopped since the Intervention Order.

1. The mother did not agree with the father’s proposal for changeover at McDonald’s.  She does not want any contact with the father.  Changeover has been at the paternal grandmother’s but she stopped it.  The last time she spoke to the grandmother she had said she was not comfortable with it.  She is not comfortable with a police station and would seek changeover at a contact centre.  My notes do not reveal when it was said but at one point the mother indicated that even being on the same screen page as the father (the proceeding was conducted by Microsoft Teams, with both parents on the screen at the same time) was an ordeal. 

The evidence of the paternal grandmother, Ms L Shively

1. Following the luncheon adjournment, Ms L Shively was called.  Under questioning by the Independent Children’s Lawyer, she said she was aware of the orders made last year.  The last time changeover took place was in February 2020.  The majority of the time she would pick up or the mother would drop the child off.  She had communications with the mother to effect this.  There have been no communications since changeover stopped.  She could deal with changeover but she cannot always be available.  She would rather not have any of the mother’s family members involved.  Changeover in those circumstances should be at a police station.  She gets on well with the father and he is missing X.

2. There was no questioning by the mother or the father.

Final submissions of the Independent Children’s Lawyer

1. The Independent Children’s Lawyer submitted that there was no compelling case for supervision.  The mother seeks it following the incident on 9 February 2020.  The Interim Intervention Orders have been taken out in the Magistrates’ Court.  There had been abusive text messages, mainly because of the mother’s changes.  Clear cut orders should be made, and the only exception should be emergencies.  Daytime should start.

2. Turning to the father’s other proposals, the Independent Children’s Lawyer submitted that if final orders were now to be made, the father’s proposal for holiday time would need to be addressed.  The issues were drug screens and the father’s treatment.  The father’s proposed orders 8 to 12 and 19 to 20 were supported, and orders 13 to 18 dealing with the passports were not opposed by the Independent Children’s Lawyer.  A hair follicle test should be taken to show a six month period.  The father, it was noted, was prepared to continue to take treatment from Dr B.  The Independent Children’s Lawyer had no position as to whether there should be final or interim orders. 

3. The mother wants the father to undertake one or two hair follicle tests in the next 12 months.  The Independent Children’s Lawyer appeared to support limited further testing.  The father is undergoing treatment and the reports should be provided to the mother in the future and should continue for 12 months.

4. On the question of changeover, the Independent Children’s Lawyer noted that the grandmother was prepared to assist.  In default, it would have to be a police station.  There are Intervention Orders in place at the moment and the mother is fearful of the father.  Alternatively, time could possibly take place at a contact centre. 

The final submissions of the father

1. The father said he had heard Mr Lynch’s submissions.  He was of the view it was not necessary for Dr B’s reports to be communicated to the mother at all. 

The final submissions of the mother

1. The mother relevantly said that the father needs to be in a sound state of mind (this is a major concern for her).  She still thinks a police station is inappropriate and is not ideal.  She asked if the father’s sister-in-law Ms T would be able to facilitate changeover but the father, with typical flexibility, refused point blank. 

Some relevant matters from the previous judgment

1. I note that at paragraph 60 of the previous judgment, I traversed the previous report made by Dr B.  Relevantly, the report said:

   Mr Shively has attended all scheduled appointments and has indicated that he is committed to attending psychotherapy on a regular basis. 

   I estimate that Mr Shively will require a further five sessions with the psychotherapy to complete his treatment.

2. It should be noted that Dr B’s most recent report shows that process has been slow and it seems likely to have to continue for at least another six months. 

3. In paragraph 68, I dealt with the issue of family violence, and relevantly found “I have no doubt that the mother is, indeed, terrified of him”. 

4. That fear was palpable even over the Microsoft Teams hearing and I note that the mother asserted believably enough, in my view, that she found even being on the same screen page as the father an ordeal.

5. I note that at paragraph 75 of the previous judgment, in dealing with the primary considerations under section 60CC(2), of the Family Law Act 1975 (Cth), I observed:

   In my view, the desirability of X having a relationship with her father needs to be approached carefully in the light of the father’s past history of violence, and his ongoing and total lack of insight into that violence, and/or his capacity to acknowledge and take responsibility for it.

6. I would point that those remarks are not in any way not diminished but rather only confirmed by the father’s behaviour and demeanour at the resumed hearing. 

7. At paragraph 83, in the dealing with section 60CC(3)(g), I relevantly observed that the mother had “repartnered and impressed me as being stable, insightful and genuinely supportive, subject to understandable qualifications, of X’s relationship with her father”.

8. I would observe that, having observed and seen her submissions and evidence at the second hearing, I think the mother’s position is probably more nuanced than that.  She is not entirely opposed to X having a relationship with the father but her past concerns and ongoing fear of him make her most reluctant to promote the relationship in an appropriate fashion.  Her breezy assertions that X should be spending time at birthday parties rather than with her father is something she will have to completely rethink.

9. I note that at paragraph 84, I observed in relation to changeover:

   In this regard, it is imperative that the father not come into direct physical contact either with the mother, or with her new partner.

10. I have no doubt that that is still a very serious difficulty and one which will be necessary to consider further.

11. Against these general observations, I will now deal with the particular matters that remain for determination.  It is not necessary to repeat the statutory pathway, because I dealt with that matter in the previous case and subject only to any qualifications expressed in this judgment, everything that I said then, as it were, stands as being applicable today.  The issues are now, however, discrete, and it is appropriate to deal with them seriatim.

Should final orders be made now or interim orders?

1. All parties, including the Independent Children’s Lawyer, left this firmly to the Court.  There are, indeed, arguments both ways.  There are a number of matters that remain not, in one sense, wholly concluded, most particularly the six-month hair follicle test and ongoing treatment with Dr B.  Those matters would gravitate towards interim orders. 

2. Nonetheless, in my view, it is clear that final orders should be made.  The matters of ongoing concern to the mother can be addressed in what I hope I will explain to be a sensible way, and these parties have been litigating for the better part of three years already.

3. It is imperative that the strain of further litigation is removed from both parties.  The mother finds any kind of interaction with the father acutely distasteful and I know from the report of Dr B that these proceedings and interaction with the mother are causing the father mental health difficulty as well.  Anything that relieves this kind of strain and stress from the parents can only be in X’s best interests, and, for that reason, I propose to order final orders. 

Should time recommence, and if so, in what fashion?

1. The mother’s demands for supervision arise out of fears of the father’s drug taking and his mental health.  So far as the former is concerned, much of what she has to say is historical.  In her submissions at the resumed hearing, she referred to events that took place around the time of X’s birth, some seven years ago.  The fact is that the father has had clean drug screens for a lengthy period of time.  Albeit that his hair follicle test unfortunately only went back about three months, that was clean too.

2. The mother’s concerns about Dr B seem to me to be, to an extent, either manufactured or exaggerated.  I know from the evidence of the father, which, in this regard, I accept, that Dr B is aware of the report of Ms D.  While he may well not be aware of every aspect of the evidence, there is nothing to suggest that his observations of the father are in some fashion compromised. 

3. It is, in my view, clear that time should recommence and not on a supervised basis, this being further the position contended for by the Independent Children’s Lawyer.  The Independent Children’s Lawyer did not make any express recommendations as to how time should recommence.  In my opinion, bearing in mind X’s age and the fact that she has not seen the father now for several months make it appropriate to reintroduce time, at first on a daytime basis only.  This has the negative result that there will be more changeovers but it will not be for an extensive period of time.  I am going to order that the father spend time with X on each alternate weekend from 9:00am Saturday until 5:00pm Saturday and 9:00am Sunday until 5:00pm Sunday for a total of four visits, which will take in total around about two months, such visits to commence as soon as practicable after this judgment is handed down. 

4. Thereafter, the orders contemplated in September 2019 should simply be reinstated.  They were what I then thought appropriate, and despite the present hiatus, which in my view is accommodated by the re-introductory orders are to be made, there is no valid reason why they should not now be reinstated.

5. The next issue to be determined is the question of changeover, which has plainly proved so vexed in the past.  Ms L Shively impressed me as being a sensible and stable witness and she is prepared to facilitate changeover.  The order I made previously was that changeover be in the absence of the father and the mother (if practicable) and at the paternal grandmother’s residence, unless otherwise agreed in writing.  I will order that changeover take place at the home of the paternal grandmother, with the child to be delivered by the mother or any agent of her choosing.  The father is not to be present.  This leaves no room for doubt.  In default of the grandmother being available, changeover will be at Suburb Q police station, unless the mother nominates another police station.  Suburb Q police station is a 24 hour, seven day a week police station.  From a Google photograph, it is clear that it has parking immediately outside the building.

6. The next issues are the father’s hair follicle testing and psychological treatment.  I think it is appropriate that the father undergo a further hair follicle test, which will go back for a period of six months.  However, once that is clear, in my view, that will be an end to it.  He has had clean drug screens over a protracted period of time and if he is clear of drugs for six months now, then, in my view, he has established, to any reasonable level, that he is not taking drugs. 

7. In respect of the father’s ongoing psychological treatment, the order that the father continue with medical treatment will be continued.  I will further order that the father provide updated reports to the mother for the next two six monthly periods.  He objects to this but it is hard to see why he can reasonably do so.  The fact is that he is not in perfect health at the moment and is undergoing what is proving a protracted period of treatment in an endeavour to address his difficulties.  Those difficulties are ones that the mother is entitled to be concerned about.  It should be noted that the father in these proceedings only went to confirm the very strong impression he gave during the previous trial that he has a very short fuse, or what might otherwise be described as a filthy temper if he does not get what he perceives that he is entitled to.  He has a very strong sense of entitlement.  He made repeated emphasis to “my child” during the course of this trial.  The mother’s concerns are entirely reasonable in this regard, and an order for the mother to be kept informed is plainly in X’s best interests.

8. The ancillary orders sought by the father are supported by the Independent Children’s Lawyer and were not the subject of any express opposition by the mother.  They are plainly in X’s best interests and will be made.

9. This leaves the question of the contravention application.  In circumstances where the matters the subject of the contravention application are wholly coextensive with the matters explored at trial, it is inappropriate that the contravention application proceed.  It should be noted that the contravention application would, of its nature, have proceeded on a more defined evidentiary basis.  Having heard all the evidence, I do not think that there is any useful work for the contravention application to do, and I will therefore order that it be dismissed.

10. Next, I propose to issue a word of caution to both parties.  On the father’s side, he must continue to engage with his medical treatment and it is to be hoped that one of the things that he might begin to understand is that while the mother plainly has reservations about his time with the child, they are not based on no evidence, or merely a manufactured construct.  He has misconducted himself in the past.  It is perhaps too much to be hoped that he might learn to conduct himself in a mature and adult way, but should he fail to do so, then there is only likely to be further difficulty for him.  I will direct that he provide a copy of these reasons for judgment to Dr B so that Dr B understands, perhaps, the more nuanced nature of the facts than, perhaps, Mr Shively has given him. 

11. For her part, the mother needs to understand that Court orders are there to be obeyed.  She indicated on several occasions that she accepted this, but the fact is that she has breached Court orders in the past in what I find to be a breezy and insouciant way.  It is no doubt true that X is in grade 1 and there will be many birthday parties and the like, but these can never properly be elevated to being more important than time with her father.  The mother complained vividly about the difficulties that occur if things are not done strictly in accordance to Court orders, and indeed, it is anomalous that at one and the same time, she appeared to suggest that the parties should work some things out (ie, changeover) while indicating that no agreement was ever going to be possible. 

12. These orders are to be complied with strictly and this should resolve some of the difficulty.  The father should, however, understand that five minutes here or there is not worthy of the sort of argument that undoubtedly took place on 9 February 2020.  Once again, it is perhaps asking too much that he should grow up to the point where he is able to be somewhat more flexible, but that it would be entirely in his best interests if he did. 

Ancillary orders

1. The parties made no specific or meaningful submissions about special days. I will continue to orders made in September 2019.

2. The Independent Children’s Lawyer supported the father’s proposed orders 8-12 and 19-20 which seem to me also to be appropriate.

3. The Independent Children’s Lawyer was not opposed to the father’s orders 13-18 concerning overseas travel. In my view they are all appropriate save for order 18. These parties are incapable of cooperative agreement. Clearly the most sensible outcome is that the mother have sole capacity to renew the child’s passport.

4. Finally, I should observe that these reasons for judgment have, to an extent, been somewhat directly personally critical of the main players.  It is always regrettable and unfortunate that such criticism be made.  Nothing, however, short of clear expressions of the Court’s views about this matter are likely to bring the parties to anything like their senses, and it is for that reason that I have done so. 

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 8 May 2020