SOMERS & SOMERS

[2017] FamCA 713

FAMILY COURT OF AUSTRALIA

SOMERS & SOMERS [2017] FamCA 713

FAMILY LAW – CHILDREN – Allegations of family violence – Rejecting behaviour by a child of the father – Rejection of father based on mother’s hostility – Change of residential arrangements – Period of no time or communication with the mother – Parental capacity – Impact on child of change of circumstances – Parental responsibility

APPLICANT: Mr Somers

RESPONDENT: Ms Somers

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms M Lonergan

FILE NUMBER: MLC 1965 of 2016

DATE DELIVERED: 14 September 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 22, 23, 24, 25, 26, 29, 30 and 31 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Paterson

SOLICITOR FOR THE APPLICANT: Carew Counsel

COUNSEL FOR THE RESPONDENT: Ms Vogel

SOLICITOR FOR THE RESPONDENT:
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

IT IS ORDERED THAT

1.That all previous orders and injunctions in respect of the child B, female, born … 2009 (“the child” “B”) be discharged save and except for paragraph 1 of the Order made on 31 May 2017 (for the child to be placed on the Watch List).

2.Pursuant to s 11F of the Family Law Act 1975, it is requested that the manager of Child Dispute Services arrange for the Regional Coordinator of Child Dispute Services or her nominee (“the Family Consultant”), to meet with the child and explain to her the effect of this Order. Absent a request by the family consultant, the child not be removed from the child minding room by either parent.

3.The child live with the husband.

4.The husband liaise with the Deputy Manager of Child Dispute Services in this Registry of the Court as to the time he may collect the child from the child minding room.

5.The husband have sole parental responsibility for the child of the marriage namely B born … 2009 in relation to health, education, overseas travel and issuance of a passport or travel documents.

6.The husband and the wife have equal shared parental responsibility for the child’s name and any change to her permanent place of residence such that such change would make it significantly more difficult for the child to spend time with a parent.

7.The husband ensure that the child continues to attend upon Dr C or, in the event that Dr C believes that a new therapist or psychologist would be in a position to offer the child greater assistance, such other person as nominated by Dr C in consultation with the husband. The child’s attendance be at such times and with such frequency as recommended by the therapist or psychologist, and the husband follow all reasonable recommendations of the child’s therapist or psychologist and be responsible for the payment of all associated fees.

8.The issues of:-

a)     time to be spent; and

b)     communication:-

between the wife and the child be reserved for determination by me on Wednesday 28 February 2018 at 10.00 am (“the further hearing about time and communication”), estimated to take two days.

9.In anticipation of the further hearing about time and communication:-

a)     IT IS REQUESTED that the independent children’s lawyer remain appointed;

b)     Each parent file and serve an Application in a Case specifying what orders he/she seeks be made in relation to what time the child should spend with the wife and what communication there should be between child and the wife:-

i.as to the wife, by 5 February 2018; and

ii.as to the husband, by 12 February 2018; and

iii.by 19 February 2018 the independent children’s lawyer prepare file and serve a minute of orders which, in her preliminary view, ought to be made at the further hearing about time and communication.

c)Each parent file and serve an affidavit in support of the application referred to in paragraph 9(b) of this Order, such affidavit:-

i.to be not more than 10 single sided pages in length;

ii.have no annexures;

iii.have not less than 2.5 cm margins; and

iv.in not less than .13 font and 1.5 line spacing:-

If the husband and/or the wife want to rely upon a document which could but for this order have been an annexure to his/her affidavit, such annexure(s) be not more than fifteen pages in length and be served on each other party to the proceedings (but not filed with the Court).

10.Pursuant to s11F a parent and issues assessment be prepared in relation to what time the child should spend with the wife and what communication there should be between child and the wife and any other matter which the family consultant considers is relevant.

11.For the purpose of the s. 11F assessment, the parents attend an appointment or series of appointments with such family consultant as the Regional Coordinator of Child Dispute Services directs and for that purpose:-

a)    The wife is to attend at Level 5 of this Registry of the Court at 9:00 a.m. on 6 February 2018

b)    The husband attend at 11.00 a.m. on 6 February 2018:

c)    The husband be responsible for bringing the child to the Registry on the same date and time of his own appointment;

d)    The sequence and organisation of interviews is a matter within the sole discretion of the Family Consultant;

e)    A place be reserved in the child-minding section of the Court for the child and it be maintained for her throughout the day;

f)    The Family Consultant may appoint further interviews for the parties and the child and, in his or her discretion may facilitate a meeting between the child and the independent children’s lawyer;

g)    It is requested that the family consultant prepare a Children and Parents Issues Assessment in writing and that it be made available to the parties, their practitioners and the Court prior to the hearing about time and communication.

12.The Family Consultant is required for cross-examination on the further hearing about time and communication.

13.That for the purpose of the s 11F assessment, the family consultant be and is hereby authorised to have reference to all documents filed in these proceedings as well as to any documents produced on subpoenas and released for inspection by all parties.

14.The wife be and is hereby restrained, by herself, her servants and agents from removing the child from the husband’s care or possession or the care or possession of any person with whom he has placed her.

15.As soon as practicable the husband provide a sealed copy of this Order and a copy of the reasons for decision to the principal or proper officer of the child’s school and, in the discretion of the principal, these reasons may be provided by him or her to any teacher or other professional involved with the child through the school.

16.Each of the husband and wife be and are hereby restrained by themselves, their servants and agents from:-

a)discussing the evidence adduced in the proceedings or the judgment with the child or in the presence or hearing of the child or allowing anyone else to do so; and

b)denigrating the other or members of the other’s family in the presence of hearing of the child or allowing anyone else to do so.

17.Until further order, the wife her servants and agents be, and are hereby, restrained by injunction from doing any of the following without the express written consent of the husband:-

a)     contacting the child;

b)     attending the child’s place of residence;

c)     attending the child’s school;

d)     attending any extracurricular activities in which the child participates;

e)     placing the child or the husband under surveillance or engaging any third party to do so; and

f)     publishing on social media any comments relating to these proceedings, the child or the husband or copies of any documents relevant to these proceedings.

18.It being the case that paragraphs 14 and 17 of this Order are injunctions made against the wife under s 68B of the Act for the personal protection of the husband and the child pursuant to s 68C of the Act, if a police officer believes, on reasonable grounds, that the wife has breached the injunctions (or any of them) the police officer may arrest the wife without warrant and the wife be brought before this Registry of the Court or any other court exercising jurisdiction under the Act, on the first day on which the Court next sits after the arrest, or as soon as practicable after that date AND IT IS NOTED that pursuant to s 122AA a person who is authorised or directed by a provision of the Act, or by a warrant issued under a provision of the Act, to arrest another person may use such reasonable force as is necessary to make the arrest or to prevent the escape of that person after the arrest.

19.To the extent that these orders and injunctions relating to the child B born … are inconsistent with the terms of the Interim Intervention Order dated 13 January 2016 case number G10126699 or any Intervention Order subsequent thereto, in which MR SOMERS is a respondent and either or both of B and MS SOMERS are named as affected family members, the Court declares pursuant to section 68Q of the Family Law Act 1975 that these orders and injunctions take precedence.

20.IT IS DIRECTED that the Registry Manager of this Registry of the court send a copy of this Order and these reasons electronically or by pre-paid post to:-

a)the Registrar of the State Magistrates’ Court at which the last known Intervention Order was made;

b)Department of Health & Human Services marked to the attention of Ms D, Child Protection Practitioner and Ms E, Acting Team Manager both of the Investigation and Response Team, DHHS; and

c)Victoria Police Centre, Records Services Division.

21.For the avoidance of doubt, the husband is permitted to apply for an Australian Passport for the child B born … 2009 without the need to obtain the wife’s consent or signature, and to renew the said passport whenever it is necessary to do so.

22.I adjourn the application for alteration of final property interests to Friday 15 September 2017 at 12.00 noon for judgment and excuse all parties from personal attendance.

23.That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Somers & Somers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1965 of 2016

Mr Somers

Applicant

And

Ms Somers

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern parenting arrangements for, the child B, who is aged 8 years and 7 months and an alteration of property interests between the husband and the wife.

2. The parenting proceedings have dominated the hearing which occupied two weeks and was concluded three and a half months ago. I regret that I could not deliver these reasons sooner as the difficulties in this family are of very long standing and not assisted by delay.

3. I will concentrate on the parenting aspect of the proceedings. I will deal separately and subsequently with the property aspect of the proceedings and deliver a separate decision in that regard.

4. Both parents seek sole parental responsibility and residence of the child. Both acknowledge that the face to face relationship between the child and the non-residence parent may be problematic to the point of not being viable.

5. The precise parenting orders sought by the husband are set out in Exhibit “ICL2” and the financial orders he seeks are set out in Exhibit “H18”. He seeks that the child cease to live with the wife and reside with him with immediate effect. To assist in what the husband recognises will be a huge adjustment for the child, he seeks a period during which the child will have no time or communication with the wife after which the court is to determine  what time the child should spend with the wife[1]. 

   [1] To the extent that the Husband’s application filed 7 April 2017 provides that there be a graduated introduction of time between the child and the wife after 12 weeks of final orders being made, leading to regular unsupervised overnight time, the husband’s position was altered during closing addresses.

6. The wife seeks that the husband’s time be supervised time with the husband of two hours once a month commencing after a delay of a few months, for two hours once a fortnight during the long summer school vacation and for two hours on special days including Christmas, Easter and the husband’s birthday. The precise terms of the wife’s parenting and financial orders are set out in exhibit “W14”. The outcome sought by the wife is against the weight of the professional evidence provided by the family consultant, Ms F and Dr G.

7. Pursuant to an order made by Senior Registrar FitzGibbon on 31 March 2016, Ms M Lonergan, solicitor, of Victoria Legal Aid, was appointed as the independent children’s lawyer for the child within the meaning of Division 10 of Part VII of the Act. Her role is to form an independent view, based on available evidence, of what is in the best interests of the child and then act in these proceedings in what she believes those best interests to be.[2] Ms M Lonergan is not a legal representative retained by the child and she is not bound by any instructions from her.[3] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the child are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for each of the children the trauma associated with proceedings[4] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.[5] Mr N. Eidelson of counsel appeared on behalf of Ms M Lonergan who attended court from time to time.

   [2] Family Law Act 1975 (Cth) s 68LA(2).

   [3] Family Law Act 1975 (Cth) s 68LA(4).

   [4] Family Law Act 1975 (Cth) s 68LA(5)(d).

   [5] Family Law Act 1975 (Cth) s 68LA(5)(e).

8. The independent children’s lawyer has not met with the child. The independent children’s lawyer requested that the child meet her. On or about 6 May 2017 the wife wrote to the independent children’s lawyer querying why the child should be seen by the independent children’s lawyer. This was described by the husband and the independent children’s lawyer as the wife refusing to allow the child to meet with the independent children’s lawyer. I agree (with the wife) that she was not refusing. However, neither was the wife indicating that she would cooperate. In any event, the child and the independent children’s lawyer have not met.

9. The independent children’s lawyer fully supports the husband’s parenting application and seeks orders identical to those sought by the husband.

Conduct of the Proceedings

1. These parenting applications are proceedings between the wife and the husband. They are proceedings to which the Less Adversarial Trial provisions of Division 12A of Part VII of the Family Law Act1975 (Cth) (“the Act”) apply.

2. The principles for conducting child related proceedings, which I observed, are as follows:[6]

   (a)First, to consider the child’s needs and the impact that the conduct of the proceedings may have on her in determining the conduct of the proceedings.

   (b)Second, for the Court to actively direct, control and manage the conduct of the proceedings.

   (c)Third, to ensure that the proceedings are to be conducted in a way that will safeguard the child against family violence, child abuse and child neglect and the parties to the proceedings from family violence.

   (d)Fourth, to ensure that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.

   (e)Fifth, the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

   [6] Family Law Act 1975 (Cth) s 69ZN.

3. The general duties[7] and the general duties and powers relating to evidence[8] expand the Court’s role in the regulation of child related proceedings but not property proceedings. Financial proceedings continue to be based on evidence which is relevant but admissible in a conventional sense.

   [7] Family Law Act 1975 (Cth) s 69ZQ.

   [8] Family Law Act 1975 (Cth) s 69ZX.

4. It has not been possible to include all aspects on which I heard, or on which there was, evidence. Nonetheless I have taken the totality of the evidence into account. Just because I have not mentioned something in these reasons, it does not follow that I did not have regard to it.

5. I am satisfied that the case was conducted in such a way as to promote an outcome which will be most consistent with the child’s best interests.

Background

1. The wife was born in Country H in 1972 and is aged 45. The wife is employed for two hours per week on a Wednesday evening and under a part time contract for approximately 21 hours per week with another employer. The wife resides alone with the child and has not re-partnered

2. The husband was born in Country H in 1968 and aged 49 years. The husband has been employed for a long term in full time work Monday to Friday, 8.30am to 5pm, although he advised he has some flexibility in his start/finish times and is a position to take extended long service leave to be a full time carer for the child in the event that he is successful in his application for the child to live with him. In 2017, the husband moved into his own accommodation being an apartment at Suburb J, having previously lived between his mother and brothers’ homes. He has not re-partnered.

3. The parents were in a relationship from 1992. The husband obtained Australian citizenship in 1994. The parents married in 1995. The wife obtained Australian citizenship in 1996. The child was born in 2009.  There were two reported brief separations (under the same roof); one in 2007 for a period of 8 months and a second in 2014 for a period of three months. The parents separated finally in January 2016. The marriage still subsists.

4. The affidavit evidence of both parents provides scant details of what the family’s life was like, in terms of child caring responsibilities and working, prior to separation. That is a deficiency because the court does require to be informed about how the intact family operated. It is not merely a matter of considering what has occurred after separation which is, at best, an unsettled and uncertain period during which, in some cases, parents may act (or react) very differently to how they acted when the family was together or how they go on to act into the future. What I gleaned from the evidence in this case was that the family was functional. The husband was the primary breadwinner and in full time employment. The wife was primarily responsible for the child. However, I infer from the evidence of the husband and the wife and what they each said to various experts, that the husband was meaningfully and significantly involved in the child’s care. For instance, the wife’s complaints to the police immediately after separation cite instances of the child being upset because the husband had withdrawn from her which, together with other evidence, suggests to me that he was an emotionally present and involved parent.

1. In 2014, the parties separated under one roof for several months. The husband says this was due to the wife telling him she wished to end the relationship as she had started an association with a gentleman called Mr K. The wife characterised this as a romantic relationship and said that there was sexual touching but no intercourse with Mr K, for whom she had developed feelings. The parties subsequently reconciled.

2. Child Protection, Department of Health & Human Services (“DHHS”) received a notification which was pending from 18 February 2015 to 2 March 2015 concerning the child being exposed to family violence perpetrated by the husband against the wife. Specific concerns were of the husband’s threats to harm and kill the wife [9] “however never towards or in front of [B].” The case was closed at intake.

   [9] The details in this paragraph are taken from the Section 67Z report dated 13 May 2016 from the Investigation and Response Team of DHHS in response to the Section 67Z and 67BA Notice of Child Abuse, Family Violence or Risk of Family Violence filed in these proceedings and received by DHHS on 7 April 2016 (“the s67Z report”).

3. DHHS received a further notification which was open from 1 November to 17 November 2015[10]. It concerned the child’s exposure to family violence causing her to miss school and to wake in the middle of the night. Additional concerns were also raised about the husband’s sexual assaulting the wife. Follow up by SOCIT indicated no reports to it about sexual assaults and no concerns from the child’s school about the child or her mother. The wife was noted to be engaged with P Group Family Violence in relation to safety planning. The case was closed at intake. 

   [10] S67Z report

4. A notification was made DHHS on 13 January and closed on 14 January 2016[11]. The report identified the child’s exposure to significant family violence perpetrated by the husband towards the wife. It was reported that the child’s exposure to the husband’s threats and the wife’s suicidal ideation had resulted in an increase in the child’s anxiety and her not eating or sleeping properly. Suburb L SOCIT identified that a full exclusion interim intervention order had been made the day previously. The case was closed at intake given the extant intervention order and on the basis that the wife would be making a formal statement to Victoria Police to investigate criminal charges.

   [11] S67Z report                 

5. Final separation occurred when the husband was served with an Intervention order while at work in January 2016, alleging emotional and verbal abuse. The husband returned home to collect his belongings with the police and moved in with his mother.

6. On 20 February 2016 the wife signed a 12 page statement to Victoria Police. It appears as annexure “VS3” to the wife’s affidavit sworn 29 March 2016. I extract numerous paragraphs later in these reasons but the document should be read in full because it catalogues many of the wife’s family violence allegations against the husband, all of which he denies. This was not the first statement that the wife had made to Victoria Police. The wife worked on or made an earlier statement in 2014 but did not proceed with it. The statement signed on 20 February 2016 is in the wife’s words and writing style and, I was informed, was the product of a number of police interviews and drafts.

7. The wife alleges that the husband raped, intimidated, threatened and abused her from mid- 2014 to December 2015. As to the status of those complaints, Victoria Police confirmed[12]:-

   a)to the husband that “no charges will be laid in this instance” and “that our file will be marked closed”; and

   b)to the wife that charges will be “non-authorised” due to insufficient evidence. In particular, if the wife produces further evidence of a corroborative nature in the form of a statement from her family members, then Victoria Police would “relook” at the brief.

   The wife’s statement to Victoria Police says, at [95] that “I talked about my family situation and sexual abuse with my family. A couple of my family members have witnessed [Mr Somers’] physical and verbal abuse towards me, while I was talking to them on Skype.” The wife says that there is corroborative evidence available from her sister who resides in Country H but that she has not been able to provide it to Victoria Police because her sister has not been able to travel from Country H. It is not explained why the wife’s sister could not compose a statement in Country H.

   [12] Detective Senior Constable M of Victoria Police, Suburb L Sexual Offences and Child Abuse Investigation Team gave viva voce evidence by telephone as a witness called by the court.

8. The husband instituted these proceedings by an application filed on 8 March 2016. He sought, inter alia, that the parties have equal shared parental responsibility for the child, the child live with the wife and spend regular and frequent overnight time with him. It was not until the husband perceived that the wife would not permit the child to have a meaningful relationship with him that he sought a change of residence.

9. From separation on 14 January 2016 the child resided with the wife in the family home and spent no time with the husband until court orders were made on 31 March 2016 for supervised time. Supervision was provided by N Family Services for four hours per week. The husband agreed to pay the mortgage on the former matrimonial home of $710 per month which he has done, and the wife has accepted, in lieu of child support.

10. On 7 April 2016 a notification was received by DHHS[13]. It was alleged that the husband had perpetrated family violence to which the child had been exposed resulting in her “suffering severe psychological harm.” Consequent on the s67Z order, DHHS followed up the following professionals; Q Group, O Primary School Assistant Principal, P Group Family Violence worker, Developmental Psychologist and the child’s school Psychologist. The s67Z report stated that each professional indicated there are no concerns for the safety and wellbeing of the child. They have not met Mr Somers, and were only concerned for the child’s safety and wellbeing due to the information provided by the wife “having been unable to verify any incidents of family violence”. The professionals suggested that Mrs Somers required support and services to address her anxiety to a greater extent that the child, hence why involvement with psychologists ceased for the child with no further action required. The child disclosed to the Q Group worker that she feels safe at contact with her father when there is another person present, and that she enjoys contact for the presents Mr Somers brings her.

    [13] S67Z report

11. Prior to the first period of supervised time, on 8 April 2016, the wife telephoned the manager and spoke for a “prolonged” time requesting the husband answer any question the child may ask in a manner which was consistent with what the wife had to the child. Ms N asked the wife to write an email in explanation. Part of what the wife wrote was as follows[14]:-

    First two weeks the child did not really know that he was no longer living at home as I told her he was coming back late from visits with his mother and leaving to work early, when she, [the child] was still asleep. She did not like it but was reassured by me everything was okay. There were summer holidays and we had a very very busy fun programme to enjoy, so for the first two weeks of separations there were no questions from her, and I had no emotional strengths to tell her anything else. Also, it was always me who predominantly took care of [the child] in holidays, the [husband] was working. [The child] made remarks that it was so nice, calm and happy for the two of us to spend so much happy time together. On this level she felt the difference.

    But then, when [Mr Somers] rejected my pleas to have supervised visits with [the child], I had to tell her that he had to go to live with his mum for some time, and to a school where people learn good behaviours. It made a lot of sense to her as she, unfortunately, witnessed how he abused me verbally and emotionally. She was happy to learn he will learn to be a better person, not a bully, she still believes he is studying and sitting exams to learn to be a better person, not a bully. She believes she is studying and sitting exams to learn to behave better and soon will spend a lot of fun time with her. I hope for this too…I am asking the supervisor to make sure that my daughter is not hurt by any kind of changes to the story. [The child] is only seven, but intelligent enough to understand which behaviours are hurtful to people and not acceptable, and which are not. I am teaching her that everyone can make mistakes and everybody needs to learn from mistakes to be better human beings. At the same time I believe it will be harmful for her to internalise men’s wrong attitudes and behaviours to women, as she needs to grow up to be a strong, independent and knowing her own worth woman. Because of this and on the advice of psychologists I had to refrain from glossing over the violence she witnessed. But I certainly always reassure her everything will be okay. I believe the love between the father and a daughter must be preserved. Only recently I told [the child] he will not be coming home to live with me. Knowing this makes her sad. She is not aware of any details of what really is happening now, she does not like to speak about the troubles she has experienced, the psychologist is working with her to help with all her traumas. Unfortunately, she will have to deal with a trauma connected to a fact that her parents will no longer be able to be friends. This is very painful…But I am positive we will overcome every hurdle on our way.

    [14] Letter dated 2 May 2016 from Ms N to the independent children’s lawyer being Annexure “A” to affidavit sworn by Ms N on 9 November 2016.

12. Ms N’s reply was:

    With your permission I will forward your email to the Supervisor so there will be no need for you to repeat your concerns and how you have explained matters to [the child], at the Intake Session with [the child] will be present. I will also need to let [the husband] know so he can answer any questions [the child] may have for him. I cannot guarantee he will agree but will let you know, and then you can follow through with your solicitor if need be…

13. Ms N’s evidence was that when she spoke to the husband prior to the first supervised visit, he said that he had no intention of talking to the child about why he had not been at home.

14. The wife’s false explanation to the child and her direction to the contact service are quite significant and I will discuss them further in relation to the wife’s capacity to parent. However, it is important to note a few features at this early stage in the chronology because my impression is that the wife’s actions and the husband’s acquiescence to them framed the relationship which the child was permitted by the wife to have with her father post-separation and are emblematic of dynamics within that relationship. The significant features are:-

    ·The wife was bold enough to lie to the child without concern for being contradicted subsequently by the husband. This is indicative of the wife thinking that she has a large degree of control over the husband prior to separation;

    ·The wife’s story was clever on a level in that it sends a message to the child which presupposes that others think that the husband is an abusive and there is a need to protect the child from him. By referring to a “school” the wife imparts to the child the fact that a school or authority figure with a structure such as the child actually experiences at her school considers the husband to be dangerous.  The wife sends the message that it is not just the wife but there are other more creditable authoritative people, like teachers, who accept the wife’s position as true and validated.  The wife’s reference to a school provided internal substantiation of her allegations of family violence because it informed the child that it not just her wife who thinks the husband is dangerous but the school bad those who sent him there think so too.  It imports the child’s experience of school and discipline as the means to convey to her that people in authority recognise that the husband is bad and has had to be dealt with.

    ·The husband tacitly accepted the contrivance of the wife. Notably, this was after six weeks of banishment during which he could not see the child. The husband’s acquiescence and failure to set the record straight were the means for him obtaining time with the parties’ child.  At the time the husband was obviously not aware of the campaign being waged against him by the wife.

    ·The wife’s approach to Ms N was bold and exuded confidence that she was in charge.

15. In the result, the husband did not contradict what the wife had told the child. On 8 April 2017 the supervisor met the wife, the wife’s friend and the child. The supervisor records that the wife said[15] “she supported the [father/daughter] relationship for her daughter’s sake, and the hassle of coming was only for her daughter. She felt her life would be easier if she just cut him out of their lives, but for her daughter she would do this process”. Further, that when the supervisor told the wife that she had permitted him to bring a birthday present for the child, although did not want to encourage a gift on every visit, the wife said “He should bring a gift as he should pay pay pay. I cannot afford it so he should”. The wife added “that [the child] will make a list of the things she wanted. Mum then said when we go to McDonalds she wanted dad to bring Lego for the child.”[16]

    [15] Letter dated 2 May 2016 from Ms N to the independent children’s lawyer being Annexure “A” to affidavit sworn by Ms N on 9 November 2016.[6]

    [16] Op cit [7]

16. The child’s reaction to the husband at the first supervised visit was spontaneous and loving. She greeted him enthusiastically and said:-

    I missed you daddy and I love you so much. When are you coming home and where have you been?” Her father replied. “I love you too my darling and I’ve missed you so much.” [The child] asked again, “where have you been?” Her father told her he had been at work, as this was the story the wife had told her daughter or the first two and a half months

    The husband’s response to the child was an indirect but potent reinforcement of the wife’s authority over the child and it weakened his position.

17. The five subsequent supervised visits went well in spite of disruption caused by the wife endeavouring to control activities. The relationship between the child and the husband is described in terms that it is sound, loving and affectionate.

18. DHHS published its s67Z report on 13 May 2016. DHHS assessed[17] that

    The Department via information gathered by all parties and professionals has verified that the relationship between parents was conflictual in nature; however Mr Somers denies any incidents of physical violence. It is important to note that throughout conversations with Mrs Somers that whilst she has spoken about a history of family violence, she has not raised any concerns that there is a risk of harm to the child when contact is one on one with [Mr Somers], more that she feels that [Mr Somers] will not respond to [the child] in an appropriate manner during contact.

    It is The Departments assessment that whilst there is no clear risk of harm for [the child] in the care of either parent, it is important that contact between [Mr Somers] and [the child] occurs in a variety of locations for [the child] to enjoy the time with her father. It is assessed that if contact remains in the same location as it has been that [the child] will continue to verbalise she does not want to attend, not because of feeling afraid of her father, rather that she finds the time spent together boring. It is The Department’s assessment that the impeding factors on contact for the child and [Mr Somers] are the high level of restrictions placed upon his contact by [Ms Somers], holding back his ability to develop an appropriate ongoing relationship with [the child]. This is compounded by the fact that [the child] is at times refusing to attend contact because she is bored. As indicated by the contact supervisor it would be in [the child’s] best interests to have contact involving activities that are free flowing and not with the level of restrictions imposed upon them. Whilst [Ms Somers] has opposed attendance of any other adults at contact it is the Department’s assessment that this is critical and an integral part of the child developing her identity and culture.

    The Department at this time have not been able to identify any specific risks from [Mr Somers] toward [the child] and as outlined above the Department are recommending closure.

    I set this out in full because it informed the court at the subsequent hearing but also informed the parents. Significantly, it identified the wife as being unduly restrictive and controlling of the child’s time with the father and supported time being spent in a more normal setting with the husband’s family.  

    [17] S67Z report

19. The family consultant prepared an s11F report pursuant to orders of 31 March 2016 by Senior Registrar FitzGibbon. The assessment was based on meetings with the husband and the wife on 3 May 2016 and 10 May 2016, the documents then filed with the court and the N Family Services’ supervision reports of the time the child spent with her father.[18] A meeting with the child for 10 May 2016 but the wife advised the child was unable to attend because of a swollen ankle; a further date was offered, being 12 May 2016, but again, the wife’s then solicitor informed the family consultant on the morning of the interview that the child could not attend due to a swollen ankle, and now stomach pain. A medical certificate was provided on both dates.[19] The child was not seen by the family consultant for the s 11F assessment. The family consultant identified the key issues as being how much time the child should spend with the husband and whether it should be supervised, the child’s view of time with the husband, allegations of family violence and the then ongoing criminal investigation into sexual assault and rape allegations made by the wife to have been committed by the husband. In relation to the child’s views, the family consultant relied on DHHS and N Family Services reports.[20] The report was released on 16 May 2016.

    [18] Section 11F report dated 16 May 2016, [1]-[2]

    [19] Section 11F report dated 16 May 2016, [7]

    [20] Section 11F report dated 16 May 2016, [28]

20. The family consultant said that the reports of supervised time highlighted the emotional turmoil the child experienced prior to time with the husband, when the wife was present, which disappeared on seeing him.[21] The supervision reports highlight that the husband’s interactions with the child were warm, attentive and appropriate.[22]

    [21] Section 11F report dated 16 May 2016, [28]

    [22] Section 11F report dated 16 May 2016, [28]

21. Ms F’s evaluation of the wife was that she “persistently integrated both her and [the child’s] emotional state as being one and the same with a need for years for the two of them to heal.”[23] She describes the Wife as having “attempted somewhat to present a fait accompli to the court in stating that until [Mr Somers] admits the rape allegations she will not trust him to have unsupervised time with [the child], while acknowledging that should he do so he will receive criminal charges.”[24] The wife’s statement to the family consultant that she strongly supports the relationship between the child and her father was undermined by the wife exposing the child to her high levels of distress, and “working on the child all week” before she sees her father and being unable to accept that the child may feel safe in her father’s care.[25] The family consultant’s view was that “[Ms Somers] is unable at the present time to differentiate between her own feelings towards [Mr Somers] and [the child’s], thereby impacting on her capacity to accept that [the child] does not feel unsafe in the care of her father.”[26]

    [23] Section 11F report dated 16 May 2016, [30]

    [24] Section 11F report dated 16 May 2016, [31]

    [25] Section 11F report dated 16 May 2016, [29]

    [26] Section 11F report dated 16 May 2016, [34]

1. The family consultant recommended that the court consider extending time to include overnight time and consider Mr Somers’s mother or brother as alternative supervisors for the father’s time. She recommended that changeover continue to be facilitated by a professional service. She recommended that the parties be psychologically assessed and that they attend a Parenting Orders Program. She also said Ms Somers may benefit from engagement with personal counselling.

2. On 24 May 2016 Senior Registrar FitzGibbon made orders, by consent, progressing the child’s time with the husband so that it would increase to overnight periods. Professional supervision was dispensed with and the husband’s wife and/or brother were required to be in substantial attendance.

3. The spend time visits on 28 May, 4 June and 18 June 2016 did not go well. It is common ground that the child’s attitude to the husband changed significantly after the Order for overnight time was made but well in advance of overnight time being introduced. The wife’s evidence was that she did not tell the child about the progression to overnight time. However, it was apparent from the records of the wife’s counsellor, Ms R (whose evidence I will come to later) that the child was aware that overnight time was going to be introduced immediately after the s11F assessment was published and at a time when that information could only have been given to the child by the wife.

4. On 28 May 2016 the wife remained at the dance school for the changeover. The Senior Registrar’s Order did not prohibit the wife from attending but it was common ground that no one, including the wife, considered that it was appropriate for the wife to be at the venue. Nonetheless, she was present. The child objected to going with the husband. The paternal grandmother attended with the husband and was offensive to the wife, no doubt provoked by what she perceived as shabby treatment of the husband. The paternal grandmother’s behaviour was not consistent with the child’s best interests. It fanned the flame of the wife’s opposition to the husband’s family by demonstrating to the child that the paternal grandmother does not respect the wife.

5. After prolonged negotiation with the child, it was agreed that the child would accompany the husband and the paternal grandmother to lunch but that the husband’s time would be reduced and less than the time ordered by Senior Registrar FitzGibbon just four days earlier.  The husband’s evidence, which I accept, is that the lunch proceeded well. His impression was that once he removed the child from the wife’s presence, the child could, and did, revert to being normal. Whilst the husband spent some time with the child on 28 May 2016, the dye was cast for the wife and child to not comply with the Order recently made by the Senior Registrar and informed by the opinions of all experts.   

6. On 4 June 2016 the wife engaged a private investigator to film the changeover at the child’s dance school. The wife’s evidence was that on 28 May she spoke to a dance school mother, Ms S, at the dance school who referred her to a private detective agency which turned out to be Ms S herself. The wife gave Ms S details of the changeover on 4 June 2016 and the, the wife says, she forgot that she had made the arrangement and that the changeover would be taped until she was contacted subsequently and told that the video footage was available. The cost of the video footage, which was amateurish and poor[27], was $500 which is a large amount of money for the wife who is a person of limited financial means.

   [27] Exhibit “H4” is a USB stick containing the video of the changeover at the ballet school.

7. I heard evidence from Ms S and from the dance school proprietor, Ms T. Both were defensive witnesses but each gave evidence which was consistent with the wife’s evidence. Interestingly, Ms T gave evidence that she would prioritise the child’s safety over all other children’s rights to, say, privacy, or not to be recorded or photographed without permission. She impressed me as a person who was swept away by the wife’s story and paid insufficient attention to her responsibility as a proprietor of a dance school at which a number of other children are enrolled. Having been able to view the video footage myself, my assessment is that the evidence of the wife and Ms T, that the husband was aggressive and overbearing with the child and Ms T on 4 June 2016, was inaccurate. The husband sought to remove the child from the dance school with some force. Having regard to his earlier experience of the child becoming normal once she left the dance school, I assess his actions as proportionate and reasonable. However, the husband was not successful in taking the child from the school and no time was spent. The day was traumatic for everyone but it was not as traumatic for the child as the wife and her supporters described. In a sad and unwholesome way it was the day on which the child became empowered as between herself and the husband. The events of the day defined for the child what she needed to do to reject the husband on spend time visits and, I am satisfied, conform with the wife’s expectations of her.

8. It was agreed between solicitors for the parties that on 19 June 2016 the spend time visit would be supervised by N Family Services even though this was not what the extant orders provided. The supervisor was Ms U with whom the child was familiar and had enjoyed a good relationship. Ms U gave evidence through the affidavit of Ms N, sworn or affirmed on 9 November 2016, her own affidavit, sworn or affirmed on 24 March 2017, and was cross examined. I accept her evidence. On 19 June 2016, the child was rude and hostile to Ms U and accused Ms U of lying to her, in a similar manner to the child’s accusations to the husband at the dance school changeovers. The supervisor tried to reason with the child to no avail. The wife and her friend were of no assistance. The child did not see the husband.

9. On 15 July 2016, I made a further order, by consent, reverting to supervised time between the child and the husband, the supervision being by Ms V of the Family Contact Service for two hours each week. This was a new contact service.

10. Ms W of the Family Contact Service was retained to supervise visits at the X Play Centre in Suburb Y on 7 August, 14 August, 21 August, 28 August, 4 September and 11 September. Ms W gave evidence which I accept. Each visit was extraordinarily difficult with Ms W encountering significant difficulty in coaxing the child from the wife and the child resisting any contact at all with the husband. The visits were of sort duration, about 20 minutes or so, and were distressing for both the child and the husband and no interaction between them.

11. The wife’s evidence was that after 19 June 2016, which was the day the wife’s two friends attended changeover instead of her, the child regularly suffered nightmares, bed-wetting and abdominal pain.[28] She says that the child was unable to attend school for three weeks from 11 to 29 July 2016 and was given a medical certificate from her general practitioner, Dr Z.[29] Her evidence is that supervised time continued to be distressing for the child and after the session on 4 September 2016, the child said to her “if you make me go and see him one more time, I will kill myself. I rather do it myself. I know you also no longer care about me. I cannot do this anymore.”[30] The wife says that that day, she took the child to see Dr Z and the child asked, for the first time, that the wife not be present during the consultation. Her evidence is that after the consultation Dr Z told her he believed the child was suicidal and needed to see a psychologist immediately, he referred the child to a psychologist at AA Group.[31] The wife said that there were court orders in place restraining her from taking the child from a psychologist but agreed to make an appointment when Dr Z told her that he would report her to DHHS if she did not do so.[32]

    [28] Affidavit of Ms Somers, dated 10 May 2017, [54]

    [29] Affidavit of Ms Somers, dated 10 May 2017, [54]

    [30] Affidavit of Ms Somers, dated 10 May 2017, [54]

    [31] Affidavit of Ms Somers, dated 10 May 2017, [54]

    [32] Affidavit of Ms Somers, dated 10 May 2017, [54]

12. The wife’s evidence is that in the car on the way to the next supervised visit on 11 September, she told the supervisor, Ms W, about the child’s suicidal ideation. The child was in the car. The mother deposed that she found it “immensely distressing that the child had to endure yet more trauma” when Ms W stated that time would proceed that day.[33] The supervision report prepared by Ms W told a different and much more graphic story, she said that after exchanging hellos with the wife, the wife advised that she had a very difficult week and told her that “after the last visit, [the child] was in a very bad state and quite distressed… [the child] climbed up the pantry, got a sharp knife and held it to her neck, threatening to kill herself. [Ms Somers] stated that she had put the knives out of reach however somehow [the child] managed to climb up the shelves of the pantry and got it. [Ms Somers] reported that [the child] asked her wife how long she was supposed to see her father and that she did not want to do it anymore.”[34] Ms W says that Ms Somers said she was “very worried about her daughter and seeing her in such a state particularly when nobody was listening”.[35] She said Ms Somers said that the child had seen the court appointed psychologist on Tuesday but did not talk at all and that the child had seen her general practitioner on both Monday and Tuesday and that the general practitioner believed she was suicidal.[36] Ms W describes the exchange as happening outside of the car, presumably thus, not within earshot of the child who was inside the car. That day, supervised time between the child and her father occurred for about seven minutes. To the extent of the inconsistencies, I prefer the evidence of Ms W over the evidence of the wife.

    [33] Affidavit of Ms Somers, dated 10 May 2017, [54]

    [34] Report attached to affidavit of Ms V, dated 20 September 2016, p18-19

    [35] Report attached to affidavit of Ms V, dated 20 September 2016, p19

    [36] Report attached to affidavit of Ms V, dated 20 September 2016, p19

13. Ms W reported that she spoke at length with the husband after the wife’s departure and informed him about what the wife had said to her and describes the husband as highly concerned about his daughter’s wellbeing.[37] Her reports states that the contact service made a report to DHHS.[38] The husband’s evidence was that “shocked and very worried to hear that [the child] had threatened to harm herself” and “alarmed that she was taken to yet another psychologist.”[39] He says that following this, he advised his solicitor that in the circumstances, he no longer wished to spend time with the child as he “felt unable to continue to insist on visits when it is clearly distressing [his] daughter”.[40]

    [37] Report attached to affidavit of Ms V, dated 20 September 2016, p21

    [38] Report attached to affidavit of Ms V, dated 20 September 2016, p21

    [39] Affidavit of Mr Somers, dated 15 May 2017, [56]

    [40] Affidavit of Mr Somers, dated 5 April 2017, [46]-[47]

14. The husband says he is unaware if DHHS has followed up on Ms V’s reporting of the wife’s statements about the child’s threats to commit suicide and that he has not been contacted by DHHS.[41] The wife has not given evidence about whether DHHS has contacted her.

    [41] Affidavit of Mr Somers, dated 5 April 2017, [45]

15. When the family consultant met with the child in October 2016 for preparation of the family report, she was aware of what the wife had said about the child’s suicidal ideation. Her evidence in relation to whether the child was at risk of self-harm at the time was that “[s]he presents as very vulnerable, and she was presenting as quite precocious during that assessment, but her primary emotion was more around anger and control, and there was nothing in her presentation that suggested to me that she was at risk of self-harm at that stage.” The family consultant also spoke to Dr C and asked about whether the child had made any disclosures of suicidal ideation to her; her evidence of Dr C’s response is that no disclosures were made to her but in any case, she did not think there was sufficient trust between the child and herself such that the child would have reported suicidal ideation to her, if it had occurred.

16. I understand why the husband ceased trying to implement the spend time orders in mid-September 2016. Indeed, he had little alternative. However, I am not persuaded that the child was suicidal. It is more likely that she was expressing what the wife wanted to hear.

Evidence

1. There were no significant objections taken to the admissibility or fairness of the evidence relied upon.  The wife filed two affidavits of evidence-in-chief, the first being sworn on 10 May 2017, and the second being sworn on 19 May 2017.  The last sworn affidavit of evidence-in-chief contained all of the text of the earlier affidavit of evidence-in-chief, some extra text and some further annexures.  It was, during the trial, necessary to refer to the wife’s first affidavit of evidence-in-chief, only to harvest certain documents which were in due course tendered by consent or by the wife.  In these reasons, where I refer to the wife’s affidavit of evidence-in-chief, I am referring to the document sworn on 19 May 2017 comprising 37 pages of narrative and 166 pages of annexures.

2. The wife relied on the following documents – following evidence:

   a)her affidavit of evidence-in-chief, being those sworn on 10 May 2017 and 19 May 2017.  They incorporated by reference certain paragraphs of the wife’s affidavit sworn 29 March 2016;

   b)the affidavit of Dr BB, (the wife’s treating psychologist) affirmed 17 May 2017.

3. The applicant husband relied on the following evidence:

   a)his affidavit of evidence-in-chief, affirmed on 5 April 2017;

   b)his affidavit in response affirmed on 15 May 2017;

   c)the affidavit of his mother, Ms CC Somers, affirmed on 16 May 2017.

4. The husband is facing the possibility of Victoria Police “relooking” at the investigation against him for sexual offences committed by him against the wife from 2014 onwards if, or when, the wife produces the corroborating statements from her sister in Country H. However, the husband was not cross-examined on his alleged of abuse of the wife and to the very scant degree to which it was mentioned, the husband gave evidence without hesitation.

5. The independent children's lawyer relied on the following documents and was responsible for calling the following witness if and when they were required for examination:

   a)the section 77Z report of the Department of Health and Human Services, dated 13 May 2016;

   b)the children and parent’s issues assessment of Ms F, dated 16 May 2016;

   c)the affidavit of Ms N (contact supervisor proprietor), sworn 9 November 2016;

   d)affidavit of Ms U (contact supervisor), sworn 24 March 2017;

   e)affidavit of Ms V (CEO family contact service), sworn 20 September 2016;

   f)the affidavit of Dr G (single expert witness psychiatrist), affirmed 9 November 2016;

   g)section 62G(2) family report by Ms F, dated 26 October 2016;

   h)Detective Senior Constable M of Suburb L Sexual Offences and Child Abuse Investigation Team.

6. At my direction, the independent children's lawyer prepared a court book of documents which comprised 384 pages. Each party received a copy and a further copy was made for the court and for the witness box.  The basis upon which this document was brought into existence was for ease or reference; the documents must now be returned to the court.

7. In addition, there were numerous Exhibits.

PROOF AND FINDINGS OF FACT

1. Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.

2. A statement of fact is a finding of fact.

CREDIT & IMPRESSION OF WITNESSES

1. I found the wife to be an unreliable witness. I am not able to say whether she was dishonest or believes false facts. In any event, much of what she gave evidence about in this proceeding, such as family violence, was not accurate or true.

2. I found the husband to be a modest but genuine witness. I regard him as being reliable and truthful.

3. I have commented on the credibility of other witnesses in the context of the evidence which they gave. It is not desirable for me to make a credit finding about every witness. Indeed it would be undesirable for me to do so. Where appropriate I indicate the evidence upon which I place weight.

Relevant law – parenting issues

1. These proceedings are brought under Part VII of the Act. Pursuant to s 60CA, in deciding to make any parenting order in relation to the children, I must regard [the children’s] best interests as the paramount consideration.

2. Section 60B defines the objects of Part VII as to ‘ensure that the best interests of the child are met’ by:

   (a)ensuring that child has the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that the child receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their child.

   These objects may be regarded as the core values of the legislation.

3. The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the child’s best interests:

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. Section 60B(4) provides that an additional object is to give effect to the Convention on the Rights of the Child[42] to which Australia became a signatory on 22 August 1990. Amongst other things, the Convention seeks to ensure that signatory states implement laws, so that laws and actions affecting children, put their best interests first and benefit children in the best possible way, that authorities in each state party protect children and help ensure their full development — physically, spiritually, morally and socially — and that children have a right to have their say in decisions that affect them and to have their opinions taken into account.

   [42] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 44 (entered into force 2 September 1990).

5. I do not perceive there to be any conflict between children’s rights as articulated in the Convention on the Rights of the Child and the application of Part VII of the Act to the determination of this matter.

6. Section 65D provides that, subject to some associated provisions to which I will come later in these reasons, the Court can make such parenting order as it thinks proper.

1. In this case each parent concedes that parental responsibility cannot be shared. Absent that concession, I would have found that the total inability of the parents to communicate with one another effectively is such that it could not be in the child’s best interests for there to be equal shared parental responsibility. The inability for the parents to communicate is beyond a mere conflictual relationship. The wife’s pathology is such that contemplating shared parental responsibility leads to me to be concerned about her inability to form the most basic of alliances with the husband in regard to a sharing of fundamental ideas about what is in the child’s best interests. It is likely that the strength of the wife’s attitudes and beliefs about the husband is such that it will undermine any attempt on his part to join with her in an effort to make good decisions about the child’s best interests. Further, obliging the parents to consult and reach agreement may be seen by the wife as an opportunity to destabilise the child’s potential stability in the husband’s care. It is important to quarantine the child from the harmful and, I am satisfied predictable, effects of what shared parental responsibility may bring.

2. Taking all of the above considerations into account I am satisfied that the husband should have sole parental responsibility for the child in all functional ongoing matters such as health, education, non-permanent travel abroad and issuance of a passport.

3. There is no conflict over culture or religion.

4. B’s name should not be changed and her permanent place of residence should not be altered, so that it would make it significantly more difficult for her to spend time with a parent without the parents agreeing to same or further order of the court. There are no proposals to change the city or region of residence or to change the child’s name. However, it is fair that in the (very likely) event that the parents cannot agree, the parent agitating for change from existing or last agreed to arrangements, has to make application to the court. I consider that this is preferable to giving the husband sole parental responsibility and requiring him to provide the wife with notice of his decisions so that she can institute proceedings if she wishes to do so. My concept of fairness includes my consideration of fairness between the parents as well as the child’s best interests being the paramount consideration.

5. I respect the husband’s intention to keep the wife informed of major long-term decisions he takes about the child. However, there may be rocky times ahead in which a free flow of information might not be in the child’s best interests. Accordingly, I will not impose an order in this regard.

Consideration of equal time or substantial and significant time with both parents

1. By virtue of having previously determined for reasons stated above that it is not in the child’s best interests for the parties to have equal shared parental responsibility in relation to the more significant major long-term issues, it would be artificial for me to consider whether it is in the best interest of the child or reasonably practicable for the child to spend equal or substantial and significant time with each of the parents.

2. To the extent that I make no order about religion or culture and the parents share responsibility for the child’s name and permanent place of residence, I am satisfied for reasons which I have expressed above that equal time or substantial and significant time for the wife with the child is wholly inappropriate at this time. Indeed, any order for time to be spent between the wife and the child is premature.

Conclusion

1. I am satisfied that the orders I have set out at the commencement of these reasons are in the child’s best interests.

Costs

1. Any party wishing to make an application for costs may do so.

I certify that the preceding one hundred and ninety-five (195) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett.

Legal Associate:

Date: 14 September 2017