Tijani and Jordan

[2008] FamCA 779

FAMILY COURT OF AUSTRALIA

TIJANI & JORDAN [2008] FamCA 779

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time

APPLICANT: Mr Tijani

RESPONDENT: Ms Jordan

FILE NUMBER: SYC 442 of 2007

DATE DELIVERED: 22 August 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 22 August 2008

REPRESENTATION

APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Juhazs

INDEPENDENT CHILDREN’S LAWYER: Ms Escobar

Orders

1. The mother and father have equal shared parental responsibility for the child

   
   

   … born … April 2005 (“the child”).

2. Except as hereinafter specified, when the child shall live with the father, the child shall live with the mother whilstsoever the mother lives with her parents unless the parties agree otherwise that the mother may live elsewhere or further order of the court permits such move.

3. Commencing on the first Saturday following the date of Orders until the child turns 4 years old, the child shall live with the father as follows:

   3.1from 10.00 am to 2.00 pm each Saturday for one month

   3.2from 10.00 am to 4.00 pm each Saturday for one month

   3.3from 10.00 am to 6.00 pm each Saturday until the child turns 4 years old

   3.4from 10.00 am to 6.00 pm Saturday and from 10.00 am to 6.00 pm Sunday on each alternate weekend and in the off week on Wednesday from 5.00 pm to 8.00 pm when the child turns 4 years old until October 2009

   3.5from 10.00 am to 12 noon on Christmas Day

   3.6on Father’s Day from 10.00 am to 2.00 pm

   3.7on the child’s birthday in 2009 from 10.00 am to 2.00 pm.

4. From October 2009 until January 2011 the child shall live with the father:

   4.1on each alternate weekend from 10.00 am Saturday until 6.00 pm Sunday

   4.2in the off week on Wednesday from 5.00 pm until Thursday at 9.00 am

   4.3from 10.00 am to 1.00 pm Christmas Day

   4.4on Father’s Day from 10.00 am to 6.00 pm

5. From January 2011 and thereafter the child shall live with the father as follows:

   5.1on the Father’s Day weekend from 10.00 am Saturday until 6.00 pm Sunday

   5.2for one half of the Autumn, Winter and Spring school holiday periods at times to be agreed between the parties and failing agreement for the second half commencing 10.00 am on the Saturday that is halfway through the holiday period until 5.00 pm Sunday immediately before the first day of school.

   5.3at Christmas from 12 noon Christmas Day until 5.00 pm Boxing Day commencing in 2011 and for each alternate year thereafter

   5.4at Christmas from 5.00 pm Christmas Eve to 12 noon Christmas Day commencing in 2012 and in each alternate year thereafter

   5.5for the first two weeks of the Christmas School Holiday period commencing on at 10.00 am on the Saturday immediately following the last day of school until 10.00 am on the Saturday two weeks later in an even numbered year of a year ending in zero and in each alternate year thereafter

   5.6for the last two weeks of the Christmas School Holidays from 10.00 am on the Saturday until 10.00 am on the Saturday immediately before school starts in odd numbered years and in each alternate year thereafter.

   5.7in the off week on Wednesday from 5.00 pm until Thursday at 9.00 am.

6. In addition to the time provided for in Order 5.1 to 5.7 inclusive the child shall live with the father from 5.00 pm Friday until 5.00 pm Monday at commencement of school each alternate week from January 2011 with the father to drop the child at school.

7. For the purposes of the child living with the father the father shall collect and return the child from the maternal grandparent’s home at E at the commencement and conclusion of his time with the child.

8. The father shall ensure that there is an age appropriate bed and car seat available for the child to use when the child is in his care.

9. The father’s time with the child be suspended on the Mother’s Day weekend from 10.00 am Saturday immediately before Mother’s Day.

10. Neither party denigrate the other party or any other member of that party’s family in the presence of and/or in the hearing of the child.

11. The mother, at the father’s request, do all acts and things and sign all documents necessary to cause the father’s name to be recorded on the child’s birth certificate at the father’s expense.

12. The mother and father shall notify each other of any serious injury, illness or any major medical issues involving the child and each party shall keep each other properly informed of any required treatment or medications required for the child and shall provide any requisite authorities for the relevant clinician to contact the other parent.

13. The orders herein made be supervised for a period of one year pursuant to the provision of section 64B(4A) by a Family Consultant or family dispute practitioner and that the parties consult with such Family Consultant or family dispute practitioner as is nominated by the Director of the Child Dispute Services of this Court from time to time in relation to resolving any dispute about the terms or operation of these orders or reaching agreement about a change in the order.  The costs of any such consultation are to be borne by the parties equally.

14. The parties are to keep and deliver with the child a Communication Book which the parties may make notes of information they wish to convey concerning matters relating to the child, her health, her development, significant matters in her life or any other matter relevant to the welfare of the child or the arrangements for her care.

AND THE COURT NOTED that the father has sought and the court has declined at this time to make an order that he spend equal time with the child by reason of the child’s current very tender years.  It is further noted that in 2012 the father will seek a review of the position with a view to extending the time the child spends with him.

1. Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 442 of 2007

MR TIJANI

Applicant

And

MS JORDAN

Respondent

REASONS FOR JUDGMENT

1. The application before the Court is one in which the father seeks orders in relation to the parenting of the child of his relationship with the respondent mother.

2. That child is a daughter born in April 2005 and presently aged nearly three and a half years.

3. The mother in her response opposed the orders as sought by the father.  On the hearing, each of the father and the mother produced minutes of orders sought by each of them. 

4. This case in its conduct has been a significant journey for this little girl's parents.  Each of the parties in their evidence said that they had had difficulty in communicating.  The father pointed to a letter from the wife's former solicitor which told him not to communicate with the mother.  The directions, he said, had not been changed. 

5. The mother, in discussing this question, said that in her view a communication she felt could be undertaken between the parties concerning their daughter and that she would do everything she could to make that happen and the father gave a like assurance.

6. It is true therefore, as the wife's counsel pointed out, that communication had been non-existent for some time between them but I am much encouraged by the determination that they have shown, together with the commitment they express to their daughter and their recognition of the importance of her having a meaningful relationship with each of her parents.

7. I do not think that in this case the pursuit of the revived enthusiasm for making cooperative parenting work should fall on obstacles that are only historical.  The orders will provide assistance to communication by providing for a communication book and supervision of the order.

8. Each of the mother and the father are, in my view, to be commended for their resolve to tread a different path.  As a result of that expressed enthusiasm and desire a number of adjournments were sought by them and would no doubt the invaluable assistance of the wife's counsel and solicitor and the independent children's lawyer; they were able at the end of the second day of hearing to present to the Court some proposed minutes of orders; many of which were agreed between them. 

9. The Court heard addresses from each of the parties and the independent children's lawyer on the few issues which remained and I was asked that I deliver a judgment only on those issues. 

10. Firstly, it was proposed under the minute of order submitted by the wife that the child live with her and spend time with the father.  The father said that he preferred the orders to provide that the child live with the father at nominated times and otherwise live with the mother.  No doubt he believes that such an order reinforces the importance which attaches to his role in the child's life.  This is a case in which each of the parties agrees that there should be joint parental responsibility.  Each in different ways during the course of the proceedings has acknowledged the importance of the other in the child's life.  In order to reinforce that concept of shared parental responsibility and to provide for the child a clear mandate for her ability to look to each of her parents for that support and succour which she needs, I have decided to accede to the father's request and the orders will be framed in the form of a "lives with/lives with" order.

11. In so doing I in no way seek to diminish the primary role the mother has played in the care of the child.  However, because this is a new start for both these people down the path of cooperative parenting and I think that given the history of this matter; such words are important in underlining the equally important role of each of them in fulfilling the obligations to their child I will so order.  In doing so I believe that the best interests of the child are served. 

12. The second issue was that the husband wanted conditions attached to the order that the child live with the mother. The condition which he wanted attached was one which made the order conditional upon the mother living with her parents. The basis for this request was found in the evidence of Dr B; a single Court appointed expert, a child psychiatrist, who gave evidence in the proceedings.  That evidence was contained in a report admitted into evidence and evidence given orally before the Court.  It had been his recommendation, based upon evidence of the state of the mother's physical and psychological health. 

13. In addition, he was concerned with her former problems with opiate addiction and what is described by each of the parties as "recreational drug use".  He felt that the mother might find it difficult coping with stress in the event that she did not have the continuing support of her family.  He expressed the view that her continued care for the child should be dependent upon her residing with her parents.

14. On the hearing, however, he gave evidence following a consideration of the affidavit of the mother and particularly the report of her general practitioner annexed to it; that if the mother had continuing good health he could see a case could be made out for her moving out of her parents' home, providing she lived close to them and had ready access to them in the case of further problem. 

15. Having regard to the problems which the mother has suffered and referred to in the report of Dr B, which problems historically have come and gone, and the report of her general practitioner, I am inclined to the view that the mother may well soon be able to undertake such a move, particularly if her recovery continues in the same manner as attested by her doctor.  She is, however, as a result of these orders and the assumption of more responsibility by the father, going to be involved in changes her life.  I therefore think that the time is not yet here where I could be totally comfortable for the condition proposed by Dr B to be removed.  That is not to say it will not be in the future.

16. I propose to make an order imposing such a condition but providing that it can be removed by consent of the parties or further order of the Court.  It would be my view that if the mother can remain drug free for a further 12 months and demonstrate her general good health, that a good case would exist for such a move provided that for at least some time the wife retained adequate and appropriate support.  Of course in those circumstances if the father was not to agree to such a move and the mother was obliged to come to Court, consequences might flow to the father if that failure to agree was unreasonable. 

17. The next area of disagreement arose in the program proposed for graduated and increasing periods of time for the child to live with her father up to a proposal of the child spending equal time with him in 2012.  I raised with the father the problem that a Court has in making that sort of order with respect to a child of this present age in the circumstances of this case.  Each of these parties has used recreational drugs, including methamphetamine.  Each of them, on their oath, says they have not taken those drugs for quite some time.  In the mother's case I think since 2006 and the father has undergone programs which he says have assisted him in eschewing drugs, in particular programs which help him cope with his underlying problem said to be "a diminished self-esteem". 

18. Those results are laudable and each of the parties is commended by me for the determination they have shown to remove drugs from their lives.  Nevertheless, the father has had contact which, for some time, has been limited to short periods each week with his daughter.  That seems, on the reports, to have gone extremely well.  The father also points to his care of the child during the two short periods when he resided with the mother and also when she was obliged to be hospitalised for a day or so. 

19. Notwithstanding those matters; the move to the present regime is a significant one; not only for the parties but of course more importantly for the child.

    
    

    Dr B gave evidence of his concerns of the effect of separation anxiety on children of tender years.  In the circumstances; I am not comfortable in predicting the situation in which the child will find herself in 2012 and her then needs perceptions and attachments.

20. I have noted the husband's desire at that time to seek an order for equal time at that time and it may be a suitable time to review the operation of my orders and the needs of the child.  Of course he make such application as he is advised but for the time being I do not intend to go further than I have provided for in the orders which are orders that for substantial and significant periods of time the child live with the father.

21. The next issue arose from the question of whether the child should live with the father overnight on the Wednesday following the period in which the child live with him on the weekend, in orders which were to take effect from October 2009.  By that time the child will be four and half years old and I think could accommodate the increased time during the week with the father.  It will be an appropriate precursor to the mid-week contact which will allow the father to have significant and substantial contact under the Act and falls during the period of time that the child will be then - or if she delays her enrolment - in due course at school.  The child will be used to the mid-week contact with the father and it will afford her the opportunity of having her father participate in not only that part of her life which falls on weekends but also part of her school week.  It is, I think, important that she have the opportunity of having her father be a part of that part of her life as well.

22. The next issue related to when the overnight weekend contact agreed between the parties should be extended to commence on Friday rather than Saturday.  It was proposed by the father and the independent children's lawyer that the contact should commence in 2011.  The mother sought commencement in 2012.  The child is likely to attend school at the latest probably in the year in which she turns five, which will be 2010.  Dr B had said in his evidence that overnight stays would be less of a problem once the child attended school and had to separate from the mother.  Dr B conceded that this was indeed a conservative view. 

23. This child is presently going to pre-school from two to three days per week.  A program agreed to between the parties does provide for some overnight time with the father from October 2009.  I believe that by 2011 the child will have had sufficient experience in separating from the mother that she will be able to cope with the additional time provided for in the orders.  I will therefore order that the period of time be extended in 2011 rather than in 2012.

24. The father sought a supervision of the order and I am prepared to make such an order as is set out in the orders which I will shortly publish.  Human beings, being human, it seems to me that a quick and helpful third party as proposed by the mother in her evidence, to assist direct communication between them, would be a desirable insurance against any dispute derailing the new course in cooperation being undertaken by the mother and the father in the interests of the child.

25. The father has asked that some arrangement be made for sharing the picking up and delivery of the child.  I note incidentally that the father has moved residence in order to be closer to the child and that is something for which he should be commended.  It seemed that in relation to him picking up the child from the mother's home, the father had some concerns about the mother's father's attitude to him.  The maternal grandfather, however, gave evidence in the matter and said he had not had concerns about the child being picked up at his residence and that he would abide by what was ordered.

26. The mother has suffered significant ill health, particularly psychological ill health and I think for the time being and until she is wholly well, the burden of pick up and delivery can remain with the father and I will so order.

27. In making the decisions on the few issues which remain between the parties; I have taken into account the matters referred to in the Act and in particular the welfare of the child, the relationship of the child with each of her parents and her uncle and maternal grandparents; all of which, on the evidence before the Court, are now a plus for the child, notwithstanding the history of the parties' relationship.

28. I have considered whether the orders I make might engender further litigation.  It is always a balance that has to be struck between trying to predict the unpredictable and avoiding such litigation. I think I have gone as far as I can go given the changing nature of the parties' relationship and the age of the child and her development over the next few years and of course the evidence of Dr B.

29. It is my hope that the supervision order will afford the parties the techniques in due course to make agreed changes to the regime to suit the needs of the child and the changing circumstances of the child and themselves from time to time.

30. I note that there was a request by the father that orders be made to provide a passport for the child and permission for him to take the child to New Zealand.  I think that such an order is possible after the child has had some overnight experience for some time with the father and there is a definite proposal for such a trip.  I decline however, in the absence of that experience and proposal and the age of the child, to presently make such an order.  I do note however that the mother indicated - and had done so quite strongly - that she regards it as a right of the child to know her paternal grandparents and that in due course, all being well, she would give favourable consideration to approving such a trip.

1. Finally, let me say that I admire and congratulate the parties for progressing down the difficult path of compromise to procure so significant an agreement on this most important of issues.  I can see in their agreement a real recognition that this case is not about them but rather about their child and their child's need for the best that each of them can offer her by way of help and support.  That help and that support from each of them will be necessary for her to reach her full potential. 

2. May I also express my appreciation for the assistance I have had from the independent children's lawyer and the counsel and solicitor for the wife.  I am sure that they too have provided the parties with invaluable assistance which has enabled them to jointly make decisions for the benefit of the child. 

3. I make orders as set forth in the document titled, "Orders" dated this date and published by me.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: 

Date:  22 August 2008