Tyrrell and Morris

[2019] FamCA 600

FAMILY COURT OF AUSTRALIA

TYRRELL & MORRIS [2019] FamCA 600

FAMILY LAW – CHILDREN – with whom a child lives – best interests of the child – where the parties previously entered into final orders by consent – where those previous final orders provided for the father to have sole parental responsibility and for the child to live with him – where the parties recommenced proceedings – where the mother was seeking for the child to live with her – where the child will remain living with the father –  where this proposal is supported by the Independent Children’s Lawyer and Family Consultant –  where the mother will spend time with the child conditional upon her providing and updating the father of her residential address and contact details – where very little information was provided by the mother at the time of the hearing in relation to her current household, partner, address and circumstances –  where the mother’s time with the child is balanced against providing the child with a safe, stable and emotionally supportive home base – where the Family Consultant was clear to say that the child was experiencing a conflict of loyalties – where the pressure the mother was placing upon the child was resulting in the corrosive undermining of the relationship with the father – where the child is suffering from anxiety and stress due to the ongoing and entrenched parental conflict – where the child has a good relationship with each of her parents – where there is a need to protect the child from psychological harm – where the relationship with the mother is supported in the father’s household – where a change in residence to the mother would result in the father being eliminated from the child’s life – where there is no objective evidence from third parties that supports a finding of neglect or abuse in the father’s household.
FAMILY LAW – CHILDREN – parental responsibility – where the father will have sole parental responsibility – where the father will notify the mother of long term decisions and seek her views – where the evidence in this case rebuts the presumption of equal shared parental responsibility – where the parent with whom the child lives should have parental responsibility – where the father has demonstrated his ability to make child focused decisions.
FAMILY LAW – JURISDICTION – transferred proceedings – where proceedings were commenced in the Federal Circuit Court of Australia – where the proceedings were transferred to the Family Court of Australia.

Family Law Act 1975 (Cth)

APPLICANT: Mr Tyrrell

RESPONDENT: Ms Morris

INDEPENDENT CHILDREN’S LAWYER: Harpers Legal

FILE NUMBER: NCC 3027 of 2015

DATE DELIVERED: 20 August 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 6-8 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not-Applicable

SOLICITOR FOR THE APPLICANT: Self-Represented

COUNSEL FOR THE RESPONDENT: Mr Mueller

SOLICITOR FOR THE RESPONDENT: Koulouris & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Taylor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Harpers Legal

Orders

1. That all existing parenting orders in relation to X born … 2007 are discharged.

2. That the father have sole parental responsibility for the child.

3. The father shall whenever a long term decision arises for the child:

   (a)Notify the mother in writing (which includes text and email) of any proposed decision and seek her views;

   (b)Consider the mother’s views if received in a timely way;

   (c)Notify the mother in writing of the decision made promptly thereafter.

4. The child live with the father.

5. Conditional on compliance by the mother with Orders 6 and 7, the child spend time with the mother as follows:

   5.1Until the conclusion of the school year 2019:

   5.1.1Each alternate weekend from Saturday at 9.00 am to Sunday at 5.00 pm;

   5.1.2Such weekend time to commence from the second weekend of school term;

   5.2Commencing in 2020:

   5.2.1Each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday;

   5.2.2Such weekend time to commence on the second weekend of each school term, commencing Term 1 2020;

   5.3In the event that any weekend the child is scheduled to spend time with the mother in accordance with these orders falls on a long weekend including a Monday the child’s time with the mother shall be extended to 5.00 pm on Monday; if it falls on a long weekend including a Friday, then the child’s time with the mother shall commence at 9.00 am on Friday;

   5.4If the child’s birthday is a school day from 4.00 pm to 7.30 pm and if a non-school day from 9.00 am to 2.00 pm;

   5.5On the weekend that includes Mother’s Day from Saturday at 9.00 am to Sunday at 5.00 pm, if the child is not already spending time with the mother in accordance with these orders;

   5.6For the second half of each school holiday period at the conclusion of Terms 1, 2 and 3 commencing at 12.00 noon on the second Saturday of the holidays and concluding at 5.00 pm on the Sunday of the holidays before school resumes;

   5.7In the event Easter falls during the school term, the child shall spend time at Easter with each parent as follows:

   5.7.1In even numbered years with the father from Easter Thursday at 5.00 pm to Easter Saturday at 5.00 pm, and with the mother from Easter Saturday at 5.00 pm to Easter Monday at 5.00 pm;

   5.7.2In odd numbered years with the mother from Easter Thursday at 5.00 pm to Easter Saturday at 5.00 pm, and with the father from Easter Saturday at 5.00 pm to Easter Monday at 5.00 pm.

   5.8Subject to Order 5.9 herein, for one half of each Christmas school holiday period at the conclusion of Term 4 as follows:

   5.8.1The first  half of the Christmas school holidays in 2019 and each odd numbered year thereafter, commencing at 9.00 am on the first Saturday following the conclusion of the school term and concluding at 12.00 noon on 10 January; and

   5.8.2The second  half of the school holidays in 2020 and each even numbered year thereafter, commencing at 12.00 noon on 10 January and concluding at 5.00 pm on the Saturday immediately prior to the child recommencing school;

   5.9The child spend time with each parent at Christmas as follows:

   5.9.1In odd numbered years, with the father from 25 December at 3.00 pm to 26 December at 3.00 pm; and

   5.9.2In even numbered years, with the mother from 25 December at 3.00 pm to 26 December at 3.00 pm.

6. The mother shall forthwith advise the father of her current residential address and contact details including telephone number and email address.

7. Each parent must keep the other informed of his and her current contact details including telephone numbers, residential address and email address.

8. To implement time spent, changeover shall occur at McDonald’s Family Restaurant, Suburb B and may be effected by the parties or their nominees known to the child.

9. The child be at liberty to telephone the other parent at any reasonable time when the child wishes to do so.

10. The father sign all consents to enable the child’s school(s) to provide to the mother on a regular basis and at her expense copies of all school reports, application forms for school photographs, any other reports on school progress and behavioural issues, and other school circulars in relation to the child.

11. The mother be at liberty to contact the child’s school(s) by letter, email or telephone to obtain copies of all notices and details of all functions, parent and teacher nights, and other activities including sporting activities to which the parents are invited and to attend such activities.

12. Each party as soon as practicable telephone the other upon the happening of any of the following:

    (a)       The child becoming seriously ill;

    (b)       The child being hospitalised;

    (c)       The child becoming involved in an accident requiring medical attention.

13. The mother be restrained and is hereby restrained from:

    13.1Denigrating the father to the child or in the presence or hearing of the child; or

    13.2From questioning the child about the father.

14. The mother be restrained by injunction from taking the child to any psychologist, social worker or counsellor.

15. The mother is restrained by injunction from permitting the child to be in the presence of or have contact or communication with Mr C.

16. The father is at liberty to provide a copy of these orders to the principal of the child’s school.

17. The father is at liberty to provide a copy of these orders and reasons for judgment to Ms D  , the psychologist engaged to provide therapy to the child.

18. The father shall forthwith nominate a medical practice and advise the mother of the contact details for that practice.

19. The mother is restrained from taking the child to a doctor other than a member of the medical practice nominated by the father accept in the case of a medical emergency.

20. The mother be restrained by injunction from taking the child to hospital unless in the event of an emergency.

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  Tyrrell & Morris 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 NEWCASTLE

FILE NUMBER: NCC 3027 of 2015

Mr Tyrrell

Applicant

And

Ms Morris

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders in respect of one child X, a girl aged not quite 12 years, at the date of trial. She is in her first year of high school.

2. The parties commenced cohabitation in 2001 and were married in 2002.

3. The parties were together for approximately 13 years before separating on 8 March 2014.

4. The parties’ child, X was born in 2007.

5. The child has lived with the father since February 2017 when final parenting orders (“the 2017 orders”) to that effect were made by consent.

6. The parties were divorced in 2018.

The Applications

1. The 2017 Orders provide for the father to have sole parental responsibility and for the child to live with him.

2. Time and communication with the mother is five nights per fortnight, half school holidays and other special times. There is an order for telephone contact at the request of the child.

The father

1. The father proposed that the child continue to live with him and that he continue to have sole parental responsibility.

2. He proposed half school holidays, alternate weekends (Saturday to Sunday) and other special times for the child to spend time with the mother and liberty to contact the mother by telephone at will.

The mother

1. The mother proposed that the child return to live with her and that the mother assume sole parental responsibility.

2. She proposed half school holidays, alternate weekends (Friday to Monday) one additional night per fortnight, and other special times for the child to spend with the father. Telephone calls would be two fixed nights per week and otherwise as requested by the child.

The Independent Children’s Lawyer

1. Ultimately, after the conclusion of the evidence, the Independent Children’s Lawyer (“ICL”) proposed orders consistent with and supportive of the proposal of the father.

Brief History of Relevant Events

1. On 30 April 2018 the proceedings were transferred to this Court from the Federal Circuit Court (“FCC”).

2. The notations to the orders made on that date represent a useful summary of prior events and are repeated here:

   a.Proceedings were originally commenced on 20 November 2015 in relation to the child X born in 2007 (“the child”).

   b. There is a history of family violence and drug use alleged in the parent’s homes.

   c. There is a history of the Mother failing to attend court on various occasions throughout 2016.

   d.Final Orders were made by consent on 8 February 2017 with the child ordered to live with the Father and Father to have sole parental responsibility for the child and the child to spend time with the Mother in 9:5 arrangement.

   e. The child now appears to be suffering from anxiety and/or stress as a result of the ongoing and entrenched parental conflict.

   f. A further Family Report has been prepared.

   g. It appears from the evidence contained in the Family Report that the allegations being raised by the Mother and maternal family are not supported by known independent evidence.

   h. The parties estimate the matter may take longer than 3 days.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant father - Mr Tyrrell

   (a)Amended Initiating Application filed 21/11/2018;

   (b)Notice of Risk filed 20/04/2017;

   (c)Affidavit of the father filed 20/12/2018;

   (d)Affidavit of Ms F (the father’s partner) filed 20/12/2018;

   The Respondent mother - Ms Morris

   (e)Amended Response filed 7/12/2018;

   (f)Notice of Risk filed 6/09/2017;

   (g)Affidavit of the mother filed 20/12/2018;

   Reports

   (h)Family Report dated 4/04/2018.

The Parties

The Applicant father – Mr Tyrrell

1. The applicant in this matter is Mr Tyrrell, now aged 52 years. The father is not currently working and is a full-time student at university. The father was previously employed in the J Organisation from 1986-1998.

2. The father has re-partnered with Ms F. Ms F is aged 43 years, has completed her tertiary studies and is working full time. . Ms F has three daughters from a previous marriage. Two are adults, the youngest is 17 and in Year 12 at high school.

3. On the 8 February 2017 orders were made in the FCC for X to live with the father.

4. In March/April 2017 the father and X moved into the property where Ms F and her daughters were living.

5. In June 2018 the father and Ms F moved to a bigger house, to accommodate six people, in Suburb H, a suburb of region K.

The Respondent mother – Ms Morris

1. The Respondent in this matter is Ms Morris, now aged 46 years. The mother is unemployed and is in receipt of a Commonwealth benefit, Newstart. She has made an application for a disability support pension. She is studying at TAFE.

2. The mother apparently lives in a two-bedroom house.

3. The mother instructed her counsel not to disclose her address to the Court.

4. The mother denies any current relationship.

The Trial

1. The matter had been allocated three days of hearing time commencing 6 February 2019 and was concluded within that time.

2. The father had been legally represented in the past. All relevant documents had been prepared by his former lawyers. A Notice of Withdrawal was filed shortly before the commencement of the hearing. The father filed a Notice of Address for Service, and proceeded to be self-represented throughout the hearing.

3. The mother was legally represented by solicitor and counsel throughout the hearing.

4. There was an ICL who instructed counsel.

Oral Evidence

The father – Mr Tyrrell

1. The father gave short direct responses to questions and did not elaborate unless asked to do so.

2. He presented as confident, devoted to his daughter and not likely to be dissuaded from opinions held.

3. I concluded that he is close to and observant of the child.

Ms F – the father’s partner

1. Ms F was a calm and straightforward witness. She has had the misfortune of being physically attacked by the mother and her former partner late in 2015.

2. Together with the father, Ms F has been accused by the mother of neglecting the child, providing inadequate food, leaving her alone and failing to promote her welfare.

3. Despite that, Ms F has not disparaged the mother to any extent to the child. She and her daughters have warmly welcomed the child into the household.

The mother – Ms Morris

1. The mother was a wary witness.

2. Her answers to questions were almost all designed to achieve her desired outcome rather than to simply provide a straightforward and open response.

3. The response of the mother to questions relating to the many criticisms alleged to have been raised by the child about the household of the father was “All I can go on is what X told me”. It became a mantra.

4. Very little information was provided by the mother about her current household and circumstances, most importantly her current address.

The Senior Family Consultant – Ms M

1. The Family Consultant repeated her opinion about the risks to parental relationships for the child. That is, if the child returned to live with her mother she would give up the relationship with her father. If the child remained living with her father she would have some (worthwhile) time with her mother.

2. The Family Consultant was equally clear to say that the child experienced a terrible conflict of loyalties, and was put under a lot of pressure (by the mother) about coming back home to the father

3. The recommendations in the Family Report were that the child remain living with the father, that  he continue to have sole parental responsibility and that the child have limited time with the mother depending on the findings of the Court.

4. The Family Consultant did not resile from those recommendations to any extent.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. The Court must apply a presumption when making a parenting order that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.

4. The presumption does not apply in certain circumstances, and may be rebutted by evidence that satisfies the Court that equal sharing of parental responsibility would not be in the best interests of the child in question.

5. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

6. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Parental Responsibility

1. The evidence in this case easily rebuts the presumption.

2. The mother has chosen to take a particular course aptly described by the ICL in this way: “A toxic game is in play”.

3. The mother allows and encourages complaints by the child about the father and members of his household, passively listens without testing the reality or likelihood of the story told, and then pursues the complaint.

4. Whether intended or not the outcome is corrosive undermining of the relationship between the child and the father. I accept that the child pulling out eyelashes and bedwetting were symptoms of the pressure she experienced.

5. In practical terms all decision making if equally shared is highly likely to be subverted in this way. Neither party proposes that parental responsibility should be shared. It is a recognition of the impossibility of consultation and mutual respect.

1. The parent with whom the child lives should therefore be the one to make the decisions. For the reasons set out below I conclude that the child should remain living with the father.

Primary Considerations

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

1. I am confident that the child loves both her parents and that each of them loves her. The Family Consultant assessed the child having a good relationship with each of her parents.

2. The child herself expressed the view that “it would be better for her if her parents could talk to one another, but acknowledged that the parents do not like each other”.[1]

   [1] Family Report dated 4/04/2018, par 95

3. The difficulty for the child in relation to her mother is one which she cannot control and may not understand. The observation of the Family Consultant captures the problem:

   Her [the child’s] relationship with the mother is somewhat intense with [X] being the mother’s complete and utter focus.[2]

   [2] Family Report dated 4/04/2018, par 97

4. The child will do better if she remains in the household of the father where she is not driven by loyalty to criticise the mother, as she so clearly is driven to criticise the father in the care of the mother.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. There is a need to protect the child from psychological harm. There is a risk of the mother convincing the child that both of them have been victims of the father’s violence and that the child is not safe with him.

2. Victims Counselling had been arranged by the mother for the child on that basis.

Additional Considerations

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

1. The child is 12 years old and is in her first year at high school.

2. She told the Family Consultant that she wished to live with the mother and spend only a couple of hours per week with the father.[3]

   [3] Family Report dated 4/04/2018, par 142

3. I do not consider that the child felt free to express her views and feelings.

4. The Family Consultant concluded that the child felt pressured by her mother to make complaints about the father. She certainly did raise complaints during her interview.

5. However the objective evidence from third parties does not support to any extent neglect or abuse of the child in the home of the father. Those third parties include the psychologist - the child sees Ms D, her principal and class teacher from primary School, and reports from the Department of Family & Community Services. Objectively the child has been well cared for, well-nourished and loved.

6. Accordingly for a child under the pressure of loyalty demands I do not give weight to her expressed views.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The child is well loved by all members of her extended family on both sides. Unfortunately for her there is a tribal division with all maternal relatives being highly critical of the father in similar terms.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. The mother expressed to the Family Consultant her feelings of having been unjustly treated (about the child going to live with the father).[4]  This is despite the fact that the 2017 orders were made with her consent.

   [4] Family Report dated 4/04/2018, par 145

2. Her oral evidence confirmed that the mother feels excluded from what she perceives to be her rightful role as the child’s mother.

3. Objectively the father has made decisions about the education and health, both physical and emotional, of the child which have produced good outcomes for her. The mother does not accept that he has.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. To change the residence of the child would be to grant her expressed wish and also to quickly eliminate the father from her life.

2. She would lose her relationship with Ms F and her daughters which has been a great source of fun and enjoyment for the child. I accept the evidence of Ms F about the child cooking for everyone and greatly enjoying family experiences together.

3. Even under the pressure she was, the child described herself to the Family Consultant as “getting on alright” with Ms F and her three daughters.[5]

   [5] Family Report dated 4/04/2018, par 91

4. I conclude that the child could not bring herself to deny the emotional reality of her positive relationship with Ms F and the three young women.

The practical difficulty and expense of a child spending time with and communicating with a parent

1. The father has proposed that the child be free to telephone her mother when she wishes. That is appropriate given her age.

2. That order will be made but does not mean that the mother should initiate calls or put the child under pressure to make them.

3. I am confident that the father will be able to support the child ringing when she wants to and not ringing if she felt pressured to do so.

4. Likewise, the child should be free to ring her father at any reasonable time when she is staying with her mother.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The family Consultant gave an opinion about the mother which reflects on her capacity to meet the needs of the child:[6]

   The mother appears to have no insight into why [X] went to live with the father. She feels she has been unjustly treated and cannot identify any issues with her own behaviour that could have led to [X] living with the father. This lack of insight is likely to mean that the mother will continue to seek that [X] be placed in her care and will take no responsibility for her role in what has occurred. She is likely to continue to undermine [X’s] relationship with the father and justify her actions by speaking negatively of him and encouraging [X] to reject him.

   [6] Family Report dated 4/04/2018, par 145

2. That may well be the case. However whether or not the mother does have insight into the impact on the child of the mother’s actions the outcome is the same.

3. If the mother has no insight she is unable to meet the need of the child to love whoever she wishes and to openly express her feelings.

4. If the mother does have that insight she is choosing to alienate the child from her father in order to meet her own need to be everything to the child.

5. Presently the child feels guilty and disloyal to the father when she complains about him to the mother, but would feel guilty, disloyal and inconsistent if she ceased complaining to the mother about the father.

6. It is intolerable for her in the long term.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. There has been family violence before and after separation in March 2014.

2. On 2 March 2016 the mother was convicted in the Local Court of assault occasioning actual bodily harm and stalk/intimidate in relation to Ms F, the father’s partner. The mother’s then partner Mr C was likewise convicted.

3. The mother asserted that the father perpetrated family violence against her during the relationship between the parties. There was some evidence about that for instance an alleged assault in 2013 where the father put a pillow over the mother’s face and punched her.

4. In January 2015 the mother was charged with assaulting the father, charges were subsequently dropped.

5. There was an implicit acceptance through the way the case was conducted that the nature of the relationship was less significant than events occurring since final orders were made. A practical course given that the parties agreed, about three years after separation, for the child to live with the father.

6. The mother also asserted that the father verbally abused and denigrated her to the child post-separation. In her affidavit the mother reported derogatory remarks about her that the child said the father had made, such as “tell your junkie mother to have you there at 3.00 pm…”[7] The father denied saying those words.

   [7] Affidavit of the mother filed 20/12/2018, par 8

7. There were other insulting remarks reported, for instance, “what’s your dickhead twit mother doing here?”[8] but given that the affidavit of the mother consisted mainly of complaints said to have been made by the child about her father it is difficult to distinguish between truth, exaggeration and fabrication.

Any other fact or circumstance that the court thinks is relevant

[8] Affidavit of the mother filed 20/12/2018, par 42

Address of mother

1. It is of considerable concern that the mother was unwilling to disclose her address to the father.

2. The father should know where the child is staying and be able to respond in the event of an emergency.

3. Further it is an unreasonable burden for a child to be expected to conceal from her father where she stays and perhaps who other members of the household are from time to time.

4. Orders for time and communication will be subject to the mother providing her contact details to the father including her residential address.

Mother’s former partner

1. In the 2017 orders there was a restraint on the mother permitting the child coming in contact with or communicating with Mr C.

2. In her affidavit sworn in December 2018 the mother stated that she was not currently in a relationship and certainly not with Mr C. Further the mother stated that she had had no contact with Mr C since the end of 2016. [9]

   [9] Affidavit of the mother filed 20/12/2018, par 87

3. The mother went on to say that given his criminal history, which she had not known about when she took up with him, she regarded the relationship with Mr C, in retrospect, as a mistake.[10]

   [10] Affidavit of the mother filed 20/12/2018, par 88

4. In March 2018 the mother had admitted to the Family Consultant that she had seen Mr C in October 2016 but denied reconciliation in January 2017 despite information produced by NSW police to that effect.

5. In April 2017 there is a report to police by Mr C of reconciliation for three weeks in January 2017 for himself and the mother. Mr C sought police assistance because after he moved away, the mother sent “numerous text messages and Facebook messages” in the order of 10 messages every five minutes. There were 400 messages over 10 days, some threatening.[11]

   [11] Exhibit 8

6. Police made contact with the mother about the allegations. The mother said she was moving to Victoria.

7. For the mother to blandly repeat in her affidavit that she had not seen Mr C since end of 2016 raises the possibility that a relationship, hostile or otherwise, continues between the mother and Mr C.

8. For that reason the restraint from the 2017 orders is repeated here.

Conclusion

1. I have concluded that the child has settled well in the household of the father although it was a  transition for her to make. Although the father went about it in a considered way, moving into the household of Ms F and her daughters was a big adjustment for the child.

2. Most significantly the father has always supported the relationship between the child and the mother despite the provocation of the assault by the mother and Mr C on his partner in 2016 and the continuous culture of complaint by the mother about his care and management of the child.

3. In determining this case there is a delicate balance between providing for a safe stable and emotionally supportive home base for the child and also providing sufficient time for her with the mother whom the child dearly loves.

4. Too much time, and the child will become uncertain about return to her father’s home and stressed by her mother’s determined wish to have the child with her as much as possible.

5. Too little time, and she will suffer simply from the lack of enjoyable occasions together, especially during school holidays.

6. For that reason alternate one night weekends and time in each holiday period are provided for, with a progression to a two night weekend commencing in 2020.

7. Orders are made accordingly.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 20 August 2019.

Associate:

Date:  20 August 2019