Vine and Harper

FAMILY COURT OF AUSTRALIA

VINE & HARPER

[2008] FamCA 561

FAMILY LAW –CHILDREN - Best interests

Family Law Act 1975 (Cth)

APPLICANT:

Ms Vine

RESPONDENT:

Mr Harper

FILE NUMBER:

PAF

2005

DATE DELIVERED:

18 July 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

29-31 January 2008, 3 June 2008 and 2 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Hausman

COUNSEL FOR THE RESPONDENT:

Ms Haughton

Orders

The parties have shared parental responsibility for their child M Harper-Vine (“the child”) born on … October 2002.
During school term the child live with the father from Friday afternoon after school until the following Monday morning concluding at the commencement of school (Tuesday morning if the Monday is a public holiday), with the father to pick up the child from school at the commencement of the period and return the child to school at its conclusion.
In addition, during school term the child shall live with the father from the conclusion of school on the Monday (from 3.00 pm Monday if the Monday is a public holiday) following the weekend in which the child lives with the mother until the commencement of school on the following Wednesday morning with the father to pick up the child from the child’s school at the commencement of the period and return the child to the school at the conclusion of the period.
That until December 2008 during each mid term break the child is to live with the father for one week, and in the absence of other agreement between the parties the first week thereof. Should a mid term break exceed three weeks in length then in addition to the first week thereof for a period of four days ending the day prior to the child recommencement of school following the break.
During the Christmas school vacation period for 2008 the child is to live with the father, in the event that the holiday period amounts to 6 weeks, for a period of three weeks taken in one week lots and interspersed with a period of one week during which the child shall live with the mother. In the event that the holiday period amounts to eight weeks, give or take three days, the child is to additionally live with the father during the last week of the holidays excluding the two days before the child recommences school. The dates for the period are to be agreed between the parties prior to the 30 November 2008, and in the absence of their agreement the child shall live with the father for the first week of the holidays and thereafter alternate weeks until the periods referred to above have been taken.
The parties are to alternate the care of the child for the Christmas period in each year with the father to have the care of the child from 5.00 pm on Christmas Eve until 5.00 pm on Boxing Day in 2008 and each even numbered year thereafter and the mother to have the care of the child during the like period in 2009 and each odd numbered year thereafter. The care period of the parent who does not have the child on Christmas Days specified in this clause is suspended during that period.
From the commencement of school in 2009 the child is to live with the father for one half of each school holiday period and in relation to mid term holidays, in the absence of other agreement, for the first half thereof. During the Christmas school holiday periods the child, unless otherwise agreed between the parties, is to live with the father alternately the first and second half thereof with the child to live with the father and during the second half of the holidays in 2009.
Whilst the child is in the care of the father the mother may reasonably communicate with the child by telephone each second evening that the child is in his care between the hours of 5.30 pm and 6.30 pm and the father may likewise reasonably communicate with the child by telephone each second evening that the child is in the mother’s care between the hours of 5.30 pm and 6.30 pm. Each parent shall facilitate and encourage such communication and allow the child some privacy in which to talk to the other parent.
That in the event the father does not otherwise have the care of the child on Fathers Day in any year, the child shall live with the father from 9.00 am until 5.00 pm on that day and in the event that the father has the care of the child on Mothers Day in any year the child will live with her mother from 9.00 am until 5.00 pm on that day.
In the event that the mother seeks to take the child overseas the father will not unreasonably withhold his consent for such travel for a reasonable period. The mother will provide the father in that event with details of her intended itinerary and proposed accommodation details at least 56 days prior to her intended departure, and the father will advise the mother within five days of either his consent or objection to such request. Any proposal for such a journey shall be accompanied by a proposal for time proposed to be substituted for the time that the child would not live with the father by reason of the proposed trip. In the event that the parties cannot agree on such a trip they are to attend on a Family Consultant of this court or such other counsellor as they agree within 10 days of such refusal to see if agreement can be reached before any further application is made to this Court in relation to the matter.
That the parties attend such course in parenting after separation as is nominated by the Director for the time being of the Child Dispute Services of this Court. The parties are to share the costs of such a course.
The parties and/or mother attend such therapy sessions as are arranged by the child’s therapist when that therapist reasonably requires such attendance for the purpose of such therapy.
I direct that 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.
Each party is at liberty to attend any educational event, lessons or sporting activities in which the child is enrolled, notwithstanding that at the time of such an event the child may be in the care of the other party.
Each party shall facilitate the attendance of the child at any educational or sporting or other event arranged for her with the consent of both parties.
On the birthday of each parent the other parent will, in the event that that parent has the care of the child on that day otherwise pursuant to these orders, arrange for the child to be with the parent whose birthday it is on that day for the period from 9.00 am on the day until 9.00 am on the following day, and for that period the non celebrating parents period of care is suspended.
That the parties create a communication diary to be completed during each care period and handed over at each changeover, to include details of activities undertaken by the child and referring to any health issues or matters of concern or achievement.
During the period from July 2008 to August 2009 the mother shall be entitled on 56 days notice to nominate one period of three weeks during which she can holiday with the child, and the father’s weekend care periods for that period will be suspended on the proviso that other periods of care are substituted therefore.
That each party do all things and give all necessary consents and authorities necessary to enable each parent to receive all reasonable information relating to the child’s attendance and progress at school and to receive notices newsletters, reports, photographs and information regarding the child’s educational progress from the school which she attends. Likewise, each party is to give all necessary consents and authorities necessary to enable the other party to consult a therapist or medical practitioner or health care professional treating the child and to procure such information as that party may seek in relation to the child’s condition, treatment and or prognosis.
Each parent shall give all necessary consents, information and authorities necessary to permit the other to attend events at the child’s school to which parents are invited.
The handover of the care of the child shall take place, when it does not take place at school, at B Park or such other place as the parties shall agree from time to time.
That each of the parties be restrained from using any other name for the child and in particular each party shall use the full surname Harper-Vine for the child at all times and for all purposes.
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.
Each party shall pay and bear their own costs.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAF 51 of 2005

MS VINE

Applicant

And

MR HARPER

Respondent

REASONS FOR JUDGMENT

Introduction

This is a case in which the declared desire of both parents is for their daughter to have a close relationship with each parent. However, their own relationship, particularly the mother’s unresolved feelings about the end of the relationship with the father and his re-partnering, seem to constantly get in the way of that happening. This problem is combined with the nature of a not easily biddable child, particularly it seems to the mother’s bidding. The evidence suggests that the father too has contributed to this condition whilst not himself experiencing it when the child is in his care. This mixture means that the Court must make decisions that the parents are unwilling or unable to make together for the promotion of their child’s welfare, and in an endeavour to prevent the further abuse of the child by their conflict.

Background Facts

In December 1962 the mother was born and is presently aged 45 years.
In September 1964 the father was born and he is presently aged 43 years.
In 2001 the parties commenced a relationship.
In April 2002 the mother moved into the father’s home at P.
On 3 October 2002 the father takes annual long service leave and other leave until the 18 January 2003 to care full time for the child while the mother returns to work after the birth of the child.
In October 2002 the child is born.
In January 2003 the father continued his leave but it became unpaid parental leave until 24 May 2003 and he worked two days per week during this time.
In November/December 2003 the parties separated when the mother and the child moved out to live M.
In April 2004 the mother took the child to England for about three weeks.
In August 2004 the mother’s solicitors write to the father and propose that “her sole desire is to see you and [the child] develop a close father and daughter relationship”. Her deeds then and subsequently however did not match her words and the Mother offers contact once per fortnight from 9.00 am to

5.00 pm
on Saturday. The mother seeks an amount of $300.00 per week child support when the father is then paying $200.00 per week. The father advises that the time proposed is too limiting and that the amount sought is beyond the Child Support Agency estimate of the amount payable for child support.
On 4 December 2004 the father attended a barbeque at the mother’s home and the child informs the mother that the father had a “date” and the father informs the mother that he has formed a new relationship with “Ms N”. The mother later telephoned the father and said “I want some space. I don’t want you to see you. I don’t want you to see [the child] until 1 March next year”. Later, the mother goes to the father’s home and asks to speak with Ms N and subsequently assaults the father and his partner in the presence of the child.
On 25 December the mother permits the father to have the child for a period of two hours but he does not again see the child until February 2005 when the mother takes the child overseas without his consent for a period of six weeks.
On 28 December, just before the mother’s departure for the United Kingdom, without the father’s knowledge or consent, the father contacts the mother and says that he wishes to ring the child every day. The father was informed by the mother that he could ring between 6.30 pm and 7.00 pm. The mother informs the father that she will meet with him in two weeks time to discuss ongoing contact but leaves for the United Kingdom two days later for six weeks.
In a letter dated 30 December 2004 new solicitors instructed by the mother write to the father offering him contact alternate Saturdays but at a reduced time of noon to 5.00 pm, and they proposed that the contact be exercised at the mother’s home. They confirm that the mother has asked that he not see the child for three moths to give her and the child “space”. The request for $300.00 per week child support is repeated and they observe that the mother wants to change the child’s surname to Vine since “… there is little ‘connection’ for my client with the surname “[Harper]” which [the child] carries”.
It is on the 30 December that the father finds that the mother has gone to England, information conveyed to him by the child’s nanny who resides in the mother’s home.
In January 2005 the father commences parenting proceedings seeking to have the child in his care from 4.00 pm to 6.00 pm each Tuesday and Thursday and alternate weekends from 5.00 pm Friday to 3.00 pm Sunday.
On the 25 February 2005 interim orders are made.
On the 22 September 2005 final orders are made:
UPON APPLICATION TO THE COURT THIS DAY IT IS ORDERED:
1.That all existing orders in relation to the child of the parties, namely [the child] born […] October 2002 (“[the child]”) be discharged.
2. That [the child] live with the mother.
3.That each of the parents have responsibility for making decisions in relation to the long-term care, welfare and development of [the child].
4.That each parent have sole responsibility for making decisions in relation to the day-to-day care, welfare and development of [the child] when she is in the care of that party.
5. That the father have contact with [the child] as follows:
5.1from 3:00pm until 5:00pm each Tuesday, with the father to collect [the child] from day care and return her to the mother’s home
5.2each alternate weekend from 5:00pm on Friday until 5:00pm on Sunday
5.3for 1 block period of 7 days in 2005, on dates to be agreed by the parties or, failing agreement, to be nominated in writing by the father no later than 28 days prior to the first day of such contact period
5.4for 3 block periods of 7 days in 2006, on dates to be agreed by the parties or, failing agreement, to be nominated in writing by the father no later than 28 days prior to the first day of each such contact period

5.5thereafter for one half of all school holidays, as agreed by the parties or, failing agreement, for the first half in even-numbered years and the second half in odd-numbered years, provided that this order is subject to order 5.7
5.6by telephone on a liberal and flexible basis, including but not limited to each Monday, Wednesday and Friday between 5:30pm and 6:00pm
5.7in the event that the parties are unable to agree upon arrangements for Christmas and the Christmas school holidays when [the child] commences her formal education:
5.7.1from 5:00pm on Christmas Eve until 3:00pm on Christmas Day in 2005 and each alternate year thereafter and
5.7.2from 3:00pm on Christmas Day until 5:00pm on Boxing Day in 2006 and each alternate year thereafter

5.8on the father’s birthday each year at times which the parties agree or, failing agreement, from 11:00am until 3:00pm on a non-school day and from the conclusion of school until 7:00pm on a school day
5.9on [the child’s] birthday each year at times which the parties agree or, failing agreement, from 11:00am until 3:00pm on a non-school day and from the conclusion of school until 7:00pm on a school day in the event that [the child] is not otherwise in his care pursuant to these orders
5.10at such other times as the parties may agree

6.That, in the event that [the child] is in the care of the father pursuant to these orders on her birthday or the mother’s birthday, the father shall return her to the mother for an agreed period of
4 hours; or from 11:00am until 3:00pm failing agreement, unless the birthday falls on the last day of a contact period in which event the father shall return her at 3:00pm or such other time as the parties may agree.
7.That the father keep the mother informed of the identity of the occupants of his home from time to time and of the locations where [the child] will stay overnight while she is in his care pursuant to these orders.
8.That the mother keep the father informed of any school, sporting, cultural or social activity in which [the child] is involved during any period when she is in his care pursuant to these orders.
9.That each party keep the other informed of his or her current residential address and telephone numbers.
10.That each party do all things and give all necessary consents and authorities necessary to enable each parent:
10.1to receive all reasonable information relating to [the child’s] attendance and progress at day care
10.2to receive notices, newsletters, reports, photographs and information regarding [the child’s] educational progress from the school which she attends from time to time
10.3to attend event at [the child’s] day care centre or school to which parents are invited

11.That the father will pay the child care centre fees in respect of any days when [the child] is in his care, pursuant to orders 5.3 and 5.4, when she would otherwise be at day care.
12.12.1 That neither party will remove [the child] from the Commonwealth of Australia without the written consent of the other party or an order of the court.
12.2That the father shall not withhold his consent unreasonably to any request by the mother to take [the child] to the United Kingdom to visit her family.

13.That the parties do all things necessary to ensure that [the child] spends an agreed period with her father on Fathers Day and her mother on Mothers Day.
14.That, for the purposes of implementation of these orders, the father shall collect [the child] from and return her to the mother at her home, unless otherwise specified in these orders or agreed by the parties from time to time.
15.15.1 That each of the parties do all things and execute all documents required to cause [the child] to be know for all purposes as [M Harper-Vine].
15.2That each of the parties be restrained from using any other name for [the child] and, in particular, each party shall use the full surname [Harper-Vine] for [the child] at all times and for all purposes.
15.3That the mother meet all costs of such alteration to [the child’s] surname.

16.I make additional orders pursuant to Section 65DA2, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

On 21 October 2005 the father files a contravention application alleging non compliance with the orders.
On 25 October 2005 the father files a contravention application alleging non compliance with the orders
On 3 November 2005 the father files a contravention application alleging

non compliance with the orders.
In December 2005 there is a variation to the Orders of the 22 September 2005 made by consent.
On 30 December 2005 the father learns that the mother has left the Australia and files an application.
On 19 July 2006 consent orders are made by Judicial Registrar Johnston:
1.That Orders made 22 September 2005 (“the Orders”) in the Family Court Parramatta relating to the child [M Harper-Vine] born […] October 2002 be varied as follows:
1.1That Order 5.1 of the Orders be vacated.
1.2That the father spend time with [the child] from 3.00 pm until 5.00 pm each Tuesday with the father to collect [the child] from daycare or school and return her to the mother’s home subject to the father providing notice to the mother by email or telephone of his intention to exercise that care period by 6.00 pm Wednesday in the week preceding the care period.
1.3That during all school holiday periods commencing in 2007, including the care periods provided in Order 5.3 of the Orders, 1.2 of these Orders and Order 5.2 of the Orders be suspended.
1.4That for the purpose of the father spending time with [the child] pursuant to Order 5.4 of the Orders, that such block period be inclusive of the father’s weekend that would otherwise fall at the commencement or conclusion of such period. It is agreed such period in 2006 will commence either from 5.00 pm Friday and conclude at 11.00 am the following Saturday, or from 5.00 pm Sunday and conclude 8.00 am the following Monday.
1.5That [the child] live with the mother from 29 July 2006 to 11 August 2006 and the father’s care period otherwise provided by the Orders be suspended during that period.
1.6That the father spend time with [the child] from 9.00 am
6 September 2006 to 5.00 pm 8 September 2006 in substitution of the care period from 28 July 2006 to
30 July 2006.
It is noted the father is to have the care of [the child] on the weekend of 8 September to 10 September pursuant to the Orders.
It is further noted that the father will pay daycare fees for [the child] for the period 6 to 8 September 2006.
2.That the Application for Final Orders be adjourned to Registrar’s List at 10.00 am 15 August 2006.”
On 8 January 2007 the child is hospitalised following an allergic reaction to the eating of peanuts.
On 7 February the child is placed in therapy by the mother with Ms R, a psychologist.
On 9 February the father is advised that the child is to see consultants at an allergy unit at Royal Prince Alfred Hospital.
On 13 February the mother filed an interim application seeking to reduce contact between the child and the father.
The father files a response to that application seeking its dismissal.
On 26 February the mother informs the father that she has taken the child to see Ms R.
On 28 February 2007 interim orders in the following terms are made:
“1.That the parties shall do all things necessary to jointly appoint Dr [H] as the joint expert (Chapter 15) to interview the parties and [the child] born […] October 2002, and any other significant adult who may be deemed relevant to the Report, including attending upon Dr [H] for the purpose of interviews as appointed by Dr [H] for the preparation of the Report which shall address the following matters as well as any other matter Dr [H] may consider relevant to the welfare of the child:
1.1the nature of the relationship of the child with each parent;
1.2the attachment of the child with each parent;
1.3the capacity of each parent to provide for the emotional needs of the child;
1.4the likely effect upon the child of any changes in the child’s circumstances including the amount of time the child is to spend with each parent;
1.5The attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents; and
1.6How each parent should address the difficulties, if any, at times of changeover for care periods between the parties.
2.That the parties be equally responsible for the costs of the Report of Dr [H], and shall without delay satisfy any request for payment by Dr [H].
3.That both parties have leave to file any Amended Application or Response by 1 May 2007.
4.Liberty to each party to restore the matter on 7 days notice.
5.That the matter be adjourned to the Duty Registrar’s list on 28 May 2007 at 9:30 am in relation to the parties pending Form 2 and Form 2A filed 13 February 2007 and 23 February 2007 respectively.
6.That Order 5.5. of the Orders of 22 September 2005 be suspended in relation to the Easter/April school holiday period in 2007, and in lieu thereof the father’s care period for [the child] shall extend to Monday 5 pm on the weekend only of 20 and 21 April 2007.
7.It Is Noted that each party authorises Dr [H] to communicate with [Ms B], and any other professional person relevant and who has been involved with [the child], and each party shall provide Dr [H] with any Affidavit material or filed material within 10 days.
8.Pending further Order the father shall spend his overnight care periods with [the child] at his home at [P] or his parents home at […], or as otherwise agreed between the parties in writing.”
From February 2007 handovers of the child take place at B Park with greater success for event free handovers than those that occurred when the child was picked up from the mother’s home.
On 1 May 2007 the mother filed an amended application for final orders seeking orders in the following terms:
“1 That the Orders of 22 September 2005 (the orders) be varied as follows:
1.1Omitted
1.2Omitted
1.3Omitted
1.4Omitted
1.5Omitted
1.6That Order 5.5, 5.7, 5.8 and 5.9 of the Orders of
22 September 2005 be vacated.
1.7That on [the child’s] birthday each year that in the event that either party does not spend time with [the child] on that day, the person who has [the child’s] care will return [the child] for a period of not less than 2 hours to the other party if it falls on a weekend day from 11.00 am until
1.00 pm, or on a weekday from the conclusion of school until 5.30 pm, or such other time as agreed.
1.8In the year 2007, the father have the care of [the child] for two 7 day block periods, such periods to coincide with school holiday periods, to commence and conclude on such dates as agreed between the parties and failing agreement as nominated by the father 56 days prior to such periods commencing. In the event the father fails to nominate such periods within 56 days, as nominated by the mother thereafter.
1.9Commencing in the year 2008 and until [the child] turns 8, for three 7 day block periods, such periods to coincide with school holiday periods, to commence and conclude on such dates as agreed between the parties and failing agreement as nominated by the father 56 days prior to such periods commencing. In the event the father fails to nominate such periods within 56 days, as nominated by the mother thereafter.
1.10That commencing after [the child] turns 8, the father have care of [the child] equal to half the school holiday periods as they occur at such school as [the child] attends, as agreed between the parties, and failing agreement, for the first half of the holidays in even numbered years and the second half in odd numbered years, subject to order 5.7 of the Orders.
1.11That the parties alternate the care of [the child] for Christmas each year to commence with the father to have the care of [the child] from 5pm Christmas Eve to 5pm Boxing day in 2008, and each even year thereafter.
1.12That the fathers care periods otherwise provided by these orders, other than for order 1.10, above be suspended from 5pm Christmas Eve until 5pm Boxing Day each odd year when [the child] is to be in the care of the Mother.
2That in the event the father does not otherwise have the care of [the child] on Father’s Day in any year the mother make [the child] available to the father from 9am to 5pm on that day.
3That in the event the father has the care of [the child] on Mother’s Day in any year the father return [the child] to the mother from 9am to 5pm on that day.
4In the event the mother seeks to take [the child] overseas the father will not unreasonably withhold his consent. In the event the mother seeks to take [the child] overseas (other than in emergency circumstances where such notice cannot be given) she will provide the father details of her intended itinerary and the proposed accommodation details at least 56 days prior to her intended departure, and the father will respond with his consent or objection within 5 days of receipt of such request. In the event the father objects to the request the parties will attend counselling within 10 days of the father’s response with a view to resolving the issue between them.
5That the parties attend a parenting course by an accredited course provider within 3 months of the date of any Orders.
6That the parties continue counselling in an effort to discuss the issues of the care changeovers, and other issues in respect of [the child’s] welfare in an attempt to come to a resolution about the best way to deal with the same. In the event either party requests the other to attend such counselling, the other will attend at such session and further sessions as recommended by the counsellor nominated by the requesting party.
7That during weekend periods when the father has the care of [the child] he take her to any lessons or sports in which she is enrolled, and to other activities that the parties have agreed that she attend.
8That both parties be at liberty to attend any lessons or sporting activities in which [the child] is enrolled, and any other activities as agreed, regardless of whose care period it is at the time of that activity.
9That in the event the father has the care of [the child] on the mother’s birthday, and such day falls on a weekend or block care period, he return her to the mother for at 9am on that day and his period of care be suspended until 9am the following day.
10That in the event the mother has the care of [the child] on the father’s birthday, and such day falls on a weekend or block care period, she provide [the child] to the father at 9am on that day until 9am the following day.
11That the mother be at liberty in the 2007 year to nominate 3 weeks during the year where Tuesday and weekend care periods be suspended to allow the mother to take [the child] on holidays. Subject to the mother giving the father 28 days notice of her intention in writing the 3 weeks period of suspension will be as nominated by the mother.
12That commencing in 2008, during school holiday periods, care periods provided by order 1.2 of the orders of 19 July 2006 (Tuesday care periods) and order 5.2 of the orders (weekend care periods) be suspended.
13That for the purpose of the father having holiday care periods with [the child] pursuant to these Orders, such block period to be inclusive of the father’s weekend that would otherwise fall at the commencement or conclusion of such period, and not in addition to such periods.
14That the mother be at liberty to communicate by telephone with [the child] each day when [the child] is in the fathers care overnight for block periods and on each Saturday during weekend care periods. Such communication to be through the father’s mobile phone or landline as nominated.
15That the parties create a communication diary to be completed during each care period and handed over at each care changeover with each parent to include details of activities undertaken by [the child], health issues, matters of concern or achievement.
16That during any period when [the child] spends block periods with the father, that the father be personally available to care for [the child] and be on leave for those periods.
17That each party notify the other as soon as practicable and in any event within 2 hours of any issue that arises in respect of [the child’s] care or welfare while in their respective care including but not limited to matters of an important medical nature.
18That both parties be restrained from making denigrating remarks about the other to [the child], or discussing with [the child] care arrangements other than for providing the care arrangements pursuant to these Orders.
19That the father pay the mother’s costs of and incidental to this Application.
On the 28 May Dr H’s report issued.
On the 28 May Interim Orders were made:
“1. That Order 8 of the Orders of 28 February 2007 be vacated.
2.That Order 5.5 of the Orders of 22 September 2005 be suspended in relation to the July School Holiday period in 2007, and in lieu thereof the father’s care period for [the child] shall be:
2.1 from 5pm 29 June 2007 to 5pm Monday 2 July 2007; and
2.2from 9am Friday 13 July 2007 to 5pm Sunday 15 July 2007
in substitute of other care periods to which he was entitled.
3.That the Parties Form 2 and Form 2A filed 13 February 2007 and 23 February 2007 be otherwise removed from pending cases list.
IT IS noted that the father has consented to Order 2 as Dr [H’s] report is not available.”
On 21 September the mother files an interim application for a stay of orders 5.5 and 5.7 of the order made on the 22 September 2006.
In September 2007 the father retires from the public service.
On 3 October 2007 the mother’s interim application is dismissed and until further order the parties have joint parental responsibility.
In January 2008 the father and his partner separate.
In January 2008 the child spends one week of block time with the father.

The Issues

During what times the child of the parties live with each of them.

Credit

In this case the mother seemed to demonstrate a continuing difficulty with the ending of the relationship with the father. Her answers were defensive and she seemed unable to concede that she had ever behaved in a way which could be improved upon. Her evidence was at times redolent with emotion. The father was more inclined to acknowledge when he had handled things badly and concede that he could have done things better. The video which was produced showed him to be patient, and I think long suffering, and the mother somewhat ineffectual in dealing with the child. I believe that this may have been a reflection of her antipathy to the father and her lack of respect for the need of the child to have a meaningful relationship with the father and her obligation to achieve that, notwithstanding the tantrum of a very young child. I could not accept her assertion that the video was made without her knowledge. I agree with Ms Haughton that the father impressed as a witness of truth.

The Mother

The mother concedes under cross examination that the father has shown dedication to his daughter. She concedes that he had a loving and close relationship with his daughter and looked after her well during the period of time when the father had taken leave in the earlier stages of her life. The mother concedes that the father has cared for his daughter alone. The mother’s concessions were made grudgingly and defensively and at every point she sought to limit by her answers the extent of the father’s involvement with the child and in effect minimise its importance.
She asserted that she never wanted the child not to see her father but her conduct did not match her stated intentions. Whatever its motivation (and on the evidence I believe it largely to be a response to the termination of the relationship and his re partnering) it had the effect of limiting that contact.
The mother notwithstanding her repeated avowals that she wanted an appropriate relationship between the child and her father nevertheless could only justify the extremely limiting contact proposed by her as “the creation of structure”. That may have been part of it but it was also designed to limit that contact.
That attempt to distance her daughter from the father is also evident in her proposed change of the surname given to the child by consent of both parents on her birth.
I think that whilst time and distance from the breakdown of the relationship may have mellowed the mother somewhat, it is concerning that she has demonstrated in her interactions with the father a capacity to continue this conflict.
One would have hoped that given that I find each of them intelligent human beings and each devoted to their daughter, that they might have been able to give their professed desires to benefit their child real substance by an end to what has been obviously a distressing conflict for the child.
On the brighter side, I must say notwithstanding a continuing demonstration by the mother of angst for the father, she has made some effort to accommodate additional time for the father with the child and has I think been assisted by the therapy she has received and the insights she has gained through the reports received and the evidence unfolded in these proceedings. She has amended the orders she has sought in order to propose some increased time for the child with the father and albeit that her first proposal was somewhat minimalist I consider this a forward move, albeit that I propose making more extensive orders.

The Father

He was personable and only occasionally defensive. On occasion (such as the event shown on video) when provoked to frustration he maintained exemplary calm and purpose. Having said that, I repeat what I said in the preceding paragraph. Of the two parents he seemed more capable of taking the lead in an ending of conflict but chose instead to adopt a somewhat defensive attitude. He conceded in his oral evidence that he was partly to blame for that conflict and that on occasion he could have behaved in a different and better way.
He offered frustration with the mother and her attitude as a reason for his conduct. He concedes that there are still problems in communication between himself and the mother although those problems have diminished. For example, they were able to discuss and agree about arrangements for the child to holiday in the United Kingdom. Litigation I suppose never brings out the best in parents and this litigation is no exception.
I accept his evidence that the child does not misbehave for him in the same way as she does for the mother. I accept that he is capable of caring for the child. He gave a response which was balanced to questions of his perception of the mother as obstructive of contact. That is to say that he thought that on occasions she had been, but on other occasions she had been accommodating of change to meet the exigencies of the moment, for example permitting the father to turn up at the child’s dancing and swimming lessons.

Other Evidence

I was asked to observe a video taken, the mother says without her knowledge, of an incident of handover of the child at her home, to the father. The taking of the video was not I think without her knowledge but in any event was of an occasion in which the father showed great patience when the child had a tantrum on handover and seemed to desire to negotiate a change in contact with the father. The mother was not observed to be particularly supportive in the situation and was repeating, and thereby reinforcing, the negative comments made by the child expressing her desires.
The attempts she made at encouragement were flat and unenthusiastic and would have been seen in my view by the child as representing those attitudes on the part of the mother.

In addition, it is noticed that when an unidentified person picked up the video camera, which was apparently located on a table at the end of the hall, and proceeded to the front door to take pictures from there, the mother turned and said words to the effect “stay back or he will see you”.
In any event, the sort of behaviour of the child at that time is now a relic of history and the video seemed to me to be unsupportive of the mother in the present case. The child was firmly but appropriately dealt with by the father and the tantrum seemed to abate upon her being put into the car by him.
Ms R, the child’s therapist, presented evidence in written and oral form.
She reported in February 2007 that the child displayed controlling and aggressive behaviours toward the mother and had tantrums.
In June 2007 she reports that the maladjusted behaviour of the child had lessened but was still evident in sessions with the child and, on report, at home.
She reported in November 2007 on sessions she had had with the child’s teachers who say that the child is happy when being picked up by her mother and her father. The mother concedes that the child is happy when picked up by her father.
At Trial Ms R gave oral evidence. She confirmed that since her report she had observed improvement in the behaviour of the child. She noted that improvement came in October and November of 2007. She noted that in the therapy session she gave information on the child’s behaviour to the mother and advice and tips on how to handle problems. She noted the mother had also consulted her concerning her own need to develop her own confidence. This recognition by the mother of her need for help, and her determination to seek it, is to be commended.
Ms R offered a view that it was difficult to say how long it might be for the child to overcome the problems she perceived with the child and the mother but that it might be a total of 12 to 18 months.
In her oral evidence Ms R confirmed that in an interview with the child she said she had no worries about her mother or her father, and had no nightmares.
A Court Expert Report was prepared by Dr H in May 2007 which report was supplemented by his oral evidence given at hearing. There had been changes of significance between the time of the report and the hearing including the end of the relationship between the father and his then partner. His observations in his written report included:
a)That the child presented in an age appropriate manner. She was a bright and creative 4½ year old at that time. He observed loving and playful interactions with both parents. There was no evidence that she was fearful of handover between her parents. She was seen to be highly expressive and somewhat wilful.
b)Her primary attachment was to her mother and she was also seen to have a positive attachment to her father. Although Dr H said that she was too young to comprehend or express a clear wish regarding her circumstances, it was evident that she missed her mother when she was away from her care.
c)Both parents were seen to respond appropriately to their daughter and each demonstrated an appropriate attitude to the responsibilities of parenthood. Significantly, he observes that since the parties’ separation there had been a mutual absence of trust and respect of and for each other and there had been difficulties in communication and problem solving. The behaviour of each served to amplify the resistance of the other. Both of them contributed to this unfortunate situation.
d)The child seemed to benefit from interactions with each parent. The Doctor formed the view that the child was adequately cared for whilst in the care of each parent.
e)Referring to a report of Ms R, he noted that whilst that report recommended some reduction in contact, it had been made without the benefit of her having any discussion, observation or contact with the father.
f)Overall, the Doctor supported the view that the child should have more extensive contact with the father. It was proposed by the father at that time to relocate to the suburb of M. The Doctor said that this proposed move would allow a shared care arrangement.
It is noted that the father had not moved at the time of the hearing and said although it was an option, he had not yet committed to it. I have made my decision on the basis therefore that he will continue to reside at his home in P.
Dr H gave oral evidence at Trial. In that evidence he also emphasised that the misbehaviour of the child was not assisted by the ongoing parental dispute and the lack of respectful communication between the parents and to which I would add respect (properly demonstrated rather than just articulated) of the importance of each of them in the child’s life.
He gave evidence of his disappointment that the parties had not moved to enter into a new phase of discussion and, if necessary, joint counselling to improve their capacity to communicate, although it is noted that that capacity although weak is not non existent. He emphasised the need for the parties to be child focussed and said that if that was the case there would also be need for them to be flexible in their arrangements for the child to meet her changing needs.

Submissions

The mother offered written submissions augmented by oral submissions. At the time of the making of submissions two emails were tendered to the Court being communications between the parties. The first such email was that of the father to the mother seeking a meeting, noting that he had now had discussions with Ms R and wanted to discuss the child’s general progress and education. The reply was one from the mother agreeing to such a meeting with an independent facilitator in the first instance. The exchange is encouraging of the view that a dialogue between these parties is possible and each of them is prepared (although on the part of the mother somewhat hesitantly) to engage in such dialogue. It gives me some hope for the future of this child that the parents are able to instigate such discussion. I encourage them to cast aside their hesitation and apply themselves to real discussion and communication. If they, as I think they do, love their child enough, and have developed through the court experience some insight into the effect of their behaviour, they will be able to continue that process with success, albeit begun at the last hour, but begun nevertheless.
Ms Hausman in her minute of proposed order sets out the following proposal for the child:
1.That all existing Orders in relation to the child of the parties, namely [the child] born […] October 2002 (“[the child]”) be discharged.
2.That [the child] live with the mother.
3.That each of the parents have equal shared parental responsibility for [the child].
4.That each parent have sole responsibility for making decisions in relation to the day-to-day care, welfare and development of [the child] when she is in the care of the of that (sic) party.
5.That the father have the care of [the child] each alternate weekend from 5pm Friday to 5.00pm Sunday.
6.That the father have the care of [the child] from 3.00pm until 5.00pm each Tuesday with the father to collect [the child] from school and return her to the mother’s care, subject to the father providing notice to the mother of his intention to exercise that care period, by email or telephone, by 6pm on the Wednesday in the week preceding the care period.
7.That during all school holiday periods, the care periods provided in Orders 1.3 and 1.4 be suspended.
8.That the parties have the care of [the child] on her birthday in each alternate year to commence with the father having her care in 2008 and each alternate year and the mother in 2009 and each other year. In the event that the party who does not otherwise have her care is entitled to her care, the person who has [the child’s] care will return [the child] to the other party for a period of not less than 8 hours if it falls on a weekend day from 9.00am until 5.00pm, or on a weekday from the conclusion of school until the commencement of school the following day, or such other time as agreed.
9.That during school holiday periods, at such school as [the child] may attend from time to time, the father shall have the care of [the child] as follows:
9.1During all mid year school holiday periods for 1 week with such period to be agreed between the parties, and failing agreement from 9.00am on the first day of the school holidays to 5pm on the seventh day thereafter.
9.2During the Christmas school holiday period:
9.2.1.1.for the 2008/2009 and 2009/2010 holiday periods for two, one week periods of care, such periods to commence and conclude as agreed between the parties, subject to there being at least two weeks between each period, and failing agreement from 9.00 am on the first day of the holidays to 5pm on the seventh day thereafter, and from 9am on the Saturday of the second last week of the school holiday period to 5pm on the seventh day thereafter.
9.2.1.2for the 2010/2011 holiday period and thereafter, for the equivalent of half of the school holiday period subject to such periods being exercised in blocks not exceeding 2 weeks in duration. The commencement and conclusion to be agreed to by the parties and failing agreement for weeks 1 and 2, and 5 and 6, in even numbered years and 3 and 4, and 7 and 8, in odd numbered years, to commence at 9am on the first day of the holiday period and conclude at 5pm on the 14^th day.
9.3In the event there is to be any agreement on the dates on which care periods referred to in clause 9.2.1 and 9.2.2 such is to occur at least 21 days prior to the commencement of that school holiday period, and be in writing, otherwise the default provisions apply.
10.That the parties alternate the care of [the child] for Christmas each year to commence with the father to have the care of [the child] from 5pm Christmas Eve to 5pm Boxing day in 2008, and each even year thereafter.
11.That the father’s care periods otherwise provided by these orders above be suspended from 5pm Christmas Eve until 5pm Boxing Day each odd year when [the child] is to be in the care of the Mother.
12.That the father communicate with [the child] by telephone on a liberal and flexible basis including but not limited to each Monday, Wednesday and Friday between 5.30 pm and 6.30 pm.
13.That in the event the father does not otherwise have the care of [the child] on Father’s Day in any year the mother make [the child] available to the father from 9am to 5pm on that day.
14.That in the event the father has the care of [the child] on Mother’s Day in any year the father return [the child] to the mother from 9am to 5pm on that day.
15.In the event the mother seeks to take [the child] overseas the father will not unreasonably withhold his consent. In the event the mother seeks to take [the child] overseas (other than in emergency circumstances where such notice cannot be given) she will provide the father with details of her intended itinerary and the proposed accommodation details at least 56 days prior to her intended departure, and the father will respond with his consent or objection within 5 days of receipt of such request. In the event the father objects to the request the parties will attend counselling within 10 days of the father’s response with a view to resolving the issue between them.
16.That the parties attend a parenting course by an accredited course provider within 3 months of the date of any Orders. The costs of such course to be shared between the parties equally.
17.That the parties continue counselling in an effort to discuss the issues of the care changeovers, and other issues in respect of [the child’s] welfare in an attempt to come to a resolution about the best way to deal with the same. In the event either party requests the other to attend such counselling, the other will attend at such session and further sessions as recommended by the counsellor nominated by the requesting party. The costs of such counselling to be shared between the parties equally.
18.That during weekend periods when the father has the care of [the child] he take her to any lessons or sports in which she is enrolled, and to other activities that the parties have agreed that she attend.
19.That both parties be at liberty to attend any lessons or sporting activities in which [the child] is enrolled, and any other activities as agreed, regardless of who’s care period it is at the time of that activity.
20.That in the event the father has the care of [the child] on the mother’s birthday, and such day falls on the day that the father otherwise has the care of [the child] on a weekend, he return her to the mother at 9am on that day and his period of care be suspended until 9am the following day in the event that the birthday is on a Saturday.
21.That in the event the mother has the care of [the child] on the father’s birthday, and such day falls on the day that the mother otherwise has the care of [the child] on a weekend, she provide her to the father at 9am on that day and her period of care be suspended until 9am the following day.
22.That the mother be at liberty to nominate 3 weeks during the year where Tuesday and weekend care periods be suspended, and the father is not entitled to elect periods of care pursuant to clause 1.4, to allow the mother to take [the child] on holidays. Subject to the mother giving the father 28 days notice of her intention in writing the 3 weeks period of suspension will be as nominated by the mother.
23.That the mother be at liberty to communicate by telephone with [the child] on each night during care periods. Such communication to be through the father’s mobile phone or landline as nominated.
24.That the parties create a communication diary to be completed during each care period and handed over at each care changeover with each parent to include details of activities undertaken by [the child], health issues, matters of concern or achievement.
25.That during any period when [the child] spends time with the father, that the father be personally available to care for [the child] and be on leave for those periods.
26.That each party notify the other as soon as practicable and in any event within 2 hours of any issue that arises in respect of [the child’s] care or welfare while in their respective care including but not limited to matters of an important medical nature.
27.That both parties be restrained from making denigrating remarks about the other to [the child], or discussing with [the child] care arrangements other than for providing the care arrangements pursuant to these Orders.
28That the father keep the mother informed of the identity of the occupants of his home from time to time and locations where [the child] will stay overnight while she is in his care pursuant to these Orders.
29.That the mother keep the father informed of any school, sporting, cultural or social activity in which [the child] is involved during any period when she is in his care pursuant to these Orders.
30.That each party keep the other informed of his or her current residential address and telephone numbers.
31.That each party do all things and give all necessary consents and authorities necessary to enable each parent:
31.1to receive all reasonable information relating to [the child’s] attendance and progress at school.
31.2To receive notices, newsletters, reports, photographs and information regarding [the child’s] educational progress from the school which she attends from time to time.
31.3To attend events at [the child’s] school to which parents are invited.
32.That, for the purposes of implementation of these Orders, the father shall collect [the child] from and return her to the mother at her home, unless otherwise specified in these Orders or agreed by the parties from time to time.
33.That for the purpose of implementation of these Orders, the father shall collect [the child] from and return her to the mother at her home, unless otherwise specified in these Orders or agreed by the parties from time to time.
34.That each of the parties be restrained from using any other name for [the child] and in particular, each party shall use the full surname [Harper-Vine] for [the child] at all times and for all purposes.
35.That the father pay the mother’s costs of and incidental to this Application.”
The clear agreement of the parties is that they should jointly exercise parental responsibility.
The gravement of Ms Hausman's submissions was that it was impracticable at this time for there to be shared care for the child.
I asked Ms Hausman what her client meant by shared care and she said that it was not limited to the concept of equal time with the child and that her client would see the father having the child for a period in excess of five days a fortnight as being a programme of shared care.
Ms Hausman reviews in her submissions the evidence as her client sees it to be important. She emphasised that her client took the view that the father played down the performances of the child on handover. The evidence that I heard was that there were problems at handover and that they were significantly ameliorated upon the handover taking place at the B Park rather than the mother’s home. The mother in recent evidence has said that problems have arisen on the return of the child from contact with the father. They appear to me to be in part over exaggerated and not necessarily referable to contact with the father but in any event the orders that I propose to make will obviate a direct return to the mother from contact.
Ms Hausman did not recoil from the possibility that it was the mother’s apprehension and anxiety that was fuelling the problem which she was experiencing and seemed to suggest that the Court should take that into account as part of a continuing framework in which contact would work.
Dr H agreed that one of the possible proximate causes of the child’s more recent behaviour was that the mother had increasing levels of anxiety as the hearing approached, with its attendant uncertainty of outcome. The uncertainty will disappear on the making of these orders and there will be the provision of a structure in which the child can have the benefit of each of her parents.
The alleviation of the problems, by reason of the change of the place of handover, and the proposed orders I intend to make, will I think afford this child the opportunity to pass between the care of each of her parents without reacting to any such anxiety as the mother may harbour and afford the child a time in which to have her experience of contact and perhaps the mother’s anxiety about it is not at the forefront of her mind at the time of the return to the mother.
Ms Hausman sought to impress on me the view that the father was somehow not genuine in his desire to parent the child because of his early return of the child on some occasions. The father gave reasons for this which were consistent with a care for the child and a necessity otherwise. He has met the mother’s needs from time to time and I think that no such inference can be drawn from what occurred or the evidence surrounding the issue.
Mention was made by Ms Hausman of the video of a handover in 2006. This related to an incident which occurred now some considerable time ago. The video as I observed, to Ms Hausman, did not send simply the message that the child was distressed at handover. In fact the child engaged in a tantrum and it clearly showed that.

More importantly, it showed the purposeful and patient nature of the father and the ineffectiveness of the mother. This is notwithstanding that she, in a very low key way, spoke words of encouragement to the child to go. Her words lacked, in my view, conviction and I would not have been surprised if the child did not perceive them that way. I must say that I think the event was “staged” in the sense that it was deliberately recorded for forensic purposes and accordingly I think the temptation would have been for the mother to act in a way which maximised the child’s misbehaviour or at least not to act too strongly to discourage it.
It was interesting to note that the child’s tantrum appeared to cease upon the child being placed by the father in his car. It may be that the child, deprived of her responsive audience, gave up the performance. In any event the father says, and I accept, that the child does not behave that way whilst in his care and the problem has been only evident when the child is passed from the mother to the father or recently, on the mother’s evidence, following a period with the father.
Ms Hausman brought to the attention of the Court the long standing nature of the conflict between the parents and that there have been proceedings over a number of years since the parties separated. There is no doubt that there has been conflict and that conflict has been the responsibility of each of the parents.
So far as the father is concerned he was ready to admit that he could and should have done things differently and better and I think that he has gained, in the history of this matter, a greater insight into the dynamics of the relationship and the need to seek a different path to continual action and reaction. I have graver concerns about the mother but to be fair to her (and I commend her for it) she has acted positively in seeking Ms R’s assistance in therapy for the child and for herself. It seems she recognises that she needs help to cope herself with the situation and her own anxiety.
Ms Hausman urged upon me the evidence of Dr H which spoke of the need to have geographical proximity in an effective shared care relationship (in her written submission she defined shared care as equal time with the child or something close to that). I do not consider that the present places of residence of the father and the mother would operate to make the order I propose inappropriate. Obviously it would be of greater assistance to its smooth implementation and indeed any extension of it that the parties lived in greater geographical juxtaposition but I do not intend to make the order conditional upon that.
Ms Hausman urged that the parties, for a shared care arrangement to be effective must on the evidence of Dr H, have the ability to get along sufficiently well to develop a business like relationship. I see some signs of that occurring and in the emails sent by the father there is politeness and a willingness to pursue agreement. The response of the mother, although a little guarded and tentative also demonstrates a willingness to meet to pursue agreement. Of course if a court came eventually to a conclusion that the father’s approach was being unreasonably rebuffed it would be a factor that it could, in the future, take into account in determining whether the mother maintained a proper parenting capacity. Fortunately, I think that no such determination has presently to be made on the evidence nor do I think it will be necessary in the future.
The mother has, notwithstanding Ms Hausman's assertions, otherwise spoken in support of the father’s capacity to parent.
Ms Hausman urges that the litany of contravention orders which in the history of this matter have been issued ought to be taken as a predictor of the future. I do not agree and reject the submission. The father concedes that other steps might have been taken and probably should have been.
The behaviour of each of the parties has now been raked over, examined, dissected and commented upon in their presence. They have been part of that process and the mother particularly has sought help. It is hoped that help will better enable her to communicate with the father and have confidence in dealing with the child. The father has recognised that on occasion he could have done better. The father has now agreed to and has co-operated with the child’s therapist. I do not think that these parties have to be bound by the past and I do not intend to use much of that history particularly, as it reflects the early days of the parties’ separation, in determining the orders required to govern the present and the short to medium term future.
Ms Hausman noted that the father shared his accommodation with tenants and that he had other persons resident in his home from time to time since separation. This is a case about the father’s capacity to care for the child. That there are tenants in his home is a fact of life and that they might change from time to time is also such a fact. There is no evidence before me that suggests that any of them are or have been a danger to the child or that the father does not act, when the child is with him, in a responsible way. I reject the suggestion that these facts provide any basis which would prevent me from making the orders I propose to make.
Ms Hausman spoke of the termination of the relationship between the father and his then partner as being puzzling It was previously suggested by both the father and his former partner that their relationship was likely to be permanent. It is of course notorious that relationships entered into with hope and expectation for the future fail. This relationship was apparently one of them. It does not seem to me that it was necessary or even desirable for the father to bring before the court chapter and verse as to the failure of the relationship. He informed the court, promptly and appropriately, that it no longer existed. There is no evidence that any particular light will be cast on the position of the father as a capable parent of this child by dissecting the reasons for the relationship’s failure.
Ms Hausman urged caution on the father’s possible return to the work force since he was not (frankly and openly I thought) prepared to say he would never take up work. If he does, arrangements might have to be modified either by him, or between the parties, but that does not once again concern me. In intact marriages persons occupations change and it does not bode ill for the welfare of this child that her father might in the future seek employment given the view I have formed of his relationship with the child and his capacity to parent.
Ms Hausman submitted that overall there was an attendant uncertainty in the possible future of the child with the father. She asserted that the court would not be able to know what the effect would be of a change in the child’s present situation. Of course in any decision a court is making decisions for a future which it does not know. If it was completely knowable a court would not be required, nor would barristers one assumes. The mother says there should be no change and bases this on the assertion that the child has a presently settled routine. Changes in routine are routine in intact households and in this case what I am concerned about is the need for this child to have the benefit of a meaningful relationship with her father as well as her mother. This is a prime directive of the legislation. It is not lightly cast aside and then only in the best interests of the child, which in this case I have concluded would not be served by so dealing with those directives.
I believe that aim will be better served by the orders I propose, even if it is at the expense of a change in a present routine which I consider inadequate to achieve that purpose such change will, in my view, be unlikely to cause problems for the child.
The child will, under those orders, have the opportunity of sharing not only weekend time but part of her school routine with the father and in that way he will become and be seen by her as part of her whole life and not just a “weekend and holiday” father. He will be integrated into her learning life at school and his participation in school events, her learning, her joy in her successes, and her resilience in her failures will be the more because of it. This is so because he will be able to offer her his assistance, love, encouragement, congratulations and support. I do not consider such a change as inimical to the child’s welfare.
Ms Hausman submitted that overall the mother would become anxious if the child was to be placed in a different regime of parenting and that her anxiety would reflect badly on the child and be inimical to her welfare. The mother is receiving therapy for her anxiety and I am not of the opinion that the evidence suggests that the change I propose is one which could not be borne by the mother, given her recognition of the problem and her present steps to remediate it.
Ms Hausman urged on me a minute of a proposed order which, inter alia, provided that the father should be personally available to care for the child during all periods of care. Given the evidence in these proceedings I would anticipate that that would more usually be the case. I do not intend however to make such an order which I think would not reflect my assessment of the father’s capacity to care for the child responsibly and his ability to procure adequate care for the child in the event that he, like the mother, is obliged to make alternate arrangements. I have adopted as part of these orders a portion of those set out in that minute. Where I have not done so is for the reason that the minute does not in my view on the evidence before me reflect an appropriate arrangement for the benefit of the child or is otherwise unnecessarily onerous or unreasonable for a party.
Ms Haughton, on behalf of the father, submitted inter alia that Dr H having read Ms R’s report nevertheless could envisage the parties working toward what the father sought, namely an alternative week about arrangement. She also noted that once forensic necessities had been dispensed with

co-operation was a more likely event than is present in the current climate. I agree.
She submitted that the process of the proceedings had been a learning experience for the father and given his evidence and behaviour there is every reason to believe that that is so.
Ms Haughton canvassed some of the less appealing aspects of the history of this matter but I do not consider it necessary to repeat them save to say that they should remain precisely that - a part of a history which is not required to repeat itself and indeed on a positive note. Ms Haughton points to the significant improvements, in part due to the mother’s arrangement of therapy which occurred last year. As a result of that therapy, the child’s behavioural problems are being managed and the mother supported.

Relevant Law

Legal principles

The principles governing this case are set out in the Act. In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” are set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will, in these reasons, deal with those matters.
Section 61DA(1) requires that:
“… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child’s parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

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

This little girl is a delight to each of her parents and she deserves, and from her conduct with them wants, a meaningful relationship with each of them. I can see no reason why she cannot have that.
The only problem is the vestigial remains of conflict between these parents. There must now be an end to that. The orders that I propose will, I hope, provide initially for less opportunities for conflict to arise although that is only a present and short term palliative. What is needed is a real determination by each of these parents that they will put the love that they have for their child into effect in a meaningful communication between them in at least a cordial and polite manner which will I am sure please the child. It will better ensure their capacity to contribute both severally and co-operatively to her capacity to achieve her optimum potential in life.
For all that has happened in the past, and will happen in the future, each of them will remain the child’s parents. Each needs to respect the others right to contribute to the development and happiness of the child. Neither of them has any inferior right than the other to do that.
This child loves both her parents and it is in her interest that she be able to express that love for them and benefit from their love for her in a relationship which is regarded by everyone in it as important, a relationship that acts as a framework for the significant and mutual expression of those feelings.
That relationship must be significant and important to all. Each of the parties must be seen to approve and respect the others contribution to this child’s life and make the relationship one in which the child can observe that approval and respect. In this way the child will not begin to consider herself somehow the cause of the hostility between the two people she loves. Should the child continue to have that perception it will carry for her the danger of a loss of self esteem which could affect her in later life and in her own relationships with others. It must be avoided.
I am confident that these parents with a bit of reflection on the importance to the child of their success in this task will be able to achieve all of that. I refer to the communicative emails tendered on the last day of hearing that each tendered by consent.

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

I am certain that this child has been kept from physical harm abuse neglect and (save for one unseemly incident which reflected badly on the mother and which I am sure will not be repeated), family violence. I think that this child may well have suffered psychological harm because of the parental behaviour in this matter but I believe that she is now improving with the assistance of all parties and the therapist. In order to assist the parents improve their communication and to provide them with skills to reduce conflict I order them to undertake a course in parenting after separation.

Additional considerations

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

This child is very young. To the extent that her views have been expressed to Dr H they have been so expressed certainly some time ago. I believe that there appears, in the conversation with Dr R, evinced by the child an attachment to both parents and a love for each of them and certainly nothing that Dr H observed would occasion me to depart from that view. I give little weight to the child’s expressed views.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The child seems to love everyone. She has a primary attachment to the mother and a positive attachment to the father. She has in her life been cared for by each of them. There is nothing in the evidence which indicates that there are any other significant adults with whom her relationship is of concern. The child is said to be likely to miss her mother whilst with her father and I intend at this time to make orders which will permit communication between each of the parents and the child whilst in each others care on a reasonable basis. This will serve hopefully to give the child and the parents some reassurance for as long as it might be required.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
This has been of concern in these proceedings. It has been suggested by the evidence that the mother has been obstructive of continuing contact and communication between the child and the father and I find some of the mother’s conduct hard to justify. I observe that there has been and continues to be some change and improvement. I am concerned that the mother should let her deeds effectively echo her words in her desire to facilitate and encourage the relationship between the child and the father. I do not detect any attempt by the father other than to foster such a relationship with the mother. I have no doubt that each of the parents has the ability to foster the relationship and the mother has declared her willingness to do so. That the child has a positive relationship with the father indicates that any reticence on the part of the mother has not affected her attachment to the father. In Ms Hausman’s submission she states the mother supports an ongoing regime for the child to spend time with the father but does not accept that it is in the child’s best interest to commit the child to an equal shared care plan. I at this time think that equal time would be inappropriate for the reasons concerned with the problems the child has had but I note that they are being addressed and hopefully in time that position will change. I believe that the child should spend substantial time with the father however.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The evidence is that the child would miss her mother whilst with her father. However, it seems that might be alleviated by initially limiting the periods she spends with the father and away from the mother and facilitating telephone contact with the mother should she require it during the period she is with the father. The evidence of Dr H is that any change in the child’s situation should be graduated and that overall he did not consider a week about situation one that was presently in the best interest of the child. His evidence that there should be a graduated and contained movement forward and that an immediate week about arrangement would be inappropriate for the child given her present insecurity. Dr H repeats a similar view concerning school holiday contact when he suggests that it initially be taken in lots of no more than ten days at a time with time spent with the mother in between those periods.

He also expressed the view that it would be good if the child could have telephone calls to the person with whom she is not then living facilitated.

Ms Hausman did not think this a good idea because of the possibility of the imposition of pressure on the child by a parent to ring.
Given that submission it is my intention to provide a scheme which will only mandate parentally originated contact on a reasonable basis but that is not to say that the parent having the care of the child should not, if it is appropriate and reasonable, facilitate contact between the child and the other parent.
I think that it is possible and indeed likely on Dr H’s evidence that the pending nature of these proceedings and the anxiety of the mother have created some of the child’s misbehaviour. Once those matters are settled I think the child will and the parents will have a certain framework within which to operate and the child will become accustomed to the regime which attends it.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This is not a significant issue in this matter.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
It seems on the evidence that both parties have the capacity to provide for the needs of this child, including the needs specified. The mother has been hampered, it seems to me, by the breakdown in the relationship in giving effect to her stated recognition of the necessity of the relationship between the child and the father flourishing but there are signs of that situation ameliorating.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
There are no particular deficits to be found in the maturity, sex, lifestyle or background of the parents which would affect my decision other than those mentioned above and the characteristic of the child as having a primary attachment to the mother and a strong attachment to the father is of importance as is her behavioural problems demonstrated whilst with the mother.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This is not a relevant matter in this case.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents have appropriately cared for the child. The mother has failed in the past to grasp the importance of the maintenance and encouragement of the relationship between the child and her father to her continued wellbeing. This problem seems to be ameliorating to some degree and I hope with this litigation over will rapidly disappear. Dr H was supportive of ongoing counselling for these parents and I propose to recommend that they co-operate in undertaking that counselling with Ms B or such other counsellor as they choose to employ. I believe it will be in the interests of the child that the father attends such sessions as Ms R reasonably believes are appropriate for the child’s ongoing therapy and I propose to so order.
(j)any family violence involving the child or a member of the child’s family
I have nothing to add to what I have said above.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is no such order.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I have sought in this matter to stage a development of contact so that it might provide a scheme for as long as the parents are developing the mutual trust and respect for each others role in the child’s life which they ought to have. It is my hope that in the not too distant future they will be able to meet discuss and agree on the myriad of variations which will from time to time be required to meet the child’s changing needs as she grows older. I have provided to assist the development of that process orders for supervision and for joint counselling so that these parties can hopefully put themselves in a position where they no longer need to approach a court to resolve matters.

Section 60CC(4) & (4A)

There has in the past been a failure of these parties to communicate and I now see that that is changing. The orders that I propose will require such communication and I believe it can effectively take place within that framework given the statements that each of the parents makes as to their desire to effectively communicate.
I have taken into account the matters referred to in section 60CC (4). I have found that in the past the mother has been less than co-operative in promoting the relationship between the child and the father but I note that that is in the past and that I have detected an emerging more co-operative attitude. There has been some discussion between the parents about decisions relative to the child and I think I can also detect an increasing co-operation in that regard. The father has taken the opportunities which have presented themselves for him to have contact with the child except when reasonably prevented from doing so by his work or unforseen circumstances or the needs otherwise of the child.
In relation to section 60CC (4A) I refer to my earlier findings. I have taken into account the matters which have occurred since the parties have separated and in particular those of more recent times which have evinced a change in attitude and co-operation between the parties in making my decision and in particular the matters referred to above.

Balancing of all considerations under Section 60CC and the defined issues

Section 61DA

Unless the court makes an order changing the statutory conferral of joint parental responsibility, section 61C(1) provides that until a child turns 18 years each of the child’s parents has parental responsibility for the child.
“Parental Responsibility” means all the duties powers and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan entered into by the parties.
The presumption that parties should exercise joint parental responsibility is displaced if it is in the opinion of the Court a consideration of promoting the best interest of the child rebut the presumption, or the person with whom the child has lived has engaged in abuse of the child.
I see no reason why the parties should not have joint parental responsibility in this case, and I will so order.

Section 65DAA / Section 65DAA(5)

I have considered the evidence of the experts in relation to the father’s application for equal time in parenting and whilst that may well be a possibility for the future, given the present stage of the child’s development, her demonstrated problems, her age, her attachments and her need for reassurance from the mother I believe that certainly for the next 18 months that that is not in her interests. I do however believe that it is in her interests for her to spend substantial and significant time with each parent. I consider it practicable for her to do so and I propose to make orders accordingly.

Costs

I have no current evidence of the means of the parties. The draft minute of order submitted by the mother seeks an order for costs. On the evidence before me I would see no reason for departing from the usual practice that each party pay and bear their own costs. Should either party wish to pursue an order for costs then any applicant party should file an application within 14 days of today’s date, accompanied by a statement of their financial circumstances and any affidavit in support of such an application and a written submission on costs. Any respondent party to any such application shall have 14 days to file any cross application statement of their financial circumstances and affidavit on which they wish to rely in support of the orders they have sought as to costs, and a written submission on costs.
In the event that no such application is received within 14 days there will be no order as to costs.

I certify that the preceding one-hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 18 July 2008

[2008] FamCA 561

18 July 2008

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