Wilbur and Hasik

Case •

[2017] FCCA 907

•

5 May 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILBUR & HASIK [2017] FCCA 907
Catchwords:
FAMILY LAW – Relocation and time with dispute – Relocation could not be dealt with – Mother alleges family violence – Distrusts Father – Child 3 years old and yet to have overnight time with the Father – Mother wants slow graduated time with – Father wants a more rapid development – Two Family Reports provide helpful insights to parties and issues – Mother appears to be over-parenting child.
Legislation:
Family Law Act 1975 (Cth)
Re: F. Litigants in Person Guidelines (2001) FLC93-072
Collu & Rinaldo [2010] FamCAFC 53
McCall & Clark (2009) FLC 93-405
Mazorski & Albright (2007) 37 Fam LR 518
W (Children) [2012] EWCA Civ 999
Applicant: MR WILBUR
Respondent: MS HASIK
File Number: MLC 10039 of 2015
Judgment of: Judge Curtain
Hearing dates: 8, 9 & 10 February 2017
Date of Last Submission: 10 February 2017
Delivered at: Melbourne
Delivered on: 5 May 2017

REPRESENTATION

Counsel for the Applicant: Ms Vicky Sweet
Solicitors for the Applicant: Baird & McGregor
Counsel for the Respondent: In person
Solicitors for the Respondent: Not relevant
Counsel for the Independent Children’s Lawyer: Not relevant
Solicitors for the Independent Children’s Lawyer: Not relevant

ORDERS

THE COURT ORDERS THAT:

  1. All prior parenting orders are discharged.

  2. The Mother and Father have equal shared parental responsibility for their child [X] born (omitted) 2014.

  3. [X] live with the Mother.

  4. [X] spend time with and communicate with the Father as follows:

    (a)Until 1st September, 2017 each Wednesday and 2 of 3 consecutive Saturdays and Sundays, all from 8am to 4pm;

    (b)From 1st September, 2017:

    (i)Each Wednesday from 8am to 4pm; and

    (ii)Two consecutive weekends out of three from 8am Saturday to 4pm Sunday;

    (c)From 8th March 2018 until [X] commences school:

    (i)Each alternate weekend from 4pm Friday to 9am Sunday on the first three occasions and thereafter to 4.00pm Sunday;

    (ii)Each Wednesday from 8am to Thursday at 8am; and

    (iii)In 2019 if [X] does not commence school, then for three nights during the first term school holidays, four nights during the second term school holidays and five nights during the third term school holidays commencing from 5pm on the last school day to 5pm at the finish and (ii) above is suspended during these holiday periods.

    (d)When [X] commences school, then from the start of the school calendar year and during all school terms thereafter:

    (i)Every Wednesday from the conclusion of school (or 3.30pm) until the commencement of school (or 8am) on a Thursday;

    (ii)On alternate weeks from the conclusion of school (or 3.30pm) on a Friday until the commencement of school (or 8am)on a Monday;

    (e)For half of the gazetted Victorian school holidays as agreed commencing the year [X] starts school and in default of agreement as follows:

    (i)During term school holidays:

    a.If [X] commences school in 2019, then from 5pm on the last day of the school term for three consecutive nights in term one holidays, four consecutive nights in term two holidays and five consecutive nights in term three holidays of the gazetted Victorian school holidays until 5pm; and

    b.If [X] commences school in 2020, then from 5pm on the last day of school term to 5pm on the middle Saturday during each school term holiday period.

    (ii)In the Christmas school holidays commencing 2019/2020 on a week about basis and unless otherwise agreed from the last day of school from 5pm, (save for the Christmas period from the 24th December until the 26th December); and

    (iii)[X] shall spend time between the parties as follows during Christmas eve, Christmas Day and Boxing Day:

    (I)In odd numbered years commencing 2017 from 9am on the 24th December until 3pm on the 25th December with the Mother and from 3pm on the 25th December until 6pm on the 26th December with the Father; and

    (II)In even numbered years commencing 2018 from 9am on the 24th December until 3pm on the 25th December with the Father and from 3pm on the 25th December until 6pm on the 26th December with the Mother.

    (f)Unless otherwise agreed, on special days as follows:

    (i)On the child’s birthday, on a non-school day for a minimum of 4 hours with the Father if not otherwise in his care, and if in his care, then no less than 4 hours with the Mother, and on a school day from conclusion of school to 7pm with the parent that did not have his care in the morning;

    (ii)On the Father’s birthday for a minimum of 4 hours with the Father on a non-school day if not otherwise in his care, and on a school day from conclusion of school to 7pm if not otherwise with the Father on that day;

    (iii)On the Mother’s birthday for a minimum of 4 hours with the Mother on a non-school day if not otherwise in her care, and on a school day from the conclusion of school to 7pm if not otherwise with the Mother on that day;

    (iv)On Father’s Day from 8am to 4pm if he is not otherwise in the Father’s care; and

    (v)On Mother’s Day for 8 hours with the Mother should [X] not otherwise in the Mother’s care.

    (g)[X] shall regularly communicate with the absent parent by telephone as agreed between the parents in writing.

  5. The Father shall have first option of care of [X] if the Mother is unavailable for him for more than 3 hours on a weekend that [X] is scheduled to be in her care.

  6. The Father shall give the Mother written notice as soon as possible if he is unavailable for [X] to spend time with the Father.

  7. The Mother and the Father shall:

    (a)Keep each other advised of their respective contact telephone numbers and addresses and any changes thereto;

    (b)Advise the other forthwith of any illness, injury or other significant health matter that the child suffers from together with details of any treating doctor or allied health professional, and each party be at liberty to liaise with such professionals; and

    (c)Be at liberty to obtain from the child’s kindergarten and school, reports, photograph order forms, memoranda and like documents and to attend events normally attended by parents and each party shall be at liberty to provide a copy of these orders to the child’s kindergarten and school.

  8. The Mother and the Father shall equally undertake travelling associated with changeover whilst the child resides in the (omitted) region, and the Mother shall deliver [X] to the Father’s residence at the beginning, and the Father shall return [X] to the Mother’s residence on conclusion.

  9. Until December 2018, the Mother and the Father, their servants and agents, be and are hereby restrained from changing [X]’s primary place of residence from the (omitted) region without the written consent of both parties first obtained or court order and thereafter, they shall give the other parent 60 clear days’ notice in writing of any proposed change of primary place of residence of the child.

  10. Upon [X] turning 5 years of age the parties shall attend Family Dispute Resolution to review and discuss the spend time and communication arrangements.

  11. Should [X] still be breast fed during any stays with the Father, then the parents shall make arrangements for this feeding to continue, unless the Mother agrees in writing it is not necessary, prior to any time with [X] taking place.

  12. The Father shall promptly contact [X]’s nutritionist and other similar experts that [X] attends, to be informed about [X]’s wellbeing, and the Mother do all things necessary to facilitate same.  

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 10039 of 2015

MR WILBUR

Applicant

And

MS HASIK

Respondent

REASONS FOR JUDGMENT

“It was overall clear that the mother was utterly devoted to the child and took daily awe in the gradual unravelling of his development and personality”

Paragraph 37 of the Family Report by

Dr R, Psychologist dated 25th June, 2016.

Introduction

  1. The Mother’s views, comments and presentation about [X] often troubled me during the three days of the trial. She acted for herself and therefore had frequent dialogue with the Bench. In my view, she presented as being obsessive about the welfare of their child and I noted Dr R’s comment at paragraph 61 of his Report, where he says:… “the writer as a child psychologist also cautions the Mother against over-parenting if not over protecting the child which inadvertently may of itself, depending upon individual circumstances, be adverse to a child’s development.”

Background

  1. The Applicant, Mr Wilbur, lives in (omitted) and is by occupation a (omitted)(omitted). He was born on the (omitted) 1977, and is therefore aged 39 years.

  2. The Respondent, Ms HasikMs Hasik, lives in (omitted)(omitted). She was born on the (omitted) 1978, and is therefore aged 38 years. In the witness box she gave her occupation as “mother”, which turned out to be a portent of things to come.

  3. The parties cannot agree on the period of cohabitation. The Applicant Father alleged that their relationship lasted approximately 10 years with some periods of separation, which he said totalled about 36 months. The Mother agrees that there were a number of separations but says they cohabited from 2004 until December, 2013. The Father says they separated in September, 2013. The difference between them on separation and cohabitation is not significant for the purpose of the trial.

  4. They have one child, [X], born (omitted) 2014. He is aged three years.

  5. The parties separated approximately 3 to 5 months before [X] was born. I was surprised to read that soon after [X]’s birth the parties jointly purchased a property situated at Property AProperty A, where they lived in separate residences only metres from each other. The Mother says she was there for six months with [X] and the Father thought it was more like nine months. During this period the Father had frequent contact with his son although the extent of it is disputed by the parties.

  6. The parents relationship then subsequently deteriorated to the extent that the Mother moved out with [X] to reside in (omitted). They undertook mediation with a Mr DMr D to determine the style of the Father and son’s ongoing relationship and subsequently agreed on 6 “visits” for two 1 hour periods each week, supervised by the Mother. This took place over a period of some two months after which with little notice, the Mother sought an Intervention Order from the (omitted)(omitted) Magistrate’s Court.

  7. This order was made on the 30th June 2015, for a period of 12 months and unfortunately, the child was named on the order which created a barrier to the child and the Father having an ongoing relationship. The Father said he agreed to these orders… “without admission of the allegations”, a common unhelpful statement seen in this Court. It merely transfers the burden of discovering the truth to this Court, when the State court should have dealt with it properly.   

  8. After the Intervention Order was made, [X] did not see his Father for around nine months. The parties during this period attempted to negotiate parenting arrangements through their lawyers. It was the Mother’s evidence that time with [X] and the Father would not commence unless he agreed to her parenting plan; negotiations broke down. I was disappointed that she was not more active in trying to reconnect [X] with his Father and it appeared to me that [X]’s relationship with his Father was not a priority for her during this period.

  9. The Father filed his application on the 27th October 2015, seeking interim orders for [X] to spend supervised time with him. On the 1st March 2016, the following orders were made:

    BY CONSENT, THE COURT ORDERS UNTIL FURTHER ORDER THAT:

    1.The parties have equal shared parental responsibility for the child [X], born (omitted) 2014. 

    2.The child live with the Mother.

    3.The child spend time with the Father supervised by (mediation centre omitted)(mediation centre omitted)  (“the centre”) as follows:

    a.For a minimum of 2 hours and a maximum of 4 hours each Tuesday commencing 8 March 2016;

    b.As otherwise nominated by the centre.

    4.The parties forthwith sign all documents and do all things necessary to make application for the services of the centre and attend and facilitate the child’s attendance at places and times directed by the centre and the parties shall follow all reasonable directions of the centre.

    5.The Father shall meet the costs of supervision by the centre.

    6.The parties attend upon an agreed psychiatrist for the purpose of a psychiatric assessment and report to be filed with the Court with each party to meet the cost of their assessment and report, and it is requested that Victoria Legal Aid fund the cost of the Mother’s assessment and report.

    7.The Mother be restrained by injunction from changing the child’s place of residence to a location that is more than 20 kilometres from the (omitted) Post Office save with the written consent of both parties or a Court Order.

    8.Each party be restrained by themselves, their servants and agents from denigrating or criticising the other party in the presence or hearing of the child.

    9.The parties shall sign all documents and do all things necessary to sell the property at Property AProperty A without the wood burning stove belonging to the Mother (currently in the shed), which stove the mother is selling separately and the proceeds of sale be applied as follows:

    a.In payment of all costs and commissions attendant upon the sale;

    b.In payment of the mortgage currently asserted by the Father to be approximately $122,000;

    c.The balance to be held upon trust by the Mother’s Lawyer.

    10.In the event that the parties are unable to agree on:

    a.A selling agent the selling agent shall be nominated by the president of the Real Estate Institute of Victoria; and

    b.A sale price the sale price shall be as nominated by the selling agent.

    11.That the Father be responsible for paying the mortgage registered on the property at Property A (“the property”).

    12.

    (a)The parties are to co-operate in every way with the real estate agent in relation to the marketing of the property for the sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.

    (b)That upon agreement being reached for sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their Solicitor.

    13.Pending the sale.

    a.The Father shall have the sole right to occupy the property;

    b.The parties hold their respective interest in the property upon trust pursuant to these Orders;

    c.Neither party shall encumber the property without the consent in writing of the other party or any mortgagee.

    14.That within 21 days the parties provide full and frank financial disclosure to one another.

AND THE COURT NOTES THAT:

AThe Father agrees to supervision of his time for the purpose of reacquainting with the child.

BIt is intended that the supervisor will travel to the (omitted) area for the purpose of the father’s time with the child.

CThe Mother advises that currently the child has a daytime sleep between 11am and 1pm.

DThe Father does not wish to have his time with the child limited to the (omitted) area and whilst he will follow the directions of the supervisor the Father reserves the right to raise the issue at the next hearing of the matter.

  1. On the 2nd May 2016, the matter returned to the Ballarat Circuit of this Court, when an Order was made by consent that the earlier orders of 1st March remain in full force and effect, and the matter be listed for a Final Hearing in the July circuit with notations that… “the parents intend to continue working collaboratively with Ms SMs S of (mediation centre omitted)(mediation centre omitted) and have developed a plan to move from supervised time to supervised handovers, then supervised handovers only at the commencement of time”, and… “the father intends to liaise with Ms SMs S regarding an increase in the time [X] spends with him to the four hours provided for in the orders of 1 March 2016.”

  2. The affidavit sworn by Ms SMs S on the 18th July 2016, sets out the history of [X]’s time with the Father under this supervision where she described the child’s time with the Father as… “going very well”. This affidavit was not challenged by the Mother, and I shall refer to it further.

  3. This matter came before me on 2nd September 2016 at Melbourne, and I adjourned it to a trial before me in Melbourne commencing in February, 2017.

  4. I further ordered an Updated Report with another expert given the Mother’s view of Dr RDr R and made orders for a development of [X]’s time with the Father as follows:  

    BY CONSENT, THE COURT ORDERS THAT:

    1.Until further order, the child [X][X] born (omitted) 2014 spend time with the communicate with the father as follows:

    a.until 1 October 2016, each Tuesday and Sunday from 9am until 1pm;

    b.from 1 October 2016 until 1 December 2016, each Tuesday and Sunday from 9am until 3pm;

    c.from 1 December 2016 until 1 February 2017 each Tuesday and Sunday from 9am until 5pm; and

    d.as otherwise agreed between the parties.

    2.Until further order, changeover occur in the father’s home.

  5. Subsequently, it appears that sometimes [X] was ill and unavailable and it was eight (8) hours only on a few occasions, due to the Mother’s concern about [X]’s reactive stress, as alleged by her.

  6. I was disappointed to hear that at the changeover of care at the start and finish the parents do not speak to each other or even acknowledge each other. This sends a negative unstated message to [X] about their attitude to each other and should cease immediately.

  7. The parties agreed that they should have equal shared parental responsibility and the child should live with the Mother.


    The issues in dispute were the questions of the child’s graduated time with the Father, and the Mother’s proposed relocation to Melbourne, in or about early 2019.

  8. Approximately half way through the trial I advised the Mother that the proposed relocation was not a matter I could consider at this stage, given the lack of details about her proposal, such as, where she would live, what school the child would attend and other related issues. Moreover, as it was not to take place until around 2019, I felt it was inappropriate to “crystal ball” what the child’s emotional and other needs will be some years away given he is so young. Therefore, this part of the case did not trouble the Court further and the parties focused on the question of the child’s time with the Father.

The Parents

The Father

  1. He presented as a quietly spoken gentleman who clearly loved his son, but appeared frustrated by the Mother’s attitude to him and his parenting generally. For example, the Mother always packed a meal for [X] when he was with his Father and expected the remnants to be returned in the lunch box so she could monitor what he had eaten. After a number of occasions the Father always returned it empty and wiped clean, to the Mother’s frustration.

  1. The Father appeared to be careful in his answers and not wanting to be seen to be provocative. He could be described as being non-assertive.

The Mother 

  1. She initially presented as a likeable, reasonably intelligent lady that also dearly loved her son. However, she seemed too focused on his wellbeing to the detriment of a more relaxed style of parenting that may well benefit [X].

  2. She wanted to be seen as an authority in all things that touched upon [X]’s welfare, including his brain development and diet. There appeared to be nothing she did not know about his needs and annexed a number of documents from alleged experts in her first affidavit. One of those was a Report dated the 2nd September 2015 headed…“Your Food Matters”…which provided details of an “assessment” of [X]’s… “gut and psychology syndrome (GAPS).”

  3. I was concerned about the Mother’s non-critical approach to the “diagnosis” of GAPS. If a nutritionist had initially formed that view of her child, I would have expected medical specialists in that area to have been subsequently consulted. That apparently was not the case. Moreover, she accepted without question [X]’s… “low tolerance for stress”… without getting a second (medical) opinion.

  4. She also annexed a Report from the (religious organisation omitted) (omitted)(omitted) dated the 1st February 2016 signed by (omitted)(omitted) regarding their attendance at the… “toddler’s story-time and playgroup, (omitted)”. That Report said in part that the Mother was… “an exemplary Mother, very caring, attentive, patient and loving…she is a very conscientious Mother.” After three days in Court, I have no doubt about her devotion to [X], but is she over parenting the child?

  5. The Mother was unrepresented and I assisted her the best I could pursuant to the guidelines in Re: F. Litigants in Person Guidelines (2001) FLC 93-072.

Family Reports

  1. The first was undertaken by Dr RDr R and was dated the 25th June 2016. Subsequently, a Second Report was prepared by Ms BMs B and dated the 10th January, 2017. She attended the hearing and was cross-examined by the parties. I found both of these Reports very helpful and will be referring to them further in this judgment. I note that no party sought to cross-examine Dr R.

  2. The parties relied on the following documents:

A. Applicant Father’s material:

a)Initiating Application filed 27th October, 2015;

b)Affidavit of Mr Wilbur filed 27th, October;

c)Family Report of Dr R dated 25 June, 2016

d)Affidavit of Mr Wilbur filed 13th July, 2016;

e)Affidavit of Ms SSharon Mountain filed 18th  July, 2016;

f)Affidavit of Mr Wilbur filed 29thAugust, 2016;

g)Family Report of Ms BMs B. Fraser dated 10 January, 2017; and

h)Affidavit of Mr Wilbur filed 25th January, 2017.

B. Respondent Mother’s material:

a)Affidavits sworn or affirmed by the Mother:

i)On 18th February, 2016;

ii)On 24th April, 2016; and

iii)On 19th July, 2016.

b)Tendered document headed “Response to Updated Family Report dated 10 January, 2017 prepared by Ms BBarbara Fraser” and marked “A” for identification; and

c)Tendered document headed “Response to Affidavit by the Applicant Mr WilburNathan Watson dated 25th January, 2017” and marked “B” for identification.

Relevant Legal Principles

  1. Section 60B(1) of the Family Law Act 1975 (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of the children is met by:

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

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

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

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

  2. Section 60B(2) of the Act sets out the principles underlying those objects They are that (except when it is or would be contrary to a child’s best interests):

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

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

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

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

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

  3. Section 60CA of the Act directs that when deciding to make a particular parenting order the best interests of the child are the paramount consideration. Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the Court in determining what is in the child’s best interests.

Section 60CC factors

  1. The two primary considerations are set out in s.60CC(2) and s.60CC(2A) of the Act. They are:

(2)(a) the benefit to the child of having a meaningful relationship with both of   the child's parents; and

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

(2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

  1. I shall deal with the primary considerations after addressing those in s.60CC(3), (See Collu & Rinaldo [2010] FamCAFC 53).

Additional considerations are:

  1. As to sub-section 60CC(3) of the Act:

(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;

  1. Dr R in his Updated Report at paragraph 50, page 14 said as follows:

    “50. The child appeared to be a typical two year old; intensely self interested as he should be and at times peripherally interested in others including the parties. However again as expected when either of the parties left his sight after he had been with them he displayed a typical temporary anxiety but responded quickly to soothing from either party. Overall the child appeared very happy to be with either party and sat quietly with each and occasionally he talked to himself but still did appear quite animated when either party spoke directly to him. In summary he gave all the impressions of the expected bonding process of a typical two year old with his primary care givers.”

  2. Given [X] is just a toddler, then no weight can be put on his views.

(b)  the nature of the relationship of the child with:

(i)  each of the child's parents;

The Mother

  1. I note the comments at page 14 of the Updated Report, which are as follows:

    “62. Ms Ms HasikMs Hasik also presented as calm, rational and coherent at the appointment for this report. She was thoughtful about [X]’s needs and demonstrated a ‘parenting mind’, discussing issues about his development and welfare in detail. In the observation with [X], Ms HasikMs Harris was warm, responsive and emotionally containing. [X] demonstrates a secure attachment to Ms HasikMs Harris.”

  2. The Updated Report went on to say:

    “102. The observation proceeded in a warm, focussed atmosphere, with [X] active but focussed as well. Ms HasikMs Harris demonstrated attunement to [X] and his needs and calmly guided him in assembling and disassembling toys, praising his efforts and assisting him when he showed difficulty.

    103. Ms HasikMs Harris demonstrates competent parenting. She guided [X] with verbal instruction, affection and physical proximity. She was warm and affable, but firm in her instructions as well, and not only nurtured but stimulated [X]. [X] demonstrates a secure attachment relationship with Ms HasikMs Harris.”

  3. The author also says the following at page 26… “He ([X]) perceives her as a primary caregiving figure providing nurturing and security, as well as stimulation.”

The Father

  1. In Ms SMs S’s affidavit she says that for the first four visits up to April 16th, she observed the child demonstrating a positive attachment to his Father and that Mr WilburMr Watson demonstrated competent care giving. She went on to say that between June and July 2016, [X] was responding positively to his time with his Father and that the parents were managing the changeovers with a focus on the child.

  2. In the Updated Family Report of Ms BMs Fraser, I noted paragraph 31 where Ms HasikMs Harris said… “[X] just adores his Father and he enjoys the relationship …” and the Mother put this in context during her evidence.

  3. At page 23 of the same Report, the author says:

    “110. Mr WilburMr Watson demonstrates competent parenting. He guided [X] with verbal instruction, affection and physical proximity, managing his protest about finishing with warmth, soothing and leadership. Mr WilburMr Watson was warm and affable, but also firm. [X] demonstrates a secure attachment relationship with Mr WilburMr Watson, relating to him as a significant emotional figure.”

  4. At page 26, paragraph 124 of that Report, the author also says the following… “[X] also demonstrates a secure attachment relationship with Mr WilburMr Watson. He perceives his Father as a facilitative caregiving figure who also provides nurturing, security and stimulation.”

The child’s relationship with each of the parents generally

  1. I note paragraph 64 of the Updated Report at page 14, where it says as follows:

    “64. The child’s development and his relationship with both parents are significant issues in this matter. [X] presents as a healthy and well cared for toddler. He demonstrates sound development, particularly with regard to physical ability, sociability and language skills. The level of [X]’s purported excitability was apparent at times, with his exploration of the toys and activities, but this was well managed by both Mr WilburMr Watson and Ms HasikMs Harris, with both using redirection, physical contact and warm verbal instruction”

  2. The author says at page 27, paragraph 129 of the Updated Report that the Father and Mother… “present as mature and capable individuals who could eventually manage a consistently civil parenting relationship. They will need professional assistance and I would support Mr WilburMr Watson’s wish to attend joint counselling with Ms HasikMs Harris.” The author goes on to say the following:

    “130. Parents build a meaningful relationship with their children by promoting their development, providing sound leadership and ensuring that they feel wanted and appreciated. Such a relationship also ensures that the child can, over time, develop an organised strategy for finding protection, relief from anxiety and delight in shared interaction. When parents are separated, these goals for meaningful relationships can be compromised for children, especially very young children.

    131. Ms HasikMs Harris already has a meaningful relationship with [X] and she has demonstrated the capacity to provide all of the above noted qualities, with positive developmental outcomes evident thus far for the child. She must continue to address however, her leadership in facilitating [X]’s relationship with his father.”

    132. [X] has an emerging meaningful relationship with Mr WilburMr Watson, clearly facilitated by the stepped up time arrangements now, and the history of their bonding in the child’s early days.

    ……

    134. [X] will continue to have a meaningful relationship with Mr WilburMr Watson by spending frequent and substantial time in his care. I would support Mr WilburMr Watson’s wish to be actively involved in as much of [X]’s life as possible. [X] will benefit from Mr WilburMr Watson’s involvement in teaching and playing, maintenance of important routines throughout the day and night, settling and soothing, and exploration of the wider world outside home and the immediate family.”

(ii)  other persons (including any grandparent or other relative of the child);

  1. No evidence was led on this topic and therefore I cannot comment.

(c)  the extent to which each of the child's parents has taken, or failed              to take, the opportunity:

(i)  to participate in making decisions about major long-term issues in relation to the child; and

(ii)  to spend time with the child; and

(iii)  to communicate with the child;

  1. Both parents have taken every opportunity made available to them to participate in these issues and there is no criticism of either, save that the Mother appears to want to dominate or control these issues.  

(ca)  the extent to which each of the child's parents has fulfilled, or                  failed to fulfil, the parent's obligations to maintain the child;

  1. Both parents have contributed to the maintenance of this child and this was not an issue in this trial.  

(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

  1. Should [X] be separated from either of his parents for any length of time it would not be in his best interests. He has a close and loving relationship with both, and any significant separation from either of them would be very distressing for this young child.

    (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

  2. No evidence was led in this area and I cannot comment.

(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;

  1. The parties live 10 minutes apart by motor vehicle, and therefore currently this is not an issue.

(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;

and

(i)  the attitude to the child, and to the responsibilities of parenthood,              demonstrated by each of the child's parents;

  1. I am going to deal with both of these sub-paragraphs together because many of the issues overlap.

  2. In his Report dated the 25th June 2016, Dr R said at paragraph 47 the following:… “the Mother directly addressed the matter of future parenting arrangements. It was very clear that she had a pronounced protective stance to the child’s welfare and as such indicated that she basically almost wanted a guarantee of the Father’s capacity to have very gradual increased spend time with the child as detailed in the Application section of this report.”

  3. The Mother’s attitude to the child and his relationship with his Father was very troubling. Dr R indicates clearly that she does not trust the Father and she was very concerned about [X]’s welfare when in his care.

  4. I was also very concerned about their poor communication and how this is a barrier to [X] having a satisfying relationship with both parents. At page 12 of her Family Report, Ms BMs Fraser says the following:

    “53. In relation to communication with Mr WilburMr Watson, Ms HasikMs Harris said that they cannot talk directly, and expressed the belief that Mr WilburMr Watson would ‘ignore what I say or use it against me’. Ms HasikMs Harris referred to a statement by [X] that he was not willing to spend time with his father due to the presence of a chainsaw in the park at the most recent visit. Ms HasikMs Harris said ‘yesterday, [X] said that he didn’t want to go again because there was a man using a chainsaw in the park’. When I asked Ms HasikMs Harris if she might raise this with Mr WilburMr Watson, she said ‘I haven’t spoken to him for a very long time … it won’t make any difference’.”

  5. She goes on to say at pages 23, 24 and 25 of the Updated Report the following:

    “112. Mr WilburMr Watson and Ms HasikMs Harris both demonstrate commitment to and appreciation of the obligations and responsibilities of parenting. Despite the acrimony of their separation and the consequences for [X] - of likely exposure to parental conflict and then the absence of Mr WilburMr Watson for some nine months - both Mr WilburMr Watson and Ms HasikMs Harris have facilitated the child’s development to the extent that at the time of the preparation of this second family report, [X] presents as a healthy and well developing toddler with some exceptional traits, the development of which both parents appear to be nurturing.

    113. Despite Ms HasikMs Harris’ earlier stated concerns about parenting capacity, at the time of the preparation of this second family report, Mr Mr WilburNathan Watson presents as a competent parent, able to provide for [X]’s welfare, safety and development. Mr WilburMr Watson’s parenting has been assessed by professionals in the family law field as appropriate and facilitative. He has been observed in stressful situations as capable of maintaining a focus on meeting his quite young child’s needs, and being able to do so.

    114. In the preparation of this report, Mr WilburMr Watson presented as thoughtful, responsive and attuned to meeting [X]’s primary needs, as well as his special needs. He presents with a ‘parenting mind’. Mr WilburMr Watson has secure employment and he appears resourceful in ensuring his financial security.

    … …

    117. Ms Ms HasikMs Hasik also presents as a competent parent who is dedicated to facilitating [X]’s development. She has approached her caregiving role with seriousness and determination to provide for [X]’s healthy development, indeed, as she put it in the interview for this report, to ensure his ‘optimal functioning’.

    ... …

    119. Overall, Ms HasikMs Harris presents as capable to parent under stress, but she must remain open to the need for supportive resources in that role, and to consider Mr WilburMr Watson as one of those resources. The anxiety concerning [X]’s caregiving has been significant for Ms HasikMs Harris and at times she has likely considered herself to be a sole parent, indeed his only capable parent.

    120. Ms HasikMs Harris’ concession in the interview for this report that [X] ‘adores’ his father and ‘enjoys the relationship’ indicates that she can reassess her views about Mr WilburMr Watson’s capacity. This is a crucial process in the settling of the parents’ relationship and the strengthening of their capacity to co-operatively parent their still very young child. It will benefit Ms HasikMs Harris to undertake joint parenting counselling with Mr WilburMr Watson, so that both can understand the importance of clear boundaries and to manage constructive communication about the needs of their child.”

(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;

  1. The Mother indicated that [X] had a number of issues such as immature gut, his anxiety and stress levels and his brain development. I was concerned about her attitude given the lack of specialist medical evidence on these topics. She should have sought a second opinion from qualified medical experts.

(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;

  1. Not relevant.

(j)  any family violence involving the child or a member of the child's          family;

  1. In her affidavit sworn or affirmed on the 18th February 2016 and filed on the 19th February 2016, the Respondent Mother says the following at paragraphs 18 to 22:

    “18. During the relationship I was regularly exposed to Mr WilburNathan’s psychological, emotional and financial abuse and threats in order to coerce me or control my behaviour. In 2015 I finally sought extra support from Rape and Domestic Services Australia.

    19. The relationship had been one of abuse since its beginning. I did seek counselling towards the end of 2013 for generalised anxiety disorder however I only attended a few sessions as I was told nothing was wrong with me. Spanning over ten years it’s always been volatile. Marked with periods of separation averaging half of each year in which he was incredibly charming, showed great kindness and showered me with attention and then the other half of the year we cohabited and in this instance he became cruel, indifferent and withdrawn. I spent this time in absolute turmoil. However, this led to deep contemplation about what I was doing to cause this and how I could change. This is classic of relationships in which one member is co dependant and the other is seeking to control and emotionally manipulate. I believe Mr WilburNathan’s behaviour is highly abusive.

    20. As I changed and developed confidence through counselling that led to more appropriate boundaries, Mr WilburNathan seemed to become more unstable and the situation more volatile. He has employed bizarre tactics in an attempt to hook me back into the dysfunction of the relationship, including repeated threats of suicide and threats to remove [X].

    21. [X] has been exposed to family violence in the form of extremely distressing verbal exchanges by Mr WilburNathan using his physical body to intimidate. This occurred daily. I was in an acute state of fear constantly. I suffered panic attacks, adrenal fatigue and significant ongoing sleep disturbances. I have since recovered from this through intensive yoga therapy, mediation [sic] and supplementation.

    22. In the past Mr WilburNathan has used ICE, ecstasy and occasionally heroin. In the time we resided at the property in 2014 Mr WilburNathan continued to mix alcohol with opiates. I would find empty packets with beer bottles on the bench outside his house on several occasions.”

  2. I note in the Updated Family Report that the author says at paragraph 65, page 15… “ Ms HasikMs Harris continues to perceive herself as having been traumatised and she also described [X] as having ‘witnessed trauma’.”

(k)  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, taking into account the following:

(i)  the nature of the order;

    (ii)  the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)  any other relevant matter;

  1. The Mother obtained an Intervention Order from the (omitted)(omitted) Magistrate’s Court in June 2015, for a period of 12 months. In that application, she made the following allegations:

    “The AFM (‘Affected Family Member’) and Respondent have known each other for approx [sic] 12 years and been separated [sic] for approx [sic] 18 months. The most recent incident of violence occurred through damage to property. On 18/6/15 I found that the house that I own with Mr WilburNathan was badly damaged as Mr WilburNathan had taken down an external bedroom wall and removed carpet and ceiling of this room. The house was to be listed for sale on Tuesday this week but now this is not likely. I feel that he has done this to continue intimidating and controlling me. I am reliant on the sale of this property to assist me financially. Mr WilburNathan prolonging the sale continues his economic abuse toward me. Throughout my relationship with Mr WilburNathan he has used controlling and emotionally abusive behaviour. He became jealous when I was pregnant. His violent behaviour has escalated in the last few months. I am fearful for my safety and wellbeing.

    I am going to stop taking our son to see Mr WilburNathan for visitations and I am fearful of his response to this.”

  2. The Father said in evidence that he had been advised by the Real Estate Agent to demolish a wall infested with white ants and otherwise prepare the property for sale but apparently he did not advise the Mother beforehand, which clearly shocked her. This was not challenged by the Mother in cross-examination. It was most unfortunate that [X] was listed as an Affected Family Member in the Intervention Order and the Father somewhat unwisely agreed to the order including his son, as the child and Father did not see each other for another 9 months, a significant break in a relationship for such a young child.

(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;

  1. These people are very child focused and should be involved in counselling and mediation and not litigation, if they have further issues. I will do my best to draft orders that avoid further litigation. But in the circumstances of incremental development of time with the child, not everyone will be content with these orders.

(m) any other fact or circumstance that the court thinks is relevant.

  1. The Mother when giving evidence said the following about providing information to the Father about “treators” who had seen [X]:

    “MS HASIKMS HARRIS:   I chose not to respond, because Mr WilburNathan had already been given the contact details and he was wanting to enter into another conversation.  And it’s part of ‑ ‑ ‑

    HIS HONOUR:   So did you actually write there, “I’ve already given them to you?”

    MS HASIKMS HARRIS:   No, because that’s part of the argument.  So I just ‑ ‑ ‑

    HIS HONOUR:   But that – that’s all you’ve got to say.  And he will say no, so you text them again.  You’re going to get a bit of that.  Can’t you see, you guys have got to be a little bit forgiving of each other’s little foibles. 

    MS HASIKMS HARRIS:   These aren’t little foibles.  These are deliberate attempts to wind up and debase. 

    HIS HONOUR:   I know you say that, but look ‑ ‑ ‑

    MS HASIKMS HARRIS:   And they’re constant.  They’re constant.

    HIS HONOUR:   Say you’re right, say that he knows, and he writes in the communication book, “Look, I want the phone number of the nutritionist.”  Why can’t you write next to that the phone number, and just leave it at that?

    MS HASIKMS HARRIS:   Why can’t he google it?

    HIS HONOUR:   Sorry?

    MS HASIKMS HARRIS:   Why can’t he google it?  On the same page was the name Jenny Johnston, (omitted)(omitted).

    HIS HONOUR:   Because he hasn’t.  And that’s what a communication book is all about.

    MS HASIKMS HARRIS:   I’m not responsible for him.  He’s responsible for him.

    … ….

  2. This exchange took place when the Mother was cross-examining the Father:

    HIS HONOUR:   If you were told what time [X] wakes up, would that change your attitude to what time he should be dropped off?‑‑‑It would, yeah, it would have a bearing.  Yes.

    MS HASIKMS HARRIS:   So if you knew that, regardless of what time [X] goes to bed at night, that he wakes up at 5 am every morning, occasionally 4.30 am every morning – this morning it was 4 am – and that getting to bed early means that he gets sufficient sleep in ‑ ‑ ‑

    HIS HONOUR:   What time does he normally go to bed?

    MS HASIKMS HARRIS:   We go to bed about 5.  And he will take – depending on what – what’s happened during the day, he can take two to three hours to fall asleep.  If he has had a – if it’s a normal day ‑ ‑ ‑

    HIS HONOUR:   So what’s your bedtime practice?  Do you read books to him?

    MS HASIKMS HARRIS:   Yes.

    HIS HONOUR:   And he’s in bed for some two to three hours before he goes to sleep?

    MS HASIKMS HARRIS:   If he has had a really disturbed day.  So if he wants to talk about chainsaws coming at his head or other things, and he wants to move around and buck and twist and bang his feet against the walls and do things, then, yes, it takes him a really long time to be able to switch off.  And in part I think that’s due to pyrroles.  In part I think it’s due to just how he is.  In part I think it’s due to anxiety.  I – I – you know, I’m not an expert on this, but that’s the reality of what happens with this child.  On a good night, when things have gone beautifully smoothly all day and everything has been great, he will take one hour to fall asleep. 

    HIS HONOUR:   Take an hour.  Let’s talk about a good night.  How many books do you read to him during that hour?

    MS HASIKMS HARRIS:   We start – I start the bedtime – so I’ve changed our whole routine around.  We now have our main meal – cooked meal – occurs in the middle of the day.  And we have that after nap, usually around 2 o’clock.  We’ll have a snack at about 4.  And then that’s when we start our wind-down.  We will – I will – I will sit down and read a book.  [X] will do some playing and cruise around.  You know, we will – if people are around, we farewell them.  If we’ve been out anywhere, I make sure that we’re home at four – you know, by 4 o’clock.  Or I do my best.  Obviously I – I can’t always make this happen, but this is – this is a good day.  Then we – yes, so [X] has got a couple of books that he likes to – that he really likes to read at the moment.  And at other times he has had other things that he likes to do, but we sort of sit down and have this unwind time that usually goes till about 5 o’clock.  And we check in with each other and – and just – but we just sort of have a bit of separate time.  But at 5 o’clock we go into the room, brush – yes, because we’re in a one – in a two-room place at the moment.  That’s – the bathroom and the bedroom is the same.  We go in there, close the door, lights go off, and we’ve got a low ‑ ‑ ‑

    … …

    HIS HONOUR:   So how long have you been doing this, the – just the snack, then bed?

    MS HASIKMS HARRIS:   12 months. 

    HIS HONOUR:   And have you told dad about this?

    MS HASIKMS HARRIS:   No, I haven’t communicated this ‑ ‑ ‑

    HIS HONOUR:   Why not?

    MS HASIKMS HARRIS:   ‑ ‑ ‑ this part of his schedule to Mr WilburNathan. 

    HIS HONOUR:   Why not?

    MS HASIKMS HARRIS:   Well, I haven’t been asked and ‑ ‑ ‑

    … …

    HIS HONOUR:   Sorry, can I hold you there?  “We” get into bed?

    MS HASIKMS HARRIS:   Yes.

    HIS HONOUR:   Why do you get into bed with him?

    MS HASIKMS HARRIS:   We co-sleep.  And this is ‑ ‑ ‑

    HIS HONOUR:   Sorry?

    MS HASIKMS HARRIS:   This is the only way this kid goes to sleep.  And the only way he has ever gone to sleep.  And daytime naps as well. 

    … …

    HIS HONOUR:   So he started going to sleep in a bed when he’s aged 12 months.

    MS HASIKMS HARRIS:   Yes.  It was after we came ‑ ‑ ‑

    HIS HONOUR:   And it has always been your bed?

    MS HASIKMS HARRIS:   Yes.

    HIS HONOUR:   And he’s nearly three.

    … …

    HIS HONOUR:   You say from four he can stay overnight at dad’s.  Are you saying that when he starts staying overnight at dad’s that dad has got to sleep with him?

    MS HASIKMS HARRIS:   No.  What goes on in dad’s house is going to go on in dad’s house, and that’s going to be for [X] and dad to work out together, not – it’s not for my decision – it’s not my decision to make.

    HIS HONOUR:   You see, I find that a strange answer because I would have thought if you’ve told dad what goes on in your house, then the routine that he’s familiar with at your house can only assist him in dad’s house. 

    MS HASIKMS HARRIS:   I don’t believe that’s true

  3. Section 60CC(2) factors.

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

  1. In the case of McCall & Clark (2009) FLC 93-405 the Full Court considered this sub-section. At paragraph 109 the Court said:

    “The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”.

  2. It then went on to discuss in paragraph 115 the decision of Mazorski & Albright (2007) 37 Fam LR 518, where the Honourable Justice Brown said the following:

    “…I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one.”

  3. At paragraph 170, the Full Court said as follows:

    “Bennett J discussed the terminology in G and C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage of a child [sic].”

  4. It then went on to say that there are three possible interpretations of section 60C(2)(a) and concluded that it preferred the interpretation that was called the ‘prospective approach’ but also said that depending on the factual circumstances, the ‘present relationship approach’ may be relevant.

  5. The ‘present relationship approach’ was defined by the Court in paragraph 118 as follows:

    “(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”).

  6. The prospective approach, which I prefer, was set out at paragraph 118 as follows:

    “(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”)

  7. Currently, [X] has a meaningful relationship with his Father and Mother. I will pronounce Orders that will not only maintain that meaningful relationship, but they should also enhance it, particularly in relation to his Father.

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

(2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

  1. I shall deal with sub-sections 2(b) and 2A together. There is a definition of family violence in section 4AB of the Family Law Act 1975.  When one applies that to these facts, I am of the view that the Mother appears to have overreacted to the Father’s behaviour on occasions. However, there clearly were moments of anxiety for the Mother arising from their arguments during the failure of their relationship and early post separation disputes about [X]. However, the Mother gave me the clear impression that family violence is no longer an issue between them, and to her credit, is dealing with her anxiety about a post-separation relationship with her former partner.

Equal Shared Parental Responsibility

  1. The parents consent to this Order and therefore pursuant to sub-section (6) of s. 65DAA of the Family Law Act 1975 (Cth) I do not have to consider the criteria, however, it should be noted that given [X]’s tender years and historic lack of time with his Father, spending equal time with both parents would not currently be in his best interests.

Conclusion

  1. For the benefit of the parties in this case, I want to cite the following from the case of W(Children) [2012] EWCA Civ 999, which I believe is very relevant to their own circumstances and issues.

  2. In this case, Lord Justice McFarlane said the following:

    “73. The observations that I now make are part of a wider context in which the family courts seek to encourage parents to see the bigger picture in terms of the harmful impact upon their children of sustained disputes over the contact which is most neatly encapsulated in the words of Black LJ in T v T [2010] EWCA Civ 1366:

    “[The parents] must put aside their differences ... if the adults do not manage to resolve things by communicating with each other, the children inevitably suffer and the adults may also pay the price when the children are old enough to be aware of what has been going on.  ... It is a tremendous privilege to be involved in bringing up a child. Childhood is over all too quickly and, whilst I appreciate that both sides think that they are motivated only by concern for the children, it is still very sad to see it being allowed to slip away whilst energy is devoted to adult wrangles and to litigation. What is particularly unfair is that the legacy of a childhood tainted in that way is likely to remain with the children into their own adult lives.”

    74. In describing the statutory legal context within which decisions as to the private law arrangements for a child are to be made, I have stressed that it is the parents, rather than the court or more generally the state, who are the primary decision makers and actors for determining and delivering the upbringing that the welfare of their child requires.  I have stressed that, along with the rights, powers and authority of a parent, come duties and responsibilities which must be discharged in a manner which respects similarly held rights, powers, duties and responsibilities of the other parent where parental responsibility is shared.


    75. In all aspects of life, whilst some duties and responsibilities may be a pleasure to discharge, others may well be unwelcome and a burden.  Whilst parenting in many respects brings joy, even in families where life is comparatively harmonious, the responsibility of being a parent can be tough.  Where parents separate the burden for each and every member of the family group can be, and probably will be, heavy.  It is not easy, indeed it is tough, to be a single parent with the care of a child.  Equally, it is tough to be the parent of a child for whom you no longer have the day to day care and with whom you no longer enjoy the ordinary stuff of everyday life because you only spend limited time with your child.  Where all contact between a parent and a child is prevented, the burden on that parent will be of the highest order.  Equally, for the parent who has the primary care of a child, to send that child off to spend time with the other parent may, in some cases, be itself a significant burden; it may, to use modern parlance, be "a very big ask".  Where, however, it is plainly in the best interests of a child to spend time with the other parent then, tough or not, part of the responsibility of the parent with care must be the duty and responsibility to deliver what the child needs, hard though that may be.”

  3. I raise these comments in my conclusion of this judgment for the benefit of the Mother in particular, and ask that she reflects on these comments. She wants to be the best parent possible for [X], but in my view she appears to be wearing blinkers in relation to the importance of him having a satisfying relationship with his Father. She must reflect on the reality of life that [X]’s relationship with his Father is quite different to the relationship she had with her former partner.

  4. The Mother presents with an attitude that her approach is absolutely correct, and appears to feed her confirmation bias with research and other information that support her views. She must understand that if [X] is going to be happy and healthy, both physically and emotionally, he must have an enriching and free relationship with both of his parents.

  1. Overall, having considered all of the evidence, including but not limited to the two Family Reports and in particular, the parties’ evidence and presentation at Court, I have decided in the unusual circumstances of this case to generally adopt the proposal of the Father in conjunction with the second Family Report recommendations, but modified around [X]’s current regime with his Mother.

  2. The Mother made some relevant and helpful comments, including details of [X]’s bedtime routine (which the Father recognised), and so initially time with will cease at 4pm. Also it will be two out of three weekends rather than each weekend initially, to allow the Mother and [X] some weekend time with others.

  3. The Mother’s proposal, in my view, is not in the best interests of [X] given it is overly slow and an overly careful approach. It would not develop a relationship between Father and son in a style that is envisaged by the provisions, objects and principles of the Family Law Act 1975 (Cth), and in particular, section 65DAA of the Act.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Curtain

Date: 1 May 2017

Key Legal Topics

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  • Family Law

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  • Jurisdiction

  • Procedural Fairness

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G & C [2006] FamCA 994