Woodie and Zylot

FAMILY COURT OF AUSTRALIA

WOODIE & ZYLOT

[2008] FamCA 1190

FAMILY LAW – CHILDREN – Length of time spent with Father – Where the child spends time – Best interests of the child – Attachment to primary carer – Domestic violence and drug abuse

APPLICANT:

Mr Woodie

RESPONDENT:

Ms Zylot

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

FILE NUMBER:

PAC

612

2007

DATE DELIVERED:	2 December 2008
DATE ISSUED:	30 January 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

1 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

The Applicant Father appeared by telephone on his own behalf

SOLICITOR FOR THE RESPONDENT:

Ms Rew, solicitor of Sandra Rew Solicitor appeared by telephone for the Respondent Mother

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Hammond, solicitor of Legal Aid NSW appeared by telephone as the Independent Children’s Lawyer

Orders

The child, … born … April 2006 (“the child”) live with the Mother.
The Father and Mother to have equal shared parental responsibility for the child.
The Father spend time with the child at all such times as the parties may agree in writing but failing agreement as specified in this Order.

8 December 2008 to End of April 2009

Commencing 8 December 2008 the Father is to spend time with the child in the Coffs Harbour area from 9.00 am Tuesday to 5.00 pm Thursday on the second and fourth Tuesday of each month between now and the end of April 2009.
The child is not to be taken more than 50 kilometres from the Coffs Harbour Post Office during this period.

From Beginning of May 2009

Commencing the beginning of May 2009 the Father is to spend time with the child from 9.00 am Tuesday until 5.00 pm Friday on the second Tuesday of each month and from 9.00 am Tuesday until 5.00 pm Thursday on the fourth Tuesday of each month.
The Father is not to remove the child more than 50 kilometres from the Coffs Harbour Post Office when spending time with the child on the fourth weekend of each month.
Commencing Christmas 2009 the Father is to spend the first and third weeks of the New South Wales Christmas holidays for State Schools with the child.

Changeover

Changeover at all times is to be at the Interrelate Contact Centre or in the event the Contact Centre is not open outside the Police Station.
The Father is to bear any costs associated with attendance at the Contact Centre.

When Child Commences Full Time Schooling

Once the child commences full time schooling the Father is to spend time with the child from the conclusion of school on Friday until the start of school on Monday every alternate weekend.
Subject to paragraph 8 above, parties to negotiate when the Father is to spend time with the child during school holiday periods, failing which the Father is to have alternate weekends on a continuous basis, regardless of whether it is the school term or school holidays.
Once the child commences full time schooling the Father is to collect the child from school and return the child to school.

Telephone Communication

Until the child commences school the Father is to have telephone communication with the child between 6.00 pm and 6.15 pm each Friday and on the child’s birthday with the Mother to initiate the telephone calls.
When the child commences school the Father is to have telephone communication with the child between 6.00 pm and 6.15 pm each Wednesday and on the child’s birthday with the Mother to initiate the telephone calls.
Within fourteen (14) days the Father is to receive asthma management education from Ms F at the Health Centre or in the event Ms F is unavailable such other person as the paediatrician Dr N may nominate. In the event the Father does not produce evidence of having undergone asthma management education in accordance with this Order the time with his daughter is suspended until he has completed such education.
Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: PAC612 of 2007

MR WOODIE

Applicant

And

MS ZYLOT

Respondent

REASONS FOR JUDGMENT

The parties’ child is 2 years old. The child lives with her mother in the Coffs Harbour area, her father resides in Sydney. I am asked to determine what time the father should spend with his daughter, and whether there should be any limitations on his proposals to take her to Sydney during contact periods.
The operative order at the current time is an interim order made by Bell J on 18 June last year. That order provided initially for supervised daytime only time gradually increasing over a period of some 12 months. By paragraph 3B(iii), the contact was to increase to the first and third Friday of each month from 9.00 am on the Friday until 5.00 pm on the following Tuesday. That is a total of some ten days/eight nights each four week period. It is the father’s position in this litigation that final orders should be made in terms of the interim orders. He was also of the view there should be no geographic restriction on where he spends time with his daughter.
The father was not legally represented and he appeared to overlook the fact that, by paragraph 2 of the interim orders, the mother has sole responsibility for all decisions about the long term care, welfare and development of the child. The position of the mother was that she sought an order for joint responsibility. I will touch on that briefly during the course of these reasons, but I will be making an order for joint parental responsibility, notwithstanding the position of the father, as I believe it probably was an oversight on his part.
The orders that the mother seeks are set out in paragraph 1 of her summary of argument document. Her proposals are that until the child turns three, which would be in April next year, the father’s time be limited to 9.00 am Friday until 5.00 pm Saturday each fortnight, that is two nights/four days each four week period. From May next year she proposes from 9.00 am Friday until 5.00 pm Monday for one fortnight period and 9.00 am Friday until 5.00 pm Sunday for the following fortnight period; whether it is the first and third Fridays or the second and fourth Fridays is not greatly relevant I would have thought. So the mother’s proposals, after May next year, consist of seven days, five nights in a four week period. She also proposes two weeks holiday continuous period over Christmas. There is no provision in the interim orders made by Bell J for any holiday time.
The position of the independent children’s lawyer was that until the child turns three the father spend time from 9.00 am Tuesday until 5.00 pm Thursday each alternate weekend, that would be four nights in a four week period, and then from May next year from 9.00 am on the second and fourth Tuesday of each month until 5.00 pm on that Friday. That would be a total of six nights in a four week period. In paragraph 3C the independent children’s lawyer also proposes two weeks of Christmas holidays but breaks those up into two one week periods.
Therefore as from about May next year, the father wants eight nights in a four week period, the independent children’s lawyer suggests six nights and the mother says five nights. That is one of the principle areas of dispute. There are other areas to which I shall advert during the course of these reasons.
The matter was heard by telephone link on yesterday’s date with the mother, the father and the independent children’s lawyer being in the courthouse at Coffs Harbour. I presided in the Court in Brisbane. A family consultant, Mr P, who produced an assessment report in recent times, gave brief evidence from the Court in Brisbane.
I briefly refer to an article in the 1983 volume of the Australian Law Journal, volume 57 by Loretta Rea “Oral versus written evidence, the myth of the impressive witness”. She quotes a passage from the text on Wigmore on Evidence to the following effect:
“The witness’s personal appearance is desirable because the jury may well be influenced in judging his credibility by seeing and hearing him in person to note the readiness and promptness of a witness’ answers or the reverse, the distinctness of what he related or lack of it, the directness or evasiveness of his answers, the frankness or equivocation, the responsiveness or reluctance to answer questions, the silences, the explanations, the contradictions and the apparent intelligence or lack of it.”
Further on in the article she discusses a whole series of experiments that have been done in various forms. She observes:
“The conclusion to be drawn from these experiments is that body movements will be of more assistance than facial expression in determining the honesty of a speaker, only when the observer is acquainted with the non-verbal behaviour and mannerisms of the speaker. Where the observer is not acquainted with the speaker neither the facial expressions nor the bodily movements will assist him in those cases. Overall the results suggest that the ability of the average person to draw sound inferences from the demeanour of a speaker is not to be trusted and that lawyers have probably over-estimated the value of actually perceiving the witness when he appears in the box. However, these conclusions might be tempered by certain other considerations.”
Later in the article at page 681 the learned author notes:
“Not only does it appear that observations of facial expressions and bodily behaviour by the fact finders may not normally assist in determining the honesty of the witness or the value of his testimony, but there is also evidence that the manner and appearance of the witness may actually mislead the fact finder about the value of the testimony.”
I have digressed into that area just to place on record that I do not believe in my consideration of this matter that the parties are prejudiced by the fact that I have not had the opportunity to personally observe them. I have listened carefully to the evidence, I have read the affidavits, read the reports and read the subpoenaed material.
Fortunately the issues are within relatively narrow compass, although I appreciate the importance to the parties in their quest for an ongoing relationship with the child. I have fully appreciated the fact that the father is not legally represented. The mother and the independent children’s lawyer were represented by their respective solicitors.
As is my usual practice I commence a consideration of the evidence by an examination of the reports prepared by the two family consultants. Ms B prepared a report dated 30 January this year, and Mr P with his report of late November. By any measure that is the most objective assessment before the Court.
Ms B is currently in the United States of America. Fortunately she was not required for cross-examination. She had the advantage of seeing the parties and seeing their interaction with the child. I am conscious of the fact though that her report is almost 12 months old and that the child was much younger at that stage of her life, she was only one year of age, but also the fact that at that point in time the father had not had the full opportunity to build up a relationship with the child as provided for in the orders of June last year.
Ms B records the biographical details of the parties, the father was born in 1953 and the mother in 1969. The relationship is described as an on again, off again relationship which commenced in about October 2002. At the time the parties resided in Sydney. There was no real period of cohabitation.
As I have noted, the child was born in April 2006, the mother relocated to the Coffs Harbour region in June 2006 when the child was a mere two months of age. She relocated after an incident occurred where she was assaulted by the father. The mother’s account is set out in paragraph 20 of her affidavit filed in July this year. Immediately after the birth the father, at the invitation of the mother, spent time in her home; that was a very positive sign at the time but unfortunately for the reasons described by the mother in her affidavit, it did not work out and she moved to the Coffs Harbour region to reside with her father.
The father thereafter spent time with his daughter in the contact centre in Coffs Harbour for periods in October 2006. In early 2007 he instituted proceedings in the Federal Magistrates Court. Those proceedings were instituted in Parramatta. They were subsequently transferred to Coffs Harbour and the file was transferred to this Court.
As I have noted, the interim orders were made by consent mid-2007. I was informed by the solicitor for the mother in the course of an earlier mention of this matter that the orders of June 2007 were a mistake on the mother’s part in that the times set out in the proposals being discussed were halved in an effort to reach agreement. In doing so it was overlooked that this would result in the father having four continuous nights with the child prior to the child turning three. This was, of course, contrary to the recommendation of the family consultant when her report came out in January 2008, who had recommended no overnight time until the child turned three.
It is not necessary to determine how the interim orders came to be made. Suffice to say at the present time the mother does not support a continuation of those orders in the present terms. In this she is largely supported by the independent children’s lawyer.
The father gave the impression of being of the view that because the interim orders were already in place there was a presumption they would continue. At the compliance check hearing I endeavoured to disabuse him of this notion by reinforcing that I must make a decision which I consider is in the child’s best interests and also I must make the decision based on the evidence before the Court. There was considerable comment made by me on the desirability of the parties reaching their own resolution as being the most desirable course.
In the course of MS B’s report she notes in paragraphs 8, 9 and 10 under the heading “Issues in dispute and issues identified during assessment”, she records:
“8. The issues for [the father] are that he is a capable parent and does not require supervision, that [the mother] has exaggerated his past drug use and associated violence towards her; and that [the mother] has psychological problems and has been abusive towards him and initiated much of the past relationship conflict.”
“9. The issues for [the mother] are that [the father] has been violent and abusive to her; particularly when using illicit drugs; that [the father] has limited parenting skills; that [the child] is not safe in her father’s care particularly when he uses drugs; and that [the child] is closely attached to her mother and is not able to cope with long separations from her mother.”
“10. The issues as I see it are the capacity of each parent to nurture and care for [the child]; the impact of any drug misuse; the nature of [the child’s] attachment with each parent with regard to the child’s age and developmental needs; the capacity of each parent to promote a positive relationship between [the child] and the other parent; and the impact of the distance between the parents’ homes on future parenting arrangements.”
At paragraphs 39 and 40 on page 12 of her report she records:
“39. Because of [the child’s] young age and her current limited capacity to vocalise her needs and wants, it is assessed that overnight time spent with her father would not be in her best interests. Until she is at least 3 years of age and is more able to verbalise her needs and until [the father] has completed a comprehensive parenting course, time spent should remain day times only.”
“40. In my opinion it would not be appropriate for [the father] to take [the child] out of the local area until overnight time spent has been well established. It would greatly enhance the development of [the child’s] relationship with her father and her sense of safety and security with her father if she were able to visit him in a stable familiar location in the Coffs Harbour area. To this end [the father’s] plan to relocate permanently to Coffs Harbour would be of great benefit to [the child].”
Ms B recommends the father undertake some parenting type course. Note the father does have an adult son with whom he appears to enjoy a reasonable relationship.
Some weeks ago when it appeared that this matter would not be resolved I made an order in Chambers for a family consultant in Brisbane, Mr P, to engage in reportable counselling to give the Court some indication of how far the parties were apart on critical issues.
Mr P prepared a specific issues report dated 28 November. In that report under the heading “Evaluation of impressions” he records:
“In respect to the claim that [the child] is too young to travel and be away from her mother overnight, I draw on developmental and attachment theory to offer some suggestion. It would appear reasonable to assume that [the child’s] primary attachment is with her mother. Generally speaking a child’s attachment sequences are not fully ‘laid down’ before the age of 3. It is widely accepted that significant disruptions to a child’s attachment experiences with their primary attachment figure prior to this age can often have negative consequences for that child’s later social, emotional and neuro-biological development.”
He continues in the final paragraph of his assessment report:
“[The father] is of the belief that [the child] is not adversely affected by either the train travel or spending time with him on an overnight basis. He appears to be basing this on his direct observations of [the child’s] behavioural reactions. He is also arguing that [the child] is now “Used to” the arrangements and “Looks forward” to the trip and seeing his family in Sydney. I attempted to invite [the father] to consider the alternative possibility that it is simply too difficult to accurately establish what [the child] feels about the arrangement but that I suspect considering her age, she might find the travel tiring and the separation from her mother at times confusing and unsettling. Although [the father] generally came across (I note the interview was by telephone) as a reasonably minded person, he maintained quite a rigid, opinionated position on these issues.”
I accept the opinions expressed by Ms B and Mr P, particularly as it relates to the well known developmental and attachment theories which have been widely adopted over the last 40 or 50 years in all major western countries.
In the course of oral evidence Mr P recommended the proposals put forward by the mother as being the most appropriate proposals for the child’s care in the years ahead. I note in his assessment Mr P records the father as saying “if I have to bend then I will bend”. I would observe that the father appears to have bent about as much as a steel post in a light breeze.
I turn to consider the written submissions put forward by the independent children’s lawyer. In paragraph 1 of those submissions it is recorded:
“It will be submitted that the mother is [the child’s] primary attachment and that whilst [the child’s] attachment to her father is rapidly developing, the need to protect the security of [the child’s] primary attachment is a weighty factor considering the history of the matter, [the child’s] stage of development and the intention of the father to spend time with [the child] away from the environment in which she lives her day-to-day life.”

In paragraphs 4, 5 and 6 he notes:
“4. It is submitted that an order is necessary to ensure the father is acquainted with the asthma management plans specific to [the child] as the father, despite recommendations made by [Ms B] and requests by the mother and independent children’s lawyer, has failed to take the actions to familiarise himself with that plan.”
“5. It is submitted that an order allowing the father to take [the child] away from the Coffs Harbour area should not be made until a history of successful overnight visits has been established and the father can satisfy that he is adequately familiar with [the child’s] asthma management plan.”
“6. The mother has demonstrated a responsible attitude to the responsibilities of parenthood including facilitating a close and continuing relationship between [the child] and her father despite a history of domestic violence between the parties and the father’s dismissive and disrespectful attitude towards the mother. “
“7. It will be submitted that the father, through his failure to undertake a parenting course, his failure to acquaint himself with [the child’s] asthma management plan, his inability to identify issues relevant to the care of [the child] and his disrespectful and dismissive attitude towards [the child’s] primary care and attachment as evidenced by paragraphs 8 to 35 of the mother’s affidavit sworn 24 October 2008, has indicated a somewhat cavalier and self‑centred attitude towards the parenting of [the child] by putting his own needs before those of [the child].”
The final paragraph:
“8. It is submitted that the order that shall be in [the child’s] best interests will be an order that provides for the father to spend time overnight with [the child] in the Coffs Harbour area until [the child] is 3 years old and thereafter and until [the child] commenced fulltime schooling, an order that allows [the child] to spend four days and three nights with her father twice a month, the maximum period that appears appropriate for [the child] to be separated from her mother and removed from the environment in which she lives her day-to-day life.”
I appreciate the strength of these submissions made by the independent children’s lawyer to which I have just made reference.
In coming to my decision I have had regard to the subpoenaed documents, a considerable number of them were tendered into evidence including records of the New South Wales Police Department, medical records, medical reports, records from the Contact Centre.
I turn to consider the evidence of the applicant father. To his credit the father has attended at Coffs Harbour to avail himself of every opportunity to see his daughter. I bear in mind the cost and the time involved and the dedication that such travel involves. He attended initially for just four hours at a time each fortnight, that is two hours per day, which was later extended to eight hours a fortnight and thereafter to 18 hours a fortnight. This last arrangement was for the father to have six hours unsupervised time on a Friday, Saturday and Sunday in the first week of a month, repeated for the third week. Thereafter it was to extend to 24 hours a fortnight, being six hours unsupervised on Friday, Saturday, Sunday and Monday in the first and third weeks each month.
The contact centre did not open on Sundays and Mondays. An impasse developed where the mother was not prepared to accede to various other proposals for changeover. In the course of cross-examination it was suggested the mother was not in compliance with interim orders. There is no direct evidence on this point but I am informed by the mother’s solicitor that the contact centre took the attitude that its personnel were not qualified to make recommendations delegated to such personnel by way of interim order 9(b).
I am unable to make a finding other than to note the mother has been generally compliant with orders in all other respects.
The mother’s evidence is that when the time came for the father to have the first block period of four nights as provided for in Order 3(b)(iii) of the interim orders, the father agreed he would not take the child to Sydney. I accept the mother’s evidence that this was her understanding. The father thereafter took the child to Sydney.
When in Sydney father and daughter resided in a home owned by the applicant’s 86 year old mother. For the past six weeks she has been in hospital. The father resides in the house with his 67 year old sister and of course the child.
I do not doubt the father’s commitment to his daughter nor his great love for her. I accept the child is pleased to see her father. The notes of the contact centre appear to bear that out. Whilst the father’s devotion to his daughter is obvious, the father’s treatment of the mother I have to record, has been nothing short of appalling.
The mother makes serious allegations of domestic violence, ongoing drug taking by the father and abusive and controlling behaviour generally. In large measure the mother’s allegations are corroborated by the subpoenaed material tendered into evidence. The father’s denials of such behaviour in the course of the hearing lead me to conclude he is a man lacking in credibility. In my assessment the father just does not get it. Because the child appears to be having an enjoyable time with him, therefore it is perfectly in order for the child to be taken away from her primary carer for four straight nights every fortnight.
Ms B and Mr P both stress that the child’s primary attachment is to her mother. This would not of course be surprising. As Mr P notes in his assessment:
“It is widely accepted that significant disruption to a child’s attachment experiences with their primary attachment figure prior to this age can often have negative consequences for that child’s later social, emotional and neuro-biological development.”
A common summary of this view is to be found in the old adage that for young children a contact parent’s time with that child should be a little, but often. The best way of ensuring such time with his daughter would be for the father to relocate to Coffs Harbour. He originally indicated an intention to make such a move but has since changed his position.
The Court is mandated to make orders which promote a father/daughter relationship and nobody wishes to in any way make that difficult or to interfere with the promotion of a proper relationship but only to the extent that such orders are, overall, in the best interests of the child.
The evidence before the Court from the experts, Ms B and Mr P, would indicate that four nights a fortnight is too much; the child would suffer separation anxiety and developing separation anxiety leads in later life to a whole range of emotional and social problems.
I turn to consider the evidence of the mother. Her evidence is largely contained in two detailed affidavits filed in July and October this year. She has had transcribed voice messages left by the father on her phone. She has reproduced text messages received by her. Certainly the tenor of those messages have the ring of truth about them, the mother would need to be a leading literary figure to be able to have invented the texts of such messages.
To observe that the messages left by the father are confrontational is almost an understatement. As I read the litany of insults and abuse by the applicant the thought crossed my mind whether it has ever occurred to the father to try being nice for a change. He might just find he will obtain a higher level of cooperation with the respondent if he adopted that approach. I have no reason to doubt the reliability of the mother’s evidence, she was cross-examined, there was nothing in cross-examination which caused me any concern.
I turn to consider the factors that I am required to take into account pursuant to s 60CC of the relevant legislation. The primary consideration I have to take into account is the benefit to the child of having a meaningful relationship with both of the child’s parents.
Notwithstanding the abuse, both physical and emotional, the mother has received from the applicant over the years, I am satisfied she has taken reasonable steps to foster a meaningful relationship between the child and her father. Examples include:
(a)   she has registered the child in the surname Woodie-Zylot;
(b)   she has permitted the father to have weekly phone contact even though           there is no order to that effect;

(c) she consented to arrangements on an interim basis permitting the father to             have increasing periods of time with his daughter; and
(d) the mother packs the bags with sun cream and other useful items for the child’s benefit when sending the child off for visits with her father. The       list does not purport to be exhaustive.
I would not be at all confident that the father would do all in his power to foster a meaningful relationship between the daughter and her mother if he had the care of the child for extended periods. I digress to note that for holiday times the only proposals for holiday are that the mother proposes two continuous weeks at Christmas. As I have noted, the independent children’s lawyer submits two one week periods. The matter was not the subject of any submissions in the hearing on yesterday’s date.
I am of the preliminary view that the position of the independent children’s lawyer is to be preferred. A fortnight is too long for a two year old to be away from the primary parent. Over a period of a fortnight the father might well engage in conduct which directly or indirectly alienates the child from her mother. I will however, hear submissions on this aspect prior to putting in place any orders relating to holiday contact of any kind.
The second matter I have to consider is the need to protect the child from physical or psychological harm, from being subjected or exposed to abuse, neglect or family violence. The father has been violent and abusive towards the mother in the past over an extended period of time. I am quite satisfied in that regard. The father does no credit to himself in downplaying the seriousness of his conduct.
It is highly unlikely the father engages in physical abuse of his daughter. The father is quite capable of denigrating the mother in the presence of the child. This would have an adverse psychological impact on the child if it was to be continuous. However if he does engage in such behaviour as the child gets older it is almost certain the mother will hear of it, the child will repeat it to the mother. At that stage further applications may be made to the Court and the father may find a consequence is that his time with the child is ordered to be supervised or it is seriously downgraded. It is not done to punish the father, it is done to protect the child so I issue that warning to the father: do not denigrate the mother in any way, shape or form in the presence of the child. If he has not done so then there is no need to worry, it is simply a caution being issued at this stage.
Under paragraph 3 of the terms of s 60CC I am required to take into account any views expressed by the child. The child is too young to be able to express any views. I do note that the records of InterRelate Contact Centre indicate the child moves freely on most occasions from her mother to her father and vice versa. The contact centre records were in two bundles, recording supervised times and on other occasions, changeover, change back reports. I note in the first category the record by way of example, of 28 July 2007:
“After [the child] was taken through to dad she was initially upset but settled within 10 minutes. Dad carried [the child] around for most of the visit showing her different things in order to keep her settled. [The child] appeared to be tired and was observed falling asleep a couple of times during the visit. Dad worked hard to keep [the child] settled during contact and staff did not have to intervene to provide assistance at any time.”
That entry is similar to most other entries of that period. It is encouraging to note that as time progressed the child was more relaxed and confident in visits with her father and started to move freely without any crying episodes, she moved freely between her parents.
The further matter I have to consider under sub-s 3 is the nature of the relationship of the child with each of the child’s parents and with other persons. I bear in mind that in visits to Sydney the child is able to see her paternal grandmother. At age two and a half it is difficult to say when a person’s memories relate back to but it is possible she will be able to have a memory of her paternal grandmother, particularly if it is reinforced by photographs later on. She is able to develop a relationship with her paternal aunt.
I accept that the father has a close and loving relationship with his daughter. I note, although the father may not accept this, that it is a credit to the mother that the child has such a close and loving relationship with her father. She has, indeed, encouraged phone contact, she has encouraged physical contact.
I have to consider 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. As I have said, I am satisfied that the mother would at all time encourage a relationship between the daughter and her father. I am not so satisfied in the other direction but I have already made my comments.
I have to consider the likely effect of any changes in the child’s circumstances. Having regard to the narrow compass in which the parties are in dispute I do not regard this as a relevant subject to comment on.
In relation to sub-paragraph (e), the practical difficulty and expense of a child spending time with and communicating with a parent, the father says that in future he will travel by aircraft. He has travelled by train, he says on only three occasions. I am unable to make a finding on that aspect. I am somewhat sceptical of his evidence though. To subject a child to an 18-hour round trip in a four-day period to my mind reveals a lack of insight as to the needs of a two year old child.
I note it would appear the father is unable to drive a motor vehicle because he is disqualified from holding a motor driver’s licence at the current time, as I understand the police reports. The father has had little income and I expect air travel would normally be beyond his means. He says it will be air travel in the future because he has a very understanding employer who is able to assist.
I am inclined to adopt the recommendation of the independent children’s lawyer that the father not take the child by train more than once a month on occasions when contact is to be in Sydney.
One of the father’s complaints is he does not want to be stuck in a motel room in Coffs Harbour. The period involved is only five months. It is a total of about 10 trips. If he were to travel up and back with the child for each trip there is considerable saving with air fares for himself and the child if the time is spent in Coffs Harbour. It necessitates only an up and back travel for the father instead of having to do the same journey twice. That saving could be expended, one would have thought, on reasonable motel accommodation. Coffs Harbour is quite a delightful area, he is able to take the child for walks on the beach, take the child to the harbour, see mutton birds’ habitats; there are numerous playgrounds and parks. If the weather is adverse he could bring games and books to engage the child. It would be much the same whether he is in a motel room or in a home in Sydney.
I accept the benefits of the child meeting with extended family in the Sydney environment but as I say, it is only for another five months and it accords with the recommendations of the experts.
I have to consider the capacity of each of the child’s parents and any other person to provide for the needs of the child including emotional and intellectual needs.
The mother sought orders for the father to undergo a parenting course. I accept that the father would benefit from the attendance at such a course, most parents do. However I do not see it as a necessity. Both parents appear capable of caring for the child in a material and generally in an emotional sense. The father has raised I think a 27 year old son so to that extent I will not be making an order, although it may improve the father’s parenting skills and if he wanted to accept the advice being given he may undertake such a course.
I find sub-paragraphs (g) and (h) not relevant. In relation to the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents, I note the father says he is drug-free at the present time and has been so for a significant period of time. In the course of cross-examination he was questioned about police records for entries relating to 18 October and 20 October 2005. I accept that that was three years ago. I have to record that I was far from satisfied with the veracity of the answers that he gave. Notwithstanding misgivings in that regard, there is no evidence of current drug use. It is likely that it would have been noted by contact centre staff if there was any sort of ongoing problem.
As noted earlier, it is concerning that the father displays a belligerent attitude towards the mother yet seemingly a happy, caring manner towards his daughter. I recall the adage by a well-known medical specialist in evidence years ago that the best thing a father can do for his child is to love the mother. Absent loving the mother, one would at least expect respect or at the very least a neutral stance. Here the father’s anger, hatred and bitterness are overwhelming. If he persists in such conduct ultimately it could well adversely impact on his relationship with his daughter.
Items (j) and (k) relate to indications of family violence. I have previously made my comments and I am under no illusions about that. The mother is fully entitled to be protected in every way, shape and form. She does not have to put up with the sort of abuse she has had to endure over the years.
I propose to make orders largely in keeping with those put forward both by the mother and/or the independent children’s lawyer. For the period to the end of April 2009 the mother seeks 9.00 am Friday until 5.00 pm Saturday. The independent children’s lawyer suggests two nights, Tuesday and Wednesday. On balance I propose to adopt the independent children’s lawyer’s proposals for the reasons advanced by the independent children’s lawyer.
The father is currently having four nights. It is appropriate to reduce that to two nights, that is at the very end limits, I think, of how long a child of this age should be separated from her primary attachment but to reduce it to one night is probably being over-cautious.
The father currently works as a salesman. His best opportunity for sales is said to be on weekends. The child is not attending at school. There were no details of any child care commitments but in any event such commitments would be secondary to the need for the development of an ongoing relationship with her father. I will again hear submissions if required on this aspect, but I propose to substitute weekdays 9.00 am Monday until 5.00 pm Wednesday on the second and fourth Monday of each month between now and the end of April 2009.
I have made it the second and fourth Mondays so as not to interfere with Christmas this year. The child will be returned to the mother at 5.00 pm Christmas Eve by the father. I will stipulate the father is not to take the child more than 50 kilometres from the Coffs Harbour post office during this period that he spends time with his daughter.
I will put in place an order that was not sought by any of the parties or recommended by the independent children’s lawyer but it is an order that I averted to during the course of preliminary hearings in this matter, namely an order in terms:
ORDER DELIVERED

This gives the parties the flexibility to change it, for example, from starting on a Monday to starting on a Tuesday or some other day of the week. I appreciate there is poor communication between the parties themselves but the mother can give her instructions to her solicitor and presumably that can be done in a relatively straightforward manner of such negotiations. In the alternative, the mother could elect to do it in writing.
Whilst mentioning in writing, I do not propose to make an order that there be a communication book. The father has been uncooperative in that regard. I do not see his attitude changing. I do not see that there is any benefit to either of the parties or the child in the continuation of such a method of communication.
From May 2009 I will adopt the mother’s proposals, save that I will make the time on weekdays. What I propose is that from 9.00 am Monday until 5.00 pm Thursday on the second Monday of each month and from 9.00 am Monday until 5.00 pm Wednesday on the fourth Monday of each month.
I will stipulate in the orders:
ORDER DELIVERED
I turn to consider Christmas holiday periods. These, by general consensus, will not commence until Christmas 2009. There were no submissions made by the father. Indeed, he wanted the interim orders to continue and there is no provision in the interim orders for holiday contact.
As I have said, the independent children’s lawyer suggests two one week periods. A week is a long time in politics, it is also even longer in the mind of a two year old or a three year old child. A fortnight is simply far too long even though by that stage, I accept, the child will be three and a half years of age, I think it is better that the child have the first and third weeks of the New South Wales State school holidays for the Christmas period each year commencing at Christmas 2009.
There may be occasions, depending when the school holidays start, that the father then would have the child for the Christmas Day/Boxing Day period. If that be the case, so be it. If the parties want to negotiate and agree to special arrangements for Christmas they can do so but it would mean there would have to be an improvement in the level of communication.
From the time the child commences school -
RECORDED : NOT TRANSCRIBED
- anyway, I am proceeding on the basis that the child would commence school at age five and a half in the year 2012, however, my comments equally apply even if the child was to start school in 2011. As from the time that the child commences fulltime schooling, it is to be hoped any difficulties the parties may have will resolve at counselling rather than line up for another bout of litigation.
The mother’s proposals are from Friday pm until Monday am each alternate week. It is to be from after school until the start of school on the Monday. There does not appear to have been any submissions made on this aspect. In orders sought by the father, the mother or the independent children’s lawyer there was no provision for term school holiday periods. The parties can negotiate that issue, otherwise the father has alternate weekends on a continuous basis, that is regardless of whether that is school term or school holidays.
I have serious reservations about weekend contact not concluding until the commencement of school on a Monday once the child commences schooling. I appreciate this is quite a few years hence but the prospect of bringing the child back to Coffs Harbour on a Monday morning, presumably after a weekend spent in Sydney, seems both complicated and arduous for the child. Questions of school uniform, school lunches, homework would all have to be borne in mind. I will hear submissions on this aspect at the conclusion of these reasons.
I turn to consider the issue of changeover.
ORDER DELIVERED
Once the child commences schooling the father may collect the child from school or return the child to school. The father is to bear any costs of the contact centre. I will hear submissions on that as there was no argument about it but the father is not paying child support. It is the father’s violent behaviour towards the mother which leads the Court to require changeover to be at a contact centre.
I turn to consider the issue of phone contact. Again, there did not appear to be any dispute about that.
ORDER DELIVERED
In relation to the mother’s concern about the father having a detailed understanding of the child’s asthma treatments, it seems to me the mother’s concerns are eminently reasonable and sensible. I propose to put in place that within 14 days the father receive asthma management education from Ms F -
RECORDED : NOT TRANSCRIBED
- from the Health Service or in the event Ms F is unavailable such other person as the paediatrician, Dr N, may nominate. In the event the father does not produce evidence of having undergone asthma management education in accordance with the previous order, the further time with his daughter is suspended until he has completed such education. I suspect it will only take half an hour or an hour at the best and the father could request a letter to say that all details have been explained to him as to the child’s requirements. If the father is not prepared to consent to that, it is his problem to deal with.
RECORDED : NOT TRANSCRIBED

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate:

Date: 2 December 2009
Issued: 30 January 2009

ADDENDUM TO JUDGMENT

For reasons I gave on 2 December 2008, I issued draft orders that were to be the subject of further submissions by the parties, including the Independent Children’s Lawyer. Brief written submissions were received from the Independent Children’s Lawyer and from the Mother’s solicitor. There were no written submissions received from the Applicant Father.
At some point in time prior to Christmas the Father sought permission for an extension of time in which to lodge submissions. This submission was granted in Chambers. Notwithstanding such permission still no written submissions were received from him.
The Mother proposes in her submissions that there be amendments to paragraphs 4 and 6 to provide for the Father’s time with the child to be between Tuesday morning and Thursday evening in each instance. The reasons set out are obvious, namely that the changeover is to occur at the Interrelate Contact Centre in Coffs Harbour, and the Interrelate Contact Centre is closed on Mondays.
I have no hesitation in making the amendments as proposed for the reasons given.
I note the submissions from the Independent Children’s Lawyer suggesting an amendment to paragraph 12 to provide for the Father to have a week’s holiday contact with the child for the term 1, 2 and 3 school holiday periods. I deliberately did not make an Order in those terms, the only provision for holiday contact is as set out in paragraph 8 of the draft Orders, namely for the first and third weeks of the New South Wales Christmas holidays commencing December 2009. The Father did not seek any holiday period, the Mother, as I recall, was prepared to grant a fortnights continuous time, but the Independent Children’s Lawyer proposed two one week periods. For the reasons I gave I decided to implement a regime in these terms.
Clause 12 provides for there to be no holiday contact during other term holiday periods, but the usual weekend contact will continue.
I do not see any need to amend the Orders in any further particular and final Orders may now issue.

[2008] FamCA 1190

2 December 2008

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