Yu and Morris

FAMILY COURT OF AUSTRALIA

YU & MORRIS			[2007] FamCA 1155
FAMILY LAW – CHILDREN – Best interests of the child – whether child will continue living with the father or relocate to live with the mother – weight to be given to the primary and additional considerations.
Family Law Act 1975 (Cth)
B and B(Family Law Reform Act 1995) (1997) FLC 92-755
APPLICANT:	Mr Yu
RESPONDENT:	Ms Morris
INDEPENDENT CHILDREN’S LAWYER:	Boyd Olsen, Lawyers
FILE NUMBER:	NCF	710		of	2003
DATE DELIVERED:	26 September 2007
PLACE DELIVERED:	Sydney
JUDGMENT OF:	The Hon. Justice Rose
HEARING DATES:	30 April 2007; 1, 2 & 3 May 2007; 14 September 2007
REPRESENTATION
SOLICITOR FOR THE APPLICANT:	H Byrne, Solicitor
RESPONDENT IN PERSON:	Ms Morris
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	C Cook
INDEPENDENT CHILDREN’S LAWYER:	Boyd Olsen, Lawyers

Orders

That each of the parties have equal shared parental responsibility for the child of the relationship of the parties … born … April 1999 (“the child”) AND that the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexure A.
That the parties ensure that the child live with the mother subject to Order 4.
That the parties make all necessary arrangements for the child to commence living with the mother by the father taking the child together with her clothing, belongings and personal effects to the mother at the N Children’s Contact Service or such other place as the parties may agree upon in writing at 12 noon on 29 September 2007.
That the parties ensure that the child spends time and communicates with the father as follows:
(a)Each alternate weekend during school term commencing at 5.30 pm on Friday until 5.30 pm the following Sunday or Monday at the same time in the event of it being a public holiday. The first occasion shall take place on the first Friday of each school term.
(b)Commencing from the school holiday period following the last school semester 2007, for half of each school holiday period which follows the conclusion of each school term being the first half in each odd numbered year and the second half in each even numbered year commencing at 10.00am on the first day and concluding at 5.30 pm on the last day PROVIDED THAT in any event the last day in the second half of the school holiday period shall conclude at 5.30 pm on the Saturday immediately preceding the commencement of the first school day of the new school term.
(c)From 3.00pm Christmas Day until 5.30 pm on Boxing Day in each alternate year, the first occasion to take place on Christmas Day 2007.
(d)From 5.30pm Christmas Eve until 3.00pm Christmas Day in each alternate year, the first occasion to take place on Christmas Eve 2008.
(e)On Father’s Day commencing at 5.30 pm on the preceding day and concluding at 5.30 pm on Father’s Day in the event that Father’s Day falls on a weekend when the father would not otherwise be spending time with the child in accordance with these Orders.
(f)For a period of two hours on the child’s birthday should it fall on a school term week day or for the same period of time on weekends should it fall on a weekend when the child would not otherwise be spending time with the father.
(g)For such alternative or other period or periods as the parties may agree upon from time to time.
(h)Reasonable telephone communication initiated by the father once a day prior to 7.30 pm and in the event that the child is unavailable to speak to the father for any reason after he has called and left a message, then the mother shall ensure that the child returns the father’s call as soon as reasonably practical.
That the parties shall ensure that the child spend:
(a)Mother’s Day with the mother in the event that it falls during a period when the child would otherwise be with the father pursuant to these Orders and in those circumstances the whole of the weekend during which Mother’s Day falls shall be spent by the child with the mother.
(b)A period of two hours on the child’s birthday should it fall on a day when the child would not otherwise be spending time with the mother.
That the father shall ensure that the mother is able to have reasonable telephone communication initiated by her with the child once a day prior to 7.30 pm during such period that the child is in the father’s care and in the event that the child is unavailable to speak to the mother for any reason after she has called and left a message, then the father shall ensure that the child returns the mother’s call as soon as reasonably practical.
That the parties shall ensure that the place of change-over for the child from the care of one party to the other in accordance with these Orders shall be the N Children’s Contact Service unless alternative arrangements are made by the parties.
That in the event of the child suffering from a serious illness or injury whilst in the care of one of the parties then that party shall promptly inform the other party and provide him or her with the name, address and telephone number of the relevant hospital or medical practitioner.

That the mother shall authorise the Principal of all schools attended by the child to furnish the father at his request and expense (if necessary) with copies of the child’s school reports, correspondence and notices in relation to all school functions, parent/teacher interviews, sport and extra-curricular activities.
That all documents produced on subpoena may be returned to the person who produced the same.
That the proceedings be removed from the Active Pending Cases List.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Rose delivered this day will for all publication and reporting purposes be referred to as Yu & Morris.

FAMILY COURT OF AUSTRALIA AT SYDNEY

File number: NCF710 of 2003

MR YU

Applicant

And

MS MORRIS

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings, each of the parties seeks orders that the child of their relationship (“the child”) who is 8 years of age having been born in April 1999 live with that particular party and communicate with and spend periods of time with the other party.
The applicant (who for convenience I shall refer to as “the father”) sought parenting orders in his Application for Final Orders filed 6 October 2005.
At the trial, the orders ultimately sought by the father are set forth in his case outline document which is Exhibit 12. With regard to the periods of time that the child should spend with the mother, the order sought by the father is that such periods take place “on each alternate weekend at an appropriate centre with such periods of time to be supervised”.
The mother appeared unrepresented throughout trial. The orders which have been sought by the mother were set forth in her Response filed 26 April 2007. Apart from seeking an order that the application of the father be dismissed, the mother also sought an order “that the orders made in the Family Court at Newcastle in proceedings number NCF710 of 2003 dated 11 February 2004 be confirmed”. Notwithstanding that incorrect terminology, it was clear from the conduct of the case that the mother sought orders that the child live with her, as she emphasised during the course of her submissions, and that the periods of time to be spent by the father with the child follow the regime which was the subject of the parenting orders made on 11 February 2004 (“the February 2004 orders”). Those orders provided for three weekends in each two calendar month period commencing on 10.00am on Saturday and concluding at 3.00pm on Sunday or Monday should it fall on a long weekend.[1]
[1] Order 14(c).
Other orders made in the February 2004 orders providing for what was then “contact” with the father, set forth a pattern of contact on a supervised basis for periods of time prior to May 2004. No submission was made by the mother to me that there now be supervised periods of time that the father spend with the child.
Each of the parties provided oral consent to the evidence being received in accordance with section 69ZT. It was implicit that sections 69ZT(1) and 69ZT(2) should apply given the absence of any submission that there was a reliance upon “exceptional circumstances” in accordance with section 69ZT(3).
Although it was apparent from the orders sought by each of the parties that attention had not been given to the presumption of equal shared parental responsibility referred to in section 61DA, upon my raising the issue with him, the solicitor for the father informed me that his client sought an order reflecting that presumption. The mother did not suggest there be a different order. Surprisingly, given the importance of the issue, counsel for the independent children’s lawyer did not make any submission in that regard when the issue was raised or during the course of his submissions at the conclusion of the evidence.
The parties and counsel for the independent children’s lawyer informed me that no reliance would be placed upon such of the affidavits that provide evidence of events prior to the orders made on 11 February 2004 (“the February 2004 orders”).
The child lived with the father immediately following the interim parenting orders made by Loughnan JR on 14 December 2005 (“the December 2005 interim orders”).
The mother has spent periods of time with the child since that time, although such periods have varied. For a considerable period no time was spent at all and pursuant to further interim orders made 7 June 2006 (“the June 2006 orders”), the mother has had supervised periods with the child. There were difficulties in relation to implementing those orders to which subsequent reference will be made.
The parties have a history of intense litigation in this Court in which parenting orders have been sought. In addition, there have been proceedings against the father in the Local Court in which apprehended violence orders were sought by the police.
The parties commenced cohabitation in November 1996 according to the father. The mother’s evidence is that the commencement date was during August 1995. There is no issue between them that their relationship has been volatile marked by periods of separation and reconciliations.
The mother in past litigation in this Court had alleged the father had sexually abused the child. The mother made it clear to me that those allegations were no longer pursued during the trial before me and that so far as she was concerned the matter was closed as it had been investigated by the authorities. Nonetheless, the question of whether or not the mother has accepted that the issue of child sexual abuse was indeed concluded so far as she was concerned, will be subsequently referred to by me as the matter was raised in evidence and during submissions.
The father contended that the parties finally separated in March 1999. The mother’s case is that the relevant date was during July 2001. There was little, if any, cross-examination in relation to the differences in the relevant dates contended by each of the parties. In those circumstances I am not in a position to be satisfied as to whose version of events should be preferred. Fortunately, fact finding in that regard does not have any relevance to the real issues in these proceedings.
The parties were not married to each other.
Subsequent to the judgment having been reserved, my Associate informed me of communication she had received from the mother which suggested that consideration was being given by her to an application being made to re-open her case. Following further communication with the mother, it was then made clear to me that neither party was seeking to make an application to re-open his or her case.
On 21 August 2007 my Associate received a communication from the mother that she intended to seek leave to re-open her case to put forward evidence regarding further apprehended violence order proceedings due to be heard in the Local Court on 27 August 2007.
On 28 August 2007 my Associate received a further communication from the mother alleging that on 27 August 2007 an apprehended violence order was made for the protection of the mother from the father for a period of two years. My Associate then provided copies of the mother’s communication to the solicitor for the father and the independent children’s lawyer seeking further information from them as to whether or not there was objection to copies of that order and other court documentation in support of the application being received as an exhibit in the proceedings before me.
On 29 August 2007 my Associate was informed by the independent children’s lawyer that she had no objection to the tender of the abovementioned documents should the matter be re-opened. In addition, the independent children’s lawyer informed my Associate that as she was unaware of the status of one particular document and therefore was not in a position to indicate whether it would be objected to or not.
On 30 August 2007 a communication was received by my Associate from the father’s solicitor advising that he objected to the documents to which I have referred being admitted as an exhibit.
Consequently, I made arrangements for the re-listing of this matter before me on the earliest available date, namely 14 September 2007, notwithstanding that I was due to give judgment and make orders on 31 August 2007 in accordance with notice previously given to the parties. I desired to ensure that the earliest available date was fixed and that the parties had reasonable notice.
On 14 September 2007, I ordered that the mother be granted leave to re-open her case. That order was ultimately made unopposed after the solicitor for the father had obtained further instructions. As a consequence, I received into evidence the Affidavit of the mother sworn 6 September 2007 (a duplicate having been sworn on 11 September 2007) and an Affidavit of the father sworn 13 September 2007.
On 14 September 2007, I also heard the submissions made by the mother, the solicitor for the father, and the independent children’s lawyer. I was specifically informed that no application was made to cross-examine either the father or the mother.
The father is 57 years of age and practices medicine. The father lives in the west of Sydney.
The mother is 47 years of age and is employed as a teacher at B School. The mother lives at B, coastal NSW.
There is considerable travelling time between the residences of the parties.
The father has three children of his prior marriage. The evidence does not give their dates of birth. However, the three children appeared to be 24, 21 and 19 years respectively. None of the three children from his prior marriage live with the father.
The mother has two daughters of her prior marriage. They are P and L aged 20 and 16 years respectively. P is employed and lives in Sydney. L attends school and lives with the mother.

Prior relevant orders

The February 2004 orders provided for the child to reside with the mother, subject to gradually increasing periods of time spent with the father ranging from during particular days on a weekend on a supervised basis to unsupervised weekends, apart from periods during school holidays and other special occasions.
On 15 September 2005 and 20 October 2005 in the Local Court interim apprehended violence orders were made for the protection of the mother from the father.
It was agreed between the parties that the December 2005 interim orders, which were interim parenting orders, provided for the child to reside with the father and the mother to spend periods of time with her for certain periods during January 2006 and thereafter alternate weekends commencing 11 February 2006 or, as otherwise agreed between the parties in writing. Such periods were to commence and conclude at McDonald’s restaurant in H. The mother was restrained from removing the child from the Sydney metropolitan area.
On 19 January 2006 an apprehended violence order was made for the protection of the mother from the father to remain in operation for a period of 12 months.
On 17 May 2006 upon the application of the father a recovery order was made for the purpose of the child being placed in the care of the father (“the recovery orders”). The orders for contact made 14 December 2005 were suspended until 6.00pm, 7 June 2006. Liberty was granted to apply upon 48 hours notice.
On 7 June 2006 an order was made by consent for the appointment of Dr B, psychiatrist, as the court appointed expert to enquire into and report upon specific matters relating to the welfare of the child. Further consent orders were made on that day which provided for the mother to spend periods of time with the child on each alternate Saturday for a period of four hours at the R Contact Centre on dates and times nominated by a representative of that centre. In the event of such time being unavailable, then the period was to be for the times offered on behalf of that centre. Liberty was granted to apply on 48 hours notice.
On 3 May 2007 interim orders were made by consent providing for the child to live with the father and that the mother spend time with and communicate with her at the N Contact Centre each alternate weekend for a period of four hours commencing 12 May 2007 provided that should that centre offer supervised periods of time for less regular periods of time then the mother shall spend periods of time with the child in accordance with that availability. Liberty was granted to re-list the matter on 48 hours written notice.
There was no issue that on 27 August 2007 in the Local Court an apprehended violence order was made against the father for a term of two years. That order required the father inter alia:
(a)not to assault, molest, harass, threaten or otherwise interfere with the mother,
(b)not to engage in intimidating conduct towards the mother,
(c)not to enter or go within 100 metres of the mother’s place of residence or work,
(d)nor to approach or contact her except through her legal representative or as agreed in writing “or as permitted by an order or direction under the Family Law Act 1975 for the purpose of counselling, conciliation or mediation”.
In the absence of submissions to the contrary, I proposed to give a wide interpretation to the quoted terms of the apprehended violence order to include an order under the Family Law Act 1975 which facilitates communication in the specific circumstances set forth in the orders I will make upon this judgment being given.

Relevant legal principles pursuant to the family law act 1975 as amended (“the act”)

Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
“A Court must regard the best interests of the child as the paramount consideration.”
That provision is re-emphasised in section 65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in sections 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in section 60B, which set out the Objects of the provisions of Part VII of the Act in relation to the child and the principles that underlie those Objects. In substance, they include the benefit to children of parents having:
“a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children”. {emphasis added}

The principles underlying those Objects, in summary, include:
(a)a child having the right to know and be cared for by both parents;
(b)a child having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their child;
(d)the imperative for parties to agree about future parenting of a child; and
(e)the child’s right to enjoy their culture including with others who share that culture.
It is important to note that s 60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” {emphasis added}. To that extent, the recent legislative amendments to the Act in relation to a child continue what has sometimes been described as “the over-arching principle”[2], namely that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order.
[2] B and B, Family Law Reform Act 1995 (1997) FLC 92-755
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the child, the subject of these proceedings.[3]
[3] B and B, ibid

Relevant matters pursuant to section 60cc

Section 60CC(1) makes it clear that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[4] The exception is found in section 60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.
[4] Section 60CC(1)
The primary considerations are:
“(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.”[5]
[5] Section 60CC(2)
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”.
Consequently, I propose to make findings of fact in relation to matters that are signposted in section 60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the two children and the parenting orders that will be made.

Views expressed by the child and other relevant factors

Evidence has been given by each of the parties that the child has directly or indirectly expressed the view by her words or actions at various times in the past indicating her preference to live with one party or the other.
Independent evidence was given by the court appointed child expert, Dr B, consultant child psychiatrist. Dr B’s report is Exhibit 1.
It is clear from Exhibit 1 that the child has expressed a firm view to live with the mother and to be able to visit the father for three or four days at a time. There was little, if any, challenge of the recording of those views by Dr B in Exhibit 1. Indeed, the oral evidence of Dr B did not represent any departure from Exhibit 1.
I accept the evidence of Dr B as set forth in Exhibit 1. Accordingly, I find that the child has expressed genuine views of her desire to primarily live with the mother.

The nature of the relationship of the child with each of the parties and other persons

Exhibit 1 records the conclusions of Dr B that the child:
“has a strong though disorganised and insecure attachment to her mother, and a strong but better organised and more secure attachment to both of her older sisters on her mother’s side. Although she seems to be settling in to her father’s house, I formed the view that her attachment to him is insecure and not particularly emotionally expressive.”
Dr B further concluded that the child was oppositional and defiant in terms of a protest about living with the father following her first commencing to do so. Dr B further commented that although that behaviour was still present to a degree there has since been “quite a bit of clinging behaviour with him, particularly at night” and that there is a commencement of adjustment to living with the father “but without a great deal of affection for him as yet”.
During the course of cross-examination of Dr B other issues were explored. However, there is no suggestion in his evidence that the observations and conclusions to which I have referred were inaccurate in any way. That is an important aspect of the evidence before me given that Exhibit 1 is somewhat aged given that it is dated 5 October 2006 following interviews that took place in August 2006. Dr B’s attention was not drawn to any matters which may have suggested that with the effluxion of time his conclusions needed to be revised.

The willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the child and the other party

The evidence of the father is that in 2004 following the February 2004 orders, he was having difficulties in arranging telephone communication with the child.
The father’s affidavit evidence is that direct face to face periods with the child were uneventful in the second half of 2004.
During the father’s oral evidence, he stated that he was satisfied with the arrangements in the circumstances reflected in the February 2004 orders. He saw the child when he could. He agreed there was an occasion when he could have spent longer period of time with the child beyond the time that he returned her to the mother. The father stated that he saw the child when it suited him having regard to his professional commitments.
The father’s oral evidence was that in summary the February 2004 orders were working well until the child moved to what he regarded as an unhabitable situation and he was accused of child sexual abuse.
The father’s evidence also was that in 2005 there were intermittent difficulties with telephone contact due to the direct involvement of the mother’s then boyfriend, Mr S.
Ultimately, following sexual abuse allegations made against the father and the December 2005 interim orders, the child commenced to reside with the father and has continued to do so.
On 14 May 2006 there was a distressing incident with the child when she did not return to the father following Mother’s Day spent with the mother. The evidence of each of the parties is that the child refused to leave the mother’s car to return to the father. The father claims the mother did not encourage the child to return to him.
On 17 May 2006 a recovery order was made on the application of the father and the child returned to his care at the local police station.
On 7 June 2006 orders were made for the mother to have supervised periods of time with the child at the R Contact Centre.
The father has contended that the child was happy to return to his care following the conclusion of such supervised periods with the mother.
The father’s evidence is that his main concern is that if there is unsupervised periods of time spent by the mother with the child then she will continue to manipulate the child to make erroneous allegations against him of child sexual abuse.
The mother’s evidence is that whilst the child resided with her, she encouraged and facilitated the child in having ongoing periods of time with the father as well as acquiescing in his request for change of venue.
With regard to alleged difficulties of telephone communication between the father and the child, the mother’s evidence is that at times the father telephoned the child too late or otherwise the child was unavailable. However, the child was encouraged by the mother to telephone the father and left messages for him that did not receive a response.
The mother contends that for a period of approximately three months, that is over the period May to end of August 2006 the father would not allow the child to spend periods of time with the mother and her sisters or other family members in the circumstances that the R Contact Centre was unavailable and he would not co-operate in making arrangements for alternative supervised periods.
In addition, the mother’s evidence is that the father would not agree to the child being able to speak to L by telephone and this has been an ongoing problem.
There have been continuing difficulties this year between the parties in relation to venue and the period of time available for the mother to have supervised periods with the child. Alternatives were suggested by her having regard to her relocation to B on the NSW coast and the long travel that would be involved in having supervised periods with the child at the R Contact Centre. The mother alleges the father has been unco-operative in submitting the necessary forms for contact centres on the NSW coast as a result of which the child did not have contact with the mother or L for about three months following 4 February 2007.
There is substantial evidence in the mother’s case to support her contention that the father has actively prevented the child from telephoning the mother. As appears in Exhibit 1, the father conceded that he has so prevented the child as he claims that in the past after such calls the child was defiant, unco-operative and angry towards him.
There is also considerable evidence of unsuccessful attempts by L to speak by telephone with the child during the period since the child commenced residing with the father. That evidence is not disputed.
I prefer the evidence of the mother to that of the father in relation to the difficulties that have ensued so far as putting arrangements in place with suitable variations to meet exigencies in order to ensure regular supervised periods of time between the child and the mother.
I also accept the mother’s evidence in relation to the lack of response and encouragement for telephone communication between her and the child and the child and L. No doubt arrangements could have been put in place to enable calls to be monitored, if indeed the child was being manipulated or distressed by the mother. The lack of appropriate response and encouragement for the child to speak with her sister L from time to time despite L’s entreaties to do so seems to me to have been harsh and unwarranted, especially in circumstances where there has not been an issue that the child and L have had a close, or at least a very fond relationship.
The further evidence of the mother set out in her Affidavit sworn 6 September 2007 demonstrates a more appropriate approach by the father by his text message dated 4 May 2007 when he informed the mother that the child would like to talk to her and L. The father asked the mother if she had a landline. At the same time the father stated that he would record all calls between the mother and the child and “anyone else who wants to speak to her”.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of separation from the father or any other person with whom she has been living

The likely effect of changes in the child’s circumstances whereby she would commence living with the mother is apparent in a number of ways.
The child would be able to realise her views of primarily living with the mother in accordance with the findings made by me. It would enable the child to overcome her distress at being separated from the mother and according to Dr B (whose evidence I accept) the child would be unlikely to suffer an adverse reaction to the transition from living with the father to living with the mother.
The tenor of Exhibit 1 is that the child has a stronger attachment to the mother than the father, although in each instance those attachments are insecure.
I also accept the evidence of Dr B that the child has more secure attachments to both L and P which is likely to become more reinforced and of benefit to the child in terms of her living with L in the same household.
The child would have to meet other changes such as a new school, making new friends at school and otherwise, as well as some disruption to the friends the child currently has should she no longer with the father.
The child apparently has been making satisfactory progress at school and has been able to continue being involved with the local pony club providing a fulfilling experience for her as historically the child has been active in a number of pony clubs and developed a love of horses when living with one or other of the parties.
A further obvious likely effect is that the child would no longer have the daily care and supervision of the father and the stability that his household has provided for the benefit of the child since the December 2005 interim orders.
The likely effect upon the child would also depend upon the stability that the mother can now provide in terms of her ongoing daily care and supervision in a settled environment both in terms of premises and emotionally without the volatility that has occurred in the past.

Practical difficulty and expense of a child spending time with and communicating with a parent and the effect on the child’s right to maintain personal relations and direct contact with both parents on a regular basis

This matter arises for consideration due to the long distance between the father’s residence in western Sydney and the mother’s residence on the NSW coast. The information provided to me by the legal representatives and the mother suggests that the driving time between the two places is approximately three to four hours.
A half way change-over point between the two places of residence is obviously desirable in terms of sharing the travelling load between the parties. Nonetheless, the travelling time involved is likely to be tiring for the child, especially at the end of a school week as well the return travel. There is also the limitation upon the period of time that may be spent with the father on the weekend in the event of the child living with the mother, or the time spent with the mother in the reverse situation given the need for her to leave at an appropriate time during a Sunday afternoon to enable her to return to her home in the evening other than at a late hour. The timing and length of travel is a consideration for both parties having regard to the commitments of their respective occupations.
Provided that the parties are reasonable in arrangements and returning telephone calls, there should not be any practical difficulty or significant expense in the child having regular telephone communication with each of the parties.

The capacity of each of the parties and any other person to provide for the needs of the child including emotional and intellectual needs

No issue was raised in the course of the evidence which suggested that either of the parties has anything other than the appropriate capacity to provide for both the physical needs of the child so far as a home with appropriate facilities or, stability of that home as a continuing residence for the child, except that so far as the mother is concerned her past changes of location were alluded to. However, I accept the mother’s evidence that she has a lease with an option for renewal of her current premises which are suitable in every respect including the grounds which enable the child to continue to pursue her love of horses.
The mother’s stability in that regard is heightened by her full-time permanent employment as a teacher at B School as well as her involvement with the local community’s Pony Club.
It is also not an issue that each of the parties has the capacity to provide for the intellectual needs of the child. The child is making satisfactory progress at her current school. The evidence of the mother, which I accept, is that the child will be able to attend the local primary school which is less than half a kilometre at the school at which the mother teaches. Generally, the mother’s hours are less than that provided at the primary school. Accordingly, she will be able to drive the child to and from school. In the event that the mother is delayed, the child will be able to be collected from the school by L and then both will travel by school bus which stops near the mother’s home.
There is evidence, which I accept, that during 2005 the child missed the whole or part of school days to a degree that was concerning. However, on the evidence before me, I found that the mother will provide for the intellectual needs of the child ensuring regular attendance at school with attention to the child’s academic progress. Indeed, no submission to the contrary was made.
It is the capacity of each of the parties to provide for the child’s emotional needs that was the subject of concerning evidence from each of them, as well as Dr B.
So far as the father is concerned, a number of issues were raised. The father has had an admitted long-term problem of alcohol dependence. The father’s evidence is that he is now only a light drinker as once the child came into his full-time care pursuant to the interim orders made 14 December 2005 his priorities have been able to provide appropriate care and focus for the child rather than being distracted by alcohol consumption.
Exhibit 1 deals with this issue. Dr B’s conclusion in Exhibit 1 was that he was “unconvinced” the father’s consumption of alcohol was no longer at the same level as in the past and that he could be consuming alcohol excessively for the reasons given by Dr B. He considered the father “meets the criteria for an alcohol abuse disorder, although it may well be in remission at the moment”. Dr B, in his oral evidence, considered that whilst the father was in remission his past drinking problems could recur.
I accept the unchallenged evidence of Dr B that the father is likely to be in remission so far as an alcohol abuse disorder is concerned.
Exhibit 1 sets out Dr B’s observations and conclusions in relation to each of the parties supplemented by his subsequent oral evidence.
So far as the father is concerned, Dr B formed the view that he was not a very warm or emotionally expressive person and had a flippant manner. Dr B also expressed the view that the father did not have much appreciation of the child’s feelings in relation to commencing to live in his household. On an emotional basis, so far as interaction with the child is concerned, implicitly the father was not as available as would have been expected “from an emphatic and strongly child centered parent”. However, the father did provide appropriately for the child in a material sense.
Dr B was of the view that the father presented “as a rather self-absorbed, emotionally cool person with a somewhat irritable demeanour”. He was of the view the father could be “demanding, impatient and dominating, lacking in insight regarding understanding the emotional life of others”.
“Unless he is able to give more of himself emotionally and develop a greater empathy for his daughter, it is difficult to envisage their relationship evolving much beyond what I might describe as a stand-off at the moment.”
At the date of Exhibit 1 (5 October 2006) Dr B opined that “whilst he (the father) probably presents the best prospect as a stable and reliable parent, he falls significantly short of what his daughter needs in terms of emotional sustenance and stability”. A significant qualification subsequently appeared in Exhibit 1 where Dr B was of the view that the parenting environment presented for the child by the father “is relatively emotionally impoverished”. Dr B explained that opinion further during the course of his oral evidence by stating that “the father seemed quite detached, a cool person and not a lot of warmth to the child”. The father did “not show emotional content”. Dr B’s concerns about the father were further expressed in his oral evidence as being “rather emotionally detached”.

So far as the mother is concerned, Dr B observed that quite frequently over the past five years the mother has “been in a state of emotional tumult and relationship instability”. It was likely that as a result those features had contributed to the child’s past poor school attendance.
Dr B also expressed the opinion that the mother’s presentation was “reminiscent of that associated with a histrionic personality disorder” with attendances in the past at hospital emergency departments in states of “emotional crisis”.
Dr B expressed the view in Exhibit 1 that the mother has been “the more capable and emotionally stable person in the past but that her emotional state has deteriorated progressively over the years and particularly the last four or five years such that she is emotionally labile, increasingly self-centred, capricious and eager to blame everybody else for her problems”. Dr B also noted that in relation to the mother during that period “there had a degree of residential instability and relationship instability as well”.
Dr B concluded that the mother had increasing “very significant emotional needs”.
Dr B reviewed the mother’s history of emotional instability and hospital admissions from subpoenaed material including the mother’s admissions at hospital emergency departments.
I accept Dr B’s review of that material as set out in Exhibit 1 which revealed that in 2002 a diagnosis of depression and hysterical personality disorder was made and in 2005 a referral to a consultant psychiatrist due to the mother having suffered from chronic substance abuse and dependency on benzodiazepine.
On 21 September 2005 the mother was admitted to the Hospital Emergency Department following a notice provided by Police under the Mental Health Act due to her then emotional distress and possible self-harm. It is clear from hospital records that the mother was discharged on the day of her admittance following a medical officer’s conclusion that there was no threat of self-harm.[6]
[6] Exhibit 3
Dr B refers to a report in 2006 of Ms Z, a clinical social worker, who had provided counselling to the mother pursuant to “approved victims of crime counselling”. That counselling addressed the mother’s “deep sense of loss with regard to [the child] and that further counselling addressed intrusive cognitions and memories of domestic violence that she had endured for 12 years”. Ms Z described the mother in very positive terms and refers to an excellent support network. She also referred positively to the mother’s bond with her daughter, L.
Evidence was given by Ms Z in her Affidavit sworn 26 April 2007 and during the course of her cross-examination. The mother attended weekly counselling sessions with Ms Z commencing in December 2005 which were continued on a fortnightly basis until January 2007. Ms Z’s diagnosis was that the mother had “a clinical history of trauma and grief associated with separation from her youngest child […]”.
Ms Z outlined the treatment provided to the mother and remarked positively upon the mother’s progression to resuming full-time work. Counselling was only concluded upon the mother’s relocation to the South Coast of New South Wales at the end of January 2007.
Ms Z’s oral evidence confirmed and expanded upon the essential features of her affidavit evidence. Ms Z was firm in her view that the mother had suffered from trauma associated with domestic violence and loss of her daughter. Ms Z concluded that the mother’s emotional state had “very much stabilised”. The tenor of Ms Z’s evidence was that the mother had responded well to treatment with implicitly no longer having any mental health issues of significance.
I accept the totality of Ms Z’s evidence which was given in a professional and detailed fashion and was consistent throughout.
In relation to the issue of the mother’s capacity to provide for the emotional needs of the child having regard to her mental health, I have attached considerable weight to the evidence of Ms Z and the stability that the mother has shown in her daily life both domestically and so far as employment is concerned since the beginning of 2007.
In Exhibit 1, Dr B expressed the concern that should the child reside with the mother and have unsupervised contact with the father, that in effect, past allegations of sexual impropriety and other conduct by the father would be likely to be raised. Dr B concluded that the mother’s personal life was unstable as was her residential history and that she did not have “the requisite parenting abilities able to adequately care for this very needy child, both emotionally and probably cognitively as well, even in the event that the court made orders that effectively stopped contact with the father to minimise that source of disruption from [the child’s] life”.
At the outset of Dr B’s oral evidence, given some seven months subsequent to Exhibit 1, he stated that he had perused subsequent affidavits of the parties as well as of witnesses in the mother’s case. Dr B’s further evidence was that he had particular matters of concern in relation to the mother’s household, namely instability, her emotional state and whether she was capable of maintaining a relationship with the father. Implicitly, from other oral evidence of Dr B, there was also concern in relation to the father’s capability of maintaining a relationship with the mother.
Notwithstanding the firm views expressed in Exhibit 1, Dr B stated that he was unsure if he had “a final view of where the child should be”. Dr B stated that “he leant more to the father” but had areas of concern.
Dr B raised for consideration by the Court as to whether there might be reservations as to whether the Court would be satisfied in relation to the mother’s reliability to provide an appropriate environment being one that was emotionally stable to which the child could return due to past allegations of physical abuse made by the mother against the father.
Dr B stated that the mother’s attitude (presumably current attitude) to the question of her past allegations of child abuse by the father is a more reliable indicator than the lack of any report in the past 12 months.
Dr B considered that a significant problem with the father is that he is remote and detached requiring parenting counselling to be more in tune with the child.
A significant problem in relation to the mother, according to Dr B, was that she can be very intense in dealing with the child and other times very caught up with herself. However, he noted that the mother has had counselling for some period of time and he was not sufficiently informed to know if the counsellor considered that such counselling had been effective.
Dr B emphasised that the child feels quite positive towards the mother. He reiterated that the child is very anxious and insecure and had probably been so for some time.
Dr B further stated that as a great deal had happened to the child in her life an issue was who could provide the more stable life and ongoing relationship with both parents. Accordingly, attachment between a child and a parent was not the only issue.
Dr B considered that the father was a less emotionally responsive parent with limited nurturing ability.
In Exhibit 1, Dr B stated “unfortunately I found each parent difficult to appraise in relation to their emotional state”. That statement is quite apparent having regard to the expression of concerns that Dr B had in relation to each of the parties not only in Exhibit 1 but as further explained during the course of his subsequent oral evidence.
Dr B’s evidence must be placed in the context that he did not hear the evidence given by the parties and consequently was not in a position to supplement Exhibit 1, prepared many months beforehand, with further observations, perhaps based on a review of relevant parts of Exhibit 1.
As previously referred to, Dr B recognised the latter problem by reference to the mother’s current attitude to allegations previously made by her of the father having engaged in child abuse. He was also not privy to the mother’s evidence regarding her current residential arrangements and employment situation in terms of the issue of the stability she is potentially able to provide for the benefit of the child.
The mother gave evidence that she had accepted that the authorities had investigated past allegations made against the father of child abuse and that investigation had now been accepted by her and in effect was a closed subject. Based upon my observations of the mother in the witness box so far as her demeanour was concerned, as well as her answers and the manner of her answering whilst being cross-examined, I have accepted her evidence. Accordingly, I find the mother has accepted that past allegations to which I have referred have been appropriately investigated and that this aspect of the matter has been finalised so far as she is concerned.
I also accept the mother’s evidence that she has created a stable environment for herself, L and the child at B. The mother now has secure, permanent employment in a responsible position with B School. The mother has also accepted and carried out important responsibilities with the local pony club demonstrating her involvement in community affairs with a continuation of those activities being child-focused. That represents a further attraction so far as the child settling in with the mother in her household. L and the child are close and there is no evidence before me to suggest that the mother’s parenting of L in recent times has been anything other than positive in the stable environment which she now offers to the child.
The mother has demonstrated a history of facilitating and encouraging “contact” between the child and the father and her evidence, which I accept. It is likely that she will not only continue to do so but would like a more positive development in the relationship between the parties for the benefit of the child.
Accordingly, I have concluded that mother does have the capacity to provide for the emotional needs of the child notwithstanding, emotionally unstable periods in the past reflected in changes of residence whilst in a relationship with Mr S, the escalation of difficulties between the parties during that period, as well as between the father and Mr S. That relationship ceased in about December 2005.
So far as the father is concerned, I accept the evidence of Dr B which I have reviewed in this judgment. Accordingly, I find that the father unfortunately does have significant limitations to his capacity to provide for the emotional needs of the child. That is a different issue entirely to the stability that the father has provided in a physical and material sense so far as his household is concerned and the child’s ongoing satisfactory school progress and involvement in pony club activities. They are important matters to which subsequent reference will be made.

The maturity, sex, lifestyle and background of the child

The child, who is female, appears to have the maturity commensurate with a child of her age. However, the child does exhibit features of being anxious and insecure. In that regard, I accept the evidence of Dr B.
The child appears to be making satisfactory school progress and is engaged in her favourite extra-curricular activity of pony club and attending to horses.

The parental attitude of each of the parties

There is no doubt that each of the parties has endeavoured to demonstrate an appropriate parental attitude to the child.
However, in the case of the mother that has been complicated by her own emotional instability in recent years, stress occasioned by separation of the parties and the subsequent difficult relationship she has had with the father, her relationship breakdown with Mr S in 2005 and various moves to different residential locations.
In addition, the mother has experienced much stress due to the child no longer living with her for significant periods of time without any “contact” with the child subsequent to the December 2005 interim orders.
The father for his part, has used his best endeavours to provide a stable household and residence for the child as well as ensuring continuity of the child’s education and involvement in pony related activities.
However, the father has shown a lack of insight in so far as not demonstrating flexibility for the purpose of ensuring that the child had every reasonable opportunity to continue to spend periods of time with the mother of real substance, albeit supervised, in the face of difficulties in making the appropriate arrangements with the R Contact Centre.
In addition, the father’s past refusal to allow the child to have regular telephone communication with the mother and the child’s sister, L, showed an inflexibility and insensitivity which did not recognise the emotional distress that refusal would have upon the child.

Family violence and family violence orders

Apprehended violence orders have been made against the father to which earlier reference is made in this judgment.
Family violence as defined in the Act was the subject of child abuse allegations dealt with in the judgment which led to the February 2004 orders. In accordance with the manner in which the case is being conducted, this issue was not revisited given that the evidence has concentrated on relevant events subsequent to the February 2004 orders.

The preference to make an order least likely to lead to the institution of further proceedings in relation to the child

There are potential difficulties principally arising out of the entrenched, conflicted relationship between the parties which may lead to the institution of further parenting proceedings regardless of whether an order is made that the child primarily live with one party or the other.
I am not satisfied that I can differentiate between one parenting order as opposed to another which may have the advantage referred to in this particular matter. Indeed, no submissions were made in that regard.

Other relevant matters

On 14 September 2007 further evidence was received by me on behalf of each of the parties.
In her Affidavit sworn 6 September 2007 the mother set out detailed text messages received from the father. In his Affidavit sworn 13 September 2007 the father admitted sending the text messages to which the mother referred. The father denied the interpretation placed upon them by the mother. He acknowledged the manner in which some of his text messages “could be regarded as intemperate”.
I have admitted the evidence of the text messages only as from the evening of 3 May 2007 being the date during which evidence previously given had been concluded. As was accepted by the independent children’s lawyer and the solicitor for the father, the text messages seemed to be a mixture of a more conciliatory approach, invasion of privacy, derogatory comment about the maternal grandfather, and threatening behaviour. I accept the submission by the independent children’s lawyer that some of the text messages from the father appeared to be in response to messages from the mother, the detail of which is not in evidence.

Conclusion

Neither party sought to rebut the presumption of equal shared parental responsibility. An order had been sought by the father in that regard, which was unopposed by the mother or the independent children’s lawyer. I have made earlier reference to this matter. In those circumstances, and having regard to the presumption that does apply in s 61DA, an order will be made by me which sets out the terms of that legal presumption.
So far as one of the major issues is concerned, namely whether or not it is in the best interests of the child that she live with one party or the other, the father’s proposal is that the child continue to live with him and have supervised periods of time with the mother.[7] Supervision is sought by the father as part of his case that the mother needs to be monitored to ensure that she does not make statements to or in the presence of the child reflecting past allegations of child abuse.
[7] Exhibit 12
The mother’s proposal is that the child primarily live with her and that there be regular periods of time that the child spends with the father principally on alternate weekends during school term and otherwise for half of school holiday periods at the conclusion of each school term. The mother did not seek an order that such periods of time be supervised.
Unfortunately, I received little assistance from the submissions made by counsel for the independent children’s lawyer, notwithstanding the important role that the independent children’s lawyer is required to carry out having regard to the recent amendments to the Act.[8] No submissions were made in relation to the party with whom the child should live, there was an absence of analysis of the primary considerations pursuant to s 60CC(2) and all relevant additional considerations pursuant to s 60CC(3), let alone a balancing of the proposals for future parenting orders made by each of the parties having regard to the best interests of the child.
[8] Part VII, Division 10
Whilst a submission was made that there was an unacceptable risk to the child due to the further reporting that might take place by the mother in relation to allegations of child sexual abuse, yet as counsel conceded, there was little cross-examination of substance of the mother in relation to that issue, as opposed to the history of prior allegations.
I have determined to make parenting orders whereby the child will live with the mother, and communicate with and spend periods of time with the father. Those orders will be in the best interests of the child in accordance with s 60CA for the following reasons.
Section 65DAA requires me to consider whether it is in the best interests of the child to spend equal time with each of the parties in circumstances where an order will provide for the parties to have equal shared parental responsibility for the child.
Neither of the parties sought such an order for understandable reasons. It is simply not practical in the child’s best interests for equal time to be spent by her with each of the parties given the long distance between Sydney and B which would necessitate regular and frequent long and weary travel for the child and the parties with disruption to her home life at the end of each week or other periodic cycle. In addition, it would require a constant change of school, which is obviously not feasible.
In the event that an order will not be made for the child to spend equal time with each of the parties, I am required to consider the child spending substantial and significant time with each of the parties in terms of the child’s best interests having regard, amongst other things, as to whether it is “reasonably practicable”.[9]
[9] Section 65DA(2)
There are obvious practical limitations in that regard for the reasons indicated so far as the concept of “equal time” is concerned, as well as the poor level of communication that exists between the parties which is unlikely to be greatly improved in the immediate future.
I have given weight to the matters which are the primary considerations set out in s 60CC(2) following the amendments to the Act which came into operation on 1 July 2006. In my view, the child is more likely to have the benefit of a meaningful relationship of both of the parties should she live with the mother. In that regard, I have made findings as to the mother’s willingness to facilitate periods of time and communication between the father and the child during the period that the child was living with the mother. Indeed, the father’s own evidence is that the February 2004 orders have been working well until the development of circumstances to which I have earlier referred in this judgment.
By contrast, the father has adopted a rigid and at times insensitive approach to facilitating similar opportunities for the mother with the child which has been of no benefit to the child exacerbated by his lack of insight as to the stress that would be caused to the child by being unable to speak by telephone with L. That approach appears to have ameliorated in recent times as evidenced by the father’s text messages sent during the period judgment was reserved. It is unfortunate the father did not adopt a similar approach prior to the commencement of the trial.

It is clear that the father has been understandably angry about the allegations made against him that he may have engaged in child sexual abuse. However, the father has maintained his rage as is evident from the text messages he has sent to the mother this year and his bitterness has underscored not only the difficulties in communication with the mother and arrangements for periods of time to be spent by the child with the mother and communication with her and L, but inferentially has also contributed to his actions which have resulted in a number of apprehended violence orders being made against him. It seems that even whilst judgment has been reserved, the father has been unable to appropriately control himself at all times as is evidenced by the apprehended violence order made unopposed on 27 August 2007.
It was submitted on behalf of the father that due to his professional commitments he was unable to attend Court on 27 August 2007 and as a consequence the police proceedings for an apprehended violence order proceeded unopposed. There was no explanation given, whether by way of evidence or even a submission as to the reason why the father in those circumstances did not seek an adjournment to a date when he would be available to attend Court. I would have expected that the prospect of another apprehended violence order against him so far as its relevance in these proceedings are concerned, as well as his professional standing would have been a matter of concern to him especially given the tenor of submissions made to me that he had only been showing lapses of judgment. That was not the first time the father had considered it not to be his highest priority to defend such proceedings, notwithstanding that he considered it to be unwarranted.
The child is 8 years of age. For approximately six and a half years of the child’s life, she was primarily cared for by the mother. Notwithstanding the highly conflicted relationship between the parties, both at times during cohabitation and certainly since they finally separated, the child appeared to have been making satisfactory progress in the care of the mother.
The previous substantive parenting proceedings between the parties culminated in the February 2004 orders. Those orders provided for the child to live with the mother and for the child to spend periods of time with the father, to which earlier reference has been made.
The father’s oral evidence before me, is that he considered the February 2004 orders were working well until two events occurred, notwithstanding apparently his concern regarding the child missing school on a number of occasions. They reflected his concerns that the child was living with the mother in a caravan with inappropriate facilities and secondly, he was falsely accused of child sexual abuse. Indeed, during the course of the father’s oral evidence, he stated that he was “happy to let things lie until the false allegations of sexual abuse”.
With regard to the question of whether or not the mother was caring for the child in the physical circumstances alleged by the father, I accept her evidence that in 2005 the mother and her former partner Mr S had purchased vacant land upon which they proposed to construct a suitable dwelling to be their permanent home. In the meantime, they lived in a caravan with the child on the land for part of the week whilst maintaining their principal place of residence, being rented premises, in the nearby township where the child also attended school. The mother’s evidence regarding those arrangements is accepted by me as having been truthfully and reliably given. Whilst I can understand the father’s concerns for the welfare of the child and enquiries that he made due to those concerns, I accept the mother’s evidence that the caravan facilities were only being utilised in the circumstances referred to in her evidence.
I have made findings in relation to the respective capacities of the parties to provide for the physical, emotional and intellectual needs of the child.
There is no doubt that the father has provided stability and all of the material needs and suitable physical environment for the child since she commenced to live with him pursuant to the December 2005 interim orders. The father has also ensured that the child regularly attends school where she is now making satisfactory progress supplemented by extra tuition organised by the father.
On the other hand, the mother has had periods of instability, represented by changes of residence, the break up of her past relationship with Mr S and her grief at the loss of the child through no longer living with her.
I have had the benefit of much detailed evidence, particularly from Dr B regarding the capacity of each of the parties to provide for the emotional needs of the child having regard to their own troubling limitations.
Dr B summed up this issue well in my view during the latter stage of his oral evidence when he stated that his “concern is the child’s emotional needs being met in both households – that is the core of the problem”.
I have provided a summary review and made findings in respect of the evidence, particularly the expert evidence of Dr B regarding the capacity of each of the parties to provide for the emotional needs of the child due to their own particular mental health problems, both on a historical basis as well as recently assessed by Dr B.
There is no easy answer to this issue and the weight that may be attached to the evidence so far as both parties are concerned could vary from one trial Judge to another. Each of the parties has had significant emotional issues.
The mother has had a history of emotional instability requiring medical consultations and hospital admissions from time to time, albeit brief. I accept her evidence and particularly that of Ms Z that the mother’s health issues have been largely, if not exclusively, due to trauma from which she has suffered due to family violence in past relationships including the relationship with the father and the grief associated with the loss of the child in terms of no longer living with her pursuant to the December 2005 interim orders. That has been exacerbated from time to time arising out of the continued conflicted relationship between the parties as shown in the difficulties in arrangements for the child to be able to consistently spend periods of time with the mother in 2006.
I have made findings that the mother has now achieved much stability in her life. Her mental health issues can now be seen in a historical context. The mother has progressed well, especially with the course of counselling with Ms Z. The mother holds permanent and responsible employment in the teaching profession and has a stable household in B.
I have also made findings whereby I have accepted the evidence of the mother that there will not be a repeat of past allegations of child sexual abuse by the father as she has accepted that the matter has been investigated by the appropriate authorities and is now closed.
The father for his part has had serious issues in terms of alcohol dependence. I have accepted his evidence that it is also an issue which must be seen in a historical context and no longer is an issue of significance.
An important matter for consideration is the view of the child. The child’s primary attachment remains with the mother and her firm views are to recommence living with her in the mother’s household which also includes L.
Whilst I accept the evidence of Dr B that the attachment of the child to the mother is not the only issue, it is important to consider the stability in all respects that can be provided to the child by each of the parties in an environment that provides warmth and love for the child in which she can feel secure. Material stability is obviously important, but it is not the only indicator of a stable environment so far as this child is concerned, having regard to her emotional needs which clearly have not been satisfied for a considerable period of time.
I have concluded that the mother is better placed to provide the emotional relationship that the child sorely requires, compared to the father who appears to be remote, detached and unable to meet the child’s emotional needs.
Apart from those matters being the subject of detailed evidence given by Dr B, which I have accepted, the father has shown a lack of insight or sensitivity to the needs of the child to be placed in a position where she could regularly communicate with and spend time with L with whom she knows a close sibling relationship. At times the father has seemed oblivious to the child’s needs in that regard given his actions which has curtailed that relationship on occasions to the distress of the child and L. Unfortunately, it seems the father’s animosity to the mother has blinded him to the needs of the child so far as her relationship with the mother and L are concerned. Belatedly, the father seems to have recognised that he should make such telephone communication available, with a warning that he will monitor the call.
The resumption of the child living with the mother is likely to be in the child’s best interests so far as her emotional needs being met in the mother’s household compared to that of the father.
The child will be able to give expression to her primary attachment with the mother in a stable household in B. The child will be reunited with L in that household. The environment that the mother’s household provides will also enable the child to satisfy her emotional needs but also to continue her love of horse related activities under the guidance of the mother.
There is no issue that the child should make satisfactory transition to commencing school at B.
The long distance between Sydney and B and the professional commitments of the father means the reality is that during school term the weekend period is the reasonably practical period for the child to spend with him. The evidence before me is that W is the half way point. I will make orders to that effect so as to ensure some sharing of travel between the parties which of course will mean that the child is able to spend part of her travel time with the father.
In my view it is in the child’s best interests to also have regular weekends with the mother and L being the only periods during school term that are free from the demands associated with attending school. Consequently, I will make an order for the child to spend alternate weekends with the father in school term. An issue was not raised regarding a further period with him during the week in school term. No doubt that was due to distance and his professional commitments in Sydney. I will make an order for the child to spend half of the school holiday periods with the father. That potential order was not the subject of controversy.
The fixing of time for commencing and concluding periods of time to be spent by the child with the father reflects the regard which I have had to the distance and time of travel between the residences of the parties and W which is the approximate half way point between those residences.
Orders will be made to enable the parties to use flexibility in arrangements for such periods and the times involved so far as the father and child are concerned, and to make alternative arrangements. Flexibility, sensitivity and commonsense will be needed not only in relation to the travel time which is required, but also the child’s needs, school, sport and extra-curricular activities which will of course change as she becomes older. Weekend social and sporting activities for the child may also be important so far as her development is concerned. It is likely that such activities will take place in the B area. Hopefully, the father will be appropriately child-focused and sensitive to the reasonable requirements of a growing child in that regard and make his arrangements with the mother accordingly.
Given the poor communication between the parties I will make an order for the particular period of time during the week for the purpose of the father speaking to the child by telephone and in the event the child is unavailable to receive the call for one reason or another, the message that he leaves for her be responded to by the mother as soon as practicable. A similar order will be made in relation to the mother having telecommunication with the child when she is with the father. Hopefully, they will arrange between themselves for flexibility in that regard. That should not be beyond the maturity of a medical practitioner and a teacher.
I have not made an order for such school holiday period to commence in the forthcoming fortnight of school holidays. I consider that the school holiday fortnight is preferably used in the best interests of the child in settling into the mother’s household with the mother and L, especially as she has not had overnight periods with them for a long time. That will also permit the child the opportunity to adjust to her new home and surroundings during the school holidays to prepare her for her new school commencing in the second half of October next.
In addition, I will make an order which enables the parties to make their own arrangements in substitution for, or in addition to the periods of time and/or communication that the child should have with the father or the mother, to meet exigencies and changes in their own commitments, not to mention the ever changing needs and activities of a growing child.
I accept the evidence of Dr B that an order for further counselling between the parties is not likely to be fruitful in the immediate future having regard to their history of conflict and litigation. Perhaps, the parties will both realise it is in the child’s best interests that they are able to freely communicate with each other without the rancour and bitterness of the past and will take steps to do so.

I certify that the preceding one hundred and eighty eight (188) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate:

Dated: 26 September 2007

[2007] FamCA 1155

26 September 2007

Key Legal Topics

Areas of Law

Family Law