Background:
John Nee represented a mother through the public access scheme at a contested final hearing concerning arrangements for her child. The father sought a substantially shared arrangement and pursued enforcement proceedings based on alleged breaches of an earlier order. The mother argued that the child should continue to live with her while spending regular, predictable and meaningful time with the father.
Key issues:
The court considered the child’s wishes and feelings, additional needs, established routine, the effect of repeated transitions and the parents’ difficult communication. It also had to decide whether the mother had a reasonable excuse for the alleged breaches, whether a shared-care or monitoring order was appropriate, and whether costs or punitive enforcement should follow.
Approach:
A detailed welfare-based proposal was advanced which reduced handovers, used school as a neutral transition point, preserved the child’s routine and provided clear arrangements for weekends, holidays and indirect contact. The case focused on the distinction between mathematical equality and an arrangement tailored to the needs of the individual child.
Decision:
The court discharged the previous order and ordered that the child live with the mother. The child was to spend alternate weekends with the father under a progressive arrangement, initially from Friday after school until Monday morning and later increasing to Thursday after school until Monday. The order also included school-based handovers, regular indirect contact and detailed holiday provisions.
Outcome:
The court declined to make a shared-care or monitoring order. The enforcement application was dismissed after the court accepted that the mother had a reasonable excuse for the alleged breaches. A lengthy section 91(14) restriction was imposed and no order for costs was made.