Aitchison & Elkers

[2021] FCCA 1472

FEDERAL CIRCUIT COURT OF AUSTRALIA

Aitchison & Elkers [2021] FCCA 1472

File number(s):	ADC 1613 of 2011
Judgment of:	JUDGE KARI
Date of judgment:	30 June 2021
Catchwords:	FAMILY LAW – parenting – child aged 10 years – where final parenting orders were made on 18 October 2019 – where the mother is not complying with time spending pursuant to the final orders – father files an initiating application seeking a change of primary care – primary care changed for a period of two weeks – final orders reinstated – parties to obtain updated Family Assessment Report.
Legislation:	Family Law Act 1975 (Cth) ss 60B(2), 60CA, 60CC, 61DA, 65DAA(3)
Cases cited:	Goode & Goode (2006) FLC 93-286
Number of paragraphs:	98
Date of last submission/s:	2 June 2021
Date of hearing:	31 May 2021 2 June 2021
Place:	Adelaide
Counsel for the First Applicant:	Ms Lewis
Solicitor for the First Applicant:	Douglas Hoskins Legal
Counsel for the First Respondent:	Ms Ross
Solicitor for the First Respondent:	Family Law Project

ORDERS

ADC 1613 of 2011

BETWEEN:

MR AITCHISON

Applicant

AND:

MS ELKERS

Respondent

ORDER MADE BY:	JUDGE KARI
DATE OF ORDER:	30 JUNE 2021

THE COURT ORDERS THAT:

1.That the child X (born in 2011) live with the father from 5pm on 2 July 2021 until 5pm on Saturday 17 July 2021.

2.That for the purposes of handover for the arrangements provided for in paragraph 1 of this order, handover shall be effected between the parents as follows:

(a)With the mother to take the child to the father’s home at the commencement of the child’s time with the father;

(b)With the father to take the child to the mother’s home at the conclusion of the child’s time with the father; and

(c)With both parents to remain in their vehicle for the purposes of such handover.

3.That paragraph 5 and 13 of the Final Order made 18 October 2019 be suspended between 2 July 2021 and 17 July 2021.

4.That save as otherwise provided for herein the Final Order made 18 October 2019 remain in full force and effect.

5.That the mother be restrained and an injunction is granted restraining the mother from attending at the child’s school during any period of time that the child is scheduled to be in the father’s care SAVE AND EXCEPT as to:

(a)Taking the child to school on the Thursday coinciding with the commencement of the father’s time with the child; and/or

(b)Collecting the child from school on the Wednesday at the conclusion of the father’s time with the child; and/or

(c)Attending at the request of either the school or the father.

6.That the parties otherwise be restrained and an injunction is granted restraining each of them from keeping X home from school on any scheduled school day, SAVE AND EXCEPT:

(a)In the case of an emergency; and/or

(b)In circumstances where they have obtained and provided to the other parent and the child’s school a medical certificate which details X’s presenting illness and/or health concern, which in the opinion of her treating health practitioner renders X incapable of attending school.

7.That the parties do all such things as may be reasonably required to enable a Family Assessment to be carried out with respect to the competing applications for parenting orders before the Court, with such Assessment and the Report arising thereafter:

(a)To include interviews with the child, and at the discretion of the expert, observed interaction of the child with any relevant adult person and or the child’s siblings , in addition to the parties as the expert considers appropriate;

(b)To be carried out by Ms B;

(c)To be at the joint and equal expense of the parties; and

(d)To be released to the parties no later than 30 October 2021.

8.That the Family Assessment Report deal with the following matters:

(a)Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

(b)The matters set out in s60CC, 61DA and 65DAA of the Family Law Act 1975; and

(c)Any other matters that the expert considers important to the welfare or best interests of the said child.

9.That for the purposes of instructing Ms B the solicitors for each of the parties shall agree a letter of instruction within 7 days, and otherwise provide to her copies of all documents filed in these proceedings and all Orders made, together with a copy of these reasons and a copy of the exhibits provided at the hearing on 31 May 2021.

10.That the parties do all things necessary to facilitate the completion of the report by Ms B, including making themselves available for appointments and executing any authorities for the release of information to Ms B.

11.That Ms B be at liberty to liaise with any person in relation to the welfare of the child.

12.That the parties be restrained from providing any documents (other than those filed with the Court or Orders made in these proceedings) to Ms B without providing a copy to the other party, such copy to be provided no less than seven (7) days prior to any appointments with Ms B NOTING that Ms B has the absolute discretion to accept or reject the document so provided to her.

13.That the father file and serve a copy of Ms B’s report within 48 hours of receipt of the same.

14.That following the release of Ms B’s report and no later than 7 days prior to the adjourned hearing, the parties and properly instructed Counsel participate in an informal conference to explore the possibility of a resolution of the matter, and/or to otherwise narrow the issues in dispute.

15.That the proceedings generally and the Contravention Application filed by the father on 19 April 2021 be adjourned for mention only to 9.30am on 25 November 2021 with such hearing to be conducted on a face to face basis.

16.That all interim applications otherwise be dismissed.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE KARI

INTRODUCTION

1. These proceedings relate to X (hereinafter referred to as “X”) who was born in 2011 and is currently 10 years old.

2. X has always lived with primarily with the mother in circumstances where her parents’ had a short relationship which ended prior to her birth.

3. X has spent time with the father from the time that she was approximately 6 months of age as a consequence of various orders made by this court.

4. The current proceedings are the third set of proceedings that the father has initiated with respect to X. On any view X’s parents appear to have been engaged in litigation over her parenting arrangements for the vast majority of X’s life.

5. The two previous sets of proceedings in relation to X have each resolved in circumstances where the court was invited to make a final order at the request of and with the consent of both parents. The first final order was made on 18 March 2013. The second final order was made only a short time ago on 18 October 2019. On each occasion, final orders have provided for the parents to share parental responsibility, for X to live with the mother, and for X to spend incrementally increasing time with the father.

6. The father’s current time spending arrangement with X should be that which was due to begin as and from the commencement of Term 1 2021; being a six nights per fortnight arrangement during the school term, from the conclusion of school on Thursday until the commencement of school on Monday. This arrangement was to be the final incremental increase to the father’s time spending with X pursuant to the final order of 18 October 2019.

7. Unfortunately the arrangements that the parties implemented for X have completely broken down. X has not spent any meaningful time with the father nor communicated with him since approximately 15 January 2021. This date is significant, as it was just prior to the last of the incremental increases to X’s term time spending with her father mandated by the final order of 18 October 2019. What this means is that X has not ever spent six nights a fortnight in the care of the father during term times. Rather, X’s term time spending with the father did not ever increase beyond that which was in place across the 2020 year, which was a five night per fortnight arrangement from the conclusion of school Thursday until the commencement of school Tuesday.

8. The father’s position is that the mother has undermined and prevented his relationship with X. He asserts that there was no proper basis for the mother to withhold X from him. He says that the mother’s actions are causing emotional harm to X. As a result, he asks the court to alter X’s living arrangements such that she live with him and spend time with the mother on alternate weekends from the conclusion of school on Friday until the commencement of school on Monday.

9. The mother’s position seems to have vacillated. Initially the mother sought orders that X spend time with the father as ordered by the court. The mother then proposed that the father resume spending time with X with handover to occur at a supervised contact service. Ultimately during the hearing the mother promoted an immediate return to the arrangements prescribed by the final order made on 18 October 2019, which would see X spending six nights per fortnight with the father during term times, together with half of the school holidays.

   Background

10. The brief history of the parties and their relationship is as follows:

    (1)The mother was born in 1981 and is presently 40 years of age.

    (2)The father was born in 1983 and is presently 38 years of age.

    (3)The parties’ were in a relationship from 2009 to July 2010.

    (4)At around the time of separation the mother became aware that she was pregnant.

    (5)The parties reconciled towards the end of the pregnancy for a duration of two months. During this period the father asserts that the mother told him that the child was to be born in approximately 2011. The mother denies this assertion.

    (6)By the time X was born in 2011 the parties relationship had ended.

    (7)The father initiated the first set of proceedings in May 2011 not long after learning of X’s birth.

    (8)The mother has two sons from a previous relationship, Mr C born in 1998 and D born in 2004. Both children live primarily with the mother. D spends five nights per fortnight with his father and Mr C does not have a relationship with his father.

    (9)The father does not have any other children.

    The first set of proceedings

11. The father commenced the first set of proceedings in relation to X on 6 May 2011, when X was only a couple of months old. In his Initiating Application, the father sought final orders as follows:

    (1)That the father spend time with the child for a period of five hours each Saturday or Sunday for a period of six months;

    (2)At the expiration of six months the father spend each alternate Friday or Saturday evening with the child from 3pm to 10am the following morning for a further twelve months;

    (3)At the expiration of the twelve months the father spend each alternate weekend with the infant child from 5:00pm Friday to 5:00pm Sunday.

12. At the first return of the matter on 6 June 2011 there was no appearance by the mother. The Court made orders for the initiating documents and a sealed copy of the Order dated 6 June 2011 to be served by pre-paid post on the mother and failure of the mother to appear at the adjourned hearing may result in orders being made in her absence.

13. At the next hearing on 20 June 2011 the mother appeared in person and the Court made orders for the parties to participate in a Child Dispute Conference with a family consultant of the Court, which the parties attended on 30 August 2011. The memorandum reflects that the parties were able to agree for the father to commence time spending with X however there was no agreement as to how the time should occur.

14. Following the Child Dispute Conference the Court made orders for X to live with the mother and spend one hour per week with the father to be supervised by the maternal grandmother in her home. Thereafter and upon the E Children’s Contact Centre Service becoming available, the father was to spend time with X for two hours in each alternate week at the contact service, together with 1 hour in the intervening week to be supervised again by the maternal grandmother in her home.

15. Throughout the proceedings the court made orders for the parties to participate in a further two Child Dispute Conferences with a family consultant of the Court and for a Family Assessment Report to be prepared pursuant to section 62G(2) of the Family Law Act 1975 (Cth). The Family Assessment Report was prepared by Ms B and filed with the court on 14 June 2012.

16. The Family Assessment Report recommended that the father’s time increase with X as X progressed in age.

17. Over the course of the proceedings, X’s time with the father increased, with the requirement for supervision eventually being removed by agreement between the parents.

18. The proceedings were ultimately resolved by consent with final orders being made on 18 March 2013, at a time when X was 2 years of age. Those orders provided for:

    (1)The parties to have equal shared parental responsibility for X;

    (2)X to live with the mother;

    (3)X to spend time with the father on an incrementally increasing basis, culminating in an alternate week arrangement when X was 5 years of age as follows:

    (a)In the first week from the conclusion of school or 3:00pm on Friday to the commencement of school or 9:00am Monday (or 5:00pm if a non-school day);

    (b)In the second week from the conclusion of school Wednesday to the commencement of school Thursday.

    (4)The parties to attend mediation upon X turning 5 years of age in relation to increasing the father’s time with X.

    (5)It was also noted in the order that in the event that the mediation was unsuccessful, the father would not be prevented by Rice v Asplund from filing further proceedings with the Court seeking an increase in X’s time with him.

    The second set of proceedings

19. On 24 April 2018, the father filed an Initiating Application. At that time X was 7 years of age. In that Application the father sought that the final orders of 18 March 2013 be discharged and for X to spend time with him as follows:

    (1)For four consecutive nights per fortnight from conclusion of school on Thursday until commencement of school Monday each alternate week;

    (2)At the commencement of Term 3, 2018 for five consecutive nights from the conclusion of school Thursday until the commence of school on the following Tuesday;

    (3)At the commencement of Term 1, 2019 for six consecutive nights from the conclusion of school Thursday until the commencement of school the following Wednesday;

    (4)At the commencement of Term 3, 2019 for seven consecutive nights from the conclusion of school Wednesday until the commencement of school the following Wednesday;

    (5)For one half of all Christmas holidays on a week about basis.

20. The mother opposed the father’s application and sought that:

    (1)The final orders of 18 March 2013 be discharged;

    (2)The mother have sole parental responsibility for X;

    (3)X live with the mother; and

    (4)X spend time with the father at times to be agreed by the parties or as determined by the court.

21. At the first return of the matter on 6 June 2018 the mother had not filed responding documents. The Court made orders for the mother to file responding documents and in the interim period the two week rotating time spending arrangements provided for in the final orders of 18 March 2013 were suspended. In its place, the Court ordered that X spend time with the father from the conclusion of school Thursday to the commencement of school Monday each alternate week and for one week in the July 2018 school holidays. The parties were also ordered to obtain a Family Assessment Report.

22. The Family Assessment Report was filed with the Court on 18 September 2018. Again, the assessment and report process was undertaken by Ms B. Ultimately Ms B recommended that there be a gradual increase in time spending between X and the father to an end point of week about shared care when X turned nine and a half years of age.

23. Following the receipt of Ms B’s report, the father pursued arrangements for X as recommended by Ms B. The mother resisted that position, and she remained “absolutely opposed to the father having equal shared care of X”.[1]

    [1] Affidavit of the Mother filed 11 October 2018, paragraph 3.

24. The matter was allocated to my docket in late April 2019, and ultimately listed for trial before me in November 2019. As a consequence of the proceedings being in my docket relatively recently, I have some recollection of the matter, the background and the issues in dispute.

25. The proceedings were resolved by consent prior to trial with final orders being made by me at the request and with the consent of the parties on 18 October 2019, at a time when X was 8 years of age. In summary those orders provided for:

    (1)The parties to have equal shared parental responsibility for X;

    (2)X to live with the mother;

    (3)X to spend time with the father:

    (a)Each alternate week from the conclusion of school Thursday to the commencement of school Monday;

    (b)From the commencement of Term 1, 2020 each alternate week from the conclusion of school Thursday to the commencement of school Tuesday;

    (c)From the commencement of Term 1, 2021 each alternate week from the conclusion of school Thursday to the commencement of school Wednesday.

    (4)X to spend equal time with each of her parents during all school holiday periods.

    (5)X to share special occasions with her parents.

    The present dispute

26. The current proceedings were commenced by the father when he filed his Initiating Application on 5 March 2021, which was sealed on 11 March 2021.

27. While the parties agree that the genesis of the current impasse between them has its foundation in a trip that the father took X on to Queensland between 9 January 2021 and 15 January 2021, the parties have quite different versions of what transpired prior to and from that point and the reasons as to why events have unfolded in the way that they have.

28. When the father filed his Initiating Application on 5 March 2021, he had effectively not spent time with X from 15 January 2021. In the affidavit filed in support of his Initiating Application the father deposed that he considered that the disruption of his time spending with X was a result of “the mother’s repeated attempts to alienate X from me.”[2] The father also deposed that until the events that unfolded after 15 January 2021, he had a wonderful relationship with X.[3]

    [2] Affidavit of the Father filed 5 March 2021, paragraph 3.

    [3] Affidavit of the Father filed 5 March 2021, paragraph 30.

29. The father deposed to the specific circumstances so far as he understood, as to why his time with X had been terminated by the mother. From the father’s perspective he considered the difficulty arose against a backdrop of a holiday that he took X on to the Region F between 9 January 2021 and 15 January 2021. In particular the father deposed:

    (1)That he regularly took X to the Region F each year to visit the paternal aunt who resides there.

    (2)That after the last trip to the Region F in October 2019, X had informed the father that “she had received a grilling from her mother” when she returned home and that she felt “weird” as a consequence of the mother’s questioning.[4]

    (3)That approximately a month before the planned holiday commencing 9 January 2021, the father had phoned the mother and advised her of the planned holiday. The mother expressed her opposition to the father taking X, however the father informed the mother that he did not require her consent for the travel as a consequence of the provisions of the final order made 18 October 2019.[5]

    (4)That when X came into his care on 8 January 2021, she had told the father “before I come outside dad, mum said “X, promise me you won’t go on an aeroplane with daddy during this visit.”[6]

    (5)That on the day of travel (9 January 2021) the parties engaged in a series of text exchanges over whether the travel was permitted as a consequence of covid travel restrictions, with the father insisting that no travel restrictions were in place at the time of the travel and that he was taking X on the holiday, and the mother insisting that there were travel restrictions.[7]

    (6)That he and X had a “wonderful time on the Region F”.

    (7)That he returned X to the mother on 15 January 2021.

    [4] Ibid, paragraph 5.

    [5] Ibid, paragraph 7.

    [6] Ibid, paragraph 10.

    [7] Ibid, paragraphs 8-9.

1. The father asserts that he was next due to spend a further week with X in the school holidays commencing 22 January 2021 until 27 January 2021 when school resumed. He deposed however that when he went to collect X, the mother sent him a text message saying that X was “refusing to come outside and that she was “terrified and scared” to go with the father.[8]

   [8] Ibid, paragraph 12.

2. The father asserts that he attempted to collect X again the next day at 11:00am. However that morning the mother provided a medical certificate from the Suburb G Surgery that suggested that X had a “medical condition” rendering her unfit to spend time in the father’s care. [9]

   [9] Ibid, paragraph 14.

3. The father deposes that he was next due to spend time with X from the conclusion of school on Thursday, 4 February 2021 until Wednesday, 10 February 2021. In relation to the same the father deposes:

   (1)That he attended to collect X from school, and was told that she was with the school counsellor.

   (2)After collecting X from the school counsellor and whilst walking to the father’s car, X told the father that she wanted to go to the mother’s house to see the new puppy the mother had bought.

   (3)The father obliged X and took her to the mother’s home to see the new puppy. Unfortunately however after entering the mother’s home, X did not return to the father. The mother ultimately sent the father a text message advising that X did not want to return to him. The father ultimately acceded to the position and X remained with the mother.

4. The father deposes that he again attempted to collect X from school on Friday, 5 February 2021 together with the paternal grandmother. On this occasion X was with the school principal. The father says that:

   (1)X would not make eye contact with him and that she did not initially talk to him.

   (2)X ultimately told the father that she wanted to go to the mother’s home.

   (3)The father asked X if she was scared of him or her grandmother (in the father’s mind in reference to the text message that the mother had sent the father on 22 January 2021 previously referred to).

   (4)X responded that she was not scared, and that she had previously had gastro (which the father took to be a reference to the last week of the school holidays that she did not spend with him).

   (5)X ultimately burst into tears, gave the paternal grandmother a long hug before disengaging entirely with both the father and the paternal grandmother.

   (6)The father at that point determined that he would not force X to leave with him that day.

   (7)The mother ultimately attended and collected X.

   (8)Later that afternoon the father sent a text message to the mother proposing that he collect X from the mother’s home the following day to take her out for a few hours and return X to her mother’s to sleep. The mother did not respond to that text message.[10]

   [10] Affidavit of the Father filed 5 March 2021, paragraph 24.

5. The father deposes that he intended to collect X from school on each Monday, 8 February and Tuesday, 9 February 2021 as these were also days that X was due to be in his care. However on the Monday he received a telephone call from X’s school to inform him that X had not attended at school due to a “family reason”. On the Tuesday the father again received a phone call from the school advising that whilst X had attended school that day, the mother had shortly thereafter returned and collected X.

6. The father ultimately commenced these proceedings on 5 March 2021. That Application was listed for a first return hearing on 10 May 2021.

7. Presumably because of the delay to a hearing, the father thereafter filed two further applications as follows:

   (1)A Contravention Application filed on 19 April 2021, which had a Directions hearing before a Registrar on 5 May 2021, but has not yet been listed for trial.

   (2)An urgent Application in a Case filed on 16 April 2021 and sealed on 3 May 2021 in which he has sought that a Recovery Order issue pursuant to section 67Q of the Family Law Act, so as to place X in the care of the father. In addition the father sought that X spend no time with the mother until the hearing of his Initiating Application.

8. The Application in a Case sealed on 3 May 2021 was considered by me in chambers and I thereafter made a chambers order listing the application for hearing on 31 May 2021. I additionally made an order requiring the mother to file her responding documents by no later than 18 May 2021.

9. When the mother filed her responding documents on 5 May 2021 she deposed that so far as the holiday to Queensland was concerned:

   (1)The father did not provide her with thirty days’ notice as required by paragraph 12 of the final orders made 18 October 2019.

   (2)She was concerned about travel due to the covid-19 restrictions at that time.

   (3)When X returned from the holiday “she was not herself”, was crying and “found it difficult to breathe and was very anxious”.[11]

   (4)X had disclosed to the mother that during the holiday the paternal grandmother had yelled at her and told her that she “had no manners” and that her father had to teach her some manners.[12]

   (5)X went on to disclose that the father and the paternal grandmother got into a fight “like they always do”. The argument culminated in the paternal grandmother attempting to get out of the moving car, screaming to be let out.

   (6)X told the mother that she found this “terrifying” and that she was scared there would be a car accident.

   (7)X told her that the father had left the paternal grandmother “on the road” and that when she returned she had yelled at X again about her manners.

   [11] Affidavit of the Mother filed 5 May 2021, paragraph 13.

   [12] Ibid.

10. The mother asserted that since returning from Queensland, X has refused to spend time with the father.

11. The mother also asserted that when the father attempted to collect X from school on Thursday, 4 February 2021, X later disclosed to her that she was holding onto the fence and that the father had to force her into his car; something she says he has a history of doing.

12. The mother’s allegations about what occurred on the trip to Queensland, and on 4 February 2021 are specifically denied by the father.

13. The mother also asserted that since the events that took place in early February 2021, she has had a persistent difficulty in having X attend school on days that she was due to be in the father’s care.

14. The father deposes that the school principal wrote to both parents on 13 April 2021 raising concerns about X’s poor school attendance, which at that time was recorded as being 66.5%. The principal’s letter went on to advise that “the school is legally obliged to refer” students who miss significant amounts of school without a certificate to the Department for Education.[13]

    [13] Affidavit of the father filed 26 May 2021, page 34.

15. As a consequence of receiving this communication, the father issued a number of subpoena in the proceedings, and the extent of X’s poor school attendance has now come to light. In particular the father has now identified from records that have been produced that:

    (1)During the 2019 school year X missed the “entirety or majority of the day for 32 days, being more than six weeks of school. All 32 days occurred when X was in her mother’s care.”[14]

    (2)During the 2020 school year, and excluding that part of the year impacted by covid-19 restrictions, X missed the “entirety or majority of the day for a total of 58 days, being more than a full term. Of those 58 days, 53 occurred in the mother’s care and only 5 when X” was in the father’s care.[15]

    [14] Ibid, paragraph 11.

    [15] Ibid, paragraph 12.

16. Due to the timing of the filing of that affidavit, the mother did not respond on oath to the material that the father produced, nor his assertions that the majority of X’s missed school days occurred when X was in the mother’s care.

17. It is now the father’s position that something far more problematic is occurring in the home of the mother. In particular the father asserts that the mother has an inability to meet the needs of X, particularly so far as ensuring her educational needs are met, but also in relation to meeting her emotional needs due to her inability to facilitate a meaningful relationship with the father.

18. The mother’s position is that X has anxiety about spending time with the father and that her anxiety has developed into physical symptoms such as lack of eating, headaches, throwing up, diarrhoea, itching and broken sleep.[16]

    [16] Affidavit of the Mother filed on 5 May 2021, paragraph 34.

19. The mother’s position is that she has long sought to engage X in counselling, but this is something that the father has refused to facilitate.[17]

    [17] Affidavit of the mother filed 18 May 2021, paragraph 43.

    THE COMPETING APPLICATIONS OF THE PARTIES

20. In summary the interim orders sought by the father in his Initiating Application sealed 11 March 2021 are as follows:

    (1)That X live with the father and spend time with the mother each alternate weekend from the conclusion of school (or 3.00pm if a non-school day) Friday until the commencement of school (or 9.00am if a non-school day) Monday.

    (2)In the alternative to the abovementioned time spending that the mother do deliver up X to spend time with the father pursuant to paragraph 4(c) of the Final Orders dated 18 October 2019.

    (3)That X spend additional makeup time with the father as determined by the court.

    (4)That the parties obtain a Family Assessment Report from Ms B.

21. In addition, the Recovery Order and ancillary orders sought by the father in his Application in a Case sealed 3 May 2021 are also extant.

22. The father also sought final orders in his Initiating Application filed 11 March 2021 as follows:

    (1)That X live with the father and spend time with the mother each alternate weekend from the conclusion of school (or 3.00pm if a non-school day) Friday until the commencement of school (or 9.00am if a non-school day) Monday.

    (2)The father to be at liberty to amend his application for final orders upon the mother filing her responding documents.

23. At the present time the father has not amended his application for final orders.

24. When the mother filed her Response on 5 May 2021, the final orders that she sought are in summary:

    (1)That the parties continue to have equal shared parental responsibility;

    (2)That X live with the mother;

    (3)That X spend time with the father as ordered by the Court; and

    (4)That there be certain injunctions restraining the parents from abusing, denigrating or insulting the other party to or in the presence of X, and from discussing the proceedings with X or in her presence.

25. The mother’s position on an interim basis pursuant to her Response filed 5 May 2021 was in summary as follows:

    (1)That the parties have equal shared parental responsibility;

    (2)That X live with the mother;

    (3)That X spend time with the father each alternate weekend from 10:00am Saturday until 4:00pm Sunday with handovers to occur at the E Children’s Contact Centre;

    (4)That the mother be permitted to enrol the child into a child psychologist; and

    (5)That there be certain injunctions restraining the parents from abusing, denigrating or insulting the other party to or in the presence of X, and from discussing the proceedings with X or in her presence.

26. During the hearing however, and when faced with the father’s application that there be a change of primary care, the mother for the first time since 15 January 2021 indicated that X immediately return to spending time with the father in accordance with the final orders made 18 October 2019.

27. As a consequence of the mother’s changed position, the ambit of the dispute has been narrowed to whether or not X should be placed into the primary care of the father at an interim stage or whether there should be a return to the arrangements prescribed by the final orders of 18 October 2019.

28. As I commented to the mother’s counsel during the hearing, the mother’s change of position was somewhat confounding, particularly because I could not reconcile that position with what had occurred since 15 January 2021, and in particular:

    (1)Why it was that the mother suddenly considered that she was able to facilitate X attending time spending with the father, when it was her position that she had not been able to do so since 15 January 2021; and

    (2)Why the mother had not sought to reintroduce any time spending or communication between X and the father in any meaningful way since 15 January 2021, a period of over 4 months by the time of the hearing.

29. The mother’s position now appears to be that if there is a change to the handover arrangements, she now feels confident that she can ensure X passes into the father’s care.

    ADDITIONAL INFORMATION PROVIDED TO THE COURT

30. During the hearing the father’s counsel referred the court to Ms B’s Family Assessment Report prepared during the second set of proceedings dated 17 September 2018.

31. In doing so, the mother’s counsel sought to highlight that whilst the mother had raised complaints about the father with Ms B, ultimately Ms B was of the view both from her own observations and her own inquiries with third parties that there were no concerns in relation to the father and his ability to meet X’s needs.

32. In particular, attention was drawn to:

    (1)Paragraph 92 of the report in which Ms B recorded:

    “The report writer has had the benefit of having conducted a Family Assessment regarding X in 2012 when X was aged 15 months.  Six years have passed.  It is noteworthy that report writer in the 2012 assessed that Ms Elkers general demeanour was consistent with a woman who was accustomed to getting her way by the strength of the statements and convictions.  She was assessed as likely being the perpetrator of domestic violence towards Mr Aitchison despite her alleging she was the victim of his violence.  In this assessment Ms Elkers continues to claim Mr Aitchison is the perpetrator of violence on the basis of his alleged behaviour at handovers and his communication.  The report writer was unable to find evidence to support Ms Elkers claims in her documents.  Nor was it consistent with the parent’s presentation in the interviews.”

    (2)That Ms B had contacted X’s school for the purposes of her assessment in 2018, and at that time X was among other things was recorded as a “happy well-adjusted child who appears to enjoys school (sic)”, who was doing “academically well” and had “sound friendships”.[18]

    (3)In addition X was recorded as being “pleased to see her father” and “happy to leave school with him”.[19]

    (4)Both parents in the report were recorded as being motivated by X’s best interests and there were no concerns about her care with either parent.[20]

    [18] Report of Ms B dated 17 September 2018, paragraph 76.

    [19] Ibid, paragraph 79.

    [20] Ibid, paragraph 75.

33. The father has additionally relied on additional material which was provided to the court during the hearing on 31 May 2021.

34. Those documents are:

    (1)A copy of a Mandatory Notification Report dated 5 February 2021 made by X’s school to the Department of Child Protection.[21]

    (2)A copy of email communication between X’s Year 5 teacher Mr H and school leaders dated 11 February 2021.[22]

    (3)The Response to the Notice of Risk prepared by the Department of Child Protection dated 3 May 2021.[23]

    (4)The responses from the co-located officers from each the Department of Child Protection and South Australia Police, both dated 2 June 2021.[24]

    [21] Exhibit “F1”

    [22] Exhibit “F2”

    [23] Exhibit “F3”

    [24] Exhibit “F4”

35. From the father’s perspective these documents take on significance, because when cumulatively read together with Ms B’s assessment from 2018, the father asserts that:

    (1)The mother’s perception and/or description of events differs greatly from reality.

    (2)The mother having failed to succeed in preventing the father’s increase in time with X during the second set of proceedings, has now set about on a determined course to gather evidence from X’s school to support her position.

36. In particular the father points to:

    (1)The school raising a concern that the mother’s report to the school in February 2021 as to events which the mother asserts occurred when X was in Year 1 (X allegedly hiding under the table at school upset and emotional when going into the father’s care), were recorded by the school to not have occurred as described by the mother.[25]

    (2)The school noting the mother’s concerns that she considered X was being bullied, and that her mental health is a priority, with the school responding that X’s poor school attendance may be contributing to the problems she was having in the classroom.[26]

    [25] Exhibit “F1”

    [26] Exhibit “F2”

    THE LEGAL FRAMEWORK

37. In parenting cases both at an interim or final hearing stage, the paramount consideration of the Court is the best interests of the subject child.[27]

    [27] Family Law Act 1975 (Cth) s 60CA.

38. In order to determine what is in a child’s best interests, the Court is guided by those factors set out in section 60CC of the Family Law Act 1975 (Cth) (‘the Act’), as follows:

    (2)      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.

    Note:   Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

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

    (3)      Additional considerations are:

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

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

    (i)        each of the child’s parents; and

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

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

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

    ii)      to spend time with the child; and

    iii)        to communicate with the child;

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

    (d)       the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

    i)        either of his or her parents; or

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

    (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

    (f)the capacity of:

    i)        each of the child’s parents; and

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

    to provide for the needs of the child, including emotional and intellectual needs;

    (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

    (h)       if the child is an Aboriginal child or a Torres Strait Islander child:

    i)        the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

    ii)       the likely impact any proposed parenting order under this Part will have on that right;

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

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

    (k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

    i)        the nature of the order;

    ii)       the circumstances in which the order was made;

    iii)      any evidence admitted in proceedings for the order;

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

    v)       any other relevant matter;

    (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

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

1. The Act also contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility.[28] That presumption can be rebutted in certain circumstances, namely situations relating to abuse and/or family violence.

   [28] Ibid, s 61DA.

2. Here, the parties have previously agreed and the court has made two sets of final orders that provide for the parents to have equal shared parental responsibility. It is not lost on me that the mother continues to advance a position that the parties should continue to share parental responsibility. The father’s position regarding parental responsibility is not clear to me, as he does not address this topic in any of the applications that he has filed. Indeed, both parties have not addressed anywhere in their documents that have been filed with the court whether they seek to discharge or vary any of the final orders made on 18 October 2019.

3. In Goode & Goode (2006) FLC 93-286 (‘Goode’) at 82, the Full Court set out the “legislative pathway” that is to be followed in interim parenting cases as follows:

   (1)identifying the competing proposals of the parties;

   (2)identifying the issues in dispute in the interim hearing;

   (3)identifying any agreed or uncontested relevant facts;

   (4)considering the matters in s60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (5)deciding whether the presumption in s61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (6)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (7)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s60CC, or impracticable;

   (8)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s60CC, or impracticable;

   (9)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s60CC;

   (10)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s60CC; and

   (11)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

   DISCUSSION

4. The guiding principles which underpin the parenting provisions in the Family Law Act 1975 (Cth), are set out in 60B(2) which provides:

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

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

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

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

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

5. Accordingly, it would be a significant step for the court to make a determination, either at an interim or a final hearing to deny a child the right to have both of their parents in their life.

6. Sadly and for reasons that are still unclear to me, given the position now promoted by the mother, it is apparent that X has not been able to enjoy a meaningful relationship with both of her parents in recent times. I am not certain that had this matter come before me sooner and more proximate to the events of January/February 2021, that with the evidence presently before me, that I would have made an order that there be no time spending between X and the father.

7. I consider that I am also able to assume that because the mother now asserts that there should be a return to the arrangements prescribed by the 18 October 2019 final order, she is confident that she can ensure X will attend time spending with the father. In addition I consider that it is safe for me to infer that the mother no longer has any complaints about the father and his ability to not only meet X’s needs in every way, but additionally that he does not present as a risk to X in any way; if they were ever her concerns.

8. The father’s position as a consequence of the Application in a Case filed by him on 3 May 2021, is such that there be no time spending between the mother and X for some time. That however was not the position advanced by his Counsel during the hearing. As I understand the father’s case as presented to the court, he sought that there be a change of primary care and that X immediately resume spending time with the mother on an alternate weekend basis with such arrangements to be reviewed after two months of the making of the order.

9. The father’s position promoted through his counsel at the hearing is that the present circumstances warrant the court taking such a dramatic step, particularly given the concomitant concerns as to the mother’s inability to ensure that X maintains a relationship with the father and the emotional harm that is likely causing her, coupled with the mother’s inability to ensure that X attends school regularly. From the father’s perspective X is at a very vulnerable stage in terms of her development, and is on the precipice of a downward spiral unless the court takes action.

10. I am mindful that the situation confounding a Judge at an interim hearing is a very difficult one. As the Full Court identified in Goode & Goode:

    “…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible”.[29]

    [29] Goode & Goode (2006) FLC 93-286 at 68.

11. The matters that have been advanced on behalf of the father are such that the court is being asked to make findings at an interim stage as to the reasons that sit behind the mother’s conduct, particularly in relation to the events since January 2021 and the cessation of X’s relationship with the father.

12. While I have some very significant concerns about the mother’s conduct (for all of the reasons advanced by the father’s counsel), I do not consider that at this interim stage I am able to make findings that the root of the problem lies with the mother’s inability to support X having a meaningful relationship with the father. Particularly in circumstances where until January 2021, the mother has been facilitating X’s relationship with the father.

13. That being said, I equally can not ignore the possibility that the father might be correct in the view that he has formed about this. Beyond those factors already discussed in these reasons, it is not lost on me that with reference to Ms B’s report dated 17 September 2018 that in the second set of proceedings the mother agitated that she have sole parental responsibility for X and that there be no time spending between X and the father.[30] From the father’s perspective, the mother’s actions now are an attempt to achieve that which she was not able to achieve through the second tranche of the proceedings.

    [30] Report of Ms B dated 17 September 2018, paragraph 95.

14. Whatever the case may be, it is apparent to me that at this stage the person that has the potential to suffer most from the current impasse is X. If it is the case that X has exhibited any of the behaviours that each of her parents assert they have observed, it would appear that she is undoubtedly caught in the middle of the conflict between her parents. On any view, I must accordingly have concerns for X’s emotional wellbeing at the present time.

15. Those concerns are compounded when I add what appears to now be an escalating problem of poor school attendance.

16. What is not clear to me in relation to X’s poor school attendance is:

    (1)Whether the father knew about X’s poor school attendance prior to the current tranche of proceedings given it has been an issue since 2019, and if not, why not?

    (2)Moreover if the father was aware of the problem sooner, it is not clear to me what, if anything he had done to deal with this topic much sooner and before it became so significant?

    (3)I equally do not know what the mother says about this topic as she is not on oath with respect to the same, given the timing of when this issue was raised by the father in the present proceedings?

17. These are all issues that are amongst the questions that might ultimately be asked of both parents on this topic in due course.

18. Regardless of the answer to those questions however, I accept the submissions made on behalf of the father that X’s poor school attendance, at this formative stage of her development is a problem that requires closer attention, understanding and management.

19. While I have very real concerns about the mother and her conduct, I am not entirely certain at this stage that a wholesale change of primary care is appropriate and in X’s best interests.

20. The factors that would speak against a change of primary care on an interim basis include:

    (1)That for the most part, and until the break down that occurred in January 2021, the mother has complied with court orders and facilitated X having a meaningful relationship with her father.

    (2)That there has now been an extended period of time where X has not seen the father, and it is not clear to me how she will react to resuming her relationship with the father and whether she will be able to manage a change to her primary living arrangements.

    (3)I do not have any separate and independent expert evidence as to how X is progressing and her own perspective on the circumstances that she now finds herself in, nor her wishes.

    (4)I do not know if the quality of X’s relationship with either of her parents has been impacted by recent events, and if so the extent to which that might have occurred.

    (5)With reference to the report of Ms B prepared 17 September 2018, it is apparent that X enjoys a close relationship with her two siblings that reside with her in the mother’s home. While I acknowledge that one of her brother’s is now an adult, and the other lives in a shared care arrangement with his father, it is not clear to me how, if at all X’s relationships with her siblings might be impacted if there were to be a change of her primary care.

21. From my perspective, these are all topics which ultimately require the close consideration of the court when more information is to hand; whether that be at trial or at an earlier stage if circumstances exist to warrant earlier consideration.

22. That is not to say that I consider that the present situation should continue to amble along at a rate and pace dictated by the mother, as presently appears to be the case. As I commented to the mother’s counsel during the hearing, if it is now the mother’s position that X can immediately fully resume spending time with the father in accordance with the previous final orders, why has that not already occurred, and why has the mother not facilitated any communication or time spending between X and the father since 15 January 2021?

23. I am mindful that at the conclusion of the hearing on 2 June 2021 I enquired of the parties what was to occur pending delivery of my reasons. The mutual position of the parties was that X could immediately resume spending time with the father, and indeed the mother suggested that it should resume from 10 June 2021 in accordance with the usual rotation provided for in the final order of 18 October 2019. I do not know whether this has occurred. I also do not know how X is managing the resumption of her time spending with the father if indeed the time spending has resumed. While I might be able to infer that the silence from the parties since the hearing is an indicator that the time has resumed and that it is progressing well, I do not consider that it is either possible or necessary for me to draw that inference at this stage.

24. I am mindful that the court is not bound to only consider the positions advanced by each of the parties and to adopt one of the parent’s options in preference to the other. Rather, the court is able to consider any other arrangement that might be determined to be in X’s best interests.

25. While I do not have any current independent expert evidence at this stage, I accept that in parenting cases that are litigated in this jurisdiction there are occasions where a court considers and orders a period of time where a child does not see the other parent before returning to a regime of time spending with both parents. Reasons for doing this might include giving the child and the situation a chance to settle down, and/or recalibrating and reality testing the child’s perceptions about the parent with whom they are to live with during that period.

26. In the present circumstances, and given the position now promoted by the mother and the passage of time that X has not spent time with the father, I consider that the circumstances are such that there should be a period of time that X lives with the father, and does not live with the mother. In my view however, I do not consider that this should be a lengthy period of time for all of the reasons that I have already discussed.

27. Another way of considering the approach that I propose to take is that I am resuming X’s school holiday time spending with the father in accordance with the final orders made in October 2019, but that I am additionally ordering a period of make-up time, to account for the time missed between 15 January 2021 and the present date.

28. I am conscious that X, like all children in this state is soon to commence school holidays (if she has not already done so). From my perspective the close proximity of the school holidays presents an opportunity for X to spend time with the father to enable her to restore her relationship with him, without the pressures of school, homework, extra-curricular activities and sharing time between both parents’ homes.

29. While I am mindful that the mother promoted a change to handover arrangements, I do not consider that it is necessary or appropriate for me to do so. In my view X would benefit from things being as “normal” from her perspective as possible. As a result of the final order made on 18 October 2019, X’s normal is that where handovers do not occur at school they occur with the father conducting the handovers at the mother’s home. It is my view that in the main this arrangement is appropriate and should continue, with a couple of variations. Firstly, I consider it appropriate that the mother be restrained from attending the child’s school when X is scheduled to be in the father’s care. Secondly I consider that the upcoming school holiday handover occur on the basis that the mother is seen by X to be encouraging of the time spending with the father. One way of attempting to achieve this outcome is to have the mother physically take X to the father’s home for handover.

30. So far as X’s school attendance is concerned, and in light of the concerns raised by the school, I consider it appropriate that X only miss school in circumstances of genuine emergency or illness and where a medical certificate detailing her presenting illness or health concern is provided not only to the school but to the other parent.

31. For all of the reasons that I have discussed, I now make those orders that appear at the commencement of these reasons.

I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kari.

Associate:

Dated:       30 June 2021