ALBERT & PLOWMAN

[2018] FCCA 592

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALBERT & PLOWMAN [2018] FCCA 592

Catchwords:
FAMILY LAW – Interim parenting – where Mother seeks to relocate – where impact on child’s time with Father – needs of parents as against needs of child.

Legislation:

Family Law Act 1975, ss.60B, 60CC, 60CG, 61DA and 65DAA

Cases cited:

Goode & Goode [2006] FamCA 1346
Morgan & Miles [2007] FamCA 1230
MRR v GR [2010] HCA 4

Applicant: MS ALBERT

Respondent: MR PLOWMAN

File Number: SYC 5837 of 2013

Judgment of: Judge Altobelli

Hearing date: 28 February 2018

Date of Last Submission: 28 February 2018

Delivered at: Wollongong

Delivered on: 16 March 2018

REPRESENTATION

Solicitors for the Applicant: Jacqueline Gore & Associates

Counsel for the Respondent: Ms Cantrell

Solicitors for the Respondent: Croydon Legal & Conveyancing

Solicitors for the Independent Children's Lawyer: Helen Volk Lawyers

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The Mother be restrained from relocating the residence of the child X born (omitted) 2013 (the child) from (omitted).

2. Both parents ensure that the child attends (omitted) Early Education Centre, (omitted), at least 3 days per week from 9am to 3pm.

3. The Mother be restrained from causing or allowing the child to spend in excess of two nights per fortnight during the school week away from the (omitted) area.

THE COURT FURTHER ORDERS THAT:

1. The parties are at liberty to file terms in the Registry for the purposes of orders being made in Chambers appointing an Expert in this matter.

2. The matter be adjourned to 25 July 2018 at 11:30am for Mention. The parents must attend in person with their legal representatives if the Report is available prior to the adjourned date.  

THE COURT NOTES THAT:

A.The Father’s time with X continue in accordance with existing orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

SYC 5837 of 2013

MS ALBERT

Applicant

And

MR PLOWMAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about X born (omitted) 2013.  X is four years old, but will shortly turn five.  The Court must make a decision of where X should live and how much time he should be spending with his Father.

Background

1. X's Mother is the Applicant in the present case.  She is 44 years old and describes herself as a (occupation omitted).  She works in Canberra and lives in both (omitted) and (omitted).  X's Father is the Respondent in this case.  He is 47 years old, lives in (omitted) and describes himself as a (occupation omitted).

2. X's Mother seeks orders on an interim basis that change the final parenting Consent Orders that the parents entered into on 17 March 2016.  The effect of her application would be to remove X’s midweek time with his Father, currently from 1pm to 6pm each alternate Wednesday.  The impact of the order the Mother seeks must also be understood in the light of the fact that once he commences school, agreed by the parents to be next year in 2019, X’s midweek time with his Father in accordance with existing orders would commence from after school on each alternate Wednesday and conclude the following morning before school.  The Mother’s proposal also seeks to vary the changeover arrangements, she be permitted to relocate with X to the (omitted) area, be able to make decisions about where he goes to preschool, which child psychologist he attends, as well as a number of consequential orders.

3. The Father’s proposal at the interim hearing was that the Mother be restrained from relocating X’s home from (omitted), that she be restrained from allowing X to spend more than two nights each fortnight away from (omitted), and that both parents do all things necessary to ensure that X attends (omitted) Early Education Centre in (omitted) at least three days weekly.

4. The Consent Orders made on 17 March 2016 were entered into with the benefit of both solicitor and Counsel representing the parents and X.  The Orders provide for equal shared parental responsibility, for X to live with his Mother, and to spend time with his Father (relevantly) on each alternate weekend from after day care or school on Friday to the commencement of school or day care on Monday, as well as the Wednesday evening contact, progressing to overnight contact in the alternate week.  The Orders also provide for school holidays and special days.  The Mother was granted liberty to relocate with X to the (omitted) area of Sydney and authorised to enrol him into (omitted) Early Education Centre.

5. There is no Rice & Asplund issue in this case.  Both parents recognise the need for the final orders to be revisited. 

6. Some further relatively uncontentious facts emerge from the Mother’s affidavit.  For example, in her affidavit of 23 October 2017 she deposes that she purchased her house in (omitted) in April 2016.  At that time, and presumably at the time the Consent Orders were entered into, she was working in the CBD of Sydney.  In (omitted) 2016, she resigned from her job in Sydney and began searching for work closer to (omitted) or at least with more suitable hours if she had to travel.  She deposes to applying for over 200 positions in the Sydney area including, but not limited to, the CBD, (omitted), (omitted), (omitted) and (omitted).  She subsequently cast her net further, seeking employment in the (omitted) area. 

7. The Mother deposes to having met her current partner, Mr G, in (omitted) 2016.  He lives in (omitted) in his own home.  By January 2017 the Mother explains that Mr G and herself started spending more time together and consequently this meant that X and the Mother were spending more time in (omitted). 

8. At paragraphs 20 and 21 of the Mother’s affidavit filed 30 October 2017, the Mother deposes to how X has become accustomed to the travel between (omitted) and (omitted), appearing to enjoy the trip and certainly showing no adverse reaction to the travel.

9. By April 2017 the Mother had still not found work, so she began to look for jobs in the (omitted) and Canberra areas, whilst also continuing to apply in Sydney.  She found temporary work in (omitted) for a few weeks.

10. The Mother deposes that in June 2017 X was spending less time at day care and more time with her, as she was not working, and could not afford to pay for his child care fees.  She reduced X’s days from five to three. The days in question coincided with the days when the Father would collect or drop off X.

11. By September 2017, the Mother deposes that she continued to seek work in the (omitted) and Canberra areas and wanted to change the days that X was in day care so that he was not spending so much time away from her.  On 13 September 2017, she was offered the position that she currently holds as (occupation omitted) in the Canberra area.  It is a full-time job that allows her to start at 9am and finish at 4.30pm in Canberra.

12. At paragraph 40 of the Mother’s affidavit she explains that if the Court allows her to relocate to (omitted) with X, her work hours would allow her to drop X to preschool just before 8am, and he would be collected “by myself or more often by Mr G prior to 5pm.”  The Court observes that given that the Mother said that she would finish work at 4.30pm in Canberra, it is unlikely that she could collect X “prior to 5 pm”.  The Court notes that there is no evidence from the Mother’s partner, Mr G.  Thus, the Court knows nothing about his own work hours and his readiness and capacity to collect X from preschool as the Mother proposes.

The Evidence Before the Court

1. In the Mother’s case she read her affidavits filed 30 October 2017, 8 January 2018, and filed by leave on 28 February 2018.

2. In the Father’s case he read his affidavit filed 20 December 2017.

3. The Child Dispute Conference Memorandum dated 9 January 2018 came into evidence.  The Father also relied on a tender bundle of documents.

Applicable Law

1. The applicable law is, of course, Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’).  In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)    The objects of this Part are to ensure that the best interests of children are met by:

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

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

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

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

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

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

   (3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)    to maintain a connection with that culture; and

   (b)    to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)    to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)    family violence.

   (3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)    If:

   (a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends or holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)    how far apart the parents live from each other; and

   (b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)    the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child, the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (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).

   Additional considerations

   (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.

The Case Law

1. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

1. At [15] the High Court emphasised the need for a practical approach:

   15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

2. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, 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. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

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

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC 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);

   (e) deciding whether the presumption in s 61DA 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;

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

   (g) 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 s 60CC, or impracticable;

   (h) 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 s 65DAA(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 s 60CC, or impracticable;

   (i) 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 s 60CC;

   (j) 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 s 60CC; and

   (k) 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.

3. The Full Court, in Morgan & Miles [2007] FamCA 1230, made a number of comments relevant to these circumstances in paragraphs 82 to 88 (emphasis added):

   82. It is important to note that there are no separate provisions in the Act dealing with interim, as distinct from final orders, although s 61D(3) does not require mandatory application of the presumption of equal shared parental responsibility on the making of an interim order. Thus there is no legislative mandate to consider different criteria in interim parenting application involving relocation to final applications, although the former will of necessity, be an abridged enquiry.

   83. I have noted above that cases before the introduction of amending Act generally applied principles enunciated in Cowling, and particularly had regard to those factors relevant to a child’s stability as the foundation for orders maintaining existing arrangements. Thus generally courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent.

   84. The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.

   85. In Goode the Full Court considered whether the principles in Cowling remained applicable after the introduction of the amending Act, particularly paragraph 22 in Cowling which talks about a “well settled environment”. The Full Court determined the amending Act had effected change which required reconsideration of that paragraph. Whilst lengthy, it aids understanding to set out the relevant passages from Goode:

   71. The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   73. That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).

   86. I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s 65DAA (with reference to 
   s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.

   87. As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.

   88. It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.

The Child Dispute Conference Memorandum

1. When the parents met with the Family Consultant in the Wollongong Registry, the pressing issues seemed to be that the Father had not spent time with X since Christmas Day, there were unresolved issues about which preschool he attends, as well as unresolved issues about X’s allied health needs (which will be discussed in greater detail below).

X's Special Needs

1. There is considerable evidence before the Court in relation to X’s special needs.  A report dated 29 November 2017 was prepared by the Growth and Development Clinic at Neonatal Intensive Care Unit at (omitted) Hospital, based on observations taken on 4 October 2017.  The report in fact provides information very useful to the Court, not just about X, but about his parents and the nature of the relationship between them.

2. The bottom paragraph on page 2 of the report, under the heading “Background” relates to the important issue of the continuity of X’s attendance at his day care, (omitted) Early Education Centre (the Centre) at (omitted):

   X lives most of the week with his mother, Ms Albert, and visits with his father, Mr Plowman, weekly on Wednesdays from 1-6pm, and every second weekend (Friday to Sunday). At home X speaks English with both parents. X is enrolled in day care at (omitted) Early Education Centre, (omitted). While initially X attended day care 5 days a week, (omitted) report that from 15th May 2017 X's attendance dropped back to Wednesdays and Fridays as he had used his 42 days of allowable absences in the previous financial year. From the period of May to July 2017, his attendance at day care has been inconsistent (e.g, some days for only 4 hours) with three absences. As of September 2017, (omitted) report that X is now enrolled 3 days a week (Monday, Wednesday, Friday). (omitted) believe that X's behaviour has worsened after decreasing the days he attends day care. From the 8th August 2017 X was also attending (omitted) Children's Centre two days a week (from 9am - 5.30pm). However, court orders specified that permission has only been granted for X to attend (omitted).

3. A number of issues arise out of this section of the report.  X’s attendance at the Centre, which was the responsibility of his Mother as his primary carer, declined from five days a week to two days a week, and then three days a week.  Some of his attendances were for a short period only.  The statement that the Centre itself believed that X’s behaviour has worsened after decreasing the days that he attends day care is of concern to the Court.

4. It was apparent as at the date of the assessment, 4 October 2017, X was not attending any therapeutic interventions.  In the Mother’s affidavit filed 30 October 2017, at paragraph 43, she deposed that it was over the last 12 months that issues had risen about X’s development, mainly by staff at (omitted).  She deposed to the conversation she had with staff from (omitted) including in September 2016.  The Mother gives further evidence about what she did in response to those concerns, including consulting Dr R and (omitted) Hospital.

5. At page 11, in the second paragraph, the report refers to the Mother explaining her partner’s role in setting clear rules and boundaries within the home, and thus providing an encouraging but structured environment.  This statement is significant because one of the issues for the Court to consider is precisely how much time X is already spending in the home of the Mother’s partner in (omitted).  The Father’s case is that X has, in effect, already relocated to (omitted).  The Mother’s case is that she spends between two days and five days a week at her partner’s home.  The report creates the impression that the Mother’s partner is very much involved in parenting X within the context of a structured home environment.  The report creates the impression that, as at October 2017, X may have already been spending considerable time with his Mother’s partner in his home at (omitted).

6. There are three quite disturbing paragraphs at the top of page 13 which bear reproduction in full:

   X was observed to experience distress as a result of the relationship difficulties between his parents. In the waiting room before the assessment, X was initially restrained from being able to approach his other parent when he sighted them across the room. He was observed to verbally and physically protest against this restraint, and was eventually allowed to approach the other parent independently.

   It was later discovered that X's father's visitation time had commenced while the assessment was still ongoing. After the assessment, X's parents disagreed about whether X could leave the hospital with his father or whether his mother needed to drop X back at preschool for his father to pick him up from there. X's mother was visibly distressed by the situation, and X was observed to console his mother. He hugged her and said " I know it hurts mummy". X also repeatedly asked why he wasn't able to see his father, and tried to leave the room to see him, but was physically restrained by his mother.

   Staff members were concerned about a potential altercation between parents if they came into physical contact, and ended up being locked in the assessment room with X and his mother. Hospital security were called as a result. When the testing room door was opened for security, X ran out to his father and both left the hospital. A social worker was called to debrief with X's mother. This situation clearly had an impact on X.

7. It is interesting to observe that the Family Consultant in her brief intervention with the parents very astutely observed in her report:  “There is no co-parenting relationship.”  That is hardly surprising given what was reported in the Growth and Development Clinic Report, extracted above.  Indeed, consistent with all the other evidence before the Court at this particular point in time, a strong impression is formed that X’s parents have a dysfunctional parenting arrangement that is characterised by lack of communication and intense mutual distrust.  X is caught in the metaphorical crossfire of his parents’ conflict. 

8. At page 14 of the report there is a strong recommendation that X not start school in 2018.  The parents seem to have embraced this.

9. X was assessed as having cognitive and developmental issues.  He was described as a child who has difficulties with non-verbal problem solving and visual based learning difficulties, but has verbal comprehension skills within the normal range.  A number of recommendations were made about behavioural management, which emphasised consistency between households, and psychological involvement.  Indeed, there is a strong recommendation for each parent to themselves seek psychological assistance.

10. An important recommendation is found on page 17 in the two paragraphs commencing at point 4:

    We recommend that X attends a structured preschool that has a 'transition to school' program, especially in the year prior to school to assist in school readiness. Structured preschools are ideal in preparing children for school as they require children to attend to a certain activity schedule rather than choosing their own. This also helps children to develop areas of strength in skills that they are less confident, as in free play settings children tend to choose things that they are good at and avoid more challenging activities. X's parents may consider placing his name on a waiting list now as preschool placements are often difficult to obtain.

    When searching for a structured preschool, ensure the preschool has a structured learning program. This often includes a daily schedule with set activities, similar to a school timetable. X also needs to consistently attend, this will be important to address given his previous inconsistent attendance. We would recommend X attend a structured preschool for a minimum of 3 days per week, between the hours of 9am - 3pm at least. This will model the expectations of kindergarten in preparation for school. Given his behavioural difficulties, X may also require behavioural support in preschool.

11. The recommendation for a structured preschool with a transition to school program assumed an importance in the Mother’s case with her emphasising the availability of such a preschool in (omitted) but, seemingly, having made no enquiries about this in (omitted).  The recommendation again clearly emphasised consistent attendance.

12. By way of summary, since October 2017 X’s parents have known that they need to both consistently manage behavioural strategies for their son, that X needs to be engaged with a psychologist with whom they are both are also engaged, that they themselves should engage in psychological assistance, and finally that the importance of X attending a structured preschool, on a consistent basis, that has a transition to school program.  As the Family Consultant so astutely observed in her Memorandum that X’s parents have not been able to achieve this and, indeed, their lack of communication is such that each parent makes different arrangements for X to be assessed.

13. From the Court’s perspective, what X needs appears to have been subsumed to the needs of his parents, who seem to be engaged in a power struggle in relation to X.

The Mother’s Case Summarised

1. Mr Lloyd, Solicitor, appeared on behalf of the Mother.  On her behalf, he emphasised that the preschool that she proposed would meet the criteria referred to in the Growth and Development Clinic Report of 29 November 2017.  Her case emphasised that if the preschool was changed and implicitly, if not explicitly, if the Mother were allowed to relocate with X to (omitted), he would no longer be exposed to lengthy travel.  Moreover, it was submitted the relocation would have no impact on the Father’s time with X.

2. The Court has a number of difficulties with the Mother’s case as advanced to the Court.  The Mother has elsewhere deposed in her affidavit that travel is no problem for X.  Indeed, it is hard to imagine how travel would be problem for X at all if he is living in (omitted) and attends a day care centre in (omitted).  The Mother adduced no evidence at all to indicate that she had made enquiries about a structured preschool that has a transition to school program in (omitted) or in the surrounding suburbs.  The Mother’s evidence focuses on the availability of such facilities in (omitted).  The Mother’s contention that the relocation would not affect X’s mid-week time with his Father is surely incorrect.  Next year X will be having overnight mid-week time in the alternate week with his Father.  How reasonably practicable can that be, given the distance that the Mother proposes to create?  Indeed, one would be entitled to reasonably form the impression that the relocation to (omitted) is as much about the Mother furthering her relationship with her partner, and herself being closer to work in Canberra, than it is anything to do with X’s best interests.  The impression is formed that the Mother has been rather oblique in her disclosure to the Court about the time she actually spends in (omitted), for example, paragraph 21 of her affidavit filed 8 January 2018.  The Mother’s track record about consistent attendance for X at his day care in (omitted) presents as being problematic.

The Father’s Case Summarised

1. Ms Cantrell of Counsel appeared on behalf of the Father at the interim hearing.  A strong implied undercurrent in the Father’s case is that despite the Mother’s assertions in her affidavit, she had probably all but relocated with X to (omitted), thus making it harder for X to enjoy time with his Father, all in a context when he was not attending the security and stability that was offered by his day care in (omitted).   The Father’s case implied that if the Mother could not be consistent in ensuring X’s attendance at day care in (omitted), how could the Court be confident that she would be consistent with attendance in (omitted)?  There was a real issue about whether the Mother was prioritising her own needs such as to further a relationship, to be closer to work, than prioritising X’s needs.  The Father’s case, however, very wisely accepted that the Mother’s life was in a state of transition.  The submission in this regard was that whilst each parent was entitled to get on with their own life, the potential impact of the consequential changes on X was matters that needed to be explored with the benefit of expert evidence, and at a final hearing where the evidence could be tested.

The Independent Children’s Lawyer’s Case

1. The Independent Children’s Lawyer had only just come into the matter.  Her view was that the Independent Children’s Lawyer did not oppose the orders sought by the Father restraining the Mother from relocating X’s residence from (omitted) and restraining her from allowing X to spend in excess of two nights each fortnight away from (omitted).  She did not oppose the making of an order that the parents ensure X attends (omitted) Early Education Centre in (omitted) on at least three days per week from 9am to 3pm.

The Statutory Considerations

1. The Court must make an order that is in the best interests of X.  This is always difficult in an interim hearing where the time is circumscribed and the evidence is untested. 

2. The Court must consider as a primary consideration the benefit to X at having a meaningful relationship with both of his parents.  That is not an issue in this case.  X appears to enjoy a meaningful relationship with both his parents.  That meaningful relationship is unlikely to change whether X lives in (omitted), or in (omitted).

3. The Court must consider the need to protect X from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  On one view, the inability of both parents to satisfactorily address the special needs that X has would suggest there is a need to protect X from, at least, the risk of parental neglect.  The difficulty for X is that his parents have such a poor relationship and, at least from this Court’s first impression, both seem more preoccupied with their own needs arising from the parental conflict, than X’s needs.  Absent the parental conflict, it is probably the case that both these parents function at a high level as parents and meet all of X’s needs.  Where it is necessary to act conjointly and cooperatively, and this is clearly the case as regards to X’s special needs, the parents simply cannot.  This is a case where the Independent Children’s Lawyer will need to become very proactive.  Wherever X lives, or goes to preschool, it is quite likely that his own parents present the greatest risk of harm to him. 

4. The Mother’s failure to ensure that X consistently attended his day care centre in (omitted) is quite disconcerting.  Not all of it can be explained by reference to the Mother’s work in Canberra.  The Court is concerned that the issue is not so much one of the physical capacity of a parent to ensure that a child attends the stable and protective environment of a day care or preschool.  The Court’s concern is deeper than that. Indeed, whether a parent has sufficient insight to understand how the needs of a child need to be prioritised over their own needs.  The Court is concerned that the Mother’s application is more about her needs than X’s.  The Court acknowledges that its concerns probably do not amount to a need to protect X from the risk of harm in his Mother’s care, but there are certainly elements of her past conduct, and present motivations, which will no doubt be subjected to a potentially withering scrutiny in cross-examination.  The risk profile may become clearer. 

5. X is far too young to have any relevant views on the matter. 

6. X appears to have a good relationship with both his parents.  One would reasonably expect that as his Mother is his primary carer, the potentially stronger bond is there.  What evidence there is, however, suggests a very strong bond with his Father too.  On the Mother’s proposal, the Court believes that it is almost inevitable that the Father’s midweek time with X will at some time in the future be threatened.  Indeed, the Mother’s proposal is for the midweek time to be suspended outright.  There is scant evidence to suggest how this could be in X’s best interests and, indeed, there is a strong inference that this is not about X’s best interests, but the Mother’s own interests. 

7. An important consideration in this case is the likely effect of changes in X’s circumstances.  The Mother’s proposal to remove the midweek contact presents to the Court as being a significant change in X’s life, in a context where there is no evidence, expert or otherwise, to assist the Court with deciding how that will affect X’s relationship with his Father.  The Court is also concerned about the change in preschool that the Mother proposes.  The Growth and Development Clinic Report emphasises many times the importance to X of such structure and consistency. But what is not known is what impact the change will have on X.  Nothing is known about the Mother’s partner, other than what the Mother deposes to, and this too is potentially a big change for X.  Clearly, the Father’s proposal is the one that brings about the least change in X’s life.

8. The Court acknowledges that there are substantial issues of practical difficulty and expense.  The Mother and X supposedly live in (omitted), spend considerable time in (omitted), and the Mother works in Canberra.  The Father lives in (omitted) which is itself (omitted) of (omitted), but certainly in (omitted) Sydney.  Expense issues do not arise in this case.  The focus is on the practical difficulty of travelling long distances in a car, and how this substantially affects X’s right to maintain personal relations and direct contact with both parents on a regular basis.  The Mother’s case about the impact of travel on X is plainly inconsistent.  It almost seems as if, at one point, it was convenient for her to downplay the impact of travel on X, but at another point she sought to emphasise it.  From X’s perspective the proposal with the least travel for him sees him remaining in (omitted), and continuing to attend day care in (omitted).  What is not known, of course, is whether the program at the day care where he attends meets the criteria referred to in the expert evidence before the Court.  This is a matter that the Independent Children’s Lawyer will need to pursue because, quite frankly, the Court does not trust the parents to do so.  Of course, keeping X in (omitted) means that his Mother will have to do the travel.  Her necessity to work is self-evident.  Why X’s home should be changed on an interim basis because of her work is not clear to the Court.  Why should X suffer from an uninformed decision which brings about a major change in his life, without proper or adequate evidence?

9. The Court must consider issues of parental capacity, and their attitudes to X and to the responsibilities of parenthood.  Even on the limited material that is before the Court, there is certainly room to criticise both parents.  These are matters that will be explored, no doubt, at a final hearing.  The Court has already suggested, however, that a major issue at the final hearing will be whether the Mother’s proposal has in fact more to do with her own need, than that of her son’s.

Orders in the Best Interests of X?

1. The Mother was asked by the Father to offer an undertaking not to relocate X’s residence from (omitted), or cause X to spend in excess of two overnight periods each fortnight outside of the (omitted) area.  She declined to do so.  It therefore becomes necessary to make an order to that effect in circumstances where the Court does not believe, having regard to the matters discussed above, that it is presently in X’s best interest to allow this to take place.  This, no doubt, inconveniences the Mother who lives in (omitted), but works in Canberra.  The necessity for her to work is self-evident.  It may well be that at a final hearing, when the issue of the impacts of the changes she proposes in X’s life are fully canvassed, her proposal will be deemed to be in X’s best interests.  At an interim stage, however, the Court does not have that confidence.  For the time being, X needs to have one primary residence.  The concession that the Father makes, and not opposed by the Independent Children’s Lawyer, is that X and his Mother should be able to spend up to two nights each fortnight away from the (omitted) area.  The significance of two nights, as opposed to four nights, each fortnight is unclear.  Perhaps the most obvious inference to draw is that given the Father’s proposal (not opposed by the Independent Children’s Lawyer) that X attend (omitted) Early Education Centre at least three days each week, it would follow that X could not spend more than two nights each fortnight during the school week out of the (omitted) area.  There is no reason that the Court can see, however, why the Mother should be restricted on her weekends with X.  The restriction, therefore, should be that the Mother be restrained from causing or allowing X to spend in excess of two nights per fortnight during the school week away from the (omitted) area.

2. The order for X to attend his early education centre in (omitted) is self-evident.  The one caveat the Court makes is that it will be important for the Independent Children’s Lawyer to satisfy herself about the appropriateness of this facility having regard to the criteria set out in the Growth and Development Clinic Report of 29 November 2017.

3. There is no reason why the existing orders for X to spend time with his Father should be changed.  This is supported by the Independent Children’s Lawyer.

4. Ms L, as agent for the Independent Children’s Lawyer, submitted to the Court that an expert report was needed in this case.  The Court agrees.  The parents should be able to fund this themselves.  Subject to the availability of that expert evidence, the Court may be able to find a two-day hearing date later this year, even if that is only on an overlist basis.

5. For the time being orders will be made consistent with the minute proposed by the Father, and the matter will be brought back for mention in four months’ time to ascertain progress in terms of obtaining a suitable expert report.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:  16 March 2018