Aubert & Cranmore

FAMILY COURT OF AUSTRALIA
Aubert & Cranmore [2021] FamCA 77

File number(s): SYC6363 of 2019

Judgment of: ALTOBELLI J

Date of judgment: 25 February 2021

Catchwords: FAMILY LAW – PARENTING – interim parenting – same sex relationship whether existing interim orders should be varied in circumstances where an expert report is now available – where the greatest risk of harm to the child arises from the intense parental conflict – where further interim orders are made

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 106A

Cases cited:
Goode & Goode [2006] FamCA 1346

MRR v GR [2010] HCA 4

Pinson & Pinson (No. 2) [2020] FamCAFC 111

Number of paragraphs: 131

Date of last submission/s: 11 December 2020

Date of hearing: 11 December 2020

Place: Sydney via videoconference

Counsel for the Applicant: Ms Vohra SC

Solicitor for the Applicant: Pearson Emerson Family Lawyers

Counsel for the Respondent: Ms Christie SC

Solicitor for the Respondent: Broun Abrahams Burreket

Advocate for the Independent Children’s Lawyer Mr Holmes

Solicitor for the Independent Children’s Lawyer Holmes Donnelly & Co Solicitors
ORDERS

SYC6363 of 2019

BETWEEN:
MS AUBERT
Applicant

AND:
MS CRANMORE
Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

25 FEBRUARY 2021

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The parties have equal shared parental responsibility for X (“the Child”) born … 2017.
3.The parties must consult with each other about major long term issues in relation to the Child and make a genuine effort to come to a joint decision about such issues, including issues about:
(a)the Child's education, including choice of school;
(b)the Child's religious and cultural upbringing;
(c)the Child's health; and
(d)changes to the Child's living arrangement that make it significantly more difficult for the Child to live with or spend time with the other Party.

4.The parties shall each have sole parental responsibility for making decisions in relation to the day to day care, welfare and development of the Child during the time the Child is in their respective care.
5.The Child live with the Respondent and spend time with the Applicant as follows:
(a)Commencing from the date of these orders until 5 July 2022, on an alternating continuous two weekly cycle as follows:
(i)in week one:
A.from the conclusion of daycare or if the child does not attend daycare 3:30pm on Wednesday until 12:30pm on Friday; and

(ii)in week two:
A.from the conclusion of daycare or if the child does not attend daycare 3:30pm on Wednesday until 5pm on Thursday; and
B.from 9am Saturday until 5pm Sunday,

(b)From 5 July 2022 until further order, on an alternating continuous two weekly cycle as follows:
(i)in week one
A.from the conclusion of daycare/school or if the child does not attend daycare/school 3:30pm on Wednesday until 12:30pm on Friday; and

(ii)in week two:
A.from the conclusion of daycare/school or if the child does not attend daycare/school 3:30pm on Wednesday until 5pm on Thursday; and
B.from 9am Saturday until the commencement of daycare/school on Monday, or 9.30am if the child does not attend daycare/school.

6.Notwithstanding any order to the contrary, the Child spend time with the parties as follows:
(a)With the parent with whom the Child is not already living/spending time from 9am until 12:30pm on Mother’s Day;
(b)With the parent with whom the Child is not already living/spending time from 9am until 12:30pm on Father’s Day.
(c)With the parent with whom the Child is not already living/spending time from after daycare or 3:30pm on the day before the Child’s birthday to before daycare or 11am on the Child's birthday;
(d)With the Applicant from 3:30pm or after daycare on the day before the Applicant's birthday to before daycare or 5pm on the Applicant's birthday;
(e)With the Respondent from 3:30pm or after daycare on the day before the Respondent's birthday to before daycare or 5pm on the Respondent's birthday.
(f)At all further and other times as agreed between the parties in writing.

7.Notwithstanding any order to the contrary, the parties be permitted to spend block time with the Child and/or take the Child on holidays in Australia on the following basis:
(a)That in the 2021 calendar year, each party be permitted to spend block time and/or holiday time, with X as follows:
(i)One period of a 3 night block between the date of this order and 4 July 2021;
(ii)Three periods of a 4 night block between 4 July 2021 and 4 July 2022;
(iii)Three periods of a 5 night block between 4 July 2022 and 4 July 2023; and
(iv)At any further or other times as agreed between the parties in writing.

(b)That for the purposes of order 7(a) above, the party proposing to spend block time with the Child shall provide to the other party no less than 2 weeks' written notice of their intention to spend block time with the Child including details of the suburbs in which they propose to stay, the dates they propose to stay in each suburb and a contact telephone number prior to such travel.
(c)That for the purposes of order 7(b), in the event any of the travel plans change, the party travelling with the Child shall provide updated notice to the other party as soon as is reasonably practicable and no later than 1 day after the plans have changed.

8.For the purposes of order 7 hereof, the parties' time with the Child pursuant to order 5 shall be suspended and the Child shall not be required to attend daycare during the block period.
9.For the purposes of changeovers that do not occur at the Child’s daycare, the Respondent or her nominee will deliver the Child to the Applicant’s residence at Suburb BB at the commencement of the Applicant’s time with the Child and the Applicant or her nominee will deliver the Child to the Respondent’s residence at Suburb DD at the conclusion of the Applicant’s time with the Child, unless otherwise agreed between the parties.
10.Each party be permitted to communicate with the Child by telephone or Facetime when the child is in the other’s care between the hours of 6.30pm and 7pm, with the call to be initiated by the parent seeking contact and to be facilitated by the parent with whom the Child is living/spending time.
11.In the event either parent misses a call from the other parent pursuant to order 10 hereof then that parent will return the call prior to 7:30pm that night to facilitate the Child speaking to that parent.
12.The parties will ensure that they speak to the Child for an age appropriate time, conclude the call if the Child requests same, allow the call to end at its' natural conclusion and in any event do not hold the Child on the phone for longer than five minutes.
13.Neither party shall make a commitment for the Child during the other parent's time without first obtaining agreement from the other parent, except in the case of the Child being sick or requiring prompt medical attention in which case they shall take the next available medical appointment.
14.Each party be restrained from physically disciplining the Child and will instruct any person caring for the Child to not physically discipline the Child.
15.That the Applicant and Respondent do all acts and things and sign all documents necessary to continue to attend upon Ms B of C Services, or such other person as agreed between the Applicant and Respondent (“the family therapist”), and the following will apply:
(a)The Applicant and Respondent will attend family therapy:
(i)at such times and on such dates as agreed with the family therapist;
(ii)at such frequency as is recommended by the family therapist.

(b)If the family therapist requests the Child’s attendance at family therapy, the parent with whom the Child is with at the time of the appointment will take all reasonable steps to facilitate the Child’s attendance at family therapy, at such times nominated by the family therapist.
(c)The Applicant and Respondent will be responsible for and pay as and when they fall due any and all out-of-pocket costs of the family therapy as follows:
(i)in equal shares all joint sessions with the family therapist;
(ii)in equal shares all of the Child’s sessions with the family therapist; and
(iii)solely the costs of their individual sessions with the family therapist.

(d)That leave is granted to the Applicant to provide a copy of the following documents to the family therapist for the purpose of conducting family therapy in accordance with this order:
(i)any orders made in this Court as may be relevant;
(ii)any Family/Expert Report obtained in the proceedings;
(iii)any Memorandum issued in the proceedings by a Family Consultant; and
(iv)any other relevant court documents including Affidavits.

(e)The Applicant and Respondent are restrained from seeking to obtain a written report from the family therapist with respect to the family therapy with the exception of the dates of attendance and/or non-attendance.
(f)The Applicant and Respondent are restrained from issuing a subpoena for the family therapist to give evidence in the proceedings or for the production of any of the family therapist’s records.
(g)The Applicant and Respondent are restrained from introducing into evidence any matter that occurred during the family therapy.

16.That both parties shall keep each other informed as and when necessary as to:
(a)Any overnight travel outside of the Sydney Metropolitan Area, (including intrastate and interstate travel), and a telephone number at which the party and Child can be contacted;
(b)Any substantial changes to the Child's routine during the time in which they each spend with the Child; and
(c)Any medical or health concerns or intervention for the Child whilst they are in each party’s care.

17.In respect of the parties’ communications with each other:
(a)For day to day matters the parties will utilise the Our Family Wizard co-parenting app (‘OFW’) to communicate with each other about the Child’s education, illness, medical advice, activities, parenting arrangements and any other information directly related to the care and welfare of the Child, except in the case of an emergency;
(b)if either parent proposes to make changes to the time that they spend with the Child, any proposed change is to be applied for via the communal calendar in OFW, with such request to ideally be sent at least 72 hours' prior to the proposed change;
(c)the parties will respond to all requests in OFW via OFW within 48 hours; and
(d)the parties will not communicate with each other, other than in relation to matters concerning the Child.

18.If there is any medical emergency involving the Child, including but not limited to serious illness, accident or hospitalisation (“the incident”):
(a)the parent with the care of the Child is to immediately contact the other parent as soon as practicable, and in any event within thirty minutes of the parent becoming aware of the incident;
(b)the parent with the care of the Child is to immediately provide the other parent with all documentation and information in their possession regarding the incident, and in any event within 30 minutes of the parent becoming in possession of the documentation and information; and
(c)each parent is to ensure that they provide the other parent with ongoing information and documentation in relation to the incident, within two hours of receiving same.

19.The Applicant and Respondent will as soon as reasonably practicable:
(a)provide the other with notice of any illness or medical issue of the child;
(b)inform the other of any medical treatment the Child receives and the treating doctor within one hour of the child receiving the treatment; and
(c)advise of any medication prescribed for the child from time to time and provide the medication and appropriate instructions for its administration prior to or at the time of any changeover.

20.In the event that either party is hospitalised during the time the Child is living with them, that party shall provide the other party with the first option to care for the Child during the period of hospitalisation.
21.At any time a parent is in hospital, the other parent will facilitate no less than one visit by the Child to the parent in hospital.
22.Each of the parties are at liberty to obtain all relevant medical records and consult the Child’s medical practitioners to obtain any information they require and this order is sufficient authority for that purpose.
23.Each of the parties is at liberty to book and attend medical appointments for the Child on the basis that the other party is notified as soon as the booking is made.
24.Each party is restrained from denigrating the other parent in the presence or hearing of the Child or permitting the child to remain in the presence or hearing of any other person whilst they are denigrating the other parent if that party is present at the time of the denigration.
25.Each party will, when speaking to the Child and in the Child’s presence, continue to refer to the Applicant Ms Aubert as [Ms Aubert] or [Ms Aubert] and the Respondent Ms Cranmore as 'mum' and instruct their families, friends and employees to do the same.
26.Each party shall ensure that no third party discusses with the Child or in his presence or hearing any matter relating to the parties’ separation or these proceedings, and each party shall remove the Child from any such conversations.
27.The Respondent is hereby restrained from causing or attempting to cause any mail directed to the Child at the Applicant’s residence being redirected to any other address and the Respondent shall cause any such existing redirection to be cancelled forthwith.
28.The parties will ensure that the Child attends swimming lessons on Thursdays and soccer on Fridays unless the Child is sick or otherwise agreed in writing between them.
29.In the event either party is unable to personally facilitate the Child's attendance at his activity pursuant to order 28 above, that party will inform the other in writing with at least 48 hours' notice, such that the other party can facilitate the Child's attendance at the activity.
30.Without admission, the Applicant is restrained by injunction from:
(a)having a blood alcohol concentration above 0.00 during all times she spends with the Child;
(b)instructing her solicitor, Pearson Emerson to release the Child's Passport without the written consent of the Respondent; and
(c)consuming sleeping tablets when the Child is in her care.

31.Without admission the Applicant will ensure that any and all medication is secured away from reach of the Child when the Child is in her care.
32.The parties:
(a)do all things and sign all documents necessary to ensure that, where possible, both the Applicant and the Respondent’s contact details are recorded for the Child; and
(b)are restrained from removing the other parties' contact details from any records in relation to the Child, including but not limited to the Child's daycare, school, extra-curricular activities, medical practitioners and Medicare.

33.The parties will ensure that any clothing and belongings that are provided by the other parent at the commencement of time are returned to that parent at the conclusion of time.
34.The parties will ensure that at changeovers:
(a)only one adult is in attendance; and
(b)the departing parent will say goodbye to the Child quickly and calmly and depart the location within one minute of arrival.

35.The parties be permitted to provide a copy of these orders to any person or agency necessary to ensure compliance with these orders including but not limited to the Child's daycare.
36.In the event either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders, then the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of the defaulting party and do all acts and things necessary to give validity and operation to the deed or instrument.
37.All outstanding interim applications be otherwise dismissed.
38.The matter be referred to the Docket Registrar for further case management.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Aubert & Cranmore has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Altobelli J:
INTRODUCTION

This case concerns X, who was born in 2017. X was three and a half years old at the time of hearing. These reasons for judgment explain the further interim orders that the Court has made about X spending time with his mother, Ms Aubert, who is the Applicant in this case. X’s other mother, Ms Cranmore, is the Respondent. For the purposes of these reasons for judgment, the Applicant mother will be known as Ms Aubert and the Respondent mother as Ms Cranmore.
BACKGROUND
Ms Aubert is 50 years old and lives in Sydney. She describes herself as a company director. Ms Cranmore is 43 years old and also lives in Sydney. She is self-employed. Ms Aubert and Ms Cranmore commenced cohabitation in 2013, and married in Country D, in 2016. X was born via IVF in 2017. Ms Cranmore was the birth mother and egg donor. The sperm donor was a mutual friend of the parties, Mr F (referred to as Mr F in these reasons). Mr F saw X several times a year until the COVID-19 pandemic, but still communicates with him frequently. X identifies with Mr F as his father.
Ms Aubert and Ms Cranmore’s relationship ended with separation on 5 September 2019. Ms Aubert commenced the present proceedings on 23 September 2019 and the first interim orders were made on 6 November 2019 by Senior Registrar Campbell. Most of these orders were made by consent. For example, Ms Aubert and Ms Cranmore agreed that X would live with Ms Cranmore and spend time with Ms Aubert in a fortnightly cycle. Thus, in week 1, X would spend time with Ms Aubert on Wednesday from the conclusion of daycare until 5pm on Thursday, and then on Friday from 9am until 12:30pm.
In week 2, X would spend time with Ms Aubert on Wednesday from the conclusion of daycare until 5pm on Thursday. There were a number of ancillary orders. Senior Registrar Campbell also ordered that Ms Aubert spend time with X in week 2 from 9am on Saturday until 5pm on Sunday. The full orders made by Senior Registrar Campbell are reproduced in the first schedule to these reasons. In effect, X was spending time with Ms Aubert on four different occasions each fortnight and for a total of three overnights. The Court notes that pursuant to these orders there are a total of eight changeovers for X when he moves between the care of his mothers.

From the Court’s perspective, the need for a further interim hearing arose principally because of the availability of the expert report prepared by Dr G, the single joint expert. Dr G is a clinical psychologist and his report is dated 16 November 2020 and, for the purposes of this litigation, becomes exhibit ICL1.
Some general observations may be made before proceeding further. In many respects X is a very lucky boy. He has parents who love him unconditionally and who can provide for him everything he could conceivably want and need as a child, as well as opportunities for unlimited future development. His parents are intelligent, articulate, successful individuals who have contributed positively to society, and will probably continue to do so. There is every indication that X will be surrounded not just by loving parents, but by loving and supportive extended family, including doting grandparents. The trajectory of X’s life is good.
The only foreseeable threat on the horizon for X is what seems to the Court to be the intractable conflict between his mothers. Their mistrust for each other is palpable. They are unable to constructively communicate with each other, particularly about X. Whilst X has not yet been adversely affected by this intractable conflict, mistrust and inability to communicate, the single joint expert Dr G has warned in the clearest possible terms that adverse impacts on X are inevitable.
From this Court’s perspective, drawing on long experience in this field, the situation for X is like being locked in a room with a ticking time bomb. Ms Aubert and Ms Cranmore each have the capacity to defuse this time bomb. It is a time bomb that is best defused jointly. The Court encourages both Ms Aubert and Ms Cranmore to take some time out from this litigation, step back and reflect on how the son they both dearly love might one day, perhaps soon, experience the intractable conflict that is happening around him. Ms Aubert and Ms Cranmore can prevent harm to their son X if they really want to.
COMPETING PROPOSALS
Ms Aubert proposed, through her senior counsel Ms Vohra and by way of the minute of order sought contained in her case outline document, that whilst X continues to live with Ms Cranmore, he should forthwith commence spending time with Ms Aubert for five nights each fortnight. This would occur with one overnight from Monday to Tuesday in

week 1, and then Friday to Sunday evening for two nights also in week 1, and then two overnights from Wednesday to Friday in week 2. Ms Aubert’s proposal also involved periods of block time in 2021, of up to 10 nights. The written minute of order, as contained in her case outline document, is reproduced in the second schedule to these reasons.
During submissions, senior counsel presented an alternative proposal, also for five nights each fortnight, but with slight variations as to the iterations of that time. The alternative proposal differs from that originally advanced in two primary respects:
(1)In week one, it is proposed X spend time with Ms Aubert from 9:30am on Saturday until before daycare on Monday, or 5pm if Monday is not a daycare day, as opposed to that time occurring from Friday to Sunday; and
(2)In week two, it is proposed that X spend time with Ms Aubert from the conclusion of daycare on Wednesday until 12:30pm on Friday, as opposed to that time concluding at 3:30pm.
Senior counsel submitted that the alternative proposal was advanced because it would impose less of a change for X than the original proposal. It was also submitted that the alternative proposal eliminates two of the existing changeovers between the parties in circumstances where both parties concede that X struggles with changeover. The change to the proposal insofar as it relates to changeover time on Friday afternoon in week two, was advanced on the basis that it would allow Ms Cranmore to travel to her farm in KK Town on alternate weekends, if she wished to do so, without encountering Sydney traffic in the late afternoon. Senior counsel noted that the current arrangement nonetheless provides for Ms Aubert’s time with X on a Friday afternoon to conclude at 12:30pm. The alternative proposal is reproduced in the third schedule to these reasons.
The minute of order proposed by Ms Cranmore is found commencing from page 22 of her case outline document filed 9 December 2020. She proposed, through her senior counsel Ms Christie, that up until 4 July 2021 X continue to spend three overnights with Ms Aubert each fortnight. In week 1, X would spend overnight time with Ms Aubert on Wednesday, in addition to time from 9am to 12.30pm on Friday. In week 2, he would spend the same time overnight on Wednesday, as well as an overnight from 9am Saturday until 5pm on Sunday.
After 4 July 2021, X’s time with Ms Aubert would increase to four nights each fortnight following the same pattern as stage 1, except that in week 2 X would spend time with Ms Aubert from 9am on Saturday until Monday morning. In terms of block time, Ms Cranmore proposed a block of three nights in July 2021, three nights in January 2022, four nights in July 2022 and four nights in January 2023. The minute proposed by Ms Cranmore is reproduced in the fourth schedule to these reasons.
X was represented by a highly experienced Independent Children’s Lawyer, Mr Holmes. In his case outline document dated 10 December 2020, the Independent Children’s Lawyer in fact proposed that the applications be dismissed to the effect that the orders of 6 November 2019 would continue until final hearing. Implicit in this proposal, however, was the expectation that the final hearing would be expedited because of the risk to X of the intractable conflict between his parents. Having heard the detailed submissions made by both senior counsel, however, the Independent Children’s Lawyer submitted that the Court should proceed cautiously, but otherwise be guided by the expert evidence of Dr G.
THE EVIDENCE BEFORE THE COURT
In support of her case, Ms Aubert sought to rely on the following documents:
(a)Her affidavit filed 3 August 2020 and corresponding exhibit bundle;
(b)Her affidavit filed 11 August 2020 and corresponding exhibit bundle;
(c)Her affidavit filed 7 December 2020 and corresponding exhibit bundle;
(d)Affidavit of Ms L filed 30 June 2020;
(e)Affidavit of Ms L filed 7 December 2020;
(f)Affidavit of Mr H filed 2 August 2020;
(g)Affidavit of Ms J filed 2 August 2020;
(h)Affidavit of Mr K filed 11 August 2020;
(i)Affidavit of Mr M filed 11 August 2020;
(j)Affidavit of Mr N filed 13 August 2020;
(k)Single expert report of Dr G dated 16 November 2020;
(l)An outline of case document filed 9 December 2020; and
(m)A 26 page tender bundle containing subpoenaed material, marked as exhibit A1.
In support of her case, Ms Cranmore sought to rely on the following documents:
(a)Her affidavit filed 3 September 2020;
(b)Her affidavit filed 7 December 2020;
(c)Affidavit of Ms P filed 2 September 2020;
(d)Affidavit of Ms P filed 7 December 2020;
(e)Affidavit of Mr Q filed 2 September 2020;
(f)Affidavit of Mr R filed 2 September 2020;
(g)Affidavit of Mr T filed 2 September 2020;
(h)Affidavit of Mr S filed 2 September 2020;
(i)Affidavit of Ms V filed 4 September 2020;
(j)A two page document entitled ‘corrections to the affidavit of Ms Cranmore filed on 3 September 2020’;
(k)An outline of case document filed 9 December 2020; and
(l)A 25 page tender bundle document, marked as exhibit R1.
THE APPLICABLE LAW
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (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.
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.
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.
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)       Subject to subsection (6), 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)       Subject to subsection (6), 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) For the purposes of subsection (2), a child 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.
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
In MRR v GR [2010] HCA 4, the High Court referred to s 65DAA(1) and said:
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".
A little later in the judgment the High Court said at [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.

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.
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.
THE CASES SUMMARISED
Both parties filed detailed case outline documents. There is no need to repeat what is set out in these comprehensive documents.
The Independent Children’s Lawyer’s case as presented on the day expressed serious concern about the potential impact on X of what seemed to be out of control litigation about him. Mr Holmes impressed on the Court that the only objective, and thus reliable evidence in this case was that of Dr G, even though it was untested by cross-examination. He submitted that most of the allegations, denials and counter allegations made by the parents and their respective witnesses were of peripheral and questionable relevance in an interim hearing. He described Ms Aubert and Ms Cranmore as enormously devoted parents who want to be the best parents possible for X, but who have become entrenched in litigation warfare. He submitted the Court should focus on a relatively closed period between now, and the date of a final hearing.
Ms Vohra SC, for Ms Aubert, submitted that Ms Aubert had been waiting for more time with X since July 2020, which was the anticipated review date of Senior Registrar Campbell’s original interim orders. She submitted that an increase in Ms Aubert’s time to five nights per fortnight could be supported by Dr G’s expert evidence. Whilst acknowledging that Ms Cranmore’s case raised risk of harm considerations, she submitted that the evidence on these risk issues was conflicting, untested, and that these were not matters in respect of which the Court should be drawn into at an interim hearing. Many of the risk issues, it was submitted, were in fact inconsistent with Ms Cranmore’s own proposal for X to spend time with Ms Aubert.
In Ms Aubert’s case, concern was expressed about the relentlessly critical nature of Ms Cranmore’s evidence about Ms Aubert, and her parenting. Support was expressed for the reduction in the number of changeovers that X has to experience, because of the acceptance that the changeovers were problematic. An increase in X’s time with Ms Aubert was consistent with the expert evidence and in the best interests of X.
Senior counsel for Ms Cranmore, Ms Christie, submitted that the risk of harm issues to X arose out of the nature of the relationship between Ms Aubert and Ms Cranmore, their lack of trust, inability to communicate, and high level of conflict as manifested by the litigation, and the evidence filed in the course of it. Ms Christie submitted the Court would be concerned about the detailed evidence that was led in Ms Cranmore’s case about Ms Aubert’s absences in X’s life, the missed opportunities to spend time with him, her excessive use of alcohol, and other matters reflecting poorly on Ms Aubert’s parenting capacity and attitudes.
With great respect to both learned senior counsel, the express and implied reliance that each of them made in their cases about matters of conduct, allegations, denials and counter allegations, do not assist the Court to make an informed decision at an interim hearing where it is not possible to do anything more than form an impression from the totality of the evidence. Those impressions have already been noted above.
Most of the allegations and counter allegations appear to have been aired before Senior Registrar Campbell when he made interim orders in respect of which no application for review was made. From this Court’s perspective, the most relevant evidence is that of Dr G, as well as the evidence of each parent as to the time they spend with X. With the greatest of respect to those representing both Ms Aubert and Ms Cranmore, the zeal that both parents seemingly have in relation to this litigation has caused them to be distracted from presenting only the relevant evidence before the Court. The voluminous material that was filed in this case was largely unnecessary.
THE SINGLE JOINT EXPERT REPORT OF DR G
The report of Dr G is dated 16 November 2020 and was responsive to a joint letter of instruction dated 20 August 2020. Dr G had a substantial volume of material placed before him by both Ms Aubert and Ms Cranmore’s lawyers, as well as a considerable volume of documents produced under subpoena. Dr G interviewed both Ms Aubert and Ms Cranmore by way of video conference, but X was observed in person with both parents.
Dr G’s report sets out at length his record of the interviews with both Ms Aubert and Ms Cranmore. In relation to Ms Aubert, for example, he noted that she felt that her role as one of X’s mothers was being undermined by Ms Cranmore. She acknowledged that she drinks alcohol regularly, but denied drinking to excess, and expressed her frustration that she was being portrayed as someone with an alcohol-related disorder.
Ms Aubert was positive about Ms Cranmore’s parenting of X. However, at paragraph 60 of Dr G’s report, for example, Ms Aubert described her own experience of Ms Cranmore providing regular unsolicited advice on parenting X as unwelcome, controlling and unnecessary. Ms Aubert acknowledged that there were communication difficulties between her and Ms Cranmore, and conceded that there was work to be done in this respect.
Ms Aubert described her time with X as the most important time in her life, and as a constant source of happiness. She acknowledged that, in relation to X, she would benefit from remembering to have more patience, and a greater awareness of X’s timeline when planning things for him.
At paragraph 68 of Dr G’s report he records.
Ms Aubert described specific concerns regarding X’s psychological welfare in terms of the distress she observes when X returns to Ms Cranmore’s care from his time with Ms Aubert. She described her belief that X would benefit from more time with her, and that she has observed that X is “not happy” when he leaves her care to return to Ms Cranmore. He often says, for example, “No Suburb W”. Ms Aubert added that she did not think X was unhappy returning to Ms Cranmore’s care in and of itself, more so that she feels he is distressed because he has not had adequate time in Ms Aubert’s care.
It is clear to the Court, therefore, that Ms Aubert does not put in contention the distress that X experiences at changeover. However, and in contrast to Ms Cranmore, Ms Aubert attributes this to X not spending enough time with her, rather than, as Ms Cranmore contends, X spending too much time with Ms Aubert.
At paragraph 69, Ms Aubert is recorded as explaining, once again, her belief that X would benefit from more time with her at her home, thus enabling him to feel more settled and secure with her. Ms Aubert was clearly concerned about the number of handovers that X experiences, and felt they should be reduced.
Dr G’s record of the interview with Ms Cranmore was equally extensive. Ms Cranmore expressed concern about what she described as Ms Aubert’s “binge drinking” that seemed to become noticeable when Ms Cranmore became pregnant. She also expressed concern about Ms Aubert’s parenting, which she described as “pretty loose”. At paragraph 98 she is recorded as stating her belief that Ms Aubert’s parenting was not child-focused, that she does not “put X first”, and does not stick to a routine for X. Ms Cranmore was concerned about the number of people who provide care for X when in Ms Aubert’s care. She was worried that when X returns to her care from spending time with Ms Aubert he is dysregulated. At paragraph 101, Dr G records the following:-
When asked to describe what she meant by dysregulated, Ms Cranmore described X as overtired, factious, wanting to sleep by the time she has prepared dinner for him, sometimes she needs to settle him in the shower, i.e. calm him down from his “irritability”. She added that X is getting better in this regard as he’s getting older and when with Ms Cranmore, he sleeps still for 90 minutes in the daytime. Ms Cranmore expressed concern he is not sleeping in the daytime in Ms Aubert’s care. At the end of the week he is very tired.
The Court observes that Ms Cranmore’s description of X’s behaviour to Dr G is consistent with her own evidence.
Ms Cranmore acknowledged the poor communication with Ms Aubert. She noted that even communication via text message was challenging and, at paragraph 102 of Dr G’s report, she described the current tone of their interaction as marked with conflict.
Ms Cranmore was clearly frustrated about the inability to get information from Ms Aubert about X’s routine when in Ms Aubert’s care.
Ms Cranmore’s perspective, as documented in paragraph 110 of the report, was that the current orders were “only just working”, and she was worried about Ms Aubert’s capacity to sustain her availability if there was increased time with X. Indeed, Ms Cranmore expressed to Dr G her doubts about the authenticity of what Ms Aubert was requesting as well as the belief that the focus of their parenting in future should be about reducing the high conflict environment in which X was placed as a result of their relationship.
Ms Cranmore was concerned about the different parenting styles that X experiences between his mothers.
It is interesting from the Court’s perspective to observe that both Ms Aubert and Ms Cranmore actually appear to understand firstly, that they have a significant issue about conflict and communication and, secondly, that this is a potential, if not actual problem for their son X. Given that, it is surprising indeed to observe that they have not been able to do anything about this, even with the benefit of Dr G’s report. This current round of litigation between Ms Aubert and Ms Cranmore makes a mockery of the insight that they appear to have displayed in their meeting with Dr G. There is a clear dissonance between their words, and their actions. Again, the Court urges both Ms Aubert and Ms Cranmore to reflect on this.
Commencing from paragraph 149, Dr G addresses the specific questions that were put to him.
At paragraph 149 he concluded that there was nothing to suggest from the interviews and observations completed as part of his report, that X has anything but a meaningful relationship with both parents. Having regard to his observations of both parents with X, Dr G concluded that X had a secure bond with both of them. From the Court’s perspective, Dr G’s conclusion is consistent with the impression formed from the totality of the evidence, particularly the evidence of both Ms Aubert and Ms Cranmore. The fact is that X has a meaningful relationship with both Ms Aubert and Ms Cranmore. From the Court’s perspective, none of the proposals before the Court will change this. This primary consideration is not determinative in this interim application.
At paragraphs 150 to 151, Dr G addresses risk of harm considerations. These two paragraphs are worth reproducing even though both parents profess to know and understand these issues.
150. Both Ms Cranmore and Ms Aubert described, albeit in slightly different ways, the level of ongoing poor communication and animosity in their relationship. They both expressed a wish to improve this difficulty, and for X’s ongoing benefit as he gets older this objective is particularly important. Clinical experience has led me to frequently observe children feeling responsible for disagreements and arguments between parents. Should the parental discord continue, the risk of X feeling responsible for, and internalising such difficulties and ultimately developing behavioural, peer, academic and other psychological issues increases.
151. Ms Cranmore and Ms Aubert both described previous counselling/therapeutic undertakings as unhelpful, Court documents indicate this particular problem has been recently occurring. For example, there have been allegations related to sessions not being prioritised and cancelled sessions at late notice. I strongly recommend that both parents use the professional support with which they are engaged to better learn how to shield X from the negative feelings they have towards one another particularly at times of handover and in speaking about the other parent.
The Court observes with interest that not only are there existing orders for family therapy, but both parents propose that this continue, notwithstanding that they have failed to successfully implement the existing orders. If Ms Aubert and Ms Cranmore are truly committed to the best possible outcome for X, then they will commit themselves to family therapy without reservation, as they themselves propose.
The strong impression formed by this Court, from the totality of the material before it, is entirely consistent with Dr G’s impression that there is, for all practical purposes, no risk of harm to X other than those derived from parental conflict.
Dr G goes on to acknowledge that there are no relevant views expressed by X given that he is not old enough or mature enough to be interviewed on this issue. The Court agrees with Dr G’s conclusion. To the extent that either parent, directly or indirectly in their evidence, sought to assert that X had expressed a view that is pertinent to this application, the Court places no weight on the same.
In relation to the nature of X’s relationship with both his mothers, Dr G made some important observations. At paragraph 154, for example, he notes: “The quality of his behaviour, interactions, and communication was not substantially different from his time with either Ms Cranmore or Ms Aubert.” At paragraph 155 Dr G noted how X displayed a “warm, interactive, and responsive relationship with both parents”. At paragraph 156 he observed how both Ms Aubert and Ms Cranmore were attentive and responsive to X’s needs. The Court notes that this is the best and therefore most reliable evidence on the issue of X’s relationship with his mothers.
In considering the range of matters referred to at paragraphs 159 – 162, Dr G traverses a number of contentious issues. He noted that the parents currently disagree about where X will go to school, and he urged the parents to do their best to ensure that X does not experience the choice of school as something that is creating further tension between his parents. Dr G acknowledged the considerable difference in how each parent characterises the respective time they have spent with X, particularly since separation in 2019. The Court observes that these considerable differences are plainly apparent from the affidavits of the parties.
Dr G further observed the differences between the parties about their respective experiences of the others’ communication with X when in one parents’ care. Dr G’s opinion, at paragraph 162, was that the perceived inadequate facilitation of communication for X with the parent he is not in the care of at the relevant time is linked to the overall state of the relationship between Ms Aubert and Ms Cranmore.
At paragraph 162, Dr G makes a number of very important comments that the Court urges the parent to take head of:
At X’s current age, this is unlikely to be a source of distress for him however as he gets older a straightforward regular and consistent link, albeit relatively brief, would be beneficial to him and would help him to appreciate that each parent is supportive of his relationship with the other parent. As stated above, X is likely to become more sensitive to the dynamics within his parents’ relationship, and he will learn from how well his parents keep their relationship separate from the quality of the relationship that exists between themselves.
At paragraphs 163 – 165, Dr G considers the extent to which X’s parents have fulfilled, or failed to fulfil, the parents’ obligation to maintain the child. It is possible that Dr G’s interpretation of this question goes beyond the relatively narrow parameters of this additional consideration as expressed in section 60CC of the Act. Nonetheless, his comments at page 165 are pertinent to the present interim application. One part of Ms Cranmore’s case was that Ms Aubert had, allegedly, failed to take advantage of each opportunity that she had to spend time with X. Dr G states, however, as follows:
…my observations of X with both Ms Cranmore and Ms Aubert indicates a secure bond with both parents. Even if it were to be conceded that Ms Aubert had missed substantial amounts of time that could otherwise have been spent with X, cementing their bond and caring for him and so on, the current state of their relationship appears one that is well established and X enjoys spending time with each parent.

There is a potential lesson for both parents to learn from what Dr G is stating. Given the good relationship that appears to exist between X and both parents, there is limited benefit or utility in looking to past events, including asserted past failures, but there is benefit in looking to the future and building on such a relationship.
At paragraph 166 – 168 Dr G explores what this Court considers to be one of the most important considerations in the present interim application, namely, the likely effect of any changes in X’s circumstances:
167. Currently, I do not believe it would be in X’s interest to have overly prolonged periods of separation away from either parent, as his relationship to both parents is well established and he has an expectation of spending consistent and regular time with both parents. X to date has not spent more than two nights away from Ms Cranmore although he has experienced longer periods away from Ms Aubert. I understand that this was in part due to Mr H travelling when she and Ms Cranmore still cohabited, in addition to the period of separation from Ms Aubert described immediately after the relationship breakdown with Ms Cranmore.
168. The Court may consider allowing X to have periods up to four days away from either parent with the other parent, as soon as he nears four years old. He could have three days in the meantime. At this stage, X would be able to appreciate time in a more concrete, mature manner and could be supported in understanding how long such a separation would consist of in terms of number of sleeps, for example, until he sees his other mother again. He could also be facilitated to understand that contact with the parent he would be away from will be maintaining (video-chatting etc By four years of age, it would be reasonable to assume that X would find such an experience manageable.
Paragraph 168 provides clear guidelines to the parents. As X nears the age of four, he should be able to spend up to four days away from either parent. X turns four in 2021. I consider that X is in fact nearing the age of four.
The Court must record its surprise at Ms Aubert’s proposal that X spend up to five nights a fortnight away from Ms Cranmore, in view of the clear terms of Dr G’s advice to the parents and to the Court. Moreover, there was no attempt made in Ms Aubert’s case to explain why Dr G’s advice should not be heeded. The context of Dr G’s recommendation is clearly framed by the proposals that both parents had advanced to him, as well as the existing orders, the common theme of which was to conceptualise X’s time with Ms Aubert over a fortnightly period.
Dr G notes that there are no relevant issues of practical difficulties or expense of X spending time and communicating with his parents. This is consistent with all of the material before the Court.
Dr G considers issues of parental capacity at paragraphs 171 to 175. He notes, as of course the evidence before the Court clearly indicates, that Ms Cranmore has expressed concerns about Ms Aubert’s ability to care for X. Paragraphs 172 to 175 bear reproduction:
172. From my assessment there is no obvious reason to conclude that either Ms Cranmore or Ms Aubert are incapable of meeting X’s emotional, intellectual and other needs at this time. Both parents are in good health, and Ms Aubert has stated that her health and overall wellbeing has improved since her recent surgery.
173. Both parents describe being able to organise their respective work commitments and other elements of their lives around X’s needs and are thus available for X when he is in their care on a consistent basis.
174. Similarly, both parents also described the importance of extended family relationships for X and appeared to place importance on involving their extended family in X’s life. Currently, this appears to be logistically easier for Ms Cranmore given the relative proximity of her family of origin compared to Ms Aubert’s family of origin who live in O Town and AA Town area notwithstanding current COVID-19 travel restrictions.
175. Both parents report that X is doing well at his current day care, that he is considerate of other children and has an overall calm, gentle disposition. Furthermore, there is evidence from respective parents, friends and family that X is well cared for when in either parent’s care. As stated before, the most significant risk to X’s overall wellbeing would be continued difficulty in the parents’ capacity to relate to each other in a respectful, civil way as X grows older. It would be of direct benefit to X were he to witness his parents cordially interacting, not just via text but in person, albeit briefly, at important times as he grows up. To my mind this stands out as the most significant issue in relation to X’s wellbeing.
This is entirely consistent with the Court’s own impression formed from the totality of the evidence before it. There are no relevant issues of parental capacity that ultimately inform any further interim orders that are made. The impression formed from the evidence is that, quite apart from the parental conflict and communication difficulties, it is likely that each parent’s parenting style is different. From X’s perspective, that is not necessarily a bad thing, and from Ms Aubert and Ms Cranmore’s perspective, that reality may well be one that they need to respectfully recognise and appropriately deal with.
At paragraphs 176 – 180 Dr G considers issues of maturity, sex, lifestyle and background. From the Court’s perspective there are two important paragraphs, being 176 and 180:
176. Studies have indicated that children born to same sex parents achieve overall similar functioning, maturity and developmental when compared to their peers born to opposite sex parents. Difficulties in terms of negative experiences problems that children like X would go through occur when exposed to attitudes of peers and other as they get older. Research indicates that this is particularly problematic at high school and the way in which same-sex families prepare high school age children for such possible prejudice is an important protective factor.
…
180. I think it reasonable to conclude that given the parents are separated they both identify as X’s mother, that Ms Aubert’s view in particularly has changed. I also think it is reasonable that as X has two mothers, it is appropriate to mark Mother’s Day for both Ms Aubert and Ms Cranmore, and for X to be supported in understanding his family arrangement. For example, X could make a card on the June Father’s Day celebration in America. However, in helping him establish a solid identity as a child with two same-sex parents, experience such as preparing two Mother’s Day cards as well as spending time with both mothers where possible on Mother’s Day, would be helpful in understanding his family of origin, and aspects of its difference form many other families. I agree with both parents’ view that the time X spends with either mother should be as equal as possible, and I also recommend that both parents ensure X is not placed in a position where he may feel he is ‘choosing’ time with one parent over the other.
(errors in original)
The parents have clear professional guidance her about how to manage Mother’s Day. It remained an issue between the parents, and neither made any convincing submissions about why Dr G’s recommendation should not be adopted in this regard.
At paragraph 181 Dr G addresses the issue of parental attitudes towards the responsibilities of parenthood. He concludes that there are no such issues that are detrimental to X. From the Court’s perspective, however, and based on the totality of the evidence, the situation may well be more complex. Recognising that issues of attitude are best left for cross-examination at a final hearing nonetheless some preliminary impressions may be expressed.
For example, both of X’s parents understand, at least in a theoretical sense, that they are unable communicate, they do not trust each other, and that X has been exposed to parental conflict. Both parents seem to recognise, again at least in a theoretical sense, that there is a clear risk to X associated with the issues identified above. In these circumstances, when X’s parents cannot seem to be able to do anything about this, it suggests that there are unaddressed issues about parental attitudes particularly as to the responsibilities of parenthood. Again, drawing on this Court’s extensive experience in these cases, one cannot help but detect undertones of a power struggle between these parents in the context of a dispute about X. Possibly there are unresolved issues of the parental relationship itself. This is but mere speculation, of course. Perhaps once again, the parents have something to reflect on.
Dr G correctly identifies that there are no relevant issues of family violence in this matter which the Court could make a finding about at an interim hearing.
Ostensibly under the heading of whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings, commencing from paragraph 184, Dr G makes a number of important recommendations. At paragraph 185 he states:
X is developing well and there are no concerns for him in this regard, The proposals Ms Aubert is seeking on the whole are reasonable for the Court to consider as X gets older. One exception being that the block time requested in too long, in my opinion, for a child of X’s age.
It is clear that Dr G was suggesting that Ms Aubert’s proposal was an option for the Court to consider “as X gets older.”
At paragraphs 187 – 191 he addresses specific issues raised by the parents:
187. Ms Cranmore highlighted that if X is not in her care on Friday she would not be able to currently take him to soccer. Whereas it might be quite straightforward to move X’s soccer to another day, or it might happen anyway, most parents like to have an opportunity to spend at least one of the days of the week in a fortnightly cycle with their child so that there is flexibility around being able to accompany their child to certain activities. If X were to move to Ms Aubert’s care for each Friday this would disadvantage Ms Cranmore. Notwithstanding any disadvantage to Ms Cranmore, I think it would be in X’s interest to experience both parents regularly seeing him play soccer/another activity, thus the parents finding a way to alternate this arrangement is recommended.
188. X’s first home was the house in Suburb BB where Ms Aubert continues to reside. Although Ms Cranmore argues that maintaining stability for X is important I think it equally arguable that X is very familiar with his “house” and provided Ms Aubert does not move house, he would be in essence spending more time in a home he had previously spent all his time therefore continuity is not at risk in this regard.
189. Should the Court decide to grant X more time with Ms Aubert in the relatively near future, and the parties agree to X spending time on holiday with Ms Aubert, X would have relatively prolonged periods of time away from Ms Cranmore. As X approaches four years of age it is reasonable to suggest he could manage up to four overnights away from Ms Cranmore, moving up to five overnights by the time he turns five years old. The Court may consider seven overnights once he reaches seven years of age. The number of overnights, provided things go well, could increase with X’s increasing age. Regular contact with the other parent during this time would be beneficial to X.
190. There might also be an opportunity for X to spend half a day or one day with either parent over a significant holiday period. I understand that at the end of 2019 X had an opportunity to spend some of Boxing Day with Ms Aubert, but she ultimately decided to travel overseas as she could not spend much more of the Christmas period with X. Although disappointed, I would recommend both parents recognise that memories even of brief times with either parent over significant holidays/festivals or other important events, despite a parent feeling disappointed in not having more time.
191. Ms Cranmore referred to current orders just working in terms of reducing conflict with Ms Aubert. While I understand why Ms Cranmore is preoccupied in this manner, I consider parenting orders to be about the child’s needs, and Ms Cranmore and Ms Aubert have a forum in which to reduce their relationship conflict. X’s relationship with his parents needs to be considered as separate to the state of the parents’ relationship.
The Court observes that there is much clear guidance given to the parents as to how to frame orders, and address issues that each raises, moving forward. It is regrettable that the parents were not able to take this advice and develop their own plan for the future as it regards X. Paragraph 191 is significant. Perhaps Dr G’s use of the word “preoccupied”, when referring to Ms Cranmore, is unfortunate as it may inadvertently imply criticism of Ms Cranmore. From this Court’s perspective, both Ms Aubert and Ms Cranmore manifested insight and appropriate concern in their interactions with Dr G about parental conflict and its impact on X. Nonetheless, Dr G’s suggestion that parenting orders need to focus about X’s needs at the same time as his parents address issues pertaining to their relationship, is clear, and sound advice.
At paragraphs 192 to 193 Dr G addresses the important issue of the willingness and ability for X’s parents to facilitate and encourage a close and continuing relationship between X and the other parent. He states:
192. Ms Aubert overall described less ambivalence with regard to her feelings about X’s relationship with Ms Cranmore than that expressed by Ms Cranmore. Ms Aubert had generally positive things to say about Ms Cranmore as a mother, and has little issue with how Ms Cranmore parents their son. She did at the same time described Ms Cranmore offering her unsolicited advice on many aspects of parenting.
193. Ms Aubert’s request for more time, as she described it, is based on her observation that X has not had sufficient time in her care to return to Ms Cranmore’s care without difficulty, or expressing reluctance to leave Ms Aubert’s care. Ms Cranmore maintained that she felt X’s care was inconsistent with Ms Aubert, and he would not benefit from changes in arrangements which led to Ms Aubert looking after X for longer than is currently agreed to. On balance, I believe Ms Cranmore would find it more difficult to conceive of X spending more time with Ms Aubert as being in his interest, and given the broadly acrimonious current state of their relationship this is unlikely to change. I think it likely that X would increasingly pick up on Ms Cranmore’s ambivalence to him spending more time with Ms Aubert, increasing the likelihood of him experiencing distress in relation to spending time with his mother.
(errors in original)
The issues raised in paragraph 193 are of concern to the Court. It would be a tragedy for X if he were to increasingly pick up on Ms Cranmore’s ambivalence about him spending more time with Ms Aubert, should that increase his distress. The Court doubts very much whether that is what Ms Cranmore intends or would allow to happen. But from the Court’s perspective, Ms Cranmore’s proposal does contemplate more time between X and Ms Aubert, but from when he turns four years old. Clearly she has signalled to the Court, therefore, that the issue is not whether X spends more time with Ms Aubert, but when.
At paragraphs 194 to 195 Dr G considers the potential impact on X of spending equal time or substantial and significant time with a parent. It needs to be recognised that neither parent was suggesting equal time in the context of the interim hearing. At paragraph 194 Dr G expresses his professional view that based on his observations, interviews and the documents furnished to him, X was unlikely to experience negative consequences of spending increased amounts of time with Ms Aubert, “provided the nature of his relationship and bond broadly remains the same”. He was of the view that increasing time would ordinarily serve to promote his relationship with Ms Aubert.
At paragraph 196 Dr G deals with the issue of the parents’ capacity to communicate and resolve difficulties. This is nothing that the parents do not already profess to know. Nonetheless, it bears reproduction:
As mentioned above, both Ms Aubert and Ms Cranmore acknowledge longstanding difficulties communicating with each other both in relation to X and generally. I understand Ms Aubert and Ms Cranmore are in receipt of psychological therapeutic support. I remain concerned about X’s welfare as he grows older, particularly the risk that may exist in terms of him feeling as though he were a direct cause for conflict between his parents. I consider that he is at risk of anxiety, low self-esteem and behavioural issues that are often seen in such circumstances. Whilst X appears to be a well-adjusted and secure boy, his expected development in understanding of relationships in general as he gets older will mean he will become more sensitive to, and aware of, poor communication and/or conflict between his parents should it continue.
Dr G noted that there were no relevant mental health issues pertaining to the parents. There were no such issues in relation to X.
At paragraphs 200 to 205 Dr G responds to the invitation given in his letter of instructions to discuss any other relevant factor or circumstance. At paragraph 200, he states:
I think it likely that given the difficult circumstances surrounding Ms Cranmore’s delivery experience and subsequent health issues for at least three months following X’s birth, that she has developed a heightened sense of protection towards him, as is not uncommon when the birth has been traumatic. While there is no evidence that this directly impacts her relationship with X, my impression is that she unduly worries his care with Ms Aubert is, compared to her care, lacking in an overall way. This is despite Ms Cranmore asserting on more than one occasion that she does not doubt Ms Aubert loves their son.
It is important for Ms Cranmore to understand that when Dr G refers to her as unduly worrying, it is not a criticism. From the Court’s perspective, any anxiety that Ms Cranmore has about X spending time with Ms Aubert is based on Ms Cranmore’s perception of lived experiences. From this perspective, it is understandable, and very real, for Ms Cranmore. That Ms Cranmore could acknowledge that Ms Aubert loves X reflects very positively on her. In many ways this is also reflected in paragraph 201.
Noting Ms Cranmore’s concerns, at paragraph 204 Dr G states:
With the above in mind, I have no concerns regarding Ms Aubert’s parenting capacity or her ability to put X’s need before her own. In my view, Ms Cranmore’s anxieties and concerns regarding Ms Aubert’s parenting are based to a significant degree on her own experience of a relationship with Ms Aubert, and do not reflect the separate relationship X has with his mother.
Dr G concludes at paragraph 205:
Both parents are aware that the conflict in their relationship and their overall poor communication with regard to X is something that ought to be improved. I am concerned that X, particularly on returning from Ms Aubert’s care to Ms Cranmore, has been described as dysregulated and irritable. While it is likely that X’s dysregulation is related in part to expected difficulties in transitioning from one parent to another, I have concerns that X is finding it difficult to return to Ms Cranmore’s care from Ms Aubert for other reasons. Namely, I believe that X has become more aware of the discord between his parents, and such discord becomes heightened in his mind at times of transfer between his parents. In saying “no Suburb DD” as Ms Aubert has reported, X may in effect be expressing his reluctance to be part of a transition between two hostile parents. Difficulty at moments of transfer is likely to add to the risk of X internalising a sense of responsibility for parental discord, thus increasing the aforementioned risk of behavioural and other psychological problems. This reiterates my view that X can only benefit from his parents finding a way to work together more cohesively and cordially.

11.3That for the purposes of Orders 11.2 and 11.3 above, the party proposing to spend block time with the child shall provide to the other party no less than 2 weeks' written notice of their intention to spend block time with the child including details of the suburbs in which they propose to stay, the dates they propose to stay in each suburb and a contact telephone number prior to such travel.
11.4that for the purposes of orders 11.2 and 11.3, in the event any of the travel plans change, the party travelling with the child shall provide updated notice to the other party as soon as is reasonably practicable and no later than 1 day after the plans have changed.

12.That for the purposes of Orders 9, 10 and 11 hereof, the parties' time with the child pursuant to orders 7 & 8 shall be suspended and the child shall not be required to attend pre-school/daycare during the block period.
13.That for the purposes of changeovers that do not occur at the child’s day-care, the Respondent or her nominee will deliver the child to the Applicant’s residence at Suburb BB at the commencement of the Applicant’s time with the child and the Applicant will deliver the child to the Respondent’s residence at Suburb DD at the conclusion of the Applicant’s time with the child, unless otherwise agreed between the Applicant and Respondent.
14.That the Respondent shall facilitate Facetime between the Applicant and the Child at a time between 4pm - 5.30pm on the days in which the Applicant does not spend with the child, subject to the child's availability, in which case another time will be facilitated.
15.That the Applicant shall facilitate Facetime between the Respondent and the Child at a time between 4pm - 5.30pm on the days in which the Respondent does not spend with the child, subject to the child's availability, in which case another time will be facilitated.
16.Neither party shall make a commitment for the child during the other parent's time without first obtaining agreement from the other parent, except in the case of the child being sick or requiring prompt medical attention in which case they shall take the next available medical appointment.
17.Each party be restrained from physically disciplining the child and will instruct any person caring for the child to not physically discipline the child.
Family Therapy
18.That the Applicant and Respondent do all acts and things and sign all documents necessary to continue to attend upon Ms B of C Services, or such other person as agreed between the Applicant and Respondent (“the family therapist”), and the following will apply:
18.1The Applicant and Respondent will attend family therapy:
18.1.1at such times and on such dates as agreed with the family therapist;
18.1.2at such frequency as is recommended by the family therapist.

18.2If the family therapist requests the child’s attendance at family therapy, the parent with whom the child is with at the time of the appointment will take all reasonable steps to facilitate the child’s attendance at family therapy, at such times nominated by the family therapist.
18.3The Applicant and Respondent will be responsible for and pay as and when they fall due any and all out-of-pocket costs of the family therapy as follows:
18.3.1in equal shares all joint sessions with the family therapist;
18.3.2in equal shares all of the child’s sessions with the family therapist; and
18.3.3solely the costs of their individual sessions with the family therapist.

18.4That leave is granted to the Applicant to provide a copy of the following documents to the family therapist for the purpose of conducting family therapy in accordance with this Order:
18.4.1any Orders made in this Court as may be relevant;
18.4.2any Family/Expert Report obtained in the proceedings;
18.4.3any Memorandum issued in the proceedings by a Family Consultant; and
18.4.4any other relevant court documents including Affidavits.

18.5The Applicant and Respondent are restrained from seeking to obtain a written report from the family therapist with respect to the family therapy with the exception of the dates of attendance and/or non-attendance.
18.6The Applicant and Respondent are restrained from issuing a subpoena for the family therapist to give evidence in the proceedings or for the production of any of the family therapist’s records.
18.7The Applicant and Respondent are restrained from introducing into evidence any matter that occurred during the family therapy.

Information Sharing
19.That both parties shall keep each other informed as and when necessary as to:
19.1Any overnight travel outside of the Sydney Metropolitan Area, (including intrastate and interstate travel), including but not limited to providing the other parent with details of the suburb/s in which they will stay, the dates on which they will stay in each suburb and a telephone number at which the party and child can be contacted;
19.2Any substantial changes to the child's routine during the time in which they each spend with the child; and
19.3Any medical or health concerns or intervention for the child whilst they are in each parties care.

20.For the purposes of Order 21 above, and any other necessary sharing of information, the parties shall:
20.1Utilise the email address ... or any other email address as agreed between the parties as the point of contact for all third parties for information for X, and communication as to his health, day-care/school and activities;
20.2Ensure if the password to the email address is changed by one party that the other party is immediately provided with the new password details;
20.3Share any information or documents received from third parties in relation to X's health, wellbeing or activities through google docs, by uploading a copy of the documents;
20.4Utilise the google calendar linked to the email address to share all details of the following:
20.4.1X's doctor's appointment and any health related appointments;
20.4.2Overnight travel outside of the Sydney Metropolitan Area, in accordance with Order 21.1 above; and
20.4.3Any other important events for X such as birthday parties and activities.
20.4.4Notify the other party whenever a change has been made to the calendar or a document is uploaded through an email sent to ... or a further agreed email address.

21.If there is any medical emergency involving the child, including but not limited to serious illness, accident or hospitalisation (“the incident”):
21.1the parent with the care of the child is to immediately contact the other parent as soon as practicable, and in any event within thirty minutes of the parent becoming aware of the incident;
21.2the parent with the care of the child is to immediately provide the other parent with all documentation and information in their possession regarding the incident, and in any event within thirty minutes of the parent becoming in possession of the documentation and information; and
21.3each parent is to ensure that they provide the other parent with ongoing information and documentation in relation to the incident, within two hours of receiving same.

22.The Applicant and Respondent will as soon as reasonably practicable:
22.1provide the other with notice of any illness or medical issue of the child;
22.2inform the other of any medical treatment the child receives and the treating doctor within one hour of the child receiving the treatment; and
22.3advise of any medication prescribed for the child from time to time and provide the medication and appropriate instructions for its administration prior to or at the time of any changeover.

23.In the event that either party is hospitalised during the time the child is living with them, that party shall provide the other party with the first option to care for the child during the period of hospitalisation.
24.At any time a parent is in hospital, the other parent will facilitate no less than one visit by the child to the parent in hospital.
25.Each of the Applicant and Respondent is at liberty to obtain all relevant medical records and consult the child’s medical practitioners to obtain any information they require and this order is sufficient authority for that purpose.
26.Each of the parties is at liberty to book and attend medical appointments for the child on the basis that the other party is notified as soon as the booking is made.
27.Each party is restrained from denigrating the other parent in the presence or hearing of the child or permitting the child to remain in the presence or hearing of any other person whilst they are denigrating the other parent if that party is present at the time of the denigration.
28.The Respondent is hereby restrained by injunction from:
28.1telling the child that the Applicant is not his mother;
28.2directing the child to not refer to the Applicant as his mother;
28.3directing the child to refer to the Applicant only by her given first name;
28.4directing any third party, including but not limited to Ms P, to do any of the acts set out in Orders 30.1 to 30.3 hereof; and
28.5discussing with the child or in his presence or hearing, any of the matters referred to in Orders 30.1 to 30.4 hereof.

29.The Respondent shall ensure that no third party discusses the matters referred to in Orders 30.1 to 30.4 hereof with the child or in his presence or hearing and the Respondent shall remove the child from any such conversations.
30.The Respondent is hereby restrained from causing or attempting to cause any mail directed to the child at the Applicant’s residence being redirected to any other address and the Respondent shall cause any such existing redirection to be cancelled forthwith.

SCHEDULE D
FAMILY LAW ACT 1975
Proposed minute of order
IN THE FAMILY COURT OF AUSTRALIA
AT SYDNEY  File No. SYC6363/2019
BETWEEN   MS AUBERT
Applicant
AND   MS CRANMORE
Respondent
AND  INDEPENDENT CHILDREN'S LAWYER
MINUTE OF ORDER SOUGHT BY THE RESPONDENT MOTHER MS CRANMORE FOR INTERIM HEARING ON 11 DECEMBER 2020
THAT PENIDNG FURTHER ORDER
1. That X ("the child") born in 2017 live with Ms Cranmore.
2 . That the child spend time with Ms Aubert as follows:
2.1. from the date of the making of this Order until 4 July 2021 ("Stage One"):
2.1 .1. on an alternating continuous two weekly cycle in week one commencing 14 December 2020 :
2.1.1.1 . from the conclusion of pre-school or if the child does not attend pre-school 3.30pm on Wednesday until 5pm on Thursday ; and
2.1.1.2. from 9am until 12.30pm on Friday;

2.1.2. on an alternating continuous two weekly cycle in week two commencing 21 December 2020:
2.1.2.1. from the conclusion of pre-school attend pre-school 3.30pm on Wednesday until Thursday; and
2.2.1.1 from 9am on Saturday until 5pm on Sunday

2.1.3.from 9am on 26 December 2020 until 5pm on 28 December 2020 (two nights)
2.1.4. from 9am on 6 March 2021 until 5pm on 8 March 2021 (two nights);

2.2 from the conclusion of Stage One:
2.2.1 on an alternating continuous two weekly cycle in week one commencing 12 July 2021 from the conclusion of pre-school or if the child does not attend pre-school 3.30pm on Wednesday until the conclusion of pre-school or if the child does not attend pre-school 3.30pm on Thursday;
2.2.2 on an alternating continuous two weekly cycle in week two commencing 5 July 2021:
2.2.2.1 from the conclusion of pre-school or if the child does not attend pre-school 3.30pm on Wednesday until the conclusion of pre-school or if the child does not attend pre-school 3.30pm on Thursday; and
2.2.1.2 from 9am on Saturday until the commencement of pre-school or if the child does not attend pre-school 9am on Monday;

2.2.3 from 3.30pm on 19 July 2021 until 5pm on 22 July 2021 (three nights);
2.2.4 from 3.30pm on 3 January 2022 to 5pm on 6 January 2022 (three nights);
2.2.5. from 3.30pm on 27 July 2022 to 5pm on 31 July 2022 (four nights); 2.2.6.from 3.30pm on 11 January 2023 to 5pm on 15 January 2023 (four nights); and

2.3. at other times as agreed between the parties in writing.

3. Notwithstanding any other clause the child will spend time with the parent with whom they are not already living / spending time from 9am until 12.30pm on:
3.1.the child's Birthday;
3.2.that parent's Birthday;
3.3.Mother's Day;
3.4.Father's Day; and
3.5.Christmas Day.

4. That notwithstanding any other clause Ms Cranmore be permitted to spend time with the child for up to ten consecutive nights on up to two occasions per calendar year upon the provision of at least 30 days prior written notice to Ms Aubert.
5. That for the purposes of changeovers that do not occur at the child's pre-school, Ms Cranmore or her nominee will deliver the child to the front door of Ms Aubert's residence at the commencement of Ms Aubert's time with the child and Ms Aubert will deliver the child to the front door of Ms Cranmore's residence at the conclusion of Ms Aubert's time with the child, unless otherwise agreed between Ms Aubert and Ms Cranmore.
6. The parties will ensure that the child attends swimming lessons on Thursdays and soccer on Fridays unless the child is sick or otherwise agreed in writing between them.
7. In the event either party is unable to personally facilitate the child's attendance at his activity pursuant to clause 6, that party will inform the other in writing with at least 48 hours' notice, such that the other party can facilitate the child's attendance at the activity.
8. If Ms Aubert is unable to personally care for the child pursuant to clause 2 for a period greater than four hours, Ms Aubert will provide Ms Cranmore with as much advance written notice as possible and Ms Cranmore will have the first option to care for the child during the period Ms Aubert is unavailable.
9. If Ms Aubert requires assistance with the care of the child during her time with the child, for less than four hours noting clause 8, Ms Aubert will engage an appropriately qualified nanny from GG Company or HH Company and inform Ms Cranmore.
10. Without admissions Ms Aubert is restrained from:
10.1. having a blood alcohol concentration above 0.00 during all times Ms Aubert spends with the child;
10.2. taking the child out of New South Wales except in accordance with Clause 36;
10.3. instructing her solicitor, Pearson Emerson to release the child's Passport without the written consent of Ms Cranmore; and
10.4. consuming sleeping tablets when the child is in her care.

11. Without admissions Ms Aubert will ensure that any and all medication is secured away from reach of the child when the child is in her care.
12. If there is any medical emergency involving the child, including but not limited to serious illness, accident or hospitalisation ("the incident"):
12.1. the parent with the care of the child is to immediately contact the other parent as soon as practicable, and in any event within thirty minutes of the parent becoming aware of the incident;
12.2. the parent with the care of the child is to immediately provide the other parent with all documentation and information in their possession regarding the incident, and in any event within thirty minutes of the parent becoming in possession of the documentation and information; and
12.3. each parent is to ensure that they provide the other parent with ongoing information and documentation in relation to the incident, within two hours of receiving same.

13. Ms Aubert and Ms Cranmore will as soon as reasonably practicable:
13.1. provide the other with notice of any illness or medical issue of the child;
13.2. inform the other of any medical treatment the child receives and the treating doctor within one hour of the child receiving the treatment; and
13.3. advise of any medication prescribed for the child from time to time and provide the medication and appropriate instructions for its administration prior to or at the time of any changeover.

14. Each of Ms Aubert and Ms Cranmore is at liberty to obtain all relevant medical records and consult the child's medical practitioners to obtain any information they require and this order is sufficient authority for that purpose.
15 . Without admitting to the necessity for such an Order, each party is restrained from denigrating the other parent in the presence or hearing of the child or permitting the child to remain in the presence or hearing of any other person whilst they are denigrating the other parent if that party is present at the time of the denigration.
16. Each party will, when speaking to X and in X's presence, continue to refer to Ms Aubert as [Ms Aubert] or [Ms Aubert] and Ms Cranmore as 'mum' and instruct their families, friends and employees to do the same.
17. That Ms Aubert and Ms Cranmore continue to attend upon Ms B of C Services; or such other person as agreed between Ms Aubert and Ms Cranmore ("the family therapist"):
17 .1. at such times and on such dates as agreed with the family therapist;
17.2. at such frequency as is recommended by the family therapist but on no less than one occasion per month; and
17.3. for the duration recommended by the family therapist or as otherwise agreed between Ms Aubert and Ms Cranmore in writing.

18. If the family therapist requests the child's attendance at family therapy, the parent with whom the child is with at the time of the appointment will take all reasonable steps to facilitate the child's attendance at family therapy, at such times nominated by the family therapist.
19. Ms Aubert and Ms Cranmore will be responsible for and pay as and when they fall due any and all out-of-pocket costs of the family therapy as follows:
19.1. in equal shares all joint sessions with the family therapist;
19.2. in equal shares all of the child's sessions with the family therapist; and
19.3. solely the costs of their ind ividual sessions with the family therapist.

20. That leave is granted to the parties to provide a copy of the following documents to the family therapist for the purpose of conducting family therapy in accordance with this Order:
20.1. any Orders made in this Court as may be relevant;
20.2 . any Family/Expert Report obtained in the proceedings;
20.3. any Memorandum issued in the proceedings by a Family Consultant; and
20.4. any other relevant court documents including Affidavits if appropriate and agreed between Ms Aubert and Ms Cranmore.

21. The parties are restrained from seeking to obtain a written report from the family therapist with respect to the family therapy with the exception of the dates of attendance and/or non-attendance.
22. The parties are restrained from issuing a subpoena for the family therapist to give evidence in the proceedings or for the production of any of the family therapist's records.
23. The parties are restrained from introducing into evidence any matter that occurred during the family therapy.
24. That in respect of Ms Cranmore and Ms Aubert's communications with each other:
24.1 for day to day matters the parties will utilise the Our Family Wizard co-parenting app (“OFW”) to communicate with each other about the child’s education, illness, medical advice, activities, parenting arrangements and any other information directly related to the care and welfare of the child, except in the case of an emergency;
24.2 . if either parent proposes to make changes to the time that they spend with the child, any proposed change is to be applied for via the communal calendar in OFW, with such request to ideally be sent at least 72 hours' prior to the proposed change;
24.3. the parties will respond to all requests in OFW via OFW within 48 hours; and
24.4. the parties will not communicate with each other, other than in relation to matters concerning the child.

25. That at least half an hour but not more than four hours prior to changeover the party with whom the child is living/spending time will send the other parent, via the OFW app a summary of the child's time with them over the past eight hours to include but not be limited to what the child has eaten, how much and when, what time the child has slept, the child's health and general affect, any medications administered and any disruptions to his routine.
26. That the parties:
26.1 . do all things and sign all documents to ensure that, where possible, both Ms Cranmore and Ms Aubert's contact details are recorded for the child; and
26.2. are restrained from removing the other parties' contact details from any records in relation to the child , including but not limited to the child's pre-school, school, extra-curricular activities, medical practitioners and Medicare .

27 . The parties will ensure that any clothing and belongings that are provided by the other parent at the commencement of time are returned to that parent at the conclusion of time.
28. That Ms Aubert be permitted to communicate with the child by telephone or FaceTime when the child is in Ms Cranmore's care on Mondays and Saturdays at a time between 6.30pm and 7pm, initiated by Ms Aubert and facilitated by Ms Cranmore.
29. That Ms Cranmore be permitted to communicate with the child by telephone or FaceTime when the child is in Ms Aubert's care on Wednesdays and Saturdays at a time between 6.30pm an 7pm, initiated by Ms Cranmore and facilitated by Ms Aubert.
30 . In the event either parent misses a call from the other parent pursuant to Clauses 28 or 29 then that parent will return the call pri or to 7.30pm that night to facilitate the child speaking to that parent.
31 . The parties will ensure that they speak to the child for an age appropriate time, conclude the call if the child requests same, allow the call to end at its' natural conclusion and in any event do not hold the child on the phone for longer than five minutes.
32. The parties will ensure that at changeovers:
32.1. only one adult is in attendance; and
32.2. the departing parent will say goodbye to the child quickly and calmly and depart the location within one minute of arrival.

33 . Neither parent will make a commitment for the child during the other parent's time with the child without first obtaining their consent except in the case of a next available medical appointment when the child is sick.
34. That Ms Aubert will ensure the child is not left in the care of Mr Y and/or Mr Z and/or Ms E without another adult being present.
35 . Without admitting the necessity for such an order each parent is restrained from physically disciplining the child and will instruct any person caring for the child not to physically discipline the child .
36 . Ms Aubert is permitted to travel with the child interstate provided:
36.1. Ms Aubert provides Ms Cranmore with at least fourteen days' prior written notice;
36.2 . the travel occurs during Ms Aubert's time pursuant to Clauses 2.1.3, 2.1.4, 2.2.3 to 2.2.6 and 2.3; and
36.3. at least seven days prior to the travel Ms Aubert provides to Ms Cranmore:
36.3.1. a copy of the return airline tickets for any and all flights, including by helicopter; .
36.3.2. if flying privately, written confirmation of the flight/tail number or the plane/helicopter and the estimated departure and arrival time and address of departure and arrival; and
36 .3 .3. written confirmation of the the address the child will be staying; and

36.4 . Ms Aubert provides Ms Cranmore with written notice of any change to the travel plans as soon as reasonably practicable and within one hour of same occurring .

Other
37. That the parties be permitted to provide a copy of these Orders to any person or agency necessary to ensure compliance with these Orders including but not limited to the child's pre-school.
38 . In the event either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders, then the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of the defaulting party and do all acts and things necessary to give validity and operation to the deed or instrument.
39 . That the Amended Response to an Application in a Case filed on 16 September 2020 be dismissed.
40. That Ms Aubert pay the Ms Cranmore's costs of and incidental to these proceedings.

[2021] FamCA 77

25 February 2021

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Expert Evidence

Procedural Fairness

Injunction

File number(s):	SYC6363 of 2019
Judgment of:	ALTOBELLI J
Date of judgment:	25 February 2021
Catchwords:	FAMILY LAW – PARENTING – interim parenting – same sex relationship whether existing interim orders should be varied in circumstances where an expert report is now available – where the greatest risk of harm to the child arises from the intense parental conflict – where further interim orders are made
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 106A
Cases cited:	Goode & Goode [2006] FamCA 1346 MRR v GR [2010] HCA 4 Pinson & Pinson (No. 2) [2020] FamCAFC 111
Number of paragraphs:	131
Date of last submission/s:	11 December 2020
Date of hearing:	11 December 2020
Place:	Sydney via videoconference
Counsel for the Applicant:	Ms Vohra SC
Solicitor for the Applicant:	Pearson Emerson Family Lawyers
Counsel for the Respondent:	Ms Christie SC
Solicitor for the Respondent:	Broun Abrahams Burreket
Advocate for the Independent Children’s Lawyer	Mr Holmes
Solicitor for the Independent Children’s Lawyer	Holmes Donnelly & Co Solicitors

SYC6363 of 2019
BETWEEN:	MS AUBERT Applicant
AND:	MS CRANMORE Respondent

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	25 FEBRUARY 2021