BAHRI & BADAL
[2018] FCCA 1740
•5 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAHRI & BADAL | [2018] FCCA 1740 |
| Catchwords: FAMILY LAW – Interim parenting – best interests of children – orders made. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC |
| Applicant: | MS BAHRI |
| Respondent: | MR BADAL |
| File Number: | PAC 3939 of 2017 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 5 June 2018 |
| Date of Last Submission: | 5 June 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 5 June 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Middleton by telephone |
| Solicitors for the Respondent: | Ms Dhaliwal |
ORDERS
The Court’s past interim parenting Orders of 18 September 2017 and 31 January 2018 are discharged.
That [X] (“[X]”) born 2012 live with the Applicant Mother at all times other than when she is spending time with the Father in accordance with these Orders.
That the Applicant Mother and Respondent Father each have sole responsibility for making decisions about the day to day care, welfare and development of [X] during the periods [X] is in their care.
That each parent shall be at liberty to contact [X] by telephone between 6:00pm and 8:00pm on any day when [X] is not with them. Each parent shall make [X] available to take such calls and [X] have liberal telephone communication with the Mother and Father when she expresses a wish to contact the other parent and the parents will facilitate the making of such telephone call.
That each parent is to notify the other parent as soon as reasonably practical on the happening of any of the following to [X]:
(a)Any medical emergency or illness suffered by [X] whilst in their care including sufficient details to enable both parents to be consulted with respect to and be fully advised regarding such illness or condition and any treatment recommended or provided, and both parents will be at liberty to visit [X] if hospitalised;
(b)Any medication that has been provided to [X], the amounts to be taken and any medication required to be taken by [X] to be provided at changeover; and;
(c)Appointments made for [X] with health service providers.
That the Applicant Mother and Respondent Father communicate with each other concerning [X] using text messaging, WhatsApp messaging or email communication and keep it focused on aspects concerning only [X], and not demean the other party.
That [X] shall spend time with the Father as follows:
(a)For each NSW school holiday period in even numbered years other than the December/January school holidays the Respondent Father shall spend the second half of each such holiday period with [X] commencing the middle Sunday of the holiday period. The Father to collect [X] at 11:00am on the middle Sunday and return [X] to the school at the start of the school term.
(b)For each NSW school holiday period in odd numbered years other than the December/January school holidays, the Respondent Father shall spend the first half of each holiday period with [X] commencing after school on the last day of the school term to the middle Sunday of the holiday period. The Father to collect [X] after school on the last day of the school term and return [X] to the Applicant Mother at 11:00am on the middle Sunday of the holiday period.
That each parent will be entitled to obtain directly from any education, health, welfare or other professional attended by [X] copies of any reports, notices or other verbal or written advice effecting the health and welfare of [X] and for this purpose:
(a)Each parent will immediately notify the other of the names and contact details of the relevant health, welfare or other professional and keep the other parent so informed;
(b)Each parent will do all acts and things and sign all documents as may be necessary from time to time to allow the other parent to exercise their entitlement; and
(c)In the event either parent refuses to give such authority, these Orders are considered sufficient authorisation to any educator, health, welfare or other professional to release information to the parents of [X].
That the parents authorise by this Order, the school attended by [X] to give each parent information about [X]’s educational progress and other related activities, and supply them with copies of reports, photographs, certificates and awards obtained by [X].
That either parent notify each other as soon as reasonably practical of parents/teacher interviews and school events.
That either parent is entitled to attend events involving [X] including extra curricular activities which allows for parental participation.
That in the event the Applicant Mother is too sick or unable to care for [X] the Applicant Mother contact the Respondent Father as the first option to care for [X].
That each parent shall refrain from using swear words in the presence or hearing of [X] and use their best endeavours to ensure no other person uses swear words in the presence or hearing of [X] and remove [X] from the presence or hearing of another person using such language.
That each parent shall refrain from using physical punishment to discipline [X].
That neither parent shall permit or encourage any other person to use physical punishment to discipline [X] while [X] is in that parent’s care.
That each parent shall refrain from denigrating the other parent or any other member of the other parent’s immediate or extended family and friends within the presence or hearing of [X], respect the privacy of the other parent and not question [X] about the personal life of the other parent.
That each parent shall respect the privacy of the other parent and not question [X] about the other parent’s personal life.
That the Applicant Mother and Respondent Father shall keep each other informed of where [X] is living and a telephone number at which he/she can communicate with [X], during the time [X] is under that parent’s care and notify all changes in those contact details within 48 hours of such change.
That [X]’s original birth certificate and Australian Passport remain in the possession of the Applicant Mother.
That the Applicant Mother provide the Respondent Father an attested true copy of [X]’s birth certificate and/or Australian Passport as and when requested by the Respondent Father.
That for the purposes of a changeover venue the venue to be in front of Store at Shopping Centre, Suburb A, NSW other than times in which [X] is picked up or dropped off at school or at extra-curricular activities.
That the parties shall spend time with [X] in the December – January school holidays starting December 2018 as follows:
(a)In 2018/2019 week about with change over 6pm Fridays;
(b)From December 2019 half holidays with each parent, mother to have first half in odd numbered years and second half in even numbered years, with changeover to occur at 6pm on the day at the middle of the holidays.
(c)For the purpose of this Order the changeover place be as per the above changeover Order.
Applicant Mother and Respondent Father’s Birthday
That [X] shall spend time with the applicant Mother on her birthday which falls on as follows:
(a)If the birthday falls on the weekend and [X] is not in the care of the Applicant Mother then [X] shall spend time with the Applicant Mother from 10:00am on the birthday till 11:00am the next day (or school drop off). The Father’s time to be suspended during such time.
That [X] shall spend time with the Respondent Father on his birthday which falls on as follows:
(a)If the birthday falls on a school day then [X] shall spend time with the Respondent Father from the end of the school day until 11:00am the next day (or school drop off). The Mother’s time to be suspended during such time.
(b)If the birthday falls on the weekend and [X] is not in the care of the Father, then [X] shall spend time with the Respondent Father from 10:00am on the birthday until 11:00am the next day (or school drop off). The Mother’s time to be suspended during such time.
Birthday of [X]
That the Respondent Father spend time with [X] on [X]’s birthday which falls on as follows:
(a)In the event that his birthday falls on a school day then from the end of school until 7:30pm the same day. The Mother’s time to be suspended during such time.
(b)If the birthday falls on a holiday or weekend and [X] is not in the care of the Respondent Father then from 10:00am till 3:00pm the same day. The Mother’s time to be suspended during such time.
(c)For the purpose of this Order the changeover place will be as per the above changeover Order.
That the Applicant Mother spend time with [X] on [X]’s birthday as follows:
(a)If the birthday falls on a holiday or a weekend and [X] is not in the care of the Applicant Mother then from 10:00am to 3:00pm the same day. The Father’s time to be suspended during such time.
Diwali Day
That the parents spend time for Diwali Day as follows:
(a)In the event that Diwali Day falls on a school day then the Respondent Father spend time with [X] on Diwali Day from the end of school until 7:30pm the same day.
(b)If Diwali Day falls on a holiday or a weekend in the odd numbered years and [X] is in the care of the Respondent Father, then the Applicant Mother shall spend time with [X] on Diwali Day from 5:00pm on Diwali Day until 11:00am the following day. The Respondent Father’s time is suspended from 5:00pm on Diwali Day until 11:00am the following day.
(c)If Diwali Day falls on a holiday or a weekend in the even numbered years and [X] is in the care of the Applicant Mother then the Respondent Father shall spend time with [X] on Diwali Day from 5:00pm on Diwali Day until 11:00am the following day. The Applicant Mother’s time is suspended from 5:00pm on Diwali Day until 11:00am the following day.
For the purposes of these Orders the changeover will be as per the above changeover Order.
Father’s Day
That is [X] is in the care of the Applicant Mother then the Respondent shall spend time with [X] from 11:00am on Father’s Day until 9:00am the following day (or school drop off). The Applicant Mother’s time is suspended from 11:00am on Father’s Day until 9:00am the following day.
Mother’s Day
That is [X] is in the care of the Respondent Father then the Applicant Mother shall spend time with [X] on Mother’s Day from 11:00am until 9:00am the following day (or school drop off). The Respondent Father’s time is suspended from 11:00am on Mother’s Day until 9:00am the following day.
Overseas
That the parent who proposes overseas travel with [X] shall obtain the consent in writing of the other parent to the proposed travel and that consent shall not be unreasonably withheld.
That for the purposes of any overseas travel by [X] each parent shall do all such things and sign such documents as shall be necessary to obtain and/or renew the Passport for [X] and to facilitate that travel.
That the Child spend time with the father during school term as follows:
From commencement of School Term 3, being on 23 July 2018 as follows:
(a)Week 1:
(i)From the conclusion of school on Friday to commencement of School on Monday; and
(b)Week 2:
(i)From the conclusion of school on Thursday to the commencement of school on Friday.
From 1 December 2018 as follows:
(a)Week 1;
(i)From the conclusion of school on Thursday to the commencement of school on Monday; and
(b)Week 2:
(i)From the conclusion of school on Thursday to the commencement of school on Friday.
Such other times as may be agreed between the Mother and the Father.
Pursuant to Section 68L of the Family Law Act 1975 (Cth) the child [X] born 2012 shall be independently represented and the Court requests that the Legal Aid Commission provide that representation.
The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed.
Leave to the parties and Independent Children’s Lawyer to issue more than five Subpoenas for production of documents.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a Family Report, such report to be released by the Court.
The Family Report shall deal with the following matters:
(a)Any views expressed by the child/ren and any factors relevant to the weight to be attached to those views, provided that the child/ren shall not be required to express a view in relation to any matter.
(b)The nature of the child/ren’s relationships with each of the child/ren’s parents and other persons (including any grandparent or other relative of the child/ren);
(c)The likely effect of any changes in the child/ren’s circumstances, including the likely effect on the child/ren of any separation from:
(i)either of the parents: or
(ii)any other child, or other person (including any grandparent or other relative of the child/ren), with whom the child/ren has/have been living.
(d)The capacity of each parent, or another person (including any grandparent or other relative of the child/ren), to provide for the child/ren’s needs, including emotional and intellectual needs.
(e)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child/ren and of either of the child/ren’s parents, and any other characteristics of the child/ren that the report writer thinks are relevant to opinions expressed in the report.
(f)The attitude to the child/ren, and to the responsibilities of parenthood, demonstrated by each of the child/ren’s parents
The report writer has leave to read any document produced on subpoena to which the parties have been given such leave.
The proceedings are adjourned for mention after the release of the Family Report to 12 April 2019 at 9:30 am.
That each parent is restrained from discussing these proceedings with [X] or in the hearing or presence of [X] or show her any document connected with these proceedings.
That each parent is restrained from passing information or messages through [X] to the other parent.
The Mother is restrained from causing or permitting [X] to refer to any other male person as the father or any such name referring to a father including but not limited to Papa, Dad, Daddy, other than the natural father being the Father in these proceedings.
That [X] be enrolled in and attend Suburb A School NSW in 2018 and continue her schooling at that school unless the Mother and father agree in writing, to enrol [X] in another school.
If the Mother or Father seeks to travel overseas with [X] and such shall not include travel to a non-Hague Convention Signatory Country on the Civil Aspects of International Child Abduction, unless otherwise agreed by the Parents in writing or Court Order, the parent proposing the said travel overseas shall provide to the other parent at least four weeks’ written notice of the intended travel and a copy of the proposed travel itinerary, contact details and shall keep the parent not travelling informed of any changes in the travel itinerary and contact details as soon as the travelling parent becomes aware of that change.
That for the purposes of any overseas travel by [X], the Mother and Father shall each do all such things and sign such documents as shall be necessary to:
(a)Obtain an updated Australian Passport to issue for [X] at any time that a current passport expires or is due to expire;
(b)Where a Parent fails or refuses to do so, the requirement for the Parent’s consent will be dispensed with.
(c)Provide the Australian Passport to the travelling Parent only for the purposes of [X]’s travel as authorised by these Orders.
Each parent will ensure that [X] will attend school and school events punctually.
That neither parent will consume alcohol to such an extent that their ability to care for the child will be detrimentally affected.
At times the Mother has care of [X], the Mother is by this Order, pending further Order, restrained from causing or permitting:
(a)[X] to be in the physical presence of Ms C and Mr A for any extended period of time without the Mother being present; and
(b)Ms C and/or Mr A, or any other persons, to stay overnight with [X] in her bed or bedroom.
(c)[X] to travel in a motor vehicle driven by or any other person for the purposes of business or business deliveries;
(d)[X] to be taken to the business premises or employment premises of Ms C during the weekdays or weekends after 6:30pm.
IT IS NOTED that publication of this judgment under the pseudonym Bahri & Badal is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3939 of 2017
| MS BAHRI |
Applicant
And
| MR BADAL |
Respondent
REASONS FOR JUDGMENT
This interim hearing related to the child [X] born 2012.
The mother’s Case Outline filed 29 May 2018 set out the list of documents relied upon by the mother and stated on page 2 of that Case Outline that the mother seeks that the Court confirm the existing interim Order, or in the alternative, that the time the child spends with the father be consolidated into a block of three nights per fortnight, namely each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday and Orders that the child live with the father for half of each school holiday period. There is attached to the mother’s Case Outline a Minute of Interim Orders sought by her.
The father relied upon the Case Outline filed 25 May 2018. In that Case Outline at page 2, the father set out the documents that he relies upon. Also in evidence before the Court was a Child Inclusive Conference Memorandum to Court dated 10 April 2018 and other exhibited evidence. The father relied upon a separate Minute of Interim Orders sought by him also filed on 25 May 2018.
Essentially the father sought interim parenting Orders that the child spend time with him on an increasing and graduated basis beginning in late July 2018, for a total of four nights per fortnight and building up to an equal time arrangement commencing from school Term 3 in 2019.
Agreed facts unless otherwise stated
Interim Orders of this Court were made on 18 September 2017 by consent. Those Orders provided, inter alia, that the child live with the mother for such times other than the time that she lives with the father as set out in Order 2 of Exhibit A of those Orders. Order 2 of Exhibit A of those Orders provided that the child live with the father as follows:
a)Every alternate week (the week starting Monday 18 September 2017) as follows:
i)Tuesday and Thursday from the end of day care until 7.30 pm. The father to collect the child from the day care centre and return the child to the mother’s residence.
ii)From Saturday 11am until Monday at the start of day care by 9am. The father to collect the child from the mother’s residence and return the child to the day care centre.
b)Every other alternate week (the week starting Monday 25 September 2017) as follows:
i)Wednesday from the end of day care until Thursday at the start of day care by 9am. The father to collect the child from the day care centre and return the child to the day care centre.
ii)Friday from the end of day care until 7.30pm. The father to collect the child from the day care centre and return the child to the mother’s residence.
It can be seen that, in effect, pursuant to those Orders, the child is spending time with the father for three nights a fortnight, together with daytime time.
The Court also made interim orders on 31 January 2018 by consent, which provided that the father spend time with the child on a certain basis in the Term 1 school holidays in 2018.
The mother was born 1978. The father was born 1981.
The parties commenced cohabitation in about 2005. They married in 2008. Again, the child was born 2012. The child is now six years of age.
The parties finally separated in about mid-December 2016 when the mother vacated the parties’ residence, leaving with the child.
The mother has been the child’s primary carer from birth to date. The father has provided significant assistance with the child’s care.
After the parties’ final separation in mid-December 2016 and up until the Court’s Orders of 18 September 2017 the child spent time with the father on a daytime basis (December 2016 to about April 2017), and between April 2017 and September 2017 the child spent two overnights per fortnight with the father, as far as overnight time was concerned.
The parties attended a Child Inclusive Conference on 9 April 2018. The family consultant was Ms S. At that conference the parties advised the family consultant that they were both Hindu. The mother asserted that she was not strict in her Hindu beliefs and practices and allowed the child to eat meat. The father stated that he was Hindu and a strict vegetarian; he expressed the desire for the child to be raised vegetarian although he conceded to the family consultant that this was not a major issue for him.
The mother told the family consultant that she prefers all communication with the father to be via text message.
The mother asserted to the family consultant that the child was getting mixed messages in each household and was feeling like she could not be honest with the father about what she eats, out of concern that the father will get angry. The mother asserted that the father questions the child about the mother’s household and what the child has eaten.
The child was interviewed by the family consultant. Inter alia, the child told the family consultant that she attends Suburb A School and commenced kindergarten in 2018. The family consultant stated that the child reported no worries or concerns about either household or parent. The family consultant noted that the child stated that she would like to spend more time with her father but expressed anxiety and concern about being away from the mother for long or extended periods of time.
Under the heading “Future Directions” the family consultant stated, inter alia, that all communication between the parties is to continue to be via text message. She recommended that both parents complete a post separation parenting program. She recommended that an Independent Children’s Lawyer be appointed and, if the matter should proceed to trial, a Family Report may assist the Court.
The father works full time and his usual work hours are 7 am to 3.30pm. He lives at Suburb A, where the mother also lives.
On 5 December 2016 the parties signed a parenting plan. The mother asserts that she felt pressurised to submit to last minute changes made by the father to this plan and signed it on a trial basis.
The above parenting plan stated, inter alia, that the parties agreed to review the parenting plan not later than December 2017.
Further, in that plan, a gradual increase in the child’s time to be spent with the father was set out, starting in about April of 2017 until early July 2017 with the child spending one night a week overnight with the father. Then from early July 2017 to early October 2017 the child would spend time with the father for three days a fortnight and then from early October 2017 to beginning of January 2018 the child would spend four nights a fortnight with the father.
In early July 2017 the father noticed that the child was very tired and unsettled due to the number of changeovers occurring.
The father asserts that the mother agreed in November 2017 to the child spending time with him four nights a fortnight together with other times, after a mediation that occurred in November 2017.
The father told his diabetes specialist that he is very active and plays (sports) most nights of the week.
The mother asserts that following the separation she was often depressed and despondent due to stress caused by the father’s critical, intimidating and confrontational interaction with her in the presence of the child. She asserts that the father continually portrayed her as a bad mother and bullied her, when he would begin arguments in front of the child.
The mother asserts that the father is very controlling and manipulative. For example, the mother asserts that the father accused her of having affairs, is involved in binge drinking, and is overly critical of her care of the child as they have different parenting styles. The mother asserts that pre‑separation, the father intruded on her privacy on a number of occasions, for example, allegedly hacking into her computer and going through her telephone.
The mother asserts and alleges that in July 2017 she wished to go on a road trip to Region 1. She refers to email exchanges between herself and the father (see Annexure C of the mother’s Affidavit) revealing, the mother asserts, harassment and unnecessary demands from the father.
The Court refers to paragraph 37 and 38 of the mother’s Affidavit being further allegations made by the mother.
The mother asserts, in paragraph 43 of her affidavit, that on 19 January 2018 after time with the father, the child said to her that she did not want to go on a cruise for as long as ten days and she did not relay that to the father because she was scared he would be angry or be sad.
In this context the Court refers again to the mother’s statements made to the family consultant at the Child Inclusive Conference that she was concerned about the child getting mixed messages in each household and feeling like she could not be honest with the father about what she eats out of concern that he would become angry.
In paragraph 44 of the mother’s affidavit, she alleges that the father’s criticisms of her and continued suspicions continue, with the child having certain conversations with her as set out in that paragraph.
The mother alleges that she is concerned regarding the father’s management of his diabetes and alleges the potential for the father to lose his temper sporadically if he suffers a hypoglycaemic episode. The father, for his part, annexes a medical report dated 16 October 2017 from his diabetes specialist asserting, inter alia, that the father’s diabetes is excellently controlled.
In paragraph 56 of the mother’s Affidavit she asserts that she now communicates with the father by SMS message or email. She asserts that the parties have a history of arguments which arise due to untenable requests made by the father about matters relating to the child such as her diet and his view that the child should be spending ultimately a week about with each parent. The mother asserts and alleges that the father’s anger has on numerous occasions in the past required her to walk away with the child to shield her from his anger and temper.
In paragraph 58 of the mother’s affidavit she asserts and alleges that the child has said that she is enjoying school but does get very tired as compared to when she attended day care.
In paragraphs 61 and 62 of the mother’s Affidavit the mother alleges and asserts that the child has said to her on several occasions that she wants to stay with her during school days as the whole process of going between residences is confusing her.
In paragraph 62 of the mother’s Affidavit she alleges and asserts that the current interim Orders made 18 September 2017 are not workable. She asserts that the current alternate day pick-ups from school and evening routines and changeovers are confusing to the child, as she does not know which parent is meant to pick her up on which day, and this has impacted her sleeping patterns and general wellbeing.
Relevant legal principles
The relevant principles in relation to parenting proceedings including interim proceedings are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel (2010) 43 Fam LR 348 the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court of the Family Court of Australia in Eaby & Speelman (2015) Fam CAFC 104 set out [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) Fam CAFC 36, especially at paragraphs 46 to 52.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests the Court must consider the matters set out in subsections (2) and (3).
The best interests of the child
Section 60CC Considerations
Subsection 2A: the benefit to the child of having a meaningful relationship with both of the child’s parents, a primary consideration
The child has a meaningful relationship with both parents and would benefit from the continuance of those relationships.
The child is aged six years.
The mother has been the primary carer for the child from birth to date, whilst the Court observes again that the father would appear to have provided significant assistance with child care during the relationship and noting his time spent with the child post-separation to date.
The Court refers to the child’s time spent with the father historically and to date.
The Court refers to the father’s proposed interim parenting Orders providing, inter alia, that the child spend time with him on a gradually increasing basis, from four nights each fortnight progressing to an equal time arrangement by the commencement of school in Term 3 of 2019.
The Court is of the view at this interim stage, that should the child spend time with the father for four nights each fortnight from the commencement of school Term 3 being on 23 July 2018 (three nights in Week 1 and One night in week 2), progressing to five nights each fortnight from the beginning of December 2018 (four nights in Week 1 and one night in Week 2), together with half of the short school term holidays, and week about in the December/January 2019 school holidays (with an equal sharing of the December/January 2020 school holidays), and other special occasions, the child’s meaningful relationship with the father can be maintained and enhanced and, in these circumstances, the child’s meaningful relationship with the mother should not be detrimentally affected.
At this interim stage, on the material presently before the Court, the Court has some concerns with making interim parenting Orders providing that the child spend time with the father during school term times beyond five nights each fortnight until an equal time arrangement; there is a significant suggestion on the material before the Court that such extended interim parenting Orders would carry the real risk of the parties experiencing conflict in the presence of the child (with consequential emotional detriment to the child), and/or the child experiencing emotional detriment by reason of longer periods being out of the mother’s primary care.
The Court’s concerns (above) arise cumulatively from the mother’s allegations (denied by the father) relating to:
a)The parties’ differing parenting styles (for example, the diet of the child);
b)The father’s tendency to be very controlling and overly critical of the mother’s behaviour and care of the child;
c)The father’s questioning of the child when the child is in his care relating to the mother’s behaviour;
d)The child’s reluctance (in certain circumstances) to communicate her true feelings to the father for fear of the father becoming angry;
e)The parties’ ability to communicate with each other is limited to SMS and email communications; in this context the mother alleges that the parties have a history of arguments which arise due to untenable requests made by the father about matters relating to the child, such as her diet, and the mother asserts the father’s anger has on numerous occasions required her to walk away with the child to shield her from his anger and temper;
f)The parties have historically and post-separation experienced difficulties in their ability to cooperate and compromise on arrangements relating to child care in a timely fashion;
g)The child informing the mother that she enjoys school but gets very tired as compared to when she was attending day care. In this context, the Court observes that the father commences work quite early and the child, if in his care, will likely be required to arise early herself, accordingly;
h)The child’s statements to the mother that she wants to stay with her during school days (whilst the Court notes that the present interim parenting Orders are arguably quite confusing for the child), and the child’s anxiety and concern, as observed by the family consultant at the Child Inclusive Conference, about being away from the mother for long or extended periods of time.
The Court has not overlooked the child’s trip to (country omitted) with the father, spending some five nights away with him in June 2017, nor the father’s block of five nights spent with the child during the April school holidays. However, these extended blocks have not been periods of time spent regularly by the child with the father.
Further, the Court has not overlooked the fact that the mother’s own proposals provide for the child spending significant block periods with the father during school holidays; again, such extended block periods will not be periods of time spent as regularly by the child with the father as compared to fortnightly time during school term time.
The Court proposes to transition the child from spending time with the father from four nights each fortnight to five nights each fortnight after the child has spent four nights each fortnight with the father for about six months (that is, with four nights per fortnight commencing from the commencement of school Term 3 on 23 July 2018 and to continue until the beginning of December 2018), being of the view that it is in the best interests of this six year old child to proceed cautiously and conservatively before increasing the child’s fortnightly time with the father, noting the Court’s above concerns.
The Court is of the view at this interim stage, that interim parenting Orders providing for an equal time arrangement or for the child to spend time with the father during school term times for greater than five nights each fortnight will not be in the best interests of the child.
The Court gives significant weight to this meaningful relationship primary consideration.
Section 60CC Subsection (3) Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The Court takes into account the statements allegedly made by the child to the mother and to the family consultant at the Child Inclusive Conference, whilst noting the child’s tender age.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussion above under the meaningful relationship primary consideration. The mother asserts and alleges that the child has a positive relationship with her boyfriend and his son.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
Both parents would appear to have taken such opportunities. The Court should state that the father asserts that the mother did not consult with him in relation to the child’s enrolment at her present school. The Court refers to Exhibit B in this context.
(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
It would appear that both parents have fulfilled such obligations.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussion above under the meaningful relationship primary consideration.
(f) The capacity of each of the child’s parents; and 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
Both parties would appear to have such capacities whilst the Court notes the mother’s allegations including statements made by the child to the family consultant relating to the child’s reluctance to be frank with the father relating to certain matters. The Court also refers to its discussion above under the meaningful relationship primary consideration.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussion above under the meaningful relationship primary consideration.
(j) Any family violence involving the child or a member of the child's family
There are allegations made by each party, specifically denied by the other, relating to past conduct during the relationship that might amount to family violence. This consideration does not loom large at this interim hearing.
Parental Responsibility
The father seeks an Order for equal shared parental responsibility. The mother seeks no specific Order for parental responsibility, other than proposed Order 2 set out in the mother’s proposed Minute of Interim Orders. At this interim stage the Court is not satisfied that it will be in the best interests of the child to make an express Order for parental responsibility.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, the Court is of the view at this interim stage that it will be in the best interests of the child to make the following Orders and it makes the following Orders.
(1)The Court’s past interim parenting Orders of 18 September 2017 and 31 January 2018 are discharged.
(2)That [X] (“[X]”) born 2012 live with the Applicant Mother at all times other than when she is spending time with the Father in accordance with these Orders.
(3)That the Applicant Mother and Respondent Father each have sole responsibility for making decisions about the day to day care, welfare and development of [X] during the periods [X] is in their care.
(4)That each parent shall be at liberty to contact [X] by telephone between 6:00pm and 8:00pm on any day when [X] is not with them. Each parent shall make [X] available to take such calls and [X] have liberal telephone communication with the Mother and Father when she expresses a wish to contact the other parent and the parents will facilitate the making of such telephone call.
(5)That each parent is to notify the other parent as soon as reasonably practical on the happening of any of the following to [X]:
(a)Any medical emergency or illness suffered by [X] whilst in their care including sufficient details to enable both parents to be consulted with respect to and be fully advised regarding such illness or condition and any treatment recommended or provided, and both parents will be at liberty to visit [X] if hospitalised;
(b)Any medication that has been provided to [X], the amounts to be taken and any medication required to be taken by [X] to be provided at changeover; and;
(c)Appointments made for [X] with health service providers.
(6)That the Applicant Mother and Respondent Father communicate with each other concerning [X] using text messaging, WhatsApp messaging or email communication and keep it focused on aspects concerning only [X], and not demean the other party.
(7) That [X] shall spend time with the Father as follows:
(a)For each NSW school holiday period in even numbered years other than the December/January school holidays the Respondent Father shall spend the second half of each such holiday period with [X] commencing the middle Sunday of the holiday period. The Father to collect [X] at 11:00am on the middle Sunday and return [X] to the school at the start of the school term.
(b)For each NSW school holiday period in odd numbered years other than the December/January school holidays, the Respondent Father shall spend the first half of each holiday period with [X] commencing after school on the last day of the school term to the middle Sunday of the holiday period. The Father to collect [X] after school on the last day of the school term and return [X] to the Applicant Mother at 11:00am on the middle Sunday of the holiday period.
(8)That each parent will be entitled to obtain directly from any education, health, welfare or other professional attended by [X] copies of any reports, notices or other verbal or written advice effecting the health and welfare of [X] and for this purpose:
(a)Each parent will immediately notify the other of the names and contact details of the relevant health, welfare or other professional and keep the other parent so informed;
(b)Each parent will do all acts and things and sign all documents as may be necessary from time to time to allow the other parent to exercise their entitlement; and
(c)In the event either parent refuses to give such authority, these Orders are considered sufficient authorisation to any educator, health, welfare or other professional to release information to the parents of [X].
(9)That the parents authorise by this Order, the school attended by [X] to give each parent information about [X]’s educational progress and other related activities, and supply them with copies of reports, photographs, certificates and awards obtained by [X].
(10)That either parent notify each other as soon as reasonably practical of parents/teacher interviews and school events.
(11)That either parent is entitled to attend events involving [X] including extra curricular activities which allows for parental participation.
(12)That in the event the Applicant Mother is too sick or unable to care for [X] the Applicant Mother contact the Respondent Father as the first option to care for [X].
(13)That each parent shall refrain from using swear words in the presence or hearing of [X] and use their best endeavours to ensure no other person uses swear words in the presence or hearing of [X] and remove [X] from the presence or hearing of another person using such language.
(14)That each parent shall refrain from using physical punishment to discipline [X].
(15)That neither parent shall permit or encourage any other person to use physical punishment to discipline [X] while [X] is in that parent’s care.
(16)That each parent shall refrain from denigrating the other parent or any other member of the other parent’s immediate or extended family and friends within the presence or hearing of [X], respect the privacy of the other parent and not question [X] about the personal life of the other parent.
(17)That each parent shall respect the privacy of the other parent and not question [X] about the other parent’s personal life.
(18)That the Applicant Mother and Respondent Father shall keep each other informed of where [X] is living and a telephone number at which he/she can communicate with [X], during the time [X] is under that parent’s care and notify all changes in those contact details within 48 hours of such change.
(19)That [X]’s original birth certificate and Australian Passport remain in the possession of the Applicant Mother.
(20)That the Applicant Mother provide the Respondent Father an attested true copy of [X]’s birth certificate and/or Australian Passport as and when requested by the Respondent Father.
(21)That for the purposes of a changeover venue the venue to be in front of Store at Shopping Centre, Suburb A, NSW other than times in which [X] is picked up or dropped off at school or at extra-curricular activities.
(22)That the parties shall spend time with [X] in the December – January school holidays starting December 2018 as follows:
(a)In 2018/2019 week about with change over 6pm Fridays;
(b)From December 2019 half holidays with each parent, mother to have first half in odd numbered years and second half in even numbered years, with changeover to occur at 6pm on the day at the middle of the holidays.
(c)For the purpose of this Order the changeover place be as per the above changeover Order.
Applicant Mother and Respondent Father’s Birthday
(23)That [X] shall spend time with the applicant Mother on her birthday which falls on as follows:
(a)If the birthday falls on the weekend and [X] is not in the care of the Applicant Mother then [X] shall spend time with the Applicant Mother from 10:00am on the birthday till 11:00am the next day (or school drop off). The Father’s time to be suspended during such time.
(24)That [X] shall spend time with the Respondent Father on his birthday which falls on as follows:
(a)If the birthday falls on a school day then [X] shall spend time with the Respondent Father from the end of the school day until 11:00am the next day (or school drop off). The Mother’s time to be suspended during such time.
(b)If the birthday falls on the weekend and [X] is not in the care of the Father, then [X] shall spend time with the Respondent Father from 10:00am on the birthday until 11:00am the next day (or school drop off). The Mother’s time to be suspended during such time.
Birthday of [X]
(25)That the Respondent Father spend time with [X] on [X]’s birthday which falls on as follows:
(a)In the event that his birthday falls on a school day then from the end of school until 7:30pm the same day. The Mother’s time to be suspended during such time.
(b)If the birthday falls on a holiday or weekend and [X] is not in the care of the Respondent Father then from 10:00am till 3:00pm the same day. The Mother’s time to be suspended during such time.
(c)For the purpose of this Order the changeover place will be as per the above changeover Order.
(26)That the Applicant Mother spend time with [X] on [X]’s birthday as follows:
(a)If the birthday falls on a holiday or a weekend and [X] is not in the care of the Applicant Mother then from 10:00am to 3:00pm the same day. The Father’s time to be suspended during such time.
Diwali Day
(27) That the parents spend time for Diwali Day as follows:
(a)In the event that Diwali Day falls on a school day then the Respondent Father spend time with [X] on Diwali Day from the end of school until 7:30pm the same day.
(b)If Diwali Day falls on a holiday or a weekend in the odd numbered years and [X] is in the care of the Respondent Father, then the Applicant Mother shall spend time with [X] on Diwali Day from 5:00pm on Diwali Day until 11:00am the following day. The Respondent Father’s time is suspended from 5:00pm on Diwali Day until 11:00am the following day.
(c)If Diwali Day falls on a holiday or a weekend in the even numbered years and [X] is in the care of the Applicant Mother then the Respondent Father shall spend time with [X] on Diwali Day from 5:00pm on Diwali Day until 11:00am the following day. The Applicant Mother’s time is suspended from 5:00pm on Diwali Day until 11:00am the following day.
(28)For the purposes of these Orders the changeover will be as per the above changeover Order.
Father’s Day
(29)That is [X] is in the care of the Applicant Mother then the Respondent shall spend time with [X] from 11:00am on Father’s Day until 9:00am the following day (or school drop off). The Applicant Mother’s time is suspended from 11:00am on Father’s Day until 9:00am the following day.
Mother’s Day
(30)That is [X] is in the care of the Respondent Father then the Applicant Mother shall spend time with [X] on Mother’s Day from 11:00am until 9:00am the following day (or school drop off). The Respondent Father’s time is suspended from 11:00am on Mother’s Day until 9:00am the following day.
Overseas
(31)That the parent who proposes overseas travel with [X] shall obtain the consent in writing of the other parent to the proposed travel and that consent shall not be unreasonably withheld.
(32)That for the purposes of any overseas travel by [X] each parent shall do all such things and sign such documents as shall be necessary to obtain and/or renew the Passport for [X] and to facilitate that travel.
That the Child spend time with the father during school term as follows:
(33)From commencement of School Term 3, being on 23 July 2018 as follows:
(a) Week 1:
(i) From the conclusion of school on Friday to commencement of School on Monday; and
(b) Week 2:
(ii) From the conclusion of school on Thursday to the commencement of school on Friday.
(34) From 1 December 2018 as follows:
(a) Week 1;
(i) From the conclusion of school on Thursday to the commencement of school on Monday; and
(b) Week 2:
(ii) From the conclusion of school on Thursday to the commencement of school on Friday.
(35)Such other times as may be agreed between the Mother and the Father.
(36)Pursuant to Section 68L of the Family Law Act 1975 (Cth) the child [X] born 2012 shall be independently represented and the Court requests that the Legal Aid Commission provide that representation.
(37)The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed.
(38)Leave to the parties and Independent Children’s Lawyer to issue more than five Subpoenas for production of documents.
(39)Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a Family Report, such report to be released by the Court.
The Family Report shall deal with the following matters:
(a)Any views expressed by the child/ren and any factors relevant to the weight to be attached to those views, provided that the child/ren shall not be required to express a view in relation to any matter.
(b)The nature of the child/ren’s relationships with each of the child/ren’s parents and other persons (including any grandparent or other relative of the child/ren);
(c)The likely effect of any changes in the child/ren’s circumstances, including the likely effect on the child/ren of any separation from:
(i) either of the parents: or
(ii) any other child, or other person (including any grandparent or other relative of the child/ren), with whom the child/ren has/have been living.
(d)The capacity of each parent, or another person (including any grandparent or other relative of the child/ren), to provide for the child/ren’s needs, including emotional and intellectual needs.
(e)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child/ren and of either of the child/ren’s parents, and any other characteristics of the child/ren that the report writer thinks are relevant to opinions expressed in the report.
(f)The attitude to the child/ren, and to the responsibilities of parenthood, demonstrated by each of the child/ren’s parents.
The report writer has leave to read any document produced on subpoena to which the parties have been given such leave.
(40)The proceedings are adjourned for mention after the release of the Family Report to 12 April 2019 at 9:30 am.
(41)That each parent is restrained from discussing these proceedings with [X] or in the hearing or presence of [X] or show her any document connected with these proceedings.
(42)That each parent is restrained from passing information or messages through [X] to the other parent.
(43)The Mother is restrained from causing or permitting [X] to refer to any other male person as the father or any such name referring to a father including but not limited to Papa, Dad, Daddy, other than the natural father being the Father in these proceedings.
(44)That [X] be enrolled in and attend Suburb A School NSW in 2018 and continue her schooling at that school unless the Mother and father agree in writing, to enrol [X] in another school.
(45)If the Mother or Father seeks to travel overseas with [X] and such shall not include travel to a non-Hague Convention Signatory Country on the Civil Aspects of International Child Abduction, unless otherwise agreed by the Parents in writing or Court Order, the parent proposing the said travel overseas shall provide to the other parent at least four weeks’ written notice of the intended travel and a copy of the proposed travel itinerary, contact details and shall keep the parent not travelling informed of any changes in the travel itinerary and contact details as soon as the travelling parent becomes aware of that change.
(46)That for the purposes of any overseas travel by [X], the Mother and Father shall each do all such things and sign such documents as shall be necessary to:
(a)Obtain an updated Australian Passport to issue for [X] at any time that a current passport expires or is due to expire;
(b)Where a Parent fails or refuses to do so, the requirement for the Parent’s consent will be dispensed with.
(c)Provide the Australian Passport to the travelling Parent only for the purposes of [X]’s travel as authorised by these Orders.
(47)Each parent will ensure that [X] will attend school and school events punctually.
(48)That neither parent will consume alcohol to such an extent that their ability to care for the child will be detrimentally affected.
Looking at proposed Order 9, the Court refers to the oral exchanges between the Court and the respective solicitors for the father and mother this morning. The Court notes the evidence relied upon by the father in his Affidavit and the mother’s limited evidence in her Affidavit. The Court will enter into evidence a series of letters passing between the parties’ respective solicitors which was handed up by Counsel for the mother last Friday. That will become Exhibit C.
The father gives some evidence in his Affidavit he alleges that Mr S (he calls him Mr S) and his son – allegedly those persons spend overnight in the mother’s premises. But really, well, the express matters that the father raises in his Affidavit relate to Mr S’s son sleeping in the child’s bedroom. And he refers to his solicitor’s letter – Annexure D to the father’s Affidavit where the allegations are made by the father through his solicitors – that Mr S and his son Mr A are spending time unsupervised with the child. And he alleges that Mr S and his son are sleeping with the mother and the child in the mother’s bed on some nights, and makes other allegations in that context. He makes allegations in relation to the child attending Mr S’s place of business or employment and also driving without the mother in Mr S’s truck. The Court refers to Exhibit C. The father’s solicitors have requested particulars relating to Mr S. The mother’s solicitors have declined to provide those particulars and they have not caused an Affidavit of Mr S to be filed in these interim proceedings.
Acting cautiously and conservatively the Court is of the view that it will be in the best interests of the child to make the following Orders:
(49)At times the Mother has care of [X], the Mother is by this Order, pending further Order, restrained from causing or permitting:
(a)[X] to be in the physical presence of Ms C and Mr A for any extended period of time without the Mother being present; and
(b)Ms C and/or Mr A, or any other persons, to stay overnight with [X] in her bed or bedroom.
(c)[X] to travel in a motor vehicle driven by or any other person for the purposes of business or business deliveries;
(d)[X] to be taken to the business premises or employment premises of Ms C during the weekdays or weekends after 6:30pm.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 10 August 2018
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