BARTLETT & DENNY (No.3)
[2020] FCCA 1356
•29 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BARTLETT & DENNY (No.3) | [2020] FCCA 1356 |
| Catchwords: FAMILY LAW – Interim Parenting – best interests of children – orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D |
| Cases cited: Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346 Marvel & Marvel [2010] FamCAFC 101 Banks & Banks [2015] FamCAFC 36 |
| Applicant: | MR BARTLETT |
| Respondent: | MS DENNY |
| File Number: | PAC 5587 of 2017 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 14 May 2020 |
| Date of Last Submission: | 14 May 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 29 May 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Yousef- Taylor & Scott Lawyers |
| Solicitors for the Respondent: | Ms Khalil - Khalil Family Lawyers Pty Ltd |
| Solicitors for the Independent Children’s Lawyer | Mr Ing - Adams & Partners Lawyers |
ORDERS PENDING FURTHER ORDER
That orders 2 and 3 of the Court’s orders of 8 May 2019 be discharged.
School Terms
That during school term time the Children X (“X”) born in 2010; and Y (“Y”), born in 2012, shall spend time with the Father as agreed between the Parties in writing or, failing agreement, commencing the first Friday following the date of these orders:
Stage 1 (two nights per fortnight) - for three months
(a)From the conclusion of school or 6pm if a non-school day on Friday until 7pm on Sunday, and each alternate week thereafter;
Stage 2 (three nights per fortnight) - for three months following Stage 1
(b)From the conclusion of school or 6pm if a non-school day on Friday until the commencement of school or 8.30am if a non-school day the following Monday, and each alternate week thereafter; and
Stage 3 (four nights per fortnight) - for three months following Stage 2
(c)From the conclusion of school or 6pm if a non-school day on Friday until the commencement of school or 8.30am if a non-school day the following Tuesday, and each alternate week thereafter.
School Holidays
That the Children shall spend time with the Parties during the Children's Term 1, 2 and 3 school holiday periods as follows:
(a)In odd-numbered years, with the Mother from the conclusion of the last day of the Children's school term for a period of seven consecutive nights thereafter, concluding with the Parties conducting changeover on the eighth day at 5pm where the Father shall then spend time with the Children until 7pm on the day immediately prior to the Children's first day at school the following school term; and
(b)in even-numbered years, with the Father from the conclusion of the last day of the Children's school term for a period of seven consecutive nights thereafter, concluding with the Parties conducting changeover on the eighth day at 5pm where the Mother shall then spend time with the Children until 7pm on the day immediately prior to the Children's first day at school the following school term.
That the Children shall spend time with the Parties during the Children's Term 4 school holiday periods in equal shares as agreed or failing agreement as follows:
(a)In odd-numbered years, with the Mother from the conclusion of the last day of the Children's school Term 4 for a period of nineteen consecutive nights thereafter and on the twentieth day the Parties shall conduct changeover at 6pm where the Father shall then spend time with the Children until 7pm on the day immediately prior to the Children's first day at school the following school term ; and
(b)in even-numbered years, with the Father from the conclusion of the last day of the Children's school Term 4 for a period of nineteen consecutive nights thereafter and on the twentieth day the Parties shall conduct changeover at 6pm where the Mother shall then spend time with the Children until 7pm on the day immediately prior to the Children's first day at school the following school term.
That notwithstanding any other order to the contrary, the Children shall spend the following special occasions with each of the Parties respectively unless they are already doing so at the time:
Mother's Day
(a)With the Mother, from 9am until 8pm on Mother's Day.
Father's Day
(b)With the Father, from 9am until 8pm on Father's Day.
The Mother’s Birthday
(c)With the Mother on the Mother's birthday from the conclusion of school until 8pm or if on a non-school day then from 10am until 8pm.
The Father’s Birthday
(d)With the Father on the Father's birthday, from the conclusion of school until 8pm or if on a non-school day then from 10am until 8pm.
Children’s Birthday’s
(e)With the party not otherwise spending time with the Children on their respective birthdays where the Children shall move together between the Parties and not individually:
(i)if a school day, from the conclusion of school until 8pm; or
(ii)it a non-school day, from 5pm on the day before the Children's birthday until 12pm the next day.
Easter
(f)During Easter long weekend, in the event it does not coincide with the Children's Term 1 school holiday period:
(i)In odd-numbered years, with the Father from 10am on Good Friday until 5pm on Easter Saturday and with the Mother from 5pm on Easter Saturday until 5pm on Easter Monday;
(ii)in even-numbered years, with the Mother from 10am on Good Friday until 5pm on Easter Saturday and with the Father from 5pm on Easter Saturday until 5pm on Easter Monday.
Christmas
(g)During the Christmas period as follows:
(i)in odd-numbered years, with the Father from 5pm on Christmas Eve until 5pm on Christmas Day and with the Mother from 5pm on Christmas Day until 5pm on Boxing Day;
(ii)In even-numbered years, with the Mother from 5pm on Christmas Eve until5pm on Christmas Day and with the Father from 5pm on Christmas Day until 5pm on Boxing Day,
That the Father be at liberty of communicating with the Children by phone and/or video conferencing (such as FaceTime) each alternate day between 6 - 6:30pm and the Mother shall facilitate such communications by ensuring the Children are available and her phone charged ready to accept same.
That further to the immediate preceding order, the Parties shall not hinder, prevent or discourage the Children from initiating or accepting communication from the other party at all reasonable times and, for the purposes of same, the Parties shall do all acts and things necessary to ensure their mobile telephones (until such time as the Children have their own mobile telephones) are able to accept communication from the other party.
Changeover
That for the purpose of facilitating changeover other than on those occasions when either party collects or returns the Children to or from school, the parties are to collect and deliver the Children to and from McDonald's Suburb K, unless otherwise agreed between the Parties in writing.
Miscellaneous
That in the event that either party is unable to spend time with the Children pursuant to any of the above Orders, that party shall notify the other by way of text message as soon as reasonably practicable, and the other party shall have the option of caring for the Children during the said period.
That the Parties shall keep each other informed of any change to their residential addresses, landline numbers, mobile telephone numbers and personal email addresses within 24 hours of such change taking place.
That the Parties shall communicate and promptly respond to each other by phone, email or text message in a respectful and conciliatory manner as and when reasonably practicable or necessary and limit such communication to issues concerning the Children.
That each party shall ensure the other is advised promptly of any medical emergency or significant illness suffered by, or relating to, the Children including sufficient details to enable both parties to be consulted and fully advised regarding such illness or condition and any treatment.
That the Mother shall notify the Father as soon as practicable of any significant events occurring in the Children's lives including but not limited to parent/teacher interviews, sporting events and invitations received by or on behalf of the Children.
That the Parties, as and when requested, shall forthwith do all acts and things and sign all documents necessary to ensure each of them receives a copy of the Children's school reports, newsletters and other relevant notices issued by their school.
That neither party shall denigrate the other party or anyone associated with that party in the presence or hearing of the Children, and shall forthwith remove them from any third party doing so.
That neither party shall interrogate the Children about events or conversations in the household of the other party or use corporal punishment to discipline the Children or allow a third party to do so.
That neither party shall harass the other about making changes to these Orders once made.
That neither party shall discuss with the Children these proceedings, or change to these orders, or permit any other person other than an Independent Children's Lawyer (if appointed) to do so.
That the Parties shall be at liberty to provide a copy of these Orders to any third party necessary to ensure compliance with these Orders or as required.
The mother’s Application in a Case, filed 17 February 2020, in relation to her proposed parenting orders in that document, is dismissed.
That the Mother and Father each contact Ms F, psychologist within 7 days of the date of these Orders to engage in family therapy to:
(a)Rebuild their trust;
(b)Explore ways of communicating in a more collaborative way; and
(c)Appreciate the damaging impact on the children of being involved in the adult issues
That the Independent Children’s Lawyer have leave to provide to Ms F, Psychologist a copy of the Family Report of Dr B and these Orders.
That each party pay for their own sessions with the psychologist, and that they share equally the cost of any joint sessions with the psychologist.
IT IS NOTED that publication of this judgment under the pseudonym Bartlett & Denny (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5587 of 2017
| MR BARTLETT |
Applicant
And
| MS DENNY |
Respondent
REASONS FOR JUDGMENT
Introduction
This is the second interim parenting hearing held in relation to the children of the relationship being X born in 2010, and Y born in 2012.
The court refers to previous interim parenting orders made in these proceedings. The Court’s orders made following the last interim hearing on 8 May 2019 provided, inter alia, that the children spend time with the father each alternative weekend from 8 AM Saturday until 4 PM Sunday. On 2 October 2019, that order was varied such that the children would spend time with the father each alternate weekend from 9 AM on Saturday until 5 PM on Sunday.
The father now seeks interim parenting orders being proposed orders 5 to 22 as set out in the father’s case outline dated 14 February 2020. Inter alia, he seeks orders that he spend increasing overnight time with the children on a graduating basis, ultimately leading to spending five nights per fortnight during school terms with the children together with a sharing of the children’s school holiday time with the mother. The father’s proposed interim orders are significantly reflective of the recommendations of the family report writer, whose report, forming part of exhibit A, is dated 5 November 2019.
The mother opposes the making of such proposed orders of the father; she seeks orders as set out on page 2 of her case outline dated 9 May 2020 (which reflect the orders sought by her in her Amended Application in a Case filed 17 February 2020). One of the mother’s proposed orders is that there be no changes to the current parenting arrangements.
The Court refers to its Reasons for Judgement and related interim parenting orders dated 8 May 2019, paragraphs 34 and 55 in particular, wherein the Court stated that following the issuing of the family report, the extent of the children’s overnight time with the father on a fortnightly basis could be reconsidered, together with the issue of school holiday time and special occasions with the father.
Materials relied upon
The father relied upon:
a)his Case Outline
b)his Response to Application in a Case filed 31 January 2020
c)his Affidavit filed 31 January 2020.
The mother relied upon:
a)her Case Outline
b)Amended Application in a Case filed 17 February 2020
c)Affidavits of mother filed 25 January 2018, and 17 February 2020
d)Tender bundle of documents marked exhibit C.
The ICL relied upon his case outline.
The Child Inclusive Conference Memorandum dated 23 April 2020 and the family report of Dr B dated 5 November 2019 became exhibit A.
A copy order revoking an apprehended violence order dated 17 February 2020 became exhibit B.
The court has considered all the material relied upon by the parties, including their submissions.
Agreed facts unless otherwise stated
The parties married in 2001. The parties separated in September 2016.
From about late 2016 until about February 2018, the father did not spend any significant time with the children.
In about March 2017, the father was charged with assaulting the mother in relation to an alleged incident in March 2016. In about April 2018, the assault charges were withdrawn by the police and dismissed by the Town C Local Court. The father consented on a without admissions basis to an AVO for one year at that time; in this context, the husband asserts that he was tired of fighting and the costs of continuing in both those proceedings as well as the family law ones were financially draining.
An interim consent order was made on 29 January 2018 that the parties have equal shared parental responsibility for the children.
In late May 2018 the father completed the Anchor Program – Talking with your Kids; in late June 2018 he completed the Parenting after Separation – Focus on Kids with G Counselling Services; and he completed in late November 2018 the Keeping Contact course with H Counselling Services.
The father asserts, at least by implication, that he has spent time with the children substantially in accordance with the court’s past interim parenting orders.
On 17 February 2020, the District Court at Suburb J revoked the earlier apprehended violence order previously made on 13 April 2018 for the protection of the mother and the children.
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] FamCAFC 101, 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 in Eaby & Speelman [2015] FamCAFC 104 said at [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] FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 50, “When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors”.
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).
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: section 61DA of the Act. 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: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (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 section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
The best interests of the children
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 children have meaningful relationships with both parents and would benefit from a continuance of those relationships.
Should the children spend time with the father in accordance with the father’s proposed interim orders, but excluding proposed stage 4 (providing for five nights per fortnight during school term times), there is a significant prospect that the children’s meaningful relationship with the father can be maintained, and, in particular, enhanced.
The reference above to excluding the father’s proposed stage 4, again which provides for the children spending five nights per fortnight with the father during school term times, has been made by the court because the present extent of parties’ co-parenting relationship (including their present compromised ability to communicate and their mistrust of each other) may well not support such a parenting arrangement (five nights per fortnight) which is an arrangement approaching an equal time arrangement. The recommendations of the family report writer are not inconsistent with this view, whilst acknowledging that the family report remains untested.
The court is concerned that should it make the mother’s proposed interim parenting orders providing that the current interim parenting orders remain in place, there is a significant risk that the children’s meaningful relationship with the father may not be enhanced in a timely fashion. In this context, the court notes that a final hearing for these parenting proceedings may well not take place in this Registry until the first half of 2021.
The Court gives significant weight to this meaningful relationship primary consideration.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother makes allegations of family violence against the father. She alleges other antisocial behaviour by the father. These allegations are denied by the father. The father also makes allegations against the mother of family violence by her during the relationship. In this context, the court refers to the parties’ respective allegations made in their affidavits, statements made by them to the family consultant and to the family report writer.
The Court observes that the assault charges against the father, relating to an alleged incident in March 2016, were dismissed in about April 2018. And further, that the final AVO made at that time was without admissions.
The court observes that the mother told the family consultant at the Child Inclusive Conference held on 13 February 2018 that she was seeking that the children live with her, that they spend alternate weekends from Saturday morning to Sunday evening with the father, and proposed that the children spend half the school holidays with the father (albeit that she stated that she would be seeking further legal instruction and may amend her proposals, as she stated that she had safety concerns about the children spending unsupervised time with the father).
The court observes that the children spent supervised time with the father for three hours each Saturday at a contact centre between about mid-February 2018 to about mid-August 2018. There is a significant suggestion, on the material before the court, that the children’s supervised time with the father was positive.
The Court observes that the children spent unsupervised daytime time with the father following interim parenting orders of 3 August 2018, from about 11 August 2018 to about 21 December 2018.
The court observes that the children spend unsupervised time with the father from about 22 December 2018 to about 10 May 2019 every Saturday from 8 AM until 4 PM.
The court observes that the father asserts that he completed three post separation parenting courses in May 2018, June 2018, and November 2018 following recommendations in the Child Inclusive Conference Memorandum dated 14 February 2018.
The father spent overnight time with the children pursuant to the court’s orders of 8 May 2019, each alternate weekend from 8 AM Saturday until 4 PM Sunday. And then he spent from about mid-August 2019 to date, unsupervised time with the children every alternative Saturday from 9AM until 5 PM on Sunday.
The court observes that the mother’s allegations of family violence against the father predate the Child Inclusive Conference memorandum dated 14 February 2018.
The court observes that the ADVO was extended in early September 2019 so that it expired in April 2020, in the Town C Local Court. The father asserts in this context that the magistrate extended the AVO as he had attended a music performance not knowing that the mother would be taking part. He asserts that he did not approach her or interact with her but because he did not immediately leave upon seeing the mother there, the order was not allowed to lapse.
The court observes that on 17 February 2020 the District Court at Suburb J revoked the AVO order made on 13 April 2018.
The Court observes, in the context of the mother’s family violence allegations against the father, that the mother seeks the continuation of the existing interim parenting orders providing, inter alia, that the children spend time with the father each alternate weekend from 9 AM on Saturday until 5 PM on Sunday, on an unsupervised basis.
The Court observes the family report writer’s reference to police records dated 12 February 2017 and 16 March 2017 in which the police suggested, inter alia, the mother to have made a series of vexatious complaints in order to gain advantage in the family court proceedings.
The Court observes that there are existing interim parenting restraining orders, made on 8 May 2019; the parties are restrained from denigrating the other party in the presence of the children, and are restrained from yelling at the children when the children are in their respective care.
The Court observes that the family report writer stated that there appeared to be no contra-indicators to the time the children spend with the father progressively increasing in terms of his capacity to care for the children and provide for their needs. She stated that it is very likely that the children will be able to tolerate longer periods with the father if the message they receive from the mother is that she is amenable to this occurring.
The Court regards the comments and opinions of the family report writer in her family report, including in relation to family violence and other risk allegations made by the mother, as important at this interim hearing, whilst acknowledging that the family report remains untested.
In the view of the court, taking the above discussed matters into account in particular, there will be no unacceptable risk of harm posed to the children in spending time with the father in accordance with the father’s proposed interim orders, but excluding proposed stage 4 (providing for five nights per fortnight school term times).
The mother referred to the father’s bank records, exhibit C, referring to the father purchasing an interlock device in August and September 2019. The father’s counsel in submissions referred to the father having been the subject of a PCA driving offence. There is insufficient information before the court in relation to this issue and the court does not give it any significant weight.
Section 60CC(3) - Additional Considerations
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
The mother alleges various statements made in particular by the child X to the mother, including from about March 2019 to February 2020, to the effect that this child, inter alia, has experienced emotional unwellness having spent time with the father, that she does not want to sleep at the father’s house, that she becomes scared in relation to spending increased time with the father including increased overnight time, that the father pressures her to talk, and that the father yelled at her.
The Court refers to the X’s statements to the family consultant at the CIC on 13 February 2018. There is a suggestion that the mother was inappropriately involving this child in the parties’ dispute; for example, the CIC Memorandum records that this child told the family consultant “that sometimes (the mother) says, “Do you remember when Dad punched me?” The CIC Memorandum then records that this child stated “that she did not recall this event, and thought that she may have been asleep.”
The child X told the family report writer that she used to feel afraid of her father when she was smaller but not so now. She spoke positively of the father to the family report writer. For example, she stated that when she misbehaves which is not often, the father calmly tells her and her brother not to act that way. This child stated that she loves her parents. She stated she would want her parents to be together. She stated she would like to stay with the father for one evening per fortnight only as she misses the mother too much.
The child Y told the family report writer that he would like to stay with the father for a longer period of time. He stated that he loves his parents. He stated that nothing makes him scared.
The children were observed interacting with each parent during the family report observations. When the father, for example, entered the room, the children were excited to see him and were openly affectionate towards him.
The family report writer stated that each of the children is of an age and level of maturity where their views should be given minimal weight. The family report writer stated in this context, inter alia, that both in the interviews for the CIC and in those conducted for the preparation of the family report, the children, especially X, expressed views about her living arrangements that echoed those of the mother.
Further, the family report writer stated that, in relation to the child X’s disclosures about alleged family violence, there are indicators that the mother, at least, has had conversations about the family violence with X which have now become part of X’s narrative of her family trajectory.
The family report writer observed that, in contradistinction to the views of X, the child Y expressed a desire to spend more time with the father and did not seem as aligned with the mother as X.
The family report writer stated that the child X’s statements to her about not wanting to extend the time she spends away from the mother because she misses the mother and is afraid the mother may not be there on her return, seem to reflect those of the mother that the father may be a flight risk, and tend to be irrational as there has not been any attempt on the father’s part to withhold the children. The family report writer expressed her concern that X’s reasons for not wanting to extend the time she spends with the father appear to meet more of the mother’s needs than her own.
Whilst the court acknowledges that the family report is untested, the Court regards the comments and opinions of the family report writer as important at this interim hearing, and the court places minimal weight on the children’s views, particularly in relation to the amount of time they wish to spend with the father.
(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.
(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
The parties would appear to have each taken such opportunities.
(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
Both parties appear to have maintained the children whilst they were in each parties’ respective care post separation. It appears the father pays regular child support.
(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 discussions above under the primary considerations. In the view of the court, there should be no detrimental impact upon the children’s meaningful relationship with the mother should the children spend time with the father as discussed above under the meaningful relationship primary consideration.
(e) The practical difficulty and expense of a child spending time with and communicating with the 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
Not applicable.
(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;
The parties would appear to have such capacities, however the court is concerned in relation to the significant suggestion that the mother holds particularly negative views about the father (for example, the mother told the family report writer that she cannot appreciate that there is anything positive that the children experience when in the father’s care, and that the children are afraid of him, contrary to the children’s statements to the family report writer) which may have negatively impacted the children, in particular the child X.
(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
The court refers to its discussions above under the primary considerations and additional considerations.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: 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 the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(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 discussions above, in particular under the primary considerations.
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussion above under the need to protect primary consideration.
(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: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter
The Court refers to its discussion above under the need to protect primary consideration.
(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
It is not possible to meaningfully consider this additional consideration at this stage in the proceedings.
m) Any other fact or circumstance that the Court thinks is relevant
The family report writer observed that the supervised contact reports between the children and the father also consistently indicated a warm, affectionate and spontaneous interaction between the children and the father.
The Court recognises that the father’s proposed school holiday time with orders would presently result in the children spending 7 consecutive nights during the shorter school holiday periods, and 19 consecutive nights during the longer school term for holidays, with the court noting that the children are presently spending only one night per fortnight during school term times with the father.
Nevertheless, the court is of the view that there is a significant prospect that the children will be able to cope emotionally in presently spending such holiday time with the father (noting that such holiday time only occurs after a full school term time and the term 4 school holidays is some time away), and in this regard the court refers to its discussions above under the primary and additional considerations, and again refers to the comments and opinions of the family report writer which the Court regards as important at this interim hearing, whilst again acknowledging the family report remains untested.
It will be in the best interests of the children to spend time with the father and mother on the special occasions proposed in the father’s proposed orders set out in his case outline.
The court is of the view that it will be in the best interests of the children to make the ICL’s proposed orders 3 and 4 relating to family therapy. Such orders will assist the parties in rebuilding their trust between each other, exploring ways of communicating with each other in a more collaborative way; and appreciating the damaging impact on the children being involved in the adult issues. It will be in the best interests of the children that each party pay for their own sessions with the psychologist and that they share equally the cost of any joint sessions with the psychologist.
The comments and opinions of the family report writer are consistent with the above views in relation to the ICL’s proposed orders for family therapy.
As to the mother’s proposed orders for a family therapist, it will not be in the best interests of the children to make such specific order as framed by the mother. This is because the court regards as significant the opinion of the family report writer that it is very likely that the children will be able to tolerate longer periods with the father if the message they receive from the mother is that she is amenable to this occurring. And further in this context, the court takes into account its discussion above in relation to the views of the children, including their views, inter alia, that they are not afraid of the father, and that they enjoy spending time with him.
The father’s proposed orders under the headings “Changeover”, and “Miscellaneous”, will be in the best interests of the children, because they promote child safety and emotional well-being, encourage relevant co-parenting communication between the parties, and enable the parties to participate in the children’s day-to-day lives. The comments and recommendations of the family report writer are consistent with such proposed orders being in the best interests of the children.
Parental responsibility
On 29 January 2018, the parties agreed to interim orders by consent for equal shared parental responsibility in relation to the children.
It will not be in the best interests of the children to be subject to an equal time parenting arrangement; there is a considerable lack of communication between the parties in relation to parenting the children, and mistrust between them. The father’s proposed interim time-with orders (again, excluding proposed stage 4; five nights per fortnight during school term times) at least approach substantial and significant time with the children, and will be in the best interests of the children. In passing, it will be reasonably practicable for equal time or substantial and significant time-with orders to be made.
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following interim parenting orders and the court makes such orders:
That orders 2 and 3 of the Court’s orders of 8 May 2019 be discharged.
School Terms
That during school term time the Children X (“X”) born in 2010; and Y (“Y”), born in 2012, shall spend time with the Father as agreed between the Parties in writing or, failing agreement, commencing the first Friday following the date of these orders:
Stage 1 (two nights per fortnight) - for three months
(a)From the conclusion of school or 6pm if a non-school day on Friday until 7pm on Sunday, and each alternate week thereafter;
Stage 2 (three nights per fortnight) - for three months following Stage 1
(b)From the conclusion of school or 6pm if a non-school day on Friday until the commencement of school or 8.30am if a non-school day the following Monday, and each alternate week thereafter; and
Stage 3 (four nights per fortnight) - for three months following Stage 2
(c)From the conclusion of school or 6pm if a non-school day on Friday until the commencement of school or 8.30am if a non-school day the following Tuesday, and each alternate week thereafter.
School Holidays
That the Children shall spend time with the Parties during the Children's Term 1, 2 and 3 school holiday periods as follows:
(a)In odd-numbered years, with the Mother from the conclusion of the last day of the Children's school term for a period of seven consecutive nights thereafter, concluding with the Parties conducting changeover on the eighth day at 5pm where the Father shall then spend time with the Children until 7pm on the day immediately prior to the Children's first day at school the following school term; and
(b)in even-numbered years, with the Father from the conclusion of the last day of the Children's school term for a period of seven consecutive nights thereafter, concluding with the Parties conducting changeover on the eighth day at 5pm where the Mother shall then spend time with the Children until 7pm on the day immediately prior to the Children's first day at school the following school term.
That the Children shall spend time with the Parties during the Children's Term 4 school holiday periods in equal shares as agreed or failing agreement as follows:
a)In odd-numbered years, with the Mother from the conclusion of the last day of the Children's school Term 4 for a period of nineteen consecutive nights thereafter and on the twentieth day the Parties shall conduct changeover at 6pm where the Father shall then spend time with the Children until 7pm on the day immediately prior to the Children's first day at school the following school term ; and
b)in even-numbered years, with the Father from the conclusion of the last day of the Children's school Term 4 for a period of nineteen consecutive nights thereafter and on the twentieth day the Parties shall conduct changeover at 6pm where the Mother shall then spend time with the Children until 7pm on the day immediately prior to the Children's first day at school the following school term.
That notwithstanding any other order to the contrary, the Children shall spend the following special occasions with each of the Parties respectively unless they are already doing so at the time:
Mother's Day
(a)With the Mother, from 9am until 8pm on Mother's Day.
Father's Day
(b)With the Father, from 9am until 8pm on Father's Day.
The Mother’s Birthday
(c)With the Mother on the Mother's birthday from the conclusion of school until 8pm or if on a non-school day then from 10am until 8pm.
The Father’s Birthday
(d)With the Father on the Father's birthday, from the conclusion of school until 8pm or if on a non-school day then from 10am until 8pm.
Children’s Birthday’s
(e)With the party not otherwise spending time with the Children on their respective birthdays where the Children shall move together between the Parties and not individually:
(i)if a school day, from the conclusion of school until 8pm; or
(ii)it a non-school day, from 5pm on the day before the Children's birthday until 12pm the next day.
Easter
(f)During Easter long weekend, in the event it does not coincide with the Children's Term 1 school holiday period:
(i)In odd-numbered years, with the Father from 10am on Good Friday until 5pm on Easter Saturday and with the Mother from 5pm on Easter Saturday until 5pm on Easter Monday;
(ii)in even-numbered years, with the Mother from 10am on Good Friday until 5pm on Easter Saturday and with the Father from 5pm on Easter Saturday until 5pm on Easter Monday.
Christmas
(g)During the Christmas period as follows:
(i)in odd-numbered years, with the Father from 5pm on Christmas Eve until5pm on Christmas Day and with the Mother from 5pm on Christmas Day until 5pm on Boxing Day;
(ii)In even-numbered years, with the Mother from 5pm on Christmas Eve until5pm on Christmas Day and with the Father from 5pm on Christmas Day until 5pm on Boxing Day,
That the Father be at liberty of communicating with the Children by phone and/or video conferencing (such as FaceTime) each alternate day between 6 - 6:30pm and the Mother shall facilitate such communications by ensuring the Children are available and her phone charged ready to accept same.
That further to the immediate preceding order, the Parties shall not hinder, prevent or discourage the Children from initiating or accepting communication from the other party at all reasonable times and, for the purposes of same, the Parties shall do all acts and things necessary to ensure their mobile telephones (until such time as the Children have their own mobile telephones) are able to accept communication from the other party.
Changeover
That for the purpose of facilitating changeover other than on those occasions when either party collects or returns the Children to or from school, the parties are to collect and deliver the Children to and from McDonald's Suburb K, unless otherwise agreed between the Parties in writing.
Miscellaneous
That in the event that either party is unable to spend time with the Children pursuant to any of the above Orders, that party shall notify the other by way of text message as soon as reasonably practicable, and the other party shall have the option of caring for the Children during the said period.
That the Parties shall keep each other informed of any change to their residential addresses, landline numbers, mobile telephone numbers and personal email addresses within 24 hours of such change taking place.
That the Parties shall communicate and promptly respond to each other by phone, email or text message in a respectful and conciliatory manner as and when reasonably practicable or necessary and limit such communication to issues concerning the Children.
That each party shall ensure the other is advised promptly of any medical emergency or significant illness suffered by, or relating to, the Children including sufficient details to enable both parties to be consulted and fully advised regarding such illness or condition and any treatment.
That the Mother shall notify the Father as soon as practicable of any significant events occurring in the Children's lives including but not limited to parent/teacher interviews, sporting events and invitations received by or on behalf of the Children.
That the Parties, as and when requested, shall forthwith do all acts and things and sign all documents necessary to ensure each of them receives a copy of the Children's school reports, newsletters and other relevant notices issued by their school.
That neither party shall denigrate the other party or anyone associated with that party in the presence or hearing of the Children, and shall forthwith remove them from any third party doing so.
That neither party shall interrogate the Children about events or conversations in the household of the other party or use corporal punishment to discipline the Children or allow a third party to do so.
That neither party shall harass the other about making changes to these Orders once made.
That neither party shall discuss with the Children these proceedings, or change to these orders, or permit any other person other than an Independent Children's Lawyer (if appointed) to do so.
That the Parties shall be at liberty to provide a copy of these Orders to any third party necessary to ensure compliance with these Orders or as required.
The mother’s Application in a Case, filed 17 February 2020, in relation to her proposed parenting orders in that document, is dismissed.
That the Mother and Father each contact Ms F, psychologist within 7 days of the date of these Orders to engage in family therapy to:
(a)Rebuild their trust;
(b)Explore ways of communicating in a more collaborative way; and
(c)Appreciate the damaging impact on the children of being involved in the adult issues
That the Independent Children’s Lawyer have leave to provide to Ms F, Psychologist a copy of the Family Report of Dr B and these Orders.
That each party pay for their own sessions with the psychologist, and that they share equally the cost of any joint sessions with the psychologist.
I certify that the preceding eighty four (84) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 29 May 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Procedural Fairness
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