BEAU & SAIGER

[2020] FCCA 1389

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEAU & SAIGER [2020] FCCA 1389

Catchwords:
FAMILY LAW – Interim parenting orders – where parties could not complete final hearing in allotted time – where consent parenting arrangement already in place – where Family Report available but untested – where equal time and substantial and significant time not appropriate – appropriate orders for child to spend time with his father.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA, 65AA, 65D, 65DAA.

Cases cited:

Hall v Hall [1979] FamCA 73
M & M (1988) FLC 91-973
A & A & The Child Representative (1998) 22 FamLR 756
Goode & Goode (2006) FLC 93-286

Napier & Hepburn (2006) FLC 93-303

Johnson & Page (2007) FLC 93-344
Marvel & Marvel (2010) 240 FLR 367

Hannigan v Sorraw [2010] FamCAFC 257
Friscioni v Friscioni [2010] FamCAFC 108
MRR & GR (2010) 240 CLR 461
SS & AH [2010] FamCAFC 13
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93‑654
Grella & Jamison [2017] FamCAFC 21

Applicant: MR BEAU

Respondent: MS SAIGER

File Number: SYC 1094 of 2017

Judgment of: Judge Morley

Hearing date: 17 December 2019

Date of Last Submission: 18 December 2019

Delivered at: Sydney

Delivered on: 10 June 2020

REPRESENTATION

Counsel for the Applicant: Mr Sansom SC

Solicitors for the Applicant: Abrams Turner Whelan Family Lawyers

Counsel for the Respondent: Mr Levy

Solicitors for the Respondent: Broun Abrahams Burreket

ORDERS

THAT PENDING FURTHER ORDERS, THE COURT ORDERS THAT:

1. That orders 3, 4 and 8 in the Minute of Interim Orders forming part of order 1 made on 4 July 2019 are vacated.

2. That the child X born in 2016 spend time with his father as follows:

   (a)Each alternate week from 4.30PM on Wednesday until 8.30AM on Thursday, commencing from Wednesday 17 June 2020;

   (b)from the next weekend on which X was due to spend time with his father under the orders made on 4 July 2019, each alternate weekend from 4.30PM on Friday until 5.00PM on Sunday; and

   (c)from the first due weekend in September 2020, each alternate weekend from 4.30PM on Friday until 8.30AM on Monday.

3. That changeovers at the start and end of the father’s time with X on Wednesday and Thursday each week will occur at the mother’s place of residence or day care or pre-school, whichever applies on the day.

4. That changeovers at the start of the father’s alternate weekend time with X under order 2(b) will occur at the mother’s place of residence or day care or pre-school, whichever applies on the day, and will occur at the A Store at Suburb B at the end of such time.

5. That changeovers at the start and end of the father’s alternate weekend time with X under order 2(c) will occur at the mother’s place of residence or day care or pre-school, whichever applies on the day.

6. That each parent notify the other parent and keep the other parent notified of their residential address, telephone number where they may be contacted in the event of an emergency, and a current email address and shall notify the other of any change within 48 hours.

7. That each of the parents is restrained from denigrating the other parent, any member of the other parent’s family and any member of the other parent’s household in the presence or hearing of X.

8. That each of the parents is restrained from allowing X to remain in the presence of, or within X’s hearing of, any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household.

9. That the mother and the father will ensure that the other parent:

   (a)Is kept informed as soon as is reasonable of any medical problems suffered by X whilst X is in their care including but not limited to notifying the other parent by telephone within two hours of X’s admission to hospital;

   (b)Of any medication which has been prescribed or recommended by a medical practitioner for X; and

   (c)Is kept informed of X’s progress and development during periods of time X is in their care and in particular in relation to X’s sleeping difficulties.

10. That X spend time with his father on Wednesday, 10 June 2020 from 4.00PM until 6.30PM.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1094 of 2017

MR BEAU

Applicant

And

MS SAIGER

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are interim parenting proceedings under the Family Law Act 1975 (Cth) (‘the Act’). The matter was set down for final hearing for three days from 16 to 18 December 2019. However, the first day was spent conducting a voir dire on the question of the admissibility of sound recordings made by the father that allegedly recorded the events at several changeovers. The second day was spent in submissions on the question of the admissibility or otherwise of the recordings, and then in conducting an interim hearing due to the consequential impossibility of the matter concluding in the time allotted. These reasons relate to that interim hearing.

2. The applicant father, Mr Beau (‘the father’) and the respondent mother, Ms Saiger (‘the mother’) met during 2014. They began living together in either May 2014,[1] as the father asserts, or July 2014, as the mother asserts.[2] They married in 2014 and separated on 24 December 2016. There is one child of their relationship, X born in 2016. The father and the mother have been unable to agree on appropriate parenting arrangements for X. Hence, protracted litigation is the result.

   [1] Affidavit of Mr Beau, sworn 18 November 2019, [10].

   [2] Affidavit of Ms Saiger, sworn 15 November 2019, [4].

3. The matter is listed for final hearing for five days from 7 to 11 December 2020.

The proceedings

1. The proceedings were commenced by the father filing an Initiating Application on 22 February 2017 seeking final and interim parenting orders. The mother filed a Response on 21 March 2017 seeking both parenting and property settlement orders and the father filed a Reply on 26 April 2017 in relation to the parenting issues.

2. An interim hearing in relation to the interim parenting orders sought by the father was heard by Senior Registrar Campbell in the Family Court of Australia on 31 March 2017. Orders were made by consent on that occasion, including that X would live with his mother and spend time with his father:

   a)From 6.00AM to 7.00AM each Tuesday at the mother’s residence;

   b)From 5.00PM to 6.00PM each Thursday at the mother’s residence; and

   c)From 6.30AM to 10.30AM each Saturday at any place chosen by the father.

3. The parties settled their property settlement matter with consent orders at the conciliation conference on 25 May 2017.

4. On 16 November 2017, the matter was transferred to the Federal Circuit Court of Australia. On 30 January 2018 Judge Harper (as his Honour then was) conducted an interim hearing and on 31 January 2018 made orders, including:

   a)That the parties have equal shared parental responsibility for X;

   b)That X live with his mother and spend time with his father each:

   i)Thursday from 4.00PM until 6.00PM; and

   ii)Saturday from 9.00AM to 3.30PM;

   c)That the parties take all necessary steps to consult a suitably qualified paediatrician concerning any disrupted sleep patterns experienced by X; and

   d)To take all necessary steps to engage in non-reportable family therapy.

5. On 4 March 2019, an order was made for preparation of a Family Report and the matter was adjourned to 4 July 2019 for a further interim hearing.

6. On 4 July 2019, the parties reached a further consent agreement which included that:

   a)The parties were to reengage in non-reportable family therapy;

   b)All previous orders for time between X and the father be discharged; and

   c)The father spend time with X:

   i)From 4.00PM to 6.30PM each Wednesday;

   ii)In week one from 5.00PM Friday to 12.00PM Saturday for two occasions and thereafter from 5.00PM Friday to 5.00PM Saturday;

   iii)In week two from 9.00AM to 5.00PM Saturday;

   d)Both changeovers for the Wednesday time were to take place at the mother’s home;

   e)The father was to collect X from the mother’s home at the start of each weekend time, and the mother was to collect X from the father at Suburb B McDonalds on C Street, unless otherwise agreed between the parties, at the end of the father’s time on Saturdays.

   f)The Family Report order was discharged and an order was made appointing Dr D as a single expert to prepare a report. The orders also granted the parties leave to submit a minute of order in relation to the terms of the appointment of Dr D; and

   g)The matter was set down for final hearing from 16 to 18 December 2019 and trial directions were made.

7. The parties submitted a consent document to Chambers in relation to the terms of Dr D’s appointment and orders were made accordingly on 23 October 2019 in Chambers.

8. The Family Report by Dr D dated 9 December 2019 was released to the parties by Chambers order made on 10 December 2019.

9. The course of the matter, during the days set down for final hearing on 16 and 17 December 2020, has been outlined above.

10. The interim hearing conducted on 17 December 2020 was the third interim hearing since the inception of the proceedings.

The evidence relied upon by the parties

1. For the interim hearing the father relied upon the following evidence:

   a)A Case Outline document prepared by Mr Sansom of Senior Counsel;

   b)Amended Initiating Application filed 11 October 2019;

   c)Affidavit of the father sworn and filed 18 November 2019;

   d)Affidavit of Ms E sworn 14 November and filed 18 November 2019;

   e)Affidavit of Mr F sworn 15 November and filed 18 November 2019;

   f)Affidavit of Ms G sworn 14 November and filed 18 November 2019;

   g)His Notice of Risk filed 19 December 2017; and

   h)A Minute of Orders sought by the father at the interim hearing, marked as exhibit A1.

2. The mother relied on the following evidence at the interim hearing:

   a)A Case Outline document settled by her counsel, Mr Levy. That Case Outline included a Minute of Orders proposed by the mother, being the orders sought by the mother at the interim hearing. That Minute of Orders was marked as exhibit R1;

   b)Amended Response to Initiating Application filed 23 October 2019;

   c)Affidavit of the mother sworn 15 November and filed 18 November 2019;

   d)Affidavit of Ms H affirmed and filed 15 November 2019;

   e)Affidavit of Mr J sworn and filed 6 December 2019;

   f)Affidavit of Ms K sworn 29 March 2017 and filed 30 March 2017; and

   g)Her Notice of Risk filed 29 January 2018.

3. Both parties relied upon and referred to the Family Report dated 9 December 2019 prepared by Dr D, though that document was not formally entered as an exhibit.

The orders sought by the parties

1. The father sought the following orders at the interim hearing:

   a)That the parties have equal shared parental responsibility for X;

   b)That commencing from 19 December 2019 X live with the father:

   i)From 4.30PM Friday to 5.00PM Sunday each alternate weekend; and

   ii)Each Wednesday from 4.30PM to 6.30PM;

   c)That commencing from the first weekend that X is in the father’s care in March 2020, X shall live with the father as follows:

   i)From 4.30PM Friday to 5.00PM Sunday in week 1;

   ii)From 4.30PM Wednesday to 8.30AM Thursday in week 2;

   iii)For one period of three consecutive nights in the July 2019 – presumably meant to be July 2020 – school holiday period, with the father to nominate the dates in writing no later than 28 days prior to the commencement of the holiday period and noting that the father’s time would be exercised separately to that provided in the orders for his regular weekly time;

   d)That commencing as from the first weekend that X is in the father’s care in September 2020, X shall live with the father as follows:

   i)From 4.30PM Friday to 8.30AM Monday in week 1;

   ii)From 4.30PM Wednesday to 8.30AM in week 2;

   iii)For one period of three consecutive nights in the September 2019 – once again, presumably meant to be September 2020 – school holiday period with the father to nominate the dates in writing no later than 28 days prior to the commencement of the holiday period and noting that the father’s time will be exercised separately to his regular weekend time;

   e)Notwithstanding any other orders, X to spend time with the father on special days as follows:

   i)From 9.00AM to 6.00PM on Father’s Day if X is not already in the father’s care;

   ii)From 9.00AM Good Friday until 2.00PM Easter Saturday;

   iii)From 9.00AM Christmas Eve until 12.00PM Christmas Day 2019;

   iv)If X is not living with the father on X’s birthday, for a period of four hours as agreed between the parties and, failing agreement, to be from 2.00PM until 6.00PM;

   v)At other times as agreed between the parties in writing;

   f)That X otherwise live with the mother at all other times, and also on the following special occasions:

   i)From 9.00AM to 6.00PM on Mother’s Day if X is not already in the mother’s care;

   ii)From 2.00PM Easter Saturday until 5.00PM Easter Monday;

   iii)From 12.00PM Christmas Day until 5.00PM Boxing Day;

   iv)If X is not living with the mother on X’s birthday, for a period of four hours as agreed between the parties and in failing agreement to be from 2.00PM to 6.00PM;

   v)At other times as agreed between the parties in writing;

   g)That for the purpose of facilitating these orders, if changeover does not occur at day care then the father shall collect X from the mother at the commencement of his time and the mother shall collect X from the father at the conclusion of his time;

   h)That within 21 days the parties shall do all acts and things necessary to cause X’s enrolment in an agreed upon day care in the Sydney CBD area for three days per week to commence in January 2020 and it is noted that the parties shall share equally in the cost of X’s attendance;

   i)That each party is entitled to attend at any day care activity to which parents are invited, whether that event falls within the other party’s time such as concerts, end of year celebrations, Christmas events, Easter events, and Father’s Day and Parent’s Day events; and

   j)That each party notify the other and keep the other notified of their residential address, telephone number where they may be contacted in the event of an emergency, and a current email address and shall notify the other of any change within 48 hours.

2. The father sought notations from the Court to the following effect:

   a)That the wife has stated via her counsel that she does not seek to have NSW Police take any further steps in relation to her statement made 9 December 2019;

   b)That the father, his partner, his mother and stepfather will provide upon request executed written authorities to Broun Abrahams Burreket – the wife’s solicitors – authorising any private investigation firm to provide/release any files or information they hold or to confirm that they hold no files in respect of the mother, noting that it is the contention of the father that no such investigations have been authorised in any manner by the father or his family;

   c)That the father has made enquiries and confirmed that L Day Care at M Street, Sydney can offer X a place as from January 2020 and the daily cost is $158 per day.

3. No evidence was offered or submissions made in support of or in relation to orders (h), (i) or (j) as sought by the father or for any of the notations. The notations relate to matters that are referred to in evidence, but no such notations will be made, it being inappropriate to make those notations on the basis of the evidence available to the Court on the interim hearing and without argument or submissions.

4. At the interim hearing the mother sought orders in accordance with the orders that were set out in her Minute of Order for the final hearing that was to take place from 16 to 18 December 2019. The orders sought by the mother are as follows:

   a)That the parties have equal shared parental responsibility for X;

   b)That X live with the mother;

   c)Impliedly, that X spend time with the father as following with the interim orders made by consent on 4 July 2019 and/or six months from the date of the interim hearing;

   d)From a date commencing six months after the interim hearing, in each two-week cycle:

   i)In week one from 3.00PM to 6.30PM on Wednesday;

   ii)In week two from 5.00PM Friday to 5.00PM Sunday; and

   iii)At other times as may be agreed in writing;

   e)That from July 2020, X’s time with the father provided for in order (d)(ii) to be extended out to 5.00PM Monday, on a weekend of the father’s choosing, in the September and December school holidays in 2020 and January school holidays in 2021, the father to provide the mother no less than 28 days written notice of the dates on which he proposes to exercise the option;

   f)On four occasions in each calendar year the mother may provide to the father on no less than 28 days written notice of dates on which the father’s time with X pursuant to the orders may be suspended. The father is entitled to make up time for those occasions on dates to be agreed upon within three months of the occasions suspended;

   g)That X spend time with his father:

   i)On Father’s Day 2020 from 9.00AM on Saturday until 5.00PM on Sunday;

   ii)From 3.00PM on 24 December until 12.00PM on 25 December 2020; and

   iii)From 3.00PM until 6.00PM on X’s birthday, if X is otherwise in the care of the mother;

   h)That notwithstanding any order to the contrary X will live with the mother as follows:

   i)On Mother’s Day weekend from 3.00PM on the Friday before Mother’s Day;

   ii)From 3.00PM on 25 December until 3.00PM on 26 December 2020; and

   iii)On X’s birthday from 3.00PM until 6.00PM if X is otherwise in the care of the father;

   i)That unless changeovers can occur at X’s preschool, they will occur at the ordinary place of residence of the mother except for changeovers that occur at the end of the father’s time on a weekend, which will be facilitated by the mother collecting X from A Store, Suburb B, and if the father moves from the Suburb B precinct then a public venue mutually agreed to in writing;

   j)That when the mother is present the father will facilitate the changeover promptly and depart the venue promptly after changeover has occurred;

   k)That the mother and father shall keep the other party informed at all times of their current residential address, residential telephone number, mobile number and email address;

   l)That when X attains the age of four years – in 2020 – each party will ensure X has reasonable access to a telephone line and/or mobile telephone to enable X to have communication with the other parent. In the absence of agreement the parent with whom X is living during school holiday periods or a Saturday will facilitate X’s call to the other parent between 5.00PM and 6.00PM.

   m)That the mother and the father will ensure that the other parent:

   i)Is kept informed as soon as is reasonable of any medical problems suffered by X whilst X is in their care including but not limited to notifying the other parent by telephone within two hours of X’s admission to hospital;

   ii)Of any medication which has been prescribed or recommended by a medical practitioner for X; and

   iii)Is kept informed of X’s progress and development during periods of time X is in their care and in particular in relation to X’s sleeping difficulties;

   n)If the mother and the father are unable to agree on the medical or allied professional required to treat X from time to time, the mother will provide to the father three names and their qualifications (‘the list’) and the father, within 21 days of receipt of the list from the mother, will select one of the names from the list and inform the mother of that selection;

   o)That the father and the mother are each restrained from:

   i)Denigrating or criticising the other parent and/or members of their respective extended family to and/or in the presence of and/or within the hearing of X;

   ii)Discussing any aspect of these proceedings to and/or in the presence and/or within the hearing of X; and

   iii)Causing or permitting third parties to denigrate or criticise the other parent and/or members of their respective extended family to and/or in the presence of and/or within the hearing of X.

The evidence

1. I have carefully read and considered the evidence relied upon by the parties and in particular the affidavits of the parties and their supporting witnesses.

2. Remarkably, the affidavit of the father and the affidavit of the mother relied upon at the part heard final hearing and therefor also on interim hearing each contained 53 pages of text.

3. I have carefully read and considered the Family Report dated 9 December 2019 prepared by Dr D.

4. I do not deal with the question of the recordings made by the father of changeover occasions, and the printed transcript of those recorded occasions and other occasions not provided by way of this sound recording, sought to be tendered by the father into evidence. Even if admitted, that material would not assist me in determining what orders are proper to be made for the interim parenting arrangements, with the best interests of X as the paramount consideration.

5. At the interim hearing the father was 36 years of age and working five days a week, 9.00AM to 5.00PM, in the Sydney CBD as a professional for Employer N.[3] He lives in his own unit at Suburb B where he has a separate bedroom set up for accommodation of X when he stays overnight.

   [3] Affidavit of Mr Beau, sworn 18 November 2019, [5].

6. The father has re-partnered with Ms E and indicated in evidence that it was his intention to commence cohabitation with Ms E in about April 2020.[4] Ms E has a son, O, four years of age, who lives with her and also spends time with his father.

   [4] Affidavit of Mr Beau, sworn 18 November 2019, [363].

7. The mother was 40 years of age at the time of the interim hearing and employed as a professional.[5] She lives with her parents and X in her parents’ home at Suburb P in the Region Q of Sydney.

   [5] Affidavit of Ms Saiger, sworn 15 November 2019, [2].

8. The parties met and commenced their cohabitation in about mid-2014, married in 2014, separated on 24 December 2016 with their divorce becoming final on 26 July 2018.

9. The father gives evidence of occasions when he asserts he was the victim of family violence perpetrated by the mother. He says that in late 2014 the mother slapped his face and pushed him.[6] The mother denies this allegation, but does recount an event where she accidentally clipped his face with her fingertip whilst pushing aside the finger that he was pointing at her.[7] The father says that on 15 December 2016 – some nine days prior to the parties’ separation – the mother slapped him, pushed him and scratched him.[8] The mother denies the allegation.

   [6] Affidavit of Mr Beau, sworn 18 November 2019, [5].

   [7] Affidavit of Ms Saiger, sworn 15 November 2019, [32.1].

   [8] Affidavit of Mr Beau, sworn 18 November 2019, [28].

10. The mother says that she was the victim of family violence perpetrated against her by the father, in that, on 10 December 2016 he grabbed her wrist and pulled on her arm whilst holding her wrist.[9] The father does not address this specific occasion.

    [9] Affidavit of Ms Saiger, sworn 15 November 2019, [21.6].

11. The mother asserts that the father regularly drank to excess during their cohabitation, which the father denies.[10] The mother asserts that the father regularly verbally abused her during their cohabitation, which the father denies.[11]

    [10] Affidavit of Ms Saiger, sworn 15 November 2019, [32.23].

    [11] Affidavit of Ms Saiger, sworn 15 November 2019, [32.23].

12. The mother describes an occasion when she asserts the father caused a glass crystal decanter to smash on the floor with particles coming near the mother.[12] She does not know if the crystal decanter crashing to the floor was the deliberate act of the father or an accident, as he asserted. The father says the smashing of the crystal decanter was accidental.[13]

    [12] Affidavit of Ms Saiger, sworn 15 November 2019, [21.10].

    [13] Affidavit of Mr Beau, sworn 18 November 2019, [30(b)].

13. Following X’s birth in 2016, which on the evidence of both parties was difficult and even traumatic for the mother, the mother took six months maternity leave and the father took two weeks paternity leave. The father deposes that he wished he could have taken more leave, but was unable to due to a then recent job change.

14. The father says that he was involved in the day to day care for X, including assisting with attending to all of X’s needs when he was not away from home and/or engaged in his employment.[14] The mother denies the level of involvement asserted by the father and says that the father had limited involvement in X’s care up to the time of separation, despite the mother’s repeated requests that he involve himself more fully with the child’s care.[15]

    [14] Affidavit of Mr Beau, sworn 18 November 2019, [50].

    [15] Affidavit of Ms Saiger, sworn 15 November 2019, [12].

15. The father asserts that there were a number of occasions when he had X in his sole care for periods of up to “a few hours”[16] prior to separation, but the mother deposes that the maximum amount of time that the father provided care for X alone up to separation was 30 minutes.[17]

    [16] Affidavit of Mr Beau, sworn 18 November 2019, [61].

    [17] Affidavit of Ms Saiger, sworn 15 November 2019, [18].

16. The parties separated on 24 December 2016. From 30 December 2016 until about 6 January 2017 the father spent time with X from 6.00PM to 7.00PM each night. From about 6 January to 17 January 2017 the father did not spend any time with X as no mutually agreed arrangement was made between the parents. Then, from 17 January until the first set of interim orders were made on 31 March 2017, the father spent time with X each Tuesday and Thursday from 6.00AM to 6.30PM and from 10.00AM until 11.00AM each alternate Saturday.

17. From the time of the first set of interim orders, on 31 March 2017, the father has spent time with X in accordance with the relevant prevailing interim orders, the current regime being pursuant to the orders made by consent on 4 July 2019. Changeovers on Wednesdays and at the start of the father’s time each alternate Friday and each alternate Saturday have been by the father collecting X from the mother’s home, often with such changeovers undertaken by the maternal grandfather and/or more lately the maternal grandmother on behalf of the mother. The changeovers at the end of time have been at McDonald’s Family Restaurant at Suburb B.

18. The father deposes that the time that he spends with X each Wednesday is enjoyable, but he faces the ongoing difficulty of where to take X and what to do in such a relatively short amount of time.[18] The father complains that the time available is not sufficient to enable him to travel from changeover at the mother’s home at Suburb P to his home at Suburb B, and then back again to the mother’s home at Suburb P to effect changeover.

    [18] Affidavit of Mr Beau, sworn 18 November 2019, [332].

19. In his Notice of Risk filed 19 December 2017, and in the evidence relied upon by him at the interim hearing, the father does not assert any risk to X, other than any detrimental effect of what the father asserts is a failure on the part of the mother and the maternal grandparents to encourage and foster the relationship between the father and X.[19]

    [19] Notice of Risk filed by Mr Beau on 19 December 2017, p 4.

20. The mother in her Notice of Risk filed 29 January 2018 asserted that there was at that time no risk to X.[20] In her trial affidavit she gives detailed evidence of sleep disturbance problems being experienced by X, which the mother links to X spending time with his father and in particular overnight time.[21] The mother also asserts that the father demonstrates an inadequate response to concerns relating to X’s sleep disturbances.[22] I have read and considered that material carefully.

    [20] Notice of Risk filed by Ms Saiger filed 29 July 2018.

    [21]Affidavit of Ms Saiger, sworn 15 November 2019, [65]-[80].

    [22] Affidavit of Ms Saiger, sworn 15 November 2019, [93]-[103].

21. Despite those concerns, the mother also deposes in paragraph 58 of her affidavit that:

    I have observed Mr Beau and X have developed their bond since separation. I appreciate this has been difficult for Mr Beau given X’s age at separation and his primary attachment to me.[23]

    [23] Affidavit of Ms Saiger, sworn 15 November 2019, [58].

22. At paragraph 59 of her affidavit the mother says:

    X knows and recognises Mr Beau as his “daddy”. Despite the issues we are experiencing with X and his adjustment to the change and transition to overnight, I know that X loves Mr Beau and their time together.[24]

    [24] Affidavit of Ms Saiger, sworn 15 November 2019, [59].

The Family Report

1. The Family Report dated 9 December 2019 prepared by Dr D was released to the parties on 10 December 2019 and accordingly was available to them to consider prior to the hearing on 17 December 2019. Learned Senior Counsel for the father and learned counsel for the mother both made extensive reference to the content of the Family Report in submissions in the interim hearing.

2. The Family Report is based on Dr D’s reading of the documents, which are listed in the report, and her interviews and observations conducted on 28 and 29 October 2019. Her report is as yet untested by cross-examination. That circumstance dictates that a Court, as outlined by the Full Court in Hannigan v Sorraw,[25] should take care in the reliance placed upon recommendations made in an expert’s report at the interim hearing level. The discussion in Hannigan v Sorraw is in step with the Full Court’s decision in Friscioni v Friscioni[26], with both respective Full Courts referring to the decision in Hall v Hall[27] where the Full Court said, in addition to the oft-cited statement “There is no magic in a Family Report.”,[28] that:

   … the counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test and get the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.[29]

   [25] Hannigan v Sorraw [2010] FamCAFC 257.

   [26] Friscioni v Friscioni [2010] FamCAFC 108.

   [27] Hall v Hall [1979] FamCA 73.

   [28] Hall v Hall [1979] FamCA 73, [24].

   [29] Hall v Hall [1979] FamCA 73, [24].

3. Therefore, with that limitation on the weight to be attached to the Family Report on the interim basis in mind, I note the following passages from the report:

   a)At paragraph 108:

   At this stage of his development, X needs to have confidence that his parents are in charge and will make responsible child-focused decisions on his behalf. Unfortunately, X has not thus far seen too much evidence of his parents behaving in such a way and, even on the day of the assessment, they were initially unable to address each other notwithstanding that they have been in a lengthy engagement with family therapy. X’s experience is that he has been at the centre of a hostile power struggle which has been unrelenting. It is likely that X is sensing the antipathy that exists in both families towards the other to his emotional detrimental.[30]

   [30] Family Report prepared by Dr D, dated 9 December 2019, [108].

   One wonders if this is a factor in X’s sleep disturbance issues.

   b)At paragraph 115:

   X currently lives with his mother. Ms Saiger has been the primary caregiver since his birth. X is therefore likely to be distressed if he is separated from her for a considerable period of time. Both parties have acknowledged the importance of maintaining stability and security for X and that upsetting his routine in a major way is likely to result in behavioural and emotional dysregulation as X is still learning the skills of how to self-regulate his distress. Therefore, it is imperative for his emotional and psychological development that the time X spends with his father is increased in an age-appropriate way and that the introduction of further overnight time occurs gradually, as otherwise it may manifest in regressive behaviour.[31]

   [31] Family Report prepared by Dr D, dated 9 December 2019, [115].

   The current interim orders, which provide for X to have one overnight occasion with his father each fortnight, have been in place since 4 July 2019 and were made by consent between the parties. At the time of the interim hearing they had been in place for just short of six months. At the time of preparation of these reasons they have been in place for 11 months.

   c)At paragraph 116:

   In terms of this family moving forward, X has reached an age where he has mastered the developmental indices which are fundamental for him to be able to manage regular time away from his mother overnight. These indices include, firstly, that he would be able, in part, to emotionally self-regulate and calm himself when he becomes stressed or upset and that he would be able to use [the father] as a soothing source; secondly that he will be able to imagine [the mother] even when she is not present; thirdly that he will have the language skills to understand what is being said to him; fourthly that he will be able to anticipate events beyond the here and now and understand, for example, what tomorrow means; and finally that he will have a rudimentary capacity to express his basic needs and feelings. Developmentally, these milestones are usually reached by the time a child is three years of age.[32]

   [32] Family Report prepared by Dr D, dated 9 December 2019, [116].

   d)At paragraph 117:

   The ease with which X will adjust to changes and the introduction of more overnight time and block periods is likely to be tempered by the reactions of the adults. He will almost certainly identify with any anxiety expressed by either parent. [33]

   e)At paragraph 124:

   The future for X would be markedly improved if the parties could demonstrate a capacity to work collaboratively by helping him invest his energies into achieving the milestones congruent with his current stage of development. These include reinforcement for taking initiative and being given the freedom to play, to ask questions, to use imagination and to choose activities that are challenging and interesting. Developmentally, it will be in the context of play that X will develop social skills such as sharing and collaborating which are important as he prepares to start school. [34]

   f)At paragraph 129:

   Both of the parties are unfortunately enmeshed with their positions and how they perceive the other which, to a large extent, reflect unresolved acrimony from their marriage. Their parenting responsiveness is marred by the hostility between them and the largely distorted narratives which each of them uses to describe the other, in a nutshell, that (the mother) is gatekeeping, uncooperative and inflexible and that (the father) oversteps realistic expectations, is overly demanding and is insensitive to X’s developmental level. These attributions are highly damaging and are being reinforced by post-separation behaviour. The investment of emotional resources into maintaining these positions only serves to maintain the dysfunctional narratives, fuels the conflict and impedes the parties from focusing on the more important concern of collaboratively making decisions for X and meeting his needs.[35]

   [33] Family Report prepared by Dr D, dated 9 December 2019, [117].

   [34] Family Report prepared by Dr D, dated 9 December 2019, [124].

   [35] Family Report prepared by Dr D, dated 9 December 2019, [129].

4. In the recommendations at the end of the Family Report, Dr D says:

   a)At paragraph 155:

   It is recommended that X spend time with his father weekly. It is recommended that he commence spending two evenings per overnight time with (his father) preferably one evening per week. It is recommended that the number of overnights per fortnight be increased by one in six-monthly increments. [36]

   b)At paragraph 156:

   It is also recommended that some short block periods during school holidays be introduced so that X begins spending three evenings per fortnight with his father during school holidays in 2020 … [37]

   c)At paragraph 160:

   It is recommended that changeovers occur in a neutral place such as X’s preschool in 2020 or otherwise a public place or the parties’ homes. [38]

   [36] Family Report prepared by Dr D, dated 9 December 2019, [155].

   [37] Family Report prepared by Dr D, dated 9 December 2019, [156].

   [38] Family Report prepared by Dr D, dated 9 December 2019, [160].

The law

1. In parenting proceedings under the Act, the Court is required to follow the legislative pathway set down in the Act. That applies to interim hearings on parenting issues.[39]

   [39] MRR & GR (2010) 240 CLR 461; Goode & Goode (2006) FLC 93-286; Marvel & Marvel (2010) 240 FLR 367.

2. The Court must give attention to section 60B of the Act that sets out the objects of Part IV of the Act relating to children. Those objects inform the making of parenting orders.[40] That section also contains the principles behind those objects. In this matter I have considered those objects and the principles behind those objects.

   [40] Family Law Act 1975 (Cth) s 60B.

3. Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration. The child’s interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter, but the child’s interests must always be the paramount consideration.

4. In parenting proceedings, pursuant to section 65D of the Act, the Court may, subject to the presumption of equal shared parental responsibility in section 61DA and consideration of parenting plans under section 65DAB, make such parenting order as it thinks proper.[41] The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[42]

   [41] Family Law Act 1975 (Cth) s 65D(1).

   [42] Family Law Act 1975 (Cth) s 65D(2).

5. In determining what is in a child’s best interest, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC and make findings. [43]

   [43] Family Law Act 1975 (Cth) s 60CC.

6. Section 61DA provides that 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.[44]T

   [44] Family Law Act 1975 (Cth) s 61DA.

7. The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse. The presumption, when applying, may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[45]

   [45] Family Law Act 1975 (Cth) s 60B.

8. When the Court is considering parenting matters on the interim basis the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making the order.

9. If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then pursuant to section 65DAA, the Court must consider:

   a)Whether the child spending equal time with each parent would be in the best interest of the child;[46] and

   b)Whether the child spending equal time with each of the parents is reasonably practicable.[47]

   If both questions are answered ‘yes’, the Court must consider making an order to provide for the child to spend equal time with each of the parents.[48]

   [46] Family Law Act 1975 (Cth) s 65DAA(1)(a).

   [47] Family Law Act 1975 (Cth) s 65DAA(1)(b).

   [48] Family Law Act 1975 (Cth) s 65DAA(1)(c).

10. As to what is ‘proper’ and how the Court’s discretion is to be exercised I note the comments of the Full Court of the Family Court of Australia in the recent decision of Grella & Jamison:[49]

    A discretionary judgment concerning the parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition. [50]

    [49] Grella & Jamison [2017] FamCAFC 21.

    [50] Grella & Jamison [2017] FamCAFC 21, [18].

1. There is much jurisprudence on the issue of risk in parenting proceedings. The jurisprudence may be simplified by saying that the task of the Court where risks are asserted is not necessarily to make a finding as to whether the actions and events asserted have actually happened or have definitely not happened, as such a finding is rarely open to the Court on the evidence and most particularly in interim parenting proceedings replete with contested evidence.

2. Rather, the task of the Court is to assess whether the evidence establishes that there is a risk to the best interests of the child. If the evidence establishes that there is such a risk, briefly expressed, the Court must:

   a)Assess whether that risk is an acceptable risk or an unacceptable risk;

   b)If it is assessed that it is an unacceptable risk, assess whether or not the risk can be mitigated by appropriate orders; and

   c)Decide what orders are proper in all the circumstances in the best interests of the child.

3. Detailed exposition of the treatment of risk in parenting matters can be found in the decision of the High Court in M & M[51] and the decisions of the Full Court of the Family Court of Australia in A & A & The Child Representative[52]; Napier & Hepburn[53]; Johnson & Page[54]; Deiter & Deiter[55]; and Eaby & Speelman[56].

   [51] M & M (1988) FLC 91-973.

   [52] A & A & The Child Representative (1998) 22 FamLR 756, [3.23] to [3.25].

   [53] Napier & Hepburn (2006) FLC 93-303.

   [54] Johnson & Page (2007) FLC 93-344.

   [55] Deiter & Deiter [2011] FamCAFC 82, [61].

   [56] Eaby & Speelman (2015) FLC 93‑654.

4. Where there is contested evidence in an interim hearing the Court is not always able to make a finding, but must do what can be done on the basis of agreed facts and any contested evidence where there is sufficient corroboration on one side to enable a finding. This is to enable the Court to perform the function of the Court and resolve any interim issues with the best interests of the child as the paramount consideration, and make whatever orders are then considered proper.

5. In SS & AH,[57] in the context of discussing the obligations of the Court whilst conducting interim children’s proceedings where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned, the Court observed:

   … 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.[58]

   [57] SS & AH [2010] FamCAFC 13 (Boland, Thackray, and O’Ryan JJ).

   [58] SS & AH [2010] FamCAFC 13, [100].

6. As noted by the Full Court of the Family Court of Australia in Eaby & Speelman,[59] 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.”

   [59] Eaby & Speelman [2015] FamCAFC 104 (Thackray, Ryan, and Forrest JJ).

Section 60CC – the primary considerations

1. The primary considerations are the benefit to X of having a meaningful relationship with both of his parents and any need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[60] Subsection (2A) mandates that the Court is to give greater weight to the consideration of any need to protect X over the benefit to X of having a meaningful relationship with both of his parents.[61]

   [60] Family Law Act 1975 (Cth) s 60(CC)(2).

   [61] Family Law Act 1975 (Cth) s 60(CC)(2A).

2. I find that the evidence by each party asserting that the other party perpetrated physical family violence does not, each assertion taken at its height, present any risk to X.

3. The interim orders sought by each of the parties carry the necessary implication that neither party is asserting any physical risk to X. The only risk elements being asserted by the father are that the relationship between X and the father will be retarded or damaged by influence brought to bear on X by the mother and the maternal grandparents.[62] The risk elements asserted by the mother are that proceeding at too quick a pace with expanding the overnight time that X spends with his father will be psychologically detrimental to X in that it will aggravate his sleep disturbance.[63] The mother further asserts that this risk is exacerbated by what the mother contends is the father’s refusal to accept the extent and gravity of that problem.[64]

   [62] Notice of Risk filed by Mr Beau on 19 December 2017, p 4.

   [63] Affidavit of Ms Saiger, sworn 15 November 2019, [135]-[142].

   [64] Affidavit of Ms Saiger, sworn 15 November 2019, [93]-[103].

4. I find on all of the evidence, including taking the mother’s evidence in relation to X’s sleep disturbance at its height, that there is no risk to X in making interim orders that increase, by an age-appropriate step, the overnight time that X spends with his father pending the final hearing in December 2020.

5. Though the primary consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents requires that the Court assess that consideration in determining what is in X’s best interests on the basis of the evidence and the parties’ arguments, it is often, as it is in this case, an easy step. That is because on all of the evidence it is beyond contention that X has a meaningful, a close, and a loving relationship with his mother and that he has a meaningful, a close, and a loving relationship with his father. The Family Report writer also came to this conclusion:

   The observations conducted for this assessment would suggest that X has a warm and loving relationship with both parents. He sought each of parents out for proximity and comfort, and both parents were a source of emotional nurturance to him. These are indicators of secure attachment behaviours.[65]

   That is not to say that the nature and quality of each of those meaningful relationships, those close and loving relationships, are equal. It is impossible to embark upon that sort of qualitative assessment on the interim basis, even with the assistance of the Family Report, but such an exercise is not necessary.

   [65] Family Report prepared by Dr D, dated 9 December 2019, [104].

6. Having found, as I do, that X does have a meaningful relationship with each of his parents I also find that there is benefit, immense benefit, to X in maintaining and continuing to develop his meaningful relationship with both of his parents. Developing that relationship with his mother is a day-to-day element of his life. He lives with his mother.

7. Developing the meaningful relationship with his father has been, since the parties separated, and as the mother to her considerable credit recognises and acknowledges in paragraph 58 of her affidavit, difficult only because of the amount of time that has been available to X and his father to obtain and develop that meaningful relationship. X was one week short of six months of age when his parents separated, and the time spent between father and child was limited due to age-appropriate considerations on the one hand and, the father asserts, other factors going to the amount of time the mother would allow on the other.

8. As Dr D recommends, it is appropriate to increase the amount of time spent between father and child, including overnight time, by age appropriate steps. I find that the lack of any risk element and the benefit to X of having a meaningful relationship with both parents tends in favour of an increase at this interim stage in the amount of time, including overnight time, spent by X in the care of his father, as being in X’s best interests.

Section 60CC – judicial considerations

1. X was three years and four months of age at the time of the interim hearing, and as Dr D says in paragraph 109 of the Family Report:

   Given his age, it is inappropriate for weight to be placed on any views X expresses about his relationships with both parents and significant others.[66]

   [66] Family Report prepared by Dr D, dated 9 December 2019, [109].

2. It is helpful at this point to read the further comments made by Dr D in that paragraph:

   However, both parties seem to be factoring the views and disclosures X has made to them into their assessment of what is happening in the other household. …X is nowhere near developmentally mature enough to be making decisions or voicing opinions in respect of his living preferences or spend-time-with arrangements, notwithstanding that the parties believe his well-developed language abilities for his chronological age.[67]

   [67] Family Report prepared by Dr D, dated 9 December 2019, [109].

3. Each of X’s parents has fulfilled their obligation to maintain X so far as that obligation is an obligation at law.[68] The father pays child support as assessed, and there is no complaint in the evidence by the mother of failure to pay or accumulation of arrears. The mother does complain that the father’s financial support for X is confined to the amount assessed under the relevant child support legislation and complains of a crediting arrangement by the child support agency in early 2017, which resulted in her not receiving any actual child support payments for a period of four months. That is a matter that may be further developed in a final hearing. However, at this interim stage I find that it is not a matter that has bearing upon the determination of what parenting orders are proper to be made in X’s best interest.

   [68] Family Law Act 1975 (Cth) s 60CC(3)(ca).

4. Patently, all of X’s financial support that is not met by the child support payments made by the father are met by the mother with the assistance of the maternal grandparents with whom mother and child leave.

5. Is there likely to be any effect on X caused by a change in his circumstances such as a separation from either of his parents or from his maternal grandparents with whom he lives?[69]

   [69] Family Law Act 1975 (Cth) s 60CC(3)(d).

6. I have referred already to the comments of Dr D in paragraphs 115 and 116 of the Family Report where she addresses the likely effect on X of being separated “for a considerable period of time”[70] from his mother, opining that such would be likely to cause X distress. However, the introduction of further overnight time between X and his father at this stage by a graduation to a double overnight time in one week and one overnight in the other week would not, I find, be a separation of X from his mother “for a considerable period of time”[71] such as to cause him distress. Further I find that if X does have any distress at the separation from his mother for a period of two concurrent nights then it is a matter for the father to parent X and ease his distress. That is by no means a finding that X will encounter distress, but merely a finding that such distress can be dealt with by the father if it occurs.

   [70] Family Report prepared by Dr D, dated 9 December 2019, [115]-[116].

   [71] Family Report prepared by Dr D, dated 9 December 2019, [115]-[116].

7. The likely effect on X of additional separation from his maternal grandparents will not cause X any detrimental effect given that the separation will be for the purpose of X spending additional time with his father.

8. There is an element of practical difficulty in relation to the time that X currently spends with his father under the interim orders made on 7 July 2019 on Wednesday evening from 4.00PM to 6.30PM.[72] That difficulty is, with the mother residing at Suburb P and the father residing at Suburb B it is impractical for the father to collect X and return to his place of residence for any amount of time and then return X to the mother’s home, all in the space of two-and-a-half hours.

   [72] Family Law Act 1975 (Cth) s 60CC(3)(e).

9. X is not yet at school, and he is unlikely to start school attendance before 2022. It is likely that X will begin some preschool attendance, but I have no evidence in relation to that. I have found that it is in X’s best interest to increase the amount of time he spends with his father including the overnight time. I find that increasing the time X spends with his father on the alternate week mid-week occasion of Wednesday is appropriate, and in X’s best interest on the interim basis, subject to the father’s ability to return X to either his mother’s place of residence or his preschool, wherever that may end up being, on the Thursday morning. The father himself proposes orders that involve him spending time with X from 4.30PM on Wednesday until 8.30AM on Thursday each alternate week, and I take it from that that such an arrangement is practical.

10. I have read and carefully considered all of the evidence contained in the mother’s case at the interim hearing that questions the father’s parenting capacity.[73] The mother begins by grounding her questioning of the father’s parenting capacity in her assertion that he took very little interest in and no active part in the care of X between the time of his birth and the parties’ separation when X was just short of six months of age. The mother goes on to provide extensive detail over much of the 53 pages of sworn text in her affidavit that expressly or impliedly questions the father’s parenting capacity. I find after the careful consideration of that evidence that the father’s parenting capacity is adequate to enable him to provide for X’s needs, including X’s emotional and intellectual needs, his day-to-day care needs including giving appropriate attention to any specific food and nutrition requirements, and give appropriate attention to X’s need for security and sleep.

    [73] Family Law Act 1975 (Cth) s 60CC(3)(f).

11. I find on all of the evidence that the mother certainly has the capacity to provide for all of X’s needs including his emotional and intellectual needs. Particularly if she complies with the orders sought, and which I will make on the interim basis, restraining the parties from any conduct derogatory of the other parent in the presence or hearing of X, or allowing such conduct by any other person in X’s presence or hearing so that it would influence X.

12. Much of the contested evidence in the interim hearing affects the consideration of each of the parents’ attitude to X and to the responsibilities of parenthood demonstrated by each.[74] That is a matter that must be teased out and tested by cross-examination at a final hearing. I find that on the interim basis it is not a consideration that inhibits me from increasing the time to be spent between X and his father, including overnight time pending the final hearing.

    [74] Family Law Act 1975 (Cth) s 60CC(3)(i).

13. I have made comments earlier in these reasons about the assertions of family violence made by each of the parents against the other.[75] I find that those assertions of family violence do not weigh against an increase in the time spent between X and his father on the interim basis.

    [75] Family Law Act 1975 (Cth) s 60CC(3)(j).

14. Overall, having reviewed the relevant considerations, primary and additional, in section 60CC I find that it is appropriate to make further interim orders that increase the time to be spent between X and his father. What those orders will be will be further developed below in my consideration of parental responsibility and the matters referred to in section 65DAA.

Parental responsibility

1. The father proposes an interim order that the parties have equal shared parental responsibility for X. The mother proposed a final order when approaching the final hearing in December 2019, and maintains her proposal for an order on the interim basis, that the parents have equal shared parental responsibility for X.

2. Some doubt is cast on the parents’ capacity to properly discharge the obligations imposed upon them by the legislation in circumstances where they have equal shared parental responsibility for X. An order that the parties have equal shared parental responsibility for X was made following interim hearing by Judge Harper (as his Honour then was) on 31 January 2018 and was pointedly not discharged by the consent orders made on 4 July 2019, when other parenting orders made on 31 January 2018 were discharged by consent. That interim order endures to the present time.

3. As I am making parenting orders for X as a result of the interim hearing I must give attention to section 61DA of the Act and the presumption that it is in the best interests of X for his parents to have equal shared parental responsibility for him.

4. Each of the parents gives evidence of family violence having been perpetrated in the relationship by the other parent. As I have outlined above, that evidence is conflicting and contested. I find that at the present time there are not reasonable grounds to believe that a parent of X has engaged in family violence, that issue falls to be dealt with and determined in the final hearing. Accordingly, I find that the presumption in section 61DA of the Act does apply, and I will leave the interim order made 31 January 2018 for the parents to have equal shared parental responsibility for X undisturbed.

Section 65DAA – the Court to consider equal time or substantial and significant time

1. There is a parenting order that provides for X’s parents to have equal shared parental responsibility for him. That is the order made by his Honour Judge Harper (as his Honour then was) following an interim hearing, on 31 January 2018. Accordingly, I must give attention to section 65DAA of the Act which applies not only if a court is making an order for equal shared parental responsibility in the proceedings giving rise to reasons for judgment, but applies if there is an order that so provides.

2. Is X spending equal time with each of his parents in his best interest and is such an order reasonably practicable?[76] If I find that equal time with each of his parents is in X’s best interests and is reasonably practicable I must then consider making an order that provides for X to spend equal time with each of his parents.[77]

   [76] Family Law Act 1975 (Cth) s 65DAA(1)(a)-(b).

   [77] Family Law Act 1975 (Cth) s 65DAA(1)(c).

3. Neither of the parties, and pointedly the father, seeks an order that X spend equal time with each of his parents on this interim basis. Taking into account and considering the whole of the evidence presented by each of the parties’ interim cases and the whole of the Family Report prepared by Dr D and particularly paragraph 115 thereof, I find that it is not currently in X’s best interests to spend equal time with each of his parents. That finding and my use of the word ‘currently’ carries with it no implication whatsoever that ‘currently’ will go on for any specific period of time or that it may at some time in the future become appropriate. That is an issue to be determined in the final hearing on the full evidence. My reference is to the current circumstance only.

4. I do not have sufficient evidence to decide if it is currently reasonably practicable for X to spend equal time with each of his parents in terms of any actual proposed attendance at day care or preschool, but on the other hand there is nothing that would lead me to find that it is not currently reasonably practicable.

5. In any event, as I have found that it is not currently in X’s best interests to spend equal time with each of his parents, though it may be reasonably practicable, I do no go on to consider making any such order.

6. Is it in X’s best interests to spend substantial and significant time with each of his parents, and is it reasonably practicable for X to spend substantial and significant time with each of his parents?[78]

   [78] Family Law Act 1975 (Cth) s 65DAA(2)(a)-(e).

7. The time that is proposed by each of the parents for the father’s time with X between interim hearing and the final hearing set for December 2020 does not amount to substantial and significant time within the meaning of that phrase set out in section 65DAA(3). Though the proposal put by the father would include the whole of Saturday each alternate week, the mid-week time involves an evening from 4.30PM and a morning up to 8.30AM over Wednesday to Thursday each alternate week. Neither party seeks orders for substantial and significant time for X with each of his parents.

1. Once again, on the basis of all of the evidence at the interim hearing and given X’s current age, stage of development and the wisdom, as asserted by Dr D, of proceeding with any time increases by stages in an age appropriate manner, I find that substantial and significant time with each of his parents is not currently in X’s best interest. For clarity I will repeat that my use of the word ‘currently’ is confined to my finding as things are at the time of the interim hearing, as set out in these reasons, and is not any indication for the future.

2. My comments and findings in relation to substantial and significant time for X with each of his parents being reasonably practicable, would reflect the comments and findings I made above in relation to spending equal time with each of his parents, and as such I will not repeat myself.  

3. As I have found that it is not currently in X’s best interest to spend substantial and significant time with each of his parents, I will not consider making such an order.

4. Having found that neither equal time with each of his parents nor substantial and significant time with each of his parents is in X’s best interests, I must decide what parenting order is proper with X’s best interests as the paramount consideration [79]

   [79] Family Law Act 1975 (Cth) ss. 60CA, 65AA.

5. The mother proposes, and therefore considers appropriate in X’s best interest, orders that at a point six months from the interim hearing the father’s time with X be:

   a)Each alternate Wednesday from 3.00PM to 6.30PM (an increase of one hour over the current interim orders); and

   b)From 5.00PM Friday to 5.00PM Sunday each alternate weekend – an increase from 5.00PM Friday to 12.00PM Saturday in the current orders, moving to two consecutive overnights each alternate weekend.

   The mother eliminates time between the father and X on the alternate Saturday.

6. The father proposes a first step of:

   a)Increasing his 5.00PM Friday to 12.00PM Saturday alternate weekend time to 4.30PM Friday to 5.00PM Sunday each alternate weekend; and

   b)Increasing his Wednesday evening time – 4.00PM to 6.30PM – to overnight from 4.30PM Wednesday to 8.30PM Thursday each alternate week.

7. He proposes a further step before the final hearing, in September 2020, by:

   a)Increasing the alternate weekend time from 5.00PM Sunday to 8.30AM Monday.

8. He also proposes that he has three consecutive nights, separate from his alternate weekend time, with X during the July and September school holidays.

9. The mother proposes that the father’s alternate weekend extend by one night until 5.00PM Monday in the September school holidays in 2020.

10. Accordingly, the mother considers that from a time, being about six months from the interim hearing, it is appropriate and in X’s best interest that the father’s time increase to back-to-back overnights – Friday to Sunday – and that by September 2020 it is appropriate for him to have three consecutive overnights on one occasion during school holidays.

11. I find that as X is not yet at school it is appropriate for his time with his father mid-week to extend from the two-and-a-half hours on Wednesday evening under the current orders to an overnight occasion from 4.30PM Wednesday till 8.30 AM on Thursday each alternate week.

12. I find that it is appropriate to increase the father’s time with X, being the current Friday to Saturday each alternate week, to Friday to Sunday each alternate week and then in September 2020 to increase that weekend time from Friday to Monday each alternate weekend. That being the case, I do not intend to make any special provision for three consecutive night occasions separate from the father’s alternate weekend time during school holidays in September or December 2020.

13. At the interim hearing on 17 December 2019 the parties entered into interim consent orders dealing with X’s time with his father on Father’s Day 2020, his time with his mother on Mother’s Day each year, and time for each parent with X on X’s birthday and over the Christmas period each year.

14. In relation to changeover I find that is appropriate for the father to collect X from his mother’s home at the start of his mid-week time and return him to his mother’s home at the end of his mid-week time, or if on either day X is attending preschool, day care or similar at the relevant times to collect him from and return him to preschool or day care.

15. I find that in relation to changeover for alternate weekend time between X and his father it is appropriate to make orders that the father collect X from his mother’s place of residence, or preschool or day care if applicable, at the start of his time on Friday and for the mother to collect X from the father at A Store at Suburb B at the end of his time when concluding on a Sunday. I find that it is appropriate for the father to return X to his mother’s place of residence, or preschool or day care if applicable, when that time ends on Monday morning.

16. I find that it is appropriate to make an order, as sought by each of the parties, that each party keep the other notified of their current residential address, telephone number on which they may be contacted and email address.

17. I find that it is not appropriate to make the order sought by the mother in relation to X being provided with access to a telephone from the age of four years to enable him to have contact with the other parent. Such an order being likely to cause X more distress than peace on the current state of things, and therefore not in his best interest at the current time.

18. I find that it is most appropriate to make orders restraining each of the parties from denigrating the other party, any member of the other party’s family or any member of the other party’s household in such a manner that the denigration comes to X’s attention. I will also make an order restraining the parties from allowing any denigration of the other parent, any member of the other parent’s family or any member of the other parent’s household by any third person to come to X’s attention.

19. I find that it is appropriate to make the order sought by the mother in relation to the parents keeping each other informed about medical matters affecting X but not to make the order sought by the mother providing a mechanism for selection of relevant “medical or allied professional required to treat X from time to time”[80] in the event of a failure of agreement between the parties.

    [80] Amended Response to Initiating Application filed by Ms Saiger, dated 23 October 2019, p 4, [16].

20. Accordingly, I make the interim orders as indicated in these reasons.

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Judge Morley

Associate:

Date: 10 June 2020