BELFORT & SEDITA
[2021] FCCA 558
•25 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BELFORT & SEDITA | [2021] FCCA 558 |
| Catchwords: FAMILY LAW – Recovery order – where parties separated for several years – where parenting plan put in place – where plan not formalised as Court order – where plan not registered – where child lives with mother and spends time with father – where each parent re-partners – where young adolescent child expresses clear view that, at present, he does not wish to live with mother – where father, acting protectively, arranges medical consultation – where general practitioner refers child to clinical psychologist – where psychologist records child’s present wishes – where parties agreed on family therapy and child inclusive conference – where means of re-establishing communication with mother explored – applicable principles – child to live with father until further order. |
| Legislation: Family Law Act 1975 (Cth) ss.4, 60CA, 60B, 60CA, 60CC, 63, 63C, 65D, 65DA, 67V |
| Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662 Banks & Banks [2015] FamCAFC 36 SS & AH [2010] FamCAFC 13 |
| Applicant: | MS BELFORT |
| Respondent: | MR SEDITA |
| File Number: | MLC 1671 of 2021 |
| Judgment of: | Judge A. Kelly |
| Hearing dates: | 17, 19 March 2021 |
| Date of Last Submission: | 19 March 2021 |
| Delivered at: | Melbourne |
| Delivered on: | 25 March 2021 |
REPRESENTATION
| Counsel for the Applicant: | Ms K. Paull |
| Solicitors for the Applicant: | Cahills |
| Counsel for the Respondents: | Mr D. Mort |
| Solicitors for the Respondents: | Hughes Legal |
ORDERS
Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth) and ss 102D-102E of the Family Court of Australia Act 1975 (Cth) (Act), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.
To the extent necessary, all times for service be abridged.
The applications made by paragraphs 2-3 of the Mother’s initiating application filed 8 February 2021 seeking by way of interim relief a recovery order for the delivery to her by the Father of the child X born in 2009 (the child), and an order that the child live with the Mother be refused.
Until further order, the child live with the Father and remain enrolled at the school that he is now attending.
Direct that a copy of this Order and these Reasons for Judgment be supplied to the child’s clinical psychologist, Dr B.
By consent, the Mother and Father and each of them whether by themselves, their servants or agents and howsoever otherwise forthwith engage with the child’s clinical psychologist, Dr B, with respect to the most appropriate arrangements for the child to reinstate his communication and spend time arrangements with his Mother, including overnight time.
By consent, the Mother and Father and each of them whether by themselves their servants or agents and howsoever otherwise take all steps and do all things as may be necessary to facilitate and cooperate in the implementation of the recommendations of Dr B to reinstate the child’s communication and spend time with his Mother.
Pursuant to s 11F of the Act, the Father and the Mother and the child attend upon Mr C on 8 April, 2021 for the purposes of a Child Inclusive Assessment with his Memorandum to be released to the parties, as soon as practicable upon completion.
Direct that, in the first instance, the costs of the s 11F conference be borne by the Father and be reserved for determination at trial.
Direct that the parties provide to Mr C copies of their initiating process and affidavits, a copy of this Order, these Reasons for Judgment and their respective proposals for interim parenting arrangements for the child.
Direct that upon receipt of Mr C’s report, the parties confer as to any further interim parenting orders which they consider to be appropriate and, within 21 days thereafter, file a joint minute of such proposed orders indicating where they agree or disagree.
By consent, pursuant to s 13C of the Act, order that the parties and child participate in non-reportable family therapy and that the costs of such therapy be borne by the parties equally.
Hearings
The proceeding be listed for mention at 10.00am on Thursday, 20 May 2021.
The matter be fixed for Final hearing at 10.00am on Wednesday, 8 December 2021 in the Federal Circuit Court of Australia at Melbourne before Judge A Kelly with an estimated hearing time of 1 day.
The following directions are made respecting discovery and use of documents at trial:
(a)no later than four months before the trial date, the parties are to confer and identify all documents upon which they propose to adduce in evidence at trial (Documents);
(b)no later than two months before the trial date, the applicant shall prepare, serve and file an indexed paginated folder of the Documents arranged in chronological order;
(c)no Documents (including any valuations, family report or other expert reports) are to be attached to any affidavit, but may only be referred to in an affidavit by page number and volume (if necessary), from the folder(s) of Documents;
(d)save with leave of the Court, no document identified pursuant to paragraph 15(a) of this Order may be relied upon or adduced in evidence at trial.
Each party be permitted to rely upon only one affidavit of evidence in chief for any witness including the applicant and respondent (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief) and further:
(a)the applicant electronically file and serve any affidavits to be relied upon at the final hearing not later than 28 days prior to the hearing;
(b)the respondent electronically file and serve any affidavits to be relied upon at the final hearing not later than 21 days prior to the hearing.
The evidence in chief of each party and any witness be by way of affidavit as provided by paragraphs 16 to 17 of this order.
Other than as provided in this Order, no party may file or rely upon any further evidence without leave of the Court.
Not later than one month prior to the final hearing all parties do electronically file and serve an Outline of Case Document (not exceeding 12 pages) including the following:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events;
(c)a list of the significant factual issues requiring determination;
(d)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child (s 60CC factors);
(e)a list of contentions relevant to the operation of s 65DAA;
(f)a list of any other contentions relevant to the decision; and
(g)the actual orders sought.
ICL Appointment
Pursuant to section 68L(2) of the Act, the child be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the parties make application to Victoria Legal Aid requesting that they make such arrangement as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:
(a)forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service;
(b)within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents;
(c)the Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published at
(
and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and
The Independent Children’s Lawyer prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she may recommend be made as final orders as soon as the Independent Children’s Lawyer is able to, and not less than 5 business days before the Final Hearing.
Direct that the parties may supply a copy of this order to a State Court.
Pursuant to section 68P of the Act, to the extent that any provisions of this Order may be inconsistent with any existing family violence order, the provisions of this order shall prevail.
Pursuant to sections 65DA(2) and 62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A.The mother has been encouraged to raise with Dr B that the child’s step-brother, Mr D, should be in substantial attendance on the occasions that the child is to spend time, including overnight time, with the mother.
B.The father has been encouraged to facilitate that the child should commence spending time with his mother without delay.
C.The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012 (Cth).
D.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties
E.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing
F.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
G.If s 102NA of the Act applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
IT IS NOTED that publication of this judgment under the pseudonym Belfort & Sedita is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1671 of 2020
| MS BELFORT |
Applicant
And
| MR SEDITA |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain my conclusions for making orders upon an interim application for a recovery order and ancillary relief respecting the child X born in 2009 (the child) who had until 31 January 2021 be in the primary care of the applicant mother, doing so pursuant to a parenting arrangement which, although contemplated by the parties, has not been embodied in Court orders.
The proceeding has had a most troubled recent history with an excessive number of affidavits filed within a very brief period and giving rise to a highly contested version of events. As the principles below confirm, Court must proceed on the basis that those contested versions will not be tested until trial and in the meantime the Court must determine on an interim basis what orders should be made in the child’s best interests.
Despite the near diametrically opposed versions of the parties’ sworn evidence, the Court gained the considerable assistance of a report from Dr B, the child’s clinical psychologist. In addition, the parties are agreed for the child to attend Mr C, family counsellor in the near future.
Background
The facts and circumstances set down below are drawn from the parties many affidavits (some of which the respondent father has not yet had an opportunity to respond to). For the avoidance of doubt, it is accepted that the accounts of the parties are frequently disputed by the other and that none of the matters so described represent concluded findings.
The parties cannot agree as to the commencement and cessation of their relationship. The mother contends it began in 2005 (the father contends they commenced living together in 2007), both possibly being so, and that they separated on 1 March 2012 (the father contends 2013).
The father stated that the parties’ relationship became increasingly verbally abusive and suggested that he had lost his employment on account of the high volume of abusive texts and messages which had been transmitted by the mother to a work phone (all of those messages going through to the CEO of the company). By the father’s account, the mother, who has a child from an earlier relationship, Mr D, was also angered by the attention which he gave to this child and recounted that he considered the mother had not been engaged with the child, the subject of this proceeding, in any active way.
The child is the only child of their relationship. The father provided an account of the child’s infancy suggesting that, at birth, the mother had rejected the child and on later occasions she had yelled at the father, only to take the child and barricade herself with the child in another room. The father expressed concern for the mother’s mental health and described the mother’s capacity for anger, including that she had thrown a knife at him causing him to bleed. He deposed that, on another occasion, he had been called by neighbours stating that the child had been observed behind the glass front door screaming and that he had rushed home to find the mother had left the child alone while she went out to buy cigarettes and milk. The mother vehemently denies these allegations.
The father recounted that the parties’ relationship deteriorated and that they made an informal oral agreement for equal shared care of the child operative on a week about basis. He deposed that he had paid child support and additional money for the care of the child.
The father gave accounts of difficulties in 2016 and 2017 where the child had encountered difficulty making communication with his mother whilst she had been on holiday with a new partner and that he observed her to be intoxicated. The father described her new partner, Mr E, to be likewise prone to drunkenness and acts of aggression including smashing his fist through a car window when being asked to leave a family Christmas function. Mr E, who filed an affidavit for this application, denied these allegations.
The father deposed that, without his consent, in June 2018, the mother had taken the child and relocated to City F from Melbourne. It appears the mother moved so as to reside with her current partner, Mr E. When the father attempted to see the child before this date, he engaged with police to attempt to gain access to his son in circumstances where the mother would not open the front door to allow the child to see the father before her departure. The father disclosed that he had sent a text expressed in terms which he agreed to be regrettable. In turn, the mother exhibited emails from mid-2018 making clear she had disclosed to the father her intention to relocate to City F.
The mother asserts that the father is aggressive and controlling and has threatened to keep the child to the point where police have become involved and family violence intervention applications have been made
Exhibited to the mother’s affidavit was a certified extract of a record from the Magistrates Court at City F indicating that on 29 March 2019, an application by the mother naming the child as an affected family member had been resolved on that date by the application being withdrawn with a right of reinstatement upon an undertaking being given by the respondent father. Other certified extracts included in the mother’s evidence suggests that the genesis of this or other proceedings could be traced to at least July 2018.
In one of her affidavits, the mother’s evidence was, in effect that she has had determined to reinstate her IVO applications as a means of protecting herself and the child from the alarming, erratic and unpredictable behaviour of the father. It is too early in the case to consider whether either party has abused the process of intervention proceedings.
The parties agreed that on 29 March 2019 they each signed a document entitled Mutual Undertakings expressed to have been made in the Magistrates Court of Victoria at City F which recorded their agreement as follows: the Mutual Undertakings were to formalise the parties child care and contact arrangements; the parties would have equal shared parental responsibility; the child would reside primarily with the mother; the father’s first contact with the child would be on 31 March 2019 (pick up at 11:00am and drop off at 4:00pm); the child would have overnight spend time with the father from 6:00pm on 12 April until 6:00pm on 24 April 2019; thereafter access for term holidays was agreed; weekend contact would begin on Friday, 26 April 2019 until Sunday, 28 April 2019 and continue fortnightly thereafter; reasonable contact by telephone, SMS, email would be allowed by each parent; each parent would undertake to make their best efforts to convert their Mutual Undertakings into Family Court Orders by 30 April 2019; arrangements were agreed for special time (Father’s Day); both parties agreed to notify the other of any medical emergency affecting the child; the parties were at liberty to receive information from the child’s doctors, psychologists and other medical practitioners or other matters affecting the child’s welfare; the parties would be at liberty to attend school and extra-curricular functions; each party would be listed as an emergency contact; changeover would occur at McDonald’s in Town G.
The parties did not convert their Mutual Undertakings into family court orders whether by 30 April 2019 or at all. The father deposed that the arrangements embodied in the Mutual Undertakings constituted a parenting plan; however, no further submissions were made on this issue or their legal effect.
The father contested the mother’s evidence that the child had spent time in accordance with the Mutual Undertakings and asserted that there had been no substantial departures from the arrangements embodied in that signed agreement. In particular, the father complained: (1) the child had not been dropped off on no less than nine occasions in the period February – December 2020; (2) the child had repeatedly been denied access to his father by way of mobile phone; (3) the mother had returned the child’s mobile phone; (4) the mother restricted the child’s access to the father’s email address so that he could neither send nor receive emails to that address; (5) the mother further restricted the child in taking to his father’s residence anything other than the clothes he was wearing.
As to the alleged failures, the father deposed as follows:
a)spend time: when he was sick the child had been employed as a conduit to inform his father by text rather than his mother informing the father accordingly. The father’s evidence was that, in fact the mother and her partner were not infrequently involved in heated arguments which had the consequence that, as Mr E had taken the parties’ car, the mother had no vehicle by which to drop off the child;
b)phone contact: the mother told the child that there was no need to call his father as he had recently seen him on the preceding weekend;
c)text messages: the mother had returned the mobile phone stating that the child did not need one;
d)email: access to the father’s email address had been restricted so that the child could neither send nor receive emails to that address;
e)clothing: the child was prevented from taking to his father’s residence anything other than the clothes that he was wearing.
The mother contests these allegations. She deposed that on the occasions the child did not spend time with his father and that this was due to the COVID-19 pandemic. She rejected the assertion that no vehicle was available to drive the child to changeover. She attributed to the father responsibility for supplying, but failing to supply, a mobile phone. She accused the father of manipulating the child, putting words in his mouth and of “feeding false information to [the child’s] medical practitioner.”
The mother further describes other aspects of the father’s affidavit (including the alleged knife attack), as fabricated and of advancing false allegations.
The mother resides in City F and the father in Suburb H.
On 29 January 2021, the child was dropped off at the Town J police station where he was collected by the father at about 6:00pm. Mr D filed an affidavit deposing that he had dropped the child off to changeover on this date and said that the child showed no signs of unusual behaviour but was his usual happy, laughing and joking self. Contrastingly, the deponent stated that “the only thing was X told me, ‘it’s a bad day, I have to go to dad’s’”. Mr D also deposed that “on previous occasions X has made comments to me about things are different over there”.
The father deposed that when he collected the child on this occasion he seemed happy to see his father but was “too quiet for my liking” and seemed unwilling to talk. He said that when he and the child were sitting on a couch on Sunday, 31 January 2021, at about 11:00am the child told his father that he did not wish to return to his mother and that “he started crying, begging me not to ring his mum to find out what happened.” The father’s affidavit provided a detailed account of the child’s distress including of crying and pulling at his hair and begging not to be taken back to the mother’s residence on the stated basis “I don’t want to be there anymore.”
The father deposed he had never seen the child to be in so distressed a state and recounted that the child disclosed, in effect, that over the preceding two years “He said he feels scared at his mums especially when his mum and her partner Mr E argue, and Mr E is drunk.”
The mother denies her new partner Mr E abuses alcohol and deposes that she does not drink.
The father’s affidavit provided particular detail of the conflictual nature of the mother’s residence including that. As the child contends: the mother and Mr E are always arguing and yelling; he is frightened of being around Mr E and his mum in case an argument starts; he is woken during the night from his mum and Mr E screaming; he gets scared when Mr E and his mum throw objects at each other; he is scared that the violence will get worse; he has nightmares; his brother leaves the household when the mother and Mr E argue leaving the child alone in the home. Although this is an abbreviated version of the events other matters include that the child “has stated that his mum has threatened to him that if he told anyone about the arguments and violence especially his dad, she would stop him from seeing him and make him go to jail”; and that “His mother has also stated he can no longer speak to his dad on the phone” and that “his mother told him three weeks before term one of school, he had to go on a diet to lose weight to fit into his school clothes [and that] she was not going to buy a larger size uniform”. The father observed the child is showing signs of anxiety, fear, and nervousness, expressing his desire not to return to the mother’s home particularly in light of the escalating violence over the preceding two years and that, for this reason, he had taken the child to a treating general practitioner who in turn had provided a referral on 2 February 2021 to the clinical psychologist, Dr B.
The child was due to be returned to the mother on 31 January 2021. On that date, at about 6:00pm, the father sent an email entitled Change of caring arrangements, advising that with immediate effect the child would remain in his care on a full-time basis, explaining his decision to do so on the basis that it was “due to high volume of family violence [to which the child] has been exposed in your care” and that the child was “too frightened to be in your care (mother… & partner Mr E).” The email further stated that the mother should not contact the father or child and that the child would be in contact with his mother “when he is comfortable to do so.” The mother deposed that the matters set out in this email were without foundation.
In one of her affidavits the mother answered the allegations in the father’s IVO application conceding that there were occasional loud conversations “as in every relationship”, but denied there was systemic verbal abuse. She denied absolutely that the child was exposed to objects being thrown in her house or that the child was neglected. She suggested that the child’s account of being sent to jail for making disclosures to the father was “completely fictitious” and said that she has spoken to the both the child and the father on many occasions “about discussing my private life. Nevertheless, the [father] has continued to interrogate and manipulate X about myself, Mr E and D.”
The child has spent no time with his mother since 29 January 2021 and has had limited communication with her since that date. He has also ceased attending his local primary school and has now been enrolled by the father in a new school. The mother deposes that the child enjoys great freedom and has a good rapport with his teachers in his class at his present school. She deposed that the child’s cousin attends the same school.
The father has enrolled the child at a local primary school and states that he is happy and supported. The child is now in year six. It may be noted that the child has access at his new school to a chaplain with whom he has been able to speak from time to time. It may also be noted that, at least for the present, Dr B considers the child’s ability to communicate with the school chaplain to be of particular benefit.
As noted, on about 2 February 2021, the father took the child to a medical practitioner who, on that date referred him to a clinical psychologist Dr B seeking six sessions of psychological support for the child. The referral identified the presenting problem as being that the parents had been separated for some eight years and while the child was in a shared care arrangement, the father was “taking over as primary custodian due to [the child] stating that he is exposed to high level domestic violence at his mother’s place – his mother and her partner – alcohol fuelled, according to [the child]. He is getting stressed out and preferring to stay with his Dad. Intervention order is being prepared by his Father – application already made.”
Although this report was an exhibit to the mother’s primary affidavit it was submitted that the first news which she had of the child seeing the clinical psychologist was in the course of a submission by the father’s counsel on 17 March 2021. The submission may have been intended to convey that the mother had not been aware until that date that the child was to see the psychologist on the afternoon of 17 March 2021. At all events, so much may have been evident from the fact that the referral was for at least six sessions with the psychologist. Having regard to those submissions, an available inference, which I am prepared to draw, is that the mother has not (until after the hearing on 17 March 2021) attempted to contact the psychologist at any point since 2 February 2021. To pass over this issue (and consistently with the terms of the Mutual Undertaking), the parties were agreed that the mother was free to contact the psychologist. In those circumstances, the Court suggested, and it was agreed, that it may be of assistance in the determination of the interim application to seek some information from Dr B.
On 3 February 2021, the mother’s lawyers made a demand for the father to return the child by Friday, 5 February 2021 and to which the father did not respond. It was common ground that the child has spent no time with the mother since 29 January 2021 and accepted that there has been some limited telephone communication.
The mother asserts that the father’s new partner is exerting influence in the situation with a view to becoming the child’s primary carer and questions the new partner’s suitability in circumstances where, as she asserts, “Ms K has been through her own custody matters and I have been advised that her children were removed from her care at one point in time.” She repeatedly denies consuming alcohol and says that the allegations of violence and abuse at her home are imaginative.
Mr D deposed that he lives with his mother and the child, the subject of this proceeding, and that they enjoyed spending a lot of time together. He made testimonial statements in support of his mother’s application describing the father as being aggressive, controlling and mentally abusive toward both the child and himself. The deponent, whose employment (and qualifications) were not disclosed went so far as to describe the father as being a compulsive liar with a narcissistic personality disorder. The deponent said that when he had been living with the father “I was scared of him as he would often get up in my face and manipulate me and interrogate me.” Mr D further deposed “I have heard on multiple occasions [the father] interrogating X over the phone – asking questions like, ‘don’t you want to see me?’ and ‘don’t you want to spend time with me?’” Mr D stated that on 4 December 2020, the child had fabricated an excuse to stay with his mother rather than going to his father and that this had gone on for a few weeks and that “Later, when X had to call the respondent in order to explain why he was not visiting, he was visibly distressed; X became hysterical at the thought of having to face up to his father.” By his account, when the child tells his father that he cannot be collected because there is no car available to deliver him to change over this is nothing more than the child employing “some kind of Secret Code” which he deploys as an excuse to avoid being with his father on a weekend.
In all of these conflictual circumstances, the parties were afforded an opportunity to place some evidence from Dr B before the Court.
On 18 March 2021, Dr B furnished a report to the Court directly, and a copy of that report was provided to the parties. While Dr B recognised the parties may wish to confer with her further in relation to the matter, she also drew attention to her own professional commitments and the difficulties which she would face in accommodating such requests.
I have examined Dr B’s report in detail. Dr B noted the history of the matter including the referral from the child’s treating general practitioner and that the matter had been referred to DFFH (by, I assume, the father, not the doctor). Dr B has now seen the child on three occasions, most recently on 17 March 2021 and has been clear in communicating to all adults that she regards her role as being essentially therapeutic rather than in making assessments, determinations and weighing up the claims and counterclaims of the parties. The Court records its gratitude to Dr B for the dedication and independence that she has shown in the matter.
Dr B, who reported that the child has a heightened awareness of the surrounding tension and dynamics of the present situation, has been concerned to facilitate complete privacy in her communications with the child including, in particular, from either the father or his new partner. Equally, the clinical psychologist was able to confirm that the child has not been canvassed or persuaded to a particular opinion.
The clinical psychologist initially observed the child to present as subdued and highly anxious and of being unable to assert himself. As time progressed, he was able to articulate the things which he liked and, more relevantly, of those which he did not, including of being afraid of “talking to mum”, not wanting to “touch the phone, Talking to Mr E.” She recorded that the child regarded his Safety Zones as being school and “home at night”. At present, I infer that his description of his sense of safety was given at a time (and he was referring to) the new school he was attending and to living in his father’s home.
Dr B regarded the child as being of about average intelligence with positive motivation both towards his schoolwork and sports. While generally holding a positive attitude towards life and people (“comments about teachers and fellow students were fair, balanced and optimistic”), he exhibited signs of stress and was assessed as being somewhat diffident and probably shy with his peers. On the second session, Dr B found the child to be noticeably bubblier and more positive in affect with an ability to regularly smile and show better eye contact and being more forthright in his speech. He was observed to share a joke with his father in the waiting area. The child identified his ability to see a school chaplain and said that he felt able to speak to her about different matters of concern or interest.
At this second session, the child spontaneously voiced that some things were now better for him whereas, by contrast, (at his mother’s home) in City F he had been anxious about whether there would be enough to eat at breakfast (or in his lunchbox) and that “at Dad’s house – Dinner happens regularly and it is proper food and everyone eats together.”
The child was even more relaxed at the third session where he was observed to be mildly cheeky in his dealings with his father in the waiting area.
The child recounted an episode of a panic attack whilst hiking and that his father and partner had taken him to a hospital.
Dr B reported that the child’s biggest worries were “Mum calling on the telephone; and, Mum messaging me.” The psychologist recorded the child’s repeated expression of anxiety about the texts and calls from his mother and of him having “made a disclosure about worrying arguments at his mother’s house” in which, on the child’s report his mother and Mr E would shout, yell and swear and argue with the result that he would simply “hide in his room”. The child expressed a worry that alcohol may have been involved.
Dr B considered the child to present as being slightly young for his age but otherwise affable, polite and well-intentioned and being “at pains to speak fairly about people” (which I infer as trying to be fair to both of his parents). The psychologist observed the child to have initially appeared as very anxious but, having relaxed over time, found he did not discern signs of depression, developmental damage or emerging personality or learning issues.
Dr B noted the forthcoming appointment with the family consultant, Mr C on 8 April 2021 and in those circumstances stated that she would prefer to step back from further sessions until after the child had had the benefit of his section 11F conference with Mr C.
In the interim, Dr B considered the child would best address any issues by maintaining contact with his school chaplain and emphasised that she had discussed with the child “that it is important for the children to be able to explain their feelings and answer questions without reference to adults’ needs, where specialists have a role in understanding a person’s situation.” I found this report to be of considerable assistance, particularly in light of the parties’ conflictual and diametrically opposed sworn evidence.
Procedural history
On 8 February 2021, the mother commenced a proceeding by an initiating application in the Magistrates Court at City F. The application was returnable on 9 February 2021 and sought, relevantly, by way of interim relief for the making of a recovery order, for the child to live with her and for the proceeding to be transferred to this Court.
The application was served on the father by email on that date.
On 9 February 2021, the father brought an application for an intervention order (‘IVO’), naming the child as a protected person. The respondent to the application is the mother’s new partner. The particulars to the IVO recounted in detail much of that which had been described above by the son to his father respecting the turbulent nature of the mother’s house and the son’s anxiety. The IVO related an account where the new partner had taken the car keys from the mother to purchase more alcohol, returning to the residence with a friend. It was said that the mother and Mr E both became further intoxicated and were yelling at each other. The application further stated “X was scared and in fear for his safety. He was worried that the violence would get worse and there was no one to protect him. X (child) refuses to return to the respondent’s home as he is fearful for his safety due to ongoing family violence between the respondent and Ms Belfort.”
On this date, the father also filed a notice of risk asserting that the child was at risk of abuse from the mother. The alleged risk had been reported to police on 1 February 2021, with detailed particulars being provided.
At about the same time, the mother also filed a notice of risk in which mirror allegations were made against the father.
As at 19 February 2021, the Department of Families, Fairness and Housing had not responded to those notices.
Although I was told that the father’s IVO application was granted on an ex parte basis, it has been adjourned for further hearing on 21 May 2021.
The matters set forth in the father’s IVO application have now been addressed in detail by each of the mother and her new partner Mr E, each of whom emphatically deny the allegations being made against them.
On 10 February 2021, the solicitor and counsel representing the father sought to be heard on the application before the Magistrates Court.
On 11 February 2021, an order was made adjourning the proceeding to this Court. A direction was made for the father to provide a mobile phone number for the child within 24-hours. There is evidence from the father’s solicitor of having complied with the direction. The mother gave evidence of having spoken to the child on 10 February 2021 and thereafter but recounted difficulties in communication by reason of, it was suggested, obstructive behaviour on behalf of the father. The mother’s evidence seems to suggest that the father monitors the phone calls in a way which precludes the child from speaking freely with her including that telephone calls are terminated, and on other occasions that the father has telephoned the mother responding to earlier discussions directing her not to speak upon certain topics with the child. The mother’s version of events was corroborated by Mr D’s affidavit.
Since those dates, the mother has filed particularly voluminous affidavits which depose in glowing terms of the child’s closeness to her family in City F where he is greatly loved, spent a great deal of time socialising and has active interests in swimming and bike riding.
On 25 February 2021, the mother made an application for an IVO also naming the child as a protected person. The interim application was apparently refused and the matter has been adjourned to late March 2021.
When the proceeding was transferred to this Court, it was considered by a registrar who allocated it to this docket to be heard in a duty list.
When the matter was first mentioned before me on 17 March 2021, I made a number of enquiries of the parties and provided certain indications as to some of the steps which might be appropriate in the circumstances, including of the need to ascertain from the clinical psychologist, Dr B, whether any information was available in relation to the child. I have set out that report.
In all of those circumstances, the matter was adjourned to 19 March 2021, in order that the Court might be assisted by any information that was available from the treating clinical psychologist.
I heard further submissions from the parties on 19 March 2021. Orders were pronounced on that date and I reserved my reasons for decision.
Parenting orders
Part VII of the Act concerns the subject, Children, is arranged in 16 Divisions and comprises ss 60 – 70Q. Section 65D provides that the Court may make such parenting order as it thinks ‘proper’.
The objects of Part VII are stated in s 60B(1). They include to ensure that the best interests of children are met by protecting them from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence: Act, s 60B(1)(b). The principles underlying those objects recognise the manifold rights of children with respect to their parents: s 60B(2). The principles in s 60B(2) are expressed as being subject to an exception: “except where it is or would be contrary to the child’s best interests”.
In determining the best interests of a child, two primary considerations must be taken into account. By s 60CC(2), the Court must consider:
a)the benefit to the children of having a meaningful relationship with both of their parents; and
b)the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
Act, ss 4(1) (abuse); 4AB(1) (family violence); 60B(1)(c), 60CC(1) (determining child’s best interests); 60CC(2) (primary considerations).
Additional considerations are prescribed by pars 60CC(3)(a)-(m).
The Court is required to give greater weight to protecting children from physical or psychological harm and from being subjected, or exposed, to abuse, neglect or family violence.[1] Where the circumstances require, the need for protection from harm as addressed by par 60CC(2)(b) may well assume prominence over allowing for a meaningful relationship with both parents as addressed in par 60CC(2)(a). This conclusion is reinforced by the exception provided for in par 60B(2).
[1] Amendments to the Act effected by sub-s 60CC(2A) became operative from 7 June 2012.
When deciding what parenting orders ought to be made in proceedings under Part VII of the Act, the best interests of the children are the paramount, but not sole, consideration: Act, s 60CA; Morgan & Miles;[2] Franklyn & Franklyn.[3]
[2] (2007) FLC 93-343, [59], [73], [79]-[80].
[3] [2019FamCAFC 256, [28] and cases cited.
Interim orders
The principles in Goode v Goode,[4] apply to the determination of an interim application for parenting orders.[5] There, the Full Court drew attention to the amendments effected to Part VII of the Act,[6] the objects of Part VII and the imperative requirement that the Court must have regard, as the paramount consideration, to the best interests of a child in deciding parenting orders.[7]
[4] (2006) 36 Fam LR 422.
[5] (2006) 36 Fam LR 422, [66]-[82].
[6] The relevant amendments to Part VII took effect from 1 July 2006.
[7] (2006) 36 Fam LR 422, [7]-[10].
The Full Court in Goode, confirmed some statements in Cowling & Cowling as applying following important amendments to the Act.[8] It accepted that the procedure in making interim parenting orders would continue to be an abridged process such that the scope of enquiry was, of necessity, to be significantly curtailed from that which will obtain at a trial. It recognised that the Court was nonetheless constrained by an imperative requirement to “have regard to the best interests of the child as paramount in deciding what interim orders to make”.[9] The Full Court held:[10]
In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child. (emphasis added)
[8] (1998) 22 Fam LR 776.
[9] (2006) 36 Fam LR 422, [69].
[10] (2006) 36 Fam LR 422, [72].
The availability of the power to make a parenting order for a child to spend equal, or substantial and significant, time with a parent is conditioned upon the Court being satisfied that to do so would be in a child’s best interests and was reasonably practicable. If it is concluded as a fact not to be so, the power conferred by s 65DAA is not engaged: MRR v GR.[11] As that decision confirms, the Court is concerned with evaluating the reality of the situation and for it to make a practical assessment of the feasibility of equal or substantial spend time in all of the circumstances of the particular case.
[11] (2010) 240 CLR 461, [9], [13], [15]-[16].
Upon an interim hearing, the following principles stated in Goode’s case[12] are applicable when following the legislative pathway:
[12] (2006) 36 Fam LR 422, [82].
In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In an application for interim parenting orders, including recovery orders, the Court must have regard to the considerations in ss 60CC(2)-(3). Where the exception in s 60B(2) is engaged, the rights of the child in relation to his or her parents should yield to the paramount consideration of deciding what orders are properly to be made in a child’s best interests: Act, ss 60CA, 67V.
The matters considered above are to be applied consistently with s 61DA(3) of the Act which provides that when the Court is making an interim parenting order, the presumption of equal shared parental responsibility applies unless the Court considers that it would not be appropriate in the circumstances of the case for the presumption to be applied when making an interim order.
It is because there will be little uncontested evidence at an interim hearing, that limited consideration of the factors identified in s 60CC may occur. Such consideration as is required at an interim hearing is in large measure defined by the manner in which the parties join issue.[13] While they must be considered, an exhaustive discussion of those factors is not required. Indeed, to do so may risk that “sight is lost of the forest for the trees”, including where the available evidence leads inexorably to a particular conclusion.
[13] Banks & Banks [2015] FamCAFC 36, [47]-[50].
Recovery orders – relocation
The Act makes particular provision for recovery orders: Act, ss 67Q-67Y.
The parties made passing reference to Morgan & Miles.[14] The principles were not the subject of particular disagreement. Boland J examined in detail the principles to be applied in relocation applications at both a final and at an interim level.[15] It is unnecessary to rehearse the analysis of the impact of amending legislation upon the applicable principles. His Honour recognised that interim and final orders were not dealt with separately by the Act and that the presumption of equal shared parental responsibility was not a mandatory consideration in making an interim order.[16] Further, his Honour concluded that the Act, as amended, required consideration of ss 60CC, 61D and 65DA in dealing with an interim application for a parenting order.[17]
[14] (2007) FLC 93-343, [88].
[15] Morgan & Miles (2007) FLC 93-343, [58]-[61].
[16] (2007) FLC 93-343, [82], Act, s 61DA(3).
[17] Morgan & Miles (2007) FLC 93-343, [86].
Relocation cases present very difficult challenges with far-reaching consequences for a child which necessarily require full investigation at trial.[18] In Morgan & Miles, Boland J cautioned that “except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these other types of cases in which the childs present stability may be extremely relevant on an interim basis.” This statement should not be misunderstood as establishing that interim relief in favour of allowing relocation cannot be allowed except in cases of an emergency.[19] A range of factors will often require evaluation.
[18] Morgan & Miles (2007) FLC 93-343, [84].
[19] Browne & Keith (2017) 55 Fam LR 208, [29].
While the Court will not condone unilateral relocations, such conduct is but one of the factors to be considered in the determination of what parenting orders are proper to make upon an interim application which invariably permits of a circumscribed hearing.[20] Conversely, where a parent has unilaterally relocated, the fact of having done so does not operate as a fetter on the exercise of the power to make such orders, including a recovery order, as it considers to be proper.[21] Particularly is that so where an order has already been made for equal shared parental responsibility. In such cases, the parties are bound to determine jointly the living arrangements of a child including whether the proposed move would make more difficult, the arrangements for spend time of a child and his or her communications with the non-relocating parent. Where such an order is in place, absent consultation and notice, s 65DAC of the Act precludes unilateral conduct which may be remedied by injunction.[22] Viewed from this perspective, a recovery order for the return of a child which is made in the face of an existing order for equal shared parental responsibility may be seen as a form of mandatory interlocutory injunction directed to preventing a party from forestalling an existing court order.[23]
[20] Parks & Farmer [2012] FamCAFC, [87].
[21] Morgan & Miles (2007) FLC 93-343, [55], Stringer & Nissen (No 2) [2019] FLC 93-922, [26].
[22] Morgan & Miles (2007) FLC 93-343, [75]-[76].
[23] Meagher, Gummow & Lehane’s Equity, Doctrines and Remedies 5th Ed’n (2015), [21-395], p. 771.
The circumstances of the child at the time of the application or immediately before removal “particularly absent issues such as abuse or violence, may well be likely to be extremely relevant”.[24] Despite those circumstances, a parent seeking to relocate does not need to demonstrate compelling reasons in order to do so.[25] The Act neither contains any presumption against a parenting order which involves relocation, nor a presumption in favour of a parent with whom the child lived at the time of application.[26] The complexity presented in such cases arises in part from the tension which is inherent in parents being able to live wherever they like and the imposition of a restraint by injunction from living too far away from a non-relocating parent. In Franklyn & Franklyn, a Full Court said of this tension, that parents should enjoy as much freedom in the choice of where they should live as was “compatible with their obligations pertaining to the children”.[27] It was the recognition of this principle which underpinned the earlier statement that while the interests of a child are the paramount consideration, they are not the sole consideration.
[24] Morgan & Miles (2007) FLC 93-343, [87].
[25] AMS v AIF (1999) 199 CLR 160, [47], [92], [209].
[26] Morgan & Miles (2007) FLC 93-343, [74].
[27] [2019] FamCAFC 256, [28].
There will also be cases in which, on an interim basis, a child’s present stability will be an extremely relevant consideration: Cottey & Backe (No 2).[28] The maintenance of stability on a case specific basis is well recognised.[29]
[28] [2020] FamCAFC 206, [68].
[29] See, Rollins & Van Hummell [2016] FamCA 916, [9]; Larsson & Casey [2016] FamCA 971, [23].
Boland J was careful to recognise that Morgan & Miles was not an interstate or international relocation case. Where the geographical distance presented by the parties’ current residences may raise additional complications, for example, in relation to spend time or communication, it is not distance per se which should be the determinative criteria. Boland J held:
. . . what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non-relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child's relationship with the non-relocating parent can be maintained and fostered.[30]
See also Cales & Cales;[31] Farmer & Rogers.[32]
[30] (2007) FLC 93-343, [91].
[31] [2010] FCAFC 237, [135]-[144].
[32] [2009] FamCAFC 117, [24].
These principles recognise that on an interim basis the Court should focus on maintaining stability for a child pending a final hearing. Morgan & Miles lays particular emphasis upon the child’s circumstances both at the time of unauthorised removal and at the time of the application, particularly where issues of violence or abuse are absent. It does not render those circumstances as being dispositive in the determination of what orders are proper to be made having regard to a child’s best interests. Consideration must be given to the consequences of the move. Such consequences will vary in the unique circumstances of each case. Questions must intrude as to how a child’s relationship with the non-relocating parent can be maintained and fostered.
Consideration
As the cases confirm, what is called for in the context of a circumscribed hearing is a structured consideration of the matters relevant to the instant case.
In making interim decisions, the legislative pathway must be followed notwithstanding that the Court will often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of a child.[33] I accept that within the constraints of an interim hearing, evidence cannot be tested by cross-examination and that disputed issues of fact cannot be the subject of definitive findings.[34] However this does not mean that “merely because the facts are in dispute” the evidence on a particular topic must be disregarded, or “the case determined solely by reference to agreed facts”.[35] For those reasons, findings made on an interim hearing should be couched with circumspection, no matter how firmly a judge’s intuition might suggest that the preliminary finding would be borne out after a full testing of the evidence. Despite this, on an interim hearing, the Court should “appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues not to be ignored.” This reasoning has been affirmed on many occasions. In this context, I accept the parties’ submissions as to the caution that is to be applied.
[33] Goode’s case, (2006) Fam LR 422, [81].
[34] Lethbridge & Taylor [2020] FamCAFC 129, [2] (citations omitted) (Kent J).
[35] Eaby & Speelman (2015) FLC 93-654, [14], [18], citing Marvel.
The submissions did not closely follow the progressive or staged analysis that is identified in the Act or the authorities addressed above. Adopting the principle that the consideration which is required at an interim hearing is largely defined by the manner in which the parties have joined issues,[36] I decided upon the orders that ought to be made in X’s best interests having regard to their submissions and my examination of the evidence above.
[36] Banks & Banks [2015] FamCAFC 36, [47]-[50].
Although it is said that the Act does not treat relocation as a special category of parenting order, when a parent seeks to relocate and the Court makes orders respecting this issue it is, of necessity, an order as to who a child will live with and so will affect spend time arrangements. As stated above, the Act requires a child’s best interests to be addressed as a paramount, but not the sole, consideration. Further, the determination of a relocation application will vary between those cases where an order for equal shared parental responsibility has been made, and those where it has not. In the former case, each parent has a primary duty to determine jointly what their child’s living arrangements should be and whether relocation would make more difficult the child spend time with the non-relocating parent. In the latter case, either parent may exercise parental responsibility. In either case, the Court must be satisfied (absent a relevant exception), that the parties have made genuine attempts to resolve their dispute and must consider the parties’ competing proposals.[37] I am not satisfied that genuine attempts have been made to resolve the present dispute but that a relevant exception applies: Act, s 60I. Otherwise, I have sought to address these matters conformably with the parties’ submissions.
[37] Morgan & Miles FLC 93-343, [72]-[81].
Each is agreeable to a section 11F report being obtained. It is to the child’s great benefit that an appointment has been made for him to confer with an experienced family counsellor, Mr C. Family therapy is agreed.
Each of the parties has raised a litany of complaints against the other. Their competing proposals are directly opposed. The mother seeks the return of the child. The father seeks for him to remain. I have set out above the nature of the relief that was sought by the parties. It was not suggested that the outcome of the interim application could be other than binary. If I accede to the mother’s application, X will return to live with her on an interim basis. If I accede to the father’s submissions, he will continue to live with his father. In making those observations, the Court must consider, but it need not yield to, the parties’ proposals. It should make orders that are in a child’s best interests; however, in the present case, the choices are very limited and neither party suggested any option other than those described above.
In light of the parties exchange of such proposals it follows that each has been afforded procedural fairness in terms of the orders that might be made.
The issues in dispute between the parties include nearly every fact that has been set out above and which remain untested. In that context, the independent and objective expert evidence of Dr B is significant.
Applying the settled principles which govern interim parenting orders, I have endeavoured to distil the evidence with an eye to identifying where the parties are agreed upon matters and where they are in dispute. Insofar as they are in contest, many of those factors are not of determinative significance in deciding what orders should be made in the children’s best interests.
It was agreed that X should have the benefit of a meaningful relationship with each of their parents. The question is how it might be promoted.
I do not accept either parent poses an unacceptable risk of harm to the child. None of the additional considerations raised by s 60CC(3) have persuaded me to a contrary view.
On the available evidence the issue is more precisely one of possible neglect or perhaps inattention in the mother’s home, in contrast with a more settled domestic environment with the father where there is real food on the table (and I infer a proper play lunch), and everyone eats together – matters valued by the child. The present case is one in which it is also extremely relevant to consider the need to provide and maintain a stable environment for the child.
It was not suggested X’s views should not be considered. Indeed, I regard them as important. From my perspective, X, has experienced something of a crisis. He is, at age 12, at a vulnerable and developing age and, on any view his conduct as disclosed to Dr B demonstrates a cri de cœur. It is particularly evident from the clinical psychologist’s report that he has found stability at his father’s home of a kind which appears to stand in marked contrast to where he has been living. What final parenting orders should be made must await a final trial whereby the evidence can be adequately tested.
Neither party paid particular attention to whether there were any logistical or geographical challenges arising from their competing positions.
For the purposes of making interim orders, I do not consider it appropriate to apply the presumption that it would be in the child’s best interest for the parties to have equal shared parental responsibility.[38] It is not appropriate because at present the parties’ evidence remains untested and, in the urgent circumstances which obtain, the manifold considerations which may inform a decision to make a parenting order of that kind should be reserved for full examination at trial. This being so, the power to make orders for equal, or substantial and significant, time is not engaged: MRR v GR.[39]
[38] Act, s 65DA(3).
[39] (2010) 240 CLR 461, [13].
Consideration must be given to X spending equal or substantial time with each of his parents. In my view, the best interests of X will be served on an interim basis by affording procedural fairness to each of the parties by participating in the child inclusive conference with Mr C on 8 April 2021. Upon consideration of his report, the parties, together with their legal representatives, should confer upon and seek to refine parenting orders which they contended will be of greatest assistance to their child.
X’s best interests are to be treated as the paramount consideration irrespective of whether interim relief was sought in terms of identifying with whom he should live or whether a recovery order was made: Act, ss 60CA, 67V. The consideration of those best interests requires that particular focus be given to providing stability for him until trial. I am especially reinforced in that view by Dr B’s report.
I am persuaded on the whole of the evidence and submissions presently made that X should continue to live with his father. I am also persuaded that he should continue to attend the school where he has enrolled and where he will have access to the school chaplain.
At present there is no order for equal shared parental responsibility. Given the conflictual nature of the matter, it is inappropriate for this issue to be determined at this juncture. In making those observations, I do not overlook the parties Mutual Undertakings. While no submissions were made as to the particular status of that document, I accept that it is in writing, made between, and signed by, the parents of the child and is dated: Act, s 63C.
Relief
In Bondelmonte v Bondelmonte,[40] the Court said of s 65D:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the Court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child. (emphasis added)
The inherently evaluative nature of the exercise of this power is thus apparent.
[40] (2017) 259 CLR 662, [8].
It is important that X should be provided with the most stable and settled environment that is presently available to him at this time. I have concluded that the most stable environment that can be provided to him is one in which he continues to live with his father.
No order for equal shared parental responsibility is in place. The making of such an order on an interim basis would trigger a requirement to consider whether the child should spend equal, or substantial and significant, time with each parent.[41] Given the recent upheaval which X has experienced, the urgency of the present application and the observations of Dr B coupled with the pending appointment with Mr C, I have concluded that the likelihood of ongoing conflict and litigation may be diminished if no orders for parental responsibility are made at this time. Instead, I think that the prospects of resolution, without Court orders at this stage, may well be enhanced by directing the parties attention to the terms of their Mutual Understandings and to encourage that they confer with both Dr B and Mr C before the next mention as to the terms of X’s parenting arrangements which will include, parental responsibility, live with, spend time, communication, educational needs and family therapy. After a little time has been allowed for matters to settle, the parties may recognise that the matter is capable of resolution.
[41] Morgan & Miles FLC 93-343, [68].
Following the hearing on 17 March 2021 (and I infer after receipt of Dr B’s report), commendably, Dr B or the mother took the initiative of making contact and held a conversation described by the clinical psychologist as being “appropriate”. Further, Dr B offered assistance to facilitate that X and his mother might establish a clearer mode of communication and suggested that this could include the involvement of a trusted and independent adult being present in the course of face time, telephone was a zoom communications. Having regard to the child’s sessions with the clinical psychologist his views on the selection of that person (which could be his stepbrother, Mr D, or some other party), would be of relevance.
The parties are agreed that pursuant to section 13C of the Act, the parents attend family dispute resolution in order to address parenting issues in terms of the child and their co-parenting relationship.
The parties were also agreed that the proceeding be given a trial date (and a mention for the purposes of evaluating compliance with trial directions).
The parties are expected to have conferred in advance of the mention with respect to mediation and minutes of proposed orders.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 25 March 2021
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