BENEDICT & GILL
[2017] FCCA 1437
•27 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BENEDICT & GILL | [2017] FCCA 1437 |
| Catchwords: EVIDENCE – Letter from psychologist tendered in evidence – objection to tender – resolution of objection in interim application – objection grounded on failure to meet Makita principles – letter from psychologist expressly disavows status of expert report – Makita principles not relevant – further objection on basis of privilege – joint privilege – letter from psychologist prima facie inadmissible – contents of letter from psychologist affect rights of child – letter admissible under exception created by s 131(2)(i) Evidence Act1995 (Cth). EVIDENCE – Expert evidence – court is authorised to decide on all of the evidence an ultimate fact in issue – expert evidence is not determinative. |
| Legislation: Evidence Act1995 (Cth), ss.79, 124, 131 Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZQ, 69ZT |
| Cases cited: Amaca Pty Ltd (Under New South Wales Administered Winding Up) v King [2011] VSCA 447 Asciak v Australian Secured and Managed Mortgages Pty Ltd (2008) FCA 753 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Farrow Mortgage Services Pty Ltd (in liq) v Webb(1996) 39 NSWLR 601 |
| Applicant: | MR BENEDICT |
| Respondent: | MS GILL |
| File Number: | MLC 3815 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 14 June 2017 |
| Date of Last Submission: | 14 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 27 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lane |
| Solicitors for the Applicant: | Mitchell Family Law |
| Counsel for the Respondent: | Mr Robinson |
| Solicitors for the Respondent: | Coote Family Lawyers |
ORDERS
The matter be adjourned for Mention on 23 November 2017 at 9.30am in the Federal Circuit Court of Australia at Melbourne.
The matter be fixed for Final Hearing on 9 and 10 April 2018 at 10.00am in the Federal Circuit Court of Australia at Melbourne before Judge A Kelly with an estimated hearing time of 2 day/s.
The evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the court): and
(a)the applicant electronically file and serve any further affidavits to be relied upon by the applicant at the final hearing not later than 21 days prior to the hearing;
(b)the respondent electronically file and serve any further affidavits to be relied upon by the respondent at the final hearing not later than 14 days prior to the hearing; and
AND FURTHER that each party be permitted to rely upon only one affidavit by each of the parties and each witness unless:
(c)the second or subsequent affidavits of the witness (or party) do not contain any paragraph numbers or exhibit numbers used in the earlier affidavit or affidavits; or
(d)the party has first obtained leave of the court.
Each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those costs have been paid and what costs are expected to be incurred until the completion of the hearing.
Not later than 4.00pm 2 business days prior to the final hearing all parties do electronically file and serve an Outline of Case Document (not exceeding 5 pages) including the following:
CHILDREN
(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/ren (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.
There be interim orders in terms of the Minute of Proposed Orders dated 14 June 2017 (Minute) and further:
(a)the Minute be placed upon the court file and marked Exhibit “A”;
(b)the solicitors for the applicant engross the Minute and deliver a clean, duly certified copy of the same in Microsoft Word format (Copy) by email to the Chambers of Judge A Kelly within 7 days;
(c)upon delivery of the Copy to the court, the within orders be extracted and the Copy be attached thereto.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) 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 Annexure A and these particulars are included in these orders.
B.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).
EXHIBIT A
Until further order:
The matter be listed for a trial on 9 and 10 April 2018.
The matter be listed for mention on 23 November 2017.
The parties, their respective partners and the child X born (omitted) 2011 attend upon Dr B for the purposes of the preparation of a Family Report on 3 October 2017 with the costs of such report to be borne equally between the parties.
The parties have equal shared parental responsibility for X.
The child live with the Father on a 4-weekly cycle during school term as follows:
(a)week 1: from 10.00am Sunday to the commencement of school on Wednesday to be operative with effect 10.00am Sunday 18 June 2017;
(b)week 2: from 10.00am Sunday until the commencement of school on Thursday;
(c)week 3: from 10.00am Sunday until the commencement of school on Wednesday; and
(d)week 4: from 10.00am Saturday until the beginning of school on Wednesday.
The child live with the Mother during school term at all other times.
That changeover occur at the child’s school on all school days and at the Mother’s home on non-school days.
During school holidays the child spend time with the parents for half of each school holiday period as follows:
(a)in even-numbered years: With the Father for the first half and the Mother for the second half; and
(b)in odd-numbered years: with the Mother for the first half and the Father for the second half.
That the child spend time with each of the parties on their birthdays, the child’s birthday, her sibling’s birthday at times as agreed between the parties.
That the child spend time with the Father from 10.00am to 5.00pm on Father’s Day and with the Mother from 10.00am to 5.00pm on Mother’s Day.
That the child spend time with the parties at Christmas as follows:
(a)with the Father:
(i)from 12.00pm Christmas Day until 12.00pm Boxing Day in 2017 and alternate years thereafter; and
(ii)from 12.00pm Christmas Eve until 12.00pm Christmas Day in 2018 and alternate years thereafter;
(b)with the Mother:
(i)from 12.00pm Christmas Eve until 12.00pm Christmas Day in 2017 and alternate years thereafter; and
(ii)from 12.00pm Christmas Day until 12.00pm Boxing Day in 2018 and alternate years thereafter.
Certify for Counsel.
All interim applications be otherwise dismissed.
Pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are attached and are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Benedict & Gill is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3815 of 2017
| MR BENEDICT |
Applicant
And
| MS GILL |
Respondent
REASONS FOR JUDGMENT
Introduction
On 14 June 2017, interim parenting orders were made in relation to the only child of a de facto relationship, X who was born on (omitted) 2011 (X) and is presently aged six years. In addition to the interim parenting orders, the parties were agreed that they, together with their respective partners and the child, should attend upon Dr B for the purposes of him preparing a family report and that such attendance should occur on 3 October 2017. Thereafter the matter will be listed for Mention on 23 November 2017 (if necessary) and otherwise listed for Final Hearing on 9 and 10 April 2018.
Background
The applicant father who is now aged 26 years owns and operates a (omitted) business in partnership, known as the (business omitted), (omitted).
The respondent mother who is currently aged 27 years is employed full-time as a (occupation omitted).
In 2017, X commenced at (omitted) Primary School in her preparatory grade.
The parties were in a brief relationship until November 2011, during which period they occupied a rental property situate in (omitted). Financial support for that accommodation was provided in part by the parents of the applicant father.
X, was about seven to eight months of age when their relationship ended. Each of the parties has now re-partnered. The applicant father has, with his new partner, become father to a son born in (omitted) 2017.
The parties reside in suburbs which are relatively proximate. The father’s residence is some 100 metres from the school which X now attends.
Spend time 2011 - 2016
Since the birth of X, over the period 2011 to 2015, the applicant has been actively engaged as a father in the life of his daughter. He has had spent time with his daughter on a progressively increasing basis. From January 2016, X would spend seven nights in each fortnight with the applicant father.
In addition, the father’s extended family comprises his parents, two brothers and two sisters (who range in age from 17 to 28 years). The father’s parents have been actively involved in providing support (including financially) since X’s birth. They have provided support for the father’s spend time, including when he has been at work.
At present the evidence is less clear concerning the care arrangements for X while she is with her mother when her mother is at work. The father’s attempts to gain greater clarity around those arrangements has, thus far, yielded little information although it appears that, when the mother is working, X may be cared for by her partner or her partner’s grandmother.
From June 2016, the parties attended appointments with Relationship Australia in an effort to reach agreement about shared care arrangements. It appears that this process of consultation arose because the respondent did not want the existing arrangements to continue. Following consultations with Relationship Australia it was agreed that the parties would seek the opinion of a child psychologist.
In August 2016, the parties consulted Ms I. In the course of this consultation the applicant told the respondent that his new partner was pregnant and that they were shortly to move their residence to (omitted).
With the assistance of Ms I, the parties reached agreement that they continue an equal care regime for X and that her time spent with the father would be changed from seven consecutive nights per fortnight to a regime which was described in the parties submissions as a 3:4 – 4:3 parenting plan whereby X would live with the father on a four week cycle as follows:
(a)week one, from Sunday 10.00am until the beginning of school on Wednesday (three nights);
(b)week two, from Sunday 10.00am until the beginning of school Thursday (four nights);
(c)week three, as per week one (three nights);
(d)week four, from 10.00am on Saturday until the beginning of school on Wednesday (four nights).
At about the time the above plan was agreed, the applicant acquired his interest in the (business omitted) in (omitted). He acquired the business in partnership. The father has structured his work commitments in this enterprise so as to ensure that his spend time with X might work most effectively. The applicant’s ‘weekend’ is in practical effect, from Sunday afternoon until late Tuesday. The father has arranged matters so that his spend time with X is co-ordinated with his time off from working in the (business omitted).
2017 developments
In February 2017, the mother again told the father that she wished to change the current parenting arrangements. Counselling was chosen as a means of achieving resolution. As Ms I was unavailable, the parties instead consulted with Ms L, a consulting psychologist.
In late February 2017, the mother unilaterally terminated the existing shared parenting arrangements. The evidence suggests that the mother refused to communicate directly with the father her decision to alter the existing arrangements. Instead, her new partner met with the applicant to discuss the matter. At this meeting the respondent’s partner informed the father that the mother had a new proposal. When asked for details, the applicant was told in unequivocal terms that “you are to only have one night” per week. Those circumstances served as the catalyst for the present application.
The mother exhibited a letter dated 28 March 2017 addressed by Ms L to the parties’ respective lawyers. Regrettably, the mother’s affidavit did not disclose that the parties’ respective lawyers had addressed a joint letter of instructions dated 28 February 2017 to Ms L. The letter of instructions was tendered in evidence. The letter of instructions identified that the parties sought Ms L’s input and advice with respect to their current dispute in relation to the parenting arrangements for their child. The letter of instructions identified an agreed history of the matter and provided the parties respective proposals for ongoing spend time with the father. It appears from this letter that appointments were made for the parties to attend Ms L on various dates in early March 2017.
As noted, by letter dated 28 March 2017, Ms L wrote to the parties’ respective lawyers. Ms L’s letter briefly identified the sessions which had been attended by the various parties over the period 6 – 22 March 2017.
Ms L was careful to emphasise in her letter that it was not, and should not be interpreted, as a forensic family report.
Ms L observed X to be a gregarious, outgoing, affectionate and much loved child who had positive relationships with both of her parents, her stepfather and paternal extended family. Ms L reported that in play, discussions and her drawings, it was clear that the mother is the daughter’s primary attachment figure followed by her paternal grandmother.
Ms L’s recommendation underlined that the child should have consistency in her preparatory grade of schooling.
Ms L’s proposed parenting plan was that X should spend time with her father each alternate weekend from Friday after school until Sunday evening at 6.00pm and each Tuesday night until the commencement of school on Wednesday morning. Ms L proposed an increase in shared time in 2018 and for a family report to assess any increased spend time to be planned in about October 2018. No reasoning was provided for these opinions. They did not appear to take into account the immediate proximity of the father’s residence to X's School. It also appeared to disregard the circumstance of the father’s work commitments in his business. No account was taken apparently of the circumstance that the father’s work arrangements meant that he had his ‘weekend’ with effect from Sunday afternoon until Tuesday night; that is, he was completely free to care for X during that period. None of those observations should be seen as in any way critical of the efforts that were taken by Ms L.
While objection was made to Ms L’s letter being received in evidence. I took the view that it was necessary, in the circumstances, to rule on the objection in order that the application for interim relief could proceed: see Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (19) (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
By force of para 69ZT(1)(c) of the Family Law Act1975 (Cth), inter alia Part 3.3 (Opinion) of the Evidence Act1995 (Cth) does not apply to child-related proceedings. Further, by sub-s 69ZT(2), the court is authorised to give such weight (if any) as it thinks fit to evidence admitted as consequence of a provision of the Evidence Act1995 (Cth) not applying because of sub-s 69ZT(1). In addition, the court is authorised by sub-s 609ZT(3) to apply a prescribed division of the Evidence Act1995 (Cth) where the circumstances may require.
Ms Lane of counsel for the applicant father objected on two bases to Ms L’s letter being tendered in evidence.
First, it was said that Ms L’s letter did not satisfy the principles stated in a Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (Makita). In that appeal, Heydon JA (as he then was) analysed in detail the conditions which controlled whether an opinion of an expert could be tendered in evidence. His Honour observed, amongst other things, that in assessing an expert’s opinion the court was entitled to ask whether it was intelligible, convincing and tested. In this case, it is unnecessary to examine the Makita principles in further detail.
It is important to see the objection to the contents of Ms L’s letter in context. Ordinarily, opinion evidence may only be adduced by an expert: section 79(1) Evidence Act1995 (Cth).
Depending upon the view taken of the matter, Ms Lane’s first objection either derived, or lost, its force from the express caveat made by Ms L herself. From the outset the author was concerned to emphasise that her letter was not to be interpreted as a forensic family report. Ms L was quite entitled to place that caveat over the contents of her letter. In those circumstances, Ms L’s letter did not purport to provide, and could not be tendered as, an expert opinion.
For the reason that Ms L’s letter did not bear the status of an expert opinion, the common law principles stated in Makita were not applicable to the determination of whether Ms L’s letter could be tendered in evidence. Further, as stated above Part 3.3 of the Evidence Act1995 (Cth) does not apply to child related proceedings. On one view, the decision that the letter did not contain an expert opinion might be thought to support the further conclusion that the letter was otherwise irrelevant. In my view, the contents of that letter were not wholly irrelevant. Rather, they provided some narrative that informed the sequence of events which led to the present application.
Secondly, tender of Ms L’s letter was opposed on the basis that s 131 of the Evidence Act1995 (Cth) applied so as to preclude the adducing in evidence of the letter as being a communication which, relevantly, had been prepared in connection with an attempt to negotiate the settlement of a dispute: see sub-para 131(1)(b). In contrast with opinion evidence, para 69ZT(1)(c) of the Family Law Act1975 (Cth), does not extend to remove the application of Part 3.10 (Privileges) of the Evidence Act1995 (Cth) to child-related proceedings.
I am prepared, for present purposes, to assume in favour of the applicant that Ms L’s letter was prima facie excluded from being adduced in evidence by operation of para 131(1)(b) of the Evidence Act1995 (Cth). It was in this context that I considered the failure to disclose the fact that the parties’ lawyers had signed and provided a joint letter of instructions to Ms L to be regrettable. This was because, notwithstanding that the parties had not retained the same lawyer, the fact of the joint letter of instructions might have supported an objection grounded on the basis of a joint privilege in Ms L’s letter which privilege had, quite clearly, not been waived by the father: cf s 124 Evidence Act 1995 (Cth); Morton v Bolinda Publishing Pty Limited [2017] FCA 187, at [65]-[66] (Burley J) citing Farrow Mortgage Services Pty Ltd (in liq) v Webb(1996) 39 NSWLR 601 at 608 (Sheller JA, Waddell JA agreeing); Tabcorp Holdings Ltd v State of Victoria[2013] VSC 302 at [122], (Sifris J).
Although sub-s 131(1) would operate to make Ms L’s letter inadmissible, that provision is subject to a number of exceptions. Relevantly, by para 131(2)(i), a communication which is otherwise inadmissible may be adduced in evidence where the communication affects the rights of a third party.
In the present case, the third party whose rights may be affected is X.
Child related proceedings are not inter partes proceedings in the ordinary sense. In M v M, the High Court emphasised that parenting proceedings are distinct from purely inter partes proceedings in that they do not entail the enforcement of a parental right – rather they concern the making of orders that would best promote and protect the interests of a non-party – that is, the child of the relationship: (1988) 166 CLR 69, 76 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ). For that reason, the court's determination is focused upon what is in the best interests of the child.
The present interim application should be seen as one which affects the rights of the child X. In these proceedings, the fundamental rights of that child fall for the determination.
The court is concerned to ensure that the best interests of a child are met by ensuring that she or he have the benefit of both of their parents having a meaningful involvement in their lives and may do so to the maximum extent consistent with those best interests. And unless it be contrary to a child’s best interests, the child has a right to know and be cared for by both of their parents, regardless of whether they were ever married. They have a further right to spend time on a regular basis with both of their parents and with other persons who are significant to their care, welfare and development. And in the determination of what parenting order should be made, the best interests of the child are paramount: see ss 60B(1)(a), 60B(2)(a)-(b), 60CA, Family Law Act 1975. These are existing rights that are held, not by her parents, but by X.
In Asciak v Australian Secured and Managed Mortgages Pty Ltd (2008) FCA 753, [33], Goldberg J held that before s 131(2)(i) was engaged, it was not sufficient that the communication was relevant to an existing right of a person but that it should affect, in some fairly direct way the actual rights of a person: see also Humphreys v Humphreys [2016] VSC 637, [73]-[75] (Ginnane J).
To adapt the observations of Goldberg J, in my view the matters addressed by Ms L’s letter are sufficient to affect X’s rights in a fairly direct way.
I concluded that the communication contained in Ms L’s letter fell within the exclusion created by para 131(2)(i) with the result that it was not rendered inadmissible by para 131(1)(b). I concluded that Ms L’s letter contains evidence which, if accepted, could rationally affect, (directly or indirectly), the assessment of the probability of the existence of a fact in issue in the proceeding. In the present case, the ultimate fact in issue on this interim application concerns what it is that is in the best interests of the child.
Finally, I accept the submission by Mr Robinson for the respondent mother that Ms L’s letter may be tendered in evidence but should be accorded such weight as appropriate in all the circumstances: cf sub-paras 69ZT(2)-(4).
Quite apart from the circumstance that Ms L disavowed her letter as bearing the character of an expert opinion, it should not be assumed that the tender of an expert opinion will in all circumstances be of determinative significance upon a matter put in issue by the parties. In Amaca Pty Ltd (Under New South Wales Administered Winding Up) v King [2011] VSCA 447 (Nettle, Ashley and Redlich JJA) undertook a detailed consideration of the topic ‘Trial by experts?’. Their Honours held that the court is not required to have competent or trustworthy expert opinion before being entitled to make an affirmative finding upon a disputed fact and that, to the contrary, “the tribunal of fact is authorised to decide, on all the evidence, that the plaintiff has established that fact as a matter of probability”: see also Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd (1997) 16 ALR 23, 25-26 (Barwick CJ); HTW Valuers (Central QLD) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640, [47] (Gleeson CJ, McHugh, Gummow, Kirby and Hayden JJ); TCL Air-conditioner (Zhongsha) v Castel Electronics Pty Ltd (2014) FCAFC 83, [166] (Allsop CJ, Middleton and Foster JJ).
Consideration
There was no dispute as to the principles applicable to the determination of the application. Each of the parties referred me to the decision of the Full Court of the Family Court of Australia in Goode & Goode (2006) 36 Fam LR 422 (Goode). I apply the statements of principle as analysed in that decision to the present case.
The parties were agreed on the principles applicable to the determination of an application for interim relief and the necessity for the court to follow the legislative pathway prescribed by the Family Law Act1975 (Cth), Part VII, notwithstanding that the court was faced with conflicting facts and disputes between the parents as to what constituted the best interests of the child. It was also common ground that the court could not and need not make findings upon disputed facts upon the hearing of an interim application: Goode, 74, 81.
The parties’ counsel provided particular assistance to the court in the identification of the particular statutory considerations which they regarded as being of particular relevance in the application.
Applying the considerations as identified by the Full Court in Goode, each of the parties submitted their competing proposals for ongoing shared parenting arrangements. In large measure, their respective affidavits also identified those competing proposals.
The central issue in dispute on the interim application concerned the scope of the spend time which X might have with her father during school term.
The parties were generally agreed, or otherwise there was no contest, as to the facts and circumstances concerning the parenting arrangements and X’s spend time with her father since 2011, including by progressive increase in time over the period 2011 – 2016.
As noted, the parties were also agreed that they, X, and their respective partners should attend upon Dr B for the purposes of the preparation of a family report and that they would bear equally the costs of such attendance and report. I note the parties have accelerated by some 12 months, the shared family report program which had been suggested by Ms L.
The parties are also agreed that they would continue to have equal shared parental responsibility for X and that the child would live with the respondent mother during school term at all other times. The parties were agreed as to change over and also agreed as to X’s spend time with her respective parents during school holidays and on the birthdays of the parents, the siblings and X’s own birthday together with special days (Father’s Day and Mother’s Day) and spend time on Christmas Day.
On this issue, the matters addressed above largely obviate the necessity of the court to do more than confirm that equal shared parental responsibility is in the best interests of the child: cf 61DA(1). There is no allegation of risk in this proceeding: cf s 69ZQ(1)(aa). In those circumstances the sole focus was upon the best interests of X as may be affected by her spend time with her father during school term.
I concluded that, it is in X’s best interests that she should spend substantial and significant time with each of her parents: cf 65DAA(1). Moreover, there is nothing in the circumstances to indicate that it is contrary to X’s best interests that she should not spend substantial and significant time with each of her parents. There is no reason to suggest that it would be impracticable for her to do so. Indeed, from a geographical perspective, the parties reside in suburbs which are, or are very nearly, adjoining. And as noted above, the father’s residence is no more than 100 metres from X’s primary school.
The parties agreed that in deciding this interim application and ascertaining what particular parenting order ought be made, the court must have regard to the best interests of X as the paramount consideration: s 60CA. I have concluded that the overwhelming benefit to X in having a meaningful relationship with both of her parents will be enhanced by orders which restore the status quo of the 3:4 4:3 arrangement which had existed until it was unilaterally revoked by the respondent: cf sub-para 60CC(2)(a). Each of the parties had filed a notice of risk. It was clear from those documents, their affidavits and submissions that neither party considered that there was any question of either abuse or the risk of abuse to either party or the child: cf sub-para 60CC(2)(b).
The parties identified additional considerations under ss 60CC(3)(b), (d) and (g) as being of particular relevance in the present matter. It is clear that X shares a close relationship with each of her parents and that she has a primary attachment to her mother and also to her paternal grandmother with whom she has spent much time. It is also clear that X has and will continue to benefit from the extended family which is available to her through having spend time with her father, his siblings and parents.
It is suggested that there will likely be an effect of change in circumstances arising from X having commenced primary school in 2017. However, I do not accept the submission on behalf of the respondent mother that the desirability of achieving consistency for X in her first year of primary school is thereby synonymous with acceding to the present unilateral revocation of spend time or with the proposal which is presently put forward by the mother. In my view the respondent's submission sought to elevate the concept of consistency as referred to by Ms L as meaning or requiring that the court should accept the mother’s arrangements and proposals as being the, or the only, means of providing such consistency. That is not what Ms L did suggest and Ms L was careful to disavow her letter as being a forensic family report. On one view, which I prefer on at least an interim basis, consistency is achieved and may well be promoted by restoring the status quo as reflected by the orders which were made on 14 June 2017.
In so far as regard was had to X’s maturity, sex, lifestyle and background, I do not see the present orders as in any way diluting the clear primary attachment which X has toward her mother. Equally, I see the orders as made as promoting her attachment to her paternal grandmother and to her father.
I considered that the father has made considered choices in structuring his work obligations in a way which will best create free time from at least late Sunday to and including Tuesday night each week in which he can best provide a lifestyle for X which will promote her having a meaningful relationship with him. He is able to collect and take his daughter from school which is closely approximate to his residence.
Conclusion
While the parties were keen to reserve a mention date in November 2017 in order that the matter would be reviewed following receipt of a report from Dr B, I have urged upon the parties the desirability of their reflecting on the necessity for their making applications to this court at frequent intervals. Such a mindset seems to me, with respect, to be inimical to their interests and to the best interests of their child.
Should it be necessary for them to return to this court for a final determination of the proceeding, the matter has been listed for trial in early April 2018.
It is to be hoped that, in the meantime, the parties will recognise that they should agree on parenting orders which will best benefit of their child in having a meaningful relationship with each of her parents.
Finally, I wish to acknowledge the helpful and considered submissions that were made by counsel for each party on this application.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 27 June 2017
0
9
3