Biggs and Biggs and Anor

[2016] FamCA 917

FAMILY COURT OF AUSTRALIA

BIGGS & BIGGS AND ANOR [2016] FamCA 917

FAMILY LAW – CHILDREN – Interim application  – Parental responsibility – With whom the child lives – with whom the child spends time – Mother admitted to hospital suffering from Guillain-Barré syndrome – Where the maternal grandfather has intervened

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr A Biggs

RESPONDENT: Ms Biggs

INTERVENOR: Mr B Biggs

FILE NUMBER: BRC 1630 of 2013

DATE DELIVERED: 30 September 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 14, 15 & 29 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Brasch of Queen’s Counsel on 15 September 2016;
Mr Shoebridge on 29 September 2016

SOLICITOR FOR THE APPLICANT: Mr Vaughan, Big Law Pty Ltd

COUNSEL FOR THE RESPONDENT: No appearance on 14 & 15 September 2016;
Mr Jamieson on 29 September 2016

SOLICITOR FOR THE RESPONDENT: Mr Polo, Oracle Law on 29 September 2016

COUNSEL FOR THE INTERVENER: Mr Jamieson on 15 and 29 September 2016

SOLICITOR FOR THE INTERVENER: Mr Polo, Oracle Law on 14, 15 and 29 September 2016

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. The operation of the Order made by consent on 28 May 2013 (as amended on 29 July 2013) is suspended.

IT IS FURTHER ORDERED UNTIL FURTHER ORDER

1. The father have sole parental responsibility for the major long term issues for the child, C, born … 2011, provided he notifies the mother, in writing, of any decision he makes in the exercise of this parental responsibility within twenty-four (24) hours of making such decision.

2. The child shall spend time with the father:

   (a)from 4.00 pm Sunday, 2 October 2016 until 10.00 am Tuesday, 4 October 2016;  and

   (b)from 4.00 pm Sunday, 9 October 2016 until 10.00 am on Tuesday, 11 October 2016;  and

   (c)from 4.00 pm on Sunday, 16 October 2016 until 10.00 am on Wednesday, 19 October 2016;  and

   (d)from 4.00 pm on Sunday, 23 October 2016 until 10.00 am on Wednesday, 26 October 2016;  and

   (e)from 4.00 pm on Sunday, 30 October 2016 until 10.00 am on Thursday, 3 November 2016;  and

   (f)from 4.00 pm on Sunday, 6 November 2016 until 10.00 am on Thursday, 10 November 2016;  and

   (g)from 4.00 pm on Sunday, 13 November 2016 until 10.00 am on Friday, 18 November 2016;  and

   (h)from 4.00 pm on Sunday, 20 November 2016 until 10.00 am on Friday, 25 November 2016;  and

   (i)from 4.00 pm on Sunday, 27 November 2016 until 10.00 am on Friday, 2 December 2016;  and

   (j)from 4.00 pm on Sunday, 4 December 2016 until 10.00 am on Friday, 9 December 2016.

3. From Sunday, 11 December 2016, the child shall live with the father and thereafter, spend time with the maternal family at all times as may be agreed between the parties, but failing agreement: on the first, second and third weekend of each month from between 5.00 pm and 6.00 pm Friday until 4.00 pm Sunday.

4. The operation of Clause 4 of this Order shall be suspended between 24 and 26 December 2016 such that the child will spend time with his maternal extended family from 12.00 pm on 24 December 2016 until 12.00 pm on 26 December 2016.

5. The child shall spend time with the mother at all times as may be facilitated while the child is spending time or communicating with the maternal family.

6. In the event the child would not otherwise be spending time with the maternal family on the weekend on which Mother’s Day falls, he shall spend time with them from after the conclusion of school on Friday, until 5.00 pm on the Sunday.

7. In order to facilitate the child’s time with his maternal family, the father or nominee shall be responsible for transporting him to and from the residence of the maternal grandfather until 12 December 2016 and thereafter, the father or his nominee shall deliver the child to the maternal grandfather’s home at the commencement of his time with the maternal family with the maternal grandfather or his nominee to deliver the child to the father at the conclusion of time.

8. The child shall communicate by telephone, Skype or FaceTime with his father, or his maternal family, at all reasonable times.

9. Each party keep the other informed of the child’s doctors and health care providers and, by this Order, those practitioners are authorised to provide each parent and the maternal grandfather with such information as they are lawfully able to provide about the child.

10. Each party inform the other party as soon as reasonably practicable of any significant health issue or significant illness suffered by the child and, by this Order, any treating medical practitioner is hereby authorised to release the child’s medical information to both parents and the maternal grandfather.

11. Each party keep the other informed of any school or educational facility at which the child attends and, by this Order, such providers are authorised to provide each parent with such information as they are lawfully able to provide about the child and his progress.

12. If there is a cost associated with the provision of any information or documents by the child’s doctors, health care providers or school or educational facility, that expense shall be borne by the parent or party requesting the information.

13. Each party must keep the others informed at all times of their current residential address, email and telephone numbers (both landline and mobile) and must notify the other a change of the same within forty-eight (48) hours.

14. The parties have liberty to apply on the giving of twenty-four (24) hours’ notice in writing.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 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 and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

IT IS NOTED THAT

It is the Court’s intention that when reference is made to agreement between the parties, it shall be sufficient for there to be agreement between the father and the maternal grandfather.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Biggs & Biggs and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 1630 of 2013

Mr A Biggs

Applicant

And

Ms Biggs

Respondent

And

Mr B Biggs

Intervener

EX TEMPORE

REASONS FOR JUDGMENT

1. The orders that I intend to make in the matter will see the suspension of the operation made by consent between the Applicant and Respondent on 28 May 2013.  Further interim orders will be made which will accord to the father sole parental responsibility for the child.  Orders will be made which will see the child transition from his current living arrangements to live with his father primarily from Sunday, 11 December 2016 following a graduated regime of increased time. 

2. Following that change of primary living position, the orders will see the child spend time with his maternal grandfather from 6.00 pm Friday until 4.00 pm Sunday on the first, second and third weekends of each month.  Orders are to be made to suspend the operation of the graduated time which will be provided for in the orders so as to ensure that the child will spend time with his maternal extended family from noon on 24 December of this year until noon on 26 December of this year.  Additional orders will be made to ensure the provision of information about the child’s health and education. 

3. Insofar as responsibility for changeover and the facilitation of the child’s time as he moves and transitions from his current arrangement to that of his father, until 12 December 2016, the father or his nominee shall be responsible for transporting the child to and from the residence of the maternal grandfather.  But after that date, the father or his nominee shall deliver the child to the home of the maternal grandfather at the commencement of their time and the maternal grandfather or his nominee shall return the child to the father’s residence at the conclusion of that time. 

4. Standard orders in relation to the provision of information about matters such as residential addresses, email and telephone numbers will also be made.  There will be an order providing to the parties liberty to apply on the giving of 24 hours’ notice in writing. 

5. I decline to make an order that the mother’s treating medical practitioners be authorised to communicate with the father and provide him all relevant information in relation to her condition, treatment and prognosis at his request.  I do so at this stage because of my concern that such an order is, at the moment, premature and also because of my concern that, at this stage, given the medical evidence before the Court to date, such an order may be unnecessarily intrusive in relation to the mother’s private medical information and may unnecessarily cause her significant distress.  Whether at a later time such an order is appropriate is, of course, something that may be revisited by the parties at some later stage. 

6. The orders will issue in detailed form.  I intend now to deliver the reasons which underpin those orders.

7. The necessity to make orders in relation to C, who was born in 2011, arises because on about 15 July this year, his mother was admitted to hospital suffering from Guillain-Barré syndrome.  Whilst she was initially placed into an induced coma, this is no longer the situation.  Until the time of her admission to hospital, the child had always lived primarily with his mother and his half-sister, D, who is now about 12 years of age.  As a consequence of orders agreed to by the parties and made by consent by Judge Turner on 28 May 2013, the child spent regular time with his father in accordance with the terms of that order. 

8. It appears on the evidence, to the extent that it is possible to arrive at any conclusion given the interim nature of this proceeding, that there may have been odd occasions on the father’s case on which the child’s mother permitted the child to spend time with him in addition to or outside the terms of the May 2013 order.  On the evidence relied upon by the intervening maternal grandfather, there may also have been occasions on which the child’s father was unable to attend to spend time with him in accordance with the order.  It seems to me at this stage - given the interim nature of the proceeding - unnecessary to descend into further detail in respect of those competing assertions; and they may mean little in the circumstances in which the child currently finds himself.

9. It appears from the material before the Court that, when the father was informed of the mother’s admission to hospital, he was, it seems, due to fly out of the country for a period of about 10 days for work purposes - he was due to leave this country on 18 July 2016.  After learning of the mother’s illness, he cancelled the travel arrangements.  The material suggests that he made offers to the maternal side of the child’s family to spend time with the child and to take care of him and to provide care for him in order to assist at what can only have been a highly traumatic and emotional time for members of the mother’s extended family. 

10. Even on an interim basis, with all of the limitations imposed upon a decision-maker by the nature of an interim hearing, I accept as more likely than not that the father’s actions (as I have outlined them) are inconsistent with the actions of a person who is only primarily focused upon work arrangements.  Clearly, on any assessment, the father’s primary focus when he learned of the mother’s illness was to think about their child. 

11. It is uncontroversial that, since the mother’s hospitalisation, the child has been cared for primarily by his maternal grandfather.  The evidence before the Court in relation to the mother’s current situation arises from a number of sources.  The first is the father’s recounting of information provided to him by the maternal grandfather on about 11 August 2016.  The second is, of course, the information contained within the affidavits relied upon in the maternal grandfather’s case.  The third in this case, somewhat usually, is the oral evidence given by two of the mother’s treating specialists. 

12. Whilst it is a departure from the standard rules that usually apply to hearings of interim applications for interim parenting orders, the circumstances of this case are such that, for the reasons outlined and captured within the transcripts of the previous appearances before me, I determined it appropriate and in the child’s best interests to depart from the usual course.  That has meant that the Court is assisted by receipt of expert evidence - albeit brief and succinct - about the mother’s current functioning. 

13. It seems from that evidence that, from a medical point of view, the situation remains to a large extent incapable of future prognosis.  The evidence given by Dr E, a medical practitioner who is a specialist ICU medical provider, was to the effect, when given on 15 September 2016, that the mother’s physical functioning is extremely restricted.  It was made clear by Dr E that the mother’s current communicative functioning, to use her terminology, is 100 per cent:  that is, it was clear as a consequence of the receipt of Dr E’s evidence that the mother retains full capacity; it is for that reason, then, and with the assistance of her brother that she was in a position to provide instructions to those who appeared on her behalf and on behalf of her father at the hearing before the Court. 

14. Dr E’s evidence establishes that, as at 15 September, the mother was unable to verbalise because she had a tracheostomy in place which denied airflow through her vocal cords.  That meant that she was unable to speak but was able to interact and communicate with staff via eye movements, movement of her eyebrows and through indication to an alphabet board which, on Dr E’s evidence, is a method of communication often utilised in and with ICU patients. 

15. In addition, whilst being careful to ensure that her evidence was seen in the context of her own speciality, Dr E made it clear that, as at mid-September, the mother had been in the IC unit at the Suburb F Hospital since July; that she has a severe form of Guillain-Barrè syndrome and was, in a sense, like a quadriplegic insofar as the paralysis and effects upon her functioning and ability to move is concerned. 

16. Dr E’s evidence was to the effect that, whilst she expected the mother to make a recovery, it would take a long time.  She expressed the opinion -attendant with the uncertainties associated with any medical condition - that she thought the mother would leave the intensive care unit toward the latter half of this year or early next year.  She certainly made it clear that the evidence of a neurologist would assist.  She was confident that the mother would recover function in the long run but, helpfully, noted that the mother’s long-term prognosis was best addressed by a neurologist. 

17. When asked whether she was able to proffer an opinion about the extent and, as it were, timeframe in relation to the expected recovery by the mother, Dr E confirmed that those matters are individual to each person depending upon a number of considerations.  She certainly emphasised that the mother was in a favourable situation given her age, her state of health and the absence of any other co-morbidities. 

18. Having taken that evidence, arrangements were made to facilitate evidence from at least one of the mother’s treating neurologists. 

19. The Court was then assisted by the evidence given orally yesterday by Dr G - a medical practitioner currently employed as a staff neurologist at the hospital.  His evidence confirmed to a large extent that given by Dr E.  He said that, at present, the mother was still quite disabled; still on a ventilator; was receiving extensive physiotherapy; that, whilst she was much better than she was at her admission in July of this year, she was still quite significantly disabled.  He outlined that she can move her eyes and blink and make movements with her mouth to say words – in essence, mime words – but, her voice is, at present, not improved sufficiently to enable others to hear her.

20. He outlined that she is able to move her neck sideways and to lift her head from the pillow; whilst there are some movements in her extremities, those in and from her hands, toes and ankles are restricted to what he described as a flicker movement. 

21. As I understood the evidence given by Dr G, it was to the effect that the usual course of treating someone with that with which the mother is afflicted at present, is to undertake a further nerve study at about three months after the onset of illness.  That would place it, it seems to me, at some time close to the end of next month.

22. His evidence was to the effect that the purpose of such study was to assist in attempting to determine whether the damage to the mother’s nerve fibre cells was likely to be permanent or to be something of a more transient nature, bearing in mind that the term transience is a relative one.  As I understood his evidence also, he considered that there was a good chance that, as a consequence of the treatment administered by the hospital after the mother’s admission there, that they had prevented further long-term damage, but until this upcoming or future nerve study is undertaken, this cannot be, in any way, confirmed or corroborated.

23. His evidence continued to the effect that, if the results of the nerve study were to the effect that the mother had suffered nerve damage, it may well take years for her condition to improve.  However, if that study revealed that there was not much damage, to use his term, then there may well be a very good chance for recovery. 

24. Even in those circumstances, however, as I understood his evidence, this could still be expected to take significant months.  But, it may be that, within a few months, things might be better. 

25. Given all of the evidence to which I have referred, it is, I think, completely understandable that Dr G’s evidence concluded with his being unable to say at what stage and at what time (and what duration or what time from now) the mother would be able to be in a position to leave hospital. 

26. It is in these circumstances and with that evidence that the decisions about parenting arrangements for the child need to be made.

27. C’s father seeks orders, broadly speaking, that would see the child live primarily with him.  He does so, again, broadly speaking, on the basis that, as the child’s father and the person in respect of whom there was previously an order for equal shared parental responsibility, it is appropriate in the circumstances that he take up the responsibility for providing primary care to the child.

28. C’s maternal grandfather, who has intervened in the proceedings, opposes the making of such an order.  He is joined in that opposition by the mother, who has provided her instructions to her legal representatives via the assistance of her brother, who attended at the hospital and obtained her answers to a number of questions.  It is certainly clear to me that she opposes any order that would see the child leave the care of his maternal family, any order that would see him leave the primary care of his maternal grandfather and any order that would see him be separated from his sister, D.

1. Whilst the mother’s instructions as conveyed in the attachment prepared by her brother after speaking with her raises concern about the child’s safety whilst in his father’s care, there is nothing, it seems to me, in the evidence before the Court to suggest that those concerns are, at this stage, made out.  In fact, it seems to me that, whilst some criticisms have been made of the father and his approach to the child’s parenting to date, they are restricted to those which assert an absence of interaction, rather than those which assert positive harmful actions toward the child.  In that sense, whilst they remain in contest, it seems to me that there is nothing on the material before me to suggest that the child would be likely, in any way, to be harmed in any way if he were to spend more time initially with his father and, thereafter, transition into his primary care so as to accommodate this very tragic circumstance in his life. 

2. As these are proceedings for parenting orders, I may, subject to s 61DA and s 65DAB and Division 6 of Part VII of the Family Law Act 19675 (Cth), make such parenting order as I think proper.  I must have regard to the objects of Part VII of the Act and the principles which underpin those objects.  In deciding whether to make a parenting order, I must regard the child’s best interests as the paramount consideration. 

3. The matters to be considered in determining those parenting orders which are in any child’s best interests are as prescribed by s 60CC of the Family Law Act 1975 (Cth). It is unnecessary, for each of these considerations to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion. Any failure specifically to mention a consideration in these Reasons delivered orally should not mean that that consideration has been overlooked in the course of the determination of those orders which are in the child’s best interests.

4. In proceeding to determine the interim application for interim parenting orders, I must proceed in the manner in which all interim parenting applications are to be determined, applying the well-known principles to such determination.  Those principles may, of course, be found in authorities such as Goode & Goode, a decision of the Full Court of this Court. As I have already commented upon, all interim hearings are attended by a reality that, given the absence of the opportunity to engage in cross-examination, the Court is often unable to resolve disputes of fact. All that can be done, as authority makes clear, is for the Court to identify issues which are in dispute where they are relevant, to identify any agreed or uncontested relevant facts, and, if possible, to make the findings about relevant s 60CC considerations.

5. It is also well-established by authority that in interim proceedings there may often be little evidence which is uncontested, such that it is impossible to do more than undertake a limited assessment and/or consideration of the statutory considerations. 

6. It is in this context, then, and subject to these limitations, that I turn to determine the current competing applications for parenting orders relating to the child.

7. It seems to me to be established on the evidence before me that, until about May of this year, the child’s maternal grandfather lived outside of Australia, and had done so for no less than about three years.  Whilst the father contends that he was absent from Australia for a longer period, that is one of those matters that remains factually contentious and incapable of resolution.  All that I can say is that which I have so far said about that issue. 

8. During the time of the maternal grandfather’s absence from Australia, it is clear that, following the making of the orders in May of 2013, the child’s father consistently and regularly spent time with him on alternate weekends.

9. In that sense, it seems to me that he has, indeed, been a constant in the child’s life.  Whilst it is clear that, having returned to Australia in about May of this year and following his daughter’s sudden and unanticipated admission to hospital, the maternal grandfather and his wife stepped into the breach to provide care for the child and his sister, there can be no conclusion, it seems to me, other than that they have had a relatively limited opportunity over the last number of years to interact with and/or provide care for the child.  That should not be heard by anyone as a criticism, but rather as a flat statement of fact.

10. It is clearly established that all of the adults in the child’s life care for him.  I also proceed on the basis that all of them are proceeding to attempt to implement those things and orders and parenting regime for him which each of them genuinely and honestly thinks will best meet his needs. 

11. It is clear that in the event that the child moves to live primarily with his father there will be significant changes for him.  There have already been significant changes for him.  I am persuaded that, given the uncertainty which attends the mother’s recovery, it is appropriate and in the child’s best interests that, after a period of transition during which his time with his father increases gradually, his best interests will be served by orders which will see him live primarily with him, and spend as much time as realistically can occur during school term (which will commence next year when he starts Prep) with his maternal family. 

12. In arriving at those conclusions, and in determining that the orders I have outlined in broad form as the orders which are in the child’s best interest on an interim basis, I have also had regard, of course, to the contents of Exhibit 1:  a report from a psychologist upon whom the child attended at the instigation of his maternal grandfather and maternal uncle. 

13. Whilst it was submitted, on behalf of both the mother and the maternal grandfather, that significant weight should be placed on the contents of that report, I consider it difficult to do so.  That conclusion is arrived at for two reasons.  The first is that it is that it is clear that the father was not involved in the process. The second and, in a sense, more fundamental, it seems to me, at this stage, can be gleaned following reference to the contents of the last paragraph on the first page of that report which is to the effect that the child lives with his maternal grandfather, biological mother and his sister, D, who was 12 years old; has resided in this environment since birth and knows this to be his home. 

14. It is clear on all of the evidence that, with respect to the author of the report, this is fundamentally wrong.  It clearly is not the case that, for the last three years (as a minimum) that predated the maternal grandfather’s return to Australia in about May of this year, the child lived with him and his mother and his sister. 

15. Such fundamental misapprehension of the child’s previous care arrangements, vis-à-vis his maternal grandfather, in my view, fundamentally affects and infects the conclusions and recommendations which may be found later in the report. 

16. Whilst I certainly accept that, at this stage, it is very important to attempt to establish and maintain some sense of constancy for the child, I cannot, with respect to the author, accept the recommendations, for the reasons I have outlined.

17. It seems to me that the father, as I have said, has been a constant in the child’s life.  There is nothing in the material before me to suggest that his relationship with the child is lacking in any particular way.  There is nothing, in my view, to suggest that he is seeking to do anything other than provide support to the child in this difficult time and to ensure that appropriate care arrangements are put in place for him.

18. Whilst there is some difficulty - in the sense that there is travel as between where the father lives in Brisbane and where the maternal grandfather lives in Region H - the reality for the child is that, albeit at a frequency of only once per fortnight, he has already been undertaking that travel, I suspect that even with an increase in the frequency at which he is required to travel, it is likely to be more of an impost for the adults charged with the responsibility of transporting him than for him at his age.

19. There is nothing, in my view, in the material to suggest that the child’s father lacks any capacity to provide for his needs, or to meet his emotional or intellectual needs; in my view, there is nothing to suggest anything other than that the child’s father is focused upon supporting him in as responsible and caring a manner as he can.

20. I do not intend at this stage (for reasons which are, I hope, consistent with the comments I have consistently made to the parties during the course of this hearing) to express any views in relation to the criticisms contained within some of the affidavit material.  That would not, in my view, assist the child at this time, nor would it assist the adults, who clearly care for him, to focus upon the important aspect of attempting, into the future, to work together to provide him with as much support as is possible.

21. I consider it clear from the father’s material and from the approach taken by his legal representatives on instructions from him to seek a suspension of the operation of the final order that he is doing all he can at this stage to demonstrate to those associated with the mother that it is not his intention to seek to remove the child from her care. 

22. It is and should be, in my view, simply seen as the responsible reaction of the child’s other care provider, and the other parent entrusted previously with an order for equal shared parental responsibility, to step into the breach and to assist in the child’s parenting until the circumstances associated with his mother’s unexpected illness can become clearer.

23. It is for those reasons also that, as I have indicated earlier at least, an order will be made affording to the parties liberty to apply upon the giving of 24 hours’ notice in writing. 

24. I do not intend, during these short Reasons delivered orally, to express any further particular comments in relation to the competing cases advanced by each of the parties other than to say the following. 

25. Whilst it may be that the implementation of the orders I have fashioned and concluded as being in the child’s best interests may disrupt him in his attendance at kindergarten for the balance of this year, I have determined that there is greater importance to him to be able to transition from the care of the maternal grandfather to his father’s care before the end of the year.  I have no doubt that all of the adults are capable of ensuring, to the extent that it is necessary, that the child is well supported prior to his commencement of Prep in 2017.

26. Whilst the orders will also have the effect that the child will be separated (during the periods he is with his father) from D, his sister, the orders I have fashioned will also ensure that the increases in his time with his father between now and the end of the school term will occur mostly during the school week.  In that way, I have endeavoured to maximise those weekend times when the child and D can spend time together.

27. I also take into account that D, it seems, spends regular weekend time with her father, and, consequently, is absent from interaction with the child during those occasions.  I take into account, further, the father’s proposal to do all that he can to coordinate the time that the child may spend with members of his maternal family so as to ensure that the child and D continue to have an opportunity to maintain their no doubt close relationship. 

28. I emphasise that all should consider these parenting arrangements as interim parenting arrangements, which are reactive to the current tragic circumstances that all parties are asked to confront.

29. I also take into account that it seems D will commence high school next year, and, as was submitted by Counsel for the father, the reality for D and the child is that it is unlikely, even if they were to continue to live in the same home, that they would necessarily spend significant amounts of time together during the school week.

30. The orders which will provide for the child to spend three out of four weekends with his maternal family will, in my view, maximise the time he has to spend with D whilst also affording to him - after Prep commences - the opportunity to spend weekend time with his father, and in his father’s household.

31. I take into account, also, in arriving at my conclusion about the appropriate order for parental responsibility that, whilst the mother is clearly cognitively capable of engaging in and providing instructions and responses, the likely impost upon her of being called upon to do so may, in my view, be something that is not beneficial to her in her current state.

32. I take into account also, s 61DA(3).  I conclude, for these reasons, that it is not appropriate in the circumstances in making this interim order for the presumption of equal shared parental responsibility to apply. 

33. I have concluded, therefore, that, in these circumstances, it is in the child’s best interests that an order affording to his father sole parental responsibility for major long-term decisions relating to him on an interim basis is that which is in his best interests.  The order will impose upon the father the obligation to inform the child’s mother of any decision that he makes in the exercise of that parental responsibility within 24 hours of making the same.

34. Absent any emergency, the only issue to be determined, it seems to me, as a likely decision falling within the category encompassed by an order for parental responsibility for major long-term issues, is the child’s attendance at school.  The order will enable the father to make those decisions so as to ensure that the child is able to commence Prep next year. 

35. For these reasons, then, I make orders in terms as I have outlined. 

36. I direct that a copy of the orders be forwarded to the parties by email.  I direct that, once settled, a copy of the Reasons for Judgment delivered orally be provided to the parties. 

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 30 September 2016.

Associate:     

Date:              30 September 2016