Bina & Ghatta
[2021] FedCFamC2F 546
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bina & Ghatta [2021] FedCFamC2F 546
File number(s): MLC 9818 of 2020 Judgment of: JUDGE MCNAB Date of judgment: 22 October 2021 Catchwords: FAMILY LAW – parenting – mother relocated to Sydney from Melbourne – spend time arrangements as between father and daughter – undefended final hearing. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC. Division: Division 2 Family Law Number of paragraphs: 51 Date of last submission/s: 22 October 2021 Date of hearing: 21 & 22 October 2021 Place: Melbourne Counsel for the Applicant: Ms Johnson Solicitor for the Applicant: Bardo Lawyers The Respondent: No Appearance ORDERS
MLC 9818 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BINA
Applicant
AND: MS GHATTA
Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
22 OCTOBER 2021
THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for the child X born in 2010 (“the child”),
2.The Mother consult with the Father prior to making long-term decisions in relation to the child whilst in her care.
3.The child live with the Mother in New South Wales (“NSW”).
ORDERS IF THE MOTHER REMAINS LIVING IN NEW SOUTH WALES (“NSW”)
4.The Father spend time and communicate with the child in NSW as follows, with the Father to give 14 days’ notice to the Mother of his travel and accommodation details:
(a)for two nights on each occasion, twice per year outside the school holidays;
(b)for one week in each gazetted NSW school holiday save that the child spend 2 weeks over the long summer holidays; and
(c)as agreed between the parties in writing.
5.The costs of the Father’s travel to NSW for spend time with the child to be borne equally by the parties.
6.The Father communicate with the child by FaceTime/Telephone twice per week each Tuesday and Sunday between 6.30pm and 7.00pm.
7.Each party notify the other party within 24 hours of any change to their mobile telephone numbers or addresses at which the child can be contacted.
8.The Mother authorise the child's school to provide to the Father (at the Father’s costs), with copies of all school information, newsletters and school reports, copies of school photographs and any information which is relevant to the child's education.
9.The Mother inform the Father of details of all enrolment forms for any educational institution or extra-curricular organisations in respect of the child.
10.The Mother be restrained from changing the child’s school without the written consent of the father.
11.The Father be at liberty to attend all extra-curricular activities routinely attended by parents.
12.Save for an emergency, the Mother inform the Father of any hospitalisation, appointments arranged for the child to attend upon any medical specialist or allied health professional prior to the appointment occurring with the party arranging the appointment to inform the other as to the time and date of that appointment as soon as reasonably possible.
13.The Mother keep the Father informed as soon as practicable and provide details of any significant injury or illness suffered by the child.
14.The Mother keep the Father informed of any prescription medication administered to the child whilst in her care and the Mother provide the Father with the prescription medications to be administered to the child during change over when the Father spends time with the child.
15.The parties and/or their servants and agents be restrained from:
(a) Denigrating, belittling or criticising either party or their partners in the presence or within hearing of the child;
(b) Discussing parenting arrangements with the child
(c) Passing messages through the child;
(d) Involving the child in any form of dispute or otherwise; and
(e) Physically disciplining of the child.
ORDERS IF THE MOTHER RETURNS TO LIVE IN VICTORIA (“Victoria”)
16.The child spend time and communicate with the Father in Victoria as follows:
(a) each alternate week from Friday afterschool or 4.30pm on a non-school day until the 6.30pm on the Sunday;
(b) for one week of each school term holidays at times to be agreed and failing agreement for the first half where the holidays commence in odd-numbered years and one week of the second half where the holidays commence even-numbered years;
(c) for one week of the long summer holidays or on dates to be agreed between the parties and failing agreement the first week with the Father where the holidays commence in odd-numbered years and in the second week where the holidays commence even-numbered years;
(d) during Easter:
(i) from 11.00am Easter Saturday to 11.00am Easter Day in the year 2021 and each alternate year; and
(ii) from 11.00am Easter Day to 11.00am Easter Monday in the year 2022 and each alternate year.
(e) during the Holy month of Ramadan as agreed between the parties;
(f) during Eid El Fitr and Eid El Adha from 9.30am on the first day of Eid to 2.00pm and the remaining days as agreed by text message and failing agreement from 9.30am to 2.00pm on the third day of either Eid.
(g) on the Father’s birthday as follows:
(i) if the birthday falls on a school night for a period of not less than 3 hours to be agreed between the parties and failing agreement from after school until 6.30pm; and
(ii) if the birthday falls on a non-school night for a period of not less than 4 hours to be agreed between the parties and failing agreement between 10.00am to 2.00pm;
(i) on the child’s birthdays as follows:
(i) if the birthday falls on a school night for a period of not less than 3.5 hours to be agreed between the parties and failing agreement from after school until 7.00pm; and
(ii) if the birthday falls on a non-school night for a period of not less than 4 hours to be agreed between the parties and failing agreement between 10.00am to 2.00pm.
(j) on Father’s Day, if it falls during the Mother’s time with the child, from 10.00am until 5.00pm;
(k) by telephone between 4.00pm and 7.00pm twice a week on Tuesday and Sunday with the Father to initiate the telephone call to the Mother’s mobile phone and the Mother ensure to facilitate such time; and
(l) any such other or further times as agreed between the parties in writing including text messages.
17.The Father’s time be suspended as follows:
(a) during Easter:
(i) from 11.00am Easter Saturday to 11.00am Easter Day in the year 2022 and each alternate year; and
(ii) from 11.00am Easter Day to 11.00am Easter Monday in the year 2021 and each alternate year.
(b) for one half of each end of term school term holidays, at times to be agreed and failing agreement for the first half where the holidays commence in even-numbered years and the second half where the holidays commence odd-numbered years;
(c) for one half of the end of year long summer holidays on a week about basis as agreed between the parties and failing agreement for the first week where the holidays commence in even-numbered years and the second week where the holidays commence in odd-numbered years;
(d) on the Mother’s birthday, if it falls during the Father’s time with the child, as follows:
(i) if the birthday falls on a school night for a period of not less than 3.5 hours to be agreed between the parties and failing agreement from after school until 7.00pm; and
(ii) if the birthday falls on a non-school night for a period of not less than 4 hours to be agreed between the parties and failing agreement between 10.00am to 2.00pm.
(f) on the child’s birthday, if it falls during the Father’s time with the child, as follows:
(i) if the birthday falls on a school night for a period of not less than 3.5 hours to be agreed between the parties and failing agreement from after school until 7.00pm; and
(ii) if the birthday falls on a non-school night for a period of not less than 4 hours to be agreed between the parties and failing agreement between 10.00am to 2.00pm.
(g) on Mother’s Day, if it falls during the Father’s time with the child, from 9.00am until 5.00pm; and
(h) any such other or further times as agreed between the parties in writing including text messages.
18.The Mother be at liberty to contact the child at any time when the child is not in her care between 4.00pm and 7.00pm and the Father ensure that he answer the phone.
19.For the purposes of changeover, where changeover does not occur at the child’s school then changeover shall occur at the Suburb B shopping centre.
20.Each party notify the other party within 24 hours of any change to their mobile telephone numbers or addresses at which the child can be contacted.
21.The Mother authorise the child's school to provide to the Father (at the Father’s costs), with copies of all school information, newsletters and school reports, copies of school photographs and any information which is relevant to the child's education.
22.The Mother inform the Father of details of all enrolment forms for any educational institution or extra-curricular organisations in respect of the child.
23.The Mother be restrained from changing the child’s school without the written consent of the Father.
24.The Father be at liberty to attend all extra-curricular activities routinely attended by parents.
25.Save for an emergency, the Mother inform the Father of any hospitalisation, appointments arranged for the child to attend upon any medical specialist or allied health professional prior to the appointment occurring with the party arranging the appointment to inform the other as to the time and date of that appointment as soon as reasonably possible.
26.The Mother keep the Father informed as soon as practicable and provide details of any significant injury or illness suffered by the child.
27.The Mother keep the Father informed of any prescription medication administered to the child whilst in her care and the Mother provide the Father with the prescription medications to be administered to the child during change over when the Father spends time with the child.
28.The parties and/or their servants and agents be restrained from:
(a) Denigrating, belittling or criticising either party or their partners in the presence or within hearing of the child;
(b) Discussing parenting arrangements with the child
(c) Passing messages through the child;
(d) Involving the child in any form of dispute or otherwise; and
(e) Physically disciplining of the child.
29.All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to s.62B and s.65DA(2) 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 set out in the Annexure and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bina & Ghatta has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge McNab
This matter involves the child X born in 2010 (“the child”). The child lives in the primary care of the Respondent Mother.
The Applicant Father is 37 years old and works on a casual basis as a tradesman. The Respondent Mother is 30 years old where she is employed as a carer, and works three hours a day during school hours.
The Father and Mother have both re-partnered since separation. The Father lives in Suburb B, Melbourne with his wife Ms C and four children born to his second marriage. He stated that he re-married in 2014.
The Mother resides in Sydney with her husband of four years, Mr D. She has lived there since about September 2020, having relocated there without informing the Father.
BACKGROUND
The parties were married in 2008 in Country E as an arranged marriage. The parties commenced living in Australia in 2009. Final separation occurred on 1 March 2010 and the parties divorced on 1 April 2012. It is notable that the Mother was aged 15 when she married the Father.
The Father stated that following the separation with the Mother, he spent negotiated and agreed time with the child. The chronology prepared by the Father makes clear that for extended periods the parents have lived in different Australian states, as well as a period in different countries when the Mother spent time in Country E. Arrangements had not been settled until consent orders were made in 2018.
The Father gives evidence that following the signing of consent orders in 2018 he spent time with the child in accordance with the formalised arrangements. The Father claims that the 2018 arrangements worked well, allowing the child to develop with a positive relationship in the paternal home.
The Mother made the decision to cease parenting arrangements in May 2020. The Father was also unaware that the Mother had relocated with the child to Sydney in September 2020.
An originating application was filed on 10 September 2020 by the Father seeking formalised parenting arrangements in respect to the child. The Father stated that he had been denied time with the child since 23 May 2020, whilst making multiple attempts with both the Mother and child without success.
The Father sought a return to the parenting arrangements reflected in the signed consent orders in 2018 as well as the Mother to return to live in the Melbourne area. These orders specified that:
(a)the parties have equal shared parental responsibility;
(b)the child live with the Mother;
(c)the child spend time with the Father on alternate weekends;
(d)the child spend time with the Father on alternate Wednesdays;
(e)the child spend time with the Father for half of school holidays;
(f)the child spend time with the Father on specified special occasions and by telephone; and
(g)the Father to be in substantive attendance with the parties restrained from changing the child’s school without consent from the other party and information exchange including notification of address.
The Father made an application in December 2020 that a recovery order be issued with the Mother and child to be located.
In response, the Mother proposed that the child live with her in Sydney, that she have sole parental responsibility and that the child spend time with the Father in Melbourne during school holiday periods and in New South Wales at other negotiated times.
On 22 December 2021, interim orders were made that that Father communicate with the child by FaceTime/telephone each Tuesday, Thursday and Sunday and at other specified times with the Father to initiate contact with the Mother.
On February 2021, interim orders were made that:
(a)the parties have equal shared parental responsibility for X;
(b)the child live with the Mother in Sydney;
(c)the Father continue to have FaceTime/telephone contact three specified times a week;
(d)the child to spend time with the Father for half of school holidays;
(e)the child spend time with the Father one weekend a month;
(f)the child spend time with the Father during the month of Ramadan, Eid al-Fitr and Eid al-Adha as agreed between the parties;
(g)the Mother be responsible for airfares;
(h)made specific travel arrangements in place;
(i)the Mother must be at liberty to contact the child whilst in paternal care with the Father to ensure this occurs;
(j)the filed Application in a Case be dismissed as the Mother pay the Father’s costs fixed at $5,000; and
(k)a Family Report be prepared and that matter be adjourned for Final Hearing on 8 July 2021.
On 8 July 2021 the Court ordered the parties to attend mediation with the Senior Registrar of the Federal Circuit and Family Court of Australia on October 1 2021. There was no appearance from the Respondent.
CONSIDERATION
This matter came before the Court for final hearing on 21 October 2021. The Respondent in this matter did not appear.
Pursuant to the orders made on 8 July 2021, the Court noted:
In the event that the Mother fails to file any affidavit in accordance with Order 12 above, or fails to attend Court either in person or by Microsoft Teams, the Father may apply to proceed in the matter on an undefended basis.
Leave was granted by the Court for the matter to proceed on an undefended basis. At final hearing the Father did not seek orders that the Mother return to live with the child in Melbourne.
The Father’s proposed orders submitted on 21 October 2021 are set out in the following terms:
1.The parties retain equal shared parental responsibility for the child of the relationship, namely X ("the child") born in 2010.
In the event the Court orders the Mother to return to Victoria:
2. The child spend time and communicate with the father as follows:
(a)Each Wednesday from Wednesday afterschool or 4.30pm on a non-school day to 7.30pm.
(b)Each alternate week from Thursday afterschool or 4.30pm on a non-school day until the commencement of school Monday or 10.00am on a non-school day.
(c)For one half of each school end of term holidays, at times to be agreed and failing agreement for the first half where the holidays commence in odd-numbered years and the second half where the holidays commence even-numbered years;
(d)For one half of the long summer holidays on a week about basis at time as agreed between the parties and failing agreement the first week with the Father where the holidays commence in odd-numbered years and in the second week where the holidays commence even-numbered years;
(e) During Easter:
(i)From 11.00am Easter Saturday to 11.00am Easter Day in the year 2021 and each alternate year; and
(ii)From 11.00am Easter Day to 11.00am Easter Monday in the year 2022 and each alternate year.
(f) During the Holy month of Ramadan as agreed between the parties;
(g) During Eid El Fitr and Eid El Adha from 9.30am on the first day of Eid to 2.00pm and the remaining days as agreed by text message and failing agreement from 9.30am to 2.00pm on the third day of either Eid.
(h) On the Father’s birthday as follows:
(i) If the birthday falls on a school night for a period of not less than 3 hours to be agreed between the parties and failing agreement from after school until 6.30pm; and
(ii) If the birthday falls on a non-school night for a period of not less than 4 hours to be agreed between the parties and failing agreement between 10.00am to 2.00pm;
(i) On the child’s birthdays as follows:
(i) If the birthday falls on a school night for a period of not less than 3.5 hours to be agreed between the parties and failing agreement from after school until 7.00pm; and
(ii) If the birthday falls on a non-school night for a period of not less than 4 hours to be agreed between the parties and failing agreement between 10.00am to 2.00pm.
(j) On Father’s Day, if it falls during the Mother’s time with the child, from 10.00am until 5.00pm;
(k) By telephone between 4.00pm and 7.00pm with the Father to initiate the telephone call to the Mother’s mobile phone and the Mother ensure to facilitate such time; and
(l) Any such other or further times as agreed between the parties in writing including text messages.
3. The Father’s spend time be suspended as follows:
(a) During Easter:
(i)From 11.00am Easter Saturday to 11.00am Easter Day in the year 2022 and each alternate year; and
(ii)From 11.00am Easter Day to 11.00am Easter Monday in the year 2021 and each alternate year.
(b)For one half of each end of term school term holidays, at times to be agreed and failing agreement for the first half where the holidays commence in even-numbered years and the second half where the holidays commence odd-numbered years;
(c)For one half of the end of year long summer holidays on a week about basis as agreed between the parties and failing agreement for the first week where the holidays commence in even-numbered years and the second week where the holidays commence in odd-numbered years;
(d)On the Mother’s birthday, if it falls during the Father’s time with the child, as follows:
(i)If the birthday falls on a school night for a period of not less than 3.5 hours to be agreed between the parties and failing agreement from after school until 7.00pm; and
(ii)If the birthday falls on a non-school night for a period of not less than 4 hours to be agreed between the parties and failing agreement between 10.00am to 2.00pm;
(f)On the child’s birthday, if it falls during the Father’s time with the child, as follows:
(i)If the birthday falls on a school night for a period of not less than 3.5 hours to be agreed between the parties and failing agreement from after school until 7.00pm; and
(ii)If the birthday falls on a non-school night for a period of not less than 4 hours to be agreed between the parties and failing agreement between 10.00am to 2.00pm;
(g)On Mother’s Day, if it falls during the Father’s time with the child, from 9.00am until 5.00pm; and
(h)Any such other or further times as agreed between the parties in writing including text messages.
5.The Mother be at liberty to contact the child at any time when the child is not in her care between 4.00pm and 7.00pm and the Father ensure that he answer the phone.
6.For the purposes of changeover, where changeover does not occur at the child’s school, then changeover shall occur at Suburb B shopping centre.
In the event the Mother continues to reside in New South Wales:
7.Orders 4, 5, and 6 of the orders of the Court in relation to face to face time of the orders made on 2 February 2021 remain in full force and effect.
8.Order 1 of the orders by consent made 22 December 2020 in relation to telephone time remain in full force and effect.
The Family Report
A Family Report prepared by Ms F was released on 14 June 2021. By that report, Ms F set out the background to the matter and recorded the child’s views.
From paragraphs [45] – [48], Ms F reports the child’s views as follows:
45.X was offered the opportunity to speak with the Report Writer by telephone, this being a less than ideal situation with some caution required as a result. X was informed of the limitations of confidentiality. X initially impressed as cautious in her responses however as the interview progressed, was able to share her thoughts and feelings in a verbally capable manner appropriate to her age. X stressed that she was ‘afraid’ of her father’s response to her comments and preferences. X described living in Sydney as “good, it is warmer here, my school has nice people and I have some friends”. She described feeling emotionally close to her Mother and step-father adding that she did not have any worries in this area.
46.X appeared quick to make negative and critical comments in relation to her paternal family including “dad doesn’t spend much time with me, he is either working, sleeping or on his phone, this makes me feel sad, it was better when I was younger and before he got remarried and had more kids, he used to be playful with me, now he is a different person and has changed , he used to hang out with me we used to talk and have a good time now he barely calls me”. X commented that she “didn’t get on with her step-mother or younger siblings”, describing them as “annoying” adding “this is not a nice feeling to have inside”. She described her dis-satisfaction that she now shares “my bedroom with a younger sister adding “this used to be just my room, I don’t like sharing my bedroom much, the younger kids wake me up, pull my hair and hit me”. X stated that she would feel more comfortable in the paternal home “having my own room, having a nice relaxing time, being with dad more, having my own closet, I can’t draw or have anything there that is just mine”.
47.X described feeling “upset leaving mum” during the last school holiday paternal arrangement adding “I miss mum, I try call her but they won’t let me do this much, my phone gets confiscated, the signal is bad at the farm”. X commented that she does not like the idea of spending time at the paternal home once a month adding “it is a waste of money, I don’t like the idea of it, it is not suitable for me, my step-mother yells at me for crying, dad doesn’t do anything with me”. X described her reluctance to fly “to a whole different state away from mum, I don’t like even being in a different house to mum”.
48.X spoke of her father “trying to bribe me to live with him, he said he would get me all kind of things like a MacBook, I don’t like this, I can’t really talk to dad, my step-mother doesn’t give me any privacy when I am trying to call mum, she has scrolled through my messages I send to mum, this is very unfair and dad does nothing”. X spoke of “hating” a particular male cousin “he is rude, he is a liar and a snitch, they talking about me marrying him, I don’t like my cousins in Melbourne” X commented that this situation makes her feel “sad, I worry about what dad thinks, it makes me feel scared, I think he is angry with me”. X stressed that she has “her own life in Sydney” adding “I don’t want to feel bad”.
Oral Evidence from the Family Report Writer
Ms F, the Family Report writer, was called to give evidence and was cross examined by Counsel for the Father.
Ms F was referred to the recommendations made by her in the Family Report released on 14 June 2021. Ms F stated that there were difficulties in making the recommendations in the Family Report, given the Mother’s intention not to return to Melbourne.
Ms F gave evidence that caution should be exercised in making the orders proposed by the Father, given that the child is accustomed to primary maternal care, with changes to this arrangement likely to cause stress for the child. Ms F held the view that it is in the best interests of the child to maintain a relationship with the Father and members of the paternal family on the more limited times proposed by her recommendations. Ms F also acknowledges the maternal concerns and past experiences of family violence and also noted that the Mother has not been fully compliant with Court orders. She noted that this raised concerns that she may not be fully facilitating and accepting of the paternal relationships with the child. For this reason caution should be exercised in respect to the Mother’s proposal for sole parental responsibility.
Ms F gave consideration in her oral evidence to the Father’s proposal for the child to spend three days per fortnight if the Mother was to live in Melbourne. Ms F stated that the question of whether spend time should be two days or three days relies on practicability, including where the child is going to school and where the Mother lives.
In relation to the question as to whether orders should be made for the child to spend one weekend per term or one weekend per month with the Father if the mother was to remain in Sydney, Ms F expressed the opinion that the child was resistant to spending extended times away from the Mother. She was conscious that monthly visits were quite frequent for a child who had mixed feelings about spending time the Father, also taking into account the cost involved with regular interstate travel. As to whether the child should spend one week per school holiday period with the Father including the extended Christmas holiday, Ms F again, urged caution and recommended the time be limited to one week for each holiday period.
Ms F also recommended that the Father should be permitted to travel to Sydney to spend time with the child. Submissions by Counsel for the Father submitted that orders should be made allowing the Father to spend time with the child in Sydney upon giving 14 days’ notice. Counsel for the Father requested that the child is to spend two days/nights with the Father on two occasions per year or otherwise as agreed to between the parties. That is a sensible submission and orders will be made to that effect.
The Family Report outlined recommendations pertaining to the circumstances of the Mother remaining in New South Wales with the child, and also the circumstances of the Mother returning to Melbourne with the child.
These recommendations are set out as follows at [59] – [61]:
59. That X continue to live in the primary maternal care.
60.That X, if the maternal family remain living in Sydney, spends time and communicates with the father once during school term for a weekend, for one week during each holiday period, on other occasions as agreed and by weekly telephone contact to facilitate these arrangements. That X have flexibility and privacy in respect to telephone contact with either parent.
61.That X, if the maternal family returns to live in the Melbourne area, spend time with the paternal family on alternate weekends, one week during school holiday periods, on other occasions as agreed with flexibility and privacy in the area of telephone contact with each parent.
This is a matter where the arrangements between the Father and child have been unsettled for an extended period. The Father’s chronology set out in his case outline shows the child has experienced a prolonged period of disturbance due to the exposure to parental conflict. The issues in this family situation are long-standing and entrenched in nature. This was noted by Ms F:
Both parties impress as to lacking trust in the other parent, citing a long history of challenges both in relation to their post separation communication and agreed parenting arrangements for the child.
In my view it is in the best interests for the child to spend more limited periods of time with the Father as recommended by Ms F. The child is now 11 years old and able to express herself and raise concerns. Given her stated reluctance to spend more extended periods of time with the Father and his family, the more limited proposal should be implemented. This is likely to lead to the conclusion of proceedings whereas more extended times are likely to promote ongoing disputes between the parties, particularly given the cost of implementing the orders.
Statutory Considerations
In relation to parental responsibility, there is no evidence before the Court sufficient to displace the presumption of shared parental responsibility. Of course while the child is residing with the Mother she will principally make day to day decisions about the child’s health and education. I do not see that there is any requirement that an order be made giving her sole parental responsibility. Orders will be made requiring the Mother to keep the Father informed of long-term decisions that she makes in relation to her daughter whilst she is in the Mother’s care.
By operation of s60CA of the Family Law Act 1975 (Cth) (“the Act”), the Court is required to have regard to the best interests of the child as the paramount consideration when making parenting orders. To determine what is in the best interests of the child in this matter, the Court is guided by the primary and secondary considerations set out in s60CC of the Act.
Primary Considerations
In terms of the primary considerations under s60CC(2) of the Act, I have regard to the following:
s60CC(2)(a) – the benefit to the child of having a meaningful relationship with both the child’s parents;
s60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The orders of the Court take into account the difficulties of the child spending time with her Father given that she lives with her Mother in Sydney. The orders provide for sufficient time for the child to have a meaningful relationship with the Father, by means of face-to-face time and time that could be spent by telephone or video. There is no evidence before the Court that the child is at risk of psychological harm from being subjected to abuse, neglect, or family violence.
Secondary Considerations
In terms of dealing with the matters that I must have regard to under s60CC(3), to the extent that I have not already done so, I have regard to the following relevant considerations.
s60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
As stated above and confirmed in the Family Report, the child has expressed a reluctance to spend more extended time with the Father. There is a risk that those views have been influenced by the Mother and I take that into account. The child has expressed a desire to spend more time with her Mother. This is understandable given that she has been in the Mother’s primary care all of her life.
s60CC(3)(b) – the nature of the relationship of the child with: (i) each of the children’s parents; and (ii) other persons (including any grandparent or other relative of the child);
The child has lived in the primary care of the Mother but has spent significant time with the Father over the years. The child has expressed concerns about her relationship with the Father’s children, his wife and other extended family members. However, there is no evidence to suggest that she is not part of the wider paternal family and that it is not important for those relationships to be maintained.
s60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
There is no evidence before the Court that either parent has failed to take the opportunity to make decisions about long-term issues being spend time and communication arrangements with the child. There have been times when the Father has spent less time with the child but not as a matter of choice.
s60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The Father’s evidence in relation to his obligation to maintain the child was unclear. There was no evidence that he regularly paid child support to the Mother or made any significant payments maintaining the child. The Father’s evidence indicated that he gave the Mother $5,000 cash and paid for her half the costs of an airplane ticket to Country E and had also provided gifts and clothes.
s60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The order recommended by Ms F provide for the child to spend meaningful time with the Father on a regular basis. Such orders are likely to enhance the child’s relationship with the Father and the Father’s extended family. The orders recommended are unlikely to detract from the child’s relationship with the Mother and the Mother’s extended family.
s60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis;
The fact that the Mother has relocated to Sydney creates a practical difficulty and expense. This is a difficulty for both parties given neither parties have significant funds, but is an issue that can be ameliorated by the costs of travel and accommodation being shared between the parents.
s60CC(3)(f) – the capacity of: (i) each of the children’s parents; and (ii) any other person (including any grandparent or other relative of the children), to provide for the needs of the children, including emotional and intellectual needs;
Neither parents lack the capacity to care for the child.
s60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
There is no evidence before the Court that questions that questions the maturity, sex, lifestyle and background that have impacted the best interests of the child.
s60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration.
s60CC(3)(i) – the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents;
There is no evidence that either parent does not take responsibility of parenthood seriously. The Father has explained that any failure to regularly pay child support is explained by the fact that he has four other children and a limited income.
s60CC(3)(j) – any family violence involving the child or a member of the child's family;
s60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;
s60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to that child;
In my view the orders for more limited time are more likely to encourage the parties not to institute further proceedings. Orders for more extended times or more frequent times are likely to add to the expenses of the parties which will create and tension and probably lead to the institution of further proceedings.
s60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
No other matter is relevant.
CONCLUSION
For these reasons I will make orders in the terms set out above.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 13 December 2021
0
0
0