Biondi & Koen (No 2)
[2022] FedCFamC1F 64
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Biondi & Koen (No 2) [2022] FedCFamC1F 64
File number(s): MLC 2872 of 2017 Judgment of: BENNETT J Date of judgment: 28 January 2022 Catchwords: FAMILY LAW- PARENTING – where parenting proceedings have been heard in a disjointed manner and parties have leave to re-open their cases – where private family report ordered to be prepared by a specific expert where parties are unable to agree on a family report writer – where family report writer can have access to reasons for decision published in 2021
FAMILY LAW- PARENTING – where court considers father’s application for further interim time with child pending final hearing.Division: Division 1 First Instance Number of paragraphs: 46 Date of hearing: 28 January 2022 Place: Melbourne (heard via MS Teams) Counsel for the Applicant: Mr Whitchurch Solicitor for the Applicant: Macgregor Solicitors Counsel for the Respondent: Ms Stoikovska SC Solicitor for the Respondent: Lander And Rogers Counsel for the Independent Children’s Lawyer: Mr Eidelson Solicitor for the Independent Children’s Lawyer: Southern Family Law
Table of Corrections 22 February 2022 In paragraph 19 the words “is not” have been added to the sentence “Ms [Y’s] function to make a decision about whether or not the mother is entitled to relocate [Xs’] place of residence to [Country D]” to read “Ms [Y’s] function is not to make a decision about whether or not the mother is entitled to relocate [Xs’] place of residence to [Country D].”
ORDERS
MLC 2872 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BIONDI
Applicant
AND: MR KOEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
28 JANUARY 2022
THE COURT ORDERS THAT:
1.The matter be set down hearing on 26 April 2022 at 10.00 am for the purpose of receiving the further evidence which the parties have been given leave to adduce pursuant to paragraph 2 of the Order made on 22 April 2021, as amended by paragraph 4 of the Order made on 3 November 2021, being:-
(a)the health risks to the child X born … 2016 (“X” “the child”) and the mother of returning to Country D with the child to reside permanently;
(b)the ease of exercising international access across international borders during pandemic conditions in Country D; and
(c)relevant developments or events which have occurred since evidence was concluded on 23 December 2019.
2.Pursuant to section 62G(2) of the Family Law Act 1975 a full family report be prepared. For that purpose the parties and child X born … 2016 attend upon Ms Y(“Family Report Writer”) for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties comply with all reasonable directions as to attendance upon the said Family Report Writer as and when required by the said Family Report Writer. Such report to be commenced on or about 17 February 2022 and be released by not later than 10 March 2022.
3.The family report deal with the following matters:-
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that may affect the weight that the court should place on those views;
(b)the matters set out in s60CC of the Family Law Act;
(c)an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;
(d)an observation of each of the parties with the child (unless it appears to the Family Report Writer that such an observation taking place is not in the immediate best interests of the child);
(e)recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the child’s best interest to the greatest extent possible.
4.For the avoidance of doubt the Family Report Writer be and is hereby authorized to have reference to:-
(a)all documents filed in these proceedings;
(b)any documents produced on subpoenae and released for inspection by all parties;
(c)any documents provided to her by the independent children’s lawyer who will give notice to the other parties to the proceedings of what documents are so provided;
(d)any documents or things referred to in this Order.
5.For the avoidance of doubt, the materials to be made available to Ms Y for the purpose of her assessment include:
(a)the s62G(2) report of Dr B filed 22 February 2019;
(b)the transcript of Dr B’s evidence and cross examination on 23 December 2019;
(c)a copy of my reasons for decision handed down on 12 February 2021; and
(d)this Order and my reasons therefore.
6.The Father be solely responsible for the reasonable cost of Ms Y’s report.
7.The mother do all acts and things necessary to enrol the child X born … 2016 for attendance at the Z pre-school (“the kindergarten”) for not less than three (3) full days per week and the mother provide proof of enrolment to the father and the independent children’s lawyer by 4:00 p.m. on Wednesday 2 February 2022.
8.The father be responsible for the cost of X’s attendance at kindergarten for three to four days per week and the account for payment of kindergarten fees be in the name of the father so that he may claim and receive the rebate on fees.
9.Until further order, the father spend time with the child as follows:
(a)From the conclusion of kindergarten each Monday to the commencement of kindergarten on Tuesday;
(b)Commencing next week and in each alternate week thereafter, from the conclusion of kindergarten on Wednesday to the commencement of kindergarten on Friday or, if X is not enrolled to attend kindergarten until 8:30 a.m. on Friday outside the kindergarten (as provided for in paragraph 10 of this Order;
(c)Commencing 6 February 2022 and in each alternate week thereafter, from the conclusion of kindergarten on Thursday to the commencement of kindergarten on Friday or, if X is not enrolled to attend kindergarten until 8:30 a.m.; and
(d)As may otherwise be agreed between the parents from time to time.
10.All changeovers for the purpose of time spent between the father and the child be the kindergarten at either the commencement of kindergarten being 8:30 a.m. or the conclusion of kindergarten being 4:30 p.m.
11.The mother ensure that the child attends kindergarten on each day that the father is entitled pursuant to this Order to collect the child from kindergarten at the commencement of his time and, for that purpose, the mother enrol the child to attend kindergarten not less than every second Wednesday commencing on Wednesday 2 February 2022.
12.The independent children’s lawyer be responsible for service of a copy of this Order on the proper officer of the kindergarten.
13.I decline the father’s application to vary the requirement for supervision of time spent between the father and the child at this time and adjourn that application and the balance of the Application in a Proceeding of the father filed on 3 December 2021and the mother’s Response thereto filed 25 January 2022 for consideration by me at the final hearing with particular application to the period for which my decision is reserved save that the mother’s application for further litigation funding may be dealt with earlier than at the conclusion of the hearing of further evidence.
14.My reasons for decision be transcribed and, when settled, be placed on the Court file and a copy provided to the parties and by the Independent Children’s lawyer to Ms Y, family report writer with a request that she read them prior to the assessment interviews.
15.That pursuant to section 65DA(2) of the Family Law Act 1975, 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 Attachment A 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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Ex temporeAmended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 22 February 2022
BENNETT J:
Introduction
This matter comes before me in anticipation of a final hearing, which I have set down today to commence on 26 April 2022. These reasons deal with discrete applications of the parents for various orders to ready the matter for the last part of the trial and/or to change interim parenting arrangements for their daughter, X, born in … 2016 and now 5 years old.
To give context to this decision, this parenting matter came before me for final hearing and was the subject of evidence between 18 and 23 December 2019. My decision was reserved at the conclusion of the hearing. The COVID-19 pandemic hit Australia and Melbourne in March 2020. For that year, Country D was reputedly faring very poorly in its efforts to cope with the virus comparable to Australia. The matter was then mentioned before me on 27 March, 2020 to ascertain any relevant developments and then again on 10 December, 2020 and 8 February 2021. On 12 February 2021, I delivered reasons for decision in this matter, having regard to the evidence adduced up to 23 December 2020 as well as the concessions made at the hearing and on 10 December 2020 and 8 February 2021. My reasons of 12 February 2021 explain why I had determined that it was in the best interests of X, then aged 4, for me to accede to the mother’s application and permit the mother to relocate X’s residence to Country D on a permanent basis with arrangements for time to be spent between the father and X going forward. At paragraphs [240] to [243] of my reasons of 12 February 2021, I stated:
•I have not set a specific date for [X] to depart. The mother should provide not less than 30 days notice and departure is conditional upon enforceability of the Australian order in [Country D]. I predict that the mother’s departure may be delayed by the need to perfect enforcement so I urge both parties not to lose time doing all acts and things necessary to bring it about. For what it is worth, I consider that it would be prudent to authorise the Hague Network Judges in Australia, including Hon. Justice Williams and myself to communicate with our counterparts in [Country D] or such other judicial officer in [Country D] who may be competent to assist.
•As observed earlier, I have not considered nor determined any issue of vaccination of the child and/or the mother against COVID-19.
•For the avoidance of doubt, [X’s] departure is not conditional upon any level of travel alert issued by the Australian Government. There was no evidence that the mother required an exemption to travel out of Australia with [X] and there is the concession in relation to the requirements for entry to [Country D].
•Given that the orders will need to be quite detailed, I ask the practitioners for the parties to be responsible for refining my first draft of the orders which is distributed with these reasons for decision.
No minutes refining my draft orders eventuated. No orders have been made implementing my reasons for decision.
Formulation of final orders was overtaken by controversy about how X could safely journey to Country D, giving the impact of the pandemic. It was apparent that the final decision would have to contemplate parenting orders reflecting any conditions precedent to X’s departure from Australia as well as rights and responsibilities relating to the pandemic after X arrived in Country D. It was the father’s position that travel to, and living in, Country D was not safe and the mother’s position that she and X should be permitted to leave forthwith. It was necessary for the parties to adduce expert evidence on matters relevant to the pandemic. Accordingly, on application by the father, I gave leave to the parties to re-open their respective cases for such evidence to be received.
It eventually became apparent that the parties would not agree on a single expert witness to provide evidence about precautions for X to journey to Country D. Then each parent retained experts and I gave permission for each to rely on other than single expert witness evidence.
It appears that the mother made a notification to the Department of Families Fairness and Housing (“Department”) about X being injured whilst in the father’s care and in August 2021. On 3 November 2021 I requested that a report be prepared by the Department encompassing s69ZW and s91B issues. The Department’s report was published on 23 November 2021 and was distributed to the parties. It recorded the Department’s decision that the allegations against the father were not substantiated but that reported concerns of physical and emotional harm to X by the mother were substantiated within the meaning of the Child Youth and Family Act 2005. It is recorded that:
This decision was made given Child Protection’s observations of [X] in both Mr [Koen] and Ms [Biondi’s] home. At Ms [Biondi’s] home, [X] was observed to be on edge, on her best behaviour and presented in an adult like manner. Contrastingly, at Mr [Koen’s] house, [X] was observed to be extremely relaxed, happy, confident, and unafraid to be a child whilst in Mr [Koen’s] care. [X] misbehaved whilst in the care of Mr [Koen] and she did not appear to be fearful of any consequences.
The authors of the report are Ms AA and Ms BB. They refer to their own observations and to having consulted with Mrs CC. The report contains the following summary:
Protective Assessment
It has been assessed that the parents have an extremely acrimonious relationship which is evident by the ongoing Family Law Court proceedings.
It appears that communication between Mr [Koen] and Ms [Biondi] is poor and it appears that Mr [Koen] has attempted to engage Ms [Biondi] in civil discussions around implementing supports for [X] however, these often go unanswered which causes a barrier for [X] to be linked in with appropriate supports. It appears Ms [Biondi] may be engaging in parental alienation against Mr [Koen]. Child Protection are concerned about the emotional and psychological harm to [X] should Ms [Biondi] continue to behave in such a manner and disengage in attempts to have discussions around supports for [X].
Child Protection has concerns for [X’s] emotional and psychological wellbeing if continued to be exposed to Ms [Biondi] and Mr [Koen’s] acrimonious relationship without any emotional or psychological support from a professional. This assessment has been made given that [X] appears to be torn between both parents and seems as though she is hesitant to let down either parent.
The initial concerns were raised in relation to Mr [Koen] however, Child Protection have assessed him as appropriate. This assessment was formed based on Child Protection’s interactions with Mr [Koen] and observations between [X] and Mr [Koen]. Mr [Koen] has demonstrated with insight into [X’s] needs including the importance of Kindergarten and a counsellor / psychologist and has demonstrated the importance of putting [X’s] needs before his own. Child Protection have strongly encouraged Mr [Koen] to seek legal advice about increasing contact with [X] through the Family Law Court arena given that Child Protection have found no protective concerns in relation to [X] being in Mr [Koen’s] care at this time and there is no reason why contact should not be increased at this time.
Child Protection has observed Ms [Biondi] caring and tending to [X] appropriately and Child Protection have not assessed that [X] is at immediate risk in Ms [Biondi’s] care at this time, as long as Ms [Biondi] and Mr [Koen] don’t expose [X] to their acrimonious relationship and communicate and work together to implement supports to better support [X].
Whilst child protection has substantiated the reported concerns based on the likelihood of emotional harm to [X], it has been assessed that [X] is not at immediate risk of harm in either parents care which doesn’t warrant legal intervention. However, Child Protection still have concerns about the impact on [X’s] emotional and psychological wellbeing, the following recommendations have been made:
•[X] to be linked in with a psychologist/counsellor as soon as possible and who can conduct face to face sessions in Melbourne. The mother has requested the psychologist to be [Language EE] speaking of which Child Protection are not opposed to, as long as he/she is located in Melbourne, VIC.
•[X] to attend regular kindergarten program.
•Handovers to be quick and should not be any longer than 5 minutes.
•Mr [Koen] and Ms [Biondi] to encourage [X] to attend contact at both homes.
•Mr [Koen] and Ms [Biondi] are not to speak ill about the other parent to [X].
Child protection have assessed that closure is appropriate to close given that the matter would be better dealt with in the Family Law Court arena.
I note that the mother’s family name is incomplete and is misspelt in the Department’s report.
The Department’s report records that, at the request of the mother, the Department are undertaking a review of the decision to substantiate allegations made against the mother.
The father sought and obtained permission to reopen the evidence in the case to cover the impact of COVID-19 on the child’s ability to be returned to and reside safely in Country D and relevant events that have occurred since evidence was concluded on 23 December 2019.
Single expert witness for preparation of family report
After much to-ing and fro-ing between the parties and consequent delay in readying the matter for final hearing the parents had not been able to agree upon a single expert to prepare the family report. A family report is necessary because the parties are now able to adduce evidence of relevant matters which have occurred since 23 December 2019 and some such matters will inevitably require expert evidence including in relation to childhood development, parenting capacity and the like.
I have decided that the family report in the matter will be prepared by Ms Y, psychologist. Notably all practitioners have stated that they have confidence in Ms Y’s ability.
For the father’s part, Ms Stoikovska QC informed the court that Dr B, who has previously done a family report in the matter, is also available, but concedes that her availability is at least two months later than Ms Y’s availability. Ms Stoikovska submitted that an advantage of retaining Dr B, over Ms Y, is that Dr B is familiar with the matter and would recall the case. Dr B held assessment interviews on 15 January 2019 and 22 January 2019 with a home visit and handover observation on 23 January 2019. Dr B published her report on 5 February 2019 and it was affirmed on affidavit on 19 February 2019. The parties did not seek to cross examine Dr B at the final hearing in 2019 but, ultimately, I required that she be called to give some evidence about consequential orders and she did so on 23 December 2019. My questions were specifically directed to what arrangements would be in X’s best interest if she was to relocate to Country D. I am not convinced that Dr B would have a significant recall of this matter. In any event, it is important to note the task at hand. That is to assess and report on how events which have occurred since December 2019 impact on this case from the perspective of child development and parenting capacity. I am satisfied that Ms Y is equal to that task and have ordered accordingly.
Should the family report writer have access to my reasons of 12 February 2021 of the assessment?
Counsel for the mother and counsel for the Independent Children's Lawyer submitted that my reasons published on 12 February 2021 ought to be available to Ms Y when she undertakes her assessment for the family report. I agree with that submission but I have also considered the arguments of Ms Stoikovska for the father, who opposes Ms Y being able to have access to the reasons.
I am not impelling Ms Y to read any of the materials with which she is provided including my reasons. It will be up to Ms Y, and within her discretion, as to whether she reads the reasons and, if she decides to read them, whether she reads them before or after the assessment process for a family report or before and after she conducts the assessment interviews.
Ms Stoikovska objects to Ms Y seeing the reasons because she is concerned that Ms Y would, thereby, know that, as at 2019, or more particularly, 12 February 2021, I had decided that it was in X’s best interests for her to be able to travel to and relocate permanently in Country D. Ms Stoikovska submits that Ms Y may be unduly influenced by my findings of February 2021 and be predisposed to tailor her assessment to be consistent with those findings rather than to bring a fresh and impartial mind to her assessment of the family including events which have transpired since 23 December 2019. Ms Stoikovska submitted that it would be “prejudicial” to have a single expert, newly engaged, read my conclusions up to 12 February 2021. In my view, that submission does not give due weight to the recognised role of a family report writer. Their task is not to pick a winner or even to express a view about the final result. The family report writer’s role is to give evidence about matters including childhood development, the relationships between the parents and the child and the parents and parental capacity, behaviour and scope of changes in behaviour and resources for the education and information of parents. The judge takes all evidence into account and makes the decision.
Ms Stoikovska submitted that it would make no difference if I expressly stated to Ms Y that, whereas I made certain findings as at 12 February 2021, I am not bound to come to the same conclusions and outcome once I have regard to evidence to be adduced by the parents as to what has occurred since 23 December 2019. That is, I came to certain conclusions based on evidence and concessions as at 12 February 2021 but that it is open to me to decide that another outcome is in X’s best interest having regard to events and matters occurring since 23 December 2019.
There is also the practical consideration that my findings of 12 February 2021 are now part of the factual matrix, they are part of the history of the family. Amongst other things, Ms Y will assess the parents with some regard to how each has reacted to the findings I made in February 2021 and, in particular, whether he/she has recognised and/or addressed any deficits identified by me. My reasons cannot be quarantined. As a matter of common sense, when the parents see Ms Y, he/she may refer to the fact that, in 2021, I decided that the mother should be able to relocate X’s residence to Country D. If Ms Y does not have access to the reasons, she would not know what the parties were talking about. I cannot limit the parties in what they discuss with Ms Y.
Ms Y’s function is not to make a decision about whether or not the mother is entitled to relocate Xs’ place of residence to Country D. She is an expert who takes into account what she sees of the parties, the facts which are put to her, either by agreement or in evidence, and then she renders an opinion as to childhood development, parental capacity and the like. She will not ultimately be seized of any decision-making power or discretion about whether X resides long-term in Australia or in Country D. Ms Y well knows the functions of a family consultant and well knows and understands the function of a judge, and that they are entirely different functions.
There is an inconsistency in Ms Y being provided (as is agreed) with the family report of Dr B and a transcript of Dr Bs’ responses to my questions but that Ms Y not be given my reasons for decision. Ms Y will be able to read a transcript of Dr B’s evidence on 23 December 2019, most of which explored best interest concerns if the mother’s relocation application was granted. Ms Y will, thereby, be informed of what I was considering as at February 2021. But as I have said, I will take into account the matters which have occurred since February 2021, about which the parties have been able to and have given evidence by way of affidavit. For the above reasons, my reasons for decision published 12 February 2021 will be included in the documents made available to Ms Y.
Which kindergarten should X attend in 2022 and for how many days per week?
The next matter that is agitated is the change of kindergarten as sought by the mother and the father’s application to prevent the mother from doing so. At the moment, X goes to R pre-chool on two days per week. The father collects X from the mother’s residence and takes her to kindergarten and then calls to collect her from kindergarten and takes her home to his residence, where she spends the evening. The father delivers X back to the mother the next day. The changeovers which are not effected at kindergarten occur at a park close to the mother’s residence. The changeovers are, by all reports, attended by anxiety and sometimes upset on the part of the child, which the mother characterises as “separation anxiety.”
X only goes to kindergarten on the days that the father takes her notwithstanding that X is five years old and that the mother’s evidence indicates that she is more than ready for school. In Australia, X is entitled to attend school now and, indeed, would be expected to attend school this year as a student in preparatory grade. Preparatory grade is the first year of school and, for the first month or so, some schools have shortened days or have children attend only certain days per week. After a few weeks of short days or short weeks, the children are eased into attending preparatory grade five days a week.
In relation to the readiness of X for school, I infer that from the mother’s statement at page 41 of her lengthy affidavit in which she says:
I say that [X] is very smart little girl, and it seems to me that the father fails to acknowledge this. [X] is one and a half years beyond her age, and she was recently classified as a “gifted child” according to the Brigance Childhood Screen.
The mother says that she prefers to send X to the kindergarten which is closest to her, and that this accords with the recommendation made by the Department. It is common ground, however, that the Department made that recommendation when the mother did not have a driver’s licence and therefore would have faced some logistic difficulty getting the child to and from kindergarten. The mother now has a driver’s licence. She has a car which is funded principally by the father. The mother deposes that she would prefer that X attend kindergarten around the corner from her residence. She points to the obvious benefits of being able to walk X to kindergarten. I recognise that the ability to walk a child to kindergarten or school is more than just a logistic benefit. It can be a very pleasurable activity for the child.
The mother also points to the possibility of X being able to make new friends in the local area. I infer that the mother my also make friends with the parents of children who reside in the area for which the mother’s preferred kindergarten is the catchment area. These are reasonable motivations on the part of the mother. The father, on the other hand, says that X is settled in R pre-school and she should not be disturbed. Ms Stoikovska submitted that X’s relationship with her teachers should not be dislocated.
Counsel for the independent children’s lawyer reiterated my observation that, if X returns to R pre-school this year, she will effectively be repeating a year. Presumably, X will be in four-year-old kinder again, notwithstanding that she is five years old and on the mother’s assessment really achieving as a six and a half year old child. X will be in the company of the children who were in the level below her last year. Counsel for the independent children’s lawyer submitted that X should be attending mainstream school this year, in preparatory grade. He characterised the mother’s proposal to keep X at kindergarten as an arrangement which meets the mother’s needs as opposed to the child’s needs. Whereas the suggestion of the independent children’s lawyer has merit, the parents had not prepared a case about school attendance so the alternatives for me were confined to which kindergarten the child should attend and for how many days per week. After hearing the view of the independent children’s lawyer, the mother said that she did not wish to proceed with a change of kindergarten if to do so would mean that X attended more than two days per week.
In my view, there is a benefit in X being able to see that she has progressed to a new institution and a new kindergarten rather than repeating the year at R pre-chool. The mother seeks to confine X’s attendance at kindergarten to only two days per week because she is teaching her cultural knowledge on the other days. The mother’s expressed intention is to have X ready to commence her education in Country DD. Otherwise it was submitted by Mr Whitchurch of counsel that the days that X spends at kindergarten followed by time with the father are tiring for her and that X needs to have a sleep after she is returned by the father. That was a matter put by Mr Whitchurch on instructions, but which does not, as best I can see, appear in the mother’s affidavit. The father, as part of his application, seeks that X increase her attendance at kindergarten, which is funded for 15 hours per week. He seeks that X attend from 10:00 a.m. to 3:00 p.m. on three days per week.
In my view, it is reasonable that X progress to at least three days a week at kindergarten. I take into account the mother’s sound motivation in teaching X foreign languages and educating X about Country DD culture in preparation for the child’s relocation to Country DD (as sought by her) . From the mother’s perspective, she says that if she is ultimately permitted to relocate to Country DD with X, which is her desire and her expectation, she wants to make sure that X is prepared to go into Country D’s educational system as and when she arrives. There is some merit in that position but, in my opinion, there is more merit in increasing X’s time at kindergarten to more than two days per week. If the mother is permitted to relocate, X will be immersed in Country DD culture and be attending a Country DD school. The mother’s evidence is that X excels academically. I take it that X has some good grasp of foreign languages. However, if the mother does succeed and is able to relocate X’s residence to Country DD, it seems all the more important that X be able to take memories of Australia with her which are extensive as possible. Those memories will include her experiences at kindergarten with other Australian children as well as being at home with the mother learning foreign languages.
I accept that the mother is well-motivated, but there are other benefits to X attending three days a week in the Australian educational institution. If the mother is not successful and X’s residence remains in Australia, X will enter the Australian educational system next year at Preparatory level. If X must start school here next year, it will be as well that she had three rather than two days at kindergarten each week. If the mother is able to relocate X’s residence to Country DD, X will have recollections and experience of going to kindergarten in Australia three day per week.
I am satisfied that increasing X’s kindergarten attendance to three days each week is in her best interests.
As to the choice of kindergarten, there is not a scintilla of evidence provided to me which permits me to compare one kindergarten with the other.
Ultimately, I am persuaded to permit the mother to change X’s kindergarten. X will attend the kindergarten chosen by the mother and which she describes as being located around the corner from her residence with X. It is the kindergarten which will present no logistical difficulties for X’s attendance. As the mother deposes, they can walk to that kindergarten. It is an environment in which the mother says that she can a look forward to making some new friends and the X may look forward to making new friends.
Put simply, the mother may be more inclined to send the X to kindergarten three days a week - even though she only wants to send her two days a week - if it is to the kindergarten of her choice. My impression is that the mother may undervalue the benefit that X will get from more socialisation with Australian children and at least one extra day at kindergarten. It is not my function to change the mother’s mindset but it is my intention to make X’s attendance at kindergarten three days per week as easy for the mother as possible. I expect that the independent children’s lawyer will arrange for production at the final hearing of the new kindergarten’s records which will substantiate X’s attendance for three full days a week.
Increasing time spent between the father and the child on an interim basis
The next issue with which I will deal in short compass is an expansion of the father’s time with X between now and the final hearing which commences in late April and, unless then altered, for any period during which my decision is reserved.
As a general proposition, parents should not be encouraged to make successive applications for alterations to parenting orders on an interim basis. Interim hearings place parents under pressure, distract them from the tasks of day to day life including parenting and are potentially disruptive, if not unsettling, for children. Interim hearings are of limited amenity because evidence may not be complete and what lay and expert evidence exists may not be able to be tested in cross examination or otherwise. It is usually preferable to proceed to a final determination rather than allow the parties’ emotional and financial resources to be depleted by interim hearings. However, this matter has already been ventilated at a final hearing. I am familiar with the issues and the parties and have received a great deal of evidence. The proceedings have been characterised by many stops and starts and the current regime for the father’s time with X has been in place for some time. My impression is that X’s time with the father can be increased pending the final hearing. I do not have an up to date family report but I have received into evidence the positive reports of the Department of observations of X with the father and in the father’s household. I acknowledge that the report of the Department has not been tested in cross examination and is subject to a review sought by the mother. That said, the mother does not articulate why the Department’s assessment is unsound in terms, for instance, of methodology, errors of fact or taking into account irrelevant matters.
By his Application in a Proceeding filed on 3 December 2021 the father seeks six out of 14 nights. The father also seeks to be relieved from the current requirement of supervision of overnight time by his sister. Any alteration to duration or supervision of time is opposed by the mother. At the moment, the father has time with X on Mondays and Thursdays when he takes her to kindergarten. The father doesn’t spend time with X when she is at kindergarten, but she comes home and stays with him overnight twice each week.
It is submitted by senior counsel for the father that one advantage to increasing X’s time with the father and making it unsupervised is that it would more closely approximate the time which the father would spend with X in Country DD if, contrary to his application, X goes to Country DD to reside permanently. There is some merit in that submission but it is not enough, per se, to persuade me that an increase is warranted.
X is now six years old. She is, on either parent’s evidence, not being taxed by an intense educational curriculum this year. I am satisfied that X can cope with another night with the father each fortnight so that she spend three overnights in one week and two overnights in the next week or vice versa. That is five nights out of each 14 nights. The independent children’s lawyer supports the incremental increase to take effect immediately.
I am satisfied that X will cope with an extra night with the father. The mother may find it challenging and she should seek some professional support if that would assist her to come to terms with further time without X. The mother should assume that X may make negative reports to her about the father and the father’s household which are not necessarily based in fact because that may be what X recognises accords with the mother’s expectations and is what the mother has become accustomed to hear.
I will not dispense with supervision of time by the father’s sister. I want to maintain an arrangements with which X is familiar and she is accustomed to the presence of the paternal aunt.
I am satisfied that it is in X’s best interests to spend one extra night each fortnight with the father. I will order accordingly.
Litigation funding
On 6 April 2021, I ordered, inter alia, that he father pay $10,000 into the trust account of his solicitors for payment out for the mother’s reasonable legal costs and disbursements associated with the father’s application to adduce further evidence in this parenting proceeding and matters relevant if further evidence is adduced.
On 3 November 2021, I ordered, inter alia, that:
10. The father pay the further sum of $12,500 on account of anticipated costs of the mother, such payment to be made to the mother’s solicitors, Macgregor Solicitors.
11. For the purpose of the payment required by the preceding order, the solicitors for the father pay one half of any monies paid to them by or on behalf of the father, to Macgregor Solicitors on account of the father’s liability pursuant to the preceding order, until the monies so paid reach the sum of $12,500.
12. For the avoidance of doubt, the sum of $12,500 is due and payable immediately and may be paid by the father directly to the mother’s solicitors and/or pursuant to paragraph 11 of this Order.
13. The monies previously paid by the husband pursuant to the Order made on 22 April 2021, being the sum of $10,000, be paid by the husband’s solicitor to Macgregor Solicitors forthwith.
14. The mother’s solicitor be and is hereby entitled to draw upon the monies received provided the solicitor first prepares and accounts for same (which account should not divulge information to which legal professional privilege could be argued to apply) and provide the husband’s solicitors with a copy of that account 7 days prior to any monies being drawn on. In the event that the father contests the propriety of any alleged payment he be at liberty to have the matter listed before me by arrangement with my Chambers – email …
15. Pending the father’s compliance with paragraph 10 herein, the father be and is hereby restrained by injunction from causing permitting or suffering any monies to be paid by the father or on his behalf for legal costs or disbursements to any person other than his solicitors on the record.
On 7 December 2021 I ordered, inter alia, that paragraph 10 of the Order made on 3 November 2021 be varied to refer to $25,000 and there be a corresponding variation to paragraph 11 of the said Order directed to the solicitors for the father.
Counsel for the mother asserts that the proceedings have been more costly than was contemplated by the existing orders pursuant to which the father funds the mother’s legal costs in this proceeding. There is insufficient time for me to consider the litigation funding issue now. It can be raised as a preliminary matter at the final hearing.
Generally
The court has sat late to consider the above matters. The balance of the competing applications, including the application about X’s attendance on a child psychologist for therapy, will be adjourned to the final hearing in April 2022.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett delivered on 28 January 2022. Associate:
Dated: 16 February 2022
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