Bissette and Seymour

FAMILY COURT OF AUSTRALIA

BISSETTE & SEYMOUR

[2019] FamCA 896

FAMILY LAW – CHILDREN – Best Interests – Nature and extent of the child’s time with the father – Where consideration of applicable principles – Orders made for agreed time or in default of agreement defined time with the father

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

APPLICANT:

Mr Bissette

RESPONDENT:

Ms Seymour

INDEPENDENT CHILDREN’S LAWYER:

Ms Elve

FILE NUMBER:

DUC

296

2017

DATE DELIVERED:

28 November 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

28 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Livingston

SOLICITOR FOR THE APPLICANT:

Mason Mia & Associates-Solicitors & Advocates

COUNSEL FOR THE RESPONDENT:

Ms Reynolds

SOLICITOR FOR THE RESPONDENT:

Kathryn Renshall Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Cairns

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Auslawyers

Orders

That the child X born in 2014 spend time with the father Mr Bissette at such times as may be agreed in writing between the mother Ms Seymour and the father such writing may include SMS or email communication and in default of agreement as follows:
(a)Pursuant to interim orders made 28 October 2019 up to and including Saturday, 28 December 2019;
(b)On Christmas Day 2019 from 1.00 pm to 5.00 pm;
(c)Then commencing Saturday, 11 January 2020, each alternate Saturday from 10.00 am to 5.00 pm;
(d)Then commencing 6 March 2020, each alternate weekend from after school (or 4.00 pm if a non-school day) Friday to 5.00 pm Saturday;
(e)Then commencing 1 May 2020, each alternate weekend from after school (or 4.00 pm if a non-school day) Friday to 5.00 pm (6.00 pm Daylight saving time) Sunday;
(f)Then commencing Term 3, 2020 during NSW school terms, each alternate weekend during school terms commencing on the first weekend after the resumption of school term from after school Friday to before school Monday (or Tuesday if Monday is a public holiday or pupil free day);
(g)From 3.00 pm Christmas Eve to noon Christmas Day in even numbered years, and from noon Christmas Day to 3.00 pm Boxing Day in odd numbered years commencing in 2020;
(h)That the father advise the mother in writing (via SMS text message) of his intention to exercise this time in school holidays no later than 21 days prior to the conclusion of the school term;
(i)That for short holidays when relevant changeover shall take place on the middle Sunday of the school holidays and that for Christmas holidays, changeover shall take place on the ‘middle’ day of the school holidays and if two ‘middle’ days, the first of these days calculated from the 27 December each year to the day before school resumes;
(j)For a period of up to three (3) hours on the child’s birthday, such time as agreed, but failing agreement if a school day from after school to 6.00 pm and if a non-school day from 9.00 am to 1.00 pm;
(k)On the weekend of Father’s Day from 5.00 pm Saturday to 6.00 pm Sunday;
(l)Such other times as agreed to by the parties in writing such writing may include SMS and email communication;
(m)That father’s time shall be suspended on the weekend on which the day known as Mother’s Day arises, from 5.00 pm Saturday to 6.00 pm Sunday;
School Holidays
(n)During NSW midyear school holidays commencing at the end of Term 2, 2020 for a period of four consecutive days from 9.00 am of the first day to 5.00 pm (6.00 pm daylight saving time) on the last day of such period in the first week of such holiday period as nominated by the father in writing to the mother such writing may include SMS or email communication not less than one month before the first day of such period;
(o)During the Christmas school holidays 2020/2021 for two periods of five days being in the weeks commencing 4 January 2021 and 18 January 2021 from 9.00 am of the first day to 5.00 pm (6.00 pm Daylight saving time) on the last day as nominated by the father in writing to the mother such writing may include SMS or email communication not less than one month before the first day of such periods; and
(p)Commencing at the end of Term 1, 2021 for one half of the mid-year school holiday periods being the first half in each odd numbered year and the second half in each even numbered year and commencing in the Christmas school holiday period 2021/2022 one half of such period calculated from 27 December each year to the day before school resumes being the first half in each odd numbered year and the second half in each even numbered year.
Changeovers
That for the purposes of changeovers until and including February 2020 such to be effected as agreed between the parties and in default of agreement at the B Contact Centre at Town D and in the event that the contact centre is not immediately available changeovers be effected at the McDonalds Family Restaurant, Street E, Town D provided always that the mother and the father shall pay equally the cost for changeovers at the contact centre for the purposes of the child spending time with the father and then for changeovers after February 2020 if not at school then as agreed and in default of agreement changeovers be effected at the McDonalds Family Restaurant, Street E, Town D.
That the parties shall supply the other with, and keep up to date, a current mobile telephone number, email and home address and notify the other parent within seven days of any change.
That the mother shall do all such things and sign all necessary documents to cause the father’s name and contact details to be recorded on the child’s school registration information with C Primary School, Town D such that the father is able to:
(a)Obtain school newsletters and notices;
(b)Obtain school photographs and/or photograph order forms;
(c)Obtain the child’s school reports or any other report prepared by the school in relation to the child;
(d)Attend any school performance or school assembly to which parents are normally invited provided always that the father on such occasions shall not approach or communicate with the mother provided always that the father shall obey any reasonable direction by the appropriate school authority as to his attendance or otherwise at such events;
(e)Attend scheduled parent teacher interviews with the child’s teacher provided always that the father shall make such appointments separate to that of the mother and child;
and these orders shall be sufficient authority for this purpose.
That the father may communicate with the child when he is not in his care as follows:
(a)on Tuesdays and Fridays between 7.30 pm and 8.00 pm;
(b)the father shall initiate the Skype call or telephone contact with the child; and
(c)in the event that the child is not available, the mother will notify the father as soon as is practicable and ensure a return call as soon as possible and in any event within 24 hours.
That the mother may communicate with the child when he is not in her care as follows:
(a)on Thursdays and Sundays between 7.30 pm and 8.00 pm;
(b)the mother shall initiate the Skype call or telephone contact with the child; and
(c)in the event that the child is not available, the father will notify the mother as soon as is practicable and ensure a return call as soon as possible and in any event within 24 hours.
That all communication between the parents regarding the child’s ongoing care and welfare and spending time arrangements shall take place via SMS text message and/or email except in case of emergency and the other parent shall ensure they reply promptly and in any event within 24 hours.
That each of the parents shall forthwith inform the other parent of any major illness, injury, hospitalisation, medication, medical or other appointment for the child, and shall provide all information as is necessary to the other parent to enable the other parent to be fully informed of the treatment and condition of the child.
That each of the parents shall advise the other of each medical practitioner that the child may attend from time to time and provide authorities so that the other parent may contact that medical practitioner directly if necessary, and these orders shall be sufficient authority for this purpose.

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 Bissette & Seymour 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 PARRAMATTA

FILE NUMBER: DUC 296 of 2017

Mr Bissette

Applicant

And

Ms Seymour

Respondent

REASONS FOR JUDGMENT

The child the subject of these proceedings is X (“the child”) born in 2014.
The child is five years of age and the parents have been in conflict over parenting arrangements for him since proceedings were commenced in the Town D Local Court in August 2017.
Following the commencement of proceedings in Town D by the applicant father, orders were made in the Town D Local Court on 18 August 2017 that provided for the father to have supervised time with the child each Wednesday for a period of two hours and at any other time as agreed between the parties.
Proceedings were transferred from the Local Court to the Federal Circuit Court of Australia and on 18 October 2017 orders were made transferring the proceedings to this Court noting that there were allegations of child sexual assault upon the subject child by the applicant father.
The proceedings have had a significant history in this Court. On 7 November 2017 an Independent Children’s Lawyer (“ICL”) was appointed to represent the interests of the child.
Subsequently, proceedings were placed in this Court’s Magellan List that deals with children at significant serious risk of harm.
On 7 November 2017 a report was requested from the Department of Family and Community Services (“the Department”) as they were then known as to their engagement in relation to the allegations relating to the child. The report dated 19 January 2018 (Exh “D”) was received by the Court and released to the parties. The Department concluded that the child was “not to be in need of care and protection”. The Department elected not to intervene in these proceedings and the mother was informed that the investigation was closed as allegations were not substantiated and there was no known outstanding risk issues for the child.
In circumstances where the parties were unable to fund a Chapter 15 Single Expert report, a Magellan Family Report was ordered on 21 March 2018. The family report was released to the parties by order dated 23 July 2018.
Following release of the Magellan Family report, trial directions were made on 18 September 2018 and the matter listed for compliance listing before a registrar on 22 November 2018.
On 22 November 2018 the parties had complied with trial directions and the matter was listed for hearing commencing 10.00 am on 19 June 2019 allocating three days for trial.
On 13 March 2019 the Court noted that a Notice of Ceasing to Act had been filed by the solicitor for the mother and that as a consequence she was unrepresented. The matter was listed urgently on 16 April 2019 and the mother informed the Court that she had made application for legal aid. The allocated trial dates were confirmed.
On 19 June 2019, being the first day of the trial, the mother appeared unrepresented. The mother informed the Court that her application for legal aid had not as yet been finalised. Orders were made on that day as follows:
BY CONSENT AND PENDING FURTHER ORDER:
(1)The mother shall by no later than Friday 21 June 2019 do all things necessary and sign all necessary documents to cause the father’s name and contact details to be recorded on the child’s school registration information with C Primary School, Town D such that the father is able to:
(a)Obtain school newsletters and notices;
(b)Obtain school photographs and or photograph order formes;
(c)Attend any school performance or school assembly to which parents are normally invited provided always that the after on such occasions shall not approach or communicate with the mother provided always that the father shall obey any reasonable direction by the appropriate school authority as to his attendance or otherwise at such events;
(d)Attend scheduled parent teacher interviews with the child’s teacher provided always that the father shall make such appointments separate to that of the mother and child;
(2)The mother shall by no later than 21 June 2019 do all things necessary and provide all necessary authorities for the father to obtain reasonably requested medical information from the child’s general practitioner and any other medical practitioner
(3)The mother shall promptly upon receipt by her of the child’s school reports forward a copy of such school reports to the father by email.
UPON HEARING THE MOTHER’S APPLICATION FOR ADJOURNMENT I MAKE THE FOLLOWING ORDERS:
(4)Trial dates fixed for 19, 20, 21 June 2019 be vacated.
(5)Proceedings are adjourned part heard for hearing allocating three days for trial commencing 10.00 am 28 October 2019 with priority and must proceed to final hearing on those dates.
(6)Any further or additional hearing fees be paid, unless otherwise remitted by way of hardship by 18 October 2019.
IT IS FURTHER ORDERED
(7)The costs of the ICL and the Applicant father by reason of the adjournment be reserved.
(8)The Applicant father has leave to withdraw his Application in a Case filed 18 June 2019 and the Application is accordingly dismissed.
The hearing resumed on 28 October 2019 with the mother represented by counsel.
The following documents had already been admitted into evidence:
a)Case outline for the applicant father;
b)Case outline for the ICL;
c)Child Responsive Program Memorandum of December 2017;
d)Magellan Report (Department of Family and Community Services) dated 19 January 2018; and
e)Magellan Family Report dated 4 July 2018 prepared by the family consultant.
On the first day of the trial, the Court also received into evidence relevantly the following documents:
a)Amended case outline of the applicant father;
b)Documents produced on subpoena by NSW Police including transcripts of the child’s JIRT interviews;
c)Documents produced on subpoena by B Contact Centre as to the father’s ongoing supervised time with the child;
d)The mother’s short minute of proposed orders;
e)Documents produced on subpoena by Town D Health Service relating to the subject child;
f)Documents produced on subpoena by the Department of Family and Community Services relating to the investigation as to alleged sexual abuse; and
g)The child’s Semester One 2019 school report.
The proceedings were stood down to facilitate the parties having discussions particularly as to the primary issue as to whether the mother continued to assert that any unsupervised time for the child with the father represented an unacceptable risk.
It was readily apparent that should the mother maintain her position that the child’s time with the father should continue to be supervised in circumstances where the Court determined there was no unacceptable risk to the child by reason of unsupervised time, that the issue of the child’s primary residence may well be enlivened.
During the course of the day the parties and the ICL agreed on certain final orders save for orders relating to the child’s time with the father. It was agreed the child’s time with the father was to be unsupervised and expand out in a child focused manner to facilitate the resumption of the child having a substantial and significant relationship with the father. It was implicit that the mother resiled from any suggestion that the child was at any unacceptable risk in the context of unsupervised time with the father. Her counsel conceded that the evidence supports that position.
Orders were made on 28 October 2019 as to parenting as follows:
BY CONSENT, IT IS ORDERED THAT
(1)The mother, Ms Seymour have sole parental responsibility for the child, X born in 2014.
(2)The mother, in the exercise of sole parental responsibility, consult the father in a timely manner prior to her making decisions in the exercise of parental responsibility including but not limited to issues as to:
(a)The education of the child;
(b)The religion of the child;
(c)Major health decisions for the child;
(d)Any change in the child’s living arrangements that may make it more significantly more difficult for the child to spend time with father; and in consulting the father have appropriate regard to his wishes provided always that the mother shall make the final determination as to such issues.
(3)That the child, X born in 2014 live with the mother.
IT IS FURTHER ORDERED, PENDING FURTHER ORDER AND WITHOUT PREJUDICE AND WITHOUT ADMISSION THAT
(4)That the child spend time with the father as agreed between the mother and father in writing such writing may include SMS and/or email communication and in default of agreement pending further order each alternate Saturday commencing Saturday, 2 November 2019 from 11.00 am to 4.00 pm with changeovers to be effected at the B Contact Centre at Town D and in the event that the contact centre is not immediately available changeovers be effected at the McDonalds Family Restaurant, E Street, Town D provided always that the mother and the father shall pay equally the cost for changeovers at the contact centre.
(5)Judgment is reserved to a date to be fixed noting that the issue for determination is the nature and extent of the child’s time with the father moving forward.
(6)The father provide to the Court in chambers and to the other parties a Minute of Order as sought by him in relation to the child’s time with him on or before Monday, 4 November 2019.
(7)Any short submissions in response to the Minute of Order provided by the father be provided to the Court in chambers by no later than Monday, 11 November 2019.
THE COURT NOTES THAT
(8)There is to be no application for costs by the Independent Children’s Lawyer.
The affidavit evidence filed by the parties provide to the Court little assistance in the task of formulating appropriate orders as to the development of the child’s time with the father.
The family report writer opines at [106] - [107]:
If the court deems that Mr Bissette does not pose an unacceptable risk to [the child], then it is recommended that [the child] spends unsupervised time with him for either five or nine days each fortnight. The determination of whom [the child] spends the majority of his time should be a matter for the court.
It is recommended that the parent with whom [the child] spends the majority of his time hold sole parental responsibility.
By reason of the final orders made by consent, the parties resolved the question of parental responsibility and by implication the issue as to with whom the child should spend the substantial portion of time.

There is no issue by reason of the B Contact Centre documents produced on subpoena that the child continues to have a warm and engaged relationship with the father notwithstanding that that relationship has been subject to supervised time for an inordinately and inappropriately long period.

The parties’ proposals

As to the discrete issue relating to the development of the child’s time with the father, the Court was provided with proposed minutes.
The mother proposed (Exh “J”) that the child’s time with the father, in summary, be as follows:
a)for a period of three months from the date of orders each third Saturday from 11.00 am to 3.00 pm;
b)thereafter for a further period of three months each third Saturday from 11.00 am to 6.00 pm;
c)thereafter for a further three months each third weekend from 11.00 am until 6.00 pm Saturday and 11.00 am to 6.00 pm Sunday;
d)thereafter for a further period of three months each third weekend from 11.00 am Saturday until 6.00 pm Sunday;
e)thereafter each third weekend from 6.00 pm Friday until 6.00 pm Sunday; and
f)that for the purposes of the child’s time with the father changeovers be effected in the foyer of the Town D Police Station.
The mother’s proposals show little insight into appropriate arrangements so as to remedy the damage done to the child’s relationship with the father by reason of her allegations of sexual abuse. It would be more than 12 months until the child commenced an arrangement approximating weekend time and even then only each third weekend. Otherwise, her proposals for changeovers at the police station are inappropriate and not child focused. Further the mother’s proposals have no regard to school holiday periods or special occasions such as the child’s birthday, the father’s birthday or the Christmas festive break, notwithstanding that this was brought to the attention of her counsel.
The ICL provided a minute of order to the Court (Exh “M”) as to the child’s time with the father which provided as follows:
a)for a period of two months from the date of orders each alternate Saturday from 11.00 am until 4.00 pm;
b)thereafter for a further period of two months each alternate weekend from 11.00 am to 4.00 pm Saturday and 11.00 am to 4.00 pm Sunday;
c)thereafter for a further period of two months each alternate weekend from after school Friday until 4.00 pm Saturday;
d)thereafter for a further period of one month each alternate weekend from after school Friday until 4.00 pm Sunday; and
e)thereafter each alternate weekend from after school Friday until the commencement of school Monday extending to Tuesday in the event that Monday is a public holiday or pupil free day.
The ICL’s minute as to time was silent as to the issue of school holidays and/or special days but it was contended by the ICL that provision should be made for such days and for holiday periods commencing with a block of a few days and expanding out to half of such periods.
The father substantially adopted the ICL’s proposal but sought that the time frames between increases in his time with the child shortened and that time eventually be for five nights per fortnight in terms of the Family Report recommendations and provision for school holiday periods.
The father provided a Minute of Proposed orders that sought, in summary, that his time with the child be as follows:
(3)(a) From 10.00 am to 6.00 pm Saturdays every second weekend for a period of three months from the date of making of these orders;
(b)For a period of three months commencing at the expiration of the period provided for in order 3(a) above, from 10.00 am Saturday to 6.00 pm Sunday every second weekend;
(c)For a period of three months commencing at the expiration of the period provided for in order 3(b) above, from the conclusion of school on Friday (or 3.00 pm) to the commencement of school on Monday (or 9.00 am), every second weekend such time extended to the commencement of school on Tuesday (or 9.00 am) if Monday is a school holiday;
(d)For a period of three months commencing at the expiration of the period provided for in order 3(c) above, from the conclusion of school on Wednesday (or 3.00 pm) to the commencement of school on Monday (or 9.00 am), every second weekend such time extended to the commencement of school on Tuesday (or 9.00 am) if Monday is a school holiday;
(e)From 3.00 pm Christmas Eve to 3.00 pm Christmas Day in odd numbered years, and from 3.00 pm Christmas Day to 3.00 pm Boxing Day in even numbered years;
(f)During school holidays from the end of Term 1, 2020:
(i)For half of each school holiday period, such half as agreed, but failing agreement for the first half in odd numbered years, and the second half in even numbered years;
(ii)The father to advise the mother in writing (via SMS text message) of his intention to exercise this time no later than 21 days prior to the conclusion of the school term;
(iii)That for short holidays, changeover shall take place on the middle Sunday of the school holidays;
(iv)That for Christmas holidays, changeover shall take place on the ‘middle’ day of the school holidays and if two ‘middle’ days, the first of these days;
g)For a period of up to three (3) hours on the child’s birthday, such time as agreed, but failing agreement from 3.00 pm to 6.00 pm;
h)For the whole of the weekend on which the day known as Father’s Day arises, from conclusion of school on Friday to the commencement of school on Monday;
i)Such other times as agreed;
(4)That father’s time shall be suspended on the following occasions:
(a)From 3.00 pm Christmas Day to 3.00 pm Boxing Day in odd numbered years, and from 3.00 pm Christmas Eve to 3.00 pm Christmas Day in even numbered years;
(b)For the whole of the weekend on which the day known as Mother’s Day arises, from Friday 6.00 pm to Sunday 6.00 pm;
(5)That for changeover, on school days this shall take place at the school, and for non-school days this shall occur at McDonalds Town D;
(6)The mother shall do all such things and sign all necessary documents to cause the father’s name and contact details to be recorded on the child’s school registration information with C Primary School, Town D such that the father is able to:
(a)Obtain school newsletters and notices;
(b)Obtain school photographs and or photograph order forms;
(c)Obtain the child’s school reports or any other report prepared by the school in relation to the child;
(d)Attend any school performance or school assembly to which parents are normally invited provided always that the father on such occasions shall not approach or communicate with the mother provided always that the father shall obey any reasonable direction by the appropriate school authority as to his attendance or otherwise at such events;
(e)Attend scheduled parent teacher interviews with the child’s teacher provided always that the father shall make such appointments separate to that of the mother and child;
and these orders shall be sufficient authority for this purpose.
Otherwise, the father sought further orders as follows:
(7)That the parents are restrained from taking or causing the child to attend upon any counsellor in relation to allegations of sexual abuse, raised in these court proceedings.
(8)That the parents shall not use physical force when disciplining the child.
(9)That the parents shall not allow the child to be exposed to family violence.
(10)Each parent will supply the other parent with, and keep up to date, a current mobile telephone number, email and home address and notify the other parent within seven days of any change.
(11)The father shall communicate with the child when he is not in his care as follows:
(a)on Tuesday and Fridays between 7.30 pm and 8.00 pm;
(b)the father shall initiate the Skype call or telephone contact with the child;
(c)in the event that the child is not available, the mother will notify the father as soon as is practicable and ensure a return call as soon as possible and in any event within 24 hours.
(12)The mother shall communicate with the child when he is not in her care as follows:
(a)on Thursdays and Sundays between 7.30 pm and 8.00 pm;
(b)the mother shall initiate the Skype call or telephone contact with the child;
(c)in the event that the child is not available, the father will notify the mother as soon as is practicable and ensure a return call as soon as possible and in any event within 24 hours.
(13)That the father (and members of his family) shall be permitted to have further telephone or Skype/ Facetime communication with the child if he is not otherwise spending time with him otherwise, as follows:
(a)On Easter Sunday at 10.00 am;
(b)On Christmas Day at 10.00 am;
with the father to initiate the phone call to the mother’s mobile phone and the mother shall ensure that the child is afforded privacy and the phone is not placed on speaker phone.
(14)That the mother (and members of her family) shall be permitted to have further telephone or Skype/ FaceTime communication with the child if she is not otherwise spending time with him otherwise, as follows:
(a)On Easter Sunday at 10.00 am;
(b)On Christmas Day at 10.00 am;
with the mother to initiate the phone call to the father’s mobile phone and the father shall ensure that the child is afforded privacy and the phone is not placed on speaker phone.
(15)That all communication between the parents regarding the child’s ongoing care and welfare and spending time arrangements shall take place via SMS text message and/or email the other parent shall ensure they reply promptly and in any event within 24 hours.
(16)That each of the parents shall forthwith inform the other parent of any major illness, injury, hospitalisation, medication, medical or other appointment for the child, and shall provide all information as is necessary to the other parent to enable the other parent to be fully informed of the treatment and condition of the child.
(17)That each of the parents shall advise the other of each medical practitioner that the child may from time to attend and provide authorities so that the other parent may contact that medical practitioner directly if necessary, and these orders shall be sufficient authority for this purpose.
(18)Neither parent will denigrate the other parent or their family members (or partner) in the presence of the Child or via social media such as Facebook. Both parents will use their best endeavours to ensure that no third person denigrates the other parent (or their family or partner) in the presence or hearing of the child or via any social media such as Facebook.
The mother contended in submissions as to the father’s Minute of Orders that the father’s proposal for the child’s time with him to increase to five nights per fortnight is an arrangement which is not appropriate in circumstances where the parties have a strained relationship and poor communication.
Ultimately, the orders to be made must be in the child’s best interests.

Parenting

What are the relevant matters in determining the child’s best interests?

The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
In this matter the parties have resolved the issue of parental responsibility by consent.
If the presumption in s 61DA was to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. Such is not the case here and orders to be made fall to be determined by reference to the best interest considerations.

Best Interests

The Primary Considerations: s 60CC(2)

The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

Section 60CC(2)(a) – “meaningful” relationship

In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:
… the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
The Full Court in McCall & Clark (supra) said at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The mother has been the primary carer for the child at all times since his birth. There is no issue that the child has a primary attachment to the mother. There is no issue that the child will remain in the primary care of the mother.
The father-child relationship has been regrettably undermined by the allegations of abuse. The Court must focus on the restoration of a meaningful relationship.

Section 60CC(2)(b) – need to protect

This consideration is now of no utility in this context.

The additional considerations: s 60CC(3)

Section 60CC(3) sets out the additional considerations:
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;
b)The nature of the relationship of the child with:
i) Each of the child's parents; and
ii)Other persons (including any grandparent or other relative of the child);
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;
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;
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;
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 child's right to maintain personal relations and direct contact with both parents on a regular basis;
f)The capacity of:
i)Each of the child's parents; and
ii)Any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
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;
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;
i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)Any family violence involving the child or a member of the child's family;
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;
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 the child; and
m)Any other fact or circumstance that the court thinks is relevant.
Whilst regard has been had to the various considerations none are significant but as a whole they guide the Court’s determination. The reality is that there is little evidence to guide the Court but the application of common sense in light of the s 60CC considerations reveal a sensible pathway for the father’s time as set out above.
It is clearly appropriate that orders be framed to accommodate the poor relationship between the parties including mutual distrust but that such orders progress the child’s time with the father in a way that is child focused having regard to the child’s age and provides properly graduated increases that give the mother confidence in time with the father and the child a developing relationship with his father.
The child is only five years of age but due to start school in 2020. Formal schooling will provide to the child some situational stability in addition to his primary residence with the mother.

Yet it is important to facilitate the father having time with the child on special occasions and for both parties to be able to communicate with the child when the child is in the other parent’s care. The father should be able to engage appropriately with the child’s school and to receive other relevant information as to the child’s circumstances.
Orders will accordingly be made as set out at the forefront of these reasons.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 28 November 2019.

Associate:

Date: 28 November 2019

[2019] FamCA 896

28 November 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Procedural Fairness