BRICKNELL & SAW

[2018] FamCA 1020

FAMILY COURT OF AUSTRALIA

BRICKNELL & SAW [2018] FamCA 1020

FAMILY LAW – CHILDREN – INTERIM – Where there are allegations of family violence – Where the father alleges the mother has been diagnosed with a mental illness – Where the parties have shared the care of the child since birth – Where the father seeks a shared care arrangement – Where the mother seeks that the child not spend overnight time with the father – Where the father has been spending unsupervised time with the child – Where it is in the best interests of the child to reinstate overnight time with the father.

APPLICANT: Mr Bricknell

RESPONDENT Ms Saw

INDEPENDENT CHILDREN’S LAWYER: Brian Samuels

FILE NUMBER: SYC 4885 of 2017

DATE DELIVERED: 20 June 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 14 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethbridge

SOLICITOR FOR THE APPLICANT: Armstrong Legal

COUNSEL FOR THE RESPONDENT: Mr Cummings

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Mr Samuels

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Brian Samuels

Parenting Orders made pending further order

1. The child X born … 2014 (“the child”) live with Ms Saw (“the mother”).

2. the child is to spend time with Mr Bricknell (“the father”) as follows:-

(a)       For a period of four weeks as follows:

(i)        Each Wednesday, commencing 27 June 2018, from 4.00 p.m., or the conclusion of the day care facility the child attends (whichever is earlier), until 9.00 a.m. or the commencement time for that day care facility the following day (whichever is later). The child is to be collected by the father from the day care facility at the beginning of this time and returned to the day care facility at the conclusion of that time.

(ii)      Each Sunday, commencing 24 June 2018, from 10.00 a.m. until 6.00 p.m. The changeover of care to take place at the Suburb B Shopping Centre.

(iii)     At such other dates and times and for such other periods as agreed to by the parties in writing.

(b)       As and from 18 July 2018, and for a period of four weeks as follows:

(i)        Each Wednesday commencing on 18 July 2018 from 4.00 p.m., or the conclusion of the day care  facility the child attends (whichever is earlier) until 9.00 a.m. or the commencement time for that day care facility the following day (whichever is later). The child is to be collected by the father from the day care facility at the beginning of this time and returned to the day care facility at the conclusion of that time.

(ii)      Each alternate weekend from 10.00 a.m. on Saturday (commencing 21 July 2018) until 6.00 p.m. on Sunday. The changeover of care to take place at the Suburb B Shopping Centre.

(c)       As and from Wednesday 15 August 2018 and until further order as follows:

(i)        Each Wednesday from 4.00 p.m., or the conclusion of the day care facility the child attends (whichever is earlier) until 9.00 a.m. or the commencement time for that day care facility the following day (whichever is later). The child is to be collected by the father from the day care facility at the beginning of this time and returned to the day care facility at the conclusion of that time.

(ii)      Each alternate weekend from 5.00 p.m. Friday (commencing 14 September 2018) until 6.00 p.m. on Sunday. The changeover of care to take place at the Suburb B Shopping Centre.

1. In the event of the mother being unable to personally care for the child overnight on any occasion then the child is to be with the father until the mother is again available to care for the child as provided for in these orders.

2. In the event of the child being too sick to spend time with the father, as provided for in these orders, then the father is to have make up time for his time lost with the child with the father to elect when that time is to take place (provided that the nominated time is within 14 days of the particular time the child was sick). The father is not to nominate make up time which causes the child to spend more than two consecutive nights in his care unless that is agreed to by the mother at that time.

3. Upon the report prepared by the single expert Dr G (as required by the orders made herein) being released to the parties and/or the Independent Children's Lawyer, each party and the Independent Children's Lawyer has leave to relist the matter for further hearing of any interim parenting orders which may be sought.

4. Each party and the Independent Children's Lawyer has leave to relist the matter otherwise in relation to any urgent parenting matter which may arise prior to the making of final parenting orders.

5. Each parties other interim orders sought, including partial property orders, are to be listed before a judge for determination as soon as a judge might become available. The parties are to note the matter may be listed on short notice to them should a judge become available expectedly.

6. The Court notes that the father has informed the Court that he has no present intention of returning to the former matrimonial home at Suburb C. Should the father change his intention in relation to that matter he is to provide the mother with not less than 28 days’ notice of his intention to reoccupy the property.

7. Orders are made, by consent of the parties, as set out in paragraphs 6, 7, 8, 9, 10, 11 to 17 inclusive, 22, 23, and 25 to 28 inclusive of Exhibit F1.

Special Occasions

6.That notwithstanding any other order, the child shall spend time with the Father from 9.00am until 5.00pm on Father’s Day;

7.That notwithstanding any other order, the child shall spend time with the mother from 9.00am until 5.00pm on Mother’s Day;

8.That the child spend time with the parent he is not otherwise living with on the child’s birthday and each of the parent’s birthdays as follows:

8.1If a day care/pre-school day, from after day care/pre-school until 6.00pm; and

8.2On a non-school day, from 1.00pm until 5.00pm.

9.That the child spend time with the father from 3.00pm on Christmas Eve to 12.00pm Christmas Day and with the mother from 12.00pm Christmas Day until 3.00pm Boxing Day in 2018 and alternating each year.

Specific Issues

10.That each parent shall keep the other parent informed at all times of their residential address, email address and landline and mobile contact telephone numbers and notify each other of any changes in writing within 24 hours of any such change.

11.That each parent shall keep the other parent informed of the names and addresses of any treating medical practitioners who treat the child and advise the other parent as soon as practicable of any medical condition, significant health issue or illness that the child suffers, any medical treatment required by the child and in the case of any emergency medical treatment, shall inform the other parent immediately.

12.That each parent authorises and directs any medical or health practitioner providing treatment to the child to provide the other parent with information that they are lawfully able to provide about the child is requested.

13.That each parent authorises and directs any educational institution or extra-curricular organisations the child attends (including but limited to before/after school care, vacation care or sports club) to provide each parent with information and documentation relating to the child if requested.

14.That neither party is permitted to relocate the child’s residence to any location that is greater than 20 kilometres from the other party’s residence without prior written consent of the other party.

15.That each party will ensure that the child has access to and sleeps in his own bed while in their respective care.

16.That on a without admissions basis, each of the parties are hereby restrained from denigrating:

16.1The other party;

16.2Any members of their respective extended family;

16.3Any future partner of the other party;

16.4Any friends, mutual or otherwise;

16.5Any staff members at any day care, pre-school and/or school at which the child attends from time to time; and

16.6The child’s nanny, current and future,

To and/or in the presence of and/or within the hearing of the child including via third parties.

17.That on a without admissions basis, each of the parties are hereby restrained from:

17.1Discussing any issues in dispute between the parties and any aspect of these proceedings and/or any associated proceedings to and/or in the presence of and/or within the hearing of the child including via third parties;

17.2Taking the child to any consultations with child psychologists, and/or child psychiatrists, unless agreed between the parties in writing or as otherwise ordered by the Court;

17.3Questioning and/or interrogating the child about the time spent with the other party including via third parties;

17.4Coaching the child in respect of these proceedings including via third parties; and

17.5Using corporal punishment and/or verbally abusing the child.

18.n/a

19.n/a

20.n/a

21.n/a

Appointment of a Single Expert

22.That pursuant to Rule 15.45 of the Family Court Rules 2004 (Cth), Dr G, child and family psychiatrist be appointed as a single expert (‘the single expert’) to enquire into and report upon matters relating to the welfare of the child, X born on … 2014.

23.In preparing a report to the Court, the single expert be requested to consider and address the following matters:

23.1Whether the child is at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;

23.2Any views expressed by the child and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;

23.3The relationship between the child and with each of the parents and any other significant person(s);

23.4The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent;

23.5The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of the parents or any other person with whom the child has been living;

23.6The capacity of each parent or any other person to provide for the needs of the child, including emotional, psychological and intellectual needs;

23.7The attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents (or any other significant person(s));

23.8The effect on the child of any family violence and/or parental conflict to which they may have been exposed;

23.9The mental state of each of the parents insofar as it relates to parenting issues and whether the mother or father suffer from any psychiatric condition or psychological condition;

23.10The effect on the child of any medical conditions and/or mental illness of either and/or both parents;

23.11The parenting arrangements for the child; and

23.12Any other matter the single expert considers relevant.

24.n/a

25.That in the event any of the parties request the Independent Children’s Lawyer make arrangements for the attendance of the single expert to give evidence, the parties shall be equally responsible for the single expert’s costs in respect of such attendance.

26.That the parties shall do act acts and things to facilitate the preparation of the report and to comply with all requests and attend all appointments as directed by the single expert.

27.That all communications with the single expert take place via the Independent Children’s Lawyer in writing as far as practicable and the legal representatives for each party shall only communicate with the single expert in writing following the completion of the report and with prior written notice and the consent of all parties.

28.That leave be granted to the Independent Children’s lawyer to have photocopy access to material produced under subpoena for the sole purpose of providing such material to the single expert together with all documents filed in these proceedings prior to any appointments with the single expert.

1. Orders are made, pursuant to paragraph 10 of Exhibit F1

   18.That until further order each party, (Ms Saw (Female) born … 1977 and Mr Bricknell (Male) born … 1965) their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting removal of the said child (X (male) born on … 2014) from the Commonwealth of Australia for a period of 24 months, AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the said child’s name on the Family Law Watch list for the said period, or until the Court orders its removal.

2. An order is made in the terms of paragraph 24 of exhibit F1 with the following words to be added: Each party is to pay one half of the fees.

   24.That the parties are jointly liable to pay the fees of the single expert for the preparation and completion of a report as and when such amount or part thereof is due and payable.

3. Orders are made pursuant to paragraphs 7 of exhibit ICL1.

   7.That WITHOUT ADMISSION the parties be restrained from the following:-

   (a)     Exposing the child to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the child, the Mother, the father, or any other member of either party’s household;

   (b)    Denigrating the other or members of the other party’s family in the presence or hearing of the child and each party shall do all acts and things reasonably necessary to prevent any other person doing so.

   (c)    Discussing these proceedings or any issues arising out of these proceedings with the child or permitting any third party to do so.     

   (d)    Making critical or derogatory remarks on social media, such as Facebook or Twitter in relation to the other parent or referring in any way to the proceedings.

   (e)    Being under the influence of alcohol in the presence of the child or whilst the child is in his or her care and; or

   (f)     Using, ingesting or administering to himself or herself any illicit or non-prescribed drugs (other than over the counter medication).

1. The matter is to be listed before the docket registrar in chambers on 30 November 2018 unless the matter has been relisted, pursuant to the leaves provided for herein, at an earlier time.  

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 Bricknell & Saw 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  SYDNEY

FILE NUMBER:  SYC 4885 of 2017

Mr Bricknell

Applicant

And

Ms Saw

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application filed by the father, Mr Bricknell, on 9 February 2018.  By that application the father seeks a raft of interim parenting orders in relation to the parties’ child X (hereafter called “the child”), born in 2014.

2. The mother, Ms Saw, by her Amended Response to an Application in a Case filed on 7 June 2018, seeks different parenting orders in relation to the child.

3. An Independent Children's Lawyer was appointed for the child and appeared in the hearing on 13 June 2018.  The matter was heard on that day as part of a duty list.

Background

1. The husband and wife participated in a lengthy marriage prior their separation.  They have one child of their relationship, X, although the father has two children from a prior relationship, those children are now adults.

2. The parties separated in 2016 under the one roof.  The mother asserts a separation in November 2016 and the father says the parties separated in April 2016.  Throughout the whole of 2017 the parties resided under the one roof and shared the care of the child, although there are issues as to the role each party played in caring for him during that time.

3. On 31 July 2017 the father filed an Initiating Application in the Federal Circuit Court of Australia seeking financial and parenting orders.  On 2 March 2018 the matter was transferred to the Family Court of Australia and the parties had their first appearance before Senior Registrar Campbell on 21 May 2018.  The matter was listed for an interim hearing to be heard 13 June 2018.

4. On 13 September 2017, when the matter was before the Federal Circuit Court, an order was made for the parties to attend upon a Child Dispute Conference.  That conference occurred on 9 December 2017 and on 15 December 2017 the Court made an order for the appointment of an Independent Children's Lawyer.

5. On 8 January 2018 there was an incident between the parties, in the former matrimonial home at Suburb C, with the mother alleging the father had hit the child on that occasion.  The police attended at home on that day.

6. On 10 January 2018 the mother and the child vacated the former matrimonial home.  On that same day a provisional Apprehended Domestic Violence Order (“ADVO”) was served on the father.  The order operated against the father and stated it operated for the protection of both the mother and the child. The father also vacated the former matrimonial home on 10 January 2018.

7. The mother and the child returned to occupy the former matrimonial home in February 2018 and have resided there since.

8. Between 10 January 2018 and 28 February 2018 the father spent no time with the child. Between 28 February 2018 and 20 May 2018 the father spent time with the child supervised by D Group each Wednesday from 4.00 p.m. to 7.00 p.m. and each Sunday from 10.00 a.m. to 4.00 p.m.

9. Between 10 January 2018 and 28 February 2018 there was correspondence between the parties’ lawyers which endeavoured to make arrangements for the father to spend time with the child.

10. The final hearing of the ADVO, which had been issued by the police on 8 January 2018, was listed for hearing on 8 March 2018.  On that day the police withdrew the complaint. The incident which led to the issuing of the ADVO involved the mother alleging that on 8 January 2018, the child was hit by the father.

11. On 10 May 2018 the mother, through her solicitors, agreed that the time the child spent with his father no longer required supervision.  Following 23 May 2018 and until the hearing on 13 June 2018, the child spent time with his father on an unsupervised basis each Wednesday from 4.00 p.m. to 7.00 p.m. with the father collecting the child from his day care, and each Sunday from 9.00 a.m. to 7.00 p.m. with the father collecting the child from the Suburb B Village shopping centre, or the former matrimonial home if the mother requested that.

12. Each parent holds a senior executive position in a Corporation for which they work.  That has been the case for the last two years.  The mother has been able to work from home two days each week (initially three days per week), and the parties employed a nanny to assist with the care of the child.  In 2016, the child was in day care on Monday, Wednesday, and Friday of each week.

1. Following the parties’ separation under the one roof, the child’s care has been shared between the parties, however, there is dispute about the precise details.  The child did sleep in the rooms occupied by each of the mother and father in the matrimonial home following their separation. The father asserts that occurred on alternate nights.

2. It appears common ground that the parties had an arrangement for sharing time with the child on weekends.

3. The mother is required to travel, including overseas travel, in her work position.  Prior to January 2018 when the mother did travel so that she was away from the former matrimonial home at night the father cared for the child with the assistance of the nanny.  It is the father’s case that on each occasion when the mother travelled away during 2016 and 2017, she was away from the former matrimonial home for either four or five consecutive nights.  There is little dispute about that fact.

4. In September 2017 in the Federal Circuit Court, the mother filed a response to the father’s applications. In relation to the parenting orders, the mother sought that the child live with her and spend time with the father overnight each week.

The father’s evidence

1. The father in his affidavit evidence describes the role he has played in the day‑to‑day care of the child prior to 10 January 2018, when he was served with an ADVO which required that he not approach the child or the mother.  The father’s description of his role, if accurate, shows that he has been an active parent in all aspects of the child since his birth.  In particular following the separation of the parties under the one roof, the father says his care for the child on a daily basis at least matched that of the mother. The mother concedes that since separation under the one roof (which she says occurred in November 2016) the father has collected the child from day care three days per week and spent Sundays with him “including outings, bathing, feeding, etc”.

2. If the father’s evidence is accepted, the child has experienced extensive care from each of his parents over most of his life.  The father’s case is that in order to continue what might be called a status quo in the care arrangements for the child, he should spend half his time with each of his parents in a configuration which best serves his needs.

3. In relation to the incident of 8 January 2018 where the mother alleges the child was hit by the father, the father denies that occurred.  The mother concedes she did not observe the incident, however, she asserts there was a mark on the child’s face which she considered was consistent with the complaint that the child made to his mother that his father had injured him.

4. The father says that on the evening of 8 January 2018 the child slept with his father overnight.  Further, he says that on the next day, 9 January 2018, the mother left the child alone with the father.  Again, the father says on 10 January 2018 he collected the child from day care on that day.

5. The father now has his own accommodation at Suburb E and is able to accommodate the child with him.  He has informed the Court that he has no current intention to resume occupation of the former matrimonial home at Suburb C.

6. It is the father’s case that he is just as capable of caring for the child as a responsible and caring parent as the mother.

7. The father raises a concern he has about the mother’s mental health and tendered a copy of a document that the mother lodged with the Australian Tax Office dated 24 July 2014.  That document contained a chronology of events in the mother’s life from a period prior to 2001 until 2014.  Part of that chronology is as follows, “2010 to 2013 [the mother] underwent three years of intensive psychiatric treatment, during which both her and her marriage was put under extreme pressures, and she was nearly divorced many times during these years which further exacerbated her already fragile mental state.”  The document states that in 2013 the mother was “finally overcoming her mental illness and marriage problems”.  The chronology recites years of trauma and illness both physical and mental on the part of the mother.

8. The father’s evidence is that the mother has been diagnosed with a personality disorder and also bipolar disorder. The mother, whilst acknowledging she has been so diagnosed, says it was a misdiagnosis.

The mother’s evidence

1. Having set out matters of history relating to when the relationship commenced and how that advanced to current time, the mother asserted she has been the primary caregiver for the child since his birth.

2. The mother set out her evidence in relation to abuse she says she has suffered from the father, which abuse included controlling behaviour on his part as to the way she dressed, who she socialised with, and how she spent money. She also alleged the father yelled at, and in the vicinity of, the child. She claimed the father had made threatening statements to his father on a phone call which the mother overheard. She said the father had complained of being exhausted because he claimed she “dumped the child on him.” She said that the father on one occasion was “man handling” the child at a time when the child was kicking and screaming.

3. The mother set out her evidence about the incident on 8 January 2018 where the child informed her he had been injured by his father. She set out the action she took with police which gave rise to the ADVO being served upon the father on 10 January 2018. That action caused the child to be interviewed by a JIRT member.

4. The mother set out her proposals for the time the child should spend with the father in her Amended Response filed 7 June 2018.

5. The mother said that the father suffered from insomnia and on one occasion she bought some sleeping pills in the USA at his request.

6. The mother asserts the father has been diagnosed with depression and suicidal tendencies.

7. The mother says that she did not move out of the former matrimonial home at the time of separation because she feared that the father would collect the child from day care and retain him, thereby withholding him from the mother.

8. During the time that the mother remained living in the home with the father and the child she said they reached an informal arrangement for the child to spend alternate nights with each of the parents wherein he would one night sleep in the father’s bedroom and the other night sleep in his own bedroom.  The mother says that she and the father argued about the necessity for the child to sleep in the father’s bedroom on his night.

The report of the Family Consultant

1. The family consultant provided a Memorandum to the Court dated 9 December 2017.

2. In the report the family consultant noted that the father denied behaviour alleged against him by the mother however, he alleged the mother often yelled at him and was emotionally abusive towards him.  He claimed the mother was prone to losing her temper.

3. The family consultant noted the parties communicate via SMS.

4. The parties saw the family consultant at the time when they were still residing under the one roof.  The father told the family consultant that there were no orders in place and he considered it was too risky to vacate the former matrimonial home as the mother may make it difficult for him to spend time with the child.

5. The family consultant noted that due to the allegations made by each party and consequent upon the family consultant being a mandatory child protection reporter he made a report to Family and Community Services.  He recommended the appointment of an Independent Children's Lawyer in the matter.

The father’s submissions

1. The father’s submissions in relation to the care of the child can be summarised as follows:

   ·The father has shared the care of the child since the child’s birth.

   ·The reports from the supervisor during the time the father had supervised visits with the child demonstrate a close and warm relationship between the father and the child.

   ·During the time that the parties were separated under the one roof they shared the day-to-day care of the child including having the child sleep in the father’s room with him every second night.  The child is comfortable in spending overnight time with his father.

   ·The father denies that he has been abusive to the child in any way.

   ·The father denies that there are any safety risks for the child in his care.

   ·The father says that the arrangement for the care of the child prior to 10 January 2018 should be continued until final order of the Court.  That arrangement involved a shared time for the child with each parent.

   ·The father contends that the mother contrived the facts which gave rise to the ADVO which itself prevented the father having any contact with the child for an unacceptable period of time.

   ·There is no reason why the court should not immediately order that the child spend overnight time with the father.

   ·If the mother is required to be absent from her home for any overnight occasion when the child is in her care, then the child should stay with the father.  During the time the parties shared the same residence and the mother was required to travel with her work, the child was cared for by the father and this involved periods of time between four and five consecutive nights.

The mother’s submissions

1. The mother’s case can be encapsulated as follows:

   ·The mother has been the primary caregiver for the child since his birth.

   ·The child has been residing with her and not spending any overnight time with the father since 10 January 2018.

   ·The father has been abusive to the child in the past at least to the extent of raising his voice to and in the presence of the child, oblivious to the impact upon the child of that action.

   ·It is appropriate for the child to spend more time with the father, however, it should be as the mother seeks in the orders she has asked the Court to make.

   ·The mother says it is not in the best interests of the child for him to spend overnight time with his father until he attains the age of four years.

   ·Given the child’s tender age, it is not appropriate for him to spend overnight time with his father in a different residence to that occupied by the mother.  Whilst conceding that the child did sleep in the father’s room during the time that the parties lived in the same residence, it was at a time when the mother was nearby.

   ·The Court should be cautious in making orders for overnight time for the child with the father given the lack of specialist evidence, which evidence should be available following the parties meeting with the single expert in October this year.  It is not warranted for the Court to make an order for overnight time for the child with the father given the close proximity to the single expert producing a comprehensive report to assist the Court in determining that matter.

The Independent Children's Lawyer submissions

1. The Independent Children's Lawyer proposed that the child live with the mother and spend time with the father graduating over a period of time.  For the first two months that time would be day time only, and after two months would graduate to alternative weekends overnight on Saturday and after a further two months it would expand to include overnight on Wednesday and each alternate weekend from 4.00 p.m. Friday until Sunday evening.

2. The Independent Children's Lawyer submitted that it would not be in the child’s best interest to change primary care from the mother to the father at this time. He noted that the family consultant said the mother informed that she would like the child to spend two nights per week with the father.

Discussion

1. The affidavit evidence filed by each parent evidences a high level of hostility and resentment between them.  Each parent however, appears to have a good and close relationship with the child.

2. The father’s time with the child has been closely supervised by a professional body during the early months of this year.  The reports provided by the supervisor show that there is a warm, affectionate and close relationship between the child and his father.

3. The mother’s case is that she enjoys a warm and close relationship with the child and the father does not suggest the contrary.  Indeed, his proposals for the care of the child include an equal shared time arrangement for the child’s care.

4. The mother’s case has been that supervision of the father’s time with the child was necessary for the physical safety of the child.  It must now be seen as conceded on the part of the mother that the child’s physical safety with his father is not a matter of concern as she agreed to unsupervised time for the child with his father.

5. The mother’s case, in relation to overnight time for the child with his father, is that things have changed for the child since January this year in that he has not spent any overnight time with his father.  Consequently, she submits that the child should be able to have frequent time with his father, though not of an overnight nature, for some time into the future before he commences to spend overnight time with his father.

6. The father’s case is that the child’s routine was disrupted in January 2018 because the mother contrived an allegation of violence against the father which gave rise to the ADVO and prevented the father from having any contact with the child.  The father says that the child’s routine until January 2018 included spending every second night sleeping with his father (sharing a bedroom).  The father submits that the child is very comfortable spending time with him and there is nothing to suggest he would not be comfortable spending overnight time with his father.

Section 60CC considerations

1. In this matter the child has a close relationship with each parent and I am satisfied, on the evidence currently available, that each relationship is a good and trusting relationship.  I propose to make orders which will enable the child to have a continuing meaningful relationship with each of his parents.

2. Each parent has raised concerns about the parenting capacity of the other.  In relation to the father, the mother alleges that he has been abusive to the child in a physical sense, as detailed in these reasons, and in raising his voice or yelling at and in the presence of the child.  She also raises concern about the father’s mental health and says that in the past he has demonstrated suicidal ideation.  Those allegations are denied by the father.

3. In relation to the mother, the father alleges she suffers from a significant psychiatric disorder and as such having the full-time care of the child potentially exposes the child to inappropriate care.

4. It is not possible at this time to determine aspects of the allegations dealing with each party’s psychiatric condition.  A single expert has been appointed and one of the matters to be reported upon is the psychiatric health of each party.

5. The concern of the mother about the father’s abuse of the child and his psychiatric condition must be seen in the light of her proposing that the child spend two nights each week with his father.  Further, after a period of supervised time for the father with the child earlier this year, at the insistence of the mother, the mother agreed to unsupervised time for the child with the father.  Although this time was day time only with the child, the mother’s orders as she now proposes include overnight time for the child with the father once he has attained the age of four years.

6. The child is too young to have his views considered in any real manner.

7. The relationship between the child and each parent is as set out in these reasons.  The relationship between the parents at this time must be seen as strained and lacking trust.  Their ability to communicate is limited.

8. The father is currently paying child support to the mother pursuant to a child support assessment or an agreement between them.

9. The father proposes a change to the current circumstances for the care of the child being a move from predominantly in the care of the mother to a shared equal time care arrangement between the parents.  The evidence suggests that prior to January 2018 the parties did share approximately equally in the day-to-day care of the child and had done so at least since November 2016.  A change to the current arrangement where the child will be spending overnight time with his father is more of a reinstatement of the circumstances he had become accustomed to during 2017, which arrangement was terminated upon the mother vacating the former matrimonial home with the child in January 2018 and the issuing of an Apprehended Domestic Violence Order which prevented the father having any contact with the child.

10. Each of the parents has made a complaint about the capacity of the other to care for the child’s needs and provide for same.  The Independent Children's Lawyer has raised a concern about the ability of each parent to encourage the relationship between the child and the other parent.

11. In this matter there are allegations of family violence which have been detailed in these reasons, in particular set out in the affidavit material relied on by the parties.  The only Apprehended Domestic Violence Order which has been made was an interim order which was not pressed at the final hearing.

12. The evidence supports a conclusion that it is in the best interests of the child to reinstate overnight time with his father immediately and provide sufficient time for the child with his father to enable the single expert in October this year to be able to accurately assess the relationship between the child and each parent unconstrained by lack of experience in the child of spending overnight time with his father during the period commencing January 2018.

The orders to be made

1. The mother through her counsel agreed that orders should be made as set out in paragraphs 6, 7, 8, 9, 10, 11 to 17 inclusive, 22, 23, and 25 to 28 inclusive of Exhibit F1. Exhibit F1 is a minute of the orders the father was seeking in the hearing before me.

2. The mother did not agree to an order being made as sought by the father in paragraph 18 of Exhibit F1. That order sought to restrain both parties from removing the child from Australia and also sought that the child’s name be placed on the airport watch list kept at points of departure from Australia.

3. The mother’s argument is that there is no evidence to suggest the mother or the father would take the child out of Australia without the consent of the other.

4. There is a high level of enmity between the parties which was palpable in the hearing before me. Each party holds a high paying executive position in a corporation in Australia. The mother is required to travel out of Australia with her work on short notice, and the evidence establishes that she has done that on two occasions already this year.  When the mother travelled outside Australia this year she was away for two nights, and she has had her parents care for the child in her absence.  There is no reason why the child should not spend time with his father if the mother is not available to care for him because of her absence.  I propose to make an order providing for same.

5. The mother was not born in Australia. The father is clearly anxious that if the mother was so minded (there is no evidence to suggest at this stage that she is so minded) she could remove the child to a country which is not a signatory to the United Nations Convention on the Civil Aspects of International Child Abduction. Anxiety in either parent may well translate to impacting upon the parenting capacity of either parent. Until the Court is able to have the benefit of more evidence, and be able to test the evidence of each party, it is in the child’s best interests that the order sought by the father be made. Should some circumstance arise where the mother feels she has to take the child out of Australia then she can apply to the Court on short notice.

1. The mother did not agree to an order being made as set out in paragraph 24 of the Exhibit F1. This was the proposed order which required the parties to be equally liable for the payment of the single expert’s fees. The mother pressed for the payment to be met from the parties’ joint funds standing to their credit in various financial institutions.

2. Each party had filed a Financial Statement which was read in the hearing. The mother disclosed that she had funds of her own amounting to $116,000 in NAB. The father disclosed he had $63,000 in available funds of his own. The parties hold funds jointly in various financial institutions.  I have assumed for the purpose of determining this dispute that neither can draw on those funds without the consent of the other. I propose that at this time each contribute from their own funds and any adjustment which may be required to be made as a matter of justice can be attended to in the final hearing of the outstanding property proceeding.

3. The mother consented to the making of orders as set out in paragraphs 7, 9 and 10 of Exhibit ICL1. The father did not oppose an order being made as set out in paragraph 7, however, he did not consent to orders being made pursuant to paragraphs 9 or 10 of the document. Exhibit ICL1 is a minute of order prepared by the Independent Children's Lawyer to assist the Court. The subject orders were sought on a without prejudice basis and in relation to paragraph 7 were sought to restrain behaviour which one party had alleged against the other and where such allegations are denied. It also includes sensible restraints having regard to the intensity of the adverse relationship which the parties appear to be presently experiencing.

4. The parties informed the Court that an appointment had been made for the commencement in relation to the single expert’s report.  That appointment was for October 2018.  As such it is reasonable to anticipate that a report will be available to the Court and to the parties by December this year.

5. The regime of orders for the child to spend time with the father as proposed by the Independent Children's Lawyer set out provision for time with the father well beyond December this year.  I do not propose to make orders which extend well into 2019 except by continuation of the orders I will make.  I anticipate that when the report from the single expert is available the parties will be in a position to consider other orders in relation to parenting and may well be able to reach an agreement about final parenting orders.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 20 June 2018.

Associate: 

Date:  20 June 2018