CANN & CHAPPEL

FEDERAL CIRCUIT COURT OF AUSTRALIA

CANN & CHAPPEL

[2016] FCCA 3499

Catchwords:

FAMILY LAW – Interim parenting orders – best interests of child.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 348

SS & AH [2010] FamCAFC 13

Banks & Banks [2015] FamCAFC 36

Applicant:

MS CANN

Respondent:

MR CHAPPEL

File Number:

PAC 5541 of 2015

Judgment of:

Judge Newbrun

Hearing date:

12 October 2016

Date of Last Submission:

12 October 2016

Delivered at:

Parramatta

Delivered on:

27 October 2016

REPRESENTATION

Counsel for the Applicant:

Mr Skidmore

Solicitors for the Applicant:

Phoenix Legal Consultancy

Counsel for the Respondent:

Mr Reeve

Solicitors for the Respondent:

Marsdens Law Group

ORDERS PENDING FURTHER ORDER

Orders 3, 4, 5, 9, 11 and 12 in exhibit A, referred to in order 1 of the Court’s orders of 6 May 2016, are discharged.
The child, X born (omitted) 2010 (the child) shall spend time with the father as agreed between the parties in writing and failing agreement as follows:
(a)commencing 4 November 2016, each alternate Friday from 3.10 pm to 5.30 pm on Sunday, and from the start of term 1, 2017, this time shall extend to before school on Monday; and
(b)commencing 9 November 2016, each alternate Wednesday in the off-week from after school at 3.10 pm to before school on Thursday morning.
The above time to be spent by the child with the father pursuant to order 2 shall continue during the term 4, Christmas school holiday period in 2016.
The child shall spend time with the mother and father as follows, and any other order providing for the child to spend time with either parent is suspended to the extent of any inconsistency herein:
Christmas
(a)From 12.30 pm on 24 December 2016 until 11 am on 25 December 2016, the child shall spend time with the father.
(b)From 11 am on 25 December 2016 to 9 am on 28 December 2016, the child shall spend time with the mother.
(c)From 12.30 pm on 24 December 2017 until 12.30 pm on 25 December 2017, the child shall spend time with the mother.
(d)From 12.30 pm on 25 December 2017 until 12.30 pm on 27 December 2017, the child shall spend time with the father.
School Holidays
(e)Commencing with term 1 2017 school holidays, the child shall spend time with each parent for half of each of the school holiday periods at the conclusion of terms 1, 2 and 3 each year, with the father to spend the first half of each such school holiday period in odd-numbered years, and the second half of each school holiday period in even-numbered years.
(f)Commencing with term 4 2017 Christmas/school holidays period (excluding Christmas Day and Boxing Day), subject to any agreement of the parties, the child shall spend week-about time with each parent.
Special Days
(g)On Mother’s Day each year, the child shall spend time with the mother from 4 pm on the Saturday immediately preceding Mother’s Day until the commencement of school on the following Monday morning.
(h)On Father’s Day each year, the child shall spend time with the father from 4 pm on the Saturday immediately preceding Father’s Day until the commencement of school on the following Monday morning.
(i)On the father’s birthday each year, if such day falls on a day that the mother would otherwise be spending time with the child, the child shall spend time with the father for three hours at such time as agreed between the parties.
(j)On the mother’s birthday each year, if such day falls on a day that the father would otherwise be spending time with the child, the child shall spend time with the mother for three hours at such time as agreed between the parties.
(k)On the child’s birthday each year, the child shall spend time with the parent who does not otherwise have the care of the child pursuant to these orders for three hours.
For the purpose of facilitating these orders, changeover shall occur as agreed between the parties in writing and failing agreement, the father shall collect and return the child as follows:
(a) if a school day, at the front gate of the child’s school; and
(b)if a non-school day, at the McDonald’s restaurant at (omitted).
In the event of the child suffering a medical emergency or illness requiring medical attention while spending time or living with either parent:
(a) each parent is to be notified as soon as practicable;
(b)each parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as possible, including sufficient details to enable each parent to attend or visit the child should she be admitted to hospital – should he be admitted to hospital; and
(c)the medical practitioner or facility shall be advised that each parent has access to the child’s medical records and the information obtained with them upon request.
Any communications between the parties regarding the child shall be via text message and/or email.
Each party shall use their best endeavours to ensure that no other person denigrates the other party or members of the other party’s family in the presence or hearing of the child.
Pursuant to section 62G of the Family Law Act 1975, a report be prepared for the Court by a family consultant nominated by the Manager of Child Dispute Services.
The proceedings are adjourned for mention to 9.30 am, 27 October 2017 following the release of the family report.

IT IS NOTED that publication of this judgment under the pseudonym Cann & Chappel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5541 of 2015

MS CANN

Applicant

And

MR CHAPPEL

Respondent

REASONS FOR JUDGMENT

Introduction

This interim hearing related to the child, X, date of birth, (omitted) 2010.
The father seeks an equal time shared care arrangement, including equal shared holidays and other discrete times to be spent by him with the child.
The mother seeks a continuation of the interim parenting orders of the Court of 6 May 2016; that is, each fortnight, the child spends time with the father from Friday, 3.10 pm, to Sunday, 5.30 pm, and each second Wednesday from 3.10 pm to 5.30 pm.

Material relied upon by the parties

The father relied upon his case outline filed 5 October 2016; his affidavits filed 2 March 2016 and 5 October 2016. The exhibit to the father’s affidavit filed 2 March 2016 comprised a very lengthy series of documents and which was expressly not relied upon by the father at the interim hearing. The father also relied upon the CDC Memorandum of the family consultant dated 30 September 2016.
The mother relied upon her Case Outline dated 11 October 2016, and her affidavits filed 14 January 2016 and 12 October 2016.

Chronology

(omitted) 1972. Mother’s date of birth.
(omitted) 1973. Father’s date of birth.
(omitted) 2008. Parties cohabit.
(omitted) 2010. Date of birth of child, X.
(omitted) 2014. Date of birth of father’s twins to his new partner.

Agreed or undisputed relevant facts

The parties commenced cohabitation in about (omitted) 2008. The parties experienced conflict in about late 2008; there was a separation and then a reconciliation in about September 2009.
According to the mother, as at 14 November 2013, the existing arrangements between the parties was that the child spend time with the father each Tuesday from 8.30am till 4.30 pm, and each Saturday from 8.30 am to 4 pm.
According to the father, since about January 2015, the child has spent time with him on Tuesdays from 9am till 5 pm, from Friday 4 pm to Saturday 4 pm, weekly.
According to the father, as at 1 March 2016, the child has not spent holiday time with him.
According to the father, as at 1 March 2016, most or all significant decisions for the child had been unilaterally made by the mother.
According to the father, since the child’s date of birth and as at 1 March 2016, the mother had had eight different residences.
According to the father, between 30 May 2011 and 1 March 2016, the child had not stayed in the father’s care more than two consecutive nights.
According to the mother, the father unilaterally retained the child or attempted to take the child from the mother’s care without the mother’s consent on seven separate occasions over a 12 month period. These seven separate occasions were made up as follows: three occasions in October 2014; one occasion in July 2015; two occasions in September 2015, and three occasions in November 2015.
According to the mother and not disputed by the father, on each occasion the child was returned to the mother, his behaviour regressed, for example, the child displayed aggressive behaviour towards the mother.
The hospital clinical records (including home visit notes) at the time of the child’s birth reveals the parties were having problems in their relationship at that time, with the mother indicating she would like to leave the father on 14 October 2010. On 16 October 2010, records reveal that the mother had left the father. The mother returned to live with the father a short time later.
On about 16 November 2010, the mother left the father’s home and admitted herself and the child into a refuge. As a result, the father did not see the child from 15 November 2010 to 17 January 2011.
By about late November 2010, the mother had moved with the child to rental accommodation.
In January 2011, the father visited the child for a few afternoons each week to see the child for about one to one and a half hours.
In October 2011, there was a mediation between the parties; at this stage, the child was about one year of age. An agreement was reached that the child would spend time with the father on Tuesdays from 3.30 pm to 6.30 pm; Wednesdays from 3.30 pm to 6.30 pm, and Saturdays from 8.30 am to 4 pm.
There was another mediation between the parties in October 2013; there was no agreement. The mother had offered to the father that the child spend one overnight occasion with the father and “a willingness to consider an increase in the child’s overnight time with the father when the child turned four years of age.”
According to the mother, in 2013/2014, there was an incident at the child’s early learning centre and the police were called.
According to the mother, in an email from the father to the mother, the father accused her of alienating the child from him (the father also accused the mother of irrational paranoia through the mother stating she does not trust the father will return the child).
According to the mother, in an email from the father to the mother’s solicitor of 1 December 2014, inter alia, the father suggests that the mother may need the assistance of a
“professional counsellor that may assist her with her complicated issues and help clarify that the mother does not own the child, that the child is not her possession, and how to cooperate for the best interests of the child.”
In a letter from the mother’s solicitor dated 14 November 2013 to the father, it is stated, inter alia,
“There have been significant issues from the mother’s point of view with parallel parenting and a lack of consistency in relation to managing the child’s sleep that has had a negative impact upon him, and the mother wishes to proceed with caution in increasing the child’s time with the father due to this.”
According to the mother, a social worker/family therapist assessed the child on 27 February 2015; she spoke with the child’s teacher at his early learning centre and she was told by his teacher there were no behavioural difficulties for the child at preschool. She was further told the child would be ready for school in 2016.
According to the mother, in an email from the father to her of 29 September 2015, it referred to, “Your recent behaviour, actions and failure to act in the child’s best interests last Saturday.”
According to the mother, in an email in October 2015 from the mother to the father, it was stated, inter alia, “(in discussing time to be spent by the child with the father) obviously, we have very different thoughts in regards to what would be in the child’s best interests.”
According to the mother, in an email from her to the father of 18 October 2015, she stated, inter alia,
“(My proposal) is age-appropriate and will allow the child to get used to two nights a fortnight before he commences school, increasing to three nights a fortnight after he has had time to adjust to being at school. It allows for him to enjoy a full weekend with each of us. Naturally, we will need to work out age-appropriate school holiday time prior to his first school holidays after term 1.”
According to the mother, in an email sent by her to the father of 13 October 2015, she proposed a trial of, inter alia, from July 2016, the child spending three nights per fortnight from 4 pm Friday until Monday morning, with the father dropping the child to school, and in the off week, an afternoon on Wednesday and dinner on Wednesday.
According to the mother, in an email from the father to her of 23 October 2015, the father informed her, inter alia, that she was seeking to alienate the child from the father. Relating to the mother’s prior proposal, the father stated, “This does not show that you put your love for the child ahead of your own emotional needs or animosity towards me.”
According to the father, the mother did not communicate with him regarding a GPs treatment of the child since the GP, Dr D, in 2011, until 20 March 2013.
According to the father, on 3 April 2013, the father expressed his concerns about the child to DoCS regarding, inter alia, the child’s sleep in the mother’s care.

Relevant legal principles

The relevant principles in relation to parenting proceedings, including interim proceedings, are well-settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel (2010) 43 Fam LR 348, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
The Court also refers to the recent decision of the Full Court of the Family Court in Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
If the presumption of equal shared parental responsibility in relation to the child applies (see section 61DA of the Act), and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spend substantial and significant time (as defined in section 65DAA(3)) with the parents, unless contrary to the child’s best interests, as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: section 60CA, 60CC, 65D.

The best interests of the children

Section 60CC considerations

(2)(a) (meaningful relationship primary consideration)

The child has a meaningful relationship with both parents and would benefit with a continuance of those relationships. The mother has been the primary carer of the child all his life.
The child’s meaningful relationship with the father has developed and been maintained, despite the parties’ separation shortly after the child’s birth, despite there being significant gaps of time when the child did not spend regular time with the father, and despite overnight time with the father only commencing on a regular basis following court orders on 6 May 2016.
The Court is of the view that the child’s meaningful relationship with the father can be maintained and further enhanced by the child spending up to the start of term 1 2017, three nights per fortnight, and from the start of term 1 2017, four nights per fortnight during school term times. Further, should the child spend increased time with the father during the term 1, term 2 and term 3 school holidays in 2017 (commencing from the term 1 2017 school holidays) by spending one half of such school holidays with the child, the child’s meaningful relationship with the father, again, should be maintained and further enhanced. In this context, should the child spend week about with each parent during the term 4 2017 Christmas school holiday period (excluding Christmas and Boxing Day), again, the child’s meaningful relationship with the father should be maintained and further enhanced.
The Court is of the view that any increase in the child’s time with the father should be graduated so as to allow the child to adjust to the change in routine and to obviate any adverse emotional reaction which might affect his meaningful relationships, as discussed above.
The Court is of the view that the child’s meaningful relationship with the mother should not be detrimentally affected by spending such increased time with the father.

The Court gives significant weight to this meaningful relationship primary consideration.

(2)(b) (need to protect primary consideration)

According to the mother, she had experienced, in the past, anxiety in the form of panic attacks in her early 30s. She stated that she took medicine for about two months only. She stated that there was no recurrence of these issues since. According to the father, the mother suffers anxiety, experiencing regular panic attacks. The mother has displayed paranoia at times, according to the father. He states that the mother tends to overreact to situations and is unable to tolerate typical child misbehaviour.
The mother denies a lengthy history of mental health issues as asserted by the father.
The father asserts that the child has not been provided with stability whilst remaining in the primary care of the mother since birth, by reason of alleged numerous changes of residence and preschools. The evidence before the Court at this interim stage indicates that despite some changes in these respects, the child’s health and wellbeing and meaningful relationships have been maintained to date.
At this interim stage, the Court is of a view that there is no need to protect the child from physical or psychological harm from being subjected to abuse, neglect or family violence by reason of alleged mental health issues of the mother. Again, this issue is the subject of dispute between the parties, but in any event, and again, the Court notes that on the evidence before the Court at this interim stage, the child’s health, wellbeing and meaningful relationships have been maintained to date. There is no significant objective medical or other health professional evidence before the Court pertaining to the mother’s present mental health to suggest that the child is at any significant risk of harm in her primary care.
As discussed later in these reasons, there is a significant risk of the child being exposed to conflict (if not family violence) between the parties in the context of a prospective equal time shared care arrangement.

(3)(a) (views of child)

The father asserts that the six year old child has, at various times, expressed a desire to spend increased time with him. The Court, by reason of the tender age of the child, cannot attach any significant weight to these views.
The mother asserts that the child has experienced separation anxiety when leaving her care in the past. The Court has insufficient evidence before it to make any findings on this issue at this interim stage.

(3)(b) (child’s relationships)

According to the father, his new partner, Ms C, has had two children with him, being named A and B. According to the father, the child is close to these other children. The father asserts that the child has a close relationship with members of his paternal extended family.
The Court notes the maternal grandmother was assisting the mother at the time of the child’s birth.

(3)(c) (extent to which parents have taken opportunities to, inter alia, spend time with and communicate with child)

Both parents appear to have taken such opportunities.

(3)(ca) (parent’s obligations to maintain child)

According to the father, he wants to make a financial contribution to the child’s care, but the mother has made no claim through the Child Care Agency. According to the mother, she is the sole financial provider for the child.
According to the father, from the start of January 2011, he paid the mother not less than $50 cash per week for the child and other items were purchased for him. He asserts that from September 2011, he purchased food items for the child and other items to use in his home whilst in the father’s care. He asserts that from November 2011, he transferred to the mother’s account, on a weekly basis, $50. He states that by March 2013, he had given the mother groceries, cash and items amounting to some $5,800.

(3)(d) (effect of any changes in child’s circumstances)

The Court refers to the meaningful relationship consideration discussed above.

(3)(e) (potential difficulty and expense of a child spending time with the parent)

Not applicable; the parties live relatively close to each other.

(3)(f) (capacity of parents to provide for needs of child)

Both parents would appear to have such capacities.

(3)(g) (maturity of child and parents)

As discussed later, the parties have been enduring a highly conflicted post-separation relationship since at least shortly after the child’s birth. The mother has consistently maintained, inter alia, that any increase in the child’s time with the father should be cautiously graduated over time, as the child matures, whilst the father has consistently been of the view (such a view has been communicated by him to the mother) that the mother’s approach has been deliberately designed to alienate the child from him and that there has existed no valid reason why the child’s time with him should have been so restricted.

(3)(i) (attitude to child etc)

Both parents, within the context of a highly conflicted post-separation relationship, appear to have sought to demonstrate appropriate attitudes to the child and to the responsibilities of parenthood.

(3)(j) (family violence)

According to the mother, before the child’s birth, there was a lot of physical violence perpetrated by the father towards her (for example, as asserted by the mother to the family consultant at the Child Dispute Conference, the father shoved her against a wall, holding her by the arms following which incident the parties separated for a year).
According to the father (see the CDC memorandum), the mother had been violent to him on at least one occasion; for example, the mother threw wine in his face and had been waving her glass in a rage, so the father held her wrists in an attempt to take the glass from her. The father states that the mother had then smashed the glass against a wall. According to the father, the mother had tried to hit the father in the past. The father denied, to the CDC family consultant, ever having previously been physically violent to the mother.
According to the mother (see the CDC memorandum), the father had been repeatedly verbally and psychologically abusive to her during the relationship; for example, the father had called her “crazy” and “bipolar”. Further, she gave a further example that the father would scream at her face and block her in and she had, accordingly, been fearful of the father.
According to the mother, on 31 May 2011, there was an incident – an incident which occurred with the father, whereby the mother felt scared and intimidated; the mother asserts that she asked the father to leave her home and the father refused, and she then called the police.
According to the mother, on 8 July 2011, there was an incident at changeover; the mother felt scared of the father and she called the police.

(3)(l): (whether preferable to make order least likely to lead to further child proceedings)

At this interim stage, the Court is of the view that interim parenting orders, as discussed under the meaningful relationship primary consideration previously, would be least likely to lead to the institution of further proceedings in relation to the child, as opposed to the Court making an interim parenting order imposing an equal shared care parenting regime.

Equal Shared Parental Responsibility

The parties both maintain and seek an interim parenting order that there be equal shared parental responsibility in relation to the child. An interim order to this effect will be made by the Court, noting that, on the evidence before the Court at this interim stage, it would appear that no major long-term decision for the child is looming in the short term.

Equal Time

According to the family consultant in the CDC memorandum, both parents reported that they have significant difficulties in communicating and cooperating. Both parties attributed this to the behaviour of the other. Both parties stated that they do not speak at changeovers and park about 10 metres away from each other and the child walks between them. The father states that he has been filming changeovers as he fears the mother will make false allegations against him.
According to the mother (CDC memorandum), the child would not cope with any increased time spent with the father.
The CDC family consultant stated that both parents presented as “extremely hostile towards the other.” They impressed her as unlikely to be able to come to an agreement by consent regarding a parenting plan for the child. Both parents reported the child was under psychological pressure from the other parent.
According to the father, from 30 May 2011 to 1 March 2016, the child has not spent greater than two consecutive nights with him “due to the mother’s lack of cooperation.”
According to the mother, the father does not acknowledge the child has asthma when he is sick; the mother says the father tells her that she causes the child to be stressed which is why he gets asthma. In the father’s email to the mother of 18 April 2014, he states, inter alia, that:
Stress can exacerbate asthma especially when a parent is inflexible and stressed out about their own issues, potentially causing a child to feel fearful.
I am not sure that X should be medicated for a condition that may be brought on by your own well-known reactive stressful, inflexible behaviour.
According to the father, on 17 July 2013, there was an incident at the child’s day care; the parties were in dispute and the police were called.
According to the mother, on about 31 October 2014, there was an incident at the child’s day care centre; and the police were called. Later, the mother wrote to the father an email, stating that she could not trust him.
According to the mother, on about 5 March 2015, she spoke to a social worker (who had a speciality in child psychology) who stated that the father had told her that the mother had borderline personality disorder and was mentally ill.
According to the mother, on about 26 September 2015, the father stated to the mother that he was going to tape the mother and the child with a video camera.
According to the mother, in October 2015, the father sought to change the changeover place to (omitted); the mother did not want this (and told the father) as McDonald’s restaurants have cameras.
According to the mother, in mid-November 2015, the parties were in conflict. According to the mother, at this time, the child showed signs of extreme emotional distress, for example, he would not go into his classroom at his school orientation and refused to go to the toilet.
According to the father, on 7 October 2014, the child slept overnight at the father’s home. The police attended the father’s home following the mother reporting the child was with the father without his asthma medication.
According to the father, on 24 October 2014, the police accompanied him to collect the child “to ensure there was no breach of the peace.”
According to the father, on about 30 October 2014, the father experienced difficulties communicating with a third party regarding the child’s birth certificate and the police were once again involved.
According to the father, on about 31 October 2014, the mother told him she could no longer trust that the father had the child’s best interests at heart or that the father would return the child to her.
According to the father, on about 7 to 11 November 2014, the father was told by Relationships Australia that the parties’ matter was unsuitable for mediation.
According to the father (see paragraph 191 of his affidavit):
The mother has a history of making false statements (in the context of the mother’s allegations regarding the child’s behaviours).
According to the father (see his affidavit filed 5 October 2016):
The post-separation “conflict” is only a direct consequence of the mother’s refusal to act in the child’s best interests and cooperate for the child to experience all that he can .. the mother’s manipulation of events and false allegations have never been in the child’s best interests.
According to the father, both parties have complied with Court orders of 6 May 2016 without incident.
According to the father, on recent changeovers, he keeps his distance from the mother and allows the child to make his way to the mother.
According to the father, he refers to his successful co-parenting of his 18 year old daughter with that child’s mother stating, “The cooperation between her mother and I has played an important part.”
The Court, at this interim stage, is of the view that an equal time shared care arrangement would not be in the best interests of the child. The parties had a significant separation before the child’s birth, having been then in conflict. Shortly after the child’s birth, they again separated and thereafter endured a highly conflicted post-separation relationship. Whilst the parties reached interim parenting agreements on 6 May 2016, and apparently have each complied with the Court’s orders of 6 May 2016, the CDC family consultant on 21 September 2016 observed:
(a)the parents both reported significant difficulties of communicating and cooperating (both attributing this fact to the behaviour of the other);
(b)they do not speak at changeover; parking away from each other, with the father filming the changeovers; and
(c)both parents presenting as “extremely hostile towards the other and impressing as being unlikely to come to an agreement by consent regarding a parenting plan for the child.
The Court is of the view at this interim stage that the parties will likely be unable to sufficiently cooperate and communicate with each other to enable an equal time shared care arrangement to operate in the best interests of the child. And equal time arrangement, in the view of the Court at this interim stage, will likely lead to conflict between them which may well impact on the child to his detriment. Further, there is an insufficient level of trust between the parties to enable an equal time arrangement to work satisfactorily.
The Court is of the view at this interim stage that an increase in the child’s time to be spent with the father as discussed under the meaningful relationship consideration previously will probably be able to be managed by these parties without significant conflict. That proposed increased time to be spent by the child with the father (again, as discussed previously under meaningful relationship primary consideration) will likely constitute substantial and significant time under the Act.
Evaluating the above discussed considerations under section 60CC of the Act, the Court is of the view at this interim stage that it will be in the child’s best interests to make interim orders as follows, and the Court makes such orders:
(1) Orders 3, 4, 5, 9, 11 and 12 in exhibit A, referred to in order 1 of the Court’s orders of 6 May 2016, are discharged.
(2) The child, X born (omitted) 2010 (the child) shall spend time with the father as agreed between the parties in writing and failing agreement as follows:
(a)     commencing 4 November 2016, each alternate Friday from 3.10 pm to 5.30 pm on Sunday, and from the start of term 1 2017, this time shall extend to before school on Monday; and
(b)     commencing 9 November 2016, each alternate Wednesday in the off-week from after school at 3.10 pm to before school on Thursday morning.
The above time to be spent by the child with the father pursuant to order 2 shall continue during the term 4, Christmas school holiday period in 2016.
(3) The child shall spend time with the mother and father as follows, and any other order providing for the child to spend time with either parent is suspended to the extent of any inconsistency herein:
Christmas
(a)     From 12.30 pm on 24 December 2016 until 11 am on 25 December 2016, the child shall spend time with the father.
(b)     From 11 am on 25 December 2016 to 9 am on 28 December 2016, the child shall spend time with the mother.
(c) From 12.30 pm on 24 December 2017 until 12.30 pm on 25 December 2017, the child shall spend time with the mother.
(d)     From 12.30 pm on 25 December 2017 until 12.30 pm on 27 December 2017, the child shall spend time with the father.
School Holidays
(e) Commencing with term 1 2017 school holidays, the child shall spend time with each parent for half of each of the school holiday periods at the conclusion of terms 1, 2 and 3 each year, with the father to spend the first half of each such school holiday period in odd-numbered years, and the second half of each school holiday period in even-numbered years.
(f) Commencing with term 4 2017 Christmas/school holidays period (excluding Christmas Day and Boxing Day), subject to any agreement of the parties, the child shall spend week-about time with each parent.
Special Days
(g)     On Mother’s Day each year, the child shall spend time with the mother from 4 pm on the Saturday immediately preceding Mother’s Day until the commencement of school on the following Monday morning.
(h)     On Father’s Day each year, the child shall spend time with the father from 4 pm on the Saturday immediately preceding Father’s Day until the commencement of school on the following Monday morning.
(i) On the father’s birthday each year, if such day falls on a day that the mother would otherwise be spending time with the child, the child shall spend time with the father for three hours at such time as agreed between the parties.
(j) On the mother’s birthday each year, if such day falls on a day that the father would otherwise be spending time with the child, the child shall spend time with the mother for three hours at such time as agreed between the parties.
(k) On the child’s birthday each year, the child shall spend time with the parent who does not otherwise have the care of the child pursuant to these orders for three hours.
(4) For the purpose of facilitating these orders, changeover shall occur as agreed between the parties in writing and failing agreement, the father shall collect and return the child as follows:
(a)     if a school day, at the front gate of the child’s school; and
(b)     if a non-school day, at the McDonald’s restaurant at (omitted).
(5) In the event of the child suffering a medical emergency or illness requiring medical attention while spending time or living with either parent:
(a)     each parent is to be notified as soon as practicable;
(b)     each parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as possible, including sufficient details to enable each parent to attend or visit the child should she be admitted to hospital – should he be admitted to hospital; and
(c) the medical practitioner or facility shall be advised that each parent has access to the child’s medical records and the information obtained with them upon request.
(6) Any communications between the parties regarding the child shall be via text message and/or email.
(7) Each party shall use their best endeavours to ensure that no other person denigrates the other party or members of the other party’s family in the presence or hearing of the child.
(8) Pursuant to section 62G of the Family Law Act 1975, a report be prepared for the Court by a family consultant nominated by the Manager of Child Dispute Services.
(9) The proceedings are adjourned for mention to 9.30 am, 27 October 2017 following the release of the family report.

I certify that the preceding one-hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 26 September 2017

[2016] FCCA 3499

27 October 2016

Key Legal Topics

Areas of Law

Family Law