CHANG & FIN

[2017] FCCA 2813

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHANG & FIN [2017] FCCA 2813

Catchwords:
FAMILY LAW – Interim parenting – Child living with father since July 2015 – issues of risk of harm – child with special needs.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61C, 61DA, 60CG, 61DB

Cases cited:

Banks & Banks (2015) FLC 93-637

Bondelmonte v Bondelmonte and Another[2017] HCA 8
Goode v Goode (2007) 36 FamLR 422
Howard & Howard [2016] FamCA 455
Keats & Keats [2016] FamCAFC 156
Mazorski & Albright [2007] FamCA 520
MRR & GR [2010] HCA 4
Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Applicant: MR CHANG

Respondent: MS FIN

File Number: PAC 4753 of 2016

Judgment of: Judge Obradovic

Hearing date: 10 August 2017

Date of Last Submission: 10 August 2017

Delivered at: Parramatta

Delivered on: 21 November 2017

REPRESENTATION

Counsel for the Applicant: Mr Wong

Solicitors for the Applicant: Brighton Lawyers

Counsel for the Respondent: Ms Steggle

Solicitors for the Respondent: Southern Hemisphere Lawyers

Appearing for the Independent Children's Lawyer: Ms Abercrombie

Solicitors for the Independent Children's Lawyer: Lamrocks Solicitors

PENDING FURTHER ORDER:

1. The parties shall have equal shared parental responsibility for the child X born on (omitted) 2008.

2. The child shall live with the father.

3. During the school term, the child shall spend time with the mother, commencing on 23 November 2017 and each alternate week thereafter, from after school on Thursday to before school on Monday.

4. During the school holidays at the conclusion of Term 4 in 2017, the child shall spend time with the mother:

   (a)From 9am on 24 December 2017 to 1pm on 25 December 2017;

   (b)From 9am until 2pm on 30 December 2017;

   (c)From 9am on 3 January 2018 until 6pm on 7 January 2018; and

   (d)From 9am on 17 January 2018 until 6pm on 21 January 2018.

5. Otherwise during all other school holidays, the child shall spend time with the mother for half of all New South Wales gazetted school holiday periods being the first half of each school holiday period.

6. The child shall spend time with the mother on Chinese New Year being Friday 16 February 2018 from 3pm until 5pm unless the child is already in her care, in which case the mother’s time shall be suspended and the child shall spend time with the father from 3pm until 5pm on that day.

7. In addition to the time provided for in paragraphs (2) to (6) above, the child shall spend time with the mother at any other times as agreed to between the parties in writing.

8. Neither party shall denigrate the other parent in the presence or hearing of the child and shall use their best endeavours not to allow the child to overhear the denigration of the other parent by any third party.

9. For the purpose of changeover, the mother shall collect the child from school at the commencement of her time and deliver the child back to school at the conclusion of her time.

10. In the event changeover occurs on a non-school day, the parties shall meet at the front entrance of the (omitted) Train Station (in front of (omitted)) at the commencement and conclusion of the child’s time with the mother.

11. Each of the parents are permitted to receive all correspondence, school reports, newsletters, photographs and other communication from the school attended by the child, either relating to the child directly or generally distributed to parents.

12. The mother is restrained by injunction from physically disciplining the child and the mother shall ensure that no third party disciplines the child.

13. Neither parent shall leave the child unsupervised and in the event that either parent cannot provide personal care of the child, they shall notify the other parent and the other parent shall be given the first option to care for the child until the parent is able to resume care of the child. 

14. Order 1 of the Orders made on 5 April 2017 remain in force in so far as the child’s name shall remain on the Australian Federal Police watch list.

15. The father shall within 28 days of the date of these Orders, provide a report from the medical practitioner in charge of his care in relation to his diagnosis of prostate cancer addressing the following:

    (a)Diagnosis;

    (b)Treatment;

    (c)Impact of diagnosis and/or treatment on the father’s day to day life

    And shall provide a copy of the report to the Independent Children’s Lawyer and the solicitor for the mother.

16. List the matter for directions at 9.30am on 5 April 2018.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4753 of 2016

MR CHANG

Applicant

And

MS FIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are interim parenting proceedings relating to only child of the parties, X born (omitted) 2008.

2. The parties to the proceedings are the Applicant father, Mr Chang and the Respondent mother, Ms Fin.

3. The issues before the Court at this stage of the proceedings are with whom the child should live, whether the father is a flight risk and whether there is a risk of harm to the child in the care of either party.

Uncontested Relevant Facts

1. The father was born on (omitted) 1949 in China.

2. The mother was born on (omitted) 1975 in China.

3. The father’s first child Mr T was born on (omitted) 1985.

4. The father came to live in Australia in 1989.

5. The father became an Australian citizen in 1991.

6. In 2006 the father returned to live in China and in (omitted) 2006 the mother and father commence a relationship.

7. The parties were married in (omitted) 2007 in China.

8. The child the subject of these proceedings was born on (omitted) 2008 in China.

9. The child began to show signs of unusual behaviour in 2011 which tests later revealed are due to a potential genetic issue.

10. In early 2015 the parties and the child relocated to live in Australia.

11. The child commenced kindergarten in 2015 at (omitted) College and commenced speech pathology in the same year.

12. In 2015 the child also saw a paediatric rehabilitation physician and a paediatric neurologist who identified a number of disorders suffered by the child including global developmental problems.

13. On 14 July 2015 the parties were involved in a family violence incident which resulted in the mother being arrested on 16 July 2015 and a Final Apprehended Domestic Violence Order being made for the protection of the father and the child from the mother on 2 November 2015 until 24 August 2016. This order was extended to 2 November 2017 for the protection of the father from the mother.

14. The child has primarily lived with the father since the parties’ separation. There is some dispute as to the exact arrangements between the parties in relation to the child’s care post separation, the determination of which cannot be made at this interim stage of the proceedings. 

15. The father commenced proceedings by filing an Initiating Application on 7 October 2016 seeking parenting orders only. The matter first came before the Court on 16 November 2016.

16. On 12 December 2016, the Court made orders by consent and pending further order that the child live with the father and spend time with the mother each Tuesday and Sunday for 4 hours in the period 20 December 2016 to 29 January 2017. Despite previous orders, the mother had not at that stage filed her Response or any supporting material. The Court appointed an Independent Children’s Lawyer on this occasion to represent the interests of the child.

17. The mother did not spend any time with the child from 29 January 2017 until April 2017.

18. The parties were divorced on 6 February 2017.

19. The mother filed a Response to the Initiating Application on 22 March 2017 seeking parenting orders. The mother subsequently filed an Application in a Case seeking property orders.

20. The Court made orders by consent and pending further order on 5 April 2017 inter alia that:

    a)The child be placed on the Airport Watchlist;

    b)The parties have equal shared parental responsibility for the child; and

    c)That the child spend time with the mother during school holidays from 9am to 1pm on Tuesdays and Sundays, during school term from 9am to 2pm each Saturday and all other times as agreed.

21. On 8 August 2017 the parties attended a Child Dispute Conference and the Court heard the parties’ competing interim applications on 10 August 2017. These Reasons relate entirely to the parenting proceedings as the interim property matters were, for the most part[1], dealt with by consent.

    [1] With the remainder not being pressed

Competing Proposals

1. The father seeks interim orders as follows:

   a)That the father have sole parental responsibility for the child X born (omitted) 2008; and

   b)That the mother spends time with and communicates with the child at the father’s sole discretion.

2. The mother seeks interim orders as follows:

   a)That the chid be placed on the Airport Watchlist;

   b)That each of the parents be responsible for day to day decisions when the child is their care;

   c)That the child live with the mother; and

   d)That the child spends time with the father each alternate weekend from 6pm Friday to 6pm Sunday.

3. The orders sought by the Independent Children’s Lawyer are akin to a shared care arrangement, with the parents to have equal shared parental responsibility, for the child to live with the father and for the child to spend time with the mother:

   a)In week 1 from after school on Friday to before school on Monday;

   b)In week 2 from after school on Thursday until either 10am on Saturday or after school on Friday;

   c)Half school holidays; and

   d)Time on special occasions.

Documents relied on

1. The father relied on the following documents:

   a)Initiating Application filed 7 October 2016;

   b)Notice of Risk filed 7 October 2016; and

   c)Affidavit of Mr Chang sworn 31 August 2016 and filed 7 October 2016.

2. The mother relied on the following documents:

   a)Response filed 22 March 2017;

   b)Notice of Risk filed 22 March 2017;

   c)Affidavit of Ms Fin sworn 20 March 2017 and filed 22 March 2017;

   d)Affidavit of Ms Fin sworn 16 May 2017 and filed 22 May 2017; and

   e)Affidavit of Ms Fin sworn and filed 2 August 2017.

3. The following documents became Exhibits in the proceedings:

   a)Exhibit 1 – material produced under Subpoena from the Department of Family and Community Services, being sleeve 8 – tabs ICL 1 – ICL 8 and tabs M1 – M8;

   b)Exhibit 2 – material produced under Subpoena from (omitted), being sleeve 9 – tab ICL 7

   c)Exhibit 3 – material produced under Subpoena from NSW Police, being sleeve 1, tabs ICL1 – ICL 3

   d)Exhibit 4 – material produced under Subpoena from Ms D (omitted) College, being sleeve 4, tabs M1 and M2; and

   e)Exhibit 5 – material produced under Subpoena from Mr M – (omitted) Public School, being sleeve 5, tabs M1 – M3.

The Law

1. The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.

2. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA 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.

3. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

4. In determining what is in a child’s best interests, the Court must consider the matters set out in s60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child.

5. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[2]

   [2] see for example Slater & Light [2011] FamCAFC 1at [45]

6. In applying the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the parents.

7. It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[3] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[4]

   [3] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court in

   [4] Ibid at [122]

8. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[5] The Court may include[6] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [5] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]

   [6] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

9. 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[7]

   [7] s61DA(3)

10. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents.  If the Court finds that it is not in the child’s best interests and reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[8]

    [8] MRR v GR [2010] HCA 4 at [15]

11. The Full Court in Goode v Goode[9] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.

    [9] (2007) 36 Fam LR 422, (2006) FLC 93-286

12. As stated by the Full Court in Keats & Keats, in respect of the conduct of interim proceedings:[10]

    …the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may 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.

    [10] [2016] FamCAFC 156 at [9]

13. A cautious or conservative approach is at times appropriate. Ultimately, any order must be one which the Court holds is in the children’s best interest.

14. The High Court[11] has recently stated:

    A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child. (references omitted)

    [11] Bondelmonte v Bondelmonte and Another [2017] HCA 8 at [32]

Relevant Considerations

1. Consideration of relevant matters does not mean discussion. [12]

   [12] Banks & Banks [2015] FamCAFC 36 at [39]; Howard & Howard [2016] FamCA 455 at [45] not disturbed on appeal

Primary Considerations

1. The protection of the child from harm is an important matter for the Court’s consideration when weighing up the primary considerations. Indeed, the Court must prioritise the need to protect the child from harm as against the benefit of the child having a meaningful relationship with the parents.

2. The parties each allege domestic violence against the other and to varying degrees against the child.

3. The father alleges that the mother was often verbally abusive towards him calling him names such as “useless donkey prick” and that she had yelled at the child’s babysitter not to help the father calling him a “useless, stupid, slow, moron”.

4. The father describes the mother as yelling at the child in an attempt to stop him from crying during the night and that she had attempted on more than one occasion to throw the child on the floor.

5. The father’s material describes the mother as often being “impatient” with the child despite the child requiring additional supports, understanding and care due to his disabilities, for example the father describes the mother feeding the child at meal times often becoming frustrated and impatient with the child for not eating quickly enough. The mother would yell at the child to “swallow, swallow, swallow” and would lash out by “smashing dishes against the wall in front of X and scaring him”. 

6. The father says the mother would often react to the child’s behaviours by hitting him on the head with a closed fist and that she would chase the father whilst he was holding the child in an attempt to hit the child on the head.

7. The mother says she attended to all of the housework whilst the parties lived together and that she took care of the child’s daily life and school work. She says that many of the parties’ arguments were instigated by the father requesting money from her to gamble. On one occasion that the mother refused to provide money to the father he “attacked” her. The mother was holding the child when the father “struck me a blow at my left face. The upper part of my face was swollen and black and blue. My son was shocked and held my head crying and shouting”.

8. The mother says that the father “grew more and more impatient, careless and brutal towards me and changing mood without notice”. She says this was often the fact following the father losing money.

9. The mother submits that the father is holding a Taiwan passport in a Chinese name as well as an Australian Passport in the name of Mr Chang and it is on this basis that the mother asserts the father is a flight risk.

10. The father alleges that the parties had a verbal altercation on the evening of 13 July 2015 where the mother again began hitting the child in the head with a tissue box. The following morning, being 14 July 2015, the father says that the mother became verbally abusive towards the father for the events of the night before. The mother pushed the father onto the bed, took a screwdriver from the dresser drawer, jumped onto the bed and stabbed the father three times.[13] The mother yelled to the child to “go to the kitchen, get the scissors and I will stab him”. The father’s eldest son arrived at the residence and removed the scissors from the child. The father reported this event to the police following seeking medical treatment and it was following this event that an Apprehended Domestic Violence Order was made.

    [13] Paragraph 28 of the father’s Affidavit filed 7 October 2016

1. Annexed to the father’s affidavit is a medical certificated dated 14 July 2017. All that it discloses is that the father had been sick for 10 days with an upper respiratory infection. It does not mention any injuries allegedly suffered as a result of the attack with a screwdriver as deposed to in the father’s affidavit.

2. Tendered in the proceedings were various documents produced under subpoena from the Police. The events recorded in those documents are different to the versions alleged by either parent. Indeed, the father’s own affidavit contains the application for apprehended domestic violence order which is the same version as contained in the material produced under subpoena but which is different to the version provided in the father’s affidavit.

3. The mother’s account of the events of 14 July 2015 is entirely different to the father’s evidence. She says that early in the morning the father began scolding the child saying words to the effect of “you have been in Australia for 4 months and you could not even say the English alphabet.” The mother told the father “you know his situation and you have never done anything to help him, why scold him”. The mother says moments later the father kicked the mother to the back, dragged her to his bedroom, threw her onto his bed and sat on her chest. The mother managed to push the father off after some time and then “felt myself suddenly seized by the hair and bitten by the hand”. The mother said she yelled to the child to help her and that he ran to the kitchen and got some scissors that the father’s eldest child then entered the premises and took scissors from the child’s hand.

4. The police notes tendered in the proceedings, noted as being the mother’s version of events, are different to the account she provides in her affidavit.

5. The mother was ultimately charged and detained by the police for seven days. It appears from the material that the charges were either dismissed or not pressed. Certainly there is no evidence that the mother was convicted.

6. An Apprehended Domestic Violence Order was made for the protection of the father and the child with the mother named as the defendant on 2 November 2015. The order was for a period of two years, that is, it expired on 2 November 2017.

7. On 24 August 2016, the mother successfully appealed the order made on 2 November 2015 such that the child’s name was removed from the order. The father remained a protected person.

8. The mother says that she is concerned with the father’s ability to care for the child. She annexes a number of photographs of the child to her Affidavit which on their face demonstrate that the child’s hygiene may be problematic. The child is shown with dirty teeth, long dirty fingernails and grotty hands.

9. The mother also says that the child has suffered a number of unexplained injuries while in the father’s care, and that at times different people have looked after the child while the father has been away overseas or in hospital. The mother deposes to the child recently suffering an injury to his arm while being cared for by a person not known to her in the father’s absence. It is unclear why she suggests that the injury which appears in the photograph was anything but accidental. There is no evidence that she raised the issue with the father in an attempt to learn what had occurred.

10. The mother in her affidavit filed 22 March 2017 states:

    “I am aware that since my son was put under the Applicant’s sole care, he has broken his hand three times, his left hand twice and his right hand once, and has been in a quite untidy situation.”

11. The father annexes to his affidavit filed 7 October 2016 material which discloses that the child suffered a fracture to his arm while at school in March 2016. Furthermore, annexed to the father’s affidavit is a report from Dr T, paediatric neurologist, dated 26 June 2015. Both parents attended with the child when he was reviewed on 29 May 2015. That report discloses a medical history of the child, including that the child “has also fractured his left forearm on two occasions last year when he was in China.”

12. At the time of swearing her affidavit where she raises these concerns, the mother had been served with the father’s affidavit. In light of the father’s evidence, it is difficult to understand why the mother suggests that the child has suffered three unexplained arm fractures while in the father’s sole care. The evidence is yet to be tested.

13. There is certainly a great deal of mistrust between the parties, and if it continues it will certainly have a detrimental effect on the child.

14. The mother also raises the issue of the father’s health. The documents tendered in the proceedings indicate that the father has prostate cancer, and that he has made enquiries with the Department of Family and Community Services about placing the child into foster care if he is unable to care for him. The child was interviewed by the Department, as was the mother and there was a home visit conducted to the father’s home. As a result of that visit, the father will now receive assistance with keeping his home clean and tidy.

15. One concerning aspect of the child’s living arrangements, which was not addressed in either party’s evidence, but which is evident from the tendered material, is that the child may be exposed to family violence in the father’s home as a result of his older brother’s behaviour towards his father.

16. When interviewed by a case worker, the child reported that his older brother Mr T makes him feel sad: “dad and Mr T push each other; Mr T yells at dad; dad says to calm down.” The child however said that he does not get yelled at. When he was asked about mum he wouldn’t really talk, he shut down and initially looked sad.

17. The father is reported to have told the Department that the child and his older child have conflict, and that if anything happened to the father the older child would not be able to care for the child. The father “has asked Mr T to move out as he is violent but Mr T refuses to move.”

18. The child is a particularly vulnerable child, given his global developmental delay and other issues associated with his condition. It is the Court’s view that the evidence however, does not disclose, an unacceptable risk of harm to the child in either parent’s household. Certainly there are a number of identified risks, which can be ameliorated through safety guards which these orders will impose upon both parties. The time that the child will be spending in each household will ensure that each of the parents is vigilant and provides the best possible care for the child, particularly under the spotlight of Court proceedings.

Additional Considerations

1. The child is currently spending time with both of his parents. Although there is no evidence of the child’s expressed views, there is some evidence through the tendered material which shows that the child might have some concerns about spending time with the mother. Whether this is because he is not spending enough time with the mother, whether it is because the father is denigrating the mother to the child, whether it is because the mother does not provide appropriate care for the child are matters which are simply not known. Certainly, there is no evidence that the child has been physically harmed while in the mother’s care consequent upon the interim orders in this matter.

2. The mother describes the father as being a troublesome gambler from very early on in the relationship whilst the parties were still living in China. She says that his gambling continued following the birth of the child and that when the mother became concerned about the child’s development at around two years of age the father “had never been with us whenever we visited hospital because he was always away gambling.”

3. During 2013 to 2014 the mother says she attended numerous hospitals throughout China in search for assistance for the child and that she devoted all of her time and energy in taking care of the child and seeking medical assistance whilst the father was away gambling. However, upon the parties moving to Australia, the mother says that the father was in attendance at all medical appointments.

4. The mother says that during the time the family was living in China, she was at all times the primary carer of the child and that the father was very seldom at home. She says that the parties’ relationship began to suffer and that they began sleeping in separate bedrooms “since my son was little and this arrangement continued until 14 July 2015 when I was detained for alleged domestic violence reported by the Applicant”. She says that the father slept in a room separate to her and the child.

5. The evidence is that since separation in July 2015, the father has been the child’s primary carer. He has not only attended to the child’s daily needs, but also to his medical needs. He has ensured that the child attended speech therapy and has obtained prescription glasses for the child in accordance with medical advice.

6. The father, on his evidence, appears to be a loving and devoted parent to the child. He attends to the child’s additional daily requirements, he assists the child in eating, preparing for school in the morning, he plays with the child and his friends at school until school starts, he then tends to the usual family chores such as washing, shopping and cooking whilst the child is at school. In the afternoons he helps the child with his homework and takes the child to the park. The father ensures that the child attends all of his medical appointments. 

7. The mother has had limited involvement with the child post separation. On her evidence this is because the father denied her and the child such a relationship. Her evidence suggests that she did use her best endeavours, in the circumstances of what she says was her limited understanding of the law, to spend time with the child during the school day by attending his school four days per week until 2017 when the father changed the child’s enrolment.  She has spent time with the child pursuant to the orders made by this Court.

8. There are concerns about each of the parents’ ability to foster a relationship between the child and the other parent, and their attitudes to the responsibilities of parenthood. A continuation of the order preventing the parties from denigrating each other in the child’s presence is an order that will be made to ensure that there is at least some protection for the child from the parent’s attitudes towards the other parent.

Parental Responsibility

1. Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[14]

   [14] See note 1 s61C

2. Section 61DA provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order. As noted earlier, in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[15] The presumption is also rebutted where there are reasonable grounds to believe that a parent has engaged in family violence.

   [15] s61DA(3)

3. It is noted for the benefit of the parties that in making a final parenting order in relation to a child, the Court must disregard the allocation of parental responsibility made in the interim order.[16]

   [16] s61DB

4. Given the various allegations of family violence which each of the parties makes against the other, and the denials of such allegations by the party against whom they are made, without the evidence being tested the Court is simply not able to make any findings of fact in respect of those matters. While the presumption may be rebutted if there are reasonable grounds to believe that a party has engaged in family violence, once again, given the evidence of both parties, including the significant differences in the parties’ evidence about the same event, the Court is not able to make that finding either. The making of an apprehended domestic violence order is not of itself sufficient to ground a finding that there has been family violence or that there are reasonable grounds to believe that a party has engaged in family violence.

5. The Court having heard the parties’ submissions, and taking into consideration all of the evidence, finds that the presumption of equal shared parental responsibility has not been rebutted. While certainly there are issues of mistrust between the parents, the Court suspects that this may be because of a lack of understanding of the legal system and certain cultural issues which can be gleaned from the parties’ evidence.

6. However, the Court is concerned about the father’s unilateral actions in changing the child’s school at the commencement of the 2017 school year and the child’s residence in about late May 2017, without notification to the mother of such matters, and particularly in light of the statutory provisions dealing with parental responsibility and the order for equal shared parental responsibility made on 5 April 2017.

7. For those reasons, an order for the parties to have equal shared parental responsibility for the child will be made.

8. An order for equal shared parental responsibility triggers the operation of s65DAA. An order for the parties to have equal time with the child is not an order which is supported by the evidence, however, an order for the child to spend significant and substantial time with the mother is.

Conclusion

1. The absence of discussion of any particular s.60CC factor above does not reflect any failure to consider it. Rather, it is reflective of the Court’s assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors which were specifically addressed[17].

   [17] Banks & Banks (2015) FLC 93-637 at [52]

2. An airport watch list order has previously been made. The Court finds that it is appropriate for such an order to continue pending the final hearing of this matter.

3. In all of the circumstances and for all of the reasons set out above, it is in the child’s best interest for orders to be made as set out at the forefront of these Reasons.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  21 November 2017