CLARE & YATES
[2011] FMCAfam 883
•26 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CLARE & YATES | [2011] FMCAfam 883 |
| FAMILY LAW – Parenting orders – competing applications for residence – father’s denigration of the mother – child’s wishes – mother primary attachment figure – child to live with mother – substantial and significant time with father. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA |
| Applicant: | MR CLARE |
| Respondent: | MS YATES |
| File Number: | MLC 7217 of 2010 |
| Judgment of: | Hartnett FM |
| Hearing dates: | 6 April, 7 April, 13 May and 19 July 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 26 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Renwick |
| Solicitors for the Applicant: | Kennedy Guy |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | McCracken & McCracken |
ORDERS
That all previous parenting orders are discharged.
That the mother and father have equal shared parental responsibility for the child of the relationship [X] born [in] 2002 (‘the child’).
That the child live with the mother.
That the child spend time and communicate with the father during school terms as follows:
(a)Each alternate weekend from after school on Friday until the commencement of school on Monday or Tuesday if Monday is a public holiday, commencing 26 August 2011; and
(b)In the intervening week from after school Monday to the commencement of school on Tuesday.
(c)For a part of each of the school term holidays as follows:
(i)the first part of the holidays being from 10am on the first Saturday until 5pm on the middle Saturday in 2011 and in odd-numbered years thereafter; and
(ii)the second part of the holidays being from 10am on the middle Saturday until 5pm on the last Saturday in 2012 and in even-numbered years thereafter.
IT IS ORDERED BY CONSENT:
(d)For one half of the Christmas holiday period as follows:
(i)the first half of the holidays in 2011 and in odd-numbered years thereafter save that the child shall live with his mother from 3pm on Christmas Day until 6pm on 26 December in 2011 and each subsequent odd-numbered year; and
(ii)the second half of the holidays in 2012 and in even-numbered years thereafter.
(e)On the child’s birthday if his birthday falls on a school day from after school until 7pm and if his birthday falls on a non-school day from 12 noon until 4pm.
(f)On Mother’s Day weekend, the father’s time concludes at 5pm Saturday if he spending time that weekend.
(g)On Father’s Day, from 5pm Saturday to the commencement of school Monday, if not already spending time.
(h)From 5pm Christmas Eve until Christmas Day at 3pm in 2011 and in odd-numbered years thereafter and from 3pm on Christmas Day until 6pm on 26 December in 2012 and each even-numbered year thereafter.
(i)By telephone at all reasonable times with the father to instigate the call to either the phone of the child or mother.
(j)At such other times as the parties may agree in writing from time to time.
That changeover take place inside McDonald’s at [suburb omitted], if not occurring at school.
IT IS FURTHER ORDERED:
That pursuant to s.13C of the Family Law Act 1975, both the mother and father:
(a)attend a post separation parenting course to occur at an organisation as agreed between themselves or failing agreement, as nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry of the Family Court of Australia;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the course;
(c)pay and otherwise be responsible for all costs associated with the course; and
(d)provide an appropriate certificate of completion of the course to the other parties or their solicitors.
That the mother be permitted to enrol the child in swimming lessons and that each of the mother and father facilitate the child’s attendance at such lessons whenever they shall occur.
That when the child spends time with his father, the mother is permitted to telephone the child at all reasonable times to either the phone of the child or the father.
That all exhibits be returned to the parties after the expiration of the appeal period, in particular the photographs tendered to be returned to the mother’s possession.
That otherwise all extant applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Clare & Yates is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 7217 of 2010
| MR CLARE |
Applicant
And
| MS YATES |
Respondent
REASONS FOR JUDGMENT
The proceedings between the parties involved the seeking of both property and parenting orders. The property matters were finalised during the course of the proceedings. Outstanding, is each of the mother and father’s applications that their son, [X] born [in] 2002, reside with them and spend time with the other parent.
The orders made by consent and on 20 December 2010 have remained in operation until this time. The matter was earlier listed for final hearing but the mother failed to attend. Her explanation was plausible and accepted. The current orders provide for [X] to spend time with each of his parents on a week about basis. There remains, on the evidence, some significant conflict in the parents’ relationship and at its source is the father’s ongoing denigration of the mother and attempts to have her regarded by all and sundry as a bad mother.
The father commenced the proceedings with his application filed on
6 August 2010. He relied upon affidavits sworn by him on 14 July 2010, 15 September 2010 and 3 March 2011. He also relied at trial upon an affidavit sworn by his sister, Ms B on 3 March 2011. The mother relied upon affidavits sworn by her on 17 September 2010 and 1 April 2011. There was also in evidence before the Court, a family report prepared by Associate Professor L, Psychologist. An outline of case document was filed by both parties. The orders sought by the mother and father exist in their respective case outlines. The mother seeks [X] reside with her for 10 nights in each 14, together with holiday and special occasion days. The father seeks broadly similar orders. Neither party seeks a shared care regime save that if the father were unsuccessful in his application for [X] to live with him, then he seeks a continuum of the current arrangement, whilst acknowledging the poor rapport between the parties. Each of the parties, Ms B and Associate Professor L were cross-examined.
Statements of fact contained in these reasons are findings of fact on the balance of probabilities.
History
The father is aged 60 years and the mother is aged 45 years. The mother was born in the Philippines and the father in Australia. The father is an [occupation omitted] working in [omitted], Melbourne. He is seeking out accommodation in the [omitted] area. The mother is a [occupation omitted] working in [omitted]. She lives in [omitted]. The parties commenced their relationship in 2000 and [X] who is now
9 years of age, was born [in] 2002. He currently attends the [school omitted] and is in grade three. The parties agree that in the almost
12 months following his birth his primary carer was the mother who remained at home caring for him full time. The father continued in his employment with working hours between 7am and 3 or 3.30pm each day. He would leave home at 5.30 or 6am each morning. He continues to be employed in this capacity.
The mother returned to work in a day time position in about July 2003 and whilst she was gainfully employed she arranged for a friend, Ms C, to care for [X]. The husband’s evidence is that Mr C cared for [X] but nothing turns on this particularly. Ms C also cared for the mother’s daughter [Y], who was then 16 years of age. After school, [Y] would be cared for by Ms C and be in the company of her half brother [X] until the mother collected them from Ms C’s home. She and the father then cared for [X] and [Y] in their home each evening although the relationship between [Y] and the father was not a good one and on the mother’s evidence was a major contributor to the marriage breakdown. In July 2006, the mother commenced employment in a second job to assist in the repayment of the mortgage, the parties having purchased a home. That second job was during the evening and involved [omitted]. She was employed by a firm called [omitted]. The hours of this employment were 6:00pm to 10 or 11pm. During her absence from the home as a result of her taking up a second job, the child [X] was cared for by either his father or his older half sister or other persons as arranged by the mother. There were also times when the mother called in sick because of her need to care for [X] and times when [X] accompanied her to the workplace. There was considerable dispute between the parties as to whom cared for [X] during these periods. The evidence is such that in the period between July 2006 and early 2008 and being before [X] commenced school I accept that the mother had for the majority of occasions to arrange for [X]’s care. During 2008 and 2009, the father cared for [X] on a regular basis but such care was also provided by others as arranged by the mother and in 2009 increasingly more so by the mother herself rather than her daughter and friends on those occasions the father refused to care for [X] and/or was unreliable in doing so and/or was late to collect [X] from school. Indeed the mother was reprimanded by her employer in November 2009 for her numerous absences from the workplace consequent upon her need to care for [X] and do so at effectively the last minute. Throughout this period there was considerable conflict between the parties. The mother claims the parties separated under the one roof in 2006 and that she had a relationship with a Mr G during the course of 2007. The father referred to it as an affair and claimed it commenced in 2005. The mother did not in fact meet Mr G before July 2006. It is impossible to ascertain the date of separation upon the evidence however as at a time before January 2010, because of the lack of corroborative evidence in this regard and the implausibility and contradictory nature at times of each of the parties’ evidence. The father’s claim that he solely cared for [X] for a 3.5 year period I reject. The mother continued in her second job on a permanent part-time basis of 4.5 to 5 hour shifts until about June 2010. She had ceased her day time job in 2009. She obtained other employment during the day for a while and then was unemployed before in April 2011, she gained further employment as an [omitted]. Her working hours are now 9:30am to 4:00pm. She is able to drop [X] at school and collect him from after care at about 4:30pm.
The father claims the parties separated under the one roof in early 2010. They had been sleeping in separate rooms and living fairly independent lives for a long time before then. The father sought and obtained ex parte an interim intervention order in March 2011 which removed the mother from the home. Once she was made aware of the proceedings and heard by the Court, the mother was able to regain entry to the former matrimonial home. Thereafter, both parties made application for intervention orders against the other and mutual intervention orders were made at the [omitted] Magistrates’ Court on 22 June 2010 which have now expired. The mother moved out of the former matrimonial home in [suburb omitted] in November 2010 effecting physical separation and the father remained in occupation until after the commencement of these proceedings when it became apparent that the property needed to be sold. He declined to pay the mortgage for a time and allowed the house to fall into a state of disrepair. The mother moved to rental accommodation in [omitted] and the father is to secure accommodation after the settlement of the sale of the former matrimonial home. They will reside in close geographical proximity one to the other.
Ms B swore an affidavit in support of her brother. In her affidavit sworn 3 March 2011, Ms B deposed to being in regular contact with her brother. She claimed to have visited the mother and father, when the parties were getting on, every two months. However, she ceased to do so many years ago being around 2004 or 2005. Her evidence in part supported the mother’s as to the parties’ separation at an earlier time. She has not seen the mother since 2004 or 2005. Her evidence was that her brother had told her that the mother was involved in relationships with other men and effectively neglected [X]. She deposed to attending with her brother upon a worker in the Department of Human Services (‘DHS’) in Footscray to report that [X] alleged his mother had hit him, and further to report her concern and that of her brother that the mother was not at home regularly and so [X] was left alone. This is of course provided evidence that at these times the father was not caring for the child. She further deposed to an episode in 2010 where at her brother’s request she telephoned the police in order for them to attend upon the former matrimonial home to ascertain if the child [X] was home alone. The father was unable to do this task himself as he was driving to hospital as a result of suffering from chest pain. [X] was alone and the police contacted his sister [Y] who attended at the house and took over the care of [X]. The evidence indicates the father set the mother up on this occasion. His sister’s evidence was a history as provided to her by her brother. She did not at any time seek to establish its veracity. In 2010, she acted in concert with her brother to seek that [X] be removed from his mother’s care.
On 22 June 2010 the parties entered into a parenting plan, which was encapsulated in consent orders made on 21 September 2010. Those orders provided for [X] to be cared for by his mother in the morning and by his father after school and in the evening. This arrangement was to accommodate their respective working schedules. The father asserts however, that he did not collect [X] from school because either the mother had, or she had arranged for someone else to do so. The mother agrees that is the case but claims that it became necessary because of the father’s unreliability, both historically and presently, when it came to collecting his son either from school or after school care. In December 2010 and after physical separation between the parties the parties agreed to share the care of [X] on an interim and week about basis.
The husband’s evidence was often exaggerated. For instance, he denied there was any occasion where the mother would prepare dinner for he and [X] from 2006 onward. I prefer the mother’s evidence in relation to this matter and find it was she who predominantly cleaned the house and made arrangements for its general operations including on many occasions preparation of the evening meal. The husband claimed the wife had an affair with three men – the evidence establishes a relationship with one man – and he was vitriolic in his condemnation of the mother calling her a ‘whore’ and a ‘dog’. He established the affair with Mr G because –
a)in May 2005, the mother and Mr G had been in a motel in [omitted] and he had found Viagra tablets in the mother’s bag (the mother met Mr G first in July 2006); and
b)in November 2006 and again some 12 months later, he and his sister ‘caught them in Melbourne and we followed them to a motel.’
He was following them, he said, because he was looking for his son who was not at home. The father claimed the mother to frequent the casino with her boyfriends’ being at least three that he knew of. He asserted a man by the name of Mr S was a boyfriend of the wife. This person had accompanied the mother and [X], and formed part of a group of others from the workplace, to the Gold Coast for a one week holiday. The father claimed that ‘all the photographs ever showed three people in it. [Mr S], [Ms Yates] and my son.’ The father tendered the photographs in evidence in the proceedings and whilst [Mr S], [Ms Yates] and his son did feature alone or in combination in a few, there were many more photographs of the holiday where places and other people were depicted. The presence of [Mr S] in the photos was not proof of any alleged affair between him and the mother. I accept the mother’s evidence that [Mr S] was and is a friend, and that no sexual relationship exists between them. This is not to say that it would be inappropriate for there to have been, or there to be, any such relationship.
The father said of the holiday at the Gold Coast in January 2010, that he and the mother were still a couple, which is not supported by any of the evidence, and that he did not know where his son was. He claimed the mother told [X], when he was finally able to communicate with him, to say that they were at Phillip Island. The mother denied instructing [X] to lie and further denied that [X] told his father this. Again, I prefer the evidence of the mother.
The father claimed the mother did not come home for long periods at a time. His evidence was that between 2005 and the beginning of 2010 she often wasn’t home. These absences he said were at any time, including during the week, and that during such absences [X] was always cared for by him. This evidence was implausible and not capable of being accepted by the Court. Indeed the father subsequently withdrew from this claim to some extent under cross-examination, saying that between 2005 and 2008, which was the period before [X] commenced school, the mother would mostly come home early in the morning. He maintained his earlier evidence that from 2008 until separation she rarely came home. This was despite his affidavit evidence which conceded the mother was responsible for getting [X] out of bed in the morning prior to her going to work. Subsequently, he again altered his position to claim that ‘a lot of times she came home and a lot of times she didn’t come home.’ If she came home he described it as one of three men dropping her off at 5 or 6 in the morning. In the giving of this evidence, the father was again untruthful and concerned to criticise the mother and highlight her lack of moral substance.
The father further gave evidence the mother was on drugs. He described an incident in 2009 when he said she came home and dragged [X] out of his bed. He claimed her to be ‘all charged up’, staggering and with eyes glazed. The father had not earlier made such a claim. His affidavit of evidence in chief sworn in March this year made no allegation of drug use against the mother. The father never sought in the proceedings to have the mother drug tested. Yet on his evidence he has on numerous occasions notified the school, the police and his solicitor that the mother is a drug user. He told the police that the mother’s employer was a ‘front for a drug place’ and that the mother had been ‘taking drugs, coming home staggering, harming the kid.’ There is no evidence which supports the father’s claim and no action has been taken by those authorities to whom the father has variously made complaint. The father attended upon at least 3 different police stations in 2008 and 2009 and on a number of occasions in each year to report that he did not know where his son was and to make false allegations about the mother. He further made reports to the DHS, on his evidence, ‘a dozen or so times’ commencing in about 2005 or 2006 and continuing after separation. In fact, the subpoenaed evidence showed that he first complained in February 2010. It was at this time he was also preparing to have the mother removed from the house. The father was attempting to falsely constructing a case against the mother to secure the residence of his son with him and to make her life difficult for her. He also communicated with the school and claimed [X]’s absences were in excess of actuality and not for genuine reason – as I find they were. The evidence is that [X] is a ‘brilliant’ student and his attendance at school is consistent. His actions were not one of a genuinely concerned father but of a vindictive de facto partner. The father alleged in evidence the mother to be also drunk in May 2010 and smelling heavily of alcohol and cigarette smoke. I accept the mother’s evidence in rebuttal that she does not drink or smoke. In fact, the father smokes. Much evidence was led as to care arrangements of [X] and the failure of one party or the other to co-operate with the other (which I shall not set out in these reasons in detail save noting the father’s behaviour in taking [X]’s donuts as purchased by the mother on the morning of his birthday, and then presenting at the school with them was again action which did not promote [X]’s best interests and which was intended to work against the mother was reprehensible). The overwhelming direction of the evidence was generally the mother’s focus on [X]’s welfare and the father’s focus on belittling the mother. They both love and are loved by [X], and hopefully them now residing in differing accommodation will benefit all.
The orders made on 20 December 2010 provided for a communication book to be used by the parties. It is no longer used. The father saw it as a further opportunity to denigrate and abuse the mother and level false accusations against her. Its presence merely highlighted the poor communication between the parties and illustrated the high level of their conflict.
Mr L’s report dated 2 January 2011 was introduced into evidence and he was cross-examined as to its contents. After being interviewed by Mr L, the mother left the former matrimonial home to remove [X] from the environment that existed within it which was one of constant conflict as noted by Mr L. The father would simply not consider such a move despite the obvious benefit it would bring to [X] to be removed from their conflict and despite his failure to provide proper financial support for his wife and child both whilst they were residing together and subsequent to physical separation. Mr L’s evidence was that [X] should live with his mother and spend substantial and significant time with his father. He noted such an arrangement would reflect [X]’s own wishes and the pattern of his attachments, given his primary attachment to his mother. He felt the parties needed a post-separation parenting program. His recommendations were supported by the evidence.
The law
The parties agree that [X]’s best interests are served by them having equal shared parental responsibility for him. Further, there is no evidence before the Court to displace the presumption of equal shared parental responsibility as set out in s.61DA of the Family Law Act 1975 (‘the Act’). Given this, the Court must then consider the provisions of section 65DAA of the Act which are as follows:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Consent orders
(6) If:
(a) the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b) the order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
(7) To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
In deciding which of the above parenting orders to make, the Court must regard the best interests of the child as the paramount consideration (s.60CA of the Act). How a court determines those best interests is set out in s.60CC of the Act. The facts of this matter are such that it is reasonably practicable for [X] to spend both equal time with each of his parents or substantial and significant time with each of his parents. However, when looking to the matters set out in s.60CC of the Act, the Court determines that it would not be in [X]’s best interests to spend equal time with each of his parents. Indeed the parents do not seek such orders save in default. The evidence establishes, despite the father’s attempt to make out a cause of neglect of and physical violence perpetrated upon the child by the mother, that there is not a need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Despite the father’s reporting to the DHS and the police, no protection application has ever issued nor have the DHS had protective concerns despite the father alleging on one occasion the mother to have hit the child leaving red welts on his legs. The mother denied this. The father did not attend upon a doctor with the child. The DHS had no protective concerns. I accept the mother’s evidence and reject that of the father. Both the mother and father are responsible parents, the father not having always been when overcome with his emotional response to what he often wrongly perceived were the mother’s activities. He needs to remove himself from being so embroiled in the mother’s life and consequent upon the physical separation of the parties he should be able to function more appropriately as a parent.
When considering the matters as set out in s.60CC(3) [each of the parents have generally fulfilled their responsibilities as a parent, when looking to s.60CC(4)] the following as to each sub-paragraph is concluded on the evidence:
(a) any views expressed by the child and any factors (such as
the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
[X] wishes to live with his mother. He is primarily attached to her and has sufficient maturity, as a nine year old, to recognise this.
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
[X] has a good and close relationship with his half sister [Y] and her young son. She is considerably older than he but she has had ongoing involvement with him. [X] loves both his parents and relies upon them for provision of his physical and emotional needs. His bond with his mother is fundamental to his sense of wellbeing and security.
(c)the 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
The mother is more able and willing to continue the relationship between the child and his father and to foster it than in the reverse situation. This is because the father continues to disapprove of the mother and considers her an inadequate parent.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The orders proposed will continue [X]’s constant involvement with both of his parents and his half sister.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
This is not a problematic consideration.
(f)the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Each of the mother and father can provide for [X]’s intellectual needs. His mother provides for his emotional needs to a slightly greater extent in her recognition of the value of the father in [X]’s life albeit her at times dismissive approach caused Mr L some genuine concern.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
These matters are canvassed elsewhere in these reasons so far as they are relevant.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not applicable.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
As set out in these reasons, each of the parties love their son and are capable of caring for him. The mother has been more consistent in taking on her responsibilities over time because [X]’s welfare has been her main focus.
(j)any family violence involving the child or a member of the child’s family;
[X] is protected by both his parents and save for the father’s verbal abuse of the mother and as to which there is insufficient evidence to find whether [X] has been present or not, there is no other finding of violence.
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
The parties obtained mutual intervention orders, by consent, whilst residing under the one roof. There is no other evidence that establishes violence as being a factor in the family dynamics.
“(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;”
This is not a matter to which significant weight was given, given the facts of this case.
“(m)any other fact or circumstance that the court thinks is relevant.”
These are referred to generally in these reasons.
For the above reasons, the Court accedes to the mother’s application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 26 August 2011
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