COOLEN & COOLEN
[2019] FCCA 175
•1 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COOLEN & COOLEN | [2019] FCCA 175 |
| Catchwords: FAMILY LAW – Parenting – interim hearing – father seeking order that mother relocate child’s residence back to former living region – proposed order not made – best interests of child. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA, 65D, 65DAA |
| Cases cited: Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR COOLEN |
| Respondent: | MS COOLEN |
| File Number: | PAC 4209 of 2018 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 26 November 2018 |
| Date of Last Submission: | 27 November 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 1 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kenny of Counsel |
| Solicitors for the Applicant: | Matthews Folbigg Pty Ltd |
| Counsel for the Respondent: | Mr Roberts of Counsel |
| Solicitors for the Respondent: | Boyce Family Law & Mediation |
ORDERS PENDING FURTHER ORDER
The mother and the child [X] born …2018 be permitted to remain in Town A pending the final hearing.
That the child [X] born …2018 (“[X]”) live with the mother.
That [X] shall spend time with the father as agreed between the parties in writing, but failing agreement as follows:
(a)Each Saturday from 1:30 pm to 5:30 pm, commencing the Saturday following the date of these Orders; and
(b)Each Sunday from 8:30 am to 12:30 pm.
That for the purpose of facilitating the parties’ time with [X] under these Orders, changeover shall occur as agreed between the parties but failing agreement, the father shall collect the child from the mother’s residence at the commencement of the father’s time with the child and the father shall deliver the child to the mother’s residence at the conclusion of the father’s time with the child each alternate weekend and the mother shall deliver the child to the father’s residence at the commencement of the father’s time each other weekend.
That neither party shall denigrate the other party in the presence or hearing of [X] nor permit [X] to remain in the presence or hearing of any persons who engage in such conduct.
Each party shall do all acts and things and provide all necessary authorities to enable the other party to liaise directly with [X]’s medical practitioners and to provide that party with any information he or she may request from time to time in relation to [X]’s health to the extent permitted by law.
That each party shall keep the other advised of their current residential address, email address and contact telephone number and advise the other of any changes within 48 hours of such change occurring.
That each party shall notify the other of any serious illness or injuries suffered by [X] while in that parent’s care as soon as reasonably practicable and shall provide reasonable particulars as to the name and contact details of [X]’s treating doctor and any hospital, medical facility or healthcare provider to which [X] has been taken.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a Family Report, such report to be released by the Court.
The Family Report to deal with the following matters:
(a)Any views expressed by the child/ren and any factors relevant to the weight to be attached to those views, provided that the child/ren shall not be required to express a view in relation to any matter.
(b)The nature of the child/ren’s relationships with each of the child/ren’s parents and other persons (including any grandparent or other relative of the child/ren);
(c)The likely effect of any changes in the child/ren’s circumstances, including the likely effect on the child/ren of any separation from:
(i)either of the parents: or
(ii)any other child, or other person (including any grandparent or other relative of the child/ren), with whom the child/ren has/have been living.
(d)The capacity of each parent, or another person (including any grandparent or other relative of the child/ren), to provide for the child/ren’s needs, including emotional and intellectual needs.
(e)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child/ren and of either of the child/ren’s parents, and any other characteristics of the child/ren that the report writer thinks are relevant to opinions expressed in the report.
(f)The attitude to the child/ren, and to the responsibilities of parenthood, demonstrated by each of the child/ren’s parents.
The report writer has leave to read any document produced on subpoena to which the parties have been given such leave.
The proceedings are adjourned for mention following release of the Family Report to a date to be advised by the Court shortly.
Pursuant to Section 68L of the Family Law Act 1975 the child [X] born …2018 shall be independently represented and request that the Legal Aid Commission provide that representation.
The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed.
Leave to the parties and the Independent Children’s Lawyer to issue more than five Subpoenas for production of documents.
IT IS NOTED that publication of this judgment under the pseudonym Coolen & Coolen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4209 of 2018
| MR COOLEN |
Applicant
And
| MS COOLEN |
Respondent
REASONS FOR JUDGMENT
Introduction
This interim hearing relates to the child [X] born …2018 (“the child”).
The mother seeks the Court’s permission to remain living in Town A with the child. The mother had moved with the child to live with her parents in Town A on about 22 October 2018. The father opposes such permission being granted. He lives in Suburb K in Sydney.
The father had commenced proceedings on 6 September 2018 seeking, inter alia, interim parenting Orders that the child live with the mother and spend regular time with him. He also sought an Order that the mother be restrained from changing the child’s residence to more than 10 kilometres from a residence in Suburb K.
The father then filed an Amended Initiating Application on 21 November 2018 seeking, inter alia, interim parenting Orders that, again, the child live with the mother, and the child spend regular time with the father as set out in that application. He sought an interim restraining Order against the mother that she be restrained from changing the child’s residence to more than 20 kilometres from his residence in Suburb K.
Material relied upon by parties
The Applicant father relies on the documents set out in his case outline dated 26 November 2018.
The Court takes into account the Affidavit and accompanying report of Mr D, psychotherapist, filed 22 November 2018, whilst acknowledging that his report remains untested and that he did not see the child or interview the mother.
The Applicant father also relied upon an article by Kelly and Lamb set out in the Family and Conciliation Courts Review, volume 38 No. 3, July 2000, pages 297 to 311.
The Respondent mother opposed the latter article being tendered in evidence, she submitting that, inter alia, the article was not an expert report, and in any event it was of no relevance. The Applicant father has provided written submissions as to why the article should be admissible.
The Court places no significant weight on the article by Kelly and Lamb. The article does not address the circumstances of the subject child. It is based on research about other children and the extent to which it can be generalised is unknown without an expert’s report (the below report of Mr D does not deal with the article) or family report.
The Respondent Mother relies on documents set out in her case outline dated 22 November 2018, subject to one amendment: the second mentioned Affidavit of the mother “filed 8 November 2018”, is not to be relied upon but rather her Affidavit filed 22 November 2018 is to be relied upon.
Agreed or undisputed relevant facts unless otherwise stated
The father is aged 44 years. The mother is aged 40 years.
The parties met online in about …2013.
The parties commenced cohabitation in about … 2013.
The parties finally separated on about 30 June 2018 when the father left the former matrimonial home at Suburb K. At this time the child was about six months of age.
The child is the mother’s first child, asserted by the mother. The child was born in Sydney.
The father commenced employment as a professional in early September 2018. His work hours ae 30 hours per week. His employer is located in Queensland, however he works from Sydney. His Financial Statement filed 21 November 2018 asserts, inter alia, that he earns an average total weekly income of about $1,712, with total weekly personal expenditure of about $1,662. In that document he states that his employment as a professional is part-time. Further, in a document he states that he has a St George Bank account with some $9,000 in credit. He states he has legal fees estimated at $15,000 to the conclusion of this interim hearing, although no details are provided as to the terms of repayment of such asserted legal fees.
The mother asserts that from about early January 2018 to about mid-April 2018, she took maternity leave for a period of three months from her employment as an professional.
The mother asserts, in her Affidavit filed 12 October 2018, that in about mid-April 2018 she returned to part-time employment as a professional. She asserts in that Affidavit that she works from home the equivalent of two days each week, although the hours are spread over four days. She asserts that this arrangement allows her to look after the child full-time and work while he is asleep.
The father has a son from a previous relationship, [B], who is about four years of age. That child lives with his mother in Suburb M and spends time with the father every second weekend from Friday evening to Sunday evening.
The mother asserts that in about early July 2018 the maternal grandmother came to stay with the child and the mother at the former matrimonial home at Suburb L to assist with the day-to-day care of the child. In the mother’s Affidavit filed 12 October 2018 she alleges that the maternal grandmother continued to reside with the mother as the mother became fearful of the father’s behaviour towards her.
The former matrimonial home at Suburb L was sold and settled in about mid-October 2018. The mother alleges that at such time she was required to vacate that property. Again, she then went with the child to live with her parents in Town A.
The maternal grandmother asserts in her Affidavit filed 16 October 2018 that she travelled from Town A on about 1 July 2018 to stay with the mother and child at the Suburb L property. She alleges that in about mid July 2018 she and the mother had a discussion wherein the mother told the maternal grandmother that she did not feel safe being left alone. The maternal grandmother asserts that she stayed with the mother and child at the Suburb L property from about 1 July 2018 continuously (“I have not been home since 1 July 2018”). The maternal grandmother asserts that the maternal grandfather has visited the mother and herself from time to time to assist with the sale of the Suburb L property but has lived primarily in Town A. The maternal grandmother asserts that she needs to and will return to live in Town A (which appears to have in fact occurred on about 22 October 2018).
The mother took the child to live with the maternal grandparents in Town A on about 22 October 2018, being aware of the father’s opposition to such a move. The Court also refers to the history of the parties’ parenting proceedings in this Court.
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 v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), 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.”
Of this, the Full Court in Eaby & Speelman (2015) FLC 93-654 said at 80, 332:
[80] As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks v Banks (2015) FamCAFC 36, especially at paragraph 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, a 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).
When making a parenting Order in relation to a child, 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 for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, 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 60 CC, the Court must consider making an Order that the child spends substantial and significant time (as defined in section 65 DAA (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 60 CC, 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: sections 60CA, 60CC, 65D.
As to relevant legal principles relating to interim relocation applications, the Court respectfully refers to Harland J’s discussion of relevant legal principle in Leroy & Leroy [2018] FCCA 3211 at paragraphs 101 to 106 inclusive.
The best interests of the children
Section 60CC considerations
(2)(a) (the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration)
The child has a meaningful relationship with each parent and would benefit from a continuance of those relationships.
There is a significant suggestion on the material before the Court that the mother has been the child’s primary carer and that the child’s primary attachment is to her. During the relationship, the father, when not working in employment, asserts that he made a significant contribution to the care of the child, although there is a dispute between the parties as to the extent of that contribution.
Should the child continue to live with the mother in Town A and spend time with the father each Saturday and Sunday as proposed by the mother, but from 1:30 pm to 5:30 pm on the Saturday, and from 8:30 am to 12:30 pm on the Sunday, such times allowing, inter alia, this tender age child with specific daily routines (the mother asserts that she continues to breastfeed the child) to spend meaningful time with the father, and also affording the parties sufficient time to travel back home to their respective residences at a reasonable hour, there is a significant prospect that the child’s meaningful relationship with the father can be maintained and enhanced. In this regard, the Court has taken into account, inter alia, the Affidavit and accompanying report of Mr D filed 22 November 2018, including his statements in paragraphs 29-32 inclusive of his report. For example, at paragraph 29:
29. Presently [X] is spending weekly time with the father, which presumably is assisting greatly with maintaining and building the relationship…
and paragraph 31:
Should his spend time arrangements with [the father] become notably less frequent, [X]’s secure bonding with him could be significantly impacted.
The Court gives significant weight to this meaningful relationship consideration.
(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother alleges that the father has been verbally abusive and controlling towards her over the course of the relationship and post separation. She alleges that she is fearful of the father and intimidated by him.
For example, the mother alleges that when the father shouted at her she would become very upset and the child often cried.
The mother also alleges that the father, in about March 2018, following a verbal argument, threw a beer bottle at her. She alleges that the bottle smashed on the paving by her foot. She alleges that she was extremely frightened and started to cry and went inside the house to get away from him. In this regard, the mother annexes to her Affidavit filed 12 October 2018 a provisional Apprehended Domestic Violence Order (“ADVO”) against the father relating to the father’s former partner in which the police refer to allegations made against the father by his former partner, including the throwing of beer bottles. The father, for his part, asserts that on 15 September 2009 he agreed to an ADVO on a without prejudice basis for 12 months and was not charged with any criminal offence.
The father, further for his part, denies any alleged family violence perpetrated against the mother and his former partner, whilst acknowledging that he and the mother engaged in verbal disputation during the relationship.
There is a significant suggestion on the material before the Court that the mother sought and obtained emotional support from her parents, and in particular the maternal grandmother, from about the time of the parties’ separation, in relation to the mother’s allegations of family violence having been perpetrated against her by the father during the relationship, and that such support was (and continues to be) significantly beneficial to the mother, including in relation to her improved mental health.
Any interim parenting Orders should seek to minimise the risk of significant conflict between the parties occurring in the presence of the child.
The Court gives significant weight to this primary consideration.
Section 60CC(3) additional considerations
(3)(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child is too young to express a relevant view.
(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The father states that the child has good relationships with his son from another relationship, [B], and members of his paternal extended family. The child would appear to have positive relationships with the maternal grandparents, in particular with the maternal grandmother.
The Court also refers to its discussion above under the meaningful relationship primary consideration.
(3)(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
Both parents would appear to have taken such opportunities, subject to the dispute between the parties as to the extent to which the father has taken up opportunities to spend time with the child post separation.
(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The father asserts in his Affidavit filed 21 November 2018 that he intends to pay child support, having made an application for child support.
(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to the meaningful relationship consideration discussed above.
(3)(e) The practical difficulty and expense of a child spending time with and communicating with the 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
See the discussion below under the section 60CC (3)(m) additional consideration.
(3)(f) The capacity of each of the child’s parents; and 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
Both parents would appear to have such capacities, subject to the Court’s discussion above under the need to protect primary consideration.
(3)(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
The child is aged one, and would appear to be developing in an age appropriate manner.
(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: 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 the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The parties are in dispute in relation to how the other parent discharged their parental responsibilities to the child during the relationship. Post-separation, each party would appear to be endeavouring to discharge their parental responsibilities towards the child in a responsible manner.
(3)(j) Any family violence involving the child or a member of the child's family.
The Court refers to its discussion above under the need to protect primary consideration.
(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.
Not applicable, subject to the Court’s discussion above relating to the ADVO against the father in relation to his former partner.
(3)(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.
Whilst these are interim proceedings, should the Court accede to the father’s interim parenting proposals, it has some concern that there will be a significant risk of increased conflict occurring between the parties in the presence of the child possibly resulting in further proceedings.
(3)(m) Any other fact or circumstance that the court thinks is relevant.
The Court now addresses the advantages and disadvantages in respect to the child’s residence being maintained, on an interim basis, in Town A.
The mother asserts that she receives significant emotional and practical support (including the mother’s assertion that she does not have to pay rent to her parents) from her parents, in particular the maternal grandmother, whilst she continues to reside with them and the child in Town A. Further, the mother asserts that the child enjoys a close relationship with the maternal grandparents, in particular the maternal grandmother with whom the child has also lived with on a full-time basis from early July 2018 to date.
Should the mother and child return to live in Sydney (the father proposes that the child’s residence be no more than 20 kilometres from his Suburb K residence), leaving the support that the maternal grandparents presently provide in Town A, in particular the support that the maternal grandmother provides, on the material before the Court, there is a real suggestion that there exists a significant risk that the mother’s emotional wellbeing will be adversely affected. In this context, and consequently, there is a significant risk that the mother’s parenting capacity of the child could be detrimentally affected. Should this occur, a significant risk arises that the child’s meaningful relationship with one or both of the parties could be adversely affected. The Court has taken into account in this regard, in addition to the mother’s affidavit material, the Affidavit of Dr E (the mother’s general practitioner) filed 12 November 2018 and the Affidavit of Ms F (the mother’s treating psychologist) filed 8 November 2018, whilst acknowledging that these Affidavits remain untested. The Court has considered the submissions of the father in relation to these Affidavits, but nevertheless the Court’s above views remain.
The asserted disadvantages to the father of the child remaining living in Town A are set out in his Affidavit filed 21 November 2018. The father, at the interim hearing elaborated and expanded upon the asserted disadvantages to the father in this regard. The Court has considered these asserted disadvantages and the parties’ submissions in relation to them.
The father, should the child remain living in Town A on an interim basis, will probably be unable to spend time with the child over and above the weekly weekend daytime time that he has been spending with the child post separation; for example, mid-week time would be impractical. This issue would also apply to the child spending further time with the father’s extended family and the father’s other child [B]. Nevertheless, in this regard, the Court refers to its discussion above under the meaningful relationship primary consideration.
It is recognised that there is, in particular, a financial cost to the father of travelling to Town A on a fortnightly basis to spend time with the child. In this regard, the Court refers to the Financial Statement of the father filed 21 November 2018 referring to, inter alia, the excess of weekly income over expenditure, and the fact that the father asserts that he is presently working part-time, not full-time.
On balance, the Court is of the view at this interim stage, evaluating the above considerations under section 60CC of the Act, and having regard to relevant legal principle, referred to above, that it will be in the best interests of the child to remain living in the mother’s primary care in Town A.
The Court proposes to expedite the final hearing of these proceedings with a final hearing date in the second half of 2019.
Equal shared parental responsibility
The father seeks an interim Order for equal shared parental responsibility. The mother seeks no Order in this regard. At this interim stage, and noting the tender age of the child and the parties’ history of conflict, in particular post separation, it will not be in the best interests of the child to make an express Order for parental responsibility at this interim stage.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, and again noting relevant legal principles in relation to relocation cases, the Court is of the view at this interim stage that it will be in the best interests of the child to make the following Orders:
(1) The mother and the child [X] born …2018 be permitted to remain in Town A pending the final hearing.
(2) That the child [X] born …2018 (“[X]”) live with the mother.
(3) That [X] shall spend time with the father as agreed between the parties in writing, but failing agreement as follows:
(a) Each Saturday from 1:30 pm to 5:30 pm, commencing the Saturday following the date of these Orders; and
(b) Each Sunday from 8:30 am to 12:30 pm.
(4) That for the purpose of facilitating the parties’ time with [X] under these Orders, changeover shall occur as agreed between the parties but failing agreement, the father shall collect the child from the mother’s residence at the commencement of the father’s time with the child and the father shall deliver the child to the mother’s residence at the conclusion of the father’s time with the child each alternate weekend and the mother shall deliver the child to the father’s residence at the commencement of the father’s time each other weekend.
(5) That neither party shall denigrate the other party in the presence or hearing of [X] nor permit [X] to remain in the presence or hearing of any persons who engage in such conduct.
(6) Each party shall do all acts and things and provide all necessary authorities to enable the other party to liaise directly with [X]’s medical practitioners and to provide that party with any information he or she may request from time to time in relation to [X]’s health to the extent permitted by law.
(7) That each party shall keep the other advised of their current residential address, email address and contact telephone number and advise the other of any changes within 48 hours of such change occurring.
(8) That each party shall notify the other of any serious illness or injuries suffered by [X] while in that parent’s care as soon as reasonably practicable and shall provide reasonable particulars as to the name and contact details of [X]’s treating doctor and any hospital, medical facility or healthcare provider to which [X] has been taken.
(9) Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by the Court.
The Family Report to deal with the following matters:
(a) Any views expressed by the child/ren and any factors relevant to the weight to be attached to those views, provided that the child/ren shall not be required to express a view in relation to any matter.
(b) The nature of the child/ren’s relationships with each of the child/ren’s parents and other persons (including any grandparent or other relative of the child/ren);
(c) The likely effect of any changes in the child/ren’s circumstances, including the likely effect on the child/ren of any separation from:
(i) either of the parents: or
(ii) any other child, or other person (including any grandparent or other relative of the child/ren), with whom the child/ren has/have been living.
(d) The capacity of each parent, or another person (including any grandparent or other relative of the child/ren), to provide for the child/ren’s needs, including emotional and intellectual needs.
(e) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child/ren and of either of the child/ren’s parents, and any other characteristics of the child/ren that the report writer thinks are relevant to opinions expressed in the report.
(f) The attitude to the child/ren, and to the responsibilities of parenthood, demonstrated by each of the child/ren’s parents.
The report writer has leave to read any document produced on subpoena to which the parties have been given such leave.
(10) The proceedings are adjourned for mention following release of the Family Report to a date to be advised by the Court shortly.
(11) Pursuant to Section 68L of the Family Law Act 1975 the child [X] born …2018 shall be independently represented and request that the Legal Aid Commission provide that representation.
(12) The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed.
(13) Leave to the parties and the Independent Children’s Lawyer to issue more than five Subpoenas for production of documents.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 1 February 2019
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
-
Procedural Fairness
0
3
2