COTTER & MEHRI

[2016] FamCA 284

FAMILY COURT OF AUSTRALIA

COTTER & MEHRI [2016] FamCA 284

FAMILY LAW – CHILDREN – Interim proceedings – where allegations as to the mother’s mental health – where the mother has had two recent admissions to mental health facilities – where appropriate to frame orders protectively pending appropriate enquiry as to the mothers mental health – where factual disputes unable to be determined - discussion of general principles as to interim proceedings.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Banks & Banks [2015] FamCAFC 36
Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC
Goode and & Goode:[2006] FamCA 1346
Marvel & Marvel (No.2 )[2010] FamCAFC 101; (2010) 43 Fam LR 348
Mazorski & Albright[2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
MRR v GRR [2010] HCA 4

APPLICANT: Ms Cotter

RESPONDENT: Mr Mehri

FILE NUMBER: PAC 657 of 2016

DATE DELIVERED: 29 April 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 5 April 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Gonzalez & Co

COUNSEL FOR THE RESPONDENT: Mr Bernie

SOLICITOR FOR THE RESPONDENT: Shelly Legal

Orders

Pending further order

1. That the mother and father have equal shared parental responsibility for the care, welfare and development of the child B, born on … 2013.

2. That the child live with the father.

3. That the child spend time with the mother as agreed between the mother and father in writing with such writing to include SMS or email communication and in default of agreement as follows:

   (a)       Every Tuesday from 9:00am to 5:00pm;

   (b)       Every Friday from 9:00am to 5:00pm; and

   (c)       Every Saturday from 9:00am to 5:00pm;

   provided that such time to occur in the presence of the Maternal Grandmother, Ms C and /or Maternal Grandfather, Mr D.

4. That child shall be collected by the mother from the child’s place of residence at E Street, Suburb F at the commencement of the child’s time with her and collected by the Father from the mother’s residence located at G Street, Suburb H at the conclusion of the child’s time with the mother.

5. That the mother is restrained from consuming alcohol or taking illicit drugs in the presence of the child or from being in any way affected by alcohol or illicit drugs whilst the child is spending time with her.

6. That the mother be at liberty to communicate with the child by phone between the hours of 5:30pm to 6:00pm on the days that the child is not spending time with her.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cotter & Mehri has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 657  of 2016

Ms Cotter

Applicant

And

Mr Mehri

Respondent

REASONS FOR JUDGMENT

1. The present application concerns interim parenting proceedings commenced by the applicant mother by way of Initiating Application filed on 15 February 2016.

2. In the initiating application the mother sought final orders in relation to the child B born in 2013 that in summary provided for the mother and father to have equal shared parental responsibility for the child and for the child to live with the mother.

3. In the same application the mother sought interim orders seeking that the child be returned to her care forthwith and that in default a recovery order issue to secure the return of the child to her. Otherwise the mother sought interim orders that she and the father have equal shared parental responsibility and that the child live with her.

4. The father filed a response to the mother’s Initiating Application on 10 March 2016. In that response he sought a suite of orders substantially seeking orders that he have sole parental responsibility for the child, that he keep the mother informed of any decisions made by him as to any major long-term issues, that the child live with him and that the child spend supervised time with the mother or otherwise as agreed.

5. The father otherwise sought interim orders reflecting his concern as to the mothers mental health well-being, his concern in relation to the mother’s abuse of drugs and other specific issues orders as to mutual notification as to issues in relation to the child, the mother's telephone communication with the child and enrolment in “parenting after separation” courses.

6. The proceedings were first listed before the court on 14 March 2016. On that day the parties agreed to temporary interim orders pending interim hearing that in summary provided:

   a)that the mother and father to have equal shared parental responsibility for the child,

   b)that the father keep the mother informed of any decisions made by him with respect to the child,

   c)that the child live with the father,

   d)that the child spend time with the mother each Tuesday Friday and Saturday from 9 a.m. to 5 p.m. with that time to occur in the presence of the maternal grandmother or the maternal grandfather,

   e)that for the purposes of the child’s time with the mother the child to be collected by the mother from the father’s residence and the father to collect the child at the conclusion of the child’s time with the mother from the mother’s residence,

   f)that “without admissions” the mother be restrained from consuming alcohol or taking illicit drugs in the presence of the child or to be in any way affected by alcohol or illicit drugs,

   g)that the mother be at liberty to communicate with the child by phone between 6:30 p.m. and 7 p.m. on the days when the child is not in her care.

The Mother’s Proposals

1. At interim hearing the mother sought orders that in substance reflected in the interim orders sought by her in her initiating application.

2. The mother now resides with her father and her grandmother. That home is a four-bedroom home where the mother has her own room and there is a room set up for the child. The mother is supported in her application by her father and her mother.

The Father’s Proposals

1. At interim hearing the father sought orders that provided for him to have sole parental responsibility, that the child live with him, and that the child spend time with the mother each Sunday from 9 a.m. to 5 p.m. with that time increasing depending upon the mother complying with a drug testing regime and any mental health treatment plan.

2. The father’s application is supported by the paternal grandmother who is 53 years of age and does not work. The paternal grandmother resides in the same home as the father and the child.

Context

1. The mother is presently aged 35 and the father aged 29.

2. The father asserts that he is in full-time employment earning about $82,000 per annum.

3. In 2009 the mother then aged 29 was sentenced to a period of 3years imprisonment. The mother was released on parole in 2011 after 18 months and remained on parole until 2013: (Exh A). The mother was required to undertake regular drug testing during her parole period.

4. The parties’ relationship commenced in about July 2012 and the parties were married in a religious ceremony in 2012.

5. The child B was born in 2013.

6. A second child of the relationship J was born in 2015. The child died a few months later. It appears that a final determination as to the child’s cause of death awaits a coronial determination. The mother asserts that the child, who was in her care at the time, died from Sudden Infant Death Syndrome. An autopsy revealed that the child’s death was due to being smothered but the police report that there were no suspicious circumstances.

7. The Department of Family and Community Services became engaged with the family after the child’s death and offered guidance to the parties in relation to co-sleeping with a child. The Department again engaged with the family after separation when the father removed the child B from the mother’s home and shortly thereafter following a complaint as to child being at risk in the father’s care. No action was taken by the Department following a home visit to the father’s home by a case worker on the 4 March 2016 (Exh A).

8. The mother presently remains on compassionate leave from her employer.

9. It appears that the death of J has had a significant effect on the health of the mother. The father asserts his belief that subsequent to the death of J the mother once again commenced using illicit drugs. The father further asserts that the mother’s behaviour by November 2015 was exhibiting some paranoia, she expressing to the father her belief that both she and the home were under surveillance. The father says that on 30 November 2015 the received a phone call from the New South Wales Police who expressed to him their concerns as to the mother’s behaviour.

10. On 30 November 2015 the mother was admitted to the I Hospital Mental Health Unit. She was later discharged from hospital on 9 December 2015 but was again readmitted to the I Hospital Mental Health Unit on 21 December 2015 for several days.

11. The mother asserts that the father was physically violent, abusive and controlling towards her during the relationship and had threatened to send the child to Country K. There is significant dispute between the parties as to what transpired during their short relationship and that dispute is unable to be resolved in the context of this interim application.

12. The party separated on 21 December 2015 at which time the father moved out of the parties’ rented home leaving the child the child with the mother. The mother asserts that the separation was precipitated by her becoming aware that the father was having an extramarital relationship.

13. The father asserts that he had significant concerns for the child in the care of the mother and caused the New South Wales Police to attend at the mother’s home on 18 January 2016 to undertake a “welfare check”.

14. The mother’s general practitioner referred the mother for psychological assistance for anxiety and depression to Dr L psychologist. The mother asserts that she continues to attend upon Dr L.

15. In circumstances that are in dispute, the father physically removed the child from the mother’s care on 31 January 2016. The child has remained in the father’s care since that time. The mother further asserts that the father has been threatening and abusive towards her since separation. The father denies such allegations. The mother further expresses concern for the child safety in circumstances where building and construction work is still being undertaken at the premises where the father and the child reside

16. The mother commenced the present proceedings on 16 February 2016.

17. On 21 March 2016 the mother undertook a chain of custody urinalysis test which was negative for all drugs and alcohol 30 March 2016

18. The child has been enrolled by the father in child care two days per week and to the father’s observation the child now enjoys her time at childcare.

I Hospital

1. Documents were produced on subpoena by the I Hospital (Exh C). The documents relating to the mother’s first admission on 30 November 2015 record:

   … referred to by a GP after [patient] presented to GP with bizarre behaviour and deterioration in her mental state for the last 2 – 3 days….PD of Psychotic Depression. Hx of Post-natal depression after baby died 6 months ago with Sudden Infant Death Syndrome…. On presentation [patient] well groomed, dressed in smart casual. Labile mood, crying, anxious and hyperventilating…. Delusional at times, believes her partner has bugged her house and believes there are lasers fitted in her house.

2. Subsequently the mother’s behaviour was described as “uncooperative, guarded and suspicious, dismissive and evasive of all questions, argumentative, impaired judgement, disorganised thoughts – can’t explain/understand”.

3. The maternal grandmother was interviewed and outlined her significant concerns as to her daughter’s well-being saying that she “flips from normal to paranoid Never thought of harming the child”.

4. The mother was commenced on Risperidone, an antipsychotic medication, and she showed significant improvement and was permitted day leave and had time with the father and the child the child. The mother was discharged on 9 December 2016.

5. Subsequently the mother was again admitted to the I Hospital on 21 December 2015. An initial mental state examination revealed that the mother was “mildly unkempt”. It was observed that the mother’s behaviour during interview was agitated, irritable, hard to interrupt at times, angry, and guarded at times. Her thought content was described as “themes of persecution, paranoia, infidelity and delusional perception”. She was observed to demonstrate poor insight and judgement.

6. The mother was discharged on 23 December 2015 to her father’s home. Subsequently the mother engaged with NSW Mental Health Team with a possible risk identified as “major mental illness or disorder”. The mother remained on her antipsychotic medication and her early presentations to the mental health team revealed no psychosis or paranoia but a risk that there could be a psychotic relapse if the mother was subjected to heightened levels of stress.

7. By mid-January 2016 the mother remained reasonably well but “clearly anxious about recent events”.

Interim Parenting

1. In Marvel & Marvel (No.2 )[2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court, discussed the difficulties associated with making findings on contested 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 paragraph [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.

2. In George & George [2013] FamCAFC 182 the Full Court cited Deiter & Deiter [2011] FamCAFC 82 in confirming that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.

3. In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   … Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

4. In Banks & Banks [2015] FamCAFC 36 the Full Court said:

   47. As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.

   48. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   49. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD(2014) FLC 93-582.

   50. When it is obvious that the findings made as to some of the s.60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CCfactor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

   …

   52. In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.

The Law:

1. The relevant principles in relation to parenting and interim proceedings are well settled Goode & Goode[2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.

2. Section 60B of the Family Law Act 1975 (“the Act”) outlines the objects and principles underlying Part VII of the Act.

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. 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.

2. Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the court is to take into account in determining what is in the best interests of the child.

3. 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:

   a)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)],

   b)in interim proceedings where the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].

   c)if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)]

4. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the court may but is not required to consider equal or substantial and significant time [s 65DAA(6)].

Best Interests of the Child:

The Primary Considerations: s 60CC (2)

1. The primary considerations are:

   a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

   b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (b).

Section 60CC(2)(a) – “meaningful” relationship:

1. In Mazorski & Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

3. The child the child is almost two and a half years of age. She requires a regular relationship with each of her parents so as to ensure appropriate developmental attachments at her fragile age. It is important for the child to be able to develop strong attachments to both parents, albeit in appropriate protective circumstances, moving forward into the future.

4. Such a consideration is indicative of the child being able to spend regular and frequent time with the mother subject to the overarching considerations of her mental health and a fuller examination of how that impacts upon any risk that it presents to the child, if any.

5. There are significant factual disputes between the father and mother as to the history of their relationship and more particularly the circumstances subsequent to the regrettable death of the child J. There is some indication that the mother’s mental health presentation is strongly linked to the unfortunate death of her child and clearly any subsequent anxiety and depression would be understandable.

6. There are some aspects of her presentation on her first admission to the I Hospital that give rise to concerns as to perhaps a more fundamental underlying mental health fragility. Yet such an assessment can only be made by an appropriately qualified expert who can express views as to whether the mother’s mental health presentation represents any risk to the child. At present a consideration of the benefit to the child of a meaningful relationship with both parents is indicative of an interim position whereby she resides primarily with the father and spends appropriate time with the mother to ensure that her relationship with her mother remains ongoing and meaningful.

Section  60CC(2)(b) – need to protect.

1. This factor is in itself substantially determinative of the present interim application. The court needs to proceed cautiously until such time as appropriate evidence is available in relation to the mother’s mental health circumstances and the risks, if any, that it may represent to the child. Whilst the mother has provided to the court to letters from her treating psychologist who commenced engagement with her on 20 January 2016 it is of concern that the history given to the psychologist by the mother seems to omit any reference to her admissions to the I Hospital Mental Health Unit, her subsequent engagement with the NSW Mental Health Team or the fact that she was on anti-psychotic medication.

The Additional Considerations:

1. Section 60CC(3) sets out the additional considerations:

   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;

   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);

   c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long-term issues in relation to the child; and

   (ii) to spend time with the child; and

   to communicate with the child;

   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;

   d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i) either of his or her parents; or

   (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   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;

   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;

   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;

   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;

   i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   j)any family violence involving the child or a member of the child's family;

   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:

   (i) the nature of the order;

   (ii) the circumstances in which the order was made;

   (iii) any evidence admitted in proceedings for the order;

   (iv) any findings made by the court in, or in proceedings for, the order;

   (v) any other relevant matter;

   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;

   m)any other fact or circumstance that the court thinks is relevant.

2. Regard has been had to each of the additional considerations set out above.

3. The child is of tender years and any views expressed would be afforded little if any weight in the context of the present application that raises significant protective concerns.

4. There appears no issue that the child has a good and developing relationship with both the mother and father. It is important that those relationships continue appropriately. The child also has a good relationship with the extended paternal family. By reason of the mother’s current living circumstances with her father the child also has a relationship with the extended maternal family.

5. The child has now been residing in the care of the father and the extended paternal family since the end of January 2016 that circumstances coming about one month after final separation. A change in the child’s circumstances so as to remove the child to the mother’s primary care may expose the child to risk as a consequence of the mother’s indeterminate mental health issues.

6. Orders can be made that will facilitate a significant ongoing relationship between the child and both parents in the absence of a change in the child’s present circumstances.

7. There is no practical difficulty or expense in the child spending time with either parent.

8. The question of parental capacity looms large in a determination of this interim application. The mother makes complaint about the father’s lack of engagement with the child during cohabitation, a complaint that is refuted by the father. The child at present is in the father’s primary care, he being assisted by extended paternal family. The paternal family household has been the subject of a more recent home visit by a case worker from the Department of Family and Community Services and no concerns as to the child were raised notwithstanding significant complaints made in the context of the notification made to the Department. There is a strong inference suggesting that the notification may well have been made by the mother some person on her behalf.

9. The real question is as to the mother’s capacity. There is no doubt that there is a prospect that her mental health issues have arisen situationally as a consequence of the death of the child J and the subsequent breakdown of her relationship with the father. An assessment of her capacity is subject to an overriding consideration as to the protection of the child in the interim.

10. There are allegations of family violence by the mother. Those allegations are denied by the father and a determination as to same will await a final hearing where evidence can be tested in the usual way.

11. There is no current or past family violence order.

The Presumption:

1. The Court is satisfied that in all circumstances of this matter the presumption as to equal shared parental responsibility should apply. There appears to be no issue in this regard that will loom large in the interim having regard to the child’s young age.

Discussion

1. As a consequence of the presumption applying the court is required to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

2. It is apparent that an equal time arrangement is inappropriate and not in the child’s best interests having regard to the best interest considerations referred to above, particularly the protective considerations referred to.

3. However the child is young and provided that orders facilitate the child to spend time with the mother in a protective way pending further assessment of her mental health then orders that provide for shorter but more frequent time with the mother are appropriate. Circumstances arising from the considerations discussed above are indicative of overnight time and block periods of time with the mother at this stage not being appropriate.

4. The best interests of the child dictate that it is appropriate that the parents hold equal shared parental responsibility, that the child reside primarily with the father and that the child continue to spend time with the mother substantially as provided for in orders made on 14 March 2016 and as varied as to telephone contact by consent on 5 April 2016.

5. Orders will be made accordingly.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 29 April 2016.

Legal Associate: 

Date:  29 April 2016