COTTEY & BACKE

[2020] FCCA 1558

FEDERAL CIRCUIT COURT OF AUSTRALIA

COTTEY & BACKE [2020] FCCA 1558

Catchwords:
FAMILY LAW – Interim parenting – urgent recovery order sought-best interests of child-recovery order not made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 67U, 67V, 67Q

Cases cited:

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Marvel & Marvel [2010] FamCAFC 101

Eaby & Speelman [2015] FamCAFC 104

Banks & Banks [2015] FamCAFC 36

Applicant: MR COTTEY

Respondent: MR BACKE

File Number: DUC 217 of 2020

Judgment of: Judge Newbrun

Hearing date: 5 June 2020

Date of Last Submission: 5 June 2020

Delivered at: Parramatta

Delivered on: 19 June 2020

REPRESENTATION

Solicitors for the Applicant: Ms Webb - Dlh Solicitors

Solicitors for the Respondent: Ms Townend - Flynns Solicitors

ORDERS PENDING FURTHER ORDER

1. The applicant stepfather’s proposed interim orders that the child, X born in 2012 ("the child") be returned to him by the respondent father and live with him are dismissed.

2. That pending further order, the child shall live with the Respondent father.

3. That the child shall spend time with the applicant step-father by agreement and failing agreement as follows:

   (a)during the school term, commencing the first weekend of each school term, each alternate weekend from after school or 3:15 pm on the Friday until 4:00 pm on the Sunday;

   (b)during the school holidays at the conclusion of Terms 1, 2 and 3 commencing 2020 and each even numbered year thereafter from the conclusion of school on the final day of the school term until 4:00 pm eight (8) days later;

   (c)during the school holidays at the conclusion of Terms 1, 2 and 3 commencing 2021 and each odd numbered year thereafter from 4:00 pm on the 8^th day of the school holiday period until the last day of the school  holiday period;

   (d)for one half of the Christmas school holiday period at the conclusion of Term 4 in 2020 and each even numbered year thereafter from 4:00 pm on  the 22^nd day of the school holiday period until the last day of the school holiday period, excluding the period from 9:00 am on 24 December to 6:00 pm on 26 December;

   (e)for one half of the Christmas school holiday period at the conclusion of Term 4 in 2021 and each odd numbered year thereafter from the conclusion of school on the final day of Term 4 for 21 nights, excluding the period from 9:00 am on 24 December to 6:00 pm on 26 December;

   (f)commencing 2020 from 3:00 pm on 25 December to 6:00 pm on 26 December in each even numbered year;

   (g)commencing 2021 from 9:00 am on 24 December to 3:00 pm on 25 December in each odd numbered year;

   (h)Easter weekend in alternate years commencing 2022.

4. That time with the applicant step-father shall be suspended on Father's Day and the child shall spend Father's Day with the respondent father.

5. That within seven (7) days of the date of these Orders the respondent father and the applicant step-father will do all such things and sign all documents necessary to cause the child to attend upon a Psychologist or suitable qualified counsellor for ongoing support and therapeutic intervention.

6. By consent, the Court makes the stepfather’s proposed interim Orders numbered 18 to 26 inclusive set out in his Initiating Application filed 26 May 2020.

7. The Court appoints an Independent Children’s Lawyer (ICL) to represent the child.

8. Leave to the parties and ICL to issue more than 5 subpoena for production of documents.

9. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall 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 March 2021.

10. The Family Report shall 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.

11. The parties shall attend all appointments with the Family Consultant and shall ensure the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.

12. The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.

13. The proceedings are adjourned to a date to be advised in March 2021 following release of the Family Report.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

DUC 217 of 2020

MR COTTEY

Applicant

And

MR BACKE

Respondent

REASONS FOR JUDGMENT

1. This is the determination of the applicant stepfather’s (the stepfather) urgent proposed recovery order in relation to the child X born in 2012.

Material relied upon

1. The stepfather relied upon the following documents:

   a)His Initiating Application filed 26 May 2020; his affidavit filed 26 May 2020; the affidavit of his sister filed 3 June 2020; his notice of risk filed

2. The father relied upon the following documents:

   a)His Response filed 4 June 2020; his affidavit filed the same date, his notice of risk filed the same date

Agreed facts unless otherwise stated

1. The child’s mother died in a motor vehicle related accident in 2019.  The mother was then aged 28 years.

2. The stepfather is aged 34 years.  The respondent father is aged 35 years.

3. The father lives in Town A with his wife Ms B, aged 24 years.  They have been in a relationship since 2014 and were married in 2019.

4. The father asserts that he lived with the mother from 2009 until August 2013. Thereafter, the father asserts that the child remained in the mother’s primary care and the father did not see the child very much for quite some time, although he asserts he was always try to see the child.

5. The stepfather lives in Town C near Town D. He asserts that he commenced a relationship with the mother in about 2013 and they were married in 2017.  He asserts that the mother was always the child’s primary carer.

6. The stepfather and the mother had a child E born in 2014.

7. The stepfather asserts that the mother, the child and himself lived together from August 2013 at Town C. He asserts that the mother and the child were both financially dependent on him until the mother could obtain some work in about late 2018.  Prior to this time, stepfather asserts the mother stayed home with the child and E.

8. The stepfather asserts that he is employed as a labourer on a rotating shift even time roster.

9. The stepfather asserts that the father did not spend time with the child for about 18 months after the father separation from the mother in about mid 2013.  He asserts that the father started to spend regular time with the child from about early 2015.

10. The stepfather asserts that after the mother’s death in 2019, the child continued to live with himself and the child E and spent time with the father each alternate weekend and half the school holidays, “as had been the arrangement for the past seven years.”

11. The stepfather asserts that after the mother’s death, the child continued to attend Town D public school in year 1 and commenced year 2 at that school in 2020.

12. The father asserts that after the mother’s death, he wanted the child to come and live with him straightaway but the stepfather did not agree.  The father asserts that he agreed that the child could stay living with the stepfather for a while, as he was persuaded that further disruption would not be good for the child at that time.  He asserts that the child continued to spend alternative weekends with him.

13. In the father’s solicitor’s letter, dated 4 March 2020, to the stepfather’s solicitors it was stated, inter alia, that the father agreed to continue the arrangement whereby the child spent alternative weekends with the father until such time as a report was prepared by a psychologist. 

14. The father asserts that it was agreed by himself and the stepfather through their solicitors that the child should see a psychologist following the death of his mother and so that the child could talk about where he would like to live.  The Father asserts that it was anticipated that a report could be prepared on the best way for the child to transition from living with the stepfather to living with the father and his partner.

15. The father asserts that an appointment was made by the stepfather with Town D Psychology for the child to see a psychologist on 11 March 2020.  The father asserts that that appointment was cancelled by the stepfather.  The father asserts that he has tried to find another psychologist to see the child and prepare a report.  He contacted two psychology practices in Town F.  He asserts he was advised by both psychology practices that they would not prepare a report on family law issues or in relation to where the child should live.  He refers to his solicitor’s letter of 10 January 2020 to the stepfather’s solicitors stating that if a report had not been obtained by 1 March 2020 then the situation would be reviewed.

16. The stepfather asserts that on 24 February 2020, Town D Psychology advised that they could not provide any recommendations as to who the child should live with.  He asserts that he cancelled the appointment and continued to try and find a therapist who would give some recommendations.  He refers to the father’s solicitors letter of 4 March 2020 in this context. 

17. The father asserts that after the mother’s death the child started telling him that he wanted to stay with the father. On the other hand the stepfather asserts that the child was telling himself that he wanted to stay living with the stepfather and E.

18. The stepfather asserts that the child has many friends at Town D Public School where he has attended since kindergarten.

19. The stepfather asserts that the child spent time with the father at the end of term 1, 2020 school holidays. At the end of these holidays, the stepfather asserts that the father told him that he was not sending the child back to live with the stepfather and E.  The stepfather asserts that he and E have not seen the child since that time.

20. The stepfather asserts that he has a girlfriend, Ms G, who does not live with him.  He asserts that he commenced this relationship in early 2020.

21. The stepfather asserts that he is employed as a labourer on a rotating shift even time roster.

22. The stepfather asserts that, if the court made an interim parenting order, as proposed by the father, that the child spend time with the stepfather each alternate weekend, from Friday after school to 4 PM Sunday, that would result in the child only getting to spend time with his stepbrother E and the stepfather’s extended family once per month as the stepfather works two weekends in a row, and then has two weekends off in a row.

23. The father asserts that the stepfather took time off work after the mother’s death and that the child and E often stayed with the stepfather’s sister Ms H, sometimes 3 or 4 days/nights a week, even though the stepfather was at home.  The father asserts that he wanted the child to live with him if the stepfather was not available or able to care for the child.

24. The stepfather asserts that the child’s godfather, Mr J born in 1979, moved into the stepfather’s home after the mother’s death.  The stepfather asserts that the child and E are very close to Mr J.  The stepfather asserts that Mr J is employed as a labourer, on the same rotating roster as the stepfather but in a different crew.  He asserts that their shifts are never the same, so if the stepfather is on nightshift, Mr J will help care for the boys as he is on a different shift.

25. The stepfather asserts that he works a rotating shift that includes blocks of nights shifts from 7 PM to 7 AM, and blocks of day shifts from 7 AM to 7 PM.  He asserts that being a shift worker does mean that he needs Mr J or his sister Ms H to help care for the child and E at times, although he still gets to see the child and E on days that he works.  He asserts that his roster also means that he does not work between 14 to 16 days every month.  He asserts that this means that he has more opportunity to spend time with the child and E.

26. The stepfather asserts that on occasions if both Mr J and himself were working, his sister Ms H will care for the child and E at her home which is about 8 km from his home. The stepfather’s sister Ms H asserts that she is a public servant.  She is aged 38 years.

27. The stepfather asserts that after the father told him he was not returning the child to his care, communication between the stepfather and the father broke down.

28. The father asserts that when the child was living with the stepfather there was often other people who looked after the child, not the stepfather.  He asserts that the people who have looked after the child include Mr J, the stepfather’s sister Ms H or Ms G.

29. The father asserts that he believes that Mr J looked after the child on many occasions and he has brought the child to changeover on several occasions.  The father asserts that the child has told him on several occasions that he had stayed at the stepfather’s sister’s home overnight.

30. The father asserts that since 9 April 2020 the child has been living with himself and his partner Ms B.  He asserts that the stepfather has not seen the child, although he has agreed that the child can spend alternative weekends with the stepfather.

31. The father asserts that there was mediation with the mother in relation to the child spending time with the father in 2014 and 2017.

32. The father asserts that he engaged his own solicitor in March 2018 to act on his behalf in relation to trying to make formal arrangements for the child to spend regular time with him.

33. There are no prior parenting orders in relation to the child.

34. The father asserts that the child is now enrolled in and attending Town A School from the start of term 2.  The father asserts the child is doing well and enjoying school and making friends.  He asserts the child saw the school counsellor in early June 2020 and will continue to see her once a week.  He asserts that arrangements have also been made by the school for the child to see a speech pathologist.

35. The father asserts that the child is still traumatised by the mother’s death and is now seeing the school counsellor.  The father asserts that the child sometimes has bad dreams which appear to relate to the mother.  The child, according to the assertion of the father, has said to him that he misses E a little bit.  The father asserts that he believes that the child should have appropriate support following the sudden death of his mother.  He asserts that he has supported the child as best he can since the loss of his mother.

36. The stepfather asserts that the child continued to have emotional breakdowns after the mother’s death up until the father did not return the child to his care.  He asserts the child would wake up in the night crying, and would often cry before going to bed.  The stepfather asserts that after the mother died, the child saw the school counsellor on a couple of occasions, and the child and himself were told he could speak to her again if he needed.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346.

2. In Marvel & Marvel [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at 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.

3. Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:

   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.

4. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52.

5. 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.

6. 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.

7. 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).

8. Section 67U of the Act provides that in proceedings for a recovery order, the court may, subject to section 67V, make such recovery order as it thinks proper.

1. Section 67V of the Act divides that in deciding whether to make a recovery order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration

1. The child would appear to have a meaningful relationship with the father, and it would appear that the child would benefit from a continuance of that relationship.

2. The child, for some significant time now, has spent regular time with the father whilst remaining living in the primary care of the mother and the stepfather (and after the mother’s death, in the primary care of the stepfather).  Since about early April 2020, the child has been in the father’s primary care. Since then, the father asserts that the child has attended a new school, is making new friends, and is exposed to the company of extended members of the paternal family in Town A.

3. Should the Court make the stepfather’s proposed recovery order, there is a real risk that the further and timely development of the child’s meaningful relationship with the father may be adversely compromised.

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

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The stepfather makes allegations of child being exposed to family violence when spending time with the father in the past.  These allegations are significantly disputed by the father.  These allegations should be seen in the context of the child spending overnight time with the father regularly for about the last 7 years (per the stepfather) with the consent of the mother (when she was alive) and stepfather.

2. The stepfather asserts and contends that the child has a very important sibling relationship with the child E.  The stepfather contends that there is an unacceptable risk of psychological harm posed to the child remaining living in the father’s primary care because, in particular, he is being deprived of his sibling relationship with E. Further, the stepfather contends that father’s capacity to care for the child on a primary basis is untested.  The stepfather contends that in the meantime, in the circumstances, the child should be returned to the stepfather’s primary care.

3. In terms of the father’s capacity to care for the child, at this interim stage, on a primary basis, again, the child has been spending overnight time with the father on a regular fortnightly basis for about the last seven years including overnight time during school holidays (per the stepfather).

4. As to the relationship of the child (seven years) with the child E (aged five years), the Court recognises that the child and E were brought up in the same household (that is, the household of the mother and the stepfather, and after the mother’s death, in the stepfather’s household) for a considerable time.  The stepfather asserts that these children (used to) spend time together when they were not at school.  The stepfather asserts that the child told him during the last school holidays when the child spent time with the father that he was homesick and wanted to come home.  On the other hand, the father asserts that the child started telling him from the first visit with him after the mother’s death that he wanted to stay with the father.  The father asserts that the child has told him that he misses the child E a little bit.  The father asserts that the child has made new friends at Town A School.  The father further asserts that he has many close family members living in Town A, and that his sister, who lives across the road, has three children, and that the child gets on very well with all his cousins.  The father refers to his other sister who also lives in Town A and who has three children.  The father asserts that he or his partner plays with the child.

5. The father asserts that the child began to see the school counsellor at the Town A School in early June 2020 and will continue to see her once a week.  The father asserts that he believes that the child should have appropriate support following the death of the mother.

6. The court observes that there is no health professional evidence, whether from a psychologist or otherwise, suggesting that there is a significant risk that the child will suffer psychological harm in not living with the stepfather and the child E, whether on an interim basis or otherwise. There is no such evidence suggesting such risk if the child, for example, was to spend only regular fortnightly time with the stepfather and the child E, again on an interim basis or otherwise.

7. The father refers to his proposal that the child spent alternative weekends with the stepfather.  He asserts that he is willing to be flexible with arrangements for the child to spend time with the stepfather to fit in with the latter’s work roster, albeit that he asserts that if the stepfather wishes to spend meaningful time with the child that he believes that the stepfather should also be willing to make changes to his work roster to make that possible.  The father asserts he does not wish to prevent the child from spending time with the stepfather.

8. Should the Court make the father’s proposed interim parenting orders relating to the child living with him and spending time with the stepfather (that is, inter alia, alternative weekends with the stepfather (and thereby E)), there is a real prospect that the child’s positive relationship with the stepfather and E can be maintained.  Such time-with orders would minimise the risk of the child experiencing emotional harm in relation to not living with the stepfather and E at this interim stage.

9. Should the court decline to make the stepfather’s proposed recovery order in relation to the child, there should be no unacceptable risk of psychological harm posed to the child in remaining living with the father, and the Court refers to its discussions above (including under the meaningful relationship primary consideration) in this context.

Section 60CC(3) - Additional Considerations

(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

1. The Court refers to its discussion above under the need to protect primary consideration.  The court has taken into account the views of the child, however, observing the young age of the child, would not give significant weight to his views.

(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)

1. The child would appear to have a positive relationship with the stepfather and E. The child would appear to have positive relationships with the children of the stepfather’s sister, and the stepfather’s sister.  The child would appear to have positive relationships with some members of the paternal extended family.

(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

1. There is some dispute between the parties as to the extent to which the father, historically, sought to spend regular time with the child after the father’s separation from the mother.  There is also some dispute as to the extent to which the stepfather has sought to communicate and spend time with the child since early April 2020 to date.

(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

1. The father asserts that he paid certain child support to the mother historically.  He has not paid child support to the stepfather since the mother’s death, and it is common ground that the stepfather has not requested the payment of such support.

(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

1. Should the court make an interim parenting order that the child live with the father, and spend time with the stepfather in accordance with the interim parenting proposals of the father, there is a real prospect that the child’s positive relationship with the stepfather (and positive relationship with the child E) can be maintained. The Court refers in this context to its discussion above under the need to protect primary consideration.

(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

1. Neither party asserted any significant practical difficulty in this context.

(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

1. Not applicable.

(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

1. Not applicable.

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

1. There is a significant suggestion on the material before the court that both parties have demonstrated appropriate attitudes towards the child and to the responsibilities of parenthood.

(j) Any family violence involving the child or a member of the child's family

1. There is some dispute between the parties as to alleged historical family violence perpetrated by the father.  Again, the mother, when alive, and the stepfather, have facilitated the child spending regular overnight time with the father for about seven years.

(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

1. Not applicable.

(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

1. These are interim parenting proceedings.

m) Any other fact or circumstance that the Court thinks is relevant

1. The Court takes into account that whilst the stepfather asserted that being a shift worker means that he needs his friend Mr J or his sister Ms H to help care for the child at times, his sister Ms H asserted in her affidavit that whilst the father was at work, the child would be most likely be in the care of the stepfather’s new girlfriend Ms G, “or with myself in my home if needed”.  The father asserts that he began seeing Ms G in about early 2020.  There is no affidavit from Ms G and there is scant material relating to the child’s relationship with her.

2. The Court observes that the father asserts that he has been together with his wife Ms B since 2014 and they were married in 2019.  Again, the child has been spending regular time with the father for about the last seven years, and the court would infer that the child is likely familiar with Ms B.  There is no affidavit from Ms B, however, the father asserts that he believes that himself and Ms B provide the child with a stable home with continuity in a secure environment.  He asserts that either himself or Ms B are at home to look after the child, prepare his meals and help him with his homework.  He then asserts that “We go bike riding, take him to the skate park and the park, play the trampoline and play with remote control cars and build Lego together.”

3. The Court proposes to make an interim parenting order that the child spend time with the stepfather in accordance with the proposed interim parenting orders of the father in this regard.  Such orders will be in the best interests of the child.  The court should state in this context that the focus of the interim hearing was on the stepfather’s proposed urgent recovery order and there were no significant submissions made by either party as to what time-with orders should be made between the child and the stepfather in the event that the recovery order was not made. The Court, accordingly, would be prepared to hear submissions from the parties, and consider making different time-with orders, as soon as possible, and after the entry of the ICL into these proceedings, if it was the wish of either party to ventilate such issue further.

4. The Court has not overlooked the father’s earlier agreement (see his solicitor’s letter dated 4 March 2020 to the stepfather’s solicitors) to continue the arrangement whereby the child spent alternate weekends with the father until such time as a report was prepared by a psychologist. In this context, the court has also taken into account the parties’ asserted respective difficulties in engaging a psychologist to prepare a relevant report. The court would not attach significant weight to this agreement, in the circumstances, taking into account the above discussed considerations under section 60CC of the Act.

5. It will be in the best interests of the child to make the father’s proposed interim order 5, relating to the parties causing the child to attend upon a psychologist or suitable qualified counsellor for ongoing support and therapeutic intervention.  This proposed order of the father is in similar terms to the stepfather’s proposed interim order 12(b).  In this context, the court observes that the father asserted that the child saw the school counsellor in early June 2020 and will continue to see her once a week. 

Parental responsibility

1. The Court did not hear submissions of the parties in relation to this issue, and accordingly, it is premature to determine this matter.  The father had sought an order for sole parental responsibility for the child, with the stepfather seeking no express interim order in this context.

Summary

1. Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following interim Orders:

2. The applicant stepfather’s proposed interim orders that the child, X born in 2012 ("the child") be returned to him by the respondent father and live with him are dismissed.

3. That pending further order, the child shall live with the Respondent father.

4. That the child shall spend time with the applicant step-father by agreement and failing agreement as follows:

   (a)during the school term, commencing the first weekend of each school term, each alternate weekend from after school or 3:15 pm on the Friday until 4:00 pm on the Sunday;

   (b)during the school holidays at the conclusion of Terms 1, 2 and 3 commencing 2020 and each even numbered year thereafter from the conclusion of school on the final day of the school term until 4:00 pm eight (8) days later;

   (c)during the school holidays at the conclusion of Terms 1, 2 and 3 commencing 2021 and each odd numbered year thereafter from 4:00 pm on the 8^th day of the school holiday period until the last day of the school  holiday period;

   (d)for one half of the Christmas school holiday period at the conclusion of Term 4 in 2020 and each even numbered year thereafter from 4:00 pm on  the 22^nd day of the school holiday period until the last day of the school holiday period, excluding the period from 9:00 am on 24 December to 6:00 pm on 26 December;

   (e)for one half of the Christmas school holiday period at the conclusion of Term 4 in 2021 and each odd numbered year thereafter from the conclusion of school on the final day of Term 4 for 21 nights, excluding the period from 9:00 am on 24 December to 6:00 pm on 26 December;

   (f)commencing 2020 from 3:00 pm on 25 December to 6:00 pm on 26 December in each even numbered year;

   (g)commencing 2021 from 9:00 am on 24 December to 3:00 pm on 25 December in each odd numbered year;

   (h)Easter weekend in alternate years commencing 2022.

5. That time with the applicant step-father shall be suspended on Father's Day and the child shall spend Father's Day with the respondent father.

6. That within seven (7) days of the date of these Orders the respondent father and the applicant step-father will do all such things and sign all documents necessary to cause the child to attend upon a Psychologist or suitable qualified counsellor for ongoing support and therapeutic intervention.

7. By consent, the Court makes the stepfather’s proposed interim Orders numbered 18 to 26 inclusive set out in his Initiating Application filed 26 May 2020.

8. The Court appoints an Independent Children’s Lawyer (ICL) to represent the child.

9. Leave to the parties and ICL to issue more than 5 subpoena for production of documents.

10. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall 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 March 2021.

11. The Family Report shall 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.

12. The parties shall attend all appointments with the Family Consultant and shall ensure the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.

13. The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.

14. The proceedings are adjourned to a date to be advised in March 2021 following release of the Family Report.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate: 

Date: 19 June 2020