CROUCH & LARKIN

[2017] FCCA 890

FEDERAL CIRCUIT COURT OF AUSTRALIA

CROUCH & LARKIN [2017] FCCA 890

Catchwords:
FAMILY LAW – Interim Parenting – child of school age – child has had limited time with father post separation – best interests considerations – risk of harm considerations.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61C, 61DA, 61DB, 65DAA, 65Y, 65Z

Cases cited:

Goode v Goode (2007) 36 FamLR 422
Keats & Keats [2016] FamCAFC 156
M & M (1988) 166 CLR 69
Mazorski & Albright [2007] FamCA 520
MRR & GR [2010] HCA 4
Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Applicant: MR CROUCH

Respondent: MS LARKIN

File Number: PAC 6020 of 2016

Judgment of: Judge Obradovic

Hearing date: 7 April 2017

Date of Last Submission: 7 April 2017

Delivered at: Parramatta

Delivered on: 22 May 2017

REPRESENTATION

Appearing for the Applicant: Mr Mestroni

Solicitors for the Applicant: Rafton Family Lawyers

Counsel for the Respondent: Mr Maddox

Solicitors for the Respondent: Prime Lawyers

PENDING FURTHER ORDER:

1. That the parents have equal shared parental responsibility for the child X born (omitted) 2012.

2. That the child live with the mother.

3. That the child spend time with the father as follows:

   (a)Commencing on Saturday 27 May 2017 and each Saturday thereafter from 10am to 2pm;

   (b)Commencing on Saturday 24 June 2017 and each alternate Saturday and Sunday thereafter, from 10am to 2pm on each of those two days;

   (c)Commencing on Saturday 19 August 2017 and each alternate weekend thereafter, from 10am Saturday to 4pm Sunday; and

   (d)Commencing on Friday 10 November 2017 and each alternate weekend thereafter, from after school on Friday to before school on Monday.

   (e)On the child’s birthday for a period of three hours as agreed to between the parties or failing agreement from 3pm to 7pm;

   (f)On the father’s birthday for a period of three hours as agreed to between the parties or failing agreement from 3pm to 7pm;

   (g)On Christmas Day commencing in 2017 and each odd numbered year thereafter for a period of four hours as agreed between the parties, or failing agreement from 3pm to 7pm; and

   (h)During the (nationality Holiday), for a period of four hours as agreed between the parties, or failing agreement from 12 noon to 4pm.

4. For the purpose of paragraph (3) above, unless changeover occurs at the child’s school, the father is to collect the child from the mother’s residence at the commencement of time and the mother is to collect the child from the father’s residence at the conclusion of time.

5. That the father communicate with the child by Skype or telephone on Monday and Friday each week between 5.30pm and 6pm, with the father to initiate the call and the mother to provide the father with the appropriate telephone number and Skype address, and with the mother to ensure that the child is available to take such calls.

6. That neither party denigrate the other party or members of his/her family in the presence or hearing of the child, and to ensure that the child is removed if any other person does so.

7. Pursuant to section 13C of the Family Law Act1975, the parties and each of them shall forthwith and within 7 days contact the intake officer of  CatholicCare on (omitted) for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the Keeping Kids in Mind program offered by that organisation and subject to the assessment of suitability each party shall then:

   (a)Attend at such times, dates and places as may be advised; and

   (b)Pay such fees as may be charged;

   to participate in and complete such program.

8. That until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975, each party, Mr Crouch born (omitted) 1986 and Ms Larkin born (omitted) 1985 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child X born (omitted) 2012 from the Commonwealth of Australia for a period of 12 months from the date of this order;

9. AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist for the said period, until the Court orders its removal, or with consent of all parties

10. The parties shall attend mediation with an accredited Family Dispute Resolution Practitioner prior to the next return date:

    (a)as agreed between the parties or failing agreement within 21 days of this Order as nominated by the Law Society of New South Wales Solicitors Settlement Service;

    (b)absent agreement within 14 days of today’s date as nominated, on the application of either party, by the President or other office bearer of one of the following:

    (i)LEADR;

    (ii)Australian Mediation Association;

    (iii)Australian Institute of Arbitrators and Mediators;

    (iv)Law Society of NSW Mediation Unit;

11. The parties shall be responsible for ensuring that a copy of their documents as filed are provided to the mediator not less than 7 days prior to the Mediation.

12. Forthwith upon a Family Dispute Resolution Practitioner being agreed or appointed then each party shall:

    (a)Do all things, sign all documents and give all consents, authorities and instructions necessary to instruct and retain that practitioner;

    (b)Pay one half of all fees charged by the practitioner;

    (c)Attend at such times, dates and places necessary to complete mediation.

13. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child 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.

    (a)The Family Report to deal with the following matters:

    (b)Any views expressed by the child the subject of parenting orders sought in this case, provided that the child shall not be required to express a view in relation to any matter.

    (c)The nature of the relationships of the child with each of the child’s parents and with significant other persons.

    (d)The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.

    (e)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 the parents: or

    ii.any other child, or significant person, with whom the child has been living.

    (f)The practical difficulty and expense of the 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.

    (g)The capacity of each parent, or another person, to provide for the needs of the child, including emotional and intellectual needs.

    (h)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other children and of either of the child’s parents and any other characteristics of the child that the reporter thinks are relevant.

    (i)Each parent’s attitude to the child and to the responsibilities of parenthood.

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

    (k)Such other issues as the Family Consultant considers relevant.

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

15. The Family Consultant may inspect the Court file.

16. Upon the report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

17. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:

    (a)A Children’s Court;

    (b)A child protection authority;

    (c)A State or Territory Legal Aid Authority; and

    (d)A convener of any legal dispute resolution conference.

18. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

19. List the matter on a date to be advised following release of the Family Report.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 6020 of 2016

MR CROUCH

Applicant

And

MS LARKIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are the Reasons for Judgment in relation to interim parenting proceedings concerning the child, X born (omitted) 2012.

2. The parties to the proceedings are the Applicant father Mr Crouch and the Respondent mother Ms Larkin.

3. The proceedings were commenced by way of Initiating Application filed on 21 December 2016.

4. On the first return date of the matter on 6 March 2017 the parties attended a Child Dispute Conference and later that day orders were made by consent as follows:

   1. The child X born (omitted) 2012 live with the mother.

   2. The father shall communicate with the child via skype or telephone on Monday and Friday between 5.30pm and 6pm each week with the father being responsible for making the call and the mother ensuring the child is available to take such phone calls.

   3. The mother will maintain and keep the father informed of a phone number where he can contact the child and if the mother is unable to make the child available on the day on which the father is due to have communication with the child the mother will notify the father of an alternate time two days prior.

   4. The mother and father agree to participate in and successfully complete the ‘Keeping Kids in Mind’ course at the first available opportunity.

   5. Both parties are restrained from denigrating the other parent or permitting or allowing any third party to do so in the presence or hearing of the child.

   6. The parents shall do all acts and things and sign all documents within 7 days to arrange for the father to be named on the child’s Birth Certificate with the father to bare any costs associated.

5. The matter was set down for Interim Hearing at 10am on 7 April 2017 and judgment was reserved at the conclusion of that hearing.

Documents relied upon

1. The Applicant relied on the following documents at the Interim Hearing.

   a)Further Amended Initiating Application filed 16 March 2017;

   b)Affidavit of Mr Crouch sworn 20 December 2016 and filed 21 December 2016;

   c)Affidavit of Mr Crouch sworn 13 March 2017 and filed 16 March 2017;

   d)Affidavit of Mr Crouch sworn and filed 22 March 2017;

   e)Affidavit of Ms A sworn and filed 9 March 2017; and

   f)Affidavit of Mr M sworn and filed 9 March 2017.

2. The Respondent relied upon the following documents at the Interim Hearing:

   a)Response filed 16 March 2017;

   b)Affidavit of Ms Larkin sworn and filed 6 April 2017;

   c)Child Dispute Conference Memorandum dated 6 March 2017; and

   d)Case outline document dated 6 April 2017.

Competing proposals

1. The interim parenting orders sought by the Applicant in his Further Amended Initiating Application filed 16 March 2017 which require determination by the Court are as follows:

   1. That the parents have equal shared parental responsibility for their child X born (omitted) 2012 (the child).

   2. That the children (sic) live with the mother.

   3. That the children (sic) spend time with the father, as agreed between their parents and in the absence of any agreement as follows:

   a. Commencing from the date of these orders for a period of four visits, each Saturday between 10.00am to 2.00pm at the paternal grandmother’s or paternal grandfather’s home or otherwise a public place, such as the local ice skating rink, beach, local park, movie theatre or shopping centre, in the absence of either of X’s paternal grandparents;

   b. After the eight visits in paragraph 3(a) for  further eight visits from 10.00am to 2.00pm;

   c. After the visits in paragraph 3(b) for a further four visits each alternate Saturday 9.00am to 6.00pm;

   d. After the four visits in 3(c) for a further four visits each alternate Thursday from 5.00pm until Monday at 6.00pm;

   e. After the four visits in 3(d) for a further 12 visits each alternate Thursday from 5.00pm until Monday at 6.00pm

   f. After the 12 visits in 3(e) and thereafter from Sunday at 10.00am to the following Sunday at 10.00am and each alternate week thereafter.

   4. That the father spend time with X on special occasions as follows, in addition to the time he spends with X in paragraph 3:

   d. On the father’s birthday and X’s birthday for a period of four hours, as agreed and failing agreement from 3.00pm to 7.00pm;

   e. On Christmas day in odd numbered years commencing 2017, for a period of four hours as agreed and failing agreement from 3.00pm to 7.00pm;

   f. During the (nationality omitted) holiday (omitted), for a period of four hours as agreed between the parents.

   5. That the father collect X from the mother’s home at the start of his time and return X to the mother’s home at the conclusion of his time.

   6. That the father be at liberty to contact the child by skype or telephone every day when he is not spending time with her, between 6.00pm to 7.00pm with the father to be responsible for making the call and the mother to ensure the children are available ; and

   7. The mother will maintain and keep the father informed of a phone number that he can contact the children (sic)on pursuant to paragraph 6.

2. The Respondent sought the following interim orders at the Interim Hearing:

   1. That the child X born (omitted) 2012 live with the mother.

   2. That the parties within 7 days do all things to:

   a. commence the intake procedures and assessment at Catholic Care Contact Centre at (omitted), and thereafter do all things to commence the father spending supervised time with the child at that Centre;

   b. facilitate the child spending time with the father at that Centre for up to four hours each alternate Saturday or Sunday (subject to the Centre’s availability) or otherwise at such times as the Centre can arrange with the father (up to four hours per fortnight).

   3. That until the father commences his time in order 2, the parties do all things to enable the child to spend supervised time with the child for 3 hours each alternate Saturday, at times arranged between the father and AXIA solutions (tel (omitted)), with the supervisor to collect the child from the mother’s residence at the start of the father’s time and deliver her to the mother’s home at the conclusion of his time.

   4. That the parties do all things to request AXIA Solutions to provide to the parties a report covering each visit in Order 3.

   5. That the parties pay in equal shares any costs incurred as a result of the matters in Orders 3 and 4.

   6. That the father communicate with the child by Skype or telephone on Monday and Friday each week between 5.30 and 6.00pm, with the father to initiate the call and the mother to provide the father with the appropriate telephone number and Skype address, and with the mother to ensure that the child is available to take such calls.

3. Both parties seek a non-denigration order.

The Law

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

2. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

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

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

5. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]

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

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

7. It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]

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

   [3] Ibid at [122]

8. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[4] The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.

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

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

9. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[6]

   [6] s61DA(3)

10. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests and reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7]

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

11. The Full Court in Goode v Goode[8] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.

    [8] (2007) 36 Fam LR 422, (2006) FLC 93-286

12. As stated by the Full Court in Keats & Keats, in respect of the conduct of interim proceedings:[9]

    …the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.

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

Issues in Dispute

1. The central issue for determination is whether or not unsupervised time with the father poses an unacceptable risk of harm to the child. Such assessment is to be made by the Court at this interim stage with much of the evidence being untested and in dispute; and with very few agreed facts.

2. To paraphrase the mother’s case, the mother raises issues of family violence, the father’s mental health, his lack of parenting capacity and lack of established relationship with the child as all leading to a conclusion that time between the father and the child should be supervised until such time as the father is able to show that there is no risk to the child.

3. The father on the other hand, while acknowledging that he has had a limited relationship with the child, disputes the allegations of family violence and his lack of parenting capacity. The father says he is a capable parent and he has been given very limited opportunities by the mother to care for the child. The father, who lives with his mother, proposes that if time ought be supervised, it ought be supervised by his parents.

Uncontested Relevant facts

1. The father was born on (omitted) 1986 and is 31 years of age. He resides with his mother in (omitted), New South Wales. He works on a casual basis as a (occupation omitted).

2. The mother was born on (omitted) 1985 and is 31 years of age. She resides in (omitted), New South Wales and works two days a week.

3. The parties commenced a relationship in 2007 and separated for some time in 2008. The parties recommenced their relationship and separated on a final basis in 2011.

4. There is one child of the relationship, the subject child of these proceedings, X who was born on (omitted) 2012 and is currently 4 years of age, about to turn 5.

5. The father was not included on the birth certificate of the child following her birth however orders made by consent on 6 March 2017 required the parents to arrange for the father to be named on the child’s birth certificate within 7 days.

6. Since separation the time between the child and the father has been sporadic and the child has not spent any face to face time with the father since August 2016.

Other Relevant Evidence

1. The father asserts that shortly after the birth of the child the mother and her family made him feel excluded from the child’s life by taking a family portrait at the hospital where he was not included and by registering the child’s birth without him being named as the father.

2. The mother says that she had arranged for the father to sign the child’s birth certificate however he refused to execute it.

3. The father describes an incident at the mother’s home some days following the birth of the child where the he was punched in the head by the mother’s brother in law following an argument regarding the father holding the child. He alleges that the mother would not let him hold the child and that her family would not allow him or his sister to leave the premises. The father reported this incident to the Police however no charges were laid.

4. The mother’s version of this event is different. She states that she asked the father to leave the home following the father becoming abusive towards her. She states that the father refused to leave the home. The mother says that she allowed the father and his sister to stay for a further five minutes and that when she went to retrieve the child from the father he moved his arm and the child’s head ‘moved under his arm’. The mother says that the father remained angry and abusive and it was following this event that the father ceased spending time with the child.

5. However, the father says that following this incident the mother has not facilitated the father’s time with the child and that he saw the child infrequently.

6. On 5 November 2013 the mother sent a text message to the father which is annexed to his Affidavit filed 21 December 2016 where she states:

   When X is old enough she can make her own decisions. Until then you won’t see her so please stop messaging me because I’ll just block you from here too. I gave you so many chances yet you choose to be an idiot. I’m doing what’s best for my baby now move on and leave us alone.

7. The father says that following this text message he received some legal advice and time with the child resumed. The father asserts that the parents would often make arrangements for the child to spend time with the father however the mother would change her mind and time would not occur.

8. The father states that he ‘had very little say in where and when’ he could see the child. He estimates that there is approximately two years of the child’s life that he had not seen or spoken to her and that when he was spending time with the child the mother was present or in close proximity.

9. The father states that he is currently seeing a psychologist to help him ‘deal with my current depressed state’ which he asserts is caused by not seeing the child.

10. The mother asserts that during the parties’ relationship the father would call her names such as ‘fat and ugly’.

11. The mother describes an incident when the father became enraged and threw both of their mobile telephones on the road. She further describes an incident when the father became angered and pushed her to the ground.

12. The mother asserts that the father attempted suicide in 2010. She received a telephone call from the father’s sister who informed her that he ‘tried to jump off’ the (omitted) overpass however the police were called and he was escorted to (omitted) Hospital where he remained for three days before being discharged.

13. The mother states that it was following these behaviours that she ended the relationship with the father.

14. Following the cessation of the relationship, the mother says that the father continued to try and reconcile with the mother however the mother was not agreeable to resuming the relationship which was a contributing factor for the father’s behaviour towards the mother.

15. The mother describes a conversation with the father’s mother about an incident where the father had punched his mother and called her “a fucking bitch and slut”. According to the mother, the paternal grandmother told the mother that he does it “all the time”.

16. Each of the father’s parents provide an Affidavit stating they are willing and able to act as a supervisor should the Court consider it necessary for the father’s time with the child to be supervised.

17. The mother does not agree that either of the father’s parents are suitable supervisors. She states that neither of them have acted protectively when the child has spent time with the father.

Parental Responsibility

1. Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[10] Section 61DA provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order.

   [10] See note 1 s61C

2. As noted earlier, in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[11] The presumption is also rebutted where there are reasonable grounds to believe that a parent has engaged in family violence.

   [11] s61DA(3)

3. It is noted for the benefit of the parties that in making a final parenting order in relation to a child, the Court must disregard the allocation of parental responsibility made in the interim order.[12]

   [12] s61DB

4. The father asks the Court for an order for equal shared parental responsibility. The mother’s application is silent on the issue.

5. The Court is satisfied, having considered all of the agreed facts and other relevant evidence that the presumption of equal shared parental responsibility has not been rebutted. Given the allegations and denials of family violence, and that none of the evidence has been tested, the Court cannot be satisfied that there are reasonable grounds to believe that a parent has engaged in family violence.

6. The Court is of the view that it is in the child’s best interest for an order for equal shared parental responsibility to be made as it is important for the child for both of her parents to be involved in any long term decisions which will affect her welfare, care and development.

7. Section 65DAA is thus enlivened due to the order for equal shared parental responsibility. Relevantly, s65DAA states:

   (3) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:

   (a)  how far apart the parents live from each other; and

   (b)  the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)  the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)  the impact that an arrangement of that kind would have on the child; and

   (e)  such other matters as the court considers relevant.

8. Having regard to the above criteria and the various considerations discussed throughout these Reasons, at this interim stage equal time is not supported by the facts in this matter, but significant and substantial time is[13].

   [13] within the meaning of s65DAA(3)

Primary Considerations and Risk of Harm

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

2. Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made. In doing so the Court must weigh up any risk of harm to the child, all the while considering what might be in the child’s best interest. It is the existence and magnitude of the risk of harm that is a fundamental matter to be taken into account in deciding what orders are to be made in respect of what time, if any, the child is to spend with the father.[14]

   [14] M & M (1988) 166 CLR 69 at 77

3. The mother submits that the child is at an unacceptable risk of harm if she is to spend unsupervised time with the father. She says that the father was violent towards her, that he has mental health issues, that he does not have tested parenting capacity, that the child does not have an established relationship with him and that his parents are not suitable supervisors as they would not protect the child.

4. To tackle the last of these issues first, there is no evidence upon which an objective finding could be made that the paternal grandparents would not act protectively or indeed that they would not assist the father in whatever was needed during any times that the child was spending time with him. The father lives in the home of the paternal grandmother, and the Court finds that this is a protective factor for the child. In weighing up all of the relevant matters, as explained elsewhere in these Reasons, the Court does not find that an order for supervised time between father and child is in any event warranted.

5. In respect of the allegations of violence, while most of the allegations are historical, some of them are concerning. Even at their highest however, they were situational and the Court finds that a significant period of time has elapsed since most of the incidents were said to have occurred. The parties have not been together for some time. Their relationship has been difficult (including their post-separation relationship), made all the more so by their inability to agree on what was in the child’s best interest. The mother speaks of frustration at the father not seeing the child enough and not being involved and the father speaks of frustration at the mother not permitting him to see the child enough. Either way, it appears from both parties cases that early on in the child’s life they both considered that the child would benefit from having a relationship with both of her parents. Certainly, there was some effort by the parties to encourage that relationship. The Court is not able to make any findings, given the disputed facts, about each of the parties’ motivations and reasons for the level of their involvement in the child’s care.

6. It is disappointing to see that the child has not spent any time with the father since August 2016, in circumstances, which in the Court’s view did not warrant a cessation of time. While there may have been legitimate concerns as to what occurred between the parties, an appropriate solution to those concerns was clearly not reached.

7. The incident as described by the mother in her Affidavit sees the mother controlling what time and in what circumstances the child would be spending with the father. There was then an argument between the parents in front of the child. What the mother says is that the child kicked the father in the shins and started yelling “Stop shouting at my Mummy.”

8. The father’s evidence as to what occurred on 15 August 2016 is different. He does say that the parties got into an argument and that the child was upset to see them arguing. He denies that the child kicked him or shouted at him as alleged by the mother.

9. It may be that both parents behaved badly on that occasion, that only one of them did, or that neither of them did – these are matters about which the Court cannot make any findings at this interim stage.

10. The fact is that the child has not spent any face to face time with the father since August 2016. However, she is almost five years old now (indeed, she will turn 5 shortly after the delivery of this Judgment). She is in kindergarten, she already has (as children do at that age) certain skills, including the ability to verbalise her concerns. It is likely that she will speak to her mother, who is her primary carer and no doubt, her primary attachment, about any issues which she may be worried about. The concern for the Court is that the mother may overreact to these matters or that the child might feel (given the mother’s attitude to the child spending time with the father) that she does not have the emotional freedom to have a relationship with her father. The mother must be careful to encourage and foster that relationship.

11. The child has had a relationship with the father and the paternal family in the past. In the Court’s experience, she is of an age where she will remember that relationship and the absence of face to face time for a period of almost nine months does not ipso facto mean that the child is not going to benefit from re-establishing that relationship without further delay. While there is some benefit to a gradual re-introduction of time as noted in the Child Inclusive Child Dispute Conference Memorandum to the Court dated 6 March 2017, the Court does not find that the time should be as gradual as it might otherwise be for a younger child who has no relationship with a parent.

12. The mother’s proposal for time between father and child sees not only a further significant delay, but for time to occur in an artificial[15] and controlled environment. Very little in the mother’s evidence suggests that the father would place the child at an unacceptable risk of physical harm[16] or that he would not look after her to the best of his ability. There is no evidence either way for the Court to conclude that the father does not have the capacity to care for an almost five year old.

    [15] In the sense that it would not be in the child’s or father’s natural environments

    [16] The court is not able to make findings that the father placed the child at an unacceptable risk of harm in relation to the swimming incident

13. There is no objective evidence that the father suffers from any current mental health issues which might impact upon his parenting capacity or upon his ability to interact with the child.

Other Relevant Considerations  

Views of the child

1. The child was four years of age at the time of the interim hearing. Whatever views are said to have been expressed by the child in the mother’s evidence the Court considers with significant caution, given the strained relationship between the parents and in light of the amount of time the child has spent with the father since separation, and particularly noting that there has been no time since August 2016.  

Nature of child’s relationships

1. The mother has been the primary carer of the child since her birth.

2. The father’s relationship with the child is still somewhat untested. These are matters which the Court has considered elsewhere in the reasons in more detail.

3. The child appears to have a relationship with her extended maternal family. The mother takes the child on frequent holidays to (country omitted).

4. The child has of recent times particularly had a very limited relationship with the paternal family. The evidence of the child’s relationship with the paternal grandparents appears to indicate that the child had an earlier loving and close relationship with the paternal family.

5. The Court finds that in all of the circumstances, the child will benefit from continuing and extending her relationships with the extended families of each of the parents.

Parent’s involvement with decision making, spending time and communicating with the child and Maintenance of the children

1. The parties’ relationship ceased prior to the birth of the child.

2. On both parties evidence the father has not spent much time with the child, despite the difference in reason for this occurring.

3. The mother has been the child’s primary care giver, and it appears that she has made most of the decisions in relation to the child. There appear to be many and varied reasons for this on the parties’ evidence.

4. The orders which the Court makes will ultimately mean that the parent’s involvement with making decisions about the child spending time with the father and communicating with her parents will be somewhat curtailed. The parties will have to comply with the orders which are herein made.

5. The issue of maintenance of the child does not loom large in these proceedings, indeed it appears to be a peripheral issue which was not considered to be particularly relevant by either party. It may not remain to come final hearing.

Likely effect of change and practical difficulty of spending time

1. The parents live approximately one hour driving distance apart. There will be no practical difficulty with the child spending time with the father.

2. There may be a period of adjustment for the child and for the parties when time between the child and the father commences in accordance with these orders. It is important for the parents to work cooperatively in ensuring that the impact of any change in the child’s routine is ameliorated as much as possible.

Capacity to provide for children’s needs and the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents

1. These matters have to a large extent been addressed elsewhere in these Reasons.

2. The Court finds that the mother has a demonstrated capacity to meet the child’s needs. The Court finds that the father’s capacity to meet the child’s needs remains somewhat untested given the limited amount of time he has had in caring for the child by himself.

3. Objectively, the father is an intelligent and capable human being, who shows a great deal of love and care for his child through his evidence.  The child’s age and level of maturity, the father’s living circumstances and the gradual increase of time between father and child are all protective factors for the child as described earlier, albeit of differing degrees.

Allegations of Family Violence

1. Issues of family violence have been addressed earlier in these Reasons. The Court has carefully considered the allegations and formed the view that the likely impact of those matters, should they ultimately prove correct, is such that there is no unacceptable risk of harm to the child in spending unsupervised time with the father.

Institution of further proceedings and other relevant matters

1. These are only interim orders, and it is likely that if the matter proceeds to final hearing, there may be a time period of at least some twelve months before the matter is decided on a final basis, much depending on whether a Family Report is to be ordered.

2. The length of time that the matter will take to reach readiness for a final hearing is also something which the Court has considered in making these interim orders, particularly in trying to balance the child having a meaningful relationship with both of her parents given while ensuring that her safety is ensured as much as possible.

Airport Watch List Order

1. The mother says that she has concerns that the father will take the child to Turkey. It appears to the Court that these concerns are not objectively based.

2. The father seeks an airport watch list order. It is a fact that the mother has travelled to (country omitted) with the child in the past, and has returned. There is no evidence to suggest that the mother would not return if she was to travel with the child again in the future. (country omitted) is a convention country in any event.  However, the difficulty is that the father says the mother has travelled without his consent and that at times her travel has prevented the child from spending time with him.

3. Of course, any travel with the child ought not, prima facie, impact upon the child spending time with the father in accordance with these orders. It is important for the father to be notified of dates of intended travel and where the child will be staying so that if appropriate, he may consent to such travel. The Court assumes that both parties have been advised of the effect of sections 65Y and 65Z of the Act[17].

   [17] As may be relevant

4. However, so that there may not be further and unnecessary dispute between the parties about international travel, an order for conditional prohibition on travel with consent of the parties involved will be made.

Addition of Father’s details on Child’s Birth Certificate and Change of Child’s Surname

1. The father is the parent of the child. Each of the parents offers a different explanation as to why the father’s name was not recorded on the child’s birth certificate following her birth. On 6 March 2017 the Court made an order by consent for the parties to do all things necessary to ensure the father was named on the child’s birth certificate.  

2. In relation to the child’s surname, this is a matter upon which further evidence will be required, including perhaps expert evidence as to the impact on the child of any change and/or of the child only having the mother’s surname. It is a matter for final hearing, and the Court declines to make any orders in that regard at this interim stage.

Conclusion

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

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  22 May 2017