Dashwood & Mallinder

[2021] FCCA 1678

FEDERAL CIRCUIT COURT OF AUSTRALIA

Dashwood & Mallinder [2021] FCCA 1678

File number:	DNC 88 of 2021
Judgment of:	JUDGE YOUNG
Date of judgment:	16 June 2021
Catchwords:	FAMILY LAW – parenting – concerning a child who is nine months old – whether the father should financially assist the mother – whether the child should spend time with the father – where the child is in the primary care of the mother – where the mother resigned from her employment to look after the child - where the mother is currently paying rent of approximately $300 per week – Court satisfied it is appropriate for the father the pay $250 per week to the mother – where the parties agree the child should spend increased time with the father.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	10
Date of hearing:	16 June 2021
Place:	Darwin
Solicitor for the Applicant:	Ms Franz of Darwin Family Law
Counsel for the Respondent:	Ms Morgan
Solicitor for the Respondent:	Powell & Co Legal

ORDERS

DNC 88 of 2021

BETWEEN:

MS DASHWOOD

Applicant

AND:

MR MALLINDER

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	16 JUNE 2021

THE COURT ORDERS:

1.That the father shall pay the mother $250.00 per week on a Wednesday, to be paid into the mother’s ANZ account (BSB … account number …24), commencing within seven (7) days of the date of this order for her rental expenses, NOTING that the father is paying child support of $180.00 per week for X and that the mother will be living with her former housemates Ms B and Mr C.

AND IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER:

2.That X born in 2020 (“X”) shall spend time with the father as agreed to between the parents from time to time in writing (by email or SMS text) but failing agreement as follows:

(a)Every Monday and Wednesday:

(i)From 2:00 pm to 4:00 pm; or

(ii)From 4:30 pm to 6:30 pm if changeover is in accordance with order 4(b);

(b)On the first three (3) weekends of each month:

(i)From 9:00 am Saturday to 1:00 pm Saturday and

(ii)From 9:00 am Sunday to 1:00 pm Sunday

(c)From 9:00 am to 1:00 pm on X’s birthday in 2021 if he is not otherwise spending time with the father on that day;

(d)From 9:00 am to 1:00 pm on Father’s Day in 2021;

(e)At such other and further time as agreed between the parents;

3.That time pursuant to order 2 will be suspended during the time the mother is visiting Town D with X and for the purpose of this order:

(a)The mother will be able to travel to Town D for no more than 3 visits and each visit will be for a maximum of 2 weeks;

(b)X will have make up time with the father upon his return to the NT with the details to be agreed between the parents;

4.That changeover take place:

(a)At E Contact Centre; or

(b)At F Park, G Street, Suburb H, NT; at times/days that E Contact Centre is not open or the parents have agreed that a third party can affect changeover; or

(c)At such place and time as agreed to between the parents by SMS text or email;

5.That orders 10 and 13 only of the orders made in this Honourable Court on 27 April 2021 be varied in accordance with the orders herein;

6.That within 21 days of the date of this order the father will purchase a 3-seater couch for the mother and will organise delivery to her home;

7.That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child of the relationship X born in 2020 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services 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 a date to be advised.

8.That the family report to deal with the following matters:

(a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

(b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.

9.That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

10.That the parties are to confirm their attendance to the Case Co-ordinator Child Dispute Services by email at [email protected] or alternately call 1300 352 000 fourteen days prior to the date of the interview and in the event such confirmation is not received the interviews will be cancelled.

11.That 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.

12.That 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.

13.That a copy of the Report may be released to the family dispute resolution practitioner/mediator for the purpose of legally assisted mediation;

NOTING:

A.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 9 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

14.That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

15.That after receipt of the Report the parents will participate in legally assisted mediation;

16.That the matter is listed for trial on 31 January 2022, 1 and 2 February 2022 at 10:00am (allowing three days).

17.That each party file and serve on each other party one affidavit of evidence in chief and one affidavit of each witness complying with rule 15.28 of the Federal Circuit Court Rules 2001 intended to be relied upon at trial no later than 28 days prior to the trial.

18.That on or before 28 days prior to trial the applicant pay the setting down fee and such further daily hearing fee should the matter continue to day 3 and the respondent pay such further daily hearing fee on day 2 as required pursuant to the Family Law (Fees) Regulation 2012.

19.That at least 48 hours prior to trial, Counsel for each party and the Independent Children’s Lawyer file and serve a Case Outline document which clearly identifies the following:

Parenting orders

(a)a list of the material relied upon;

(b)a brief chronology listing significant events;

(c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child (section 60CC factors);

(d)a list of other contentions relevant to the decision;

(e)whether the presumption of equal shared parental responsibility applies (section 61DA), and if not the contentions relied upon;

(f)a list of the considerations relevant to considerations of equal and substantial parenting time (section 65DAA);

(g)a list of other relevant considerations (including the relevant section number) (for example, sections 60CG, 61F, 65DAB and/or 65DAC); and

(h)the actual orders sought.

20.That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court.

21.That in the event that either party wishes to cross examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention no later than 14 days before the commencement of the hearing.

22.That in the event that no such notice is given to the family report writer or the family report writer is unavailable, the family report will be admitted into evidence without cross examination.

AND THE COURT FURTHER NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is a parenting dispute about X who is about nine months old.  The parents appear to have spent very limited time together in a relationship. There is little or no trust between them and this is reflected in the application I have dealt with today. 

2. The mother was seeking to relocate to Town D in Victoria even though she has been employed and lived in Darwin for some time.  She has resigned from her employment to care for X full-time and proposed to go to Town D where she has some family and other support.

3. I indicated to the parties that I was of a provisional view, on the facts before me, that an order for interim relocation was not one that was obviously going to be made. After making this indication, Ms Franz, counsel for the mother, withdrew that interim application. She did so in part because the evidence about the mother’s psychological state, which was said to be at the heart of her need to relocate, was served very late and was unsatisfactory in some respects.  I say unsatisfactory because it referred to a variety of reasons for the mother’s anxiety including the anxiety surrounding proceedings. It can probably be said that this is something that everyone who has the misfortune of being a litigant in this Court would experience. The other reasons cited included such things as difficulties she was having with her employment last year. 

4. In any event, the application for an interim relocation order was not pursued by the mother today. The issues that remain in contention relate to the mother’s financial position.  As mentioned, she is not working. She resigned in order to be able to care for the parties’ infant son.  With the child being nine months old, I do not consider that her conduct, in deciding to remain at home, is in any sense unreasonable.

5. The father is opposing the mother’s relocation to Town D where the mother says she has access to cheap accommodation and other support. In those circumstances it appears to be incumbent upon the father to make some proposal that would ease the financial burden of the mother remaining in a rental property in Darwin – a city with notoriously high rents. Particularly, as it appears, the father was in arrears with his child support payments.  He has brought those up to date relatively recently but nevertheless, the mother is in a shared house paying rent.  There is no real evidence about what the rental payments may be. However, it was suggested by counsel for the mother that the weekly rental payment for the house is $900 and therefore the mother’s share of rent would be approximately $300 per week. That may be a plausible rent for a good quality house in Darwin.  I will note again, however, that I was not given the benefit or the assistance of any affidavit evidence about these issues. They were simply raised by the parties from the bar table.

6. I consider that there ought to be an order that the father pay the sum of $250 to the mother each week.  I am satisfied the father has the capacity to do that.  He informed the court that he has been putting aside $200 a week for the child and has savings of $7,000.  I am satisfied that the $7,000 being paid at $250 per week will substantially contribute to approximately 28 weeks rent and that this should take us very close to the time for trial.

7. The other issue was the child’s time with the father.  The mother has proposed an increase in the time but at different hours – namely, 2:00pm to 4:00pm on Mondays and Wednesdays and on the first three weekends in each month from 9:00am to 1:00pm on Saturday and Sunday. It should be noted that the parties consented to orders on 27 April 2021 that saw the child spending time with the father on Monday, Wednesday, and Sunday from 9:00am to 11:00am on each of those days with changeover at E Contact Centre.

8. The father says this proposed arrangement will impact on his employment.  I was given no real evidence about his employment and what would be practical. It was said in submissions that if those were the orders then the father would not be able to work.  However, that problem was resolved by agreement between the parties.  I therefore do not have to pursue that because the father agreed to the orders sought by the mother which provide for the child to spend time with the father on Monday and Wednesday from 2:00pm to 4:00pm and on three weekends in each month from 9:00am to 1:00pm on Saturday and Sunday with changeover at E Contact Centre. This is overall an increase in the time the child spends with the father. I am satisfied those arrangements are appropriate for a nine-month-old infant. 

9. The father was also seeking orders for overnight time but given that he has consented to the proposal by the mother, that would appear to have been put aside for the moment.  I note that, in any event, I would not have been prepared to make an overnight time order for a nine month old child where the parents have a very limited co-parenting relationship, do not evidently trust each other and there is no real evidence of the child being in the father’s care for extended periods of time in the past. It would, however, be open to the father to make an application of that kind at some point between now and the trial if he was so advised. 

10. I will make the following orders:

    (1)The child is to spend time with the father on Monday and Wednesday from 2:00pm to 4:00pm and on the first three weekends of each month from 9:00am to 1:00pm on Saturday and Sunday;

    (2)Changeovers are to occur at E Contact Centre unless otherwise agreed between the parties;

    (3)A Family Report is to be prepared and upon release it may be provided to any mediator retained by the parties;

    (4)The matter is listed for trial commencing 31 January 2022 with three days allowed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       22 July 2021