Dempsey & Arber

[2021] FCCA 366

FEDERAL CIRCUIT COURT OF AUSTRALIA

Dempsey & Arber [2021] FCCA 366

File number(s):		PAC 4375 of 2020
Judgment of:		JUDGE OBRADOVIC
Date of judgment:		5 March 2021
Catchwords:		FAMILY LAW – interim parenting – best interests of child – equal shared parental responsibility – child live with mother – child spend significant and substantial time with father.
Legislation:		Family Law Act 1975 (Cth), ss 65DAA, 69ZL
Number of paragraphs:		21
Date of last submission/s:		24 February 2021
Date of hearing:		24 February 2021
Place:		Parramatta
Appearing for the Applicant		Mr Gonzales
Solicitors for the Applicant		Gonzales & Co
Appearing for the Respondent		Ms Zieba
Solicitors for the Respondent		Aboriginal Legal Service

ORDERS

PAC 4375 of 2020

BETWEEN:

MR DEMPSEY

Applicant

AND:

MS ARBER

Respondent

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	5 MARCH 2021

THE COURT ORDERS THAT, PENDING FURTHER ORDER:

1.The orders of 16 September 2020 are discharged.

2.The applicant father and the respondent mother shall have equal shared parental responsibility for the child X born in 2016.

3.X shall live with the mother.

4.Notwithstanding any other order, X shall spend time with the mother as follows:

(a)From 2pm on Good Friday to 2pm on Easter Saturday in 2022; and

(b)From 3pm on Christmas Day to 3pm on Boxing Day in 2021 and from 3pm on Christmas Eve to 3pm on Christmas Day in 2022.

5.X shall spend time with the father as follows:

(a)During school terms:

(i)In week 1, from after school or 3pm on Tuesday to before school or 9am on Thursday; and

(ii)In week 2, from after school or 3pm on Friday to before school or 9am on Monday.

(b)During school holidays:

(i)At the end of term 1 in 2021, from 9am on 12 April 2021 to 4pm on 16 April 2021;

(ii)At the end of terms 2 and 4 in 2021, from the conclusion of school until 4pm on the middle Saturday of the school holidays;

(iii)At the end of term 3 in 2021, from 4pm on the middle Saturday of the school holidays until the beginning of school in term 4; and

(iv)In 2022, the first half of the holidays at the end of terms 1 and 3, and the second half of the holidays at the end of terms 2 and 4.

(c)On special occasions:

(i)From 2pm on Good Friday to 2pm on Easter Saturday in 2021 and from 2pm on Easter Saturday to 2pm on Easter Sunday in 2022;

(ii)For a period of 3 hours on X’s birthday at times to be agreed between the parents; and

(iii)From 3pm on Christmas Eve to 3pm on Christmas Day in 2021 and from 3pm on Christmas Day to 3pm on Boxing Day in 2022.

(d)At all other times as agreed between the parents in writing.

THE COURT FURTHER ORDERS THAT:

6.Pursuant to Section 13.C(1)(b) of the Family Law Act1975, the parties and their legal representatives (if any) shall attend a confidential Family Dispute Resolution Conference between 9am and 4pm on 26 April 2021 with a Registrar (Family Dispute Resolution Practitioner) of the Federal Circuit Court of Australia.

7.Pursuant to Rule 23.02(a) of the Federal Circuit Court Rules 2001 the parties and their legal representatives (if any) shall attend Part 1 of the confidential Family Dispute Resolution Conference with a registrar (Family Dispute Resolution Practitioner) on 21 April 2021 at the following times:

(a)the Applicant at 3pm; and

(b)the Respondent at 3:45.

8.Part 1 of the confidential Family Dispute Resolution Conference shall proceed by telephone each party must, within 7 days of today’s date, notify the court of their best contact telephone number by email to [email protected].

9.Pursuant to Rule 23.02(c) of the Federal Circuit Court Rules 2001 the parties shall:

(a)Complete and forward to the Registrar and each other party a completed Parenting Questionnaire by no later than 4pm on 14 April 2021 via email to [email protected]; and

(b)Comply with any other order or direction made by the Registrar necessary to facilitate the Family Dispute Resolution Conference.

10.Not later than 4pm on 19 April 2021 the lawyer for each party must give the party for whom they act a written notice of:

(a)The party's actual costs, both paid and owing, up to and including the Family Dispute Resolution Conference; and

(b)The estimated future costs of the party up to and including each future court event, including trial; and

(c)Any expenses paid or payable to an expert witness or, if those expenses are not known, an estimate of the expenses.

11.The parties shall otherwise comply with any other order or direction made by the Registrar necessary to facilitate the Family Dispute Resolution Conference.

12.In the event of non-attendance by either party at Part 1 of the Conference (on 21 April 2021 pursuant to Order 7 herein), the Registrar may vacate the Family Dispute Resolution Conference on 26 April 2021.

13.The matter is listed for directions at 10am on 11 June 2021.

IT IS NOTED:

A.For the purposes of the Family Dispute Resolution Conference, the parties are referred to s 131 of the Evidence Act 1995 and ss 10J and 10H of the Family Law Act1975 and to the Court’s Family Dispute Resolution Fact Sheet.

B.The Parenting Questionnaire is a confidential without prejudice document prepared for the purpose of the Family Dispute Resolution Conference only. The Parenting Questionnaire is not to be filed nor kept with the Court file after the conclusion of the conference.

C.Part 1 of the Family Dispute Resolution Conference referred to in Orders 7(a) and 7(b) above is the first part of the Conference and is confidential. The other party will not be in attendance.

D.The Family Dispute Resolution Conference is an opportunity for the parties to make a genuine effort to resolve their parenting dispute in a confidential, child focussed setting. The parties are to be resolution focussed and respectful during negotiations, and to be mindful of the financial and emotional costs associated with prolonged litigation.

In the event the parties reach agreement, either on an interim or final basis, the Registrar may make orders and the next listing on 11 June 2021 may be vacated.

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 Dempsey & Arber is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE OBRADOVIC

1. These are short form reasons made pursuant to s.69ZL Family Law Act 1975 (Cth).

2. On 24 February 2021, the Court heard the parties’ competing applications for interim parenting orders in relation to their 5 year old daughter, X, who was born in 2016.

3. There are few agreed facts between the parties. They are as follows:

   a.The father was born in 1980.

   b.The mother was born in 1985.

   c.The father has a child from an earlier relationship, B who was born in 2005, who lives with his mother in Victoria.

   d.The mother has two other children from an earlier relationship, C who was born in 2010 and D who was born in 2013. C and D live with the mother.

   e.The parties were in a relatively short relationship, and cohabited from either mid 2014 or early 2015 (the parties are in disagreement about the date of commencement of cohabitation).

   f.The parties separated in February 2017.

   g.During 2017 the father spent time at the mother’s home, including overnight periods.

   h.In 2017 and 2018, the parties were able to make arrangements for the father to spend time with X.

   i.In or about August 2019, the father moved into his current residence at Suburb E and began spending regular time with X, including time during the week and overnight time.

   j.In March 2020, the parties agreed to a parenting plan pursuant to which X was spending time with the father each Tuesday overnight and each alternate weekend.

   k.In about March 2020, X was approved for National Disability Insurance Scheme (“NDIS”) funding, although there is no medical diagnosis. She presently attends physiotherapy and occupational therapy.

   l.On 6 July 2020, an incident occurred at changeover resulting in a final apprehended domestic violence order for the protection of the father and the mother entering a plea of guilty in respect of a charge of common assault. The mother received a conditional release order for 12 months with the matter not proceeding to conviction.

   m.Between 6 July 2020 and when interim orders are made on 16 September 2020, the mother did not facilitate any time between X and the father. Interim orders were made by consent on 16 September 2020 for the child to live with the mother, and spend each Tuesday and Saturday from 9am to 5pm.

   n.By agreement, from 25 September 2020 the father started to spend time with X each Sunday instead of each Saturday.

   o.By agreement, on or about Australia Day 2021, X spent overnight time with the father.

   p.X has started kindergarten at the commencement of the 2021 school year.

4. It would appear that since separation, X has lived primarily in the mother’s home with her half-siblings.

5. The father asks the Court for orders that X spend equal time with him and the mother on an interim basis, and if not equal time then significant and substantial time as follows:

   a.Week 1: from 3pm Wednesday to 9am Monday; and

   b.Week 2: from 3pm Wednesday to 9am Thursday.

6. The mother asks the Court for orders that X live with her and that she start to spend time with the father which is gradually increased, with one overnight per fortnight to commence in July 2021 and two overnights per fortnight to commence a further 6 months after that.

7. The Court understands that in or about early 2020, the child had been assessed as to whether she is on the Autism Spectrum, and that the result of that assessment is that she is not on the spectrum. The mother has indicated to the Court that she intends to have the child re-assessed due to the behaviours the mother says X exhibits in her home. The father’s evidence is silent as to any such behaviours, that is, there is no evidence in the father’s case that X behaves in a similar manner when she is spending time with him.

8. The mother says that when X was spending overnight time with the father in 2020, that she was unsettled at home and that she would have meltdowns.

9. The difficulties the mother appears to have with X (if accepted), might have a number of explanations, one of which might be that she has been unsettled because of not spending meaningful time with the father, and that such time was disrupted in the middle of last year. The difficulties might have to do with the mother’s household, where one of X’s siblings has special needs, and/or the mother’s capacity to deal with three young children on her own. They might have to do with X’s maturity. There are other possible explanations, including combinations of possible reasons. To simply suggest that the primary reason the child is behaving poorly (that is, having meltdowns and regressing) is because she is spending time with her father, in circumstances where there appears to be high parental conflict is to perhaps oversimplify the situation. The mother’s evidence does not show any particular insight.

10. The mother says that it is important to have routine in place for X.

11. The year 2020 seemed to provide little routine for X. She was spending different times with the father prior to the parenting plan in March, she had started physiotherapy and occupational therapy in the early part of 2020, her time with the father then increased, she was present during an assault by the mother on the father, her time with the father suddenly stopped and then months later recommenced at a lower frequency than had been the case in the first half of 2020. Time with the father again changed as X had started sports activities.

12. X is now in school having started approximately one month ago. This is a new routine for her. The mother says she is unsettled at drop off every morning, and that the mother needs the assistance of the teacher’s aide every day when leaving X at school.

13. At the conclusion of the submissions at the interim hearing, and after discussions with the Bench, the parties further agreed that X’s time with the father (pending the Court’s determination of the interim dispute) would change to every Tuesday and Thursday from after school to 5.30pm and remain on each Sunday from 9am to 5pm.

14. It is the Court’s view that X would benefit from having her father involved in any further assessments of her health, if same are to be undertaken, and she should also have the benefit of having her father’s input into any further treatments she is to receive, whether funded by the NDIS or otherwise. For those reasons, it is appropriate and in X’s best interest that there be an order for shared parental responsibility.

15. This then brings the operation of s.65DAA into sharp focus and the Court’s obligations to consider equal time and otherwise significant and substantial time. There are no practical reasons as to why either an equal time arrangement or a significant and substantial time arrangement could not be facilitated by the parents.

16. The mother proposes that ultimately X move to living with each of the parents on a shared care basis, she says that this should happen when X is 8 years old. The father says it should happen now and that she should live with the father on a final basis.

17. It is early days of the proceedings, and the evidence before the Court is at this stage limited and yet to be tested.

18. As noted earlier, X has been living with the mother since February 2017, since she was but one years old. She has spent limited and sporadic time with the father, particularly in the last 6-8 months. She is going through a significant adjustment period having now started kindergarten. It is the Court’s view that X would benefit from more involvement by the father in her daily activities and routine, and that she should have the experience of both her parents having to guide her through her first year at school and assist her in navigating school life.

19. The Court is not satisfied on the evidence that it is in X’s best interest that there be an order that she live with each of her parents on an equal shared care basis. However, it is important that she have the benefit of both of her parents’ involvement in her everyday life. If she is going through a hard time adjusting to school, her father as well as her mother ought to be available to her to help her cope. She does not have the benefit of the father’s input into her school mornings at present, nor does she have the benefit of coming home to her father’s home tired after a long day at school and sleeping over, only to have to get ready for school the next day. This whole burden is on the mother. It would be best for X if it was shared.

20. As such, X will be spending time two school nights with the father each fortnight and a weekend with the father each fortnight. Whilst not quite a shared care arrangement, it will offer X the comfort of living with the mother and the comfort of having her father involved in her usual activities, including school and any therapies and sport. For similar reasons, she will have the benefit of spending half her school holidays with each of her parents, except that the April school holidays in 2021 shall be mostly with the mother given that she has not spent significant periods of block time with the father.

    CONCLUSION

21. For those reasons, orders as set out at the forefront of these Reasons for Judgment are made.

22          I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:

Dated: 5 March 2021