DHANJIT & PICHAI

[2018] FamCA 177

FAMILY COURT OF AUSTRALIA

DHANJIT & PICHAI [2018] FamCA 177

FAMILY LAW – CHILDREN – Parental responsibility – Where orders made in May 2017 did not allocate parental responsibility – Where the mother did not assert the presumption of equal shared parental responsibility was rendered inapplicable due to family violence – Ordered the parties shall have equal shared parental responsibility

FAMILY LAW – CHILDREN – With whom a child spends time – Where the father sought the review of orders made in May 2017 making provision for the child to spend time with him – Where the mother did not argue any constraints on the time spent by the child with the father were warranted by past episodes of family violence – Concluded the child is not at risk of harm in the father’s care – Concluded an order for the child to spend substantial and significant time spent with the father meets the child’s best interests – Ordered the child shall live with the mother and spend time with the father for three nights per fortnight

Family Law Act 1975 (Cth) ss 60CC, 61C, 61D, 61DA, 65DAA

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Dhanjit

RESPONDENT: Ms Pichai

INDEPENDENT CHILDREN’S LAWYER: Ms Neilson

FILE NUMBER: SYC 8373 of 2016

DATE DELIVERED: 13 February 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Austin J

HEARING DATE: 13 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Duane

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Mr Anderson

SOLICITOR FOR THE RESPONDENT: Craddock Murray Neumann

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Neilson

Orders

1. All former orders relating to the child B born … 2014 are discharged.

1. The parties shall have equal shared parental responsibility for the child.

1. The child shall live with the mother.

1. The parties shall take all reasonable steps to ensure that the child spends time with the father as follows:

(a)Up to and including 30 June 2018:

(i)Each week from the conclusion of day-care (or 5.30 pm if the child is not at day-care) on Wednesday until the commencement of day-care (or 8.00 am if the child is not to attend day-care) on Thursday.

(ii)Each alternate weekend from 9.00 am Saturday to 6.00 pm Sunday commencing Saturday 17 February 2018.

(iii)On 30 June 2018 from 4.00 pm to 7.00 pm.

(b)From 1 July 2018 and thereafter:

(i)Each week from the conclusion of day-care (or 5.30 pm if the child is not at day-care) on Wednesday until the commencement of day-care (or 8.00 am if the child not to attend day-care) on Thursday.

(ii)Each alternate weekend from 9.00 am Saturday to the commencement of day-care (or 8.00 am if the child is not to attend day-care) on Monday commencing on the second Saturday after the last visit pursuant to Order 4(a)(ii).

(iii)From 9.00 am to 6.00 pm on Father’s Day.

(iv)From 1.00 pm on 24 December 2018 to 1.00 pm on 25 December 2018.

(v)On 30 June 2019 from 4.00 pm to 7.00 pm.

(vi)For four other consecutive nights commencing at 6.00 pm on the first day and concluding 6.00 pm on the last night:

(A)Not more frequently than once every three months; and

(B)On dates to be notified by the father to the mother in writing at least 28 days in advance.

1. For the purposes of implementing Order 4 hereof, either:

(a)The child shall be collected from or returned to day-care; or

(b)The father shall collect the child from and return the child to the mother’s residence at the commencement and conclusion of the child’s visits with him.

1. Each party shall notify the other of any medical emergency, illness or injuries suffered by the child whilst in their respective care warranting treatment by a third party and shall authorise the treating health professionals to communicate with the other parent about the condition and treatment of the child.

1. Each party shall forthwith inform the other and keep the other informed in writing of their current residential address, mobile telephone number and email address.

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations of these Orders create, the particulars of the consequences that may follow contravention of these orders and details of assistance to comply with these Orders are set out in the attached Fact Sheet which forms part of these Orders.

1. Save as to costs, otherwise:

(a)The Application in a Case filed by the father on 16 June 2017 is dismissed;

(b)The Application for interim relief set out within the Amended Application filed by the father on 9 February 2018 is dismissed;

(c)The Application for interim relief set out within the Response filed by the mother on 15 February 2017 is dismissed; and

(d)Any and all outstanding applications for interim relief are dismissed.

1. No order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8373 of 2016

Mr Dhanjit

Applicant

And

Ms Pichai

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. On 23 May 2017, Senior Registrar Campbell made interim parenting orders in respect of the only child of the applicant father and respondent mother. In effect, the orders made provision for the child to live with the mother and spend time with the father for several hours on two occasions each week.

2. The father was dissatisfied with the orders and filed an Application in a Case on 16 June 2017 seeking review of the Senior Registrar’s decision. Although the application was confined to only review of the order making provision for the child to spend time with the father (Order 2), the other orders require adjustment because no order was made by the Senior Registrar about the allocation of parental responsibility and, on this hearing de novo, the Family Law Act 1975 (Cth) (“the Act”) requires me to apply the presumption of equal shared parental responsibility (subject to any exceptions) when I make any other parenting order (s 61DA; Goode & Goode (2006) FLC 93-286 at [56]).

3. There was no dispute the review application was filed within time. 

4. There was no dispute the hearing should be conducted as an original hearing, including by reference to current evidence. The elapse of some nine months since the reviewable decision is regrettable, but the reasons for that delay were not agitated before me. 

5. There was no dispute the child should continue to live with the mother. 

6. Aside from some minor disagreement about parental responsibility, the only real issue was the amount of time the child should spend with the father. The mother wanted to retain the orders made by the Senior Registrar, but the father wanted the time expanded.

Applications

1. Despite his purported limitation of the review application, the father proposed the orders set out in his Amended Application filed on 9 February 2018. In essence, he sought equal shared parental responsibility for the child and for the child to spend three nights per fortnight with him until mid-year, when the child turns four years of age, and thereafter four nights per fortnight.

2. The mother argued for retention of the Senior Registrar’s orders, which largely reflected the orders she originally proposed in her Response filed on 15 February 2017. 

3. The Independent Children's Lawyer supported the father’s proposal.

Evidence

1. The father relied upon: 

   (a)his affidavit filed on 9 February 2018; 

   (b)the affidavit of Dr C filed on 8 February 2018; 

   (c)the affidavit of Ms D filed on 14 February 2017; and

   (d)the affidavit of Ms E filed on 14 February 2017.

2. The mother relied upon: 

   (a)her affidavit filed on 15 May 2017; 

   (b)her affidavit filed on 12 February 2018; 

   (c)the transcript of the hearing before the Senior Registrar on 23 May 2017 (exhibit M1); 

   (d)counselling notes from the F Clinic (Exhibit M2); 

   (e)records from the G Health Service, which were provisionally admitted but then later rejected when the mother conceded they were irrelevant to the outcome of the dispute (initially Exhibit M3); and

   (f)the NSW Police COPS event entries dated 8 March 2015 (Exhibit M4) and 11 March 2015 (Exhibit M5).

3. The parties and the Independent Children's Lawyer also relied upon the Memorandum dated 9 May 2017 prepared by the Family Consultant.

History

1. The parties separated in late 2015. There is a slight disagreement on the facts, but it is immaterial for present purposes. The father contends the parties separated on 24 October 2015 and the mother said it was 1 November 2015. 

2. Immediately following separation, in the period around November and December 2015, the parties agreed the child should spend time with the father each week on three or four occasions for one to three hours at a time. 

3. The child spent her first overnight visit with the father on 9 January 2016. 

4. Later in January 2016, the parties entered into a written agreement which provided relevantly as follows:

   Until formally adjusted by a mediator, the agreement is for (the father) to be in the care of (the child) on his own for one weeknight each week and a weekend night every second week.  (The father) to pick up (the child) each Wednesday night from her day care in [Suburb H] and return her there the following morning.

   (The child) to stay with (the father) every second weekend on Saturday afternoon … and return her to (the mother) on Sunday afternoon.

5. As would be obvious, the agreement the parties privately struck in January 2016 was much the same arrangement as the father now seeks should apply for the next few months until the child attains four years of age. 

6. The arrangement struck between the parties in January 2016 prevailed for the whole of that calendar year until the mother changed her mind in early December 2016. Without consultation with the father, the mother then decided to curtail the time spent by the child with him, about which she notified him in an email. The mother deposed that, in the period around November/December 2016, she became more concerned about the child’s care and health while with the father so, on 5 December 2016, she sent an email to him advising she was dissatisfied with the “routine” he was implementing for the child.

7. The Family Consultant reported that, after the mother curtailed the time spent by the child with the father, he was prompted to file an application seeking parenting orders. His Application was filed in the Federal Circuit of Australia and the proceedings were heard on an interim basis on 16 February 2017. At that time the Federal Circuit Court made orders for the child to spend time with the father on two occasions each week for several hours on each occasion. Contemporaneously, the proceedings were transferred to this Court for determination.

8. Apparently the orders made between the parties before the Federal Circuit Court were intended to only prevail until they could agitate their respective applications in greater detail before this Court, which is the reason why the Senior Registrar held another hearing on 23 May 2017. I have already indicated the nature of the orders made by the Senior Registrar on that date. 

9. The father filed his Application in a Case on 16 June 2017 seeking a review of that decision and, for reasons which are unknown to me, the review hearing originally listed in September 2017 did not proceed and was instead listed before me today (13 February 2018).

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a parenting order is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D) within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA(1)), though that presumption may be rendered inapplicable or be rebutted.

4. The presumption of equal shared parental responsibility does not apply in certain circumstances including in instances of family violence (s 61DA(2)(b)), the evidence in relation to which I shall shortly turn. The presumption of equal shared parental responsibility may also be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility for the child (s 61DA(4)). 

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, then the Court is obliged to consider both the advisability and practicability of the child living for equal time with both parents or, alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

6. Of course, those principles are to be considered in the context of this current interim hearing. The procedure for conducting an interim hearing has been authoritatively established by the Full Court in Goode & Goode (2006) FLC 93-286. There the Full Court said (at [68]):

   …the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significant curtailed”.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute, and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

7. That does not mean that contentious facts must be disregarded. Particularly in parenting proceedings, the Court must remain alive to controversies, the ultimate resolution of which may have a significant bearing upon the determination of orders that meet the children’s best interests. Serious allegations cannot be ignored at interlocutory events simply because they have been put in issue (see Salah & Salah [2016] FamCAFC 100 at [34]-[46]; Eaby & Speelman [2015] FamCAFC 104 at [18]-[19]).

8. In Banks & Banks [2015] FamCAFC 36 at [47]-[50] the Full Court noted that a paucity of uncontested evidence means that only limited consideration may be given to factors prescribed by s 60CC of the Act. Interim proceedings should be confined to only those issues which, in the best interests of the child, require determination prior to a proper determination at trial. Not every s 60CC factor need be discussed in that process.

9. In Goode & Goode (at [74]) the Full Court also said:

   …because of the circumscribed nature of the proceedings, the reasons given at an interim hearing may be brief.

10. The reasons for the Court’s judgment need only address the contentious factual and legal matters genuinely outstanding between the parties (SCVG & KLD (2014) FLC 94-582).

Best interests of the child

Section 60CC(2)(a)

1. The Family Consultant reported in respect of the child that when she saw the father she ran to him excitedly and embraced him. The Family Consultant considered the child appeared to have an established, trusting relationship with both of the parents and observed her not to be clingy with either parent. 

2. The Family Consultant heard the child ask “Where’s my daddy?” on at least three occasions during the observation session conducted between the child and the mother. 

3. Ultimately the Family Consultant concluded the child had strong and loving relationships with both parents and she appeared to enjoy spending time with each of them. 

4. The Family Consultant further opined that despite the allegations the parents made about one another, the child appeared to have been able to maintain loving relationships with both of them in the midst of the parental conflict.

5. Importantly, the mother conceded the child does enjoy a meaningful relationship with the father. There is no doubt she does so and, moreover, that she derives great benefit from the relationship. The same observation may be made about the child’s filial relationship with the mother.

6. The real question for present consideration was whether any restriction needs to be placed on the child’s interaction with the father so as to protect her from any risks of harm. The mother contended the child was at risk of harm for various reasons which engaged s 60CC(2)(b), to which I now turn.

Section 60CC(2)(b)

1. The mother adduced evidence apparently designed to demonstrate the father posed a risk of harm to the child by reason of her subjection or exposure to either family violence or neglect perpetrated by him. 

2. Eventually the mother conceded the child was not at unacceptable risk of harm by reason of exposure to family violence perpetrated by the father and it must be said the concession was commendably, though belatedly, made.

3. Although the mother alleged an event of physical violence between the parties in March 2015, about six months before their separation, there was no evidence of any family violence between them since their separation. There was no evidence of family violence between them in the 12 months they were able to voluntarily implement childcare arrangements between late 2015 and late 2016. When the mother unilaterally changed those arrangements in December 2016, the reasons she gave the father for her decision did not include her fear of any family violence perpetrated by him.

4. The orders made in February 2017 and May 2017 required the parties to meet each other weekly at their homes to exchange the child and there was no evidence of any violence, oppression or intimidation between them on any of those occasions. In fact, the mother wants those orders to continue in that form. 

5. In her Case Outline, the mother said “the parents have shared parental responsibility”, which is not strictly correct. The parents have joint parental responsibility conferred by law, which conferral was not disturbed by the orders made by either the Federal Circuit Court in February 2017 or the Senior Registrar in May 2017 (ss 61C and 61D). Nonetheless, the mother’s contention in her Case Outline evinces her expectation that the parties should continue to have an equal measure of parental responsibility. The mother did not seek to use any finding of family violence to render the presumption of equal shared parental responsibility inapplicable (s 61DA(2)(b)).

6. Nor did she seek to argue that the constraints upon the child’s time with the father were warranted by past episodes of family violence. The mother only contended as follows in her Case Outline:

   There is family violence in the relationship between the parents which has impacted upon (the child).  Significantly, the family violence has also made the mother anxious about the father’s ability to properly care for (the child) on his own.

1. In fact, there is no objective evidence that the child was or is suffering the emotional sequelae of exposure to family violence. Moreover, there was no evidence to reasonably explain why the mother’s allegations of past family violence now make her anxious about the father’s ability to properly care for the child. Any family violence occurred years ago and it was not apparently a current concern to the mother, either when she struck an agreement with the father about the child after their separation in late 2015 or when she unilaterally reneged on that agreement 12 months later.

2. The evidence did not establish the child is in any need of protection against harm caused by her subjection or exposure by the father to family violence. In that regard section 60CC(2)(b) is not engaged.

3. As to the issue of neglect, the father has diabetes. The mother was concerned that, if his blood sugar and insulin levels are not well controlled, he will lose acumen and will not then be able to properly supervise the child. The mother deposed to her concern in these terms:

   When (the child) is in (the father’s) care I am concerned that if his sugar is low during the night he will not be able to care for (the child) in the event she wakes or needs attention.

4. The mother deposed in her affidavits as to how she believed the father’s sugar levels fluctuate when he becomes upset and in those circumstances he appears to act strangely or to lose control. She alleged that throughout their relationship the father did not manage his diabetes very well. She alleged that he suffered from poor memory and he often failed to consistently check his sugar levels. She alleged that during the relationship the father, his friends and family members all told her stories about “his sugar being off”. She further alleged that she was woken frequently by the father during their relationship in circumstances that led her to believe his sugar levels were low. She deposed in her affidavit filed only yesterday that she remains concerned about the father’s management of his diabetes. She alleged that on 21 December 2017 she was in his company and she recognised from his behaviour and his manner that his “sugar was off”. She also alleged that on 20 January 2018 she was again in his company with the child and she noticed that “his sugar was off”.

5. It is not clear to me from her evidence about those recent incidents in December 2017 and January 2018 why she thought the father was incapable of satisfactorily supervising the child alone. Having “off” sugar levels is one thing, but being incapable of supervising a child is quite another.

6. In any event, no doubt the mother’s fears are genuine. Nonetheless, she must distinguish between subjective fear and objective risk. The evidence before the Court did not bear out any unacceptable risk of harm to the child under the father’s supervision. 

7. The father adduced evidence from his treating endocrinologist, Professor J, who reported the father has been under his care for nearly the last decade, since December 2009. Professor J reported the father had not experienced any acute severe complications of diabetes over that time and, more specifically, he had not experienced severe hypoglycaemia (low blood glucose) nor diabetic ketoacidosis (high blood glucose with acid), which are the two conditions that can occur acutely in type 1 diabetes sufferers. Nor has the father required any hospital admission due to his diabetes. The professor reported the father is well versed in diabetes self-management and there was no indication that he has developed acute complications of diabetes that might compromise his self-care, nor, importantly, the care of others “under his care”. The professor reported the father had been generally adherent to his health care plan and appointments.

8. In the face of such expert evidence, which was not the subject of objection, I am satisfied the father reasonably controls his diabetic condition and there is no reasonable need for any level of alarm.

9. The mother was also concerned about the father’s sufferance of a condition described as ADHD. The father has consulted two doctors about complaints related to his forgetfulness. He consulted Dr K in 2016. That doctor considered the father did suffer from Attention Deficit Hyperactive Disorder and prescribed him some dexamphetamine sulphate to take. Before the Court is an affidavit from Dr C, prepared less than a week ago on 7 February 2018. Dr C reports the father was referred to him by his general practitioner for a review of the previous diagnosis of ADHD. He consulted the father on a number of occasions between September 2017 and January 2018. Essentially, he came to a different conclusion from Dr K, notwithstanding his awareness of Dr K’s prior diagnosis. Dr C referred to the father’s complaints about memory deficit and went on to comprehensively explain the father’s condition and his ultimate diagnosis. Dr C ultimately reported the father does not currently meet criteria for any psychiatric disorder and, furthermore, does not meet the criteria for diagnosis with ADHD. Dr C apparently believes Dr K misdiagnosed the father and reports the dexamphetamine prescribed to the father was largely ineffective in the past.

10. The mother asserted that Dr C’s report should carry little, if any, weight, but I reject the submission. Significantly, Dr C reviewed the father on four occasions across several months. The father was referred to Dr C by his general practitioner specifically for the purposes of review of Dr K’s prior diagnosis. Dr C was well aware of Dr K’s prior diagnosis and his report seems eminently comprehensive. Even if, contrary to Dr C’s opinion, the father does have ADHD, the diagnosis alone falls way short of proving the father thereby poses a risk of harm to the child.

11. Absent the mother’s concerns about the father’s diabetes and ADHD conditions, which it was said deprived him of capacity to satisfactorily supervise the child, there is no other reason advanced to explain why the father is incapable of meeting all of the child’s needs.

12. The Family Consultant reported that both parents engaged the child in play activity, were responsive to her needs, and appeared to provide her with an attachment base from which she was comfortable exploring the environment. Both parents were said to be consistent and responsive to the child’s needs in all relevant respects.

13. Even though the evidence does not vindicate the mother’s belief about the child’s prospective exposure to neglect in the father’s care, it is clear that in at least some respects the father has been unreliable and he should not be immune from criticism for that. He needs to do better.

14. The mother deposed that on Wednesday 23 August 2017 the father did not collect the child from day-care as they had arranged. The mother received a call from day-care informing her of the father’s failure to attend and she then had to attend the day-care centre prior to its closure to ensure the child was collected. 

15. The mother also deposed that, despite some arrangement between the parties for the father to pay half of the child’s day-care fees, he has reneged on that arrangement and some of the child’s day-care fees are outstanding. 

16. More recently, the father disclosed in his affidavit that he is now living at Suburb M. The mother contended she was unaware of his current residential address until reading his most recent affidavit in the last few days. If that is so, the father breached Order 6 made by the Senior Registrar in May 2017, which required him to keep the mother appraised of his residential details. 

17. So for those reasons, in some respects, the father does not help himself and one can understand why the mother is anxious about the sufficiency of his attention to detail. 

18. Nonetheless, for the reasons given, the evidence does not satisfactorily engage s 60CC(2)(b) of the Act and there is no need to protect the child from risk of harm.

Section 60CC(3)

1. The father has been keen to resume overnight time with the child since the mother put a stop to it in December 2016, but she has resisted its resumption. 

2. The Family Consultant reported that “ideally” the child requires “the opportunity to have regular and consistent time with both of her parents, including overnight time, if appropriate”. In order to assuage the mother’s concerns about the father, the Family Consultant recommended that the father complete some parenting courses in expectation that would give the mother some “peace of mind”. The father deposed (at [62]-[68] of his affidavit) to having completed a variety of courses, which should reasonably have given the mother some comfort, but it appears she has derived none. I am satisfied the completion of those courses by the father demonstrates his further commitment to the adequate discharge of his responsibilities as a parent.

3. In terms of the practicability of implementing orders between the parties, it should be noted the parties live close by. The father now lives in Suburb M and the mother lives in Suburb H. Their residences are in reasonably close proximity. Moreover, the father deposed to his flexible work hours. He is presently employed as a manager and works in Suburb N. He works full-time, but is not required to work more than 35 hours a week. He says that that work regime allows him to spend time with the child under the current orders by finishing work early on Wednesday. He said that he generally works Monday to Friday from 9.00 am to 5.00 pm. Those flexible work hours accommodate the parenting regime he proposed, which is endorsed by the Independent Children’s Lawyer.

4. The child is now at a development age where her attachment relationship with the mother as primary carer is not quite so important. Her age and maturity is commensurate with expanded visits, as proposed by the father and the Independent Children’s Lawyer. 

Conclusions and Orders

1. As earlier mentioned, the presumption of equal shared parental responsibility is imported by s 61DA(1) of the Act.

2. Even if the presumption is rendered inapplicable by episodes of family violence between the parties in the past, an order for equal shared parental responsibility may still be made if the child’s best interests are thereby served. 

3. The mother deposed as follows: 

   I was afraid to have a conversation with (the father) face-to-face because, if I do not listen or agree with him, he gets upset and angry.  I am still afraid to have direct face-to-face communications with him. 

4. That may be so, but the mother has put her fear to one side for the benefit of the child and deals with her concerns satisfactorily. There are several examples of her having done so. The mother deposed that, on numerous occasions over the last few months of 2017, the child did not spend time with the father pursuant to the existing orders. Nonetheless, she deposed that on each and every one of those occasions she provided the father with “make up” time with the child. She annexed to her affidavit copies of email and text messages that passed between the parties to vindicate her evidence. The mother even deposed that, as recently as January 2018, the father asked her in the child’s presence if they could spend time together with the child. The mother agreed to do so, although she contends it was because she did not want to let the child down when the child heard the request made of her. In any event, the mother does not assert that she was unable, by reason of her fear or apprehension, to remain in the company of the father and the child.

5. As was revealed in discourse with counsel, the orders made by the Federal Circuit Court in February 2017 and those made by the Senior Registrar in May 2017 required the parties to attend one another’s homes to exchange the child. The evidence is silent as to any confrontations between the parties on those occasions. The only available inference is they were able to implement those orders without rancour, which is a credit to both of them but, importantly for the purposes of allocation of parental responsibility, the mother is plainly able to interact with the father, even if only cautiously.

6. The Family Consultant reported in May 2017 that it appeared the parties were “able to interact and get on reasonably well”. The Family Consultant observed them interacting together during the family assessment. They were even seated together while they waited for their appointment. The parties both reported to the Family Consultant that the changeovers had been managed well by them and that they did not argue or behave disrespectfully of one another in front of the child.

7. For his part, the father deposed in his affidavit that the changeovers of the child between the parties have occurred without incident. He said the mother usually provides him with whatever is required for the visit which, on some occasions, has included the child’s scooter, clothing and other gear. He said he and the mother were friendly at changeover, exchanged pleasantries, and were cooperative. The father deposed he thought that he and the mother now have a good relationship, generally speaking, and they are able to communicate in relation to the child, her well-being and about decisions concerning her welfare.

8. In the face of such evidence, I am satisfied the child’s best interests warrant an order for equal shared parental responsibility and an order to that effect will be made. 

9. Accordingly, s 65DAA of the Act is engaged, which first requires me to consider the child living with both parties for equal time. Nobody contended such an outcome would either be practicable or in the child’s best interests and so I dismiss it as an option.

10. Section 65DAA then requires me to consider an order which requires the child to live with the mother and spend substantial and significant time with the father, since there was no contest the child should continue to live with the mother. The father and the Independent Children’s Lawyer sought orders for the child to spend “substantial and significant time” (s 65DAA(3)) with the father, but the mother adhered to the orders made by the Senior Registrar, which orders do not make provision for the child to spend “substantial and significant time” with the father.

11. In my view, the evidence warrants an order for substantial and significant time. The child’s best interests justify it and such an order would be reasonably practicable to implement.

12. In summary, such an order is in the child’s best interests because the evidence does not bear out that the child is at any risk of harm in the father’s care, the child has a loving relationship with the father, and the Family Consultant recommends that overnight time commence. 

13. In summary, such an order would be practicable because the parties live close by and the father’s flexible working hours permit such a parenting regime. 

14. The orders I intend to make about the child spending time with the father differ slightly from those proposed by him, but not materially.

15. The other orders I intend to make either replicate orders made by the Senior Registrar, which were not the subject of the review application or, alternatively, could not be the subject of reasonable opposition.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 13 February 2018.

Associate: 

Date:  23 March 2018