EDWARDS & STARR

[2015] FCCA 602

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDWARDS & STARR [2015] FCCA 602

Catchwords:
FAMILY LAW – Further interim parenting orders to restore original parenting arrangement agreed to by parties – best interests of young baby with young sibling from Father’s previous relationship – Mother having previously relocated from Canberra to Sydney – final hearing to commence in approximately 10 weeks’ time – family report yet to issue but interviews having been completed – regular dilemma for trial court to accommodate urgent applications, large volumes of applications, the efficient allocation of court resources (especially “time”) and case management considerations.

Legislation:

Family Law Act 1975, ss.60B(1) & (2), 60CA, 60CC(2)(a), 60CC(3)(b) & 60CC(3)(d)(ii)

AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Banks & Banks [2015] FamCAFC 36
Crouper & Mitchell [2014] FamCAFC NA 48 of 2014

Edwards & Starr (Stay Application) [2015] FCCA 53
Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422
McCall v Clark (2009) 41 Fam LR 483
McGregor v McGregor (2013) 47 Fam LR 498
Maluka v Maluka (2012) 45 Fam LR 129
Mazorski v Albright (2008) 37 Fam LR 518
Moose & Moose (2008) FLC ¶93-375
Morgan v Miles (2008) 38 Fam LR 275
SCVG & KLD (2014) FLC ¶93-582
Shaeffer v Jacobs (2011) FLC ¶93-468
Vanzin & Vanzin [2014] FamCAFC 245

Applicant: MR EDWARDS

Respondent: MS STARR

File Number: CAC 1457 of 2014

Judgment of: Judge Neville

Hearing date: By written submissions

Date of Last Submission: 20 February 2015

Delivered at: Canberra

Oral reasons delivered 27 February 2015

Written reasons requested               10 March 2015

Written reasons provided                17 March 2015

REPRESENTATION

Solicitors for the Applicant: Alliance Family Law

Solicitors for the Respondent: Elizabeth Fleming & Associates

Solicitors for the Independent Children's Lawyer: Legal Aid, ACT

ORDERS

THE COURT ORDERS THAT:

1. In the absence of agreement in writing between the parties, the child X (born (omitted) 2014) (“X”) shall spend with his Father (and his brother Y) no less than two block periods per week, each of which is to be no less than two hours.

2. Other than periods of hand-over of no more than 15 minutes at the start and the end of the Father’s time with the child, the Mother shall remove herself from the child’s presence and remain no less than 500 metres from the Father and X unless the Father requests the Mother’s attendance.

3. In the absence of agreement in writing between the parties, changeover shall be at the Father’s residence. 

4. The Father shall be required to telephone the Mother in the event that the child becomes unusually distressed.

5. The Mother is to provide the Father with relevant contact details within 48 hours of the date of these orders.

THE COURT NOTES THAT:

A.For the purposes of Order 3 above, the Father says that the Mother knows his address.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1457 of 2014

MR EDWARDS

Applicant

And

MS STARR

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 4^th November 2014, orders were made in relation to interim parenting issues then in contest between the parties involving their son X, and for the Mother to return to Canberra from Sydney. Among other orders, a report pursuant to s.62G of the Family Law Act 1975 (“the Act”) was also ordered.  The matter was listed for final hearing on 30^th March 2015.

2. The Mother has appealed the order requiring her to return to Canberra.  In consequence of that appeal, and at the time not knowing when the appeal would be heard (or determined), the final hearing scheduled for 30^th March was vacated.  The Mother’s appeal is to be heard shortly.  The final hearing has been accommodated at still an early date for 20^th May.  I am advised that interviews for the preparation of the family report have now been completed.

3. In the light of the Full Court’s not infrequent acknowledgement of dealing with interim matters in busy or overcrowded lists, I note the following by way of background.[1]

   [1] See, for example, the very recent comments by the Full Court in Banks & Banks [2015] FamCAFC 36 at [48], and those by Murphy J (sitting as the Full Court) in Vanzin & Vanzin [2014] FamCFC 245 at [20] – [22], and those by Bryant CJ (with whom Strickland and Murphy JJ agreed) in Crouper & Mitchell [2014] FamCAFC 246, particularly at [15] where her Honour said: “Absent manifest error of law or breaches of natural justice, an appellant will always face considerable difficulties challenging an interlocutory decision. This is all the more so when a hearing date is proximate and available. … The challenge is always to make orders in the best interests of the child on limited information and when allegations are disputed this can be particularly difficult.”

4. On 27^th February this year, orders were pronounced and abbreviated oral reasons delivered in relation to further interim parenting orders.   Upon delivery of the reasons on 27^th February, the file was immediately returned, as requested, to the Appeals Registry.  At the time of their delivery I recorded that if written reasons were required they would be revised.  These are the revised reasons. 

5. The parties’ lawyers had earlier filed (on 20^th February) brief written submissions in relation to the limited matters in issue.  They were duly notified (on 24^th February 2015) of the date for the delivery of reasons, scheduled for 27^th February.  In that same email correspondence, the Mother’s solicitor was advised that he could attend the delivery of reasons by telephone.  In passing I note that while the Mother continues to reside in Sydney pending the outcome of the appeal regarding the Court’s order last November that she and the child return to Canberra, her solicitor’s practice is in (omitted) and (omitted) on the south coast of New South Wales.  On 27^th February, the Mother’s solicitor was telephoned – twice, but to no avail.  The call to his office was put on hold for some minutes; then the Court was provided with the solicitor’s mobile telephone number.  When that number was called, it went to “voice-mail.”

6. After returning from the Court’s regular circuit to Wagga Wagga, and with a duty week (at the time of finalising the reasons) having commenced on 16^th March, an email request was received on 10^th March at 4:46pm from the Mother’s solicitor for written reasons in relation to the oral reasons and orders of 27^th February.  The following paragraph formed part of the March 10 request to the Court:

   Your early attention to this matter is greatly appreciated as the Orders pertaining to the appeal book/s were made today, and the Appeal Books are due to be filed with the Eastern Appeals Registry by 12 March.

7. Since that email, the Mother’s solicitor’s office has regularly sought the expedition of the provision of the written reasons that were only sought on 10^th March.

8. The Court file in the matter was delayed in reaching my Chambers from the Appeals Registry; it arrived on Friday 13^th March.  Further procedural history is noted later in these reasons but more generally reference should be made to the reasons delivered in the Mother’s stay Application, also noted later.

9. Should it be of relevance, the Notice of Appeal on the Court file in relation to the 27^th February orders bears a “received” date stamp of 3^rd March 2015.  The Principal Registrar of this Court received notice of procedural orders in this further appeal via an email dated 10^th March.  The Principal Registrar forwarded to me a copy of these orders early on the morning of 11^th March. 

10. It might be observed, without comment, the practice or curiosity of formulating grounds of appeal and filing a further Notice of Appeal without the Appellant, or anyone on her behalf, actually having heard the reasons for the orders made on 27^th February.

11. If the Court may be permitted the following further observation. In the light of the above prefatory comments, and the obvious fact of multiple court events, multiple applications, multiple judgments and now multiple appeals, all still without a final hearing, but which was scheduled for this month but vacated so that an appeal on an interim decision is determined, the Court is faced with the very regular predicament and impossible balancing act required that arises out of (a) the capacity of the Court, in accordance with the Act, for a careful exercise of a structured discretion,[2] which (subject to Full Court instruction) is strictly a legislative requirement in all parenting matters (whether relocation is involved or not), and or (b) the efficient and timely use of scarce court resources.[3]

    [2] See Morgan v Miles (2008) 38 Fam LR 275 at [55], [74], [77], [79], [81], [84], [86], [88] and [91].

    [3] See general comments in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [24] & [25] (French CJ). The comments of his Honour were in the context of delay. Delay is not an issue in the current matter. I note that in AON, at [24], French CJ referred to the need for courts to consider the “waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes.”  See also his Honour’s comments, at [6], which recognise “case management” as proper considerations in modern litigation, as did the plurality judgment (Gummow, Hayne, Crennan, Kiefel and Bell JJ), in many places, such as at [92].

Background

1. The current Application in a Case was filed on behalf of the Father on 28^th January 2015.  Leaving to one side the more expansive orders he seeks in the light of the Mother not having returned to Canberra with X pursuant to the orders of 4^th November 2014, the Application is properly characterised as further interim parenting orders in relation to the very young child of the parties, X (born (omitted) 2014).[4]

   [4] The Father also filed a Contravention Application at the same time as his Application in a Case.  In my view, it was and remains inappropriate to deal with such an Application while there remain outstanding appeals in relation to parenting orders.

2. The Father filed a detailed affidavit in support of his Application.  In it he relevantly referred to (a) his parenting experience, notably being the parent of a 5 year old, Y, from an earlier relationship,[5] (b) his twice weekly time with X being reduced unilaterally by the Mother to one two hour block immediately after the Mother’s Stay Application was filed on 17^th December 2014, (c) despite requests from his lawyers to the Mother’s legal representatives for information regarding the rental of the Mother’s unit in Canberra (with confirmation again by the Father that he would contribute to the Mother’s costs of moving back to Canberra), he was advised by real estate agents in a telephone conversation on 19^th January 2015 that the unit had been rented to a third party, and (d) the Mother’s interference with the Father’s time with X, including taking photographs during that time when X was crying (see pars.24 – 47).

   [5] The Father outlined this experience generally at pars.48 – 52 of his affidavit filed on 28^th January 2015.  It was also set out in the affidavits filed earlier in the proceedings.

3. The Mother has filed no affidavit or Response to the Application in a Case.  The maternal Grandmother filed an affidavit on 26^th February 2015, obviously prior to the current Application in a Case was filed, and after the Court dealt with the issues in contest in early November 2014, and the Mother’s Stay Application, filed in late December 2014.  The contents of the Grandmother’s affidavit relate to the child’s contentment in Sydney living with the Mother, the maternal Grandmother’s support for the Mother, and the Mother’s move to Sydney.  In my view, such supporting material can only properly be dealt with at a final hearing.

4. Young X is not yet 12 months old, having been born in (omitted) 2014.  He has an older brother, five year old Y, who is his Father’s son from a previous relationship, as I have earlier recorded.  It is not disputed that Y spends, and has done so essentially for all of his young life, regular time with his Father.[6]  Without going into detail, it is sufficient to note that the current arrangement involving Y is that he spends each alternate weekend with his Father.

   [6] These matters are also dealt with in the Father’s earlier filed material.

5. Until the final hearing that is scheduled for 20^th May 2015, for immediate purposes it is sufficient to record that the Father’s current Application, with some slight variation, seeks to restore the orders that were agreed between the parties last November.  This agreement followed the original orders that were made on 4^th November 2014 (“the November orders”).[7]

   [7] In his Application in a Case, on the basis of the Mother being in Canberra, the Father actually sought more time with X than was referred to in his most recent submissions.

6. Although the November orders refer (Order 4) to the child spending time with the Father once per week, under the arrangement agreed to by the parties the Father actually spent two blocks of time (each of approximately 2 hours) each weekend (one on the Saturday, the other on the Sunday), with the weekends alternating – one in Sydney, the other in Canberra – until the Mother returned to Canberra, which event was to occur within 6 weeks of the date of those orders.  As earlier noted, the order in relation to the Mother returning to the Canberra region is under appeal.  I do not understand that the “time with” order is subject to appeal.

7. There is nothing in the November orders that refers to the Father’s time with X being supervised.  In the course of the various hearings, particularly in early November 2014, there was some general discussion about the Mother being present during the Father’s time with the child.  I understand that that has been the general arrangement both when the Father and Y have travelled to Sydney, and when the Mother and X have travelled to Canberra.  There is now a further area of contest about the Mother being present during the Father’s (and Y’s) limited time with X.

8. In addition to the issue of the Mother’s presence during the Father’s time with the child, there is now the fact, seemingly not disputed, that the Mother has reduced the Father’s time with the child from two blocks of time to one on her visits to Canberra.  It also seems not disputed that the reason for the reduction in the Father’s time is because the Mother now drives down and back to Canberra from Sydney with the child.  Previously, as I understand it, the Father had paid for the Mother’s overnight accommodation in Canberra.

9. As previously noted, (a) the Mother has a home unit in Canberra, which has been recently rented out by her, and (b) she is on maternity leave from a full time position with the (employer omitted) in Canberra.  The Mother’s property (but not its rental) and her employment and leave are all set out in the affidavit material filed by her; it is also referred to in earlier decisions of the Court.[8]

   [8] In particular, see Edwards & Starr (Stay Application) [2015] FCCA 53.

10. In short, the current matters to determine relate to (a) the Father’s time with the child (both as to frequency and as to duration), and (b) whether the Mother is to be present when X spends time with his Father – and his brother Y.

Submissions

1. Because of the volume of matters requiring the Court’s time, and in consequence the inability to find readily available hearing time in Court, it was agreed that the current issues in dispute would be determined on the basis of written submissions (and of course by reference to the affidavit material that had been filed).  Written submissions were provided by both parties and are set out below.

2. The Father’s brief submissions provided as follows:

   We are instructed to confirm that the Father seeks clarification of His Honour's orders of 4 November 2014 to the extent that no supervision was ordered then, nor should be expected any longer.

   
   
   

   Specific time was not ordered in November 2014, but the Father seeks that the prior informal arrangement of a minimum of 2 hours per weekend day be re-instituted by way of specific court orders (ie 2 hours on each of Saturday and Sunday).

   
   
   

   We further are instructed to seek an order that changeover occur at the home of the Father, address known to the Mother, with the Mother to provide her contact details to the Father, and noting that the Father will call the Mother if the child becomes unusually distressed.

   
   
   

   Supervision would be appropriate in cases of violence, parental incapacity, mental health issues or drug abuse.  None of those apply. 

   
   
   

   In the Father's submission, the Mother's ongoing breach of orders made 3 months ago should not assist her case regarding a purported need for supervision.

3. The Mother’s submissions were as follows:

   As submitted yesterday the preferred course is to wait for the appeal to be heard and the release of the family report before contemplating altering any of the current arrangements.  We note the following:

   1. There is no evidence before the court that the Father has put in place suitable arrangements at his home (or his motor vehicle) and/or suitable supplies for the child at his home (such as nappies, wipes etc)

   
   
   

   2. The Father's complaint about the Mother seems to relate to the Mother acting in a negative manner at times he is spending time with the child (the Mother denies this contention), however his evidence also indicates that the child goes between the parties well and is settled in the presence of both the mother and father - the child being settled is the more important consideration for the court.

   
   
   

   3. There is no evidence that the Father is able sooth [sic] the child or that the Father has any insight into the needs of X.

   
   
   

   4. There is no evidence that the Father is able to care for both X and Y at the same time without the assistance of the Mother.

   
   
   

   In addition to the above we further submit that the Court should cautiously approach any alteration to the current arrangements for the care of the child (with the Mother being present to assist the Father with the care of X and to sooth him when appropriate) especially when those are the arrangements that have been in place since November 2014.

4. A number of matters may be noted immediately.

5. First, neither party referred to any relevant principle, apart from a general reference by the Mother for the Court to proceed with caution.  Given the narrowness of the immediate contest, perhaps the absence of reference to principle is understandable.

6. Secondly, the Mother’s submissions caution against altering the current arrangements.  However, the Mother has not challenged the Father’s sworn evidence that she had unilaterally altered, in late December 2014, the previously agreed arrangements which led to the Father’s (and Y’s) time with X being reduced by one two hour block on the weekend.

7. Although I have identified the two discrete issues that currently require determination, it is as well to set out some reference points of principle before the consideration of the issues in dispute.

Points of Principle

1. Subject to what is said later in these reasons, a convenient jurisprudential touchstone for the following discussion is the summary of principle by Brown J in Mazorskiv Albright in relation to Part VII of the Act, noting, of course, that there have been significant changes to the primary and additional considerations in relation to “family violence”. Respectfully, and cognisant of the ‘family violence’ changes to the ‘pathway’, I adopt Brown J’s overview of relevant sections (and principles) of Part VII of the Act. Her Honour’s comments should, of course (as I have said), be considered in the light of relevant statutory changes, for example, to ss.60CC(2A) and 60CC(3)(c) and later Full Court authorities referred to later in these reasons.[9]  At [3] – [6] her Honour said:

   [3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

   [4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

   [5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.

   [6] If the presumption applies, and there is an order for equal shared parental responsibility, the Court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

   [9] Mazorski v Albright (2008) 37 Fam LR 518. Her Honour’s remarks in relation to the “twin pillars” have been consistently cited with approval by the Full Court, for example in Moose & Moose (2008) FLC ¶93-375; McCall v Clark (2009) 41 Fam LR 483; Sigley v Evor (2011) 44 Fam LR 439; Shaeffer v Jacobs (2011) FLC ¶93-468; Maluka v Maluka (2012) 45 Fam LR 129.

1. Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[10]

   [20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions.  At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach.  The paragraph continues:

   The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.

   [21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division.  The objects use the words “meaningful involvement”.

   [22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:

   The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody.  The presumption relates solely to the decision making responsibilities of both parents.  New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the Court should consider equal time arrangements.

   [10] Brown J’s remarks in this regard have been endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and by a differently constituted Full Court in Mulvany v Lane (2009) 41 Fam LR 418 at [90], and McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, the Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335] similarly approved Brown J’s remarks.

   [23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):

   [196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the Court must consider other arrangements that promote a meaningful relationship.  This provision places an obligation on the Court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents.  This is intended to ensure that in making parenting orders related to time that the Court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time.  The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders.  This is set out in s 60CA by item 9.

   …

   [199] Section 65DAA (2) – (4) is intended to ensure that the Courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement.  It is intended to ensure a focus both on the amount of time and the type of time.  It would include both day time contact and night time contact.  It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child.  It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.

   [24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”.  A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”.  These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989.  It defines “meaning” (in generalised use) as “significance”.  The examples provided take the matter no further.

   [25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”.  Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.

   [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.  I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective, not a strictly quantitive [sic] one.  Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. These comments of Brown J need to be considered further in the light of more recent comments of the Full Court in relation to the conduct of interim proceedings, notably in Vanzin & Vanzin, Crouper & Mitchell, and most recently in Banks & Banks.[11]  For current purposes, it is sufficient to note the following from Banks & Banks.  At [47] – [50], the Full Court (Thackray, Murphy & Kent JJ) said (emphasis added):

   [47] As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors. 

   [48] It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant.  By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial.  The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.   

   [49] Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available.  Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees.  It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

   [50] When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors.  Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations.  Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

   [11] Vanzin & Vanzin [2014] FamCAFC 245, Crouper & Mitchell [2014] FamCAFC 246, and Banks & Banks [2015] FamCAFC 36.

Consideration & Disposition

1. Having already recorded (a) the two issues to be determined, (b) the Father’s evidence in support of his Application, (c) the Mother’s lack of Response and evidence to it, and (d) the brief written submissions of the parties, I make the following observations, and in the light of doing so, confirm the orders that the Court considers to be in the best interests of X.

2. In addition to the matters already noted, I am conscious of the parties having recently attended upon a family consultant. I understand that the report may issue relatively soon, but no one knows exactly when that will be. In such circumstances, a cautious approach is apt, one that attends (to the degree necessary) to the Court’s proper responsibility to protect the child from any relevant harm,[12] and at the same time, is one that allows the parents properly to exercise (and in the Father’s case, to grow further in) their parental responsibilities in relation to X. Such an approach, in the absence still of a soon to arrive family report and with a quite proximate final hearing (literally a matter of weeks), in my view, still facilitates or enables the Court to make orders that are in X’s best interests, pursuant to s.60CA of the Act.

   [12] In this regard, pursuant to the original order on 4^th November 2014 for a s.69ZW report, an email was received from the ACT Care & Protection Services, dated 11^th November 2014 that the Director-General held no records in relation to the child X.

3. Subject to what is in the family report, and the Court’s ability at a final hearing to consider properly all the evidence in the light of the legislative pathway, in matters involving young children in particular (such as here) it is commonly considered to be best that modest but regular periods of time are important if not essential for a parent to establish a meaningful relationship with that child.[13]

   [13] See, generally ss.60B(1) & (2), 60CC(2)(a).

4. The same general consideration, albeit in the context of a sibling relationship (cf. s.60CC(3)(b) & s.60CC(3)(d)(ii)), applies here where X has an older (but still quite young) brother, Y, being the Father’s son from a previous relationship.  In my view, the ability of X and Y to spend time together is a significant consideration.  And just as regular travel to Canberra must be taxing on the Mother and X, so too must regular travel to Sydney be for the Father and Y, recalling that the Father’s time with Y, while regular, is still somewhat limited.

5. The Father notes that there was never any order for supervision of his time with X, nor was there any specific “time-with” periods set out in the orders of last November.  These submissions are clearly correct.  The detail of the “time with” arrangements was left for the parties and the solicitors to determine given that (a) the parties knew/know their own situation better than the Court can ever know it, and (b) the Mother sought, and was granted, even more time to return to Canberra, and in consequence the travel arrangements were, again, best left to the parties (acknowledging that a very young child – X, and a young sibling – Y, are involved) and their lawyers to resolve.

6. The Father says that there are no reasons for any supervision, and that he would or will telephone the Mother if there is any issue with X.

7. Also stated summarily, the Mother says (in submissions, not by way of affidavit) that there is no evidence regarding the Father’s capacity properly to care, comfort and provide for X.  Further, the Mother says that the current arrangements have been in place since November 2013, and therefore, the Court should be slow to change them.

8. For my part, the greatest difficulty I have (apart from a typical “he said – she said” situation) is that, as already noted, the Father’s unchallenged evidence is that the Mother has changed, on her own volition, the time this very young child spends with his Father.  Accordingly it is not correct to say, as the Mother does, that the arrangements have been in place since last November.

9. As I have previously indicated, it is important that X have as regular time as possible with his Father, and equally so with young Y.  These matters were traversed with the parties’ lawyers in early November, as well as the not insignificant logistical issues in play.  They were canvassed again in the Mother’s application for a stay of the November 2014 orders and the judgment that ensued.

10. In my view, it is in X’s best interests that the original times with the Father (and Y) that were agreed between the parties be restored as soon as possible.  This means that, in the absence of agreement in writing between the parties, there be no less than two block periods per week, each of which is to be of no less than two hours in duration.

11. Further, apart from the periods of hand-over of no more than 15 minutes at the start and the end of the Father’s time with the child, the Mother shall remove herself from the child’s presence and remain no less than 500 metres from the Father and X (and Y) unless the Father requests the Mother’s attendance.

12. In the absence of agreement in writing between the parties, changeover shall be at the Father’s residence.  In this regard I note that (in my words) the Mother submitted that changeovers have been without incident and that the child has settled well.  On the basis of the Mother’s own submissions (and in the absence of any evidence from the Mother), in my view (but without making any formal finding), this would suggest that (a) the Mother is comfortable with the child going to the Father, and (b) the child is comfortable with the Father. 

13. The Father says that the Mother knows his address.  There does not appear to be any relevant challenge to this contention.

14. The Father shall be required to telephone the Mother in the event that the child becomes unusually distressed.

15. The Mother is to provide the Father with relevant contact details.

16. A not insignificant consideration in this further interim contest is the fact that it is not disputed that the Father looks after his 5 year old son Y very regularly, and that he has done so for most if not all of Y’s nascent, fledgling life.  Given the range of accusations levelled at the Father in the current matter, I simply observe (nothing more) that it is difficult to see how neglect or incapacity in the care of a child, X, (as submitted by the Mother) can be sustained in the light of the Father’s ongoing care of his five year old son Y.

17. For these reasons, the orders made on 27^th February 2015 were and are considered to be in the best interests of X.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Neville

Associate: 

Date:       17 March 2015