ELMANS & SHARBER
[2020] FCCA 3529
•22 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELMANS & SHARBER | [2020] FCCA 3529 |
| Catchwords: FAMILY LAW – Interim parenting – best interests of child – Orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 62G |
| Cases cited: Goode & Goode (2006) FLC 93-286 Marvel & Marvel [2010] FamCAFC 101 Eaby & Speelman [2015] FamCAFC 104 Banks & Banks [2015] FamCAFC 36 |
| Applicant: | MR ELMANS |
| Respondent: | MS SHARBER |
| File Number: | PAC 2058 of 2020 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 12 October 2020 |
| Date of Last Submission: | 12 October 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 22 December 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Ms De Vere - Mcphee Kelshaw |
| Solicitors for the Respondent: | Ms Breust - Scb Legal Pty Ltd |
| Solicitors for the Independent Children's Lawyer: | Mr MacDiarmid - Mark Macdiarmid Family Law Specialist |
ORDERS PENDING FURTHER ORDER
All previous Orders in respect to the Child X born in 2018 (the child) spending time with and communicating with the Father, and in relation to supervision and changeover, are discharged.
The Child shall spend time and communicate with the Father as follows:
(a)For a period of 2 months from the date of these Orders, each Tuesday from 5 PM until 7 PM, and each Sunday from 9 AM to 4PM;
(b)Thereafter, until the Child’s third birthday, each Tuesday from 5PM until 7 PM, and each Sunday from 9 AM to 5 PM;
(c)From the Child’s third birthday for 3 months, each Tuesday from 5PM until 7 PM, and each alternate weekend from 2 PM Saturday until 2 PM Sunday;
(d)Thereafter, for 3 months, each alternate weekend from 9 AM Saturday until 5 PM Sunday, and each Tuesday from 5 PM until 7PM;
(e)Thereafter, each alternate weekend from 6 PM Friday until 5 PM Sunday, and each Tuesday from 5 PM until 7 PM;
(f)In relation to Christmas:
(i)from 12 PM until 4 PM on Christmas Eve 2020;
(ii)from 2021 and until the Child commences school, from 2 PM Christmas Day until 7 PM Christmas Day, and from 10 AM Boxing Day until 6 PM Boxing Day;
(iii)after the Child’s third birthday, from 2 PM Christmas Day until 2 PM Boxing Day.
(g)In relation to Father’s Day, from 9 AM until 5 PM on Father’s day.
(h)In relation to communication between the Child and the Father, the Father shall be entitled to communicate with the Child via FaceTime each Thursday at such times as agreed in writing between the parties and in default of such agreement from 4 PM to 4:30 PM and for the purpose of implementing this Order:
(i)the Mother shall ensure her mobile telephone is charged and has credit and is free for use by the Child;
(ii)the Father shall telephone the Mother’s mobile and the Mother shall assist the Child to answer the telephone and to initiate FaceTime with the Father.
Each parent shall be entitled to receive information from the Child’s preschool, or school as follows:
(a)copy of all school reports and school photo order forms for the Child;
(b)notifications of school activities that the other parent may decide to attend, such activities being those that parents are ordinarily entitled to or invited by the school to attend;
(c)notification of parent/teacher nights.
In relation to changeover:
(a)The Father may nominate either of his parents to conduct changeover on his behalf;
(b)If changeover is not at daycare, then the changeover location shall be Hungry Jacks at B Street, Suburb C.
A Family Report be prepared under section 62G of the Family Law Act1975.
IT IS NOTED that publication of this judgment under the pseudonym Elmans & Sharber is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2058 of 2020
| MR ELMANS |
Applicant
And
| MS SHARBER |
Respondent
REASONS FOR JUDGMENT
Introduction
This Interim Hearing relates to the Child X born in 2018.
On 7 July 2020, by consent and pending an Interim Hearing, interim Orders were made that the Child spend time with the Father each Tuesday from 5 PM to 7 PM, and time on Sundays, now being each Sunday from 9 AM to 3 PM. Those Orders provided that the Child’s time with the Father was to be supervised by either the paternal grandmother or the paternal grandfather.
Proposals
The Father’s proposals are set out in his Initiating Application filed 5 May 2020, in addition to an additional proposed injunction set out in his Case Outline.
Essentially, in relation to spending time with the Child, the Father seeks to spend unsupervised time with her on a graduating basis leading to regular overnight time.
The Mother’s proposals are set out in her Response filed 10 July 2020.
The Mother essentially seeks Orders that the Child’s time with the Father be supervised by the paternal grandparents for about nine months, and, provided the Child’s time with the Father is progressing well, the Child spend increasing daytime time with the Father, unsupervised, leading to overnight time upon the Child commencing school and increasing on a graduated basis.
The ICL supported the Father’s proposed Orders.
Material relied upon
The Mother relied upon the documents set out on page 4 of her Case Outline dated 11 October 2020 and that Case Outline.
The Father relied upon the documents set out on pages 4 and 5 of his Case Outline dated 8 October 2020 and that Case Outline.
The following Exhibits were relied upon:
a)the Mother’s Tender Bundle;
b)the Father’s subpoena Tender Bundle.
Evidence
The Father was born in 1991.
The Mother was born in 1995.
The parties commenced cohabitation in 2017.
The Mother and Child live with the maternal grandparents and the Mother’s brother.
The Mother alleges that she has always kept the Father up-to-date in relation to the Child’s health, development and well-being.
The Father alleges that the Mother returned to work full-time a few months after the Child’s birth, as an employee in a business. The Father alleges that he cared for the Child on weekends when the Mother was working in the business. He alleges that he changed the Child’s nappies, bathed her, dressed her, gave her bottles, put her down for naps and generally cared for her.
Prior to the parties’ separation the paternal grandmother had been caring for the Child each alternate Friday at the paternal grandparent’s home in Suburb D.
The Mother alleges that the Father sexually assaulted her on 17 April 2019.
The parties separated on 21 April 2019. The Mother returned to live with her parents at Suburb E and the Father moved to his parents at Suburb D.
The Father alleges that between about April 2019 and September 2019 he spent one day per weekend with the Child. He alleges that most of the time was spent at his parent’s home. Again, he alleges that he cared for the Child in a practical sense. The Mother alleges that the Father’s commencement of spending time with the Child after separation was on about 19 May 2019.
The Father alleges that in early August 2019 he commenced living at a villa in Suburb C. He alleges that the villa has three bedrooms. He alleges that the Child is familiar with this home as she has spent time with him there on multiple occasions during both 2019 and 2020.
The Father alleges that in about mid-September 2019, the Mother changed the care arrangements for the Child; the Mother allegedly advised the Father that instead of spending a full day with the Child on the weekend he could only spend 4 hours with the Child on one day of the weekend plus 2 hours after work on Tuesdays and Thursdays each week. The Mother alleges that following speaking with three professionals, it was agreed that the Child could be suffering from separation anxiety because she was so little and only seeing the Father once a week for a long period of time. She alleges that these three professionals suggested that the parties break up the eight hours over a week.
The Father alleges that in October 2019, he commenced a relationship with another woman named Ms G.
The Father alleges that between January and March 2020 the Mother facilitated FaceTime between the Child and the Father.
The Father alleges that in February 2020 the Mother stopped the Child’s time with him completely.
On 27 February 2020 the Mother caused the Child to be seen by an Educational and Developmental Psychologist, Ms H. The Mother alleges that the Child had been taken to the Psychologist because of her concern about the Child’s anxiety. The report of the Psychologist dated 28 February 2020 to the GP states inter alia that the Psychologist, the Mother and the maternal grandmother, discussed strategies to support the Child “through the changes”. The Psychologist stated, inter alia, “it appeared that they (the Mother and the maternal grandmother) are already implementing many supports and strategies to assist her (the Child). We discussed some supports that would assist (the Child) when she is spending time with her Father (e.g. similar routine, engaging in favoured activities) and (the Mother) was going to text (the Child’s) Father with the suggestions.” The Court interpolates at this point that there appears to be no formal diagnosis made by the Psychologist of separation anxiety in the Child.
The Father alleges that the Mother made a statement to the police on 2 March 2020 that the Father had allegedly sexually assaulted her on 17 April 2019.
The Father alleges that in April 2020 the Mother ceased facilitating FaceTime between the Child and the Father.
On 7 July 2020, by consent and pending an Interim Hearing, Orders were made that the Child spend time with the Father each Tuesday from 5 PM to 7 PM, and time on Sundays, now being each Sunday from 9 AM to 3PM. Such time was ordered to be supervised by either the paternal grandmother or the paternal grandfather.
The Father alleges that since he has resumed spending time with the Child in July 2020 he has not observed any signs of separation anxiety on the Child’s part. He alleges that the Child separates from the Mother happily and comes to him happily.
The Father alleges that he has spent most of the time since 12 July 2020 at his home with the Child. He alleges that on Tuesdays the paternal grandmother cooks dinner while he plays with the Child and then they eat together before going to changeover. The Father alleges that on Sundays he and the Child play with toys together, dance together, go for walks, and the Child rides her bike. They have lunch together.
The Father alleges that his employer has given him permission to leave work at exactly 4 PM on Tuesdays so that he can spend time with the Child after work on Tuesdays. The Father alleges that the Child is very tired when he picks her up at 5 PM and usually falls asleep on the way to changeover at 7 PM.
The Father alleges that the paternal grandmother is a carer. He alleges that she works 4 days per week during the school term, Monday to Thursday, and does not work Fridays. The Father alleges that he has a close and loving relationship with his family. The Father alleges that his parents and sister are available to assist him with care for the Child if required. The Mother alleges that the paternal grandparents and the Father’s sister are often away on overseas trips.
In 2020 the Mother gave birth to a Child of her relationship with Mr J.
The Mother is presently not in paid employment. She is looking after the Child full-time and studying as well. The Child will be attending two days per week at Childcare, on Tuesdays and Fridays. The Mother alleges that from July 2020 the Child will be doing dance lessons on Mondays and Saturdays.
The Child was born 8 weeks premature, and suffers from asthma.
The Mother has suffered from depression and anxiety historically which she alleges is well-managed by her.
The Mother alleges that the parties’ separation was due to domestic violence and sexual assault which is being dealt with by the NSW police.
The Mother alleges that the Father often lost his temper easily during the relationship.
The Mother alleges she always kept the Father “in the loop” when it came to the Child’s health.
The Father alleges that between January and March 2020 the Mother continued to assist the Child to FaceTime with the Father. The Father alleges that the Child usually interacted with him for about 10 minutes each time before she lost interest.
As to the Father’s proposed interim Order that the Child commence spending overnight time with him after three months, the Mother alleges that she is concerned that the Father’s temper is a risk to the Child in these circumstances; in this context the Mother alleges that the Child can be difficult at night when she screams in her sleep and has nightmares. The Mother alleges that such overnight time will upset the Child’s routine and with a history of alleged domestic violence and sexual assault upon the Mother, and the investigations on foot, she does not feel comfortable with this.
The Mother states that when the Child is old enough, and depending on how her times progressing, she agrees that the Father can spend time with her each alternate weekend. She states that she would prefer that the Father also spend time with the Child during the week for consistency given her alleged separation anxiety.
At the Interim Hearing, the Mother’s solicitor informed the Court that the Mother does not maintain that the Father has sexually abused the Child.
The Mother alleges that as the Child got older, she started working full-time, 38 hours per week.
Relevant legal principles
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and Orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting Orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a Child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their Child or Children. Interim parenting Orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an Interim Hearing is disregarded at the final hearing (s 61DB).
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an Interim Hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning Children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on Children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of Children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the Child, and for those issues to not be ignored.
The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 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”.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to Children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a Child, a Court must regard the best interests of the Child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the Child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In this context, the Court refers to the above decision of Banks & Banks [2015] FamCAFC 36.
The Best Interests of the Children
Section 60CC Considerations
Subsection (2a): the benefit to the Child of having a meaningful relationship with both of the Child’s parents: a primary consideration
The Child has a meaningful relationship with each parent and would benefit from a continuance of those relationships.
Should the Child spend time and communicate with the Father as follows there is a reasonable prospect that the Child’s meaningful relationship with the Father can be not only maintained but enhanced:
a)For a period of 2 months from the date of these Orders, each Tuesday from 5 PM until 7 PM, and each Sunday from 9 AM to 4PM;
b)Thereafter, until the Child’s third birthday, each Tuesday from 5PM until 7 PM, and each Sunday from 9 AM to 5 PM;
c)From the Child’s third birthday for 3 months, each alternate weekend from 2 PM Saturday until 2 PM Sunday, and each Tuesday from 5 PM until 7 PM;
d)Thereafter, for 3 months, each alternate weekend from 9 AM Saturday until 5 PM Sunday, and each Tuesday from 5 PM until 7PM;
e)Thereafter, each alternate weekend from 6 PM Friday until 5 PM Sunday, and each Tuesday from 5 PM until 7 PM;
f)In relation to Christmas:
i)from 12 PM until 4 PM on Christmas Eve 2020;
ii)from 2021 and until the Child commences school, from 2 PM Christmas Day until 7 PM Christmas Day, and from 10 AM Boxing Day until 6 PM Boxing Day;
iii)after the Child’s third birthday, from 2 PM Christmas Day until 2 PM Boxing Day.
g)In relation to Father’s Day, from 9 AM until 5 PM on Father’s day.
h)In relation to communication between the Child and the Father, the Father shall be entitled to communicate with the Child via FaceTime each Thursday at such times as agreed in writing between the parties and in default of such agreement from 4 PM to 4:30 PM and for the purpose of implementing this Order:
i)the Mother shall ensure her mobile telephone is charged and has credit and is free for use by the Child;
ii)the Father shall telephone the Mother’s mobile and the Mother shall assist the Child to answer the telephone and to initiate FaceTime with the Father.
Such proposed Orders above are gradual and conservative. Such Orders provide for the continuation of the weekly Tuesday afternoon time which the Court regards as important for the development of the Child’s meaningful relationship with the Father. Such Orders provide for overnight time not commencing until the Child turns three years.
The Court is concerned that the Mother’s proposed Orders are too cautious, in particular, in relation to the commencement of overnight time, and will inhibit the timely development of the Child’s meaningful relationship with the Father.
As discussed below under the need to protect primary consideration, the Court is of the view that supervision is not necessary.
The Court is of the view that the Mother’s proposed reduction of the Child’s Sunday time with the Father, albeit with a proposed graduated increase in such time on the Sunday, is not necessary to alleviate any alleged anxiety in the Child, and the Court refers to its discussion below under the need to protect primary consideration.
As to the Mother’s proposed Thursday afternoon time, the Court has a concern that the Father may not be able to organise such time with his employer.
The Court gives significant weight to this meaningful relationship primary consideration.
Subsection (2b): the need to protect the Child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Mother alleges that she was the victim of domestic violence perpetrated by the Father and that most of the alleged domestic violence involved the Father’s controlling and manipulative behaviour. For the Father’s part, he significantly denies such alleged violence.
One example the Mother alleges related to an incident involving the parties’ dogs. The Mother alleges, inter alia, she gave the dogs their food at the back door and a dogfight erupted. After the dogs had been separated, the Father allegedly began yelling at the Mother, verbally abusing her whilst allegedly the Father raised his fist at the Mother.
In relation to the above incident, the Court refers to the Father’s counter allegations, in which he, inter alia, denies raising his fist at the Mother or standing over her. The Father does admit the possibility that in the heat of the moment he swore at the Mother alleging that the Mother had created a situation in which one dog was certain to attack the other dog. The Court observes that there are no ADVOs between the parties.
Another example relates to the Mother’s allegations that the Father would yell at her for spending small amounts of money on herself and/or the Child, even if she was buying necessities.
A further example is the Mother’s allegation that once the parties moved into their own house, the Father started to get annoyed with the Mother when she wanted to see her family. The Mother alleges that the Father did not allow her to visit her Mother.
The Mother allowed the Father to spend time with the Child for certain periods, prior to the Child attending upon the Child Psychologist in late February 2020, despite her concerns as set out in her Affidavit, and which the Court takes into account.
The Father, for his part, alleges, inter alia, that from about November 2017 until separation in April 2019 the Mother had access to a bank account into which his wages were deposited. He alleges that the Mother withdrew funds from that account. He alleges that he did not complain about the Mother spending money on herself or the Child from this bank account, either before or after the Mother began contributing to that account with her own earnings as an employed tradesperson.
The Father alleges that for most of the period in which the parties cohabited, the Mother spent time with the maternal grandmother at least every third day, but often every day. He alleges that he observed the maternal grandmother become very angry if she felt excluded from the Mother’s life or attention even in a minor way. The Father alleges that during 2018/2019 the parties argued about what the Father perceived as the maternal grandmother’s controlling behaviour in relation to the Mother. The Father alleges that he never told the Mother not to spend time with the maternal grandmother or her Father or brother.
In relation to the Mother’s allegations of family violence, including alleged coercive and controlling family violence, again the Court observes that there is an inconsistency between the substance of these allegations and the Mother’s preparedness to facilitate unsupervised time between the Child and the Father following the parties’ separation in April 2019 up until February 2020. On the material before the Court, the Court is not satisfied that there is an unacceptable risk of the Child being exposed to family violence if spending unsupervised time with the Father, including overnight time.
In relation to the Mother’s allegations of family violence, the ICL’s proposed interim restraining Orders to apply to each party, without admissions, relating to, inter alia, the Father completing the 123 Magic Course, non-physical discipline of the Child and non-denigration, will minimise the risk of conflict between the parties and the risk of the Child being exposed to any significant risk of harm.
The Mother alleges and contends that the Father lacks parenting capacity for the Child. The Court refers to the Mother’s allegations in this context. For the Father’s part, the Court refers to his counter allegations in this context. He alleges that historically he has provided significant practical care for the Child, including post separation for significant periods. He alleges that on 9 July 2020 he received from the Mother a document called “X’s Routine” which included details of her diet and the type of wipes, cream and nappies to use with the Child. When he began spending time with the Child again on 12 July 2020 he alleges that he complied with that document to the best of his ability. In this context, further, the Court refers to the Father’s historical time spent with the Child and to date. The Court refers to the generally positive developmental assessment reports for the Child of 11 October 2019 and 5 December 2019 from the Region K NICU. The Court is not satisfied, on the material before the Court, that there is a significant risk that the Child will be exposed to neglect if spending unsupervised time with the Father, including overnight time.
Again, at the Interim Hearing, the Mother’s solicitor submitted to the Court that the Mother does not maintain that the Father has sexually abused the Child. The Mother submits nevertheless that the Child was exposed to family violence, and neglected, in the context of the allegation that the Mother was sexually assaulted on 17 April 2019. The Father denies having sexually assaulted the Mother. He denies having ever touched the Child in any sexual way; the Court refers to the Father’s allegations in this context. The Father alleges, for example, that the Child was asleep during which time the parties had consensual sexual relations. On 17 April 2019 the Child was aged about 9 months. Again, the Court refers to the generally positive developmental assessment report for the Child of 11 October 2019 and 5 December 2019 from the Region K NICU. The Court also takes into account in this context the allegations of Ms L in her Affidavit filed 6 July 2020. The Court is not satisfied that there is any unacceptable risk of the Child being exposed to possible sexual assault or neglect on the part of the Father if he spends unsupervised time with her, including overnight time, as proposed by the Father.
The Mother alleges that she has significant concerns about the Child in the context of alleged separation anxiety. Again, there is no significant evidence before the Court that the Child has received such a diagnosis. The Psychologist, in February 2020, suggested possible strategies to the Mother and maternal grandmother to assist the Child in relation to spending time with the Father. Again, the Psychologist had stated in her report to the GP, “We discussed some supports that would assist (the Child) when she is spending time with her Father (e.g. similar routine, engaging in favoured activities) and (the Mother) was going to text (the Child’s) Father with the suggestions.” In this context, and again, the Father alleges that he has received from the Mother a document called “X’s Routine” which included details of her diet and the type of wipes, cream and nappies to use with the Child. He alleges that when he began spending time with the Child again on 12 July 2020 he complied with that document to the best of his ability.
In relation to this issue of alleged anxiety in the Child, the Court also takes into account the paternal grandmother’s allegations that she has seen no signs of anxiety of any kind in the Child, and the allegations of the paternal grandfather that the Child is a happy bubbly Child who spends most of her time smiling.
On the material before the Court, the Court is of the view that there is a reasonable prospect that should the Child now begin to spend time with the Father in accordance with the Court’s proposed Orders as discussed above under the meaningful relationship primary consideration, she should not experience significant anxiety whether at changeovers or when spending time with the Father.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the Child and any factors (such as the Child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the Child’s views
The Child is too young to express a view.
(b) The nature of the relationship of the Child with each of the Child’s parents; and other persons (including any grandparent or other relative of the Child)
The Child would appear to have positive relationships with the grandparents.
(c) The extent to which each of the Child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the Child; and to spend time with the Child; and to communicate with the Child
Both parents would appear to have sought to take such opportunities.
(ca) The extent to which each of the Child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the Child
Both parties would appear to have fulfilled their obligations to maintain the Child, when the Child is in their respective care.
(d) The likely effect of any changes in the Child’s circumstances, including the likely effect on the Child of any separation from either of his or her parents; or any other Child, or other person (including any grandparent or other relative of the Child), with whom he or she has been living
The Court refers to its discussions above under the need to protect primary consideration. There is a reasonable prospect, based on the material before the Court, that the Child’s meaningful relationship with the Mother should not be detrimentally affected should the Court make Interim Parenting Orders in accordance with the Court’s proposals as discussed above under the meaningful relationship primary consideration.
(e) The practical difficulty and expense of a Child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the Child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not applicable.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the Child and of either of the Child’s parents, and any other characteristics of the Child that the Court thinks are relevant
Not applicable.
(h) If the Child is an Aboriginal Child or a Torres Strait Islander Child: the Child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting Order under this Part will have on that right
Not applicable.
(i) The attitude to the Child, and to the responsibilities of parenthood, demonstrated by each of the Child’s parents
Subject to the Court’s discussion above under the need to protect primary consideration, each parties’ attitudes towards the Child including their responsibilities of parenthood would appear to be satisfactory.
(j) Any family violence involving the Child or a member of the Child’s family
The Court refers to its discussion above under the need to protect primary consideration.
(k) If a family violence Order applies, or has applied, to the Child or a member of the Child’s family – any relevant inferences that can be drawn from the Order, taking into account the following: the nature of the Order; the circumstances in which the Order was made; any findings made by the Court in, or in proceedings for, the Order; any other relevant matter
Not applicable.
(l) Whether it would be preferable to make the Order that would be least likely to lead to the institution of further proceedings in relation to the Child
These are Interim Parenting proceedings.
m) Any other fact or circumstance that the Court thinks is relevant
The ICL proposes certain Orders as set out in his Proposed Minute of Orders. It will be in the best interests of the Child to make such Orders and the Court refers to its discussion above under the need to protect primary consideration.
As to the Father’s proposed restraining Order against the Mother relating to permitting or encouraging the Child to refer to any person other than the Father as daddy or dad or any derivative thereof, the Court is of the view that the material presently before the Court is insufficient to enable it to make such proposed Order.
Parental responsibility
It will not be in the best interests of the Child to make any express Order for parental responsibility at this interim stage. There would appear to be no significant major decision looming for this young Child.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the Children to make the following interim Orders:
(1)All previous Orders in respect to the Child spending time with and communicating with the Father, and in relation to supervision and changeover, are discharged.
(2)The Child shall spend time and communicate with the Father as follows:
(a)For a period of 2 months from the date of these Orders, each Tuesday from 5 PM until 7 PM, and each Sunday from 9 AM to 4 PM;
(b)Thereafter, until the Child’s third birthday, each Tuesday from 5 PM until 7 PM, and each Sunday from 9 AM to 5 PM;
(c)From the Child’s third birthday for 3 months, each Tuesday from 5 PM until 7 PM, and each alternate weekend from 2PM Saturday until 2 PM Sunday;
(d)Thereafter, for 3 months, each alternate weekend from 9 AM Saturday until 5 PM Sunday, and each Tuesday from 5 PM until 7 PM;
(e)Thereafter, each alternate weekend from 6 PM Friday until 5PM Sunday, and each Tuesday from 5 PM until 7 PM;
(f)In relation to Christmas:
(i)from 12 PM until 4 PM on Christmas Eve 2020;
(ii)from 2021 and until the Child commences school, from 2PM Christmas Day until 7 PM Christmas Day, and from 10 AM Boxing Day until 6 PM Boxing Day;
(iii)after the Child’s third birthday, from 2 PM Christmas Day until 2 PM Boxing Day.
(g)In relation to Father’s Day, from 9 AM until 5 PM on Father’s day.
(h)In relation to communication between the Child and the Father, the Father shall be entitled to communicate with the Child via FaceTime each Thursday at such times as agreed in writing between the parties and in default of such agreement from 4 PM to 4:30 PM and for the purpose of implementing this Order:
(i)the Mother shall ensure her mobile telephone is charged and has credit and is free for use by the Child;
(j)the Father shall telephone the Mother’s mobile and the Mother shall assist the Child to answer the telephone and to initiate FaceTime with the Father.
(3)Each parent shall be entitled to receive information from the Child’s preschool, or school as follows:
(a)a copy of all school reports and school photo Order forms for the Child;
(b)notifications of school activities that the other parent may decide to attend, such activities being those that parents are ordinarily entitled to or invited by the school to attend ;
(c)notification of parent/teacher nights.
(4)In relation to changeover:
(a)The Father may nominate either of his parents to conduct changeover on his behalf ;
(b)If changeover is not at daycare, then the changeover location shall be Hungry Jacks at B Street, Suburb C.
(5)A Family Report be prepared under section 62G of the Family Law Act1975.
I certify that the preceding ninety one (91) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 22 December 2020
Key Legal Topics
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Family Law
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