Firentes and Teung

[2013] FamCA 974

FAMILY COURT OF AUSTRALIA

FIRENTES & TEUNG [2013] FamCA 974

FAMILY LAW – INTERIM PARENTING – Where the child lives with the father – What time the child should spend with the mother on an interim basis – Allegations of family violence – Allegations of maltreatment of the child – Whether such allegations cannot be determined on an interim basis and await the testing of the evidence at final hearing

Family Law Act 1975 (Cth)

Collu & Rinaldo [2010] FamCAFC 53
Goode and Goode (2006) FLC 93-286
Marvel & Marvel (No. 2)[2010] FamCAFC 101; (2010) 43 Fam LR 348
Mazorski & Albright[2007] FamCA 520
McCall & Clark (2009) FLC 93-405
MRR v GRR (2010) 240 CLR 461

APPLICANT: Mr Firentes

RESPONDENT: Ms Teung

INDEPENDENT CHILDREN’S LAWYER: Ms Ryan

FILE NUMBER: PAC 3617 of 2010

DATE DELIVERED: 13 December 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 9 December 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented Litigant

SOLICITOR FOR THE RESPONDENT: Mr Taylor of Gonzalez & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Ryan of Legal Aid NSW Parramatta

Orders

1. That the interim Orders made on 25 February 2013 be discharged.

2. That the father and mother have equal shared parental responsibility for the child B born on … 2008.

3. That the child shall live with the father when the child is not otherwise living with the mother as provided for hereunder.

4. That the child shall live with the mother as follows:

   a)During school terms in a two (2) week cycle:

   i)In the first week of such cycle, from after school Tuesday until the commencement of school on Wednesday commencing on the first Wednesday after the resumption of school Term 1, 2014 and from after school Friday until 4.00 pm Saturday commencing on the first Saturday after the resumption of school Term 1 2014; and

   ii)In the second week of such cycle, from after school Tuesday until the commencement of school on Wednesday commencing on the second Tuesday after the commencement of school term in    Term 1, 2014 and from after-school Friday until 4.00 pm Sunday commencing on the second Friday after the resumption of school in Term 1, 2014.

   b)For one half of the Term 1, 2 and 3 school holiday periods, and for this purpose, such period will commence at 10.00 am on the first day of such holiday periods.

   c)Otherwise:

   (i)From 5.00 pm on Friday until 5.00 pm on Saturday on alternate weekends commencing 20 December 2013;

   (ii)From 3.00 pm on Christmas Day until 3.00 pm on Boxing Day;

   (iii)From 9.00 am on 29 December 2013 until 9.00 am on 2 January 2014; and

   (iv)From 9.00 am on 18 January 2014 until 9.00 am on 23 January 2014.

   d)At such other times as the parties may agree in writing.

5. That the father and mother, within one (1) month from the date of these Orders, do all things necessary so as to in enrol in the Keeping Contact Program provided by C Counselling, and do all things necessary to each complete that program as soon as practicable, and upon completion, provide to the Independent Children’s Lawyer a certificate attesting as to their completion of the program and the sessions attended by each of them.

6. That for the purposes of changeovers, where not to or from school, the father or his agent known to the child shall facilitate the child being delivered to the mother’s residence at the commencement of the child’s time with the mother and collected from the mother’s residence at the conclusion of the child’s time with the mother.

7. That the mother and father ensure that the child is supervised at all times by a responsible adult when in their respective care.

8. That the mother and father be at liberty to attend on such occasions as are significant to the child’s welfare, schooling, sport, religious education and extracurricular activities where the attendance of either or both parents is to be reasonably expected.

9. Pursuant to section 62G (2) of the Family Law Act 1975 the parties and the child/children of the relationship attend upon a family consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and for that report to consider in particular:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents;

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence including an assessment of any such risk that the child may be exposed to and the impact both in the short term and long term in the event that the child is exposed to abuse, neglect or family violence;

   c)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   i.either of the child’s parents; or

   ii.any other child or other person (including any grandparent or other relative of the child including sibling or step sibling) with whom the child has been living

   including an assessment of the nature of the child’s present and prospective attachments in terms of the orders sought by each of the parties;

   d)The capacity of:

   i.each of the child’s parents; and

   ii.any other person (including any grandparent or other relative of the child)

   to provide for the needs of the child, including emotional and intellectual needs and any circumstances that may diminish that capacity by reason of physical disability mental disability or risk of abuse;

   e)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 family reporter thinks are relevant;

   f)If the child is an Aboriginal Child or a Torres Strait Islander child:

   i.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

   ii.the likely impact any proposed parenting order will have on that right;

   g)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   h)Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child;

   i)Any other fact or circumstances that in the opinion of the Family Reporter is relevant.

10. That the Family Consultant is granted leave to inspect all documents produced in these proceedings on subpoena.

11. That the matter be adjourned to a date to be fixed before the Docket Registrar, for the purpose of releasing the Family Report.

12. That following the release of the Family Report by a Registrar, the matter be relisted for a judicial case management hearing as soon as practicable for further directions.

13. Following release of the Family Report and prior to the re-listed directions date each of the parties file and serve a minute of final orders sought by them as to parenting and both parties be in attendance in person on the re-listed directions date.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3617 of 2010

Mr Firentes

Applicant

And

Ms Teung

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

The proceedings  

1. These are further interim parenting proceedings in relation to the child B born in 2008. Previous interim Orders have been made in relation to the child.

2. On 4 December 2012, in the then Federal Magistrates Court of Australia, interim Orders were made by consent that, in summary, provided for:

   a)that the child to live with the father;

   b)that the child to spend time with the mother each Wednesday from after child care/school until before childcare/school on Thursday commencing on 23 January 2013 and each Friday from after childcare/school until   11.00 am Sunday to commence on 7 December 2012 with the telephone contact or Skype contact each Monday and Thursday at 7:30 pm; and

   c)that the child’s name be removed from the Airport Watch List for the period from 12 December 2012 to 21 January 2013.

3. On 25 February 2013 further interim consent Orders were made in relation to the child that, in summary, provided for:

   a)that the father and mother to have equal shared parental responsibility for the child;

   b)that the child live with the father when he is not otherwise residing with the mother; and

   c)that the child live with the mother during school terms from each Wednesday after school until the commencement of school on Thursday and each Friday from after-school until 4.00 pm on the following Saturday, and that the child spend similar periods of time with the mother during school holidays.

4. Subsequently, on 25 July 2013, the proceedings were transferred from the Federal Circuit Court of Australia to this Court.

5. On 6 August 2013 the father filed an Amended Application in a Case. In that application he sought orders, in summary, that provided for:

   a)that the interim Orders made on 25 February 2013 to be suspended from 14 December 2013 to 20 January 2014 for the purposes of the travel with the child to Country D;

   b)that the father be permitted to remove the child from the Commonwealth of Australia for the purposes of such travel;

   c)that the child’s name be removed from the Airport Watch List for the purposes of such travel;

   d)that upon the child’s return on 20 January 2014 the parties be restrained from removing the child from the Commonwealth of Australia and the child’s name be restored to the Airport Watch List; and

   e)that the interim Orders made on 25 February 2013 resume from 20 January 2014, and that the child spend make up time with the father as set out in an attached schedule.

6. On 29 August 2013 the mother filed a Response to the father’s Application in a Case seeking orders that, in summary, provide:

   a)that the Orders made on 25 February 2013 be discharged;

   b)that the father and mother have equal shared parental responsibility;

   c)that the child live with the father when he is not otherwise living with the mother;

   d)that the child live with the mother during school terms from after school Tuesday until the commencement of school on Wednesday each week and from after school Friday until 4.00 pm Saturday on the first weekend and from after school Friday until 4.00 pm Sunday on the second weekend in a fortnightly cycle;

   e)that the child live with the mother for one half of the mid-year school holiday periods;

   f)that the child live with the mother during the Christmas school holiday period 2013/2014 from 28 December 2013 to 20 January 2014; and

   g)that the mother be permitted to travel with the child to Country E between 28 December 2013 and 20 January 2014 and that, upon the child’s return, the parties be restrained from removing the child from the Commonwealth of Australia and the child’s name be restored to the Airport Watch List.

7. The father’s Application in a Case came before a Registrar on 3 September 2013 and the proceedings were adjourned to 9:30 am on 11 November 2013. Otherwise, the parties were ordered to attend intake events for the Child Responsive Program report to be prepared on 14 November 2013.

8. The proceedings came before the Court on 11 November 2013 and were adjourned to await the release of the Children and Parents Issues Assessment report.

9. Subsequent to release of that report, the matter again came before the Court on 9 December 2013.

10. On 9 December 2013 the proceedings came before the Court for interim hearing and the Court made the following Orders:

    a)that the father’s application to travel overseas with the child over the Christmas/New Year period be dismissed; and

    b)that otherwise the proceedings be adjourned to a date to be fixed for the delivery of reserved Judgment.

Background

1. The father is aged 55 and was employed in the service industry. The mother is aged 28 and work in information technology.

2. The parties cohabited from the date of marriage in 2006 until separation on 25 January 2009, being just over 2 years.

3. The child B is the only child of the parties’ relationship.

4. The parties met in Country E in 2006 and the mother came to Australia in October 2006.

5. At the time of separation on 25 January 2009 the mother left the father’s home with her mother, leaving the child in the father’s care. The parties were divorced on a joint application for divorce on 5 August 2010. A divorce order was made on 7 October 2010.

6. Subsequent to separation and on 8 April 2011 the father remarried in Country D. There is one child of that marriage born in 2013. The father’s new wife and child reside in Country D and the father is awaiting the outcome of a visa application for his new wife and child to come to Australia.

7. The father asserts that the mother has said to him that the only reason that she married him and had a baby was to obtain a visa permitting her to reside in Australia.

8. The husband resigned from his employment in February 2009 to care for the child the child. The father has also residing with him the two children of a previous marriage – Mr F, presently aged 20, and Mr G, presently aged 19. His previous wife unfortunately died of breast cancer in 2005.

9. Following the parties’ separation, the mother saw the child about once a month. In October 2009 the father, with the mother’s assistance, placed the young child in a day care arrangement that facilitated his return to some employment.

10. In June 2012 the parties attended mediation at a family relationship centre and entered into a parenting plan that provided for the child to live with the father and for the mother to have contact with the child from 11.00 am Saturday until 11.00 am Sunday each week from June 2012 for a three month period.

11. The father travelled overseas to Country D with the child with the mother’s consent in late December 2012 and returned on 21 January 2013.

12. The child commenced schooling at H School in late January 2013.

13. The mother complains that the father has been obstructive in relation to her attempts to spend substantial and significant time with the child.

The Child’s Responsive Program Report

1. On 25 November 2013 a Children and Parents Issues Assessment report was prepared by Family Consultant Mr I.

2. The Family Consultant recommended that the parties attend an external agency for an intensive post-separation parenting program and that the matter be listed for a Less Adversarial Trial.

3. The report noted the key issues as follows:

   a)who the child is to live with and what time he is to spend with each of his parents;

   b)the most suitable arrangements for parental responsibility of the child;

   c)the mother’s allegation that the father had engaged in family violence behaviour towards her and exposed the child to such behaviour;

   d)the mother and father having given differing accounts as to when they separated and the amount of time the mother has spent with the child since separation, and the making of interim Orders in February 2013;

   e)the father reported a range of significant emotional and behavioural problems for the child, which he said had developed since the child had started to spend overnight time with the mother; and

   f)the father’s allegations regarding maltreatment of the child by the mother.

4. The Family Consultant engaged with the child. The consultant explored the child’s understandings of his feelings and the child reported that he felt “happy” when he was at the mother’s home and that there were no times that he had felt scared or worried with either of his parents. The child indicated that his mother and father were friendly and spoke nicely to each other. When asked when he was at his mother’s home, the child said “six days with mum” and “six days with dad”.

5. The Family Consultant observed that the child separated from the father without distress. The father suggested to the consultant that the child did not know his mother and referred to the paternal aunt as his mother. When the child was taken to the childcare room where his mother was, he was asked who this was and he said “mum” and greeted his mother.

6. The Family Consultant reports as to the parties’ understanding of the child’s needs. The father alleged that the mother was not interested in the child but that she was using the child in relation to the financial aspects of the proceedings. The father further alleged the child had developed various problems after commencing to spend overnight time with the mother earlier in 2013. The father complained that the child did not do his homework when he was with the mother.

7. Of note is the father’s report that he had seen a psychiatrist or psychologist, that his doctor had referred him to Westmead Hospital and there the father had been told that the child’s problems were related to the parental conflict and would not resolve whilst the conflict persisted. The father made various allegations to the Family Consultant in relation to the nature and quality of the mother’s care of the child, including an allegation that the mother had placed a cake of soap into the child’s bottom because he was constipated.

8. As to the mother, the Family Consultant reports that she alleged that the father had yelled at her and threatened to kill her during the marriage. She further alleged that he had threatened to hunt her down if she were to leave the relationship. She believed that the father’s behaviour was as a consequence of grief arising from his previous wife’s death. The mother asserted to the Family Consultant that she had regularly seen the child post-separation, which she alleged, notwithstanding the joint divorce application, had occurred in mid-2010.

9. She said there were periods of six to eight weeks where she was not able to see the child when the father travelled overseas with the child.

10. The mother conceded that the father was a good father and that he looks after the child.

11. The mother informed the consultant that she had previously seen a counsellor and sought intervention for depression that related to the circumstances of the breakdown of her marriage. The mother denied that she was currently depressed.

12. In summary, the Family Consultant notes that the child appeared to recognise his mother and spoke positively about her. He spoke positively about his father and brothers. The parties, observed the consultant, gave very different accounts of the time the mother had spent with the child after separation and there were significant differences in their accounts regarding family violence and concerns for the child.

13. In conclusion, the Family Consultant proposed that the parents engage in a post-separation parenting program, specifically targeted to high conflict parents. The consultant identified the Uniting Care Keeping Contact Program as suitable.

The Nature of Interim Proceedings:

1. In Marvel & Marvel (No. 2)[2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the difficulties associated with making findings on contested 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.

The law

1. The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.

2. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.

6. The presumption does not apply where:

   a)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and

   c)if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

7. If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

8. In Goode (supra); the Full Court, comprised of (Bryant CJ, Finn and Boland JJ), discussed the application of the presumption in section 61DA to interim proceedings at [56]:

   In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections (2), (3) and (4).

9. The Full Court in Goode (supra) provided a “framework” as to how applications for parenting orders are to be determined. The High Court in    MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.

The Presumption

1. The Court is satisfied that in all circumstances of this matter the presumption should apply. The parties agreed in previous consent Orders that this should also be the case.

Best Interests of the child

1. As the Full Court referred in Collu & Rinaldo [2010] FamCAFC 53, as the Court turns to look at the best interests considerations set out in section 60CC, it should firstly consider the additional considerations:

The Additional Considerations: s 60CC(3)

1. The Court has had regard to each of the additional considerations set out in section 60CC(3) of the Act. The relevant considerations are as follows:

   (a) any views expressed by the child and any factors (such as the child's 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 of tender years and any expressed views would be given little weight, but observations by the Family Consultant reveal that the child has a warm relationship with the father and a relationship with the mother that involves an acknowledgement of her and an appreciation of his time with the mother.

   (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);

   As noted above, observations by the Family Consultant reveal that the child has a warm relationship with the father and a relationship with the mother that involves an acknowledgement of her and an appreciation of his time with her. The child also has a relationship with his half-siblings and it appears with both the extended paternal and extended maternal family. It is important to seek to maintain these relationships.

   (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;

   A consideration of the relevance of this factor awaits a full determination where the Court can make positive findings as to fact in relation to the allegations the parties make one against the other.

   (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 likely change in the child’s circumstances arises from the mother’s application to spend more expansive time with the child particularly in circumstances where the father plans to absent himself from Australia for his own purposes for a period of about one month over the Christmas break.  The evidence is indicative of the child being quite capable of spending more time with the mother during the father’s absence that is provided for in the current interim orders.

   (f) the capacity of each of the child's parents; and any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;

   Once again, an assessment of this factor awaits a consideration where the evidence of both parties can be tested. The child asserts no fears or reservations in the care of either parent. The father makes various allegations as to the nature of the mother’s care for the child whilst the child has been or is with her and provides various medical reports that he asserts support his contention, although the most recent of those reports are now some 10 months old. There is no linking of the reports to the mother’s time with the child by reference to the Court Orders, except for the father’s assertion. The father alleges that the child has exhibited signs of insect bites that have been the subject of medical treatment during 2013. However, the evidence does not assist the Court in making a finding that the child suffered these bites exclusively whilst in the care of the mother.

   (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;

   This factor is not a significant consideration, save to note that the child is still of tender years and that his relationship with his mother is to some extent still forming as a consequence of the circumstances that have been in place since the parties separation. It is important that the relationship be allowed to develop and provide to the child long-term security in his relationship with his mother.

   (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   A full assessment as to each of the parties in relation to this factor awaits final hearing and the Court’s ability to make determinations as to fact. However, it is clear that the parties remain in a significantly conflicted relationship and that it is imperative that they engage in post-separation counselling to address that issue. In the event that they do not then the future for the psychological development of this young child is problematic, at best. The Court proposes to make an order requiring the parties to enrol in and complete an appropriate parenting program.

   (j) any family violence involving the child or a member of the child's family;

   Both parties make allegations one against the other. Once again, the truth as to the circumstances of the parties’ relationship awaits a final determination.

   (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 proceedings involving parents in significant conflict. The Court proposes to make an order for a Family Report. In such a circumstance, the Court is unable to make orders in the context of these proceedings that are least likely to lead to the institution of further proceedings.

The Primary Considerations: s 60CC(2)

1. The primary considerations are:

   (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski & Albright[2007] FamCA 520; Brown J considered the ordinary definitions of the term “meaningful” and observed at [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 one. Quantitive 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. In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

3. It is important for this young child to be able to develop relationships which are positive, significant and valuable to him with both parents. This means a relationship free from parental conflict, with the child able to grow and develop in his relationship with each of his parents without interference or manipulation from the other. This consideration is indicative of orders providing that the child spends substantial and significant time with the mother whilst the parties await a final determination.

Section 60CC(2)(b) – need to protect

1. Whilst the father raises some protective concerns in relation to the child’s time with the mother, his evidence is neither conclusive of, nor supportive of, any foundation for such concerns.

2. The mother acknowledges that the father presents as a good father to the child and she has no protective concerns for the child whilst in his father’s care.

Section 65DAA

1. In light of there being an order for equal shared parental responsibility, the Court is required to give consideration to whether the child spending equal time with each of the parents is in the best interests of the child and reasonably practicable, and if so, to consider making an order for such equal time.

2. Having regard to the best interest considerations set out above, the Court is not satisfied that it is in the best interests of the child for there to be, at present, an equal time arrangement. The child’s relationship with the mother is regenerating and developing. In that circumstance the Court does not need to consider whether such an arrangement is practicable.

3. The Court is then required to consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and reasonably practicable.

4. Substantial and significant time is defined to include time that includes days that fall on weekends and holidays and days that do not fall on weekends or holidays and time that allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and/or parents.

5. The mother presently has mid-week and weekend time with the child that would meet the bare requirements of substantial and significant time.

6. The Court is satisfied, having regard to the best interest considerations, that orders providing for the mother to continue to have substantial and significant time with the child and such time to be on a more expanded basis are appropriate.

The parties’ contentions

1. It was contended on behalf of the Independent Children’s Lawyer that interim Orders made on 25 February 2013 should be discharged. It was contended that the mother and father should have equal shared parental responsibility, which having regard to the previous consent Order seems not an issue. As to the child’s time with the mother, the orders sought in the mother’s Response to the Application in a Case for time to be on a regular basis (as set out above) were supported by the Independent Children’s Lawyer.

2. The mother further sought in her Response to the father’s Application in a Case that, whilst the father was overseas, that the child spend a complete block period from 28 December 2013 to 20 January 2014 with her.

3. On reflection, it was contended by the Independent Children’s lawyer that such a block period would be inappropriate but that the mother should have time with the child during the father’s absence overseas as follows:

   a)from after-school Wednesday 18 December 2013 to 3.00 pm on Thursday 26 December 2013;

   b)from 3.00 pm on 2 January 2014 until 3.00 pm on 9 January 2014;

   c)from 3.00 pm on 13 January 2014 and 3.00 pm on 20 January 2014; and

   d)the mother facilitate the child having Skype communication with the father during his absence overseas on each alternate day between      7.00 pm and 7.30 pm.

4. The father submitted that, during his absence overseas, the child should remain in the company of his half-brothers and live with the father’s sister with whom he had made arrangements for the care of the child whilst he is overseas. He further submitted that the mother have time with the child for six weekends in a row from 5.00 pm Friday to 5.00 pm Saturday commencing on 20 December 2013, with changeovers to be effected at the J Contact Service, with the addition of time on Christmas Day and Boxing Day.

5. The father proposed no extended block time be spent between the mother and child.

6. The solicitor for the mother submitted that the mother’s amended proposal for the period in which the father is overseas is as follows:

   a)from 5.00 pm Friday to 5.00 pm Saturday on alternate weekends commencing 20 December 2013;

   b)from 3.00 pm Christmas Day until 3.00 pm Boxing Day;

   c)from 9.00 am 29 December 2013 to 9.00 am on 2 January 2014; and

   d)from 9.00 am on 18 January 2014 to 9.00 am on 23 January 2014.

7. The Court has had regard to the best interests of the child, as discussed above, and is satisfied that on an interim basis pending final hearing that orders, in summary, as follows should be made:

   a)that interim Orders made on 25 February 2013 be discharged;

   b)that the father and mother have equal shared parental responsibility for the child B born in 2008;

   c)that the child shall live with the father when the child is not otherwise living with the mother as provided for hereunder;

   d)that the child shall live with the mother during school terms in a two-week cycle and in the first week of such cycle from after school Tuesday until the commencement of school on Wednesday commencing on the first Wednesday after the resumption of school Term 1, 2014 and from after school Friday until 4.00 pm Saturday commencing on the first Saturday after the resumption of school Term 1, 2014; and in the second week of such cycle from after school Tuesday until the commencement of school on Wednesday commencing on the second Tuesday after the commencement of school term in Term 1, 2014 and from after school Friday until 4.00 pm Sunday commencing on the second Friday after the resumption of school in Term 1, 2014;

   e)that the child live with the mother for one half of the term 1, 2 and 3 school holiday periods, and for this purpose, such period will commence at 10.00am on the first day of such holiday periods;

   f)that the child shall live otherwise with the mother as follows:

   i)from 5.00 pm Friday to 5.00 pm Saturday on alternate weekends commencing 20 December 2013;

   ii)from 3.00 pm Christmas Day until 3.00 pm Boxing Day;

   iii)from 9.00 am 29 December 2013 to 9.00 am on 2 January 2014; and

   iv)from 9.00 am on 18 January 2014 until 9.00 am on 23 January 2014;

   g)that the father and mother within one month from the date of these Orders do all things necessary so as to in role in the Keeping Contact Program provided by C Counselling and do all things that are necessary to each complete that program as soon as practicable, and upon completion provide to the Independent Children’s Lawyer a certificate attesting as to their completion of the program and the sessions attended by each of them;

   h)that for the purposes of changeovers, where not to or from school, the father or his agent known to the child shall facilitate the child being delivered to the mother’s residence at the commencement of the child’s time with the mother and collected from the mother’s residence at the conclusion of the child’s time with the mother; and

   i)that the mother and father ensure that the child is supervised at all times by an responsible adult when in their respective care.

8. Otherwise, the Court will make the usual order for the preparation of a family report in this matter and facilitate the matter being listed before a Registrar for the purposes of release of that report and thereafter relisted before the Court for a further case management hearing.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 13 December 2013.

Legal Associate:      

Date:    13 December 2013