GERASIMOV & ZLOTKIN

[2015] FamCA 646

FAMILY COURT OF AUSTRALIA

GERASIMOV & ZLOTKIN [2015] FamCA 646

FAMILY LAW – DISQUALIFICATION APPLICATION – Father’s application for disqualification of the Judge on the grounds of apprehended bias – Where the father submitted that the Judge failed to advise him that he was entitled to have the names of three experts submitted to him and to choose one – Where the father had consented to the appointment of the single expert and relied upon the expert report – Where it was found that the Family Law Rules 2004 (Cth) do not mandate the procedure contended for by the father – Application dismissed.

FAMILY LAW – PARENTING – Spend time with – Overseas travel – Where the maternal grandmother cared for the child since birth – Where the grandmother travelled to Country J with the child and the mother – Where the mother sought orders that the child remain in Country J with the grandmother for a period which exceeded what was consented to by the father – Where the mother and father were unable to care for the child on a full-time basis in Australia – Where the expert opined that the child would experience sadness and grief if disconnected from the grandmother – Orders made allowing the child to live with the grandmother in Country J for the extended period of time and to spend substantial and significant time with the father upon his return to Australia.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 15.44

Ebner v Official Trustee in Bankrupcy (2000) 205 CLR 337

APPLICANT: Ms Gerasimov

RESPONDENT: Mr Zlotnik

FILE NUMBER: SYC 503 of 2015

DATE DELIVERED: 5 August 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 20 July 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Kyle Family Lawyers

THE RESPONDENT: In Person

Orders

IT IS ORDERED

1.That the oral application made by the father on 20 July 2015 for disqualification on the grounds of apprehended bias be dismissed.

2.That the Order made on 6 May 2015 be varied such that the mother be required to do all acts required to ensure that the child, B (“the child”), born … 2012, be returned to the Commonwealth of Australia no later than 28 December 2015.

3.         That, pending further order, the child live with the mother.

4.That during the first week after the child returns from Country J, he spends time with the father on three occasions by agreement and, in the absence of agreement, from 8.00 am until 11.00 am on two non-consecutive weekdays and from 9.00 am until 6.00 pm on one weekend day.

5.That from the date commencing one week after the child returns to live in Sydney in December 2015 he spend time with the father as follows:

5.1For a period of six weeks, on each Monday and Wednesday from 8.00 am until the father leaves the child at child care (or until 1.00 pm if the child does not attend child care) and on each Sunday from 9.00 am until 6.00 pm.

5.2For the next period of eight weeks, each Monday and Wednesday from 8.00 am until the father leaves the child at child care (or 1.00 pm if the child does not attend child care) and each Saturday from 9.00 am until 10.00 am on Sunday.

5.3Thereafter, each Tuesday from 6.00 pm until 6.00 pm on Wednesday and from 3.00 pm on Friday until 6.00 pm on Sunday commencing on the first weekend and thereafter every alternate weekend.

6.That the father collect the child from the mother’s home at the commencement of his time and return the child to the mother’s home at the end of his time, provided that the child is not at child care at the end of his time with the father.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gerasimov & Zlotnik 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 SYDNEY

FILE NUMBER: SYC 503  of 2015

Ms Gerasimov

Applicant

And

Mr Zlotnik

Respondent

REASONS FOR JUDGMENT

1. Before the Court are interim proceedings concerning the parenting arrangements for the child B (“the child”) who was born in 2012 and is now three years old.

2. The dispute relates to the child’s care from August 2015 until December 2015.

3. The child’s parents, Ms Gerasimov (“the mother”) and Mr Zlotnik (“the father”), were both born in Country J and have settled in Australia. They lived together from December 2004 until February 2011 and then again from November 2011 to February 2013. Thus they separated when the child was a little over one year old.

4. The child’s primary carer is his maternal grandmother, Ms C Gerasimov (“the grandmother”). Since the child was born his grandmother has lived in the mother’s home and cared for him, or cared for him in Country J. She came to Australia in December 2011 before the child’s birth. She currently has a three year parent visa which enables her to stay in Australia for 12 months and then leave for six months before she can come back for another 12 months. That visa is in force until August 2017.

5. In May 2012, when the child was less than five months old, the grandmother returned to Country J in the company of the mother and the child. They returned to Australia on 26 September 2012.

6. Between 11 April 2013 and 4 January 2014 the father lived in Country D and then spent a short period of time in Brisbane and did not have any face-to-face time with the child during that period.

7. In May 2013, the grandmother again returned to Country J accompanied by the mother and the child. The mother stayed until June 2013 and the child returned with his grandmother in September 2013.

8. In April 2014, the grandmother again returned to Country J accompanied by the mother and the child. The mother stayed until 15 May 2014 and the grandmother and the child returned to Australia on 27 August 2014.

9. On each of those occasions the father consented to the child being cared for in Country J by the grandmother.

10. The grandmother and the child have been separated for only six nights in the three years of the child’s life.

11. Both the mother and the father are engaged in full-time employment.

12. In accordance with her visa requirements the grandmother proposed that she would leave Australia and return to Country J on 12 May 2015. The mother proposed to leave Australia, with the child, for Country J on 26 June 2015 and return on 8 August 2015 and that the child would remain with his grandmother in Country J until December 2015. The father did not agree with that proposal and filed an application seeking orders, on an interim basis, restraining the removal of the child from Australia.

13. The mother in her response sought orders that the child be permitted to leave Australia in May 2015 with his grandmother and remain for five months.

14. That application came before the Court on 6 May 2015 in a Judicial Duty List. The mother was represented by counsel. The father was unrepresented. The father opposed the orders sought by the mother but the parties agreed that the mother could travel with the child to Country J between 26 June 2015 and 8 August 2015. Consent orders were made to that effect.

15. In the course of the proceedings on 6 May, I indicated that I was unwilling to embark upon a determination of the issues between the parties (other than those to which they consented) in the absence of expert evidence. It was a matter of some concern, on the basis of the documents filed by each of the parties, that the child’s primary attachment appeared to be to his grandmother rather than to either of his parents.

16. During the luncheon adjournment enquiries were made by counsel for the mother who ascertained that Dr E, a consultant child and family psychiatrist, was available to see the parties urgently. Dr E was prepared to conduct interviews on 26 May 2015 for the purpose of the preparation of a report. It was made clear to the parties that I was not prepared to deal with the application for the child to spend five months in Country J until Dr E’s report was available.

17. The father consented to orders for the appointment of Dr E as the expert and agreed to pay half of Dr E’s fees for the preparation of the report.

18. Upon receipt of the report of Dr E the mother renewed her application for the child to spend the extended period in Country J with his grandmother and that application came before the Court, again in a Judicial Duty List, on 20 July 2015.

THE DISQUALIFICATION APPLICATION

1. At the commencement of the hearing before me, the father made an oral application that I disqualify myself from further hearing the proceedings on the grounds of “apprehended bias”. The father conceded that he had not given notice of his application to the solicitor for the mother or mentioned it when the matter was called over before the list Registrar or the list Judge earlier in the day.

2. Submissions were made by the father and the solicitor for the mother in relation to the application and the application was dismissed.

3. These are the reasons for that dismissal.

4. The basis of the father’s application was that, he submitted, on 6 May 2015 when discussions occurred in Court about the appointment of Dr E, he was not told that he was entitled to have the names of three experts submitted to him and to choose one of the experts.

5. A transcript of the proceedings on 6 May 2015 was available, annexed to an affidavit of the mother’s solicitor.

6. The Family Law Rules 2004 (Cth) (“the Rules”) provide at Rule 15.44 (1):

   If the parties agree that expert evidence may help to resolve a substantial issue in a case, they may agree to jointly appoint a single expert to prepare a report in relation to the issue.

7. Nothing in the Rules mandates the procedure for which the father contends.

8. At no time did the father indicate that he did not consent to the appointment of Dr E. Dr E’s appointment was not suggested by the Court but he was nominated by counsel for the mother as being available within a very short time frame. No alternate suggestion was made by the father.

9. The father was given the opportunity to speak to counsel for the mother before the orders were made for the appointment of Dr E. The transcript indicates that before the matter was adjourned at 2.55 pm the father was told that he needed to speak to counsel for the mother about the orders for the appointment of Dr E.

10. The matter resumed at 3.59 pm. Counsel for the mother had prepared a minute of orders in relation to the appointment. The father had not signed the minute. The father told the Court that “In principle I have no objection to signing this appointment with Dr E”. When asked if he wished to say anything about the form of orders proposed on behalf of the mother, the father said that he had no further objection to the document. The father’s concerns, as expressed in Court, related not to the appointment of Dr E, but to issues relating to the child’s attendance at day care.

11. After the orders for the appointment of Dr E were made, the father signed the minute and it was placed, bearing his signature, on the Court file.

12. In Ebner v Official Trustee in Bankrupcy (2000) 205 CLR 337 at 345, the High Court explained the concept of apprehension of bias in the following terms (bold emphasis added):

    The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

    The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

13. At no time did the father suggest that Dr E’s report should not be relied upon in the proceedings.

14. In fact, the father placed great reliance on the report of Dr E. He relied on an affidavit sworn by him on 17 July 2015 in which he quoted, verbatim, 41 paragraphs of the report.

15. It was not possible to discern from the father’s submissions in what way he asserted that the case was not likely to be decided on its factual or legal merits or that he feared a departure from impartial decision making.

16. The father’s case was not made out and the application was dismissed.

THE COMPETING APPLICATIONS

1. When the matter came before the Court on 20 July 2015, it was the mother’s application that the child should remain in Country J with his grandmother until December 2015. The mother at that time was still in Country J but anticipated returning to Australia in August.

2. The father’s application was that the child return to Australia in accordance with the orders made on 6 May 2015 and that thereafter he live with the father on Mondays and Tuesdays and each alternate Friday, Saturday and Sunday with the effect that the child would live, in each fortnight, with each parent for two periods of five days and two days, or for seven days in each fortnight.

3. The mother opposed the father’s application but, in the alternate, sought orders that in the event that the child was to be returned to Australia in accordance with the orders of 6 May 2015, then the father should personally care for the child between 8.00 am and 5.30 pm on Monday to Friday each week until such time as the grandmother returned to Sydney.

4. It was clear in the presentation of the case of each of the parents that neither of them was prepared to take time off work to care for the child on a full-time basis until the grandmother returned to Australia.

5. Both parties in the presentation of their submissions relied heavily on the report of Dr E. Dr E, in addition to interviewing the parents and the child, spoke to the grandmother and to the child’s child care teacher who attended at the request of the father.

6. These are interim proceedings and it is not possible to make findings of fact where there are issues in contest. However, it was clear from the submissions of the parties that there was little factual dispute between them and that their differences lay in what each submitted was the best solution for the child’s care until the grandmother returns to Australia.

7. It falls to the Court to determine what arrangements should be made for the child for the next five months on the basis of the evidence which is available before the Court, that evidence being untested. However, it should be noted that, whilst the father did not ultimately agree with Dr E’s conclusion and recommendation in relation to the child’s care he did not dispute the accuracy of Dr E’s recitation of the facts or the validity of his observations.

8. Up until the time the child left Australia with his mother and grandmother on 26 June 2015, he was living primarily in the mother’s household. The mother worked between 9.00 am and 5.00 pm and the grandmother cared for the child during those times except for the times when the child was attending at childcare at “F Childcare” (“FC”) at Suburb G.

9. The child had commenced attending at FC in February 2015. At that time the child was spending time with his father for half a day on Saturday and his father collected him from his mother’s home at 8.00 am and took him to childcare on three days each week. There had been no pattern of regular overnight time for the child with his father.

10. The child did not find the transition to FC easy. Ms H, the child’s teacher, told Dr E that the child had found the transition quite challenging and that he needed a lot of support to feel comfortable enough to allow his father to depart from FC in the mornings. Ms H told Dr E that the child finds transitions, such as from outdoor time to indoor time, challenging, and is thrown out of balance by any change of routine.

11. The child’s primary language is Country Jn. He uses individual English words but the staff rely on non-verbal communication and picture cues to work out what the child needs. In the interviews with Dr E in June 2015, Ms H told Dr E that the child is “getting settled now”. She said that the father drops the child between 9.30 am and 10.00 am and that she would not recommend him being dropped earlier. In more recent times, Ms H said, the father has been able to “drop and go” and the child is used to this now. However, this appears to have been the situation only since about mid-April 2015.

12. On 4 June 2015 the child’s attendance at child care was extended to a fourth day. An email from FC dated 13 May 2015 indicates that the child was to attend on Monday, Wednesday, Thursday and Friday.

13. The child was collected by his grandmother from pre-school after the morning session and she cared for him for the rest of the day until his mother returned from work. the child has not yet spent a full day at child care.

THE FATHER’S PORPOSAL TO CARE FOR the child

1. The father proposes that, if the child returns to Australia without his grandmother, his partner, Ms I, would be the primary carer for the child on those occasions when he is not at pre-school. The father does not propose to take time off work to care for the child.

2. Dr E observed the child with the father’s partner, but only in the presence of the father. At paragraph 176 of his report, Dr E reports:

   …the father sought to pass the child to the father’s partner. The child went to her, but with some pulling back to the father. Soon afterwards, the child reached out to return to the father’s lap, and he and his father sensitively responded, and the child moved back to the father’s lap. The child snuggled back into the father.

3. Ms I did not swear an affidavit or give evidence in the proceedings. There is no evidence from her of her willingness or ability to care for the child or of her relationship with him.

4. Ms I came to Australia from Country J in October 2013. She was married for a brief time but separated from her husband and is now in the process of divorce.

5. It is not clear how long the father and Ms I have been in a relationship. The father told Dr E that they met over the internet in February 2014. They met face-to-face and have been cohabiting since June 2014.

6. A document produced by the Australian Federal Police dated 16 February 2015 suggests that Ms I’s address, at that date, was in South Australia.

7. A letter dated 10 July 2015 from the Commonwealth Bank of Australia gives Ms I’s current address as the father’s address.

8. A document downloaded from the internet by the mother from a relationship website, which is date stamped March 2015, suggests that Ms I’s address is in Adelaide and that she was, at that date, interested in a serious relationship.

9. On 23 April 2015 there was an exchange of text messages between the father and the mother where the mother raised with the father the issue of the child’s travel to Country J with the grandmother. The father suggested that, as a compromise, he would hire a nanny to look after the child when he was not at FC but declined to tell the mother the identity of the nanny. Significantly he did not tell the mother that he was in a relationship with a partner who lived with him.

1. The father, in an affidavit sworn on 25 May 2015, deposes that on Saturday 23 May 2015 the mother confronted Ms I. The father says that the mother was agitated and asked Ms I inappropriate questions such as whether she was an Australian citizen and for how long she had been seeing the father.

2. In an affidavit sworn on 17 July 2015 the father says “I confirm that for six months I observed the child interacting with my partner”, indicating that the relationship, at least insofar as the child is concerned, had commenced in about January or February 2015.

3. The father deposed that Ms I is currently studying English at TAFE. Ms I told Dr E that she plans to get some qualifications and to work at some stage. Dr E described Ms I’s English capacity as “basic”. An interpreter was present during Dr E’s observation of Ms I and the father with the child but Dr E commented “we managed to communicate adequately for the purpose of the interview” when Ms I was seen by him alone later in the day.

4. On any version of the father’s proposals, if the child is living in his father’s household for seven days out of every fortnight it will be Ms I who will be his primary carer.

5. The father told Dr E that he has been starting working late on the days that he stays with the child in day care to help the child settle in and then finishing a few hours late to compensate. The father told Dr E “I’m willing to make career sacrifice [for the child] … when [the mother] offered that I could take him to day care, I gladly accepted … it means that I have to be late for work, and stay back until 6, or 7, or 8 to catch up.”

6. If the child attends child care three mornings each week until about lunch time, the he will be cared for by Ms I for up to six or seven hours until his father comes home from work, and for full days on the days when he does not attend child care.

DR E’S EVIDENCE

1. Dr E in his report says:

   The father’s recommended solution to the absence of the maternal grandmother was for his partner to play a substantial role in picking up [the child] from care and looking after [the child] during the week days. I formed the view that the father’s partner would be able to provide this role adequately. But, I do not see a medium – or long-term developmental or relational advantage to this circumstance over [the child] spending time with the maternal grandmother in Country J, and I am concerned that this would be a transition to which that the mother would find it very difficult to adapt, and it would also be difficult for the mother to support [the child] in adapting to this transition. The mother and the child would be without the supporting presence of the maternal grandmother in making this adaptation.

2. Dr E, in his report, says in relation to the father’s proposal:

   A less favoured alternative in my view would be for [the child] to spend only the planned 6 weeks in Country J from late June to early August 2015, then return for the mother to continue the current child care processes and to commence a transition to more substantial time with the father. I do not see a long term or even a medium-term developmental or relational advantage to [the child] in commencing the process of transition to more substantial time with the father 4 months earlier, and I note the current very slow progression of [the child’s] engagement with childcare, such that I do not see a developmental advantage to such processes over [the child] spending time playing in a more full and natural way with his cousins in Country J.

3. Dr E went on to say:

   I am concerned that such an approach would (by my reading of the visa requirements) require the maternal grandmother to be away from Australia for 3 ½ to 4 ½ half months of the 6 month period between August 2015 and January 2016 [depending on whether the maternal grandmother spent some time out of Australia for a month or so after the granting of her visa in August 2014]. [The child] would thus be absent the foundational presence of the maternal grandmother at a time when he was being expected to make a substantial transition in parenting arrangements. In addition, the mother would be absent the foundational support of her own mother during this transition, about which she will feel understandable anxiety and during which the child will need her to be strong.

4. Dr E recommends:

   If the transition to more substantial time with the father is being made from late 2015, with [the child] a little older and with the likely continuous backup presence of the maternal grandmother, I feel that this transition could occur quite quickly, for example in defined steps over a 6 month period, then after that transition was complete, extending into half of the holiday periods.

CONSIDERATION

1. The essential dilemma facing the Court, in circumstances where neither of the parents is prepared to take time off work and care for the child full-time, is whether he should be cared for by his grandmother in Country J or by the father’s new partner in Australia until December 2015.

2. Dr E does not support the father’s application for equal shared time. In his report Dr E explored the deficiencies in the father’s parenting, as he perceived them, and concluded:

   If [the child is in the father’s care for substantial and significant time, but well less than 50 [per cent] of the time (for example, 5 nights per fortnight), the father is likely to maintain an idealised, energetic, busy, productive parenting process during this time, and [the child] will thus experience the benefits of his narcissistic personality style. [The child] will for most of the time quite naturally be affirming and appreciative of the father for all this exciting activity. Or, if [the child] goes through a phase where he is more mixed or negative in his attitudes towards the father, he is likely to learn to put on an appreciative front so as to keep things working well with his father.

3. Dr E went on to say:

   In addition, if [the child] is with the father for 50 [per cent] or more of the time, this places greater stress upon both father and child, as their time becomes more ordinary and day-to-day, and it is harder for both father and child to maintain an idealised stance about the relationship. There would be a greater risk of [the child] either becoming depressed with the burden of vigilance about paternal self-image, or reactively rejecting or demeaning of the father, the latter likely provoking an affronted, aggrieved, coercive and potentially aggressive response in the father.

   I am concerned also about potential instability in paternal intimate relationships, and/or paternal poor modelling of male behaviour within adult intimate relationships. Any downside of this for [the child’s] development would also be reduced by [the child] having a foundation of “home” with the mother.

4. Whether the child spends half of each fortnight with his father, or a lesser period, does not change the fact that, on his proposal, for either half of each fortnight or for more than half of each fortnight he would be living in the care of his mother who has no arrangements to care for him when she works.

5. Whether or not the child would be able to tolerate child care for more than the current three mornings per week to which he has become accustomed is unknown.

6. Additionally the amount of time that the father will have to spend with the child is unclear and limited by his working hours.

7. It could not be assumed that the child would go without difficultly from tolerating three mornings per week at childcare to tolerating long day care five days a week during the time that he is in the care of his mother. There is no evidence that day care is available for the child for five days each week when he is in the mother’s care. There is no evidence of any other arrangement to care for him during those times and the father rejects the mother’s proposal that he be available to care for the child himself.

8. There is no dispute that the child will benefit from having a warm reciprocal and trusting relationship with both of his parents.

9. Andrew is three and a half years old and there is no evidence of his views.

10. Dr E formed the view that currently the child’s foundational attachment relationship at a day to day level is with the grandmother. Dr E said that it was his impression that the child has managed the separations from both the mother and the father because he has been in the secure care of the grandmother. However, Dr E commented that the child showed a strong and quite natural and intrinsic preference for proximately and connection with his mother over the grandmother when they were both present. Those observations and opinions of Dr E are consistent with the pattern of the child’s care since birth.

11. In relation to the child’s relationship with his father Dr E says:

    My impression is that whilst [the child’s] relationship to the father is a positive and secure one, at this stage it lacks the depth and experiential significance of [the child’s] relationships with the mother and maternal grandmother. This is because [the child’s] time with the father was limited in his early life to regular but random and relatively brief visits, often in the shared presence of the mother or the maternal grandmother, then periods of separation when [the child] was in Country J, then more recently has been limited to regular but brief daytime with no overnight time. (It is apparent that [Dr E] was not aware of the period of some nine months when the father lived in [Country D]).

12. In relation to the relationship between the child and Ms I, Dr E noted that the child appeared to have a warm, reciprocal and trusting relationship with her but comments that he did not see her with the child without the father present.

13. In relation to the likely effect of changes in the child’s circumstances, Dr  E says:

    My impression is that [the child] would adapt well to and would enjoy increased time with the father, including overnight time, if this was introduced in a gradual and agreed or stipulated way, and if the father would “step up” to this role in terms of a reliable and responsible behaviour [I believe that he would do so in the context of clear orders], and if these arrangements allowed the mother to maintain some certainty and personal boundaries.

14. Dr E expressed the opinion that in such a context as that described above, he would expect the child’s relationship with the father to deepen and become more fundamental.

15. However, Dr E expressed the view, as has been detailed earlier in these reasons, that the child would best be able to cope with increased time with his father provided that his grandmother was available to help both the child and the mother with the transition.

16. The father’s proposal that the child return to Australia without his grandmother requires the child to commence long day care on five days of each fortnight when he is in the care of his mother and she is working. His ability to tolerate that arrangement is unknown and, having regard to the evidence of his teacher, seems fraught with risk. Ms H does not recommend that the child start at day care earlier than 9.30am or 10.00 am. There is no evidence that suggests that he is likely to tolerate a full day at day care.

17. The child’s ability to tolerate spending the majority of the time, when he is in his father’s care as the father proposes, with Ms I alone, is also untested.

18. The only available care arrangement for the child, in which the Court could have complete confidence, is the care of his grandmother.

19. It is self-evident that if the child is to remain in Country J with his grandmother until December 2015, it will be difficult for his father to maintain face-to-face time with him although the evidence is that they currently enjoy skype contact three times per week. I accept the evidence of the father that it would cost him approximately $10,000 to travel to Country J and spend a period of time with the child and that he is unable to be away from work for more than two weeks. Once the child returns to Australia, the parties live in close proximity to each other and there is no real practical difficulty in the child spending time with either of them.

20. At the present time neither the mother nor the father is willing to provide for the child’s day to day needs by physically caring for him. The only person who is willing to care for the child on a day to day basis is his grandmother. The father proposes that a combination of childcare and the care of Ms I would adequately provide for the child’s emotional and physical needs. Having regard to Dr E’s observations about the child’s relationship with his grandmother, I accept the evidence of Dr E that the child would experience sadness and grief if disconnected in the long term from the grandmother.

21. I also, for the reasons I have expressed, accept the evidence of Dr E that, if the choice with which the Court is faced is whether the child should be cared for by the grandmother or by the father’s partner, then the grandmother is the more appropriate carer.

22. I also accept the evidence of Dr E that the child is most likely to adapt best to a transition to more time with his father if the grandmother is present to support the transition.

23. For the reasons which I have expressed above and in accordance with the recommendation of Dr E, the orders will provide for the child to remain with his grandmother in Country J until December 2015.

24. In relation to the arrangements which should be put in place for the child after he returns from Country J, I have set out Dr E’s recommendation earlier in these reasons. Dr E does not support the father’s proposal for equal shared time.

25. Since I do not propose at this time to deal with the issue of parental responsibility, it is not necessary to give further consideration to the appropriateness of an equal shared time arrangement. That issue will be dealt with at the final hearing.

26. The orders which are proposed by the mother appear to accord with Dr E’s recommendations, providing a gradual transition over a period of six months to the child spending four nights each fortnight with his father. However, those orders do not take into account the availability of the father to care for the child. For example, the mother proposes that the child spend each Tuesday with the father from 3.00 pm until 6.00 pm when the father will be at work and the child does not attend child care.

27. It has been left to the Court to determine a regime which accords with Dr E’s recommendations and is practically capable of implementation.

28. The child is enrolled at child care and currently can attend on Monday, Wednesday, Thursday and Friday. He has, to date, been taken home after lunch on each day.

29. The orders will provide that, for a period of six weeks after the child returns to Sydney, he spend time with the father on two mornings each week and each Sunday.

30. For the next eight weeks, the child will spend time with the father for two full week days and each Saturday from 9.00 am until 10.00 am on Sunday in each week.

31. Thereafter, until the matter is heard and determined, the child’s time with his father will be extended so that he is with his father from 6.00 pm on Tuesday until 6.00 pm on Wednesday in each week and from 3.00 pm on Friday until 6.00 pm on Sunday in each alternate week.

32. Those arrangements are appropriate in the interim until such time as there can be a final determination of the parenting issues with appropriate testing of all of the evidence, including the expert evidence. They will allow the child to spend substantial and significant time with the father within an appropriate time frame.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 5 August 2015.

Associate: 

Date:  5 August 2015