HALDER & BEDI
[2020] FCCA 1654
•18 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HALDER & BEDI | [2020] FCCA 1654 |
| Catchwords: FAMILY LAW – Parenting – interim parenting orders – where no risk asserted – where equal time not appropriate – where substantial and significant time appropriate with graduating steps – where child is of early school years – where the Court to consider developmentally appropriate orders for time away from primary carer. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA, 65D, 65DAA, 77, 117 Federal Circuit Court Rules 2001 (Cth), pt 22A |
| Cases cited: M & M (1988) FLC 91-973 |
| Applicant: | MS HALDER |
| Respondent: | MR BEDI |
| File Number: | SYC 4967 of 2019 |
| Judgment of: | Judge Morley |
| Hearing date: | 7 November 2019 |
| Date of Last Submission: | 7 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 18 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Othen |
| Solicitors for the Applicant: | Selvaggio Lawyers |
| Counsel for the Respondent: | Ms Kennedy of Counsel on a direct brief |
ORDERS
PENDING FURTHER ORDERS THE COURT ORDERS:
That the Father spend time with the child X born in 2014 during school term time until the end of term 3 in 2020 as follows:
(a)Each alternate weekend from 10.00 AM on Saturday until start of school (or 9.00 AM) on Monday;
(b)During the week following the weekend on which X does not spend time with her Father, from the end of school on Wednesday until the start of school on Thursday;
(c)During the week following the weekend on which X does spend time with her Father, from the end of school on Wednesday until 6.30PM;
(d)At such other times as may be agreed between the parents from time to time in writing.
That the Father spend time with X during Term 3 in 2020 as follows:
(a)Each alternate weekend from the end of school (or 3.00PM) on Friday until the start of school (or 9.00 AM) on Monday, commencing the first weekend of that Term;
(b)During the week following the weekend on which X does spend time with her Father, from the end of school on Thursday until the start of school on Friday; and
(c)At such other times as may be agreed between the parents from time to time in writing.
That during school term time commencing with term 4 in 2020 the Father spend time with X as follows:
(a)Each alternate weekend from the end of school (or 3.00PM) on Thursday until the start of school (or 9.00 AM) on Monday, commencing the first weekend of that Term;
(b)During the week following the weekend on which X does spend time with her Father, from the end of school on Thursday until the start of school on Friday; and
(c)At such other times as may be agreed between the parents from time to time in writing.
That the Father spend time with X during school holidays as follows:
(a)During the school holidays at the end of term 2 in 2020 from 9.00AM on the middle Friday of the school holidays until 5.00PM the following Monday;
(b)During the school holidays at the end of term 3 in 2020 from 9.00AM on the middle Friday of the school holidays until 5.00PM the following Tuesday;
(c)During the school holidays at the end of term 4 in 2020 for two block periods of five consecutive nights, with a period of no less than fourteen consecutive nights between the end of the first block and the start of the second block, at times to be agreed between the parents;
(d)For the school holidays at the end of Term 1 in 2021, and thereafter, for half of the school holidays at the end of Terms 1, 2 and 3 being the first half in even numbered years and the second half in odd numbered years, and for the school holidays at the end of term 4 on a week-about basis, with the Father’s time commencing with the first week of the holidays that commence in an even numbered year and the second week of the holidays that commence in an odd numbered year.
That each parent shall do all things necessary to authorise the Principal of X’s school to provide to each of the Father and the Mother duplicate copies of school reports, school photographs, notices of parent/teacher meetings, school assemblies, school sports and swimming carnivals and any other school activities to which the parents are invited to attend and any other correspondence or notification otherwise relevant to X.
That each of the parents is restrained from denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence or hearing of X.
That each of the parents is restrained from allowing X to remain in the presence of, or within X’s hearing of any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household.
That each of the parents is restrained from discussing these proceedings, including the contents of any document filed by or on behalf of either parent, with X.
That in the event that X requires urgent medical treatment the parent with whom she is living shall inform the other parent by telephone as soon as practicable and provide details of the medical emergency, the facility at which she is being treated in the name of the treating medical practitioner or practitioners, and both parents shall be at liberty to attend the facility at which she is being treated regardless of where X is living at the time.
That in the event that X attends upon a medical and/or dental practitioner, each parent shall be and hereby is permitted to consult with the treating practitioner and obtain all information in relation to X, including but not limited to any diagnosis, prognosis and/or treatment recommended, and each parent shall provide all necessary consents.
That orders 14, 15, 16, 17 and 19 of the orders made by consent on 7 November 2019 continue in force.
That order 18 of the orders made by consent on 7 November 2019 continues in force except that the words “Order 16 to 17 herein” are removed and the words “all changeovers” are inserted in their place; and the words “for school holidays at the end of Terms 1, 2 and 3 and on the last day of each week for the school holidays at the end of Term 4” are inserted after the words “school holiday period” at the end of (b).
That orders 2 and 3 of the orders made by consent by Registrar McNamara on 6 March 2020 are vacated.
IT IS NOTED that publication of this judgment under the pseudonym Halder & Bedi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4967 of 2019
| MS HALDER |
Applicant
And
| MR BEDI |
Respondent
REASONS FOR JUDGMENT
Introduction
These are the Reasons for Judgment in relation to the interim hearing occurring on 7 November 2019. Orders in this matter were made on 18 June 2020.
These interim proceedings related to parenting, property settlement, and interim spouse maintenance issues between the Applicant Mother Ms Halder (‘the Mother’) and the Respondent Father Mr Bedi (‘the Father’), arising from the breakdown of their marital relationship.
The parenting issues concern their only daughter, X, born in 2014.
On 7 November 2019, I conducted an interim hearing in relation to what time the Father would spend with X. The matter had been set down for an interim hearing on that day in relation to issues going to parental responsibility, with whom X would live, what time X would spend with the other parent, matters of disclosure relating to the financial issues, interim property orders including as to interim property distribution, and interim spouse maintenance.
In the event, the parties settled all of the issues on an interim basis prior to the commencement of the hearing, save for the issue of the time to be spent by the Father with X. Terms of Settlement in relation to those settled issues were prepared and signed by the parties, and orders were made in accordance with those terms on that day.
The contention between the parties in relation to the appropriate orders to be made for the time the Father spends with X relate to their differing views as to what amount of such time is appropriate commensurate with X’s age and stage of development and how that time should progress, if at all, prior to final hearing. Happily, this was not presented by either party as a risk case.
The proceedings up to the interim hearing
The proceedings were commenced by the Mother filing an Initiating Application on 30 July 2019 seeking final orders relating to property settlement, parenting issues, and spouse maintenance, and interim orders relating to disclosure on financial matters, spouse maintenance, interim property distribution, injunctive relief for the preservation of property, and parenting.
The Father filed his Response on 13 August 2019 seeking final orders in relation to property settlement and parenting issues and interim orders in relation to parenting issues, disclosure in relation to financial matters, and interim property orders.
The matter was before the Court on 14 August 2019 for its first return date, and on an urgent basis orders were made:
a)Pursuant to section 77 of the Family Law Act 1975 (Cth) (‘the Act’) for urgent spouse maintenance payable by the Father to the Mother in the sum of $1200 per week;
b)For the Father to spend time with X:
i)Each Wednesday from the end of preschool or 3.30PM until 6.30PM, with changeover to be at preschool or the Mother’s residence at the start of Wednesday time and at the Father’s residence at the end of Wednesday time; and
ii)Each alternate weekend from 10.00AM on Sunday until 7.30AM on Monday, with changeover to be at the Mother’s place of residence at the start and end of the weekend time;
c)Injunctive relief to preserve cash assets;
d)An injunction against the Father attending at X’s preschool or the Mother’s home except pursuant to the orders; and
e)For the Father to make the payments due and payable on the loan account secured by a mortgage on the parties’ Suburb A property and all outgoings in relation to the occupation of that property.
The matter was set down for an interim hearing on 7 November 2019.
As indicated, a suite of orders were made by consent at the interim hearing on 7 November 2019, summarised as follows:
a)That the Father pay to the Mother $1,200 per week by way of interim spouse maintenance;
b)Disclosure by the Father in relation to financial matters;
c)For a sale of the Suburb A property (the former matrimonial home) and following sale for a sum of $50,000 to be paid to the Mother from the sale proceeds “to be applied to the legal costs and disbursements incurred by the applicant Mother in these proceedings”,[1] the balance of the net proceeds of sale to be retained by the Father’s solicitors upon trust for the parties jointly;
[1] Orders made by Judge Morley on 7 November 2019, 6[9].
d)An injunction relating to the preservation of property;
e)That the parties have equal shared parental responsibility for X;
f)That X live with her Mother;
g)That X spend time with her Father:
i)At Christmas in even numbered years, from 6.00PM on 24 December to 6.00PM on 25 December;
ii)At Christmas in odd numbered years, from 6.00PM on 25 December to 6.00PM on 26 December;
iii)At New Years in even numbered years, from 12:00PM on 31 December to 4.00PM on 1 January;
iv)On Father’s Day from 9.00AM until 5.00PM; and
v)On X’s birthday, if she is otherwise with her Mother:
(1)If a school day, from after school until 6.30PM; or
(2)If not a school day, from 12:00PM until 4.00PM;
h)That X be in her Mother’s care:
i)At Christmas in even numbered years, from 6.00PM on 25 December until 6.00PM on 26 December;
ii)At Christmas in odd numbered years, from 6.00PM on 24 December to 6.00PM on 25 December;
iii)At New Year in odd numbered years, from 12:00PM on 31 December to 4.00PM on 1 January;
iv)On Mother’s Day, from 9.00AM until 5.00PM; and
v)On X’s birthday, if she is otherwise with her Father, then together with the Father and the child as agreed, and failing agreement:
(1)If a school day from the end of school until 6.30PM; and
(2)If not a school day, from 12:00PM until 4.00PM;
i)That any changeovers for X that did not occur at her school occur by the Father collecting her from the Mother’s home at the start of his time and the Mother collecting X from the Father’s home at the end of his time;
j)That school holidays start at 10.00AM on the day after school ends and conclude at 6.30PM on the last day before school resumes and that changeovers in the middle of school holidays occur at 6.30PM; and
k)That each parent have reasonable telephone communication with X when she is in the other parent’s care.
I note that the interim order made by consent defining when school holiday periods start and end and when the changeover would occur in the middle of school holidays was, at that time, without purpose and entirely ‘up in the air’, as no order was made by consent between the parties relating to the Father’s time with X during school holidays.
At the interim hearing the Father sought school holiday time by order, and the Mother sought that there be no particular order relating to school holidays, but, in the alternative, if orders relating to time to be spent between the Father and X during school holidays were made as a result of the interim hearing, then the interim order defining start, finish, and midpoint of school holidays apply.
The matter has been before the Court on occasions subsequent to the interim hearing, and in particular before a Registrar for a Conciliation Conference on three occasions. On none of those occasions was the Conciliation Conference able to proceed properly due to incomplete disclosure.
Some further interim parenting orders in relation to the time to be spent by the Father with X were made by consent at the Conciliation Conference on 6 March 2020. However, I must decide this matter on the basis of the evidence and submissions on interim hearing on 7 November 2019.
If, in these Reasons, I determine that orders proper to be made in X’s best interests as the paramount consideration are for the Father to spend less time with X than is provided in the interim consent orders made on 6 March 2020, then it will be necessary for me to address that issue in these Reasons.
Material relied upon at interim hearing
The Mother relied upon the following material:
a)A Case Outline document that included a minute of the orders sought by the Mother on interim hearing;
b)Her Amended Initiating Application filed 1 November 2019; and
c)The affidavit of the Mother affirmed 25 July 2019 and filed 30 July 2019.
The Mother also sought to rely on documents that related only to the financial issues that were settled between the parties by consent on the interim basis, being a Financial Statement affirmed 25 July 2019 and filed 30 July 2019, and her affidavit affirmed 17 October 2019 and filed that day.
The Mother filed a Notice of Risk with her initiating material in compliance with the Rules.[2] In that document, she did not assert that there were any issues relating to child abuse, family violence, or other risks affecting orders to be made in the best interests of X.
[2] See, generally, Federal Circuit Court Rules 2001 (Cth) pt 22A.
The Father relied on the following material:
a)A Case Outline document prepared by Mr Batey of Counsel;
b)A handwritten minute of parenting orders sought by the Father;
c)His Amended Response filed 21 October 2019; and
d)The affidavit of the Father sworn or affirmed 17 October 2019 and filed 18 October 2019.
The Father had also proposed to rely on his Financial Statement sworn or affirmed 24 October 2019 in relation to the financial issues.
The Father filed a Notice of Risk with his responding material, in compliance with the Rules.[3] In that document, he did not assert that there was any risk relating to child abuse, family violence, or any other risk relevant to parenting orders to be made in X’s best interest.
[3] See, generally, Federal Circuit Court Rules 2001 (Cth) pt 22A.
The orders sought
The Mother sought the following orders relevant to the issue of the time the Father is to spend with X:
a)That the Father spend time with X:
i)Each Wednesday from 3.30PM or after school (whichever may apply) until 6.30PM;
ii)Each alternate weekend from 10.00AM on Saturday until 10.00AM on Sunday; and
iii)At such other times as may be agreed between the parties in writing.
The Mother did not seek any orders in relation to time between the Father and X during school holidays, the effect of which is that if orders were made in accordance with those sought by the Mother, then the Father’s time with X would continue on the Wednesday afternoon and alternate weekend basis throughout the year, and continuing up to final hearing.
The Father sought the following orders:
a)That he spend time with X during school term time:
i)From the interim hearing until term 2 2020, each alternate weekend from 10.00AM on Saturday until the start of school on Monday, and each Wednesday from 3.00PM or at the conclusion of school until the start of school on Thursday morning;
ii)From term 2 in 2020, each alternate weekend from the end of school on Thursday until the start of school on Monday, and each other alternate week from the end of school on Thursday until the start of school on Friday.
b)That the Father spend time with X during school holidays:
i)In the January 2020 school holiday period, for two separate occasions of three nights each as agreed, or if not agreed, from Friday until Monday;
ii)In the term 1 2020 school holidays, for four successive nights as agreed, or if not agreed, from Friday to Tuesday;
iii)In term 2 2020, for five successive nights as agreed, and if not agreed, from Friday to Wednesday;
iv)In term 3 2020 and each school holiday at the end of terms 1, 2 or 3 thereafter, for one half of the school holidays being the first half in odd numbered years and the second half in even numbered years;
v)For the Christmas holidays at the end of term 4 in 2020 for half of the holidays on a week about basis with the Mother; and
vi)For the Christmas holidays at the end of term 4 in 2021 and each year thereafter for half of the holidays, but not specifying how the half is to be defined if not agreed.
The Father sought further orders relating to parenting issues at the interim hearing, being orders 9 to 20 as set out in the minute of order forming part of his Case Outline. Though most of those orders are not supported by the evidence that the parties presented on interim hearing and were not addressed in submissions, I will give consideration to those orders in due course. They are part of the Father’s interim application before the Court, and some of them are, in effect, by way of an ‘amplification’ of the interim order made by consent between the parties, that they have equal shared parental responsibility for X.
The evidence
The Father and Mother were both 40 years of age at the time of the interim hearing. The Father was born in India and came to Australia to live in 2008. The Mother was born in Country B and came to Australia to study between 2006 and 2011, when she returned to Country B. During the Mother’s stay in Australia for study, in 2010, she met the Father and the parties established a non-cohabitative relationship.
The Mother returned to Australia in either January (according to the Mother)[4] or February (according to the Father)[5] of 2013, and the parties commenced cohabitation. They are both now permanent residents in Australia.
[4] Mother’s affidavit filed 30 July 2019, [6].
[5] Father’s affidavit filed 18 October 2019, [5].
The Father has been as a health care worker since 2014. From 2013 to 2014, the Mother undertook degree studies at C University.
The parties married in 2014 (according to the Mother)[6] or 2014 (according to the Father).[7]
[6] Mother’s affidavit filed 30 July 2019, [7].
[7] Father’s affidavit filed 18 October 2019, [5].
Both parties enjoy good health.[8]
[8] Father’s affidavit filed 18 October 2019, [4].
X was born in 2014, and from then until January 2018 the Mother was her full time carer whilst the Father was in full time work as a health care worker. The Mother asserts that the Father’s working hours through this period were Monday to Friday from 7.30AM until 8.00 PM or 9.00 PM, and often for a half day on Saturday.[9] She asserts that he provided very little assistance with the care of X.[10]
[9] Mother’s affidavit filed 30 July 2019, [28].
[10] Mother’s affidavit filed 30 July 2019, [28].
The Father asserts that, through the relevant period, his working hours were from 9.00 AM to 5.00 PM on Monday to Friday, with an extra three to four hours work at home preparing reports.[11] The Father acknowledges in his evidence that the Mother was the primary carer for X,[12] but asserts that he assisted with her care before work and after 6.00PM on weekdays and all weekends.[13]
[11] Father’s affidavit filed 18 October 2019, [17].
[12] Father’s affidavit filed 18 October 2019, [11].
[13] Father’s affidavit filed 18 October 2019, [17].
X’s maternal grandmother visited Australia from Country B for several months in each year between 2014 and 2018 to assist with the care of X.[14]
[14] Father’s affidavit filed 18 October 2019, [14], [18], [19].
From January to December 2018, the Mother undertook full time study through the D University and completed an honours degree.
The parties separated on 12 July 2018, at which time the Mother and X left the matrimonial home at Suburb A and began to live in rental accommodation at Suburb E. The Father remained in occupation of the matrimonial home until April 2019.
The mother says that from separation on 12 July 2018 until December 2018, the Father spent time with X at the Mother’s place of residence for about two hours on most days.[15] The Father says that, on occasions, the Mother refused to allow him to see X for several days.[16] Given the Mother’s evidence, that is a matter of contested evidence. The Father asserted in paragraph 39 of his affidavit of 17 October 2019 that:
Since separation X has stayed overnight with me on average one night per fortnight.[17]
[15] Mother’s affidavit filed 30 July 2019, [58]; Father’s affidavit filed 18 October 2019, [29].
[16] Father’s affidavit filed 18 October 2019, [29].
[17] Father’s affidavit filed 18 October 2019, [39].
The Mother refers to two occasions – one in August 2018, and the other on 6 April 2019 – when she asserts that the Father kept X with him overnight without her “permission”.[18]
[18] Mother’s affidavit filed 30 July 2019, [93].
In April 2019, the Father moved into rental accommodation at Suburb F, being a two bedroom unit with one bedroom available for X.[19]
[19] Father’s affidavit filed 18 October 2019, [26].
The Mother asserts that in December 2018, the parties made arrangements for the Father to spend time with X on one or two occasions per week at the Mother’s home and for a half day each weekend.[20]
[20] Mother’s affidavit filed 30 July 2019, [62].
The Father asserts that in April 2019 the Mother unilaterally ‘diminished’ his time with X and from them on he did not spend any time with X at the Mother’s home.[21]
[21] Father’s affidavit filed 18 October 2019, [41], [42].
From April 2019 until the making of the interim orders on 14 August 2019, the Father spent time with X in accordance with the Mother’s wishes, on Wednesday from 3.00PM until 6.30PM and Sundays from 10.00AM until 6.30PM.[22]
[22] Father’s affidavit filed 18 October 2019, [42].
This evidence conflicts with his evidence referred to above from paragraph 39 of his affidavit that:
Since separation X has stayed overnight with me on average one night per fortnight.[23]
[23] Father’s affidavit filed 18 October 2019, [39].
The Father asserts that on 21 July 2019, X was spending time with him by arrangement between the parties. He asserts that the Mother attempted to recover X from him earlier than the arranged time, but did not succeed and X stayed with him overnight.[24] From that time until the interim orders were made on an urgent basis on 14 August 2019 X stayed with the Father each Sunday.[25]
[24] Father’s affidavit filed 18 October 2019, [50]-[52].
[25] Father’s affidavit filed 18 October 2019, [56].
The Father asserts that from the time of separation, he has provided a sum of $1,500 per month to the Mother for X’s support, and, in addition, has paid her preschool fees of $1,290 per fortnight.[26]
[26] Father’s affidavit filed 18 October 2019, [88]-[89].
As at 21 May 2019, the Father was assessed under the relevant child support legislation[27] to pay a sum of $1,909.25 per month ($439 per week) to the Mother as child support.[28]
[27] See, generally, Child Support Assessment Act 1989 (Cth).
[28] Father’s affidavit filed 18 October 2019, [90].
In 2017, X began spending three days a week at preschool at the G Early Childhood Centre. She continued that attendance in 2018, and at the start of 2019 school year her attendance was changed to five days per week, from 8.30AM until 3.30PM on Mondays, Tuesdays, Wednesdays and Fridays, and 8.30AM until 12:00PM on Thursdays, in preparation for starting kindergarten at the school at the beginning of 2020.
The Mother makes no complaint about the accommodation provided by the Father for X when she is his care overnight.
At the interim hearing, submissions were made for the Mother by Mr Othen of Counsel and for the Father by Ms Kennedy of Counsel.
Mr Othen referred the Court to specific parts of the evidence and confirmed that his client did not consider that matter to have any elements of risk. He noted that the Father’s proposed orders had his time with X increase by a step to term 2 in 2020 when it would be five nights per fortnight, a substantial and significant care arrangement. He submitted that it was not appropriate to add a second overnight occasion per fortnight until X had settled into attending her first year of school in kindergarten at G Childrens Centre, and that if a second night was to be added, then in X’s best interest it should be a Friday night so that she can be settled by her Mother for her attendance at school on Monday.
He submitted that it was not in X’s best interest for there to be an overnight occasion with her Father during the midweek, but if such an order was to be made it would be best in her interest for such occasion to be during the “off week” and to commence in 2020.
In relation to any block time between X and her Father, Mr Othen submitted that the Mother made no proposal for such time and that no such order should be made in X’s best interest, but if such an order was made then block time of three days and two nights was the maximum appropriate.
During Mr Othen’s submissions, I indicated that, on the evidence, X had spent 2019 up to that time attending at the G – Early Childhood Centre five days per week, and so her attendance at the same school for kindergarten in 2020 would not present any significant change for her.
In her submissions on behalf of the Father, Ms Kennedy agreed that the matter was not a risk case, and suggested that it would be in the interests of the parties for them to consider some family therapy to assist and resolve their different parenting styles. Ms Kennedy submitted that the increased time between the Father and X proposed in the Father’s orders was age appropriate.
The law – interim parenting proceedings
In parenting proceedings under the Act, the Court is required to follow the legislative pathway set down in the Act. That applies to interim hearings on parenting issues.[29]
[29] MRR & GR [2010] HCA 240; Goode & Goode (2006) FLC 93-286; Marvel & Marvel (2010) 240 FLR 367.
The Court must give attention to section 60B of the Act that sets out the objects of Part IV of the Act relating to children. Those objects inform the making of parenting orders.[30] That section also contains the principles behind those objects. In this matter I have considered those objects and the principles behind those objects.
[30] Family Law Act 1975 (Cth) s 60B.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration. The child’s interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter, but the child’s interests must always be the paramount consideration.
In parenting proceedings, pursuant to section 65D of the Act, the Court may, subject to the presumption of equal shared parental responsibility in section 61DA and consideration of parenting plans under section 65DAB, make such parenting order as it thinks proper.[31] The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[32]
[31] Family Law Act 1975 (Cth) s 65D(1).
[32] Family Law Act 1975 (Cth) s 65D(2).
In determining what is in a child’s best interest, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC and make findings. [33]
[33] Family Law Act 1975 (Cth) s 60CC.
Section 61DA provides that when making a parenting order in relation to a child 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 for the child.[34]
[34] Family Law Act 1975 (Cth) s 61DA.
The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse. The presumption, when applying, may still be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[35]
[35] Family Law Act 1975 (Cth) s 60B.
When the Court is considering parenting matters on the interim basis, the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making interim orders.
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then pursuant to section 65DAA, the Court must consider:
a)Whether the child spending equal time with each parent would be in the best interest of the child;[36] and
b)Whether the child spending equal time with each of the parents is reasonably practicable.[37]
If both questions are answered ‘yes’, the Court must consider making an order to provide for the child to spend equal time with each of the parents.[38]
[36] Family Law Act 1975 (Cth) s 65DAA(1)(a).
[37] Family Law Act 1975 (Cth) s 65DAA(1)(b).
[38] Family Law Act 1975 (Cth) s 65DAA(1)(c).
If the Court does not make an order for the child to spend equal time with each of the parents, then the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable and, if the answer to both is yes, the Court is to consider making an order to provide for the child to spend substantial and significant time with each of the parents.
What is meant by substantial and significant time is set out in section 65DAA(3) of the Act and includes days that fall on weekends and holidays, days that do not fall on weekends or holidays, the child being able to be involved in occasions and events special to the parents, the parents being able to be involved in occasions and events of particular significance to the child, and the parents being able to be included in the child’s daily routine.
If the Court does not make an order for the child to spend substantial and significant time with each of the child’s parents, the Court must then go on to determine what parenting orders are proper in the best interests of the child, per section 65D.
As to what is ‘proper’ and how the Court’s discretion is to be exercised I note the comments of the Full Court of the Family Court of Australia in the recent decision of Grella & Jamieson:[39]
A discretionary judgment concerning the parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.[40]
[39] Grella & Jamieson [2017] FamCAFC 21.
[40] Grella & Jamieson [2017] FamCAFC 21, [18].
There is much jurisprudence on the issue of risk in parenting proceedings. The jurisprudence may be simplified by saying that the task of the Court where risks are asserted is not necessarily to make a finding as to whether the actions and events asserted have actually happened or have definitely not happened, as such a finding is rarely open to the Court on the evidence and most particularly in interim parenting proceedings replete with contested evidence.
Rather, the task of the Court is to assess whether the evidence establishes that there is a risk to the best interests of the child. If the evidence establishes that there is such a risk, briefly expressed, the Court must:
a)Assess whether that risk is an acceptable risk or an unacceptable risk;
b)If it is assessed that it is an unacceptable risk, assess whether or not the risk can be mitigated by appropriate orders; and
c)Decide what orders are proper in all the circumstances in the best interests of the child.
Detailed exposition of the treatment of risk in parenting matters can be found in the decision of the High Court in M & M[41] and the decisions of the Full Court of the Family Court of Australia in A & A & The Child Representative,[42] Napier & Hepburn,[43] Johnson & Page,[44] Deiter & Deiter,[45] and Eaby & Speelman.[46]
[41] M & M (1988) FLC 91-973.
[42] A & A & The Child Representative (1998) 22 FamLR 756, [3.23] to [3.25].
[43] Napier & Hepburn (2006) FLC 93-303.
[44] Johnson & Page (2007) FLC 93-344.
[45] Deiter & Deiter [2011] FamCAFC 82, [61].
[46] Eaby & Speelman [2015] FamCAFC 104.
Where there is contested evidence in an interim hearing the Court is not always able to make a finding, but must do what can be done on the basis of agreed facts and any contested evidence where there is sufficient corroboration on one side to enable a finding. This is to enable the Court to perform its function, and resolve any interim issues with the best interests of the child as the paramount consideration, and make whatever orders are then considered proper.
In SS & AH,[47] in the context of discussing the obligations of the Court whilst conducting interim children’s proceedings where the evidence available was contradictory in nature but nonetheless raised significant welfare concerns for the children concerned, the Court observed:
… 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.[48]
[47] SS & AH [2010] FamCAFC 13.
[48] SS & AH [2010] FamCAFC 13, [100].
As noted by the Full Court of the Family Court of Australia in Eaby & Speelman,[49] 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.”[50]
[49] Eaby & Speelman [2015] FamCAFC 104.
[50] Eaby & Speelman [2015] FamCAFC 104, [19].
Section 60CC – the primary considerations
The primary considerations are the benefit to X of having a meaningful relationship with both of her parents and any need to protect to X from physical or psychological harm or from being subject to, or exposed to, abuse, neglect or family violence.[51]
[51] Family Law Act 1975 (Cth) s 60CC(2).
Subsection (2A) mandates that the Court must give greater weight to consideration of any need to protect X from harm over the benefit to X of having a meaningful relationship with both of her parents.[52]
[52] Family Law Act 1975 (Cth) s 60CC(2A).
In this matter, no risk is asserted by either parent, and there is no suggestion that X is, or is going to be, subjected to or exposed to abuse, neglect of family violence whilst in the care of either parent. Accordingly, the primary consideration of the benefit to X of having a meaningful relationship with both of her parents requires consideration, whilst the question of risk does not.
On all of the evidence at the interim hearing, X has a meaningful relationship with both of her parents. X’s Mother has been her primary caregiver – a fact accepted by the Father – from the time of her birth until the interim hearing. The relationship between X and her Mother is a close and loving relationship.
Whilst X has not spent time with her Father for more than one overnight on any occasion since the parties separated in July 2018, their time together has nevertheless been regular and without incident or behaviour on the part of X sufficient to cause a concern that the relationship is other than a close and loving relationship.
I do not need to lay a foundation based on social science in these Reasons to support a finding that there is benefit to X in having a meaningful relationship with both of her parents. There is no suggestion by either party that it is otherwise. The primary considerations ground a finding that it is in X’s best interests for orders to be made expanding the time that she spends with her Father, and that such orders provide on the interim basis for a progression through age appropriate steps of the amount of that time.
Section 60CC – the additional considerations
There is no independent evidence outside the parties’ affidavits in relation to any views expressed by X.[53] At interim hearing, X was five years and five months of age (she is now six years of age) and so was not of an age where any views expressed by her should be given weight.
[53] Family Law Act 1975 (Cth) s 60CC(3)(a).
I have already made findings in relation to the nature of the relationship of X with each of her parents.[54] The issues for decision in this interim hearing do not require consideration of the nature of relationship of X with any other persons.[55]
[54] Family Law Act 1975 (Cth) s 60CC(3)(b)(i).
[55] Family Law Act 1975 (Cth) s 60CC(3)(b)(ii).
Both parents have fulfilled their obligation to maintain X.[56]
[56] Family Law Act 1975 (Cth) s 60CC(3)(ca).
The change to X’s circumstances proposed in the interim proceedings is that set out in the orders sought by the Father for an increase in the time he spends with X, so that that time progresses to five nights per fortnight after a period of about five months. [57]
[57] Family Law Act 1975 (Cth) s 60CC(3)(d).
Obviously, the change is an increase in the amount of time X spends with her Father, and a decrease in the amount of time she spends with her Mother. In view of the nature of the relationship between each of the parents and X, and the lack of any risk in this matter, I find that if there is any effect on X consequent upon her separation for longer periods of time from her Mother, that effect may be some mild distress during adjustment to the changes. I find on the evidence that any such distress can be appropriately managed and ameliorated by both parents.
There is no evidence that there is any practical difficulty or expense in X spend time with and communicating with her Father.[58]
[58] Family Law Act 1975 (Cth) s 60CC(3)(e).
There is inference in the Mother’s case - (her assertion that the time between X and her Father should not be increased beyond one night per fortnight and three hours each Wednesday afternoon, with no multi-night periods during school holidays) - that the Father lacks adequate parenting capacity to appropriately care for X for any period of time longer than 24 hours. That contention is not supported on the evidence. If I consider the Mother’s evidence alone and take that evidence at its height, a contention that the Father lacks parenting capacity to appropriately care for X for any period longer than 24 hours is not supported.[59]
[59] Family Law Act 1975 (Cth) s 60CC(3)(f), s 60CC(3)(i).
I find that the Mother has capacity to provide for X’s needs, including her emotional and intellectual needs.[60] I find that the Father has capacity to provide for X’s needs, including her emotional and intellectual needs.[61] The only ‘brake’ on increasing the time he spends with X on an interim basis is to increase such times by age appropriate steps to allow X, who is now six years of age and in the middle of her first year at school (though her fourth year at this school) to get used to the changes and to being away from her Mother, her primary carer and primary attachment figure, for increasingly longer periods of time.
[60] Family Law Act 1975 (Cth) s 60CC(3)(f)(i).
[61] Family Law Act 1975 (Cth) s 60CC(3)(f)(i).
X has a mixed cultural heritage; Country B on her Mother’s side and Indian on her Father’s side.[62] X is entitled to know and enjoy a developing awareness and knowledge of her cultural heritages. There is nothing in the evidence to indicate that it would be otherwise.
[62] Family Law Act 1975 (Cth) s 60CC(3)(g).
Happily for these good people and their much loved daughter, this is not a matter with elements of family violence.[63] There are no family violence orders affecting the parties or X.[64]
[63] Family Law Act 1975 (Cth) s 60CC(3)(j).
[64] Family Law Act 1975 (Cth) s 60CC(3)(k).
After consideration of the primary and additional considerations in section 60CC, I find that it is in the best interests of X, with her interests as the paramount consideration, that her time with her Father increase over and above that provided for in the current interim orders and that such time be in excess of that contended for in the Mother’s case on interim hearing.
The extent of that time through progressive steps and the extent of the final step, to prevail until final orders, will be considered below.
Section 61DA – parental responsibility
At the interim hearing on 7 November 2019, an order was made by consent that the parties have equal shared parental responsibility for X. Had that been a matter in issue, I find that there is nothing in this matter that would lead me to find other than that the presumption of equal shared parental responsibility set out in section 61DA of the Act applies.[65]
[65] Family Law Act 1975 (Cth) s 61DA.
Section 65DAA – equal time, or substantial and significant time
There is an interim parenting order by consent made on 7 November 2019 that X’s parents have equal shared parental responsibility for her. That being the case,[66] I must consider whether X spending equal time with each of her parents would be in her best interests,[67] and consider whether X spending equal time with each of her parents is reasonably practicable.[68] If I find that such is in X’s best interests and is reasonably practicable, I must then go onto consider making an order to provide that X spend equal time with each of her parents.[69]
[66] Family Law Act 1975 (Cth) s 65DAA(1).
[67] Family Law Act 1975 (Cth) s 65DAA(1)(a).
[68] Family Law Act 1975 (Cth) s 65DAA(1)(b).
[69] Family Law Act 1975 (Cth) s 65DAA(1)(c).
An order for X to spend equal time with each of her parents was sought on the interim basis by the Father in his Amended Response. At the interim hearing and, on all of the evidence, sensibly and with appropriate child focus, the Father does not seek an order on an interim basis that X spend equal time with each of her parents.
The Father seeks orders that the time between X and her Father progress from the current circumstance under existing interim orders through two nights each alternate weekend and each Wednesday night during term time – three nights per fortnight – to four nights each alternate weekend and the Thursday night in the off week during term time, a total of five nights per fortnight.
The Father seeks block holiday time with X progressing through four nights in one school holiday to five nights in the next school holiday, and then half the school holidays thereafter.
X’s Mother has been her primary carer since the time of her birth and her sole carer overnight since the parties separated in July 2018 except for the one night per fortnight (most of the time) when she has been with her Father. To make orders on the interim basis that involve X spending equal time with each of her parents would involve too great a leap in the short term – a phrase used whilst remaining conscious of the unfortunate delay between these interim orders and final hearing – and would not be in X’s best interests. Having found that it would not be in her best interests, I need not go on to consider the matter any further.[70]
[70] Family Law Act 1975 (Cth) s 65DAA(1).
Having found that X spending equal time with each of her parents is not in her best interests, I must go on to consider whether X spending substantial and significant time with each of her parents would be in her best interests, and consider whether X spending substantial and significant time with each of her parents is reasonably practicable and, if the answer to both is yes, I must then consider making an order to provide for her to spend substantial and significant time with each of her parents.[71]
[71] Family Law Act 1975 (Cth) s 65DAA(2).
Substantial and significant time is explained in subsection 65DAA(3) to include time with a parent that falls on weekends and holidays, time with a parent that does not fall on weekends or holidays, time that allows the parent to be involved in the child’s routine and occasions and events of particular significance to the child, and time that allows the child to be involved in occasions of events that are of special significance to the parent.[72]
[72] Family Law Act 1975 (Cth) s 65DAA(3).
The orders sought by the Mother on interim hearing for time between X and her Father are well below substantial and significant time. The time sought by the Father as his end point on an interim basis involves X spending substantial and significant time with each of her parents.
I can find nothing in the evidence that would support a finding on the interim basis that it is not in X’s best interest to progress to a circumstance where she does spend substantial and significant time with her Father. There is no risk in this case, the Father does not lack capacity, and as I have already said, the only ‘brake’ on immediate substantial and significant time orders is the necessity of giving X time and opportunity to adapt to changes by progressing through steps.
I find that it is in X’s best interests to spend substantial and significant time with each of her parents,[73] and in conjunction with that finding, I also find that it is in X’s best interest to progress to a stage of her spending substantial and significant time with her Father, on the interim basis, by a number of stages to allow her to adapt.
[73] Family Law Act 1975 (Cth) s 65DAA(2)(c).
X spending substantial and significant time with each of her parents is reasonably practicable.[74] The Mother and X reside at Suburb E. The Father resides at Suburb H. X attends school at G Early Childhood Centre at Suburb J. Travel between the parent’s places of residence on weekends and during school holidays presents no practical difficulty or expense other than a consideration of the availability of the parents to travel having any impact on their working requirements.
[74] Family Law Act 1975 (Cth) s 65DAA(2)(d).
Substantial and significant time is contended for by the Father and, accordingly, it must be in his contemplation that he will be able to make his arrangements (noting that he is a health care worker) to enable him to undertake whatever travel is necessary consequent upon orders for changeovers to make substantial and significant time with X practicable.
I find that X spending substantial and significant time with each of her parents is in her best interests and is reasonably practicable, and I find that it is proper to make interim orders progressing past the current interim order regime to a stage of X spending substantial and significant time with her Father by age appropriate steps.[75]
[75] Family Law Act 1975 (Cth) s 65DAA(2)(e).
Conclusion
Having found that it is proper in the best interests of X to make interim orders progressing to a point where she is spending substantial and significant time with her Father, I must give consideration to what those steps should be.
I have outlined twice in these Reasons the steps proposed by the Father which go from:
a)The current circumstance of one night per fortnight and one afternoon each week immediately progressing to four nights per fortnight – two nights each alternate weekend and each Wednesday night; and then,
b)After five months, to five nights per fortnight – Thursday to Monday one weekend and Thursday to Friday in the other week.
I find in relation to school term time that this progression is too quick, and I find that two intervening steps are appropriate rather than one intervening step as proposed by the Father.
Accordingly, I find that an appropriate regime for the interim orders for X’s time with her Father should be:
a)To increase the time to three nights per fortnight – Saturday to Monday each alternate weekend and Wednesday overnight each alternate week – with about three hours on the Wednesday afternoon in the other week, for a period of three months;
b)Then, three nights each alternate weekend – Friday to Monday – and Thursday to Friday each alternate week, a total of four nights, for a period of two months; and
c)Then, to make orders in accordance with those sought by the Father for his time with X during school term time for five nights per fortnight – Thursday to Friday in one week (one night), and Thursday to Monday (four nights) in the other week.
In relation to school holiday times, I also find that it is in X’s best interest to progress on a staged basis. In that regard, I find that it is proper in X’s best interest to make interim orders that X spend time with her Father:
a)During the school holidays at the end of term 2 2020 for a period of three nights from Friday to Monday;
b)That in the school holidays at the end of term 3 2020, she spend a period of four consecutive nights from Friday to Tuesday; and
c)That during the Christmas school holidays at the end of term 4 in 2020, she spend two block periods of five nights with her Father with a period of 14 nights in between; and
d)That thereafter, she spend half of each school holiday period with her Father, and, if final orders have not been made by that time, on a week about basis during the Christmas school holidays at the end of term 4 2021.
At the interim hearing, I was advised by Counsel for both the Mother and the Father that the parties had settled all issues other than the amount of time the Father was to spend with X, and orders were made in accordance with Terms of Settlement. Those Terms of Settlement did not include any of the orders sought by the Father in orders 9 to 20 as set out in his Case Outline.
Those orders sought by the Father were not addressed in submissions, and in noting that I infer absolutely no criticism whatsoever of either Counsel whose assistance to the Court and each of their clients was everything it should be.
I will make a selection of the orders sought by the Father in paragraphs 9 to 20 as they are part of his Application before the Court on the interim hearing and therefore for consideration by the Court. In doing so, I will confine myself to such of those orders sought as I consider to be in keeping with the equal shared parental responsibility order made by consent between the parties and without any element of controversy.
Costs
The Father seeks an order on interim hearing that each party pay his or her costs of and incidental to the interim proceedings. The Mother does not seek an order in relation to costs of the interim hearing.
I must consider the Father’s application for an order that each party pay his and her own costs in terms of section 117 of the Act, which provides in subsection (1) that subject to certain sections, each parties’ proceedings under the Act be his and her own costs.[76]
[76] Family Law Act 1975 (Cth) s 117(1).
I find in the circumstances it is appropriate to make the order sought by the Father in relation to costs of the interim hearing.
Accordingly, I make the orders as set out at the commencement of these Reasons.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 24 June 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Remedies
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Procedural Fairness
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