HATZIS & HATZIS

[2020] FCCA 2859

FEDERAL CIRCUIT COURT OF AUSTRALIA

HATZIS & HATZIS [2020] FCCA 2859

Catchwords:
FAMILY LAW – Parenting – Interim – children’s spend time arrangements between the parents – frequency of communication with the Father - changeover arrangements – form of communication to be used between the parents – best interests of the children – consideration of section 60CC factors – consideration of section 65DAA factors.

Legislation:

Family Law Act 1975 (Cth), ss. 60B(1), 60B(2), 60CA, 60CC, 60CC(2),(3), 60CC(2A), 61DA, 62B, 64B(1), 65D, 65DAA(1)(2),(3),(4),(5), 65DA(2)(5), 102NA

Cases cited:

AMS v AIF (1999) 199 CLR 160

Goode v Goode (2006) 36 Fam LR 422

Keats & Keats [2016] FamCAFC 156

Marvel v Marvel (2010) 43 Fam LR 348

Mazorski & Albright (2007) 37 FamLR 518

McCall & Clark (2009) FLC 93-405

MRR v GR [2010] HCA 4

U v U (2002) 211 CLR 238

Waterford & Waterford [2013] FamCA 33

Applicant: MS HATZIS

Respondent: MR HATZIS

File Number: MLC 13388 of 2019

Judgment of: Judge C. E. Kirton QC

Hearing date: 3 August 2020

Date of Last Submission: 3 August 2020

Delivered at: Melbourne

Delivered on: 22 October 2020

REPRESENTATION

The Applicant appearing in person

Counsel for the Respondent: Ms Mariole

Solicitors for the Respondent: Lander and Rogers

ORDERS

THE COURT ORDERS THAT:

(1)The matter be adjourned to the Duty List of the Federal Circuit Court of Australia on 26 November 2020 at 9.45 am for Mention.

(2)Order 3 of the Consent Orders made on 29 November 2019 is hereby discharged.

FURTHER, THE COURT ORDERS UNTIL FURTHER ORDER THAT:

(3)The children X born in 2016 (X) and Y born in 2018 (Y) (together the Children) spend time with the Respondent Father (Father) as follows:

(a)From 22 October 2020 to 31 December 2020:

(i)From 3:00 pm until 7:00 pm each Tuesday commencing 27 October 2020;

(ii)From 3:00 pm until 7:00 pm each Thursday commencing 22 October 2020; and

(iii)From 10:00 am Saturday until 1:00 pm Sunday in each week commencing 25 October 2020 until 31 December 2020.

(b)From 31 December 2020 until further Order:

(i)From 3:00 pm until 7:00 pm each Tuesday;

(ii)From 3:00 pm until 7:00 pm each Thursday; and

(iii)From 10:00 am Saturday until 3:00 pm Sunday in each week.

(4)Notwithstanding any Order to the contrary:

(a)If the Children are not otherwise in the care of the Father, the Children spend time with the Father from 4:00 pm to 7:00 pm on each of X and Y’s birthdays;

(b)If the Children are not otherwise in the care of the Mother, the Children spend time with the Mother from 4:00 pm to 7:00 pm on each of X and Y’s birthdays.

(5)The Father be at liberty to communicate with the Children by FaceTime, Skype and/or Zoom communication each Monday and Wednesday between 4:30 pm and 5:30 pm, with the Mother to facilitate such communication by answering the call.

(6)Changeover take place in the foyer of the apartment complex where the Father lives or in such other place as the parties agree from time to time.

(7)The parties shall:

(a)Provide the other with 14 days’ notice or as soon as reasonably practicable, of any significant pending medical or allied medical appointment with respect to the Children, or any of them, and invite the other to attend any and all such appointments either physically or by telephone and/or video link, whichever applies;

(b)Provide the other with 14 days’ notice, or as soon as reasonably practicable, of any significant pending appointment with respect to education and/or schooling with respect to the Children, or any of them, and invite the other to attend any and all such appointments either physically or by telephone and/or video link whichever applies; and

(c)Continue to use the application entitled “We Parent” to communicate with one another at all times, unless it is impracticable to do so or in the event of serious illness, injury or an emergency relating to the Children, in which case the parties shall inform the other using whatever means reasonable and practicable to enable the other to be informed as promptly as possible as to the illness, injury or emergency.

FURTHER, THE COURT ORDERS BY CONSENT THAT:

(8)Notwithstanding any Order to the contrary, the Children spend time with the Father as follows:

(a)On Father’s Day:

(i)In the event that the Children are spending time with the Father on that day, his time be extended to conclude at 5:00pm;

(ii)In the event that the Children are not already spending time with the Father on that day, from 5:00 pm on the Saturday before Father’s Day until 5:00 pm on the Sunday;

(b)In the event that the Children are not already spending time with the Father on the Father’s birthday:

(i)From 8:00 am until 7:00 pm if on a week day;

(ii)From 5:00 pm on the day before the Father’s birthday until 9:00 am the following day if on a weekend;

(c)From 3:00 pm Christmas Day until 3:00 pm Boxing Day in 2020; and 

(d)As may otherwise be agreed between the parties from time to time.

(9)Notwithstanding any Order to the contrary, the Children spend time with the Applicant Mother (Mother) as follows:

(a)On Mother’s Day, in the event that the Children are not already spending time with the Mother, from 5:00 pm on the Saturday before Mother’s Day until 5:00 pm on the Sunday;

(b)On the Mother’s birthday, in the event that the Children are not already spending time with the Mother, from 8:00 am until 7:00 pm on a week day and from 5:00 pm on the day before the Mother’s birthday until 9:00 am the following day if on a weekend;

(c)From 3:00 pm Christmas Eve until 3:00 pm Christmas Day in 2020; and

(d)As may otherwise be agreed between the parties from time to time.

(10)The parties consult with and keep the other informed of all significant decisions relating to the Children, including medical appointments and health treatments provided to the Children, as well as details of any treating doctors and specialists.

(11)The parties shall:

a)Advise the other immediately in the event that the Children or either of them suffer any serious illness or injury;

b)Authorise any medical practitioner upon whom the Children or either of them may attend from time to time, to communicate with the other party in respect of the Children’s medical condition and/or requirements; and

c)Advise the other of any sporting or extracurricular activities in which the Children, or either of them are involved and both parties be at liberty to attend.   

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Annexure and these particulars are included in these orders.

B.If in any proceedings there are allegations of family violence and the provisions of s.102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E.If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

F.In the event of non-compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:

(i)     the filing of documents;

(ii)the payment of any applicable filing setting down, mediation or enforcement fee or fees; and/or

(iii)   any other procedural issues;

The application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.

G.To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial judge, or by another appropriate court officer, shortly prior to the final hearing date. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 13388 of 2019

MS HATZIS

Applicant

And

MR HATZIS

Respondent

REASONS FOR JUDGMENT

Introduction

1.This proceeding relates to both parenting and property matters.  This is an interim decision in relation to only the parenting proceedings concerning the children X born in 2016 (X) and Y born in 2018 (Y) (together the Children).  The Applicant is the Mother of the Children and the Respondent is the Father of the Children.

Issues to be Determined

2.The following interim issues are in dispute between the parties:

a)The time the Children should spend with the Father each week and on their birthdays;

b)The frequency with which the Children otherwise communicate with the Father when they are not spending time with him;

c)Where changeover should take place; and

d)The mode of communication between the parents and whether they should continue to use the parenting application “We Parent”. 

Synopsis

3.I have determined that:

a)The Children should spend time with the Father:

(i)Each Tuesday and Thursday from 3:00 pm until 7:00 pm;

(ii)From 22 October 2020 until 31 December 2020 from 10:00am Saturday until 1:00 pm Sunday each week;

(iii)From 31 December 2020 until further Order from 10:00 am Saturday until 3:00 pm Sunday each week; and

(iv)From 4:00 pm to 7:00 pm on each of X and Y’s birthdays, if the Children are not otherwise in the care of the Father.

b)The Father be at liberty to communicate with the Children by FaceTime, Skype and/or Zoom each Monday and Wednesday between 4:30 pm and 5:30 pm;

c)Changeover take place in the foyer of the apartment complex where the Father lives; and

d)The parties shall continue to use the application entitled “We Parent” to communicate with one another at all times, unless it is impracticable to do so or in the event of serious illness, injury or an emergency relating to the Children.

Background

4.The parties to this proceeding were both born in Australia however each have family and cultural connections with Greece.  The Mother was born in 1980 and is 40 years of age.  The Father was born in 1980 and is also aged 40.

5.The Mother was married previously for a period of approximately 5 years.  There were no children of the relationship and the Mother divorced in 2010.  The Mother commenced a relationship with the Father in 2013 and the parties commenced cohabitation in 2014.  The parties married in Greece in 2015.

6.The two children of the parties’ relationship X and Y are now aged 4 and 2 and a half respectively.   The Mother has been the primary carer of the Children since their birth. The Father works full time as a professional.

7.On 16 October 2019 the Mother made a statement to Victoria Police concerning alleged incidents of family violence perpetrated by the Father between 12 October 2019 and 15 October 2019.  A Safety Notice was issued by Victoria Police on 16 October 2019 and the Father was required to leave the matrimonial home that day and as a result the parties separated[1].  On 29 October 2019 an Interim Intervention Order was made (Interim Intervention Order) at the Suburb B Magistrates’ Court on the application of the Victoria Police.

[1] Mother’s November 2019 Affidavit at [17] and Annexure “-1”.

Procedural History

8.The Mother commenced this proceeding for interim and final property orders on 26 November 2019.  The Mother sought an abridgement of time so that the Initiating Application could be heard on an urgent basis, and that application for an abridgment was granted by a Registrar of the Court.  At the time of filing of the Initiating Application the Mother also filed an affidavit[2] (Mother’s November 2019 Affidavit), a Financial Statement[3] and an Affidavit of Ms C, Solicitor[4]. From the time of commencing this proceeding until 28 July 2020 the Mother was represented by solicitors.

[2] Affidavit of the Mother, affirmed on 25.11.19, filed 26.11.19.

[3] Financial Statement of the Mother, affirmed on 25.11.19, filed 26.11.19.

[4] Affidavit of Ms C, sworn on 25.11.19, filed 26.11.19.

9.The Father filed a Response on 28 November 2019 seeking parenting and property orders. The Father also filed an affidavit[5] (Father’s November 2019 Affidavit), a Financial Statement[6] and a Notice of Risk[7] (Father’s Notice of Risk).  The Father’s Notice of Risk made no allegations of child abuse or family violence.  The Father has at all times during this proceeding been represented by solicitors.

[5] Affidavit of the Father, affirmed on 28.11.19, filed 28.11.19.

[6] Financial Statement of the Father, affirmed on 28.11.19, filed on 28.11.19.

[7] Father’s Notice of Risk, filed 28.11.19.

10.The matter first came before the Court on 29 November 2019 in the Duty List. Both the Mother and the Father were represented by Counsel. Interim parenting and property Orders were made by consent. The proceeding was listed for final hearing on 3 March 2021, with an estimate of three days and trial directions were made[8]. The proceeding was otherwise listed for mention in the Duty List on 25 March 2020[9]. In relation to parenting matters, the Court made interim Orders by consent[10]:

[8] Orders 2, and 4-8 of the Orders of the Court, 29.11.19.

[9] Order 1 of the Orders of the Court 29.11.19.

[10] Orders 1-3 and 12 of the Consent Orders 29.11.19.

1That the Husband and Wife have equal shared parental responsibility for the children X born in 2016 and Y born in 2018 (“the children”).

2That the children live with the Wife.

3That the children spend time with the Husband:

(a)     From 29 November 2019 to 2 January 2020:

(i)      From 3:00 pm until 7:00 pm each Tuesday (save for 24 December   2019 when it be from 1:00 pm until 6:00 pm);

(ii)    From 3:00 pm until 7:00 pm each Thursday;

(iii)   From 10:00 am until 4:00 pm each Saturday (save for   30 November 2019 when it shall be from 1:00 pm until 7:00 pm);

(iv)    From 9:00 am until 1:00 pm on Christmas Day, 25    December 2019.

(b)     From 4 January 2020:

(i)       From 3:00 pm until 7:00 pm each Tuesday;

(ii)     From 3:00 pm until 7:00 pm each alternate Thursday;

(iii)    From 10:00 am Saturday to 10:00 am Sunday in each    week;

(c)As the Husband and Wife may otherwise agree upon in writing.

[…]

12That the Husband and the Wife, together with the children, attend on Ms D psychologist, for the purpose of a Family Report AND IT IS REQUESTED that such a report be made available to the parties and the Court on or before 28 February 2020.

11.On 10 February 2020 the Mother filed an Amended Initiating Application, an affidavit[11] (Mother’s February 2020 Affidavit) and a Notice of Risk (Mother’s Notice of Risk).  The Mother’s Notice of Risk made allegations of family violence committed by the Father towards the Mother[12]. It also claimed that the Children were at risk by reason of the Father’s abuse of drugs or alcohol[13].

[11] Affidavit of the Mother, affirmed and filed on 10.2.20.

[12] Mother’s Notice of Risk, at [3].

[13] Mother’s Notice of Risk, at [4(b)].

12.On 17 February 2020 the Court made an Order in Chambers by consent permitting Ms D to inspect the Court file and all documents produced on subpoena once permission to inspect had been granted, and also permitted Ms D to contact the Mother’s medical practitioners.

13.On 22 April 2020 the Father filed an Amended Response, an affidavit[14] (Father’s April 2020 Affidavit) and a Notice of Risk (Father’s Second Notice of Risk). The Father’s Second Notice of Risk made no allegations of child abuse or family violence.

[14]Affidavit of the Father, affirmed 21 April 2020, filed 23 April 2020.

14.On 29 April 2020 the proceeding came before another Judge of this Court for mention via telephone link. Both the Mother and the Father were represented by Counsel. Interim property Orders were made by consent which may be summarised as follows:

a)The parties to attend a Conciliation Conference with a Registrar   of the Court on 22 July 2020 and directions in relation to the   Conciliation Conference[15].

b)The proceeding was otherwise adjourned for an Interim Defended    Hearing before myself on a date to be fixed after the Conciliation    Conference[16].

c)The parties’ solicitors were required to contact my Chambers   after the Conciliation Conference to obtain a date for an Interim   Defended Hearing[17].

[15] Orders 1-5 of the Orders made on 29 April 2020.

[16] Order 6 of the Orders made on 29 April 2020.

[17] Notation A of the Orders made on 29 April 2020. 

15.On 23 July 2020 the parties’ solicitors advised my Chambers by email that the proceeding had not settled at the Conciliation Conference on 22 July 2020 and requested that the proceeding be listed for an Interim Defended Hearing[18]. On 24 July 2020 my Chambers advised the parties’ solicitors by email that the proceeding was listed for Interim Defended Hearing on 3 August 2020 and that the hearing would proceed electronically and remotely via Microsoft Teams[19].  

[18] Email from the Father’s solicitors to Chambers of Judge C.E. Kirton QC, copied to the Mother’s solicitors, dated 23.7.20.

[19] Email from the Chambers of Judge C.E. Kirton QC to the solicitors for the Mother and the Father, dated 24.7.20.

16.On 28 July 2020 the Mother filed a Notice of Address for Service which indicated that the Mother was self-represented. On 28 July 2020 the Father’s solicitors filed an Affidavit of Ms D[20] annexing the Family Report, dated 6 March 2020 prepared by Ms D[21] (Family Report). The Father’s April 2020 Affidavit annexes correspondence from each of the parties’ solicitors seeking clarification of aspects of the Family Report and Ms D’s letter in response, dated 19 March 2020 (Family Report Addendum).[22]    

[20] Affidavit of Ms D, sworn 28.7.20, filed 28.7.20.

[21] Affidavit of Ms D, sworn 28.7.20, filed 28.7.20, Annexure “-1”.

[22] Father’s April 2020 Affidavit at [3(c)] and Annexure “-1”.

17.The matter came before the Court on Monday 3 August 2020 for an Interim Defended Hearing (Hearing). The Hearing was conducted remotely and electronically via Microsoft Teams due to the restrictions in force in the State of Victoria, due to the global pandemic of COVID-19. At the time of the Hearing Metropolitan Melbourne was subject to Stage 4 restrictions, which came into force from 6.00 pm on Sunday 2 August 2020. The Father was represented by Counsel and the Mother appeared in person at the Hearing. 

18.During the Hearing on Monday 3 August 2020 the Mother sought to rely upon a Further Amended Application which the Mother said that she had electronically filed on Saturday 1 August 2020. I did not give the Mother leave to rely upon the Further Amended Application, as the document was not remotely accessible at that time to the Court. I nevertheless permitted the Mother to make submissions in accordance with the Orders that she sought in the Further Amended Application for the purposes of the Hearing on 3 August 2020. The Court’s records have subsequently disclosed that the Mother filed the Further Amended Application at 11.56 pm on Saturday 1 August 2020. 

19.The Mother also sought to rely upon an affidavit that she said that she had electronically filed on Friday 31 July 2020 (Mother’s July 2020 Affidavit). At the Hearing on Monday 3 August 2020 I also did not have remote access to this document as it had not been posted on the Court’s website. Subsequent inquiries have ascertained that the Mother’s July 2020 Affidavit was filed at 4.42 pm on Friday 31 July 2020. Counsel for the Father also objected to the Mother’s July 2020 Affidavit being relied on, due to short service of the affidavit and the inability to obtain instructions from the Father and respond accordingly. I note that the Mother’s solicitors were advised on 24 July 2020 that the Hearing would be proceeding on 3 August 2020. In preparing this Judgment I have not had regard to the matters raised in the Mother’s July 2020 Affidavit, other than to satisfy myself that there were no new allegations made by the Mother not otherwise mentioned by the Mother at the Hearing or in previous affidavits, which would require consideration pursuant to s.60CC(2)(b) of the Family Law Act 1975 (Cth) (Act).   

The Parenting Proposals of the Parties

Father’s Proposals

20.The Father’s Counsel provided to the Court written submissions, dated 31 July 2020 (Father’s Written Submissions). At the Hearing the Father’s Counsel provided to the Court a Minute of Proposed Orders sought by the Father which provided as follows (Minute of Father’s Proposed Orders).   

1 That until further Order, the children X born in 2016 and Y born in 2018 (collectively “the children”) live with the Mother

2 That until further Order, the children spend time with the Father as follows:

2.1From 4 August 2020 until 30 September 2020:

2.1.1 From 3:00 pm until 7:00 pm each Tuesday commencing 4 August 2020;

2.1.2 From 3:00 pm until 7:00 pm each Thursday commencing 6 August 2020; and

2.1.3 From 10:00 am Saturday until 1:00 pm Sunday in each week commencing 8 August 2020 .

2.2 From 1 October 2020 until 31 December 2020:

2.2.1 From 3:00 pm until 7:00 pm each Tuesday;

2.2.2 From 3:00 pm until 7:00 pm each Thursday; and

2.2.3 From 10:00 am Saturday until 3:00 pm Sunday in each week .

2.3 From 1 January 2021 until further Order:

2.3.1 In week one of a two week cycle:

(a)From 3:00 pm Tuesday until the commencement of early learning (or if it is not an early learning day 8:00 am) on Wednesday; and

(b)From 3:00 pm until 7:00 pm on Thursday; and

2.3.2 In week two of a two week cycle:

(c)From 3:00 pm until 7:00 pm on Tuesday; and

(d)From 10:00 am Saturday until 6:00 pm Sunday (1 night).

3 Notwithstanding any Order to the contrary, and until further Order, the Children spend time with the Father:

3.1On Father’s Day:

3.1.1 In the event that the Children are spending time with the Father on that day, his time be extended to conclude at 5:00 pm;

3.1.2 Thereafter in the event that the Children are not already spending time with the Father, from 5:00 pm on the Saturday before Father’s Day until 5:00 pm on the Sunday;

3.2On the Father’s birthday, in the event that the children are not already spending time with the Father, from 8:00 am until 7:00 pm on a week day and from 5:00 pm on the day before the Father’s birthday until 9:00 am the following day if on a weekend; and

3.3 If the Children are not otherwise in the care of the Father on each child’s birthday from 4:00 pm to 7:00 pm on said days;

3.4 From 3:00 pm Christmas Day until 3:00 pm Boxing Day in 2020;

3.5 As may otherwise be agreed between the parties from time to time.

4 Notwithstanding any Order to the contrary, and until further Order, the Children spend time with the Mother:

4.1On Mother’s Day in the event that the Children are not already spending time with the Mother, from 5:00 pm on the Saturday before Mother’s Day until 5:00 pm on the Sunday;

4.2 On the Mother’s birthday, in the event that the Children are not already spending time with the Mother, from 8:00 am until 7:00 pm on a week day and from 5:00 pm on the day before the Mother’s birthday until 9:00 am the following day if on a weekend;

4.3 From 3:00 pm Christmas Eve until 3:00 pm Christmas Day in 2020; and

4.4 As may otherwise be agreed between the parties from time to time.

5 The Children shall have, and each of the parties facilitate, telephone, FaceTime, Skype and/or Zoom communication with the parent with whom they are not already living between 5:00 pm and 6:00 pm on Mondays, Wednesdays, Fridays and Sundays and any other time as requested by any or all of the Children.

6 That until further Order, changeover occur at the front of the Father’s place of residence.

7 The parties consult with and keep the other informed of all significant decisions relating to the Children, including medical appointments and health treatments provided to the Children, as well as details of any treating doctors and specialists.

8 The parties continue to use the application entitled “We Parent” to communicate with one another at all times, unless it is impracticable to do so or in the event of serious illness, injury or an emergency relating to the Children, in which case the parties shall inform the other using whatever means reasonable and practicable to enable the other to be informed as promptly as possible as to the illness, injury or emergency.

9The parties shall:

9.1 Advise the other immediately in the event that the Children or any of them suffer any serious illness or injury;

9.2 Authorise any medical practitioner upon whom the Children or any of them may attend from time to time to communicate with the other party in respect of the Children’s medical condition and/or requirements;

9.3 Provide the other with 14 days’ notice or as soon as reasonably practicable, of any significant pending medical or allied medical appointment with respect to the Children, or any of them, and invite the other to attend any and all such appointments either physically or by telephone and/or video link, whichever applies;

9.4 Provide the other with 14 days’ notice, or as soon as reasonably practicable, of any significant pending appointment with respect to education and/or schooling with respect to the Children, or any of them, and invite the other to attend any and all such appointments either physically or by telephone and/or video link whichever applies; and

9.5Advise the other of any sporting or extracurricular activities in which the Children, or any of them are involved and both parties be at liberty to attend.    

Proposals Agreed by the Parties

21.Counsel for the Father advised the Court that the underlined parts of the Minute of Father’s Proposed Orders were consented to by the Mother[23]. The Mother did not disagree with this proposition and at the Hearing addressed the Court in relation to the orders that she sought which differed from the orders in the Minute of Father’s Proposed Orders.

[23] Transcript P3:L14-15. 

22.Therefore the following matters were agreed to between the parties on an interim basis in the Minute of Father’s Proposed Orders:

a)That the Children should live with the Mother. I note that an interim Consent Order has already been made by the Court to this effect[24]. An interim Consent Order has also been made for the parties to have equal shared parental responsibility for the Children[25].   

[24] Consent Orders made on 29.11.19 at Order 2.

[25] Consent Orders made on 29.11.19 at Order 1.

b)The Children should spend time with the Father during the time periods referred to in:[26]

[26] Minute of Father’s Proposed Orders at [2.1]-[2.3].

(i)Paragraph 2.1 from 4 August 2020 until 30 September 2020, but not for the times referred to in sub-paragraphs 2.1.1 to 2.1.3;

(ii)Paragraph 2.2 from 1 October 2020 until 31 December 2020, but not for the times referred to in sub-paragraphs 2.2.1 to 2.2.3; and

(iii)Paragraph 2.3 from 1 January 2021 until further Order, but not for the times referred to in sub-paragraphs 2.3.1 and 2.3.2.

c)The time the Father should spend with the Children on Father’s Day, the Father’s birthday and at Christmas in 2020, as set out in sub-paragraphs 3.1, 3.2 and 3.4[27].

d)The time the Mother should spend with the Children on Mother’s Day, the Mother’s birthday and at Christmas in 2020, as set out in paragraph 4[28].

e)Consultation in relation to medical decisions, as set out in paragraph 7[29].

[27] Minute of Father’s Proposed Orders at [3.1], [3.2], [3.4] and [3.5].

[28] Minute of Father’s Proposed Orders at [4.1]-[4.4].

[29] Minute of Father’s Proposed Orders at [7].

23.Orders in relation to the exchange of information between the parties relating to the Children as set out in sub-paragraphs 9.1, 9.2 and 9.5.

Mother’s Proposals

24.At the Hearing the Mother proposed the following orders.

25.Until further order, the Children spend time with the Father as follows (Mother’s Spend Time Proposal):

a)From 4 August 2020 until 30 September 2020[30]:

[30] Transcript P10:L9-37.

(i)From 4:00 pm until 7:00 pm each Tuesday;

(ii)From 4:00 pm until 7:00 pm each alternate Thursday; and

(iii)From 10:00 am Saturday until 10:00 am Sunday in each week (1 night).

b)From 1 October 2020 until 31 December 2020[31]:

[31] Transcript P12:L40-P13:L22.

(i)From 8.45 am until 7:00 pm each Tuesday; and

(ii)From 10:00 am Saturday until 1:00 pm Sunday each week (1 night).

c)From 1 January 2021 until further Order:

(i)In week one of a two week cycle:

a.From 8:45 am until 7:00 pm Tuesday; and

b.From 10:00 am Saturday until 1:00 pm Sunday (1 night).

(ii)In week two of a two week cycle from 8:45 am until 7:00 pm Tuesday.

d)If the Children are not otherwise in the care of the Father on each child’s birthday from 5.30 pm to 7:00 pm[32].

[32] Transcript P14:L21-40.

26.The Mother to facilitate the Children having telephone, FaceTime, Skype and/or Zoom communication with the Father between 4:00 pm and 5:00 pm on Mondays and Wednesdays[33].

[33] Transcript P14:L41-P17:L7.

27.Changeover take place in the foyer of the apartment complex where the Father lives[34].      

[34] Transcript P17:L33-P18:L2.

The Law

28.The principles governing the Court’s decision in this proceeding are set out in Part VII of the Act. The Court in determining this application must consider what orders are in the Children’s best interests: s.60CA of the Act. What this means in individual cases is determined by a number of statutory provisions.

29.The objects of Part VII of the Act are set out in s.60B(1) and assist in clarifying what Part VII aims to achieve to ensure that the best interests of children are met. There are also principles that underlie these statutory objects: s.60B(2).

30.Section 65D of the Act gives the Court power to make a parenting order which is defined by s.64B(1).

31.In determining what is in the Children’s best interests the Court must consider the matters set out in s.60CC of the Act. Section 60CC sets out the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the Children. Each of those matters where relevant must be considered and assessed in the context of the respective proposals. The Court must then determine which of the proposals is in the Children’s best interests.

32.The Court is not bound by the parties’ respective proposals (AMS v AIF[35] and U v U[36]).

[35] (1999) 199 CLR 160.

[36] (2002) 211 CLR 238.

33.In applying the primary considerations the Court is to give greater weight to the considerations set out in s.60CC(2)(b): s.60CC(2A).

34.The Full Court in Goode v Goode[37] mandated that the legislative pathway must be followed in all parenting cases and set out the procedural steps to be followed in interim proceedings[38].  It was noted by the Full Court that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place[39].

[37] (2006) 36 Fam LR 422.

[38] Ibid., 445, at [81]-[82].

[39] Ibid., 445, at [82].

35.In Marvel v Marvel[40] the Full Court made the following obiter comments:

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[41].

[40] (2010) 43 Fam LR 348.

[41] Ibid., at [120].

36.In Keats & Keats[42] the Full Court held in respect of interim proceedings:

9 […] that apart from relying upon the uncontroversial or agreed facts, a judge may 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[43].

[42] [2016] FamCAFC 156.

[43] Ibid., at [9].

37.An interim hearing is therefore by its very nature a curtailed hearing.  Evidence is limited and the matter is decided on the papers.

38.I will first consider the primary considerations of the Act.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;

39.The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford[44], Mazorski & Albright[45] and McCall & Clark[46]. 

[44] [2013] FamCA 33.

[45] (2007) 37 FamLR 518.

[46] (2009) FLC 93-405.

40.In the Family Report Ms D reported:[47]

38Both X and Y were comfortable and contented with both parents in the room together. They approached each parent at will, related confidently and in an easy manner with them and seem to have a good and close relationship with each parent.  There was little to differentiate the children’s interaction with either parent, relating and interacting positively with both.

[…]

48There is no dispute with the children have a loving, warm and close relationship with both parents.  They were observed to be happy, settled and secure with both parents. They love their parents and by all accounts, they enjoy their time with both. They seem to miss their Father.  Their primary attachment remains with their Mother as evidenced in some small measure on the day of interview as they turned to her for direction and reassurance when in a strange environment.

[47] Family Report at [38] and [48].

41.I therefore conclude that the Children each have a meaningful relationship with both of their parents.  It was not disputed at the Hearing that the Children should continue to have a meaningful relationship with both parents.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

42.I refer to the discussion in relation to s.60CC(3)(j) and (k).

43.In the Family Report Ms D reported:[48]

[48] Family Report at [44]-[45].

44There is no evidence or concerns raised of risk to the children in either parent’s care. The children it appears, have been exposed to parental conflict which can impact on emotional welfare. Given the parents have separated, the risk is no longer current. 

45However [the Mother and Father] need to be aware and mindful that ongoing tensions between them can impact on the children and cause emotional harm. Children are sensitive to their environment and aware of the parental strains or other negative factors which surrounds them as th[e]y transition between the two households.  Each parent’s account of the other’s behaviour with the children is concerning as it points to exposure to conflict and possible emotional harm to the girls; the Mother’s reports of the tensions at changeover will have a negative impact on the children if not addressed.  Every attempt needs to be made to ensure a positive atmosphere is created for them especially at changeover.    

44.At the Hearing the Mother sought an order that changeover take place in the foyer of the apartment complex where the Father lives. The Mother informed the Court that at changeover the Father behaved in quite an aggressive manner towards her, including pushing past her in front of the Children. The Mother said that there was a CCTV camera in the foyer of the apartment complex and that there had been subpoenas which had obtained evidence of the Father’s behaviour. The Mother said that the Father had participated in this behaviour notwithstanding the Interim Intervention Order[49]. The Mother said that she believed that it was in the Children’s best interest that changeover take place in the foyer where there was a CCTV camera.

[49] Transcript P17:L33-P18:L2.

45.Counsel for the Father submitted that changeover should occur at the front of the Father’s place of residence. It was submitted that the Mother’s proposal was too specific and that it would lead to contravention, for example if the Mother had to enter the Father’s residence if the Children were unwell[50].     

[50] Transcript P17:L12-29.

46.I consider the Mother’s proposal to be in the best interests of the Children and in accordance with s.60CC(2)(b) and I propose to make an Order accordingly. However I also intend to give the parties the flexibility to vary the changeover venue by mutual agreement.

47.The additional considerations are set out in s.60CC(3) of the Act. I will now consider the additional considerations which are relevant to this proceeding.

Section 60CC(3)(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;

48.In the Family Report Ms D reported:[51]

42A brief office interview was conducted with X who was more focused on play. She was observed to be an assertive child and comfortable with the writer. She spoke happily about spending time with her Father, happily reported he has ‘a new house’ and that each parent is ‘happy’ when she is with the other parent. She misses her Father and drew a picture for him to take.

[51] Family Report at [42].

49.Y was not interviewed for the Family Report as she was too young to interview. The Children are too young to determine what is in their best interests.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i)     each of the child's parents; and

(ii)    other persons (including any grandparent or other relative of the child);

Each of the child's parents

50.I refer to the discussion in relation to s. 60CC(2)(a).

51.The Family Report noted that it was “common ground” that the Mother was the “primary carer and homemaker” after the Children were born and that the Father was the “primary breadwinner”[52]. The Family Report recommended a gradual increase in the time that the Children spend with the Father, including overnight time. 

[52] Family Report at [12].

52.In the Family Report Ms D reported:[53]

57In terms of parenting arrangements, it is generally considered developmentally appropriate to establish frequent but shorter periods of time away from the primary parent to, amongst other things, safeguard the child’s primary attachment while beginning to establish and consolidate the other parent’s increasing role in their lives. Children are likely to experience stress and distress when periods of time away from the primary parent are excessive, hence the shorter periods away. The current parenting arrangement is appropriate as it considers those factors and is in line with the children’s developmental needs.   

58[…] However, the transition needs to take into account the children’s young ages, Y in particular who is only two years old. Frequent changes can be very confusing and unsettling. Change needs to be consolidated before the next phase is introduced and needs to be commensurate with the child’s developmental needs.  With that in mind, a graduated approach is recommended […]

59Given the young ages of the girls, it is not possible to make definitive long-term recommendations about parenting arrangements. However, recommendations for the short term and guidelines for the future can be offered […]

[53] Family Report at [57]-[59].

Other persons (including any grandparent or other relative of the child)

53.This is not a relevant consideration. 

Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)     to participate in making decisions about major long-term issues in relation to the child; and

(ii)    to spend time with the child; and

(iii)   to communicate with the child;

Participation in making decisions about major long-term issues in relation to the child

54.The Mother in her Amended Initiating Application[54] and the Father in his Amended Response[55] each seek final orders that they have equal shared parental responsibility for the Children. An interim Consent Order has been made for the parties to have equal shared parental responsibility for the Children[56].

[54] Amended Initiating Application filed by the Mother on 10.2.20.

[55] Amended Response filed by the Father on 22.4.20.

[56] Order 1 of the Consent Orders made on 29.11.19.

55.Both of the parents have therefore sought to participate in making decisions about long term issues in relation to the Children.

Opportunity to spend time and communicate with the Children

56.Subsequent to separation the Children have continued to live with the Mother. The Father has consistently sought to spend time and communicate with the Children. I refer to the discussion in relation to s.60CC(3)(b)(i). The Father by this application seeks the orders referred to in paragraph 5 of the Minute of the Father’s Proposed Orders to be able to regularly communicate with the Children.

Section 60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

57.The Father has been assessed to pay the Child Support Agency approximately $260 a week in child support[57]. In the Father’s Financial Statement filed on 28 November 2019 the Father deposed to paying $260.16 a week in child support to the Mother[58].

[57] Father’s November 2019 Affidavit, at [18].

[58] Financial Statement filed by the Father 28.11.19 at [31].

Section 60CC(3)(d) 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 his or her parents; or

(ii)    any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living;

Either of his or her parents

58.I refer to the discussion in relation to s.60CC(3)(b)(i). Ms D in the Family Report suggested how the Father’s time could be gradually increased. It was suggested that the Father could reconfigure the current Tuesday and Thursday times (3:00 pm to 7:00 pm) to one full day, instead of two half days. This suggestion is consistent with the second stage of the Mother’s Spend Time Proposal, referred to in paragraph 25(b). Therefore, this part of the Mother’s Spend Time Proposal would meet the needs of both the Children. It is significant to note however that Ms D qualified her proposal with “if [the Father’s] work commitments permit”[59].  

[59] Family Report at [60].

59.Counsel for the Father submitted that the Father’s Spend Time Proposal:[60]

a)Accommodated the Children’s sleeping habits[61];

b)Was consistent with the Children’s developmental needs as it provided for frequency of contact and avoided long periods of time between contact with him;

c)Recognised the level of attachment and the bond as between the Children and the Father[62]; and

d)Accommodated the Father’s work obligations.

[60] Father’s Written Submissions at [7].

[61] See Father’s April 2020 Affidavit at [4][a]-[d].

[62] Family Report at [33] and [38].

60.At the Hearing, Counsel for the Father submitted that the father’s  proposal would relieve the Father of the need to take every Tuesday off work, which would be contrary to his obligations to pay maintenance and child support[63]. On 29 November 2019 an interim Order by consent was made for the Father to pay the Mother $240 per week interim periodic maintenance[64]. The two payments of child support and interim periodic maintenance total $500 a week.  

[63] Transcript P5:L30-35.

[64] Order 4 of the Consent Orders made on 29.11.19.

61.The Father’s opposition to taking a whole day off work each week is a significant matter for the Court to take into consideration due to the Father’s financial responsibilities to maintain the Mother and the Children. 

62.The effect of the first stage of the Mother’s Spend Time Proposal referred to in paragraph 25(a), would reduce the time that the Father spends with the Children on Tuesdays and Thursdays from the present 4 hours (3:00 pm to 7:00 pm) to 3 hours (4:00 pm to 7:00 pm). The Mother argues that the time of 4:00 pm to 7:00 pm is necessary, as the earlier time interferes with Y’s afternoon nap. Counsel for the Father submitted that Y was getting older and that her sleep times were subject to change. Counsel also submitted that three hours was quite a short period for the Father to feed and bathe the Children. Further, the earlier time gave the Father more time during the day rather than in the evening[65]. In my view, the submissions made by Counsel for the Father are persuasive. I am fortified in my view by fact that the Orders for Children to spend time with the Father from 3:00 pm to 7:00 pm on Tuesdays and Thursdays were made by consent[66].  

[65] Transcript P9:L26-44.

[66] Orders 3(a) and (b) of the Consent Orders made on 29.11.19.

63.In the Family Report Ms D recommends graduated changes in routine for the Children and nominates periods of three months before a change in the Children’s routine[67]. 

[67] For example Family Report at [59], [60] and [61].

64.In the Family Report Addendum Ms D said:[68]

In response to your enquiries, I firstly refer to my family report noting that guidelines for the future can be offered as opposed to definitive recommendations. Those guidelines include a shift f[ro]m frequent and short periods of time with the Father to less frequent and longer periods; graduated increases in time for the children with their Father; graduated increases in overnight time of one additional consecutive overnight time per year; and a shift from weekly weekend time with the father to fortnightly weekend with him.

Within those guidelines, there are several options as to the configuration of time for the children keeping in mind their developmental needs […].

[68] Family Report Addendum, p1.

65.As this proceeding is listed for Final Hearing on 3 March 2021, I intend to make orders that are consistent with the guidelines in the Family Report in relation to the Children’s developmental needs, as discussed in paragraph 52 and the preceding paragraph. The orders will adopt paragraphs 2.1 and 2.2 of the Minute of Father’s Proposed Orders), and will therefore give the Children weekly time with the Father on a Thursday and increased time each weekend until the Final Hearing. The effect will be to adopt a conservative and incremental approach to increasing the Children’s time with the Father. The orders that are made thereafter will be a matter for the Final Hearing.

Any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living

66.This is not a relevant consideration.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

67.The Mother has remained living in the former matrimonial home in Suburb E with the Children. The Father now lives in a two bed-room rental property[69] in nearby Suburb F. 

[69] Father’s November 2019 Affidavit at [14].

68.The parties raised no issue with the Court relevant to s.60CC(3)(e).

Section 60CC(3)(f) 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 the emotional and intellectual needs;

Each of the child’s parents

69.The Family Report concludes in relation to the parents:[70]

51Individually, both [the Father and the Mother] present as committed, caring and loving parents with appropriate insight and understanding of their children’s needs.  In interview, [the Father] did not present as motivated by anger or malice but presented as pragmatic, accepting the marriage was over and ready to move on. [The Mother] presents as hurt and disappointed, critical of the Father but does not appear to be motivated by anger or malice. 

52However, their account of the other’s behaviour and attitude towards the other is cause for concern, whether founded or not. It suggests they are not child focused and their responses influenced by emotions. It suggests unresolved issues between them which if not addressed, does not bode well for their future relations and ultimately, for parenting their children. Currently, their circumstances are such that the possibility of a positive and cooperative relationship does not appear achievable.

[70] Family Report at [51]-[52].

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

70.This is not a relevant consideration.

Section 60CC(3)(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 that the court thinks are relevant;

71.X is now aged 4 and Y 2 and a half. In the Family Report, Ms D reported:[71]

37X and Y were well and neatly dressed in similar outfits with neatly combed hair. X is 3.5 years old and Y will be 2 years old this year. They clung to […] their mother for reassurance as the writer approached and turned to her for direction as they moved to the playroom. Both girls seem to be meeting their developmental milestones. They are delightful and happy children, inquisitive and playful. They present as a little reserved and shy at first but quickly settled in to play and exploring the playroom.    

[71] Family Report at [37].

72.I otherwise refer to the discussion in relation to s.60CC3(a).

73.Any other relevant factors have been discussed elsewhere in this Judgment.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

74.I refer to and adopt the discussion in relation to s.60CC(2)(a), s.60CC(2)(b) and s.60CC(3)(a).

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;

75.The Mother deposed that:

11 During our relationship [the Father] was financially controlling and emotionally abusive towards me.  He has on occasion also be physically abusive […][72]. 

[72] Mother’s November 2019 Affidavit, at [11].

76.The Father denies committing physical or emotional violence or being financially controlling[73].

[73] Father’s November 2019 Affidavit, at [54].

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following                

(i)     the nature of the order;

77.On 29 November 2019 the Interim Intervention Order was made.

(ii)   the circumstances in which the order was made;

78.The circumstances in which the Interim Intervention Order was made are set out in paragraph 7. A Directions Hearing in relation to the Interim Intervention is scheduled at the Suburb B Magistrates Court on 26 November 2020[74].

[74] Father’s Written Submissions at [14].

(iii)   any evidence admitted in proceedings for the order;

79.There was no evidence before the Court of any evidence admitted in any proceedings involving the Interim Intervention Order.

(iv)   any findings made by the court, or in proceedings for, the order;

80.There was no evidence before the Court of any findings by the Magistrates Court at Suburb B in any proceedings involving the Interim Intervention Order.

(v)    any other relevant matter;

81.All matters relevant to this interim judgment have otherwise been considered in these reasons.

Section 60CC(3)(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;

82.This is an interim decision. The orders that I intend to make follow the guidance provided in the Family Report.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

Telephone, FaceTime, Skype and Zoom

83.The Father is seeking the order referred to in paragraph 5 of the Minute of Father’s Proposed Orders relating to the parties facilitating communication with the Children by telephone, FaceTime, Skype and/or Zoom on every day that he does not spend time with the Children.  The Mother is seeking the order referred to in paragraph 26. 

84.In the Family Report Ms D reported:[75]

64Phone calls to the children have emerged as a point of conflict and anxiety for both parents. Generally, children do not seek to phone the other parent. Young children in particular are not able to sustain phone conversations. The need for phone calls to children often reflect the needs of the parent rather than the needs of the child. Where phone calls are agreed, children of X’s and Y’s age benefit more from Skype calls.

65Phone calls benefit children when each parent is focused and there is sufficient trust to enable children to communicate freely with the other parent. It is harmful for children when phone calls become another weapon between the parents. Recommendation for phone contact can only be made if they are managed in a positive manner otherwise, any benefit to the children will be undermined or lost by the ensuing stress or conflict.

[75] Family Report at [64]-[65].

85.Given the documented level of conflict between the Father and the Mother in this case, and the recommendations in the Family Report, an order for phone calls with the Children is clearly not in the best interests of the Children.

86.During the Hearing the Mother requested that the video calls be made by the Father to the Children between 4:00 pm and 5:00 pm, rather than between 5:00 pm and 6:00 pm. The Mother said this was because she was preparing the Children for bed at the later time and they were usually overtired after 5:00 pm. Counsel for the Father offered a compromised position of 4.30 pm to 5.30 pm[76].

[76] Transcript P16:L41-43.

87.I am persuaded by the Mother’s proposal in relation to the frequency of the Father’s telephone and video calls. In my view, the Father’s proposal is unduly intrusive into the Mother’s life, in circumstances where the parties are presently in a high conflict situation. This is because the Father seeks telephone and video call time with the Children on every day that he is not spending time with the Children. In my opinion, on an interim basis, this is not in the best interests of the Children as it is too frequent. Orders will be made generally in accordance with the Mother’s proposal in paragraph 26 in relation to the frequency of the calls. In relation to the time of the calls, in my view the compromise position put by Counsel for the Father is more persuasive. The Children have been established in a routine of visiting the Father between 3:00 pm and 7:00pm on weekdays pursuant to the current Orders. A video call slightly later between 4.30 pm to 5.30 pm will accommodate the Children’s routine and also the Father’s work commitments, as submitted by Counsel for the Father[77]. Orders will be made accordingly.

[77] Transcript P16:L31-37.

Birthdays

88.The Father is seeking the order referred to in paragraph 3.3 of the Minute of Father’s Proposed Orders relating to the time he is able to spend with the Children on their birthdays. The Father seeks to be able to spend between 4:00 pm and 7:00 pm with the Children on their birthdays, if they are not otherwise in his care. 

89.The Mother is seeking the Order referred to in paragraph 25(d). The Mother seeks an order that the Father spend between 5:30 pm and 7:00pm with the Children on their birthdays, if they are not otherwise in his care. The only reason advanced by the Mother for the time of 5:30pm to 7:00 pm, was that on Y’s birthday this year, the Father did not permit the Mother to have any additional time with her. Y spent time with the Father from 10:00 am on Y’s birthday)[78]. I note that the Mother has not sought an order to prevent this situation occurring again, so that she can spend more time with the Children where the Children have their birthdays whilst they are spending extended time with the Father. As the Mother is self-represented I intend to include such an order as an interim Order of the Court, pending the final determination of this proceeding.

[78] Transcript P14:L12-19.

90.In my opinion, the Father’s birthday proposal in paragraph 3.3 of the Minute of Father’s Proposed Orders is in the best interests of the Children. No justifiable reason has been advanced to the Court to reduce the usual period of time the Children would spend with their Father, especially on such a special day for them.  Accordingly Orders will be made in accordance with paragraph 3.3 of the Minute of Father’s Proposed Orders.  Conversely an Order will be made in favour of the Mother in the same terms.

“We Parent” App

91.The Father is seeking the order referred to in paragraph 8 of the Minute of Father’s Proposed Orders in relation to the “We Parent” application (Application). I do not accept the Mother’s objections to the use of a parenting application. I agree with the submissions made by Counsel for the Father. Counsel submitted that the Application provides a “one-stop shop” for the parties in their communications with each other. It also provides send receipts and read receipts, so that it was clear when a message had been both sent and received. The order as proposed by the Father also retains the flexibility for other modes of communication in urgent circumstances. Orders will be made in accordance with the Father’s proposal in relation to the Application.

Miscellaneous Communications

92.At the Hearing the Mother objected to the orders sought by the Father referred to in paragraphs 9.3 and 9.4 of the Minute of Father’s Proposed Orders relating to communication between the parties[79]. The Mother was concerned that she was going to be compelled to give 14 days’ notice in circumstances where she had not received that amount of notice of a relevant event. I discussed with the Mother that each of the proposed orders included the words “or as soon as reasonably practicable” to specifically cater for circumstances where 14 days’ notice of an event had not been given.   

[79] Transcript P19:L1-41.

93.The proposed orders referred to in sub-paragraphs 9.3 and 9.4 of the Minute of Father’s Proposed Orders are in the best interests of the Children and orders will be made accordingly.             

Equal Shared Parental Responsibility

94.Section 61DA of the Act 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. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child. The presumption can be rebutted if it is otherwise not in the best interest of the child for the child’s parents to have equal shared parental responsibility.

95.Section 61DA of the Act provides as follows:

(1)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.

(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a)abuse of the child or another child who, at the time, was     a member of the parent’s family (or that other person’s family); or 

(b)family violence.

(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)The presumption may 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.

96.I refer to the matters in paragraph 54. Therefore pursuant to s.61DA(3) of the Act I determine that until further order, it is in the Children’s best interests for the Mother and the Father to have equal shared parental responsibility.

Statutory Pathway

97.Where the parents have equal shared parental responsibility for a child, sub-ss.(1)-(5) inclusive of s.65DAA of the Act requires the Court to consider the child spending equal time, or substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:

Equal time

(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared    parental responsibility for the child, the court must:

(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Substantial and significant time

(2)Subject to subsection (6), if:

(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

(b)the court does not make an order (or include a provision    in the order) for the child to spend equal time with each of the parents;

the court must:

(c)consider whether the child spending substantial and significant time with each of the parents would be in the    best interests of the child; and

(d)consider whether the child spending substantial and significant time with each of the parents is reasonably   practicable; and

(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

(a)the time the child spends with the parent includes both:

(i)    days that fall on weekends and holidays; and

(ii)     days that do not fall on weekends or holidays; and

(b)the time the child spends with the parent allows the parent to be involved in:

(i)    the child’s daily routine; and

(ii)     occasions and events that are of particular significance to the child; and

(c)the time the child spends with the parent allows the child    to be involved in occasions and events that are of      special significance to the parent.

(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child   spends with a parent would be substantial and significant.

Reasonable practicality

(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

(a)how far apart the parents live from each other; and

(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or     substantial and significant time, with each of the parents; and

(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d)the impact that an arrangement of that kind would have on the child; and

(e)such other matters as the court considers relevant.

98.In MRR v GR[80], the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an Order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an Order for equal time. The High Court said:

13 Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss(2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent[81].

[80] [2010] HCA 4.

[81] [2010] HCA 4, at [13].

99.As there will be an interim order for equal shared parental responsibility, I am now required to address the statutory pathway as set out in s.65DAA(1) – (5).

Equal Time with Both Parents

100.Firstly I will address the Children spending equal time with both parents[82]. Neither the Mother’s Spend Time Proposal or the Father’s proposal involves the Children spending equal time with each parent.

[82] Section 65DAA(1).

101.In considering whether the Children spending equal time with both parents to would be in their best interests[83], I have taken into account the matters discussed in relation to s.60CC(2)(a), s.60CC(3)(a), 60CC(3)(b)(i) and 60CC(3)(d). I therefore determine that equal time with both parents would not be in the Children’s best interests: s.65DAA(1)(a).

[83] Ibid; (1)(a).

102.As I have determined that it is not in Children’s best interests to spend equal time with both parents, on the basis of MRR v GR[84] I may not make an order pursuant to s.65DAA(1) for equal time. I am therefore now required pursuant to s.65DAA(2) to consider whether an order that the Children spend substantial and significant time with each of their parents is in their best interests.

[84] [2010] HCA 4.

Substantial and Significant Time

103.The Court therefore must consider whether the Children spending substantial and significant time with each of the parents for the purposes of this interim decision is:

a)In the best interests of the Children: s.65DAA(2)(c); and

b)Reasonably practicable: s.65DAA(2)(d).

104.In considering whether the Children spending substantial and significant time with both parents would be in the Children’s best interests[85], I have taken into account the matters discussed in relation to s.60CC(2)(a), s.60CC(3)(a), 60CC(3)(b)(i) and 60CC(3)(d). I therefore determine that for the purposes of this interim decision, substantial and significant time with both parents would not be in the Children’s best interests: s.65DAA(2)(c).

[85] Section 65DAA(2)(c).

105.As I have determined that it is not in the Children’s best interests to spend substantial and significant time with both parents on an interim basis, I am unable to make an order for substantial and significant time[86]. It is therefore not necessary for me to consider whether it would be reasonably practicable for the Children to spend substantial and significant time with both parents[87].

[86] Section 65DAA(2)(c)-(e).

[87] Ibid (2)(d) and Section 65DA(5)(a) – (e).

Consideration and Conclusion

106.In considering this interim decision I have adopted a conservative approach that is not likely to cause harm to the Children, as suggested by the Full Court for interim matters in Marvel v Marvel[88].

[88] (2010) 43 Fam LR 348, at [120].

107.I have followed the legislative pathway as require by Goode v Goode[89], to the extent that I have been able, given that this is an interim case and the evidence is untested by cross examination.

[89] (2006) 36 Fam LR 422, at [81]-[82].

108.I have considered each of the primary considerations in s.60CC(2) and accorded greater weight to the considerations set out in s.60CC(2)(b). I have also considered each of the additional considerations in s.60CC(3) to extent that they are relevant. For the reasons set out herein, I determine that Interim Orders that have summarised under the heading ‘Synopsis’ are in the best interests of the Children as required by s.60CA of the Act.

109.As a further matter I note that at the Hearing the Mother sought to raise matters pertaining to the Father’s alleged breaches of the Orders made on 29 November 2019 relating to financial matters. The matters relating to the alleged breaches were deposed to in the Mother’s July 2020 Affidavit. As discussed in paragraph 19, the Mother was not given leave to rely on this Affidavit at the Hearing. This proceeding has been listed again for mention in the Duty List on 26 November 2020 in the event that these financial issues remain current between the parties. In the event that the financial issues that are concerning the Mother are resolved between the parties, the parties should forward a Minute of Consent Orders to my Chambers requesting vacation of the 26 November 2020 hearing date to avoid further legal costs.             

I certify that the preceding one-hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge C. E.  Kirton QC

Associate: 

Date: 22 October 2020