Kapoor & Kapoor
[2024] FedCFamC2F 605
•10 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kapoor & Kapoor [2024] FedCFamC2F 605
File number(s): SYC 7947 of 2022 Judgment of: JUDGE STREET Date of judgment: 10 May 2024 Catchwords: FAMILY LAW – PARENTING – interim hearing – four year old child – progress to overnight time. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Cour of Australia Act 2021 (Cth)
Division: Division 2 Family Law Number of paragraphs: 35 Date of hearing: 10 May 2024 Place: Sydney Counsel for the Applicant: Ms M Kennedy Solicitor for the Applicant: Fox & Staniland Lawyers Counsel for the Respondent: Mr D Blackah Solicitor for the Respondent: Marsdens Law Group Counsel for the Independent Children’s Lawyer: Mr T Iuliano Independent Children’s Lawyer: Gordon & Barry Lawyers ORDERS
SYC 7947 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KAPOOR
Applicant
AND: MR KAPOOR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
10 MAY 2024
BY CONSENT AND PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1.The parenting interim orders made on 17 March 2023 are vacated.
2.The parties have joint parental responsibility, including major long-term issues for the child, X (“the child”), born in 2020.
3.The child live with the mother.
4.That the parties do all things necessary and sign all documents to enrol the child at B School to ensure the child commences school in term 1 of 2025.
5.That both parties are to ensure the other party is informed as soon as reasonably practicable the following:
(a)Their current residential address;
(b)Their current mobile, telephone number and email address; and
(c)Shall notify the other parent within 24 hours of a change occurring.
6.That both parties are to ensure the other party is informed for the following as soon as reasonably practicable and at least by the next changeover:
(a)In the event that the child suffers any illness or injury requiring attendance at or admission to a hospital, requiring specialist medical treatment whilst they are in their respective care.
(b)Any non-urgent medical condition, health issue or illness the child suffers whilst the child is in their care for which the parent sought advice and provide the details of the practitioner consulted, the advice received, and any treatment provided to the child.
7.For the purpose of changeover, unless otherwise agreed, not occurring at Daycare or School the Father shall pick up child at the beginning of his time with the child from the Mother’s residence and shall drop-off child at the conclusion of his time with the child to the Mother’s residence.
8.That both parties are at liberty to contact the child’s school to obtain information about the child’s progress at school and other school related activities and supply to them copies of school reports, photographs, certificates and awards obtained by the child and any costs associated are to be met by the parent making the request.
9.That the mother is hereby restrained from causing the child to receive any psychological therapy without the father’s consent or an order of the court permitting her to do so, noting that the child is presently attending Play Therapy until the commencement of kindergarten.
10.That the parties, their servants and agents are hereby restrained by injunction from any form of physical force of punishment to discipline the child, or permitting anyone else to do so.
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
11.That the child spend time with the father forthwith as follows:
(a)As agreed between the parties in writing, but failing agreement:
(i)From the date of these Orders:
A.From 3:30pm Tuesday until 6pm Wednesday first week; and
B.From 8am Saturday to 6pm Sunday each second weekend.
(ii)Following the completion of order 11(i) the father shall spend time as agreed and failing agreement:
A.From 3:30pm Tuesday until 6pm Wednesday first week; and
B.Second week Friday 3:30pm until Monday 9am upon drop off to day care or school.
B(i). If the above Monday is a public holiday, the child will remain with the Father until Tuesday 9am upon drop off to day care or school.
12.That upon the child commence school in 2025 the child shall spend time with the father for half of all the NSW gazetted school holiday periods, as agreed between the parties and failing agreement for the first half of the holidays in 2025 and continuing each odd year thereafter and for the second half of the holidays in 2026 and continuing each even year thereafter.
13.That the child shall spend time with the parties during special occasions as follows:
(a)Father’s Day and Mother’s Day:
(i)As agreed between the parties in writing, but failing agreement:
A.For father’s day should it not be the Father’s ordinary weekend then the child will spend time with the Father from 6pm Saturday before Fathers day until Monday 9am or before school.
B.For Mother’s day should it not be the Mothers ordinary weekend then the child will spend time with the Mother from 6pm Saturday before Mother’s day until Monday 9am or before school.
(b)Christmas:
(i)As agreed between the parties in writing, but failing agreement:
A.The child spend time with the Father from 4:00 pm Christmas Eve until 2pm Christmas Day commencing from 2024 and each even year thereafter.
B.The child spend time with the Father from 4:00 pm Christmas day until 2 pm Boxing Day commencing 2025 and each odd year thereafter.
(c)Diwali:
(i)As agreed between parties in writing, but failing agreement:
A.Each year on the date of Diwali, the child spend time with the Father overnight commencing from 10:00 am on Diwali until 6:00 pm the following day.
(d)Easter Weekend:
(i)As agreed between parties in writing, but failing agreement:
A.The child spend time with the Father from 10:00 am on Good Friday until 6:00 pm Holy Saturday commencing at each odd numbered year.
B.The child spend time with the Father from 6:00 pm Holy Saturday until 6:00 pm Easter Monday commencing 2024 and each even numbered year thereafter.
(e)Birthdays:
(i)As agreed between the parties in writing, but failing agreement:
A.For the child’s Birthday:
A(i). On each odd numbered year, the child spend time with the Father from 2pm until 2pm the following day.
A(ii). On each even numbered year, the child spend time with the Father from 2pm to 2pm the following day.
B.For Father’s Birthday
B(i). The child spend time with the Father from 10:00 am until 6:00 pm the following day.
C.For the Parental Grandfather’s Birthday
C(i). The child spend time with the Father overnight from 10:00 am until 6:00 pm the following day.
D.For X’s Paternal Grandmother’s Birthday
D(i). The child spend time with the Father overnight for the Grandmother’s birthday from 10:00 am until 6:00 pm the following day.
(f)Additional Holidays
(i)As agreed by the parties in writing, but failing agreement:
A.For a Family Wedding:
A(i). The child shall spend time with the Father from Sunday 9 am until 7pm Wednesday that week.
14.For the purpose of changeover, unless otherwise agreed, not occurring at Daycare or School the Father shall pick up child at the beginning of his time with the child from the Mother’s residence and shall drop-off child at the conclusion of his time with the child to the Mother’s residence.
15.That both parties are to keep the other informed of the child’s treating medical practitioners, and that both parties are to provide authorities to allow the other parent to contact the treating medical practitioner to speak about the child’s health and wellbeing.
16.That both parties shall inform the party other, except in the case of emergency, of all medical appointments, that she makes for the child and should provide details of the appointment including name of the doctor, time of appointment and address of where the appointment is to occur and such details must be provided no later than 14 days prior to the appointment.
17.The mother and the father, and their servants and their agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the said child X, born in 2020, from the Commonwealth of Australia.
18.The Australian Federal Police are requested to and authorised to give effect to the preceding order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Family Law Watchlist until further order of the Court.
19.The legal representative of the Father is to notify the Marshal and the Australia Federal Police of these orders and must as soon as possible provide a copy of these orders to the Marshal and the Australian Federal Police.
20.That in the event either party wishes to organise a social event, holiday or other such social commitment for the child, such event is to be during that parties’ regular time with the child with the exception of above or otherwise as agreed in writing.
21.The matter is fixed for a final parenting and property hearing commencing at 10:00am on 5, 6 & 7 May 2025 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Cour of Australia Act 2021 (Cth).
22.The applicant file and serve a consolidated trial affidavit on or before 18 March 2025.
23.The respondent file and serve a consolidated trial affidavit on or before 28 March 2025.
24.The applicant file and serve a case outline, along with a chronology and list of objections on or before 11 April 2025.
25.The respondent file and serve a case outline, along with a chronology and list of objections on or before 18 April 2025.
26.The parties are to file an agreed balance sheet on or before 25 April 2025.
27.Leave is granted to the ICL to file and serve a case outline on or before 30 April 2025.
28.Leave is granted to the parties, including the ICL, to provide consent orders to be made in chambers, if appropriate.
29.Liberty is granted to apply on two (2) days’ notice.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These are parenting proceedings that were commenced on 24 November 2022 in relation to the child X, born in 2020.
There was an expert report released to the parties by Dr C dated 15 February 2024, following which an application was filed by the father in application proceedings to vary the existing parenting orders that had been made on 17 March 2023. Those parenting orders did not include any overnight time. The father has been seeing the child during the day.
DOCUMENTS RELIED UPON
At the commencement of the hearing, the Court identified the affidavit evidence and the tender bundle material, which were marked as exhibits.
The following affidavits were treated as read:
(1)Affidavit of Applicant Mother dated 3 May 2024.
(2)Affidavit of Respondent Father dated 3 April 2024.
The following material was marked as exhibits:
·Exhibit A: Tender Bundle of Applicant Mother dated 9 May 2024.
·Exhibit B: Single Expert Report of Dr C dated 15 February 2024.
·Exhibit C: Tender Bundle of Respondent Father dated 9 May 2024.
·Exhibit D: Child Impact Report dated 11 January 2023.
·Exhibit E: ICL’s Tender Bundle dated 10 May 2024.
·Exhibit F: Father’s updated proposed minute of order dated 10 May 2024.
·Exhibit G: ICL’s proposed minute of order dated 10 May 2024.
·Exhibit H: Mother’s proposed minute of order dated 10 May 2024.
CHRONOLOGY
Date Event 1988 Ms Kapoor ("Wife/Mother") is born in Country D. 1990 Mr Kapoor ("Husband/Father") born. 2015 Father contends that mother attempts self-harm. 2017 Parties commence cohabitation 2018 Parties marry. 2020 X is born 2020 Mother contends Father makes a threat of self-harm. 2020 Parties are admitted to E Organisation for sleep settling issues with X. 2020 Mother is admitted to E Organisation. Early 2022 The parties separate.
The father moves to City F.From early 2022 X spends time with the father:
Monday, Tuesday and Wednesday mornings, taking her to day care and occasionally Thursday mornings to take her to the park. This is later reduced to Monday and Wednesday due to Mother's work commitments.
Each Sunday for a couple of hours.
Regular visits Monday, Wednesday and occasionally Thursday nights to say goodnight.Mid-2022 Father contends from this time Mother starts to restrict his time with X saying it is disturbing her routine. Mid-2022 Mother and Father share the drop offs at day care to the end of 2022. 11.11.2022 Mother files Initiating Application seeking Orders for parenting, including:
equal parental responsibility;
child live with Mother;
child spend time with Father:
Sunday 10.00 am
to 12.00 pm;
Monday and
Wednesday morning to take the child to day care;
with extended time after confirmation from a forensic psychologist/psychiatrist the child is not at risk in the Father's care.
Mother seeks interim Orders about the passport and 'spend time with' similar to final Orders.23.11.2022 Father files Response.
Father seeks staggered Orders, step 1 - 3 months, step 2 - by the time the child commences school, alternate weekends and after school, Tuesdays, Thursdays and alternate weekends but, if the Father lives close to the Mother, for 7 days on a week about basis, Friday to Friday.22.12.2022 Child Impact Report of Ms H.
Findings:
Both parties acknowledge the Mother was the primary carer.
Mother contends Father was not interested in her care attributable to his depression. She felt unsupported and almost rejected by him.
Father denies these assertions and wants more involvement with the child.
Father says Mother is restrictive. Mother denies this.
Mother describes the child's experience of home life prior to separation as unsettled and stressful. Father denies this, other than there was unhappiness within the relationship.
Mother says Father is inconsistent in post- separation care involvement.
Mother contends Father ignores her and does not communicate at changeover.
Consultant observed Father did not say hello but did say goodbye and there was awkward tension.
Consultant notes the child has rarely spent time away from Mother.
The child was observed to seek out her Mother for reassurance and comfort. Also sought clarity and reassurance from Father in her observations.
Both parents described the child with a large smile on their faces and spoke lovingly about her. Mother described her as fantastic, funny and feisty. Father described her as gentle, cautious and happy. Both parents describe her as enjoying nature.
Both parents present as gentle.
Mother reports child is clingy, crying and requiring more comfort and breastfeeding after visits and has nightmares.
Risk Issues:
Both parents raised concern about the other's mental health.
Mother claims Father's depression and emotional volatility were such that he was difficult to be around and worried he may harm himself.
Recommendation:
3 x 3- hour blocks or 2 x 4 hour blocksEarly 2023 Parents sign consent form to X engaging in play therapy. Early 2023 X has first engagement in play therapy. X is observed to be tentative and anxious on transition to playroom. Looks at mother several times during session and shows mother some of the toys from the playroom. Went to mother once during the session. Mother sits at door to playroom. Door remained open. Early 2023 Father completes 'parenting after separation' course.
Subjects completed - Australian family law, Parents in Focus, Children in Focus, Practical Co-parenting and Personal Development.Early 2023 – Mid‑2024 X engages in play therapy on approximately 52 occasions. Over this period, X is observed to initially require encouragement to enter the playroom, at times requesting the Mother transition with her into the playroom or leave the door open so that she can see the Mother in the waiting room to quicker transitions although by late 2023 she is again requesting her Mother stay in the playroom with her and at times reluctant to enter the playroom. 17.03.2023 Orders made in respect of parenting. Late 2023 Parties attend Dr C Late 2023 Divorce Order made in respect of parties marriage. 15.02.2024 Report of Dr C single expert is released:
Dr C recommends:
Equal shared parental responsibility;
The parties engage in FDR mediation;
that the Court consider prohibiting the Mother from travelling from overseas to the X until X reaches 18 years of age;
the prospects for an eventual progression to equal time are realistic.08.03.2024 Parties engage in Dispute Resolution Conference facilitated by a family consultant and Judicial Registrar. 29.04.2024 X and Mother attend Independent Children's lawyer's office and X declines to transition from the Mother to meet with the Independent Children's Lawyer. PARENTING LAW – THE RELEVANT PRINCIPLES
The Court has taken into account the new statutory pathway in relation to Part 7 and, in that regard, the Court has had regard to the principles in section 46, section 60B, section 69ZN, and the objects identified.
The Court has also had regard to the meaning of a "parenting order" in section 64B, as well as the purpose of the order identified in section 65D.
The Court has also taken into account the paramount concern, being the best interests of the child, identified in section 60CA and section 65AA.
The new provisions in section 60CC are as follows:
60CC How a court determines what is in a child’s best interests
Determining child’s best interests:
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
a.consider the matters set out in subsection (2); and
b.if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3)
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
a.what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
i.the child; and
ii.each person who has care of the child (whether or not a person has parental responsibility for the child);
b.any views expressed by the child;
c.the developmental, psychological, emotional and cultural needs of the child;
d.the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
e.the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
f.anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
a.any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
b.any family violence order that applies or has applied to the child or a member of the child’s family.
The Court has also had regard to and taken into account the Convention on the Rights of the Children at New York on 20 November 1989 and, in particular, articles 7, 9, 12, 18 and 19, and the Court has underlined, as emphasis, the relevant parts in those articles.
Article 7
(1) The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.
(2) States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.
Article 9
(1) States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
(2) In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
(3) States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
(4) Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.
Article 12
(1) States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
(2) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Article 18
(1) States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
(2) For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.
(3) States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible.
Article 19
(1) States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
(2) Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
The Court notes, in particular, the concept of the need to maintain personal relations and direct contact on a regular basis and common responsibilities, which concepts, although not so expressed, are similar to the old concept of meaningful time. No such expression, however, is used and the Court has focused on the content and concept of the need to maintain personal relations and direct contact on a regular basis and common responsibilities in relation to making these parenting orders.
The Court must, under section 60CC(2), consider what arrangements would promote safety, including the prevention of harm to a child or parent. The child is at an age where the child's tender years are not ones where great weight would be placed upon the same, but it is clear the child has a relationship with both parents in relation to section 60CC(2)(c). The child obviously has a close attachment to a primary carer, being the mother, and is to commence kindergarten next year and requires a gradual progression in relation to maintain personal relations and direct contact, with the father, on a regular basis and common responsibilities that the father has not been enjoying in terms of overnight time since the making of the earlier interim orders.
The Court has also taken into account the emotional and cultural needs of the child. The young age means the child is still in need of both parents for her development, emotional and physical advancement and needs.
The Court must also have regard to the benefit of the child being able to have a relationship with the child's parents and the other people who are significant to the child where it is safe to do so. This consideration warrants significant increase in time with the father which will also facilitate increased time with the parental family.
The Court is also to have regard to any other relevant particular circumstance, and in that regard, the duration of the day time visits, since the interim orders, require advancement to overnight time.
SUBMISSIONS
In relation to historic allegations of family history, they are so historic in the present case as to be of no relevance. There is no current family violence order, and there is no dispute as to the parental capacity of each parent. And there is no unacceptable risk that has been the subject of identification by either parties beyond issues in respect of the rate of increase of time, given the child's identified occasions of anxiety and attachment to the mother as well as has been pointed out what appears to be continued co-sleeping and breastfeeding.
In relation to submissions, the Court had the benefit of case outlines from the ICL and both parties and heard oral submissions on the limited contested orders. It is of great credit to both parties that there was a very large degree of cooperation and agreement in respect of the parenting orders, and a significant number of important orders have been made by consent. Not only does the Court congratulate the parties in relation to being able to achieve that interim consent, but the interim consent shows a level of focus and understanding by both parties as to the importance on the best interests of their child. That is what is needed for the future parenting of the child, focus on the child's best interests, not the interests or perceived interests of either parent. Those partial consent orders were of significance, and the Court greatly appreciates the assistance the parties no doubt received from the counsel and solicitors and ICL in achieving that level of partial consensus.
FINDINGS AND CONCLUSIONS
The Court has taken into account the findings in the paragraphs [11] – [15] above. The area of dispute between the parties was first in relation to the increase of time. Essentially, the mother wanted time to start to increase, effectively, after a period of a further four weeks, and identified the content in the child therapy records that supported a level of anxiety by the child at times, and also pointed to the family report in terms of the recommendations of Dr C.
There was a suggestion that that time needed to increase on the basis that the father relocated. It is rarely, if ever, appropriate to direct parties as to where they should live, and this Court would not do so in the present case. Whether the father chooses to find a more convenient location for him is entirely a matter for the father, and the Court does not regard it as appropriate to be directing parties to change their residence based on suggestions contained in a family report of the kind in the present case where there is no issue or want of parenting capacity.
There is a practical difficulty in terms of compliance with the orders that was touched upon by Ms Kennedy on behalf of the mother, identifying the significance of travel time that can take, potentially, the Court was informed, up to from 45 to 80 minutes. In any event, the proposed orders take account of that practical difficulty in terms of travel time by providing effectively, rather than snippets of daytime as proposed by the mother, overnight time with the father from Tuesday to Wednesday. The travelling will not be impractical given that overnight time, and overnight time from Saturday to Sunday in the first three-month period.
The Court is conscious of the fact that there was a recommendation for a gradual step after six months in the report of Dr C. However, the step identified by the Court is consistent with progressing effectively to one night a week for the first three months. That is a gradual and slow change, and it is not a rate that the Court finds is likely, or at least poses any unacceptable risk to the child, and is, in all the circumstances, appropriate given the very protracted period of daytime visits that the father has successfully had with the child that should have progressed earlier than today.
It was also submitted, by the mother, that there should be a period of a more gradual increase of time rather than that propounded by the father. The Court is of the view that the three-month period permits of a gradual increase which is, effectively, every second weekend in addition to the overnight time during the first week. This is a gradual increase, and permits the child to have the benefit of the father having personal relation, direct contact and common responsibilities over a more significant period of time for the advancement of the child's wellbeing, physical and emotional health and development.
The Court does not accept that the issues identified by the psychologist in the child therapy reports are ones upon which great weight should be placed, given that time should have earlier progressed to a much greater extent, as identified by Dr C, who suggested that there was little reason for the therapy that seemed to be taking place. Notwithstanding that, the Court has taken that into account the ongoing therapy until the commencement of next year. So to the extent that the increase in time occurs, it will occur in a period where that therapy is still taking place to the extent, if at all, that it provides some assistance to the child and is a further reason why the Court is of the view it is appropriate to increase the time in accordance with the progression in substance identified by the father.
There was a suggestion on behalf of the mother that no further orders needed to be made, given a potential hearing next year. It is most unfortunate that the Court is not hearing the matter today as a final parenting matter. Indeed, had the Court fully appreciated the content of what had been filed in the application in the case, the Court might have fixed the application and proceedings and the matter for a final parenting hearing rather than having a second interim hearing, which is effectively what has occurred, albeit on the first occasion there was interim consent. There has, on this occasion, been substantial consent.
Be that as it may, it is one where it is more appropriate to make orders that, hopefully, prevent ongoing dispute between the parties and facilitate the parties potentially agreeing on final parenting orders. It is for that reason that the Court is satisfied it is appropriate to address what should occur in relation to school holidays after the first term.
Mr Blackah contended that there should be a time in accordance with his orders. That every week time would not be appropriate, because what it does is it precludes the same time every week identified from ever being the subject, then, of enjoyment of common responsibilities by the mother and the child on those particular days. That is why the Court has preferred the view of alternate weeks in terms of first week, second week.
Mr Blackah also wanted to have a period from 28 December until 7 January during the school holidays. That is a significant increase in time at a point where the child is spending special occasions, and the increased time provided and needs time to adjust. The Court is not satisfied that it is appropriate to provide a block at that stage this year as proposed in the father's orders 5.6(b). It would still be open to the parties if the child is, in fact, adjusting well to agree about other times during the school holidays and the orders have specifically provided for that opportunity.
There was a minor disagreement in relation to an order in respect of medical appointments and informing the father. The Court is satisfied it is appropriate, in the circumstances, for the father to be informed of what are arranged medical appointments and obviously has included in there "otherwise than in the case of emergencies" so as to ensure that both parties are able to input in relation to the long-term decisions concerning the child's health, and to ensure avoidance of unnecessary medical attendances.
There is also a dispute in relation to social events and whether one should include as in exceptions friends birthdays. The ICL put it neatly in identifying the difficulties that such an order would have in terms of identifying how it would be made and determined who is a friend and who is not in respect of birthdays. It is not an appropriate order, and the Court makes the order in the form advanced by the father. The Court is also not satisfied the restraints propounded by the mother are necessary or appropriate.
There was dispute in relation to the issue of communication with the father suggesting every second day and the mother suggests particular named days. The problem with the mother's form of order is that those particular named days may not include what would have been the second day of the child being able to communicate with the other parent. It is more appropriate to have a level of communication that ensures each parent is able to communicate frequently with the child. Given the young age of the child, every second day is a sensible qualification that does not impose an unreasonable burden on the child or the parents.
It was suggested by the mother that the call should be at 8.30 in the morning. The Court is not persuaded that that is an appropriate time. The child at the end of the day, at 4 o'clock, is in a better position to recount the day's events to the person that they are communicating with and tell them what has happened during that day which is of greater importance for the child and has live-time information from that day to communicate. For that reason, the Court is satisfied it was appropriate to make the order in respect to communication by video to the parent with whom the child is not spending time every second day at 4 pm unless otherwise agreed.
There was agreement in relation to fixing the matter for a final parenting and property hearing and the Court has done so and made other procedural orders.
There was substantial agreement by the ICL with the mother's proposed orders, and the ICL explained why a conservative and cautious approach was suggested for increase of time taking into account the observations made by Dr C. Whilst the Court does place weight on what was said by the ICL, for the reasons the Court has already given, the Court is satisfied that this is appropriate and is in the best interests of the child for the progression of time commence forthwith and that the child will have the benefit, to the extent that there is any, of the child therapy as that progression takes place.
CONCLUSION
The Court is also of the view that the orders the Court has made are most likely to advance the best interests of the child in accordance with the above principles and that the father needs to have and share overnight time in relation to the child.
For these reasons, the Court is satisfied that it is in the best interests of the child to make the parenting orders pronounced.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the published ex tempore reasons for Judgment of Judge Street. Associate:
Dated: 16 May 2024
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