KILLEN & CONRAD
[2020] FamCA 340
•8 May 2020
FAMILY COURT OF AUSTRALIA
| KILLEN & CONRAD | [2020] FamCA 340 |
| FAMILY LAW – CHILDREN – Interim Parenting – Where compliance with previous final Orders is impacted by COVID-19 social distancing and restricted activity measures – Where the mother makes an Application to vary to current Orders for the child to spend supervised time with the mother for up to six (6) hours’ – Where the parties came to an agreement that the mother is to spend supervised time with the child at her residence for three (3) hours’ on Mother’s Day – Where the mother seeks to spend an addition three (3) hours with the child, effectively, by way of make-up time, for the balance of the three (3) hours, on Sunday 24 May 2020 at her residence or at the maternal uncle’s residence – Where that Application is opposed by the father if the time occurs in the presence of the maternal uncle – Whether COVID-19 safety measures impact the viability of the mother’s Application for time to be spent at the maternal uncle’s residence –Whether there is insufficient evidence to establish the child spending supervised time with the mother at her residence is an unacceptable risk – Inability to consider the principle in Rice v Asplund (1979) FLC 90-725 – Orders made for the child to spend time with the mother on 24 May 2020 at a location and in circumstances determined to be acceptable by the father. |
| Family Law Act 1975 (Cth) s 43(1)(c), 60B(1), 60B(2), 60CA, 60CC, 65DAA. Public Health and Well-Being Act 2008 (Vic) s 190, 200. Stay at Home Directions (No 4) cl 1, 5, 7, 9, 11. Restricted Activity Directions (No 5) cl 6. |
| B and B (1993) FLC 92-357 Banks & Banks (2015) FLC 93-637 Bant & Clayton (2015) 53 Fam LR 621 M and M (1988) FLC 91-979 Rice v Asplund (1979) FLC 90-725 |
| APPLICANT: | Ms Killen |
| RESPONDENT: | Mr Conrad |
| FILE NUMBER: | MLC | 1582 | of | 2015 |
| DATE DELIVERED: | 8 May 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 7 May 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr T Puckey |
| SOLICITOR FOR THE APPLICANT: | Landers and Rogers |
| COUNSEL FOR THE RESPONDENT: | Mr G Ambrose QC |
| SOLICITOR FOR THE RESPONDENT: | Fair Family Law |
Orders
That the child, B, born … 2013 (the child), spend time with the mother from 12pm to 3pm on Sunday, 24 May 2020, at a location and in circumstances determined to be acceptable by the father.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Killen & Conrad has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: MLC 1582 of 2015
| Ms Killen |
Applicant
And
| Mr Conrad |
Respondent
REASONS FOR JUDGMENT
Introduction
This parenting dispute concerns B born … 2013 (“the child”) who is currently aged seven (7) years. His parents, Ms Killen (“the mother”) and Mr Conrad (“the father”), have been litigating in respect to parenting arrangements since the child was two (2) years old.
The dispute before the Court initially concerned whether the child should spend three (3) hours with the mother on Sunday, 10 May 2020 (“Mother’s Day 2020”), as well as three (3) hours on Sunday, 24 May 2020. Fortunately, during the course of the proceedings, the parties were able to reach agreement in respect to the child spending supervised time with the mother on Mother’s Day 2020. However, they were unable to reach agreement as to the circumstances in which the child should spend time with the mother on Sunday, 24 May 2020.
Evidence
The mother relied upon the following documents:
a)Application in a Case filed 20 April 2020 and sealed 4 May 2020;
b)Affidavit of the mother filed 20 April 2020 and annexures;
c)Affidavit of Ms Q filed 2 March 2020 and annexures; and
d)Written submissions provided to the Court on 7 May 2020.
The father relied upon the following documents:
a)Response to the Application in a Case filed 6 May 2020;
b)Affidavit of the father filed 5 May 2020 and annexures;
c)His Honour Justice Cronin’s reasons for judgment delivered in this matter 22 September 2017[1]; and
d)Outline of submissions provided to the Court on 6 May 2020.
[1] [2017] FamCA 737
In addition, both parties relied upon the report of Ms M, psychotherapist, dated 5 May 2020.
Issue in dispute
The current parenting arrangements, set out in Orders made on 11 October 2018, provide for the child to spend up to six (6) hours with the mother on the last Sunday of each month other than during the month of May when the child is to spend up to six (6) hours with the mother on Mother’s Day.
Order 4 of the 11 October 2018 Orders provides that changeover is to occur with the child “being collected from the Father's residence by the supervisor, and conclude by the Father collecting [the child] from the Mother's residence, unless otherwise agreed.” The parties have subsequently agreed that the father will collect the child from other locations depending on the child’s activities during the time he spends with his mother.
As result of the agreement reached between the parties, during the course of these proceedings, for the child to spend only three (3) hours with the mother on Mother’s Day 2020, the mother contends that it is appropriate for the child to also spend an additional three (3) hours with her, effectively, by way of make-up time, for the balance of the three (3) hours, on Sunday, 24 May 2020. The mother proposes, as set out in her written submissions, that the child spend that time with her on 24 May 2020 at the maternal uncle’s residence located in Suburb R. That venue had been proposed because the father objects to the child spending time with the mother at the mother’s residence.
The father contends that the parties had reached an agreement whereby the child would spend time with the mother on the understanding that the maternal uncle and members of his family would not be present at that time. During the course of the proceedings, the father was advised by the mother that she was not in a position to confirm that her brother, the child’s maternal uncle, would not be present at his residence on 24 May 2020. In response, the father indicated he was not prepared for the child to spend time with the mother on 24 May 2020 in those circumstances.
As a consequence of the father’s position in that respect, counsel for the mother sought to amend the orders sought by the mother, in these proceedings, to be as follows:
14. That the period of time B is to spend with the Mother on Mother's day 2020 be split over two visits as follows:
14.1 From 12pm to 3pm on Sunday 10 May 2020 at the Mother's residence; and
14.2From 12pm to 3pm on Sunday 24 May 2020 at the Mother’s residence
maternal uncle's in Suburb R.Counsel for the mother submitted that, in circumstances where the father made a concession that it was appropriate for the child to spend time at the mothers residence on Mother’s Day 2020, that same outcome should occur on Sunday, 24 May 2020. Counsel for the father, however, made it clear that the father’s concession for the child to spend time with the mother at her residence on Mother’s Day 2020 did not extend beyond that day.
The father’s objection to the child spending time with the mother at her place of residence beyond Mother’s Day 2020 is based on recommendations made by the child’s treating psychotherapist, Ms M, in an email to the father dated 27 July 2019 which is annexure 2 to the father’s Affidavit. The contents of that email are set out in the body of a report provided by Ms M dated 5 May 2020, which is as follows:
I have seen [the child] for numerous sessions with both parents in the past.
During March 2019, I made a recommendation to [the father] by email regarding the form of access with the mother could consist off. These recommendations were based on the report of the access supervisor dated between 28 October 2018 and 24 February 2019. The recommendations were to try to change the format and place of access with the mother to assist [the child] with his emotional wellbeing. The feedback from [the father] and the supervisor’s report regarding [the child’s] emotional reaction when these recommendations were implemented speaks for itself.
After another supervised session with his mother on 23 June 2019, the writer had the opportunity to see [the child] for a session on 25 June 2019. In this session, [the child] reported in detail an incident with food during access with the mother. The amount of food that he saw he had to consume, a hamburger and chips, was just too much for him and he became distressed and nauseous again, and he wanted to vomit. This reminded him further about his emotions of been scared and sad when he saw his mum get angry and yell at him, which sometimes happened when he did not please her. On the contrary, he said that he wanted to please his mum when she praises him. This is evident in the drawings that he did on the day. [The Child] also mentioned that the day was too full on.
Further recommendations were suggested on 27 July 2019 which focussed on the wellbeing of [the child] front and centre. These suggestions were as follows.
·It will not be in [the child’s] best interest to revert to supervised time at his mothers' home, and that access should be spent in public places.
·It was suggested that the pace of supervised access is slowed down and that not a lot of activities are conducted in one day. [The child] gave indications that such a full day are tiring and that the amount of food that he is exposed too on such days can cause incidents of anxiety and fear and that he will not please his mother. He communicated that this reminded him of unpleasant experiences in the past.
·It was suggested that activities and the pace of these activities are slowed down which will result in less time than [the child] spent with his mother in the car, as the more and longer time he spent in a car with his mother may lead to the reliving of unpleasant past experiences and may cause PTSD.
On 30 July 2019 June, the writer saw [the child] for another counselling session after another supervised session with his mother. During this session, [the child] described the fun things that he did with both his father and mother but mentioned that he did not want to sleep at his mothers’ house. In the session of 10 September 2019 [the child] talked nonstop about the fun he had visiting S Town with an eye to relocated [sic] there permanently.
The writer of this report and her experience of observations [sic] [the child] in different sessions, and taking into consideration the reports from the supervisors, is still of the opinion that the recommendations done about the structure for supervised time spent with the mother is still in the best interest for [the child] and his future mental health.
COVID-19 pandemic
Difficulties arising in the context of the current COVID-19 pandemic
The inability for the child to spend time with the mother at her residence presents difficulties in the context of social distancing measures that the Victorian Government has appropriately imposed during the current COVID-19 pandemic.
It is generally known in the community that the COVID-19 pandemic has been caused by a novel coronavirus that can cause severe respiratory issues and other complications. Currently, there is no cure for the virus nor is there any vaccine. Unfortunately, many thousands of people have lost their lives to the virus in overseas countries and, despite the best efforts of Governments around Australia, there have, unfortunately, been many deaths that have occurred in our country. Those deaths have primarily been among those who are more vulnerable in the community including persons aged over 65 years. Nevertheless, there are a number of instances where young people, including children, have unfortunately succumbed to the disease.
COVID-19 Community safety measures
As a result of the prevalence of the disease in the community, all Governments around Australia, consistent with guidelines published by the World Health Organisation, have issued enforceable directions requiring citizens to observe social isolation by remaining in their homes at all such times that it is not absolutely necessary. Specifically, on 13 April 2020, the Deputy Chief Health Officer (Communicable Disease) for the State of Victoria, pursuant to s 200(1)(b) and (d) of the Public Health and Well-Being Act 2008 (Vic), issued “Stay at Home Directions (No 4)”. The preamble to those directions states as follows:
(1) The purpose of these directions is to address the serious public health risk posed to Victoria by Novel Coronavirus 2019 (2019-nCoV).
(2) These directions require everyone in Victoria to limit their interactions with others by:
(a) restricting the circumstances in which they may leave the premises where they ordinarily reside; and
(b) placing restrictions on gatherings.
(3) These directions must be read together with the Restricted Activity Directions (No 3), the Isolation (Diagnosis) Direction (No 2), the Hospital Visitor Directions (No 2) and the Care Facilities Directions (No 2).
Clause 5 of the direction provides:
Requirement to stay at home
(1) A person who is in Victoria during the stay at home period must not leave the premises where the person ordinarily resides, other than for one or more of the reasons specified in:
(a) clause 6 (necessary goods or services);
(b) clause 7 (care or other compassionate reasons);
(c) clause 8 (work and education);
(d) clause 9 (exercise);
(e) clause 10 (other specified reasons).
The context in which the direction has been made, and the specific provisions of the direction make it clear, that the direction is intended to apply to children. For instance, clause 7(1)(k) of the direction includes as a legitimate reason for leaving one’s home as being:
(k) to provide child-minding assistance (whether on a paid or voluntary basis), so that the parent or guardian of a child can:
(i) leave their own premises for one of the purposes specified in clauses 6 (food and drink), 7 (care), 8 (work and education), 9 (exercise) or 10 (other specified reasons); or
(ii) work, or obtain educational services, from their own premises.
Further to those specific reasons identified in cl 5 of the direction, cl 9 states that a person may leave the premises in order to exercise providing they “take reasonable steps to maintain a distance of 1.5 metres from all other persons.” The note to that paragraph states that “the effect of clause 11 is that a person can only exercise with people that live at the same premises; or alternatively, with one other person with whom they do not ordinarily reside.”
That clause presents difficulty in this case because the child’s time with his mother is supervised by a person who is other than a person with whom the child lives.
A further difficulty arises from the operation of the “Restricted Activity Directions (No 5)” which have been issued by the Deputy Chief Health Officer (Communicable Disease), pursuant to ss 190(1)(a) and (g) and 200(1)(d) of the Public Health and Well-Being Act 2008 (Vic). Clause 6 of that direction prohibits “a person who owns, controls or operates a recreational facility in Victoria” from operating “that facility between midnight on 24 April 2020 and midnight on 11 May 2020”. The clause defines a recreational facility as including an outdoor facility that is predominantly “a play centre or publicly accessible playground”.
Yet, a further difficulty arises in the context of the proposal of the mother, for the mother, the child and the child’s supervisor to spend time at the maternal uncle’s residence, in circumstances where it cannot be assured that other persons would not be present. This is because cl 11(1) of the Stay at Home Directions, relevantly, provides as follows:
Restrictions on gatherings
Indoor gatherings
(1 ) Subject to subclause (2), during the stay at home period, a person must not enter any single undivided indoor space, unless:
(a) no other person is in that space; or
(b) only one other person is in that space; or
(c) more than one other person is in the space, but all of those other persons ordinarily reside at the same premises as the person.
Accordingly, I am satisfied that it would be contrary to the current Stay at Home Directions for the mother to spend time with the child and the child’s supervisor at the maternal uncle’s residence if any other persons, including those persons who ordinarily reside at the uncle’s premises, were to be at that residence at the same time as the mother, the child and the supervisor.
Consideration
Having regard to the current social distancing provisions to which I have referred, I am satisfied that it is impractical for the child to spend time with the mother other than at the mother’s place. This in in circumstances where the mother’s brother, the maternal uncle, is not a party to these proceedings and he cannot be compelled, by order of the Court, to vacate his home. It would be otherwise, for instance, if the maternal uncle either consented to such an order being made or provided an appropriate undertaking, acceptable to the father, that he would not be present at the time that the child spends time with his mother at his residence.
The question therefore becomes whether orders should be made for the child to spend supervised time with the mother at her home for three (3) hours on Sunday, 24 May 2020.
In considering whether that order should be made, the Court will have regard to the paramountcy principle as set out in s 60CA of the Family Law Act 1975 (Cth) (“the Act") and the relevant objects that are applicable to proceedings in relation to children as set out in pt VII of the Act.
Section 60B(1) of the Act sets out the objectives of pt VII, which are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
More generally, the Act makes it clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare”: s 43(1)(c) of the Act. Section 60B(2)(b) provides that one of those rights is, consistent with the safety of the child, the “right to spend time on a regular basis” with both of their parents.
As noted, s 60CA of the Act establishes the paramountcy principle. It provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out a list of matters that the Court must consider in determining what is in the child’s best interests.
In Banks & Banks (2015) FLC 93-637 at 80,116, the Full Court outlined a practical approach to applying the considerations set out in s 60CC of the Act, in interim proceedings, in the following terms:
48. It should also be said that in parenting proceedings as in all civil litigation, it will be the issues that are joined that will dictate which section 60CC factors that are relevant. By their nature, interim proceedings should be confined to those issues which, in the best interests of the children, require determination prior to a proper determination at trial.
49. … there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
Whilst the Act requires the Court to consider all of the s 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Both parties acknowledge the importance of the child having a meaningful relationship with both of his parents. I accept that to be the case.
As noted, the primary issue in this case is whether the child spending supervised time with the mother at her residence presents an unacceptable risk to the child.
It is clear that, in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”: Bant & Clayton (2015) 53 Fam LR 621 at [99].
The question, simply stated, is whether the father has, in these proceedings established a proper basis for his assertion that the child faces an unacceptable risk of emotional and psychological harm in spending three (3) hours of supervised time with the mother on Sunday, 24 May 2020. For reasons which I will subsequently explain, he has failed to do so.
During the course of the proceedings, on 7 May 2020, I expressed concern to the parties that the report of Ms M, which it was acknowledged was prepared as a matter of urgency, was, with respect, unsatisfactory in that it did not enable the Court to determine the basis of Ms M reasoning in making the recommendation set out in her email dated 27 July 2019.
In that respect, for instance, the report states that the recommendations are “based on the report of the access supervisor dated between 28 October 2018 and 24 February 2019.” Those reports were not before the Court. It is to be noted that Ms M further stated that her recommendations were supported by “the feedback from [the father] and the supervisor’s report regarding [the child’s] emotional reaction when these recommendations [the recommendations of 27 July 2019] were implemented”. Again, the Court is not in possession of what the feedback from the father was nor have I been provided with the supervisor’s report regarding the child’s emotional reaction, as referred to in the report.
My concerns were expressed in the context where each party had given different accounts as to whether the child experienced an adverse emotional reaction when he spent time with the mother in the mother’s household.
The evidence presented by the father, by way of summary was as follows.
At paragraph 13 of the father’s Affidavit, the father states:
[The child’s] time with [the mother] did not progress well during 2019. He was distraught on most occasions he was returned to me after time with her and would take a few days to settle back to his normal self. On 19 March 2019 [the child’s] psychotherapist recommended that his time with [the mother] be spent external to her home to reduce the risk of re-traumatisation and [the mother’s] time with [the child] has proceeded on that basis since that time.
At paragraph 21 of his Affidavit, the father states that he has “legitimate, serious and well-founded concerns about [the child] spending time with [the mother] in her home.”
In reply to the mother’s Affidavit filed on 17 April 2020, the father states, at paragraph 30(a) of his Affidavit, that he “did not seek orders concerning time with [the child] not going ahead at [the mother’s] home because it was understood and agreed between [them] at [sic] the time was not to be spent there and this agreement had been acted on since the middle of 2019”.
In paragraph 30(c) of his Affidavit, the father responds to the mother’s 17 April 2020 Affidavit, stating that:
…[the child] was regressing after time with his mother in her home. He was exhibiting symptoms of stress and anxiety a changeover like he was prior to the final orders of 2017. Among other concerns, [the mother] was undressing [the child] at her home under the guise of playing dress ups or facilitating activities such that meant he was dirty with face paint or hair colour to justify baiting him. It was the advice of [the child’s] psychotherapist, Ms M appointed by [the mother] and me in consent orders being made in January 2017, that [the mother] spend time with [the child] in public venues.
As with the mother’s Affidavit, the balance of the father’s Affidavit substantially revisits historical grievances that the parties have had with each other’s conduct and contends that the other party has been reasonable in respect to this issue which is the current area of disputation between the parties.
Comparatively, at paragraph 17 of her Affidavit, the mother stated that the child spent time with her at her home on: 28 October 2018; 25 November 2018; 23 December 2018; 12 January 2019 and 24 February 2019. In that paragraph, the mother acknowledges that, on three (3) of the six (6) occasions that the child visited her, the child became physically ill at the conclusion of the visits and prior to the changeover. The mother contends that the stress experienced by the child is the distress “about having to say goodbye” to her. The mother acknowledges that, in a visit in January 2019, the child became distressed when leaving her home and vomited. The mother contends, however, that the visits to her home “otherwise went well and [the child] appeared to enjoy spending time with me at our home.”
At paragraph 18 of her Affidavit, the mother contends that the child frequently becomes distressed upon leaving her and that distress is evident whether or not the child’s time with the mother occurs at her home or in the community.
At paragraph 20 of her Affidavit, the mother states that Ms M has not provided any assessment or communication to her or her solicitors stating that the child should not spend time with her at her home. The mother contends this is the case despite the fact that her solicitors wrote to Ms M on 13 and 20 June 2019 seeking clarification regarding the father’s contention that Ms M had advised the parties that the child should not spend time at the mother’s home.
At paragraph 21 of her Affidavit, the mother states:
Despite the additional expense, effort required from all involved and Ms M’s failure to adequately explain why my house was no longer suitable to spend time with [the child], I did not want to cause any further conflict between [the father] and I that [the child] may be exposed so I agreed for the visits to take place in the community from 24 March 2019 onwards.
At paragraph 22 of her Affidavit, the mother states that, on 20 May 2019, the father wrote to the mother’s solicitors “advising that [the child] had not actually been seeing Ms M and that he had simply sought advice from her via email.” The mother further stated that, on 20 August 2019, she asked the father if he consented to the mother speaking directly to Ms M, however, according to the mother, the father “did not agree to [her] communicating in any way with Ms M”.
In summary, there are competing assertions by each of the parties as to the reasons that the child became distressed on some instances he has spent time with the mother at her residence. That conflicting evidence is not resolved by the report of Ms M. As previously noted, this is because I do not have before me the primary documents to which Ms M refers as being the basis of her recommendations. As a related issue, other than by reference to those documents by way of identification rather than content, Ms M does not set out her reasoning in making the recommendations set out in her email of 27 July 2020.
In those circumstances, the Court is not in a position to know, firstly, what the difficulties were or are in the child spending supervised time with the mother at her residence and, secondly, in the absence of that knowledge, whether those difficulties and/or risks to the child can be mitigated by the presence of the person who both parties agree is a competent supervisor. By way of example, for instance, if it is the case that the child becomes distressed at leaving the company of his mother after he has spent time with her at her residence, that distress might well be relieved if the changeover, back to the care of his father, occurs at another location.
The Courts have endeavoured, in their efforts to protect the child's paramount interests, to “achieve a balance between the risk of detriment to the child from harm and the possibility of benefit to the child from parental access”: M and M (1988) FLC 91-979 at 77,081; B and B (1993) FLC 92-357 at 79,778.
In this matter, in achieving that balance, I have determined that the benefit falls in favour of the child spending supervised time with the mother at the mother’s residence on 24 May 2020. This is in circumstances where there does not seem to be any other practical alternative venues as a result of the social distancing measures appropriately implemented by the Victorian Government in the context of the current COVID-19 pandemic.
I have made this finding in circumstances where the father has failed to present evidence of sufficiently persuasive force to establish that the child is exposed to an unacceptable risk of harm in spending supervised time with the mother at her residence.
That finding does not, however, resolve the matter. This is because, whereas the existing Orders provide for the child to spend time with the mother on Mother’s Day 2020, there is no existing order for the child to spend time with the mother on 24 May 2020. According to the existing Orders, the child would not again spend time with the mother until a weekend in June 2020.
In determining whether an order should be made providing for the child to spend time with the mother on a day that is not specified as a relevant day in the currently applicable Orders, the Court is required to consider the principles adumbrated in Rice v Asplund (1979) FLC 90-725 (“Rice v Asplund”). That is, it is necessary to consider whether it is appropriate for the final Orders, made by the Court, to be revisited. I have not been addressed in respect to that matter which is specifically listed for hearing before Hartnett J on 1 June 2020.
In those circumstances, without receiving the benefit of the parties’ arguments as to whether the Court should revisit the final Orders that have previously been made, I decline to do so other than to the extent that the parties consent to any such variation. In this matter, counsel for the father advised the Court that the father would consent to an order providing for the child to spend an additional period of three (3) hours’ supervised time with the mother on Sunday, 24 May 2020, provided that time occurs at a suitable venue. The father indicated that he objected to that time being spent at the maternal uncle’s home for reasons which included: the current COVID-19 restrictions relating to self-isolation and social distancing; the fact that the child has spent a limited amount of time with the maternal uncle and his family; and the fact that there are legacy issues in respect to the maternal uncle siding with the mother during the course of the parties’ litigation which was determined by the judgment of Cronin J on 22 September 2017. Without determining the validity of those concerns articulated on behalf of the father, by his counsel, the bottom line is, as I have stated, without considering the Rice v Asplund issue, I am only in a position to make an order to which the parties consent.
In that context, the mother, through her counsel, advised the Court that, in the event that the Court did not make an order for the child to spend supervised time with her at her residence on 24 May 2020, she would agree to the child spending such time with her at a venue and in circumstances that are acceptable to the father. I will therefore make an order in those terms.
I certify that the preceding fifty eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 8 May 2020.
Associate:
Date: 8 May 2020
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