Lacona & Lacona
[2021] FedCFamC2F 200
•22 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lacona & Lacona [2021] FedCFamC2F 200
File number: MLC 9099 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 22 September 2021 Catchwords: FAMILY LAW – interim parenting – urgent abridgment – relocation – where mother has relocated interstate with the child – mother to return child’s residence – independent children’s lawyer appointed – child impact report ordered – orders made. Legislation: Family Law Act 1975 (Cth), s 60CC Cases cited: Adamson& Adamson [2014] FamCAFC 232
AMS v AIF (1999) 199 CLR 160
Franklyn & Franklyn [2019] FamCAFC 256
Gerner v Victoria [2020] HCA 48
Morgan & Miles [2007] FamCA 1230
Sampson & Hartnett (No. 10) [2007] FamCA 1365
Stringer & Nissen (No. 2) [2019] FamCAFC 185
Division: Division 2 Family Law Number of paragraphs: 42 Date of hearing: 22 September 2021 Place: Melbourne Counsel for the Applicant: Ms P Villella Solicitor for the Applicant: Perry Weston Lawyers Solicitor for the Respondent: Romer Maud Family Lawyers ORDERS
MLC 9099 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LACONA
Applicant
AND: MS LACONA
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
22 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Within 28 days the Respondent Mother return the child X born in 2015 ("X") residence to the State of Victoria.
2.The Respondent Mother do all acts and things to keep the Applicant Father informed in a timely manner of her arrangements to return including applications for any necessary permits.
3.Upon X returning to the State of Victoria and following any government mandated period of isolation, X live with the Applicant Father as follows:
(a)For a period of one month:
(i)In each alternate week from the conclusion of school on Friday (or 3pm if a non-school day) until the commencement of school (or 9am if a non-school day) on the following Monday;
(ii)In each alternate week from the conclusion of school on Thursday (or 3pm if a non-school day) until the commencement of school on Friday morning (or 9am if a non-school day)
(b)Thereafter and until further Order:
(i)In each alternate week from the conclusion of school on Friday (or 3pm if a non-school day) until the commencement of school (or 9am if a non-school day) on the following Monday;
(ii)In each alternate week from the conclusion of school on Wednesday (or 3pm if a non-school day) until the commencement of school on Friday morning (or 9am if a non-school day)
(iii)For one half of the long summer holidays on a week about basis commencing the last day of school
4.X lives with the Respondent Mother at all other times.
Independent Children's Lawyer
5.Pursuant to section 68L(2) of the Family Law Act 1975 the X born in 2015 ('the child') be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon as possible AND THAT:
(a)Forthwith upon appointment by Victoria Legal Aid, the Independent Children's Lawyer file a Notice of Address for Service; and
(b)Upon notification of such appointment, the parties (by their solicitors if represented) shall provide to the Independent Children's Lawyer copies of all relevant documents.
Child Impact Report
6.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and the child X born in 2015 ('the child') are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children's Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
7.Part 1 of the event will occur by video, using Microsoft Teams, on 26 October 2021 with:
(a)the Applicant to attend at 9.00am; and
(b)the Respondent to attend at 10.30am
Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
8.Part 2 of the event will occur in person at the Melbourne registry on the morning of 28 October 2021. Specific details regarding the attendance of the parties and the child on this date will be provided to the parties in Part 1 of the event.
9.Each party will do all things necessary to ensure the child attends upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
10.The parties and the child shall continue to attend at such times, dates and places as the Court Child Expert may advise.
11.Not later than 4.00 pm on 29 September 2021 the parties must provide their contact telephone numbers and email addresses to [email protected].
12.Pursuant to order 6 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the child and any matters (such as the child's maturity or level of understanding) that would affect the weight that the court should place on those views;
(d)the impact of the issues/dispute before the Court on the Choose an item.;
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the child.
13.Upon completion, the Child Impact Report shall be provided to the registrar for release to the parties, including by way of order made in Chambers.
14.The Court Child Expert shall be at liberty to inspect any material filed by the parties.
15.The matter be adjourned to the Second Return List at the Federal Circuit and Family Court of Australia at Melbourne on 17 November 2021 at 12.00pm for Directions Hearing.
16.The parties file and serve any material they seek to rely on 7 days before the adjourned date.
17.The parties have liberty to apply.
AND THE COURT ORDERS BY CONSENT THAT:
18.For the purpose of changeover when not occurring at school it shall occur inside the foyer of McDonalds at Suburb B, unless otherwise agreed in writing.
19.The parties immediately inform the other of any serious injury sustained by X whilst in their respective care, or should X require urgent medical attention.
20.The parties communicate via text message and email in relation to child related matters save for in an emergency when parties may communicate by telephone.
21.The parties by way of injunction are restrained from:
(a)Denigrating the other party or the other party's family to the child or any other person in the presence of the child;
(b)Discussing these proceedings with the child or within the presence and/or hearing of the child.
22.Pursuant to s.65DA (2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A.The parties agree the issue of their time with the child for Christmas 2021 will be discussed at the next hearing on 17 November 2021.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 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 Annexure A and these particulars are included in these orders.
C.If in any proceedings there are allegations of family violence and the provisions of section 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.
D.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.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Lacona & Lacona has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
These are the settled reasons of an ex tempore decision delivered in a busy duty list of four interim defended hearings, four mentions and this matter known as an “abridgment”, that is an urgent first return of an application to court.
My decision is that I will order the child's residence to be relocated to Victoria. It is not appropriate that the presumption of equal shared parental responsibility occur, and hence I do not make any order as to parental responsibility, which means the parties have joint parental responsibility, but not equal shared parental responsibility. However, upon the return of the child to Victoria, my intention in the orders that I am going to ask the lawyers to frame, will be that the arrangement will be a three plus one, that is, after school Friday to Monday morning before school, three nights on the weekend, plus one night being overnight on the Thursday in the other week.
Then after two rounds of that, that will move to a three plus two arrangement, that is, the weekend plus two nights, those nights being, the Wednesday and Thursday nights. So it will start off being the Wednesday night for two rotations of that, and then the rotation of three plus two. Then school holidays will be equal school holidays, but in one-week blocks. Those orders should operate from 21 days hence. The next school holidays will be the long summer holidays.
I am also going to order a child impact report. The purpose of that is to review the time that I am ordering. That may not be able to take place, I expect, for some six weeks or so. The matter will then return to the second return list for directions before a Judicial Registrar. The issue of the Father's time, whether or not it should return to what was substantially an equal care arrangement, at least in recent times, is a matter that, in all the circumstances, I am not prepared to consider further until I have the assistance of the child impact report as sought by the Mother.
This matter concerns X (‘the child’) who is now age six, having turned six on 28 August 2021. The father, Mr Lacona (‘the Father’), is 31 and a mechanic; and the mother, Ms Lacona (‘the Mother’) is 29 years of age and is a hospitality worker by occupation. The parties separated in about May 2018, and since that time until about 27 July 2021, the child has lived in a shared care arrangement, but not always an equal shared care arrangement.
An agreed arrangement evolved between the parties whereby at times the child would live with the Mother during the week and spend each weekend with the Father, and then at other times there was an arrangement where the child would live more or less in equal time, being from two days, two nights with one parent, and then two nights with the other, and then with alternate weekends.
There are allegations of a history of family violence against the Father over a long period of time and, in particular, behaviour on 15 March this year. There was a confrontation on Monday morning, 15 March. On the Father's account over necessary changes to the arrangement of two days on, two days off, and alternate weekends. On the Mother's account, upon the Father's insistence, as she puts it, of travelling with her, to share with the child, her mother's 60th birthday in City C, New South Wales.
It is common ground that there was an ugly confrontation and that the Father used foul language in the presence of the child in anger against the Mother and slammed the door. It appears uncontroversial that the Mother used foul language in the child's presence to have the Father leave the property after she had been abused. In any event, there were heightened emotions between the parties and the child was exposed to that.
The Mother then obtained, ex parte that day, an interim intervention order and that order has pending a final determination in December. I am told that the Father currently intends to consent to that order so that the Mother will have the comfort of the protection of that order.
Following that confrontation on 15 March, the Father asserts that he telephoned the child that evening to apologise for his behaviour in front of her. There is some substance to his expression of regret for his behaviour because it is not disputed that following the making of the intervention order he enrolled in and has commenced a Men's Behavioural Change Program, and as at 27 July had undertaken three of those courses.
It is significant that the interim intervention order was for the protection of the Mother and the child, and that order permitted the parties to agree on children's arrangements and to negotiate by text and email about them. Displaying commendable maturity, the Mother text the Father on 18 May:
Mr Lacona if your solicitor would actually email me, and be clear as to what and why he needs things, that’d be helpful. I haven’t received anything from him since the beginning of April. And I stated that I was willing to go forward with the mediation and have been waiting to be contacted about that. Apart from that I haven’t heard anything. So I can’t reply to what I don’t know.
You can only be breached if someone breaches you, and I have stated that within the custody arrangements it doesn’t cover X, or the school or you picking her up. So please stop trying to carry on like that.
You don’t need a legal agreement, but if you want a written one for now here it is:
We will continue our current custody arrangements of X as follows
Mon-Tues Ms Lacona
Wed-Thurs Mr Lacona
Fri-Sun Alternate weekends
Financial matters are split 50/50
X is currently at before school care on Wed, Thurs, Fri mornings and Friday afternoons
Anything else gets discussed between us beforehand regarding X if it’s important as we have always done for her safety or welfare.
It is clear on the face of that text message that the Mother was grappling with the restrictions that the Father was under in regard to children's arrangements. What the Mother proposed at that time is significant to my interim decision.
At that time the Mother's view was that the continuation of the existing arrangements of the two days on, two days off, plus alternate weekends was, I infer, in the child's best interest. The Father at this time was pressing to change it to week about, and the Mother says that she had good reason for resisting the pressing of the matter going to week about. It is then clear that the arrangement continued. I should add that it is common ground that for significant periods post-separation, the Father has had the assistance of his Mother in regard to the child's living arrangements.
It is then clear that on 24 June and 8 July, the Father again text the Mother. I do not have those text messages in evidence, save to say it is the opinion of the Victoria Police that those text messages constitute a breach of the ex parte interim intervention order, and I infer that they are a breach of the provision of the order that provides the Father was not to contact or communicate with the protected person by any means, paragraph 5, because the nature of the communication did not fall within negotiate child arrangements by letter, email or text, which is one of the exceptions under section 9(b) of that interim intervention order.
The Mother's position is that the Father was seeking to communicate with her about matters other than the children's arrangements and, in particular, seeking to speak face to face with her new partner.
The Mother's partner was mentioned in the dispute between the parties in the sense that the Mother did not wish the Father to accompany her to her mother's 60th birthday party partly, I infer, because her partner was attending, or she proposed that he would attend. It is the Mother's case that this is what triggered the anger to the Father on that day. The Mother's position is that those text messages were a continuation of that conduct by the Father of texting her. I do not have the text messages in evidence. I have the opinion, inferentially, of the Victoria Police, and I have the opinion of the Mother, and I have the Father's opinion about what was contained therein, but I do not have the details.
I proceed on the basis that those text messages may well have been a breach of the intervention order, and any breach of an intervention order is a serious matter. An intervention order means what it says and, for good reason, society has determined that breaches of an intervention order will be treated most seriously. However, in that range of matters that constitute a breach, I accept Ms Villella's submission to me that whilst the breaches alleged are significant, if they are in fact, a breach, that behaviour is at the lower end of the range of behaviour that can constitute a breach. I also take into account that it was not in any way dishonest or secret. It was pretty much on the record, upfront, what the Father's position was. I am not going to make any determination about whether or not he intended to breach the order, or whether or not he did in fact, breach the order.
That breach is very significant in the history of these parties because it is what triggered the Mother being informed that the Father would be charged with a breach and, on her account, she was concerned at the Father's anger on learning that he had been charged with a breach of the intervention order. She says that the police advised her not to be at home at the time of the service of the notice of breach of the intervention order. In that context she determined to travel to her mother's home in City C for the purpose of being away from her home while the Father was served. She did so on 25 July 2021.
The Father was duly served with the breach of the intervention order on 26 July 2021. On 27 July 2021 the Mother sent a text message to the Father as follows:
Hi Mr Lacona
Due to the breach of IVO and the repeated behavioural patterns towards X. I am withdrawing my consent to access to custody for X until we go through a successful mediation solution.
I am not in Suburb D at the moment.
Regards Ms Lacona
It is common ground that after 27 July the Father did not text or attempt to contact the Mother, and Ms Villella, on his behalf from the bar table today, asserts that he received legal advice not to contact the Mother and that the police told him the same thing.
It is unsurprising that the Father would infer that he should not contact the Mother from the fact of being charged with a breach of an intervention order over text messaging. In any event, it is common ground that there was no contact between the two of them.
It is the Father's case that in concern for the welfare of the child in the difficult circumstances of not being able to contact the mother, not knowing where the child was, he contacted the police and requested they undertake a welfare investigation. At this time the Father did not know where the Mother was, though I infer that he might have been pondering maybe she is at her Mother's in City C, New South Wales. It is not disputed that the Mother had not informed the Father where she was, but more importantly, had not informed the Father where the child was.
What effectively happened was upon the police telling the Mother that the Father was going to be charged with a breach of the intervention order in regard to behaviour that had occurred on two occasions the previous month, commencing on 24 June, that the Mother determine to cease the arrangement of the child travelling between the two homes, and she says for the good reason that she feared the Father's violent behaviour. It is common ground that up until this time on 27 July, the Father had enrolled in and commenced a Men's Behaviour Change Program and informed the Mother of it, and that he had undertaken three sessions, as I understand, out of eight sessions.
Consequent upon the Father’s request for a welfare check New South Wales police located the Mother and visited her and the child. The Mother complains about the behaviour of the police when they conducted the welfare check at her mother's home in City C. I only note that a welfare check places the individual police officers in a very difficult situation. They get a tiny snapshot of information and directions to urgently inquire as to the welfare of a child. The intention of the Father to seek a welfare check may be seen to be heavy-handed and unnecessary; however, I do not make any judgment about that because it is common ground that he did not know here his child was. However, up until 27 July I know that he had very significant confidence in the Mother's ability to care for the child because he had, for a number of years, been party to a shared care arrangement. Implicit in that is that the Mother would care well for the child. Nonetheless, I reserve my judgment as to the circumstance of it.
However the Mother was troubled by the behaviour of the police, and I infer troubled by the fact that the Father had, without contacting her to inquire of the child (putting aside whether or not he was allowed to), had requested a welfare check, which would have been very confronting to her. As a result of those events, the Father was charged with a second breach of the intervention order and was arrested at his home and taken to the police station in the back of a divvy van, and no doubt that was a very confronting process for him as well. Again, I make no judgement on whether that process is reasonable in all of the circumstances, but a mere recitation of the facts known to me indicates that opinions could differ. Of course, I do not have any of the actual information that the Father provided to the police as part of what triggered the welfare check.
The next significant event is that it on 11 August the Mother applied for a permit to return to Victoria, and she is unable to obtain a permit to return to Victoria in COVID-19 times. Between that date and the filing of her trial material on 17 September, the Mother changed her mind about returning to Victoria and decided to remain in New South Wales with the child if she was able to, but subject to what was known as a section 11F report and is now known as a child impact report.
I was referred to the Full Court case of Morgan & Miles [2007] FamCA 1230 (‘Morgan & Miles’) and relevant passages include the following:
[55]Secondly, on one reading of the submission, it assumes a “right” to relocate. There is nothing in the legislation which provides that a parent who has existing order which provides that the child spends fifty per cent or more of his or her time with that parent has a unilateral right to move the child, (on the basis that this is in the child’s best interests). Whilst such a move may, after exploring all relevant factors, be found to be in the child’s best interests, those interests can only be determined by examination of the relevant factors in the structured exercise of discretion required by the legislation. It is illogical to suggest it is appropriate for an unauthorised unilateral move to occur, and that a court’s discretion in determining a child’s best interests, including time to be spent with the other parent, be inappropriately fettered by a move which has already occurred.
…
[74]The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.
…
[91]The artificiality of determining a parenting application involving relocation on the basis of distance is well demonstrated by the example given in the Family Law Council report (see paragraphs 2.28 to 2.32). This leads me to conclude that it is not distance per se which should be the determinative criteria. In many cases what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered.
[92]Sensibly, the legislation does not seek to define “local”, intrastate, interstate or international moves. Rather, it requires a judicial officer to consider, on a case by case basis, the effect of a move on the particular child in determining the overall parenting application (see particularly s 60CC(2)(d) and (e), and if applicable s 65DAA(1)(a) and (b), s 65DAA(2)(a) and (b) and s 65DAA(5)), and affords the opportunity to craft orders which are in that child’s bests interests.
The Full Court in Stringer & Nissen (No. 2) [2019] FamCAFC 185, adopts [55] of Morgan & Miles on the one hand, but on the other hand says that:
[26]…It is undoubted that the Court’s function is not fettered by a unilateral relocation by a parent, the determination of whether such a move is in a child’s best interests involves a careful consideration of all of the factors relevant to that determination
That is, that I must apply the relevant provisions of Part VII of the Family Law Act 1975 (Cth) (‘the Act’).
I am assisted by the discussion of competing interests where relocation is sought on an interim basis in Franklyn & Franklyn [2019] FamCAFC 256 ('Franklyn'), Watts, Austin & Rees JJ, at [26]-[28] and reproduce that here:
[26]Before dealing with these grounds of appeal individually, it is worthwhile recalling the statements of principle proscribing the power to make orders which are, in effect, mandatory injunctions, forcing parents to live in places against their will so as to fulfil the statutory mandate to accord paramount importance to the children's best interests.
[27]There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children's ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 ("AMS v AIF") at 196, 206, 207-208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent's move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
[28]While the children's interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U [2002] HCA 36; (2002) 211 CLR 238 ("U v U") at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) [2007] FamCA 1365; (2007) FLC 93-350; Zanda & Zanda [2014] FamCAFC 173; (2014) FLC 93-607 at [132]- [136]). Only when the children's welfare would be adversely affected must a parent's right to freedom of mobility defer to the paramount consideration of the children's best interests (see U v U at 262).
Freedom of movement was recently raised in Gerner v Victoria [2020] HCA 48 ('Gerner'), a case concerning the validity of the Victorian "lockdown" regulations authorised by Victorian public health legislation. There the High Court dismissed the plaintiff's case that there was an implied freedom of movement in the Australian Constitution. At [10] the High Court observed:
At common law individuals may move about as they see fit. But that freedom is subject to the laws of the land.
Hence parents enjoy as much freedom to live where they wish as is compatible with their obligations with regard to their child or children and the laws of the land, see Kirby J in AMS v AIF, cited in Franklyn, at [191]. The constitutional law principles discussed in Gerner do not conflict with the principles summarised in Franklyn. In any event I am bound by Franklyn.
It is a serious matter to compel by a court order someone to live, in this case the Mother, to live in her home in Suburb D when she no longer wishes to, and I take that into account. In Adamson& Adamson [2014] FamCAFC 232 the Full Court applied Sampson & Hartnett (No. 10) [2007] FamCA 1365 that:
[75]To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move…
I have looked carefully at those arrangements. The situation is that the Mother, up until 27 July, resided in the former matrimonial home, where she had resided for many years and continued to reside after separation in 2018. To finance the property settlement necessary to keep that home, she has entered into an arrangement with a housemate and that has enabled her to finance that arrangement. There will be some practical, real difficulty for the Mother in supporting herself in COVID-19 times; however, she has a home to go to. That home, as at today, is still equipped with the day to day necessities of life, and that is a significant matter.
I take into account all of the provisions of Part VII, the best interests of the child, and the primary consideration of promoting a meaningful relationship. On this interim hearing, I am troubled as to how there can be a meaningful relationship promoted in the short-term between City C and Suburb E. I take into account the need to protect the child from abuse or exposure to family violence. Where there is a conflict between the two, I must promote the safety of the child primarily.
I do not dismiss the impact upon the child of being exposed to family violence that is raised in this case. That risk is lessened, but not eliminated, by the Father's enrolment in the Men's Behaviour Change Program, combined with the Intervention Order. However, I must balance those two matters. I then need to look at the child's wishes. The child is too young and in the middle of a conflictual situation where she has not seen her Father for some time, and I do not have reliable evidence of what her wishes are.
The most significant matter is the nature of the relationship between the child and the parents. The Mother tells me that the child is scared and troubled about the Father. The Father tells me that she is not, that the child is delighted to see him and is missing him. I infer from the nature of the care arrangements over many years, that the child's relationship with the Father, though it may not be as glowing and close as he asserts, was sufficiently close that it was appropriate for the parents together to determine that the child would live in shared arrangements between the two of them.
I am unable to determine precisely what the events of 15 March were; however, for the sake of this exercise, assuming that they are closer to the description raised by the Mother than by the Father, in my view, in the circumstances of the continuation of that arrangement that was agreed to by the parents, there is not an unacceptable risk to the child of being exposed to family violence by living in Suburb D with her Mother with the protection of an interim intervention order in the circumstances of the Father contemplating his behaviour via the Men's Behaviour Change Program.
The Mother makes the point that the child has never been away from her for more than five nights. The child is six. I am unpersuaded that it is in the child's best interest to return, effectively automatically, to what the arrangement was prior to 27 July. I cannot dismiss the concerns that the mother raises, and there is substance in the position of Ms Romer that those arrangements would be assisted by the independent assistance of the assessment by the child expert. However, the assistance that that expert will be able to give may well be limited in the circumstances of that may be undertaken during COVID-19 times by video link, and there may not be the opportunity to observe the child in the Father's care and the child in the Mother's care, as pre-COVID-19 was ordinarily the case with such reports.
It is for those reasons that I am not prepared to order that there be equal time between the parents. That is a matter that will be assessed on an interim basis following the return of the child to Victoria. I determine that the child should commence to live with the father on an alternate weekend basis, firstly for three nights over a weekend and then one night, being the Wednesday night in the other week, and after two cycles of that to move to the weekend plus the Wednesday and the Thursday night, that is, moving to a five plus three. I am requesting counsel and solicitor to draw those minutes to give effect to these reasons. The matter will be adjourned to the second return hearing list on 17 November 2021.
The dynamics of the modern interim assessment of the child impact report, part 1, the parents are both spoken to by telephone, which will be on 26 October, and then there will be the observation of the child, hopefully with the parents, on 28 October. However, given COVID-19 lockdowns likely still being in place, that may not be able to take place other than by via video link. In any event, the matter will return on 17 November for directions.
In terms of the time that the Mother will be required to return the child's residence to Victoria, in my view, the Mother should have 21 days to organise that, simply because of how long it may take to obtain the appropriate permit. It is regrettable that that will be a further 21 days before the child can spend any time with the Father. In terms of other matters that I have taken into account under section 60CC(3) of the Act, I take into account all of those matters and would set out more detail but for this being an ex tempore judgment in a busy duty list. But I take into account the allegations of family violence and the fact of the intervention order. I also take into account the circumstance that the Father unilaterally cancelled the mediation that was fixed for 23 August, that being a mediation that the Mother was prepared to attend.
The Father's unilateral determination of that, as he describes, he is only happy to attend mediation if the pre-existing arrangements for his daughter were reinstated was an ill-advised attitude in my mind. I am unable to make a finding, but it suggests a position of entitlement as opposed to being child-focused. I do not make that finding, but that suggestion arises from the Father's attitude in regard to that cancellation and what he says about the conditions precedent to mediation. It is unfortunate that the parties have not been able to have any mediation at all following 27 July until this crisis of the Mother determining to remain living in New South Wales if she is able.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 19 October 2021
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