Leonard & Najdi
[2021] FedCFamC2F 23
•8 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Leonard & Najdi [2021] FedCFamC2F 23
File number(s): PAC 6621 of 2020 Judgment of: JUDGE NEWBRUN Date of judgment: 8 September 2021 Catchwords: FAMILY LAW – interim parenting - best interests of children - orders made Legislation: Family Law Act 1975 (Cth) ss 69ZL, 62G(2), 60B, 60CA, 60CC, 61DA, 65D, 65DAA Cases cited: Banks & Banks [2015] FamCAFC 36
Eaby & Speelman [2015] FamCAFC 104
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286Marvel & Marvel (No 2) [2010] FamCAFC 101
SCVG & KLD (2014) FLC 93-582
Division: Division 2 Family Law Number of paragraphs: 74 Date of last submission/s: 16 August 2021 Date of hearing: 16 August 2021 Place: Parramatta Counsel for the Applicant: Mr Elachkar of Counsel Solicitor for the Respondent: Ms Thams Solicitor for the Independent Children's Lawyer: Ms Lam ORDERS
PAC 6621 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LEONARD
Applicant
AND: MR NAJDI
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
8 SEPTEMBER 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The Mother’s proposed Orders 1, 2, 3(a) and 3(b) set out in her Proposed Minute of Order attached to her Case Outline filed 15 August 2021 is dismissed.
2.That the child X born 2015 shall live with the Father and spend time with the Mother as follows:
(a)During the short school holidays (Terms 1, 2 and 3 commencing at the cessation of Terms 3 2021) and continuing thereafter the child shall spend time with the Mother in accordance with the following schedules:
(i)For the second half of the short school holidays in the years ending in an odd number.
(ii)For the first half of the short school holidays in the years ending in an even number.
(b)During the long school holidays, commencing Term 4 2021 school holidays, and continuing thereafter
(i)For the second half of the long school holidays each year ending in an odd number.
(ii)For the first half of the long school holidays each year ending in an even number.
(iii)Such other times as agreed between the parties agree in writing.
(c)On the child’s birthday, from 5.30pm to 8.30pm should the child 's birthday fall on a school day or 9.00am until 12.00pm, should the child's birthday fall on a non-school day.
(d)On Eid-Al-Fitr and Eid-Al-Adha:
(i)During the celebration of Eid-Al-Fitr and Eid-Al-Adha, from 12.00 pm to 7.00 pm on the first day of Each Eid.
(ii)Should there be disagreement between the parties in respect of the Gregorian calendar date of Eid-Al-Fitr or Eid-Al-Adha, the parties shall rely on the dates confirmed by the Australian National Imams Council.
(e)On Mother's Day from 3.00pm Friday preceding Mother’s Day until before school after Mother’s Day.
(f)That on Father’s Day, the time with the Mother be suspended and the child shall spend time with the Father from 3pm Friday preceding Father’s Day until before school after Father’s Day.
(g)Such other times as may be agreed between the parents and the Independent Children’s Lawyer in writing.
3.For the purposes of changeover, the Mother shall collect the children from the front entrance of School B at the commencement of her time and shall return the child to that same location at the conclusion of her time.
4.That if changeover is to take place on a non-school day, changeover shall take place at the Suburb C McDonalds.
5.The parties shall communicate about issues concerning X only through the parenting application, Our Family Wizard App and each of the parties shall pay their own costs of maintaining their respective accounts, unless in case of an emergency.
6.Each parent shall notify the other of any medical emergency or hospitalisation of the children as soon as is reasonably practicable and these Orders shall constitute authority for either parent to make enquiries with the children’s treating health practitioners as to their general progress and wellbeing.
7.Each parent is restrained from denigrating the other parent or any member of their extended family in the presence or hearing of the child and shall not allow any other person to do so.
8.Each parent is restrained from discussing the family law proceedings to the child.
9.The parties, without admissions, shall ensure that the child punctually attends school for a full-day and otherwise provide medical evidence for the child’s absence.
10.Each parent shall ensure that they promptly notify the other and keep the other informed of:
(a)Any medical problems or illnesses suffered by X while in their care.
(b)Any medication that has been prescribed or otherwise given to X together with such information as is required to enable the other party to be reasonably able to accurately administer such medication in the future (if required).
(c)In the event of a medical emergency pertaining to X, the party with whom X is residing at that time shall as soon as practicable do all things to notify the other party of such emergency.
11.Each parent shall each authorise any medical practitioners that X may attend to release all information regarding X to the other parent.
12.The Mother and Father are authorised to receive all information relating to the child from the child’s school or extra-curricular activities ordinarily available to parents.
13.In the event of a medical emergency pertaining to X, the party with whom X is residing at that time shall as soon as practicable do all things to notify the other party of such emergency.
14.Neither party discuss these proceedings with X or disclose any Court documents in these proceedings to other persons.
15.Each parent shall enrol in and complete the “Keeping Kids in Mind” course (or a parenting after separation course of similar content and duration) and shall provide the Independent Children’s Lawyer and the other parent (or that parent’s solicitor if they are legally represented) with evidence of their completion of the course.
16.Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by March 2022.
17.The Family Report shall deal with the following matters:
(a)Any views expressed by the child(ren) the subject of parenting Orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter;
(b)The nature of the relationships of the child(ren) with each of the child(ren)’s parents and with significant other persons;
(c)The willingness and ability of each of the child(ren)’s parents to facilitate and encourage a close and continuing relationship between the child(ren) and the other parent;
(d)The likely effect of any changes in the child(ren)’s circumstances, including the likely effect on the child(ren) of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child(ren) has/have been living.
(e)The practical difficulty and expense of the child(ren) spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child(ren)’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)The capacity of each parent, or another person, to provide for the needs of the child(ren), including emotional and intellectual needs;
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child(ren) and of either of the child(ren)’s parents and any other characteristics of the child(ren) that the reporter thinks are relevant;
(h)Each parent’s attitude to the child(ren) and to the responsibilities of parenthood;
(i)Any family violence involving the child(ren) or a member of the child(ren)’s family.
18.The parties shall attend all appointments with the Family Consultant and shall ensure the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.
19.The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.
NOTATION:
(a)That the child shall remain enrolled at School B.
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 under the pseudonym Leonard & Najdi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
)
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
These are short form reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”).
This Interim Hearing relates to the child, X, born 2015.
At this Interim Hearing, the parties agreed to certain interim related parenting Orders. However, they did not agree to the time that the child should spend with the Mother during school term times. That was the issue that the Court was asked to determine at this interim hearing.
On 16 February 2021, the parties agreed to Interim Parenting Orders which provided, inter alia, for the child spend time with the Mother, in a two-week cycle, effectively five nights each fortnight during school term times.
However, the Court observes that on 16 February 2021, the Court had listed the parenting proceedings for interim hearing on 16 August 2021, the issues being competing live with and time with Orders.
MATERIAL RELIED UPON
The Mother relied upon her Affidavits filed 9 December 2020 and 14 August 2021, and her Case Outline filed 15 August 2021.
The Father relied upon his Affidavits filed 16 February 2021 and 12 August 2021, and his Case Outline filed 12 August 2021.
The ICL relied upon her Case Outline filed 13 August 2021, and the Child Dispute Conference Memorandum dated 9 March 2021: Exhibit A.
PROPOSALS
The Mother sought interim Orders that the child spend time with her in week one from 3 PM on Wednesday after school to 9 AM Monday morning, and in week two, from 3 PM Wednesday after school to 9 AM Friday morning; in effect she sought an equal time shared care arrangement at least during school term times.
The Father sought the continuance of the Court’s interim consent parenting Orders of 16 February 2021 providing, inter alia, that the child spend time with the Mother, in the aggregate, five nights each fortnight during school term times.
The ICL supported the Mother’s proposed Orders.
AGREED FACTS UNLESS OTHERWISE STATED
The Mother is aged 29 years. The Father is aged 36 years.
The Mother has a child from a prior relationship, D, aged 10 years.
The Father is a new relationship with the woman, Ms E. Ms E has two children from a previous relationship; F, 9, and G, 5.
The Mother is married to Mr H, who is aged 31 years. She alleges that they had a child, I, born 2020.
The Mother obtained an Islamic divorce in July 2015 when the child has about five months old.
The Mother alleges that the Father has always been particularly difficult to deal with when co-parenting when things did not go his way.
The Mother alleges that the parties remarried Islamically in 2017, and then lived together until they got a Islamic divorce in February 2018. She alleges that the Father left the home then.
The Mother alleges that during the period that the parties were Islamically divorced or had been separated, the child lived with her. She alleges the child spent time with the Father every weekend usually on a Saturday and/or Sunday.
The Mother alleges there was a meeting in January 2020 with an Islamic cleric and the parties to discuss parenting arrangements.
The Mother alleges that due to the cleric’s advice, she reluctantly agreed to allow the Father to spend more time with the child. The arrangement every week was for the Father to pick up the child on a Monday afternoon and spent time with him until Thursday morning, and in addition the Father would spend time with the child every second weekend on a Saturday morning until Sunday evening. This arrangement effectively equated to the child spending time with the Father seven nights every fortnight. This arrangement continued from February 2020 to about January 2021.
The Mother alleges that both parties are Sunni Muslims.
The Mother alleges that the child and D get along quite well.
The Mother alleges that at around the beginning of 2020, the child became noticeably more rebellious and naughty.
The Mother alleges that the Father suggested to her partner that he only corresponds with him, not the Mother. The Mother alleges that when face-to-face and in the presence of her partner, she is able to speak directly to the Father.
The Mother alleges the Father is expected to pay $50 a week, which he is almost always late to pay.
In January 2021, the Mother and her partner moved from Suburb J to Suburb K. The Mother lives in a two-bedroom granny flat situated behind her partner’s parents’ house.
The child commenced kindergarten this year and currently attends the School B in Suburb L.
The Mother alleges that the Father failed to return the child to her on 10 January 2021 and herself and her partner then contacted police. They attended the Mother’s residence and took statements from herself and her partner. She alleges that the Father returned the child to her on 19 February 2021 in accordance with Orders of 16 February 2021.
The Mother alleges that she missed the child’s first day of school on 1 February 2021. She states that she felt afraid to attend the child’s school as she knew the Father would be there and she was terrified of how the Father might react if she saw the Mother there.
The Mother alleges that since the child was allegedly withheld by the Father on 10 January 2021, the child has recently become substantially more attached to her and does not like being left alone when at home. The Mother alleges that she has also noticed the child develop separation issues and become distressed when she dropped him off at school. The copy text message between the Mother and the child’s school teacher of 11 March 2021 refers to this alleged issue, with the teacher allegedly stating that it takes the child longer to settle down in class after he has been dropped off by the Mother. (The Court observes that there is no recent message from the schoolteacher to the Mother in this context.). The Mother alleges that the child also expresses similar forms of emotional attachment to her at handover times when the child knows he will be leaving the Mother and spending several days with the Father. She gives an alleged example in about March 2021. She alleges that the child has expressed similar words to her on a number of occasions at handover time this year.
The Mother alleges certain concerns she has regarding the child’s behaviour “as a result of the increased time X spends with (the Father).” The Mother refers to the child swearing and failing to comply with the Mother’s instructions, and lying about washing his hands after using the toilet, for example.
The Mother alleges that the Father has not been forthcoming with her on the status of speech therapy appointments which began in about late April 2021.
The Mother alleges that Father dismissed her objections about the child attending School B and refused to engage with her in any further discussions regarding the child’s schooling.
The Mother alleges that her address in Suburb K is about 40 kilometres away from School B and about 35 minutes away with light traffic which requires the Mother and child to leave home earlier to get to school which starts at 8:25 AM.
The Mother alleges that with the recent Delta outbreak in Sydney, the child and D have been doing online schooling.
The Mother alleges that she has observed that the child failed to take to school with him his lunchbox or water bottle having collected him from school. She alleges that in about May 2021, she noted that the child had been sent to school after spending time with the Father with an unclean lunchbox. The Father makes denials in this context in relation to the Mother’s allegations.
The Father alleges that his new wife is employed as a child educator at a child care centre. He alleges that she has just recently reduced her working hours to part-time so that she can be available to spend time with their children.
The Father alleges that the Mother’s mental health was a big reason why their relationship failed. He alleges that in 2014, the Mother threatened to hurt herself and the child D if the Father left her. He alleges, and annexes to his first Affidavit, an alleged text message from the Mother that in 2015 the Mother told the Father that she could not deal with the child crying and she was scared she was going to hurt him. The Father alleges that during the parties’ marriage he has witnessed the aftermath of the Mother engaging in self-harm on more than one occasion. The Father alleges that during 2013 until around 2016, the Mother’s behaviour became increasingly concerning to him, that the Mother seemed depressed and really unstable and, inter alia, was violent towards him and would push the child D away from her when he was trying to speak to her. The Mother, for her part, denies ever attempting self-harm, denies being a perpetrator of violence, and that she has never seen a psychologist or counsellor or felt the need to do so. She alleges she has never hit her children or the Father. She denies any incapacity to parent and denies that she neglects or has neglected the child anyway.
The Father alleges that the child has a wonderful relationship with his wife and the Father’s stepchildren. The Father annexes to his first Affidavit a letter from his GP referring to the Father bringing the child for medical treatment over the years prior to 8 February 2021. The Father annexes to his Affidavit a letter from the child’s childcare centre dated 22 January 2021 referring to the child’s positive development at the childcare centre three days a week. He had commenced at that childcare centre in early September 2020. The child’s term two report card was positive.
The Father annexes to his second Affidavit a Speech Pathology Initial Assessment Report dated 4 May 2021 referring, inter alia, to the child being referred for a speech pathology assessment by the Father who raised concerns regarding the fluency of the child’s speech and articulation of speech sounds. The assessment refers to the child presenting with a moderate stutter. The Father reported that the child’s stutter allegedly worsens when the child was tired. The speech pathologist recommends the child attend regular speech therapy sessions.
The Father annexes to his second Affidavit the child’s School B 2020 one half yearly Report which is generally positive. It refers to the child being a highly valued member of the class who strives to reach his learning goals. It refers to the child being a confident, bright learner. The class teacher refers to it having been “an absolute pleasure teaching” the child this semester.
The Father alleges in about mid-2017, the Mother cancelled unilaterally the child’s enrolment with a childcare centre. He alleges that the Mother did not give him any notice nor did she discuss it with him. He alleges that between 2017 and 2020, the child did not attend any pre-schooling service. He alleges that in about May 2020 he became very concerned about the child’s education and pleaded with the Mother to reinstate the child into school to which he alleges the Mother eventually agreed. He alleges that he tried to discuss in about June 2020 the child’s year 1 enrolment with her without success. He then alleges that in about July 2020, after some lengthy research, he enrolled the child into School B. He refers to his stepdaughter G attending the school.
The Father alleges that when the child is with the Mother, his school work is incomplete or not done. The Father alleges that he lives in a six bedroom home with a lovely backyard and plenty of room for the child to play. He alleges that the Mother was living in a granny flat with her new partner and her newborn. The Father alleges that the Mother’s residence in Suburb K is about 1.5 hours away from School B.
The Father alleges that he really wants to facilitate a relationship between the child and the Mother, however he also wants to ensure that the child gets to school on time and is sufficiently provided for and is given the attention he needs.
The Father alleges that the Orders of 16 February 2021 are working and that the child appears to be able to maintain a meaningful relationship with both parents whilst keeping a routine.
The Father alleges that he has a few concerns around the Mother’s attitude towards the child’s schooling and most of all the child’s absences from school. The Father alleges that last semester the child had 7 partial absences, all of them occurring during his time with the Mother. The Father alleges that the Mother seems to either drop the child off late or pick him up early.
The Father alleges that the child was fasting during the time he spent with the Mother which was not discussed with the Father. The Father alleges that on a Monday at school the child’s teacher informed the Father that the child was very tired and lethargic, and the child allegedly told the teacher that he was fasting and she had to tell the child to go and eat. The Father alleges that the Mother fails to discuss with him matters relating to the child’s health and well-being. The Father alleges that the Mother and her partner dismissed all his concerns.
In the Child Dispute Conference Memorandum dated 9 March 2021, the Family Consultant states that each of the parents alleged that there had been verbal conflict between the Father and the Mother’s new partner, Mr H. She stated that the parties each reported that once the Mother and her partner commenced their relationship, communication about the child occurred primarily between the Father and Mr H to avoid conflict between the parents.
The Family Consultant stated, in relation to Adult Relationships, that each parent described communication as being a key difficulty in their relationship prior to and following separation. The Mother stated to the Family Consultant that the parents’ relationship was on and off again and that their communication pattern was similar in that sometimes it was friendly and cooperative and at other times hostile or non-existent. The Father reported that when the parents separated, he asked the maternal and paternal grandmothers and the paternal aunt to act as an intermediary between the parents so that the parents were not having to communicate directly with each other. He stated that when the Mother re-partnered that he and Mr H are responsible for communicating about the child.
The Father alleged to the Family Consultant that Mr H had become aggressive and had threatened the Father about the time that the Father was served with the Mother’s Court Application.
Under the heading Future Directions, the Family Consultant stated, inter alia, that if the Mother’s account was found to be the more accurate account then this may raise some concern about the Father being able to prioritise the child’s needs over his own. Similarly, the Family Consultant stated that if the Father’s account was the more accurate account then it highlighted the parents’ inability to effectively communicate and negotiate the child’s needs without exposing him to their conflict.
The Family Consultant stated that the child has experienced a range of parenting arrangements and that some of his reported difficulties may be the result of him having difficulty adapting to unpredictability in his parenting arrangements and likely exposure to parental conflict. She stated that the child was likely to benefit from an arrangement that facilitates him having a meaningful relationship with each of his parents and his maternal siblings.
The Family Consultant stated that it may be a benefit to the child if the parents complete a post separation parenting program.
LEGAL PRINCIPLES
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286.
In Marvel & Marvel (No 2) [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and Orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting Orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim Parenting Orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 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”.
Section 60B of the Family Law Act 1975 (Cth) sets out the objects and principles of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In this context the Court refers to its discussion above in relation to Banks & Banks.
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an Order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such Orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
DISCUSSION
The child has a meaningful relationship with both parents and will benefit from a continuance of those relationships.
Should the child continue to spend time with the Mother, during school term times, in the aggregate five nights each fortnight, pursuant to the Court’s Interim Parenting Orders of 16 February 2021, and the child spends time with the Mother pursuant to the parties’ agreed Interim Orders (for example, the child spending time with the Mother during school holidays and on special occasions), there is a significant prospect that the child’s meaningful relationship with the Mother can be maintained.
In this context, the Mother alleges, in particular under the heading “X’s Attachment to Me” in her more recent Affidavit, that the child has developed separation issues and becomes distressed when he is dropped off at school. For example, she refers to a message from the child’s teacher which is dated in March 2021. The Court observes there are no later messages from the teacher or the school in relation to this issue. The Court also refers to the child’s positive school Report being the 2021 Half Yearly Report which does not refer to any such issues or concerns by the school or the child’s teacher. At this interim stage, based on all the material before it, the Court does not have a significant concern that should the child continue to spend time with the Mother pursuant to the Court’s Orders of 16 February 2021, that the child will experience adverse separation or attachment related emotional issues, as contended by the Mother.
The parties make allegations against each other relating to alleged family violence which are somewhat historical in nature; each party make significant denials in this context. The Father alleges the Mother had mental health related issues but there is no contemporary allegations or objective evidence relating to these allegations. Having considered all the allegations in this context of alleged need to protect issues, the Court presently does not have a significant concern in relation to these competing allegations of the parties.
The Mother effectively seeks an equal time shared care arrangement during school term times. The Court has a significant concern that the parties’ ability to adequately communicate with each other and co-parent this child is insufficient to support an equal shared care arrangement. An equal time shared care arrangement requires parties to have good communication with each other and a ready ability to cooperatively co-parent the child on a week to week basis. Such an arrangement also requires the parties to trust each other in relation to the child and child related issues. The history of these parties to date suggests that there is considerable distrust between them in relation to the child.
The history of these parties’ ability to consistently communicate with each other in relation to the child suggests that they have communication problems with each other and an inability to reach agreement in a timely fashion in relation to issues affecting the child. The Court refers to the evidence of the Family Consultant in this context whilst acknowledging that her Report remains untested. The Court has a significant concern that if it was to make the Mother’s proposed time-with Orders relating to the child spending time with her during school term times, that the parties will be unable to communicate sufficiently in relation to the child’s needs and related issues, and that there will be an increased risk of conflict between the parties to the detriment of the child. The Court has not overlooked that the parties have agreed to communicate relating to child’s issues through the parenting application, Our Family Wizard App, and that they have agreed to complete a parenting after separation course, but the Court’s concerns remain.
The Court also has a concern that to make the Mother’s proposed time-with Orders during school term times, that the child may experience instability through having his parenting arrangements changed again. The evidence of the Family Consultant (for example paragraph 26 of her Memorandum) is consistent with this view. The Court has a concern with the child having to endure additional possibly lengthy car travel by having to spend an additional two nights each fortnight with the Mother should her proposed Orders be made. The child would appear to be progressing positively at school, and again, the child is presently spending, pursuant to the Court’s Interim Parenting Orders of 16 February 2021, substantial and significant time with the Mother, in the aggregate five nights each fortnight, which approaches an equal time arrangement, and is enjoying a meaningful relationship with the Mother. It will not be in the best interests of the child to be subject to an effective equal time shared care arrangement as proposed by the Mother. As to whether an effective equal time shared care arrangement would be reasonably practicable, whilst it probably would be, again, the Court has a concern in relation to increased car travel based on the Mother’s proposals whilst acknowledging that the parties are in some dispute as to the likely length of travel between the Mother’s residence and the child’s school.
The above matters discussed by the Court are the relevant section 60CC considerations in this Interim Hearing. Evaluating the above discussed matters under section 60CC, it will be in the best interests of the child that he continue to be subject to the Court’s Interim Parenting Orders of 16 February 2021 relating to spending time with the Mother during school term times. Again, the parties have agreed to further interim Order which will be in the best interests of the child.
Accordingly, the Court Orders on an interim basis:
1.The Mother’s proposed Orders 1, 2, 3(a) and 3(b) set out in her Proposed Minute of Order attached to her Case Outline filed 15 August 2021 is dismissed.
2.That the child X born 2015 shall live with the Father and spend time with the Mother as follows:
(a)During the short school holidays (Terms 1, 2 and 3 commencing at the cessation of Terms 3 2021) and continuing thereafter the child shall spend time with the Mother in accordance with the following schedules:
(i)For the second half of the short school holidays in the years ending in an odd number.
(ii)For the first half of the short school holidays in the years ending in an even number.
(b)During the long school holidays, commencing Term 4 2021 school holidays, and continuing thereafter
(i)For the second half of the long school holidays each year ending in an odd number.
(ii)For the first half of the long school holidays each year ending in an even number.
(iii)Such other times as agreed between the parties agree in writing.
(c)On the child’s birthday, from 5.30pm to 8.30pm should the child 's birthday fall on a school day or 9.00am until 12.00pm, should the child's birthday fall on a non-school day.
(d)On Eid-Al-Fitr and Eid-Al-Adha:
(i)During the celebration of Eid-Al-Fitr and Eid-Al-Adha, from 12.00 pm to 7.00 pm on the first day of Each Eid.
(ii)Should there be disagreement between the parties in respect of the Gregorian calendar date of Eid-Al-Fitr or Eid-Al-Adha, the parties shall rely on the dates confirmed by the Australian National Imams Council.
(e)On Mother's Day from 3.00pm Friday preceding Mother’s Day until before school after Mother’s Day.
(f)That on Father’s Day, the time with the Mother be suspended and the child shall spend time with the Father from 3pm Friday preceding Father’s Day until before school after Father’s Day.
(g)Such other times as may be agreed between the parents and the Independent Children’s Lawyer in writing.
3.For the purposes of changeover, the Mother shall collect the children from the front entrance of School B at the commencement of her time and shall return the child to that same location at the conclusion of her time.
4.That if changeover is to take place on a non-school day, changeover shall take place at the Suburb C McDonalds.
5.The parties shall communicate about issues concerning X only through the parenting application, Our Family Wizard App and each of the parties shall pay their own costs of maintaining their respective accounts, unless in case of an emergency.
6.Each parent shall notify the other of any medical emergency or hospitalisation of the children as soon as is reasonably practicable and these Orders shall constitute authority for either parent to make enquiries with the children’s treating health practitioners as to their general progress and wellbeing.
7.Each parent is restrained from denigrating the other parent or any member of their extended family in the presence or hearing of the child and shall not allow any other person to do so.
8.Each parent is restrained from discussing the family law proceedings to the child.
9.The parties, without admissions, shall ensure that the child punctually attends school for a full-day and otherwise provide medical evidence for the child’s absence.
10.Each parent shall ensure that they promptly notify the other and keep the other informed of:
(a)Any medical problems or illnesses suffered by X while in their care.
(b)Any medication that has been prescribed or otherwise given to X together with such information as is required to enable the other party to be reasonably able to accurately administer such medication in the future (if required).
(c)In the event of a medical emergency pertaining to X, the party with whom X is residing at that time shall as soon as practicable do all things to notify the other party of such emergency.
11.Each parent shall each authorise any medical practitioners that X may attend to release all information regarding X to the other parent.
12.The Mother and Father are authorised to receive all information relating to the child from the child’s school or extra-curricular activities ordinarily available to parents.
13.In the event of a medical emergency pertaining to X, the party with whom X is residing at that time shall as soon as practicable do all things to notify the other party of such emergency.
14.Neither party discuss these proceedings with X or disclose any Court documents in these proceedings to other persons.
15.Each parent shall enrol in and complete the “Keeping Kids in Mind” course (or a parenting after separation course of similar content and duration) and shall provide the Independent Children’s Lawyer and the other parent (or that parent’s solicitor if they are legally represented) with evidence of their completion of the course.
16.Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by March 2022.
17.The Family Report shall deal with the following matters:
(a)Any views expressed by the child(ren) the subject of parenting Orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter;
(b)The nature of the relationships of the child(ren) with each of the child(ren)’s parents and with significant other persons;
(c)The willingness and ability of each of the child(ren)’s parents to facilitate and encourage a close and continuing relationship between the child(ren) and the other parent;
(d)The likely effect of any changes in the child(ren)’s circumstances, including the likely effect on the child(ren) of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child(ren) has/have been living.
(e)The practical difficulty and expense of the child(ren) spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child(ren)’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)The capacity of each parent, or another person, to provide for the needs of the child(ren), including emotional and intellectual needs;
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child(ren) and of either of the child(ren)’s parents and any other characteristics of the child(ren) that the reporter thinks are relevant;
(h)Each parent’s attitude to the child(ren) and to the responsibilities of parenthood;
(i)Any family violence involving the child(ren) or a member of the child(ren)’s family.
18.The parties shall attend all appointments with the Family Consultant and shall ensure the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.
19.The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.
NOTATION:
(a)That the child shall remain enrolled at School B.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 8 September 2021
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