Lipovic and Sorrel

[2019] FamCA 38

FAMILY COURT OF AUSTRALIA

LIPOVIC & SORREL [2019] FamCA 38

FAMILY LAW – CHILDREN – Final parenting – Where a non-parent seeks orders to spend time with the child – Where the non-parent stepfather is the father to the child’s half siblings – Where the father has perpetrated family violence against the mother – Where it is the opinion of the expert that it is in the child’s best interests to spend time with the non-parent – Consideration of relevant principles – Where order made for child to spend time with non-parent stepfather.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65C

Aldridge & Keaton [2009] FamCAFC 229
Donnell & Dovey [2010] FamCAFC 15
Goode and Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4
Potts & Bims [2007] FamCA 394
Valentine & Lacerra and Anor [2013] FamCAFC 53
Yamada & Cain [2013] FamCAFC 64

APPLICANT: Mr Lipovic

RESPONDENT: Ms Sorrel

INDEPENDENT CHILDREN’S LAWYER: Ms Court

FILE NUMBER: WOC 73 of 2015

DATE DELIVERED: 1 February 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: By way of written submissions last received on 12 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Wood and Ms Cuppitt of Able Defence Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lee

SOLICITOR FOR THE RESPONDENT: Ms Kaiti of CBD Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Murphy

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: John Spence & Associates

Orders

1. The child, X born on … 2011 shall spend time with the applicant father, Mr Lipovic as follows:

   (a)Each alternate weekend from 10.00 am Saturday until 5.00 pm Sunday commencing 16 February 2019 until and including the weekend commencing 13 April 2019.

   (b)Each alternate weekend during school terms from after school on Friday to 5.00 pm on Sunday commencing 26 April 2019.

   (c)From the commencement of the short school holidays at the conclusion of Term 2, 2019 for one half of the short school holidays as agreed in writing with the respondent mother, Ms Sorrel and failing agreement the first half in years ending in an odd number and the second half in years ending in an even number.

   (d)During the Christmas school holidays in 2019/2020 for two weeks as agreed with the mother in writing and failing agreement, the last two weeks of the school holidays.

   (e)From 2.00 pm Christmas Day to 4.00 pm 30 December each year commencing 25 December 2019.

   (f)Such other times that the mother and the applicant father may agree in writing such writing to include SMS or email communication.

2. That the applicant father’s time with the child is suspended from 9.00 am Christmas Eve to 2.00 pm Christmas Day each year commencing 24 December 2019.

3. Notwithstanding anything else in these orders:

   (a)In the event that these orders provide for the child to spend time with the applicant father on the weekend of Mother’s Day, the applicant father’s time will take place on the following weekend to enable the children to spend the Mother’s Day weekend with their mother;  and

   (b)In the event that Father’s Day falls on a weekend when the child would be with the mother, the child shall spend time with the applicant father on the weekend of Father’s Day in substitution for the following weekend when the child would otherwise be spending time with the applicant father.

4. That the applicant father is to ensure he takes the child to her sporting activities as they fall due whilst the child is spending time with him.

5. For the purpose of these orders, changeover shall take place at the child’s school or a location as agreed between the parties or in the absence of agreement McDonald’s Restaurant located at Suburb G at the commencement of the father’s time with the child and at McDonald’s Restaurant at Suburb B at the conclusion of the applicant father’s time with the child.

6. That for the purposes of calculating one half of a school holiday time the period shall commence on the last day that the child is required to attend school and shall conclude on the first day that the child is required to attend school the following school term (so school holiday periods shall include pupil free days) and if there are an even number of nights in the period, then the first half shall conclude at 5.00 pm on the mid evening (eg if there are 14 nights at 5.00 pm on the seventh evening) and if there are an odd number of nights the first half shall conclude at 5.00 pm on the 15 nights time would conclude at 8.00 pm on the eighth evening in the period.

7. That the parties shall ensure that the child is able to contact the other by telephone when she is in their respective care if the child expresses a wish to do so.

8. That both parties are restrained from denigrating or making derogatory comments about the other parent or a member of their household or family in the presence or hearing of the child and shall immediately remove them from the presence or hearing of any third person who does so.

9. That “Without Admissions” both parties are restrained from using physical punishment or chastisement with the child and shall not permit any third party to do so.

10. That both parties shall forthwith, or as soon as practicable, advise the other party, in writing, of any significant injury or significant illness that the child suffers whilst in that party’s care including:

    (a)The nature of the illness or injury;

    (b)Treatment obtained;

    (c)Who the treatment was obtained from including the name and telephone number of the practitioner/ hospital;

    (d)Prognosis.

11. That each party shall provide the other with written notice within seven days of any change to their telephone numbers (including mobile telephone) and email address.

12. That both parties shall do all acts and things necessary including the giving of all consents to ensure that both are able to access information that would ordinarily be available to parents about the child from her school and extracurricular activity providers.

13. Both parties are entitled to attend school events involving the children to which parents are normally invited.

14. Within 14 days of the date of these orders the father shall do all acts and things and sign all documents necessary to enrol in and then complete the ‘Taking Responsibility – a course for men’ conducted by C Group, and:

    (a)The father shall provide written notice to the mother of his commencement date for the course required by this Order;

    (b)The father shall provide a certificate of completion to the mother with respect to the course required in this Order;

    (c)The child’s overnight time with the applicant father in accordance with the above orders not occur until commencement of the course referred to in this order.

15. That the applicant father’s time with the child as provided shall be suspended on occasions that the child is reasonably spending with her biological father, Mr D provided always that:

16. The mother shall give to the applicant father not less than three days’ notice that the child will, otherwise, be spending time with the biological father; and

17. That the child does in fact spend such time with the biological father; and

18. That such suspension of time shall not occur on two consecutive occasions that the child is otherwise to spend with the applicant father.

    Independent Children’s Lawyer’s Costs

19. By Consent: That the applicant and respondent shall pay to Legal Aid NSW costs of the Independent Children’s Lawyer in the sum of $13,808.00 within 14 days from this date and the applicant and respondent shall do all things necessary to authorise and direct that such payment be made from funds presently held in a controlled money account on their behalf.

20. By Consent: That the applicant and respondent shall pay to Dr E his outstanding fees in the sum of $2,488.00 within 14 days from this date and the applicant and respondent shall do all things necessary to authorise and direct that such payment be made from funds presently held in a controlled money account on their behalf.

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 Lipovic & Sorrel 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 PARRAMATTA

FILE NUMBER: WOC 73  of 2015

Mr Lipovic

Applicant

And

Ms Sorrel

Respondent

REASONS FOR JUDGMENT

1. Final parenting proceedings as between the applicant father and respondent mother were listed for final hearing commencing 29 October 2018 for four days. 

2. Following several days of evidence the matter concluded with consent orders on 31 October 2018.

3. On 31 October 2018 the applicant father, respondent mother and the Independent Children’s Lawyer appointed to represent the interests of the subject children consented to final orders as to parenting in the following terms:

   (1)All previous parenting orders made in relation to [W] born … 2004, [Y] born … 2006, [Z] born … 2008 and [X] born … 2011 (“the children”) be discharged.

   (2)The parties shall have equal shared parental responsibility for [W] born … 2004, [Y] born … 2006, and [Z] born … 2008 except the mother shall have sole parental responsibility with respect to the children’s schooling and the mother shall give the father 28 days’ notice of any decision to change any of the children’s schools.

   (3)The mother shall have sole parental responsibility for the child, [X Lipovic] also to be now known as [X Sorrel] born … 2011.

   (4)Except as otherwise provided for in these orders, the children shall live with the mother.

   (5)The children, [W] born … 2004, [Y] born … 2006 and [Z] born … 2008 shall spend time with the father as follows:

   (a)From 10.00 am to 2.00 pm on Saturday 10 November 2018 and Saturday 24 November 2018.

   (b)From 9.00 am to 5.00 pm on Saturday 8 December 2018, on Saturday 22 December 2018, on Saturday 5 January 2019, on Saturday 19 January 2019 and on Saturday, 2 February 2019.

   (c)Each alternate weekend from 10.00 am Saturday until 5.00 pm Sunday commencing 16 February 2019 until and including the weekend commencing 13 April 2019.

   (d)Each alternate weekend during school terms from after school on Friday to 5.00 pm on Sunday commencing 26 April 2019.

   (e)From the commencement of the short school holidays at the conclusion of Term 2, 2019 for one half of the short school holidays as agreed in writing between the parties and failing agreement the first half in years ending in an odd number and the second half in years ending in an even number.

   (f)During the Christmas school holidays in 2019/2020 for two weeks as agreed with the mother in writing between the parties and failing agreement, the last two weeks of the school holidays.

   (g)From 2.00 pm Christmas Day to 4.00 pm 30 December each year commencing 25 December 2019.

   (h)Such other times that the parties might agree in writing between them.

   (6)The father’s time with the children is suspended from 9.00 am Christmas Eve to 2.00 pm Christmas Day each year commencing 24 December 2019.

   (7)Notwithstanding anything else in these orders:

   (a)In the event that these orders provide for the children to spend time with their father on the weekend of Mother’s Day, the father’s time will take place on the following weekend to enable the children to spend the Mother’s Day weekend with their mother;  and

   (b)In the event that Father’s Day falls on a weekend when the children would be with their mother, the children spend time with the father on the weekend of Father’s Day in substitution for the following weekend when the children would otherwise be spending time with their father.

   (8)For the purpose of order 5 the father is to ensure he takes the children to their sporting activities as they fall due whilst the children are spending time with him.

   (9)For the purpose of order 5(a) and 5(b) changeover shall take place at the Children’s Contact Centre at Suburb F; thereafter changeover shall take place at the children’s school or a location as agreed between the parties or in the absence of agreement MacDonald’s Restaurant located at [Suburb G] at the commencement of the father’s time with the children and at MacDonald’s Restaurant at [Suburb B] at the conclusion of the father’s time with the children.

   (10)For the purposes of calculating one half of a school holiday time the period shall commence at the last day that the children are required to attend school and shall conclude at the first day that the children are required to attend school the following school term (so school holiday periods shall include pupil free days).   If there are an even number of nights in the period then the first half shall conclude at 5.00 pm on the mid evening (eg if there are 14 nights at 5.00 pm on the 7th evening) and if there are an odd number of nights the first half shall conclude at 5.00 pm on the 15 nights time would conclude at 8.00 pm on the 8th evening in the period.

   (11)Both parents shall ensure that the children are able to contact the other parent by telephone when they are in their care or if any of the children express a wish to do so.

   (12)Both parties are permitted to travel with the children outside of the Commonwealth of Australia provided that:

   (a)The travel is to a country which is a signatory to The Hague Convention.

   (b)The parent will be travelling with the children, unless any of the children are travelling for the purpose of a school excursion or sport.

   (c)The travelling parent will provide to the non-travelling parent the following details at least 28 days prior to the proposed dates of travel:

   (i)A copy of the airline ticket/itinerary showing the dates of travel, airline, destinations and stopovers.

   (ii)Details including the addresses and telephone numbers of where the children will be staying.

   (d)The travelling parent shall facilitate and make the children available to communicate by telephone or social media if such facilities are available, with their father or mother upon the children’s request.

   (13)Both parties shall do all acts and things necessary, including the signing of any documents, to facilitate the children having an Australian passport within seven days of a request to do so.

   (14)The mother shall retain the children’s passports and shall provide the passports to the father within seven days of any request by the father and the father shall return the passports to the mother within 72 hours of return to Australia.

   (15)Both parties are restrained from denigrating or making derogatory comments about the other parent or a member of their household or family in the presence or hearing of the children and shall immediately remove them from the presence or hearing of any third person who does so.

   (16)“Without Admissions” both parties are restrained from using physical punishment or chastisement with the children and shall not permit any third party to do so.

   (17)Both parties shall forthwith, or as soon as practicable, advise the other party, in writing, of any significant injury or significant illness that the children, or either of them, suffer whilst in that party’s care including:

   (a)The nature of the illness or injury;

   (b)Treatment obtained;

   (c)Who the treatment was obtained from including the name and telephone number of the practitioner/hospital;

   (d)Prognosis.

   (18)Each parent shall provide the other with written notice within seven days of any change to their telephone numbers (including mobile telephone) and email address.

   (19)Both parties shall do all acts things necessary including the giving of all consents to ensure that both parents are able to access information that would ordinarily be available to parents about the children from their school and extracurricular activity providers.

   (20)Both parents are entitled to attend school events involving the children to which parents are normally invited.

   (21)Both parties are restrained from discussing the contents of these orders with the children until the Independent Children’s Lawyer has had the opportunity to explain the contents of them to the children prior to the first unsupervised visit.

   (22)That the mother be authorised to apply to the Registrar of Births, Deaths and Marriages NSW that the child, [W Lipovic] born … 2004 be now registered as [W-Sorrel]; that the child [Y Lipovic] born … 2006 be now registered as [Y-Sorrel]; and that the child [Z Lipovic] born … 2008 be now registered as [Z-Sorrel].

   (23)That the mother be authorised to apply to the Registrar of Births, Deaths and Marriages NSW and have the child [X Lipovic] born … 2011 now be registered as [X-Sorrel].

   (24)Pursuant to s 28(5) of the Births, Deaths and Marriages Registration Act 1995 (NSW) the Registrar register each child’s name in the form specified in order 22 and 23 herein.

   (25)That the name ‘[Mr Lipovic]’ on the birth certificate of [X] born … 2011 be removed and replaced with the name of [Mr D].

   (26)That the mother shall ensure:-

   (a)That the mother attends upon [W’s] general practitioner within 14 days for a referral for [W] to engage with a clinical psychologist for treatment as recommended by the Independent Children’s Lawyer and both parents comply with all directions and recommendations of the clinical psychologist.

   (b)That an appointment is made within 14 days for [W] to attend upon a paediatrician as recommended by [Dr E].

   (c)The father is at liberty to liaise with [W’s] clinical psychologist or paediatrician referred to in this order or any other of [W’s] treating professionals.

   (d)That the mother attends upon her general practitioner within 14 days for a referral to a clinical psychologist for treatment.

   (e)For the purpose of this order the mother shall and is permitted to provide a copy of [Dr E’s] report to both the mother’s and W’s treating clinical psychologist and W’s paediatrician.

   (f)The mother is to advise the father as soon as possible of compliance with this order including the names of all treating health professionals for [W].

   (27)For the purpose of the previous order that both the mother and father shall apply for a mental health plan for [W] and any costs not covered by Medicare shall be paid equally by each parent.

   (28)Within 14 days of the date of these orders the father shall do all acts and things and sign all documents necessary to enrol in and then complete the ‘Taking Responsibility – a course for men’ conducted by [C Group], and:

   (a)The father shall provide written notice to the mother of his commencement date for the coursework required by order 28 hereof.

   (b)The father shall provide a certificate of completion to the mother with respect to the coursework required in order 28 hereof;

   (c)The children’s overnight time in accordance with order 5 shall not occur until commencement of the courses referred to in order 28.

   IT IS FURTHER ORDERED THAT

   (29)The Independent Children’s Lawyer is to forward an electronic typescript of the document marked “A” as amended to the Court within two business days.

   (30)Leave is granted to the second respondent [Mr D] to file in Court a Notice of Discontinuance dated 29 October 2018.

   (31)The applicant father and respondent mother be at liberty to make any submissions as to the issue of [X’s] time with the Applicant and such submissions to be made by way of written submissions filed and serve by no later than Friday, 9 November 2018.

   (32)Thereafter judgment be reserved.

   THE COURT NOTES THAT

   (33)The parties and the Independent Children’s Lawyer invite the Court to provide short reasons for judgment only as to the discrete issue for determination.

1. Thus, the only matter remaining for determination was the question of the applicant’s time, if any, with the child, [X].

2. Submissions were received from the applicant on 9 November 2018 and submissions were received from the respondent mother on 10 November 2018.

3. The child, X was born in 2011 and at trial was aged seven.

4. As can be seen from the orders made, the applicant Mr Lipovic is not the biological father of the child, X, and the mother was by orders granted permission to amend the child’s surname accordingly and to have the child’s biological father, Mr D, recorded on the child’s birth certificate. Mr D was a party to the proceedings, but discontinued his engagement by filing a Notice of Discontinuance at trial. He, otherwise, agreed with orders as to the child as sought by the mother.

5. As can be seen the applicant Mr Lipovic will spend significant time with his children of his relationship with the mother.  At present the child X is excluded from such time absent agreement between the applicant and the mother.

6. It is common ground that the child has spent no time and had no contact with the applicant father since early December 2014.

7. Her biological father, Mr D, who gave evidence in the proceedings, expresses concern as to the child commencing to spend time with the applicant.  Significantly, his concerns reflected the poor relationship between the applicant and the applicant’s children of his relationship with the mother.

8. The mother expresses her concern that should the child X spend time with the applicant, that the applicant would not treat her equally to her half siblings.

9. Exhibit “D” in the proceedings is the Single Expert Report of Dr E, clinical psychologist dated 28 February 2017.  In that report Dr E on interview with X observes:

   [X] attended the assessment with her mother and sisters.  She was attired neatly and presented as a child of average height and weight.  [X] was agreeable to attending a brief individual interview, separating easily from her sisters and mother.  She was chatty and engaged with the clinician, though also became teary when discussing family issues.

   X reported that she has “two daddies.  Daddy [Mr D] and daddy [Mr Lipovic]”.  She reported having had infrequent contact with both father figures, though appears to have formed positive memories about [Mr D], stating that he buys her toys and hugs her before bedtime.  When asked if she would like to be able to meet with [Mr Lipovic] on the assessment day, [X] shook her head.  Like her sisters, she was unable to articulate reasons not to see [Mr Lipovic]…

   She appeared settled and secured in her attachment to her sisters and mother, while she has had very limited contact with [Mr Lipovic] in recent times, she clearly identified him as a parental figure in her life…

   Whilst the clinician acknowledges that [Mr Lipovic] is not [X’s] natural father, [X] has observed her sisters attend contact with him and appeared confused by this arrangement.  She articulated a fear of [Mr  Lipovic], though this appeared to mirror [Ms Lipovic’s] trepidation about the children spending time with him.  In contrast, during observation [X] readily demonstrated positive emotional reaction to and commenced approach behaviour toward [Mr Lipovic], but stopped when she observed the hesitation of her siblings.  At the very least this highlights the basic attachment she has formed with [Mr Lipovic] and that despite a prolonged absence, this has sustained to some extent.  Withholding [X] from contact with [Mr Lipovic] and her sisters would only crystallise this irrational fear and further perpetuate double standards within their home.  Encouraging contact that is structured, routine, consistent and predictable in their home (i.e. all children to attend contact at the same time fortnightly) would alleviate some of the distress exhibited by all children… 

10. Dr E was taken to the issue of X in his oral evidence:

    Now, with respect to [X,] do you see for her that she will have – she will have any difficulty in having two fathers?  

    We – we have a considerable number of children in our community with that situation now, so – and we have children with two fathers and – and two mothers, and, in more recent times across gay relationships, we have children with – I’ve got a somewhat challenging matter at the moment within a lesbian relationship which has parted company, so I have two children with four mothers.  So we are in a complex society in – in a changing mindset of what family is, but the notion of children having two fathers and other multiple relatives is not unusual nor uncommon…

    I’ve read that from [Mr Lipovic’s] affidavit that she hadn’t been attending contact, and I thought that was regrettable…

    HIS HONOUR:   Well, it wasn’t because of her own choice? ‑‑‑Which would be appropriate for a five or six year old – yes, your Honour – so, clearly, that was a – a choice of the mother in that instance?

    Look, given my – my point made to collected counsel in – in informal discussion, I, as a clinician, and I think my colleagues are of a mind of trying to keep siblings together as much as possible for as long as possible on the mindset of – of a community value that we try and treat all of our children with the same set of standards in the same way that schools try and treat students with the same set of standards so that children grow up within a society having an expectation that – that there is a certain equality of membership of that society.  That said, it’s certainly going to be helpful to [X] to see her big sister is going off to see Dad, be it Daddy [Mr Lipovic] versus her contacts with Daddy [Mr D], if he’s in the picture to a greater or lesser extent.  So if there is a chance of the four girls having that sort of shared grouping activity, then it’s certainly to their benefit, and I think it’s incumbent on us as, hopefully, the wiser minds in their development to give them the greatest opportunity to grow together as a group of siblings.  And we certainly know from extended research, and I’m sure people in the courtroom would know with their own family experiences, that if you have the chance of growing up with your siblings – your brothers and sisters – and sharing more activities rather than less, the chances of your sibling relationships enduring into adulthood are far, far greater, hence, as I said, it’s incumbent on me as a clinician to recommend to the court where possible to keep sibling arrangements as standard as – as we possibly can.  Hence my comment about [W].  I would like her kept in the mix with the other siblings for at least a reasonable period until – and whether we make that her 15th birthday or 16th birthday, but we make it some sort of identifiable milestone for her, at which point we can then make it an identifiable milestone for the other children as well to say, “When you’re at that age, then you can make that decision”, …which is, I think, how we do many rites of passage for our children across our society.

    I’m asking you what you say will be the impact – potential impact on [X] if she does not have the chance to spend time with [Mr Lipovic] with her siblings? ‑‑‑

    Well, clearly, then – then she’s still absent a critical father figure, a male figure, in her life, and we certainly know from a vast amount of research the impact of the absent male figure in the development of children both sons and daughters or males and females.  There are enormous long-term implications associated with having an absent positive male role model in their lives.

    [Mr D] is in a presence in her life.  Clearly, in the report, she referred to the fact she has got two Daddies, so she, to some extent, has some sort of relationship with [Mr D].  How would you see it, then, with the time that X should – if she’s spending some time with [Mr D], what sort of time, then, should she be spending with [Mr Lipovic]?

    ‑‑‑I think that would need to depend on – on evidence provided to the court about [Mr D’s] availability.  Certainly, I’ve – I’ve had no end of cases where we have a central mother and two fathers with different children within a family system, and, on any particular weekend, all the children are – are going to their respective fathers.  So if there is a prospect of paralleling the care arrangements such as the big girls are going to [Mr Lipovic] and [X] is going to [Mr D], that’s great, and at least that is then consistent and predictable and – and, from [Ms Lipovic’s] position, it’s just an expressed expectation that, “This is your time” or “This is your weekend and week of time with your father”, so that matched expectation carries across as a sibling standard.  If that’s going to be more variable in terms of [Mr D’s] presence, then I would be coming back to saying preserve the consistency and predictability with [Mr Lipovic].  Regardless, a third element to that is presuming [Mr D] is around to a lesser extent, then preferentially we’re back to [X] having the best of both worlds or as much as we can do to assist her having the best of both worlds, so we ensure predictability of contact for her with, presumptively, the most reliable father figure that’s available willing to step up and be a consistent, positive male figure there.  So if that’s [Mr Lipovic], good.  Let’s make it happen.  And if it’s going to – going to [Mr D], then, obviously, I’m without any evidence for that, so I can’t assist the court on that option.  If he’s there in a variable matter – manner – forgive me – by virtue of distance and – and his occupational responsibilities, then sometimes it may supersede contact with [Mr Lipovic] on that particular weekend if he’s in town and other times the usual arrangements can take effect.  So I’m – I’m trying to cover ‑ ‑ ‑

    So if [X] joined in with the other – with her siblings at the same period of time but, then, if there was – [Mr D] came into town one weekend then, simply, it would be that [X] would see [Mr D] that weekend.  Is that ‑ ‑ ‑? ‑‑‑If ‑ ‑ ‑‑ ‑ ‑ feasible?

    ‑‑‑ ‑ ‑ ‑ if it’s only going to be a variable contact like that from [Mr D’s] perspective, then, yes, I’m obviously trying to assist him have the opportunity to be able to connect with [X] as well.  So, again, I’m back to trying to preserve and enhance as much family for every child as I can. Look, clearly, the – the incremental contact process is going to be challenging for the children especially and both parents by virtue of sending them and receiving them.  So, yes, it’s going to be a challenge in time.  The more that [X] can see that she is simply doing what her sisters are doing as well as having, you know, her elder siblings’ support, I would strongly suspect she will be entirely fine.

    Yes?

    ‑‑‑So, you know, that’s the joy of actually preserving siblings together, be them sisters or brothers.  So the fact that they are all together doing the same thing I think is going to be very reassuring for her.

    So you would agree that it is absolutely essential for [X] to have the opportunity to spend time with her siblings and [Mr Lipovic]? ‑‑‑

    Well, I think if we are proceeding on that assumption – and I haven’t got any other evidence to suggest anything else – then, yes, I’m – I’m still back to the opportunity of a positive father figure, male role model in her life is great, and if [Mr D] is able to do that, that’s good.  I wish there was some evidence for it.  In that absence and if [Mr Lipovic] is here to do it, good.

    So how do you expect [X] will cope?  [Mr D] appears to be adamantly against [X] spending time with [Mr Lipovic], as is [Ms Lipovic].  So how do you think [X] is going to be able to cope with that? ‑‑‑

    Well, it’s going to completely depend on what [Ms Lipovic] and [Mr D] communicate about their understanding of what the court expects of them and, likewise, what they expect of [X].  So it’s largely going to come down to, obviously, the strength of the orders and whether – you know, whether the court may need to look at the powers available to the court.  I’ve – I’ve certainly had multiple cases where the court have reached for bonds and – and placed parents under threat of fines and various other sanctions to ensure compliance.  So if that’s necessary, I know the court is able to do that.

    HIS HONOUR:   Doctor, one would probably suggest that with the two middle children spending regular time with the father at the contact centre, that that would probably cause, in [X’s] mind, an inquiry about what was going on?‑‑‑

    Correct.

    And, of course, in circumstances where [Mr D] considers this court to be a clown show and has chosen not to engage in the proceedings, it would not suggest that he’s putting the best interests of his child to the forefront?‑‑‑

    I – I find those words deeply concerning.

    ‑ ‑ ‑ really, it’s a question of somebody who is interested in the welfare of the child – [Mr Lipovic] – and the mother? ‑‑‑

    Hence my comment earlier about the parent ready to step up and – and be there.

    And you were saying that there were some long-term issues that could arise from the absence of an appropriate father figure in her life as she gets older – significant issues, I think you said.  What sort of difficulties would she encounter later on in terms of her own psychological makeup and her ability to form appropriate mature relationships later on in life?‑‑‑

    Well, that – that – in and of itself, that’s one of the bigger challenges for female children coming out of conflicted families and absent-father families – is difficult – is with male relationships in their adult years.

    Well, at the moment, she has got a learned behaviour from the mother rejecting [Mr Lipovic] as an important person in her life?‑‑‑

    Hence that then becomes almost the gold standard ‑ ‑ ‑

    For her?‑‑‑ ‑ ‑ ‑

    as a – as a fearful or vigilant approach to any possible male that wants to seek to have an intimate relationship with her.  So you’ve got that issue.  There’s then an associated risk of early puberty and early pubescent development associated with the additional emotional turmoil that goes with things associated with that – early development.  You then quite often have changes in body state by virtue of the hormonal fluctuations so that you can have weight disorders becoming foremost as well.  You can have issues associated with poorer school performance, of – of poorer long-term school completion and poorer vocational – post-vocational training, again quite often associated with the absence of the male role model.  So there’s a need.  There’s quite a need for a positive role model in all children’s lives.

    If [Mr D] was on the scene on a regular basis like every weekend, would you still be recommending that [X] go and see [Mr Lipovic]? ‑‑‑

    Well, there – there was – I thought I canvassed that in earlier evidence with the ICL.  If [Mr D] is around to be present consistently or present reliably, then I would see good merit in trying to marry the two sets of care arrangements across both fathers in ‑ ‑ ‑

    On the same day? ‑‑‑

    ‑ ‑ ‑ in as uniform a manner as possible.  If his presence is going to be variable, then I would certainly be going for the most reliable father figure – obviously in this case [Mr Lipovic] – for all the children and then build in opportunities for [X] to have incidental contact with [Mr D] as his job responsibilities allow.  Mind you, I was fully aware of his being a member of the defence forces, hence my consternation at the way he addressed the court or described the court.  So I found that doubly concerning, second only to a police officer expressing that same thing, but to hear that sort of descriptive language from a serving personnel about the court was very concerning.

    …

    You don’t see any problems with [X] seeing [Mr Lipovic] on a lesser number of occasions than the other children? ‑‑‑

    Is that – you’re asking me to assume [Mr D] is then figural in the picture ‑ ‑ ‑

    Yes? ‑‑‑

    ‑ ‑ ‑ as a – as a reliable entity?

    Well..... He’s not reliable? ‑‑‑

    Well, but once every blue moon, then, clearly, X by and large is going to be maintaining the same contact regime as the other girls, which is the essence of what I’m putting forward as my advice to the court.  If he’s here more reliably, then, obviously, that’s evidence that I don’t have and I can’t assist this court with, so I’m presuming the opposite until otherwise notified.

    I understand that, but what you’re saying..... more reliable, more – one goes one way and one goes the other.  These children ‑ ‑ ‑? ‑‑‑

    Yes.  If he’s in town and – and saying, “I’m here for every second weekend”, great, I think that’s a very ‑ ‑ ‑

    But if he’s unreliable ‑ ‑ ‑? ‑‑‑

    ‑ ‑ ‑ manageable basis for [Ms Lipovic] to work out her household and – and the activities and directions of the children ‑ ‑ ‑ the extent of the unreliability, hence my comment of if it’s once every blue moon then I think the opportunities for enriching [X’s] world are better with a reliable male figure in her life every fortnight as with her sisters.  Fairly simple advice, really.  I leave it to the court as to what to make of it.

11. The applicant father in his oral evidence demonstrated an understanding of the issues identified by Dr E and his own time with the child X as follows:

    You were asked questions about the time that you would like to spend with [X] and how it relates to [Mr D].  So what would you seek if [Mr D] was, as he appears to say, it could be every weekend, so that could potentially mean that you won’t be seeing [X].  So you would agree with me, wouldn’t you, that that wouldn’t be satisfactory, would it?  

    I – I’m okay with that.  I’m – I’m fine for [X] to spend that time with her dad.  I just hope that if there’s some events that she could spend time with me and her sisters, be it later on in date, like milestones or something.  It’s…      

    HIS HONOUR:   Well, you can take it that you will be entitled to attend schooling events relating to [X] and sporting activities, because I suppose they would be related to the other girls, in any event.  So outside the ambit of the time with orders that define your time, there’s a general order allowing you to attend on other occasions, I think you could reasonably expect that will extend to [X], because otherwise she will feel a bit left out, I think?  

    Yes.

12. The applicant father rejected any suggestion that he would treat X differently to the other children.

Non Parents

1. Section 65C of the Family Law Act 1975 (Cth) (“the Act”) provides that persons other than parents, including grandparents and any other person concerned with the care, welfare and development of the child, can apply for parenting orders.

2. It is clear, having regard to the circumstances of the child both historical and at present as referred to above, that the applicant father is concerned with the care, welfare and development of the child.  The child X’s welfare is inextricably mixed with the welfare of her half siblings, who will be spending significant time with the applicant father.

3. This matter, however, involves a non-parent. The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394, which said that the settled legislative pathway followed to determine the best interests of a child is not the prescribed pathway in respect of determining best interests in proceedings between a parent and non-parent. The Full Court accepted, however, that it may be necessary to address some of those legal principles in determining the outcome.

4. Consideration of non-parents in respect of the best interests considerations can be facilitated by reference to s 60CC(3)(m). The Full Court in a number of recent cases has made it clear that the additional consideration s 60CC(3)(m), allowing the Court to consider “any other fact or circumstances that the Court thinks relevant”, acts as a catch all provision. It is, therefore, appropriate to apply the relevant considerations in respect of the applicant Mr Lipovic by way of application of s 60CC(3)(m).

5. It is settled law that there is no presumption or preferential position that applies as between a parent and a non-parent. As the Full Court said in Valentine & Lacerra and Anor [2013] FamCAFC 53 at [43]:

   … there are no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). …

1. The Full Court in Yamada & Cain [2013] FamCAFC 64 said:

   19.… It is axiomatic that the fact of parenthood is centrally important to a decision about the best interests of a child. Unsurprisingly, the Act makes that clear by outlining the powers, duties and responsibilities of parents. Some of Part VII’s provisions do not apply to non-parents. …

   …

   21.It has also been said that the provisions of Part VII, and s 60CC in particular, do not give a clear “indication of the weight to be attached to the child’s relationship with a person other than his or her parent compared with the child’s relationship with the natural parent …” (Mulvaney & Lane (2009) FLC 93-404 per Finn J at [15]). As also noted in Donnell (at [120]) it has been suggested that “in proceedings between a parent and a non-parent all of the relevant provisions of the Act referring specifically to parents ‘fall away’” (original emphasis). …

   …

   25. In Donnell, the Court went on to say …

   However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight. (original emphasis)

   We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” …

2. As the Full Court said in Aldridge & Keaton (supra), an additional consideration may, in a particular case, outweigh a primary consideration, and at [75] said “all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant”.

3. Finally, the Full Court in Yamada & Cain (supra) said at [27]:

   The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders. (original emphasis)

4. Such is clearly the case in this matter relating to the child X.

Parenting

1. The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode [2006] FamCA 1346. The High Court in MRR v GR [2010] HCA 4 affirmed those principles.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (s 60CC(2)) and additional (s 60CC(3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. Whilst s 61DA of the Act provides that when making a parenting order, 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, there is no such issue for determination in the context of this matter.

The Primary Considerations: s 60CC(2)

1. The 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.

The Additional Considerations

1. Section 60CC(3) sets out the additional considerations. Regard has been had to all insofar as they are relevant in the circumstances of this matter.

Discussion

1. In considering the factual background and the preceding discussion it is clearly, as so adamantly opined by Dr E, in the best interests of the child X to maintain with her sisters a relationship with the applicant Mr Lipovic.

2. Such a relationship must, of course, in an appropriate way give way in circumstances where X’s father Mr D is reasonably available to spend time with her, but such time should not be to the exclusion of X being able to spend time with Mr Lipovic with her sisters.

3. The psychological difficulties that could flow to X by being excluded from time with Mr Lipovic in circumstances where her sisters are spending as contemplated by the consent orders substantial and significant time with him is clear from the evidence of Dr E set out above.  In most respects this risk to the child X arising from being “excluded” is the significant determining factor in the context of this discrete issue.

4. It is in the best interests of the child that she be able to spend time, in the company of her sisters, the time prescribed for them to spend with Mr Lipovic, either as defined by orders made 31 October 2018 or as otherwise agreed between the mother and Mr Lipovic.

5. Such time for the child X to spend with Mr Lipovic should reasonably give way in circumstances where on reasonable notice X is to spend time with her biological father but not to such an extent that it excludes X completely from spending time in the company of her sisters with Mr Lipovic.

6. In the best interests of the child X, orders are made as set out at the forefront of these reasons for judgment.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 1 February 2019.

Associate: 

Date:  1 February 2019