LIVINGSTON & JENNINGS

[2017] FCCA 114

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIVINGSTON & JENNINGS [2017] FCCA 114

Catchwords:
FAMILY LAW – Interim parenting – best interests of children.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D

Cases cited:

Goode & Goode (2006) FLC 93-286
Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348
Eaby & Speelman (2015) FLC 93-654
Banks v Banks (2015) FamCAFC 36

Applicant: MR LIVINGSTON

Respondent: MS JENNINGS

File Number: PAC 5325 of 2015

Judgment of: Judge Newbrun

Hearing date: 5 December 2016

Date of Last Submission: 21 December 2016

Delivered at: Parramatta

Delivered on: 30 January 2017

REPRESENTATION

Solicitors for the Applicant: Claremont Legal

Counsel for the Respondent: Mr Kelly

Solicitors for the Respondent: Derham Houston Lawyers

Solicitors for the Independent Children's Lawyer: Sarah Bevan Family Lawyers

ORDERS, PENDING FURTHER ORDER

1. The children spend time with the Father as follows:

   (a)for a period of 3 months, from 10:00am until 2:00pm each alternate Saturday, but not in the presence of his partner Ms T;

   (b)thereafter, and conditional upon the Father having registered and completed an Anger Management Course as recommended by Relationships Australia, from 10:00am until 6:00pm each alternate Saturday and, if the Father so chooses, in the presence of Ms T.

2. The children shall live with the Mother.

3. Changeover shall take place at McDonald’s family restaurant at (omitted), where the parties shall meet at this changeover location at the commencement and conclusion of the Father’s time.

4. Within 14 days from the date of these orders, the parties shall do all things, sign all documents and give all consents in order to have the child X born (omitted) 2015 assessed for any possible autism diagnosis.

5. The parties shall do all things necessary to ensure they both follow any directions made from any of the children’s current medical treating practitioner.

6. That within 14 days from the date of these orders, the Father shall attend upon Relationships Australia (“RA”) (omitted) for the purpose of registering his details for the completion of any relevant Anger Management Program or any other program as recommended by RA.

7. Within 14 days from the date of these orders, that parties shall attend upon Relationships Australia for the purpose of enrolling their details for the completion of the Parenting After Separation course. The parties shall provide a certificate within 7 days from the date of their completion to the Independent Children’s Lawyer.

8. On a without admissions basis, the Father’s partner Ms T shall be excluded from attending changeovers pursuant to order 3 above.

9. Orders 2, 4 and 5 of the interim consent orders of 20 June 2016 are discharged.

10. The parties, should the child X be formally medically diagnosed with autism, shall as soon as possible thereafter register and complete the parent education course through Aspect.

11. Liberty to the parties and the Independent Children’s Lawyer to apply on seven days’ notice in relation to any matter arising in respect to the implementation of the above orders.

IT IS NOTED that publication of this judgment under the pseudonym Livingston & Jennings is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5325 of 2015

MR LIVINGSTON

Applicant

And

MS JENNINGS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This was an interim hearing regarding the children X born (omitted) 2010 and Y born (omitted) 2013 (“the children”).

2. The Father now wishes to spend daytime unsupervised time with the children. Previously, on 20 June 2016, consent interim orders were made between the parties, inter alia, that the children live the Mother; the children spend time with the Father every second Saturday, commencing Saturday 2 July 2016, from 10:00am until 5:00pm, and this time is to be in the presence of the paternal Grandmother, Ms S; without admission, the Father’s current partner Ms T, shall be excluded from spending time with the children.

3. The Father’s proposed interim orders are set out in Exhibit C; they provide, inter alia, the parties to have equal shared parental responsibility for the children; that the children live with the Mother; that the children spend time with the Father for a period of 3 months, from 10:00am until 2:00pm, each Saturday, and that thereafter, and conditional upon the Father completing an Anger Management Program, they spend time with the Father from 10:00am until 6:00pm each Saturday; that within 14 days the parties, do all things, sign all documents and give all consents in order to have the child X assessed for any possible autistic diagnosis; that the parties do all things necessary to ensure they both follow any directions made from any of the children’s current medical treating practitioner; and that without admission, the Father’s partner Ms T shall be excluded from attending changeover.

4. It is noted that in oral submissions, the Father’s solicitor proposed, in the event that the Court did not make the Father’s proposed interim orders for the children to spend unsupervised time with him each Saturday (during the daytime), then he proposed that he spend the same day time with the children (and unsupervised) but on alternate Saturdays.

5. The Mother’s proposed interim orders were stated by Counsel for the Mother to be simply the making of interim orders in exactly the same terms as the consent interim orders of 20 June 2016, with the only amendment to be the changeover location, being a change to McDonald's (omitted).

6. The Independent Children’s Lawyer (“ICL”) provided written submissions; in those submissions the ICL proposed orders, inter alia, that the children live with the Mother; that the children spend limited day-time time with the Father (as per the Father’s proposed orders, Exhibit C); and that Ms T be restrained from being present when the children are spending time with the Father until the Father has completed an anger management course.

7. The Father’s material was the Affidavits of the Father filed 2 November 2015 and 7 December 2016, the Affidavit of Ms T filed 16 November 2016 (Father’s new partner), and the Affidavit of Ms S (paternal Grandmother) filed 16 November 2016.

8. The Mother’s material was set out on page 6 of the Mother’s Case Outline filed 2 December 2016, Exhibit A; Affidavits of the Mother filed 14 June 2016 and 22 November 2016, and Notice of Risk filed 14 June 2016. In addition, the Mother relied upon 3 COPS entries from subpoenaed material from the NSW Police, Sleeve 3, Exhibit D, written submissions of 15 December 2016. The Mother chose not to file any Affidavit in reply to the Affidavit of the Father filed 7 December 2016 (noting the Court had made filing directions for further Affidavits following the interim hearing), instead relying upon her above written submissions.

9. The ICL relied upon the Child Dispute Conference memorandum to the Court dated 1 December 2016, Exhibit B.

10. The court has considered the parties’ submissions, and all the evidence.

Chronology

1. (omitted) 1985: birth of the Mother.

2. (omitted) 1988: birth of Father.

3. (omitted) 2009: parties commenced a de facto relationship.

4. (omitted) 2010: birth of X.

5. 12 May 2011: parties’ separation.

6. August 2011: agreement that Father would travel to (omitted) three times per week to spend time with X.

7. About March 2012: Father and partner Ms T separate after Ms T finds out that she was pregnant with the child A.

8. (omitted) 2013: Ms T gives birth to child, A.

9. (omitted) 2013: birth of Y.

10. 6 December 2013: children spent time with the Father.

11. February 2015: child X commences school.

12. June 2015: children spend time with the Father. After this visit, the Father did not spend time with the children until February 2016. Thereafter, the Father spent time with the children when the paternal Grandmother attended the Mother’s home to spend time with the children.

13. 2 November 2015: Father files Initiating Application, Affidavit and Notice of Risk.

14. 20 June 2016: interim consent parenting orders; the Father begins to spend time with the children supervised by the paternal Grandmother.

15. 25 October 2016: child X assessed by paediatrician, Dr D and diagnosed with social communication difficulties, challenging behaviour, mainly being oppositional and defiant, high average full Scale IQ, and emotional regulation issues. Dr D noted on examination the child X presented as a defiant little boy who was oppositional and needed lots of prompting to cooperate with the tasks. In summary she stated that the child X was a six-year-old boy with emotional regulation issues and rigid routines as well as social communication difficulties, raising the possibility of ASD (autism spectrum disorder). She suggested a formal psychometric testing (ADOS). The Mother told the Family Consultant that the proposed autism assessment will occur in early 2017. She stated that Workers with Brighter Futures had informed her helpfully that there were strategies for behaviour management for the child’s meltdowns.

Agreed or undisputed relevant facts

1. After the separation the Mother moved in with her Mother at (omitted) with the child X. The Father lived with his Mother at (omitted). He would travel to (omitted) once a week to see the children.

2. As at 30 October 2015, the last time the Father had spent time with the children was in about April 2015. The Father did not get to meet the child Y until he was more than six months old. As at 30 October 2015, the Father had not had much contact with this child at all, having only been able to spend time with him on about five or six occasions.

3. The Father presently lives with his new partner Ms T and her 2 children, B and C, and their son A. They live in a three-bedroom home. The Father has accommodation for the children.

4. The Father states that he has flexibility not to work on a Saturday if the children are in his care.

5. The Father states in his recent Affidavit that his new partner has taught him how to use behaviour management charts to be able to manage and protect triggers for behaviours and assess any risks in environment either at home or out of the home. The Father states that he has been able to apply this in a positive way and be a positive person in “our children’s lives”. He states that, “we have now been able to use information we collect from behaviour chart and prevent physical outbursts occurring and minimal anger outbursts and apply positive parenting techniques.”

6. In the Father’s latest Affidavit he states that he resides at (omitted) with his new partner and their children.

7. The paediatrician’s report of 25 October 2016 (Dr D) refers to the child X’s possible ASD and a recommendation is made by the doctor that this child undergoes a formal psychometric testing in this context. It was common ground at the interim hearing that the formal psychometric testing is to take place in respect of the child X early in 2017. The above report was annexed to the Mother’s Affidavit filed 22 November 2016. There is no evidence before the Court as to exactly when the Father first read this report.

8. The Father states that he sent a text message in about late October 2016 to the Mother following the Mother telephoning the paternal Grandmother seeking financial assistance for the child X’s “autism assessment”. The Father states that he was upset that the child X was “already being labelled as autistic before any formal diagnosis was given.” Both parents indicated to the Family Consultant that if the child X was diagnosed with autism they were willing to attend the Parent Education Course through Aspect.

9. The Father states in his last Affidavit that he is happy to accept a diagnosis of autism for X, if it is made.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), 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 [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.”

3. Of this, the Full Court in Eaby & Speelman (2015) FLC 93-654 said at 80, 332:

   [80] 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.

4. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks v Banks (2015) FamCAFC 36, especially at paragraph 46 to 52.

5. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

6. 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.

7. 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).

8. 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).

9. 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.

10. 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.

11. 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.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration.

1. The children have a meaningful relationship with both parents and would benefit from a continuance of those relationships.

2. The Court notes the Affidavit evidence of the paternal Grandmother and recent Affidavit evidence of the Father in which those persons confirm that the Father has a positive and caring relationship with the children.

3. At this interim stage, in the view of the Court, the children’s meaningful relationship with the Father would be maintained and enhanced if they were to spend unsupervised time with the Father for a period of 3 months from 10:00am until 2:00pm, each alternate Saturday, but not in the presence of Ms T, and thereafter, after the Father has registered and completed an Anger Management Course recommended by Relationships Australia, the children spend time with the Father including if the Father so chooses, in the presence of Ms T, from 10:00am until 6:00pm, each alternate Saturday. Inter alia, the children will be able to spend such time with the Father other than in the presence of the paternal Grandmother and, subject to the matters raised above in relation to Ms T in his family home.

4. The children’s meaningful relationship with the Mother should not be detrimentally affected in these circumstances. In this context, the Court has some concern, based on the evidence before the Court relating to historical conflict between the parties, that the Father’s proposal that the children spend time with him each Saturday carries the not insignificant risk of increased conflict between the parties in the presence of the children. Further, noting the children’s routine, since the interim consent orders of 20 June 2016, in spending every second Saturday with the Father from 10:00am until 5:00pm, a change from fortnightly Saturdays to weekly Saturdays may result in the child X, in particular, experiencing emotional and/or behavioural disturbance; in this context the comments of the paediatrician, Dr D are not without relevance noting the Doctor’s comments as to this child’s rigid routines.

5. The court gives significant weight to this meaningful relationship primary consideration.

Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The Mother told the Family Consultant at the Child Dispute Conference that the Father had never been violent towards her or the children. She claimed that there had been family violence between the Father and Ms T and that Ms T had stated in her Affidavit that the Father had kicked a hole in the wall. The Mother stated that she is concerned that the children may be exposed to family violence whilst in the Father’s care.

2. Ms T states in her Affidavit that there was an incident between herself and the Father when police were called. This was in 2012. The parties were arguing. Ms T states that there was no physical violence between herself and the Father. She states that the Father did kick a wall causing a hole. She states that her children were not in her care when this incident occurred. She states that neither herself or the Father is a violent person.

1. The Father admitted to the Family Consultant to kicking a hole in the wall during an argument with Ms T. He stated however that this incident was some time ago and there was no current family violence between them and no risk of harm to the children.

2. The Mother refers, in her Affidavit filed 14 June 2016, to the Father informing her in about 2012 that he had had a physical altercation with Ms T. He informed the Mother that Ms T’s children were “upstairs sleeping” when this incident occurred.

3. The Mother tendered subpoenaed material from NSW Police, Exhibit D, relating to incidents between the Father and Ms T. The relevant entry for 2 February 2012, states that Ms T’s children were not present at the time. There was a verbal argument. At one point the Father was denied entry to the residence. The police attended. The police reported no injury to either party during the argument and there was no damage to property.

4. The relevant entry for 20 March 2012 states that the Father had consumed alcohol and become loud and emotional. Ms T stated there were no assaults or other offences and she held no fears for her safety. The Father was spoken to by the police and provided a similar version of events. The police recorded no offences, threats or fears detected.

5. The relevant entry for 15 July 2012 states that Ms T had approached the Father alleging that he was the reason behind her having a sexually transmitted infection to which the Father denied. An argument ensued relating to the Father’s alleged sexual conduct with other female persons. There was a push and grab incident between the parties. There was a verbal argument. The police attended. Both parties advised the police they didn’t want the police to take any action in relation to the incident and neither party had any fears. Police observed that the parties’ respective versions were conflicting and no further action was required. The police believed both parties were abusive and confrontational towards each other. The Father advised police he would not be returning to the residence due to the relationship coming to a complete end at this time. Ms T stated to police she didn’t wish for any action be taken and was not assaulted during the incident.

6. The Mother’s Counsel submitted to the Court that the above COPS police entries were the highest objective evidence of past conflict between the Father and Ms T.

7. The Court notes the Father’s most recent Affidavit in which the Father states that he has been taught by his new partner how to use behaviour management charts to be able to manage and predict triggers for behaviours and assess any risks in environment either at home or out of the home. Further, the Father states that he and his new partner have been able to use the information they collect from the behaviour management charts to prevent physical outbursts occurring and minimal anger outbursts and apply positive parenting techniques.

8. Further, the Court notes, pursuant to the Father’s interim parenting proposals in Exhibit C, his willingness to complete an Anger Management Course (see proposed Order 3(b) in Exhibit C). It is not without relevance that it is the Father’s own proposed order in Exhibit C, proposed Order 3(b), that seeks to impose a condition upon the proposed Saturday day-time time from 10am to 6pm commencing being that he both register and complete an Anger Management Course.

9. The Court notes the Affidavit of the paternal Grandmother, relating to the positive supervised time spent by the children with the Father since June 2016. She confirms the children’s positive and close relationship with the Father. She refers to the younger child Y having an improved relationship with the Father and that that child now calls the Father “dad”. She refers to the Father’s patience with the children when spending time with them. She states her opinion that the Father does not pose any risk to the children and does not require ongoing supervision.

10. The above subpoenaed police material, and the other evidence relating to the incident between the Father and his new partner is of some antiquity and there is no evidence of such incidents having occurred in the presence of the child X or indeed the children of Ms T.

11. The Court notes that the Mother told the Family Consultant that the Father had never been violent towards her or the children. Further, the Court notes the evidence of the Father and the paternal Grandmother relating to the children’s positive time spent with the Father during their supervised time with him since June 2016.

12. Taking a cautious approach, the Court is of the view that there should be no relevant need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence in spending limited day-time time with the Father, in the presence of Ms T, after the Father has completed an Anger Management Course; in this context, the Court notes that the Father seeks in Exhibit C, proposed Order 3(b), to spend 8 hours from 10:00am to 6:00pm on Saturdays, but only after he has completed the Anger Management Course.

13. Prior to the Father’s completion of the Anger Management Course in the view of the Court, there is no relevant need to protect issue pertaining to the children spending limited day-time time with the Father, but not in the presence of Ms T. In this context, the Court notes that the Father seeks in Exhibit C, proposed Order 3(a), to spend 4 hours from 10:00am to 2:00pm on Saturdays, albeit without any restriction pertaining to Ms T.

14. The Mother submits that the Father gives no evidence as to how he would propose coping in a house with two children with disabilities. In this context it is noted that the Father’s evidence is that he lives with Ms T and her two children, B and C, and their son A. He states that the child B, aged 10 years has been diagnosed with ADHD, mild intellectual disability (low working memory) and ODD which he and Ms T “manage without medication”. It is noted that Dr D’s report of 25 October 2016 states that the child X’s diagnoses is social communication difficulties, challenging behaviour, high average full scale IQ, and emotional regulation issues. The doctor refers to the possibility of ASD (autism spectrum disorder). In this context, the Court refers in particular to the evidence of the Father and the paternal Grandmother that the Father’s time with the children has been positive, uneventful, the Father’s close relationship with the child X, the fact that the Father has been observed being patient with the children, and again, the evidence of the Father that he and his partner, Ms T manage the child B without medication. Based on this evidence, the Court is not persuaded that there is a significant risk that the Father will not adequately cope parenting the child X when spending day-time time with the Father in the presence of the child B; the Court is not satisfied that there is a relevant need to protect risk arising in this context pertaining to the child X in particular, but also including the child Y.

15. The Court gives significant weight to this need to protect primary consideration.

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The children are too young to express their views.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The Court refers to the ‘meaningful relationship’ primary consideration discussed above.

2. Both parties reported that the children have a positive relationship with the paternal Grandmother.

3. The Father states in his recent Affidavit that the children when speaking to the Father over the telephone, ask to speak to the Father’s other child A.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. Each parent asserts that they have taken such opportunities, although there is a dispute between the parties as to the extent to which the Father has been late in arriving to collect the children in accordance with the Court’s Orders of 20 June 2016; the Father concedes that he has been late on two to three occasions depending on traffic, and he has arrived within 10 to 15 minutes before or after 10:00am, whereas the Mother asserts that the Father usually arrives after 10:00am to pick up the children and on at least one occasion did not arrive until 11:30am.

2. The Father asserts that the Mother has not involved him in the children’s major life events.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. The Father asserts that he pays Child Support for the children and has, when financially able, made further payments to the Mother. The Mother asserts that the Father historically has been unwilling to pay the children’s expenses beyond Child Support payments.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The Court refers to its discussion above under the ‘meaningful relationship’ primary consideration.

(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

1. The Mother resides at (omitted) on the (omitted). The Father resides in (omitted). There is no persuasive evidence before the Court at this interim hearing that the children cannot cope with being driven by the Father to and from his residence at (omitted) to the changeover point, whether at (omitted) or (omitted).

3(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

1. There is evidence that at one stage the Father did not accept the child X’s possible diagnosis of autism. The Father’s recent evidence indicates that he is happy to accept any diagnosis that might be made of autism in the child X and he stated that he had been previously upset that the child was already being labelled as autistic before any formal diagnosis was given.

2. The Court refers to the evidence of the Father and paternal Grandmother as to the positive time spent by the Father with the children post June 2016 to date.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The Court refers to the ‘need to protect’ primary consideration discussed above.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);  and (ii)  the likely impact any proposed parenting order under this Part will have on that right.

1. Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. Subject to the Court’s consideration above as to s60CC considerations, each party has demonstrated appropriate attitudes and responsibilities in relation to the children.

(j) Any family violence involving the child or a member of the child's family.

1. The Court refers to the ‘need to protect’ primary consideration discussed above.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.

1. Not applicable.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. These are interim proceedings.

m) Any other fact or circumstance that the court thinks is relevant.

1. The Family Consultant was told that the Mother and the Father’s partner Ms T are unable to come into contact without significant tension, due to the Mother and Ms T finding it difficult that they were both pregnant to the Father at the same time. In this context, the Father’s proposed interim order, Exhibit C, that without admission, Ms T be excluded from attending changeovers in relation to the children is sensible and child focused.

2. The Mother reported that she is able to communicate in a positive manner with the paternal Grandmother, who chooses to remain neutral in the parental dispute.

3. The Father seeks a changeover at the McDonald’s restaurant at (omitted), whilst the Mother seeks a changeover at the McDonald’s restaurant at (omitted). The Mother submits that the latter place is less busy and by inference she submits that such a changeover place would be more conducive to the children’s emotional well-being at changeover. There is some force to this submission.

4. The Father seeks to have telephone contact with the children from 4:30pm to 5:30pm each Monday, Wednesday and Friday of each week. This represents an increase of the Father’s present telephone communication with the children, each Monday between 4:00pm and 5:00pm, being the subject of the interim consent orders of 20 June 2016. At this interim stage, the Court has some concern that the Father’s proposed order in this context may lead to possible conflict between the parties, noting their concessions to the Family Consultant that serious communication difficulties exist between them. It is noted that the Mother proposes that the existing interim order relating to telecommunications remain in existence.

5. The Court notes that both parties told the Family Consultant at the Child Dispute Conference that they would be willing to attend a Parent Education Course through Aspect relating to any future diagnosis of autism for X.

Equal Shared Parental Responsibility: subsections 61DA(1) and (2)

1. The Father seeks an interim order that the parties have equal shared parental responsibility for the children.

2. The Mother proposes no order for parental responsibility. In particular, the Mother submits that there is the potential for conflict between the parties because historically the Father has doubted the child’s possible autism diagnosis.

3. The parties reported to the Family Consultant that their capacity to communicate and cooperate deteriorated when the Father commenced a relationship with Ms T. Both parents reported that there is significant tension between them because of the dynamics of the situation described to the Family Consultant, including the parties conceiving the child Y at a time shortly after the Father had briefly separated from Ms T.

4. The Mother submits that in light of the Father’s attitude towards the child’s possible autism diagnosis, there is a potential for conflict between the parties. In the Father’s latest Affidavit, he states that he is happy to accept a diagnosis of autism for the child X. He states that he is willing to take all steps necessary to provide support for the children whilst in his care.

5. The Father states that the Mother tends to communicate with him through the paternal Grandmother.

6. At this interim stage, noting in particular the parties’ reports to the Family Consultant relating to their reduced capacity to communicate and cooperate with each other following the commencement of the Father’s relationship with Ms T, it is not satisfied that it is in the best interests of the children to make an express order for equal shared parental responsibility.

Summary

1. Evaluating the above primary and additional considerations under section 60CC of the Act, the Court is of the view at this interim stage that it will be in the best interests of the children to make interim orders as follows:

   (1)The children spend time with the Father as follows:

   a.for a period of 3 months, from 10:00am until 2:00pm each alternate Saturday, but not in the presence of his partner Ms T,

   b.thereafter, and conditional upon the Father having registered and completed an Anger Management Course as recommended by Relationships Australia, from 10:00am until 6:00pm each alternate Saturday, and, if the Father so chooses, in the presence of Ms T.

   (2)The children shall live with the Mother.

   (3)Changeover shall take place at McDonald’s family restaurant at (omitted), where the parties shall meet at this changeover location at the commencement and conclusion of the Father’s time.

   (4)Within 14 days from the date of these orders, the parties shall do all things, sign all documents and give all consents in order to have the child X born (omitted) 2015 assessed for any possible autism diagnosis.

   (5)The parties shall do all things necessary to ensure they both follow any directions made from any of the children’s current medical treating practitioner.

   (6)That within 14 days from the date of these orders, the Father shall attend upon Relationships Australia (“RA”) Penrith for the purpose of registering his details for the completion of any relevant Anger Management Program or any other program as recommended by RA.

   (7)Within 14 days from the date of these orders, that parties shall attend upon Relationships Australia for the purpose of enrolling their details for the completion of the Parenting After Separation course. The parties shall provide a certificate within 7 days from the date of their completion to the Independent Children’s Lawyer.

   (8)On a without admissions basis, the Father’s partner Ms T shall be excluded from attending changeovers pursuant to order 3 above.

   (9)Orders 2, 4 and 5 of the interim consent orders of 20 June 2016 are discharged.

   (10)The parties, should the child X be formally diagnosed with autism, shall as soon as possible thereafter register and complete the parent education course through Aspect.

I certify that the preceding ninety six (96) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:  30 January 2017