MARCOM & HACKWORTH

[2020] FCCA 3182

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARCOM & HACKWORTH [2020] FCCA 3182

Catchwords:
FAMILY LAW – Interim parenting arrangements for child aged two – question of whether the child’s time with the father should extend to overnight time in the context of a poor and mistrustful co-parenting relationship – child with special needs – dispute as to which parent was the primary carer of the child prior to separation – both parties seeking that the child be placed predominately in their care – both parties allege the child is at significant risk while in the other party’s care – nature of interim hearing – assessment of risk – best interests of the child.

Legislation:

Family Law Act 1975 (Cth), ss.4, 60CC, 67Z, 68LA

Cases cited:

Deiter & Deiter [2011] FamCAFC 82

Slater & Light [2013] FamCAFC 4

Applicant: MR MARCOM

Respondent: MS HACKWORTH

File Number: ADC 5392 of 2019

Judgment of: Judge Brown

Hearing date: 21 July 2020

Date of Last Submission: 21 July 2020

Delivered at: Adelaide

Delivered on: 29 July 2020

REPRESENTATION

Counsel for the Applicant: Ms James

Solicitors for the Applicant: Johnston Withers

Counsel for the Respondent: Mr Robinson

Solicitors for the Respondent: Gallagher & Co

Counsel for the Independent Children’s Lawyer: Ms Horvat

The Independent Children’s Lawyer: Legal Services Commission of South Australia

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1. The child X born in 2017 live with the mother.

2. The child spend time with the father as follows:

   (a)Each week from 10.00am Monday until 4.00pm Tuesday commencing 3 August 2020; and

   (b)Each week from 10.00am Friday until 4.00pm Saturday commencing Friday, 31 July 2020.

3. The mother and father keep each other advised in writing of their current residential addresses and contact telephone numbers to be used for emergency contact numbers and for any telephone communications between the child and the other parent.

4. The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence or hearing of the child or from permitting any other person to do so.

5. The parties utilise a communication book, electronic app or other electronic format to exchange information in writing regarding the child’s education, dietary, medical, extracurricular, behavioural needs, and any appointments the child has with professional people as they are scheduled to occur, with such information to include the child’s mealtimes, nap sleep routines, what the child has eaten and any medication prescribed for him.

6. The parties are authorised by this order to consult with such medical and allied health practitioners and should they deem it necessary to arrange an appointment with such experts to discuss the child’s medical, psychological, and behavioural needs at their own expense.

7. Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator 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 on or before 30 November 2020.

8. The family assessment to deal with the following matters:

   (a)to include interviews with the parties, the child and relevant family members;

   (b)observed interaction between the child and the parties;

   (c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

   (d)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975;

   (e)any other matters that the family assessor considers important to the welfare or best interests of the said child.

9. The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co-ordinator, Federal Circuit Court of Australia.

10. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

11. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference

    NOTING:

    A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

    B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

12. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

13. Pursuant to section 69ZW of the Family Law Act 1975, the Department for Child Protection (Families SA) are ordered to provide to the court as soon as possible the following documents:

    (a)any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;

    (b)any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;

    (c)any reports commissioned by the agency in the course of investigating a notification.

14. Further consideration of the matter is adjourned to 11 December 2020 at 9.30am for directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 5392 of 2019

MR MARCOM

Applicant

And

MS HACKWORTH

Respondent

REASONS FOR JUDGMENT

Preamble

1. These reasons for judgment were delivered orally.  Given the length of the reasons, it is appropriate that the reasons be transcribed.  This is the relevant transcript.  Grammatical errors have been corrected and efforts made to make the oral reasons amenable to being read.

Introduction

1. This a case concerned with the potential risk arising to a child and its assessment in the context of a truncated interim hearing.  The child concerned is of tender years.  He is X, born in 2017.  The parties to the proceedings are X’s parents: his mother Ms Hackworth and his father Mr Marcom. 

2. The father’s position is that the mother has subjected X to neglect.  He alleges the child has suffered a number of significant injuries in his mother’s care and is at risk of suffering serious harm if he (X) remains in his mother’s predominant care. 

3. The mother’s position is that the father has exaggerated the health problems suffered by X and has misconstrued the child’s medical records.  By necessary implication, she submits that the father has some form of ulterior agenda, which is not necessarily child-focussed.

4. It is also her position that the accommodation proposed by the father for X, if there should be a change in his living arrangements, is unsuitable and dangerous because the home concerned, which is one owned by the paternal grandmother, is also utilised by her to breed dogs and this is potentially dangerous for X. 

5. The mother also contends that there are question marks surrounding the father’s medical condition and whether he is physically capable of parenting X safely.  The case is a complex one with potentially a long way to run. 

6. In the context of this interim hearing, I am not in a position to definitively resolve all the factual issues which have been raised to this stage.  In brief, each party asserts that the other is likely to be a compromised parent, who represents some form of risk for X. 

7. Because of these complicated issues, at an earlier stage of proceedings, an independent children’s lawyer has been appointed for the children.  He is Mr Kent, an experienced Adelaide family lawyer employed by the Legal Services Commission.  Mr Kent has instructed a barrister, Ms Horvat, to appear on his behalf in these proceedings. 

8. Pursuant to the provisions of section 68LA of the Family Law Act, both Mr Kent and Ms Horvat are required to examine all the evidence available and then formulate a position in respect of that evidence, which they believe will best reflect the interests of X, and then advocate that position to the Court. 

9. At this stage, there is significant risk alleged on both sides.  Ms Horvat recognises that risk.  It is her position that the Court needs to balance the risk in some way and that the best form of that balance, at the present time, is that X continues to remain living with his mother and spends two weekly periods of overnight time with his father. 

10. The mother opposes overnight time but is open to the child spending daylight periods with his father.  For his part, the father seeks that X live predominantly with him and spend two weekly periods of overnight time with his mother, it being his position that this was earlier agreed between the parties.

Background

1. By way of background, the father commenced these proceedings on 11 December 2019.  He is a disability support pensioner aged 32.  In his affidavit filed with his initiating application, he has deposed that he was diagnosed, when he was aged two, with a condition that affects the fluid in the front part of his brain. 

2. It is his position that this affects only his short-term memory but has, I think, no other implications for his ability to provide care for X.  I have not been provided with any other evidence in respect of this issue, which the mother asserts poses a significant problem for X.

3. The mother is aged 30.  She too receives a disability support pension as a consequence of being diagnosed with Asperger’s Syndrome and issues related to her mental health.  Ms Hackworth has not provided any details in respect of her condition and its implication for her capacity as a parent.  Necessarily, it is the father’s position that she is a significantly compromised parent as a consequence of her various conditions. 

4. The parties began to live together in Town B in 2017 at the paternal grandmother’s home.  They separated on 7 November 2019, when X was aged around two.  The parties vehemently disagree about who provided the majority of care for X prior to their separation, with each asserting that he or she has fulfilled the major aspects of this role.

5. At separation, the mother left the paternal grandmother’s home with X.  The father alleges that she would not let him see X easily, which led to the institution of these proceedings.  The paternal grandmother has also filed an affidavit in these proceedings.  Her name is Ms C. 

6. It is her evidence that when X was a newborn it was she who helped the parties provide care for X and instructed each of them, who had not previously been parents, in how to care for an infant.  It is her case that she has a strong loving bond with X. 

7. It is also her case or the grandmother’s evidence, I should say, that the mother has been diagnosed with depression since August of 2019 and Ms C asserts that she has attended on medical practitioners, particularly a doctor, Dr D, with the mother, from time to time, in respect of the mother’s mental health.

8. Pursuant to the provisions of section 67Z of the Family Law Act, each party is required to file a notice setting out any details in respect of allegations of neglect or abuse of a child.  The father has filed such a notice in support of his application. 

9. He asserts that the mother has smacked X when he wet his nappy and was rough in handling him during nappy changes.  He also asserts that it was he and Ms C who provided substantial care for X prior to separation on 7 November 2019. 

10. The mother has filed her own notice of risk in which she asserts that the father has screamed at X, has ignored X, that where the father lives, which is Ms C’s home, is covered with dog faeces and Ms C’s dogs are “vicious”, to the point where she was bitten on the face and required stitches, and was left scarred.  Ms Hackworth also asserts that Ms C has been overbearing and bullying to her. 

11. The case first came into court on 11 February 2020.  At that stage, it was agreed that X should continue to live with his mother and should spend time with his father on each Monday and Saturday between 9.00am and 4.00pm. 

12. Significantly at that stage, it was also ordered that the parties should attend at a family dispute resolution conference on 4 June and, more recently again, should attend a family dispute resolution conference with a court counsellor. 

13. The mother filed an affidavit responding to some of the issues raised by the father and the paternal grandmother.  Her general practitioner indicated that she was receiving a number of medications.  The next significant thing occurred in April of 2020.  Mr Marcom filed an application in a case. 

14. He wanted his application listed urgently and wished the Court to make an injunction restraining Ms Hackworth from taking X away from Town B.  His application was listed on 5 May.  The mother responded to the application on 28 July.

15. She indicated that she had wanted to move to Town E to be closer to her mother for support.  Her mother had apparently obtained accommodation and some work in the Town E area.  Her doctor, Dr F, indicated that this was a good idea because Ms Hackworth would benefit from being closer to her mother. 

16. The child dispute conference, which had been earlier ordered, was scheduled to take place on 25 May.  By this stage, Ms Hackworth had abandoned her plans to move to Town E.  In interview with the family consultant, Ms G, the father had a long list of concerns about Ms Hackworth.  These included that she was hostile at handovers and that X himself had infections, bites and scratches. 

17. He also asserted that X’s shoes did not fit him; that X had too many chest infections; and smelt of urine and tobacco.  It was also his perception that X did not seem to be progressing normally and had stopped talking.  The mother, with Ms G, also raised concerns about handovers. 

18. She said that the handover, which was then taking place at a police station, was very tense and that the father searched X.  In regards to the communication book, it was the mother’s position that she utilised it but Mr Marcom did not.  The impression being that from Ms Hackworth’s point of view, he was utilising the communication book as a means of exerting control over her. 

19. At this stage, Ms Hackworth indicated that she had moved to live at her uncle’s home which was some seven kilometres out of Town B.  She denied that she smoked indoors with X, although she conceded that her uncle did smoke but he was in the process of giving up.  At this stage, the mother impressed Ms G as being supportive of Mr Marcom having a gradual increase in his involvement with X. 

20. Perhaps unsurprisingly, Ms G characterised the co-parenting relationship between the parties as being poor with neither being capable of modelling respectful and considerate behaviour to the other.  She had some reservations about how the communication book was being utilised. 

21. Significantly, X himself has been assessed by the NDIS as being a child with some special needs.  He has speech delays and developmental anomalies.  It is likely that he will require a lot of professional support, of one form or another, as he grows older. 

22. Ms G noted that the parties were able to reach an agreement at this stage on 25 May.  It was agreed that Mr Marcom would begin to spend some overnight time with X from 29 May 2020 from 10.00am on that Friday to the following Saturday at 4.00pm and then again on Monday, 1 June to 4.00pm the following Tuesday.  X apparently attends childcare on Wednesdays. 

23. The parties also agreed that they would try to do better in respect of the communication book, noting meal times, naps and sleep times with the father to write what and when X had eaten and when X had had his nap. 

24. Both parties were also committed to trying to share information about X’s health without accusation or judgment, with information about GPs, NDIS visits and treatment, including medicines, to be clear and guided by the relevant GP.

25. The mother indicated that she would prepare an overnight bag for X in which the communication book could be transported between the households.  Ms G, in her advice to the Court, supported what had been agreed, as I have outlined it above.  She noted that the parties’ use of the communication book needed to improve. 

26. In her view, such a book was not to be utilised as a mechanism to interrogate or criticise the other parent.  Ms G, I think, in her report also tried to focus the parties on what X needed.  Clearly, what X needs is consistency across each of his households, so that he transitions easily between the two. 

27. In this context, Ms G noted that Ms Hackworth indicated that when X returned to her care, her perception was that he was quite manic or turbocharged, and that that might be indicative of a lack of consistency between the households and, if there was more consistency, the child might return in a more rested and less manic fashion.

28. The parties also agreed to have a further child dispute conference in July 2020.  That has not happened because other events have occurred.  It is the mother’s position that X did not adjust to the two overnight periods which Ms G had formalised. 

29. She deposes that she did think it was appropriate for X to be spending overnights with his father because although she conceded that Mr Marcom loves X and X loves his dad, she thought that he (X) just did not cope with the extra time. 

30. In an affidavit, which she filed on 11 June, she noted that X has started occupational therapy, speech therapy and attending upon a dietician.  Clearly, as time unfolds, there are going to be a lot of appointments, which X will have to attend, and these will have to be coordinated between his two parents.

31. Ms Hackworth denied that there was anything untoward about X’s rash, his mosquito bites or his scratching.  Rather, it was her position that the father was hypercritical of everything she did and was inclined to exaggerate issues. 

32. She denied that the pillow she sent with X, as a comforter, smelt.  She denied that he smelt of cigarette smoke.  She was also concerned that the father wanted unduly to involve the police in every handover.

33. Following Ms G’s report and the cessation of overnight time, Mr Marcom filed a further application in a case.  He did that on 15 June and it was handed up, I think, on a date that had previously been listed for mention.  In the affidavit in support, he detailed what he said were the problems in the mother’s household.

34. They included that X was presented in unclean or unhygienic clothing; smelt of cigarette smoke; that his comforter pillow was filthy; that his diet was nutritionally deficient; that the child’s language had regressed; that his eating had regressed; that he had continual rashes and had done so since late February; and that he had suffered from conjunctivitis. 

35. In addition, he pointed to the fact that the mother had moved house on five occasions since separation and although he had opposed the move to Town E, he nonetheless recognised that Ms Hackworth did require the support of her mother to be able to parent X appropriately. 

1. In this context, he deposed in his affidavit that, as a consequence of the mother’s Asperger’s Syndrome, she was unable to pick on social and behavioural cues and as a consequence, was not attuned to and responsive to X’s emotional needs. 

2. In all these circumstances, it is his position that there are grave problems, in respect of the mother’s care of X, which include the fact that where she is living, on her uncle’s farm, is unsuitable for X, given his tender years and its remoteness.

3. Ms C also filed an affidavit in which she denied that her dogs are dangerous or provide any degree of threat to a young child.  She was supported by a canine behavioural specialist, who has apparently interacted with Ms C and her dogs and indicated that he had never noted any signs of aggression or inappropriate behaviour on the part of the canines concerned.

4. It was against that extremely difficult background that the order was made for X to be independently represented and the proceedings were adjourned for interim hearing on 21 July. 

5. Clearly, there is a very significant level of conflict between the parties concerned; serious allegation of neglect; and the case concerns a child with special needs.  In my view, these were all factors warranting independent representation.

6. These reasons follow that interim hearing on 21 July.  I was not in a position to deliver judgment on 21 July because I wanted to re-read all the affidavits which had been filed in the matter, of which there are many. 

7. Unfortunately, due to the pressure of work and the fact that it is going to take me approximately an hour and a half to deliver these reasons, I have not had an opportunity to deliver them until today, although I prepared them last week, which is a matter I regret.

8. Since the filing of the father’s application there has been another significant incident which, from Mr Marcom’s perspective, has further intensified his concerns about the mother’s care of X.  X has suffered a broken arm, which required treatment at a hospital. 

9. The mother deposes that X went down for an afternoon nap on 5 July 2020.  She had taken down the sides of his cot and converted it to a bed.  She has a monitor set up.  She heard a bump after she had left the room and went back into X’s room and she saw that he was crying and upset and that something was wrong with his elbow.  She rang her Aunty Ms H and the child was taken to hospital. 

10. She rang Mr Marcom and told him what had happened, which was that X had fallen out of bed and had had an accident.  The child was X-rayed.  A fracture was confirmed.  The child was operated on and was released the following Monday. 

11. It is the mother’s case that no one on the medical staff at the hospital was concerned and she regards it as an unfortunate accident.  In addition, she says that the various things, about which the father complains, are either exaggerated or referable to the ordinary exigences of childhood. 

12. From the father’s perspective, these various misfortunes can only be regarded as being cumulative in nature and cannot be ascribed to bad luck or coincidence.  It is his position that the Court needs to do something urgently about the child’s care. 

13. It is also the submission of Mr Marcom’s counsel, Ms James, that there is inferential support for Mr Marcom’s position, in the medical notes produced from Dr D, who has been the mother’s and X’s general practitioner, which indicates clearly that the mother is not coping.

14. For her part, Ms Hackworth relies on a letter from X’s kindy which indicates as follows:

    “Since starting with our centre in January 2020, X’s mother Ms Hackworth, has done all pick up and drop offs.  At these times X appears to have a strong connection to his mother running towards her and initially requiring comfort from educators at drop off until he felt more settled within the centre. 

    Upon drop off X always appears well kept and clean.  X arrives at the centre with appropriate clean clothes and closed toe shoes. 

    X appears to be a happy child and to date we have not had any child protection concerns.”[1]

    [1]  See letter from J Kindergarten Town B annexed to the mother’s affidavit filed 14 July 2020

15. That letter is annexed to Ms Hackworth’s affidavit of 14 July 2020 and, necessarily, it is her position that it is an independent assessment by some person who has some knowledge of the child and it indicates that this is not a case of a child who has been neglected or otherwise mistreated.  Rather, he is reported to be a happy child, who has the right clothes and so on and so forth.

The applicable legal principles

1. Abuse is defined in section 4(d) of the Family Law Act.  It includes serious neglect of a child and it would appear to be the father’s position that the mother is seriously neglecting X.  This, of course, is an interim hearing.  It arises against a background of serious crisis and controversy. 

2. As I indicated earlier, I cannot make findings of fact about the very many issues in dispute between the parties because I have not seen either of the parties in the witness box being cross-examined. 

3. In addition, at this stage, I do not have any expert assessment of either party’s parenting capacity or level of insight into the responsibilities of being a parent.  The parties agree that such a report is essential and I will order that such a report be prepared.

4. Given those factors, I am required to bear in mind that I cannot make findings of fact in respect of issues that are in dispute.  There are many issues in dispute in this case, the most significant of which are who was the child’s primary carer prior to separation and what is the respective parenting capacity of each of the parents, and, indeed, whether either of them have issues relating either to neurological or other deficits that impact upon their ability to parent X. 

5. However, although the procedure at an interim hearing is different to that which occurs at a final hearing, the legal considerations remain the same. I must approach the case from the best interests of X and regard them as the paramount or most important consideration. In that context, I am directed to take into account a long list of matters set out in section 60CC.

6. There are two categories of matters, primary considerations of which there are two: the benefits to the child of having a meaningful relationship with each of the child’s parents, and the need to protect the child from physical or psychological harm as a consequence of being subjected to or exposed to abuse, neglect or family violence.  The law is clear, that I am to give priority to protective concerns. 

7. It is a very difficult matter for me to assess the evidence available in the case, given its diametrically opposing nature.  However, as I noted at the outset, it is fundamentally about assessing risk.  What is the risk arising for X if he remains in his mother’s care?

8. The other side of the coin, of course, is what are the risks for X emotionally if his life and care arrangements are abruptly changed, it being common ground that X has lived predominantly with his mother for the last eight months or so?  It is very difficult because the evidence is so incomplete. 

9. The case itself is marked by significant mistrust.  In cases such as Deiter & Deiter,[2] I am directed by the Full Court in assessing the degree of risk incumbent in any particular parenting scenario to look at the degree of probability that a harmful event will occur in future and what will be its severity to any individual child concerned, and any other person who would be affected by it.  So I have to look to the future and determine what is the risk, what is the likelihood, of it occurring.

   [2]  Deiter & Deiter [2011] FamCAFC 82

Discussion

1. In this case, although it may well prove to be the case that X has had skin rashes and asthma and so on and so forth, the only significant injury he has received is the broken arm, which resulted in medical treatment but did not of itself result in the involvement of Child Protection.  X himself appears to have some special needs, which have impacted on his behaviour presentation. 

2. In addition, one major risk factor in the case would appear to be the very significant mistrust between his parents.  In this context, it is significant that X was recently examined by a paediatrician, Dr K, who reported back to Dr F on 3 July 2020. 

3. The paediatrician noted that there was some disharmony between the two parents and that they have two different views of the child.  The paediatrician noted some speech delay and the fact that NDIS funding is available.  The paediatrician further noted that Ms Hackworth thought there may be some autistic traits.

4. However, significantly, when X was examined he was happy to see his father.  He got excited.  He interacted well with his father.  Although he did not say anything, his general examination was unremarkable.  In this context, Ms Hackworth was encouraged to keep going with the speech therapy.  So in terms of the allegation of neglect, what is the degree of risk? 

5. I am not persuaded that the risk is so great as to be one which must be considered unacceptable for the Court to take, that being the test that was expressed in the case of Slater & Light.[3] In terms of the other section 60CC(2) factors, clearly, X is likely to benefit from having a meaningful level of relationship with each of his parents. I think it is notable that X was very happy to see his father, that being noted by the paediatrician.

   [3]  Slater & Light [2013] FamCAFC 4 at [37]

6. In terms of the child’s relationship with each of his parents, again, it would seem to be, certainly since the parties separated, the case that the mother has provided more of the child’s care and in those circumstances I am concerned at the possible deleterious effects, on X, of there being any significant change in his arrangements. 

7. The matter, no doubt, has a long way to go and the next step, of course, is to have a more thorough investigation.  This will occur through the mechanism of the family report.  In the meantime, the Court must construct the orders which it considers will best serve X’s interests.

8. Ms Horvat, counsel for the independent children’s lawyer, in her submissions, placed significant emphasis on what Dr K had said in the letter of 3 July 2020.  From her perspective, as I have indicated also, she is concerned about the emotional consequences for X of being parented by two parents, who mistrust each other to such a significant degree. 

9. Ms Horvat is in favour of there being overnight time and that being a balance between the various concerns in this case.  I agree with that submission, it also being the position that this is what the parties ostensibly agreed with Ms G.

10. So until further or other order, the child X, born in 2017 live with the mother.  The child spend time with the father as follows: 

    ·Each week from 10.00am Monday until 4.00pm the following Tuesday, commencing 3 August 2020; and

    ·Each week from 10.00am Friday until 4.00pm the following Sunday commencing 31 July 2020. 

11. The mother and father keep each other advised in writing of their current residential addresses and contact telephone numbers, which are to be used for emergency purposes and for any telephone communication between the child and the other parent.

12. The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence or hearing of the child or from permitting any other person to do so.

13. The parties utilise a communication book, electronic app or other electronic format to exchange information in writing in a respectful and polite tone regarding the child’s education, dietary, medical, extracurricular, and behavioural needs, and any appointments the child has with professional people as they are scheduled to occur, with such information to include the child’s meal time, nap/sleep routines, what the child has eaten and any medication prescribed for him.

14. The parties are authorised by this order to consult with such medical and Allied Health practitioners and should they deem it necessary to arrange an appointment with such experts, to discuss the child’s medical, physical and behavioural needs at their own expense.

15. I will order a family report pursuant to section 62G of the Family Law Act. I will make an order pursuant to section 69ZW in respect of the Department for Child Protection.

16. The family report is to be released to the parties on or before 30 November 2020 and I will adjourn the matter for consideration and, if necessary, to fix a trial date, to 11 December 2020 at 9.30 in the morning.

17. This is not a case where the presumption of equal shared parental responsibility is to be applied.  At this interim stage, it is simply not appropriate for it to be applied.  The orders, which I propose, mandate a formal mechanism for information to be exchanged between the parties in respect of both X’s day to day needs and more major development needs.

18. I hope the parties take on board these orders and the need for them to interact with one another in a polite and constructive way, particularly in terms of exchanging information about X’s care.  In addition, in my view, the orders will ensure X maintains a meaningful level of relationship with both his mother and father.

19. For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date: 23 November 2020