MAYNE & WILKES
[2016] FCCA 2845
•30 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAYNE & WILKES | [2016] FCCA 2845 |
| Catchwords: FAMILY LAW – Interim parenting – 4 year old child – parents never cohabited – parents live in different States – child’s best interest – child to live with mother and spend alternate weekends with father. |
| Legislation: Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61C, 61DA, 65DAA Federal Circuit Court Rules2001, Rule 8.01 |
| Cases cited: Slater & Light [2011] FamCAFC 1at [45] SS v AH [2010] FamCAFC 13 |
| Applicant: | MR MAYNE |
| Respondent: | MS WILKES |
| File Number: | PAC 3822 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 3 November 2016 |
| Date of Last Submission: | 3 November 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 30 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Shaw |
| Appearing for the Respondent: | Mr Jamieson |
| Solicitors for the Respondent: | Neil Jamieson & Associates |
PENDING FURTHER ORDER THE COURT ORDERS THAT:
The parents shall have equal shared parental responsibility for the child X born (omitted) 2012.
The child shall live with the mother.
The child shall spend time with the father as follows:
(a)Subject to (b) and (c) below, commencing 3 December 2016 and each alternate Saturday thereafter from 10am to 2pm and commencing 4 December 2016 and each alternate Sunday thereafter from 10am to 2pm, with such time to occur predominantly within a 20 kilometre radius of the mother’s residence in (omitted), Queensland;
(b)Commencing 31 December 2016 and each fourth Saturday thereafter, from 10am on Saturday to 4pm on Sunday with such time to occur predominantly within a 20 kilometre radius of the mother’s residence in (omitted), Queensland; and
(c)Commencing 14 January 2017 and each fourth Saturday thereafter, from 8am on Saturday to 6pm on Sunday with such time to occur predominantly within a 20 kilometre radius of the father’s residence in (omitted), New South Wales.
For the purposes of order 3(a) and (b) above, the father to collect the child at the commencement of the child’s time from the mother’s residence and the father is to deliver the child at the conclusion of the child’s time with the father to the mother’s residence.
For the purposes of order 3(c) above, the father is to collect the child from the mother’s residence at the commencement of the child’s time with the father and the mother is to collect the child from the father’s residence at the conclusion of the child’s time with the father.
For the purposes of order 3(c) above, the father is to pay the full cost of the child’s travel from Queensland to New South Wales (such travel occurring at the commencement of the child’s time with the father), and the mother is to pay the full cost of the child’s travel from New South Wales to Queensland (such travel occurring at the conclusion of the child’s time with the father). Otherwise, each party is to pay his/her own cost of travel as required to accompany the child on his travels for the purposes of each party complying with these orders.
Pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall forthwith and within 7 days contact the intake officer of Relationships Australia, Queensland for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the “Keeping Kids in Mind” program offered by that organisation and subject to the assessment of suitability each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete such program.
The matter is transferred to the Brisbane Registry of the Federal Circuit Court of Australia.
The matter is listed for directions at 9.30am on 17 January 2017 before Judge Baumann.
Leave is granted to the father (and his legal representatives) to appear by telephone before Judge Baumann at 9.30am on 17 January 2017.
IT IS NOTED that publication of this judgment under the pseudonym Mayne & Wilkes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3822 of 2016
| MR MAYNE |
Applicant
And
| MS WILKES |
Respondent
REASONS FOR JUDGMENT
Introduction
These are Reasons for Judgment in respect of an interim parenting application regarding the only child of the parties X born on (omitted) 2012.
The Applicant father relied upon the following documents:
a)Initiating Application filed 17 August 2016;
b)Notice of Risk filed 17 August 2016;
c)Affidavit of Mr J filed 17 August 2016
d)Affidavit of Mr J filed 7 September 2016;
e)Affidavit of Mr J filed 28 September 2016;
f)Affidavit of Mr J filed 21 October 2016;
g)Affidavit of Ms F filed 21 October 2016; and
h)Affidavit of Mr J filed 31 October 2016.
The Respondent mother relied upon the following documents:
a)Response filed 26 October 2016;
b)Notice of Risk filed 26 October 2016;
c)Affidavit of Ms R filed 26 October 2016;
d)Affidavit of Ms R filed 26 October 2016; and
e)Application in a Case filed at 31 October 2016;
The Law
The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. 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.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child.
The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the parents.
It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]
[2] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court in
[3] Ibid at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so, consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[4] The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[4] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]
[5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[6]
[6] s61DA(3)
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests and reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7]
[7] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[8] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application.
[8] (2007) 36 Fam LR 422, (2006) FLC 93-286
As stated by the Full Court in Keats & Keats:[9]
…the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may 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.
[9] [2016] FamCAFC 156 at [9]
Competing proposals
The father seeks orders as follows:
2. The child X (“X”), is to spend time with the father as follows.
3. The child is to spend every alternate weekend commencing at 11am Friday until 4pm Sunday.
4. For the purposes of these Orders, unless otherwise agreed or specified changeover shall occur as follows:
a. The father shall collect the child from Gold Coast Airport at 11am on Friday;
b. The mother shall collect the child from Sydney Airport at 4pm Sunday at the conclusion of his time with the father.
5. The cost of the child’s flights will be shared between the father and the mother. The father shall pay for the child’s flight from the (omitted) to Sydney. The mother shall pay for the child’s flights from Sydney to the (omitted).
6. The child shall communicate with the father as follows:
7. The child is to communicate with the father via a mobile telephone or Skype enabled device each night between 6pm and 7pm;
8. The father is to initiate the call to the mother’s mobile telephone or Skype enabled device. For the purpose of communication the mother shall ensure that during all communication times the mobile telephone or Skype enabled device is in an accessible area, switched on , fully charged, with sufficient credit, telecommunication coverage and made available to the child. The communication is to take place without the child having access to any other electronic devices such a DVD player or television. The mother is to encourage the child to speak with the father.
9. In the event that Father’s Day occurs on an occasion the child is not with the father, the child shall spend time with the father on the Father’s Day weekend and shall forgo the next scheduled contact without thereafter disturbing the alternate weekend contact arrangements.
10. The child is to celebrate his birthday in each year ending in an odd number with the father.
11. For the purposes of the child’s birthday in 2016, the father shall have the child from 5pm (omitted) 2016 to 6pm (omitted) 2016.
12. The child is to celebrate Christmas in each year ending in an even number with the father.
13. The father shall collect the child from Gold Coast Airport at 5pm on Thursday 22 December 2016. The mother shall collect the child from Sydney Airport at 6pm on Thursday 29 December 2016.
14. The child is to celebrate Easter in each year ending in an even number with the father.
15. The child is to attend three appointments with a Court appointed paediatrician in regard to his weight and diet prior to the making of final orders.
16. Each parent shall have such authority as is necessary to obtain information as would normally be available to a parent from any professional, body or organisation that holds information about the children but not limited to doctors, hospitals, schools, and sporting organisations.
17. Each parent shall notify the other parent at the earliest opportunity if the child is required to attend upon a doctor or a hospital for serious medical or dental issues.
18. Each parent shall keep the other advised at all times of their residential address, email address and contact mobile telephone number and shall advise the other parent within 24 hours of any change to either their residential address or mobile telephone number.
19. Each parent shall be restrained from denigrating the other parent or a member of this or her household to or in the presence of the child and from permitting any other person to denigrate the other in the person of or in the hearing of the child.
20. Each parent shall keep the other parent informed of his or her current mobile number or numbers, email address and residential address.
21. Each parent shall advise the other parent of any interstate travel including the details of each address at which the child will stay, whom will be at each residence and the duration of each stay. If the child is away on interstate travel the mobile telephone and Skype contact arrangement remain in place.
22. At any other times agreed to between the mother and father.
The mother seeks orders as follows:
1. That the mother have sole parental responsibility for the child X born (omitted) 2012 (herein after referred to as “the child”).
2. That the child live with the mother.
3. That the father spend time with the child at the following times and in the following circumstances:
a. On the first Friday after the making of these Orders and each alternate Friday thereafter for a period of two hours in Queensland;
b. That the time to be spent by the father pursuant to Order 3(a) above take place at a Contact Centre located in the area of Brisbane and nominated by the mother at such time as can be accommodated by the said Contact Centre but for a period of no longer than two hours on each occasion.
c. That each party do all things necessary to attend any intake required by the Contact Centre nominated and to provide any documents required by the Contact Centre.
d. That the mother deliver the child to the Contact Centre prior to the father’s time and collect the child from the Contact Centre at the end of the father’s time.
4. Pending the Contact Centre nominated by the wife providing a timetable for the Father to spend time with the child, the father may spend time with the child at a private contact centre in Brisbane nominated by the father at the father’s expense for the same time as provided for in Order 3(a) above.
5. The father will notify the mother by email the details of the private contact centre and of the date and times allocated and the mother shall make the child available to the father at the contact centre at the dates and times nominated.
6. The father shall not contact the mother by any means other than email and only for the purpose of the implementation of these Orders.
Uncontested relevant facts
The parties met in (omitted) 2010 at (omitted). At the time the father was living in New South Wales and the mother was living in Queensland.
The parties commenced a sexual relationship shortly thereafter.
The parties have never lived together.
At the time of the commencement of the relationship the mother was employed as an (occupation omitted). The father was aware of this.
In 2011 the mother fell pregnant to the father but that pregnancy was terminated and the parties’ relationship ended.
The parties recommenced seeing each other at the end of 2011/early 2012, although the relationship was on and off.
In early 2012 the mother fell pregnant again. The only child of the parties, the subject child of these proceedings, was born on (omitted) 2012 at the (omitted) Hospital in North Sydney.
Following the child’s birth and until April 2016 both the mother and the father would travel at times between Queensland and New South Wales and the child would spend time with the father as agreed between the parties.
The father lives in New South Wales and the mother lives with the child in Queensland.
The child has not spent any time with the father since 25 April 2016.
Section 60CC(3) Factors
Views of the child
The child is four years old and his views are not known at this interim stage of the proceedings. Even if his views were known they would be given little weight given his young age.
Nature of the children’s relationships with their parents and significant others
There is very little evidence of the child’s relationship with his parents and significant others. The mother gives evidence about the child’s close relationship with the maternal grandmother.
The Court accepts that the mother has been the child’s primary carer since birth and that the child has spent time with the father in accordance with the arrangements reached between the parties from time to time.
The father gives evidence that he has looked after the child, unassisted by the mother, on numerous occasions.
The mother gives very limited evidence about the father’s involvement with the child. She does however say, that when asked by the father whether she speaks to the child about him her response is: “sometimes your name comes up in conversation”. When the father then further said “it’s your responsibility to talk to X about me and to make sure he knows me” the mother replied with “I can’t keep up a relationship you’ve never had by just talking to him”. Such evidence of the mother is concerning in that it shows a lack of positive attitude towards the child’s relationship with the father and a lack of encouragement of that relationship.
Parents’ involvement with decision making, spending time and communicating with the child and maintenance of the child
There is limited evidence about the parents’ involvement in the decision making, spending time with and communicating with the child.
There has been a dispute between the parties about the child’s weight, in particular the father believing that the child is obese and his attempting to restrict the child’s diet in a manner that was not well received by the mother.
What is clear from the evidence is that the parties have a significant dislike of each other and trouble communicating in a respectful manner towards one another.
The father has been paying child support for the child.
These factors are of little weight in the overall assessment of what is in the child’s best interest. They certainly show interest by both parents in wanting to make decisions concerning major long-term issues in relation to the child, more specifically the child’s health and wellbeing and also about what and how much time the chid spends with the father. The fact that they have not been able to agree about these issues is instructive of their co-parenting relationship.
Likely effect of change and practical difficulty of spending time
The parties live a fair distance apart and while they remain living in different States, there will be a significant practical difficulty and expense of the child spending time with the parent with whom he is not living, particularly while he is young and will need to be accompanied during any air travel.
When the parties decided to have this child together, they parties were living in different States and this must have been a matter that was at some stage considered by them, including how it might affect the child’s relationships with his parents.
The orders that the father seeks will see some change in the child’s circumstances, in that he will be either travelling to New South Wales to spend time with the father or spending time away from his mother on weekends if spending time with the father in Queensland.
The orders which the mother seeks are going to be significantly difficult from a practical point of view for the father. Not only does the mother propose very limited time between the child and the father namely two hours each alternate Friday, but she proposes for such time to be supervised at a contact centre and to occur in Queensland.
While there is little specific evidence about the cost of travel which would be involved in either party’s case, the mother submits that she is in a less favourable financial position than the father and that as such, the burden of cost of travel should fall on the father’s shoulders.
The father on the other hand submits that the mother has family in Sydney, that she travels to New South Wales on a regular basis with the child and that there is therefore little practical impediment to the child spending time with him in a similar manner.
These parties have managed prior to April 2016, to negotiate in a practical manner for time between the child and the father. Any practical difficulties associated with the parties living in different States was not inhibitive of the child having the opportunity and indeed spending time with his father. Any difficulty associated with the parties living in different States was not such that it detrimentally affected the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
There is no evidence that the orders which the Court proposes to make in this instance are impracticable or would cause undue financial strain on either party.
Capacity to provide for child’s needs and the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
On the face of it both parents are able to meet the child’s basic physical and emotional needs.
The mother lives in suitable accommodation in Queensland where the child has been living since his birth.
The father lives in suitable accommodation in New South Wales, where from time to time the child has spent time with the father.
What is of concern to the Court is the attitude to the responsibilities of parenthood by each of the child’s parents. There is a significant level of acrimony between the parents which has resulted in a very strained co-parenting relationship and a limited ability of the parents to communicate with each other.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents; if the child is an Aboriginal
The father is a lawyer practising in New South Wales.
The mother is a full-time parent, and currently not in paid employment.
Neither parent raises any issues of lifestyle and background which would be relevant for the Court’s deliberations in respect of interim parenting orders for this child.
The father does raise in his evidence the mother’s previous employment, but the Court is not in any way persuaded that this is a matter which impacts upon the mother’s parenting capacity.
Family Violence
Both parties make allegations of family violence.
Family violence is defined in s4AB of the Act. The definition states:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
There are two elements to the definition. The first is the behaviour alleged and the second is the issue of causation, both of which must be proven to satisfy the definition.
Of assistance are the various examples provided in s4AB(2) of behaviour that may constitute family violence and the various examples provided in s4AB(3) of situations that may constitute a child being exposed to family violence.
The father alleges that the mother assaulted him in January 2014 at (omitted) Shopping Centre, by punching the father in the face while he was holding the child. Both parties had discussions with the Police in relation to the incident. The mother says that on this occasion, the father tried to leave with the child.
The father alleges a further assault by the mother in May 2014, at (omitted) Shopping Centre. He says that the mother punched him in the face twice. The father did not report the assault, and the child remained living with the mother. The father did not take any action as a result of the alleged assault.
The parties both report very unpleasant verbal exchanges between them. These appear to relate mostly to what the father asserts is the child’s obesity and the mother’s unwillingness to restrict the child’s diet in the manner which the father proposes. The arguments also arise as a result of the differing parenting styles of the parties.
The father submits to the Court that there is neglect of the child by the mother by exposing him to an unrestricted diet of food with a high sugar content and not only amounts to merely neglect but is abuse ‘as it appears to be intentional and the child has witnessed family violence which the father has been subjected to by the mother.”
The last time that the child spent time with the father, as noted previously, was in April 2016. On that occasion the father was in Queensland seeing the child.
The mother alleges that on that occasion, the child was clingy and that the father tried to ‘rule the roost’, which the Court understands is an allegation that he was being controlling and thereby engaged in family violence. The mother alleges that the child was frightened of the father, on what basis and for what reasons is not clear on the evidence. On the mother’s evidence, the parties could not agree about how much food the child should be fed on this occasion, namely that the father objected to the child having a second portion of food. The father is said to have picked up the child and carried him away into the bedroom. The child was apparently hysterical. In all of the circumstances the facts as asserted by the mother lead to a conclusion that this was not a pleasant scene for the child to witness, namely his parents having such a disagreement about the his food intake in front of the child, nor for him to be subjected to the argument which then occurred. It appears to the Court that neither parent acted appropriately in the child’s presence and the situation escalated out of control, resulting in the child consequently not spending any time with his father.
The mother alleges family violence against the father by way of bullying and belittling the mother via text messages, such as “you are simply a pair of fake breasts, a vagina and an anus sold as a commercially packaged commodity for sexual consumption”. Clearly such comments are most inappropriate.
Even at their highest, the assertions by each of the parties are not such that the Court considers the child is at an unacceptable risk of harm when with either of his parents.
Furthermore, the catalyst for the parties’ bad behaviour as alleged at times, about which the Court does not make any findings, seems to be their inability to communicate with each other in a respectful manner, and to appreciate that each may have a different point of view about matters of parenting which are not necessarily wrong nor detrimental to the child, but just different.
Institution of further proceedings and other relevant matters
These are only interim orders, and it is likely that if the matter proceeds to final hearing, there will be a time period of at least some six to twelve months before the matter is decided on a final basis.
The length of time that the matter will take to reach readiness for a final hearing is also something which the Court has considered in making these interim orders, particularly in trying to balance the child having a meaningful relationship with both of his parents and the practicalities associated with the child spending time with the parent with whom he is not living.
Primary Considerations
Each of the parents has something to offer to the child. They can each provide him with a loving and secure home. The Court finds that the child will benefit from having a meaningful relationship with both of his parents.
In every parenting matter before this Court the protection of a child from harm is an important matter for consideration. However, this is a matter where the allegations of violence are not central to the issues which the Court needs to determine.
Many of the facts alleged by each of the parents are disputed. Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made by each of the mother and the father. In doing so the Court must weigh up any risk of harm to the child, all the while considering what might be in the child’s best interest. It is the existence and magnitude of the risk of harm that is a fundamental matter to be taken into account in deciding what orders are to be made in respect of where a child is to live, and what time, if any, he is to spend with the other parent.[10]
[10] M & M (1988) 166 CLR 69 at 77
The Court has already considered the allegations of family violence made by each of the parties and based on that consideration does not find that there is an unacceptable risk of harm to the child in either of the parents’ households.
In Summary
The child, as noted at the commencement of these Reasons, is only four years old. He lives with his mother in Queensland and has done so for the whole of his young life.
The father lives in New South Wales, where he has lived since before the child’s birth. The parties were never in a relationship.
Since the child was born, the father has spent time with the child. Some of those periods have been for a few days and nights, depending on the agreement reached between the parties. Whatever the agreement had been, and it seems to have been on an ad hoc basis, there is no more agreement and there hasn’t been any agreement between the parties since April 2016.
It is important to reflect on the principles[11] underlying the objects of Part VII of the Act. They are, except when it is or would be contrary to a child’s best interest, as follows:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
[11] S60B
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
While there has been a number of months since the child has spent time with the father, there is little evidence to seriously suggest that prior to April 2016 he did not have a positive relationship with his father. The mother’s evidence about these matters has to be carefully considered, particularly as it is diametrically opposed to the father’s evidence. It seems that it is the parties’ interaction which creates friction, and if the child and father are to spend time together they should be afforded the opportunity to do so without this friction and in the absence of the mother.
There is no evidence to suggest that the child will not be able to cope with being away from the mother who is his primary carer, for the periods of time which are provided for in these orders. The child has spent overnight time with the father in the past, and there is no evidence to suggest that overnight time in the near future is contraindicated.
It is only due to the fact that the child has not spent time with the father since April 2016, that the Court considers it to be in the child’s best interest for there to be a short period of re-introduction between father and child, and for such time to initially occur in Queensland near the child’s home, where the child is in familiar surroundings.
In respect of overnight time, the Court finds that it is in the child’s best interest for him to spend overnight time with the father each alternate weekend, but not to require the child to travel to New South Wales for the purposes of spending such time for more than once every four weeks. But for the practical difficulty associated with the parents living in different States, the Court would have ordered for the child to spend more frequent time with the father than alternate weekends – such as to give him a better opportunity of knowing his father and the paternal family and spending time with them.
Parental Responsibility
Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[12] Section 61DA provides for a presumption of equal shared parental responsibility that the Court does apply when making a parenting order.
[12] See note 1 s61C
As noted earlier, in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[13]
[13] s61DA(3)
The parents do not have a good working relationship at present. There appears to be very little trust between them.
At this stage of the proceedings the Court is not minded to make an order for sole parental responsibility, despite the difficulties in the parties’ relationship which have been identified. As such, an order for equal shared parental responsibility is made.
The Court hopes that with appropriate intervention the difficulties in the parties’ relationship will improve, hence the Order pursuant to s.13C. The Court is concerned that if an order for sole parental responsibility was made at this early stage in the proceedings it would act as a stimulus for a further break-down in the co-parenting relationship.
It is noted for the benefit of the parties that in making a final parenting order in relation to a child, the Court must disregard the allocation of parental responsibility made in the interim order.[14]
[14] s61DB
Section 65DAA was discussed earlier in these reasons, noting that this section is enlivened due to the order for equal shared parental responsibility. Relevantly, s65DAA states:
(3)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Having regard to the above criteria, neither equal time nor significant and substantial time are supported by the facts in this matter.
Change of Venue
By way of Application in a Case filed 31 October 2016, supported by an Affidavit filed on the same date, the mother seeks for the proceedings to be transferred to the Brisbane Registry of the Federal Circuit Court of Australia. That application is opposed by the father.
Relevantly, the Federal Circuit Court Rules 2001 provide as follows:
Rule: 8.01 Change of venue
(1) A party who files an application or response in a proceeding may apply to have the proceeding heard in another registry of the Court.
(2) In considering an application, the Court must have regard to:
(a) the convenience of the parties; and
(b) the limiting of expense and the cost of the proceeding; and
(c) whether the matter has been listed for final hearing; and
(d) any other relevant matter.
In National Mutual Holdings Pty Ltd v Sentry Corporation[15], the Full Court of the Federal Court when considering an application for transfer of venue held:
… The factors which the Court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearings or for the trial itself are numerous. The Court must weigh those factors in each case. Residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the Court itself are some of the factors that may be relevant in particular circumstances.
The balance of convenience will generally be a relevant consideration, but not necessarily determinative of each case. A party commences a proceeding by filing an application in a particular registry of the Court. If that party or another party wishes to have the proceeding conducted or continued in another place he may apply to the Court for an order ... There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. ... The Court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed? On the one hand, if the party who commenced the proceeding chose that place capriciously the Court would be justified in giving no weight to the choice of place. At the other end of the scale, a proceeding may have continued for some time at the place of commencement with many steps having been taken there, for example, filing of pleadings and affidavits, discovery and inspection. Due weight would be given by the Court to such matters before directing that the proceeding should continue at a different place.
The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely.
[15] (1988) 15 FCR 155 at 162
While the above comments were made in proceedings in the Federal Court of Australia pursuant to s.48 Federal Court Act 1976, they are apposite to the application before this Court.
The father is resident in New South Wales. The mother and the child are resident in Queensland, where the child has lived all of his life, albeit he has been to New South Wales on occasions and spent time with the father in this State. The parties never lived together.
While the Court appreciates that the convenience to the father is to have the matter continue in the Parramatta Registry of the Court (having commenced the proceedings here), this is but one of the facts which the Court is to consider. For the mother the convenience is clearly for the matter to be heard in Queensland.
The mother is reliant on a single parent payment together with child support paid by the father. The father is a (occupation omitted) employed in (employer omitted) in Sydney.
While ultimately, the father seeks orders for the child to live with him, such application may not be dealt with by the Court for some time. In the interim, the Court may consider that it is appropriate to appoint an Independent Children’s Lawyer for the child and make orders for the preparation of a Family Report.
Certainly, my preliminary view is that such orders may be appropriate, but these are matters to be determined in due course. If such orders are to be made, and given that the child resides in Queensland and will continue to reside in Queensland after the delivery of this Judgment on an interim basis,[16] the appointment of an Independent Children’s Lawyer and/or the preparation of a Family Report in New South Wales will have significant practical difficulty for the mother and child, as well as any Independent Children’s Lawyer appointed to represent the child.
[16] Subject to any appeal and outcome thereof
The cost to the parties and potentially the Commonwealth and/or the States, may be less if the matter is to be transferred.
Having considered the relevant matters pursuant to Rule 8.01 the Court is satisfied that bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court, the matter ought to be transferred to the Brisbane Registry of this Court and such an order is therefore made.
In all of the circumstances and for all of the reasons set out above, it is in the child’s best interests for orders to be made as set out at the forefront of these Reasons.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 30 November 2016
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Civil Procedure
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