McPherson and McPherson

[2017] FCCA 254

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCPHERSON & MCPHERSON [2017] FCCA 254

Catchwords:
FAMILY LAW – Parenting – Interim – where dispute over parenting arrangements for child aged three – where the mother has limited the father’s time to supervised time – where the father is seeking additional unsupervised time– held that time with the father be unsupervised.

Legislation:

Crimes Act 1900 (NSW), s.10

Family Law Act 1975, ss.60CA, 60B(1), 60CC

Federal Circuit Court of Australia Act 1999, s.39
Federal Circuit Court Rules 2001, r.8.02(4)(e)

Cases cited:

Goode & Goode (2006) 206 FLR 212

MRR v GR (2010) 240 CLR 461

Applicant: MS MCPHERSON

Respondent: MR MCPHERSON

File Number: SYC 4540 of 2016

Judgment of: Chief Judge Pascoe

Hearing date: 20 December 2016

Date of Last Submission: 20 December 2016

Delivered at: Sydney

Delivered on: 22 February 2017

REPRESENTATION

Counsel for the Applicant: David Dura

Solicitors for the Applicant: Horton Rhodes Legal

Counsel for the Respondent: Paul Sansom SC

Solicitors for the Respondent: Abrams Turner Whelan Family Lawyers

ORDERS

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:

1. The parties shall have equal shared responsibility of their child, X, born (omitted) 2013.

2. X shall live with the Respondent Mother.

3. X will spend unsupervised time with the Applicant Father from 9:00am to 12:00 noon each Wednesday.

4. The time identified in Order (3) shall take place without the presence of Ms L. 

5. For the purposes of facilitating X spending time with the Father, changeover shall take place at the Father’s house or at a location agreed between the parties in writing.

6. The Father is permitted to communicate with X by telephone each Monday between 6:00pm and 6:30pm, with the Father to facilitate the call to the Mother’s mobile telephone.

7. Each party be restrained from denigrating the other party, and/or members of the other party’s family, and/or household in the presence of and/or in the hearing of the child. Further, it is the responsibility of each party to remove X from the presence and/or hearing of any third party who does so.

8. Each party shall supervise the child while the child is in that party’s care, unless an emergency occurs or the child is in day care or school.

9. Each party be restrained from leaving the child unsupervised by a responsible adult.

10. Each party keep the other party informed of their current telephone number. In the case of a party’s telephone number changing, the party whose number has changed is to inform the other party of the change and supply the new telephone number to that party within 48 hours of the change.

11. Each party inform the other party as soon as practicable of:

    (a)Any illness or injury that may be suffered by X whilst she is in their care, respectively; and

    (b)The name and contact details of any medical practitioner or healthcare provider upon whom X may attend from time to time.

12. Each party do all acts and things necessary to authorise any treating medical practitioner of X to discuss his heath and treatment with the other party.

13. Both the Applicant and Respondent have leave to bring the matter back before the Court with three days’ notice.

14. Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders are attached to these Orders.

15. The matter is transferred to the Family Court of Australia at Sydney, pursuant to s.39 of the Federal Circuit Court of Australia Act 1999 (Cth) to be listed before a Registrar for mention on 21 March 2017 at 10:30 am.

Note: With the consent of parties, the matter is transferred to the Family Court of Australia due to complexity and expected length of hearing and in accordance with the protocol between the Courts regarding the transfer of matters.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4540 of 2016

MS MCPHERSON

Applicant

And

MR MCPHERSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are interim parenting proceedings concerning the child, X, aged three, the daughter of the Applicant, Ms McPherson (the Mother), and the Respondent, Mr McPherson (the Father). 

2. The Mother initiated these proceedings on 20 July 2016.  On 8 November 2016, the matter was listed on 13 December 2016 for interim hearing by Her Honour Judge Henderson. The matter was transferred to my docket and was listed for interim hearing on 20 December 2016.

3. The only issue to be determined today relates to parenting, specifically how much time the Father will spend with X. 

4. I note that the Mother’s initiating application was in respect of both property and parenting matters. The Father’s response seeks, inter alia, to alter the parenting status quo which the mother seeks to maintain.  Due to time constraints and the need for each party to have time to present and respond to evidence, I declined to hear any matter relating to property. 

5. Further, the Father’s partner Ms L has filed a Notice of Objection regarding certain subpoenas. Again, there was insufficient time during this interim hearing to canvass this objection and related costs issues.

Background

1. The parties commenced cohabiting in 2010 and were married in 2012. X was born (omitted) 2013. The parties finally separated in July 2014 and divorced 16 December 2016.

2. Since separation, X has lived with the Mother and spent varying periods of time with the Father.  X began spending overnight time with the Father in November 2015, but the Mother reduced that time to several hours a week under supervision in May 2016.  Since then, the Father has seen X only under the supervision of Phoenix Rising, a private family supervision organisation. 

3. On an interim basis, the Father seeks:

   a)That X spend time with the Father from 9am until 7:30pm each Saturday and Wednesday until 7 January 2017

   b)That from 7 January 2017, X spend the following time with the Father:

   i)9am to 7:30pm each Wednesday

   ii)9am Saturday until 12 noon Sunday each alternate weekend

   iii)2:30pm to 7:30pm each alternate Friday. 

   c)That X spend from 2pm on Christmas Eve to 2pm on Christmas Day with the Father.

   d)That X otherwise spend time with the Father as agreed. 

   e)That X’s time with the Father is unsupervised.

4. The Mother contests the Father’s orders and seeks to continue the current regime. 

5. A range of Orders were included in the Mother’s initiating application, including parental responsibility and retention of X’s passport, but were not pressed at hearing. 

Submissions

1. As the Father’s parenting orders sought to depart from the status quo, it was agreed by the parties that the Respondent Father should address the Court first.

2. The Father relied on his affidavit sworn 18 October 2016 and filed 20 October 2016. He also relied on the Facebook and text message print outs, tendered as Exhibit R1; subpoenaed material from the Department of Family and Community Services (“FACS”) concerning FACS’s involvement with the Father, his partner Ms L and their children, tendered as Exhibit R3; and the supervised contact reports from Phoenix Rising, tendered as Exhibit R4.

3. The mother relied on her affidavit sworn 19 July 2016 and filed 20 July 2016, and her affidavit filed and sworn 8 November 2016. She further relied on her subpoenaed material from the New South Wales Police Force concerning the Father and Ms L, tendered as Exhibit A2. 

4. Both parties relied upon the Child Dispute Conference Memorandum dated 8 November 2016.

5. Counsel for the Father addressed the claim made by the Mother in her Affidavit filed 20 July 2016 in paragraph 12 that her relationship with the Father ‘was characterised by intimidation and threats’ and the statements made in her affidavit that:

   a)In paragraph 13, ‘I sustained bruising on my back.  I was terrified.  I went to the bathroom and cried hysterically as I was so shocked and scared of Mr McPherson.’

   b)In paragraph 14, ‘I remain fearful of Mr McPherson and his threats and intimidation against me.’

   Counsel stated that, contrary to these statements, the Mother’s behaviour suggested that she did not fear the Father.

6. Counsel pointed to affidavit material filed by the Father 20 October 2016 which gave evidence of time the Mother spent with the Father and X post-separation and the times the Mother allowed the Father to spend time with X without supervision and without any “supposed” fear.

7. Specifically, in the Father’s Affidavit filed 20 October 2016, the Father details instances such as the Mother allowing the Father to see X at her house for several hours a week between August 2014 and June 2015; the Father paying for the Mother and X to travel to (country omitted) and stay in the same hotel as him so that he could see X in June 2015; X staying overnight with the Father for his birthday in (omitted) 2015; X commencing regular overnight time with the Father from November 2016; and the Father paying for X, the Mother and the Mother’s partner to stay at the same resort as the Father in January 2015 so that the Father could spend time with X. 

8. Counsel submitted that the Mother’s actions were not those of a person who was fearful of the Father.

9. Counsel for the Father then addressed an incident that occurred during the time period of 13 to 15 May 2016 in which the Mother claims that the Father withheld X and did not return her to the Mother as previously agreed.  Counsel drew the Court’s attention to paragraph 50 of the Father’s affidavit filed 20 October 2016:

   X came into my care from Friday 13 May and I was expecting her to be in my care until Sunday 15 May 2016, as per my text message sent on 12 May 2016.  Ms McPherson had not replied to my text either way and I assumed X was staying with me until Sunday.  However, in case that was incorrect, I waited at home on Saturday 14 May 2015 in case Ms McPherson came to collect X.  She did not arrive.  At about two pm, I called Ms McPherson but my message went to voicemail.  I sent her a text at 2.10pm and received no response.

10. Counsel argued that X was not withheld by the Father, as the Mother alleges, but that the Mother was “out enjoying herself”.  By way of evidence, Counsel tendered Exhibit R1 which included screenshots of the Mother’s Facebook page from 14 May 2016 showing photos of the Mother “out with a person dressed as a bride”.

11. Counsel suggested that it was this incident that “begins the maelstrom that follows”, including the Mother requiring the Father to sign an Undertaking and requiring the Father’s time with X be restricted and supervised. 

12. Counsel referred to the Child Dispute Conference Memorandum, prepared by Mr W on 8 November 2016.  Counsel noted that the report writer says the Mother raised various allegations in relation to the Father and his behaviour, such as undiagnosed mental health problems and drug use. 

13. In relation to drug use, Counsel said the Father asserted there was no foundation to the allegation and that on advice from his solicitors, he refused to take a hair follicle test.  Counsel repeated that the drug use allegation was spurious, and if the Mother was truly concerned about drug use, she would have been more specific in her request for a drug test.  Further, her concerns would have been more fulsomely articulated in her affidavit filed 20 July 2016. 

14. I note that neither party has raised an issue of drug use in their filed Notice of Risks. 

15. Counsel concluded that the “Mother’s complaints have got significantly worse, in circumstances where they ought not to have got worse, those circumstances being the wonderful reports coming back to her week after week from Phoenix Rising”. 

16. Counsel, also noted the allegations made about the Father by various people in the Mother’s affidavit filed 8 November 2016.  Counsel submitted that because none of these people have provided their own affidavits, no weight can be attached to their allegations. Counsel argued the unsworn accusations show the Mother’s “desire to attach complaint to anything she can throw at [the Father]”. 

17. Regarding supervised time, Counsel indicated that the Father could no longer afford to pay the ongoing private supervision costs, it may take roughly six months to access another contact centre, and any times that were available may be restricted.  Counsel suggested that such a long absence with sporadic contact times may cause X to feel she is being abandoned by her Father. 

18. Finally, Counsel for the Father addressed the potential risks posed by the Father’s partner, Ms L.  Counsel admitted that FACS had previously been involved with Ms L and her children on two occasions: one incident involving a child being scalded in the shower, and a second involving a child being left in the car while Ms L bought groceries.  Counsel acknowledged that these instances may give rise to concerns but FACS and the Police both discontinued their investigations. 

19. To allay any fears that the Mother may have with regards to any supervision of X that may be provided by Ms L, Counsel stated that the Father has offered to provide an undertaking that he will not leave X in Ms L’s supervision. 

20. Counsel concluded his submissions by stating that the Mother’s proposal to restrict the Father’s time with X to only supervised time six hours a week cannot be justified. 

21. Counsel for the Mother replied to the criticism that the Mother had not given details about the Father’s intimidating behaviour by noting that the Mother had provided summaries in some circumstances and specific examples in others. 

22. Counsel for the Mother argued that the specific examples given demonstrate the Father’s tendency to become explosive, threatening and intimidating, relying on the text message exchanges between the parties set out in Annexure E of the Mother’s affidavit filed 20 July 2016, including the following messages on pages 37 and 38:

    “You didn’t answer the fucking question.

    … You just made a big mistake. 

    You should not having fucking over ridden me Ms McPherson. 

    You don’t make the decision on where our daughter goes. 

    I couldn’t give a fuck on whether it’s convenient or not for you

    … Do not fuck with me when it comes to X”. 

23. Counsel objected to the statement that the Mother had not given detail about the time X spent with the Father and her, and drew the Court’s attention to specific paragraphs of the her affidavit filed 20 July 2016 where the Mother summarises the time X spent with the Father, the occasions the Father did not exercise his time with X, and gives significant detail in relation to recent visits. 

24. Regarding the incident of 13 to 15 May 2016, Counsel submitted that, regardless of what the Mother was doing during that weekend, the parties had an agreement in place and the Father did not return X in accordance with it.  Following the incident, and contrary to Counsel for the Father’s characterisation of the subsequent relationship, the Mother simply requested an undertaking that the Father would abide by the agreement in place. 

25. Counsel for the Mother made reference to an email from the Father dated 17 May 2016[1] in which he raises numerous complaints about the Mother’s neglect and inadequate supervision of X, including that there were faeces under X’s nails, her clothes were too small, and her nappies unchanged.  Counsel noted that the Father had never raised any of these concerns previously. 

    [1] Annexure O of the Mother’s affidavit filed 20 July 2016 at page 91.

26. Counsel for the Mother also noted that, at this time, the Father disconnected her work email, cancelled the (hobby omitted), (business omitted) he operated, and ceased a variety of payments—including child support, payment for X’s day care and finance payments for the Mother’s car. 

27. Counsel clarified that the Mother restricted the Father’s time with X following her discovery that the Father and Ms L were being investigated by FACS[2] and after receiving a copy of a photo of a young child sitting unsupervised on the roof of the Father’s home.[3]  In response to this information, Counsel for the Mother submitted that the Mother was doing her best to maintain a relationship between X and the Father in a safe, secure setting. 

    [2] As set out at paragraph 80 of the Mother’s affidavit filed 20 July 2016.

    [3] Annexure Z of the Mother’s affidavit filed 20 July 2016.

28. Counsel dismissed the importance of the “wonderful reports” from Phoenix Rising, indicating that the reports were of interactions under the “watchful eye” of a supervisor and no weight could be given to this evidence.

29. Counsel contended that the investigations of FACS should be of considerable concern as Ms L had been charged and dismissed with a s.10 Crimes Act 1900 (NSW) Bond. Of further concern, Counsel contended, was that the police attended the Father’s home on 16 January 2016 following an argument between the Father and Ms L.  This was not addressed in the Father’s evidence.

30. Counsel also noted that it was of concern that, despite her importance in this matter, Ms L did not provide an affidavit. 

31. Counsel stated that it was not the Mother’s application to prevent the Father from seeing X but rather to reduce the hours X spent with the Father to a safe amount and environment.  Counsel submitted that the Mother sought supervised time and the appointment of a single expert, arguing that the assessment of an expert may be the best way to identify the issues for determination and provide both the Court and the parties with guidance in order to protect X while facilitating a relationship with both parties.

32. Counsel disputed the Father’s claims that he was unable to afford further private supervision and argued that the Father’s contention that a supervision order would prevent him from seeing X was “holding the court to ransom.”

33. Regarding the hair follicle drug test, Counsel acknowledged that the Father is perfectly legitimate to refuse to take a test because the Mother did not provide sufficient detail.  However, Counsel suggested that there is no harm in doing so where it would allay concerns and narrow the issues before the Court. 

34. Lastly, Counsel relied on the recommendation from the Child Dispute Conference that supervised time remain the best course of action until final hearing and suggested “caution” in making arrangements.

35. Counsel for the Father, in reply, referred to the FACS risk assessment and drew distinction between the two assessments being interim and final which necessarily require different assessment criteria.  Thus, it was inappropriate to compare the two levels of assessment.

Relevant Law

1. The legal principles which govern parenting proceedings are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration.

2. Section 60B(1) of the Act enumerates the objects of Part VII of the Act as ensuring the best interests of children, in this case X, are met by:

   a)ensuring that X has the benefit of both of her parents having a meaningful involvement in her life, to the maximum extent consistent with the best interests of X; and

   b)protecting X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence; and

   c)ensuring that X receives adequate and proper parenting to help her achieve her full potential; and

   d)ensuring that X’s parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of X.

3. In exercising my discretion as to what Order is in X’s best interests, I must have regard to the factors outlined in s.60CC of the Act, as amended. Although the two primary considerations detailed at s.60CC(2)(a) and (b) of the Act must assume greater importance than the additional considerations at s.60CC(3) of the Act, when determining what Orders are in the best interests X, I must consider all the factors before making a determination.

1. In considering the objects of Part VII of the Act, it is necessary to also have regard to the principles underlying those objectives and the legislative pathways outlined in various Full Court of the Family Court of Australia decisions, including Goode & Goode (2006) 206 FLR 212, and the High Court decision in MRR v GR (2010) 240 CLR 461.

Primary Considerations

S.60CC(2)(a) The benefit to X of having a meaningful relationship with both of her parents

1. X is currently three years old. The mother is her major carer and would appear to be a good mother. It appears that X has had an ongoing relationship with the Father from birth, including overnight time once a week with the Father between November 2015 and May 2016, and supervised time several hours a week from May 2016 till the present. 

2. For a child of X’s age, it is clearly important that she have regular ongoing contact with her Father and that there is a healthy bond between the child and the Father. I am also of the view that the time X spends with her Father is appropriate for a child of her age. Further, the possibilities for conflict between the parties at changeover should be minimised.

3. Based on the limited evidence presented, I find that X should spend regular time with the Father.  Overnight time is, in my view, less important for a child of X’s age than regular quality time. These Orders provide for X to spend unsupervised time with the Father for three hours twice a week.

s.60CC(2)(b) The need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. Clearly, at an interim hearing, it is difficult to form any firm conclusion about the extent of any exposure to abuse, neglect or family violence.

2. While accusations about neglect and inadequate supervision have been made by both parties, the key concerns are the reports made to FACS in May 2016 about the Father and his partner, Ms L and their supervision of X and Ms L’s sons.  There have also been prior incidents with Ms L and her sons where FACS was involved. 

3. The involvement of Ms L in X’s life does raise some concerns based on the FACS report tendered.  X is only three years old and needs to be properly supervised.  In order to adequately protect X until the issues in relation to Ms L can be properly canvassed and the evidence tested at trial, it seems appropriate that X should not be left in the care of Ms L. 

4. The Mother has raised concerns about the Father’s intimidating and threatening language towards her, but I find no evidence that any such language or behaviour by the Father is directed towards X. 

5. The Mother also alleges that the Father has used illicit drugs recently.  I note that there is no evidence before me on this matter, and the Father denies such allegations. 

6. On the balance based on the limited material before me, I find that X is unlikely to be at risk of harm from the Father.  I note in particular that, despite the issues referred to above and the fact that the Father may have used illicit drugs. I note that for most of X’s life, the Mother has been relatively happy for X to spend time with the Father.

7. I am conscious of the recommendations from the Child Dispute Conference Family Consultant that supervised contact is the most cautious approach pending final hearing.  However, there is the problem of finding appropriate supervision and the cost which also needs to be taken into account. 

8. Given that a final hearing may be some time away, I am of the opinion that limited unsupervised time for X with the Father may best preserve and promote the relationship between them and thus be in X’s best interests.  The parties are each able to approach the Court at short notice if any problems develop.

Additional considerations

s.60CC(3)(a) Any views expressed by X and any factors (such as X’s maturity or level of understanding) the Court thinks are relevant to the weight it should give X’s views.

1. There is no clear evidence as to X’s views, which, in any case, would be of limited weight given her age.

s.60CC(3)(b) The nature of the relationship of X with: (i) each of the parents and (ii) other persons (including any grandparent or other relative of the child)

1. Based on the limited evidence available, I am satisfied that X has an ongoing relationship with both of her parents.

2. It is also clear that X has had some relationship with the Father’s partner, Ms L and her sons but there is no evidence which leads me to believe that such relationships are significant. 

3. There was no evidence as to how X relates to any other family member or the partner of the Mother.

4. X clearly has a loving relationship with her Mother who is her primary carer.

s.60CC(3)(c) The extent to which each of X’s parents have taken, or failed to take, the opportunity (i) to participate in making decisions about major long-term issues in relation to X, (ii) to spend time with X, and (iii) to communicate with the child.

1. On the basis of limited evidence, it is clear that the parties have each participated in making long term decisions regarding X’s upbringing, have spent time with her, and have regular communication with her.

s.60CC(3)(ca) The extent to which each of X’s parents have fulfilled, or failed to fulfil, the parent’s obligation to maintain X.

1. The mother is the primary carer of X and on the limited evidence available is a good mother and has a loving relationship with X.

2. It is also clear that the Father has had an ongoing role in X’s life and that there is a good and appropriate relationship between them given X’s age.

s.60CC(3)(d) The likely effect of any changes in X’s circumstances, including the likely effect on X of any separation from (i) either of her parents, or (ii) any other child, or other person (including any grandparent or other relative of X), with whom she has been living.

1. It is clearly in X’s interests to have a relationship with both parents and for regular ongoing contact with her Father to continue.

2. The contact between X and the Father should be such as to foster and develop their on-going long term relationship. In my opinion, the Father should spend some time with X without supervision.  Given her age, I do not think it is appropriate or necessary to provide for overnight time.  In fact, X’s best interests would seem best served by maintaining a stable routine at the Mother’s house.

3. I note that the X has had regular interaction with Ms L, and previously with Ms L’s sons.  The Father’s evidence is that X misses being able to spend time with Ms L’s sons.  I acknowledge that these Orders mean that X will not spend time with Ms L and her sons at least for a period, but given the concerns raised in the FACS reports and the inability to test the evidence at this interim stage, I believe caution is the best way forward.  Further, there is no evidence that Ms L or her sons play any significant role in X’s life. 

4. It is important that both parties comply with the Orders so there are no sudden changes in X’s routines. Stability is clearly an important consideration for a child of X’s age.

s.60CC(3)(e) The practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect X’s right to maintain personal relations and direct contact with both parents on a regular basis.

1. There does not appear to be any current practical difficulty or expense in X spending time and maintaining contact with her Father.

s.60CC(3)(f) The capacity of (i) each of X’s parents, and (ii) any other person (including any grandparent or other relative of X), to provide for the needs of X, including emotional and intellectual needs.

1. The Mother has always been X’s primary carer. Although the evidence was limited, I accept that the Mother is closely involved in all aspects of X’s life.

2. The Mother has raised concerns about the Father’s behaviour towards herself, his alleged illicit drug use and allegations investigated by FACS that X and Ms L’s sons had been left unsupervised.  However, the evidence, so far as it may be relied upon, showed the Father to be caring and supportive of X.

3. The Mother will continue to provide ongoing care to X.  The Father is an important figure in the child’s life and this relationship should be supported.

s.60CC(3)(g) The maturity, sex, lifestyle and background (including culture and traditions) of X and either of her parents, and any other characteristics of X that the Court thinks relevant.

1. X is a young child who attends day care regularly. There is some evidence of concerns about X’s speech and language development. A stable environment should assist her.  It is important that she has a positive relationship with her Father and my Orders reflect the need for her to feel safe, secure and to have stability in her life. 

s.60CC(3)(i) The attitude to X, and to the responsibilities of parenthood, demonstrated by each of X’s parents.

1. On the limited evidence available, it would appear that both parents love X and want to be part of her life.

s.60CC(3)(j) Any family violence involving X or a member of X’s family.

1. I have dealt with this matter earlier, however there is no clear evidence that X has been exposed to violence or abuse by the Father.

2. There is evidence before me that the police have been called to the home of the Father and his partner Ms L, and that there have been prior incidents between Ms L and her children that have warranted the involvement of both the police and FACS. 

3. In order to limit X’s potential exposure to family violence, the Father shall be the sole supervisor of X while she is in his care, and he shall not bring her into contact with Ms L or her sons.

s.60CC(3)(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 X.

1. These orders are interim in nature and designed to facilitate ongoing contact between X and her Father.

s.60CC(3)(m) Any other fact or circumstance that the Court thinks is relevant.

1. There was no other evidence in relation to this matter.

Parental Responsibility

1. Section 65DAC of the Act applies whenever a parenting order provides for shared parental responsibility, and requires each party to consult the other and to make a genuine effort to come to a joint decision about any major long-term decisions concerning X.

2. Section 61DA of the Act requires the Court to apply a presumption that it is in the best interests of X for the parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that either the Mother or Father or both (or a person who lives with either party) has engaged in:

   a)Abuse of X; or

   b)Family violence.

3. I have previously noted the incidents the Mother has raised in relation to the Father and his partner Ms L; however, as mentioned earlier, there is no evidence of family violence or abuse.

4. I also find that there is no evidence which would satisfy the Court that it would not be in X’s best interests for her parents to have equal shared parental reasonability.

Discussion and Determination

1. These are interim proceedings and there was no opportunity to test evidence at this time.  However, there was no dispute as to the material from FACS.  The Family Report provided useful material and recommendations.  Weighing all of the material available carefully, I am of the view that any risk to X spending unsupervised time with her Father, provided that he is directly responsible for her supervision and that Ms L will not be present, is minimal and that any risk is outweighed by the need for X to have regular age-appropriate contact with her father.  In my view overnight time is neither necessary nor in X’s best interests at this stage of her life.

2. I make the appropriate Orders. 

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

Date:  22 February 2017