Miller & Anor & Hill

[2016] FamCA 1099

FAMILY COURT OF AUSTRALIA

MILLER AND ANOR & HILL [2016] FamCA 1099

FAMILY LAW – CHILDREN – Interim proceedings – Where the Applicant is a non-parent – Where the mother is deceased – Consideration of the best interests principles – Where the child lived with the maternal aunt and mother – Where the maternal aunt and the father are to have equal shared parental responsibility for the child – Where the child is to live with the father – Where the child is to spend time with the maternal aunt.  

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

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode:[2006] FamCA 1346
Marvel & Marvel (No.2 )[2010] FamCAFC 101; (2010) 43 Fam LR 348
Mazorski v Albright[2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
MRR v GRR [2010] HCA 4
SS & AH[2010] FamCAFC 13
Valentine & Lacerra and Anor [2013] FamCAFC 53
Yamada v Cain (2013) FamCAFC 64.

FIRST APPLICANT: Ms Miller

SECOND APPLICANT: Ms Moore

RESPONDENT: Mr Hill

FILE NUMBER: PAC 1899 of 2016

DATE DELIVERED: 9 December 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 9 December 2016

REPRESENTATION

SOLICITOR FOR THE FIRST APPLICANT: Mr Holmes of KD Holmes Solicitors

SOLICITOR FOR THE SECOND APPLICANT: Mr Holmes of KD Holmes Solicitors

SOLICITOR FOR THE RESPONDENT: Ms McDonnell of McDonnell Law

Orders, Pending further Order

1. The father and maternal aunt have equal shared parental responsibility for the child B born … 2006 such order reflecting the consent orders made on 25 May 2016.

2. The child live with the father.

3. The child spend time with the maternal aunt as agreed between the maternal aunt and the father in writing such writing including SMS or email communication and in default of agreement as follows:

   (a)During the 2016/2017 school holidays

   (i)For one week commencing 10.00am Saturday, 31 December 2016 to 10.00am Saturday, 7 January 2017.

   (ii)For one week from 10.00am Saturday, 14 January 2017 to 10.00am Saturday, 21 January 2017.

   (b)During school term 1/2017 each alternate weekend commencing on the first weekend after the resumption of school term from 6.00pm Friday to 4.00pm Sunday, then during school term 2/2017 each third weekend commencing on the first weekend after the resumption of school term from 6.00pm Friday to 4.00pm Sunday.

4. Changeovers, for the purposes of the maternal aunt’s time with the child be effected at the McDonald’s Family Restaurant at M Town NSW or as otherwise agreed between the parties in writing such writing to include SMS or email communication.

IT IS FURTHER ORDERED BY CONSENT THAT

Appointment of single expert

1. Pursuant to Rule 15.44 of the Family Law Rules, Dr C, Psychologist, be appointed as a single expert in these proceedings to enquire into and report upon matters relating to the welfare of the child, B, born … 2006 (“the child”), and that in preparing her report to the Court, the single expert be requested to consider the following matters:

   5.1The benefit to the child of having a meaningful relationship with her father.

   5.2The nature of the child’s relationship with other persons significant to her care, welfare and development including, but not limited to, the Applicant maternal aunt.

   5.3The need to protect the child from physical or psychological harm, or from being subjected or exposed to abuse, neglect or family violence.

   5.4Any views expressed by the child in relation to the issues in dispute and any factors that may affect the weight that should be given to those views.

   5.5The extent to which each party has taken or failed to take the opportunity:

   5.5.1To participate in making decisions about major long term issues in relation to the child;

   5.5.2To spend time with the child; and

   5.5.3To communicate with the child.

   5.6The extent to which the father has fulfilled, or failed to fulfil, his obligation to maintain the child.

   5.7The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   5.7.1Either of the parties; and

   5.7.2Any other person significant to her care, welfare and development.

   5.8The practical difficulty and expense of the child spending time with and communicating with a party and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parties on a regular basis.

   5.9The emotional, physical, developmental and educational needs of the child and the capacity of each of the parties and any other person to provide for those needs.

   5.10The maturity, sex, lifestyle and background of the child and either of the parties and any other characteristics of the child that the expert thinks are relevant.

   5.11The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parties.

   5.12Any family violence involving the child or a member of their family.

   5.13The impact of ongoing litigation on the child and/or either of the parties.

   5.14The ability of the parties to communicate with each other and any issues impacting this ability.

   5.15The mental health of the child and the parties.

   5.16Any other matter the single expert considers relevant.

2. That each of the parties is to attend upon the single expert on 20 December 2016 to facilitate the preparation of the single expert’s report.

3. That the parties are to each pay one half of the single expert’s costs.

4. That the parties shall have leave to provide to the single expert by way of instructions:

   8.1A copy of these Orders.

   8.2A copy of all documents filed by the parties in these proceedings.

   8.3A copy of all documents produced under subpoena in these proceedings.

   8.4Such further documents as the parties may agree upon.

5. Each of the parties facilitate the child having reasonable telephone contact with the other during the period that the child is living with each of them and in default of agreement as to that contact it be not less than each alternate day and for the purposes of this order the parties shall keep each other informed at all times of a phone number on which the child can contact each of them and an email or other address on which the child may have other electronic communication with the non-resident party.

6. The father and maternal aunt be restrained from engaging the child with any mental health therapist or psychologist except for any health therapist or psychologist as recommended by Dr C in consultation with the child’s bereavement counsellor, Ms D.

7. The father and maternal aunt are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of the child and from permitting any other person to do so and the father and maternal aunt are further restrained from discussing these proceedings in any way in the sight or hearing of the child or any issue in these proceedings in the sight or hearing of the child and shall use their best endeavours to restrain any other person from so doing.

8. All interim applications before the Court are dismissed.

9. These proceedings be listed for hearing at 10.00am on 15 March 2017 allocating three days for trial.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Miller and Anor & Hill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1899  of 2016

Ms Miller

First Applicant

And

Ms Moore

Second Applicant

And

Mr Hill

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. These are interim parenting proceedings in relation to the child, B, born in 2006.  The child is now 10 years of age and in Year 4 at school. 

Context

1. The cohabitation between the mother and father commenced in 2005/2006 and they finally separated in about June 2013, following a period of separation under one roof. 

2. The regrettable circumstance in this matter is that the mother passed away in 2016 from breast cancer, and as a necessary consequence of her mother’s death, the child the child has been appropriately engaged in grief counselling with Ms D, psychologist, since that time.

3. The proceedings were initially commenced by way of an Application initiating proceedings filed on 2 May 2016.  At the time of the Application the mother lived at Suburb E west of Sydney with her sister, the maternal aunt to the child, and nearby to the maternal grandmother.

4. In that application the two applicants – the first being the applicant mother and the second being the applicant maternal aunt – sought orders in relation to the subject child that provided for the applicants to have equal-shared parental responsibility for the child and for the child to live with the applicants and spend time with the father as agreed.

5. The necessity for both the deceased and the aunt to make joint application was by reason of the mother’s very significant disabling circumstances of her ill health at the time of the application. 

6. The father, who resides in F Town in central NSW,  filed a Response to the mother’s Application on 24 May 2016 and in that Response he sought final orders that provided for him to have sole parental responsibility for the child, that the child live with him and that the child spend time with the maternal aunt on the first weekend of each alternate month and two weeks over the Christmas school holiday period, and otherwise as agreed.

7. The matter was before the Court on 25 May 2016, in the context of interim parenting proceedings before the Senior Registrar, orders were made by consent pending further order.  It should be noted that at the time the consent orders were made the first applicant mother was gravely ill. 

8. The orders provided that by consent, and pending further order:

   a)the applicant mother, maternal aunt and the respondent father have equal shared parental responsibility for the child; 

   b)that the child should live with the mother and the maternal aunt; 

   c)that the child spend time with the father as agreed and in the absence of agreement, alternate weekends from 9.00 am, Saturday, to 2.00 pm, Sunday, commencing 24 June 2016, and at other times as agreed, upon the father providing not less than 72 hours’ notice to the mother and/or the maternal aunt.

9. The orders were subject to certain notations, they being as follows:

   a)It is noted that the father’s consent to these orders are without prejudice to his live-with application.

   b)It is noted that the father’s consent to these orders are based on the mother’s current circumstances, in that she is terminally ill and has entered a phase of critical care.

   c)It is noted that the parties intend to reconsider the care arrangements for the child either upon receipt of the children and parenting intake report, or upon the mother’s death.

The father’s interim application

1. The mother passed away as seen in 2016, and on 16 September 2016 the father filed the present Application in a Case seeking interim orders.  He sought orders that provided for:

   a)his interim application to be listed on an urgent basis,

   b)that pending further order, the child live with him from the commencement of school Term 4 2016, and

   c)that the child spend specified time with the maternal aunt if she be living either in Canberra or Sydney.

2. The father’s interim application was listed before a Registrar on 6 October 2016, and on that day it was noted that, as follows by the Registrar, “the parties have reached agreement to increase the time with the father.”  In this regard it appears the parties agreed that the father would spend a block period of time with the child in the Term 3 school holidays in the September/October period 2016.  It was further noted that the maternal aunt was seeking to relocate to Canberra with the child. 

3. The proceedings were in effect listed today before this Court for the first day of a less adversarial trial, but the proceedings have otherwise been overcome by the interim parenting applications sought by the maternal aunt and the father. 

The maternal aunt’s application

1. The maternal aunt filed an Application in a Case on 30 November 2016, and in that Application in a Case she sought orders in summary that provided:

   a)for a recovery order to issue for the procurement of the return of the child to her, and

   b)that pending further order the child live with the maternal aunt in Canberra, and

   c)that the father have specified defined time with the child. 

   d)otherwise, the maternal aunt sought an order for the appointment of Dr C, psychologist, as a single expert, for the purposes of preparing a report for these proceedings. 

2. The father, for his part, filed a Response to the maternal aunt’s Application in a Case on 8 December 2016, seeking interim parenting orders in relation to the child, that in summary provided:

   a)for the child to live with him;

   b)that he have sole parental responsibility for the child; and

   c)that the maternal aunt spend time with the child for one week of the mid-year school holidays, a week in the Christmas school holidays, and at other times as agreed. 

Documents relied on

1. The documents relied upon by the parties in relation to the current interim application are - as to the maternal aunt - her affidavit filed on 30 November 2016, and the affidavit of a Mr G, solicitor, filed on 8 December 2016.

2. The father for his part relied upon his affidavits filed on 16 September 2016 and 8 December 2016. 

The father’s circumstances

1. It is common ground in these proceedings that the maternal aunt and the father are in significant conflict.  They have difficulties in relation to communication, and it is asserted that the maternal aunt is inflexible in relation to the child’s arrangements with the father. 

2. The father has one child from a previous relationship, J now aged 16.  That child attends boarding school in Sydney and the child’s mother resides in H Town.  The father sees the child at various times during school term and otherwise. 

3. The father has been residing with his current partner in F Town since July 2015.  His current partner is Ms I, and she has three of her own children in her care;  they being a daughter aged five and twin boys who are now aged nearly eight.

4. The father and his partner live in a four-bedroom home that affords, it appears, suitable and comfortable accommodation for his current household and prospectively for the child.  He says there is a room available for the child, but on occasions when she has stayed for block periods of time, as will be referred to, she has chosen on occasion to share a room with one or other of the children in the household. 

5. The property that the father lives in is owned by his partner, the father having advanced some moneys from his property settlement arising out of this relationship to assist Ms I to acquire the property.

6. The father is in regular employment with the local council, and has been for some years, as a council worker. 

7. He concedes, quite appropriately, that during their cohabitation the mother was the primary carer for the child, although he contends that he had a substantial and significant engagement with the child, right up until the parties’ final separation in 2013 when the mother moved from F Town to Suburb E for health reasons.  The mother and father lived in the F Town area, and in F Town, for effectively the whole period of their cohabitation until their final separation.

8. The child attended pre-school in F Town. The child attended the F Town Primary School in 2011 and 2012 and for the early part of the 2013 school year, until the mother moved to Suburb E, where she was closer to the support of the maternal grandmother. 

9. After the mother and child moved to Suburb E, the father continued to have time with the child.  That time included various block periods during school holidays, and some weekend time during school term;  he says probably about every four to six weeks.

10. He says that to some extent his time with the child was limited after the child moved to Suburb E by considerations relating to the mother’s illness.  The child spent time with the father during the Christmas school holidays 2015/16 for a week in, and a week in the March holidays in 2016, and otherwise for other periods on weekends and on special occasions in Sydney.  The child also has recently spent a week with the father in his household during the September/October school holiday periods. 

11. In early November 2016, the father asserts that the child informed him that whilst she remained staying at Suburb E she was mostly, during the week, staying in the household of the maternal grandmother, while the maternal aunt, with whom the child was to primarily reside by Court order, spent a significant portion of each week working in Canberra, where she has established an ongoing long-term employment. 

12. The father says he spoke to the maternal aunt about that circumstance, and the circumstances of the child’s care during her absence, and the response he received from the maternal aunt was simply, “Speak to your lawyer.”

13. Subsequently, in November, the maternal aunt unilaterally removed the child from her school at Suburb E and relocated the child’s primary residence to Canberra, notwithstanding that the father, through his solicitors and directly to the maternal aunt, had expressly indicated his opposition to such relocation in very unequivocal terms.  

14. It is common ground the child has never resided in Canberra during her lifetime.  The current applications have been triggered by the circumstances that occurred on the weekend of 25 and 26 November 2016.  The child was with the father that weekend for the purposes of time as ordered in May, but at the end of that time the child was not returned to the maternal aunt. 

15. Thereafter the father – mirroring the unilateral conduct of the maternal aunt – enrolled the child back in the F Town Public School that she had previously attended, and he says the child was reunited with some of her old classmates from 2013.

The maternal aunt

1. As to the maternal aunt, she concedes the father’s opposition to her relocating the child to Canberra.  She says that when the child was not returned to her on 26 November 2016, she initially proposed to travel to F Town to collect the child.

2. She engaged the services of the local police in F Town in relation to her concerns in attending the father’s home, as a consequence of which the police attended at the father’s home, did what is commonly referred to as a “welfare check” and reported back to the maternal aunt that the child was fine. 

3. The child has, since 26 November 2016, remained in the father’s household in F Town and has now completed several weeks of schooling at the F Town Public School.

4. The maternal aunt complains that she has been unable to speak to the child since the child has been retained by the father.  That is perhaps reflective of the parties’ conflictual relationship in the very regrettable circumstances that lead to this litigation. 

5. The maternal aunt concedes that during the period from August 2016 she did commute from Canberra to Suburb E so that she could attend to her work obligations for a portion of the week in Canberra, and during the time that she was absent from Suburb E the child has been cared for by the maternal grandmother, who – somewhat surprisingly – offers no evidence in these proceedings in support of her daughter or as to the child.

1. It is clear that the child has a significant attachment to the maternal aunt.  This is perhaps unsurprising by reason of the maternal aunt’s engagement in 2016 with her sister, in what was a very difficult period for both the maternal aunt and for this young child.  The maternal aunt appropriately engaged the child with Ms D, the bereavement counsellor, and the child has benefited from that intervention.  Ms D has provided a short report as to her engagement with the child, which is exhibited to the mother’s affidavit and dated 13 September 2016.

2. It certainly appears that by September 2016, then some after the mother’s death, the child was struggling to deal with her mother’s absence and the absence of what to her was her primary attachment figure in her life. 

3. Notwithstanding the issues raised by Ms D in her report, the child was made available to the father to spend a block period during the October school holidays.  Prior to the school holiday period, the maternal aunt sought to engage the child in further counselling and obtained a referral from a general practitioner to a psychologist.

4. The father indicated his opposition to such a course, he only being aware of that referral once it had been obtained unilaterally by the maternal aunt, notwithstanding her obligations in holding equal-shared parental responsibility to consult the father in relation to any such proposed actions.  The father opposed the child’s engagement with that further psychologist and it did not proceed. 

5. Notwithstanding the father’s opposition to the first psychologist, the maternal aunt gives evidence that having relocated to Canberra she has now unilaterally engaged the child with a further psychologist who indeed has seen the child by way of a preliminary engagement, in respect of whom the maternal aunt says the child has now formed a good relationship with that psychologist.

6. For the maternal aunt to have taken that course in the context of this matter, whilst probably a course adopted as she perceived to be in the best interests of the child, it should have been a course adopted with the full consent and knowledge of the father. 

7. The father has enquired of the maternal aunt as to what the care arrangements will be while the child was living in Canberra, and there has been no response to that enquiry.  The Court is still left in doubt as to what the maternal aunt’s arrangements are for this young child while she otherwise is in full-time employment.

8. The maternal aunt has also unilaterally, since she relocated to Canberra with the child, enrolled the child in the Suburb K Public School.  The absence of consultation with the father in that course is patent.  The maternal aunt owns property in Canberra, which apparently comprises two bedrooms, where she proposes that she will share those premises with L, her 14-year-old daughter, and the child.  It is to be inferred that the child and L will share a bedroom in those circumstances.

Discussion

1. The issue that confronts the Court today is much different to the issue that confronted the Court in the context of the initial interim orders.  The mother has passed away, the maternal aunt has now effectively abandoned any proposals to reside at Suburb E and proposes to live in Canberra; the father remains in F Town. 

2. By consent, some travel maps were introduced into evidence as Exhibit “C”, and they indicate to the Court that travel distances from F Town to Canberra are in the order of about four and a half to five hours, with the mid-point of that travel about two hours or so from each destination, being M Town.

3. It seems common ground that the parties in their respective proposals seek that changeovers be affected at the McDonald’s Family Restaurant at M Town, being an equal distance for each of them.

   The CAPIA report

4. Marked into evidence as Exhibit “A” in these interim proceedings is the Children’s and Parenting Issues Assessment report undertaken by a family consultant of this Court.  Regrettably, the interviews were undertaken less than one month after the death of the mother, when one would have thought that emotions and feelings – and particularly the child’s emotions and feelings – were fraught with difficulty.

5. The report itself was not provided to the Court until early October, at which time it was released to the parties. 

6. As has been said earlier in these reasons for judgment, much has transpired since the circumstances that are referred to in the report. 

7. Some aspects of the report are worthy of note.  The child, when interviewed, indicated a wish to live with the maternal aunt, saying that she was “real nice;  I feel more connected to her than dad”.  The child also indicated she wanted to spend time with the father, but doesn’t want to live with him, although she did say, when asked about her relationship with the father’s partner, that sometimes she feels a bit like family but sometimes she really does not.

8. But the child says she enjoys playing with the father’s partner’s children, although “they can be a little bit silly at times”.  It is interesting in the report in referring to the child’s references to the maternal aunt, that the family reporter observed:

   [The child] said that she’s aware that [Ms Miller] had wanted her to live – that is her mother wanted her to live with [Ms Moore], the maternal aunt, and admitted that part of her thinks that she should live with [Ms Moore] because that’s what mummy wanted. 

9. The child spoke positively about the father’s older son, although it is common ground she has not had any significant inter-reaction with him. 

10. Regrettably, the child is more than aware of the tension between the maternal aunt and the father.  the child said to the reporter that there are tensions between Ms Moore and Mr Hill, stating, “They don’t really gel.”  She did observe that she would really like it if the maternal aunt and the father could be better friends, but stated she finds the travel difficult between the two homes.

11. The maternal aunt was spoken to by the family consultant about her wishes for the child to live with her rather than her own father, and the maternal aunt denied to the family consultant she was seeking that the child live with her merely because it was Ms Miller’s wish.  She maintained that she would be better able to provide for the child and stated that she fears that Mr Hill will take the child away from the maternal family.  Ms Moore declared, “We are her people; we are her support.” 

12. Ms Moore declared that the child had transferred her attachment from Ms Miller to her, and said, “She’s very attached to me at the moment.” Not unsurprising, it should be observed, having regard to the maternal aunt’s close involvement in and around the circumstances of this child’s mother’s death.  The maternal aunt, in the context of the report, seemed to show little insight into the importance of the father-child relationship. 

13. The father maintained to the family consultant that he would be able to provide to the child a stable family life where she will be loved and have fun.  He reported to the family consultant the child enjoys playing with Ms I’s children, and he believed it was in her best interests to live with a parent.

14. The difficulties in communication between the parties are evident from further observations of the family consultant in the report. 

15. In evaluation the family consultant appear somewhat reticent to make recommendations as to parenting arrangements, making this comment:

    It is extremely unfortunate that the child is currently living amidst the conflict between the maternal family and [Mr Hill] regarding her future living arrangements as this is likely to exacerbate her grief.  In addition, both [Ms Moore’s] and [Mr Hill’s] proposals require that the child leave her current home and school, introducing a further change at a time when she is likely emotionally depleted and confused.  the child will require ongoing support and frequent contact with both maternal and paternal families, which will likely be difficult given the practical difficulties that the distance between the two homes pose.

16. Notwithstanding that observation in the family report, that was released to the parties in October, the child’s circumstances that the family consultant considered to be all important to the child have now been completely disrupted. 

The Maternal Aunt – a non-parent

1. These proceedings involve issues between a non-parent – that is the maternal aunt – and the father.  Section 65C of the Act provides that:

   Either or both of [the child’s] parents, including grandparents - and any other person concerned with the care, welfare, and development of the child – can apply for parenting orders.

2. The applicant, being the maternal aunt, clearly can apply for parenting orders in the context of these proceedings, being a person intricately concerned with the care, welfare and development of the subject child. 

3. How then does the Court deal with the various factors in the Act that will be referred to later that relate to parents only?  This can be done by reference to the provisions of section 60CC(3)(m) of the Act that provide that the Court can consider any other factor or circumstance as the Court thinks relevant as a “catch-all provision”. Section 60CC(3)(m), therefore, allows the appropriate best interest considerations of the children that will be referred to later in these reasons to be applied to the applicant maternal aunt.

4. It is settled law that there is no presumption or preferential position that applies as between a parent and non-parent: Valentine & Lacerra and Anor [2013] FamCAFC 53, Yamada v Cain (2013) FamCAFC 64.

The statutory pathway: interim parenting

1. In relation to interim parenting I refer to the observations of the Full Court in Marvel & Marvel (No.2 ) (2010) 43 Fam LR 348 the Full Court, discussed the difficulties associated with making findings on contested evidence as follows:

   120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   121. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   “In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”

   122. Later, at paragraph [100] their Honours amplified their comments and said:

   “The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

2. In George & George [2013] FamCAFC 182 the Full Court cited Deiter & Deiter [2011] FamCAFC 82 in confirming that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.

3. The Court is to have regard to the best interests of the subject child. 

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

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

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

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

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (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

   (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).

6. 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.

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

8. 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:

   a)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s61DA(2)],

   b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s61DA(3)].

   c)if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s61DA(4)].

9. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time [s 65DAA(6)].

10. The presumptive circumstances do not apply by virtue of the fact that the maternal aunt is a non-parent and the child’s mother is deceased.  However, by consent in May, the parties agreed that there would be an equal-shared parental responsibility in relation to this child between the late mother, the maternal aunt and the father.  There is no reason to disturb that current circumstance pending final hearing.  It will require both the maternal aunt and the father to confer in relation to the limited major decisions on issues that are clearly defined by the legislation.

Best Interests:

The Primary Considerations: s60CC (2)

1. The primary considerations are:

   a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

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

2. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

3. In Mazorski v Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

4. In McCall & Clark (2009) FLC 93 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

5. What it means is that the Court should have regard to the child’s relationships prospectively into the future.  Those relationships should be meaningful, important and significant and valuable to the child.  It is not a quantitative use of the word meaningful.  It does not mean something in terms of time, it means in terms of quality of relationships.  To some extent that consideration also relates to the child’s relationship with the maternal aunt. 

6. It is clear at this stage that the child has an established relationship with the father.  It is common ground that this child has spent significant, but not substantial, time with the father, both before the mother’s unfortunate death and thereafter, including block times in holiday periods where the child has spent a week at a time within the father’s household.  The inference is that the child has a strong attachment to the father, much the same as the child has a strong attachment to effectively her substitute primary carer in the maternal aunt.

7. However, it is incumbent upon the Court to consider how the child’s relationships moving into the future will be valuable, important and significant to her.  In the context of this matter it appears that one of the primary concerns in terms of relationships is the promotion and effectively re-establishment of the child’s relationship with the father as her primary attachment.  There are certainly no disentitling circumstances in that regard raised in the context of these interim proceedings. 

8. There are no protective factors as such.  There are significant concerns in relation to the child coming out of what has been, and will be for a period of time, a dark period in her life as a consequence of the regrettable death of her young mother.  The maternal aunt has appropriately engaged the child in bereavement counselling and the Court is informed today that it is proposed that Dr C be appointed as a single expert with an appointment available within a week or two with Dr C on 20 December. 

9. The child’s engagement with her ongoing bereavement counsellor will now have some logistical difficulties because of the child either living in F Town or in Canberra. In the circumstances it is appropriate that an order would be made to facilitate the parties obeying any reasonable recommendations of Dr C made on 20 December as to the child engaging in any further counselling, by way of bereavement or otherwise, with such therapist as may be agreed between Dr C and Ms D, the child’s current bereavement counsellor.

1. The additional considerations (s60CC(3))in this matter are many and varied and provide to some extent the rungs on the ladder of the statutory pathway for the Court to consider. 

2. The first consideration is the wishes expressed by the child, including factors such as the child’s maturity and level of understanding, and in this case, in particular, the circumstances in respect of which any wishes might be expressed.  In the circumstances of this matter, notwithstanding both parties providing some evidence as to the child’s wishes, the family consultant, echoing those wishes, has perhaps put them better in context in assessment report.

3. It is appropriate that the child’s wishes, however expressed and in what context, be afforded little weight due to the child’s wishes and emotional state likely being heavily influenced by her mother’s death and thus not necessarily indicative of her true positon or her best interests, and that the Court should look more to the objective indicia in relation to the child’s appropriate living circumstances. 

4. The second consideration is the nature of the child’s relationship with parents and any other persons.  The nature of child’s relationship with the father, and the maternal aunt have been referred to above.  There is little to add in relation to the observations made previously in these reasons for judgment.

5. There is no doubt that in a difficult period the maternal aunt has provided valuable support and assistance in the life of the child in very difficult circumstances, and no doubt will continue to do so into the future, notwithstanding any orders the Court might make today. 

6. The next factor is the extent to which each of the child’s parents has taken, or failed to take the opportunity, to participate in making decisions about major long-term issues and spend time with the child.  The mother relocated unilaterally to Suburb E for the purposes of being closer to medical care in mid-2013.  The father says at that time it was not his expectation she would relocate permanently, but it appears that circumstances overtook that and she remained at Suburb E.  By reason of distance and otherwise – and, as he says, out of respect for the mother’s health circumstances – he still remained engaged with his child, but perhaps not as engaged as he would otherwise have liked to.

7. The next factor is the extent to which the parents have fulfilled, or failed to fulfil their obligations to maintain the child.  There is no evidence about this in the context of this application and it is not a relevant consideration in this application.

8. Perhaps the most important factor is the likely effect of any changes in the child’s circumstances, including any separation from either of the parents or any other person with whom the child has been living.  This factor directly relates to the father in F Town and the maternal aunt in Canberra.  The child was, it appears, reasonably well settled in Suburb E, although in somewhat fractured care circumstances after August of this year with the maternal aunt moving to and fro from Canberra.

9. The significant change that was warned against by the family consultant in her report about the disruption of the child’s effectively home base and schooling arrangements has happened unilaterally with both parties. This was occasioned first by the maternal aunt, having absolutely no regard to those issues, in the context of certain objective circumstances that in reality necessitated her moving.

10. The father, for his part, took umbrage at that and the child now remains unilaterally in F Town by reason of his conduct.  The Court also accepts that he has probably, in the circumstances, acted in what he thought was the reasonable best interests of the child, reuniting her with her previous local community and social capital that existed in F Town for some years. 

The proposals

1. The father seeks for the child to live with him on a full-time basis and spend time with the maternal aunt.  The child is presently with him, but that, of course, does not give that circumstance any significance because it has been in place only for a couple of weeks. 

2. The maternal aunt seeks for the child to live with her in Canberra in uncertain circumstances as to her ability to care for the child save for some assertion that she might seek to work during school hours.  How she would cope with school holidays and otherwise one does not quite know, and it is difficult to understand from her position what regard she has to the importance of the child’s relationship with the father in the unfortunate context of this application.

3. The tyranny of distance will be a significant circumstance for the child, but it has existed mostly since 2013 since the mother moved to Suburb E, with the child moving between F Town and Suburb E, or Suburb E and the Sydney area where the father sometimes spent time with the child. 

4. The parties are in agreement that if there is to be travel the mid-point is to be M Town.  The child will not be too happy about that, but in any event she will be able to spend time with the father and the maternal aunt into the future.

5. The significant effect of changes on the child  are ameliorated to some extent by the fact that the Court has been able to allocate reasonably proximate early dates for trial in this matter, with orders to be made today in relation to the appointment of Dr C as the single expert. 

6. So the changes in the context of this interim application will be in place throughout the school holiday period, and then for probably most of Term 1 next year until such time as a final determination or judgment is delivered. 

7. In terms of practical difficulty or expense there is none.  Both parties are happy to undertake the necessary travel to ensure a relationship between the child and both of them. 

8. Questions of capacity are, of course, untested.  The mother through the maternal aunt makes some complaints about the father’s behaviour perhaps during cohabitation and thereafter.  He has been in a settled domestic circumstance with his partner now for a year and a half, in circumstances where that house is owned by his partner. The child has a relationship with that partner and her children.  It is simply to be inferred that there are no disentitling circumstances in relation to capacity for both the maternal aunt and the father to provide for the needs of the child, including the child’s emotional and intellectual needs. 

9. In relation to the maturity, sex and background consideration, in this case some aspects of such have been touched on above, but it is not a relevant consideration. 

10. The child is not of Aboriginal or Torres Strait Islander extraction, and that factor does not have any application. 

11. Having regard to the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents, or the child’s father and the maternal aunt in the context of 60CC(3)(m), at this stage one would await the report of the single expert as to the background circumstances and reasoning as to what has transpired in the context of the life of this young girl prior to hearing, and what the parties views and aspirations may be for the child into the future.

12. There are no issues in relation to family violence raised in the context of these proceedings.  There is no relevant family violence order. 

13. These are interim proceedings and it is not possible to make an order that would avoid the institution of further proceedings.

14. The circumstance that concerns the Court in this matter is having regard to the background set out above, and having regard to a consideration of the best interests considerations set out in the Act, that ultimately this is a contest between a maternal aunt who has a significant and more recent engagement with the child by reason of her sister’s unfortunate illness and untimely death and the child’s father. 

15. There is a significant inference that ultimately the real test in this case is going to be at what time this child should be restored to her own father’s full-time care, and what orders should be made to maintain the maternal family relationships into the future.

16. If one accedes to the maternal aunt’s application the child will then move to Canberra, live with her, in circumstances where in her household she has no other support.  She is in full-time employment in a government position.  The child has no social capital in Canberra whatsoever, and will be placed in a school that is completely strange to her, or in fact had been placed in such a school until she was removed by the father. 

17. In the father’s case the position is that the child has been returned to a town that she left some years ago;  a town in which she has had significant engagement in terms of pre-school and schooling, and by inference other community activities.  The father says in his affidavit material that the child seems to have settled back into that school and has re-engaged with some friends from her previous years. 

18. The father has a household that would appear to be particularly of benefit to this young child in that there are other children within the home that she can interact, and she is in an environment where the house provides comfortable accommodation and amenities.

19. The usual amenities of the F Town township are available to the father and his household. 

20. A significant concern is that if the child was to be returned to the maternal aunt with a final hearing in March there is a strong possibility that the child would be ordered then to return to F Town to live with her father, as the child is entitled to do if it is in her best interests.

21. In all of the circumstances, and having regard to the matters raised above it is in the child’s best interests that she should remain residing with the father in F Town.

22. Orders will be made accordingly.

I certify that the preceding one-hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 9 December 2016.

Associate: 

Date:  20 December 2016