MILNER & MATHERLY
[2019] FCCA 2580
•4 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MILNER & MATHERLY | [2019] FCCA 2580 |
| Catchwords: FAMILY LAW – Interim hearing – parenting – parental responsibility – where there is a young child of the relationship – where child spends single overnight occasion per fortnight with non-live with parent – whether overnight time should be suspended – where overseas travel is proposed to Hague Convention nation. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC, 61DA, 65DAA. |
| Cases cited: Sun Alliance Insurance Ltd v Massoud [1989] VR 8. |
| Applicant: | MR MILNER |
| Respondent: | MS MATHERLY |
| File Number: | PAC 360 of 2019 |
| Judgment of: | Judge Morley |
| Hearing date: | 15 August 2019 |
| Date of Last Submission: | 11 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 4 October 2019 |
REPRESENTATION
| The Applicant appeared on his own behalf. |
| Counsel for the Respondent: | Mr Simpson |
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
The parties have equal shared parental responsibility for the child [X], born … 2016.
The child live with his mother.
The child spend time with his father as follows:
(a)Until 11 November 2019:
(i)Each Tuesday from 5:00PM until 7:00PM; and
(ii)Each alternate weekend from 6:00PM on Friday until 5:30PM on Saturday on the weekend on which the mother’s child [C] is not with her;
(b)From 11 November 2019:
(i)Each Tuesday from 5:00PM until 7:00PM; and
(ii)Each alternate weekend from 6:00PM on Friday until 5:30PM on Sunday on the weekend on which the mother’s child [C] is not with her;
(c)On the child’s birthday on … 2020 from 3:00PM until 6:00PM;
(d)On Father’s Day on 6 September 2020, if not otherwise in the father’s care, from 9:00AM until 5:30PM;
(e)Notwithstanding any other Order herein, from 2:00PM on 25 December 2019 until 5:30PM on 26 December 2019;
(f)Notwithstanding any other Order herein, from 12:00PM on Easter Saturday 11 April 2020 until 5:30PM on Easter Sunday 12 April 2020;
(g)After 10 March 2020, for two (2) occasions of four (4) nights holiday time, commencing at 6:00PM on Friday and concluding at 7:30PM on Tuesday, occurring over a weekend when the child would otherwise be in the father’s care pursuant to these Orders, the father to nominate the occasions in writing to the mother no later than two (2) months before an occasion is to commence and to occur at least three (3) months apart;
(h)On the father’s birthday on Tuesday, … 2020 from 9:00AM until 5:30PM;
(i)At such other times as may be agreed between the parents from time to time.
Notwithstanding any other Order herein, the child is to be in his mother’s care:
(a)On Mother’s Day 10 May 2020 from 9:00AM until 5:30PM;
(b)From 6:00PM on Good Friday 10 April 2020 until 12:00PM on Easter Saturday 11 April 2020; and
(c)On the Mother’s birthday on Sunday, … 2020 from 12:00PM until 5:30PM.
The mother may telephone to the child on the father’s mobile telephone number at some time between 6:00PM and 7:00PM on the third night that the child is in the father’s care pursuant to Order 3(g).
On each occasion when a changeover is not occurring by collection of the child from or delivery of the child to day care or preschool, the father will collect the child from the mother’s place of residence at the start of his time with the child and the mother will collect the child from the father’s place of residence at the end of his time with the child.
The father may communicate with the child by telephone call or video call on two occasions each week at some time between 6:00PM and 7:00PM.
Each parent will notify the other parent as soon as practicable of any medical emergency, illness or injury suffered by the child whilst in that parent’s care and each parent will authorise any health professional treating the child to communicate and provide information on an equal basis between the parents in relation to all aspects of the child’s healthcare.
Each parent will keep the other parent informed of the details of any doctors, specialists, medical centres, and any other healthcare providers consulted in relation to the child’s health and will provide information directly to the other party about the child’s medical treatment and will authorise any such healthcare providers to communicate and provide information on an equal basis between the parents in relation all aspects of the child’s healthcare.
The parents are equally entitled to receive all information and communications from and about the child’s attendance and progress at day-care and preschool and to make enquiries about and attend relevant occasions at the child’s day care and preschool.
Ms Matherly born … 1978 and Mr Milner born … 1979, their servants and/or agents are restrained from removing or attempting to remove or causing or permitting the removal of the child [X] born … 2016 from the Commonwealth of Australia and remain so restrained irrespective of any authenticated consent pursuant to section 65Y of the Family Law Act 1975, AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of [X] born … 2016 on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain that child’s name on the Watchlist for a period of two years or until the Court Orders its removal, whichever first occurs.
Each of the parents will keep the other parent informed of their current residential address, email address and telephone number at all times.
In the event that either parent commences to reside with another adult person, whether in a cohabitative relationship or not, then that parent will immediately advise the other parent of that fact and provide to the other parent the name and date of birth of such other relevant adult person or persons.
Each of the parents is restrained from denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence or hearing of the child.
That each of the parents is restrained from allowing the child to remain in the presence of, or within the child’s hearing of, any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household.
IT IS NOTED that publication of this judgment under the pseudonym Milner & Matherly is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PAC 360 of 2019
| MR MILNER |
Applicant
And
| MS MATHERLY |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings between the Applicant father (“the father”) and the Respondent mother (“the mother”) concerning their competing proposals for the future parenting of their son, [X]. The child was born on … 2016 and so was two years and … months of age at the time of the interim hearing.
The mother and father lived together in a de facto relationship between … 2015 and … 2018, on which date they separated on a final basis. The child is the only child of their relationship. The mother has a child from a previous relationship, [C] aged nine (9) years. [C] lives with his mother and father on a shared care, week-about basis.
On 15 August 2019 I heard competing interim Applications between the parties relating to the amount of time the child should spend with his father and whether or not the child may accompany his father on a holiday trip of two (2) weeks in December 2019 to Country B, the father’s country of origin.
At the interim hearing, the father represented himself and presented evidence and submissions in support of his Application, that Orders be made increasing the amount of time he spends with the child and allowing the child to travel with him to Country B.
The mother was represented by Mr Simpson of Counsel and he presented evidence and made submissions on her behalf in support of her Application, that Orders be made decreasing the amount of time the child spends with his father, and to prevent the child travelling with his father outside the Commonwealth of Australia at any time prior to the making of final Orders in the proceedings.
In addressing the issues on interim hearing, a relevant question of fact was whether or not the child was coping with the amount of time he currently spends with his father, which includes one (1) overnight occasion each fortnight. The father asserts that the child is coping and will cope with an increase in overnight time. The mother asserts that the child is not coping.
Background facts
The following facts are agreed unless otherwise indicated.
The father was born in Country B and is 40 years of age. He became an Australian resident in 2007 and an Australian citizen in 2015. He is a professional.
The mother was born in Australia and is 41 years of age. She is an professional.
The parties commenced living together in a de facto relationship on 15 September 2015 and separated on the final basis on … 2018. The child was born when the parties were still cohabiting (on … 2016). When the parties separated, the child was one (1) year and eight (8) months of age.
In October 2016, the paternal grandmother travelled to Australia from her home in Country B and stayed with the parties for three (3) weeks to become acquainted with her only grandchild.
At the time that the child was born, the father was working full-time with D employer as a manager.
The mother was employed at E employer as a professional and took maternity leave for 11 months. The mother’s employment with E employer required her to work shifts, and on 3 July 2017 the mother resigned from E employer after 17 years with the company and commenced part-time work with F employer.
From this time, the child was enrolled at Day Care G on Monday, Wednesday, and Friday each week and cared for by the maternal grandfather’s partner, [I], on Tuesday and by the paternal grandmother on Thursdays. The father worked a full week in his employment and the mother worked 10:00AM to 2:00PM Monday to Friday and was required to work occasional shifts from 2:00PM to 6:00PM.
On 16 May 2018 the mother changed to part-time employment at H employer Sydney, working 9:00AM to 5:00PM four (4) days a week. The child’s day-care attendance was changed to Wednesday and Friday each week, with [I] continuing to care for him each Tuesday and the maternal grandmother caring for the child each Thursday.
The mother contends in her evidence that she was principally responsible as between the parents for the day-to-day care of the child when she was not at her employment. The father gives evidence that he assisted with the child’s care on a daily basis.
In April 2017, the parents, the child, and [C] travelled to Country B, Country J, and Country K to visit family and friends for three (3) weeks. The child was able to reconnect with his paternal grandmother and met members of the father’s extended family.
Following differences arising between the parties, they separated on … 2018 at which time the mother went to stay with the paternal grandfather, taking the child and, when in her care, [C] with her. Following the separation, the parties arranged for the father to spend time with the child at the maternal grandfather’s home with the maternal grandfather and the mother both present, but, on the mother’s evidence, they “stayed a distance so that the child could spend time with” his father.
The father deposes that on 11 August 2018 he sent a text message to the mother advising that he would no longer be visiting the child at the maternal grandfather’s home under supervision as he considered the circumstances were having a negative and possibly long lasting detrimental effect on both the child and [C].
The mother deposes that the father continued to spend time with the child at the paternal grandfather’s home until an occasion on … 2018, the child’s birthday, on which occasion she says the father attended, handed the child a gift, and then left immediately. The father did not spend any time with the child between … 2018 and 24 March 2019, following the making of Orders on 20 March 2019.
The parties attended a family dispute resolution mediation with a family dispute resolution practitioner at the Counseling Centre L on 29 October 2018, unable to reach an agreement in relation to their parenting issues.
The father commenced these proceedings by filing an Initiating Application on 25 January 2019 seeking final Orders and an Application in a Case filed the same day seeking interim Orders. Both Applications related only to parenting issues for the child. The mother filed a Response on 1 March 2019 seeking interim and final parenting Orders relating to the child.
The proceedings were commenced in the Parramatta Registry of this Court and the first return date of 20 March 2019 came before Her Honour Judge Obradovic. Orders were made by consent (‘the interim consent Orders’) that pending further Order the child spend time with his father as follows:
a)On 24 March 2019 from 3:00PM out of 5:30PM;
b)Commencing 26 March 2019 each Tuesday from 5:00PM until 7:00PM;
c)Commencing 30 March 2019 each Saturday for four (4) occasions from 9:00AM until 5:30PM and thereafter commencing 27 April 2019 each alternative Saturday from 9 AM until 5:30PM; and
d)Commencing 3 May 2019 each alternate week from 6:00PM on Friday until 5:30PM on Saturday.
The interim consent Orders provided for changeovers to be the collection of the child by the father at the start of his time with the child and collection of the child by the mother at the conclusion.
The matter was transferred to the Sydney Registry and listed on 13 May 2019.
On mention of the matter before me on 13 May 2019 the matter was set down for an interim hearing at 2:15PM on 15 August 2019.
On 3 June 2019 the mother filed an Amended Response in which she added the issue of property settlement.
On 15 August 2019 I conducted an interim hearing in the matter and reserved judgment. After considering the matter I proposed to make Orders differing from the Orders sought by either of the parties in their applications before the Court on interim hearing. Accordingly, I caused a draft of the Orders I proposed to make to be provided to each of the parties, and I relisted the matter on 11 September 2019 for any further submissions by the parties in relation to the draft proposed Orders.
On 11 September 2019, the father appeared on his own behalf and the mother was present and represented by Mr Simpson of Counsel. Mr Simpson provided to me a written submission on behalf of the mother addressing each of the proposed draft Orders.
The parties’ applications
At interim hearing, the father sought the Orders set out in his Application in a Case filed 25 January 2019, those interim Orders being in exactly the same terms as all of the final Orders sought as to parenting in his Initiating Application filed that day.
The Orders sought by the father provided for a step-by-step progression of time with the child, the final step being when the child commences school attendance, which he is not due to do until 2022, by which time this matter will have had a final hearing.
In summary, the Orders sought by the father are as follows (though I note that I will not refer to all the Orders sought by the father):
a)The parties have equal shared parental responsibility.
b)That the child live with his mother.
c)That until 10 March 2020, the child spend time with his father as agreed in writing or failing agreement each alternate weekend from 6:00PM Friday to 8:30AM Monday and each alternate Tuesday from 5:30PM to 7:30PM.
d)That the child travel to Country B with his Father from 16 to 29 December 2019.
e)That from 11 March 2020 until the child starts school he spend time with his father each alternate weekends from 6:00PM Friday until 8:30AM on Monday and each alternate Tuesday from 5:30PM to the commencement of day-care or 8:30AM on Wednesday, and for one half of school holiday periods.
f)That upon the child commencing school he spend time with his father each alternate weekend from 6:00PM on Friday until the start of school on Monday and each alternate week from Tuesday 5:30PM until Saturday at 8:30AM, and for half of the school holidays.
g)That each occasion of weekend time between the child and his father occur when [C] is not in his mother’s care.
The father’s proposed Orders also made provision for parents to share the child’s birthday, Easter, and Christmas, and for the child to be in the applicable parent’s care on Father’s Day, Mother’s Day and each of the parent’s birthdays.
The father also proposed that changeover be effected by the parent with the child delivering the child to the residence of the other parent at the commencement of the other parent’s time.
The father also sought an interim Order under section 65Y(2)(b) of the Family Law Act 1975 (Cth) (‘the Act’) allowing each of the parents to remove the child from the Commonwealth of Australia for the purposes of a holiday provided they comply with certain conditions as to notice to the other parent and provision of full travel itinerary, copies of flight booking details, and provision of contact details for the child during travel.
In her Amended Response, the mother sought interim Orders summarised as follows (though I note that I will not refer to all the Orders sought by the mother):
a)The parties have equal shared responsibility.
b)That the child lived with his mother.
c)That the child spend time with his Father every Saturday from 9:00AM until 5:30PM and every Tuesday from 5:00PM until 7:00PM.
d)That time between the child and his father occur when [C] is not in his mother’s care. (I note that on strict interpretation this would seem to mean that the child’s time with his father would only occur each alternative Saturday and Tuesday).
e)That the child be in his mother’s care, if he would otherwise be in his father’s care at the relevant times, as follows:
i)From 9:00AM to 5:30PM (on a weekend) or 4:00PM to 6:00PM (on a weekday) on the mother’s birthday;
ii)From 9:00AM to 5:30PM on Mother’s Day; and
iii)From 3:00PM to 7:00PM (on a school day) or 10:00AM to 4:00PM (on a non-school day) on [C]’s birthday.
f)That the child be in his father’s care, if he would otherwise be in his mother’s care at the relevant times, as follows:
i)From 4:00PM to 6:00PM on the child’s birthday;
ii)From 9:00AM to 5:30PM (on a weekend) or 4:00PM to 6:00PM (on a weekday) on the father’s birthday;
iii)From 9:00AM to 5:30PM on Father’s Day;
iv)From 2:30PM to 6:30PM on Christmas Day; and
v)From 2:30PM to 6:30PM on Easter Sunday.
g)That the father collect the child at the start of his time and the mother collect the child at the end of his time.
h)That the father have a telephone or video call with the child twice per week between 6:00PM and 7:00PM on days that the child is in the care of his mother.
i)That each party inform the other in writing at least 28 days prior of an intention to travel with the child outside the state of New South Wales but within the Commonwealth of Australia and provide contact details.
j)An injunction to restrain the removal of the child from the Commonwealth of Australia and a Family Law Airport Watchlist Order.
The Evidence
The father relied on the following documents:
a)Application in a Case filed 25 January 2019;
b)Notice of Risk filed 25 January 2019. In that document the father asserted no risks;
c)His affidavit sworn 24 January 2019;
d)His affidavit sworn 14 March 2019; and
e)His affidavit sworn 13 August 2019.
The mother relied on the following documents:
a)Amended Response from 3 June 2019;
b)Notice of Risk filed on 1 March 2019. In that document, the mother asserted that there was family violence by way of verbal and emotional abuse by the father to the mother during the relationship;
c)Her affidavit sworn or affirmed on March 2019;
d)Her affidavit sworn 30 May 2019;
e)Her affidavit sworn 9 August 2019;
f)Written submissions prepared by her Counsel, Mr Simpson; and
g)Minute of Orders sought by the mother.
No documents were tendered and admitted into evidence as exhibits. At the time of the interim hearing, the parties had not attended any conference with a family consultant.
As indicated above, the parties sought to rely on multiple affidavits by each parent and accordingly had not complied with Practice Direction 2 of 2017. I granted leave to the parties to rely on their three (3) affidavits each. I have read and considered all of the evidence contained in each of the affidavits relied upon by the parties so far as the evidence is relevant to parenting issues, as some of those affidavits also contain evidence relevant only to the property settlement issues between the parties.
Much of the text contained in the father’s affidavit sworn by him on 14 March 2019 relevant to the parenting issues is in the nature of submissions. In his affidavit sworn 13 August 2019, the father gives detail of the routine followed by himself and the child on occasions when they have spent time together pursuant to the interim consent Orders.
The father details occasions on which he asserts the child was not given to him by the mother despite it being an occasion for the child to spend time with him pursuant to the interim consent Orders, and in particular, he asserts that the mother failed to comply with the interim consent Orders in that manner on 25 March 2019 at 9:00AM. However, the father is either referring to another occasion not occurring on that date, or, if he is correct as to the date of the incident, as of that date there was no obligations under the interim consent Orders for the mother to give the child into the father’s care on 25 March 2019, the first occasion of compliance with the interim consent Orders being at 9:00AM on Saturday 30 March 2019.
The father deposes that on four (4) occasions between 9 and 22 July 2019, the mother refused to comply with the interim consent Orders and provide the child to him to spend time. In line with the interim consent Orders, those occasions would be:
a)Tuesday 9 July 2019;
b)Friday 12 July 2019 to Saturday 13 July 2019;
c)Tuesday, 16 July 2019; and
d)Saturday 20 July 2019.
The issue between the parties for those occasions appears to have been that the father had changed his place of residence and advised the mother of the street address but had not advised her of the unit number. The balance of the father’s affidavit is once again in the nature of submissions.
In her affidavit sworn or affirmed on 1 March 2019, in paragraphs 8 to 16 and 35 to 37, the mother deposes to verbal abuse and emotional abuse by the father to her, referred to in her Notice of Risk filed 1 March 2019.
The definition of family violence in section 4AB of the Act provides that, for the purposes of the 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.[1]
[1] Family Law Act 1975 (Cth), s 4AB(1).
Examples of behaviour that may constitute family violence are given in subsection (2) of that section and include (but are not limited to):
(d) repeated derogatorily taunts …
(g) unreasonably denying the family member the financial autonomy that she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support.[2]
[2] Family Law Act 1975 (Cth), s 4AB(2)(d), (g), (h).
I have carefully considered all the evidence given by the mother in the paragraphs referred to in her affidavit and I find that the conduct by the father complained of by the mother does not constitute family violence.
On 20 March 2019, at the first mention of the proceedings before her honour Judge Obradovic, the mother consented to the interim consent Orders providing for the father to spend time with the child:
a)Each Tuesday from 5:00PM until 7:00PM;
b)Each alternative Saturday from 9:00AM until 5:30PM; and
c)Each alternative weekend from 6:00PM Friday until 5:30PM on Saturday.
The mother consented to those Orders and I note at that time she had placed before the Court the evidence contained in her affidavit of 1 March 2019. It is inherent in the interim consent Orders and in the case placed before the Court by the mother on interim hearing on 20 March 2019 that the mother did not consider the child to be at any risk in the father’s care for the times covered by those interim consent Orders.
In her affidavit of 30 May 2019 from paragraphs 73 to 96, the mother gives evidence of her observation of the child’s reaction to spending time with his Father pursuant to the March Orders between the first occasion on 24 March 2019 and the weekend occasion on Friday 3 May 2019 and Saturday 4 May 2019.
I have carefully considered all of that evidence in the light of the basis upon which the mother contends that the father’s time with the child should be reduced to daytime only each Saturday and some time each Tuesday.
In her material, the mother asserts that the child is not coping with the overnight occasion provided for each fortnight in the interim consent Orders. Specifically in paragraphs 79 to 81, the mother gives evidence relating to the occasion on 21 April 2019 when the child returned to her care having spent time with the father from 9:00AM on 20 April 2019 (Easter Sunday) until 9:00AM on 21 April 2019 (Easter Monday), the first occasion of overnight time for the child with his father under the interim Orders.
The mother deposes that on that morning the child told her:
…no sleep daddy[3]
[3] Mother’s affidavit sworn 30 May 2019, paragraph 79.
And that he seemed:
…very anxious and worried[4]
[4] Mother’s affidavit sworn 30 May 2019, paragraph 79.
The mother deposes she:
…noticed he looked very tired, grumpy and was very clingy.[5]
[5] Mother’s affidavit sworn 30 May 2019, paragraph 80.
On enquiring of the father how the child had slept the previous night, she deposes that the father advised her:
He slept from 6:45PM to 6 AM all night. He woke up and I noticed it was the best sleep he had in ages.[6]
[6] Mother’s affidavit sworn 30 May 2019, paragraph 80.
That seems an odd remark by the father given that he had not been in a position to observe the child after a night’s sleep since the parties separated in May 2018.
The mother deposes that on the evening of 21 April 2019:
[81]… it was very difficult to settle [X] to sleep he cried in distress saying “stay mama stay mama” it took me an hour to settle him in my bed, previously I would just put him down with his bottle in his cot and he would go to sleep. During the night he woke up at 12:30AM crying say [sic] “mama” I resettled him, but he woke again at 3:20AM saying “mama mama”. This happened again for the 3 following nights.[7]
[7] Mother’s affidavit sworn 30 May 2019, paragraph 81.
In paragraph 82 of the affidavit, the mother deposes that:
[82] On the 4 May 2019 when I collected him from [the father], he was again tired and clingy. It took me an hour to settle him for bed that evening. Crying to me “mama stay mama stay”. He woke during the night at 12:05AM and 3:40AM crying “mama mama”.[8]
[8] Mother’s affidavit sworn 30 May 2019, paragraph 82.
In paragraph 86 the mother asserts that:
[86] [X]’s behaviour has markedly changed especially since sleepover began. He is unsettled at all bedtimes, overly clingy with me, no longer separates from me easily and is showing signs of regressive behaviour.[9]
[9] Mother’s affidavit sworn 30 May 2019, paragraph 86.
The mother does not give specific examples of the behaviour referred to in that paragraph.
I also note that at the time of completing her affidavit of 30 May 2019, the child had had another occasion of overnight time with his father under the interim consent Orders, being an occasion on 17 and 18 May 2019. The mother does not give any specific evidence of behaviour following that occasion indicating that the child was not coping.
In the mother’s affidavit of 9 August 2019 she does not give any evidence of specific occasions or specific behaviours by the child that indicate that he is not coping with overnight time with his father.
By the time of the mother swearing that affidavit, and leaving out the occasion of 12 and 13 July 2019, the child would have been overnight with his father on seven occasions.
Between the affidavits of 30 May 2019 and 9 August 2019, the mother only uses specific evidence of behaviours by the child that she asserts indicate he is not coping with overnight time with his father for two (2) occasions, being those from when the child spent time with the father during the period 20 and 21 April and 3 and 4 May.
At this point I note that in paragraph 21 of the father’s affidavit of 24 January 2019 he asserts that:
At all times in our relationship [the mother] has suffered from depression. She has manage this by receiving psychiatric treatment.[10]
[10] Father’s affidavit sworn 24 January 2019, paragraph 21.
The mother responds to this in paragraphs 72 to 77 of her affidavit of 1 March 2019.[11] However, it is inherent in the Orders proposed by the father on both an interim and a final basis relating to parenting of the child that he does not consider that there is any element of risk to the child connected with mother’s mental health.
[11] Mother’s affidavit sworn 1 March 2019, paragraphs 72-77.
The Relevant Law
The Full Court and High Court have authoritatively discussed the approach to be followed in interim parenting hearings by reference to the legislative pathway.[12]
[12] See esp Goode & Goode [2006] FamCA 1346, Marvel & Marvel [2010] FamCAFC 101; MRR & GR [2010] HCA 4.
In Goode & Goode,[13] the Full Court suggested that in an interim application relating to parenting issues the Court should follow the framework set out in paragraphs 81 and 82 of that judgment:
[13] Goode & Goode [2006] FamCA 1346.
[81] In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
[82] In an interim case that would involve the following:
(a) Identifying the competing proposals of the parties;
(b) Identifying the issues in dispute in the interim hearing;
(c) Identifying any agreed or uncontested relevant facts;
(d) Considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) Deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) If the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) If the presumption applies and is not rebutted, considering making an Order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) If equal time is found not to be in the child’s best interests, considering making an Order that the child spend substantial and significant time as defined in s 65DAA (3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) If neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such Orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) If the presumption is not applied or is rebutted, then making such Order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) Even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.[14]
[14] Goode & Goode [2006] FamCA 1346, [81]-[82].
As is made evident in the cases, and in particular in Goode & Goode,[15] the statutory pathway applies in interim as well as in final hearings. In cases of disputed or contested evidence in interim proceedings, the Court should be cautious in making findings of fact.
[15] Goode & Goode [2006] FamCA 1346.
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders and the principles behind those objects. I have considered those objects and the principles behind those objects in formulating these reasons and the parenting Orders that result.
Section 60CA of the Act provides that in deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child or children as the paramount consideration.[16]
[16] Family Law Act 1975 (Cth), s 60CA.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the primary considerations set out in subsection (2), noting the weighting requirement in subsection (2A), and the additional considerations set out in subsection (3).[17]
[17] Family Law Act 1975 (Cth), s 60CC.
Section 61DA (3) provides that when making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order.
Pursuant to section 65DAA, if the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must first consider whether the child spending equal time with each of the child’s parents would be in the best interests of the child and reasonably practicable, and if it is so in the best interests of the child and reasonable practicable, consider making an Order for the child to spend equal time with each of the parents.[18]
[18] Family Law Act 1975 (Cth), s 65DAA.
If equal time is found not to be in the child’s best interests, or impracticable, or is found to be in the child’s best interests and practicable, but the Court considers and rejects equal time with each parent, as a result of consideration of one or more of the matters in section 60CC, then the Court must consider making an Order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents with whom the child does not live, on the same triple-step basis as for the consideration of equal time.[19]
[19] See MRR & GR [2010] HCA 4.
Under the combination of sections 60CA, 60CC, and 65D, if neither equal time nor substantial and significant time is considered to be in the best interests of the child, or is impracticable, or are considered to be in the best interests of the child and practicable, but the Court after considering making such an Order does not do so, then the Court may make such Orders in the discretion of the Court it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC.[20]
[20] Family Law Act 1975 (Cth), s 60CC.
The process is one involving the exercise by the Court of a judicial discretion.
As was said by the High Court in Bondelmonte & Bondelmonte[21] at paragraph 32 of the joint judgment of the bench:
[32] A parenting Order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the Court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. they involve value judgments in respect of which there may be room for reasonable differences of opinion [Norbis v Norbis (1986) 161 CLR 513 at 518] , as does the overall assessment of what is in the best interests of the child.[22]
[21] Bondelmonte v Bondelmonte (2017) 259 CLR 662, [32].
[22] Bondelmonte v Bondelmonte (2017) 259 CLR 662, [32].
In relation to the considerations in section 60CC the Full Court said in Banks & Banks:[23]
[47] As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
[48] It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. the fact such disputes are commonly dealt with in overcrowded Court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
[49] Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
[50] When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors. [24]
[23] Banks & Banks [2015] FamCAFC 36.
[24] Banks & Banks [2015] FamCAFC 36, [47]-[50]. See also Vanzin & Vanzin [2014] FamCAFC 245, [22]; Goode & Goode [2006] FamCA 1346, [68]; Sun Alliance Insurance Ltd v Massoud (1989) VR 8, 19 [36]-[43].
I will consider the relevant section 60CC considerations, then give attention to the requirements of section 61DA in relation to parental responsibility and what may flow from that on the legislative pathway, then consider and discuss the issues in this interim hearing, all in the light of my considerations of section 60CC.[25]
[25] Family Law Act 1975 (Cth), ss 60CC, 61DA.
Sub-section 60CC(2) sets out the primary considerations the Court must consider when determining what is in a child’s best interests. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents, and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.[26]
[26] Family Law Act 1975 (Cth), s 60CC(2).
Sub-section 60CC(2A) mandates that in applying the primary considerations, the Court is to give greater weight to the need to protect the child over the benefit of the child of having a meaningful relationship with both of the child’s parents.[27]
[27] Family Law Act 1975 (Cth), s 60CC(2A).
What is meant by a ‘meaningful relationship’ in section 60CC(2)(a) has been the subject of a number of leading cases. In Mazorski & Albright,[28] 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.[29]
[28] Mazorski & Albright[2007] FamCA 520.
[29] Mazorski & Albright [2007] FamCA 520, [26].
Kay J sitting in the appellate jurisdiction of the Court as a single judge in Godfrey & Sanders (an appeal involving an Application by a mother to relocate) [30] agreed with Dessau J in M & S (formerly E)[31] and said at paragraph 33:
[33] The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.[32]
[30] Godfrey & Sanders [2007] FamCA 102.
[31] M & S (formerly E) [2006] FamCA 1408.
[32] Godfrey & Sanders [2007] FamCA 102, [33].
And later, at paragraph 36 said:
[36]. It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.[33]
[33] Godfrey & Sanders [2007] FamCA 102, [36].
In Tait & Dinsmore,[34] Cronin J considered the distinction made by Kay J in Godfrey & Sanders[35] between an optimal relationship and a meaningful relationship and said:
[170] Kay J distinguish between the optimal relationship and the meaningful relationship. … The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that the children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.[36]
[34] Tait & Dinsmore [2007] FamCA 1383.
[35] Godfrey & Sanders [2007] FamCA 102.
[36] Tait & Dinsmore [2007] FamCA 1383, [170].
In McCall & Clark,[37] after referring to the matters quoted above from Kay J in Godfrey & Sanders,[38] the Court said:
[37] McCall & Clark [2009] FamCAFC 92.
[38] Godfrey & Sanders [2007] FamCA 102.
[118] It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a) one interpretation is that the legislation requires a Court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the Orders ultimately made (“the present relationship approach”);
(b) a second interpretation is that the legislature intended that a Court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c) the third interpretation is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, Orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
[119] We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a Court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a Court making appropriate Orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
[120] We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
[121] In coming to our conclusions we accept as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazsorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.
[122]In reaching these conclusions, we also consider the legislation requires a Court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft Orders to foster a relationship with one parent if this would not be in the child’s best interests.[39]
[39] McCall & Clark [2009] FamCAFC 92, [118]-[122].
It is beyond doubt, and it is inherently conceded by the father, that the child has a meaningful, a close, and loving relationship with his mother. Orders for the child to spend time with his father on an overnight basis as proposed by the father, from Friday to Monday each alternate week, would not impact upon the child’s meaningful relationship with his mother.
The mother does not seek to reduce the child’s time with his father (by removing the one overnight occasion per fortnight) on the basis that that occasion has a detrimental impact on the relationship between the child and his mother, but on the basis that she asserts that the child is not coping with the fortnightly overnight occasion.
That the child has a relationship with his father at the present time is supported by the evidence. The father was a day-to-day member of the household for the child from the time of his birth on … 2016 until the parents separated on 27 May 2018 (when the child was one year and … months of age).
On the evidence of both parties, the father assisted with the care of the child during that time, though the parties differ on the evidence as to the extent of that assistance. Nevertheless, it is open to find that some attachment, albeit a secondary attachment compared to the attachment with his mother, developed between the child and his father during that period of time.
The relationship between the child and his father was seriously interrupted between September 2018 and late March 2019 (that being the period during which there was no contact between the child and his father).
Following the making of the interim consent Orders on 20 March 2019, the father has been spending time with the child on Tuesdays, alternate Saturdays and alternate Friday to Saturday nights since 3 and 4 May 2019.
Though the mother gives evidence of unsettled behaviour by the child on his return from an overnight occasion during Easter (20 to 21 April 2019) and on 4 May, and gives evidence by way of generalised statements to cover the other occasions (but without giving evidence of particular behaviours on particular occasions), she does not give evidence of any concerning behaviours by the child on occasions when he is going into his father’s care or any other evidence that would indicate that there is anything other than a developing relationship between the child and his father.
Whether or not the relationship between the child and his father could yet be called a meaningful relationship is not able to be decided on the basis of the evidence available on the interim hearing.
To enable the child and his father to develop their relationship so that it is a meaningful relationship requires that:
a)The time between them be regular; and
b)That it be on an increasing basis from the one (1) overnight occasion per fortnight (under the current interim Orders) to longer overnight occasions, but without extending the length of those occasions beyond what is appropriate for the child at his age between now and the making final Orders either by consent between the parties or following a final hearing.
Besides the primary consideration of the benefit to the child of having a meaningful relationship with both of his parents, I must consider the other primary consideration being any need to protect the child from the physical or psychological harm of being subjected to, or exposed to, abuse, neglect or family violence.
The mother’s case is that the child is not coping with the current single overnight occasion per fortnight. She does not assert that there is or has been physical harm to the child at the hands of or whilst in the care of his father. She also does not assert abuse, neglect or family violence by the father other than that referred to above contained in her affidavit of 1 March 2019, in relation to which I have already found at paragraph 48 of these Reasons that it does not constitute family violence.
I take it that the mother asserts that there may be some psychological harm to the child in maintaining the single overnight occasion per fortnight with his father or by extending the overnight occasions beyond one (1) per fortnight. However, on the basis of my analysis of the mother’s evidence set out above I find that there is no current harm to the child from him spending one overnight occasion with his father each fortnight. I also find that there would be no harm to the child in spending a double overnight occasion with his father once per fortnight after he has completed six (6) months of the single overnight occasions.
In relation to the additional considerations under section 60CC(3)[40] which I must have regard in determining what is in the child’s best interests, I find as follows.
[40] Family Law Act 1975 (Cth), s 60CC.
I have commented above when discussing the child’s meaningful relationships with his parents about the nature of his relationship with each of them. It is essential that the child has sufficient opportunity to continue to develop his relationship with his father. In that respect, and noting the child’s age, it is often said that frequency is more important than quantity.
Accordingly, I find that it is appropriate to maintain the occasion on Tuesday each week when the child spends two (2) hours with his father (an Order proposed by each of the parties on the interim hearing) and to maintain the alternate weekend overnight occasions and increasing the alternate weekend overnight occasions to two (2) nights from November 2019.
The child and [C] are half siblings and the child has grown up with [C] all of his life. [C] is with his mother every second week and it is important that the half siblings are given as much time together as possible in those circumstances. I find that is appropriate to make an Order that the alternate weekend overnight occasions when the child is with his father occur on weekends when [C] is not living with his mother and is in his ([C]’s) father’s care.
Pursuant to section 60CC(3)(d),[41] I must consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or from [C]. A change of circumstances for the child proposed by the Orders sought by the mother is that he will cease to have an overnight occasion once a fortnight with his father. This will provide decreased opportunity for the child to develop his relationship with his father and ensure that the relationship is a meaningful relationship. I find that taking that course would have the likely effect of being to the detriment of the child.
[41] Family Law Act 1975 (Cth), s 60CC(3)(d).
If Orders are made as sought by the father, so far as those Orders are relevant to the period between now and final Orders being made following a final hearing, it would provide for the child to spend time with his father:
a)Each alternate weekend from Friday to Monday; and
b)Each alternate week from Tuesday to Wednesday; and
c)For one half of all school holiday periods even before the child starts his school attendance. That would involve at least one week in each of April, July and October and up to three (3) weeks in December/January.
I find that at the child’s age, between now and final hearing, the periods of time proposed by the father in relation to both alternate weekend time and school holiday time would be too long for the child to be away from his mother and therefore would likely have a detrimental effect on the child.
I have only limited evidence at the present time in which to consider the capacity of each of the parents to provide for the child’s needs, including his emotional and intellectual needs. On the other hand, I find that there is nothing in the totality of the evidence before the Court on interim hearing that could lead me to find that either of the parents is not capable of so providing for the child – the father for the limited amount of time that would apply even under the full extent of the Orders he seeks, and the mother for the full amount of time that the child would be in her care under the Orders that she seeks.
At the time of making interim Orders to which these Reasons relate, the child has reached three (3) years of age. An important consideration for the child’s best interests relates to the cultures of his mother and father.[42]
[42] Family Law Act 1975 (Cth), s 60CC(3)(g).
Whilst his mother’s lifestyle, culture, and traditions are those in which the child is immersed on a day-to-day basis, on his father’s side he has the advantage of his Country B cultural heritage. At the present time, the child can only be exposed to his Country B cultural heritage when in his father’s care because the rest of his father’s immediate family remain living in Country B. It will be to the child’s great advantage and certainly in his best interest to have opportunity to involve himself first-hand in Country B lifestyle, culture and traditions by travelling to Country B with his father and spending time with his extended family there and getting to know that country, its people, culture and traditions.
However, although on the evidence the father has solid links to Australia in relation to his employment and ownership of property, and there is no evidence from which it can be asserted that there are grounds to suspect an intention on behalf of the father to keep the child out of Australia and in Country B (or any other place outside Australia), a trip whereby the child accompanies his father to Country B for a period of two (2) weeks as proposed by the father, or even for a lesser time of one (1) week as the father indicated at the interim hearing he would accept, is too long a separation (at this stage) from the child’s mother. This is in circumstances where the child has only been spending on night per fortnight in his Father’s care between 3 May 2019 and now.
Accordingly, I find that it is not appropriate for an Order to be made in enabling the child to travel with his father to Country B at the present time. In making that finding I am conscious that Country B is a signatory nation to the Hague Convention on the Civil Aspects of International Child Abduction.[43]
[43] Hague Convention on the Civil Aspects of International Child Abduction, (entered into force 1 December 1983).
The evidence before the Court on this interim hearing does not lead me to find that the attitude of each of the parents to the child and to their responsibilities of parenthood is other than appropriate and in the child’s best interest. No risk is asserted by either parent.
Though there is some criticism of the mother’s attitude to her responsibilities of parenthood by the father in his affidavits (expressed by way of submissions rather than as evidence) and relating to the mother’s attitude to fostering the relationship between the child and the father, the mother’s cautious approach to overnight time between the child and his father evident in her proposed Orders (that overnight time cease to occur pending final hearing) does not draw criticism from me, being based (as far as I understand her evidence) on her genuinely held concern that the child may not be coping with the overnight time that has been occurring.
I have found that her concern is not sufficiently grounded in the evidence for me to find it is a basis for contracting the time between the father and the child or to refrain from expanding that time to include another consecutive night each fortnight.
Parental Responsibility
Section 61DA of the Act provides that when making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child and the child’s parents to have equal shared parental responsibility for the child.[44]
[44] Family Law Act 1975 (Cth), s 61DA(1).
The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child, or of another child who at the time was a member of the parent’s family, or has engaged in family violence.[45]
[45] Family Law Act 1975 (Cth), s 61DA(2).
When making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making the parenting Order.[46] The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for child.[47]
[46] Family Law Act 1975 (Cth), s 61DA(3).
[47] Family Law Act 1975 (Cth), s 61DA(4).
Each of the parents seeks an interim Order that they have equal shared parental responsibility for the child. On interim hearing, I have found that there is no family violence in this matter and, accordingly, the presumption for equal shared parental responsibility applies.[48] I do not consider that it is not appropriate in the circumstances of this matter for the presumption to be applied when making parenting Orders on an interim basis. Accordingly, and in effect by consent, I will make an Order that the parents have equal shared parental responsibility for the child.
[48] Family Law Act 1975 (Cth), s 61DA(1), (2).
As I will make an Order that the parents have equal shared parental responsibility for the child, I must consider the matters set out in section 65DAA of the Act.[49]
[49] Family Law Act 1975 (Cth), s 65DAA.
I must first consider whether the child spending equal time with each of his parents would be in his best interest,[50] and consider whether the child spending equal time with each of his parents is reasonably practicable.[51] If I consider it is in his best interest and reasonably practicable, I must consider making an Order providing for the child to spend equal time with each of his parents.[52]
[50] Family Law Act 1975 (Cth), s 65DAA(1)(a).
[51] Family Law Act 1975 (Cth), s 65DAA(1)(b).
[52] Family Law Act 1975 (Cth), s 65DAA(1)(c).
The child’s father lives in Suburb M and his mother lives in Suburb N, both southern suburbs of Sydney.
Neither parent has sought Orders on an interim basis that the child spend equal time with each of his parents. The father seeks a final Order to operate from when the child commences school attendance (which will occur in 2022) that provides in effect that the child spends equal time between his parents broken into four (4) blocks per fortnight.
On the basis of the matters considered in the primary considerations[53] and the additional considerations[54] under section 60CC detailed above, I cannot find that it would be in the child’s best interests to make interim Orders whereby he spends equal time with each of his parents. I need not, on that basis, consider the reasonable practicability of the child spending equal time with each of his parents.
[53] Family Law Act 1975 (Cth), s 60CC(2).
[54] Family Law Act 1975 (Cth), s 60CC(3).
As I will not make an Order or include a provision in the Order for the child to spend equal time with his parents I must consider whether the child spending substantial and significant time with each of his parents would be in his best interests.[55] I must also consider whether the child spending substantial and significant time with each of his parents is reasonably practicable,[56] and, if it is in his best interests and reasonably practicable I must consider making an Order to provide for the child to spend substantial and significant time with each of his parents.[57]
[55] Family Law Act 1975 (Cth), s 65DAA(2)(c).
[56] Family Law Act 1975 (Cth), s 65DAA(2)(d).
[57] Family Law Act 1975 (Cth), s 65DAA(2)(e).
What will be taken to amount to the child spending substantial and significant time with each parent is set out in subsection (3) of the Act,[58] and includes:
a)Days that fall on weekends and holidays;[59] and
b)Days that do not fall on weekends or holidays;[60] and
c)The time the child spends with the parents that allows the parents to be involved in:
i)The child’s daily routine;[61] and
ii)Occasions and events there are particular significance to the child;[62] and
iii)Occasions and events that are of special significance to the parent.[63]
[58] Family Law Act 1975 (Cth), s 65DAA(3).
[59] Family Law Act 1975 (Cth), s 65DAA(3)(a)(i).
[60] Family Law Act 1975 (Cth), s 65DAA(3)(a)(ii).
[61] Family Law Act 1975 (Cth), s 65DAA(3)(b)(i).
[62] Family Law Act 1975 (Cth), s 65DAA(3)(b)(ii)
[63] Family Law Act 1975 (Cth), s 65DAA(3)(c).
That subsection does not limit the other matters to which I can have regard in determining whether the time the child spends with his parents would be substantial and significant.[64]
[64] Family Law Act 1975 (Cth), s 65DAA(4).
The time that the mother proposes the child spend with his father does not amount to substantial and significant time (being daytime only on Saturdays and Tuesdays). The time that the father proposes the child spend with him in the period before final Orders can be made also does not amount to substantial and significant time except so far as that time would occur during school holidays.
For the reasons set out in my consideration of the primary and additional considerations under section 60CC set out above, I find that it is not in the child’s interest at the present time to spend substantial and significant time with his father (being time that extends beyond two (2) consecutive overnight stays). Accordingly, I will not be making an Order for the child to spend time with his father that would amount to substantial and significant time on an interim basis.
The time that the child will spend with his mother in the context of the Orders proposed by her, the Orders proposed by the father, and the Orders that I intend to make is well and truly substantial and significant time.
Parenting orders to be made on an interim basis
On the basis of my consideration of the primary and additional considerations in section 60CC, and in light of the evidence on interim hearing, I find that it is in the child’s best interest to make Orders that he live with his mother and that he spend time with his father on:
a)Tuesdays from 5:00PM to 7:00PM; and
b)Until 11 November 2019, each alternate weekend from Friday until 5:30PM on Saturday;
c)After 11 November 2019, each alternate weekend from 6:00PM Friday to 5:30PM on Sunday; and
d)With additional Orders relating to time with his parents on his birthday, his parents birthdays, father’s Day, Mother’s Day, at Christmas and Easter.
I further find that it is in the child’s best interest to make an Airport Watchlist Order and not to make an Order as sought by the father that would enable the child to travel with his father to Country B for a holiday prior to the making final Orders. I also find it is appropriate to make other Orders relating to exchange of information between the parents and restraining them from allowing the child to be exposed to any denigration of his parents.
Accordingly I make the Orders set out at the start of these reasons.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 4 October 2019
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