MOSEF & MOSEF

[2015] FamCA 374

FAMILY COURT OF AUSTRALIA

MOSEF & MOSEF [2015] FamCA 374

FAMILY LAW – CHILDREN – interim parenting – where previous interim orders – where substantial change in circumstances of one of the children on moving to the mother’s home – where issue for determination relates to the youngest child of the marriage aged four – where previous findings as to risk in both households – where mother has history of mental health issues including anger management, depression and delusions – where no evidence adduced by the mother as to her current mental health state or prognosis – where significant weight to be attached to the protective concerns for the child – where it is in the best interests of the child to remain primarily residing with the father but for the mother to have more frequent time with the child.

Family Law Act 1975 (Cth) ss60B, 60CA, 60CC, 61DA, 65DAA

Deiter & Deiter [2011] FamCAFC 82
Goode and Goode (2006) FLC 93-286
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405

APPLICANT: Ms Mosef

RESPONDENT: Mr Mosef

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

FILE NUMBER: PAC 4109 of 2014

DATE DELIVERED: 22 May 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 16 April 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Browns The Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Conte-Mills

SOLICITOR FOR THE RESPONDENT: Thurlow Fisher Lawyers & Consultants

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

Orders Pending Further Order

1. That the mother and father have equal shared parental responsibility for the children B born … 2003 and C born … 2010.

2. That the child C live with the father.

3. That the child C spend time with the mother as agreed between the mother and father in writing, with such writing to include SMS or email communication, and in default of agreement:

   a)Each alternate weekend from 3:00pm Friday to 9:00am Monday; and

   b)Each Wednesday from 9:00am to 5:00pm.

4. That for the purposes of changeovers the mother shall collect and return the child from the father’s residence.

5. That the father be restrained from leaving the child C in the care of any person under the age of 18 and in any event not in the care of Mr D.

IT IS NOTED THAT:

A.That otherwise Orders (1) and (5) to (14) inclusive made on 10 February 2015 continue.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4109  of 2014

Ms Mosef

Applicant

And

Mr Mosef

Respondent

REASONS FOR JUDGMENT

1. On 29 August 2014 the applicant father filed an application in the Federal Circuit Court of Australia seeking parenting orders in relation to the children of his marriage to the respondent mother.

2. At the time of filing the application there were four children of the marriage under the age of 18 years, E born in 1997, F born in 1999, B born in 2003 and C born in 2010.

3. The father sought orders that in summary provided for the mother and father to have equal shared parental responsibility for the children, that the children live with the father, that the eldest two children spend time with the mother in accordance with the wishes and that the younger two children spend defined time with the mother.

4. The mother filed a response on 2 October 2014 and a further amended response on 2 April 2015. In summary the mother sought final orders that the mother and father have equal shared parental responsibility, that the children live with the mother and that the father spend time with the children as agreed between the parties.

5. On 2 October 2014 the parties agreed to interim consent orders without admission. Those orders relevantly provided in summary that:

   a)The children B and C live with the mother;

   b)The child F live with the father and spend time with the mother each alternate weekend from 4:00pm Friday to 4:00pm Sunday; and

   c)That the father shall not engage in employment whilst the children B and C are in his care and that he shall not leave the children alone with F or the father’s son Mr D or the dog.

6. Otherwise an independent children’s lawyer was appointed to represent the children and proceedings were listed for interim hearing on 4 December 2014.

7. The parties’ respective interim applications for orders came before his Honour Judge Donald in the Federal Circuit Court of Australia with reasons for judgment being delivered and orders being made on 10 February 2015 (Mosef & Mosef [2015] FCCA 247).

8. In summary the Court ordered:

   a)That the child F spend time with the mother subject to his wishes;

   b)That the children are B and C live with the father and spend time with the mother each alternate weekend from 3:00pm Friday until 9:00am Monday;

   c)That within 14 days the mother attend upon her general practitioner to obtain a mental health treatment plan and thereafter comply with all recommendations of such treatment plan; and

   d)Various other specific issues orders in relation to non-denigration, mutual communication, restraint from physically disciplining the children and that the mother attend within 14 days upon an anger management counsellor.

9. The background to the commencement of proceedings between the parties is set out comprehensively in the reasons for judgment referred to above and will not be repeated here. It is sufficient to note that before the Court were allegations that the mother had perpetrated various acts of violence towards the children, consisting of both verbal and physical attacks, and against the father. The mother also made significant allegations of violence perpetrated against her and the children by the father.

10. Ultimately Donald J determined there was an unacceptable risk of harm to the children when living in the home of the mother but a lesser risk of harm in the household of the father.

11. The elder child the subject of the proceedings, E, had elected to live with his mother and no orders were made in relation to him.

12. On 24 February 2015 proceedings were transferred to this Court.

13. On 25 March 2015 the father filed a further application in a case seeking that a recovery order issue to facilitate the return of the child and B to his care.

14. On 25 March 2015 the mother filed a response to the father’s application in a case seeking orders that the two younger children B and C live with her.

15. The further interim applications were first before the court on 26 March 2015. With the assistance of Child Dispute Services, Children and Parenting Intake Assessment interviews were fast-tracked and the parties and the relevant children were seen on 30 March 2015 in the expectation that a Child Responsive Program memorandum would be available shortly thereafter.

16. Otherwise as a consequence of the continuing allegations by the parties against each other an order was made requesting that the Director-General of the Department of Family and Community Services intervene in the proceedings. Ultimately that request was declined by the Department.

17. On 2 April 2015 further interim orders were made by consent, in summary as follows:

    a)That previous orders in relation to the child B be suspended;

    b)That the child B live with the mother;

    c)That the child B spend time with the father as per her wishes;

    d)That without admission the father is restrained from leaving the child C in the presence of the father’s son Mr D at such times when the father was not personally caring for the child; and

    e)That within 7 days the parties do all things necessary to enrol in the Unifam Keeping Contact program.

18. The further interim applications of the parties were heard on 16 April 2015.

19. It is now common ground between the parties that the child B, now 12 years of age, has elected to live with her mother in circumstances where her older brother E is part of the mother’s household.

20. The remaining issue for determination is the circumstances of the youngest child C.

21. Once again in their affidavit evidence both the mother and father make various allegations one against the other.

22. The father asserts that the mother represents an unacceptable risk to the child C, aged four. The father asserts that the mother has in the past been physically and verbally abusive to the child and further asserts that her mental health circumstances represent a risk to the child should he live primarily in her household.

23. The mother for her part makes various allegations in relation to the father’s parenting capacity, in particular that the father has refused to cause the attendance of the child at various medical appointments, that he has left the child in his home to be supervised by his other children whilst he worked evening and overnight shift work several nights per week and has assaulted the child. The mother expresses concern that the father’s son Mr D has a history of drug use and abuse against his half-siblings including B and C and also presents as a risk.

The Family Consultant’s Memorandum

1. On 30 March 2015 the mother and father were interviewed by a Family Consultant and on the same day the children E, F, C and B were interviewed. The Child Responsive Program memorandum (Exh B) was of significant assistance in providing an objective overview of this family’s circumstances.

2. The various complaints by the child B were ventilated in the report and, as observed, the parties have agreed that she should reside with the mother pending further order.

3. The child F informed the Family Consultant that when his mother moved out of the family home upon separation he decided to remain living with his father. He did spend some time with the mother for a short period post separation but now had little contact with her. F complained that his mother would before separation strike him with a belt and a wooden spoon and on one occasion had bitten him on the arm. It was his clear wish to remain living with his father and apparently have a relationship with his mother on his own terms.

4. The child B, now in her first year of high school, presented to the Family Consultant as a confident and very talkative child. She had recently returned to G School after commencing to live with her mother. She reported that prior to separation her parents would argue every day and that on occasions the police attended their residence. On separation B moved with her mother and initially spent time with the father. She was perplexed as to why orders were made that provided for her to live with her father.

5. The child E was almost 18 years of age at the time of interview with the family consultant. He lived with the mother and reported that prior to separation there had been “a lot of dramas”. He further reported that his parents would argue, fight and shout, with the arguments sometimes being physical and his parents grabbing at each other but mostly his father grabbing the mother. He asserted that his father had hit his mother on occasions. He chose to move with his mother out of concern for her, stating “I have to take care of my mum”. He ceased having time with his father after an incident where the father took his younger brother C from the mother’s care and refused to return him.

6. E reported that he had a close relationship with C. He expressed concerns in relation to his half-sibling Mr D, describing him as “not a good person” and that his parents had found drugs in his room. E reported that prior to separation his mother had been the primary carer for he and his siblings.

7. E expressed concerns about his mother’s emotional regulation. He reported an incident where the mother accidentally broke F’s finger and another incident where the mother had “accidentally” poked F with a metal skewer causing a minor wound. He reported that his father used to hit him with a belt or stick and on one occasion had slammed his head into a door jam.

8. E expressed concerns about his father’s ability to adequately look after his younger siblings if they lived primarily with the father.

9. The Family Consultant observed heated discussion about court issues between F and B. The Family Consultant further observed that C was behaving negatively towards B.

10. In observation sessions the child C appeared relaxed and comfortable in his mother’s care. She was appropriately attentive throughout the session and there was no indication that the child was scared of his mother or did not enjoy spending time with her. At the conclusion of the observation session the child was reluctant to be separated from the mother, sitting right up next to his mother and saying that he did not want to leave. The mother endeavoured to escort the child to the child care room and with that the child clung to the mother and screamed, not wanting to separate from her.

11. On the Family Consultant explaining to the father the child’s reluctance to be separated from the mother, he complained that the mother had promised lollies to the child and then commenced a “highly negative tirade” about the mother giving the child sweets.

12. The child participated in the observation session with the father and the Family Consultant observes that the father engaged with the child in a developmentally appropriate level and was seen to be highly attentive.

13. In considering risk factors, the Family Consultant noted the father’s many allegations against the mother. The father informed the Consultant that he had never reported the mother’s allegedly abusive behaviour towards the children to anyone.

14. The Family Consultant noted the mother’s allegations that the father was frequently physically violent to her during the relationship, with her allegations of violence commencing only one month after marriage.

15. The father denied ever being physically violent towards the mother but conceded “I always defended myself…”. The Family Consultant observed that the father was highly focused about allegations that the mother had been unfaithful to him on multiple times throughout the relationship.

16. The father reported that he had experienced no difficulties with his mental health although after separation had attended upon a clinical psychologist for a period of time. The mother asserts that the father might suffer from schizophrenia and that he took unknown medication for his mental health.

17. For her part the mother denied any difficulties with her mental health but she had attended upon a counsellor, Ms H.

18. In evaluation, the Family Consultant reported significant concerns about the children’s risk of harm and well-being in both the paternal and maternal household. It may be, she opined, the case that neither parent is a suitable carer. Concern was expressed about the parties’ willingness to facilitate the children’s relationships with the other parent and that all of the children were becoming estranged from one of their parents and the children living in the other household. The children’s narratives clearly indicate, reports the Family Consultant, that the children have been directly exposed to parental conflict including access to information about court proceedings and allegations as to the mother’s alleged infidelity.

19. Information provided to the Consultant suggested that the mother had been the children’s primary carer prior to separation.

20. The Family Consultant expressed concerns about the care of the children, in particular C given his young age, while the father was at work.

Objective evidence

1. The medical records in relation to the family from the I Medical (Exh D) revealed the mother’s attendances upon Ms H, psychologist. The referral from the mother’s general practitioner dated 6 November 2014 seeks assistance “for management of adjustment disorder and depressive symptoms”.

2. The first report from Ms H attributes her symptoms to “domestic violence that has led to her breakdown of her marriage”. After a number of sessions a report dated 3 March 2015 from Ms H was provided to the referring general practitioner. The report notes:

   [Ms Mosef’s] symptoms appear to be related to her marriage breakdown as a result of domestic violence and associated issues. Reported symptoms included: low moods, sadness, miserable, lack of sleep, tearful/emotional, constant rumination, limited motivation, poor memory, reduced concentration, anhedonic, social withdrawal, lethargic agitation/irritability and headaches…

   The counselling sessions assisted her with symptoms of depression, stress and anxiety and she progressed well and is able to manage her condition better. However, [Ms Mosef] advised that she is still experiencing symptoms of depression and anxiety including symptoms of disrupted sleep and anhedonia due to losing custody of her children to their father and the ongoing court proceedings and would require further sessions…

3. The mother’s general practitioner again provided a referral to Ms H for support and management for anger management on 10 March 2015, presumably as a consequence of interim orders made as referred to above.

4. Records from the J College (Exh E) reveal the concerns held by the child B in relation to her stay with her father. These concerns included “being worried about her younger brother when her dad is not home, feeling scared, embarrassed in front of dad’s family and not taken good care of.”

5. The Department of Family and Community Services has been engaged with this family. The Department file (Exhs F and H) records various notifications with the records revealing that as at late March 2015 there had been nine contact records in the period from 26 May 2014 to 21 March 2015 including the mother reporting on 21 March 2015 that the child C may have been assaulted while in the father’s care and the mother further reporting on 2 October 2014 physical abuse of the children F and E and verbal abuse and threats by the father to the child B. Some notifications focus on allegations of the mother’s lack of emotional regulation and her physical and verbal abuse of the children and the father. There is a strong inference that notifications emanated from either the father or mother. The Department has taken no positive action in relation to any of the notifications.

6. The mother’s medical notes from the K Medical Centre (Exh G) reveal the mother’s attendances at that practice. On 13 June 2006 the mother complained of being physically assaulted by the father who “hit her to the head and her neck”. Observations of the mother included bilateral neck pain and upper chest tenderness. On 4 May 2009 the mother reported poor sleep, depressed mood, low self-esteem, irrational fear, panic attacks, compulsive behaviour, delusions, hallucinations, but no suicidal thoughts. It appears that management of these presenting symptoms included only advice, counselling and reassurance. On 31 January 2014 the mother presented again with a report of similar symptoms. The mother was referred to Ms L who appears to be a psychologist within the medical centre. Notes reveal a discussion about family conflict and relationship problems. On 19 February 2014 the notes reveal “discussed issues that have influenced her children’s behaviour: problems in marriage, violence in the home between her and step-son”.

7. On 27 June 2014 the mother again reported symptoms of poor sleep, early morning wakening, depressed mood, low self-esteem, irrational fear, panic attacks, compulsive behaviour, delusions, hallucinations, but no suicidal thoughts.

8. On 22 September 2014 the mother again presented to her general practitioner. Reasons for her attendance included “family dysfunction”. Subsequently as noted above the mother was referred to Ms H, psychologist.

Discussion

1. Fortunately the issues for determination now solely refer to the youngest child C.

1. In Deiter & Deiter [2011] FamCAFC 82, the Full Court (Finn, Thackray & Strickland JJ) said:

   61.      The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made… 

   62.      We are aware that in Goode and Goode (2006) FLC 93-286 the Full Court referred with some approval to the following statement made in Cowling v Cowling (1998) FLC 92-801 (our emphasis added):

   18. The Family Law Act does not draw any distinction between the principles to be applied in determining residence in interim and final proceedings. The essential difference between them is one of procedure. Interlocutory proceedings do not determine the long term rights and obligations of the parties and their children. The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties. Accordingly, in determining what orders should be made, the Court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties' respective proposals for the future. In some cases, it may also be necessary to consider child protection issues.

   63.      In our view, the proposition contained in the final sentence of the quotation is most important.  In any event, in Goode and Goode, the Full Court said:

   68.      In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

2. In Marvel & Marvel (No. 2) [2010] FamCAFC 101 the Full Court (Faulks DCJ, Boland and Stevenson JJ), 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).

   …

   122.     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.

   123.     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.

3. The relevant principles in relation to parenting and interim proceedings are well settled: Goode and Goode (2006) FLC 93-286.

4. Section 60B of the Family Law Act 1975 (Cth) (“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).

5. 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.

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

7. 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.

8. 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 [s 61DA(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 [s 61DA(3)]; and

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

9. If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 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.

Best Interests of the child

The Primary Considerations: s 60CC(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. This consideration attracts greater weight of the two.

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [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.

2. In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

3. C has continued to engage with both his mother and father post separation. Firstly in the care of the mother and subsequent to the initial interim orders referred to above in the care of the father, but spending each alternate weekend with the mother. The change in the circumstances of the child B has precipitated the present interim applications by the parties.

4. The child C’s engagement with both parents is well reflected in the Family Consultant’s memorandum. The Family Consultant has no reservations in relation to the child’s relationship with each of the parents and there is a significant inference that the child’s reluctance to separate from the mother is as a consequence of the mother and father no longer living together and the child’s young age. The child had been residing in the father’s primary care for almost two months before interviews with the Family Consultant and it is clear that his ongoing relationship with his mother has been maintained by the interim arrangements put in place on 10 February 2015 but that the child seeks her comfort.

5. It is appropriate to ensure the that the child continues to spend time with both the father and mother on a regular basis to facilitate his relationship with each of his parents being meaningful and valuable to the child. This consideration is indicative of the child spending substantial and significant time with the non-resident parent.

Section 60CC(2)(b) – need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. This consideration is essentially determinative of interim arrangements for the child. It is clear that there is significant evidence that the child has been exposed to family violence within the home of the mother and father prior to their separation. There are many and varied allegations by the mother and father against each other, the resolution of which will need to await a final hearing.

2. However an examination of the objective material in terms of the mother’s mental health circumstances raise a significant inference that she lacks emotional regularity, has anger management issues and is suffering from symptoms of depression. She has presented with these symptoms over a significant period and indeed was engaged with a psychologist prior to separation. Her mental health issues appear to be unresolved and the court has no consolidated evidence providing an accurate history, diagnosis or prognosis in relation to the mother’s psychological well-being in the context of her parenting capacity in relation to C.

3. Her circumstances are clearly not disentitling of her spending time with the child, particularly in circumstances where within her own household are two of the child’s older siblings that provide some self-protective mechanism for C.

4. The mother expresses concern as to the father’s ability to provide day to day care for C and that the child may be subject to some risk in the father’s household. The father’s conduct in relation to the child will be the subject of determination at final trial and it is put on behalf of the father that he is agreeable to an order that the child C not be left in the care of any person under the age of 18 and not left in the care of his son Mr D. The child is in pre-school four days per week, that in itself providing some level of reassurance.

5. This consideration is indicative of the child remaining in the father’s primary care but with the mother’s time with the child being expanded so that there is less of a time gap between occasions that the child spends with her.

The Additional Considerations: s 60CC(3)

1. The Court has had regard to each of the additional considerations set out in section 60CC(3) of the Act. The relevant considerations are as follows:

   a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   The child is of immature years and no weight could be afforded to any views if expressed.

   b)The nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);

   This is discussed above.

   c)…

   d)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 or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   There is no such issue in the context of the child’s present circumstances.

   e)…

   f)The capacity of each of the child's parents; and any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs:

   Amid the myriad of complaints by the parents, one against the other, they both seek orders that the child spend time with the other. An assessment of long term capacity will await final hearing

   g)…

   h)…

   i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   The background of this matter is set out above. An assessment of both parents will await final determination.

   j)Any family violence involving the child or a member of the child's family;

   The allegations and counter-allegations are referred to above. In the context of this interim hearing the factual basis cannot be determined.

   k)If a family violence order applies…..

   l)…

   m)…

Section 65DAA

1. The Court is satisfied that in all circumstances of this matter the presumption should apply. The allegations one against the other are untested and in reality the issue of parental responsibility only relates to the two youngest children. Both parents notwithstanding their interpersonal conflict should have a say in the long term decisions for these children at least pending further order.

2. In light of there being an order for equal shared parental responsibility, the Court is required to give consideration to whether the child spending equal time with each of the parents is in the best interests of the child and reasonably practicable, and if so, to consider making an order for such equal time.

3. For the reasons given above it is not in the child’s best interest for there to be equal time. The question of practicability thus need not be addressed.

4. The Court is then required to consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and reasonably practicable. Substantial and significant time is defined to include time that includes days that fall on weekends and holidays and days that do not fall on weekends or holidays and time that allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and/or parents.

5. For the reasons given above it is not in the best interest of the child to spend such time in the mother’s household as the concept involves the consideration of extended block time for holidays. As there are significant issues relating to the mother’s mental health, regular additional time for short periods is indicated. Thus the question of practicability thus need not be addressed.

6. Accordingly the orders to be made in relation to C fall to be determined by reference to the best interest considerations discussed above. It is in the child’s best interest that pending further order he remain primarily living with the father but spend more regular time with the mother.

7. Orders will be made accordingly.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 22 May 2015.

Associate:

Date:  22 May 2015