MULLIGAN & MULLIGAN

[2016] FCCA 3088

FEDERAL CIRCUIT COURT OF AUSTRALIA

MULLIGAN & MULLIGAN [2016] FCCA 3088

Catchwords:
FAMILY LAW – Interim parenting – common ground that present parenting arrangements for child will be impractical when child commences school in 2017 – best interests of child.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D

Cases cited:

Banks & Banks [2015] FamCAFC 36

Eaby & Speelman (2015) FLC 93-654
Goode & Goode (2006) FLC93 – 286
Marvel v Marvel [2010] 43 Fam LR 348

Applicant: MS MULLIGAN

Respondent: MR MULLIGAN

File Number: PAC 3447 of 2014

Judgment of: Judge Newbrun

Hearing date: 7 November 2016

Date of Last Submission: 7 November 2016

Delivered at: Parramatta

Delivered on: 2 December 2016

REPRESENTATION

Counsel for the Applicant: Mr Fowler

Solicitors for the Applicant: Super & Super Lawyers

Counsel for the Respondent: Ms Haughton

Solicitors for the Respondent: Family Focus Legal Pty Ltd

ORDERS PENDING FURTHER ORDER

1. That the child X born (omitted) 2011 (the child) live the mother.

2. That the child spend time with the father as follows:

   a)Until the child commences school, from Wednesday afternoon until the following Tuesday morning each alternate week, other than from 3:00pm Christmas Eve until 2:00pm Christmas day when the child shall be with the mother;

   b)During school terms, on each alternate weekend from after school on Friday (or 3:00pm if the child is not at school on that day) until 6:00pm on Sunday, with such weekend time to be extended:

   i)To commence after school Thursday (or 3:00pm if the child is not at school on that day) if the Friday is a public holiday; and

   ii)To conclude at 6:00pm Monday if the Monday is a public holiday, with such time to commence on:

   1.   The first Friday of the school term in odd numbered years; and,

   2.   The second Friday of the school term in even numbered years.

3. The child spend time with the Father during term 1, 2 and 3 school holidays commencing in April 2017, and 2018:

   a)From after school on the last day of each term (or 3:00pm if the child is not at school on that day) to 6:00pm on the day which is 12 days thereafter.

4. The child spend time with the father during term 4 school holidays (the “long summer school holidays”):

   a)In the long summer school holidays commencing in December 2016, 2017, and 2018;

   i)From after school on the last day of term 4 (or 3:00pm if the child is not at school on that day) to 6:00pm on the day which is 14 days thereafter; and

   ii)From 10:00am on the twenty-ninth day after the last day of term 4 until 6:00pm on the day which is 6 days thereafter.

   b)In the long summer school holidays commencing in December 2019 and each alternate year thereafter from after school (or 3:00pm if the child is not at school on that day) on the last day of term 4 until 10:00am on the middle day of the holidays.

   c)In the long summer school holidays commencing in December 2020 and each alternate year thereafter from 10am on the day that is 4 days prior to the middle day of the holidays until at 10:00am on the day that is 4 days prior to the first day of the next school term. [Noted, by way of example, if the next school term commences on a Monday then the child’s time with the Father will conclude at 10:00am on the previous Thursday].

5. If the child is not otherwise spending time with the Father, then the child shall spend time with the father on Father’s Day from 10:00am until 6:00pm.

6. The child shall spend time with the father at such other times as the parties may agree in writing from time to time.

7. The time that the child would otherwise spend with the Father pursuant to these orders is suspended at the following times to the intent that the child will be with the Mother during those times:

   a)From 3:00pm 24 December until 4:00pm 26 December in 2017 and 2019; and

   b)On Mother’s Day in each year from 10:00am until 6:00pm.

8. That for the purposes of changeovers:

   a)When the time the child is to spend with the parent with whom the child is not living (the “spend time with parent”) commences after school, the spend time with parent, or his/her nominee shall collect the child from her school promptly at the conclusion of the child’s school day;

   b)In any other event the parent with whom the child is living (“the live with parent”), or his/her nominee, shall deliver the child to the spend time with parent or their nominee at the commencement of time, and the spend time with parent or their nominee shall deliver the child to the live with parent or their nominee at the conclusion of time, with all such changeovers to occur at the (omitted) car park situated at the (omitted), (omitted).

   c)For the purpose of order 8a) and 8b) a “nominee” of either parent must be one of the following persons or such other person agreed to in writing by the other parent:

   i)Nominees for the Mother:

   1.   Mr S

   2.   Mr N

   3.   Ms S

   4.   Ms C

   (ii)Nominees for the Father:

   1.   Ms J

   2.   Mr L

   3.   Mr J

9. That the parties do all acts and things, and sign all documents to:

   a)Deliver the passport of the child to the Registry Manager of the Federal Circuit Court of Australia at Parramatta (“the Court”) for safekeeping within 7 days;

   b)Return the child’s passport to the Court for safekeeping within 7 days of the child’s return to Australia following the child having travelled outside of Australia.

10. That the Registry Manager of the Court is authorised to release the child’s passport to either the Mother or the Father upon that parent providing to the Registry Manager a copy of the communication by that parent to the other parent complying with Order 5 of the orders made by His Honour Judge Newbrun in the Federal Circuit Court of Australia at Parramatta on 2 November 2016.

11. That each parent be entitled to communicate with the child by telephone or other means of electronic communication when the child is with the other parent on the child’s birthday, on the birthday of the parent the child is not with at the time, and at other reasonable times not more often than every second day (commencing on the first day after the changeover day), and in relation to such communication:

    a)When the child is with the Mother, the Mother shall facilitate the telephone call from the child to the Father at the times specified in this order and otherwise on reasonable request of the child;

    b)When the child is with the Father, the Father shall facilitate the telephone call from the child to the Mother at the times specified in this order and otherwise on reasonable request of the child;

    c)Each party shall ensure that the child is able to freely access a telephone and call the other parent at any time requested by the child and shall allow the child to speak to the other parent in privacy and without distraction.

12. That, unless otherwise agreed in writing, the parties do all acts and things and sign all documents required to cause the child to be enrolled, and remain enrolled and attend as required, at (omitted) Public School from the start of term 1 in 2017 until completion of her primary school education.

13. That at the conclusion of the child’s time with the Father, the Father shall return to the Mother all clothing the child was wearing, or had in her possession, at the commencement of the time with such clothing that is not being worn by the child at the conclusion of the time to have been washed and dried by the Father before return.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3447 of 2014

MS MULLIGAN

Applicant

And

MR MULLIGAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 2 November 2016 the final hearing of the parties’ parenting proceedings commenced. The matter had been set down for three days. The proceedings were part heard by the end of Day 3 of the final hearing. Accordingly, the parties requested the Court to make an interim decision in relation to live with and time with issues, in relation to the subject child X, born (omitted) 2011, in circumstances where the child was due to commence kindergarten at the beginning of February 2017.

2. The parties’ live some 65 kilometres apart; the Father resides at (omitted) and the Mother at (omitted), in Sydney. It was common ground between the parties, that if the Court made an interim decision that the child lives with the Mother, that the child should attend on an interim basis, the (omitted) Primary School. Similarly, it was common ground that if the Court made an interim decision that the child lives with the Father, that the child should attend, on an interim basis, the (omitted) Primary School.

3. Since about February 2014 to date, the parties parenting arrangement has been that the child lives with the Mother 8 nights per fortnight and with the Father 6 nights per fortnight. It is common ground between the parties that when the child commences kindergarten at the beginning of February 2017, it will be impractical for this present parenting arrangement to continue.

4. At the commencement of the final hearing, the parties agreed to certain final parenting orders (exhibit A); one of these consent orders was that the parents have equal shared parental responsibility for the long-term care, welfare and development of the child.

The Competing interim proposals of the parties

1. The Mother’s interim proposals were set out in exhibit K (which had reference to certain proposed orders in exhibit C).

2. The Father’s interim proposals were set out in exhibit J.

Material relied upon by parties

1. The Mother relied upon:

   a)Her Affidavit’s filed 4 October 2016, 2 November 2016, and 7  November 2016,

   b)The Affidavit of her partner Mr S filed 4 October 2016,

   c)The Affidavits of her stepmother filed 4 October 2016, and 2 November 2016, and

   d)The Affidavit of Dr P filed 12 July 2016.

2. The Father relied upon:

   a)His Affidavit’s filed 11 October 2016, and 6 November 2016,

   b)The Affidavit of the Father’s partner, Ms J, filed 7 October 2016, and

   c)The Affidavit of Ms J’s former husband, Mr C, filed 7 October 2016.

Exhibits

1. There were numerous exhibits tendered during the proceedings, including the Family Report of Mr B dated 1 August 2016 (exhibit B).

2. The Court, for the purposes of this interim decision, has had regard to the Mother’s oral evidence.

3. The Court notes that the Father has not yet given his oral evidence.

4. The Court notes that there are numerous issues in dispute between the parties, such issues referred to in the above Affidavits and other material, including, for example, the disputed issue that the Father is inculcating racist attitudes in the child.

Chronology

1. (omitted) 1959 – maternal step grandmother born.

2. (omitted) 1977 – Father born.

3. (omitted) 1977 – Ms J born.

4. (omitted) 1978 – Mr S born.

5. (omitted) 1980 – Mother born.

6. (omitted) 2006 – parties commenced living together.

7. (omitted) 2010 – the marriage.

8. (omitted) 2011 – child born. The Mother takes maternity leave and is Child’s primary carer.

9. 16 May 2012 – separation.

10. 16 May 2012-September 2012 (about 4 months) – child lives with Mother and spends time with the Father alternate weekends; 3/14 nights. The Mother is still on maternity leave.

11. September 2012-December 2012 (about 3 months) – child spends time with the Father 4/14 nights.

12. October 2012-January 2013 – Mother returns to employment at a (employer omitted) in (omitted); she received some assistance from her Father and stepmother in caring for the child.

13. December 2012-February 2014 (about 14 months) – child spends time with the Father about 5/14 nights.

14. January 2013 – child commences Day Care at (omitted); she continues to attend this Day Care two days a week until October 2015.

15. February 2014-to date – child spends time with the Father 6/14 nights.

16. About July 2014 – Mother commences working part-time. Father tells Mother he has purchased a property in (omitted).

17. January 2016 – child commences Day Care at (omitted) at (omitted), 2 days each week.

Agreed or undisputed relevant facts

1. The Court refers to the chronological history of the Father’s time spent with the child post separation up to about February 2014.

2. In February 2014, the parties agreed to the child spending time with the Father 6/14 nights per fortnight.

3. The child currently attends an early learning centre at (omitted) each Tuesday and Wednesday, at which times she is in the Mother’s care.

4. The child currently attends another Day Care facility at (omitted) when she is in the Father’s care.

5. The Mother has lived with her partner, Mr S, since June 2013. They live at the Mother’s residence at (omitted). This residence is the home that the parent’s and the child lived in prior to the separation. The child has lived in this home since birth.

6. The Father has lived with his new partner, Ms J, and her 3 children A, 15, B, 12, and C, 10, since about January 2014. They live at (omitted), about 65 km from (omitted).

7. The maternal grandfather and the maternal step grandmother have cared for the child on a regular basis since the child’s birth. They live close to the Mother’s home and are retired.

8. The Mother presently works part-time as a (occupation omitted) with a (employer omitted) at (omitted) and works Monday to Thursday each week from 9:00am to 5:00pm. When the child commences school in 2017, the Mother will work Monday to Friday, from 8:45am to 2:45pm, which will enable the Mother to personally take the child to, and collect the child from, school each day.

9. The Father is employed as a (occupation omitted) by the (employer omitted) and works shift work on a rotating roster system (24/7). Paragraph 90 of the Mother’s Affidavit filed 4 October 2016 refers to the (employer omitted) website which states in relation to (employment omitted):

   (occupation omitted) may be employed to fill short term roles as required, or to undertake work that is irregular or intermittent, or to carry out work that is urgent or to deal with an emergency. They are required to work in a number of (employer omitted) or (omitted) in the Sydney metropolitan area and in selected regional centres and need to be available to work as part of a 24 hour roster.

10. The Father states that he presently has 4 “work timetable options” as referred to on page 4 of his Affidavit filed 11 October 2016; shift A from 6:00am to 2:00pm; shift B from 10:00pm to 6:00am; shift C from 2:30pm to 10:30pm; and shift D from 10:00am to 6:00pm. He confirms on page 5 of his said Affidavit that he is able to “choose” his shifts.

11. The Father states in paragraph 4  of his Affidavit filed 6 November 2016, that he “generally” undertakes weekend shifts so that he can have days off during the week to spend time with the child. He is aiming to continue this routine.

12. The Father told the Family Consultant that he works 40 hours per week on a shift work roster. He attempts, wherever possible, to swap shifts so that he has time at home when the child is living with him.

13. The child will commence kindergarten in February 2017.

14. The Mother has enrolled the child at (omitted) Public School for 2017. The school is a short drive from the Mother’s residence, and from her workplace. It is a short drive also from the maternal grandfather and step grandmother. The school is next door to the early learning centre where the child presently attends.

15. The Father has enrolled the child to attend at (omitted) Primary school for 2017. This school is a short drive from the Father’s residence. The Father’s place of employment is about 54 km away from his residence.

16. On 5 December 2015, prior to the Father receiving legal advice, he had agreed with the Mother that if he had not relocated from his current residence, to be in closer proximity to the Mother’s residence, by the commencement of the child’s schooling in 2017, that it would be fair to the child for the child to live with the Mother and spend each alternate weekend with the Father, from the conclusion of school on Friday afternoon to the commencement of school on Monday morning. At this time the Father had informed the Mother that if he did so relocate then the parties would implement an equal shared care arrangement for the child. After the Father obtained legal advice, and looking further into options to relocate closer to (omitted), he formed the view that the option of moving was not financially viable, and he believed it was in the best interests of the child to attend school close to his residence.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (supra).

2. In Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the problems associated with making findings on disputed 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 Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52.

   Consideration of the s 60CC factors that are relevant

   [46]. In order to determine whether it is in the child’s best interests to remain in Thailand pending trial, we must consider matters arising under s 60CC.

   [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.

   [51]. In our view, the undisputed facts here lead inexorably to the conclusion that it would not be in the child’s interests to be required to move to Australia pending the trial. In arriving at this conclusion we ought to record, without condescending to particulars, that it is arguable the primary judge was led into error in coming to a different conclusion by the way in which the case was presented to her.

   [52]. In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.

1. In Eaby & Speelman (2015) FLC 93-654 the Full Court (Thackray, Ryan & Forrest JJ) observed about Goode in disputed facts in interim hearings:

   ...that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

2. Section 60B of the Family Law Act 1975, Cth, (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

3. In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

4. Section 60CC of the Act provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

5. 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: section 61DA of the Act. 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: section 61DA (3).

6. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

7. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the court must consider making an order that the child spends substantial and significant time (as defined in section 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 section 60CC, or impracticable.

8. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the court may make such orders in the discretion of the court that 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: sections 60CA, 60CC, 65D.

THE BEST INTERESTS OF THE CHILDREN

Section 60 CC considerations

Subsection (2)(a) - The benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration

1. The child has a meaningful relationship with each parent and would benefit from a continuance of those relationships.

2. Since separation, in the absence of court orders, the Mother has agreed to, and maintained an increasing regime of time between the child and the Father, such that since about February 2014 to date, the child has spent 6 nights per fortnight with the Father. The Mother adduces evidence of invitations to the Father and his family to attend functions with the Mother and the child.

3. Historically, the child was in the Mother’s primary care from her birth ((omitted) 2011) until at least about February 2014.

4. Mr B, Family Consultant, prepared a Family Report dated 1 August 2016. He interviewed relevant parties on 13 July 2016 as well as the child. He ultimately formed a subjective view, based on his observations, of the child’s apparent closer relationship with the Mother than with the Father and his family, that the child should live with the Mother and spend time with the Father and his family. The Family Consultant stated that if such orders were made, additional time with the Father and his family should reasonably be considered (for example, additional weekends beyond alternate weekends (3 weekends per month), and a greater percentage of the short school holidays than the 50% proposed by the parties.

5. In respect to the Family Consultant’s subjective view, referred to above, it is helpful to set out some facts and observations of the Family Consultant referred to in the Family Report.

6. The child presented to the Family Consultant as a happy, well cared for, well adjusted, and articulate four-year-old girl. The Mother’s reported description of the child’s good level of age-appropriate development appeared consistent with her presentation (paragraph 64).

7. The Family Consultant noted that the child would not separate from the Mother to attend for an interview. However, when accompanied by the Mother to the interview, she readily engaged in the interview process to a very good age-appropriate level (paragraph 65).

8. The child stated to the Family Consultant that she lived with “mummy” and her step father, Mr S. When pressed by the Family Consultant, the child also stated that she lived at (omitted) with the Father, her stepmother, the Father’s fiancée, and her sister’s and brother. The child reported that she enjoyed living with both parents and the Father’s fiancée’s three children (paragraph 67).

9. The Family Consultant noted, in the context of his child parental observations, inter-alia, that the child’s play with the Father and his fiancée was a little less exuberant than was the play with the Mother and her partner (paragraph 75).

10. The Father’s proposed interim orders (exhibit J) are, inter alia, for the child to live with the Father, and, during school term times, that the child spend time with the Mother from 4:00pm Friday until before school Monday, for the first, second and third weekends of each month. (He proposes that the child spend time with the parties equally during school holiday periods).

11. This proposal, if acceded to by the Court, would represent a significant change in the child’s living arrangements and, noting the subjective view formed by the Family Consultant of the child’s apparent closer relationship with the Mother (which subjective view is consistent with the Mother’s historical primary care of the child, at least prior to about February 2014), carries the significant risk that the child will experience emotional disturbance and lead to her meaningful relationship with the Mother being detrimentally affected.

12. The Court notes that when the child commences school in 2017 the Mother will work Monday to Friday, from 8:45am to 2:45pm; the Court is of the view that her ability to spend leisure time with the child on alternative weekends during school term times is important for the child and will contribute to the maintenance of her meaningful relationship with the Mother.  (In this context, the Court has not overlooked the suggestions of the Family Report Writer at paragraph 92 of the Family Report in relation to possible additional time to be spent by the child with the non-live with parent).

13. The Court notes, in relation to this meaningful relationship primary consideration, that it is not without relevance that at least in early December 2015, before the Father obtained legal advice, he agreed with the Mother’s contention that it was “only fair to (the child)” that if he had not moved within a reasonable distance (to the Mother’s residence) by the commencement of the child’s schooling into 2017, that the child live with the Mother and spend each alternate weekend with the Father from the conclusion of school on Friday afternoon to the commencement of school on Monday morning.

14. At this interim stage, the Court is of the view that should the child, on an interim basis, live with the Mother, and spend during school terms, time with the Father each alternate weekend from after school on Friday until before school Monday, together with a greater than 50% percentage of the short school holidays, the child’s meaningful relationship with the Father (and her positive relationships with her step siblings and the Father’s partner) should not be detrimentally affected.

15. The Court gives significant weight to this meaningful relationship primary consideration.

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

1. Neither party submitted that there is such a need to protect the child.

2. The Court notes that the Mother alleges that in June 2012 the Father, over the telephone, threatened to physically harm the Mother, that the Father punched her in the arm in May 2013, and in about 2004 smashed a window (paragraph 57 of the mothers Affidavit filed 4 October 2016), these allegations are denied by the Father.

3. As to the Father’s allegations that the Mother drinks alcohol excessively, has certain mental health issues, and that he is not confident that the Mother can look after the child without her parent’s constant assistance, the Court notes the Father’s agreement with the Mother on 5 December 2015 that it would be only fair to the child that if he had not moved within a reasonable distance of the Mother’s residence, by the commencement of the child’s schooling in 2017, that the child live with the Mother and spend each alternate weekend with him, from the conclusion of school on Friday afternoon to the commencement of school on Monday morning. The Court also refers to the Mother’s recent carbohydrate deficient transferrin test of 29 August 2016 which was unremarkable.

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

1. The child has just turned five years old and at this interim stage the Court does not place any significant weight upon the child’s views.

3)(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)

1. The Court refers to its discussions above under the meaningful relationship primary consideration.

2. The child has a close relationship with the maternal grandparents and step grandmother. She has a close relationship with the Mother’s partner. She also enjoys a close relationship with the Father’s partner and her three children.

(3) c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity: to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. The evidence before the Court would indicate that both parents have taken up such opportunities.

3) ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. The evidence before the Court at this interim stage would appear to indicate that presently both parents fulfil such obligations to the best of their abilities. There is some dispute between the parties as to the parent’s respective past maintenance of the child.

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

1. The Court refers to its discussions above under the meaningful relationship primary consideration; at this interim stage, the Court is not satisfied that there would be any likely detrimental effect upon the child.

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

1. It is common ground between the parties that by reason of the fact that the parties lived about 65 km apart, and the child is due to commence school in 2017, that there is a practical difficulty in maintaining an almost shared care arrangement for the child.

(3)(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

1. At this interim stage, subject to the Court’s discussion above, under the meaningful relationship primary consideration, the Court is reasonably satisfied that both parents have such capacities.

3) (g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The Court refers to its discussions above under the meaningful relationship primary consideration.

3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

1. Not applicable.

3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. At this interim stage, both parents would appear to have demonstrated appropriate attitudes to the child, and to the responsibilities of parenthood.

3)(j) Any family violence involving the child or a member of the child’s family

1. The Court refers to the need to protect primary consideration discussion above.

3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the court in, or in proceedings for, the order; any other relevant matter

1. Not applicable.

3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. The Court refers to its discussion above under the meaningful relationship primary consideration, in respect to the child, in the context of the Father’s proposed interim orders.

3) (m) Any other fact or circumstance that the court thinks is relevant

1. Not applicable.

Equal shared parental responsibility: section 61DA(1) and (2)

1. The parties agreed to an order for equal shared parental responsibility in relation to the child.

Equal time

1. Again, it is common ground, between the parties that an equal time parenting regime, after the child commences school in 2017 is not practical nor in the child’s best interests, noting the geographical circumstances of the party’s respective residences.

Substantial and significant time

1. Should the child, on an interim basis, live with the Mother and spend, during school terms, time with the Father each alternate weekend from after school on Friday until before school Monday, together with school holiday time, and time on special days, such time should constitute substantial and significant time under the Act.

Summary

1. Evaluating the above discussed primary and additional considerations under section 60CC of the Act, the Court is of the view that it is in the best interests of the child to make orders as follows:

2. That the child X born (omitted) 2011 (the child) live with the mother.

3. That the child spend time with the father as follows:

   a)Until the child commences school, from Wednesday afternoon until the following Tuesday morning each alternate week, other than from 3:00pm  Christmas Eve until 2:00pm Christmas day when the child shall be with the mother;

   b)During school terms, on each alternate weekend from after school on Friday (or 3:00pm if the child is not at school on that day) until 6:00pm on Sunday, with such weekend time to be extended:

   i)To commence after school Thursday (or 3:00pm if the child is not at school on that day) if the Friday is a public holiday; and

   ii)To conclude at 6:00pm Monday if the Monday is a public holiday, with such time to commence on:

   1.   The first Friday of the school term in odd numbered years; and,

   2.   The second Friday of the school term in even numbered years.

4. The child spend time with the Father during term 1, 2 and 3 school holidays commencing in April 2017, and 2018:

   a)From after school on the last day of each term (or 3:00pm if the child is not at school on that day) to 6:00pm on the day which is 12 days thereafter.

5. The child spend time with the father during term 4 school holidays (the “long summer school holidays”):

   a)In the long summer school holidays commencing in December 2016, 2017, and 2018;

   i)From after school on the last day of term 4 (or 3:00pm if the child is not at school on that day) to 6:00pm on the day which is 14 days thereafter; and

   ii)From 10:00am on the twenty-ninth day after the last day of term 4 until 6:00pm on the day which is 6 days thereafter.

   b)In the long summer school holidays commencing in December 2019 and each alternate year thereafter from after school (or 3:00pm if the child is not at school on that day) on the last day of term 4 until 10:00am on the middle day of the holidays.

   c)In the long summer school holidays commencing in December 2020 and each alternate year thereafter from 10am on the day that is 4 days prior to the middle day of the holidays until at 10:00am on the day that is 4 days prior to the first day of the next school term. [Noted, by way of example, if the next school term commences on a Monday then the child’s time with the Father will conclude at 10:00am on the previous Thursday].

6. If the child is not otherwise spending time with the Father, then the child shall spend time with the father on Father’s Day from 10:00am until 6:00pm.

7. The child shall spend time with the father at such other times as the parties may agree in writing from time to time.

8. The time that the child would otherwise spend with the Father pursuant to these orders is suspended at the following times to the intent that the child will be with the Mother during those times:

   a)From 3:00pm 24 December until 4:00pm 26 December in 2017 and 2019; and

   b)On Mother’s Day in each year from 10:00am until 6:00pm.

9. That for the purposes of changeovers:

   a)When the time the child is to spend with the parent with whom the child is not living (the “spend time with parent”) commences after school, the spend time with parent, or his/her nominee shall collect the child from her school promptly at the conclusion of the child’s school day;

   b)In any other event the parent with whom the child is living (“the live with parent”), or his/her nominee, shall deliver the child to the spend time with parent or their nominee at the commencement of time, and the spend time with parent or their nominee shall deliver the child to the live with parent or their nominee at the conclusion of time, with all such changeovers to occur at the (omitted) car park situated at the (omitted), (omitted).

   c)For the purpose of order 114a) and 114b) a “nominee” of either parent must be one of the following persons or such other person agreed to in writing by the other parent:

   i)Nominees for the Mother:

   4.   Mr S

   5.   Mr N

   6.   Ms S

   7.   Ms C

   (iii)Nominees for the Father:

   1.   Ms J

   2.   Mr L

   3.   Mr J

10. That the parties do all acts and things, and sign all documents to:

    a)Deliver the passport of the child to the Registry Manager of the Federal Circuit Court of Australia at Parramatta (“the Court”) for safekeeping within 7 days;

    b)Return the child’s passport to the Court for safekeeping within 7 days of the child’s return to Australia following the child having travelled outside of Australia.

11. That the Registry Manager of the Court is authorised to release the child’s passport to either the Mother or the Father upon that parent providing to the Registry Manager a copy of the communication by that parent to the other parent complying with Order 5 of the orders made by His Honour Judge Newbrun in the Federal Circuit Court of Australia at Parramatta on 2 November 2016.

1. That each parent be entitled to communicate with the child by telephone or other means of electronic communication when the child is with the other parent on the child’s birthday, on the birthday of the parent the child is not with at the time, and at other reasonable times not more often than every second day (commencing on the first day after the changeover day), and in relation to such communication:

   a)When the child is with the Mother, the Mother shall facilitate the telephone call from the child to the Father at the times specified in this order and otherwise on reasonable request of the child;

   b)When the child is with the Father, the Father shall facilitate the telephone call from the child to the Mother at the times specified in this order and otherwise on reasonable request of the child;

   c)Each party shall ensure that the child is able to freely access a telephone and call the other parent at any time requested by the child and shall allow the child to speak to the other parent in privacy and without distraction.

2. That, unless otherwise agreed in writing, the parties do all acts and things and sign all documents required to cause the child to be enrolled, and remain enrolled and attend as required, at (omitted) Public School from the start of term 1 in 2017 until completion of her primary school education.

3. That at the conclusion of the child’s time with the Father, the Father shall return to the Mother all clothing the child was wearing, or had in her possession, at the commencement of the time with such clothing that is not being worn by the child at the conclusion of the time to have been washed and dried by the Father before return.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 1 December 2016