Needham & Shao
[2021] FamCA 576
•6 AUGUST 2021
FAMILY COURT OF AUSTRALIA
Needham & Shao [2021] FamCA 576
File number(s): SYC 5643 of 2020 Judgment of: ALTOBELLI J Date of judgment: 6 August 2021 Catchwords: FAMILY LAW – PARENTING – Application for interim orders in circumstances of part-heard final hearing – Where expert report available – Where expert evidence has been partially tested – Where expert recommends child spend more time with the father – Where mother’s visa status in Australia is uncertain – Where immigration experts have yet to undergo cross-examination – Orders made for child to have increased contact with father pending final orders – Orders made to facilitate mother’s application to remain in Australia pending resumption of the final hearing. Legislation: Family Law Act 1975 (Cth) Part VII, ss 60B, 60CA, 60CC, 61DA, 65DAA Cases cited: Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Number of paragraphs: 67 Date of last submission/s: 9 July 2021 Date of hearing: Heard on the papers Place: Sydney Counsel for the Applicant: Ms Gillies SC Solicitor for the Applicant: Hamish Cumming Family Lawyers Counsel for the Respondent: Ms Eldershaw Solicitor for the Respondent: Craddock Murray Neumann Counsel for the Independent Children's Lawyer: Ms Messner Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 5643 of 2020 BETWEEN: MR NEEDHAM
Applicant
AND: MS SHAO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
6 AUGUST 2021
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.X born … 2019 (“the child”) live with the mother other than at times where he is living with the father.
2.The child live with the father as follows:
(a)For a period of 10 weeks commencing 7 August 2021, from 8am to 4pm each Saturday and Sunday;
(b)Thereafter, for a period of eight weeks, from 8am Saturday to 10am Sunday each week;
(c)Thereafter, for a period eight weeks, from 8am Saturday to 12 noon Sunday each week;
(d)Thereafter, for a period of eight weeks, from 8am Saturday to 2pm Sunday each week;
(e)Thereafter, and until final orders are made, from 8am Saturday to 4pm Sunday each week.
Special Occasions
3.Notwithstanding any other order herein, the child spend time with his parents on special occasions as follows:
(a)On the child’s birthday, the child spend time with the parent with whom he is not living at that time, for a period of three hours commencing at 3pm and concluding at 6pm;
(b)On the father’s birthday, the child spend time with the father for a period as agreed between the parties or failing agreement for a period of three hours commencing at 3pm and concluding at 6pm;
(c)On the mother’s birthday, the child spend time with the mother for a period as agreed between the parties or failing agreement for a period of three hours commencing at 3pm and concluding at 6pm;
(d)On Father’s Day, the child spend time with the father from 8am to 5.30pm;
(e)On Mother’s Day, the child spend time with the mother from 8am to 5.30pm;
(f)With the mother from 8am Christmas Eve to 12 noon Christmas Day; and
(g)With the father from 12 noon Christmas Day to 4pm on Boxing Day.
Changeovers
4.All changeovers occur inside the premises of B Shop, C Street, Suburb D save for days when the premises are closed and in that event, changeovers are to occur inside McDonald’s Family Restaurant, C Street, Suburb F.
FaceTime
5.The mother facilitate a FaceTime call between the child and the father each Monday, Wednesday, and Friday between 7am and 7.30am, with the mother to instigate the call and guide and actively encourage the child to participate.
6.From the commencement of 2(b) onwards, the father facilitate a FaceTime call between the child and the mother each Saturday between 5pm and 5.30pm, with the father to instigate the call and guide and actively encourage the child to participate.
Communication
7.Each parent keep the other informed of the following whilst the child is in either of their care:
(a)Any medical problems or illnesses suffered by the child;
(b)Any medical appointments attended with the General Practitioner whilst in their care and within four hours of such appointment;
(c)Any specialist appointments scheduled for the child by either party within four hours of scheduling such appointment, including the name of the specialist, their area of speciality, the time, date and address of the professional rooms where the appointment will occur;
(d)Any medication that has been prescribed for the child including the regime for the provision of the medication;
(e)Any special dietary requirements of the child as recommended by a treating medical professional;
(f)Any enrolment at any preschool or day care; and
(g)Any social, school, or religious functions which the child may attend from time to time.
8.In the event of the child suffering a medical emergency requiring medical attention whilst in the care of either parent:
(a)The other parent is to be notified as soon as practicable and within 60 minutes of the medical emergency occurring;
(b)The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable and within 60 minutes of the medical emergency occurring; and
(c)The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and information retained by them upon request.
9.All non-urgent communications regarding the care of the child occur directly between the parents via the Our Family Wizard app (‘OFW’) which the parties will check on at least one occasion daily. In the event that there is any communication required of an urgent nature, the parties will exchange that information via SMS. All communications between the parties via OFW or SMS are to be conducted in a respectful manner and are to be confined to matters of the child’s care, including but not limited to his health, diet, sleep pattern or issues which are relevant to the care required to be taken by the party into whose care the child is coming.
Immigration Status
10.Within seven days of the date of these orders, the mother will use her best endeavours to make an application for an appropriate class of visa that will entitle her to legally remain within the Commonwealth of Australia for a period of not less than 12 months from the date of these orders.
11.Prior to any application being made or the mother having any communication with the Department of Home Affairs about any current visa application she might have on foot or any proposed visa application:
(a)The parties will jointly appoint Mr H of G Pty Ltd for the purpose of ascertaining the appropriate subclass of visa for which the mother can qualify or apply in order to best support the prospect of her remaining within the Commonwealth of Australia long term, or in any event for a minimum of 12 months;
(b)The parties will jointly make such an application with the mother ensuring that the father’s solicitors are provided with copies of any correspondence, forms, or other communications that she might have with the Department of Home Affairs before they occur;
(c)The mother is restrained from withdrawing, varying, or applying for any visa from the Department of Home Affairs without the express written consent of the father; and
(d)The joint appointment of a migration agent/lawyer will occur within five days of the date of these orders by way of a joint letter of the legal representatives of the mother and the father or the mother and father in person if they are no longer represented.
12.The joint letter appointing Mr H is annexed to these orders and marked “A” and will be signed by both the mother’s and father’s legal representatives within five days from the date of these orders.
13.In the event that no such application is available, then the mother, with the assistance of the migration lawyer, shall make representations to the Minister for Immigration requesting special consideration to remain in Australia legally for not less than 12 months from the date of these orders.
14.In the event that no such application for special consideration to the Minister for Immigration is available or the mother refuses to engage in the process, the migration agent/lawyer shall confirm this in writing to the father’s solicitor and the Independent Children’s Lawyer and leave be granted to the father’s solicitor and Independent Children’s Lawyer to relist the matter on short notice.
15.The cost of the application for a visa or application for special consideration to the Minister of the nature recommended by Mr H and any funds to be deposited into an account by way of a bond or deposit pending the determination of the mother’s visa will be borne in the first instance by the father.
Other
16.Leave be granted to the Independent Children’s Lawyer to relist the matter on seven days’ notice in the event of any difficulty with the interpretation or implementation of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Needham & Shao has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
This case is about a child, X, born in 2019. He will soon turn two years of age. He currently lives with his mother and spends time with his father. The father is the Applicant. He is a professional and is 43 years old. The mother is the Respondent. She is 34 years old and is a student, as well as being the full-time carer for the child. Both parents live in Sydney. The mother is an American citizen and her substantive application is to relocate with the child back to her home in the United States of America. The father opposes this. The substantive proceedings between the parents are part-heard before the Court. These reasons for judgment explain the orders that the Court has made for the child to spend time with his father pending final orders.
BACKGROUND
The mother moved to Australia in February 2018. The parents met and commenced dating in late 2018. Shortly after this, the mother fell pregnant and they commenced cohabitation, before getting married in 2019. By January 2020 the relationship was clearly difficult as the parents began sleeping in separate rooms. There are mutual allegations and denials of violence and abuse. By July 2020 it seems clear that the relationship was over. The father’s time with the child commenced. By August 2020 the mother and child had left the former matrimonial home. The father commenced proceedings shortly thereafter. In July 2020, a provisional, and then later an interim, Apprehended Domestic Violence Order (‘ADVO’) was made against the father protecting the mother. There is no evidence that a final ADVO was made.
At the time the proceedings commenced the father sought orders that the child live with the mother but spend time with him incrementally increasing to each weekend and then in the fullness of time to equal week-about time. The mother’s response was that she have sole parental responsibility, the child live with her, and that she be permitted to relocate to the United States of America. Since the proceedings commenced there have been issues between the parents about the father’s time with the child.
The matter was listed for final hearing before me for four days commencing 7 June 2021. The matter ran for five days and remains part-heard. On the last day of the hearing I was informed that the matter would require two more days. I accept that this is the case. It is possible that I can find that time this year, but I cannot indicate when at this stage. The mother and the father were extensively cross-examined, but I cannot rule out the possibility that they will need to give further evidence and be further cross-examined. On that basis, therefore, any impression that I have about the parents should be kept to myself until the conclusion of the evidence. However, it is common ground that this is a complex, high conflict relationship and high conflict, complex litigation. There is little trust between the parents. They struggle to communicate effectively. In order to decide the present interim application I had the benefit of the report of the single joint expert, Mr S, as well as some limited cross examination of him. In addition, there are complex issues surrounding the mother’s entitlement to remain in Australia. She has indicated in her evidence that if the Court does not allow the child to relocate with her to the United States she would prefer to remain with the child in Australia. Another complex and evolving issue is the impact of any travel restrictions arising from the COVID-19 pandemic.
The child currently spends time with his father each Saturday and Sunday for a period of five hours pursuant to orders made by consent on 1 September 2020, and recently spent additional make-up time with his father pursuant to orders made by consent on 1 May 2021.
THE COMPETING PROPOSALS
The father’s proposed interim order is contained in a minute of order provided to the Court on 17 June 2021 and marked as exhibit F2. He seeks an order for equal shared parental responsibility, and that the child live with his mother when not living with the father. The father proposed that, pending final orders, the child live with him as follows:
·for 10 weeks from 8am to 4pm each Saturday and Sunday;
·for a period of eight weeks from 8am on each Saturday until 12 noon on Sunday;
·for a further period of eight weeks from 8am on Saturday until 5pm on Sunday; and
·thereafter, from 8am on Saturday until 9am on Monday.
The mother’s proposed order is set out in her minute of order provided to the Court on 6 July 2021 and marked as exhibit M2. She proposes that until the child turns two on 15 September 2021, he spend time with his father each week from 8am until 4pm on Saturday and Sunday and then on each Monday, Wednesday and Friday from 7 to 7:30am by way of FaceTime call. Thereafter, for a period of eight weeks, in week one from 8am until 4pm each Saturday and Sunday, in week two from 8am until 12 noon on Friday, and FaceTime contact as described above. Thereafter, for a further period of eight weeks, it would be from 8am until 4pm each Saturday and Sunday in week one and then in week two from 3pm until 7pm on Thursday, as well as the FaceTime contact. Thereafter, it would be in week one from 8am until 4pm each Saturday and Sunday, and then in week two from 4pm on Thursday until 8am on Friday, with the above FaceTime contact.
The Independent Children’s Lawyer’s (‘ICL’) proposal was set out in a minute provided to the Court on 24 June 2020 and marked as exhibit Z2. The ICL proposed a four stage approach. In the first stage, until the child turns two, he would spend time with the father each week from 8am until 4pm each Saturday and Sunday, and from 4pm until 8pm each alternate Thursday. In the second stage, from 18 September 2021 for a period of eight weeks, the child will spend time with the father in week one from 8am until 4pm each Saturday and Sunday, and in week two from 4pm Thursday until 10am or the commencement of day care on Friday. In the next stage, and for a further period of eight weeks, the time in week one would be from 8am Saturday until 10am Sunday, with the Thursday to Friday overnight in week two as in the previous stage. Thereafter, the ICL proposed that the child spend time with the father in week one from 8am Saturday until 5pm Sunday, and again the same Thursday to Friday overnight in week two.
The minutes of order are reproduced in the first, second, and third schedules to these reasons respectively.
The main issue for the Court is to determine, on an interim basis, how quickly the father’s time with the child progresses, including to overnight time.
THE EVIDENCE BEFORE THE COURT
In support of his case, the Applicant relied on the following:
(a)His Initiating Application filed 18 August 2020;
(b)His Reply to Response for Final Orders filed 25 February 2021;
(c)His Affidavit filed 28 May 2021;
(d)Affidavit of Ms J filed 28 May 2021;
(e)Affidavit of Ms K filed 28 May 2021;
(f)Affidavit of Ms M filed 28 May 2021;
(g)Affidavit of Mr P filed 28 May 2021;
(h)Affidavit of Mr N filed 28 May 2021;
(i)His Financial Statement filed 2 June 2021;
(j)His Case Outline document filed 4 June 2021;
(k)Written submissions received 17 June 2021, marked as exhibit F1;
(l)Minute of interim orders sought, received 17 June 2021, marked as exhibit F2;
(m)Submissions in reply to the ICL received 26 June 2021, marked as exhibit F3; and
(n)Submissions in reply to the mother received 9 July 2021, marked as exhibit F4.
In support of her case, the Respondent relied on the following:
(a)Her Notice of Risk filed 1 September 2020;
(b)Her Amended Response to Initiating Application filed 6 November 2020;
(c)Her Affidavit filed 27 May 2021 and corresponding exhibit bundle;
(d)Her Financial Statement filed 31 May 2021;
(e)Affidavit of Mr H filed 28 May 2021;
(f)Affidavit of Ms Q filed 31 May 2021;
(g)Her Case Outline document filed 4 June 2021;
(h)Written submissions dated 6 July 2021, marked as exhibit M1; and
(i)Minute of orders received 6 July 2021, marked as exhibit M2.
In support of her case, the ICL relied on the following:
(a)Child Dispute Conference Memorandum of Mr R dated 1 September 2020;
(b)Single expert report of Mr s dated 9 April 2021;
(c)Written submissions dated 24 June 2021, marked as exhibit Z1; and
(d)Proposed interim orders received 24 June 2021, marked as exhibit Z2.
Various documents were tendered to the Court during the final hearing and marked as exhibits R1, and A1 to A18. The Court also had the benefit of the evidence given under cross-examination by the father and the mother, and the partial cross-examination of the expert witness, Mr S.
THE APPLICABLE LAW
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(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).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)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.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)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.
(4)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 the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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;
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(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;
(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;
(e)the practical difficulty and expense of a child spending time with and communicating with a 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;
(f)the capacity of:
(i)each of the child's parents; and
(ii)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;
(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;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)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
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(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:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode (2006) FLC 93-286 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
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.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
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.
OUTLINE OF REASONS FOR JUDGMENT
This interim decision is largely formulated by reference to the expert evidence on the basis that it is the only independent and expert evidence before the Court. For reasons articulated above, whilst it may be possible, and indeed necessary, to refer to the evidence of the parents, the Court will desist from making findings in circumstances where the matter is part-heard, and there is a real possibility that each parent will need to give further evidence. Accordingly, the single joint expert report of Mr S will be considered in detail, as will the oral evidence that he has given in cross-examination so far.
THE REPORT OF MR S DATED 7 APRIL 2021
Mr S had the benefit of access to all the documents that had been filed by the parties to the date of his interviews in February 2021, a list of the orders made, the Child Dispute Conference Memorandum dated 1 September 2020, and a vast array of subpoenaed documents. He met with each parent in their respective homes and observed each parent with the child during those home visits.
When the child was observed in the company of his father, he was observed to settle quickly, engage easily and interact warmly with his father. At paragraph 62 Mr S observed the child’s time in the company of the father to be “…unequivocally positive”. He observed the abundance of physical affection, the interaction between father and son, and what he described in paragraph 63 as the child’s “sense of confidence and trust” in his father. He made the following observation at paragraph 63:
He was appropriately wary of me as a stranger, and maintained close physical proximity to his father, whom he used as a safe base. At one point, his father left to collect something from upstairs, in response to which X brought himself to the base of the stairs waiting for his father's return and immediately lifted up his arms to his father. This kind of “repair” to a brief rupture to the relationship is very reassuring and suggestive of psychological health in that relationship.
Mr S then concludes at paragraph 64 as follows:
At an observational level, I would describe X as relating easily, warmly and reciprocally with his father. Together they shared an abundance of non-verbal communication. There was a sense of familiarity, comfort and a spontaneous interaction. X seemed very comfortable in his father's environment, and confidently explored; Mr Needham conveyed to X much in the way physical contact, comfort, kissing, rubbing of his head, hugs and cuddles, all of which were reciprocated by X. I was left with the clear impression that Mr Needham was able to read X's needs, anticipate his wants, and respond to his wishes; they seemed to be very much in tune and connected. X showed a good balance of both exploring and reconnecting with his father; he seemed to enjoy the rough-and-tumble quality to the interaction with his father.
Observations were conducted of the child with the mother. Unsurprisingly, these observations were unremarkable in that the child interacted with his mother easily, effortlessly and warmly. From the Court’s perspective, there was little doubt that the mother had been his primary caregiver as was evident from their observed interactions.
Mr S observed communication between the parents to be highly problematic. This observation is consistent with the evidence before the Court.
The summary of the report commences from paragraph 76. It must be remembered that the primary focus of the report was the final application for relocation, and not an interim application for more time with the father. Nonetheless, there are opinions that inform the determination of the present dispute. At paragraph 76, for example, there are the following insights:
Mr Needham and Ms Shao have had an extremely eventful relationship. Not only did it develop quickly and intensely, but the unravelling of the relationship was equally significant. They have rapidly escalated to a high conflict separation, showing all the features thereof. It is worth highlighting that high conflict separations show remarkably similar qualities, typically entail an external locus of control, that is, that one or other of the parents justify their actions and reactions on the basis of how they are perceived to have been treated by the other, such that there is never actual ownership of their own behaviour. Equally common in such high conflict separation is an over reliance upon emotional facts, that is, confusion about what one or both parties believe to be the facts, rather than an actual emphasis on what actually occurred.
Mr S observes at paragraph 77:
These sorts of cases are best dealt with by a reliance not on the emotional facts but the actual testable fact pattern in order to obtain a clear picture and pattern of behaviour…
At paragraph 78 there is a helpful explanation of parental behaviour in a case like the present one:
High conflict individuals tend to perceive threat and danger in their interactions with others, react aggressively or defensively, that inevitably invites a similarly negative and hostile response back, that further heightens their sense of vulnerability and the attack that in turn justify their aggressive reaction. The cyclic nature of this interaction is evident in the actions and reactions of both Mr Needham and Ms Shao, and so the cyclic nature of the conflict not only continues but escalates. This type of interaction is common place in Family Law disputes, but amplified substantially in matters entailing relocation.
He noted that both parents are driven by fear and anxiety, and to a certain extent this is reflected, the Court observes, in the competing proposals for time.
At paragraph 89 he answers the question asked about the quality of the child’s relationship with each parent. The mother was described as “unquestionably” the child’s primary attachment figure upon whom he is the most dependent and reliant.
In relation to the father, Mr S states:
There can be no confusing that X has made an attachment to his father, perceives him to be a safe, secure and predictable figure in his life, interacts with him in a manner that is warm, confident and reassuring, goes to him for comfort at times of stress, with all the indications being that notwithstanding what may have transpired, that the relationship between X and his father is developing and showing all the indications of being on a solid base.
When asked a specific question about the impact on the child, based on age and development, of relocation, Mr S makes some pertinent comments in the present context. He observes, for example, “In order for X to consolidate his relationship with both parents [he] requires consistent, regular, frequent and increased time in their care.” He then reiterates shortly after this statement: “The difficulty is, that because of his age, X will need regular, frequent and consistent contact.” He acknowledged, however, that any difficulties that have been experienced with current visitation arrangements are likely to continue into the future. He was not confident about the parents’ capacity to enter into a cooperative, easy, flexible, inclusive, and respectful, child-centred parenting time arrangement.
In the concluding comments of his report, Mr S makes a number of relevant observations. For example:
105. In this regard, his parents view each other quite differently. Ms Shao perceives Mr Needham to be a risk to X, that X needs to be protected, and that Mr Needham's psychological functioning will intrude upon the psychological functioning of X, and so protective measures need to be implemented. Mr Needham obviously has concerns regarding the actions of Ms Shao, but was able to acknowledge that given the presentation of X, that she must be parenting at a high level, that he was well cared for, and that all aspects of his development appear to be progressing unremarkably.
106. Notwithstanding how they might feel, it is my observation that both parents are attuned to X and his needs, that both seem motivated to do what is best for him, but they are simply unable to overcome their historical and ongoing problems. They view each other with suspicion and derision; they question the intent and motivation of the other parent, and believe that that parent is not acting in the best interests of their child. They view the situation from diametrically opposing perspectives, and it is not likely that these perspectives will change.
…
112. X clearly does perceive his father as a familiar, safe, secure and important adult in his life, and there is the fundamental foundation to that relationship developing. It would need to be understood that in the circumstances of X remaining in Australia, that the extreme likelihood is that the relationship between Mr Needham and Ms Shao will not improve, that they will likely have to parent in parallel, and that transition points using childcare, kindergarten, and then school are likely to be of the greatest assistance. The fundamental underpinning of concern from Ms Shao will not change, both in terms of her concerns regarding Mr Needham and exposure of X to his father and her perception of his pathology, and it is likely therefore that she will to continue to perceive Mr Needham as a source of threat and danger, both to herself and to X.
Mr S’s oral evidence
Mr S was cross-examined, but only by counsel for the ICL, and by senior counsel for the father in part. Cross-examination of the expert was incomplete by the end of day five of the hearing and the Court is mindful that counsel for the mother has not yet had the opportunity to cross-examine Mr S. Nonetheless, the father’s senior counsel was able to at least put a version of his proposal to the expert. Mr S reiterated that the child has a good, strong relationship with his father, and agreed that more time enables that relationship to be built on. He agreed that it was time to start accelerating the child’s time with his father. If the Court were to order on a final basis that he lived with his father, then increased time would prepare him for this major change. If the Court were, however, to permit relocation then it was important for the child to have as much time with his father before he leaves. Thus, Mr S supported that the child spend increased time with the father, irrespective of the final outcome as to relocation.
Mr S indicated that, from a developmental perspective, the issue of increased time, including overnight, was not difficult. Three times he described the child as resilient. In his opinion, the earliest time at which overnight could be introduced was between the age of 24 to 27 months. He described the rationale for this as follows (Transcript 11 June 2021, p 23 lines 5-17):
[Ms Gillies:] What are we looking at, in terms of their development, that pegs it at 24 months?
[Mr S:] Really it’s about 30 months. What happens in the first 30 months of a child’s life is the child, neurologically and developmentally, is able to establish an internal representation of his and her mum and dad. So they carry them on the inside, so they don’t need to see them all the time. And that’s really got a lot to do with neurological development. The ability to sustain a memory. So what you see, for example, is that children, as they develop language, are able to use time-related concepts – “later”, “tomorrow”, “sleep” and “work” – to help understand the coming and going. So, if you work from the presumption that most kids, by about 30 months of age – they have this saved picture on the inside, so that when their mum or dad goes to the bathroom it doesn’t mean they’re disappearing forever; it just means they’re going somewhere and they’re coming back. And they don’t need to be reassured. That is a – usually – good time to start extending the overnight stays.
It is clear that the context of this evidence was extending the overnight time, not initiating it. Mr S accepted that under the current spends-time-with arrangement the child has experienced separation and reunification with his mother. In terms of a framework for introducing overnight time, Mr S thought that it could start with, for example, Saturday overnight to Sunday morning, then extending to Sunday lunch, and then extend to Sunday evenings. He had no issues with the immediate increase in time to 9am to 5pm on Saturdays and Sundays, for a period of 10 weeks.
The Court accepts Mr S’s evidence but notes that the challenge for the Court is how to implement this expert evidence in the context of a high conflict parenting dispute.
DISCUSSION
It is important to recognise that the child has been spending time with his father on both days each weekend for a considerable period of time. This arrangement reflects his life with his parents. To the best of the Court’s recollection, the mother has never expressed concern about the time occurring each weekend. Indeed, weekly time on both Saturdays and Sundays is proposed by her.
The evidence of the expert was that he saw no concerns for the child if he were to spend time with his father between 9am and 5pm on Saturdays and Sundays for a period of 10 weeks. Of course, no one proposed 9am to 5pm on an interim basis; everyone proposed 8am to 4pm. That is the order that will be made and will represent stage I of this child’s time with his father. It is to commence on the first weekend after these orders made. The mother also proposes FaceTime calls on Monday, Wednesday and Friday between 7 and 7:30am. Whilst this is not proposed by either the father or the ICL, there seems no reason not to make this order and indeed to reciprocate it when the child commences overnight time with the father. It will give the father the opportunity to have some form of midweek contact with the child in a way that does not conflict with his work commitments, as well as assist the child and mother in acclimating once the child starts spending overnight time with the father.
Stage II will be for eight weeks. That time period is a common theme of the proposed orders.
The mother proposes that the only additional time will be from 8am until 12 noon on Friday. The rationale for this is difficult to understand. The mother, herself a law student, knows that the father is a barrister whose livelihood is substantially dependent on attendance at Court on behalf of clients. This makes midweek time problematic, other than during periods when the father is not working due to leave, Court vacation etc. Whilst the proposal is welcomed, it is impractical, and thus cannot be made.
The father proposes that the child’s time progress to overnight such that he spends time with the father from 8am on Saturday until 12 noon on Sunday.
The ICL proposes the introduction of overnight time but from 4pm on Thursday until 10am or the commencement of day care on Friday.
The Court accepts that the progression to overnight time in stage II is broadly consistent with the expert evidence, as the child will be 24 months by the time stage II is implemented. Introducing this time midweek, even in the manner proposed by the ICL, will be potentially problematic. The father’s work commitments are unpredictable. The clients, counsel and solicitors working in this case have experienced firsthand that sometimes Courts sit early and finish late. Mr S suggested that overnight time be introduced gradually and incrementally. Accordingly, during stage II, the child’s time will commence from 8am on Saturday and conclude at 10am on Sunday.
Stage III will also be for eight weeks.
The mother proposes additional time from 3pm to 7pm on Thursday, but drops 8am to 12 noon Friday. The rationale for this is unclear. The problems the Court has identified with midweek time remain.
The father proposes that the child live with him from 8am on Saturday until 5pm on Sunday.
The ICL proposes 8am Saturday until 10am Sunday, in addition to the time initially proposed for stage II.
Consistent with the evidence of the expert, in stage III the child’s time with the father will be increased incrementally, such that he spends time with his father from 8am on Saturday until 12 noon on Sunday.
Stage IV will continue until the making of orders following the conclusion of the final hearing.
The mother proposed the introduction of overnight time from 4pm Thursday until 8am Friday. The mother thus concedes the appropriateness of overnight time from stage IV.
The father proposes the progression of overnight time from 8am Saturday until 9am on Monday.
The ICL proposes that the child spend time with the father from 8am Saturday until 5pm Sunday in alternate weeks, in addition to the fortnightly Thursday to Friday overnight time proposed in stage II.
Consistent with the evidence of Mr S, the Court will order the child’s time to increase from 8am on Saturday to 2pm on Sunday for the first eight weeks, and thereafter from 8am on Saturday to 4pm on Sunday.
A number of other matters are raised by the competing proposals.
In relation to changeover, the father proposes the continuation of the existing arrangements for changeover at a local café except for when the premises are closed, in which case changeover shall occur at a local McDonalds family restaurant. The mother proposes changeover occur at a local café except when changeover can take place from the child’s day care. If the café is closed, however, then changeover shall take place in the foyer of the local police station. The ICL proposes that it be at a local McDonalds family restaurant when changeover is not at the day care the child attends. The fact is that there is ample evidence indicating the changeovers have proceeded at a local café that is well-known to the parties and, importantly, to the child. It is possible, the Court recognises, that the café may not be open at all times. The alternative proposed by the father of the local McDonalds family restaurant is the Court’s preference over a local police station. The need for a changeover at a police station has not been established on the evidence that the Court has heard so far. The order will thus be the order for changeover proposed in the father’s minute.
The father proposed a standing order for makeup time in the event that there is non-compliance with the orders. The Court declines to make this order. The ICL will be granted leave to relist the matter on seven days’ notice in the event of any difficulty with interpreting or implementing these orders. The father also proposed a specific order for make-up time relating to time missed on specific dates earlier this year. The Court is not prepared to enter into this issue, given the part-heard status of the hearing.
The father proposed an order for equal shared parental responsibility. The Court declines to make this order. It is neither necessary nor appropriate to do so in the context of a part-heard hearing where the issue of parental responsibility is a significant issue.
The father framed his orders as lives-with orders, rather than spends-time-with orders. Nothing of substance turns on this. They are orders consistent with the language of the Act. The language proposed by the father will be adopted in this regard.
Each party proposes orders in relation to information sharing, communication, and special occasions. The orders proposed by the father are appropriate in the circumstances of this case and will thus be adopted. The mother’s orders regarding medical emergencies will be adopted, but the time for notification increased from 30 minutes to 60 minutes. Medical emergencies require the immediate attention of the parent in whose care the child is at the time and while the Court recognises the importance of notifying the other parent, it is also cognisant that 30 minutes may not be sufficient for that notification to occur. The Court will make additional orders to provide for Christmas time, in the event that the matter is not finalised by then.
IMMIGRATION STATUS ORDERS
Both parents and the ICL recognise the need to have orders dealing with the important and complex issue of the mother’s immigration status in Australia. There is a commonality to the proposed orders. The Court prefers the father’s orders because they are more prescriptive. One of the issues raised in this case is whether or not the mother has used her immigration status as a tactic to further her case strategy. The Court makes no comment on this, given the part-heard status of the case. The importance of evidence about the mother’s immigration status should be self-evident. A prescriptive order is one more likely to facilitate the presentation of this evidence before the Court in a timely manner.
ORDERS IN THE BEST INTERESTS OF THE CHILD
The Court will make orders to reflect its discussion of the evidence and issues set out above. The orders of the Court are consistent with the expert evidence and provide for the child to have frequent contact with the father of gradually increasing duration.
The hearing will resume as soon as dates become available.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 6 August 2021
SCHEDULE A
Parenting
1.That the mother, Ms Shao ("mother") and father, Mr Needham ("father") are to have equal shared parental responsibility for X born in 2019.
2.That X shall live with the mother other than times X is living with the father.
3.That pending Final Order, X shall live with the father as follows:
3.1.From 8.00 am to 4.00 pm each Saturday and Sunday for a period of ten weeks commencing on the first Saturday from the making of these Orders.
3.2.At the expiration of Order 3.1 above, X shall live with the father each weekend from 8.00 am on Saturday until 12.00 pm on Sunday for a period of eight weeks.
3.3.At the expiration of Order 3.2 above, X shall live with the father each weekend from 8.00 am on Saturday until 5.00 pm on Sunday for a period of eight weeks
3.4.At the expiration of Order 3.2 above, X will live with the father from 8.00 am on Saturday until 9.00 am on Monday.
3.5.At all other times agreed between the parties in writing.
3.6.That for the purposes of make-up time for time missed on 10 May 2021 and on 31 May 2021 (time that had been agreed by Consent in Orders of 3 May 2021), X spend time with the Father for five (5) hours from 7.30am until 12:30pm on the following dates:
3.6.1. On Wednesday 7 July 2021; and
3.6.2. On Wednesday 14 July 2021
Make-up time
3.7.That in the event that X does not spend time with the Father in accordance with these orders then X shall spend time with the Father by way of make up time. To facilitate this time, the father shall provide the Mother with 2 dates on which time can occur in the fourteen (14) day period following the missed time and the mother shall elect one of those occasions and ensure that X is provided for make-up time to occur in an manner as set out in Order 3.1 to 3.4 above.
Special Occasions
3.8.On X's birthday and in the event that X's birthday falls on a day he is not already living with his father, for a period of three (3) hours commencing at 3.00 pm and concluding at 6.00 pm.
3.9.The father's birthday for a period as agreed between the parties or failing agreement for a period of three (3) hours commencing at 3.00 pm and concluding at 6.00 pm.
3.10.On Father's Day, Sunday 5 September 2021 (in substitute of the mother spending special time with X on Mother's Day weekend); from 8.00 am to 5:30 pm.
Changeovers
4.That all changeovers for time in Order 3 above shall occur inside the premises of B Shop, C Street , Suburb D save for days when the premises are closed and in that event changeovers shall occur inside McDonalds Family Restaurant, C Street Suburb F.
Sharing of Information
5.Each parent will keep the other informed of the following whilst X is in either of their care:
(a)Any medical problems or illnesses suffered by X.
(b)Any medical appointments attended with the General Practitioner whilst in their care and within 4 hours of such appointment.
(c)Any Specialist Appointments scheduled for X by either party within 4 hours of scheduling such appointment including the name of the specialist, their area of speciality, the time, date and address of the professional rooms where the appointment will occur.
(d)Any medication that has been prescribed for X including the regime for the provision of the medication.
(e)Any special dietary requirements of X as recommended by a treating medical professional.
(f)Any enrolment at any pre-school or day care.
(g)Any social, school or religious functions which X may attend from time to time.
6.All communications regarding the care of X are to occur directly between the parents via the OFW app which the parties will check on at least on one occasion daily.
In the event that there is any communication required of an urgent nature, the parties will exchange that information via SMS. All communications between the parties via OFW or SMS are to be conducted in a respectful manner and are to be confined to matters of X's care including but not limited to his health, diet, sleep pattern or issues which are relevant to the care required to be taken by the party into whose care X is coming.
Immigration Status
7.That within 7 days of the date of these Orders the Mother will use her best endeavours to make application for an appropriate class of visa that will entitle her to remain within the Commonwealth Australia legally for a period of not less than 12 months from the date of these Orders
8.Prior to any application being made or the mother having any communication with the Department of Home Affairs about any current visa application she might have on foot or any proposed visa application the parties shall:
8.1.Jointly appoint Mr H of G Pty Ltd for the purpose of ascertaining the appropriate subclass of visa for which the Mother can qualify or apply for in order to best support the prospect of her remaining within the Commonwealth of Australia long term, or in any event for a minimum of 12 months.
8.2.Jointly make such an application with the mother ensuring that the father's solicitors are provided with copies of any correspondence, forms, or other communications that she might have with the Department of Home Affairs before they occur.
8.3.The mother is restrained from withdrawing, varying or applying for any Visa from the Department of Home Affairs without the express written consent of the father.
8.4.That the Joint appointment of a Migration Agent /lawyer will occur within 5 days of the date of these Orders by way of a joint letter of the Legal representatives of the Mother and the father or the mother and father in person if they are no longer represented.
9.That the Joint letter appointing Mr H is annexed to these Orders and marked "A" and will be signed by both the Father's and Mother's Legal Representatives within 5 days from these Orders being made.
10.In the event that no such application is available, then the mother, with the assistance of the Migration solicitor, shall make representations to the Minister for Immigration requesting special consideration to remain in Australia legally for not less than twelve (12) months from the date of these Orders.
11.In the event that no such application for special consideration to the Minister for Immigration is available or the mother refuses to engage in the process, the Migration agent/lawyer shall confirm this in writing to the father's solicitor and the Independent Children's Lawyer and the father's solicitor and the Independent Children's Lawyer have leave to relist the matter on short notice.
12.The cost of the application for a visa or application for special consideration to the Minister of the nature recommended by Mr H and any funds to be deposited into an account by way of a bond or deposit pending the determination of the Mother's visa will be borne in the first instance by the Father.
SCHEDULE B
FAMILY LAW ACT 1975
RESPONDENT MOTHER’S MINUTE OF ORDER
IN THE FAMILY COURT OF AUSTRALIA NO. SYC5643/2020
AT SYDNEY
IN THE MATTER OF
MR NEEDHAM
(Applicant)
AND
MS SHAO
(Respondent)
AND
INDEPENDENT CHILDREN’S LAWYER
Parenting
1.That the child X born in 2019 (“the child”) live with the Mother.
2.That pending further Order, the child spend time with the Father as follows:
2.1 Until the child attains the age of 2 years:
2.1.1 In each week from 8:00am until 4:00pm, Saturday and Sunday; and
2.1.2On each Monday, Wednesday and Friday, from 7:00am to 7:30am Facetime calls to be instigated by the Mother to the Father, and the Mother will guide and actively encourage the child with the calls.
2.2Commencing 18 September 2021, and for a period of 8 weeks, in each alternate week as follows:
2.2.1In week 1, from 8:00am until 4:00pm, each Saturday and Sunday; and
2.2.2In week 2, from 8:00am until 12 noon Friday.
2.2.3On each Monday, Wednesday and Friday, from 7:00am to 7:30am Facetime calls to be instigated by the Mother to the Father, and the Mother will guide and actively encourage the child with the calls.
2.3At the conclusion of the 8 week period referred to in Order 2.2 herein, and for a period of 8 weeks, in each alternate week as follows:
2.3.1In week 1, from 8:00am until 4:00pm, each Saturday and Sunday;.
2.3.2In week 2, from 3:00pm until 7:00pm Thursday.
2.3.3On each Monday, Wednesday and Friday, from 7:00am to 7:30am Facetime calls to be instigated by the Mother to the Father, and the Mother will guide and actively encourage the child with the calls.
2.4 Thereafter, in each alternate week as follows:
2.4.1In week 1, from 8:00am until 4:00pm, each Saturday and Sunday.
2.4.2In week 2, from 4:00pm Thursday until 8:00am Friday.
2.4.3On each Monday, Wednesday and Friday other than on the days the child is spending time with the Father, from 7:00am to 7:30am Facetime calls to be instigated by the Mother to the Father, and the Mother will guide and actively encourage the child with the calls.
2.5In the event the child is not scheduled to spend time with the Father, on the child’s birthday from 8:00am until 12 noon.
2.6In the event the child is not scheduled to spend time with the Father, on the Father’s birthday, for a period of 3 hours, from 3:00pm until 6:00pm.
2.7In the event the child is not scheduled to spend time with the Father, on Father’s Day from 8:00am until 4:00pm.
2.8Notwithstanding any other Order herein, on Christmas Eve 2021 and Boxing Day 2021 from 8:00am until 4:00pm.
2.9At any other time as agreed between the parties in writing.
3.That notwithstanding any other Order herein, the child shall spend time with the Mother as follows:
3.1If the child is not in the Mother’s care, on the Mother’s birthday.
3.2If the child is not in the Mother’s care, on Christmas Day 2021.
3.3On the weekend of Mother’s Day from 4:00pm the Saturday prior to Mother’s Day.
Changeovers
4.That to effect changeover, the Father shall collect the child from outside B Shop, Suburb D or the day care centre at which the child attends (if he commences day care) at the commencement of his time with the child and shall return the child to B Shop, Suburb D or the day care centre at which the child attends (if he commences day care) at the conclusion of his time with the child.
5.In the event B Shop is closed at the time of any changeovers, then changeover shall take place in the foyer of Suburb T Police Station, V Street, Suburb T.
6.Each party shall avoid having physical contact with the other at the time of changeovers.
Information sharing
7. The parents shall keep one another informed at all times of:
7.1their current contact telephone number and advise the other parent of a change in such details within 24 hours of such change occurring;
7.2any medical problems or illnesses suffered by the child while in their respective care;
7.3any specialist medical appointments for the child;
7.4any medication that has been prescribed for the child;
7.5any social, school or religious functions which the child is to attend; and
7.6any other matter relevant to the child’s welfare.
8.In the event of the child suffering a medical emergency requiring medical attention whilst in the care of either parent:
8.1The other parent is to be notified as soon as practicable and within 30 minutes of the medical emergency occurring;
8.2The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable and within 30 minutes of the medical emergency occurring; and
8.3The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and information retained by them upon request.
9.That unless the matter is urgent, all communication between the parties shall take place via the Our Family Wizard (“OFW”) App. If any matter of an urgent nature arises regarding the child in either parent’s respective care, the parents shall communicate via SMS text message.
Immigration Orders
8.That within 14 days of the date of these Orders, by way of joint letter of instruction prepared by the legal representatives of the parties or the parties in person if they are no longer represented, the parties shall:
8.1Jointly appoint Mr H of G Pty Ltd for the purpose of ascertaining the appropriate subclass of visa for which the Mother can qualify or apply for to best support the prospect of her remaining within the Commonwealth of Australia until 1 June 2022.
8.2Following advice and assistance from Mr H, the Mother shall make such an application with the Mother ensuring that the Father’s solicitors and Independent Children’s Lawyer are provided with copies of any correspondence, forms, or other communications that she might have with the Department of Home Affairs before they occur.
9.That if no such application is available, then the Mother, with the assistance of Mr H, shall make representations to the Minister for Immigration requesting special consideration to remain legally in Australia until 1 June 2022.
10.That if no such application for special consideration to the Minister for Immigration is available, Mr H shall confirm this in writing to the Father’s solicitor and the Independent Children’s Lawyer and the Father’s solicitor and the Independent Children’s Lawyer have leave to relist the matter on short notice.
11.That the cost of the engagement with Mr H and the cost of any visa application, application for special consideration to the Minister for Immigration or any funds required by way of bond or deposit pending any visa application shall be borne by the Father.
SCHEDULE C
IN THE FAMILY COURT OF AUSTRALIA
AT SYDNEY File No. SYC5643/2020
BETWEEN MR NEEDHAM
(Applicant)
AND MS SHAO
(Respondent)
AND INDEPENDENT CHILDREN'S LAWYER
BEFORE: JUSTICE ALTOBELLI
DATE: 24 June 2021
ICL PROPOSED INTERIM ORDERS:
Parenting
1. That the child X born in 2019 (“the child”) live with the mother.
2. That pending further Order, the child spend time with the father as follows:
2.1 Until the child attains the age of 2 years:
2.1.1 In each week from 8am until 4pm, Saturday and Sunday; and
2.1.2In each alternate week, commencing week 2, from 4pm until 8pm, each alternate Thursday.
2.2Commencing 18 September 2021, and for a period of 8 weeks, in each alternate week as follows:
2.2.1 In week 1, from 8am until 4pm, each Saturday and Sunday; and
2.2.2In week 2, from 4pm Thursday until 10am or the commencement of day care on Friday.
2.3At the conclusion of the 8 week period referred to in Order 2.2 herein, and for a period of 8 weeks, in each alternate week as follows:
2.3.1In week 1, from 8am Saturday until 10am Sunday.
2.3.2In week 2, from 4pm Thursday until 10am or the commencement of day care on Friday.
2.4Thereafter, in each alternate week as follows:
2.4.1 In week 1, from 8am Saturday until 5pm Sunday.
2.4.2In week 2, from 4pm Thursday until 10am or the commencement of day care on Friday.
2.5On the child’s birthday, for a period of three (3) hours from 3pm until 6pm.
2.6On the father’s birthday, should the child not be scheduled to spend time with the father, for a period of three (3) hours, from 3pm until 6pm.
2.7On Christmas Day 2021, noting that the child will spend time with the father in accordance with Order 2.3.1, from 12pm midday until 4pm Boxing Day.
2.8At any other time as agreed between the parties in writing.
3.That the child shall spend time with the mother on the weekend of Mother’s Day from 4pm the Saturday prior to Mother’s Day.
Changeovers
4.That to effect changeover, the father shall collect the child from inside McDonalds, C Street, Suburb F or the day care centre at which the child attends (if he commences day care) at the commencement of his time with the child and shall return the child to McDonalds, C Street, Suburb F or the day care centre at which the child attends (if he commences day care) at the conclusion of his time with the child.
Information sharing
5. The parents shall keep one another informed at all times of:
5.1their current contact telephone number and advise the other parent of a change in such details within 24 hours of such change occurring;
5.2any medical problems or illnesses suffered by the child while in their respective care;
5.3any specialist medical appointments for the child;
5.4any medication that has been prescribed for the child;
5.5any social, school or religious functions which the child is to attend; and
5.6any other matter relevant to the child’s welfare.
6.In the event of the child suffering a medical emergency requiring medical attention whilst in the care of either parent:
6.1 The other parent is to be notified as soon as practicable;
6.2The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable; and
6.3The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and information retained by them upon request.
7.That unless the matter is urgent, all communication between the parties shall take place via the Our Family Wizard (“OFW”) app. In the event that any matter of an urgent nature arises regarding the child in either parents’ respective care, the parents shall communicate via SMS text message.
Immigration Orders
8.That forthwith upon the making of these Orders, the Mother will use her best endeavours to make an application for an appropriate class of visa that will entitle her to remain within the Commonwealth of Australia legal for a period of not less than twelve (12) months from the date of these Orders.
9.That within fourteen (14) days of the date of these Orders, by way of joint letter of instruction prepared by the legal representatives of the parties or the parties in person if they are no longer represented, the parties shall:
9.1Jointly appoint Mr H of G Pty Ltd for the purpose of ascertaining the appropriate subclass of visa for which the mother can qualify or apply for in order to best support the prospect of her remaining within the Commonwealth of Australia long term, or in any event for a minimum of twelve (12) months.
9.2Following advice and assistance from Mr H, the mother shall make such an application with the mother ensuring that the father’s solicitors and Independent Children’s Lawyer are provided with copies of any correspondence, forms, or other communications that she might have with the Department of Home Affairs before they occur.
10.That in the event that no such application is available, then the mother, with the assistance of Mr H, shall make representations to the Minister for Immigration requesting special consideration to remain in Australia legally for not less than twelve (12) months from the date of these Orders.
11.That in the event that no such application for special consideration to the Minister for Immigration is available or the mother refuses to engage in the process, Mr H shall confirm this in writing to the father’s solicitor and the Independent Children’s Lawyer and the father’s solicitor and the Independent Children’s Lawyer have leave to relist the matter on short notice.
12.That the cost of the engagement with Mr H and the cost of any visa application, application for special consideration to the Minister for Immigration or any funds required by way of bond or deposit pending any visa application be borne in the first instance by the father.
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