NOLL & NOLL
[2019] FCCA 1083
•26 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NOLL & NOLL | [2019] FCCA 1083 |
| Catchwords: FAMILY LAW – Parenting – interim proceedings - application by child’s Father to live with him – the school the child to attend – the time to be spent with each parent – Mother registered sex offender – appointment of an Independent Children’s Lawyer – child to live with Father. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA Sex Offenders Registration Act 2004 (Vic) |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Eddington & Eddington (No 2) (2007) FLC 93-349 |
| Applicant: | MR NOLL |
| Respondent: | MS NOLL |
| File Number: | MLC 1475 of 2019 |
| Judgment of: | Her Honour Judge C. E. Kirton QC |
| Hearing date: | 11 April 2019 |
| Date of Last Submission: | 11 April 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 26 April 2019 |
REPRESENTATION
| Solicitors for the Applicant: | ABF Legal |
| Solicitors for the Respondent: | Thexton Lawyers |
ORDERS
All previous parenting Orders with respect to the child [X], born … 2013 ([X]) be discharged.
UNTIL FURTHER ORDER:
Parenting
The Applicant (Father) and the Respondent (Mother) have equal shared parental responsibility for [X].
[X] live with the Father.
[X] spend time and communicate with the Mother as follows:
(a)During school term time each alternate Wednesday from the conclusion of school or 3.15 pm to the commencement of school or 8.45 am on the following Monday.
(b)For half of each of the school holidays on a week about basis, as follows:
(i)In even-numbered years, with the Mother in the first week of each of the school holidays;
(ii)In odd-numbered years, with the Father in the first week of each of the school holidays.
(c)As may otherwise be agreed between the Father and the Mother in writing (including text or email).
[X] shall commence spending time with the Mother pursuant to Order (4)(a) from Wednesday 15 May 2019.
Education
[X] be forthwith enrolled at School A, Town B (School) to commence immediately.
The Father authorise the School to:
(a)Provide to the Mother, at the expense of the Mother, copies of all reports, notices and applications for photographs in relation to [X].
(b)Communicate with the Mother either by telephone, in writing or by personal attendance, in relation to [X]’s progress.
(c)Allow the Mother to attend all functions to which parents are invited.
The Mother is at liberty to attend school events, parent-teacher interviews and the like to which parents are invited.
Special Days
Notwithstanding any other order, [X] spend time with the Father and the Mother at Christmas as follows:
(a)In even-numbered years:
(i)From 12 noon Christmas Eve until 12 noon Christmas Day with the Father;
(ii)From 12 noon Christmas Day to 12 noon Boxing Day with the Mother.
(b)In odd-numbered years:
(i)From 12 noon Christmas Eve until 12 noon Christmas Day with the Mother;
(ii)From 12 noon Christmas Day to 12 noon Boxing Day with the Father.
Notwithstanding any other order, [X] spend time with the Father and the Mother at Easter as follows:
(a)In even-numbered years:
(i)From Thursday 5.00 pm until Saturday 5.00 pm with the Father;
(ii)From Saturday 5.00 pm until Sunday 5.00 pm with the Mother.
(b)In odd-numbered years:
(i)From Thursday 5.00 pm until Saturday 5.00 pm with the Mother;
(ii)From Saturday 5.00 pm until Sunday 5.00 pm with the Father.
The Father’s time with [X] be suspended as follows:
(a)In the event that Mother’s Day falls during the Father’s time, then the time with the Father be suspended from 5.00 pm on Saturday until 5.00 pm Sunday.
(b)In the event that [X]’s birthday falls during the Father’s time, then the time with the Father be suspended from the conclusion of school or 3.15 pm on [X]’s birthday to the commencement of school or 8.45 am the following day.
(c)In the event that the Mother’s birthday falls during the Father’s time, then the time with the Father be suspended from the conclusion of school or 3.15 pm on the Mother’s birthday to the commencement of school or 8.45 am the following day.
The Mother’s time with [X] be suspended as follows:
(a)In the event that Father’s Day falls during the Mother’s time, then the time with the Mother be suspended from 5.00 pm on Saturday until 5.00 pm Sunday;
(b)In the event that [X]’s birthday falls during the Mother’s time, then the time with the Mother be suspended from the conclusion of school or 3.15 pm on [X]’s birthday to the commencement of school or 8.45 am the following day;
(c)In the event that the Father’s birthday falls during the Mother’s time, then the time with the Mother be suspended from the conclusion of school or 3.15 pm on the Father’s birthday to the commencement of school or 8.45 am the following day.
Changeovers
For the purposes of Order 4(a), the Mother shall be responsible for:
(a)At the commencement of [X]’s time with the Mother, collecting [X] from the School or the Father’s residence or such other location as may be agreed by the parties in writing (including text or email);
(b)At the conclusion of [X]’s time with the Mother, returning [X] to the School or the Father’s residence or such other location as may be agreed by the parties in writing (including text or email).
(a) For the purposes of order (4)(b), the school holiday period commences after school on the final day of the relevant school term and concludes at 5.00 pm the day before the commencement of the next school term.
(b)For the purposes of order 4(b), the parent who is to commence time with [X] is to collect [X]:
(i)From the School at the conclusion of school; or
(ii)The other parent’s residence or such other location as the parties may agree in writing (including text or email), as the case requires at 10.00 am.
For the purposes of Orders 9 and 10, the parent who is to commence time with [X] is to collect [X] from the other parent’s residence or such other location as the parties may agree in writing (including text or email), as the case requires.
For the purposes of Order (11), the Mother shall be responsible for:
(a)At the commencement of [X]’s time with the Mother, collecting [X] from the School or the Father’s residence or such other location as may be agreed by the parties in writing (including text or email).
(b)At the conclusion of [X]’s time with the Mother, returning [X] to the School or the Father’s residence or such other location as may be agreed by the parties in writing (including text or email).
For the purposes of Order (12), the Father shall be responsible for:
(a)At the commencement of [X]’s time with the Father, collecting [X] from the School or the Mother’s residence or such other location as may be agreed by the parties in writing (including text or email).
(b)At the conclusion of [X]’s time with the Father, returning [X] to the School or the Mother’s residence or such other location as may be agreed by the parties in writing (including text or email).
Communication
That each parent be at liberty to communicate with [X] by telephone or FaceTime on Saturday nights between 5.00 pm and 6.00 pm when [X] is not in that parent’s care and the resident parent shall do all things necessary to facilitate such communication. During any such communication, the resident parent is restrained from remaining within hearing distance of [X].
Parents to provide information
Each parent forthwith keep the other informed of any illness, injury or accident suffered by [X] requiring medical treatment, and provide the other parent with details of [X]’s treatment and medical practitioner and authorise such medical professional to communicate with the other parent.
The parents shall advise each other of any change of telephone number, including landline number or residential address within 24 hours of such change occurring.
Mutual Non-Denigration
The Father and the Mother, their servants and agents be and are hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party;
(b)Discussing these proceedings;
to or in the presence or hearing of [X] and from permitting any other person to do so.
Interstate and International Travel
The Mother and the Father be permitted to travel interstate during their time with [X] during the Victorian gazetted school holidays or as otherwise agreed in writing between the parties (including text and email).
The Mother and the Father be permitted to travel internationally (International Travel) with [X]:
(a)Provided that at least 60 days prior to the proposed International Travel they:
(i) Advise the other parent in writing; and
(ii) Provide to the other parent:
a.A comprehensive itinerary of the travel arrangements;
b.Copies of the airline tickets/e-tickets showing the date and time of departure and arrival back in Australia;
c.A copy of a current certificate of travel insurance and policy of insurance covering [X] for the whole of the period of the International Travel;
d.Telephone contact details where [X] can be reached during the period of the International Travel.
(b)As may be otherwise agreed in writing between the parties .
In the event that the International Travel interferes with the other parent’s time with [X], make up time be arranged with the non-travelling parent either before or after the travel dates.
Appointment of Independent Children’s Lawyer
Pursuant to s.68L(2) of the Family Law Act 1975 (Cth) the child [X], born … 2013 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the parties make application to Victoria Legal Aid requesting that they make such an arrangement as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:
(a)Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service.
(b)Within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents.
(c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ is published at ( childrens-lawyer), and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
(d)The Independent Children’s Lawyer prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she may recommend be made as final orders as soon as the Independent Children’s Lawyer is able to, and not less than five business days before the trial.
Copies of the Family Report by Dr C, dated 4 April 2019 (Family Report), if accompanied by a copy of this Order, may be given to:
(a)Any Independent Children’s Lawyer in the proceedings.
(b)A child protection authority.
(c)A State or Territory legal aid authority.
AND that no person release the Family Report, or provide access to the Family Report, to any other person.
Further Listing
The matter be adjourned to the Federal Circuit Court of Australia on 19 August 2019 at 9.30 am for mention.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Annexure and these particulars are included in these orders.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
IT IS NOTED that publication of this judgment under the pseudonym Noll & Noll is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1475 of 2019
| MR NOLL |
Applicant
and
| MS NOLL |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an interim decision in relation to parenting proceedings concerning the child [X] born on … 2013 ([X]). The Applicant is the Father and the Respondent is the Mother of [X]. The Father lives in Town D and the Mother lives in Suburb E. In 2018 [X] attended kindergarten in Town D and lived with the Father, his wife and her two young sons for nine nights each alternate fortnight. [X] lived with the Mother for the other five nights each fortnight. In early 2018 discussions commenced between the Father and the Mother as to where [X] would attend primary school in 2019.
As 2018 progressed an agreement as to which primary school [X] would attend in 2019 was not reached between the Father and the Mother. The Father suggested School A in Town D and enrolled [X] there. The Mother enrolled [X] at School F and commenced [X] at this school in early February 2019 in grade prep without the consent of the Father.
In early February 2019 the Mother refused to allow the Father to spend time with [X] unless he agreed to [X] attending School F and unless he also agreed to reduce the time that [X] spent with him from nine nights each alternate fortnight to two nights. The Mother required the Father to agree to spend time with [X] each alternate weekend from after school Friday until 5.00 pm Sunday.
The Father complied with the Mother’s requirements from Friday 8 February 2019 to Sunday 10 February 2019, returning [X] to the Mother. The Father then commenced this proceeding on 13 February 2019.
Issues to be Determined
The following issues are in dispute between the parties:
a)Who [X] should live with.
b)The time [X] should spend with the parent with whom she does not live.
c)The school that [X] should attend.
d)When [X] may communicate with the parent with whom she is not spending time with.
e)Whether either parent may travel interstate during their time with [X] during school holidays, without providing prior notice to the other parent.
f)The times [X] is to spend on special occasions with the Mother and the Father.
g)The changeover arrangements.
Synopsis
I have determined that:
a)[X] will live with the Father.
b)[X] will spend time with the Mother as follows:
i)During school term time each alternate Wednesday from the conclusion of school or 3.15 pm on Wednesday to the commencement of school or 8.45 am on the following Monday, commencing from 8 May 2019;
ii)Half of school holidays on a week about basis.
c)[X] will be enrolled at School A, Town B to commence immediately.
d)Each parent will be at liberty to communicate with [X] by telephone or FaceTime on Saturday nights between 5.00 pm and 6.00 pm, when [X] is not in that parent’s care.
e)Either parent may travel interstate during their time with [X] during school holidays, without providing prior notice to the other parent.
f)[X] is to spend time on special occasions with her parents, being: Christmas, Easter, the parents’ birthdays, [X]’s birthday, Mother’s Day and Father’s Day. The details are set out in Orders 9 to 12.
g)During term time the Mother will collect and return [X] to and from School A. During the school holiday period, the parent who is to commence time with [X] is to collect [X].
Background
The Father was born on … 1989 and is 29 years of age. The Father works as an public servant employed full time at Employer, Town D from Tuesday to Sunday each week. The Father often works from home and is able to manage his hours around local school drop off and pick ups with some flexibility[1].
[1] Father’s First Affidavit, sworn 13.2.19, filed 13.2.19, at [10].
The Mother was born on … 1990 and is also 29 years of age. The Mother is currently not employed and is in receipt of Family Tax Benefits and Centrelink benefits[2].
[2] Mother’s Affidavit, sworn 27.2.2019, filed 27.2.2019, at [15].
The Mother and Father married on … 2011 at Suburb G. There is one child of the relationship, [X] who was born on … 2013 and is currently 5 years old.
Between the time [X] was born and January 2014 the Mother and the Father both finished study to become occupations. They were commissioned and they took holidays and maternity/paternity leave. From January 2014 the Father was appointed as a full time public servant[3] and the Mother worked on a part-time basis[4].
[3] Father’s Second Affidavit, sworn 9.2.2019, filed 10.4.2019, at [11].
[4] Mother’s Affidavit, at [20].
The parties separated on 7 July 2014 when they were living in Town D and [X] was just over 7 months old.
Sometime shortly after separation the Wife went to stay in a house in Town D with some other occupants, one of whom was underage. On or about 6 April 2016 the Mother was convicted in the County Court of Victoria of two counts of sexual penetration with a child under 16. The Mother was sentenced by … to a two year community corrections order and 150 hours of community service. At the time of the offences the Mother was aged 25 and the victim reportedly was aged 15. The Department of Human Services was involved in advising the Father that the Mother had been registered as a sex offender for life[5].
[5] Father’s First Affidavit, at [49] and Annexure “N-03”.
The parties divorced on 4 June 2016 and the Father has remarried. He is married to Ms H, who has two sons [J], born … 2007 and [K], born … 2012. [J] is 11 years old and [K] is 7 years old and they live with the Father and Ms H in Town D.
Prior to 2019 [J] and [K] went to school in Suburb L. In 2018 [X] attended the … Kindergarten in Town D two days a week, on a Tuesday and Thursday. In 2018 the Father drove [J] and [K] to and from school between Town D and Suburb L, a journey of approximately 45 minutes each way. [X] would often accompany the Father on the drives to and from the school in Suburb L. The children found the daily round trips to and from the school in Suburb L tiring.
In 2018 the Father and Ms H decided to enrol [J] and [K] at a school closer to their home in Town D in 2019 and they selected School A. In early 2018 the Father also started to attempt to negotiate with the Mother as to where [X] would attend school in 2019. The Father ultimately proposed School A, where [X]’s step brothers would also be attending and was close to their home in Town D. The Mother selected Suburb L Primary School on the basis that it was midway between Town D and Suburb E where she was then living. Agreement was not reached and the Mother enrolled [X] at Suburb L Primary School.
On Tuesday 29 January 2019 the Mother’s solicitors sent an email to the Father advising him that [X] was in the Mother’s care and that the Mother would be sending [X] to commence school at Suburb L Primary School on Friday 1 February 2019. The Mother’s solicitors sought the Husband’s agreement to this arrangement[6]. On 29 January 2019 the Father sent an email to the Mother’s solicitors’ objecting to this arrangement. He noted that [X] lived with him nine nights in a fortnight and that [X] had two step brothers attending School A, along with four friends from kindergarten who had participated in a kindergarten transition program with [X]. The Father sent two further emails to the Mother’s solicitors on 31 January 2019 and received no response until 4 February 2019[7].
[6] Ibid., Annexure “N-02”.
[7] Loc. cit.
In early February 2019 the Mother refused to return [X] to the Father unless he agreed to [X] attending Suburb L Primary School and that he also agreed to reduce his time with [X] from nine nights each fortnight to two nights on alternate weekends.
On 4 February 2019 the Mother’s solicitors sent an email to the Father advising the Father that [X] had commenced school at Suburb L Primary School as of Friday 1 February 2019. The email stated:
We are concerned that now the child has commenced school at Suburb L that for you to unilaterally take the child to another school in Town B will cause the child to be confused and cause emotional harm to the child .
[…]
Should you persist with your intention to take the child to School A in Town B we are of the view that our client would have strong grounds to make an urgent application to the Family Courts for a change of residence application so that the child lives primarily with our client. You have an active duty to encourage a relationship between our client and the child and by unilaterally changing the child’s school and she has commenced at Suburb L school already (sic) would not be supported of relationship between our client and the child[8].
[8] Loc. cit.
This email requested that the Father urgently confirm that he would not take [X] to School A. The email further advised that if the Father failed to confirm his agreement their client would:
[…] consider her options, which may include keeping [[X]] in her care pending the matter proceeding on an urgent basis before the courts[9].
[9] Loc. cit.
In term one 2019 [J] and [K] commenced school at School A.
Procedural History
The Father commenced this proceeding for parenting orders on 13 February 2019. The Father sought an abridgment of time that the Initiating Application be heard on an urgent basis and this application was granted by a Registrar of the Court.
At the time of filing the Initiating Application the Father was self-represented. The Father sought Final and Interim Orders in the Initiating Application. The Interim Orders that the Father sought included Orders that:
a)The Father have sole parental responsibility for decisions relating to [X]’s education.
b)The parties otherwise have equal shared parental responsibility for other major long-term issues relating to [X].
c)[X] attend School A.
d)[X] live with the Father.
e)The parties consult with each other about decisions to be made in the exercise of equal parental responsibility as follows:
i)They shall inform the other parent about the decision to be made;
ii)They shall consult with each other on the terms that they agree;
iii)They shall make a genuine effort to come to a joint decision.
f)[X] spend time with the Mother as agreed, but failing agreement:
i)From the conclusion of school on each alternate Thursday until the commencement of school the following Tuesday (five nights);
alternatively;
ii)From the conclusion of school on alternate Fridays until 5.00 pm the following Sunday (two nights).
g)Changeover to occur at [X]’s school or otherwise at a location agreed by the parties.
h)The parties spend time with [X] during school holidays as agreed, but failing agreement:
i)The first half of the autumn, winter and spring school holiday periods in even numbered years with the Father and in odd numbered years with the Mother;
ii)The second half of the autumn, winter and spring school holiday period in odd numbered years with the Father and in even numbered years with the Mother;
iii)In the summer school holidays, [X] to spend time with the Mother in the first week and the Father in the second week, alternating weekly thereafter for the entire summer school holiday period.
i)The parties spend time with [X] at specified times on special occasions being: Christmas, Easter, Father’s Day, Mother’s Day and [X]’s birthday.
j)The parties shall keep each other informed at all times of their residential address and contact telephone numbers and shall notify each other at least seven days prior to relocation.
k)Communication between the parties is to be limited to issues concerning [X].
l)The parties shall immediately inform the other parent of any medical condition, significant health issue or significant illness suffered by [X] and authorise any treating medical practitioner to release [X]’s medical information to the other parent.
m)In the event either party is unable to care for [X], that parent is to provide the other parent with the first opportunity to care for [X].
n)The parties authorise school and any other educational facility attended by [X] to give each parent information about [X]’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by [X], at that parent’s cost.
o)Both parties to be permitted to attend all functions held by an educational facility or extracurricular activity that [X] is attending or participating in, including but not limited to parent teacher interviews, and each parent shall provide the other with not less than seven days’ notice in writing of any such events having been scheduled in order to ensure both parents have the opportunity to attend the event (provided such notice is provided by the school).
p)During the time [X] is with either parent, that parent shall:
i)Respect the privacy of the other parent and not question [X] about the personal life of the other parent;
ii)Speak of the other parent respectfully;
iii)Not denigrate or insult the other parent in the presence or hearing of [X] and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of [X].
q)[X] to communicate with her parents at all reasonable times as agreed between the parties and as [X] reasonably requests to do so but failing agreement each parent be at liberty to contact [X] by telephone, FaceTime or such other electronic means between 4.00 pm and 7.00 pm every Saturday night that [X] is in the care of the other parent.
r)Should either party seek to take [X] overseas:
i)The parent seeking to take [X] overseas shall:
(1) Give the other parent written notice of such travel two months prior to the date of travel;
(2) Ensure that the other parent has a copy of the full itinerary of the travel arrangements, a copy of the airline tickets showing the date and time of departure and arrival back in Australia and telephone contact details at which [X] can be reached at any time during the overseas travel.
ii)The travel shall not interrupt [X]’s schooling unless otherwise agreed between the parties;
iii)Neither parent shall unreasonably refuse the proposed travel.
s)[X]’s passport is to be held by the Father and only released to the Mother for the purposes of travel. The passport is then to be returned to the Father 48 hours of [X]’s arrival back in Australia.
The Final Orders that the Father sought were substantially the same as the Interim Orders that were sought, however they also included an Order that [X] attend school within 20 kilometres of the Father’s home.
The Father filed an Affidavit[10] (Father’s First Affidavit) and a Notice of Risk on 13 February 2019. The Father also filed an Affidavit of Service[11] and an Acknowledgment of Service[12] where the Mother acknowledged that she had been served with the Father’s filed Court documents on 13 February 2019.
[10] Father’s First Affidavit, sworn 13.2.19, filed 13.2.19.
[11] Affidavit of Service of Ms H, sworn 19.2.19, filed 20.2.19.
[12] Acknowledgement of Service, filed 20.2.19.
The matter first came before the Court on 27 February 2019 in the Duty List (First Hearing). The Father appeared in person and the Mother was represented by a solicitor. The Court ordered that:
a)The matter be adjourned to 11 April 2019 at 9:30 am for mention.
b)Pursuant to s.62G(2) of the Family Law Act 1975 (Cth) (Act) the parties and [X] attend upon a Family Consultant nominated by the Regional Coordinator of the Child Dispute Services of the Federal Circuit Court of Australia (Melbourne Registry) for the purposes of the preparation of a Family Report.
The Court also ordered that until further order:
a)[X] live with the Mother.
b)[X] attend Suburb L Primary School.
c)[X] spend time with the Father each alternate weekend from Friday at the conclusion of school to Sunday 5.00 pm, commencing Friday 8 March 2019.
d)For the purposes of change over the Father return [X] each alternate Sunday at 5.00 pm to the Mother’s residence unless otherwise agreed between the parties in writing.
e)The Father communicate with [X] each Wednesday between 6:30 pm and 7:30 pm by telephone and the Mother facilitate that communication unless otherwise agreed between the parties in writing.
f)On school holidays commencing in 2019 and thereafter, the Father spend time with [X] on a week-about arrangement, commencing the first week of the school holiday period and alternating as agreed between the parties in writing.
g)On Easter commencing in 2019 and thereafter the Father spend time and communicate with [X] as agreed between the parties in writing.
After the First Hearing the Mother filed a Response to Application for Final Orders (Response)[13], an Affidavit (Mother’s Affidavit)[14] and a Notice of Risk.
[13] Mother’s Response to Application for Final Orders, filed 27.2.19.
[14] Mother’s Affidavit, sworn 27.2.19, filed 27.2.19.
The Interim Orders that the Mother sought in the Response included Orders that:
a)The Mother have sole parental responsibility for [X].
b)[X] live with the Mother at Suburb E.
c)[X] attend Suburb L Primary School.
d)[X] spend time with the Father each alternate weekend from Friday from the conclusion of school to Sunday 5.00 pm (two nights).
e)For the purposes of change over, the Father return [X] to the Mother’s residence unless otherwise agreed between the parties in writing.
f)The Father communicate with [X] each Wednesday between 6.30 pm and 7:30 pm by telephone and the Mother facilitate that communication.
g)On school holidays commencing in 2019 the Father spend time with [X] on a week about arrangement, commencing the first week of the school holiday period and alternating.
h)For Christmas Eve, Christmas Day, Boxing Day, Good Friday and Easter commencing in 2019 as agreed between the parties in writing.
i)On Mother’s Day and Father’s Day as agreed between the parties in writing.
j)On [X]’s birthday, the Mother’s birthday and the Father’s birthday, as agreed between the parties in writing.
k)The parties shall do all such things and acts reasonably necessary to communicate and notify each other of any change of residence within 14 days of relocation and in writing.
l)The parties give each other notice of not less than two months and in writing of any intention to travel with [X] interstate or overseas.
The Final Orders that the Mother sought were the same as the Interim Orders that were sought.
After the First Hearing Date the parties retained a private family consultant Dr C who prepared a Family Assessment Report, dated 4 April, 2019[15] (Family Report). The Father paid for the Family Report.
[15] Dr C, Family Assessment Report, 4.4.19, Applicant’s Exhibit 1.
On 12 March 2019 a Notice of Address for Service was filed on behalf of the Father indicating that he was now represented by lawyers. On 10 April 2019 the Father’s lawyers’ filed a further affidavit by the Father (Father’s Second Affidavit)[16].
[16] Father’s Second Affidavit, sworn 9.4.19, filed 10.4.19.
The proceeding came before the Court on the second occasion on 11 April 2019 (Second Hearing). Both parties were represented by solicitors at the Second Hearing and made submissions in relation to the interim orders that the parties sought.
The Court ordered that:
a)The proceeding be listed for final hearing on 2 December 2020.
b)Trial directions were made.
c)Judgment reserved.
These are the reasons for decision in relation to the interim orders sought by the parties at the Second Hearing.
The Proposals of the Parties
At the conclusion of the Second Hearing each of the parties produced to the Court a minute of their proposed interim orders. I turn now to summarise each of the parties’ proposals.
Father’s Proposal
The Father proposed the following interim orders that (Father’s Proposal):
a)The parties have equal shared parental responsibility in relation to [X] and that:
i)The parties be required to make all decisions about major long-term issues in relation to [X] jointly;
ii)The parties not be required to consult the other when making decisions while [X] is in their care about issues that are not major long-term issues;
iii)The parties meet with a clinical psychologist once each term to discuss the welfare and decisions relating to [X].
b)[X] live with the Father.
c)[X] spend time with the Mother at all times as may be agreed but failing agreement each alternate Wednesday after school until the commencement of school the following Monday (five nights).
d)[X] be enrolled at School A to commence school on the first day of term two 2019.
e)[X] to attend a school within 20 km of the Father’s residence to ensure she attends school within the community of her primary residence.
f)Unless otherwise agreed, [X] spend time with the Mother and the Father for one half of all gazetted school holiday periods, on a week about basis as follows:
i)In even years, with the Mother in the first week of each of the school holidays;
ii)In odd years, the Father in the first week of each of the school holidays.
g)The gazetted school holiday period commences after school on the final day of the relevant term.
h)In even-numbered years:
i)[X] spend time with the Father from 12 noon Christmas Eve until 12 noon Christmas Day; and
ii)[X] spend time with the Mother from 12 noon Christmas Day until 12 noon Boxing Day.
i)In odd-numbered years:
i)[X] spend time with the Mother from 12 noon Christmas Eve until 12 noon Christmas Day; and
ii)[X] spend time with the Father from 12 noon Christmas Day until 12 noon Boxing Day.
j)In even years [X] spend time with the parties at Easter as follows:
i)With the Father from Thursday 5.00 pm until Saturday 5.00 pm; and
ii)With the Mother from Saturday 5.00 pm until Monday 5.00 pm.
k)In odd years [X] spend time with the parties at Easter as follows:
i)With the Mother from Thursday 5.00 pm until Saturday 5.00 pm; and
ii)With the Father from Saturday 5.00 pm until Monday 5.00 pm.
l)[X] spend time with the Father from 9.00 am to 5.00 pm on Father’s Day and any provision for time that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
m)[X] spend time with the Mother from 9.00 am to 5.00 pm on Mother’s Day and any provision for time that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
n)[X] to spend equal time with the Mother and the Father on;
i)[X]’s birthday;
ii)the Mother’s birthday;
iii)the Father’s birthday;
at times to be agreed between the Mother and the Father and failing agreement, [X] to spend time with the Father from 3.00 pm until 7.00 pm and the Mother at all other times on those days and any provision for time that is inconsistent with this paragraph be suspended.
o)Mother shall be responsible for collecting [X] from [X]’s school at the beginning and returning [X] to [X]’s school at the end of [X]’s time with the Mother on school days or otherwise at a location as agreed by the parties;
p)Should either party seek to take [X] overseas then:
i)The parent seeking to travel shall give the other parent written notice of such travel;
ii)Such written notice should be given two months prior to the date of travel;
iii)The parent seeking to take [X] overseas shall ensure that the other parent has a copy of the full itinerary of the travel arrangements, copies of the airline tickets showing the date and time of departure and arrival back in Australia and telephone contact details of which [X] can be reached at any time during the overseas travel;
iv)Neither parent unreasonably refuse proposed travel.
q)Either parent may travel interstate during their time with [X] during the gazetted school holidays.
r)Each party be authorised to obtain from [X]’s school all notices, letters school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.
s)The parent that is not spending time with [X] communicate with [X] by telephone on Saturday between 5.00 pm and 6.00 pm and such other times as may be agreed between the parties.
t)The parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
u)The parties not criticise or denigrate the other party or the other party’s family in the presence or within the hearing of [X].
v)The parties encourage and not undermine [X]’s relationship with the other party.
w)In the event of any dispute in relation to the orders the parties shall first attend family dispute resolution (FDR) with a FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to the appointment of a FDR practitioner, the party raising the dispute shall nominate three FDR practitioners, one of whom shall be chosen by the other party within 14 days.
Mother’s Proposal
The Mother’s proposal at the Second Hearing changed significantly from the position that the Mother adopted at the First Hearing and from the Interim and Final Orders that she sought in the Response. The Mother’s previous position had been that [X] should spend two nights each alternate fortnight with the Father. The recommendations of the Family Report were available at the time of the Second Hearing. At the Second Hearing the Mother submitted that a shared care arrangement on a week about basis was in [X]’s best interests.
The Mother proposed interim orders that (Mother’s Proposal):
a)The parents have equal shared responsibility for [X].
b)The parties are to consult with each other about decisions to be made in the exercise of equal parental responsibility and shall make a genuine effort to come to a joint decision.
c)The parents have a week about arrangement in relation to time spent with [X].
d)Changeover occur on a Monday commencing with the Mother dropping [X] off at school and the Father collecting [X] from school. [X] will remain living with the Father until the following Monday when the opposite will occur.
e)[X] to attend Suburb L Primary School.
f)For school holidays equal time to be spent between the parents alternating between the Mother and the Father, commencing with whichever parties’ week is about to commence, with that party collecting [X] from the home of the other party on a Monday at 10.00 am. The opposite to occur the next week.
g)[X] to spend Christmas with the Mother from 4.00 pm Christmas Eve until 2.00 pm Christmas Day on even-numbered years and the opposite on odd-numbered years (from 2.00 pm Christmas Day to 4.00 pm on Boxing Day).
h)[X] to spend Easter with whichever parent she is with at the time.
i)[X] to spend Father’s Day with the Father from 5.00 pm on Saturday until 5.00 pm Sunday unless the Father has his week with [X] in which case he will drop [X] off at school on Monday in accordance with the normal arrangements.
j)[X] to spend Mother’s Day with the Mother from 5.00 pm on Saturday until 5.00 pm Sunday unless the Mother has her week with [X] in which case she will drop [X] off at school on Monday in accordance with the normal arrangements.
k)For [X]’s birthday, the parties have dinner together with [X] and the parties be at liberty to invite other family and friends to attend at a location to be decided upon by the parties one week in advance.
l)Each party shall keep the other informed on matters relating to contact details of either party, all medical issues and all educational updates.
m)The parties both be at liberty to attend functions held by a school or extracurricular activities.
n)[X] contact the other parent with whom she is not staying with on Wednesday between 5.00 pm and 6.00 pm on FaceTime.
o)The parties limit communicating between the parties to matters concerning [X] by SMS and can make agreements outside these orders.
p)The parties both be at liberty to attend functions held by a school or extracurricular activities.
q)The parties not to denigrate or insult each other.
r)Unless in the event of emergency, that if either party wishes to take [X] overseas they must provide two months’ notice to the other party and provide itineraries and tickets. One months’ notice is required for interstate travel.
Matters in Agreement and in Dispute
As a result of hearing the submissions of the solicitors for the parties and the production of the minutes of proposed orders prepared on behalf of each of the parties at the Second Hearing, it is apparent that the parties are in agreement in relation to some matters. There should therefore be orders in relation to the following:
a)The parties have equal shared parental responsibility for [X].
b)The school holidays should be shared on a week about basis.
c)Permitting overseas travel on notice to the other parent.
d)Notification of change of telephone number or residence.
e)Mutual non-denigration of each other and the other party’s family.
f)Authorisation to receive school notices and school reports.
The content of the orders proposed by the parties in relation to each of these matters is similar and the Court will therefore make orders accordingly.
The parties also agree that special occasions should be shared with [X], however the parties differ as to the orders that they seek. The Court will therefore need to make a determination in relation to the time [X] spends with each parent on:
a)Christmas Day, Boxing Day and at Easter;
b)Mother’s Day and Father’s Day;
c)[X]’s birthday, the Mother’s birthday and the Father’s birthday.
The parties remain in disagreement in relation to the other matters referred to in sub-paragraphs 5(a) to (g).
The Law
The principles governing the Court’s decision in this proceeding are set out in Part VII of the Act. The Court in determining this application must consider what orders are in [X]’s best interests: s.60CA of the Act. What this means in individual cases is determined by a number of statutory provisions.
The objects of Part VII of the Act are set out in s.60B(1) and assist in clarifying what Part VII aims to achieve to ensure that the best interests of children are met. There are also principles that underlie these statutory objects: s.60B(2).
Section 65D of the Act gives the Court power to make a parenting order which is defined by s.64B(1).
In determining what is in [X]'s best interests the Court must consider the matters set out in s.60CC of the Act. Section 60CC sets out the primary and additional considerations that the Court is to take into account in determining what is in the best interests of [X]. Each of those matters where relevant must be considered and assessed in the context of the respective proposals. The Court must then determine which of the proposals is in [X]'s best interests.
The Court is not bound by the parties’ respective proposals (AMS v AIF[17] and U v U[18]).
[17] (1999) 199 CLR 160.
[18] (2002) 211 CLR 238.
In applying the primary considerations the Court is to give greater weight to the considerations set out in s.60CC(2)(b): s.60CC(2A).
The Full Court in Goode v Goode[19] mandated that the legislative pathway must be followed in all parenting cases and set out the procedural steps to be followed in interim proceedings[20]. It was noted by the Full Court that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place[21].
[19] (2006) 36 Fam LR 422.
[20] Ibid., 445, at [81]-[82].
[21] Ibid., 445, at [82].
In Marvel v Marvel[22] the Full Court made the following obiter comments:
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[23].
[22] (2010) 43 Fam LR 348.
[23] Ibid., at [120].
In Keats & Keats[24] the Full Court held in respect of interim proceedings:
[. ..] that apart from relying upon the uncontroversial or agreed facts, a judge may 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[25].
[24] [2016] FamCAFC 156.
[25] Ibid., at [9].
An interim hearing is therefore by its very nature a curtailed hearing. Evidence is limited and the matter is decided on the papers.
I will first consider the primary considerations of the Act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford[26], Mazorski & Albright[27] and McCall & Clark[28].
[26] [2013] FamCA 33.
[27] (2007) 37 FamLR 518.
[28] (2009) FLC 93-405.
In the Family Report Dr C reported:
My observation of [X] during the interview with her father was that she engaged incredibly warmly and easily with him: she was spontaneous, affectionate and talkative. The writer observed a strong attachment between [X] and her father[29].
[29] Family Report, p. 8.
Dr C also reported:
My observation of [X] and her mother was that they engaged incredibly warmly and easily. [X] invited her mother to sit next to her. [X] was affectionate, engaged, talkative and there was on-going dialogue, just as there had been with the father […]
The writer observed a strong attachment between [X] and her mother[30].
[30] Ibid., p.14.
I therefore conclude that [X] has a meaningful relationship with both of her parents. It was not disputed at the Second Hearing that [X] should continue to have a meaningful relationship with both parents.
Section 60CC(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.
The Father deposed that over the last summer school holidays [X] spent alternate weeks with the parties during December 2018 and January 2019. The Father dropped [X] off with the Mother on Tuesday 29 January 2019, as he had been doing throughout the holidays. The Mother was to return [X] on Tuesday 5 February 2019, however this did not occur[31]. Instead the events referred to in paragraphs 16 to 19 of this judgment occurred.
[31] Father’s Second Affidavit, at [21].
The Mother withheld [X] from the Father unless he agreed to send [X] to Suburb L Primary School[32]. On Thursday 7 February 2019 the Father received a text from the Mother advising him that she was willing to let [X] visit him for the weekend, provided that he returned [X] to the Mother and provided that [X] could continue attending Suburb L Primary School. The Father complied with the Mother’s requirements and [X] stayed with the Father from 3.00 pm Friday 8 February 2019 to 5.00 pm Sunday 10 February 2019[33]. The Father described [X]’s behaviour during this visit as “concerning”. He said that [X]’s behaviour had altered and that she:
a)Was excessively “clingy”.
b)Called out from her bed at night using words to the effect of “Daddy I love you”.
c)Wanted to sit on his lap at meal times and did not want to move away from him.
d)Constantly sought the Father out and used words to the effect of “Daddy I love you”[34].
[32] Father’s First Affidavit, at [94].
[33] Ibid., at [95].
[34] Ibid., at [96] and [97].
The Father in his First Affidavit observed that whilst [X] was a very loving and affectionate child, he was concerned about the long term impact that the separation would have upon [X][35]. The Father continued to express his concerns about [X]’s emotional wellbeing in his Second Affidavit[36].
[35] Ibid., at [98].
[36] Father’s Second Affidavit, at [39] to [41].
In the Family Report Dr C expressed concern about the level of anxiety she observed [X] experience towards the Father. Upon finishing the assessment Dr C observed:
[…] [X] became agitated, tearful and clinging to him: “daddy I don’t want to go”, she repeated. [X] did not want to let her father go; [The Father] was reassuringly supporting her, but the separation was significantly affecting her, and she continued to escalate despite [the Father’s] supportive approach[37].
[37] Family Report, p.9.
Dr C discussed her observations of [X]’s separation anxiety with the Father with Ms H, who responded in an email to Dr C on 23 March 2019, stating that this separation anxiety had worsened since the set up in the family had changed. Ms H said:
Since all this has happened and [X] has been kept from coming home it has sent us all in a bit of a tailspin. Understandably [X] has shown overtly clingy behaviour towards [the Father] and only wanting to be with him even wanting to sit on his knee at the dinner table or follow him to the toilet. [X] has always been a daddy’s girl but would request lullaby’s (sic) from me or prayers with her brothers. So her current behaviour is far from the norm. We are only having every second weekend with her currently and it’s taking a long time for her to warm back up to the boys and me”.[38]
[38] Loc. cit.
Dr C also discussed her observations of [X]’s separation anxiety towards the Father with the Mother, who responded in an email to Dr C on 4 April 2019 as follows:
A main concern for me is when you mentioned that [X] was clingy. I find this alarming and unusual, as she is definitely not a clingy child, with the exception of being a bit reserved upon meeting new people, but once she is warmed up to them and knows she is okay, goes back to being her usual confident, bright, energetic self. [X] is a confident, brave, independent, well-adjusted and articulate little girl who lights up a room when she walks into it and brings energy and joy to those around her constantly. Clingy, is not a word I or anyone in our family or support community would ever use to describe vibrant little [X] […] She knows if she needs anything or wants anything that I am right here and always happy and available to help her[39].
[39] Ibid., p.9-10.
Dr C was of the opinion that:
[…] [X]’s separation anxiety to her father is linked to the change of school and care arrangements this year. In my opinion, [X] appears to be “confused” does not seem to understand the changes here, and her mental health is further being impacted by these changes[40].
[40] Ibid., p.9.
In the Family Report Dr C’s recommendations included:
a)A return to the previous parenting plan where [X] spends 9 nights in a fortnight with the Father. In Dr C’s opinion if the previous parenting plan was resumed, [X]’s separation anxiety towards the Father would reduce[41].
b)A change of schooling for [X] to School A as soon as possible[42].
[41] Ibid., p.15
[42] Loc. cit..
I accept these recommendations by Dr C.
The additional considerations are set out in s.60CC(3) of the Act. I will now consider the additional considerations.
Section 60CC(3)(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;
[X] is presently 5 years old. The Father has deposed that [X] has often told him that she wants to attend school with her step-brothers [J] and [K][43]. On about 7 February 2019 [X] told the Father in a Facetime conversation that she didn’t understand why she was staying longer with the Mother and stated that she wanted to “come home”. [X] also told the Father that she had been going to school but that she actually wanted to go to School A[44].
[43] Father’s First Affidavit, at [67].
[44] Ibid., at [74].
The Father has deposed that [X] has continued to express a desire to attend School A with her step-brothers and to return to live with the Father. These views have been expressed by [X] in almost every Facetime conversation that the Father has had with [X]. The Mother has been present or within hearing distance of every Facetime conversation the Father has had with [X][45].
[45] Father’s Second Affidavit, at [28], [34] and [41]-[43].
The Mother has deposed that [X] has never expressed that she would like to attend School A with her step-brothers[46].
[46] Mother’s Affidavit, at [49] and [58].
In the Family Report Dr C reports that [X] said:
“I don’t want to stay at Suburb L, I wanna play with my brothers at School A, but I am worried that my friends will be upset”.
When asked what can be done about that “maybe friends at Suburb L maybe tell them that I don’t want to go there”. “School A has a big playground and I don’t like Suburb L, I forget where the toilets are”.
[…]
“I like going to mum’s, but I wanted to go back to how it was”.[47]
[47] Family Report, p.11-12.
Dr C examined how [X] felt at both parent’s houses and at her current school. Dr C reported that:
[X] drew that she is equally happy at her mum and dad’s house, but she reported that she feels more worried at mum’s house “the tigers and lions are trying to get me”.
She reported that she feels calmer at [the Father’s] house “I am more calm at dad’s house, the more angry I am, the more angrily she [the Mother] talks to me, and the more sad I get when I am naughty”. “I am happy but not that happy at mum’s, I miss my brothers”[48].
[48] Ibid., p.12.
Dr C concluded that the decision for [X] to attend Suburb L Primary School was not in line with what [X] actually reported that she wanted to do at both interviews during the Family Report assessment[49]. Dr C also concluded that the decision for [X] to attend Suburb L Primary School was not in [X]’s best interests[50].
[49] Ibid., p.15.
[50] Loc. cit.
[X] is very young and clearly enjoys spending time in both households. However [X] also clearly wants to spend more time at her Father’s house and misses spending time with [K] and [J].
Section 60CC(3)(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);
Each of the child's parents
I refer to the discussion in relation to s. 60CC(2)(a). Further, Dr C reported that the relationship between the Father and [X] is “clearly warm and loving”[51]. Dr C also concluded that whilst it was evident that the parents have not been able to form a shared parental alliance and they do not trust each other, they both love [X][52].
[51] Ibid., p.8
[52] Ibid., p.14.
The Mother deposed that [X] lived primarily with her since separation[53]. The parties separated when [X] was just over seven months old. The Mother does not explain the basis of her claim that [X] lived primarily with her since separation on 7 July 2014. The Mother also deposed that:
[X] has been in my primary care since January 2019 and the commencement of school[54].
[53] Mother’s Affidavit, at [7] and [46].
[54] Ibid., at [34].
The Father deposed that after separation the Mother did not initially have much involvement with [X]’s day to day care and his mother came to live with him to help with the care of [X]. The Mother’s involvement with [X] increased towards the end of 2014. The Father initiated Family Mediation in 2014[55]. There were then two parenting plans produced during mediation as follows[56].
a)Greensborough Family Relationship Centre Parenting Plan, dated 26 February 2015 and unsigned. This plan provided for [X] to spend 8 nights in a fortnight with the Father and the other six nights with the Mother.
b)Handwritten parenting plan, dated 16 April 2015 and signed by both parties. This plan also provided for [X] to spend 8 nights in a fortnight with the Father and the other 6 nights with the Mother[57].
[55] Father’s Second Affidavit, at [4].
[56] Loc. cit. and Annexure “N-01”.
[57] Father’s First Affidavit, at [7].
In 2016 the Department of Human Services reviewed [X]’s care arrangements for the purposes of the Parenting Payment. The review assessment addressed to the Father, dated 24 May 2016 states:
I have considered the circumstances of both carers and have assessed you as being the principal carer for [X] from 1 December 2014.
In February 2018 the parties entered into a Parenting Agreement, dated 15 February 2018 (2018 Parenting Agreement)[58] . From February 2018 [X] lived with the parties in accordance with Parenting Plan 1 of the 2018 Parenting Agreement, where she spent nine nights in a fortnight with the Father in Town D and the other five nights with the Mother in Suburb E[59]. The time [X] spent with the Mother was from the conclusion of kindergarten on a Thursday at 4.00 pm to the commencement of kindergarten the following Tuesday morning at 8.30 am each alternate fortnight[60].
[58] Father’s First Affidavit, at [54] and Annexure “N-04”.
[59] Ibid., at [7] and Father’s Second Affidavit, at [20].
[60] Ibid., at [13].
Other persons (including any grandparent or other relative of the child)
The Father deposed that [X] has a close relationship with [J] and [K][61]. [J] and [K] live with Ms H and the Father and spend alternate weekends with their father[62].
[61] Ibid., at [22], [86] and [88].
[62] Ibid., at [77].
The Father deposed that [X] also has a close relationship with Ms H and that they participate in a variety of activities together. [X] has chosen to refer to Ms H as “Mummy”[63].
[63] Ibid., at [109].
In the Family Report Dr C reported that the family related very well together in the family interview. [K] was observed to be affected by the current situation. Dr C reported that [K] kept trying to engage [X] in play, however [X] ignored him as she was focused only on her father. Ms H discussed these observations in her email to Dr C on 23 March 2019, where she said:
As you would have seen it has taken a big toll on [K] too. He and [X] are very close often playing together making up games. Ever since this has happened [K] has started having stomach cramps. [K] and [J] have both started new schools which is certainly a contributing factor (grade 2 and grade 6) but I think that [K] was counting on having [X] at school to play with. It is only in the last week or two that [K] has started not visiting sickbay as often and up to 4 times a day. I did have him checked over by a doctor and [K] was diagnosed with stomach migraines from stress[64].
[64] Family Report, p. 10-11.
In the Family Report Dr C reported that the family had been significantly affected by this year’s changes in schooling and parenting plan arrangements[65].
[65] Loc. cit.
Section 60CC(3)(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;
Participation in making decisions about major long-term issues in relation to the Children
The Mother and the Father in their proposed orders seek interim orders that they have equal shared parental responsibility for [X].
Both of the parents have sought to participate in making decisions about long term issues in relation to [X].
Opportunity to spend time and communicate with the Children
Subsequent to separation both parties have sought to spend time with and to communicate with [X]. I refer to the discussion in relation to s.60CC(3)(b)(i).
Section 60CC(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;
The Mother deposed that the Father has refused to provide any financial assistance for the care and wellbeing of [X] including:
[…] day to day general needs and expenses, including food, general clothing, school uniform and extra-curricular activities. I have never received a payment from [the Father]. I have and continue to provide for and pay for all such expenses[66].
[66] Mother’s Affidavit, at 35[(b)].
Consideration and Conclusion Proposed Order
In considering this interim decision I have adopted a conservative approach that is not likely to cause harm to [X], as suggested by the Full Court for interim matters in Marvel v Marvel[110].
[110] (2010) 43 Fam LR 348, at [120].
I have followed the legislative pathway as require by Goode v Goode[111], to the extent that I have been able, given that this is an interim case and the evidence is untested by cross examination.
[111] (2006) 36 Fam LR 422, 445, at [81]-[82].
I have considered each of the primary considerations in s.60CC(2) and accorded greater weight to the considerations set out in s.60CC(2)(b). I have also considered each of the additional considerations in s.60CC(3) to extent that they are relevant. For the reasons set out herein, I determine that the Father’s Proposal is in the best interests of [X] as required by s.60CA of the Act and orders are made accordingly.
I certify that the preceding one hundred and seventy seven (177) paragraphs are a true copy of the reasons for judgment of Judge Kirton QC.
Date: 26 April 2019
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
-
Procedural Fairness
-
Remedies
-
Standing
-
Statutory Construction
0
4
3