Osborne and Galloway
[2016] FCCA 985
•22 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OSBORNE & GALLOWAY | [2016] FCCA 985 |
| Catchwords: FAMILY LAW – Interim Parenting – Family Report recommendations – high conflict – Orders that are developmentally appropriate. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: MRR v GR [2010] HCA 4 Goode & Goode [2006] FamCA 1346 |
| Applicant: | MR OSBORNE |
| Respondent: | MS GALLOWAY |
| File Number: | WOC 113 of 2015 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 7 April 2016 |
| Date of Last Submission: | 7 April 2016 |
| Delivered at: | Hobart |
| Delivered on: | 22 April 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Hosking Legal |
| Counsel for the Respondent: | Mr Fowler |
| Solicitors for the Respondent: | Hansons Lawyers |
| Solicitors for the Independent Children's Lawyer: | Verekers Lawyers |
ORDERS
THE COURT ORDERS PENDING FURTHER ORDER THAT:
All previous Orders are discharged as from 6 May 2016 and the Order below commence 7 May 2016.
The Mother and the Father have equal shared parental responsibility for the care, welfare and development of the child of the relationship namely X born (omitted) 2013 (“the child”).
Each parent will be responsible for day to day decisions concerning the care of the child when the child is living with them or spending time with them.
The child, X born (omitted) 2013 (‘the child’) live with the Mother.
The child shall spend time with the father as follows:
(a) Week 1, Wednesday and Thursday from 5:00pm to 7:00pm and on Saturday from 8:00am to 12noon;
(b) Week 2, Wednesday and Thursday from 5:00pm to 7:00pm and on Sunday from 8:00am to 12noon.
(c) On Christmas Day each year from 8.00am to 12.00noon.
(d) If Father’s day falls on the weekend when X is otherwise spending time with the Father on the Saturday then his time with his Father on that day will be suspended and the child shall spend time with the Father on Father’s day from 9am to 12noon;
(e) Such further and other times as may be agreed, in writing, between the parties.
The Father’s time with the child be suspended on the following occasions:
(a)If the Mother’s Birthday falls on a day when the child is to be spending time with the Father, the Father’s time is suspended but replaced with 8.00am to12noon on the preceding day;
(b)The Mother is permitted to nominate a block period of not more than fourteen (14) nights or separate, non-consecutive, periods each calendar year being a total of 1 month off a year, for the purpose of taking the child on an extended holiday, and the Father’s time shall be suspended on the basis that the Mother complies with the following;
She is required to notify the Father, in writing, not less than 30 days prior to the intended fourteen (14) nights holiday or 14 days written notification of anything less than a fortnight of the nominated dates for the holiday;
The Mother shall facilitate the child speaking to the Father on at least one occasion whilst away on holidays at a time and day as agreed between the parties.
Changeover take place at the Father’s home, with the Mother delivering the child to the Father’s home at the commencement of his time with the child and the Father delivering the child to the Mother at the conclusion of his time with the child at her parent’s home being (omitted).
Each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within 7 days of such change.
In the event that the Father relocates to a location which is further than 5 kilometres from his previous address then the Mother will deliver the child to the Father at a mutually agreed changeover location not further than 5 kilometres from the Mother’s home and failing agreement the closest McDonalds Family Restaurant to the Mother’s home.
In the event of illness or emergency the parent with whom the child is with, contact the other parent forthwith to inform them including advising of what medical treatment was sought and details regarding any medication provide to or prescribed for the child.
That each of the parties be hereby restrained by injunction from:
(a) Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party, in the presence of or hearing of the child and from permitting any other person to do so in the presence of or within hearing of the child, and
(b) Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the child, and from permitting any other person to do so.
That the Father is restrained from consuming alcohol whilst the child is in his care and/or within 24 hours prior to the time that the child is scheduled to spend time with him pursuant to these Orders or any agreement between the parties.
That for the purposes of the Father completing the six fortnightly Family Therapy sessions, the child’s time with the Father each alternate Wednesday shall instead take place on Friday of that week on the basis that the Friday visit will otherwise coincide with the child spending Sunday of that coming weekend with the Father.
That the parties establish and use a communication book and record, for the information of the other, issues that are limited to the child’s care relevant to that day (when with the other parent), including but not limited to what the child may have eaten and how the child has otherwise been during that time, details of any accidents , minor injuries and what actions were taken to address the injuries including details of any medications given and that the communication journal will accompany the child between the parties homes.
The Mother and Father will be restrained from allowing X to be known formally by any other name other than X.
The Father is permitted to communicate with the child’s medical practitioners at any time and the Mother will provide any necessary authorities to any medical practitioners if this authority is requested at any time.
The matter be stood over to 15 September 2016.
THE COURT NOTES THAT:
A. The parties are to continue their involvement with the Family Relationships Centre program in an attempt to improve parental communication and their skills to assist them to co-parent.
IT IS NOTED that publication of this judgment under the pseudonym Osborne & Galloway is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 113 of 2015
| MR OSBORNE |
Applicant
And
| MS GALLOWAY |
Respondent
REASONS FOR JUDGMENT
This case is about a young boy, X, who was born (omitted) 2013. He is just over 2 years old. His parents cannot agree about what time X should be spending with his father.
In May last year, X’s parents entered into Interim Consent Orders that provided for him to spend time with his father. It was agreed that there would be equal shared parental responsibility and that X would live with his mother. The Consent Orders in question are very carefully drafted and provided for X’s time with his father to progress over time. After a period of 20 weeks, X’s time with his father would be Tuesdays and Wednesdays from 5pm to 7pm, and on alternating Saturdays and Sundays from 9am to 5pm.
That arrangement broke down at the final stage. In fact, from 17 October last year (2015) when X was to spend 9am to 5pm with his father on weekends, X’s mother decided that it would only be from 3pm to 7pm. The Father agreed to accept those changes pending the matter coming back to Court. An important intervening event then took place.
In January this year (2016) the Family Report prepared by Family Consultant Ms P, was released to the parents. The contents of that report are well-known to the parents. Ms P’s recommendations are found at paragraphs 51 to 61 inclusive. She recommended, and the parents appear to have accepted, that X’s mid-week contact with his father remain unchanged.
At paragraph 54 of her report, however, Ms P recommended that as a trial for weekend visits which would alternate between Saturdays and Sundays, the Father could on Sundays give X his breakfast and dress him, and spend a few hours with him, and then return X to his mother’s home for his nap. On Saturdays the Father could have X after he wakes from his midday sleep and return him to his mother after having given X dinner and after having had him ready for bed and dressing him in his pyjamas.
Ms P suggested that this continue for 6 months, that the Father complete a course called ‘Circle of Security’ enabling him to understand the needs of children and the impact of exposure to negative behaviour on children, and to learn about age-appropriate play. At paragraph 57, Ms P recommended that the weekend contact then incrementally increase after the 6 month trial period, provided the Father had completed the course, and provided X appeared to be coping. Then the Father’s time could increase by including X’s daytime sleeps on alternate Saturdays, or lasting 6 hours if X’s sleep pattern changes.
After 2 months she recommended this arrangement could be extended to the Saturday of each alternate week. This arrangement could be reviewed when X was 4 years old to then determine whether his time should be increased.
Thus, whilst X’s parents may well have thought that the Consent Orders that they entered into were in his best interests, there are 2 objective factors suggesting that those arrangements were not. Firstly, the arrangement clearly broke down. Whilst the Father seeks to attribute blame to the Mother for this, the fact is that he, quite properly as it turns out, agreed that he should not enforce the Order in its terms. The second objective factor is that Ms P’s recommendations are so clearly at odds with the existing Orders.
Despite what would appear to the Court to be very clear, well-reasoned recommendations by Ms P, the parents still cannot agree. Indeed, there are aspects of this entire dispute that does not reflect well on either of the parents.
The interim hearing was held before me on 4 April 2016. The Father was represented by his solicitor, the Mother by her Counsel and X by Mr Williamson, who was the Independent Children’s Lawyer. The hearing was time constrained. It was a duty day and there were several other urgent cases needing attention. The Father’s proposal was set out in his solicitor’s Case Outline Document. Putting aside the midweek time which appears relatively uncontentious, he proposes that X’s time on the weekends, that is alternating Saturdays and Sunday, be 9am to 5pm. This is notwithstanding the Family Court recommendations.
The Mother’s proposal is contained in the Minute of Order that was provided by her Counsel at the interim hearing. She proposed, putting aside midweek time, alternating Saturdays and Sundays from 9am to 12pm. Her Orders also proposed a number of other changes to the existing arrangements. The Independent Children’s Lawyer’s proposal was broadly consistent with that of the Mother insofar as it related to weekend time.
An issue that immediately arises is whether any of the proposals adequately reflect the recommendation contained in the Family Report. Thus, for example, Ms P at paragraph 54 clearly suggested that the arrangement differ between alternating Saturdays and Sundays with the aim of X spending time with his father in the mornings before his sleep and then in the afternoons after he sleeps. As it turns out, there appears to be good reasons why this recommendation cannot be implemented for the time being.
The Report contains recommendations about the Father undertaking certain courses of education and during the course of the matter it became apparent that he is, in fact, claiming to undertake these. It is important for the Father to complete the courses that Ms P recommends. He is to be both commended and encouraged to do so. It is noticeable that the Family Consultant’s recommendations at paragraphs 55 and 56 are reflected in the Mother’s Minute of Orders. Given that the Father seems to be willing to comply, the Court won’t make an Order in the circumstances.
Both parents need to ask themselves this question: Why would the Court make Orders inconsistent with those proposed by an independent expert who has conducted a comprehensive assessment of this family? The evidence before the Court clearly included Ms P’s report. The evidence of both parents is referred to in their Case Outline Documents. These Case Outlines are comprehensive documents and the Court gratefully acknowledges these documents and they will be incorporated as schedules to these reasons for judgment, so too the Minutes of Orders sought. The respective contentions about factual matters are more than adequately summarised in the chronologies that have been prepared by both parties. The legal arguments advanced are all likewise summarised.
The applicable law is contained in Part VII of the Act. In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘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) 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) 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) 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.
In MRR v GR [2010] HCA 4, the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"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." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(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."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
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.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 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.
In simple terms and without doing justice to his case, submissions made on the Father’s behalf strongly suggest to the court that he does not agree with the Family Report or its recommendations and, indeed, he feels that he did not receive a fair go. These are not the words used on his behalf but, rather, the Court’s interpretation of the submissions made on his behalf. He feels that the report was one sided, offering exclusive criticism of him but none of the Mother. He feels as if the Mother is blaming him exclusively for all the problems that X is experiencing. The Father reluctantly concedes that if he cannot have 9am to 5pm then an alternative would be 12noon to 6pm on the basis that X would spend some of his sleep time during the Father’s time.
On the Mother’s case, it is suggested that the real issue in this case is the degree of anxiety that X suffers, a fact that is objectively supported by the Family Report and, indeed, Dr T's Report of 24 March 2016. X appears to suffer anxiety. He cannot cope with lengthy times away from his mother or, indeed, it should be noted, he cannot cope with lengthy times with his father. The Mother has real concerns about how X would cope sleeping at his father’s home.
In the Independent Children’s Lawyer’s case, the focus was objective and independent evidence, namely, the Family Report prepared by Ms P. The Independent Children’s Lawyer was, in this Court’s opinion, quite appropriately critical of both parents and the approach they had taken in this case. He submitted that such objective material as there was before the Court strongly suggested that the Mother was indeed blaming the Father for all of X’s negative behaviour with limited acknowledgement of the possibility that either she was contributing to it in some way, or that it was normal developmental behaviour in the context of what was clearly a high conflict separation. He was critical of the Father for seeking to pursue his rights in circumstances where the objective evidence suggested that a child‑focused and more sensitive approach was necessary.
The Court must ask: what then to do? Whether X spends half the day with his father or a whole day with his father on a weekend actually makes no difference to the issue of meaningful relationship. On the material before the Court, X enjoys a meaningful relationship with his father and none of the Orders proposed are likely to change that. The Court does not accept that there are risk of harm issues in this case in the sense contemplated by s.60CC(2)(b). None of the proposals advanced to the Court, for example, suggests any risk of harm issues.
Indeed, the overall impression formed is that such risk of harm issues, as were referred to directly or indirectly, expressly or implicitly, were simply part of the mud throwing exercise that each undertook in the context of adversarial litigation in a high conflict, low trust case but which actually had very little to do with what is in the best interests of X. This case is not about risk of harm, it is about finding a developmentally appropriate spends time with arrangement for this little boy in the context of 2 parents who are at war with each other for reasons completely unrelated to X’s needs. The broader context of the Family Report’s concerns that X has been exposed to his parents’ conflict cannot be underestimated but these are not risk of harm issues.
X appears to have a good relationship with both of his parents. He suffers anxiety. It probably could be described as separation anxiety. The Mother gives evidence of a range of behaviours that she observes in X in the lead up to and after X’s time with his father. The Father says that when X comes into his care, he settles quickly. Both parents are quite incapable of seeing that there might be some substance to what each of them says. Neither parent is a reliable historian on these issues. The only objective and reliable evidence at this stage is the Family Report. It strongly suggests that developmental considerations are being greatly exacerbated by exposure to parental conflict.
The solicitor for the Father’s valiant attack or attempted attack on the weight to be given to the Family Report in the Father’s case was, with respect, misguided. Even if all the issues she referred to were in fact validated by evidence at the final hearing, it would not undermine the fundamentals of the Report. The overall impression formed about X from multiple sources is that any change in his life needs to be brought about incrementally and carefully. There are no issues of practical difficulty and expense. There are a number of minor and transient issues about midweek time whilst family therapy is undertaken and whilst the Father seeks to complete the ‘Circle of Security’ course. These are not significant.
Despite the concerns that each parent expressed about the other’s parenting capacity, in substance there is no evidence before the Court at this time to suggest that they are unable to meet X’s physical needs and even his emotional needs. The litany of complaints that the Mother makes against the Father as to his physical care of X are unsubstantiated. The real issue from the Court’s perspective for both parents is in relation to their attitudes to X and to their responsibilities as parents. Both showed significant deficits of insight. The Mother is anxious and there is a risk that if it does not change, that she will transmit this to X. The Mother is probably over-sensitive and over-protective when it comes to matters relating to X. The Father is stubborn, focused on his rights rather than his son’s needs, and is insensitive to the anxieties that X’s mother experiences.
Effective communication is an enormous struggle for X’s parents. There are allegations and denials, and some objective material suggesting family violence. All of this was in the past. None of it appears relevant to the dispute before the Court.
So what Orders are in the best interests of X? Whilst the Independent Children's Lawyer, quite correctly, submits that, until the Final Hearing of this matter in September this year, Orders should be made that reflect paragraph 54 of the Family Report. The Independent Children's Lawyer also, quite correctly, points out that the evidence of the parties suggests that X’s unpredictable sleep times may well make the practical implementation of paragraph 54 not possible for now.
This means that, for all practical purposes, morning time will be the most feasible alternative for X to spend time with his father. It is premature with respect to the Father to be seeking to incorporate X’s sleep time when he is with the Father. The Court has no doubt it will happen, but in time. The Independent Children's Lawyer proposed 8am to 12noon. The Mother proposed 9am to 12noon. There is evidence in the Mother’s own affidavits of her getting X up as early as 6am. So one would think that he would have no difficulty being ready for an 8am contact with his father. That will be for an 8am commencement of contact with his father. That will be the Order.
In her Minute of Proposed Order, the Mother makes a very sensible proposition about X’s time with his father on Father’s Day at paragraph 5(d). The Court accepts this. At the Mother’s order 6(a), whereas the Mother had originally proposed that if the Father’s time fell on Mother’s Day, it would be suspended. During her submissions, her Counsel indicated that she would agree to the contact continuing on the Saturday of the Mother’s Day weekend.
At Order 7 the Mother prefers the changeover to take place at her parent’s home at the conclusion of contact. Given the concerns that she expresses, albeit contested, the Court sees no problems with this. At paragraph 17 the Mother proposes a sensible solution to the difficulty that is presented by the Father undertaking family therapy on Wednesdays. This is appropriate. The remaining Orders sought by the Mother appear an appropriate and proportionate child-focus response to the issues before the Court.
At Order 11 of the Father’s Minute he sought the login details for the story part application at X’s childcare centre. The Mother’s concern is that if this Order is made, the Father will be able to access her communications with X’s day care centre. On behalf of the Mother, it was contended that there’s no obstacle to the Father establishing his own story part application with the day care centre. In the circumstances, the Court will not make order 11 proposed by the Father.
The Final Hearing of this matter is listed for 15 September 2016. Trial directions have been made. With respect to the parents, and I ask them to listen very carefully to this, they need to each take a reality check insofar as their respective applications before the court are concerned. They need to consider whether, even in September this year, X will be at the developmental stage where it is possible to make informed, long term decisions about his welfare. They need to consider, with respect, whether the highly stressful process of cross-examination at a Final Hearing will do anything to assist in resolving the question of what is the most developmentally appropriate parenting arrangement for their son. Surely there are better ways of achieving this outcome.
I am going to make Orders but these Orders will not commence until the weekend of 7 May 2016. There are practical reasons associated with actually preparing the Orders as I will be out of Chambers. So just to make it very clear, the existing arrangement continues until the weekend of 7 May 2016 and by then, fresh Orders will be available. I stand the matter over to 15 September 2016.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 5 May 2016
Schedule 1
Case Outline Document of Applicant Father
IN THE MATTER OF OSBORNE & GALLOWAY - (P) WOC 113/2015
Case outline of the Applicant Father
Matter listed for interim hearing before Judge Altobelli on 4 April 2016 at 2pm
Proceedings
These proceedings relate to the child X born (omitted) 2013 who is 2 years and 3 months old.
Documents to be read
The father relies on the following documents:
-This Case Outline document filed 30 March 2016 (noting the father seeks different orders to those contained in his Application in a Case filed 3 November 2015)
-Affidavit of Mr Osborne filed 3 November 2015
-Affidavit of Mr Osborne filed 29 March 2016
Tenders
| Tab | Document | Description |
| A2 | Injury/Illness report dated 15 June 2015 – (omitted) Early Learning Centre | X had a bite mark on his right hand. The day care staff were not sure how the injury occurred. The mother was notified of the injury by the day care. The child remained at day care until pick up later that afternoon. |
| A3 | Injury/Illness report dated 26 May 2015 – (omitted) Early Learning Centre | X was holding a toy phone. Another child bit him on the hand that was holding the toy. There was a bite mark to the back of his left hand. The mother was notified of the injury by telephone and the child remained at day care until pick up later that day. |
| A4 | Injury/Illness report dated 11 May 2015 – (omitted) Early Learning Centre | X fell off his bike and didn’t notice any injury as he got up and walked away. The educator noticed blood coming from X’s mouth and he had ‘a small hardly recognisable graze’ in the right side of his mouth, top lip. The mother was notified by the day care of the injury. She said X will usually tell you if he is hurt. The child remained at day care until pick up later that day. |
| A5 | Enrolment form for (omitted) Early Learning Centre dated 29 January 2015 | In ‘general information’ on page 8 the mother informs the day care that the child has a comforter which is a cream blanket with satin trim and he rubs the satin part. The mother provides the child’s feeding times precisely – 8am, 11.50am, 3.30pm and 6pm. The mother gives information about the child’s appetite including “will start playing with his tongue and letting the food roll out of his mouth once his had enough”. In ‘sleeping and resting’ the mother indicates that X sleeps from midday to 3pm and usually has a warm bottle of milk laying in his cot with a pillow. Once that is finished the mother usually gives the child a dummy and he goes off to sleep for 3 hours. The mother says “bed time now X”. |
| A6 | Parental responsibility action plan for (omitted) Early Learning Centre dated 22 June 2015 | The mother writes that Mr Osborne is the prohibited person on all days that the child attends. The mother writes on page 2 “Please call me, Ms Galloway, X’s mother immediately, do not hand X over to him. Please give Mr Osborne minimal information as he uses any information he can get against me and is constantly using X to upset me.” |
| A7 | Individual observation record at (omitted) Early Learning Centre | 27 April 2015 – (top of page) - The day care had a conversation with the mother regarding X’s paediatric appointment and looking into why he falls over and loses his balance all the time. 7 September 2015 (bottom of page and over page) – The father attended the day care to ask about X’s sleep time and bottle. At pickup, the staff spoke to the mother about how they have read the court order and are allowed to share information with the father regarding X. The mother thanked the staff for letting her know and indicated ‘that she is in the process of getting a new lawyer to take on her case, which she hopes will result in more precise legal guidelines for the staff at (omitted) Early Learning Centre to follow’. |
| A8 | Individual observation record at (omitted) Early Learning Centre | 9 June 2015 – The father attended the day care about being on the emergency contact list. The day care telephoned the mother. The father asked how the child was going in care, how he was going with sharing with other children and mentioned that when he had X the other week, X was pointing to where he had been bitten on the hand. (Page 2) X’s father seemed happy with the conversation, thanked the educator and exited the building. The day care called the mother straight away ‘ensuring and reinforcing that X was fine and safe and had not seen his father and the situation had been dealt with and he was now gone.’ The mother also spoke to the educator about a new court order and said she would provide it as soon as she had it. In her conversation with the educator, the mother ‘stressed that if he sees X he may try and take him’. The educator reassured the mother they would not let the father do this however the educator noted that in her conversation with the father he seemed unaware that X was in care on 9 June 2015. |
| A9 | Individual observation record at (omitted) Early Learning Centre | 2 November 2015 – The father telephoned the day care. He made enquiries about how the child was progressing and asked if the child was unsettled the previous week as the mother said. The father asked what days the child attended. The educator said she was instructed by her director to not give out this information. The father questioned why the educator could not give him this information. The educator said the father’s ‘tone of voice changed slightly to more stern/agitated’. The educator said she was following orders from her director. The father questioned if they had the court order as he was allowed to speak to the day care. The educator said the father needed to speak to Ms K. The father agreed and the parties hung up. The father called back and spoke to Ms K. He asked if they had received the court order. Ms K said she had and she had to collect the information requested for the court order today. The educator spoke to the other educators who said X was unsettled last week. |
| A10 | Letter from Dr S to Dr C typed 12 March 2015 but attendance at clinic was 24 April 2015 | X was referred for review of unsteady gait and imbalance when standing still. The mother first noticed the unsteady gait in March 2015 following an episode of hand, foot and mouth infection. Prior to this X had a steady gait and seldom fell, after beginning to walk at the age of 10 months. His hand, foot and mouth illness commenced with fever and rash (10 days). Following this he was often seen to hit or hold his head and hold his head, and was also quite irritable. The rash lasted 2-3 weeks and he had some nail bed peeling subsequent to this. X’s gait became unsteady following this and he is now frequently falling. This peaked after the illness and appears to be somewhat improving but still present. X’s pre-school has also independently mentioned concerns about X becoming clumsy and losing balance. The paediatrician recommended some investigations. There is a note on 25 May 2015 that as the mother reported clinical improvement, the MRI was cancelled and the mother was to call to arrange a follow up. |
| A11 | FACS record – Contact Record dated 15 July 2015 | Mother reports concerns regarding injuries to the child. On page 4 the record states “Caller stated that X is known to have tantrums where he would throw himself to the ground whilst in the mother’s care but this has never resulted in a fat lip. X also attends child care and this type of injury has never been reported by the childcare. Caller says X head butts things with his forehead but this would only cause a red mark….” |
Minute of Orders Sought
That Mr Osborne (‘the father’) and Ms Galloway (‘the mother’) have equal shared parental responsibility for X born (omitted) 2013 (‘the child’).
That the child shall live with the mother.
That the child shall spend time with the father in accordance with the following 2-week cycle:
a) In week 1 (commencing 4 April 2016 and each alternate week thereafter):
i.On Tuesday from 5pm to 7pm,
ii.On Thursday from 5pm to 7pm, and
iii.On Sunday from 9am to 5pm.
b) In week 2 (commencing 11 April 2016 and each alternate week thereafter):
i.On Tuesday from 5pm to 7pm,
ii.On Thursday from 5pm to 7pm, and
iii.On Saturday from 9am to 5pm.
c) At other times as agreed in writing.
That the child shall spend time with the parents on the following special occasions:
a) With the father on Father’s Day from 9am to 5pm,
b) If Mother’s Day should fall when the child is due to be spending time with the father, the father’s time is suspended on Mother’s Day and the child shall spend time with the father on the Saturday immediately before Mother’s Day from 9am to 5pm, and
c) At other times as agreed between the parties in writing.
That for changeovers on Tuesdays the father shall collect the child from day care at the beginning of the child’s time with the father and return the child to the mother’s residence at the conclusion of the child’s time with the father.
That for changeovers on days the child is not at day care, the mother shall deliver the child to the father’s residence at the commencement of the child’s time with the father, and the father shall return the child to the mother’s residence at the conclusion of the child’s time with the father.
That both parties will do all acts and things to continue their involvement with family therapy though the Family Relationship Centre and the parties will be responsible for their own fees in relation to family therapy.
That both parties shall keep each other informed of matters related to the child’s daily routine including but not limited to meal time, sleep routines and toilet training.
That both parties shall use a communication book to keep each other updated of matters related to the child and the communication book is to travel with the child.
That each party shall do all acts and things and sign all necessary documents to allow both parents to communicate with any day care or preschool facility that the child attends about issues relating to the child, and be recorded as a person to be notified in cases of emergency.
That the mother within 24 hours shall provide to the father the log in details for the Storypark app for the child’s day care where the parents can monitor the progress of the child. Should the log in details to the app change, the mother shall notify the father of the new log in details within 24 hours of any such change.
Without admissions, the parties are restrained from causing the child to be known by, or enrolled in any day care/pre-school in, any name other than X.
That each party will do all acts and things and sign all necessary documents to allow both parents to communicate with any medical or health professional treating the child about issues relating to the child.
That each party shall notify the other within a reasonable time of any illness or injury suffered by the child which requires medical treatment, but if the child suffers a serious illness and or injury, each party shall advise the other party as soon as practicable of any such serious illness or injury.
That each party shall advise the other of their current residential address, email address and mobile telephone number, and notify the other in writing of any change of such residential address, email address or mobile telephone number within 24 hours of any such change.
Without admissions, the father is hereby restrained and injuncted from consuming alcohol whilst the child is in his care and or within 12 hours prior to the time that the child is scheduled to spend time with the father.
Chronology relevant to the interim application
| Date | Event | Reference |
| April 2015 | The parties begin using a communication book | Affidavit of Mr Osborne filed 29 March 2016, para 38 annexure M pages 58-117 |
| 24 April 2015 | Child attends paediatrician for issues related to unsteady gait following hand, foot and mouth infection. Following this X was often seen to hit or hold his head, and was irritable. X’s gait became unsteady and he was frequently falling. | Tenders - A10 |
| 11 May 2015 | Child injured at day care. Child had a graze in his mouth. Mother notified of injury. | Tenders - A4 |
| 25 May 2015 | Mother reports clinical improvement in relation to child’s unsteady gait. | Tenders - A10 |
| 26 May 2015 | Child injured at day care (bite mark). Mother notified of injury. | Tenders - A3 |
| 27 May 2015 | Interim parenting orders made | Affidavit of Mr Osborne filed 29 March 2016, para 6, Annexure A pages 12-17 |
| 9 June 2015 | Father attends the day care about being on the emergency contact list and enquiring about how the child is progressing. | Tenders – A8 |
| 15 June 2015 | Child injured at day care (bite mark). Mother notified of injury. | Tenders - A2 |
| 22 June 2015 | Mother signs parental responsibility action plan at the child’s day care. She writes: “Please call me, Ms Galloway, X’s mother immediately, do not hand X over to him. Please give Mr Osborne minimal information as he uses any information he can get against me and is constantly using X to upset me.” Interim order 6 made 27 May 2015 gives the father permission to speak to the day care. | Tenders - A6 Affidavit of Mr Osborne filed 29 March 2016 annexure A page 16, order 6 |
| 24 June 2015 | The mother makes her last entry in the communication book. | Affidavit of Mr Osborne filed 29 March 2016, para 38 pages 115-116 |
| 15 July 2015 | Mother reports to FACS her concerns regarding injuries to the child. On page 4 the contact record states “Caller stated that X is known to have tantrums where he would throw himself to the ground whilst in the mother’s care but this has never resulted in a fat lip. X also attends child care and this type of injury has never been reported by the childcare. Caller says X head butts things with his forehead but this would only cause a red mark….” | Tenders – A11 |
| 25 July 2015 | The child’s time with the father on weekends increased from 9am-1pm to 9am-3pm in accordance with the interim orders. Father acknowledges some initial difficulties with the child not wanting to sleep while adjusting to the new arrangement. | Affidavit of Mr Osborne filed 3 November 2015 paras 5, 7. Affidavit of Mr Osborne filed 29 March 2016, para 42 |
| 6 September 2015 | Mother does not provide the child for a Father’s Day visit from 9am to 3pm in accordance with the interim orders. Make up time was agreed for 10, 17 and 24 September 2015 from 5-7pm. | Affidavit of Mr Osborne filed 3 November 2015 para 8, Annexure C pages 12-17. |
| 7 September 2015 | Father attends the child’s day care and enquires about X’s sleep routine and bottle. | Tenders - A7 |
| 14 September 2015 | Father sends mother an email that says “If you truly had X’s best interests at heart you would attend the session at relationships Australia that I tryed to set up so we could try and move forward and get on talking terms but you refused.” | Affidavit of Mr Osborne filed 3 November 2015 para 9 annexure D page 19 |
| September 2015 | Father states the child was sleeping while in his care on the weekend visits. Father states the information from the childcare centre was of assistance. | Affidavit of Mr Osborne filed 3 November 2015 paras 9-10, annexure D pages 19-20 |
| About 19 September 2015 | Mother does not agree for the child to stay longer than 3pm at the home of the father on weekends so the father returns the child to the mother in accordance with the interim orders. The child is woken to take him home in accordance with the interim orders. | Affidavit of Mr Osborne filed 3 November 2015 para 10 Annexure E page 22 Affidavit of Mr Osborne filed 29 March 2016 para 42 |
| 12 October 2015 | Mother requests to change the weekday visits to Wednesdays and Thursdays (instead of Tuesdays and Wednesdays). Father agrees. | Affidavit of Mr Osborne filed 3 November 2015 para 11 |
| 16 October 2015 | Mother sends father an email saying she will provide the child from 3pm to 7pm on 17 October 2015. Mother states: “I am not restricting you from seeing X tomorrow, I am just putting X’s care needs and wellbeing first until a more realistic schedule for X can be agreed upon enabling X more time to adjust with change in routine at these important early developmental stages of his life”. Father did not consent to vary the weekend arrangements in the interim orders. | Affidavit of Mr Osborne filed 3 November 2015 para 13, Annexure G, pages 28-30. |
| 17 October 2015 | Interim orders made 27 May 2015 say the child is to spend 9am to 5pm with the father one day each weekend. Mother does not comply with the order. Mother provides the child from 3pm to 7pm. The father had a swimming lesson and a birthday party for his nephew that the child did not attend. | Affidavit of Mr Osborne filed 3 November 2015 para 13, Annexure G, pages 28-30. |
| 23 October 2015 | The mother’s solicitor sends correspondence indicating the mother believes the orders ought to be varied as the mother states the child is not coping with an increase in time with the father. The father agrees to different arrangements for the weekend of 24 and 25 October 2015. | Affidavit of Mr Osborne filed 3 November 2015 para 14, Annexure H pages 32-35 |
| 24/25 October 2015 | Father spends time with child from 5-7pm on Saturday (in lieu of 29 October) and from 8am-12noon and 3pm to 7pm on Sunday | Affidavit of Mr Osborne filed 3 November 2015 para 14 |
| 27 October 2015 | Father’s solicitor sends correspondence that the father does not agree to permanently vary the weekend arrangements contained in the interim orders. The father states that if the mother will not comply with the weekend arrangements in the interim orders, he will lodge an application to bring the matter back before the court. | Affidavit of Mr Osborne filed 3 November 2015 para 15, Annexure I pages 36-41 |
| 29 October 2015 | Mother sends father an email about changing the interim orders. | Affidavit of Mr Osborne filed 3 November 2015 para 17 annexure K pages 46-51 |
| 30 October 2015 | Mother’s solicitor sends correspondence related to the weekend arrangements. “We are instructed that our client proposes that the parties attend family therapy forthwith and that, in the interim, the Orders are amended by agreement or otherwise that X shall spend time with your client every weekend, on Saturday and Sunday, from 3pm to 7pm.” Father sends mother an email at 6.18pm: “…so that X can keep seeing me I think we should do 5-7 Wednesday Thursday and 8-12 and 3-7 one day each weekend so that he goes home for his sleep which I believe is counter productive for X as I have just got him sleeping and feel this will only put him back. But since you won’t let me see him if I don’t agree to your changes I’m just going to agree till the matter goes back to court after the family report the judge can just re- decide the interim orders…”. | Affidavit of Mr Osborne filed 3 November 2015 para 16, Annexure J pages 44-45 Affidavit of Mr Osborne filed 3 November 2015 para 17 annexure K page 49 Affidavit of Mr Osborne filed 3 November 2015 para 17 annexure K page 48 |
| 31 October 2015 | Father sends email to mother at 6.45am: “Hi Ms Galloway can I please have X to day from 8 to 12 as I explain I have the swimming classes….” Mother sends email to father at 9.17am: “I emailed you last night regarding times for this weekend until something better suited for X can be put into place….I will be dropping X to you at 3pm…”. Father sends email to mother at 9.39am: “I’ll ask again could you please drop him round so I can take him to swimming the lesson starts at 10.30…” The child spent time with the father from 3pm to 7pm. At 10.10pm, the mother sends the father an email asking about the mark on the child’s neck. | Affidavit of Mr Osborne filed 3 November 2015 para 17 annexure K page 48 Affidavit of Mr Osborne filed 3 November 2015 para 17 annexure K page 47 Affidavit of Mr Osborne filed 3 November 2015 para 17 annexure K page 47 Affidavit of Mr Osborne filed 3 November 2015 para 17 Affidavit of Mr Osborne filed 3 November 2015 para 18 annexure L page 54 |
| 1 November 2015 | The father responds to the mother’s email. The father explains that the mark on the child’s neck was caused by the soft part of the seat belt moving and the seat belt accidently scratching the child. The mother sends the father an email at 2.27pm unilaterally cancelling the child’s time with the father on 1 November 2015: “I’ve read your email. I am extremely concerned about X and as a worried and protective mother I am stopping your 3pm to 7pm contact for today. I need to seek advice from my Lawyer tomorrow. X can’t keep going on like this, something more suitable for X’s wellbeing needs to be put into place.” | Affidavit of Mr Osborne filed 3 November 2015 para 18 annexure L pages 53-55 |
| 2 November 2015 | Father contacts day care to enquire about the child and see whether he was unsettled the previous week. The father asks what days the child attends and the educator said she had been directed to not release that information. | Tenders – A9 |
| 3 November 2015 | Father files an Application in a Case. Matter listed on 28 January 2016. | Application in a Case filed 3 November 2015 |
| November 2015 | Father agrees to spend time with the child on weekends from 8am-12 noon and 3pm-7pm until the interim application can be determined by the court. | Affidavit of Mr Osborne filed 29 March 2016, paras 8-11 |
| 8 November 2015 | Mother texts father saying the child is ill and still asleep. Father agrees to collect the child at 5pm instead of the mother delivering the child at 3pm. Father spends time with child from 8am to 12 noon and 5pm-7pm. | Affidavit of Mr Osborne filed 29 March 2016, para 12 Annexure B pages 19-20 |
| 14 November 2015 | Mother and father text each other. Mother says the child slept from ‘around 2’ to 4.30pm. Father spends time with the child from 8am to 12 noon and from about 4.45pm to 7pm. | Affidavit of Mr Osborne filed 29 March 2016, para 13, annexure C pages 22-23 |
| 22 November 2015 | Mother and father text each other. Mother says child went down for a sleep at 12.30pm. At 4.15pm the father texts the mother and the mother replies saying the child ‘has just woken up’. | Affidavit of Mr Osborne filed 29 March 2016, para 14 annexure D pages 25-28 |
| Late November 2015 | Although the parties agreed the child would spend time with the father from 8am-12 noon and 3pm-7pm on weekends, the child is usually delivered by the mother at about 5pm. | Affidavit of Mr Osborne filed 29 March 2016, para 15 |
| 26 December 2015 | Mother delivers the child to the father at 8am. Father texts mother and says he intends to keep the child for an 8 hour period in accordance with the interim orders. The mother says she will call the police and report the father for abducting the child. The mother also says that if the father retains the child for an 8 hour period, the mother will forego the father’s contact until the matter goes back before the court. The father texts the mother and says he will return the child at 12. The father does not receive a response so he texts the mother and says if he does not get a response he will return the child at 4. At about 12.30pm (maybe later) the mother attends the father’s home. The mother films the encounter on her mobile phone. The father takes the child out of his cot and hands the child to the mother calmly as the father did not want the child to think anything was wrong. | Affidavit of Mr Osborne filed 29 March 2016, paras 16-17 |
| 29 December 2015 | The mother instructs her solicitor that if the father seeks to follow the interim orders instead of the agreed arrangement, there will not be any arrangements pending the next court date. The father chooses to follow the mother’s arrangements as he would like to keep seeing the child. | Affidavit of Mr Osborne filed 29 March 2016, para 18 annexure F pages 39-40 |
| December 2015 | The child spends time with the father from 5-7pm on Wednesdays and Thursdays and from 8am-12noon and 5pm to 7pm one day each weekend. | Affidavit of Mr Osborne filed 29 March 2016, para 19 |
| 18 January 2016 | Orders made releasing family report | Orders dated 18 January 2016 |
| 28 January 2016 | Matter set down for interim hearing | Affidavit of Mr Osborne filed 29 March 2016, para 19 |
| 29 January 2016 | The mother does not agree to continue the existing arrangement. The mother proposes the child spend time with the father from 8am to 12 noon on Saturday in one week and on Sunday from 4.30pm to 7pm in the other week. The father does not agree to vary the current arrangements to what the mother proposes but is open to further discussion. | Affidavit of Mr Osborne filed 29 March 2016, para 20 annexure G pages 42-44 |
| 30 January 2016 | The mother emails the father saying that the child will spend time with the father from 4.30pm to 7pm on 31 January 2016. The father replies saying he does not agree to the mother’s changes and proposes different arrangements. | Affidavit of Mr Osborne filed 29 March 2016, para 21 annexure H page 46 |
| February 2016 | Parties agree the father will spend time with the child on weekends from 8am to 1pm. Mother requests the father sign an undertaking that he will return the child. Father proposes that both parents sign an undertaking. Mother does not provide any undertaking. Mother requests a second time that the father provide an undertaking and that it be provided before 13 February 2016. | Affidavit of Mr Osborne filed 29 March 2016, para 22 |
| 12 February 2016 | Father provides an undertaking that is to expire on 4 April 2016. The child spends time with the father from 5-7pm on Wednesdays and Thursdays and from 8am to 1pm one day each weekend. | Affidavit of Mr Osborne filed 29 March 2016, para 22 annexure I pages 48-50 |
| 19 February 2016 | Mother requests to suspend certain visits to take the child on a holiday. Later in February, the father says if the mother provides make up time, he will agree. The mother decides that she will not go on a holiday. | Affidavit of Mr Osborne filed 29 March 2016, para 24 |
| 14 March 2016 | Mother advises father that she and the child live at (omitted).. Mother says that all changeovers are to be at (omitted) (home of maternal grandparents and mother’s former residence). The interim orders indicate changeover is at the ‘mother’s residence’. Father telephones the child’s day care. He is told about an app where parents can follow the child’s progress. The father texts the mother requesting log-in details. | Affidavit of Mr Osborne filed 29 March 2016, para 30 annexure K page 54 Affidavit of Mr Osborne filed 29 March 2016, para 35-37 annexure L page 56 |
| 16 March 2016 | Father sends mother an email requesting to change contact from Wednesdays to another afternoon as his appointments with the family counsellor are at the same time as contact. The father also asks for the log-in details for the day care app. | Affidavit of Mr Osborne filed 29 March 2016, para 25-28 annexure J page 52 |
Section 60CC factors
Primary considerations:
(a)The benefit to the child of having a meaningful relationship with both of the child's parents
The father agrees that the child should have a meaningful relationship with both parents.
(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 mother raises concerns about the child being injured while in the father’s care (Affidavit of Ms Galloway filed 17 November 2015 para 15, 16(d)(h)(i)(t) and others).
The father’s evidence is that when the mother asks about the child’s injuries, he answers her as best he can (Affidavit of Mr Osborne filed 29 March 2016 para 46). The father states that the child sometimes has injuries that he considers normal childhood injuries such as a child falling off a bike.
There is evidence that when the father notices a mark on the child, he tells the mother. For example, in the communication book on page 18 (found at page 76 of the affidavit of Mr Osborne filed 29 March 2016) the father writes on 12 May 2015: “…I noticed a red spot that looks like a bite on his bum you might want to check that out….”. In the communication book on page 10 (found at page 68 of the affidavit of Mr Osborne filed 29 March 2016) the father writes on 2 May 2015: “He did slip over and bag his head and cryed for a few minutes but once I settled him he carried on like nothing had happen and kept playing with his toys. This was just before 4pm”. The mother acknowledges that the father has informed her of injuries. In the mother’s affidavit filed 29 March 2016 at para 28 the mother says the father advised her of when the child was injured while riding a scooter.
The mother states at paragraph 16(d) of her affidavit filed 17 November 2015 in relation to a fat lip on 21 June 2015 that “X would not have let this happen without showing signs of pain and discomfort to Mr Osborne”. The record marked A4 is from the (omitted) Early Learning Centre on 11 May 2015 where the child fell off his bike at day care, resulting in a small graze on his top lip, and the child did not show any signs of distress. It is submitted that it is possible that the child occasionally obtains small injuries without showing distress.
There is evidence that the child has sustained some injuries at day care (A2, A3, A4).
The child has a history of unsteady gait and imbalance while ill (A7, A10).
The mother states she believes the father drives the child around without winding the windows down leaving the child to overheat (Affidavit of Ms Galloway filed 17 November 2015 para 16(a)(g)). The father’s evidence is that when the child is in the car with him, he puts the air conditioning on (Affidavit of Mr Osborne filed 29 March 2016 para 45).
Additional considerations:
(a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
The child is 2 years and 3 months old and therefore too young to express a view.
(b)The nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child)
The father states he has a good relationship with the child. The father states that when the child visits him, the child is generally happy to see him (Affidavit of Mr Osborne filed 29 March 2016 para 48).
(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;
The father has taken the opportunity to spend time with the child.
The father enquires about the progress of the child with the day care (A7, A8, A9).
(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 father pays child support as assessed.
(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;
The interim orders made 27 May 2015 provide for the child to spend two weekdays with the father from 5-7pm, and one day each weekend from 9am to 5pm commencing 17 October 2015.
The child currently spends time with the father from 5-7pm on Wednesdays and Thursdays. The father seeks to change the Wednesday to Tuesday (or Monday or Friday) so that he can attend appointments at the Family Relationship Centre every second Wednesday. It is submitted that the child would be able to cope with the Wednesday visit being on a different afternoon.
The child currently spends from 8am to 1pm (5 hours) on one day each weekend with the father. The father’s evidence is that by September 2015, the child was sleeping while in his care (Affidavit of Mr Osborne filed 29 March 2016 para 42). The father submits that the child would not have his afternoon sleep disrupted if the visits on weekends were from 9am to 5pm.
(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
The mother lives in (omitted). The father lives in (omitted). Neither parent has expressed any intention to move from the area.
(f)The capacity of each of the child's parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
The mother states the father is not bathing the child (Affidavit of Ms Galloway filed 17 November 2015 para 14, Affidavit of Ms Galloway filed 29 March 2016 para 10). The father’s evidence is that when the child is with him in the evenings, he baths the child. The father says there have only been a couple of days when he has not bathed the child (Affidavit of Mr Osborne filed 29 March 2016 para 44). The father has written to the mother about bathing the child. For example:
-The mother’s affidavit filed 17 November 2015 at para 16(i) attaches annexure H where the father sends the mother an email on 21 July 2015 in response to her enquiry. He says: “I didn’t notice any rash after I got him out of the bath…”
-The mother’s affidavit filed 17 November 2015 at para 16(bb) attaches annexure J which is an email trail where the mother says the child was not bathed but the father says that the child went in a pool and was bathed that day. The mother did not believe the father.
-The communication book (Annexure M of the father’s affidavit filed 29 March 2016 pages 57-117) contains multiple entries where the father indicates he bathed the child (e.g. page 72, 83, 86)
The mother states the father is not feeding the child adequately (Affidavit of Ms Galloway filed 17 November 2015 para 14, Affidavit of Ms Galloway filed 29 March 2016 para 10). The father’s evidence is that some days the child is hungrier than others (Affidavit of Mr Osborne filed 29 March 2016 para 43). The father states that on weekdays he feeds the child dinner and if the child is distracted and wants to play, he will still encourage the child to eat his dinner. The father states that on weekends he feeds the child breakfast, snacks and usually a light lunch.
The mother is concerned about the child’s behaviours including head-butting (Affidavit of Ms Galloway filed 17 November 2015 para 7-8, 16(c)(f)(h) and others). The father’s evidence is when the child visits him, he is generally happy to see the father (Affidavit of Mr Osborne filed 29 March 2016 para 48). The father says that the child does not head-butt as much while with the father but when he does the father will distract the child or give him a cuddle to stop the child head butting (para 47). The father also gives evidence that if the child has a tantrum, he will try to calm him down (para 56).
The mother states the child will not sleep while with the father (Affidavit of Ms Galloway filed 17 November 2015 para 9-13). The father acknowledges some initial difficulties in getting the child to sleep (Affidavit of Mr Osborne filed 29 March 2016 para 42). The father says he tried driving the child around in the car (which is a technique that the mother used on at least one occasion – Affidavit of Mr Osborne filed 3 November 2015 para 7 annexure B page 9). The father made enquiries with the mother to try and re-create the child’s sleep routine. The mother stated the child did not require anything specific, “just to feel safe and secure” (Affidavit of Ms Galloway filed 17 November 2015 para 16(q)). The mother told the day care that the child had a comforter which is a cream blanket (A5) and described the child’s sleep routine including the use of a dummy. The father went to the child’s day care on 7 September 2015 (A7). Following this, the father says he used the information provided by the day care and during September 2015, the child started sleeping during his visits with the father (Affidavit of Mr Osborne filed 3 November 2015 para 9-10).
The mother in her affidavit filed 17 November 2016 at paras 16(w), (z) and (aa) acknowledges that the father told her the child had slept while in his care during September/October 2015.
(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
The child attends day care two days per week. The child is used to spending periods of up 8 hours away from his mother.
The father has demonstrated maturity when interacting with the mother post-separation. The father wrote in the communication book on 23 June 2015: “I’ve asked many times now for us to put things aside for X’s sake he’ll be talking soon and with that will come questions he’s going to find it strange that we don’t speak and I’m 100% he won’t be picking up bad vibes from me at change overs its up to you if you want to keep this book going or not. May be we could just try talking to one another…” (Affidavit of Mr Osborne filed 29 March 2016 annexure M page 114).
(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;
The child is not an Aboriginal or Torres Strait Islander child.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The father has a good attitude towards the child. The father has written to the mother “…all said and done we have a wonderful son together…” (Affidavit of Mr Osborne filed 3 November 2015 page 25, annexure F) and “I think we are lucky to have such a happy little boy” (Affidavit of Mr Osborne filed 29 March 2016 annexure M page 92).
(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
The father denies family violence. There are no current nor previous family violence orders.
(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
The matter is listed for interim hearing at 2pm on 4 April 2016 and listed for final hearing on 15 and 16 September 2016.
(m) Any other fact or circumstance that the court thinks is relevant
The mother did not provide the child in accordance with the interim orders that from 17 October 2015, the child spend from 9am to 5pm with the father on weekends. On 17 October 2015 the mother unilaterally decided that she would provide the child from 3pm to 7pm (Affidavit of Mr Osborne filed 3 November 2015 para 13, Annexure G, pages 28-30).
On 30 October 2015 the father chose to agree to certain changes until the matter could be brought back before the court. After the father agreed to one of the mother’s proposals, the mother unilaterally determined a different arrangement that weekend (Affidavit of Mr Osborne filed 3 November 2015 para 17 annexure K page 48).
The mother said in December 2015 that if the father did not follow the agreed arrangement instead of the interim orders, the mother would forego his visits until the matter went back before the court (Affidavit of Mr Osborne filed 29 March 2016, para 18 annexure F pages 39-40, Affidavit of Mr Osborne filed 29 March 2016, paras 16-17, annexure E).
After the release of the family report, on 30 January 2016 the mother unilaterally determined the arrangement for that weekend as she no longer agreed to follow the existing arrangement (Affidavit of Mr Osborne filed 29 March 2016, para 20 annexure G pages 42-44, para 21 annexure H page 46).
Date: 30 March 2016
Britt Smith
Solicitor for the Applicant Father
Schedule 2
Case Outline Document of Respondent Mother
FEDERAL CIRCUIT COURT OF AUSTRALIA
Matter name: MR OSBORNE and MS GALLOWAY
Matter number: WOC 113/2015
RESPONDENT’S OUTLINE OF CASE DOCUMENT
Filed on behalf of: Ms Galloway
Date/time of hearing: 4/04/2016 at 2.00pm.
Date of cohabitation: 2012
Date of marriage: Not applicable
Date of separation: 18 September, 2014
Child: X DOB (omitted) 2013 (aged 2)
1.Interim issues:
a.The time the child is to spend with the father:
i.On alternate Saturdays and Sundays [The mother proposes that this time be 8am to 12pm. The father proposes that it be 9am to 5pm. It is agreed that this time will take place on Saturday in one week and on Sunday in the other week.]
ii.On Christmas Day. [The mother proposes 9am to 12pm. The father proposes 12pm to 5pm.]
iii.On Father’s Day, the father’s birthday, the child’s birthday and on Easter Sunday. [The mother proposes 9am to 12pm on each of those days. The father proposes 9am to 5pm on Father’s Day, 5pm to 7pm on the father’s birthday and12pm to 5pm on the child’s birthday and on Easter Sunday.]
[The time the child is to spend with the father on weekdays, namely each Wednesday and Thursday from 5pm to 7pm, is agreed.]
b.When the child’s time with the father is to be suspended on Mother’s Day and the mother’s birthday [The mother proposes that any time the child would otherwise have spent with the father on those days be suspended. The father proposes that on those days the child be with the mother from 9am to 5pm].
c.Changeover location [The mother proposes that changeovers take place at the father’s home provided that he does not relocate more than 5 kms from his previous address. The father proposes that changeovers take place at the father’s home at the commencement of time and at the mother’s home at the conclusion of time].
d.The right of the mother to nominate a block period/s each year to take the child on a holiday during which period the child’s time with the father is suspended [As proposed by the mother].
e.A mutual restraint from abusing, denigrating etc. the other party in presence or hearing of the child and from discussing these proceedings etc. with or in presence or hearing of the child [As proposed by the mother].
f.The time period for which the father is restrained from consuming alcohol prior to the time the child is to spend with him [The mother proposes that this be 24 hours prior to the time the child is scheduled to spend time with the father. The father proposes that it be 12 hours prior].
g.Enrolment by the father in the Circle of Security course [As proposed by the mother].
h.Enrolment by the father in specialised counselling or in the Taking Responsibility course [As proposed by the mother].
i.Participation by the parties in family therapy through Relationships Australia or other agreed therapist [As proposed by the father].
j.A mutual restraint from causing the child to be known by any name other than X [As proposed by the father].
k.Various other specific issues orders sought by the father [Orders 8, 9 and 10 of the father’s Application in a Case].
2.Documents to be read in Respondent’s case
a.Amended Response to Application in a Case filed 24/3/2016.
b.Affidavit of Ms Galloway dated 24/2/2015 filed 25/2/2015.
c.Affidavit of Ms Galloway dated 16/11/2015 filed 17/11/2015, paragraphs 6 to 20 inclusive.
d.Affidavit of Ms Galloway dated 24/3/2016 filed 29/3/2016.
e.Child Dispute Memorandum dated 17 April, 2015.
f. Family Report of Family Consultant Ms P dated 11 January, 2016.
3.Minute of order sought by Respondent
The Respondent seeks orders in terms of her Amended Response to Application in a Case filed 24/3/2016.
4.Chronology:
Key:
M1 Affidavit of Ms Galloway dated 24/2/2015
M2 Affidavit of Ms Galloway dated 16/11/2015
M3 Affidavit of Ms Galloway dated 24/3/2016
F Affidavit of Mr Osborne dated 25/3/2016
FR Family Report of Ms P dated 27 May 2015
Date Event Reference (omitted) 1980 Father born, aged 36. F1 (omitted) 1981 Mother born, aged 35. M1 @ 2 2012 Commencement of cohabitation. M1 @ 5 (omitted) 2013 X born, aged 2. M1 @ 4 18 SEP 2014 Separation under same roof. M1 @ 6 25 OCT 2014 The father verbally abuses the mother at (omitted) in the presence of the child and other persons. M1 @ 21 (omitted) 2014 X's first birthday party. Father yells at mother and then drives to maternal grandparent's home to remove X who is having a sleep. Father can’t gain entry and telephones maternal grandmother and maternal grandfather and says that he will jump the fence and take X. Incident reported to (omitted) Police Station by maternal grandfather. Father returns to matrimonial home and points his finger at the mother's face and shouts at her continuously. Mother calls police. Police remove the father's 3 rifles. M1 @ 25-26 29 DEC 2014 Mother and X move out of former matrimonial home into maternal grandparent's home nearby. M1 @ 7 31 DEC 2014 - 12 JAN 2015 X spends time with father on each week day from 5-7pm and from 8am to 12 noon on each alternate Sunday, as agreed by the parties. M1 @ 42 10 FEB 2015 Father files Initiating Application 13 FEB 2015 Mother and father sign Parenting Plan including the following terms:
1. The child live with the mother.
2. The child spend time with the father:
a. Each Tuesday and Wednesday from 5pm to 7pm.
b. Each Saturday from 3pm to 5pm.
3. Changeover at (omitted).
4. Father is restrained from consuming alcohol whilst child is in his care or within 12 hours prior.
5. Both parties enrol in a parenting after separation course.M1 @ 49 and annexure "B" 25 FEB 2015 Federal Circuit Court of Australia. Interim parenting orders made by consent, including orders that:
1. The parents have ESPR for the child, X.
2. The child live with the mother.
3. The child spend time with the father:
a. Each Tuesday and Wednesday 5-7pm.
b. Each Saturday 3-5pm.
4. Changeovers at (omitted).
5. Father restrained from consuming alcohol whilst child is in his care or within 12 hours prior.
6. Each party notify the other of illness or injury to child.17 APR 2015 Child Dispute Conference held with Family Consultant Ms S. 27 MAY 2015 Federal Circuit Court of Australia. Interim parenting orders made, including orders that:
1. The parents have ESPR for the child.
2. The child live with the mother when not spending time with the father, and on specified special occasions.
3. The child spend time with the father:a. For 8 weeks: each Tuesday and Wednesday 5-7pm, and on alternating Saturdays and Sundays from 9am to 1pm.
b. For the next 12 weeks: Each Tuesday and Wednesday 5-7pm, and on alternating Saturdays and Sundays from 9am to 3pm.
c. Thereafter each Tuesday and Wednesday 5-7pm and on alternating Saturdays and Sundays from 9am to 5pm.
4. The child spend time with the father on specified special occasions.
5. Changeovers at father's residence at commencement and mother's residence at conclusion of time.
6. Each party allowed to communicate with day care facility child attends about child's issues.
7. Each party allowed to communicate with medical/health professional treating child.
8. Each party notify the other of illness or injury to child.
9. Each party advise other of current address, email address and mobile telephone number and of any changes.
10. Each party restrained form causing child to be known by any name other than X.
11. Father restrained form consuming alcohol whilst child is in his care or within 12 hours prior.
Family Report ordered.
7 JUN 2015 Father returns X to mother after X spent 4 hours with father. Mother notices that X's hair was soaking wet from perspiration, his face and ears are flushed and he looked extremely overheated. M2 @ 16(a) 13 JUN 2015 Father returns X to mother after X spent 4 hours with father. X was tired and irritable, slapped mother in the face and refused to sleep on his own. M2 @ 16(b) 17 JUN 2015 Father returns X to mother after X spent 2 hours with father. Father notes in handover book that X had been head butting when with the father. X wakes during the night crying out for the mother. Since this time the mother has observed X head butt the floor for no reason and the wall in anger. M2 @ 16(c) and annexure "C" 21 JUN 2015 X is returned to mother after spending 4 hours with father. X has a fat and bloodied lip and a cut under his nose and on his tongue. M2 @ 16(d) and annexure "D" 24 JUN 2015 X is returned to the mother after spending 2 hours with the father. X is angry and head butts the glass sliding door. M2 @ 16(f) 27 JUN 2015 X is returned to the mother after spending 4 hours with the father. X is perspiring and very hot. M2 @ 16(g) and annexure "F" 14 JUL 2015 X is returned to mother after spending 2 hours with the father, with a bruised upper lip. The father tells the mother that X had "chucked a tantrum that lasted about 20 minutes". Mother contacted FACS. M2 @ 16(h) and annexure "G" 21 JUL 2015 X is returned to mother after being with father from after day care to 7pm. X is aggressive, hungry and has a strange rash on his bottom and what the mother says looked like burn marks on his fingers. M2 @ 16(i) and annexure "H" 25 JUL 2015 First time X is with father from 9-3 on weekend day. On return to mother X is crying and hot. X then sleeps until 5.35pm. M2 @ 16(j) 2 AUG 2015 Sunday. X spends 6 hours with father. Father tells mother that he couldn’t get X to sleep in his cot and drove him around for 30 minutes. X is overheated and out of routine and head butts the side of his cot. M2 @ 16(k) 8 AUG 2015 Father tells mother that X doesn’t like sleeping when he is with the father. When X is returned to mother he is crying and clingy and remained awake well after his bed time. M2 @ 16(l) 16 AUG 2015 X is returned to the mother after 6 hours with the father. Father advises mother that X didn’t sleep in his cot, only in the car driving around. M2 @ 16(m) 22 AUG 2015 X is returned to mother after spending 6 hours with father. X is cranky and has puffy eyes. Father tells mother that X only slept for 40 minutes in the car. M2 @ 16(n) 30 AUG 2015 X is returned to mother after spending 6 hours with father. X is very tired and clingy. Father tells mother that X only slept in the car. X is extremely clingy and very hungry. M2 @ 16(p) 5 SEP 2015 Mother notices change in X's behaviour at drop off. X is quiet and hesitant to go with father. When X is returned to the mother he is crying and very distressed. X takes a long time to go to sleep that evening and wakes up on a number of occasions during the night. M2 @ 16(r) 8 SEP 2015 X is reluctant to go with father and walks away. M2 @ 16(s) 13 SEP 2015 X is returned to mother after spending 6 hours with father with scratches and bruises on his forehead and with glassy red eyes. The mother says that X was overtired. X sleeps until 6pm and wakes up screaming. The father advises the mother that X must have sustained the marks whilst he was head butting the cot and that X wouldn’t go to sleep. M2 @ 16(t) and annexure "I" 15 SEP 2015 Mother picks up X from day care and is advised that X had started to become aggressive to other children including hitting other babies in the face. When the mother takes X to the father to spend time with him X started screaming and kicking his legs when the father picked him up. When X is returned to the mother he is very clingy and cries hysterically. M1 @ 16(u) 16 SEP 2015 X says "No way" when the mother tells him he is going to spend time with the father. When the father picked X up X screamed and looked at the mother crying "Mummy”. When X is returned to the mother he rolled on the floor and head butted the floor. M2 @ 16(v) 19 SEP 2015 X is returned to mother after spending time with father. X was really tired and whingy. The mother noticed that X had scratches on his back. M2 @ 16(w) 22 SEP 2015 When the mother takes X to spend 2 hours with the father X screams, kicks his legs and cries when the father picks him up. When X is returned to the mother at 7pm the mother notices that X has strange scratch marks on his stomach. X woke up at 3.30am screaming out for the mother. M2 @ 16(x) 23 SEP 2015 X says "No” when the mother drops him off to spend time with the father and cries when the father picks him up. After X is returned to the mother he doesn’t sleep until 8.20pm and wakes at 9.41pm screaming. X woke up again at 11.02pm crying. M2 @ 16(y) 27 SEP 2015 X is returned to mother after spending 6 hours with the father. The mother says that X is extremely tired. M2 @ 16(z) 3 OCT 2015 X is returned to the mother at 3pm after spending time with the father. The mother says that X looked very tired and dried food around his mouth, sand in his ears and dirt on his hands, was unchanged and extremely hungry. M2 @ 16(aa) 6 OCT 2015 X is returned to mother at 7pm after spending 2 hours with the father. The mother says that X was dirty and unfed. M2 @ 16(bb) and annexure "J" 8 OCT 2015 Father sends mother an email attaching a recording taken by the father of X in his cot "inconsolable" and "extremely upset". M2 @ 12 and Exhibit A1 3 NOV 2015 Father files Application in a Case. 19 NOV 2015 Interviews for Family Report held with Family Consultant Ms P. 2015 The parties agree to a variation of the interim orders to the effect that X spend time with the father from 8am to 12 noon and again from 5pm to 7 pm, on alternating Saturdays and Sundays, to enable X to return to the mother for his rest. M3 @ 16
F8
F1526 DEC 2015 Mother delivers X to the father at 8am in accordance with their agreed variation to the interim orders. The Father sends a text message to mother at about 10.30am saying that he will be "keeping X for the full 8 hours today", contrary to the agreement between the parties to vary the time X spends with the father from that set out in the interim orders. The mother attends at the father's home at 12.50pm to collect X. The father hands X over to the mother. M3 @ 12-15
F1628 DEC 2015 Report of Dr S, Paediatrician. M3 @ 9 and annexure "B" 9 JAN 2016 Saturday. When mother is putting X into her car to return him to the father for an afternoon stay from 5pm to 7pm X cries and clings to the mother and says "No mummy, no" and would not allow the mother to put him into his car seat easily. When the father returns X to the mother he tells the mother that X has been saying "No" to everything with him and had been "Chucking tantrums". M3 @ 18-19 11 JAN 2016 Family Report date. 17 JAN 2016 Sunday. X is returned to mother after spending time with father from 8am to 12 noon. X is exhausted and irritated. When the mother is preparing X to return to the father for his afternoon stay from 5pm to 7pm X says "No mummy, no" and made it difficult for the mother to put his shoes on him. M3 @ 21 23 JAN 2016 Saturday. When the mother is preparing X to return to the father for his 5pm to 7pm stay X says "No mummy" and whinges and clings to the mother. The father returns X to the mother at 7pm unfed and unbathed. M3 @ 22 28 JAN 2016 Federal Circuit Court of Australia. Orders made including:
1. Appointment of ICL.
2. Listed for interim hearing 4 April 2016 at 2pm.
3. Procedural orders for interim hearing.
4. Listed for final hearing 15 September 2016 for 2 days.
5. Procedural orders for final hearing.29 JAN 2016 Letter from mother’s solicitor to father’s solicitor proposing that the parties trial the arrangement recommended by the Family report writer for weekend time i.e. 8am to 12 noon on alternate Saturdays and 4.30pm to 7pm on alternate Sundays. F20 and annexure “G” 29 JAN 2016 Mail from father’s solicitor to mother’s solicitor advising that father does not consent to vary the current arrangements and does not agree with the recommendations of the family report writer in relation to weekend spend time with arrangements. F20 and annexure “G” FEB 2016 Mother and father agree to try a varied arrangement for the time X spends with the father on the weekend day, to 8am to 1pm with the removal of the afternoon time. M3 @ 25
F224 FEB 2016 Thursday. X cries and says "No mummy" when the mother is getting him ready to spend time with the father and clings to the mother's neck when the mother gets him out of the car. X is very distressed. M3 @ 24 and annexure "D" 12 FEB 2016 Father signs undertaking to return X to the mother at the end of agreed spend time with periods, being 5-7pm each Wednesday and Thursday, and 8am-1pm on Saturday in one week and on Sunday in the other week. M3 @ 25
F22 and annexure “I”20 FEB 2016 Saturday. X is returned to the mother after spending time with the father from 8am to 1pm. X runs to the mother upset and crying loudly. X has a circular bruise on his left cheek which the father says was from falling into a scooter while riding it. The mother also notices that X has a bruise on the upper onside of his left leg. M3 @ 29 10 MAR 2016 Thursday. X is returned to the mother after spending time with the father from 5pm to 7pm. X wakes up 40 minutes after he goes to sleep crying and distressed saying the words "Daddy stop". M3 @ 30 11 MAR 2016 Friday. X is returned to the mother after spending time with the father from 5pm to 7pm. X says "Daddy stop, stop" while making a stop sign with his hand. X slaps his head with his hand a few times and says "Daddy, bang. Oww". M3 @ 31 13 MAR 2016 Sunday. X is returned to mother after spending time with the father on the father's birthday. X is aggravated and sys "Daddy stop" with a hand stop signal and "home, mummy" in an angry voice. The mother notices a red mark/bruise on X's left eyebrow. X does not settle for his sleep. M3 @ 32 13 MAR 2016 X wakes from his sleep at 7.20pm very distraught, drenched with sweat and crying. X says "Oww" over and over and "Mummy gone, mummy gone.” M3 @ 33 19 MAR 2016 Saturday. The mother says that when she took X to the father at 8am the father looked to be hung-over. X is returned by the father at 1pm and went straight to sleep. X woke up an hour later crying and distraught and drenched with sweat. M3 @ 35 24 MAR 2016 Mother files Amended Response to Application in a Case.
5. Summary of Argument
a.The relevant principals in relation to interim parenting proceedings are set out in Goode and Goode [2006] FamCA 1346.
b.In Goode and Goode the Full Court said:
[10] Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.
c.In Goode and Goode the Full Court noted:
[81] In making interim decisions the court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the children. However, the legislative pathway must be followed.
d.The Full Court in Goode and Goode at paragraph [82] set out a framework for the conduct of interim proceedings as follows:
(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.
e.Identifiable issues in dispute are:
i.Whether the father feeds and baths X when X spends time with the father on weekday afternoons.
ii.Whether X sleeps well when he spends time with the father on weekend days.
iii.The cause of injuries observed on X after he has spent time with the father and the father’s capacity to prevent injuries to X.
iv.Whether X is resistant to going to the father to spend time.
v.Whether X suffers from behavioural problems and sleep disturbance after returning from time with the father.
vi.Whether the father exhibited family violence toward the mother during cohabitation.
vii.Whether the father has anger management issues.
viii.Whether X will suffer from stress, anxiety and behavioural disorders if he spends time with the father in excess of 3 hours in one block.
ix.The father’s capacity to care for X in a proper manner.
f.Identifiable agreed or uncontested facts are:
i.The mother is aged 35 years and the father is aged 36 years.
ii.The parties lived together from 2012 until separation in September 2014.
iii.There is 1 child of the relationship, X, born (omitted) 2013.
iv.At the date of separation X was 9 months old.
v.The mother has been X’s primary caregiver since his birth.
vi.Since separation X has lived with the mother and spent time with the father, but not overnight time.
vii.In late 2015 the parties agreed to vary the time X spends with the father on the weekend day, from that provided for in the interim orders made 27 May 2015, so that the time X spends with the father on the weekend day would be from 8am to 12 noon and again from (the mother says 5pm; the father says 3pm until 26 December 2015 when he agreed to 5pm) to 7pm. The parties also agreed to change the week days that X spends with the father (from 5pm to 7pm) to Wednesday and Thursday (from Tuesday and Wednesday provided by the interim orders).
viii.In early 2016 the parties agreed to a further variation to the time X spends with the father on the weekend day, so that the time commenced at 8am and concluded at 1pm, and the additional afternoon time does not take place.
ix.The time X currently spends with the father is:
1.Each Wednesday and Thursday, from 5pm to 7pm.
2.On one weekend day each week, alternating between Saturday and Sunday, from 8am to 1pm.
x.The communication between the parties is poor.
g.In deciding what parenting orders to make, the Court must, in line with the paramount consideration outlined in s60CA, make such order as is in the best interest of the child.
h.In determining the best interest of the child, the Court must consider the primary and additional considerations in s60CC in the context of the objects and principles set out in s60B.
i.The primary considerations set out in s60CC(2) 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.
j.Section 60CC(2A) provides that, "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)."
k.As to s60CC(2)(a):
i.The mother’s proposal provides for the child to spend regular time with the father.
l.As to s60CC(2)(b)
i.On the mother’s evidence X has had significant behavioural problems and disturbed sleep patterns following time spent by him with the father. It is submitted that to increase the time X currently spends with the father may cause psychological harm to X.
ii.The paediatrician, Dr S, notes in her report (annexure “B” to the mother’s affidavit dated 24/03/2016) that “On history today it appears that X is displaying some behavioural features which could suggest psychological stress”.
iii.The Family Report writer says that “Aspects of X’s behaviour including his lashing out and inability to settle and self-sooth at both his mother’s and father’s homes may be indicative of his inability to adjust to the different parenting styles. It may also be as a consequence of his being exposed to family violence” (FR46).
iv.Documents produced under subpoena by X’s day care centre, (omitted) Early Learning, include a report made on 26 and 27 October, 2015. This report discloses that X had been unsettled, repeatedly asked where his mum is, needed reassurances that mum would be back after she finished work. It also disclosed that X had at times been rough with his peers including hitting them a few times.
v.The mother has observed unexplained injuries to X on occasions after he has been returned to her form time spent with the father. This raises concerns about the father’s capacity to protect X from harm while he is in the father’s care.
vi.X has become upset on many occasions after returning from time spent with the father and has said to the mother “Daddy stop, stop” and “Daddy bang, oww” and has put his hand up in a stop sign while saying it. This raises concerns about whether the father has struck X and the father’s capacity to cope with caring for X especially when X is tired and will not sleep for the father.
vii.The Family Report writer says that the father “…admitted to handling X roughly on one occasion in the car getting him out of his car seat, stating X’s neck got caught on the soft part of the seat belt and that as a result he sustained a graze-like injury to his neck.”[FR13]
viii.The Family Report writer says that the father “needs to be more vigilant whilst X is in his care, being mindful of X’s age, developmental stage and general safety” [FR42].
m.The additional considerations are set out in s 60CC(3). The Respondent submits that the following additional considerations are relevant to the Courts consideration in this matter.
n.60CC(3)(b) The nature of the relationship of the child with:
(i)either of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
i.X is aged 2 years and is closely attached to the mother. He has never spent a night away from the mother. The mother has been the primary carer of X since his birth.
ii.Documents produced under subpoena by X’s day care centre, (omitted) Early Learning, include a report made on 26 and 27 October, 2015. This report discloses that X had been unsettled, repeatedly asked where his mum is, needed reassurances that mum would be back after she finished work.
o.66CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
i.either of his or her parents; or
ii.any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
i.The father’s Application seeks an increase in the time X currently spends with him on the weekend day, from 5 hours to 8 hours.
ii.The mother’s evidence is that X has not coped well with spending time away from the mother with the father and particularly when that time is more than 3 hours.
iii.If the time X currently spends with the father is increased it is submitted that X may suffer significant stress and anxiety as a result of the increased period of separation from the mother which may lead to psychological issues.
iv.Federal Circuit Court Judge Robyn Sexton said in her paper Parenting arrangements for the 0-4 year age group:
7. The experts tell us that repetitive stress is not good for young children – it puts at risk their sense of the world being a safe and secure place, and can lead to anxiety and even depression. If a young is difficult to settle, clingy and withdrawn for prolonged periods, either in a non-resident parent home or on return to the resident parent, it is highly likely that the infant is overstressed. Repetitive stress can lower a child’s stress threshold, so the tiniest thing will upset the child. There might be nightmares, regressive behaviour such as bed wetting in a toilet trained child, excessive clinginess, frequent tears, unexplained aggression, poor appetite, or uncharacteristic behaviour such as general loss of enthusiasm for play.
10. ....it seems generally accepted that serious disruption to the child’s primary attachments can lead to adverse outcomes including subsequent mental health issues throughout the child’s life span ...we certainly know from the literature that children up to about 4 years of age cannot regulate their own emotions without the assistance of an attachment figure.
v.60CC(3)(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,
1.There is doubt about the father’s capacity to provide adequately for the needs of X. The Family Report writer states that the father “…said he has struggled with some of the regular tasks of caring for X…” [FR12].
2.The mother has been the child’s primary caregiver since his birth. The mother says that during cohabitation the father rarely helped with X’s care.
3.The father has been unable to put the child to sleep in a cot when the child has spent time with him on weekend days and has said to the mother that he has only been able to put the child to sleep by driving him in his car. The Family Report writer states that the father “…spoke about his difficulties with X on occasions, in particular he said he struggled to get X to sleep for his daytime sleep before the arrangement was changed.” [FR19]
4.The mother says that the child returns from spending time with the father in a very tired state, unfed and unwashed.
5.The father has contacted the child’s day care centre to ask what he should feed X, how much food he should be eating, what time he goes to sleep and how long he should sleep for.
6.The Family Report writer states that the father said that “…he does not know what to do when X has tantrums or is head-butting…” [FR19].
7.The mother asserts that the father consumed alcohol to excess during cohabitation and often returned to the home intoxicated. The mother has observed the father at times after separation at changeovers of X to have an appearance consistent with having consumed alcohol to excess.
8.The father told the Family Report writer that if he was out with mates from work he may “drink approximately 10 mid strength beers and can get carried away”, that he may have up to 3 long necks if he is at home on the weekend and that he had a car crash whilst driving under the influence with 1 passenger, both receiving injuries [FR 16]. The Family Report writer said that the father “had difficulty in understanding the issue problems associated with drinking excessive amounts of alcohol and seemed unaware of the possible impact this may have on others” [FR 40].
vi.60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
1.On 26/12/2015 the father unilaterally chose to retain X for a period in excess of the time period the parties had agreed to. This shows a poor attitude to his responsibilities as a parent.
vii.60CC(3)(j) Any family violence involving the child or a member of the child's family.
1.The mother’s asserts that the father has engaged in Family Violence toward her as outlined in her affidavit dated 24/02/2015.
2.The mother asserts that the father has anger management issues and has in the past been verbally abusive and threatening to her.
3.The Family Report writer says that “It is concerning that (the father) continues to minimise his past aggressive behaviour and shifts the blame to circumstances rather than taking responsibility fully for his angry outbursts and inappropriate behaviour, which often occurred when he was intoxicated and which caused other to be fearful of him.” (FR39)
Date: 31 March, 2016
| PETER FOWLER BARRISTER CULWULLA CHAMBERS SYDNEY |
Schedule 3
Case Outline Document of Independent Children’s Lawyer
FAMILY LAW ACT 1975
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG File No. (P)WOC113/2015
BETWEEN
MR OSBORNE Applicant
AND
MS GALLOWAY Respondent
AND
INDEPENDENT CHILDREN’S LAWYER
DATE OF INTERIM HEARING: 2:00pm 4 April 2016
CORAM: JUDGE ALTOBELLI
|
CASE OUTLINE DOCUMENT BY INDEPENDENT CHILDREN’S LAWYER
NATURE OF PROCEEDINGS
The time that the father might spend with the child X born (omitted) 2013 in the light of the recommendations in the Family Report dated 18 January 2016.
ORDERS SOUGHT BY THE APPLICANT FATHER
The father seeks inter alia Orders that:
i.The child spend time with the father:
a.In week 1, Wednesday and Thursday from 5:00pm to 7:00pm and on Saturday from 9:00am to 5:00pm;
b.In week 2, Wednesday and Thursday from 5:00pm to 7:00pm and on Sunday from 9:00am to 5:00pm;
c.Other special occasions as delineated.
ii.That the parties participate in family therapy through Relationships Australia;
ORDERS SOUGHT BY THE RESPONDENT MOTHER
The mother seeks inter alia Orders that:
i.The father spend time and communicate with the child as follows:
a.Every Wednesday and Thursday from 5:00pm to 7:00pm;
b.Each alternate Saturday and Sunday as follows:
i.In week 1, Saturday from 9:00am to 12:00pm and each alternate Saturday thereafter;
ii.In week 2, Sunday from 9:00am to 12:00pm and each alternate Sunday thereafter;
iii.Other special occasions.
COMMENT
There was agreement between the parties as to Orders 2, and 6-14 of the father's Application in the mother's Response to Application in a Case. She filed an Amended Response to Application in a Case on 29 March 2016 which varies slightly the Orders sought in her original Response to Application in a Case. There is disagreement as to the time that the child will spend with the father being essentially the length of such time.
PLEADINGS
The Applicant father appears to rely upon the following documents:
i.Application in Case filed 3 November 2015;
ii.Affidavit filed 3 November 2015;
iii.Affidavit filed 29 March 2016.
The Respondent mother appears to rely upon the following documents:
i.Response to Application in a Case dated 28 January 2016;
ii.Amended Response to Application in a Case dated 24 March 2016;
iii.Affidavit filed 29 March 2016.
The Court must consider the matters set out in Section 60CC being the primary considerations and the additional considerations referred to in Section 60CC(3) to determine what is in the children’s best interest.
i.MEANINGFUL RELATIONSHIP
Section 60CC(2)(a) requires the Court to consider the benefit to the children of having a meaningful relationship with both of their parents. The child X appears to have a meaningful relationship with both parents. The Family Report describes X as a friendly and happy boy appearing relaxed and happy in the care of his mother and smiling and hugging with his father. He separated easily from both parents and also interacted well with the Family Consultant, not being concerned when either parent left the interview room.
ii.PROTECTING THE CHILDREN FROM HARM
Section 60CC(2)(b) focuses on the need to protect the children from harm. The mother expresses a significant range of concerns about the safety of the child in the care of the father. She refers back to alleged family violence from the father and his ongoing anger management issues. She believes that the child is regularly injured in the company of the father who she says is sometimes unaware of such injuries and does not communicate them to the mother. The mother is also wary of the father's alleged past abuse of alcohol and she has ongoing concerns that this is still occurring. It is therefore a condition of the father spending time that he not drink alcohol 12 hours prior to or during spending time with the child. The father has communicated to the mother the fact of the child throwing tantrums and head-butting whilst in his care. The mother also relates similar incidents whilst in her care.
iii.CHILDREN’S VIEWS
The child is not of an age where his views should be given any weight.
iv.THE NATURE OF RELATIONSHIPS
Section 60CC(3)(b) requires the Court to consider the nature of the children’s relationships with their parents and other relevant persons. The child appears to have a happy and easy going relationship with both parents as evidenced by observances by the Family Consultant. The mother alleges in her Affidavit that the child appears to have difficulty separating from her to spend time with the father and uses as an example the child throwing a 20 minute tantrum after commencing time with the father. It is unclear whether this purported tantrum took place immediately after the child going with the father or some time during the time spent with the father.
v.LIKELY EFFECT OF CHANGE
Section 60CC(3)(d) requires the Court to consider the likely effect of changes in the children’s circumstances. The mother advised the Family Consultant the child was not coping with 6 hour visits (Par 8 Family Report) and she indicated further that X needed his routine including his regular sleep (Par 8). She said that the father had difficulty in settling X into sleep during the middle of the day (Par 9), that X was coming back hungry (Par 9) and that X was experiencing night terrors after spending time with the father (Par 21). The father on the other hand in his Affidavit material does not refer to any significant difficulties in caring for X and sets out some efforts made by him to assist him in getting X to sleep during his time. He refers to the mother cancelling the time with X because X was returned in late October 2015 with a small red mark on his neck.
vi.ISSUES OF PRACTICAL DIFFICULTY AND EXPENSE
There is no material to suggest that this is an issue.
vii.PARENTAL CAPACITY
The Family Report indicates that the mother presented as a caring and protective parent. There does not appear to be an issue that the mother has the parental capacity to properly care for X. The mother appears to have serious concerns about the parental capacity of the father. She spoke in paragraph 21 of the Family Report of her continuing concerns about X whilst in the care of his father and his behaviour on his return. The Family Report also refers in paragraph 47 to the mother's anxiety about X's safety when he is spending time with his father on the weekend visits. Interestingly, she is happy for X to spend time with his father during the mid-week visits. In fact, both the parents acknowledge that the week day contacts work well (Par 49 Family Report).
viii.ATTITUDES TO THE CHILDREN AND TO THE RESPONSIBILITIES OF PARENTHOOD
The mother's lengthy list of concerns bespeak of the father as being at the very least lackadaisical whilst caring for the child and at worst possibly angry and violent as evidenced by the mother's allegation that the father has given the child a "back-hander" whilst in his care (Par 22 Family Report) and of the father leaving the child unattended in a car (Par 22 Family Report). It can be argued that the mother is overprotective of the child and hypersensitive in every way when it comes to care of the child including holding the child's routine as sacrosanct and unable to acknowledge as referred to in paragraph 44 of the Family Report of "any possible impact on X of having to adjust to the family breakdown or having to learn how to cope with the confusion of spending time in two homes. She appears to blame X's negative behaviour on Mr Osborne without exception."
ix.FAMILY VIOLENCE
The mother alleges previous family violence from the father. The father himself acknowledges previous bad behaviour but in the view of the Family Consultant tends to minimise such behaviour. The mother and her family have made reports to FACS and to the Police but no action has been taken by FACS and no AVOs issued by the Police.
x.BEST INTERESTS
It is in the best interest of the child to continue to live with his mother who has been his primary carer but to spend time with the father with whom he also has a close attachment. The child is not of an age where he would spend significant and substantial time with the father. The difficulty for the Court is to determine what time he might be able to spend with the father in practical terms.
The Objects of the Act set out in Section 60B are extremely important in this matter in particular and as referred to previously herein in attempting to protect the children from harm.
The Court is required to give a full investigation of the competing Applications before the Court but that can only occur at a Final Hearing. The Court necessarily can only make a shortened enquiry based on competing and untested allegations and what objective evidence might be available. The parties have not provided any supporting Affidavits by other deponents in this interim application. In the case of Goode the Full Court required consideration of Sections 60CC, Section 61D and Section 65DAA in dealing with an Interim Application. The Court is required to consider the competing proposals of both of the parties and make what findings of fact it can based on the evidence supporting such proposals
SUBMISSIONS
i.The publication Development Through Life: A Psychosocial Approach (by Barbara and Philip Newman) suggests that X is in that period of his development between 18 months and 3 years sometimes called the "Terrible Twos." The child will be subject to his own impulses and his environment and the reactions thereto. He can be subject to tantrums, "no" and testing behaviour. The Affidavit material especially by the mother goes to great lengths to describe the "testing behaviour" of the subject child X being approximately 2 years and three months of age and right in the middle of this particular Developmental Stage.
ii.The Affidavit material of the parties was some 4 to 5 months old and referred to incidents which occurred as far back as June 2015 being some 9 to 10 months ago. That is a huge part of that child's life during which significant developmental changes as referred to in the previous paragraph can take place. The Court is now benefited by recent materials for this Interim Hearing in that both parties have filed and served an updating Affidavit on 29 March 2016. The Court also has the Family Report dated 18 January 2016 though it appears that the Family Report Interviews took place in November 2015. The updating Affidavits of the parties describe ongoing incidents in a similar vein as incidents set out in their previous Affidavits. The mother is at pains to blame the father for every single incident in which the child X behaves out of what she would consider normal and acceptable. Her approach is unrealistic and fanciful to believe and expect X to act in every way the same every single day.
iii.The Family Report identifies the issues outstanding between the parties in paragraph 11 and the issues are substantial.
iv.It is noted that Orders were made substantially by consent on 27 May 2015 some 10 months ago. Those Orders provided for the father to spend time between 9:00am and 5:00pm on alternating Saturdays and Sundays after conclusion of the periods referred to in the Orders which total some 20 weeks. It appears from the Family Report that such time has never occurred. It is unclear from the Family Report what time is actually taking place though it appears to be consistent that the father is spending between 8:00am and 12 Noon each alternate Saturday and Sunday though not after that as it has been dependent upon "X's waking time and his demeanour on waking."
v.It is salient to point out that the mother "appears to blame X's negative behaviour on Mr Osborne without exception." (Par 44 Family Report). The father alleges that the mother does not make the child available for example when she stopped time after there was a mark on X after his return from spending time with the father.
vi.The mother takes the view that X cannot cope with spending the day with his father. Interestingly, X attends day care twice a week but the mother does not depose that X has had any trouble whatsoever settling at day care. It would seem incredible that X would not have had some issues at day care at least initially because he would have been left with people he simply did not know and with whom he did not have an attachment. He does have an attachment with his father but it is the mother's preference that the child be left at day care rather than with his father.
vii.It would be trite to say that if X were left with his father for the whole day it would take some weeks for X to settle down with his father, it would not occur on the first occasion. This attitude by the mother is reflected in the statement by the Family Consultant in paragraph 44 of the Family Report where she opines that the mother "did not seem to acknowledge any possible impact on X of having to adjust to the family breakdown or having to learn how to cope with the confusion of spending time in two homes."
viii.The mother appears to want to control every aspect of X's life and engage him in a strict routine. Routines can work generally in life but not sometimes prescriptively. There needs to be flexibility. The mother is not prepared to add any flexibility to X's routine though she acknowledges that X should be spending time with his father.
ix.Effectively, the issue in dispute before the Court is not a legal matter but a practical matter. The parties concur that the shorter periods of time on the Wednesday and Thursday are working. They do not concur on any longer periods of time on the alternating Saturdays and Sundays. There are no other Affidavits before the Court to assist in describing to the Court how X copes with spending time with his father and the consequences of spending such time.
x.The Family Report in paragraph 48 refers to the high level of mistrust between the parties and the practice of the child X being returned to his mother for a midday sleep on the weekend. The Report refers to such a practice being "disruptive and should be modified to a less confusing, child focussed arrangement." There is no explanation in the Report what this statement means and no expansion on such statement. There is some elucidation in the recommendations in the Report particularly in paragraph 54 though it does not assist by suggesting times.
xi.The Court is left with a situation of he said/she said set out in somewhat dated Affidavit material but updated in a similar vein by the parties Affidavits filed and served 29 March 2016. The Family Report is the most recent and objective material available to the Court. In the circumstances of the material before the Court it would be appropriate to adopt the recommendations in paragraph 54 up until the date of the Hearing from 15 September this year. However, if the Affidavit material of the parties can be accepted the afternoon time with X is problematic as his sleep time will vary each day sometimes until late in the afternoon. The father already spends a couple of hours two nights a week and refers to wanting to try the morning time in his most recent Affidavit. It would therefore seem appropriate to continue the morning time on alternating Saturdays and Sundays until such time as a Final Hearing takes place and the parties and the Family Consultant can be cross-examined.
10.ORDERS SOUGHT
i.That the father and the mother have equal shared parental responsibility of the child X born (omitted) 2013;
ii.That the child shall live with the mother;
iii.That the child shall spend time with the father as follows:
i.Week 1, Wednesday and Thursday from 5:00pm to 7:00pm and on Saturday from 8:00am to 12 Noon;
ii.Week 2, Wednesday and Thursday from 5:00pm to 7:00pm and on Sunday from 8:00am to 12 Noon.
iii.Orders 6-14 as sought by the father in the Application in a Case.
Dated this 30th day of March, 2016
Peter Williamson – Independent Children’s Lawyer.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies