PELSTON & PELSTON
[2020] FCCA 3528
•22 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PELSTON & PELSTON | [2020] FCCA 3528 |
| Catchwords: FAMILY LAW – Interim parenting – Mother seeking to relocate Children’s residence - best interests of Children - proposed relocation Order made and other related interim parenting Orders. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65D |
| Cases cited: Banks & Banks [2015] FamCAFC 36 Beaton & Beaton [2020] FamCAFC 297 Cimorelli & Wenlack [2020] FamCAFC 58 Eaby & Speelman [2015] FamCAFC 104 Goode & Goode (2006) FLC 93-286 Marvel & Marvel [2010] FamCAFC 101 Saif & Saif [2020] FamCA 119 Salah & Salah [2016] FamCAFC 100 |
| Applicant: | MR PELSTON |
| Respondent: | MS PELSTON |
| File Number: | MLC 14640 of 2018 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 26 November 2020 |
| Date of Last Submission: | 26 November 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 22 December 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Ms Carthew, City G Legal Resolution Services |
| Counsel for the Independent Children's Lawyer: | Mr Radich of Counsel |
ORDERS PENDING FURTHER ORDER
Order 2 and 3 within Exhibit A of the Courts Orders of 16 May 2019 be suspended until further Order.
X (‘X’) born in 2010 and Y (‘Y’) born in 2013 (“the Children”) shall spend time and communicate with the Father as follows:
(a)During school term on each alternate weekend from 6 PM Friday until 5 PM Sunday with such time to be suspended during school holiday periods;
(b)Christmas New Year School Holidays commencing 2020:
(i)Alternate weeks during the Christmas New Year school holiday period at times to follow the normal commencement of the Father's weekend on the Friday to the following Friday 10 AM;
(c)On Father's Day weekend in each year from 10 AM Saturday until 5 PM Sunday provided that the Father's time shall be suspended on the Mother's Day weekend from 10 AM Saturday until 5 PM Sunday;
(d)For Christmas as follows:
(i)In 2020 on Christmas Eve from 3 PM until 10:30 AM Christmas Day;
(ii)In 2021 and in each alternate year from 10.30 AM Christmas Day until 3 PM Boxing Day with the Children to be in the Mother's care from 3 PM Christmas Eve until 10.30 AM Christmas Day;
(iii)In 2022 and each alternate year from 3 PM Christmas Eve until 10.30 AM Christmas Day with the Children to be in the Mother's care from 10.30 AM Christmas Day until 3 PM Boxing Day;
(e)Half of all school term holiday periods (other than the Christmas New Year school holiday period), at times to be agreed, but failing agreement, the 1st half of such school term holiday periods in odd years, and the second half in even numbered years;
(f)The Children’s pupil free days shall be spent with the Father;
(g)Victorian public holidays that fall on a Monday or a Friday shall be spent by the Children with the Father;
(h)In addition to the above time to be spent by the Children with the Father during school holidays, the Father shall have 2 additional nights with the Children each school term holiday period, with the dates of such additional nights to be agreed upon between the parties in writing;
(i)Such further time as agreed between the parties.
The parties agree for the purposes of communication that neither parent will block the other parent's mobile phone number.
The parties agree to keep all communications between them civil and related to Children's matters only.
The parties, by their servants and/or servants be and are hereby restrained from having the Children attend upon any psychologist and/or counsellor save in the event of prior written agreement between the parents.
The parties agree to keep each other informed at all times of their current residential address and contact telephone number and notify the other within 48 hours of any change to the same.
The parties agree that they will each notify each other immediately in the event of any medical emergency or of any significant medical illness or injury that may affect the Children whilst in their care including providing the other parent with details of any treating medical professional and authorise such professional to discuss the Child's condition with the other parent.
The parties each keep the other informed at all times of any significant medical injury or illness affecting the Children when in the care of each of them including providing the other parent with details of any doctor or hospital that the Children may attend upon along with details of any treatment administered.
The parties agree that the provisions of Orders 7 and 8, do not apply to trivial matters such as a cold or minor illness.
The parties agree that they may exercise their own discretion in deciding whether or not the Children attend birthday parties, sporting activities or any other extracurricular activity if the Children are experiencing a cold or minor illness.
Both parties are permitted to attend and participate in all usual parent/Children activities and extracurricular activity to which the parents are normally invited or expected to attend (even if such activities occur outside of their scheduled time with the Children).
Both parties are permitted to discuss all matters pertaining to the Children's education, health and well-being with their school and medical and like practitioners.
Changeovers shall occur, unless otherwise agreed, at the front of the Mother’s residence at the commencement of the Father’s time with the Children, and with the Mother collecting the Children from the Father’s residence at the conclusion of the Father’s time with the Children.
The Mother shall be permitted to relocate to the City B/Town H area with the Children provided:
(a)she gives the Father at least one month’s written notice of her intention to do so and provides the Father with the residential address and confirms the school enrolment of the Children in City B; and;
(b)The Mother shall not relocate before the end of the 2020 school year;
The Mother is permitted to enrol the Children at C School provided that the Father is also listed as a contact person with the school.
The Father is to communicate with the Children only by telephone or Skype at times as agreed between the parents in writing, or failing agreement two times per week for up to 30 minutes each Monday and Wednesday between 5:30 pm and 6:30 pm with the Father to place the call to the Mother’s mobile telephone, and the Mother may remain in the vicinity of the Children while communication takes place and shall end the communication in the event adult or inappropriate topics are being discussed.
The parents to ensure they seek the Children be linked in with the Chaplin/Wellbeing Officer at the new School and ask the school to liaise with Ms D, Chaplin from E School.
The Father to attend for a Psychiatric Assessment by a Psychiatrist nominated by the ICL such assessment to include:
(a)whether the Father has a diagnosed mental illness or psychological condition and if so, what is the nature of the illness or condition;
(b)what treatment and/or medication is recommended;
(c)whether the Psychiatrist, if able to express a view, considers the Father’s capacity to parent is impacted and if so how;
(d)the Father be responsible for the costs of the assessment and to file the Psychiatric Report on Affidavit and serve the Report on the parties as soon as available;
(e)each party to provide the Psychiatrist with all documents filed on their behalf in these proceedings; and
(f)the ICL provide the Psychiatrist with all Orders of the Court, the Family Report of Ms F dated the 25 April 2019 and the s67Z Response from DHHS.
The Father do all acts and things and be responsible for any applicable fees to obtain a Report from his treating medical health practitioner and/or his treating mental health practitioner detailing his current medical and mental health state, including any diagnosis, treatment and medication that may be prescribed, and the Father’s compliance with such treatment and medication regime, and:
(a)file and serve such reports on Affidavit within 30 days of these Orders being made; and
(b)provide such reports to the psychiatrist as set out in paragraph 18.
The Mother, the Father and their servants and/agents are hereby restrained by injunction from:
(a)discussing these proceedings in person, or by any form of communication, with or in the presence or hearing of the Children, or allowing any other person to do so;
(b)showing the Children any documents, letters or emails relating to the proceeding or any adult issues;
(c)using the Children, or either of them, as a messenger to convey messages between the parents;
(d)denigrating, criticising, belittling, abusing and harassing the other parent in presence of or within the Hearing of the Children, or either of them, or allowing any other person to do so; or
(e)publishing on the internet or any other social media about the other parent or the respective family members.
Save for emergencies, the parents shall communicate to each other only about parenting matters via “Our Family Wizard” App to be installed by each parent on their mobile telephone at their own expense.
The parties have liberty to apply at short notice.
Certify for advocacy.
These proceedings are placed in the list of matters awaiting a final Hearing in the City G Circuit of this Court for May 2021.
IT IS NOTED that publication of this judgment under the pseudonym Pelston & Pelston is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
MLC 14640 of 2018
| MR PELSTON |
Applicant
And
| MS PELSTON |
Respondent
REASONS FOR JUDGMENT
This Interim Hearing relates to the Children X born in 2010 and Y born in 2013 you (“the Children”). At this Interim Hearing, the Mother’ s proposal, on an Interim basis, to relocate the Children’s residence from City G to the City B/Town H area, opposed by the Father, was the predominant issue litigated by the parties. It was common ground between the parties that the driving time between these two places is about 1 hour and 4 minutes.
The Mother was legally represented by her solicitor. The Father appeared for himself. The ICL appeared through counsel.
Historically, in these proceedings, the Mother had filed an Application in a Case on 15 April 2019 seeking Interim Orders, inter alia, that she be permitted to relocate the Children’s residence from City G to City B.
On 22 July 2020 Harman J had listed the proceedings for trial.
On 30 October 2020 this Court appointed an Interim Hearing on 26 November 2020 relating to the issue of the Mother’s proposed relocation to City B/Town H.
The Mother is aged 41 years. The Father is aged 42 years.
The Mother alleges that the parties commenced cohabitation in 2004. The parties married in 2011.
The Mother alleges that the parties separated in November 2016.
On 21 February 2019, by consent, Interim parenting Orders were made, inter alia, that the Children live with the Mother; that the Children spend time with the Father during school terms each alternate weekend from after school Friday until 4 PM Sunday; and that the Children spend time with the Father during half the school holidays.
On 16 May 2019, by consent, Interim parenting Orders were made, inter alia, that the Children spend time with the Father during school terms each alternate weekend from after school Friday until before school Monday, together with after school each alternate Tuesday until before school Wednesday; that the Children spend time with the Father for one half of the school term holidays, and on a week about basis during the summer school holidays; and that the Children communicate with the Father by telephone on at least two occasions per week. A notation was made that the Mother consents to the Orders without prejudice to her Application to relocate to City B.
On 7 June 2020, at a mention of the proceedings, the Court noted that the Children were presently split, with the eldest Child X presently in the care of the Father or paternal grandmother.
The Mother’s proposed Interim Orders were set out on pages 1 to 4 of her Case Outline filed 20 November 2020.
The Mother’s material relied upon was set out of pages 12 and 13 of her Case Outline.
Again, the Father, at this Interim Hearing, opposed the Mother’s proposal to relocate the Children’s residence to the City B/Town H area. The Father sought the continuation of the existing Interim parenting Orders of 16 May 2019.
The Father relied upon his Affidavits filed 5 November 2018, 8 May 2019, and 11 November 2020.
The ICL supported the Mother’s proposed Interim relocation Application.
The ICL relied upon his Case Outline filed 20 November 2020 and the family report dated 25 April 2019, Exhibit A.
Evidence
The Mother alleges that she commenced a new relationship with Mr J in about 2017.
In the Mother’s Affidavit filed 14 November 2018 she alleges that she is a public servant working at Employer K. She alleges that the Children are happy and settled in their current routine. She alleges that she earns $2,023 per fortnight including family tax benefit $238.
The Mother alleges that in about April 2018 the Father admitted to her that he had been diagnosed with bipolar disorder and that he was put on medication to prevent suicide.
The Mother alleges that in about May 2018 the paternal grandfather had told her that the Father was in hospital and had been threatening self-harm.
The Mother alleges that in June 2018 the Father’s former partner Ms L told her that she had obtained an Intervention Order against the Father.
The Mother alleges that the Child X underwent an aortic valve reconstruction in late 2018. She alleges that the Child otherwise enjoys good health and attends school and undertakes normal activities similar to Children his own age.
The Mother alleges that the proceedings is damaging the Children’s well-being and mental state. The Mother alleges that the Child Y is seeing a specialist which was implemented early in 2020. The Mother alleges that the Child X meets regularly for counselling with Ms M.
In a text message allegedly sent by the Father to the Mother in early August 2020, the Father swore at the Mother. In a text message allegedly sent by the Father to the Mother on 9 October 2020 the Father stated, “You’re one fucked parent and I’m done with your shit. I’ll be collecting kids Tuesday and Friday next week from school.”
The Mother alleges that the parties had been successfully using an app to communicate regarding non-urgent Children’s matters which was ceased by the Father on 30 September 2020.
The Mother alleges in her Affidavit filed 29 October 2020 that the Father, over the past few months, has been mentioning his mental health to the Children, allegedly stating that the games that the Mother plays are making him sick.
The Mother alleges that the Father’s communication with the Children is usually via Kids Messenger or her telephone. The Mother alleges that the Father denigrates the Mother in the Father’s discussions with the Child X over this Kids Messenger app. For example, the Mother alleges that the Father stated to the Child, “Games like this is why I’m not seeing you. Your Mother’s stupid games. Never stops.”
The Mother alleges that during the first wave of Covid19, the Father failed to return the Children to her care from 25 May 2020 to 18 June 2020, allegedly stating to the Mother that she was putting the Children at risk, as they were going to attend school. The Mother also alleges that there have been instances where the Father has of his own volition not spent time with the Children, due, in the Father’s alleged own words, to his struggles with mental health and during those times his parents have cared for the Children instead.
The Mother alleges that her biggest concern is the lack of consistency and the effect it is having upon the Children. She alleges that the Father will quite often spend time with the Children and not return the Children to her in breach of Court Orders. For example, the Mother alleges that the Father will quite often make a suggestion to X about having just a boys night together, and yet on other occasions, for example on 6 October 2020, when the Father was due to spend time with the Children, he did not. The Mother alleges that being permitted to relocate to City B with the Children will provide the Mother and the Children with stability.
The Mother alleges that she knows that the Father has attempted self-harm on at least two occasions and that he has been hospitalised. She also alleges that she knows that he has been medicated for mental health issues. She alleges that she is not aware of his current mental health diagnosis and treatment.
The Mother alleges that the issue of relocation has caused tension between herself and the Father.
The Mother alleges that her time spent with her partner has usually occurred on weekends during school term times and holidays.
The Mother alleges that if she was permitted to relocate with the Children, it is her intention to move in with her partner on his 20 acre property.
The Mother alleges that she grew up on a farm 10 minutes from City B and attended high school in City B.
The Mother alleges that during both Covid lockdowns she and the Children resided in Town H and spend all their time there working and completing home schooling.
The Mother contends that should the proposed relocation be permitted, the Children can spend time with the Father on alternate weekends, and during school holidays, and that she will facilitate the Children spending additional time with the Father on pupil free days and on public holidays which, for example, fall on a Friday or Monday. The Mother also proposes, in her Affidavit filed 6 November 2020, that if she is permitted to relocate, then she would be willing to propose that the Father has 2 additional nights with the Children each school term holiday period.
Relevant legal principles
The relevant principles in relation to parenting proceedings, including Interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel [2010] FamCAFC 101 the Full Court(Faulks DCJ, Boland and Stevenson JJ), discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised Interim parenting proceedings, and Orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final Hearing by the making of final parenting Orders. Decisions judicial officers have to make in Interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a Child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their Child or Children. Interim parenting Orders are frequently modified or changed after a final Hearing, and any allocation of parental responsibility made at an Interim Hearing is disregarded at the final Hearing (s 61DB).
…
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in Interim parenting proceedings. Their Honours said:
In our view, findings made at an Interim Hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
The intuition involved in decision-making concerning Children is arguably of even greater importance when a judge is obliged to make Interim decisions following a Hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on Children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of Children simply to ignore an assertion because its accuracy has been put in issue.”
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Courtto appropriately and carefully deal with contentious issues relevant to the welfare of the Child, and for those issues to not be ignored.
In Salah & Salah [2016] FamCAFC 100, the Full Court said:
[37] It is very common in Interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to “the usual pathway as highlighted in Goode & Goode (2006) FLC 93-286”. A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):
[68]… 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 Courtcannot 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 Courtalso 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.
The Full Court in Cimorelli & Wenlack [2020] FamCAFC 58 said:
[80] In Interim Hearings, where the evidence remains untested, disputed facts cannot be the subject of definitive findings, but simply because material facts have been put in issue does not mean the contested evidence must or should be ignored, since such evidence may have a significant bearing upon the determination of Orders which promote the Children’s best interests ([Salah] at [35]-[45]; Eaby & Speelman (2015) FLC 93-654 at [18]-[19]). Despite the limitations which constrain findings at Interim Hearings, aside from those “couched with great circumspection”, certain provisions within Part VII of the Act direct judges to consider risks which are pertinent to the welfare of Children and their carers (for example: ss 60B(1)(b), 60CC(2)(b), 60CC(3)(j), 60CC(3)(k) and 60CG). It would constitute an error of law to ignore the statutory mandate and, correctly, the primary judge did not ignore it.
[81] Naturally, the concept of risk encompasses the possibility of harm, not just the probability of harm (M v M (1988) 166 CLR 69). The primary judge was conscious of the need to evaluate the available evidence to determine whether or not it capably vindicated the submissions made by both the Father and the ICL that the Mother poses a tangible risk of psychological harm to the Children. Her Honour’s finding that the evidence did do so was appropriately circumspect and does not foreclose the issue being revisited at final trial, when the evidence will be properly tested. Her Honour was obliged to resolve the issue at an interlocutory stage, albeit provisionally rather than definitively, because it underpinned the parties’ contest over the Children’s residence.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraph 46 to 52.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to Children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a Child, a Court must regard the best interests of the Child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the Child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
As to relevant legal principles relating to Interim relocation Applications, the Court respectfully refers to Foster J’s discussion of relevant legal principle in Saif & Saif [2020] FamCA 119 at paragraphs 78-79 as follows:
[78] Relocation is but one aspect of parenting. It falls to be determined in the best interests of the Children.
[79] Recently in Franklyn & Franklyn [2019] FamCAFC 256 the Full Court took the opportunity to review the applicable principles in the context of the subject Interim relocation appeal. The Full Court said at [27] – [28]:
There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their Children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the Children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the Children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207-208, 210). The tension at the intersection of those conflicting interests is even greater when an Order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
While the Children’s interests are paramount, their interests are not the sole determinant of parenting Orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U [2002] HCA 36; (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the Children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) [2007] FamCA 1365; (2007) FLC 93-350; Zanda & Zanda [2014] FamCAFC 173; (2014) FLC 93-607 at [132] - [136]). Only when the Children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the Children’s best interests (see U v U at 262).
The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Beaton & Beaton [2020] FamCAFC 297, in particular at paragraphs 33 to 37, relating to Interim relocation Applications.
The best interests of the Children
Section 60CC considerations
(2)(a) (the benefit to the Child of having a meaningful relationship with both of the Child’s parents: a primary consideration)
In Saif & Saif [2020] FamCA 119, above, Foster J stated:
[95] The reality is, in the context of this Interim Hearing, that the Court is obliged to have regard to the maintenance and promotion of the Children’s relationships with both parents. A relationship may be less than optimal but nonetheless meaningful: (Godfrey & Sanders [2007] FamCA 102 at [33]-[36]; Sigley & Evor (2011) 44 Fam LR 439 at [182]).
[96] In Mazorski v Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the Application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the Child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the Application of the presumption of equally shared parental responsibility and the requirement for time with Children to be, where possible and in their best interests, substantial and significant.
[97] In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The Children have a meaningful relationship with both parents and would benefit from a continuance of those relationships.
There is a significant suggestion on the material before the Court that the Mother has been the Children’s primary carer from birth to date.
The Father stated to the Court and alleged in his Affidavit filed 12 November 2020 that if relocation was permitted, he could not spend, in the aggregate, 4 nights per fortnight with the Children; practically, the Father could not spend time with the Children on the fortnightly Sunday and Tuesday nights because the Children would need to arrive on time at school in City B.
The Father contended that he could not be a parent to the Children if only spending two nights a fortnight with them during school terms. At this Interim stage, the Court does not accept that contention and is of the view that the Children’s meaningful relationship with the Father can be maintained if they spend time and communicate with him as set out below. Further, and as discussed later in these Reasons, including under the need to protect primary consideration below, the Court is of the view that should the Children’s residence be permitted to be relocated to City B, such time to be spent by the Children with the Father will minimise the risk of the Children being exposed to the Father’s alleged adverse mental health, and minimise the risk of the Children being exposed to the Father’s alleged denigration of the Mother.
The Court, in the above context, takes into account that historically, and in recent times, the Children have not always spent regular time with the Father by reason of the Father’s alleged adverse mental health and by reason of his employment obligations allegedly on occasion taking him away from City G.
Should the Children be permitted to relocate to City B and spend time and communicate with the Father on the following basis, there is a real prospect that the Children’s meaningful relationship with the Father can be maintained, and such time will be able to be practically facilitated:
a)On a fortnightly basis from 6PM Friday to 5 PM Sunday, with such time to be suspended during school holiday periods;
b)In 2020 on Christmas Eve from 3 PM until 10:30 AM Christmas Day. Thereafter, time with the Children at Christmas in accordance with the Mother’s proposals;
c)Alternate weeks during the Christmas/New Year holidays;
d)Half of each school term holiday periods (other than the Christmas school holiday period);
e)Father’s day from 10 AM Saturday until 5 PM Sunday;
f)The Children’s pupil free days to be spent with the Father;
g)Victorian public holidays that fall on a Monday or a Friday to be spent by the Children with the Father;
h)The Children to communicate with the Father by telephone or Skype, at times as agreed between the parties in writing, or failing agreement, at least 2 times per week for up to 30 minutes each Monday and Wednesday;
i)Such further time as agreed between the parties.
The Court gives significant weight to this meaningful relationship primary consideration.
(2)(b) The need to protect the Child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The material before the Court suggests that the Father has experienced, post separation and during the course of these proceedings, at times, adverse mental health and that significant contributing causes have included the parties’ separation and the stress of these proceedings upon him.
The Family Report Writer stated that throughout 2018 the Father’s mental health had significantly deteriorated; she stated that the Father had explained that he was suffering from depression and experienced intrusive and suicidal thoughts following the parties’ separation due to the ongoing stress this caused him and his concern for the Children in their care of the Mother’s new partner.
The Mother contended to the Family Report Writer that should the relocation be permitted, the Children will be distanced from the Father’s serious mental health issues and ongoing aggressive and erratic behaviours. There is force to these contentions whilst acknowledging that the Mother’s allegations in this regard are untested.
The Father stated in his Affidavit filed 12 November 2020 that a prior reduction in his time spent with the Children contributed to his mental health being “destroyed” and in this context he alleged that he dreamt and thought that the Children were going to be hurt “which resulted in higher and higher levels of medication being given. As you can appreciate this was a horrible time and the results of me not seeking medical assistance could have been absolutely dramatic as these dreams were so graphic and real.” The Father stated that he has during 2020 being seeing a counsellor to deal with mental health problems. He states that he is not medicated but it has been difficult. He states that there has and is always one common theme with his mental health and it has been around the impacts of the Children “with the games being played by others”.
The Father frankly informed the Court that he had “suspended” the Children’s time with him in October 2020 after his mental health had deteriorated. Whilst the Family Report Writer had stated that her assessment had not identified any significant safety concerns for the Children within the Father’s care since the Interim Orders of 18 February 2019, there is no health professional material before the Court relating to the Father’s mental health, including diagnoses, prognoses and treatment, in recent times or at all. The Court does have a concern in relation to the Children being potentially exposed to the Father’s admitted adverse mental health, whilst acknowledging that the material before the Court suggests that the Father’s mental health may well fluctuate.
The material before the Court suggests that the parties, in particular post separation and following the commencement of these proceedings, have experienced a significantly conflictual relationship. The Family Report Writer stated that both parents had reported that their relationship was characterised by significant conflict. The Family Report Writer stated that the Mother had reported that she was subjected to the Father’s alleged verbal and emotional abuse and aggressive and erratic behaviours.
The Mother alleges that an Intervention Order was obtained on Application by her, in January 2018, protecting herself and the Children which Order remained in place until 23 January 2019. The ICL submitted that the Father had consented without admissions to this Order.
The material before the Court suggests that one particular conflictual issue between the parties has been the Mother’s proposed relocation. The material before the Court suggests that there is significant distrust between them. The material suggests at least the real possibility that the Father has been abusive towards the Mother in communication exchanges via text message.
There is a significant suggestion, on the material before the Court, that the Children have been exposed to the parties’ above conflict.
The Father described himself being allegedly subjected to the Mother’s controlling behaviours and claimed that that they would regularly argue as the Mother wished him to pursue better paying employment opportunities away from the home rather than spend additional time with her and the Children.
The material before the Court suggests the real possibility that the Father has been discussing aspects of the content of these proceedings, including possible relocation, with at least the eldest Child. There is a suggestion, on the material before the Court, that the Children decided to block the Father from Kids Messenger communication in recent months by reason of the Father discussing aspects of these proceedings with the Children, including denigration of the Mother by the Father. The Court does have a concern in relation to these suggested issues, namely the suggestion that the Father has been discussing the contents of these proceedings with the Children and is denigrating the Mother to one or both of the Children.
Should the Mother be permitted to relocate the Children’s residence to City B, the issue of Interim relocation at least will have been resolved between the parties with the real prospect of a lessening in conflict between them in relation to this issue. The Father himself, in oral submissions, conceded that there may well be less conflict between the parties if the Mother is permitted to relocate the Children’s residence because the parties would see each other less.
This primary consideration, as discussed above, supports Interim relocation, and which the Court would regard as particularly important to its determination of the relocation issue.
Section 60CC(3) additional considerations
(3)(a) Any views expressed by the Child and any factors (such as the Child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the Child’s views
The Children are now aged 10 and 7 years.
They were interviewed by the Family Report Writer on 27 March 2019. At this time the Child X was only aged about 8 years 9 months, and the Child Y was aged about 5 years 7 months.
The Child X clearly indicated to the Family Report Writer that he did not wish to relocate to City B. The Family Report Writer stated that X had expressed a strong wish to remain in City G, to maintain his school community and peer relationships and spend equal time between his parents.
X told the Family Report Writer that he had repeatedly asked the Mother to spend more time with the Father which had been denied. He was reportedly angry about this issue. The Family Report Writer stated that during his interview, it appeared that X had developed a strong alignment with the Father.
The Court observes that on 16 May 2019 Consent Orders were made providing for the Children to spend, in the aggregate, four nights each fortnight with the Father, being an increase from the earlier Interim Court Order.
The Child X told the Family Report Writer that he usually, but not always, will travel with his Mother to City B. He stated he liked visiting his extended maternal family.
The Family Report Writer stated that if relocation was permitted, X may benefit from engaging in some counselling possibly with the parents to assist him in resolving any grief around relocating from City G.
The Child Y told the Family Report Writer that on the weekends she is living with the Mother she has been spending time in City B with Mr J and his Children and her extended family. She identified that she enjoys positive relationships with all members of her family. She reported that she would like to spend more time with the Father.
The Mother alleges that X loves football and is looking forward to playing with the local team Town H-Town O in the under 12 competition.
The Mother, in her Affidavit filed 29 October 2020, alleges that the Child X currently has no interest in talking to the Father, as he feels it always ends in an argument. In this context, and in that Affidavit, she alleges that in more recent months the Father has had many conversations directly with the Children, resulting in the Children making their own decision to block the Father from Kids Messenger. The Mother alleges one conversation between X and the Father when the Father denigrated the Mother stating, “Your Mother’s stupid games never stops... These games make me sick. You take it up with your mum. All she does is make things hard for me.”
The Father alleges that both Children have stated quite regularly to himself and their school counsellor that they do not want to move to City B, and that they wish to spend alternate weeks with each of the parents.
The Court would not give significant weight to the Children’s views in relation to both the relocation issue and spending time with the Mother and Father, by reason of their ages. In particular, the Children’s views as expressed to the Family Report Writer occurred when they were quite young.
(3) (b) The nature of the relationship of the Child with each of the Child’s parents; and other persons (including any grandparent or other relative of the Child)
The Children would appear to have positive relationships with their grandparents.
Should the Mother live in City B with the Children, the Children may have less practical ability to spend time with the paternal grandparents compared to their ability to spend time with them if living in City G. On the other hand, should the Children spend time with the Father as referred to above under the meaningful relationship primary consideration, there may be some scope for the Children to spend time, albeit limited, with the paternal grandparents during such time.
The Court also refers to its discussion above under the meaningful relationship primary consideration.
This consideration tends not to support relocation.
(3)(c) The extent to which each of the Child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the Child; and to spend time with the Child; and to communicate with the Child
Both parents would appear to have taken such opportunities, subject to the Father suspending his time with the Children on occasion when experiencing adverse mental health issues, and the suggestion arising from the Mother’s allegations that historically the Father has declined, at times, to spend time with the Children.
This consideration, to the extent that it has not been dealt with under the need to protect primary consideration above, tends to support relocation.
(3)(ca) The extent to which each of the Child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the Child
The Mother alleges that the Father has not paid Child support since December 2019. She alleges that the Father owes $6,381 in outstanding Child support. The Court observes that the Father alleges that the pandemic has affected his employment in 2020. She alleges that she covers all financial costs for the Children.
Take into account the alleged financial effects upon the Father of Covid19, this consideration is probably neutral as to relocation.
(3)(d) The likely effect of any changes in the Child’s circumstances, including the likely effect on the Child of any separation from either of his or her parents; or any other Child, or other person (including any grandparent or other relative of the Child), with whom he or she has been living
As to the Children spending time with the Father, the Court refers to the meaningful relationship primary consideration discussed above; again, should the Children spend time and communicate with the Father as set out by the Court under the meaningful relationship primary consideration discussed above, there is a real prospect that the Children’s meaningful relationship with the Father can be maintained. Such time could be practically spent by the Child with the Father were the Children permitted to live with the Mother in City B.
In the view of the Court, such time spent by the Children with the Father should not detrimentally affect the Child’s meaningful relationship with the Mother.
This consideration tends to support relocation.
(3)(e) The practical difficulty and expense of a Child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the Child’s right to maintain personal relations and direct contact with both parents on a regular basis
City B, it is common ground, is only about one hour and four minutes drive from City G.
Again, should the Children live in City B with the Mother, there should be no practical difficulty in the Children spending time with the Father in accordance with the Court’s proposed discussed time in its discussion above under the meaningful relationship primary consideration.
This consideration tends to support relocation.
(3)(f) The capacity of each of the Child’s parents; and any other person (including any grandparent or other relative of the Child), to provide for the needs of the Child, including emotional and intellectual needs
The parties are in dispute as to whether the Mother has failed to facilitate the Children’s relationship with the Father. The Mother alleges that she has consistently sought to facilitate the Child’s relationship with the Father whilst seeking to act protectively towards the Children. The Father contends and alleges to the contrary. The Court cannot resolve this dispute at this Interim Hearing.
As discussed above, under the need to protect primary consideration, there is a significant suggestion on the material before the Court that the Father may have been denigrating the Mother to at least the eldest Child. Further, when the Father is experiencing adverse mental health, his ability to meet the emotional needs of the Children may well be compromised.
Otherwise, the parties would appear to have such capacities.
(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the Child and of either of the Child’s parents, and any other characteristics of the Child that the Court thinks are relevant
The Children are aged 10 and 7 years. Again, the Mother alleges that the proceedings are damaging the Children’s well-being and mental state. The Mother alleges that the Child Y is seeing a specialist which was implemented early in 2020. The Father alleges that both Children have been seeing the school counsellor on an almost daily basis since starting school. The Mother herself alleges that the Children see this counsellor regularly.
This consideration, to the extent that it has not been dealt with under above, tends to support relocation.
(3)(h) If the Child is an Aboriginal Child or a Torres Strait Islander Child: the Child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting Order under this Part will have on that right
Not applicable.
(3)(i) The attitude to the Child, and to the responsibilities of parenthood, demonstrated by each of the Child's parents
The Court refers to its discussions above under the need to protect primary consideration.
There is a significant suggestion on the material before the Court that the Children have been significantly exposed to the parties’ conflict.
Otherwise, the parents appear to have demonstrated appropriate attitudes.
(3)(j) Any family violence involving the Child or a member of the Child's family.
The Court refers to its discussions above under the need to protect primary consideration.
(3)(k) If a family violence Order applies, or has applied, to the Child or a member of the Child’s family – any relevant inferences that can be drawn from the Order, taking into account the following: the nature of the Order; the circumstances in which the Order was made; any findings made by the Court in, or in proceedings for, the Order; any other relevant matter.
An Intervention Order was made in January 2018 expiring in January 2019. The ICL submitted that the Father had consented without admissions to this Order.
(3)(l) Whether it would be preferable to make the Order that would be least likely to lead to the institution of further proceedings in relation to the Child.
Not applicable.
(3)(m) Any other fact or circumstance that the Court thinks is relevant.
The Mother seeks the Court’s permission, on an Interim basis, to live in City B with the Children, which is opposed by the Father.
The Court now addresses, to the extent that it has not been previously addressed in the Court’s consideration of s60CC factors, the advantages and disadvantages in respect to the relevant proposals of the parties.
Turning first to the Mother’s proposals for relocation.
The Mother alleges that she has been in a serious relationship with Mr J since about early 2017, and that should she be permitted to relocate Children’s residence to City B she will be able to strengthen her relationship with him. She alleges that they have a solid loving relationship and have plans together for their long-term future. The Affidavit of her partner is consistent with these allegations. He alleges that with both the Mother and himself working in the same field of employment, it provides opportunities for them to support each other in their jobs and the challenges that come with it.
The Mother’s partner also alleges that the Mother has built a strong network of friends to draw upon if she was to move to Town H more permanently. He alleges that the Mother is a major part of his family and will have the complete support of his entire family. He alleges that the community of City B and Town H is a family friendly, supportive environment.
The Mother alleges that being unable to spend quality time with her partner and being unable to spend quality time and have the support of her extended family in City B has been very difficult for her. She alleges that if she was able to relocate to City B the Children and herself would all benefit immediately from the support of her partner and extended family and parents. The Mother alleges her partner has provided her with constant emotional support throughout their relationship.
The Mother alleges that the Children love spending time with their cousins in City B. She alleges that she has a close and loving family and her extended family often organise family get-togethers and all the cousins also attend and play together.
The Mother alleges that the Children get on well with her partner’s 4 Children and enjoy weekends in school holiday time together. The Mother alleges that she has a close relationship with her partner’s extended family and his Children who are also located in City B.
The Mother contends that should the proposed relocation be permitted, she will provide them with a stable and secure environment nestled within the City B community and her extended family who live there (the maternal grandmother, her brother and sister and the Children’s cousins).
The Mother alleges that she has been informed that she will be able to obtain employment in the City B area. She alleges that on moving to City B, she will be able to earn income as she will be able to provide services as a relief public servant in the City B area. She alleges that there are three employers in City B, and she would be able to obtain immediate work at either of these employers. She alleges that her partner, who is a public servant in City B, will be able to refer her to employment opportunities as and when they arise.
The Court would place significant weight on the above matters and which support relocation.
Turning to the Father’s proposals not previously addressed under s60CC.
The Father, should the Children be permitted to live in City B/Town H on an Interim basis, may well experience some practical difficulty in spending time with the Children, in accordance with current Court Orders, on the fortnightly Sunday night, and on the fortnightly Tuesday night.
The Father himself, in oral submissions, submitted that should the Court permit the proposed relocation, his time with the Children during school term times would effectively decrease to 2 nights each fortnight; the inference arising from this submission is that the Father considered it impractical for him to transport the Children from City G to their proposed school in City B on the fortnightly Monday and Wednesday mornings in a timely fashion.
Accordingly, practically, the Children may only be able to spend time with the Father, during school term times, for 2 nights each fortnight, as opposed to 4 nights each fortnight. In this context, the Family Report Writer stated that it would be unlikely that the Father would be able to take a greater involvement in the Children’s educational and sporting activities on a daily basis in the future, unless he intends to follow the Mother and also relocate to City B in the future. The Father had stated to the Court that he had no intention to relocate to City B.
The Court observes, in this context, that in October 2020 the Father had “suspended” his usual time with the Children by reason of his adverse mental health; the Court takes into account the real chance that should the Children not be permitted to relocate, there may be occasions when the Father chooses not to spend time with the Children by reason of adverse mental health.
And further, in this context, the Court takes into account the Mother’s allegations that the Father’s employment history since separation has been spasmodic and erratic, and that the Father, historically, has worked outside of City G. The Court takes into account the Mother’s allegations that the Father has confirmed to her that he will continue to seek employment outside of Victoria during 2020. The Court refers to the Mother’s allegations as to the Father’s employment history. Accordingly, the Court takes into account the real chance that when employed, the Father may be working away from City G, potentially outside Victoria, and thereby unable to spend time with the Children pursuant to the Court’s Orders.
Again, should the Children spend time and communicate with the Father in accordance with the Court’s proposals set out in its discussion under the meaningful relationship primary consideration, the Children’s meaningful relationship with the Father should be able to be maintained.
The Father contends that the Children have been attending school in City G for some time. The Father contends, the Court would infer, that it will be disruptive for the Children to leave their school in City G and commence school at City B. At the Interim Hearing, the Court was informed that the Child X is in year 4 and has spent 5 years at his current school, and that the Child Y is in year 1 and has been at the current School for 2 years. Yet the Father, in his Affidavit filed 12 November 2020, states that both Children have seen their school counsellor almost daily since they started school; this statement carries the not insignificant suggestion that the Children may be experiencing some real difficulties in their current school environment. On the other hand, the Mother alleges that the Children would attend either City B Primary School or N School upon relocation. She alleges that certain of the Children’s cousins attend those schools. She refers to extended family support, including support from her partner’s extended family. The Court is of the view, on the material presently before it, that there is a reasonable prospect that the Children will positively transition to attending school in City B.
The Father contends that educational quality in City B is of a significantly lower standard than the schools in the City G area. In the view of the Court, there is insufficient material presently before the Court to enable it to deal meaningfully with this contention. The Father makes bare assertions in this context without adducing any significant objective evidence.
The Father contends that City B, with an approximate population of 8,000 people, does not have the quality of activities for the Children to partake in compared to City G which will restrict their developing. The Mother, on the other hand, alleges to the contrary. The Mother alleges that the activities of gymnastics and dance lessons are available in City B which would be of interest to the Child Y. The Mother alleges that the cost of extracurricular activities are cheaper in City B compared to City G. This issue of the comparative quality of extracurricular activities in City B compared to City G is neutral as to relocation.
The Father alleges that the Child X has had the Mother’s partner blocked on Kids Messenger for months. On the other hand, the Mother alleges that the Children get on well with her partner. The Affidavit of the Mother’s partner is consistent with this allegation of the Mother. The Court cannot resolve this disputed issue at this Interim Hearing.
The Father alleges that the residence of the Mother’s partner is insufficient to house the Children. This would appear to be disputed by the Mother. The Mother, for her part, alleges that the Father’s accommodation in City G is unsatisfactory for the Children. These issues, on the material adduced at this Interim Hearing, and being untested, are neutral as to relocation.
The Father contends that should the Mother be permitted to relocate with the Children, he may well need to pay increased Child support. The Court is unable to meaningfully consider this contention particularly noting the Father’s financial difficulties in 2020 with the pandemic.
On balance, the Court is of the view, evaluating the above considerations under section 60CC of the Act, and other matters discussed above, and having regard to relevant legal principle, that it will be in the best interests of the Children that the Mother be permitted, pending further Order, to relocate their residence to the City B/Town H area.
The Court is of the view that the Mother’s proposed Orders 12-21 and the ICL’s proposed Orders 1, 2, 4, 5, 6, 7, 8, 9, 11, will be in the best interests of the Children, and in this respect refers to its discussions above under s 60CC of the Act.
Parental responsibility
The Mother seeks an Interim Order for sole parental responsibility in relation to the Child’s education and major medical issues. The ICL seeks no Order in this context.
With the Court determining that it is in the Children’s best interest to attend school in City B, there appears to be no major decision looming for the Children to be made. There is force to the ICL’s submission that the evidence should be tested in relation to the issue of parental responsibility before any Order is made.
At this Interim stage, it will not be in the best interests of the Child to make an Order for sole parental responsibility relating to education and major medical issues as sought by the Mother. It will not be in the best interests of the Children to make any Order for parental responsibility at this Interim stage.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view at this Interim stage that it will be in the best interests of the Child to make the following Interim parenting Orders:
(1)Order 2 and 3 within Exhibit A of the Courts Orders of 16 May 2019 be suspended until further Order.
(2)X (‘X’) born in 2010 and Y (‘Y’) born in 2013 (“the Children”) shall spend time and communicate with the Father as follows:
(a) During school term on each alternate weekend from 6 PM Friday until 5 PM Sunday with such time to be suspended during school holiday periods;
(b) Christmas New Year School Holidays commencing 2020:
(i)Alternate weeks during the Christmas New Year school holiday period at times to follow the normal commencement of the Father's weekend on the Friday to the following Friday 10AM;
(c) On Father's Day weekend in each year from 10 AM Saturday until 5 PM Sunday provided that the Father's time shall be suspended on the Mother's Day weekend from 10 AM Saturday until 5 PM Sunday;
(d) For Christmas as follows:
(i)In 2020 on Christmas Eve from 3 PM until 10:30 AM Christmas Day;
(ii)In 2021 and in each alternate year from 10.30 AM Christmas Day until 3 PM Boxing Day with the Children to be in the Mother's care from 3 PM Christmas Eve until 10.30 AM Christmas Day;
(iii)In 2022 and each alternate year from 3 PM Christmas Eve until 10.30 AM Christmas Day with the Children to be in the Mother's care from 10.30 AM Christmas Day until 3PM Boxing Day;
(e) Half of all school term holiday periods (other than the Christmas New Year school holiday period), at times to be agreed, but failing agreement, the 1st half of such school term holiday periods in odd years, and the second half in even numbered years;
(f) The Children’s pupil free days shall be spent with the Father;
(g) Victorian public holidays that fall on a Monday or a Friday shall be spent by the Children with the Father;
(h) In addition to the above time to be spent by the Children with the Father during school holidays, the Father shall have 2 additional nights with the Children each school term holiday period, with the dates of such additional nights to be agreed upon between the parties in writing;
(i) Such further time as agreed between the parties.
(3)The parties agree for the purposes of communication that neither parent will block the other parent's mobile phone number.
(4)The parties agree to keep all communications between them civil and related to Children's matters only.
(5)The parties, by their servants and/or servants be and are hereby restrained from having the Children attend upon any psychologist and/or counsellor save in the event of prior written agreement between the parents.
(6)The parties agree to keep each other informed at all times of their current residential address and contact telephone number and notify the other within 48 hours of any change to the same.
(7)The parties agree that they will each notify each other immediately in the event of any medical emergency or of any significant medical illness or injury that may affect the Children whilst in their care including providing the other parent with details of any treating medical professional and authorise such professional to discuss the Child's condition with the other parent.
(8)The parties each keep the other informed at all times of any significant medical injury or illness affecting the Children when in the care of each of them including providing the other parent with details of any doctor or hospital that the Children may attend upon along with details of any treatment administered.
(9)The parties agree that the provisions of Orders 7 and 8, do not apply to trivial matters such as a cold or minor illness.
(10)The parties agree that they may exercise their own discretion in deciding whether or not the Children attend birthday parties, sporting activities or any other extracurricular activity if the Children are experiencing a cold or minor illness.
(11)Both parties are permitted to attend and participate in all usual parent/Children activities and extracurricular activity to which the parents are normally invited or expected to attend (even if such activities occur outside of their scheduled time with the Children).
(12)Both parties are permitted to discuss all matters pertaining to the Children's education, health and well-being with their school and medical and like practitioners.
(13)Changeovers shall occur, unless otherwise agreed, at the front of the Mother’s residence at the commencement of the Father’s time with the Children, and with the Mother collecting the Children from the Father’s residence at the conclusion of the Father’s time with the Children.
(14)The Mother shall be permitted to relocate to the City B/Town H area with the Children provided:
(a) she gives the Father at least one month’s written notice of her intention to do so and provides the Father with the residential address and confirms the school enrolment of the Children in City B; and;
(b) The Mother shall not relocate before the end of the 2020 school year;
(15)The Mother is permitted to enrol the Children at City B Primary School provided that the Father is also listed as a contact person with the school.
(16)The Father is to communicate with the Children only by telephone or Skype at times as agreed between the parents in writing, or failing agreement two times per week for up to 30 minutes each Monday and Wednesday between 5:30 pm and 6:30 pm with the Father to place the call to the Mother’s mobile telephone, and the Mother may remain in the vicinity of the Children while communication takes place and shall end the communication in the event adult or inappropriate topics are being discussed.
(17)The parents to ensure they seek the Children be linked in with the Chaplin/Wellbeing Officer at the new School and ask the school to liaise with Ms D, Chaplin from E School;
(18)The Father to attend for a Psychiatric Assessment by a Psychiatrist nominated by the ICL such assessment to include:
(a) whether the Father has a diagnosed mental illness or psychological condition and if so, what is the nature of the illness or condition;
(b) what treatment and/or medication is recommended;
(c) whether the Psychiatrist, if able to express a view, considers the Father’s capacity to parent is impacted and if so how;
(d) the Father be responsible for the costs of the assessment and to file the Psychiatric Report on Affidavit and serve the Report on the parties as soon as available;
(e) each party to provide the Psychiatrist with all documents filed on their behalf in these proceedings; and
(f) the ICL provide the Psychiatrist with all Orders of the Court, the Family Report of Ms F dated the 25 April 2019 and the s67Z Response from DHHS.
(19)The Father do all acts and things and be responsible for any applicable fees to obtain a Report from his treating medical health practitioner and/or his treating mental health practitioner detailing his current medical and mental health state, including any diagnosis, treatment and medication that may be prescribed, and the Father’s compliance with such treatment and medication regime, and:
(a) file and serve such reports on Affidavit within 30 days of these Orders being made; and
(b) provide such reports to the psychiatrist as set out in paragraph 18.
(20)The Mother, the Father and their servants and/agents are hereby restrained by injunction from:
(a) discussing these proceedings in person, or by any form of communication, with or in the presence or hearing of the Children, or allowing any other person to do so;
(b) showing the Children any documents, letters or emails relating to the proceeding or any adult issues;
(c) using the Children, or either of them, as a messenger to convey messages between the parents;
(d) denigrating, criticising, belittling, abusing and harassing the other parent in presence of or within the Hearing of the Children, or either of them, or allowing any other person to do so; or
(e) publishing on the internet or any other social media about the other parent or the respective family members.
(21)Save for emergencies, the parents shall communicate to each other only about parenting matters via “Our Family Wizard” App to be installed by each parent on their mobile telephone at their own expense.
(22) The parties have liberty to apply at short notice.
(23) Certify for advocacy.
(24)These proceedings are placed in the list of matters awaiting a final Hearing in the City G Circuit of this Court for May 2021.
I certify that the preceding one hundred and thirty seven (137) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 22 December 2020
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