Peroni & Peroni
[2016] FamCA 920
•2 November 2016
FAMILY COURT OF AUSTRALIA
| PERONI & PERONI AND ANOR | [2016] FamCA 920 |
| FAMILY LAW – CHILDREN – Interim parenting – Where the mother contends there is an unacceptable risk to the child if left in the care of the father – The father’s time on an interim basis be supervised – Best interests of the child. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC |
| Deiter & Deiter [2011] FamCAFC 82 |
| APPLICANT: | Ms Peroni |
| RESPONDENT: | Mr Peroni |
| SECOND RESPONDENT: | B Pty Ltd |
| FILE NUMBER: | PAC | 2325 | of | 2015 |
| DATE DELIVERED: | 2 November 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 10 October 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Longworth |
| SOLICITOR FOR THE APPLICANT: | Watts McCray Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Maddox |
| SOLICITOR FOR THE RESPONDENT: | Meehans Solicitors |
| COUNSEL FOR THE SECOND RESPONDENT: | Ms White |
| SOLICITOR FOR THE SECOND RESPONDENT: | EMT Legal |
Pending Further Orders
The child C born … 2012 (“the child”) live with the mother.
The child shall spend time and communicate with the father as agreed between the parents and failing agreement on the following basis:
(a)Commencing Friday 4 November 2016, and continuing every fortnight from 10.15am on Friday until 6.00pm on Sunday;
(b)Commencing Wednesday 9 November 2016 and continuing every fortnight from 4.00pm until 7.00pm in daylight saving time and until 6.30pm in Eastern Standard Time;
(c)At Christmas time in odd numbered years from 12.30pm on 24 December until 12.30pm on 26 December;
(d)On Father’s Day (if the child is not already spending time with the father) from 4.00pm Friday until 6.00pm Sunday;
(e)On the child’s birthday and the father’s birthday at times as agreed and failing agreement if the day falls on a weekend from 1.00pm until 6.00pm and if the day falls on a weekday from 4.00pm until 7.00pm;
(f)By telephone at times as agreed with the mother and failing agreement not less than twice each week with the father to initiate the call between 7.00pm and 7.30pm on Mondays and Thursdays.
The father’s time is suspended on the following occasions:
(a)On the mother’s birthday as agreed and failing agreement from 1.00pm until 6.00pm if the father was otherwise spending time with the child.
(b)On the weekend of Mother’s Day if the father was otherwise spending time with the child;
That until further Order, each party, and their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child C, a female born in 2012, from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.
The Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.
The father is at liberty to attend the child’s school or preschool and participate in all activities that parents ordinarily participate in including but not limited to interviews, collecting the child, volunteering as a parent, receiving school newsletters and information regarding photographs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Peroni & Peroni has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 2325 of 2015
| Ms Peroni |
Applicant
And
| Mr Peroni |
Respondent
And
B Pty Ltd
Second Respondent
REASONS FOR JUDGMENT
Introduction
The parents of the child who is four cannot agree about her interim parenting arrangements.
Although the parents each propose that the child live mainly with the mother and spend time with the father on an interim and final basis, the mother proposes that the father’s time on an interim basis be supervised. The mother contends there is an unacceptable risk of harm to the child in the father’s care.
The father proposes that he spend time with the child each alternate week from Thursday afternoon until Sunday afternoon and for a few hours on a weekday in the alternate week.
The question to be determined is which of these interim parenting arrangements is in the best interests of the child.
Background
The father who is 42 and the mother who is 32 began living together in March 2005 and married in 2006.
The parents’ first child, a son, died soon after birth in 2011.
The child who is the subject of these proceedings was born in 2012.
The parents separated in March 2014 when the child was a few months short of her second birthday and the child remained living with the mother.
Two weeks after separation in March 2014, the father and maternal aunt made a report to police that the mother was a “missing person” being held captive at the home of a Mr D. Later in March 2014 an Apprehended Domestic Violence Order (“ADVO”) was made for the protection of the mother against the father.
In early April 2014 the father began spending time with the child.
The father generally spent time with the child each alternate weekend from Friday morning to Sunday afternoon in accordance with an informal agreement between the parents.
On some occasions in 2014 the mother contends that the child was sick or injured following her time with her father. This issue is dealt with later in these Reasons
In August 2015 the parties divorced.
In 2016 the mother married Mr D (“the mother’s husband”).
The mother contends that on a number of occasions in May, June and July 2016 the child was returned to her with unexplained injuries following her time with the father. This issue is dealt with later in these Reasons when considering the contested facts.
On 14 July 2016 the mother met the father’s new partner for the first time at the child’s changeover.
On 18 July 2016 the child’s general practitioner made a report to the Department of Family and Community Services (“Community Services”) about a risk to the child in the father’s care. Subsequently the mother and her husband also made notifications to Community Services and at around this time the mother made a decision that she would not make the child available to spend time with the father unless the time was professionally supervised.
On 20 July 2016 the father contacted Community Services and was informed that there was from the Department’s perspective no necessity for supervision as a result of the July notifications.
The father did not spend any time with the child between 14 July and 26 August 2016.
From 26 August 2016 the father recommenced spending time with the child for a few hours on each occasion supervised by a professional supervision service.
In September 2016 the father and his partner began living together.
The Contested facts
In addition to the uncontested facts, in accordance with Full Court authority the court may have some regard to the matters in dispute. In SS & AH[1], their Honours said at [100]:
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.
[1] [2010] FamCAFC 13
The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George[2], a decision of the Full Court citing Deiter & Deiter[3]).
[2] [2013] FamCAFC 182
[3] [2011] FamCAFC 82
In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:
Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
The basis for the mother’s proposal that all of the father’s time with the child be supervised is her contention that there is an unacceptable risk that the child may be physically harmed in the father’s care. This risk is said to arise from the following matters taken together:–
·The child has suffered from injuries on a number of occasions when in the father’s care
·The father and members of his family have given varied and inconsistent explanations concerning those injuries
·The child has made disclosures in relation to those injuries
·Concerns have been raised by the child’s medical practitioner, a mandatory reporter
·The mother’s own experience of the father’s inability to manage his anger including on occasions in the presence of the child
The mother contends that the child may be physically abused in the unsupervised care of the father as a result of these matters.
The child’s unexplained injuries
According to the mother the child suffered injuries or illnesses on a number of occasions when in the father’s care. On 1 June 2014 she contends that the child was returned by the father to her with an injured finger and on 16 November 2014 the child is said to have suffered from diarrhoea after spending time with the father. On 14 May 2016 the mother says the child was observed with a bruise and a lump to her head and on 26 June 2016 the child was observed with a bruise on her leg. Finally, on 10 July 2016 the child suffered a cut lip when in her father’s care and the mother also says that she observed bruises on the child’s legs.
The father does not dispute that the child suffered from a cut lip while in his care on 10 July 2016 which he says was caused by the child falling out of bed. The father does not specifically refer to the allegations that the child has had bruises on other occasions following her time with him.
There are only two records of bruising observed by a medical practitioner. First, it is recorded on 17 June 2014 that the child’s general practitioner observed a scratch across the bridge of the child’s nose, an “evolving bruise on the right temple region and some swelling and redness on the left eye”. The doctor also observed a “superficial graze on the child’s right knee” which is recorded as a “fall at the beach while with her mum”. It is curious to note that the mother does not make allegations that the child was bruised while in the father’s care at around this time and also appears to acknowledge to the doctor that the child suffered from a superficial graze from a fall while in her care.
On examination by a medical practitioner in May 2016, the child was found to have a four centimetre bruise with minimal swelling on the left side of her forehead. There is no other evidence supporting the mother’s contention about bruising on any other occasions.
On the basis of the doctor’s records and both parents affidavits, I am satisfied that the child suffered a cut lip when in her father’s care on around 11 July 2016. I am not satisfied that there has been a pattern of unexplained injuries, though the child may have suffered bruising from time to time while in the care of either of her parents. Having regard to the minor nature of the alleged bruising (even taking the mother’s case at its highest), and the age of the child, I am of the view that these “injuries” would be hardly surprising.
Explanations for injuries
The second matter, which the mother contends gives rise to a finding of unacceptable risk of physical abuse in the father’s care is said to be the father’s failure to explain or his conflicting explanations for the child’s injuries.
As indicated, the father refers in his affidavit to his discussions with the mother in relation to the child’s split lip only (in July 2016). He does not concede that he had any discussions with the mother in relation to any other injuries (which he also does not necessarily agree were occasioned by the child while in his care) and his case was conducted on the basis that he disputes the mother’s alleged conversations with him about these injuries.
In her affidavit the mother alleges that the father gave two differing explanations for an injury she observed to the child’s finger in June 2014. The mother claims that in a conversation with the father in relation to a bruise and bump, the mother says she observed on the child’s head on 14 May 2016, the father said that the child fell out of bed and hit her head on the side table. The mother does not set out any alternate explanation said to have been given by the father in relation to this alleged injury.
The main focus for the mother’s contention that the father and his family members have given varying explanations for injuries relate to the split lip which the father agrees was occasioned when the child was in his care on the weekend of 10 to 11 July 2016.
The father says in his affidavit that the child woke in the middle of the night and it appeared that she had fallen out of bed. In the morning the father observed a small cut on the child’s lip which did not require medical attention. On the Sunday, 10 July 2016 the child and her father attended a family christening. The father says that when he returned the child to the mother’s care, he told the mother the child fell out of bed and cut her lip. The father says that the following day the mother telephoned him and asked him what really happened and he gave the same explanation. The father says that the mother also asked him whether his partner’s six year old child had hit the child.
According to the mother, the father and paternal grandfather gave the varying explanations about the way in which the child received the injury to her lip on 10, 11 and 12 July 2016, but the following day the mother allowed the child to spend time with the father including overnight time. The following day was also the first occasion that the mother met the father’s new partner.
As the competing versions of the parties in relation to the issue of the father’s explanation for the child’s injury has not been tested, I can make no positive findings that the father has or has not provided varying explanations for the injuries.
The doctor’s notification
The third matter relied upon by the mother is that a medical professional who examined the child on 18 July 2016 felt sufficiently concerned about the child’s presentation that she made a complaint to Community Services as a mandatory reporter.
According to the doctor’s records which were produced on subpoena, the mother presented the child to her general practitioner on 18 July 2016 with concerns about the safety of the child when visiting her father. The surgery consultation records indicate that the mother presented with “significant concern” about the most recent injury which the doctor describes as a “superficial laceration to the lips”. It is recorded that “[the child] said that she spoke to her childcare teacher who has now left the childcare what had actually hapopnened (sic)”. It is also recorded that the mother spoke to the teacher who reported that the child said that her father had pushed her. The notes also refer to “a discrepancy in the story between the father and the grandfather” and that “this is the third time [the child] has returned from visiting her father with an injury”. In other words the doctor appears to have accepted the mother’s assertions about the child ’s disclosure that the father had pushed her, and an assertion about the pattern of injuries and inconsistent explanations. On this basis, according to the doctor’s records, she made a report in her capacity as a mandatory reporter.
The records of Community Services produced on subpoena indicate that the alleged non accidental injuries suffered by the child while in her father’s care were also reported to Community Services by the mother’s husband. This notification included the allegation that the father had given various explanations about the split lip injury and that the child had returned from the father’s care on at least three occasions with injuries.
The records also indicate that the father contacted Community Services shortly after the notification following the split lip injury. The records indicate that the complaint was “screened out” as a ROSH [risk of serious harm] notification as it was consistent with accidental injury, rather than an injury caused by a person.
The child’s disclosure
The mother also relies upon the child’s alleged disclosure to an employee at her childcare centre that she received the split lip as a result of the father pushing her. There is no direct evidence of the complaint having been made by the child and as I understand it, the employee is no longer employed at the childcare centre.
Having regard to the age of the child and the circumstances in which this report was said to have been made, I attach no weight to this alleged disclosure.
The father’s anger
Finally, the mother contends that the father’s inability to manage his anger towards the mother particularly the presence of the child are factors to be taken into account in relation to the level of risk posed by the father to the child.
The mother’s evidence in this regard relies firstly upon an incident on around
23 March 2014 a short time after the parties separated, which resulted in an ADVO being made against the father for the protection of the mother. The grounds for the application reveal that while the mother complained that the father “has issues with anger” and during the marriage would express “uncontrollable rage” over minor issues, the mother told police that the father has on no occasion been violent to her or assaulted her.
The final ADVO that was made on 20 May 2014 was for a period of 12 months. There is no evidence of any application having been made to extend the order.
The other incidents in the mother’s affidavit which are said to evidence the father’s inability to control his temper in the presence of the child in my view, can more accurately described as the father using offensive or inappropriate language towards the mother in the presence of the child. While it would be unfortunate and may very well have an impact upon the child if it were found that the father used the lewd and offensive language attributed to him, in my view, the evidence does not support the mother’s contention that the father has an inability to control his temper in the presence of the child.
In summary, I am of the view that the matters raised by the mother do not raise concerns that there is an unacceptable risk that the child will be physically abused in the unsupervised care of the father. For the reasons given, I am not satisfied that the father generally has a pattern of difficulties in controlling his anger particularly in the presence of the child. In my view, the one clear injury suffered by the child while spending time with her father is very minor and consistent with an accidental injury of the type which may be regularly occasioned by a child in the course of everyday activities. I note that Community Services did not assess the complaint as a “risk of serious harm” and took no further action in relation to it. The doctor’s concerns as a mandatory reporter were also based in part upon the mother’s contention that the child had presented on numerous occasions with unexplained injuries and that the father had given varying and inconsistent explanations, which is a matter of dispute in these proceedings. I attach no weight to the alleged third hand hearsay complaint by the child that the father had pushed her.
The law & discussion
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[4].
[4] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting. The objects are to ensure that the best interests of the children are met in particular ways such as:
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;
The principles underlying these objects include:
a)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
b)parents jointly share duties and responsibilities concerning the care, welfare and development of their children.
Section 60CA provides that 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.
In Deiter (supra), the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the child under consideration.
These proceedings are at a very early stage having commenced in July 2016. The family has not yet met with a Family Consultant as part of the Child Responsive Program and it is likely having regard to the delays currently being experienced at this Registry, that the matter may take many months or well over a year to be resolved. This is a relevant factor when considering the disadvantages of the child having supervised time with her father if the need for supervision does not arise as a result of my findings.
Goode (supra) sets a framework for the conduct of interim proceedings. After identifying the competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts, the first issue to ordinarily be considered is that of parental responsibility.
In this application, neither parent is seeking any order with respect to parental responsibility and it is agreed that the child will live with the mother and spend time with the father . The only question to be determined is the duration and frequency of that time and whether it should be supervised.
In determining this application regarding the father’s time, the Court must make such orders as are in the best interests of the children as a result of consideration of the matters set out in s 60CC.
The primary considerations: s 60CC(2)
The primary considerations, which are contained in subsection (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.
Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).
The benefit of a meaningful relationship with both parents
Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[5]
[5] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].
Each of the parent’s proposals provide for the father to spend regular time with the child which includes both weekend and midweek time. Although the mother’s proposal does not include overnight time and is more limited than the father’s proposal, in my view, her proposed orders would result in the fostering of an important relationship between the father and child.
The need to protect the child from physical or psychological harm
According to the mother, this consideration looms large when considering the application for the father’s time with the child.
However, this consideration is directed towards protecting the child from a particular type of harm which is said to arise in particular ways.
For the reasons previously given, I am not satisfied that the child has been subjected to or exposed to abuse, neglect or family violence or that there is an unacceptable risk that this will arise in the future in either household.
As I do not make the findings which form the basis for the mother’s contention that the father’s time ought to be supervised, I am not of the view that there is any basis for her proposal that supervision of the father’s time is in the child’s best interest.
The additional consideration: s 60CC(3)
Any views expressed by the child
The child has not yet been interviewed by a Family Consultant and her views are unknown. I do not attach any weight to the mother’s claims which have not been tested that the child has expressed reluctance at spending time with her father in the past.
The nature of the relationship of the child with each of her parents, and other significant persons
The child’s relationship with each of her parents has not been assessed. However, in circumstances where the mother has been the child’s primary carer for all of her life, it may be assumed that she has a primary attachment relationship with the mother.
In circumstances where the child has had a pattern of spending significant time with her father since separation and the mother proposes orders which would foster the child’s meaningful relationship with the father, it can also be assumed that the mother accepts that the father’s relationship with the child is an important one.
Extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, to spend time with or to communicate with the child
There is no evidence concerning the extent to which each parent has taken the opportunity to participate in decision making concerning the child. However, in circumstances where neither parent is seeking an interim order with respect to parental responsibility this is not a weighty matter.
Following separation the child initially spent regular time with the father including overnight time in accordance with the parents’ informal agreement.
The father has been diligent in seeking that this previous pattern of contact continue through the bringing of this application, a short time after the mother imposed the additional requirement that the father’s time with the child be supervised.
Extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the child
The extent to which each parent has fulfilled their obligations to maintain the child is unknown.
Likely effect of any change in the child’s circumstances, including the likely effect of separation from either parent, or other child, or other person with whom the child has lived
The mother effectively unilaterally changed the child’s pattern of care in July 2016 when she imposed the requirement that the father’s time with the child be supervised. The father’s application will not however simply bring about a return to the previous arrangements but will extend it, including by introducing an additional overnight each fortnight but by also introducing extensive school holiday time.
Although the mother contends that the child had become reluctant to spend time with her father, (to which I attach little weight for the reasons given) she does not suggest that the child has been detrimentally affected by separation from her in the past. Her main concerns for the future relate to separation from her for half the school holidays in block periods of up to one week. I am of the view that the introduction of half-holiday time for a child who is not yet of school age is a significant change in the child’s circumstances that may bring with it some distress in the child in being separated from the mother.
In my view, it is likely that if all of the father’s time with the child were to be supervised in the future as the mother seeks, this may have a detrimental effect upon the child’s relationship with her father over time. The requirement for another person to be present and supervise a child’s time with a parent may suggest to the child that the relationship with that parent is not safe. This arrangement may impede the development of the relationship between the child and the father, especially if the supervision is to continue for a lengthy period of time. The child will also not receive the benefit of a normalised parent child relationship which includes overnight time.
Practical difficulty and expense of a child spending time with and communicating with a parent
The mother’s proposal that the father’s time with the child be supervised raises significant expense especially as a private supervision agency is proposed. The pattern of supervised time proposed by the mother would cost $460 per week. Although the mother has proposed that this cost would be shared between the parents, unless such supervision is necessary to ensure the safety of the child, it is a significant financial impost on both parties.
Some practical difficulty also arises as professional supervision limits the nature of a parent’s time with their child.
The interim orders sought by the father set out in his Response provide for the child to spend overnight time each alternate weekend commencing on Thursday afternoon, rather than a Friday morning as was the previous arrangement. As the father has moved to a location approximately one hour’s drive from the mother’s home, this adds to his inconvenience. However, the time involved in travel for the child on the Thursday afternoon or Friday morning is the same. Another issue of practical difficulty arises on the father’s proposal that the time commence on Thursday afternoon as the child currently participates in a gymnastics class on a Friday morning. There would be significant practical difficulties in the father returning the child to gymnastics on a Friday morning.
Capacity of each parent and other persons to provide for the child’s needs
Attitude to the child and responsibilities of parenthood demonstrated by each parent
Although it is not particularly relevant to this interim application, there may be some concerns about the mother’s parenting capacity as she has been engaged with a “Brighter Futures” program for some time with the child. However, each parent demonstrates that they have the capacity to care for the child on a day to day basis and meet all of her physical and material needs. The father’s proposal includes the child spending time with him for half of the school holidays, amounting to at least six weeks each per year. There is no evidence that the father is entitled to sufficient annual leave that would enable him to care for the child for this period.
There is no doubt that each of the parents loves the child and wishes to have a significant involvement in her life. It may be considered that the mother behaved in a responsible manner in imposing the condition that the child’s time with the father be supervised, in circumstances where she believes the father poses a risk to the child. In my view, the father also acted responsibly in accepting this requirement even though he did not believe that it was necessary.
Maturity, sex, lifestyle, background, including lifestyle, culture and traditions, of the child and of either parent
Little is known of these matters which are not weighty considerations in an interim application.
Family violence
For the reasons given, I am not satisfied that either parent has perpetrated family violence against the other or that there is an unacceptable risk that this may occur in the future.
Although an ADVO has been issued against the father for the protection of the mother, I am unable to make any positive findings in relation to the circumstances in which the order was made.
Whether it is preferable to make an order least likely to lead to the institution of further proceedings in relation to the child
In my view, this is not a weighty factor in interim proceedings.
Any other fact or circumstances the Court thinks relevant
The father has also sought a restraint on the child being removed from Australia and that a Watch List Order be made. The mother’s partner is from New Zealand and according to her affidavit the child spent some time in New Zealand in the care of her husband’s family. According to the father he was unaware at the time that the child was being cared for in New Zealand. There is also some other evidence, being a medical practitioner record, that the mother has stated in the past that the child was moving to New Zealand. These matters in my view give rise to a concern that the mother may choose to unilaterally relocate the child’s residence to New Zealand. In these circumstances it is appropriate and in the child’s interests to make these orders sought by the father on an interim basis.
Conclusion
In coming to a decision about what orders are in the child’s best interests, I must balance the various matters to which I have referred. For the reasons given I am not satisfied that there is any unacceptable risk of harm to the child in the father’s care or that the father’s time with the child should be supervised for any reason.
In circumstances where the parties had previously reached an agreement from which it can be inferred that the mother accepted that there is a benefit to the child in having a meaningful relationship with her father which was consistent with a particular parenting arrangement, there seems no reason for that arrangement not to be reinstated. In my view, there may be a detrimental impact upon the child’s relationship with her father if it were to be further limited or supervised. I am also of the view however that it would be premature to change the arrangements for the father’s time with the child as he proposes. The father’s proposal for an additional overnight with the child came about as the father has moved from a home near the mother to some distance away. He also overlooks that this proposal will involve the child missing her regular Friday morning activity. The proposal that the father spend time with the child during half of the school holidays is a significant change for a child not yet of school age in circumstances where he may not even be available to care for the child for this period himself.
Having regard to all of the matters referred to, I am satisfied that it is in the child’s best interest for the previous pattern of time to be reinstated and accordingly I make the orders set out at the forefront of these reasons.
I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 2 November 2016.
Associate:
Date: 2 November 2016
Key Legal Topics
Areas of Law
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Civil Procedure
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Insolvency
Legal Concepts
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Abuse of Process
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Appeal
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Jurisdiction
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Stay of Proceedings
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