RADOS & RADOS

[2020] FCCA 1214

FEDERAL CIRCUIT COURT OF AUSTRALIA

RADOS & RADOS [2020] FCCA 1214

Catchwords:
FAMILY LAW – Parenting – Interim-interim parenting – short Reasons for Judgment.

Legislation:

Family Law Act 1975 (Cth), ss.13C, 60B, 60CC, 61DA, 64B, 65D

Cases cited:

Goode & Goode [2006] FamCA 1346
Grella & Jamison [2017] FamCAFC 21
Marvel & Marvel (2010) 240 FLR 367
Morgan & Miles (2007) 38 Fam LR 275
MRR & GR [2010] HCA 240

Applicant: MR RADOS

Respondent: MS RADOS

File Number: SYC 8826 of 2019

Judgment of: Judge Morley

Hearing date: 23 March 2020

Date of Last Submission: 8 April 2020

Delivered at: Sydney

Delivered on: 29 May 2020

REPRESENTATION

Counsel for the Applicant: Mr Lloyd SC

Solicitors for the Applicant: Farrar Gesini Dunn Sydney

Counsel for the Respondent: Mr Roberts

Solicitors for the Respondent: Broun Abrahams Burreket

ORDERS

1. That the child X born in 2015 (‘X’) live with her mother.

2. That X spend time with her father on a fortnightly basis, as follows:

   (a)In week one, from 10:00AM on Sunday until the start of day care, or 9:00AM if not a day care attendance day on Wednesday; and

   (b)In week two, from 10:00AM on Sunday until the start of day care, or 9:00AM if not a day care attendance day on Tuesday.

3. That where changeover does not occur by drop off to or collection from X’s day care, that changeover occur by the father collecting X from the mother’s place of residence at the start of his time with her, and return X to the mother at the mother’s place of residence at the conclusion of his time with her.

4. That X attend A Child Care on Mondays, Tuesdays, and Wednesdays, and the parties do all acts and things and sign all documents to facilitate X’s attendance at A Child Care on those days, unless X is unwell or as otherwise agreed between the parties in writing prior.

5. That pursuant to section 13C(1)(a) of the Family Law Act 1975 (Cth), the parties engage in family therapy with Mr B of the C Counselling Centre, and attend at all such appointments as are recommended by Mr B, and do all such things as attend family therapy with Mr B of the C Counselling Centre.

6. Pursuant to section 13C of the Family Law Act 1975 (Cth), the parties and each of them shall forthwith and within seven days contact the intake officer of the C Counselling Centre for the purpose of arranging and attending family therapy with Mr B, and each party shall then:

   (a)Attend at such times, dates and places as may be advised; and

   (b)Pay such fees as may be charged;

   to participate in and complete such sessions of family therapy as are assessed as suitable and offered.

7. In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined, then Mr B or an agent of the C Counselling Centre is requested, pursuant to section 13D of the Family Law Act 1975 (Cth), to advise the Court in writing of that fact.

8. Prior to the next Court event, and no later than by 4:00PM on 5 August 2020, each party shall file and serve a brief affidavit of no more than five pages of text as to compliance with the above Orders for family therapy, without infringing upon the confidentiality of that process, setting out a summary of what that party has learnt from their attendance at family therapy and how they have or intend to implement that learning in their future parenting and in particular in relation to their co-parenting relationship.

IT IS NOTED that publication of this judgment under the pseudonym is Rados & Rados approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 8826 of 2019

MR RADOS

Applicant

And

MS RADOS

Respondent

REASONS FOR JUDGMENT

1. These are short form reasons as allowed by section 69ZL of the Family Law Act 1975 (“the Act”) and being in relation to ‘interim-interim’[1] orders from an urgent, short hearing on 23 March 2020 of parenting issues between Mr Rados as the applicant father (“the father”) and Ms Rados as the respondent mother (“the mother”). The parenting issues concern their child, X, born in 2015, four years and five months of age at the time of the short hearing.

   [1] This is a term of art and is current in use amongst the legal profession and in Court. Herein it refers to orders made pending an interim hearing.

Introduction

1. The parties commenced cohabitation in 2010, married in 2011, and separated on either 31 March 2019 (according to the mother) or 1 April 2019 (according to the father). The parties remained residing under the same roof until 20 June 2019, when the mother left the former matrimonial home at Suburb D in the Region E of Sydney and moved to live with her parents at Suburb F on the Region G. When the mother left the matrimonial home on 20 June 2019, she took X with her.

The issues

1. Three issues need some attention by way of urgent orders pending the matter proceeding to a proper interim hearing on 12 August 2020:

   a)The time that X is to spend with each of her parents on a fortnightly basis;

   b)The day care or preschool to be attended by X, whether H Kindergarten at Suburb J in the Region E area, or A Child Care at Suburb K in the inner city area; and

   c)Whether the parties should pursue family therapy and, if so, with whom.

The short hearing

1. The short hearing was conducted by telephone link due to the current SARS-CoV-2/COVID-19 pandemic circumstances. The father was represented by Mr Lloyd of Senior Counsel and the mother was represented by Mr Roberts of Counsel.

2. Both Counsel made very short oral submissions on the day, Mr Lloyd SC stressing that as the matter could not be heard until August 2020 on an interim basis, there was a need for urgent orders in relation to the three principal issues set out above. As the father had spent no time with the child since 4 February 2019 except for about an hour at a health appointment, Mr Roberts did not make any submissions against there being a need for some urgent or ‘interim-interim’ orders, pending the Court having opportunity to conduct a proper interim hearing in August 2020.

3. Due to the matters listed before the Court for interim hearing on 23 March 2020, I made directions for filing and service of written submissions by the parties, those written submissions all being received in accordance with those directions, a matter requiring the Court’s compliments to learned Senior Counsel and Counsel.

4. The father relies on the following material:

   a)His Application in a Case filed 27 February 2020;

   b)His Notice of Risk filed 23 December 2019;

   c)Affidavit of the father sworn 26 February and filed 27 February 2020 (“the father’s affidavit”);

   d)Written submissions filed 24 March 2020 prepared by Mr Lloyd SC; and

   e)Written submissions in reply to the mother’s written submissions prepared by Mr Lloyd SC and filed 8 April 2020.

5. The mother relies on the following:

   a)Response to Application in a Case filed 20 March 2020;

   b)Her Notice of Risk filed 20 March 2020;

   c)Affidavit of the mother sworn 20 March 2020 and filed that day (“the mother’s affidavit”); and

   d)Outline of case document containing written submissions prepared by Mr Roberts and filed 2 April 2020.

6. I note that oral submissions were made at the time of the short hearing by Mr Lloyd SC.  Senior Counsel submitted that the proceedings had been on foot since their commencement by the father on 20 December 2019, but that the mother’s material being filed only on 20 March 2020. That day was the Friday before the Monday on which this matter was listed before the Court in relation to the father’s Application in a Case, which had been filed on 27 February 2020 and granted leave for short service by 3 March 2020.

7. On the Court file is an affidavit of service sworn by a Mr Slater indicating that the relevant documents relied upon by the father for the short hearing, other than the written submissions, were filed for him on 27 February 2020 and were served on the mother personally on 2 March 2020. A Notice of Address for Service had been filed by the mother indicating that she was self-represented on 22 January 2020.

8. If that is taken as the date of service of the originating process material filed 20 December 2019, then the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) required that the mother file her Response document (noting that the father’s Initiating Application sought interim relief) by 20 February 2020. A further Notice of Address for Service was filed for the mother by her solicitors then engaged for her and acting for her at the time of the short hearing, on 17 March 2020.

9. It should not go without note and comment by the Court that the mother failed to comply with the Rules in relation to filing of her Response and supporting documents. When she then filed her documents, she did so late in the afternoon between 3:15PM and 4:17PM on the last business day before the matter was before the Court on an urgent basis. The affidavit filed on that date consists of 28 pages of text and seven annexures.

10. It was patently obvious from the father’s Application in a Case being granted short service that he was seeking urgent interim relief. Providing the documents of the mother to the father late in the afternoon of the last working day before the matter came before the Court, when she had been aware of the proceedings since, at the latest, 22 January 2020, and had been served with the urgent materials on 2 March 2020, was unfair to the father.

11. If the matter had proceeded to an interim hearing on 23 March 2020, as it could have done had the Court’s existing workload not prohibited that course, it may well have been that the mother would have been required to make and press an Application for leave to rely on her documents, and in particular to rely on documents in an interim hearing not in compliance with Practice Direction 2 of 2017.[2]

    [2] Federal Circuit Court of Australia, Practice Direction No. 2 of 2017: Interim Family Law Proceedings, 1 January 2018, [6].

12. I make these comments not in any way in relation to my consideration of and determination of the issues in this matter. These issues require the Court to give proper consideration in accordance with the legislative pathway, so as to determine what orders are proper to be made in the best interests of X, with X’s interests as the paramount consideration. They are made as a notice to the mother, and to parties generally, should they come to anyone else’s attention, that the Rules are there for a purpose. Part of that purpose is fairness by party to party, a component of natural justice, which is the fundamental touchstone of our judicial system. Enough on that.

The evidence

1. I have read and considered the father’s Notice of Risk and affidavit, and the mother’s Notice of Risk and affidavit as to paragraphs 1 to 117 inclusive, the balance of that affidavit going to financial matters not relevant to the issues to be determined in these Reasons.

2. As these are short reasons, I may refer to the evidence contained in certain named paragraphs of those affidavits without detailing that evidence, and if I do so, it is inherent in the reference that I have read and am cognisant in my considerations in these Reasons of that evidence.

3. Further, I have read carefully and considered the oral and written submissions made on behalf of the father and the written submissions made on behalf of the mother, and I have again listened to the whole of the oral submissions made on behalf of the parties on 23 March 2020.

4. The father is a public servant at Employer L, working Monday to Friday with hours that are flexible and which have in the past, he asserts, been from 10 am to 3 pm, though that assertion is disputed by the mother. The father continues to reside in the former matrimonial home at Suburb D. He has possession of “the family car”,[3] the only automobile owned by the parties.

   [3] Mother’s affidavit, [26.2].

5. The mother is employed by the Employer M as a professional, working Monday to Wednesday. On leaving the matrimonial home on 20 June 2019, she went with X to reside with her parents at Suburb F and then in late January moved to rental accommodation with X in Suburb N.

6. Prior to the parties’ separation, X attended A Child Care, Suburb K (“A Child Care”) from 2 November 2017 until 13 August 2018.[4] She then moved to H Kinder at Suburb J from 26 June 2018 until June 2019 (“H Kinder”).[5]

   [4] Mother’s affidavit, [33].

   [5] Father’s affidavit, [96].

7. During late January 2020, the mother advised the father that she was starting X back at A Child Care. This was without the father’s consent and he opposed X’s enrolment back in that centre and opposed her attendance at that centre. It has been the father’s position in the proceedings, since the filing of his Initiating Application on 23 December 2019, that X should continue at H Kinder, and that the mother should be restrained from enrolling X at or causing her to attend A Child Care.

8. The mother caused the enrolment and attendance of X at A Child Care in the knowledge of the relief sought by the father on an interim basis in the proceedings.

9. The father asserts that in the months between the mother leaving the home in June 2019 and the mother taking steps to prevent the father spending any time with X from 4 February 2020, he regularly spent time with X as follows:

   a)In week one, from 10:00AM until 4:30PM on Saturday, and from 10:00AM on Sunday until dropping her to her preschool on Tuesday; and

   b)In week two, from 10:00AM Sunday until dropping her to her preschool on Tuesday.

10. The mother disputes this. She says that for the period from 4 July 2019 until 4 February 2020, X was in the father’s care three nights per fortnight, not four nights per week as he asserts, being:

    a)In week one, 10:00AM until 4:30PM on the Saturday and 10:00AM Sunday until the start of day care on Monday; and

    b)In week two, 10:00AM on Sunday until the start of day care on Tuesday.

11. I cannot resolve and make any finding in relation to these competing assertions at the present time.

12. The father deposes that by arrangement with the mother, he spent three occasions of four consecutive nights with X in his care from 25 to 29 December 2019, 18 to 22 January 2020 and 25 to 29 January 2020. The mother agrees with that evidence. However, in paragraph 19 of his affidavit, the father asserts that between 30 June 2019 and 4 February 2020, there had been occasions when he had been permitted to spend time with X “between three to six nights each fortnight”[6] and “plus additional block time over the Christmas and New Year period, up to six nights at a time.”[7]

    [6] Father’s affidavit, [19].

    [7] Father’s affidavit, [19].

13. The father further asserts that “the most recent block period X has spent with me was for six nights from 22 December 2019.”[8] In relation to the parenting arrangements post-separation, the father asserts that X has spent time with him “anywhere from two nights per fortnight to six nights per fortnight”.[9]

    [8] Father’s affidavit, [19].

    [9] Father’s affidavit, [70].

14. The mother disputes that there have been occasions of six night blocks.[10] She asserts that:

    a)X has never spent more than four consecutive nights with the father;

    b)There have only been three occasions of the father spending four-night-blocks with X in the 12 months since separation;[11] and

    c)Other than those three occasions, X has not spent more than three consecutive nights with the father.[12]

    [10] Mother’s affidavit, [80].

    [11] Mother’s affidavit, [45]-[48].

    [12] Mother’s affidavit, [80].

15. In the period between 4 February 2020 and the short hearing on 23 March 2020, the father had spent no time with X except for about one hour at a medical appointment. During that time, there was correspondence between the solicitors acting for the father and the solicitors acting for the mother. In the course of this correspondence, the mother’s solicitors notified that the father could begin to spend time with X in accordance with a schedule set by the mother, only upon his providing a written undertaking that he would keep to that schedule and the child would be returned to the mother at the end of each period of time. The father did not provide that written undertaking.

16. During that period of time, the father had occasions (he says four times) of Skype audio/video communication with X and he says that on some of those occasions, she became upset and began to cry, wanting to “come home”.[13]

    [13] Father’s affidavit, [41].

17. In paragraph 55 of her affidavit, the mother agrees that she required the written undertaking from the father before he could spend further time with X, and she denies that X cried of became upset and distressed during the Skype calls with the father.

18. Both parties give evidence of their participation in the day-to-to care of X from the time of her birth up until the mother and X left the matrimonial home, the father asserting that he was “heavily involved”[14] in X’s day-to-day care from the time of birth, and details such care in paragraphs 45 to 47 of his affidavit.[15]

    [14] Father’s affidavit, [44].

    [15] Father’s affidavit, [45]-[47].

19. The mother asserts, and the evidence would seem to bear out, that she was the primary carer for X from the time of X’s birth until X was just over two years old in 2017, the mother having taken a little over two years maternity leave from 2015 (shortly before X was born) until 2017. When she returned to work, she worked three days a week (Monday to Wednesday), with Thursday and Friday being her days off and the days on which X did not attend day care.

20. The father took three months paternity leave from the time of X’s birth.

21. The father gives evidence of occasions when he asserts X was mistreated by the mother:

    a)In November 2018, the mother hit X with a stroller and knocked her to the ground.[16] The mother disputes the father’s version and says that she did not hit X intentionally with the stroller, but rather she bumped her accidentally when X moved to walk in front of the stroller and suddenly stopped walking.[17] She says further that she caught X before she fell, and that X did not touch the ground and that she was then picked up by her father and comforted as the mother had control of the stroller.[18]

    b)In December 2018, the mother hit the child with her hand.[19] The mother does not recall any such incident.[20] The father does not assert that the hit was other than parental chastisement, and does not assert that it left a lasting mark or caused a lasting hurt.

    c)On 15 April 2019, the mother hit X with her hand and left an imprint of a hand on X’s bottom and that X screamed and cried “in pain”.[21] The mother deposes that “X did get a smack on the bottom after I asked her on numerous occasions not to splash”.[22]

    d)On 28 and 29 April 2019, X complained to her father “Mom hit me”.[23] The mother replies in paragraph 94 of her affidavit, denying that she ever did anything to cause X to complain of mistreatment. She also deposes that on occasions, X has said to her “Daddy hurt me”[24], but that she took it as X playing one parent against the other in a period of time when X would have been aware that the relationship between the parents was breaking down.

    [16] Father’s affidavit, [50].

    [17] Mother’s affidavit, [91].

    [18] Mother’s affidavit, [91].

    [19] Father’s affidavit, [51].

    [20] Mother’s affidavit, [92].

    [21] Father’s affidavit, [52].

    [22] Mother’s affidavit, [93].

    [23] Father’s affidavit, [53].

    [24] Mother’s affidavit, [94].

22. The father gives evidence of the mother having difficulty managing X, which the mother denies.

23. The father gives evidence of occasions when he says he was the victim of family violence at the hands of the mother:

    a)On 9 June 2017, he says the mother pushed him while he was holding X who was 17 months old at the time.[25] The mother responds in paragraph 15 of her affidavit and says that the father was blocking her exit from the bedroom during an argument when she was receiving verbal abuse from him, X was crying and she used “my hands to make room so I could move past [the father] to go downstairs to escape and try to deescalate matters.”[26]

    b)On 5 February 2019, the father says that the mother was “pushing and shoving”[27] the father. The mother responds in paragraph 17 of her affidavit, details an argument between the parties, details personal abuse she asserts was voiced against her by the father, and says, “I did push him and pointed my finger at him”.[28]

    [25] Father’s affidavit, [59].

    [26] Mother’s affidavit, [15].

    [27] Father’s affidavit, [61].

    [28] Mother’s affidavit, [17].

1. The mother details what she asserts is family violence in her affidavit. I have read paragraphs 6 to 26.7 of the mother’s affidavit with care.

2. In paragraph of 100 of his affidavit, the father gives his “Reasons”[29] why he does not agree to change X’s day care from H Kinder to A Child Care. It would seem that X has not attended at H Kinder since June 2019. Though the father gives seven separate asserted reasons, all of the reasons except number 100.5 are essentially the same and are more in the nature of submissions than evidence.

   [29] Father’s affidavit, [100].

3. The parties engaged in family therapy with Mr B of C Counselling Centre from about May 2019.[30] The parties do not seem to have pursued that family therapy, unfortunately, and their co-parenting relationship has deteriorated since June 2019 to the current state where they are not co-parenting X.

   [30] Father’s affidavit, [18]. Mother’s affidavit, [80].

The law

1. In parenting proceedings under the Act, the Court is required to follow the legislative pathway set down in the Act. That applies to orders made on an interim-interim basis, such as the orders made with these Reasons for Judgment.[31]

   [31] MRR & GR (2010) HCA 240; Goode & Goode [2006] FamCA 1346; Marvel & Marvel (2010) 240 FLR 367.

2. The Court must give attention to section 60B of the Act that sets out the objects of Part IV of the Act relating to children. Those objects inform the making of parenting orders.[32] That section also contains the principles behind those objects. In this matter, I have considered those objects and the principles behind those objects.

   [32] Family Law Act 1975 (Cth) s 60B.

3. Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to a child, even where it is an interim-interim order,[33] the Court must regard the best interests of the child as the paramount consideration. The child’s interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter, but the child’s interests must always be the paramount consideration.

   [33] Family Law Act 1975 (Cth) s 64B(1), (2).

4. In parenting proceedings, pursuant to section 65D of the Act, the Court may, subject to the presumption of equal shared parental responsibility in section 61DA and consideration of any parenting plans under section 65DAB, make such parenting order as it thinks proper.[34] The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[35]

   [34] Family Law Act 1975 (Cth) s 65D(1).

   [35] Family Law Act 1975 (Cth) s 65D(2).

5. In determining what is in a child’s best interest, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC and make findings. [36] I have given proper consideration to the section 60CC considerations further on in these Reasons.

   [36] Family Law Act 1975 (Cth) s 60CC

6. Section 61DA provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[37]T

   [37] Family Law Act 1975 (Cth) s 61DA

7. The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse. The presumption, when applying, may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[38]

   [38] Family Law Act 1975 (Cth) s 60B

8. When the Court is considering parenting matters on the interim-interim basis, the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making the order.

9. If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then the Court must go on to consider spend-time-with arrangements pursuant to section 65DAA.

10. In this matter, I am not minded to make an order as to parental responsibility, which I will detail further on.

11. As to what is ‘proper’ and how the Court’s discretion is to be exercised, I note the comments of the Full Court of the Family Court of Australia in the recent decision of Grella & Jamison:[39]

    A discretionary judgment concerning the parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.[40]

    [39] Grella & Jamison [2017] FamCAFC 21.

    [40] Grella & Jamison [2017] FamCAFC 21, [18].

The section 60CC considerations

1. Before embarking on consideration of the primary and additional considerations set out in section 60CC of the Act, and as these are short reasons pursuant to section 69ZL, I would say that I find that this is not a matter where either parent presents a risk to X. I say that after considering all of the evidence before the Court on the short hearing and the oral and written submissions on behalf of each party.

2. It is inherent in the proposal for care by each parent that there cannot be an unacceptable risk presented to X by either of them. It is inherent in the care proposal put by the father that the mother cannot present a risk to X. The mother’s evidence taken at its height does not form a basis for any finding that the father presents a risk to X.

3. Orders need to be made on an interim-interim basis to regulate the time X spends with each parent because these parents have proven that they are unable to co-parent X and make arrangements themselves.

4. The primary considerations in section 60CC are the benefit to X of having a meaningful relationship with both of her parents and the need to protect X from any physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

5. I find that for the period of these interim-interim orders, there is no probability of X being subjected to physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Accordingly, there is no weighting to be made between the two primary considerations.[41]

   [41] Family Law Act 1975 (Cth) s 60CC(2A).

6. There is benefit to X of having a meaningful relationship with both of her parents. It is essential that X does have a meaningful relationship with both of her parents and that orders are made now to construct the time that X is to spend with each of her parents. I say this in circumstances where X has been kept from her father since 4 February 2020 and up to the date of the short hearing, by a combination of the dictates of the mother and the father’s refusal to ‘take whatever is on offer’ while awaiting interim-interim orders on short hearing so as to spend time with X on any, even limited, basis.

7. I have no evidence in relation to X’s views other than the father’s assertion in paragraph 41 of his affidavit that during Skype calls she has said to him, “I want to come home, Daddy” and “Daddy, when can I come home?”.[42] At four and a half years of age, X is too young for her wishes to be a factor of weight in the matter.

   [42] Father’s affidavit, [41].

What is the nature of the relationship with each of her parents?

1. X has a close and loving relationship with both of her parents. The totality of the evidence – the evidence on each side – leads to that finding. She has been in primary care of her mother since 20 June 2019 and in the sole care of her mother since 4 February 2020. Orders need to be made to re-establish the time between X and her father so that they can continue to develop their relationship.

2. I find that each parent has taken the opportunity to participate in decisions about major long-term issues for X, to spend time with her and communicate with her, subject only to the evidence indicating that the mother has made unilateral decisions on behalf of X.

3. The Mother asserts that such decisions were made after seeking the father’s input – a contention contested by the father – and consequent upon the father deciding, as he was entitled to do, not to provide a written undertaking to the mother in accordance with the demand communicated between the parties’ solicitors, on the basis that he disagreed with the time allowed for the purpose of the written undertaking, but in circumstances where he could have taken something as offered by the mother whilst awaiting urgent orders.

4. In this regard, it could be said that there is fault on both sides, but the weighting of the fault on each side as against the other is something yet to be determined.

What is the likely effect of any change in X’s circumstances including the likely effect on X of any separation from either of her parents?

1. If orders are made as sought by the father on the compromise basis suggested by the Court on the short hearing, then X would be away from her mother for three nights in one week and for two nights in the other week.

2. I find that X has spent three occasions of four nights in her father’s care without harm. In making that finding, I am cognisant of paragraph 47 of the mother’s affidavit, but I note that similar evidence is not given by the mother in relation to the subsequent two four-night-block periods.

3. The orders proposed by the mother, set out in the written submissions for the mother filed 2 April 2020, provide for X to spend one night in one week with her father and two nights in the other week with her father.

4. I find that the change in X’s current circumstances, caused by increasing the amount of time she spends with her father on a fortnightly basis, is unlikely to cause her detriment, and rather will be to her benefit in giving her increased opportunity to enjoy the care of each of her parents.

Are there practical difficulties and expenses involved in X spending time with and communicating with her father, and if so, how do those practical difficulties and expenses affect X?

1. The father lives in the former matrimonial home at Suburb D in the Region E area of Sydney. The mother lives at Suburb N in the inner city suburbs of Sydney. The father works at Employer L and can work from home. The mother works at Suburb K. If an order is made requiring X to attend H Kinder, that will involve considerable travel for the mother. If an order is made for X to remain at A Child Care, then it will involve considerable travel for the father.

2. The travel I am referring to is in relation to collecting X from day care or delivering her to day care at the start or finish of each parent’s time with X, if that start and finish is to involve collection from and delivery to the day care centre.

3. The father has a motor vehicle. The mother does not. Both parties are in employment and the mother has cash resources. I find that though there will be practical difficulties and expenses for one party or the other depending on which day care centre X is attending, it is not such a practical difficulty or expense as will substantially affect X’s right to maintain personal relations and direct contact with both parents on a regular basis.

4. In relation to the H Kinder at Suburb J, I note that it is nowhere near the mother’s place of residence or place of work. In relation to the A Child Care at Suburb K, I note that it is close to the mother’s place of work and place of residence and far away (in the Sydney urban context) from the father’s place of residence, but not far away from his place of work at Employer L.

5. The father asserts that he has flexible working hours. I do not have the evidence to tell me whether the father can deliver X to and collect X from the A Child Care on his way to or from work at Employer L, but that is on the basis of the evidence that I do have, a distinct possibility.

6. Accordingly, I find that in considering the practical difficulty and expense of X spending time and communicating with her parents, at present, I favour X remaining at the A Child Care rather than returning to the H Kinder.

7. In that regard, I note that X was already familiar with the A Child Care, having been there from 2 November 2017 to 13 August 2018. In this current period, she has been there since early 2020.

8. When parties separate and one party decides to live at a different residence to the other party, they move out. When one party moves away from the other party, then it is not unusual for them to move outside the area. That is what has happened here.

9. This is not a ‘same city’ relocation case (though the term ‘relocation case’ would hardly even apply to the distance between Suburb J and Suburb N, as voiced by Boland J in Morgan & Miles).[43]

   [43] Morgan & Miles (2007) 38 Fam LR 275.

10. The mother has taken up residence at Suburb J. The best interests of X and balance of convenience between the parties favours X being in the preschool closer to the mother’s place of residence and employment and the father’s place of employment, than the day care centre closer to the father’s place of residence.

11. X’s familiarity with the H Kinder from June 2018 until early 2020, as voiced by the father in paragraph 100 of his affidavit, is not, I find, sufficient to tip the best interests of X and the balance of convenience the other way.

12. Each of the parties attacks the other parent’s parenting capacity to some extent. On the whole of the evidence, I find that each parent has adequate capacity to provide for X’s needs including her emotional and intellectual needs.

13. Assertions of family violence are made by each of the parties and I have referred to this consideration earlier in relation to risk. I certainly do not disregard any of those assertions of family violence, the evidence thereof being contested between the parties as I have outlined, and that family violence being a matter of which the court must always take the most careful and serious notice. In this regard, I note the requirements of section 60CG of the Act.

14. Nevertheless, I do not find that the family violence asserted by the parties is such that it has a bearing on the orders to be made on the interim-interim basis of the short hearing.

15. I further note that there is no family violence order involving the parties or the child.

Parental responsibility

1. I will be making parenting orders, and even though those parenting orders are being made on the interim-interim basis, they are, nevertheless, parenting orders. They enliven section 61DA of the Act and the Court’s obligation to apply a presumption that it is in the best interests of X for her parents to have equal shared parental responsibility for her.

2. However, this is a matter in which interim-interim orders will be made, and the presumption still applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making the orders. At the present time and prior to a full interim hearing, I find that there are circumstances that make it such that it is not appropriate to apply the presumption.

3. I intend to make no order in relation to parental responsibility. It is not sought by either party on the interim-interim basis that I do so. Accordingly, I will leave the matter under section 61C of the Act, pursuant to which from the time of X’s birth each of her parents have had parental responsibility for her. That is a different legal concept from them having equal shared parental responsibility,[44] but consultation even where each parent has parental responsibility is in the best interests of the child and is to be desired.

   [44] Goode & Goode [2006] FamCA 1346.

4. As I will not be making an order that X’s parents have equal shared parental responsibility for her, I am not required to follow the legislative pathway through section 65DAA of the Act.

Conclusion

1. I find that it is appropriate to resolve the three issues for determination in these Reasons following the short hearing as follows:

   a)In relation to X’s care on a fortnightly basis, I find that it is appropriate to make orders that are in accordance with the compromised solution I suggested for the purpose of discussions between the parties at the time of the short hearing, that X be in her father’s care:

   i)In week one, from 10:00AM Sunday until the start of day care or 9:00AM if not a day care attendance day on Wednesday; and

   ii)In week two, from 10:00AM on Sunday until the start of day care or 9:00AM if not a day care attendance day on Tuesday.

   She will, therefore, be in her mother’s care:

   iii)In week one, from the start of day care or 9:00AM on Wednesday until 10:00AM on Sunday; and

   iv)In week two, from the start of day care or 9:00AM on Tuesday until 10:00Am on Sunday.

   b)In relation to changeover, I find that an appropriate order is that where changeover does not occur by delivery to or collection of X at her day care, then changeover will occur by X being collected by the father from the mother at the mother’s place of residence at the start of his time with her and X being returned by the father to the mother at the mother’s place of residence at the end of his time with her.

   c)I find that it is appropriate on the interim-interim basis that X remain at the A Child Care.

   d)I find that it is appropriate to make an order pursuant to 13C(1)(c) of the Act that the parties reengage with Mr B of the C Counselling Centre for the purpose of pursuing family therapy for the purpose of improving the co-parenting relationship for the benefit of X.[45]

   [45] Family Law Act 1975 (Cth) s 13C(2).

2. Unless the parties are able to reach a compromised agreement for the benefit of X in the meantime, the matter remains listed for an interim hearing at 10:00AM on 12 August 2020.

3. In that regard I say the following for the benefit of the parties, and I say it gently.  In any part of these Court proceedings – a short hearing for urgent orders, a full interim hearing, or a final hearing with the unpleasantness of the witness box, cross-examination and so forth – I receive information in a bubble, being the admitted evidence and submissions, to all of which I apply the law and I then perform my required function and make orders. The parties, as X’s parents, have the full 100-volume-set-encyclopaedia of knowledge about X. Between them, they know everything there is to know about X. They are better placed in that regard than anyone to decide what parenting arrangements are appropriate to be made with X’s interests as the paramount consideration. I say this gently in encouragement, as they approach the family therapy so ordered and, perhaps, some further family dispute resolution mediation, with a view to parenting X themselves and not leaving that task to the Court.

4. Accordingly, I make the orders at the commencement of these Reasons.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Morley

Associate:

Date: 29 May 2020