RAITHBY & MOXHAM

[2020] FCCA 1692

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAITHBY & MOXHAM [2020] FCCA 1692

Catchwords:
FAMILY LAW – Parenting – interim – short form reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) – where the father repeatedly acted unilaterally by ceasing the child’s time with the mother –best interests – risk – equal time – living in close proximity – appointment of an Independent Children’s Lawyer – order for preparation of a family report.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 69ZL, 65DAA

Practice Direction No. 2 of 2017

Cases cited:
Rice v Asplund (1979) FLC 90-725
SPS v PLS [2008] FamCAFC
Marsden v Winch (2009) 42 Fam LR 1

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Applicant: MS RAITHBY

Respondent: MR MOXHAM

File Number: BRC 14046 of 2018

Judgment of: Judge Howard

Hearing date: 26 May 2020

Date of Last Submission: 26 May 2020

Delivered at: Brisbane

Delivered on: 26 May 2020

REPRESENTATION

Solicitors for the Applicant: Whitehead Crowther Lawyers

Solicitors for the Respondent:  Shelly Legal

Counsel for the Respondent: Ms Giacomo of Counsel

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the father shall deliver the child X born in 2015 (“the child”) to the mother at 4:00pm today, 26 May 2020, with changeover to occur at the G Restaurant.

2. That thereafter, the child shall spend time with the parties in a week about arrangement from Tuesday to Tuesday.

3. That for the purpose of changeovers for the time child spends with the parties in accordance with paragraph 2 above herein, the following shall occur:-

   (a)Changeovers shall be from after school on Tuesday if a school day or at 3:00pm on Tuesday if a non-school day, with non-school day changeovers to occur at the H Contact Centre at Suburb J; and

   (b)Should the H Contact Centre not be able to facilitate a non-school day changeover at 3:00pm on a Tuesday, changeover shall occur at such a time on Tuesday that the H Contact Centre can accommodate. 

4. That for the purpose of the preceding Order, the parties shall forthwith do all acts and things necessary to undertake any required intake session/s at the H Contact Centre.

5. That at 12:00pm each Saturday, the child shall have one (1) FaceTime call with the non-resident parent.

6. That the parties shall attend a Child Dispute Conference/Child Inclusive Conference with Family Consultant Ms K or such other Family Consultant as nominated by the Senior Family Consultant of the Federal Circuit Court of Australia, Brisbane at 9:00am on 8 July 2020.

7. That it is requested that the Family Consultant interview the parties and the child in person on 8 July 2020 if possible.

8. That the Family Consultant shall provide an advice to the Court and the parties that may include:

   (a)identification of the issues for the children;

   (b)consideration of the relevant factors contained in s.60CC of the Act and an appropriate parenting plan for the children until there can be further investigations into the matter; and

   (c)such programmes as may assist the parties establish a better functioning co-parenting relationship and more positive and effective communication or that might assist them in the development of their parenting skills.

9. That the Family Consultant shall have leave to inspect any subpoenaed documents.

10. That the Family Consultant provide a written memorandum to the Court.

THE COURT FURTHER ORDERS:

1. That the child be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Federal Circuit Court of Australia at Brisbane.

2. That the Independent Children’s Lawyer organise for the preparation of a Family Report to be made available to the Court.

3. That the parties and the child of the relationship attend for Family Report interviews on a date and time to be advised by the Independent Children’s Lawyer.

4. That if a party fails to attend at the Family Report interviews without any reasonable explanation, the Court may consider making final orders at the next Mention of the matter whether or not such party appears at the Mention.  The Court will also consider ordering that such party pay the costs of the preparation of the Family Report.

5. That paragraphs 7 to 9 (inclusive) of the Application in a Case filed 5 May 2002 be dismissed.

6. That within twenty-eight (28) days of the date of this Order, the Respondent pay the Applicant’s costs fixed in the sum of $5789.

7. That the Orders made 30 March 2020 be discharged.

8. That this matter be adjourned for Mention to 9:30a.m. on 3 August 2020 in the Federal Circuit Court of Australia at Brisbane.

9. That on 3 August 2020 the Court may consider making a parenting or other Order based upon the recommendations (or one of the recommendations) of the Family Report Writer/Family Consultant (if a report, memorandum or opinion is available).  In the absence of any such expert opinion the Court may consider making a parenting or other order.

10. That if a party fails to attend Court on 3 August 2020 without any reasonable explanation, the Court may consider making final orders on that day.

IT IS NOTED:

(A)That on 26 May 2020, the mother withdrew paragraphs 7 to 9 (inclusive) of her Application in a Case filed 5 May 2020.

(B)That at the next Mention of this matter, the Court will hear further submissions in relation to the future conduct the property application contained in the Initiating Application filed 15 July 2019.

(C)The parties must note Division 13.1A of the Federal Circuit Court Rules2001.

(D)Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 14046 of 2018

MS RAITHBY

Applicant

And

MR MOXHAM

Respondent

REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore on 26 May 2020 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.

B.As stated in Court on 26 May 2020, these Reasons are given in short form pursuant to section 69ZL of the Family law Act 1975 (Cth).

1. The matter before the Court relates to one child, X, born in 2015.  This child is the son of the applicant mother, Ms Raithby, and the respondent father, Mr Moxham.  The matter has come before the Court today, because on 5 May 2020 the mother filed an application in a case seeking a change of the child’s residence.  The current operative parenting order in relation to this child is dated 6 June 2019.  That was a parenting order which was made by the Court with the consent of the parties.  By that order, the father had sole parental responsibility for the child.  The mother’s time with the child was to increase progressively.

2. Prior to the child commencing school, the order did not even permit any overnight time.  I am told that the orders were made by the Court – with the consent of the parties prior to the preparation of any family report.  I am told there has been no family report prepared.  By the order 6 June 2019 the child was to live with the father and not long after the making of the orders the mother filed another application in July of 2019 seeking to vary the parenting orders and the property order that was made on that same date.

3. The Court is giving these Reasons for Judgment today, pursuant to section 69ZL of the Family Law Act 1975 (Cth) – reasons in short form when making an interim parenting order. The Court must bear in mind section 60CA which states that the paramount consideration in the making of a parenting order is the best interests of the child. Section 60CC sets out how the Court is to determine what is in the child’s best interests.

4. Section 66CC(2)(a) talks about the benefit to the child of having a meaningful relationship with each of the parents. S.60CC(2)(b) talks about the need to protect the child from various forms of harm. At the time of the making of the final parenting orders in June 2019, it was obviously within the contemplation of the parties that the mother would continue to attend upon her treating psychologist and her treating psychiatrist. It is the treating psychiatrist, which is particularly relevant today, because it refers to a Dr F. Dr F is the mother’s treating psychiatrist and I note that there is before the Court today a letter from Dr F which will be exhibit 1. It is dated 21 April 2020. It is called a “Brief Psychiatric Report”. 

5. Ms Giacomo, of counsel, who appears on behalf of the father, says that the wording used in the letter indicates that Dr F has become an advocate on behalf of the mother.  I am not sure if that is right.  I am not in a position to make a finding one way or another about that at this stage.  What I do know is that Dr F says in the last paragraph of his report:-

   “Repeated examination confirms Ms Raithby does not suffer from any mental illness or personality disorder.”

6. That is the relevant part of Dr F’s evidence.  That is the part that the Court places weight on, for the purposes of today.  The mother, by the orders that were agreed in June of 2019, was to see the child for daytime visits until he commenced school.  He is about to turn five years old in 2020.  He currently attends what is now known as pre-prep at L School in Suburb M and as I understand the current arrangements, the child has not yet started overnight time with the mother after the making of the final orders.  Mr Kilmartin, solicitor, appears on behalf of the mother and tells the Court that prior to the making of the final orders in June 2019, the mother had been the primary carer.

7. I am not in a position to make a finding about that today, because I do not know precisely who was doing what in caring for the child.  I do not understand that to be a conceded fact so I am going to avoid it for present purposes.  But what is relevant is that the mother and the father were both represented in June 2019 when the consent orders were reached.  The mother maintains now, according to her solicitor, that she agreed to those orders under duress.  Once again, that is something I am not in a position to make a finding about today, and that will require much closer consideration and oral testimony in the Courtroom when that is allowed again.

8. The immediate concern for the Court relates to the best interests of X, noting that he has not seen his mother for 10 weeks.  In response to the application in a case filed by the mother, the father filed a response document seeking orders for the mother’s time to be supervised.  I should add that the mother’s application in a case asked for an order that the child’s residence be moved now from the father to the mother, and that there be a moratorium of time between the child and the father, and the child and the father’s family.

9. The father’s affidavit in response was filed on 25 May 2020.  I read an affidavit where it is maintained that the instructing solicitors of Ms Giacomo apparently were the victims of a cyber-attack.  In any event, I will leave that to one side.  The affidavit was obviously not prepared in accordance with the practice direction (No. 2 of 2017) and Ms Giacomo conceded that at the outset.  I stood the matter down and asked that Ms Giacomo specifically refer to which paragraphs of the affidavit she relies upon and which annexures she relies upon, and for the record they were paragraphs 1, 2 and 3 of the affidavit as well as paragraphs 13, 14, 15, 16, 17, 18, 19, 20, 26 – but there are two 26’s that were relied upon and they’re on page 5 – 27, 28, 30, 37, 38, 40, 42, 52, 53, 54, 56, 58.

10. I did not get my ruler out, but I suspect that is less than 10 pages and so it complied with practice direction no. 2 of 2017.  There is some reference to paragraphs 65 to 68 dealing with the property aspect.  I do also point out that it is the practice of the Court when an affidavit is sought to be relied upon in an interim hearing if it does not comply with the practice direction, the Court has the discretion to ask a party to indicate or nominate which pages of the affidavit that the party wishes to rely upon. 

11. And Ms Giacomo did that and I have had regard to those paragraphs, and I do think that cumulatively those paragraphs do not exceed 10 pages.  I have taken those paragraphs into account.  I have also had regard to the annexures referred to by Ms Giacomo, because the practice direction limits the parties to five annexures.  The annexures that were relevant, so far as the father is concerned, were annexures 7, 10 and 11 relating to the parenting case.  I note that one of the affidavits that Ms Giacomo took the Court to also made a reference to annexure 18, which was also highlighted by Mr Kilmartin on behalf of the mother.

12. The father maintains that time was suspended by him because he considered that, essentially, the mother was not acting in a child-focussed manner and that she was acting irrationally.  It is alleged that the mother was impersonating people.  It is alleged that the mother was stalking the father and members of the father’s family.  The Court is not in a position to make findings about those allegations at this point in time. 

13. I note the reference to the annexures to the father’s affidavit and, in particular, annexure 10 is a letter from N Security Services dated 22 May 2020 (addressed to Ms Shelley, who I understand is the instructing solicitor of Ms Giacomo), where it is maintained that on particular dates, (16 February, 28 February and 18 March) – it is said by Mr O from “Security Operations” – that the mother attempted to gain entry to P Street.

14. That is the address where the father and the child live.  I asked the question, during the course of argument, where the changeovers are taking place – to see if there was a reason why the mother would be at Suburb N.  This matter was raised when the matter came before the Court in December of 2019.  The father had sought a changeover at Suburb N, if I remember correctly, and the Court made an order that the changeover take place at G Restaurant.  Mr Kilmartin drew the Court’s attention to annexure 18 of the father’s affidavit, the text message which appears to be dated 9 April 2020. 

15. It is a message from the mother to the father, which says:

    “It is a serious concern Mr Moxham’s –

    …Mr Moxham’s previous messages to me were to meet him at Suburb N because of COVID-19, which he sent to me in messages to confirm –

    but then when I have gone to Suburb Q, where changeover is meant to take place at G Restaurant at 12 pm, to find Mr R, his long-serving barber, taking a 360 video recording on his phone exactly at 12 pm while I was sitting eating behind a pillar, as I could not be at the café.  It is invasion of privacy, stalking and very concerning, and I feel threatened by the barber and Mr Moxham’s conduct.  X has not been brought to me today by 6 December orders.  Time has not been facilitated again.  This was meant for my lawyer.  Sorry, my apologies.”

16. I do not understand there to be any evidence in the father’s affidavit denying that at some stage he indicated to the mother that in view of COVID-19, Suburb N would be preferable.  The father is the one who put this text message before the Court.  If he did not agree that at some stage, he had been telling the mother that Suburb N should be a changeover point because of COVID-19, then it was incumbent upon him if he did not agree with that to say something about it in his affidavit.  It leads me to draw an inference that what the mother has said there is correct in relation to the changeover point.

17. What flows from that is that it may well explain what the mother was doing at Suburb N.  I am not in a position to make findings that the mother impersonated anybody.  I am not in a position to make findings that the mother behaved irrationally.  I am not in a position to make findings that the father’s version of events is correct when he says that in front of the child, the mother made a large number of inappropriate comments.  These are matters that are contested between the parents.  The point is that the father was warned about this sort of conduct in unilaterally withholding the child when the matter came before the Court in 2019.

18. In December of 2019, the matter was before the Court because the father had unilaterally withheld the child.  I note, in particular, from page 15 of the transcript from 6 December 2019 when in the middle of a busy duty day, the Court took an inordinate amount of time to deal with this particular matter.  I note the transcript from page 15 onwards where the Court addressed the parents jointly (both parents were in the Courtroom) and then the specifically addressed the father and the mother in the following terms:-

    “HIS HONOUR:   Now, for the present purposes, they are the only orders I am willing to make.  They seem to me to be in the best interests of the child, and I just want, first of all, the father to stand up please.  Right.  Mr Moxham, state your full name, please?

    MR MOXHAM:   Mr Moxham.

    HIS HONOUR:   Right, and where are you living?

    MR MOXHAM:   Suburb N.

    HIS HONOUR:   What address?

    MR MOXHAM:   P Street.

    HIS HONOUR:   Okay.  What sort of work do you do?

    MR MOXHAM:   At the moment, I’m not working.

    HIS HONOUR:   Are you looking for work?

    MR MOXHAM:   I intended to be, and when the orders resume, been – running the way they should, I should have some time to look for projects or work.

    HIS HONOUR:   Okay.  Now, can I ask you where were you born?

    MR MOXHAM:   Country S.

    HIS HONOUR:   All right.  What’s your date of birth?

    MR MOXHAM:   ... 1983.

    HIS HONOUR:   Now, the mother has told the court that an incident occurred at a shopping centre after she held the child over, where you retrieved the child.  I want to make it abundantly clear that sort of conduct or behaviour by you is not to happen again.  All right?  There are processes.   You’ve got lawyers.  The lawyers know what the processes are.  These things can be addressed, if they occur, through the court process.  All right?  Otherwise, there’s mayhem.  You understand what I mean.  We can’t have chaos.  We need order.  All right?  So make sure you comply with the orders.  If there’s any issue that you say needs the court’s attention, ring your lawyer.  They will file an application.  The court will deal with it.  All right?

    MR MOXHAM:   Understood.

    HIS HONOUR:   Thank you.  Take a seat.

    MR MOXHAM:   Can I say one thing for myself, your Honour?

    HIS HONOUR:   Yes.  Yes.  Tell me.  Yes.

    MR MOXHAM:   Just simply, I just wanted to say my intention since June has always been to comply with the orders.  I’ve bent over backwards and put my own life on hold to facilitate time for Ms Raithby when she was not compliant for five months.  I also, when the order (15) was complied with, I then complied with the orders, even though there were other dubious circumstances.  My intention has always been that, and it continues to be that.

    HIS HONOUR:   All right.  Good.  Well, just listen to – just make sure you remember what I’ve said.

    MR MOXHAM:   Yes, your Honour.

    HIS HONOUR:   Right?  Thank you.  Now, if you just stand up for a moment.  Now, I’ve said to the father there are orders, he has to comply with them, and, of course, so do you.

    MS RAITHBY:   Yes.

    HIS HONOUR:   Right?  Thank you.  Now, if you just stand up for a moment.  Now, I’ve said to the father there are orders, he has to comply with them, and, of course, so do you.

    MS RAITHBY:   Yes.

    HIS HONOUR:   Right?  Because if you don’t, things will happen.  An application will be filed, and the whole thing will be revisited.  All right?  And if things run off the rails, what you’ve got to be aware of, as the father as well – as does the father, is that if you two can’t actually comply with the orders, I will have to put in place an order for supervision.  Supervised time only.  That’s what will happen.  All right?  So both of you have to be aware of that.

    MS RAITHBY:   Can I also ask that in these consent orders that Mr Moxham made me sign when I was severely stressed and didn’t understand and misled by the lawyer, he has got – as states, his grandparents have my son on their birthdays.  My mum and dad haven’t seen my child for – I don’t – all this year.  Since the start of the year.

    ………

    HIS HONOUR:   Well, now, this is why you need to get this lawyer involved if you want to run that sort of case.  All right?  And the court will need to consider all the evidence and make findings, one way or another.

    MS RAITHBY:   Yes.”

1. The father maintains that the mother says that she wants him to stay present when time is spent with the child.  The mother denies that.  I am not in a position to make a finding about it.  I am not in a position to make a lot of the findings, which is the basis of the evidence upon which the father relies.  As I made it abundantly clear to the father in December last year, if he considered that there was an issue which needed to be addressed his only course of action was to file an application and bring it before the Court, and let the Court decide.

2. There is, from what I have seen on this evidence from the father, no evidence that would justify the father in avoiding the filing of an application.  There is no justification for taking matters into his own hands.  I do note that apparently a temporary protection order has been sought and obtained by the father against the mother.  It is contested.  There has been no findings made in those proceedings – no Court hearing yet, as far as I am aware. 

3. The mother has put on evidence that she currently has somewhere to live.  A Ms T lives at Suburb U, and the mother has a guest wing at that property.  The mother pays $400 per week by way of rent, she has been renting there since March 2020, she can continue to reside at the property indefinitely, and this particular witness says the property would be suitable for a child to live there with the mother.  I am at a loss to put my hand on any particular piece of evidence relied upon by the father which is uncontested evidence that would convince the Court that his conduct has been reasonable in withholding the child.  I am very mindful of the fact that the child has lived, for the best part of one year, with the father, and, I apprehend, with the paternal grandparents.

4. Neither the father’s application for supervised time nor the mother’s application for a moratorium of time are in the best interests of this child.  Neither of those sets of orders are child-focussed.  This Court needs an Independent Children’s Lawyer to assist and to represent this child.  There is significant conflict here.  Allegations of family violence have been made by the father.  Also, my attention has been drawn to quite a significant history of allegations of family violence made by the mother against the father contained in the subpoenaed material. 

5. In particular, it seems to me to be appropriate, noting section 60CC(2)(b), for the Court to actually take the balance of the subpoenaed material into evidence on the hearing of this application. There was no objection to it and the directions that the Court made, made it clear that if a subpoenaed bundle was to be relied upon, the Court would deal with it in the usual way. What it does show is a history of allegations of family violence. Again, I am not in a position today to make findings whether any of that actually occurred or where fault lies in relation to those allegations, but what it does show is that both the mother and the father allege family violence against each other.

6. The matter has been before the Court many times since the making of the final orders on 6 June 2019.  The mother filed an Initiating Application on 15 July 2019 seeking to vary the final parenting orders which had only been made about five weeks earlier.  The matter came before her Honour Judge Spelleken on 12 September 2019 when both parties were represented by counsel.  The matter was adjourned until December 2019 for mention.  The matter came before me on a duty day on 6 December 2019 (as already noted).  It was also before the Court at the call over on 30 March 2020.  On 30 March 2020 the Court ordered electronic ADR and adjourned the proceedings for a final hearing in the Federal Circuit Court of Australia on a date to be fixed.  Both parties were legally represented on that occasion.  On 5 May 2020 the mother filed an application in a case seeking various interim orders.  The mother sought an urgent listing because (it was said) that the father was not permitting the child to spend time with the mother.  The matter was given an urgent listing date of 14 May 2020.  On that day the matter was mentioned but adjourned to give the respondent father time to file a response and an affidavit to the application in a case that had been filed by the mother on 5 May 2020.  The matter was listed for interim hearing by video link for 10:00a.m. 26 May 2020.  Various directions were made by order of the Court on 14 May 2020. 

7. There remains ongoing conflict.  I note the allegations of family violence.  I am going to appoint an Independent Children’s Lawyer.  I know that there are final parenting orders in place.  The Rice v Asplund (1979) FLC 90-725 question will be determined eventually. I think it is the sort of case where I may need to actually defer a ruling on the Rice v Asplund issue until a trial takes place.  I do not think it is the sort of case where I can make a Rice v Asplund ruling at a preliminary stage.  This issue was canvassed on 30 March 2020 – and the transcript of that day reveals that the father’s counsel informed the Court that the father also wanted to change the earlier final parenting order that had been made on 6 June 2019.  In relation to the Rice v Asplund issue I also note the decisions in SPS v PLS [2008] FamCAFC 16 especially at paragraph 48 and Marsden v Winch (2009) 42 Fam LR 1 in relation to timing of the determination of the Rice v Asplund issue.  I am very concerned, as I said earlier, that there was no family report.  When I say that I make it abundantly clear that I am not critical of the Court.  These parents put orders before the Judge.  The Judge, as I would have done, made the orders.  It seems to me that there needs to be an Independent Children’s Lawyer.  There needs to be a family report.  If it subsequently transpires during the conduct of the proceedings, in particular if an Independent Children’s Lawyer requested it, or an expert requested it, I would consider an order for the preparation of a psychiatric assessment of the mother.  Perhaps even of the father, depending upon how this matter progresses and what submissions are made and what evidence comes out.

8. But, what I do know at the moment is, that the very man who was tasked with acting as the psychiatrist for the mother, and the man who was referred to in the final orders that were made in June 2019, Dr F, has, as recently as last month, given the mother a clean bill of health in terms of her mental wellbeing.

9. Both parties have access to a motor vehicle.  There is, I am told, the changeover location at Suburb J called H.  That is a contact centre.  Mr Kilmartin’s understanding is that they will provide a facility to conduct changeovers.  It seems to me the changeovers have to go to a contact centre.  I have no confidence that these parents are going to be able, in a civil way, to conduct changeovers.

10. The question will be, what should I do with the time arrangements for this child?  The Court very much needs the assistance of – an Independent Children’s Lawyer and a family report.  But I need to put in place some orders. 

11. I currently do not have confidence that the father will continue to make the child available to spend time with the mother.  Having said that, I have to weigh that against the fact that, since June last year the father has been the primary carer.  I have evidence that the mother’s mental health is in a good state.  There’s no evidence of any mental illness, as stated by Dr F.  The mother has reasonable accommodation.  The mother has a good car.

12. It seems to me then, in the best interests of this young fellow, I need to put in place some orders whereby he is spending significant time with his mother and significant time with his father, including overnight time.  I am not satisfied, on this evidence, that there is any reason whatsoever on an interim basis, why this boy should not be spending overnight time with his mother.

13. The boy could have started prep this year but apparently the father, exercising sole parental responsibility, decided against it.  I am not being critical of him about that at the moment, because I do not know all the facts.  But, what I do know is that, that did, of course, have an impact, it seems to me, upon the orders themselves, because the mother’s overnight time was to commence when the child commenced school.  I do not know whether it could be said at the moment whether pre-prep is in fact school, although I do note he attends L School at Suburb M. 

14. In any event, I have no intention of getting into a discussion about an interpretation of the orders contained in paragraph 4 from 6 June 2019.  What I need to do is to deal with the best interests of young X, now, in May 2020, based upon the evidence which is currently before the Court.

15. I do not know how long it takes to organise for H Contact Centre to become available.  That is one issue that will need to be looked at.  The parties will need to undergo an intake, I think, even to utilise it as a changeover point.  There could be some days or weeks delay.  It seems to me this boy has not seen his mother for 10 weeks, and it seems to me there should be a changeover today, and the child should move from the father’s residence to the mother’s residence today.  And then, it seems to me there should be in place orders whereby he lives with both his mother and then his father, backwards and forwards. 

16. Moving forward, apart from today’s changeover, it seems to me that the changeovers should be at H Contact Centre. 

17. In terms of risk (s.60CC(2)(b)) – I have not identified any sufficient risk to preclude the making of the types of orders I am contemplating.  The question will be, on an interim basis, whether I should just order a week-about arrangement, pending the preparation of a family report.  I tend to think that a week-about arrangement is probably the way to go. 

18. The question is, whether I should actually get a family consultant, who is probably more likely to be able to see this family more urgently than a family report writer.  I am just going to get my Associate to check when a family consultant can see this family, probably in about a month’s time or so.  The family consultants are, once again, seeing people face to face. 

19. The child will continue to attend L School at Suburb M in pre-prep so that, of course, it will be incumbent upon both parents to facilitate that. 

20. The Court contemplated a week about arrangement. The Court informed the parties and the Court heard from Mr Kilmartin, the solicitor for the mother and from Ms Giacomo, counsel for the father. I note that the mother agreed to a week about shared care arrangement.  I also note that the father opposed the making of an order for shared care. 

21. In relation to the question of equal time I am very mindful of the various considerations.  The Court notes that, from the point of view of section 60CC2(b) and risk to the child, I have said previously in these reasons, and I reiterate, that the current evidence in relation to the mother’s mental health, is the evidence of Dr F.  That indicates to the Court that there is, from that perspective, no risk to the child. 

22. I am not in a position to make findings concerning conversations which the father says the mother has in front of the child.  The father says the mother says completely inappropriate things in front of the child.  I do not know where the truth of that lies at this point in time.  If there were eventually to be a finding that it was true, that in fact the mother was saying things in front of the child that were inappropriate, then obviously that would impact upon the Court’s orders.

23. That is something for the parties to bear in mind, and for the lawyers to advise their respective clients about.  Obviously it would be, for instance, inappropriate for the mother to talk to the child about the parents’ reconciling.  That is what the father maintains the mother has done.  Once again I am not in a position to make a finding about it.  But, of course, any sort of conversation which relates to an adult matter, such as the parents’ own relationship, adult matters relating to the reconciliation of the parents, any possible discussions about the father’s dating partners, any possible discussion about inappropriate or non-child focused discussion about the father’s household, would not be acceptable. 

24. That does not mean, of course, that a parent cannot say, “How are things – how are things with grandma and grandpa?  How are things with dad?  Everything going well?  What did you do last weekend?”  And the father can ask similar questions, as long as they, of course, ensure that both of them, the father and the mother, maintain a child focused outlook.

25. I know there is a current order for sole parental responsibility.  I am going to leave that to one side for the minute.  I am not going to address it. 

26. I am going to address now, by way of reasons, section 65DAA. It is unusual for the Court to move on an interim basis to an equal time arrangement when the previous order was for day time contact (and the overnight time had not commenced). But, the repeated withholding by the father of the child from this mother, without recourse to the Court, is of very great concern to the Court. It is not as though the father was not aware of the proper processes. I, myself, explained the situation to him in this Courtroom here in Brisbane, on 6 December 2019. I could not have been clearer. There is only one approach to take if a parent thinks that a parenting case or parenting order needs variation. And that is, to bring the matter to the Court. Parents are not entitled to act in a unilateral way.

27. There is evidence that the mother has reasonable accommodation, even, one might even describe it as good accommodation, available to her.  It is a steady environment there, Ms T has confirmed.  There is no evidence to the contrary.  The mother has the evidence from Dr F.  There seems to be no reason why the mother cannot care for this child.

28. I am not prepared at this point in time, to actually change the order from sole parental responsibility, even on the interim basis, because I have not heard from the parties about it, and I do not consider I am in a position to make that sort of order at this point in time.  In the future I may make that sort of an order. 

29. Even though there will be no order for equal shared parental responsibility the types of matters referred to in section 65DAA are still relevant. It seems to me at this stage that the boy has missed– at least 10 or more days with his mother, in accordance with paragraph 3 of the orders from 6 June 2019. It seems to me that, what the equal time arrangement will do is, it will break this cycle of the father acting in a unilateral manner. The matter is now, more than ever, under the spotlight of the Court. The conduct of the parents is now, more than ever, under the spotlight of the Court.

30. These parents live not terribly far from each other.  They both have access to motor vehicles that will assist them in getting to the changeover point at H, the contact centre at Suburb J.  These parents do have a history of non-cooperation.  I absolutely understand that.  But, I consider that, making an equal time order will enable the boy to re-engage with his mother in circumstances where that time was unilaterally stopped by the father.  But it also ensures that the boy maintains a strong connection with the person who has been his primary carer these past 12 months (the father).

31. The parents live quite close together.  I understand that there will be issues concerning their capacity to implement such an arrangement.  However, at this point in time that risk is outweighed by the need, in terms of best interests for X, for him to see his mother very regularly and for significant amounts of time at that.

32. In the fullness of time, with the benefit of an Independent Children’s Lawyer, and a family report, the Court will be in a better position to determine whether these types of orders are in the best interests of X in the long-term.  The Court will be in a better position to determine whether there has been any significant change in circumstances from the time of the making of the final parenting orders.  The Court will be in a better position down the track, obviously, to make findings, one way or another, about the various allegations that have been made, both by the father and by the mother. 

33. For present purposes the question of cooperation between the parents takes a back seat as it were. It’s not the most important consideration for the purposes of today. The most important matter to consider today is section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with his parents. It cannot possibly be said that, over the course of the last 10 weeks, that the meaningful relationship has been maintained if one parent unilaterally withholds a child and the child does not get to see the other parent. There does not seem to me to be any way that a Court could conclude that a meaningful relationship is being maintained.

34. It is that consideration in the Family Law Act, along with the evidence to which I have referred, relating to section 60CC(2)(b), in particular the evidence of Dr F– which leads me to conclude that this type of arrangement I am going to order is in the best interests of the child.

35. All these parents need to do is to attend with the child at the changeover point.  They both need to speak to the child in a child focused way.  They both need to foster, support and encourage the other parent’s relationship with the child.  They need to refrain from denigrating the other parent to the extent that that has occurred.  They need to refrain from discussing adult issues in front of the child, to the extent that that has occurred. 

36. But in terms of the necessity for any particularly high standard of cooperation, all they need to do is to get this boy to school (pre-prep), to make sure he comes home, to make sure his homework is done, he is fed, clothed, taken care of.  There should be one other telephone call between the child and the other parent in each week.  Any more than that would invite, it seems to me, the possibility of conflict between these parents, noting as I do, that face time calls themselves seem to have been a problem.

37. I’m happy to leave it as a face time call I guess, once a week.  Changeover will be today.  It is going to have to be, it seems to me, at Suburb Q – at their normal spot at Suburb Q, 4 o’clock today, the mother to be present, the father to be present, the child to be handed over, the child stay with the mother for a week, until after school next Tuesday.  Changeovers can be from L School at Suburb M unless the school is not open or the boy is not attending the school, then it will be the contact centre. 

38. In the absence of a contact centre being available in the absence of the school being available, changeovers will be at Suburb Q, at the previous spot that was used.  If the boy is not actually attending school changeovers will be at a time that the contact centre can facilitate on a Tuesday, otherwise they will be at 3 o’clock at Suburb Q if the contact centre cannot facilitate it on Tuesday.  If it turns out the contact centre cannot facilitate any changeover on a Tuesday, at a time that does not interfere with his schooling, then perhaps another – well, another contact centre has to be found.

39. The parties are to attend before a family consultant on 8 July at 9 am.  The consultant will prepare a memorandum.  And the matter will be listed for mention once an Independent Children’s Lawyer comes on board.  The Independent Children’s Lawyer will be requested to organise the preparation of a family report.  For present purposes it seems to me that the involvement of an Independent Children’s Lawyer will be of great assistance to the Court. 

40. I note that the father is opposed to an equal time order but in the reasons for judgment I have covered why I think it is in the best interests of the child.  The father is opposed to the appointment of an Independent Children’s Lawyer, and I can see no justification for not making an order for the appointment of an independent children’s lawyer.  It is exactly what is needed in this case.  There are many allegations of family violence.

1. Orders will issue reflecting this decision.

2. The next matter before the Court at the moment is the question of an application made on behalf of the mother for costs in respect of these interim applications. The Court is required to have regard to section 117 of the Family Law Act 1975.  Firstly, the Court should consider the financial circumstances of the parties.  I do note that the parties are both legally represented today, and they were on 14 May.  I do not have any up to date evidence as to their financial circumstances.  The Court is told that, in December the father had said he was not working.  But, as I say, there is no up to date financial statement and I’m not sure of the precise current financial state.

3. Ms Giacomo points out that the father’s evidence in his affidavit of yesterday restates that he is currently unemployed, and he receives a Centrelink pension it says, but the amount of money is not included.  In any event, I do note that it is well known that impecuniosity is not a reason for a Court to avoid making a costs order.  Neither of these parties get Legal Aid. 

4. The conduct of the parties is relevant. S.117(c). It is exactly relevant here. Subsection (g) is relevant. Such other matters as the Court considers relevant. It seems to me that the filing of the application by the mother on 5 May was wholly necessitated by the fact that the father had acted unilaterally and withheld this child from the mother, contrary to the order of 6 June 2019. This is in circumstances where the father had been warned on 6 December 2019. I made reference to precisely what I had stated in the Courtroom on 6 December 2019 in the reasons for judgment for the making of the interim parenting order today. The father’s approach, or at least the approach that he should have taken, was obvious and well known to him. He should have filed an application. If he had complied with the orders from June 2019 this matter would not be back before the Court now.

5. In any event, the Court also has to consider whether either party has been wholly unsuccessful.  The mother sought an order that the child live with her and there be a moratorium of the father’s time.  The father sought an order that the mother’s time be supervised.  The Court indicated that the best interests of the child were served, at this stage, by making an equal time order on an interim basis, and the Court heard submissions from the parties before it decided to do that, although it had indicated that it was a possibility.

6. It is not the sort of case where it is possible to say that one party has been wholly unsuccessful.  The mother’s time had been unilaterally suspended by the father.  The outcome she has achieved by coming to the Court is a very great improvement from the situation that she was in prior to filing the application.  If one were to gauge who has been more successful in terms of today, I would have to say it is the mother and not the father. 

7. I note that there was an application for sole use and occupation of a property at Suburb V.  Ms Giacomo says there are mortgagees involved.  As it turns out it is the father’s parents, and they are apparently in possession of the property.  The reality is though, that this case, on an interim basis here, was primarily about parenting.  It is the father’s unilateral action in suspending the child’s time with the mother which necessitated this application. 

8. When balancing the various considerations I have come to the conclusion that there should be a costs order made.  It is not appropriate to delay it for consideration on another day.  On 14 May the Court reserved the question of costs.  Now, looking at the items asked for on behalf of the mother, there is a sum of $2,172 sought in respect of 14 May.  Now, in that regard the attendance – or the appearance that day was only necessitated because the mother was forced to file an application on 5 May. 

9. It is said by Ms Giacomo that there should only be a fee of $305 permitted and not the sum of $2,172.  But I disagree.  I disagree for a number of reasons.  The first is, the mother was forced to file an application because of the father’s unilateral action.  The Court listed the matter to 14 May.  The mother’s lawyer needed to be ready for any possible eventuality on that day, needed to set time aside, needed to prepare. 

10. The view that I have formed is, it is not unreasonable in the circumstances for the sum of $2,172 to be allocated for 14 May 2020.  In addition, the mother’s solicitor had to travel to review subpoenas.  $630 was incurred.  That’s reasonable, in my view.  Today’s interim hearing, $2,987.  Again, these are reasonable amounts of money considering what was at stake. 

11. I note the submission that the property aspect was not pursued and withdrawn at the conclusion of the parenting.  But as I said earlier, this case primarily was about parenting.  Not property.  Not the sole use and occupation case.  It seems to me that the amount sought, being in accordance with the scale as they are, are not unreasonable.  I actually agree with the submission made by Mr Kilmartin, that there may have been a basis – may have been a basis for indemnity costs (Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR). 

12. Rarely do you have it in black and white so clearly what is required of a party, and then, within such a short space of time, complete disregard for what has been indicated by the Court.  So I think Mr Kilmartin has taken a reasonable approach in not asking for indemnity costs.  I am not remotely interested that the mother, on 6 December, might have been late coming back with the child.  I do recall that now that it is raised again.  It is not what is in issue today.  It has got nothing to do with it.  It seems to me that the costs sought on behalf of the mother are reasonable, and the father has 28 days to pay them.

13. Orders will issue in accordingly.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date: 26 June 2020