SCHABER & SCHABER

[2020] FCCA 2974

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCHABER & SCHABER [2020] FCCA 2974

Catchwords:
FAMILY LAW – Parenting – interim decision – discrete issue – children’s schooling – where the children are to attend primary school in 2021 and subsequent years – where the mother unilaterally relocated interstate with the children – where the mother’s partner resides interstate – where the mother unilaterally enrolled the eldest child into a school in South Australia – unilateral suspension of time and communication with the father – unsubstantiated allegations of physical, psychological and sexual abuse made against the father – multiple changes of schooling occasioned by the mother – where the mother seeks to enrol the children at a school located 500 metres from her residence – where the children’s current school is in close proximity to both parties – unsubstantiated complaints by the mother in relation to the children’s current school – where the father and independent children’s lawyer seek to maintain the status quo – whether the mother favours convenience over stability – whether the mother is child-focused – consideration of best interests of the children – consideration of s.60CC factors – change of schooling not ordered – interim injunction pursuant to s.68B – mother be restrained from enrolling the children at a school of her choosing – children to continue attendance at current school pending final determination of proceedings.

Legislation:

Family Law Act 1975 (Cth), ss.60B(1)(2), 60CC(2)(3), 60CC(2A), 60CA, 62B, 64B(1), 65D, 65DA(2) 68B

Federal Circuit Court Rules 2001 (Cth), r.13.04

Cases cited:

AMS v AIF (1999) 199 CLR 160

Goode v Goode (2006) 36 Fam LR 422

Keats & Keats [2016] FamCAFC 156

Marvel v Marvel (2010) 43 Fam LR 348

Mazorski & Albright (2007) 37 FamLR 518

McCall & Clark (2009) FLC 93-405

U v U (2002) 211 CLR 238

Waterford & Waterford [2013] FamCA 33

Applicant: MR SCHABER

Respondent: MS SCHABER

File Number: MLC 11588 of 2019

Judgment of: Her Honour Judge C. E Kirton QC

Hearing date: 4 September 2020

Date of Last Submission: 4 September 2020

Delivered at: Melbourne

Delivered on: 5 November 2020

REPRESENTATION

Counsel for the Applicant: Mr Ford

Solicitors for the Applicant: Victorian Aboriginal Legal Service

Solicitors for the Respondent:	Hartleys Lawyers
Solicitors for the Independent Children's Lawyer:	Taft Lawyers

THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:

1. The Applicant Father (Father) and the Respondent Mother (Mother) sign all such documents and do all such things as may be required to enrol X born in 2013 and Y born in 2015 (together the Children) at Town B Primary School, Town B in the State of Victoria commencing in 2021.

2. The Children attend Town B Primary School, Town B in the State of Victoria commencing in 2021 and the Mother and the Father facilitate such attendance.

3. Pursuant to s.68B of the Family Law Act 1975 (Cth) the Mother and/or her servants and agents be and are hereby restrained by injunction from enrolling the Children in any school other than Town B Primary School, Town B in the State of Victoria commencing in 2021.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) 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 the Annexure and these particulars are included in these orders.

B.If in any proceedings there are allegations of family violence and the provisions of s.102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E.If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

F.In the event of non-compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:

(i)     the filing of documents;

(ii)the payment of any applicable filing setting down, mediation or enforcement fee or fees; and/or

(iii)   any other procedural issues;

The application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.

G.To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial judge, or by another appropriate court officer, shortly prior to the final hearing date. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11588 of 2019

MR SCHABER

Applicant

And

MS SCHABER

Respondent

REASONS FOR JUDGMENT

Introduction

1. This proceeding relates to parenting matters only.  This is an interim decision in relation to where the children of the relationship X born in 2013 (X) and Y born in 2015 (Y) (together the Children) should attend school in 2021 and until further order.  The Applicant is the Father and the Respondent is the Mother of the Children.  This proceeding is listed for final hearing on 14 April 2021.

Issue to be Determined

1. The interim issue in dispute between the parties is whether X and Y should be enrolled at Town B Primary School or Town C Primary School (formerly known by its interim name of Town C 2 Primary School) in 2021.

Synopsis

1. I have determined that:

   a)X and Y be enrolled at Town B Primary School commencing in 2021.

   b)Pursuant to s.68B of the Family Law Act 1975 (Cth) (Act) the Mother and/or her servants and agents be and are hereby restrained by injunction from enrolling the Children in any school other than Town B Primary School commencing in 2021.

Background

1. The Father was born in 1990 and is 29 years of age.  The Mother was born in 1984 and is 36 years of age.  The parties commenced a relationship and cohabitation in about 2011[1].  The parties married in 2017[2].

   [1] Affidavit of the Father filed 17.10.19 at [19].

   [2] Affidavit of the Father filed 17.10.19 at [22].

2. The two children of the parties’ relationship X and Y are now aged 7 and 5 respectively.

3. In about July 2017 the family moved to Suburb D and the Children were enrolled in childcare and Kindergarten[3].  The Father works as a Labourer.  In 2018 the Mother commenced working afternoon shifts as a Labourer[4].   

   [3] Affidavit of the Father filed 17.10.19 at [23].

   [4] Affidavit of the Father filed 17.10.19 at [25].

4. On 25 November 2018 the parties separated and the Father went to live with his cousin Ms E in Suburb F until May 2019, when the Father moved back to Suburb D to live closer to the Children[5].  Between November 2018 and May 2019 the parents had an informal parenting arrangement whereby the Children spent time with the Father two days during the week and every second weekend from Friday to Sunday[6].  On 22 January 2019 the Father took the Children to Queensland for a holiday, where he stayed with them until 26 January 2019[7]. 

   [5] Affidavit of the Father filed 17.10.19 at [26] and [31].

   [6] Affidavit of the Father filed 17.10.19 at [27].

   [7] Affidavit of the Father filed 17.10.19 at [28].

5. In April 2019 the parties attended a mediation at the G Relationship Centre in Suburb H where they agreed that the Father’s time with the Children would be increased to:

   a)Monday, Wednesday and Fridays from after school until 6:30pm to 7:00 pm, unless the Children were to spend the weekend with the Father;

   b)Each second weekend from after school Friday to Sunday; and

   c)The school holidays were to be shared equally[8].   

   [8] Affidavit of the Father filed 17.10.19 at [30]. See also Affidavit of the Mother filed 24.10.19 at [14].

6. In February 2019 the Mother commenced a relationship with Mr J and they resided together each alternate weekend in Victoria[9].

   [9] Child Inclusive Memorandum to Court, 31.10.19 at p.3.

7. In 2019 X started Grade Prep at Town B Primary School and Y was enrolled and attended childcare at K Child Care, Suburb D[10].

   [10] Affidavit of the Father filed 17.10.19 at [15].

8. The Father spent holiday time with the Children from 26 September to 4 October 2019[11].

   [11] Child Inclusive Memorandum to Court, 31.10.19 at p.2.

9. The Father last spent time with the Children on 4 October 2019 before the Mother unilaterally relocated to South Australia with her partner Mr J and the Children, without the Father’s knowledge or consent[12].  After relocating to South Australia the Mother refused to allow the Father to communicate with the Children or to tell the Father where the Children were living[13].

   [12] Affidavit of the Father filed 17.10.19 at [5].

   [13] Affidavit of the Father filed 17.10.19 at [5] and [9].

10. Whilst the Mother was living in South Australia with the Children in the latter part of 2019, the Mother enrolled X into a school in South Australia[14].

    [14] Mother’s Affidavit, dated and filed 14.8.20 at [28].

Procedural History

1. The Father commenced this proceeding by filing an Initiating Application on 17 October 2019 (Initiating Application) seeking interim orders which may be relevantly summarised as follows:

   1.All times be abridged for the hearing of a recovery application in relation to the Children as a matter of urgency on an ex parte basis.

   2.A recovery order and a Commonwealth location order in relation to the Children.

   3.The Mother be restrained from:

   (a)Enrolling X in any school other than Town B Primary School;

   (b)Removing the Children from Victoria without the prior written agreement of the Father; and

   (c)Denigrating or belittling or discussing the Court proceedings in the presence of the Children or in the presence or hearing of the Children and from allowing her agents to do so in the presence or hearing of the Children.

   4.The Children live with the Father in Victoria and spend time and communicate with the Mother:

   (a)Each alternate weekend from Friday until Sunday 6:00 pm and every Monday and Wednesday from after school until 6.30 pm;

   (b)Half of the school holidays; and

   (c)Regular phone communication.

   5.Alternatively, if the Mother was to continue to reside in South Australia, the Mother spend time and communicate with the Children:

   (a)Each alternate weekend from Friday to Sunday; 

   (b)Half of the school holidays; and

   (c)Regular phone communication.

   6.Service on the Mother be effected by email and text message.

2. In the Initiating Application the Father sought final orders that the Children live with the Father, that he have sole parental responsibility for the Children and that he be at liberty to further particularise final orders upon determination of the interim application. On 17 October 2019 the Father also filed a Notice of Risk and an Affidavit[15].

   [15] Father’s Affidavit affirmed 16.10.19 and filed 17.10.19.

3. A Registrar of the Court ordered that the Mother be served with the Initiating Application by 18 October 2019 and the matter be heard before myself on 29 October 2019.

4. On 24 October 2019 the Mother filed a Response (Response) seeking interim orders which may be relevantly summarised as follows:

   1.The Children live with the Mother and the Mother have sole parental responsibility for the Children.

   2.The Children and the Mother live in South Australia and the Children remain enrolled in a school in South Australia.

   3.The Father’s time with the Children be suspended.

   4.Alternatively to paragraphs 2 and 3:

   (a)The Mother and the Children return to Victoria on or before 8 November 2019;

   (b)The Father’s overnight time with the Children be suspended;

   (c)The Mother re-enrol X in Town B Primary School[16];and

   (d)The Father spend supervised time with the Children at an agreed contact service on six occasions and that following the fifth occasion the parties obtain a joint report to be filed with the Court by the Mother.

   [16] Response, Interim Orders at [14(c)].

   5.An Independent Children’s Lawyer be appointed.

   6.Orders pursuant to s.69ZW of the Act directing the Department of Child Protection, the Department of Health and Human Services and Victoria Police to provide information.

   7.A family report be prepared pursuant to s.62G(2) of the Act.

   8.The Father be restrained from:

   (a)Attending within 50 meters of any childcare facility, school or kindergarten or other educational facility where the Children may be present;

   (b)Attending within 50 meters of the Mother’s place of residence or place of employment;

   (c)Interrogating the Children about the Mother’s place of residence or her partner; and

   (d)Allowing the Children to come into contact with the son of the Father’s partner.

5. On 24 October 2019 the Mother also filed a Notice of Risk (Mother’s Notice of Risk) and an Affidavit[17] (Mother’s October 2019 Affidavit).  On 30 October 2019 the Father filed an Affidavit responding to the Mother’s October 2019 Affidavit[18].

   [17] Mother’s Affidavit affirmed and filed 24.10.19.

   [18] Father’s Affidavit, affirmed and filed 30 October 2019.

6. The proceeding first came before the Court on 29 October 2019.   On that occasion both parties were represented by Counsel.  I made Orders which may be summarised as follows:

   1.Pursuant to s.11F of the Act the parties and the Children attend upon a Family Consultant of the Court for the purposes of a Child Inclusive Conference on 31 October 2019.

   2.The Family Consultant to provide a written memorandum.

   3.The proceeding be adjourned to 1 November 2019 for Mention.

7. Family Consultant Ms L met with the parties and the Children on 31 October 2019 and then prepared the Child Inclusive Conference Memorandum, dated 31 October 2019 (Section 11F Report).

8. On 1 November 2019 the matter returned to Court and both parties were again represented by Counsel.  After a contested hearing I made Orders which may be relevantly summarised as follows:

   1.The Mother do all acts and things to ensure that X was enrolled in and commenced at Town B Primary School in Grade 1 in 2020[19].

   2.Pursuant to s.68L(2) of the Act the Children be independently represented and Victoria Legal Lid be requested to arrange such representation.

   3.The proceeding was adjourned to 6 February 2020 for Mention.

   4.The Father’s costs of and incidental to the recovery order application were reserved.

   5.That until further order:

   [19] Order 4, Orders 1.11.19.

   (a)Until 13 December 2019 the Children spend time with the Father:

   i.     From 10:00 am on Saturday 2 November 2019 until 3:00 pm on Sunday 3 November 2019; and

   ii.   From 23 November 2019 until 3:00 pm on Sunday 24 November 2019;

   (b)Until 13 December 2019 the Children communicate with the Father by FaceTime on two occasions each week as agreed and failing agreement:

   i.     On Tuesdays between 7:30 pm and 8:00 pm; and

   ii.   On Saturdays between 7:30 pm and 8:00 pm.

   (c)From 13 December 2019 and thereafter the Children spend time with the Father as follows:

   i.     Each alternate weekend from 4:00 pm on Friday until 3:00 pm on Sunday; and

   ii.   From 2:00 pm on Christmas Day to 2:00 pm on Boxing Day;

   (d)From 13 December 2019 and thereafter the Children communicate with the Father by FaceTime each Tuesday from between 7:00 pm and 7:30 pm; 

   (e)Changeovers occurring prior to 13 December 2019 to take place at the McDonald’s Restaurant at Suburb M at the commencement of time and at the McDonald’s Restaurant at Suburb D at the conclusion of time;

   (f)Changeovers occurring after 13 December 2019 were to take place at a McDonald’s Restaurant as agreed between the parties;

   (g)The Father and the Mother forthwith enrol in a parenting post separation course and provide certificates of completion to each other’s respective solicitors;

   (h)The Father and the Mother complete a Supporting Children after Separation Program at a Family Mediation Centre and provide evidence of completion to each other’s respective solicitors;

   (i)The parties be restrained by injunction from:

   i.   Discussing the proceedings with the Children;

   ii.   Denigrating each other in the Children’s presence;and

   iii.  Using physical discipline on the Children.

9. On 17 December 2019 I made an Order in Chambers pursuant to r.13.04 of the Federal Circuit Court Rules 2001 (Cth) permitting the inspection of the documents produced by the Department for Child Protection in response to the Mother’s Notice of Risk.

10. On 9 January 2020 the Independent Children’s Lawyer (ICL) filed a Notice of Address for Service. 

11. On 31 January 2020 the Father filed a further Affidavit[20].

    [20] Father’s Affidavit affirmed and filed 31.1.20.

12. On 3 February 2020 the Mother’s solicitors Aston Legal Group filed a Notice of Withdrawal as Lawyer.  The same day the Mother filed a Notice of Address for Service which indicated that the Mother was acting on her own behalf.  On 3 February 2020 the Mother also filed two affidavits which she had affirmed[21].  On 5 February 2020 the Mother filed a further affidavit which she had affirmed (Mother’s 5 February 2020 Affidavit).  Each of these affidavits appear to have been prepared by the Mother without legal assistance.   On 5 February 2020 the Mother filed an affidavit affirmed by her partner Mr J[22] (Mr J February 2020 Affidavit).  This affidavit also appears to have been prepared without legal assistance.

    [21] Mother’s Affidavit affirmed on 27.1.20 and filed 3.2.20 and Mother’s Affidavit affirmed on 2.2.20 and filed on 3.2.20.

    [22] Affidavit of Mr J, affirmed and filed 5.2.20.

13. On 6 February 2020 Orders were made by another Judge of this Court (6 February 2020 Orders) which may be relevantly summarised as follows:

    1.The proceeding be listed for Interim Defended Hearing on 22 April 2020 (First Interim Defended Hearing) before myself.

    2.The parties file and serve an updated affidavit prior to the First Interim Defended Hearing.

    3.The matter be listed for final hearing on 14 April 2021 with an estimate of two days (Final Hearing) before myself.

    4.Trial directions were made; and

    5.The Mother and the Father be restrained from taking the Children or either of them to attend upon any counsellor and/or psychologist or other like professional for any treatment without the other parent’s consent and the consent of the ICL[23].

    [23] 6 February 2020 Orders, Order 8.

14. The Father filed a further affidavit on 8 April 2020[24] (Father’s April 2020 Affidavit) and an Amended Initiating Application on 16 April 2020 (Amended Initiating Application).  In the Amended Initiating Application the Father sought the following interim orders which may be relevantly summarised as follows:

    1.The Children live with the Father.

    2.The Children spend time with the Mother as follows:

    (a)Every second Friday from the conclusion of school or 4:00 pm until Sunday 4:00 pm;

    (b)Every Wednesday from the conclusion of school or 4:00 pm until the commencement of school the following day during school terms;

    (c)For the Victorian gazetted school holidays from the first Friday at 4:00 pm until the middle Sunday at 4:00 pm; and

    (d)As otherwise agreed between the parties in writing.

    [24] Father’s Affidavit affirmed 6.4.20 and filed 8.4.20.

    3.The Mother be restrained by injunction pursuant to s.68B of the Act from:

    (a)Enrolling X in any school other than Town B Primary School;

    (b)Removing the Children from Victoria without the prior written agreement of the Father; 

    (c)Denigrating or belittling or discussing the Court proceedings in the presence of the Children or in the presence or hearing of the Children and from allowing her agents to do so in the presence or hearing of the Children; and

    (d)Allowing the Children to come into contact with Mr J.

1. On 16 April 2020 the Mothers’ current solicitors filed a Notice of Address for Service.  On 19 April 2020 the Mother filed an Affidavit[25] (Mother’s April 2020 Affidavit).

   [25] Mother’s Affidavit dated 15.420 and filed 19.4.20.

2. On 20 April 2020 Mr J filed a Response to Initiating Application and a Notice of Risk (Mr J Notice of Risk).  Each of these documents indicated that they had been prepared by Brendan Rothschild of the Brendan Rothschild Legal Group.  The Response to Initiating Application sought an interim order that Mr J be joined as a second respondent to the proceeding.  The Response also sought interim and final orders that Mr J be permitted to spend time with the Children whilst they are in the care of the Mother.

3. The First Interim Defended Hearing took place before another Judge of this Court on 22 April 2020.  The Father was represented by Mr Ford of Counsel, the Mother was represented by her solicitor and the ICL also appeared.  There was no appearance on behalf of Mr J.  Interim Orders were made by the Court which may be relevantly summarised as follows (22 April 2020 Orders):

   1.All previous parenting orders be discharged.

   2.The Children live with each of the parents as follows:

   (a)    With the Father:

   i.     In week one, from the conclusion of school Thursday (or 4:00 pm on a non-school day) until the commencement of school on Monday (or 4:00 pm on a non-school day), commencing on Thursday, 30 April 2020 (4 nights); and

   ii.   In week two, from the conclusion of school Thursday (or 4:00 pm on a non-school day) until the commencement of school on Friday (or 4:00 pm on a non-school day), commencing on Thursday, 23 April 2020 (1 night);

   iii.     By FaceTime each Tuesday from 7:00 pm to 7:30 pm;

   iv.   At such further times as agreed between parents in writing via SMS;

   (b)    With the Mother at all other times.

   3.On Father’s Day if the Children are not already in the care of the Father pursuant to sub-paragraph 2(a), the Children’s time with the Mother be suspended from 6:00 pm the preceding Saturday until the commencement of school on Monday (or 4:00 pm on a non-school day).

   4.On Mother’s Day if the Children are not already in the care of the Mother pursuant to sub-paragraph 2(b), the Children’s time with the Mother be suspended from 6:00 pm the preceding Saturday until the commencement of school on Monday (or 4:00 pm on a non-school day).

   5.For Christmas, unless otherwise agreed between the parents in writing via SMS:

   (a)In 2020 and all even-numbered years thereafter, the Children shall be in the care of the Father from 2:00 pm Christmas Eve until 2:00 pm Christmas Day and with the Mother from 2:00 pm Christmas Day until 2:00 pm Boxing Day; and

   (b)In 2021 and all odd-numbered years thereafter the Children shall be in the care of the Mother from 2:00 pm Christmas Eve until 2:00 pm Christmas Day and with the Father from 2:00 pm Christmas Day until 2:00 pm Boxing Day;

   with the long summer holiday arrangements pursuant to paragraph 6 being suspended and resuming as though they were never suspended.

   5B. Each parent to spend time with the Children for each of the Children’s birthdays, if not otherwise in the care of the parent for three hours times to be agreed, but failing agreement from 1:00 pm to 4:00 pm. 

   6.For the long summer holidays commencing in December 2020, unless otherwise agreed between the parents in writing, the Children shall be in the care of each parent on a week about basis and:

   (a)The Children’s holiday shall commence with the parent who had the care of the Children of the last day of school; and

   (b)During the holidays the usual live arrangements in accordance with paragraph 2 (but not FaceTime communication) shall be suspended in the Father’s week one time will recommence on the first week of term one.

   7.For term school holidays, unless otherwise agreed between the parents in writing via MyMob or SMS:

   (a)In 2020 and all even-numbered years thereafter, the Children shall be in the care of the Mother for the first half, from the conclusion of school until 12:00 pm the middle Saturday and thereafter, the Children shall be in the care of the Father for the second half, from 12:00 pm on the middle Saturday until the commencement of the school term;

   (b)In 2021 and all even-numbered years thereafter, the Children shall be in the care of the Father for the first half, from all the conclusion of school until 12:00 pm the middle Saturday and thereafter, the Children shall be in the care of the Mother for the second half, from 12:00 pm on the middle Saturday until the commencement of the school term.

   with the usual live with arrangements pursuant to paragraph 2 being suspended and resuming as though they were never suspended.

   8.Changeover to take place, unless otherwise agreed between parents in writing by SMS:

   (a)At the Children’s school when changeover times coincide with the commencement or conclusion of school;

   (b)When the Children are not attending school or it’s a non-school day the parents shall collect the Children from the McDonald’s Restaurant, Suburb D.

   9.Each of the parents shall ensure that they effect changeover directly with each other and request that any person, including family members or partners attending changeover with them remain in the car or away from the immediate changeover location.

   10.Each of the parents shall as soon as practicable advise the other parent of any serious illness or medical emergency involving the Children and their relevant contact details, including email addresses, residential addresses and mobile numbers.

   11.The parents shall communicate with each other by SMS, save for an emergency where the parents may call each other and the parents shall ensure that the content of the messages and communications are succinct and focused on the care and development of the Children.

   12.Each of the parents be at liberty and are authorised to:

   (a)Attend all school events and extracurricular activities for which parents are normally invited to attend, including parent teacher interviews;

   (b)Obtain from the Children’s school, at their own expense all notices, reports and school photographs;

   (c)Liaise with the administration and teachers of the school concerning the educational development of the Children; and

   (d)Liaise with and obtain information from any medical practitioner or allied health professional who is attending upon the Children.

   13.Each of the parents and their servants and agents are restrained from:

   (a)Physically disciplining the Children in any way;

   (b)Abusing, belittling, rebuking or denigrating the other parent in the presence or hearing of the Children;

   (c)Involving or exposing the Children to any discussion which involves a dispute between either parent or parents and their respective partners;

   (d)Discussing these proceedings or any related documents with or in the presence of the Children;

   (e)Allowing the Children to be exposed to any adult conflict between themselves or their partner or any physical or emotional abuse between the parents or their respective partners;

   (f)Removing the residence of the Children from Victoria without the prior written consent of the other parent or by order of this Court;

   (g)Engaging or permitting their partners to communicate with the other parent on their behalf for matters concerning the care, welfare and development of the Children, including negotiating time arrangements;

   (h)Taking the Children or either of the Children, to attend upon any counsellor and/or other like professional without the other parent’s consent and the consent of the ICL[26];  and

   (i)Allowing the Children to be in the presence or hearing of any person doing what is prohibited by the restraints in the 22 April 2020 Orders.       

   14.The Mother forthwith remove the Children or either of them from the presence of Mr J in the event that Mr J is behaving aggressively or violently to either of the Children or the Mother.

   15.The Mother and Father sign all such documents and all such things to ensure that the Children are enrolled at Town B Primary School and Town C Primary School for 2021.[27]

   16.The proceeding be adjourned to 4 September 2020 for Interim Defended Hearing on the issue of the school at which the Children shall attend in 2021 (Second Interim Defended Hearing) before myself[28].

   17.The Mother file and serve any affidavit upon which she seeks to rely no later than 21 days prior to the Second Interim Defended Hearing.  The Father file and serve any affidavit upon which he seeks to rely no later than 14 days prior to the Second Interim Defended Hearing.

   18.Pursuant to s.62G(2) of the Act a Family Report be prepared and be given to the Court no less than 60 days before the Final Hearing.

   19.The parties attend Family Dispute Resolution Services upon the release of the Family Report.

   [26] Order 13(h) of the 22 April 2020 Orders.

   [27] Order 15 of the 22 April 2020 Orders.

   [28] Order 16 of the 22 April 2020 Orders.

4. On 14 August 2020 the Mother filed an affidavit[29] (Mother’s August 2020 Affidavit) in support of her application at the Second Interim Defended Hearing.  The Mother’s August 2020 Affidavit was not witnessed at the time of signing by the deponent due to the COVID-19 restrictions and was filed with the Court in accordance with the Joint Practice Direction 2: JPD of 2020 – Special Measures in response to COVID-19 Electronic filing, Viewing of Subpoenas, Annexures to Affidavits, Signatures on Documents to Affidavits, and Fees (Joint Practice Direction 2).

   [29] Mother’s Affidavit dated and filed 14.8.20.

5. The Father filed an affidavit on 26 August 2020[30] (Father’s August 2020 Affidavit) responding to the Mother’s August 2020 Affidavit. 

   [30] Father’s Affidavit affirmed 20.8.20 and filed 26.8.20.

6. The Mother filed a further affidavit on 2 September 2020[31] (Mother’s September 2020 Affidavit) in support of her application at the Second Interim Defended Hearing.  The Mother’s September 2020 Affidavit was filed with the Court in accordance with Joint Practice Direction 2.

   [31] Mother’s Affidavit dated and filed 2.9.20.

7. The Father filed an affidavit on 3 September 2020[32] (Father’s September 2020 Affidavit) responding to the Mother’s September 2020 Affidavit. 

   [32] Father’s Affidavit affirmed 3.9.20 and filed 3.9.20.

8. The Second Interim Defended Hearing came before me on 4 September 2020.  The Father was again represented by Mr Ford of Counsel, the Mother was represented by her solicitor and the ICL also appeared.  After hearing submissions Judgment was reserved.

Proposals of the Parties

Mother’s Proposal

1. At the Second Interim Defended Hearing the Mother proposed that in 2021 (Mother’s Proposal):

   1.X not continue to be enrolled at Town B Primary School where he is presently attending in Grade 1 and instead be enrolled at Town C Primary School in Grade 2; and

   2.Y be enrolled at Town C Primary School to commence Grade Prep.  

Documents Relied on by the Mother

1. The Mother relied on:

   a)The Mother’s August 2020 Affidavit and the Mother’s September 2020 Affidavit[33]; and

   b)The Mother’s 5 February 2020 Affidavit.

   [33] Transcript P13:L18-28.

Father’s Proposal

1. At the Second Interim Defended Hearing the Father Proposed that in 2021 (Father’s Proposal):

   1.X continue to be enrolled at Town B Primary School where he is presently attending in Grade 1 this year; and

   2.Y also be enrolled at Town B Primary School to commence Grade Prep in 2021. 

Documents relied on by the Father

1. The Father relied on:

   a)The Father’s August 2020 Affidavit[34];

   b)The Father’s September 2020 Affidavit[35]; and

   c)Section 11F Report[36].

   [34] Transcript P21:L40-P22:L4

   [35] Transcript P22:L10-11.

   [36] Transcript P23:L1-2.

ICL’s Proposal

1. The ICL agreed with the Father’s Proposal.

The Law

1. The principles governing the Court’s decision in this proceeding are set out in Part VII of the Act. The Court in determining this application must consider what orders are in the Children’s best interests: s.60CA of the Act. What this means in individual cases is determined by a number of statutory provisions.

2. The objects of Part VII of the Act are set out in s.60B(1) and assist in clarifying what Part VII aims to achieve to ensure that the best interests of children are met. There are also principles that underlie these statutory objects: s.60B(2).

3. Section 65D of the Act gives the Court power to make a parenting order which is defined by s.64B(1).

4. In determining what is in the Children’s best interests the Court must consider the matters set out in s.60CC of the Act. Section 60CC sets out the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the Children. Each of those matters where relevant must be considered and assessed in the context of the respective proposals. The Court must then determine which of the proposals is in the Children’s best interests.

5. The Court is not bound by the parties’ respective proposals (AMS v AIF[37] and U v U[38]).

   [37] (1999) 199 CLR 160.

   [38] (2002) 211 CLR 238.

6. In applying the primary considerations the Court is to give greater weight to the considerations set out in s.60CC(2)(b): s.60CC(2A).

7. The Full Court in Goode v Goode[39] mandated that the legislative pathway must be followed in all parenting cases and set out the procedural steps to be followed in interim proceedings[40].  It was noted by the Full Court that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place[41].

   [39] (2006) 36 Fam LR 422.

   [40] Ibid., 445, at [81]-[82].

   [41] Ibid., 445, at [82].

8. In Marvel v Marvel[42] the Full Court made the following obiter comments:

   120 As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children.  Interim parenting orders are frequently modified or changed after a final hearing[43].

   [42] (2010) 43 Fam LR 348.

   [43] Ibid., at [120].

9. In Keats & Keats[44] the Full Court held in respect of interim proceedings:

   9 […] that apart from relying upon the uncontroversial or agreed facts, a judge may 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[45].

   [44] [2016] FamCAFC 156.

   [45] Ibid., at [9].

10. An interim hearing is therefore by its very nature a curtailed hearing.  Evidence is limited and the matter is decided on the papers.

11. I will first consider the primary considerations of the Act.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;

1. The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford[46], Mazorski & Albright[47] and McCall & Clark[48]. 

   [46] [2013] FamCA 33.

   [47] (2007) 37 FamLR 518.

   [48] (2009) FLC 93-405.

2. In the Section 11F Report the Family Consultant reported:

   When [the Father] entered the Play-Room the children called to him running into his arms, X got there first and clung to his father telling him that he loved him and missed him.  The process was repeated with Y and contrary to [the Mother’s] claims there appears to be no difference in [the Father’s] management of either child[49].

   [49] Section 11F Report, Observations of X and Y with their Father, p.9.

[…]

Neither child approached their mother, nor were there any affectionate greetings, suggesting a slight wariness on the part of the children.

Y first approached his mother and told her “… I want daddy” and he appeared to be upset.  [The Mother] did not seek to comfort him but responded by asking Y “… are you happy” to which Y responded “no” because “… I wanted to see his daddy more”.  [The Mother] did not respond to this request.

X was bubbling with enthusiasm about having seen his father but he was ignored by [the Mother], who stood in the room and did not suggest any play with the children but neither did they with her[50].

[…]

The observations of the children with their father indicate they share a warm loving relationship with him, the children have no fear or inhibition in relation to their father, they report both loving and missing him and see themselves as impotent, unable to effect change in order to see and spend time with their father[51].

[50] Section 11F Report, Observations of X and Y with their Mother, p 10.

[51]

1. I therefore conclude that the Children have a meaningful relationship with the Father.  It was not disputed at the Second Interim Defended Hearing that the Children should have a meaningful relationship with both parents.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. I refer to the discussion in relation to s.60CC(3)(j) and (k).

2. In the Mother’s Notice of Risk the Mother alleged that the Children whilst in the care of the Father were at risk of physical assault, sexual assault or abuse and serious psychological harm[52].  In the Mother’s October 2019 Affidavit the Mother made allegations that in her opinion X had suffered from deteriorating mental health from about September 2018[53].  The Mother also made allegations that both of the Children had suffered from physical, psychological and sexual abuse whilst in the care of the Father[54].

   [52] Mother’s Notice of Risk at [2(c)].

   [53] Mother’s October 2019 Affidavit at [3(a)(i)].

   [54] Mother’s October 2019 Affidavit, at [3(a)(ii)-(xx)] and Annexures “1”-“5”.

3. In the Mr J Notice of Risk, Mr J alleged that Y had suffered from physical assault, sexual assault or abuse and serious psychological harm from the Father.

4. In the Section 11F Report the Family Consultant reported the following:

   In affidavit (24 October 2019) [the Mother] asserted on the basis of her leading conversations with X that he was sexually abused.  None of these claims have been substantiated by X who suggests some attempt at instruction by his mother about what he should disclose[55].

   […]

   X is a pleasant young boy able to converse about his family life.  X displays no evidence of emotional distress, he denied having poor sleep and appears to be attached to both parents and reported missing his father with considerable intensity[56].

   [55] Section 11F Report, Family Violence to Child/Sexual Abuse, p.8

   [56] Section 11F Report, X aged 6 years 5 months, p.9.

5. In the Section 11F Report the Family Consultant reported the following in the evaluation:

   The time-line of events is concerning, both [the Mother] and Mr J claimed a pattern of abuse, to the children from [the Father] but there have been no medical investigations or reports to authorities, until just prior to their departure to Adelaide (3 October 2019) when there was a notification to DHHS.  [The Father] is then informed by email (9 October 2019) and on 12 October 2019 allegedly X, in response to a leading question from his mother makes a disclosure, which he denied in interview and then acknowledged having had many conversations with his mother and Mr J about this matter.  X admitted to being confused, but at the core of this he cannot identify any detail of alleged abuse in accord with the account of [the Mother] which is highly unusual[57].

   [57] Section 11F Report, Future Directions, p.10.

   […]    

   [The Mother’s] claim that she was actually leaving Victoria because she was scared of the paternal grandfather appears nonsensical in light of her leaving the children, repeatedly in his care[58].

   [58] Section 11F Report, Future Directions, p.11.

   […]

   There is considerable uncertainty about Mr J’s role in this matter.  He speaks pejoratively about [the Father] and it is plausible to consider that his own history of damage has been the lens through which he has been reliving his own issues, but now through X and Y.  There has been no attempt to consider alternative explanations for events, with Mr J reported his certainty about events that borders on zealotry as evidenced by his statement about the children “… revealing more information in 18 years” and his preparedness “… to take legal action even at that time”.

   […]

   [The Father’s] conduct in biting Y is inappropriate but he appears to be aware of this concern and resolved not to behave in this manner again.

   […]

   It is recommended that the children immediately resume spending substantial and significant time with their father, in Melbourne, and should [the Mother] chose to reside in Melbourne then the parents are to enter into an appropriate parenting arrangement focused on each parent facilitating the children’s relationship with the other parent[59].

   […]

   [The Mother] appears to have attempted to draw the children into the parental conflict seemingly with a view to severing the children’s relationship with their father.  Consequently the children are to cease any psychological counselling or therapy as organised, whether by [the Mother] or Mr J.  Counselling of either child is only to occur by written agreement between the parents.

   […]

   X and Y are to resume attendance at their former school and either Child Care, or Kindergarten[60].

   (Emphasis added)

   [59] Section 11F Report, Future Directions, p. 11.

   [60] Section 11F Report, Future Directions, p. 12.

1. The Mother refused to accept the recommendation of the Family Consultant in relation to ceasing counselling or therapy unless by written agreement between the parents.  In an Affidavit filed on 3 February 2020[61] the Mother deposed that:

   The children are currently seeing a psychologist and further assessment is required prior to next hearing on the 6^th of February 2020[62].

   [61] Mother’s Affidavit affirmed 27.1.20 and filed 3.2.20.

   [62] Mother’s Affidavit affirmed 27.1.20 and filed 3.2.20, at [8].

2. The Mother’s 5 February 2020 Affidavit exhibited a Psychological Assessment Report prepared by N Psychology (February 2020 Psychologist’s Report), where the Mother had subjected the Children to further psychological assessment[63].  Mr J was involved in the interview process for this assessment and the Father was not.  This is very concerning given the content and tone of the Mr J February 2020 Affidavit.  Further, there is no evidence in the February 2020 Psychologist’s Report that any teacher or representative from X’s school, Town B Primary School was interviewed in the preparation of this report.  

   [63] Mother’s 5 February 2020 Affidavit, Annexure “-1”.

3. The 6 February 2020 Orders restrained the Mother and the Father from taking the Children or either of them from attending upon any counsellor and/or psychologist or other like professional for any treatment without the other parent’s consent and the consent of the ICL[64].  The 22 April 2020 Orders continued this restraint on the Mother and Father[65].

   [64] Order 8, 6 February 2020 Orders.

   [65] Order 13(h), 22 April 2020 Orders.

4. Notwithstanding the serious allegations made by the Mother and Mr J against the Father, subsequent to the publication of the Section 11F Report, the Court has made Orders for the Children to spend substantial and significant time with the Father on 1 November 2019 and in the 6 February 2020 Orders and the 22 April 2020 Orders.      

5. At the Second Interim Defended Hearing the Mother persisted with allegations that:

   a)X was suffering from poor mental health and needed to see a psychologist[66].

   b)The Father failed to take her concerns in relation to X’s mental health seriously[67].

   c)Town B Primary School had failed to provide a counsellor for X after she had provided the school with a mental health care plan to the school[68].

   d)Town B Primary School had failed to communicate appropriately with her and that there had been a breakdown in communication between herself and the school[69]. 

   [66] Mother’s August 2020 Affidavit at [11] and [12].

   [67] Mother’s August 2020 Affidavit at [15] and [16].

   [68] Mother’s August 2020 Affidavit at [13] and [14].

   [69] Mother’s August 2020 Affidavit at [17]-[21].

6. No credible or persuasive independent evidence was been produced to support any of these allegations apart from the Mother’s assertions.  In submissions, apart from the Mother’s affidavits, the Mother’s solicitor relied only upon the February 2020 Psychologist’s Report.  This report was produced in the circumstances referred to in paragraph 62 and for the purposes of this Interim Judgment I place no weight upon it.

7. Further, in relation to the allegations made by the Mother in relation to  Town B Primary School, I note that under the 22 April 2020 Orders the Court Ordered that the parents were authorised to[70]:

   [70] Order 12(i)-(iii), 22 April 2020 Orders.

   12. […]

   i.Attend all school events and extracurricular activities for which parents are normally invited to attend, including parent teacher interviews;

   ii.Obtain from the Children’s school, at their own expense all notices, reports and school photographs; and

   iii.Liaise with the administration and teachers of the school concerning the educational development of the Children.

8. In these circumstances I am not persuaded by the Mother’s various complaints concerning Town B Primary School.

9. At the Second Interim Defended Hearing the Mother also alleged that X had been bullied at Town B Primary School[71].  This allegation was founded entirely upon the February 2020 Psychologist’s Report.  No other credible or persuasive evidence was produced in support of this allegation.  There was no evidence from the Mother or any representative from Town B Primary School.   Counsel for the Father submitted that even if X was being bullied at school, the appropriate response was to address it with the school and put appropriate protections or monitoring in place.  An appropriate response was not to immediately remove the child from the school, other than in the most serious of cases. 

   [71] Mother’s August 2020 Affidavit at [22].

10. Further, at the Second Interim Defended Hearing the ICL informed me that he had met with X on 3 February 2020.  The ICL said:[72]

    […] insofar as concerns in relation to X’s disclosures of concerns, with respect to bullying, it was more of a meet-and-greet, general meeting that I have with children, and when discussing specifically, his life with respect to school and how school is, all he had to say was school was good and there was nothing volunteered by him or disclosed to me by him about a bad experience that he may have had at school.

    [72] Transcript P25:L29-33.

11. The ICL also submitted that it was common sense that children may be submitted to various issues at any given school and there was no way to tell that changing schools next year would prevent X from being exposed to the bullying that the Mother was alleging he had disclosed.

12. I accept each of the submissions of Counsel for the Father and of the ICL.

13. The additional considerations are set out in s.60CC(3) of the Act. I will now consider the additional considerations which are relevant for this single issue interim Judgment.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

1. In the Section 11F Report the Family Consultant reported:

   X reported that “… I prefer Melbourne” and he misses his friends from school in Melbourne and his sports“… because I was good at sports.”  X had sports training on Wednesdays and games on a Friday night when in Victoria[73].

   […]

   Y was shy and the interview was not extensive[74].

   [73] Section 11F Report, X aged 6 years 5 months, p.9

   [74] Section 11F Report, Y aged 6 years 5 months, p.9.

2. The Children are too young to determine what is in their best interests.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i)     each of the child's parents; and

(ii)    other persons (including any grandparent or other relative of the child);

Each of the child's parents

1. I refer to the discussion in relation to s. 60CC(2)(a).

   X reported positive views of each parent but expressed anxiety that “… I don’t want him to die (the Father) because this is how he feels about the loss of his father for his life”[75].

   [75] Section 11F Report, X aged 6 years 5 months, p.9

Other persons (including any grandparent or other relative of the child)

1. For the purposes of this Interim Judgment I have not considered it necessary to consider the Children’s relationship with Mr J given that the 22 April 2020 Orders have been made and will remain operative until the Final Hearing.

Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)     to participate in making decisions about major long-term issues in relation to the child; and

(ii)    to spend time with the child; and

(iii)   to communicate with the child;

Participation in making decisions about major long-term issues in relation to the child

1. The Father in his Amended Initiating Application seeks a final order that he have sole parental responsibility for the Children.  The Mother in her Response also seeks a final order for sole parental responsibility for the Children.

2. Both of the parents have therefore sought to participate in making decisions about long term issues in relation to the Children.

Opportunity to spend time and communicate with the Children

1. Since the commencement of this proceeding the Father has consistently sought to spend time and communicate with the Children.    

Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)     either of his or her parents; or

1. The Father submits that Town B Primary School is a mid-point between the Father’s home and the Mother’s home.  For the Father Town B Primary School is approximately a 16 minute drive away from his home, whereas Town C Primary School is approximately a 24 minute drive from his home.  The Father deposes that for the Mother Town B Primary School is a 10 minute drive from the Mother’s home and Town C Primary School is a 1 minute drive from the Mother’s home[76].

   [76] Father’s August 2020 Affidavit at [17] and Annexure “3”.

2. The Mother concedes that the distance between her home and both schools is “minimal”.  The Mother describes Town C Primary School as being 500 meters away from her home and Town B Primary school as being 8.1 kilometres away from her home[77].

   [77] Mother’s August 2020 Affidavit, at [25].

3. To date X has attended:

   a)Town B Primary School in Grade Prep from February 2019 until late September 2019;

   b)A school in South Australia from October 2019 until late 2019; 

   c)Town B Primary School in 2020 for Grade 1.

4. If the Mother’s Proposal is adopted X would transfer to Town C Primary School in 2021 for Grade 2 and this would be the fourth change in school environment for X in three years of schooling.  After the Final Hearing it is possible that an Order will be made for X to return to Town B Primary School, either on the basis that the Children will be living primarily with the Father, or alternatively because Town B Primary School is a convenient midway point between the parents’ homes.  This would constitute the fifth change in school environment for X in his very earliest years of primary school.

5. If the Mother’s Proposal was adopted Y would commence in Grade Prep at Town C Primary School with X.  After the Final Hearing it is possible that an Order will be made for Y to transfer to Town B Primary School, for the reasons enumerated in the previous paragraph.  This would constitute one change in his school environment.

6. If the Father’s Proposal was adopted and after the Final Hearing an Order was made that X transfer to Town C Primary School, this would be the fourth change in school environment for X.

7. If the Father’s Proposal was adopted Y would commence in Grade Prep at Town B Primary School with his brother.  After the Final Hearing it is possible that an Order will be made for Y to transfer to Town C Primary School.  This would constitute one change in his school environment.

8. Therefore the Father’s Proposal involves less potential disruption to X’s schooling than the Mother’s Proposal.  Both Proposals potentially involve the same degree of disruption to Y’s schooling.  X has already had a significantly disrupted early education due to the Mother’s actions in unilaterally withdrawing X from Town B Primary School and taking the Children to South Australia.

9. At the Second Defended Hearing the Mother’s Solicitor made the following submission:

   […] the reason that [X] was returned to Town B was on the basis that he - that was the only school that was available at that time.  My client didn’t know where she would be living when she returned to Victoria, so didn’t have a specific proposal for a school at that point in time. So it was ordered by the court that it would be the easiest option to return him to the school that he had previously attended[78].

   [78] Transcript P16:L1-6.

10. I reject that submission.  I note that in paragraph 14(c) of the Response the Mother specifically sought an order that in the event that the Mother returned to Victoria, X be re-enrolled at Town B Primary School.  On 1 November 2019 an Order was made to that effect[79].     

    [79] Order 4, Orders 1.11.19.

11. Counsel for the Father submitted that the status quo should be maintained for X pending the determination of the Final Hearing, where the primary residence of the Children was an issue.  The ICL supported that submission. 

12. The ICL also submitted that at the level that the Children were at with their schooling either school could provide appropriately for their educational needs.  To this submission I note that Town C Primary School is a new primary school and its first year of operation will be in 2021.  So in fact it is an unknown entity, whereas Town B Primary School is an established school where X already has an established group of friends and he is familiar with the environment.  The Mother made complaints of the alleged shortcomings of Town B Primary School.  There is no evidence before the Court of what Town C Primary School would offer apart from being a more convenient location to the Mother being closer to her home.     

13. The Mother claimed that it would be important for all three of her children to attend school together.  The Mother’s third son O was born in 2020[80].  O will be attending primary school in 2026.  At that time Y will be in Grade 6 and X will be in high school[81].  There is little weight to this argument.

    [80] Mother’s August 2020 Affidavit, at [7].

    [81] Father’s August 2020 Affidavit, at [18].

14. For the reasons set out above, the Father’s Proposal involves potentially less disruption to X’s schooling and is preferred.      

    (ii) Any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living;

15. This is not a relevant consideration.

Section 60CC(3)(f) the capacity of:

(i)     each of the child's parents; and

(ii)    any other person (including any grandparent or other relative of the child);

To provide for the needs of the child, including the emotional and intellectual needs;

Each of the child’s parents

The Mother

1. In the Section 11F Report the Family Consultant concluded:

   [The Mother] identified that she knowingly withheld her intentions to relocate from [the Father] and required that the children share this secret.

   [The Mother] does not display a child focused approach in her swift removal of the children from their life and experiences in Melbourne.  She has not considered the impact on the lives of the children and the loss of their relationship with their father[82].

   [82] Section 11F Report, Future Directions, p.11.

The Father

1. In the Section 11F Report the Family Consultant concluded:

   Unlike [the Mother], [the Father] is attuned to the needs of the children and focuses on their welfare and wellbeing[83].

   [83] Section 11F Report, Future Directions, p.11.

Any other person (including any grandparent or other relative of the child)

1. This is not a relevant consideration.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i)   The child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people of that culture; and

(ii)    The likely impact any proposed parenting order under this Part will have on that right;

1. The Section 11F Report records that the Father identifies as Aboriginal[84].  The Section 11F Report also records that the Mother identifies as Aboriginal and reported:

   [The Mother] reported no affiliation with Aboriginal culture, but considered her mother, Ms P was “…passionate about this”[85].

   [84] Section 11F Report, Issues in Dispute, p.2. 

   [85] Section 11F Report, Issues in Dispute, p.3.

2. There is no evidence before the Court that either the Mother’s Proposal or the Father’s Proposal would have any impact upon the Children’s right to enjoy their Aboriginal culture.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. I refer to and adopt the discussion in relation to s.60CC(2)(a) and s.60CC(2)(b).

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;

1. In the Section 11F Report the Family Consultant reported:

   There were no issues of family violence reported between the parents either pre or post separation.

   There is concern that [the Mother’s] actions reflects coercive controlling behaviour and a provocative attempt to damage the father child relationship[86].

   [86] Section 11F Report, Family Violence, p.7.

2. In the Father’s April 2020 Affidavit the Father deposed to attending at the Mother’s home on the evening of 13 March 2020 (at the Mother’s request), to collect the Children after the Mother had been assaulted by Mr J.  At the time the Father attended the Mother’s home the Police were in attendance at the Mother’s home.  The Father took the Children to his home whilst the Mother was questioned by the Police and the Children stayed overnight with the Father[87].

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:               

[87] Father’s April 2020 Affidavit at [6]-[8].

1. the nature of the order;

1. The Mother’s April 2020 Affidavit indicates that on 16 March 2020 an Interim Intervention Order was made against Mr J at the Suburb H Magistrates’ Court[88] (Interim Intervention Order).  The Mother has deposed that on 15 April 2020 the Interim Intervention Order was varied to permit Mr J to continue in his relationship with the Mother[89].

   [88] Mother’s April 2020 Affidavit at [6] and Annexure “-1”.

   [89] Mother’s April 2020 Affidavit at [12] and Annexure “-1”.

1. the circumstances in which the order was made;

1. The circumstances in which the Interim Intervention Order was made are referred to in s.60CC(3)(j) and the Father’s April 2020 Affidavit[90]

   [90] Father’s April Affidavit at [6]-[10] and Mother’s April Affidavit at [6].

1. any evidence admitted in proceedings for the order;

1. There was no evidence before the Court of any evidence admitted in any proceedings involving the Interim Intervention Order.

1. any findings made by the court, or in proceedings for, the order;

1. There was no evidence before the Court of any findings made by the Suburb H Magistrates’ Court in any proceedings involving the Interim Intervention Order.

1. any other relevant matter;

1. The 22 April 2020 Orders included an Order that the Mother forthwith remove the Children or either of them from the presence of Mr J in the event that Mr J is behaving aggressively or violently to either of the Children or the Mother[91]. 

   [91] Order 14, 22 April 2020 Orders.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

1. All matters relevant to this interim judgment have otherwise been considered in these reasons. 

Consideration and Conclusion

1. In considering this interim decision I have adopted a conservative approach that is not likely to cause harm to the Children, as suggested by the Full Court for interim matters in Marvel v Marvel[92].

   [92] (2010) 43 Fam LR 348, at [120].

2. I have followed the legislative pathway as require by Goode v Goode[93], to the extent that I have been able, given that this is an interim case and the evidence is untested by cross examination.

   [93] (2006) 36 Fam LR 422, at [81]-[82].

3. I have considered each of the primary considerations in s.60CC(2) and accorded greater weight to the considerations set out in s.60CC(2)(b). I have also considered each of the additional considerations in s.60CC(3) to extent that they are relevant to this single issue interim decision. For the reasons set out herein, I prefer the Father’s Proposal which is supported by the ICL. I determine that Interim Orders that have been summarised under the heading ‘Synopsis’ are in the best interests of the Children, as required by s.60CA of the Act. Orders will be made accordingly.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Her Honour Judge C. E. Kirton QC.

Associate: 

Date: 5 November 2020