SEIDLER & CERNY - [2015] FCCA 1032

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEIDLER & CERNY

[2015] FCCA 1032

Catchwords:
FAMILY LAW – Child – parenting orders – interim orders – consent orders – best interests of the children considered – equal shared parental responsibility – appointment of Single Expert – significant and substantial time.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60B, 60CC, 61DA, 65DA, 65DAA, 65DAC

Cases cited:

Goode & Goode (2006) 206 FLR 212

MRR v GR (2010) 240 CLR 461

Applicant:

MS SEIDLER

Respondent:

MR CERNY

File Number:

SYC 6696 of 2014

Judgment of:

Chief Judge Pascoe

Interim hearing date:

31 March 2015

Date of last submission:

31 March 2015

Delivered at:

Sydney

Delivered on:

28 April 2015

REPRESENTATION

Counsel for the Applicant:

Mr Christopher Othen

Solicitors for the Applicant:

Rebekah Dorter Family Lawyer and Mediator

Counsel for the Respondent:

Ms Mary-Clare Kennedy

Solicitors for the Respondent:

MacPherson and Kelly Lawyers (Sydney)

Solicitor as the Independent Children’s Lawyer:

Ms Maureen Power

(NSW Legal Aid)

ORDERS

BY CONSENT, THE COURT ORDERS THAT:

That Consent Orders dated 15 December 2014 in relation to the Single Expert be discharged.
That pursuant to r.15.09 of the Federal Circuit Court Rules 2001 (Cth), Dr W be appointed as the Single Expert to enquire into and report upon matters relating to the welfare of the child, [X], born [omitted] 2012, including, but not limited to, the following matters:
(a)Any views expressed by [X] and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;
(b)The relationship between [X] and his parents and with any other relevant person;
(c)The willingness and ability of each of [X]’s parents to facilitate and encourage a close and continuing relationship between [X] and the other parent;
(d)The likely effect of any changes in [X]’s circumstances, including the likely effect on [X] of any separation from either of the parents or any other person with whom [X] has been living;
(e)The capacity of each parent or any other person to provide for the needs of [X], including emotional and intellectual needs;
(f)The attitude of each parent to [X] and to the responsibilities of parenthood, demonstrated by each of [X]’s parents (or any other relevant person);
(g)The effect on [X] of family violence to which he has been exposed;
(h)The effect on [X] of spending equal time or substantial and significant time, with each parent having regard to each parent’s current and future capacity to:
(i)Implement such an arrangement, and
(ii)Communicate with each other and resolve difficulties that might arise;
(i)The mental state of both parents in so far as it relates to parenting issues;
(j)The mental health/special needs of [X];
(k)The potential impact on [X] of the Orders sought by each parent; and
(l)Any other matter the Single Expert considers relevant.
That the parties each shall by 8 July 2015 pay into the Trust Account of Legal Aid NSW the sum of $10,000.00 for payment by Legal Aid NSW to Dr W in respect of his fees upon completion of his expert report.
In the event that there remain monies available subsequent to the receipt of the memorandum of fees from Dr W these monies are to be returned to the parties in equal shares.
In the event that there is a shortfall the parties are to pay in equal shares such additional sum to meet the costs of Dr W within 21 days of a request by Legal Aid NSW.
In the event that any of the parties request the Independent Children’s Lawyer to make arrangements for the attendance of the Single Expert Witness appearing in this matter, the parties shall be equally responsible for the Single Expert’s Costs in respect of such attendance.
That the parties shall facilitate the preparation of the Report including attending on and arranging for the child to attend upon the Expert.
Leave be granted to the Independent Children’s Lawyer to issue subpoena and to have photocopy access to material produced under subpoena for the purpose of providing the same to Dr W and that the fees in respect of that photocopying be waived.

THE COURT ORDERS THAT:

The Applicant and Respondent each enrol in and complete by the end of October 2015 a Keeping Kids in Mind course and a Post-Separation course. Each party is to provide a copy of the course completion certificates to the other party’s solicitor and the Independent Children’s Lawyer.

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:

By consent, the parties shall have equal shared responsibility of [X].
[X] shall live with the Applicant Mother.
[X] will spend time with the Respondent Father as follows:
(i)each Thursday 8:00am to 6:30pm; and
(ii)each Saturday 8:00am to 5:00pm; and
Notwithstanding Order 12, [X] is to spend time
(a)with the Father, 8:00am to 5:00pm on the Father’s birthday and Father’s Day; and
(b)with the Mother on the Mother’s birthday and Mother’s Day.
There is to be a Communications Book for the parents to communicate with each other in relation to [X]. This Communications Book is to be made available to the Independent Children’s Lawyer immediately upon request.
The Mother shall, by way of the Communications Book, advise the Father of any special instructions as to [X]’s care.
The parents will share travel for change over, as agreed.
Each party be restrained from denigrating the other party, and/or members of the other party’s family, and/or household in the presence of, and/or in the hearing of, the child. Further, it is the responsibility of each party to remove [X] from the presence and/or hearing of any third party who does so. For the purpose of this Order, ‘denigration’ shall include commentary in a negative way regarding race, skin colour, religion, or culture.
Each party be restrained from using any form of physical discipline on the child.
Each party be restrained from leaving the child unsupervised by a responsible adult.
Each party shall supervise the child while the child is in that party’s care, unless an emergency occurs or the child is in day care.
Each party keep the other party informed of their current telephone number. In the case that a party’s telephone number changes, the party whose number has changed is to inform the other party of the change and supply the new telephone number to that party within 48 hours of the change.
Each party inform the other party as soon as practicable of:
(a)any illness or injury that may be suffered by [X] whilst he is in their care, respectively; and
(b)the name and contact details of any medical practitioner or healthcare provider upon whom [X] may attend from time to time.
Upon request by the Mother, the Father to do all acts and things, and sign all necessary documents, to enable an Australian passport to issue in [X]’s name.
Each party do all acts and things necessary to authorise any treating medical practitioner of [X] to discuss his heath and treatment with the other party.
The Applicant, Respondent, and Independent Children’s Lawyer each have leave to bring the matter back before the Court with three days’ notice.
Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders are attached to these Orders.
The matter is listed for mention before me on Wednesday 4 November 2015 at 10:00am

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6696 of 2014

MS SEIDLER

Applicant

And

MR CERNY

Respondent

REASONS FOR JUDGMENT

Issue for Determination

The issue for determination in this matter is the time the Respondent Father will spend with his son, [X], aged 3, and matters relating to the sale of the matrimonial home. The latter determination will be decided with a separate Order. The Orders that these Reasons complement are to Parenting only.

Background

The parties were married on [omitted] 2009, after cohabitation for over a year. [X] was born [omitted] 2012. The parties separated under the same roof on 28 August 2014, and physically separated on 16 September 2014, when the Father moved out of the matrimonial home.
The Mother has been diagnosed with Anxiety and Depression, undergoes therapy, and takes medication.
The parties agreed to a parenting regime as follows:
a)[X] would live with the Mother;
b)[X] would spend time with the Father on Monday night, Thursday morning, and Friday morning until Sunday afternoon.
On 17 October 2014, a non-physical altercation between the Mother and Father occurred over the Mother’s occupation of the matrimonial home, resulting in Police attending the scene. [X] was present.
On 20 October 2014, the Mother unilaterally ceased all overnight time between [X] and the Father.
On 24 October 2014, the Mother applied to this Court with regards to Property.
On 5 November 2015, the Father applied to this Court with regards to Parenting.
On 13 December 2014, [X] had overnight time with the Father, and since then, has spent time, including overnight time, with [X] on an ad hoc basis.
The parties attended a Child Dispute Conference on 15 December 2014. A report was issued the same day.
The parties attended a Child Inclusive Conference on 24 February 2015. A report was issued the same day.
An Independent Children’s Lawyer (“the ICL”) was appointed on 15 December 2014.
The matter was listed for Interim Hearing on 10 March 2015 before me. On that day, it appeared that settlement of the matter, with regard to both Parenting and Property, was imminent, however the matter failed to resolve. The matter was relisted for Interim Hearing on 31 March 2015.

Submissions

Counsel for the Mother, Mr Othen, stated that there was nothing before the Court that should displace the presumption that both the Mother and the Father should have equal shared parental responsibility.
Counsel stated that the Mother was the primary care giver and the main attachment figure, in contrast to the Father who was still developing his parenting skills.
Mr Othen outlined several negative actions taken by the Father towards the Mother that impacted her care of [X], including the filing of a Form 4 (discussed below); purposely reducing his earning capacity from $350,000 per annum to $90,000 per annum, resulting in a monthly payment of $79 in child maintenance; the cessation of mortgage payments on the matrimonial home; and threats to declare himself bankrupt to avoid paying common creditors.
Counsel for the Mother objected to the Father’s filing of a Notice of Risk of Family Violence, filed 4 November 2014. In that document the acts of family violence were alleged as follows:
“See Affidavit of Mr Cerny sworn 4 November 2014.
The Mother has caused security guards to guard the former matrimonial home in which she now resides with the child. A security guard assaulted the Father on 17 October 2014 and this incident has been reported to the NSW Police.
The Mother suffers from a psychiatric condition. The Mother has prevented the Father from seeing the child except under supervised conditions. The Mother has stopped the Father’s overnight time with the child. The father is concerned that the Mother is suffering from acute psychological crisis.”
Mr Othen submitted that these concerns are not the type of concerns that warrant the use of a Notice of Risk of Family Violence, describing the use of the document as “spurious.”
Counsel questioned the ability of the Father to care for [X] when in his care, stating that his parenting capacity was compromised by his inability to put [X]’s welfare ahead of his conflict with the Mother.
This inability to put [X]’s interests before his own feelings towards the Mother was said to be manifest in the Father’s initial bid to have [X] live with him under the guise of concern for the Mother’s caring capacity due to her mental health issues. Counsel argued that this was a punitive attack against the Mother and did not arrive from concern for [X]. Mr Othen pointed out that the Father’s claim was in direct contrast with the assessment of the Family Consultant’s report of the Mother’s and Father’s respective parenting ability.
Mr Othen gave evidence of the Father’s “relentless” emails that focused on his hurt feelings and the property dispute, stating that the Father’s actions were to use [X] to hurt the Mother.
Counsel discussed the concerns the Mother raised for [X] when spending overnight time with the Father. Counsel asked the Court to consider whether overnight time should be granted at all prior to Final Hearing.
The regime to which the parties had agreed, for [X] to spend two consecutive nights with the Father, “didn’t work out” and the regime for [X] to spend time with the Father every second day was “an uneasy truce.”
Counsel for the Mother indicated that a regime of frequent changeover required “cooperation”, “mutual respect”, and “consistency”, which was currently beyond the Father.
Mr Othen suggested the shuttling of [X] between the two parties would only work with a high level of cooperation and that the parenting styles and proposed regimes were so substantially different that the proposed orders of the Father were impossible.
The end product of the Father’s proposed orders and the acrimonious relationship between the parties would be [X] being confused and unsettled. Counsel referred to [X]’s problems with toilet training and apparent anxiety as evidence to this.
Counsel for the Mother opposed the Father’s proposed caring routine and suggested that overnight or block-spend time with arrangements not be made until 2017.
Counsel also raised the issue of overseas travel for Christmas 2015, so that the Mother may travel with [X] to visit family.
Mr Othen proceeded to discuss the parties’ Property issues, which are not relevant for these Reasons.
Counsel for the Father, Ms Kennedy, opened her submissions by stating that the parties’ were both well educated, successful people, who should not be in Court, and yet they are.
Ms Kennedy stated that the Father’s proposed orders and the ICL’s roughly align and that the Father had enrolled in a ‘Keeping Kids in Mind’ course, to commence in April this year.
Ms Kennedy stated that the decline of the relationship was characterised by several ‘tipping points”, most of which surrounded the disagreement as to the sale or retention of the matrimonial home, which was caused mostly by the Mother.
Counsel for the Father suggested that one of the reasons for the marriage failing was the couple’s financial over-extension due to the matrimonial home’s mortgage.
Counsel pointed to the events of 17 October 2014, in which the Mother’s unilateral decision to change the locks on the matrimonial home’s door, have two friends present, and hire security guards was disproportionate to their dispute and “incredible.”
Moreover, counsel stated that the reports given by treating psychologist Dr S exhibit made up facts, that could only have come from the Mother, and which were designed to reduce the time the Father could spend with [X].
Ms Kennedy questioned the Mother’s capacity to see past her differences with the Father so as to provide for [X]’s best interests, stating that she is focused solely on the retention of the matrimonial home and not [X]’s relationship with the Father, which is in [X]’s best interests.
Moreover, it was stated that the Mother is unable to look after herself and [X], evidenced by the fact that her family members have moved in to the matrimonial home so as to provide her support.
Counsel submitted that irregular overnight and spend time with arrangements and new people in the home could only cause confusion for [X].
Counsel for the Father suggested that the Mother had created a connexion between the home and financial issues with that of the Father’s time with [X].
It was submitted that the Father’s work situation has been dramatically reduced as he makes every effort possible to be available to spend time with [X] in the windows of time the Mother allows him to have.
This is a result, it was submitted, of the Mother’s work regime, which she seeks to increase. The Mother was said to have imposed onto the Father her work timetable; the days at which she is at work the Father may have with [X]. This situation is regardless as to whether the timetable suits the Father or not – the only time the Mother will make [X] available to the Father is when she is at work and needs someone to take care of the [X].
Ms Kennedy brought to the Court’s attention evidence of the Mother’s inability to sustain full time work in the past due to poor mental health and questioned her ability to sustain the increased workload that she now proposes to undertake. Counsel suggested that the sole reason that the Mother was increasing her workload was to retain the matrimonial home and to impose restrictions of the Father’s time with [X].
Counsel for the Father directed the Court to evidence of the Father’s good parenting and to the parties’ track record of being able to adequately co-parent.
Counsel stated that the Mother’s proposed orders go only to the restriction of hours that [X] spends with the Father so as to enable the Father to work more so as to bring up his ability to pay for maintenance and mortgage repayments. The Mother’s proposed orders have nothing to do with her concern with the Father’s parenting capacity or ability.
Ms Kennedy stated that the Christmas travel proposal was new information and that the Father had not been consulted on this issue.
Counsel also submitted that the Mother’s suggested overnight or block-spend time with arrangements not being made until 2017 was “unnecessary,” stating that “there was nothing inappropriate to prevent [X] from spending block time with the Father.”
Ms Kennedy proceeded to discuss the parties’ Property issues, which are not relevant to these Reasons.
The ICL, Ms Power, addressed the Court and stated that “graduated time with the Father” is in [X]’s best interests so as to incorporate the Family Consultant’s recommendations on parenting capacity.
Ms Power agreed with the suggestion that the Father undertake parenting classes before any overnight time is granted.
The ICL suggested that the time [X] spent with the Father on Tuesdays, prior to proceedings, be reinstated. The ICL stated that spending time with the Father is “better than day care.” Ms Power also alluded to the disruption that [X] would feel from being taken from day care at midday.
The ICL then suggested that after completion of the Keeping Kids in Mind course that [X] should spend one night per week with the Father. The ICL disagreed with the Father’s proposed orders for two nights per week, stating that such a routine would be “too fast” for [X].
The one night per week regime, it was suggested, should continue until [X] turned four years old. At such time, [X] should be able to spend more overnight time with the Father.
The ICL stressed that the proposed orders are Interim and that the Court will be assisted by the Single Expert’s report that should be forthcoming in August 2015 and the results of the Legal Aid mediation scheduled in September 2015.
Further, the ICL recommended both parties should attend a post-separation course.

Relevant Law

The legal principles which govern parenting proceedings are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration.
Section 60B(1) of the Act enumerates the objects of Part VII of the Act as ensuring the best interests of children, in this case [X], are met by:
a)ensuring that [X] has the benefit of both of his parents having a meaningful involvement in his life, to the maximum extent consistent with the best interests of [X]; and
b)protecting [X] from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence; and
c)ensuring that [X] receives adequate and proper parenting to help him achieve his full potential; and
d)ensuring that [X]’s parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of [X].

In exercising my discretion as to what Order is in [X]’s best interests, I must have regard to the factors outlined in s.60CC of the Act, as amended. Although the two primary considerations detailed at s.60CC(2)(a) and (b) of the Act must assume greater importance than the additional considerations at s.60CC(3) of the Act when determining what Orders are in the best interests [X], I must consider all the factors before making a determination.
In considering the objects of Part VII of the Act, it is necessary to also have regard to the principles underlying those objectives and the legislative pathways outlined in various Full Court of the Family Court of Australia decisions, including Goode & Goode (2006) 206 FLR 212, and the High Court of Australia decision in MRR v GR (2010) 240 CLR 461.

Primary Considerations

S.60CC(2)(a) The benefit to [X] of having a meaningful relationship with both of his parents

[X] is currently three years old. Parenting arrangements have been somewhat inconsistent and ad hoc. It is hard to see how this uncertainty and constant change can be in [X]’s best interests.
In fact, it appears that the conflict between his parents may already be having adverse effect on [X]’s well-being. The Mother gave evidence that [X] was having trouble sleeping and that there was difficulty with toilet-training. These problems must be related to the situation of high parental conflict which is an ongoing part of [X]’s life. No doubt this issue will be more explored at Final Hearing.
I note that I expressed concern at the Interim Hearing that [X] seemed to be ‘passed’ between the parents with little regard to his best interests.
It also concerns me that the Father has been prepared to diminish his earning capacity and is paying only $79 per month by way of child support. It is hard to see this as an indication of love for the child and a willingness to undertake the obligations of parenthood. On the other hand, it was put forward on behalf of the Father that he was reducing his working hours in order to spend more time with [X]. The Father also said that his working hours were affected by the times the Mother was prepared to make [X] available.
It is clearly in [X]’s best interests to have ongoing contact with both of his parents. It is equally important that the time that [X] spends with each of his parents is appropriate for a child of his age and stage of development. This time should be regular, but does not have to be for extended periods or overnight to be significant. [X] needs a regime where there is certainty and the capacity for him to form appropriate attachments.
I note that the Mother is not opposing [X] spending regular time with the Father, and it appears that the Father and [X] have had regular contact, although not in the most appropriate, structured way since the parties separated. The Mother does however oppose overnight time, until [X] is older. This somewhat accords with the recommendations of the Family Consultants.
The Family Consultant noted difficulties that the Father had understanding [X]’s needs and noted that the Father “behaved somewhat intrusively in his interactions with the child.” This is on contrast with to [X]’s observed behaviour with the Mother.
I note also that the Family Consultant’s recommendation that both parents may benefit from attending a Parenting programme and post-separation education. This was recommended in both the Child Dispute Conference and the Child Inclusive Conference.
I note also that by consent a Single Expert, Dr W, has been appointed to advise the Court on a range of issues related to [X]’s welfare.
Until there is clearer evidence, it would seem appropriate for [X] to have regular contact with the Father, but not overnight time given the [X]’s age and the concerns expressed by the Family Consultants.
The time to review these arrangements is when the Court has the benefit of the Single Expert’s Report, the parents have been to mediation, and the parents have undertaken a parenting course. In the meantime a conservative approach is in [X]’s best interests.

s.60CC(2)(b) The need to protect [X] from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

It is difficult at an Interim Hearing to form any conclusions about the effect of the parents’ behaviour on [X]. It would seem however that [X] may have witnessed altercations between his parents, including the altercation that took place outside the family home.
It is also difficult to avoid the conclusion that the parents’ toxic relationship and their inability to communicate is inimical to [X]’s well-being.
I have previously noted the Family Consultant’s concerns about [X]’s interactions with the Father.
It is also noteworthy that despite the recommendations and observations of both of the Family Consultants, the Father is still pressing for extended periods of time with [X].
I note also that the Mother appears to be having some psychological difficulties, although there was no evidence that these difficulties were impacting on [X].

Additional considerations

s.60CC(3)(a) Any views expressed by [X] and any factors (such as [X]’s maturity or level of understanding) the Court thinks are relevant to the weight it should give [X]’s views.

There is no clear evidence as to [X]’s views, which, in any event, would be given limited weight given his age.

s.60CC(3)(b) The nature of the relationship of [X] with: (i) each of the parents and (ii) other persons (including any grandparent or other relative of the child)

Based on the limited evidence available, I am satisfied that [X] has an ongoing relationship with both of his parents.
I am also satisfied that the main attachment figure in [X]’s life is his Mother and that he has a close bond with her.
There was also limited evidence that the Mother’s family are involved with caring for [X], and it would seem likely that [X] has a close relationship with members of the Mother’s family. Rather than being a problem, as perhaps implied by Mr Othen, I consider it is in [X]’s best interests to have close relationships with his grandparents and other relatives.
There was no evidence as to any relationship that [X] might have with the Father’s family.
Although some of the concerns were raised as to the Father’s parenting style, there is clearly an on-going relationship that should be fostered in appropriate ways.

s.60CC(3)(c) The extent to which each of [X]’s parents have taken, or failed to take, the opportunity (i) to participate in making decisions about major long-term issues in relation to [X], (ii) to spend time with [X], and (iii) to communicate with the child.

On the basis of limited evidence, it is clear that the parties have each participated in making long-term decisions regarding [X]’s upbringing, have spent time with him, and have regular communication with him.
I note that neither party raised any objection to equal shared parental responsibility.

s.60CC(3)(ca) The extent to which each of [X]’s parents have fulfilled, or failed to fulfil, the parent’s obligation to maintain [X].

The Mother is the primary carer of [X] and, it would also appear, carries most of the financial responsibility for the care of [X].
I have already commented on the fact that the Father appears to have purposely diminished his earning capacity and is contributing very little by way of child support.

s.60CC(3)(d) The likely effect of any changes in [X]’s circumstances, including the likely effect on [X] of any separation from (i) either of his parents, or (ii) any other child, or other person (including any grandparent or other relative of [X]), with whom he has been living.

It is clearly in [X]’s interests for regular ongoing contact with his Father to continue. However, this should be age appropriate and also take into account the recommendations of the Family Consultants.
Accordingly, overnight time would seem inappropriate at this time and regular daytime would appear to be sufficient to maintain an ongoing relation between [X] and the Father.
A settled regime of contact without long periods of separation from his Mother is, in my opinion, in [X]’s best interests.
I note that the ICL recommended overnight time with the Father after the Father had completed a parenting course, consistent with the recommendations of the Family Consultant.
Given that the matter should be listed for Final Hearing later in the year and that detailed evidence about [X]’s relationship with his parents and his well-being generally will be presented at that time, I consider it appropriate that the issue of overnight time with the Father be dealt with then.

s.60CC(3)(e) The practical difficulty and expense of [X] spending time with and communicating with a parent and whether that difficulty or expense will substantially affect [X]’s right to maintain personal relations and direct contact with both parents on a regular basis.

It is quite clear that the parents in this case are unable to see past their own conflict and communicate appropriately with each other in relation to [X].
For this reason, it is important that there be a clear and settled contact regime which will best facilitate regular and ongoing contact.

s.60CC(3)(f) The capacity of (i) each of [X]’s parents, and (ii) any other person (including any grandparent or other relative of [X]), to provide for the needs of [X], including emotional and intellectual needs.

The Mother has always been [X]’s primary carer. Although the evidence was limited, I accept that he has a close and loving bond with her.
I have previously noted the concerns by the Family Consultants with regards to the Father’s interactions with [X]. At this stage, the Father does not seem to have acknowledged those concerns.

s.60CC(3)(g) The maturity, sex, lifestyle and background (including culture and traditions) of [X] and either of his parents, and any other characteristics of [X] that the Court thinks relevant.

[X] is only three years old and it would appear that the high-level conflict between his parents is already adversely affecting his development.
Because of [X]’s age and the impact of parental conflict on him already, it is in [X]’s best interests that any regime for care is clear and unambiguous.

s.60CC(3)(i) The attitude to [X], and to the responsibilities of parenthood, demonstrated by each of [X]’s parents.

It is deeply concerning that [X]’s parents seem to be incapable of putting his welfare ahead of the conflict between them.
On the basis on the limited evidence available, the best that can be said is that each of them want to be an ongoing part of his life.
Again, I note that the Father seems unwilling to make any significant financial contributions to [X]’s care.

s.60CC(3)(j) Any family violence involving [X] or a member of [X]’s family.

I have dealt with this matter earlier, however there is no specific evidence that [X] has been exposed to violence.

s.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to [X].

These Orders are Interim in nature and designed to ensure age appropriate ongoing contact between [X] and his Father.

s.60CC(3)(m) Any other fact or circumstance that the Court thinks is relevant.

There seems to be a range of issues that are adding conflict between the parties, most significantly the issue of the matrimonial home. It is to be hoped that the resolution of those issues may in future contribute to a less acrimonious relationship between the parents.

Parental Responsibility

Section 65DAC of the Act applies whenever a parenting order provides for shared parental responsibility, and requires each party to consult the other and to make a genuine effort to come to a joint decision about any major long-term decisions concerning [X].
Section 61DA of the Act requires the Court to apply a presumption that it is in the best interests of [X] for the parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that either the Mother or Father or both (or a person who lives with either party) has engaged in:
a)Abuse of [X]; or
b)Family violence.
I have previously noted the incidents the Mother has raised in relation to the Father, however, as mentioned earlier, there is no evidence of family violence or abuse.
I note that neither party is seeking sole parental responsibility.
There is no evidence of family violence or abuse, nor any other evidence that would satisfy the Court that it would not be in [X]’s best interests for his parents to have equal shared parental responsibility.
I note also the provisions of s.65DAA of the Act. I consider that the time that [X] spends with the Father does constitute substantial and significant time in all circumstances including the high level of conflict between the parties, [X]’s age, and the difficulties [X] seems to be experiencing. It is not in [X]’s best interests for there to be more extended time with the Father at this stage. Overnight time is particularly problematic given the observations of the Family Consultant in relation to the Father’s interaction with [X] and the Mother’s own observations.
The Orders I have made provide sufficient time to preserve the bond between [X] and the Father in the interim before Final Hearing.

Conclusion

I note that there is an ICL in this matter.
Further, I note the appointment of the Single Expert, Dr W, whose evidence will be of great assistance at Final Hearing.
Between now and Final Hearing, there is opportunity for both parties to attend an appropriate parenting course, and I have made orders in this regard. In particular, if the parties are able to put their differences aside and communicate appropriately in [X]’s best interests it will clearly assist him.
[X] is only three years old. I have already commented on the high conflict between [X]’s parents and that conflict appears to be adversely affecting [X]. It also means that I need to make orders that recognise and minimise the opportunity for conflict. It is for this reason that contact arrangements are clear, simple, and appropriate.
It is important that the Orders allow regular contact with the Father whilst causing the least disruption to [X]’s regime and allowing him to have a firm ongoing attachment with his Mother.
For the above reasons, the Orders I propose are appropriate and should be made.

I certify that the preceding one-hundred-and-fourteen (114) paragraphs are a true copy of the reasons for judgment of Chief Judge Pascoe

Date: 28 April 2015