Selby & Selby

[2015] FamCA 770

FAMILY COURT OF AUSTRALIA

SELBY & SELBY AND ANOR [2015] FamCA 770

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the applicant seeks a variation of interim parenting orders and additional school holiday time with the children – Where the applicant is not the biological father of the younger child – Where the respondent agrees to the proposed arrangement in respect to the elder child but not in respect to the younger child – Consideration of section 60CC factors – Whether the parties should have equal shared parental responsibility – Best interests of the children – Orders varied.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 64C, 65C, 65DAA

Cowling & Cowling (1998) FLC 92-801
Goode & Goode (2006) FLC 93-286
Malcolm & Monroe and Anor (2011) FLC 93-460
MRR & GR (2010) FLC 93-424
Mulvany & Lane  (2009) FLC 93-404
Valentino & Lacerra and Anor (2013) FLC 93-539

APPLICANT: Mr Selby

1st RESPONDENT: Ms Selby

2nd RESPONDENT: Mr Veloce

INDEPENDENT CHILDREN’S LAWYER: Ms Maitland

FILE NUMBER: SYC 278 of 2015

DATE DELIVERED: 17 September 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 06 August 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Mr Mullan of Goldrick Farrell Mullan Solicitors
SOLICITOR FOR THE 1ST RESPONDENT:	Ms Thompson of Etheringtons Solicitors

FOR THE 2ND RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central Family Law

The Court Orders, pending further order, that:

1. Unless otherwise agreed, the children, B born … 2008 and C born … 2002 (“the children”), live with the applicant and spend time with  the respondent as follows:

   (a)During the school term, from 3 pm on Wednesday until 9 am Sunday.

   (b)During school holiday periods, on a week about basis, from 5 pm Sunday until 5 pm the following Sunday.

2. For the purposes of these Orders, unless otherwise agreed between the parties, changeover shall occur:

   (a)At the children’s school, if the changeover occurs on a school day; or,

   (b)At the McDonald’s carpark at Suburb D, in the event that changeover occurs on a non-school day.

Special days

1. In addition to the time set out in Order 1 above, unless otherwise agreed, and notwithstanding any other Order, the children are to spend:

   (a)From 2 pm on Christmas Eve until 2 pm on Christmas Day in even numbered years and from 2 pm on Christmas Day until 2 pm Boxing Day in odd numbered years with the respondent; and,

   (b)from 2 pm on Christmas Eve until 2 pm on Christmas Day in odd numbered years and from 2 pm on Christmas Day until 2 pm Boxing Day in even numbered years with the applicant.

   (c)From 9 am to 5 pm with the respondent on Mother’s Day, should they not otherwise be in her care;

   (d)from 9 am to 5 pm with the applicant on Father’s Day, should they not otherwise be in his care; and

   (e)from after school until 6 pm, if it is a school day, or from 2 pm until 5 pm on a non-school day, with the party who does not otherwise have the care of the children on the children’s birthdays.

2. The parties are each entitled to attend all events involving the children including:

   (a)       sporting fixtures;

   (b)       extracurricular activities that allow for parental attendance; and

   (c)school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.

   And the party who has the children in their care on the day of such activity will be responsible for the children’s transportation to and from that event.

Communication

1. Both parties shall ensure that the other is kept informed of:

   (a)any medical problems or illnesses suffered by the children, or either of them, while in their care;

   (b)any medication that has been prescribed for the children or either of them;

   (c)any social, school or religious functions which the children or either of them are to attend;

   (d)the residential address of the parties and in particular of the others who may reside with the children; and

   (e)       any other matter relevant to the children’s welfare.

2. Each party is to refrain from making critical or derogatory remarks in relation to the other party in the presence or hearing of the children or either of them and that each party is to do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children or either of them.

3. Both parties are restrained from discussing the Court proceedings with either of the children.

Counselling

1. The respondent is to do all acts and things and provide all authorities as are necessary to enable the Independent Children’s Lawyer to contact the current treating psychologist of B, Ms E, and any other treating psychologist that both parties may agree for B to attend, and for the Independent Children’s Lawyer to be able to discuss with B’s treating psychologist all aspects of her current and past treatment.

2. Both parties are to do all acts and things to jointly source and agree on a psychologist or counsellor for C to attend.

3. To give effect to Order 9 above, within fourteen (14) days of these Orders, both parties are to attend on C’s general practitioner to request that a Mental Health Plan issue for C to attend on a psychologist or counsellor.

4. If the parties are unable to agree on a psychologist or counsellor for C in accordance with Order 9 above, within fourteen (14) days of these Orders the Independent Children’s Lawyer shall source a counsellor or psychologist for C to attend and advise the parties forthwith.

5. The parties are each responsible for taking C to her appointments with the psychologist or counsellor when C is in their respective care, and both parties are to follow all reasonable directions of the psychologist or counsellor, including participating in the counselling if so directed.

6. Both parties are to be equally responsible for any costs associated with C attending on a counsellor or psychologist that are over and above those costs covered by the Mental Health Plan available for C.

7. The parties are to do all acts and things and are to provide all authorities as are necessary for the Independent Children’s Lawyer to contact C’s counsellor or psychologist and for the Independent Children’s Lawyer to be able to discuss with the psychologist or counsellor C’s treatment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Selby & Selby has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 278 of 2015

Mr Selby

Applicant

And

Ms Selby

1^stRespondent

And

Mr Veloce

2^nd Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns an application for interim parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”). Mr Selby (“the applicant”) has applied for orders in respect to the two children of Ms Selby (“the respondent”) to define school holiday time and vary interim orders in relation to the time the children spend time with the respondent.

2. The orders sought are in respect to C, born in 2002, who is the child of the applicant and the respondent and also B, born in 2008. B is the child of the respondent and Mr Veloce, the second respondent to these proceedings (“the second respondent”). The second respondent did not participate in these interim proceedings.

Documents relied upon

1. The applicant relied on the following documents:

   ·Application in a Case filed 29 July 2015;

   ·Affidavit of the applicant affirmed 28 July 2015; and

   ·Affidavit of the applicant filed 19 January 2015 by reference to a limited number of paragraphs.

2. The respondent relied on the following documents:

   ·Amended Response to an Application in a Case filed 6 August 2015; and

   ·Affidavit of the respondent affirmed 5 August 2015.

3. Also in evidence in the proceedings was the Child Responsive Program Memorandum of the Family Consultant, Ms F, dated 3 August 2015.

Background

1. The parties were married in 2001 and separated in either 2005 or 2006.

2. On 21 June 2006, then Federal Magistrate Sexton, by consent, made orders in respect to C which, most relevantly, included orders to the following effect:

   (1)That the parties be jointly responsible for the long-term care, welfare and development of C, who was then four and a half years old.

   (2)That C reside with the applicant.

   (3)That C have time with the respondent every Tuesday and Thursday from after school until 8 pm, each weekend from Friday until Sunday and for half school holidays as agreed but, in the absence of agreement, for alternative weeks commencing from the start of the school holidays.

3. In 2006, the respondent commenced a relationship with the second respondent to whom she had a child, B. B was born at only twenty-five weeks gestation and has had some ongoing health consequences as a result.

4. Following B’s birth, and the respondent’s relationship with the second respondent ending in May 2008, the applicant and the respondent re-commenced living together on a full-time basis. However, the respondent asserts that they remained separated under the same roof.

5. In 2014, proceedings were commenced by the parties for the applicant to adopt B but that process was never finalised.

6. In January 2015, the respondent left the former matrimonial home with the children and enrolled each of the children in new schools.

7. In January 2015, the applicant commenced proceedings in this Court for the children to be returned to his care.

8. On 12 February 2015, Rees J made a total of  eight orders, the first three  of which were to the following effect:

   i)That the respondent cause the children to be returned to the care of the applicant.

   ii)That the children spend time with the respondent each week from Thursday afternoon after school until Monday at the commencement of school with the respondent to collect the children from school and return the children to school on each occasion.

   iii)That each of the applicant and the respondent do all acts and things required to re-enrol the children in G School and H School.

9. By Application in a Case filed on 29 July 2015, the applicant sought the orders which are now the subject of these proceedings.

Significance of the applicant not being the biological father of B

1. It is acknowledged that the applicant is not the biological father of B. There is therefore a preliminary issue to be decided as to whether the applicant has standing to bring a parenting application in respect to B.

2. Section 64C of the Act provides that the Court may make a parenting order in favour of a parent of a child “or some other person”. Section 65C sets out those persons who may apply for a parenting order under Part VII of the Act. This includes, at sub-paragraph (c), “any other person concerned with the care, welfare or development of the child.” For reasons which will be discussed, the Court has found that the applicant is such a person and therefore has standing in respect to both children.

3. The application is to be considered no differently than it would be if the applicant was the biological father of B. In Valentine & Lacerra and Anor (2013) FLC 93-539, the Full Court said at 87,107:

   43.      The plain fact of the matter is that there are no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). That is not altered by the parent having sole parental responsibility.

4. Moreover, it is clear that the considerations set out in section 60CC of the Act can equally be applied in considering the position of a non-parent as much as they can when considering the position of a parent. Lest there be any doubt about that, it is noted that sub-paragraph (m) of sub-section 60CC(3) provides that in determining what is in the child’s best interests the Court must consider “any other fact or circumstance that the court thinks is relevant.”

5. In that respect, in Mulvany  & Lane(2009) FLC 93-404 at 83,449, May and Thackray JJ said:

   76. It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.

   77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in s 60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child's best interests.

6. There is nothing in the legislation preventing the Court from giving consideration to those other matters set out in sections 60 CC (2) and (3) when considering the relationship between a child and a person who is not the child’s biological parent. Indeed, there are common sense reasons for doing so. Such an approach was described by the Full Court in Malcolm & Monroe and Anor (2011) FLC 93-460 in the following terms at 85,520-85,521:

   97. In summary, to the extent that it is asserted that some of the considerations listed in s 60CC of the Act precludes consideration of those factors in relation to persons other than a parent, for the reasons outlined above by the respective Full Courts in Mulvaney & Lane and Aldridge & Keaton, this assertion or submission is rejected. Even if the literal interpretation of the s 60CC factors which specifically refer to “parents” (s 60CC(2)(a), s 60CC(3)(c), s 60CC(3)(e), s 60CC(3)(g), s 60CC(3)(h), s 60CC(3)(i)) must only relate to parents (in the strict sense) a submission that we do not accept, s 60CC(3)(m) would permit and, indeed, almost require a consideration of the matters set out above in relation to persons who are other than parents.

   98. The paramount consideration before the Federal Magistrate was determining what orders could be made in the best interests of L. This in turn meant that he was to give consideration to the relevant s 60CC factors in relation to all of the relevant people in her life. We are satisfied that he did so.

7. Adopting that approach, the Court will apply the same considerations in determining what is in the best interests of C and B. For convenience, in applying the section 60CC legislative guide, I will regard the legislative reference to “parent” as being equally applicable to the applicant in respect to his relationship to C and B.

Approach of the Court

1. The decision of the Full-Court in Goode & Goode (2006) FLC 93-286 usefully sets out the approach which should be taken in considering an application for interim orders concerning children. At 80, 903- 80,904, under the subheading "How should interim proceedings be conducted?" the Full Court said:

   81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

   82. In an interim case that would involve the following:

   (a)identifying the competing proposals of the parties;

   (b)identifying the issues in dispute in the interim hearing;

   (c)identifying any agreed or uncontested relevant facts;

   (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Competing proposals of the parties

1. By way of summary, the draft minutes of order relied upon by the applicant  relevantly sought the following orders:

   ·For the children to spend time with the applicant and the respondent respectively on an approximate week about basis during school holidays with some additional modification in respect to the Christmas festive season.

   ·That the Orders dated 12 February 2015 be varied to provide that the children live with the applicant and spend time with the respondent on a week about basis with the changeover being at 5 pm on each Sunday.

   ·That the respondent pay to the applicant the sum of $800 by way of a refund for Medibank Private rebate payments. (This part of the application, however, did not proceed.).

2. Prior to the hearing of the applicant’s interim application, by affidavit affirmed 28 July 2015, the applicant indicated that he was (at that time) prepared to agree to the following alternative parenting arrangement: “Alternatively, the children could live with me from Sunday 9 am until Wednesday 3 pm and the [respondent] from Wednesday 3 pm until Sunday 9 am.”[1]

   [1] At paragraph 32.

3. The applicant indicated that, while the alternative arrangement would not eliminate the midweek changeover, the alternative arrangement which he proposed would have the following benefits:

   …The children would have some leisure time with me on Sunday, I would assist them with homework and extracurricular activities on Monday mornings the children would not have to leave my home until 7.00am. At present [C’s] dance ensemble commitments at the children needing to leave the respondent wife’s residence in [Suburb I] at 6.30am to get to school for the rehearsal by 7.15am. Consequently, [B] has to attend before school care at 7.30am on Mondays. If the children are with me on Monday mornings, I would be able to drop [C] off to her dance rehearsal and return home by 7.30am to ensure that [B] is ready for school at 9.00am without the need for [B] to attend before school care on Mondays.[2]

   [2] Ibid.

1. At the hearing, however, the  applicant indicated that he no longer sought the orders expressed in the alternative and, instead, favoured orders proposed by the Independent Children's Lawyer (“the ICL”) which will be discussed below.

2. The respondent’s Amended Response sought orders to the following effect:

   1.That the Orders of 12 February 2015 be varied to provide for the children to live with the respondent.

   2.That Order 1 of the 12 February 2015 orders be discharged.

   3.That, up until she reaches the age of fourteen, C spend time with the  applicant as follows:

   ·From 10 am Sunday to before school on Wednesday;

   ·In the short school holidays, for a period of four days;

   ·During the December/January school holidays for three periods of five days with one period to occur around Christmas, and the other periods to occur in the second half of January;

   ·Special arrangements were proposed on Christmas Day and Father’s Day;

   ·After C reaches the age of fourteen, in accordance with her wishes.

   4.That, provided the child C is with the applicant at the specified times below, that B spend the following time with the applicant:

   ·During school terms: from Monday after school to Tuesday at 6 pm;

   ·During the holidays: in the short school holidays for a period of four days; and

   ·During the December/January school holiday periods for two periods of four days at least two weeks apart, with one period to occur around Christmas, the other period to occur in the second half of January and not when the respondent is on compulsory leave.

   5.In the alternative to Orders 1, 2, 3 and 4, that Order 2 of the 12 February 2015 order be varied to provide that the child C live with the respondent from 9 am Wednesday to 3 pm Monday and the child B live with the respondent from 6 pm on Tuesday to 3 pm on Mondays.

   6.That if changeover does not occur at the children’s school, that it take place in the car park at McDonald’s Suburb D.

3. At the hearing, the respondent indicated that she was prepared to agree to the alternative arrangement proposed by the applicant in his affidavit filed 28 July 2015 in respect to C, but not in respect of B.

4. The orders sought by the ICL were to the following effect:

   1.That the children live with applicant and the respondent on a week about basis from 5 pm Sunday until the following Sunday at 5 pm.

   2.That, in the alternative to Order 1, the children live with the respondent and the children spend time with the applicant as follows:

   ·Week 1, no time with the applicant.

   ·Week 2, from 5 pm Sunday to 5 pm the following Saturday.

   3.That the "time with" arrangement in Order 1 is to continue through school holiday periods

   4.That changeovers occur at the Suburb H railway station unless otherwise agreed between the parties.

5. Orders 5 through to 9, sought by the ICL, were as per Orders 3 through to 7 which are set out at the start of this judgment.

6. The ICL also sought seven additional orders to the effect of those set out in Orders 8 through to 14 at the commencement of this judgment. Those additional orders were made with the consent of the parties.

Issues in dispute

1. The issues in dispute are:

   ·The nature of the applicant’s relationship with B;

   ·Whether there has been family violence and/or abuse;

   ·The cause of and consequence of B’s anxiety disorder;

   ·The appropriate time that C should spend with each parent;

   ·The appropriate time that B should spend with each parent; and

   ·The parenting arrangements that should be made in respect to school holiday periods.

Agreed or uncontested facts

1. As best can be determined in these interim proceedings, the below appear to be uncontested facts:

• There has been considerable marital discord between the parties. On occasions, the children have been exposed to that conflict.

• B was not informed that the applicant was not her biological father until January 2015.

• B is suffering from an anxiety disorder, although the cause of that disorder and its consequences are not agreed. However, the parties acknowledge that marital discord has been a factor.

• C is suffering from a stress related condition requiring professional intervention and it appears that the parties recognise that, at least in part, the marital discord has also been a factor in the development of that condition.

• On 21 June 2006, then Federal Magistrate Sexton made orders whereby C was to live with the applicant and spend time with the respondent and for school holidays to be on a week about basis.

• In 2008, the parties recommenced cohabitation and neither party relied on the orders of then Federal Magistrate Sexton as determinative of the Court’s approach to school holidays in these proceedings. The applicant, however, relies on those orders in so far as they provide for C to live with the applicant and spend time with the respondent.

• The children have had an ongoing relationship with the applicant’s parents who have, at times, spent time with the children including staying at the former matrimonial home.

• There is a developing relationship with the children’s maternal grandmother who currently resides in Perth but wishes to spend more time in Sydney.

• During 2015, the parties agreed to initiate the required processes for the applicant to adopt B and retained lawyers to prepare the necessary paper work.

• The respondent now asserts that, as a result of language difficulties and dyslexia, she did not give her informed consent for the adoption to occur.

• On 14 August 2014, the respondent swore an affidavit agreeing to a number of propositions to the effect that the applicant had played a significant role in the care of B.

• The respondent now resiles from the contents of her affidavit in that respect. In that context, the respondent states that she did not deliberately give a false affidavit but again attributes the contents to poor understanding as a result of language difficulties and dyslexia.

• The respondent has had at least two overseas holidays for periods in excess of one week during which time both children were left in the care of the applicant. This included a holiday for eleven days in September 2014.

• In her Child Responsive Program Memorandum, the Family Consultant, Ms F, advised that, pending final orders, “due to the importance of maintaining sibling relationships, caution is suggested about C and B having substantially different parenting arrangements”.[3] Although it should be noted that the respondent disputes the merit of that advice.

• The ICL reported to the Court that, the Family Consultant “is particularly concerned about the emotional welfare of the children and she particularly wants the counselling for B to continue and C to start as soon as possible”.

• At paragraph 17 of her Memorandum, the Family Consultant states:

  [C] said she is “fine” with the current parenting arrangement although she said that it can be “hard” bringing different bags to each parents household. She would also like to be able to spend one day of the weekend with the [applicant].

• Ms Thompson, on behalf of the respondent, argued that this paragraph reflected that C is content with the current arrangements. The ICL, as result of the Child Responsive Program Memorandum and her conversation with C, which occurred in May of this year, advised the Court that the mid-week changeover remained a concern for C.

[3] At paragraph 49.

LIMITED ABILITY TO RESOLVE CONTROVERSIAL FACTUAL ISSUES IN INTERIM PROCEEDINGS

1. It is the responsibility of the Court to regard the best interests of the child as a paramount consideration even in interim parenting matters (section 60CA). It must do this in circumstances where evidence of witnesses has not been tested through a process of cross examination and where there is limited expert evidence before the Court.

2. In that context, in Cowling & Cowling (1998) FLC 92-801, the Full Court said at 85, 006:

   Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.

3. In the abridged process of these interim proceedings, I am not able to determine all relevant issues of fact. The most controversial of which is the substance of the respondent’s evidence that she was ignorant of the ramifications of the adoption process and her resiling from her previous evidence in respect to the role played by the applicant in B's life. I am also unable to determine allegations by the parties that they each engaged in family violence or abusive conduct while the parties were cohabiting.

Section 60CC Factors

1. The extent of uncontested evidence that has been presented in these interim proceedings is not such that the Court can give more than a limited consideration to those matters set out in section 60CC. Those provisions that are of most relevance to the determination of this application are discussed below.

Primary Considerations

Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents

1. The applicant and the respondent both proposed that C spend equal or substantial and significant time with each other. The controversial issue was in respect to B.

2. The respondent has proposed that B spend only limited time with the applicant. This appears to be due to the respondent’s assertion that the applicant is not B’s biological father and the respondent’s belief that B suffers separation anxiety from her.

3. A most unsatisfactory aspect to the respondent’s evidence was the fact that she has resiled from her previous evidence that the applicant has played a significant role in B’s life. This role is confirmed by the fact that the respondent was prepared to leave both children in the applicant’s care while she took overseas holidays, including a period of eleven days in September 2014.

4. B understood that the applicant was her biological father until she was informed otherwise by the mother in January of this year. The ICL submitted that for the purposes of these interim proceedings the Court should regard the applicant as B’s psychological father. The Court agrees with that approach and finds that it important for both children to maintain a meaningful relationship with both the applicant and the respondent.  

Section 60CC(2)(b) requires the Court to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Section 60CC(2A) requires the Court to give greater weight to this consideration.

1. Both parties made serious allegations that the other party has engaged in abusive and even physically violent behaviour towards the other. However, neither party alleges that the children were subjected to violence or abuse. Now that the parents have separated, the risk of the children being exposed to family violence has diminished.

2. The respondent argued that when solely in the applicant’s care the children would be exposed to risk in terms of section 60CC(2)(b). On pressing the respondent’s legal representative to clarify that submission, it appears that the respondent’s concern is related to what she regards as the applicant’s lack of perceptiveness of the children’s emotional needs. The manner in which the submission was presented, on behalf of the respondent, did not go so far as to amount to a concern of potential psychological harm in terms of section 60CC(2)(b).

3. There is however material before the Court that suggests comments may have been made to B with a view to influencing her perceptions of the applicant. There were also allegations that the respondent had "coached" B in respect to the nature of comments she was to make when asked about her views on appropriate parenting arrangements. Involving a child in the parent’s disputation may present a risk of psychological harm to the child. However, in these interim proceedings, the Court is unable to make a determination as to whether such conduct did occur and, if so, what effect it may have had on B.

4. The Court notes that, to their credit, both parties have agreed to orders being made to prevent any future comments being made that denigrate the other or involve the children in this litigation.

Additional considerations

Section 60CC(3)(a) requires the Court to consider any views expressed by the child and any other 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. C has indicated concern with the midweek change over and she has also indicated that she would like to spend more time with the applicant on weekends.

Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child

1. Providing for the children to spend week about time with the applicant and the respondent during school holidays would enable the children to more readily visit their paternal grandparents, who live at J Town on the north coast of New South Wales. It would also enable the children to travel to Perth to visit their maternal grandmother. A period of time shorter than one week has the potential to significantly diminish the efficacy of any travel arrangements. This is particularly the case when travelling time is taken into consideration.

2. The relationship between the two children is vitally important. In that respect the Court has placed great weight on the advice of the Family Consultant where, in her Memorandum, she has recommended that pending final hearing:

   … due to the importance of maintaining sibling relationships, caution is suggested about [C] and [B] having substantially different parenting arrangements.

Section 60CC(3)(c) requires the Court to consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. The Court notes that the Orders of then Federal Magistrate Sexton effectively  provided for the parties to have joint parental responsibility in respect to major long-term issues affecting C and no issue has arisen regarding the conduct of either party in that respect.

2. As noted, the respondent has resiled from statements made in her affidavit of August 2014 regarding the contribution the applicant has made to the care of B. The unsatisfactory aspects of that changed position have been noted, however, a further exploration of that matter will need to wait until final hearing.

3. B has lived with the applicant and the respondent in the former matrimonial home. Until January of this year, B believed the applicant to be her biological father. The applicant works from home and it is reasonable to assume that B and the applicant have spent a considerable amount of time together. The Court has also noted that, despite the respondent resiling from her earlier position, she left both children in the care of the applicant when she has engaged in overseas travel. Those facts are inconsistent with the concerns the respondent now expresses in respect to the applicant’s parenting responsibilities.

Section 60CC(3)(ca) requires the Court to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children

1. It is quite clear that both parties could have done more to protect the children from being exposed to the extent of their marital discord. However, no allegations have been made that either the applicant or the respondent has otherwise failed to fulfil their obligations to maintain the children. Encouragingly, both parents appear to be entirely supportive of the children’s education and their engaging in extracurricular activities.

Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living

1. The recommendations contained in the Family Consultant’s Memorandum of 3 August 2015 are particularly pertinent to this consideration. The Court will not, in these interim proceedings, make orders that have the effect of separating the siblings from one another.

2. Further, as noted, B has spent a substantial portion of her life in the company of the applicant. Until recently, B  believed that he was her biological father. In those circumstances, in these interim proceedings, the Court is not prepared to reduce B’s time with the applicant.

Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

1. This is not a relevant consideration in this matter save in so far as the respondent proposed that the changeover point be at McDonald’s at Suburb D because it is approximately midway between the two residences where the children are to spend time. The applicant had no objection to the Court specifying that as the location for changeover. The Court will make that order in respect to where changeover of the children does not otherwise occur at the children’s school.

Section 60CC(3)(f) requires the Court to consider the capacity of each of the child's parents, and any other person, to provide to the needs of the child, including emotional and intellectual needs

1. The respondent argued that the applicant’s comments to the Family Consultant, that suggested a more positive disposition on the part of the children, was reflective of the applicant being imperceptive of the children’s emotional needs. The Court is not prepared to make that determination on the basis of the Memorandum of the Family Consultant. Further, the Court does not draw any inference from the fact that the respondent rather than the applicant has, on occasions, taken the children to medical appointments.

Section 60CC(3)(g) requires the Court to consider the maturity, sex, lifestyle and background of the child, and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

1. C is now 13 years of age and the Court should give careful consideration to her views. Those views have been referred to in the Memorandum of the Family Consultant, and in particular at paragraph 17.  

2. The Court also notes that both B and C will be undergoing ongoing counselling and reports from the children’s treating specialists may assist in better understanding the characteristics and possible vulnerabilities of the children.

3. The Court notes that the respondent is concerned that B may suffer from separation anxiety when she is away from the respondent. Equally, the applicant believes that B may suffer anxiety when she is away from him. While the cause and nature of B’s anxiety is yet to be determined, the Court is cautious in requiring B, who is currently only seven years of age, to spend alternative periods of one week away from each party.

4. Other than in respect to school holiday periods, the Court will therefore make orders for the children to spend shorter consecutive periods of time with each party.

5. For reasons discussed above, the Court is of the opinion that it is appropriate to make orders to enable the children to have holidays away from Sydney during their school holiday period and it would not be efficacious to limit the period of any such holiday to only four or five days duration.

Section 60CC(3)(i) requires the Court to consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. On the evidence, the Court concludes that both parties have acted responsibly in terms of attending to the physical needs of their children. However, as noted, both parties have failed to prevent the children from being exposed to and impacted by their ongoing discord.

2. For these reasons, the Court will include orders of an injunctive nature with a view to limiting either party from making comments that denigrate the other or which may have the effect of embroiling the children in the process of the marital dispute.

Section 60CC(3)(j) requires the Court to consider any family violence involving the child or a member of the child's family

1. The Court notes that allegations have been made by each party against the other that they have engaged in violence. The Court is not in a position to make any findings regarding the extent to which either party has or has not engaged in such conduct in these interim proceedings.

Parental Responsibility

1. Section 61DA relevantly provides:

   (1) When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b) family violence.

   (3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (Emphasis added)

2. On 21 June 2006, then Federal Magistrate Sexton made orders that both the applicant and the respondent have joint parental responsibility in respect to C.

3. In these interim proceedings, it is not possible to make a determination in respect to significant issues of fact including whether abusive and or violent conduct has occurred between the parents. The nature of the relationship between B and the applicant is also an important issue that will need to be considered at final hearing. Accordingly, in accordance with section 61DA(3) the Court considers that it would not be appropriate, in these interim proceedings, for the presumption to be applied in respect to B.

4. As explained in Goode (supra), if the presumption is not applied, in making such orders as are in the best interests of the child, as a result of consideration of one or more of the matters set out in section 60CC, the Court may nonetheless consider making orders for the child to spend equal time or substantial and significant time with a parent.[4]

   [4] Goode & Goode (2006) FLC 93-286 at 80 904.

5. In the circumstances of this case, having considered the matters referred to in section 60CC, it is appropriate for the Court to consider the children spending equal time or substantial and significant time with each party.

6. Relevantly, for these proceedings, section 65DAA(3) provides that a child will be taken to spend substantial and significant time with a parent only if:

   (a) the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii) days that do not fall on weekends or holidays…  

7. The applicant sought orders which would provide for the children to live for equal periods of time with each parent. The applicant and C have communicated a desire that this include weekend time. The applicant and the ICL have argued that any arrangement for equal time should include weekend time. The respondent opposes an equal time arrangement in respect to B but acknowledges that it is appropriate for B to spend some time with the applicant. The time she proposes that B spend with the applicant does not, however, include weekend time.

8. More generally, the respondent argues that B’s time with the applicant should be limited as the applicant is not B's biological parent. Further, as noted, the respondent is concerned that B suffers from separation anxiety when she is away from her and accordingly, she considers that a week about equal time arrangement would result in B spending too long a time away from her mother.

9. At this interim stage of the proceedings, there is only limited expert evidence before the Court to provide guidance in determining the nature and cause of B's anxiety and, ultimately, what is in the best interests of the children.

10. With the exception of school holidays, which have been discussed above, it would therefore be premature to enter into an equal time arrangement that requires the children to regularly live separately from the applicant and the respondent for regular periods of seven days. For these reasons, the Court finds that, other than during school holidays, it would not be in the best interests of the children to make an order for precisely equal time on a week about basis at this point in the proceedings.

11. It is nonetheless appropriate to consider making an order for substantial and significant time. Despite their poor relationship, it is encouraging that both parents seem to accept that the children would benefit from at least some contact with each of them.

12. If the parties comply with the orders that have been made regarding the nature of their communication with the children, then it is possible that the children will have a positive relationship with both parents.

13. In these circumstances, the Court finds that it is in the best interests of the children that, pending further final determination of this matter, there be an order for them to live with the applicant and spend substantial and significant time with the respondent. This is also reasonably practicable especially given that, at least in the foreseeable future, the parties will live in sufficiently close proximity to each other to enable a changeover to occur on two occasions each week.

14. Orders will therefore be made along the lines of the alternative proposition set out in the applicant’s affidavit affirmed 28 July 2015. That is, the children will live with the applicant from Sunday 9 am until Wednesday 3 pm and spend time with the respondent from Wednesday 3 pm until Sunday 9 am.

15. In order to facilitate the children taking a holiday away from Sydney during school vacations, the Court will make orders for a week about arrangement during school holidays.

16. The children should also spend time with each of the parties on special days including Mother’s Day, Father’s Day, birthdays and Christmas Day.

17. The additional orders sought by the ICL have merit and were not opposed by either party.

18. It is noted that the midweek changeover was a difficulty for C. However, these orders make provision for the midweek changeover to occur by way of school drop off and pick up. It is hoped this will assist C to manage transporting her bags.

Conclusion

1. Having considered the matters which are relevant to the determination of this matter, the Court makes the interim orders set out at the commencement of this judgement.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 17 September 2015.

Associate: 

Date:  17 September 2015