Self & Bachman (No 2)
[2021] FedCFamC1F 335
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Self & Bachman (No 2) [2021] FedCFamC1F 335
File number(s): SYC 2566 of 2016 Judgment of: SCHONELL J Date of judgment: 21 December 2021 Catchwords: FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Variation – Where judgment is currently reserved after defended hearing in February 2021 – Where the father has not spent time with the child since August 2021 – Where the father seeks an enforcement order and compensatory time – Where the mother seeks interim sole parental responsibility for the child and gradual reintroduction of time for the father – Where the child is suffering anxiety due to the parties’ conflict – Where the child should resume a gradual reintroduction of time with the father – Where the court needs to adopt a cautious approach with respect to interim parenting considerations - Best interests of the child – Orders. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA, 69ZL
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.01, 11.69
Cases cited: Adamson & Adamson [2018] FamCA 523
Eaby & Speelman (2015) FLC 93-654
Goode & Goode (2006) FLC 93-286
Marvel & Marvel (No. 2) (2010) 43 Fam LR 348
Mazorski & Albright [2007] FamCA 520
Sigley & Evor (2011) Fam LR 439
Division: Division 1 First Instance Number of paragraphs: 73 Date of hearing: 16 December 2021 Place: Sydney Applicant: Litigant in Person Solicitor for the Respondent: Adam Jones Solicitor Solicitor for the Independent Children's Lawyer: Tiyce & Lawyers ORDERS
SYC 2566 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BACHMAN
Applicant
AND: MS SELF
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
21 DECEMBER 2021
THE COURT ORDERS THAT:
1.Each parent is permitted to do all acts and things and sign all documents necessary to secure the enrolment of the child at a secondary school(s) of that parents choosing on the implicit assumption that it does not represent an agreement of the other parent to the child attending that school or an acceptance by the other parent to contribute to the school fees.
2.Order 4.1 and 4.2 made 26 July 2016 and Order 10 made 28 November 2016 be suspended until the first day of Term 1 2022.
3.The father shall spend time with X, born 2011 over the 2021/2022 Christmas School Holidays as follows:
(a)2 hours on 23 December 2021 between 2pm and 4 pm
(b)3 hours on 25 December 2021 between 2pm and 5 pm
(c)4 hours on 27 December 2021 between 2pm and 6 pm
(d)5 hours on 29 December 2021 between 2pm and 7 pm
(e)5 hours on 31 December 2021 between 2 pm and 7 pm
(f)6 hours on 3 January 2022 between 1 pm and 7 pm
(g)6 hours on 6 January 2022 between 1 pm and 7 pm
(h)7 hours on 9 January 2022 between 12 and 7 pm
(i)8 hours on 12 January 2022 between 9am and 5 pm and each Wednesday thereafter
(j)From 9 am Saturday 15 January to 4 pm Sunday 16 January and each alternate weekend thereafter.
THE COURT ORDERS BY CONSENT THAT:
4.The parties shall not :
(a)Involve X in the case by showing him Court documents, discussing the proceedings or any matter arising in the proceedings or advising when hearings or mentions might occur;
(b)Utilise X as a messenger or reporter on the conduct of the other parent;
(c)Unreasonably seek to undermine the other parent;
(d)Engage X in conversation on age-inappropriate topics;
All on a mutual and without admissions basis.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Self & Bachman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
The proceedings listed for determination by the Court on an interim basis relate to the parties’ child X, born 2011 (“the child”) who is ten years of age.
X’s parents, Mr Bachman (“the father”) and Ms Self (“the mother”) have been involved in litigation in this court for a significant period of time.
The current spend time with orders provide for the child to spend time with his father each alternate weekend and each Wednesday overnight during school terms and for half of each school holiday.
In February 2021 Justice Harper heard the final hearing over 5 days and reserved his judgment.
On 25 May 2021 the father filed an application to reopen the proceedings. That application for reopening has not yet been heard by the court and the matter is listed before Harper J for determination of that application on 21 March 2022.
In July 2021 the child did not spend time with the father in accordance with the school holiday regime.
The child has not spent any time with the father since 11 August 2021.
The Father subsequently filed a number of applications for enforcement with the aim to adopting his words “put the matter back on track” and seek compensatory time. His Affidavits made it plain that he did not want the mother punished for contravention.
On 14 December 2021 Harper J made orders in relation to the current applications but in particular noted at “A” the following,
A final hearing has taken place and that the court is endeavouring to get to a position to deliver a final judgment, subject to the outstanding interim application of the parties.
His Honour also noted as follows at “D”:
Parties are advised the listing on 21 March 2022 may be administratively vacated in the event that the father’s Applications-Enforcement have not been determined by that date.
The applications that His Honour’s notations refer to were the three applications for enforcement and/or applications in a case seeking enforcement of existing orders for the father to spend time with the child.
In addition, there was identified in the Orders of 14 December 2021 at paragraph 3 the following:
The mother’s Application in a Proceeding filed 13 December 2021 is listed for mention before His Honour Justice Schonell on 16 December 2021, in anticipation of the mother applying for this Application in a Proceeding to be dealt with in tandem or consecutively to the Father’s Applications-Enforcement listed on the same day.
By such application the mother sought to suspend the existing time arrangements and put in place a time arrangement that saw the child spend unsupervised time with his father on a number of occasions for a number of hours with the matter to be relisted before the court at a later time.
What was listed for hearing were the father’s application in a case filed 20 July 2021, a further application-enforcement filed 22 September 2021 and another application in a case filed 11 November 2021.
At the commencement of the hearing the court sought to obtain from the father what it was he was seeking to have heard. The court indicated to the father that on the court’s understanding of the procedure to be adopted in an application-enforcement, the court was endeavouring to enforce its orders without adopting the procedure of a contravention hearing. In that respect r 11.69 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) make it explicitly clear that the hearing of an application-enforcement follows a procedure very different to that of an application-contravention.
In the father’s various applications he sought numerous findings that the mother had contravened an order without reasonable excuse. The court asked the father on a number of occasions whether he sought to have the matter dealt with in that respect. It was indicated if the court adopted that procedure then there was no way the matter would complete in one day with the courts next available date being after the listing before Justice Harper. This would have had the consequence of jeopardising the final determination of the proceedings.
In view of the father’s desire to resolve the time arrangement and to “put matters back on track”, and in the view of the fact that the child had not seen his father for over four months there was a need to proceed expeditiously and to provide a pathway to finality of the litigation. The court determined that a further delay in the determination of the final hearing was not in the best interests of the child and that the parties applications could be heard and determined within the time frame allocated of one day without cross examination.
The father was then asked to identify which of the orders that he sought. The Father identified that he sought orders from his application in a proceeding filed 11 November 2021 as follows:
(4)Within 24-hours of the making of these orders, the mother shall provide a written undertaking to comply with all existing parenting orders.
(5)The mother and father shall do all things (including paying associated costs equally) to ensure the child has a current passport.
(6)The mother shall, within seven (7) days of these orders, sign all documents and do all acts and things necessary to facilitate the travel of the child out of Australia with the father in January 2022 including but not limited to causing the child’s passport to be made available to the father and signing all necessary applications and consent forms.
(7)For the purposes of partially compensating the father for time that the child did not live with the father commencing the September / October 2021 school holidays, as a result of the mother’s failure to comply with the 28 November 2016 order 10 requiring the child live with the father for half of school holidays, the 26 July 2016 Order 4.2 “every alternate weekend” and the 26 July 2016 Order 4.1 “Wednesday of every week”, the child shall live with the father in the January 2022 school holidays for an additional 14 nights that shall commence immediately before the mind-point (sic) of the child’s NSW Government public school holidays
(9)The mother shall comply with the following:
(a) Do not discuss the legal case with the child.
(b) Do not show court papers to the child.
(c) Do not tell the child when hearings will occur.
(d) Do not interfere with the father’s parenting time, including: scheduling activities, appointments, family or friend visits.
(e) Do not ask the child to “report” on the other parent.
(f) Be careful not to be excessively intimate with the child for the child’s age, as this may create an unhealthy dependency on the mother.
(g) Do not sleep with the child.
(h) Do not communicate to the child by mobile telephone how you miss the child when the child is at the father’s house.
(i) Do not interrupt the child’s time with the father as the other parent by calling too much or by planning my activities during their time together. This makes [the child] fee confused.
(j) Do not talk about the divorce or other grown-up stuff. This makes [the child] feel sick. Please leave [the child] out of it.
(k) Do not treat [the child] like an adult or lean on [the child] for support. It causes way too much stress for [the child]. Please find a friend or a therapist to talk with.
(l) Do not give [the child] verbal messages to deliver to the other parent. [the child] ends up feeling anxious about their reaction. So please just call or message them yourself. And be polite like you expect [the child] to be.
(m) Do not send written messages with [the child] or place them in [the child’s] bag. This also makes [the child] uncomfortable.
In addition, the father relied upon the following order from his Application in a Proceeding filed 22 September 2021:
(11)That a finding be recorded, at [Suburb D], in New South Wales, the mother, shall deliver the child to the father and/or not interfere with the child living with the father in accordance with the 28 November 2016 order 10 requiring the child live with the father 9 nights from Saturday 25 September 2021 (or half school holidays) and the 6 December 2018 order 3 order that requires the changeover to occur outside of [Handover Location E] when such time occurs on days the child is not attending school.
The father relied upon the following in support of his applications:
(1)A Case Outline and a Case Outline in Reply;
(2)Affidavit of the father sworn 22 July 2021;
(3)Affidavit of the father sworn 22 September 2021;
(4)Affidavit of the father sworn 10 November 2021;
(5)Affidavit of the father sworn 15 November 2021;
(6)Affidavit of the father sworn 16 December 2021.
The mother relied upon an Amended Application in a Proceeding filed 13 December 2021 seeking the following orders:
a)That the mother has sole parental responsibility of the child [X] born […] 2011 and the mother shall keep the father informed regarding all major decisions that she makes concerning the child by notifying the father by email within 48 hours of such decision being made.
b)That the father’s time with the child under the orders made on 26 July
20212016 be suspended pending further order of the court.(4)That the father spend time with the child on the following basis:
a) On 25 December 2021, from 11:00 am to 2:00 pm.
b) On 1 January 2021, from 11:00 am to 2:00 pm.
c) On 8 January 2021, from 11:00 am to 2:00 pm.
d) On 15 January 2021, from 11:00 am to 2:00 pm.
e) On 29 January 2021, from 9:00 am to 1:00 pm.
f) On 5 February 2021, from 9:00 am to 1:00 pm. That the father spend time with the child
(5)That the father spend time with the child at any other time as agreed between the parties in writing.
(6)That the matter be listed for further Interim Hearing in February 2022 to revise the orders for the father’s time with the child. That
The mother relied upon the following in support of her application:
(1)A Case Outline;
(2)Affidavit of the mother sworn 29 October 2021;
(3)Affidavit of the mother sworn 13 December 2021;
(4)Affidavit of Mr F, Psychologist sworn 11 December 2021;
(5)Reports of Dr B of 18 August and 16 September 2021;
(6)A letter from Adam Jones Solicitor to the Father dated 29 November 2021.
The Independent Children’s Lawyer (“ICL”) indicated that they also sought to rely upon the Affidavit of Mr F sworn 11 December 2021.
All of this material was read by the Court.
The father took objections to the report of Mr F and in particular to all that appeared on page 9 of the report after the first sentence under the heading, “Reintroducing time with the father” to the end of the report. The father contended that the report did not comply with the provisions of r 7.01 of the Rules in that the expert expressed opinions outside of his area of qualifications or did not have the appropriate level of experience or qualifications to make the determinations that he did.
The court determined that it would admit the report subject to issues of weight. As it was the Court placed weight on that part of the report the father did not object to.
Despite the enormous volume of material the parties agreed that the ultimate issue for determination was how to restore the child’s relationship with his father in circumstances where he had not spent time with his father since 11 August 2021.They differed as to how to do so.
The father sought an immediate restoration of time in accordance with the existing orders and compensatory time over the Christmas school holidays, the whole of the April 2022 school holidays and further unspecified compensatory time. The Mother sought a suspension of the orders and proposed short, daytime unsupervised time which she said was in accordance with the recommendations of Mr F, with a further interim hearing in February 2022. The ICL largely supported the mother’s position.
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”) I set out in short form my reasons below.
This an interim hearing and there has been no cross examination. By virtue of that fact I am unable to make findings in relation to the disputed facts, of which there are many. However just because I am unable to determine or resolve disputed factual assertions does not mean that I ignore allegations of risk.
In Marvel & Marvel (No. 2) (2010) 43 Fam LR 348 (which has been cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654) the Full Court commented at [120]:
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…
And at [122] and [123]:
In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
Later, at [100] their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes 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. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Adamson & Adamson [2018] FamCA 523 Deputy Chief Justice McClelland observed at [50]:
It is to be observed that that reference in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
It is undisputed that the father subject to a few occasions spent time with the child in accordance with the existing orders until the commencement of the July 2021 school holidays.
It is not disputed that the father did not spend all of the time that he was permitted to spend with the child consistent with the existing orders during the July 2021 school holidays. Nor is it disputed that since 11 August 2021 the father has not spent time with the child in accordance with the existing orders.
The parties are at issue as to why the child’s time with the father stopped. The mother contends that it was because of the acute anxiety of the child arising from the father’s behaviour and the conflict between the parties. The mother further contends in her Case Outline “the responsibility for the continuation of the conflict rests primarily with the father who has maintained an approach of maximum conflict to all”.
The father contends that the mother was the cause of the cessation of time and that she is practising a form of parental alienation.
I further note each of the parties wishes to return to orders that represent a significant and substantial time between the father and the child on a final basis. On a final basis the father seeks an equal time arrangement and the mother does not resile from her position at trial that the child should be spending significant and substantial time with his father on a final basis, namely for four nights a fortnight in school terms and half school holidays.
The mother in her affidavit sworn 29 October 2021 at [7] sets out what she says are her concerns for the child’s mental health and wellbeing. This includes:
I make this Application in circumstances of urgency as I have significant concerns about [X’s] mental health and wellbeing, as:
a)[X] has consistently expressed significant resistance to spending time with his father for any overnight time
b)The Respondent has refused to spend time with [X] during alternative times offered by me.
c)[X] has not spent any time with his father since August 2021.
d)When I have tried to comply with the existing orders, [X’s] level of distress increased to the point that I have sought medical advice from [X’s] GP on multiple occasions.
e)[X] has threatened to harm himself with a knife and through jumping through the window if he is required to spend overnight time with his father.
f)[X] has threatened to harm his father if he is required to spend time with him.
g)[X] has threatened to run away is he has to spend time with his father.
h)On 27 October 2021, the father attempted to collect [X] from his school and [X] refused to leave with him.
i)The Respondent has expressed that he will continue to attend [X’s] school for changeover each Wednesday and alternate Friday for changeover against [X’s] wishes.
j)[X’s] psychologist has expressed concern about [X] being subject to another heightened emotional experience, referring to the father attending [X’s] school on 27 October 2021. He has expressed the importance of [X’s] boundaries being respected.
The mother contends in her affidavit sworn 15 December 2021 at [91] as follows:
I am concerned about the long-term impact on [X’s] mental health if orders are not made to suspend the Respondent’s time with him under the current parenting orders. As detailed throughout this Affidavit, [X] has been experiencing consistent heighted anxiety arising from the requirement that he spend overnight time with his father. This has manifested in [X] threatening to self-harm, threatening to harm his father and threatening to run away.
The matters raised by the mother are concerning but need to be read in the context of the evidence of the child’s then treating General Practitioner, Dr B.
In that respect, the father at [59] in his affidavit sworn 10 November 2021 made reference to a letter from the General Practitioner dated 19 August 2021 to the following effect:
I do not believe [X] is subjected to neglect or abuse in either of his parents’ care. The problem is [X’s] anxiety with the arrangements at his father’s place. This does not imply that this environment is abusive. I did not consider [X’s] risk of suicide severe enough to warrant a referral for psychiatric assessment through the Acute Care Team at the Sydney Children’s Hospital. I believe, if his anxieties are taken seriously and acted upon, his risk of self-harm is low at present.
The father in the next paragraph refers to an extract from a report from the same General Practitioner dated 24 September 2021 to the following effect:
He has threatened to self harm on several occasions – twice to stab himself with a kitchen knife and on 4 occasions by threatening to jump out the window.
These episodes appear to be attention seeking and attempts to manipulate the situation.
I do not consider him to be at genuine risk of self harm, as long as his anxieties are addressed and taken seriously. He will benefit from an initial 6 counselling sessions for 2021 under a GP MHCP.
Discussed with [X] alone – he is feeling relatively relaxed at present, but is adamant he doesn’t want to stay overnight at his Dad’s at this point, although he admits he misses his Dad.
I also note that between 27 August 2021 and 13 October 2021 the Mother states that she offered the Father time with the child including overnight time.
I note Mr F identifies that he has been seeing the child for fortnightly psychological interventions since 27 September 2021. In his report dated 7 December 2021 under the heading, ‘assessment and treatment’ the following is recorded:
Based on initial assessments, clinical observations and discussions, [X] presents with anxiety originally triggered during handovers to his father’s. This has since generalised into his performance and inability to complete tasks at school. [X] has become self-critical and refuses to complete tasks that may challenge him to avoid failure and criticism from others. [X’s] anxiety has recently escalated more severely since his father has attempted to pick him up from school. [X] has refused to leave school with his father, leading to what [X] has named as “arguing” between his father, mother and school Principal. [X] has become anxious about going to school in fear that his father would attempt to take him despite [X] stating he does not want to be with father. [X] has stated he loves spending time with him mother. Before and after appointments, [X] has been observed to be very talkative, affectionate and comfortable with his mother through physical touch and social overtures. [X] has stated in session “I just want to stay with mum.” [X] has stated he does not feel safe when he is with his father for the following reasons: says mean things about his mother to [X], his father’s girlfriend and her children; yells at him; and criticises him particularly with lack of interest and poor performance with physical activities.
Mr F makes a recommendation for the reintroduction of the father’s time in accordance with a schedule that is identified at page 11 of his affidavit, under the schedule there is recorded “This plan is in accordance to [X’s] wishes and consideration of his window of tolerance.”
At page 10 of the report, the psychologist records the following:
The recommended schedule is in accordance to a Gradual Exposure Plan which will be successful as long as [X’s] boundaries are respected. If [X’s] boundaries are not respected, there is risk that [X] may experience flooding to his nervous system, heightened anxiety and be at further risk of refusing time spent with his father again. This is not to say that [X] can demand everything he wants and his father must give it to him.
The mother contends that consistent with the recommendations of Mr F, that the orders sought in her amended application are ones that are in the best interests of the child.
Mr F’s schedule of time provides for six occasions of time between Christmas day and 5 February. There is no overnight time proposed.
I also note the mother’s affidavit filed 10 November 2021 at [43] and the statement that the child has told her that he had agreed to spend overnight time with his father.
On 29 November 2021 the mother’s solicitor sent a letter to the father which proposed that the child commence spending time with his father on 1 December 2021 for 10 occasions such that by 30 December 2021 the child was spending overnight time with his father. Clearly therefore, the mother was of the view as at 29 November 2021 that the child should be spending time with his father for significant periods of time. This letter was written after the incident at school on 27 October 2021.
I accept there is a difference between the mother’s proposal and the subsequent proposal of Mr F. It is not adequately explained to me what happened or changed between 29 November and 7 December being the date of Mr F’s report. It may just be a difference in view of what is best for the child.
To the extent that I am able to so and consistent with the need to act cautiously I take into account the risks identified in the reports of Dr B and Mr F referred to above including the extracts. I also place considerable weight on what the Mother considered her son could tolerate as set out in her solicitors letter dated 29 November 2021.
I confirm the ICL’s view that the injunctive orders that the parties agreed that they would enter into on a without admissions basis were regarded by the ICL as orders that would address some of the concerns in relation to the anxiety of the child.
Parenting proceedings are governed by the provisions of Part VII of the Act. Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
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 outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children. In applying the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the parents.
A meaningful relationship “is one which is important, significant and valuable to the child.” (Mazorski & Albright (2007) 37 Fam LR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 Fam LR 439) Attention is therefore directed to the benefit the relationship might have for the child.
Both parties consider it important that the child have a meaningful relationship with both parents. They just differ as to how to restore it.
The Full Court in Goode & Goode (2006) FLC 93-286 (“Goode”) mandated that this legislative approach must be followed in all parenting cases, and in particular sets out the procedural steps to be followed on an interim application, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.
I am not being asked to make orders for equal time.
Consistent with the guidelines outlined in Goode I have identified the competing proposals of the parties, the issues in dispute and to the extent necessary the contested facts.
As stated above, I am required when applying the primary considerations to give greater weight to the need to protect the child from psychological harm than to the benefit to the child of having a meaningful relationship with both of the parents. I accept that orders need to be made to address the child’s level of anxiety, balanced against both parties desire to see a reintroduction of time. The orders I propose address that balance. I place considerable weight on what the Mother thought to be in the child’s best interests as set out in her solicitor’s letter dated 29 November 2021.
In view of the orders the parties propose and the narrow issue the mandate in s 65DAA is addressed.
In determining what is in the best interests of the child, I will now consider the additional considerations insofar as they are relevant.
To the extent to which they are relevant, the mother submits that Mr F identifies that the proposal of time in his report is one that is in accordance with the child’s wishes. However I also note that the child is ten years of age and Mr F identifies that the child should not always get what he chooses.
I note that there would otherwise appear to have been a good relationship between the child and each of the child’s parents before the cessation of time in August 2021. The orders the Mother seeks on a final basis are consistent with such a proposition. She would not otherwise propose them.
I note that the current separation of the child from his father is undesirable and not one that either parent wants on a long term basis. In that respect I note that the mother’s final application remains that the father spend time with the child for four nights per fortnight and half school holidays.
There is no practical difficulty and expense of the child spending time with each parent.
Whilst each party points to deficits in the parenting capacity of the other I am in this circumscribed hearing unable to make findings other than to note the competing proposals of each party on a final basis are inconsistent with a view that the other parents parenting capacity is significantly comprised.
In light of the risk factors identified in Mr F’s report and in the reports of Dr B as well as what the mother thought best in her solicitors letter of 29 November 2021, I am of the view that the existing orders for time between the father and the child should be suspended during the currency of the Christmas school holidays. I am of the view that a block period of time between the father and the child in light of the limited expert evidence could have the potential risk of increasing the child’s anxiety and jeopardising the father’s long term relationship with the child.
I am of the view that a more graduated reintroduction to the existing orders is necessary over the forthcoming school holidays. I have placed considerable weight on what the mother thought was in the child’s best interests in her solicitor’s letter dated 29 November 2021. She of all people knows best what her child could tolerate.
I have no doubt that the father will be disappointed with this outcome. However, I am required to make a decision that sits in accordance with what I find to be the child’s best interests and I find the child’s best interests are that the child resume as soon as possible spending time with his father on a regular basis over the Christmas school holidays so that by the time school resumes in 2022 the child can return to the existing arrangements. I will make orders accordingly.
For the above reasons I decline to make the balance of the father’s orders for spending time with the child. The injunctive orders sought are addressed by the mutual undertakings. The issue of the passport is unnecessary to be dealt with at this time and can be addressed before Harper J as part of the final hearing.
For the reasons above I decline to make the mother’s orders for spending time. In relation to the mother’s orders for sole parental responsibility I decline to make that order. There is insufficient evidence before me that would enable me to be comfortably satisfied that it is an order in the child’s best interests. This is matter that is a live issue before Harper J and he is best placed to deal with it.
Beyond the question of conflict which I’m not confident that an order of sole parental responsibility will resolve, I was informed that the mother needed a sole parental responsibility order to be able to place the child’s name down for the purposes of securing a place at various schools. I propose permitting each parent to place the child’s name down at any school that they wish to do so for the purposes of securing a place on the implicit assumption that it does not represent an agreed position as far as the other parent is concerned and nor an acknowledgment that the other parent is required to contribute to the school fees. It is solely for the purpose of securing the child’s attendance at a school.
I also decline to make order 6 in the mother’s amended application in a proceeding listing the matter for a further interim hearing. The matter will standover before Justice Harper on 21 March 2022.
For the short form reasons referred to above the orders I make are ones that are in the best interests of the child.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 21 December 2021
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