SELLERS & BURNS - [2017] FamCA 431

FAMILY COURT OF AUSTRALIA

SELLERS & BURNS

[2017] FamCA 431

FAMILY LAW – CHILDREN – Interim parenting – Where parties in significant conflict – Where children are aged three and nearly seven – Where agreed that children shall live primarily with the mother – Where consideration of the children’s best interests – Where father has had significant engagement with the children – Where both mother and father have little insight into emotional needs of the children – Where appropriate that there be proscriptive orders for the children’s time with the father to limit conflict – Where orders sought by Independent Children’s Lawyer substantially appropriate – Where appropriate for presumption as to equal shared parental responsibility to apply.

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

Banks [2015] FamCAFC 36
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FamCAFC 104
George & George [2013] FamCAFC 182
Goode and Goode [2006] FamCA 1346
McCall & Clark [2009] FamCAFC 92
Marvel & Marvel[2010] FamCAFC 101
Mazorski v Albright[2007] FamCA 520
MRR v GRR [2010] HCA 4
SCVG & KLD(2014) FamCAFC 42
SS & AH[2010] FamCAFC 13

APPLICANT:

Mr Sellers

RESPONDENT:

Ms Burns

INDEPENDENT CHILDREN’S LAWYER:

Ms Soliman

FILE NUMBER:

PAC

5854

2016

DATE DELIVERED:

21 June 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

1 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Batey

SOLICITOR FOR THE APPLICANT:

Mcauley Hawach Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Schonell

SOLICITOR FOR THE RESPONDENT:

Karras Partners Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Soliman of Legal Aid NSW Parramatta Family Law

Orders, pending further order:

That orders 5, 6, 7 and 10 made 6 January 2017 be discharged.
That the mother and father have equal shared parental responsibility for the children F born … 2010 and D born … 2013.
That the said children live with the mother.
That the said children spend time with the father as agreed between the mother and father in writing, such writing to include SMS or email communication, and in default of agreement as follows:
(a)that the children spend time with the father during school terms in a two-week cycle being in the first week from after school/preschool Friday to before school/preschool Monday or 9.00 am Monday if not a school/preschool day and in the second week from after school/preschool Thursday to before school/preschool Friday or 9.00 am Friday if not a school/preschool day.
(b)that the children spend time with the father during forthcoming school holiday periods as follows:
(i)9.00 am 1 July 2017 to 6.00 pm 8 July 2017;
(ii)9.00 am 23 September 2017 to 6.00 pm 30 September 2017;
(iii)9.00 am 16 December 2017 to 6.00 pm 23 December 2017;
(iv)1.00 pm 25 December 2017 to 6.00 pm 26 December 2017;
(v)9.00 am 2 January 2018 to 6.00 pm 8 January 2018;
(vi)9.00 am 16 January 2018 to 6.00 pm 22 January 2018.
(c)that the children thereafter during midyear school term holidays in 2018 spend time with the father in the first half of the term 1, 2 and 3 school holiday periods with such time to commence at 9.00 am on the first Saturday of the school holiday period and to conclude at 5.00 pm on the following Saturday.
(d)from 9.00 am to 7.00 pm on Father’s Day.
(e)from 9.00 am to 7.00 pm on the father’s birthday where it falls on a weekend or during school holidays or otherwise from 3.00 pm to 6.00 pm where it falls on a school day.
That notwithstanding the above orders and subject to the parties’ agreement in writing otherwise the parties’ time with the children shall be suspended so that the children spend time with the parties as follows:
(a)for not less than three hours on each child’s birthday at a time to be agreed or in default of agreement from 3.00 pm to 6.00 pm with the parent who does not already have the children in their care on that day;
(b)from 9.00 am to 7.00 pm with the mother on Mother’s Day;
(c)from 9.00 am to 7.00 pm on the mother’s birthday where it falls on a weekend or during school holidays or otherwise from 3.00 pm to 6.00 pm where it falls on a school day.
That changeovers be facilitated as agreed between the parties in writing such writing to include SMS or email communication and in default of agreement and where changeovers are not to take place at school or preschool such changeovers will be effected outside the mother’s home.
That the father be permitted to travel with the children to the South Pacific on one occasion during the 2017 or 2017/2018 school holidays during the time the children are to spend with him provided that not less than seven days before the date on which the father proposes to travel with the children the father shall furnish to the mother in writing:
(a)the details of a qualified nanny to travel with and remain with the children throughout the trip;
(b)an accurate itinerary to include the departure date and return date and flight details;
(c)details of the address or addresses at which the children would be staying at all times and telephone contact numbers on which the children may be contacted during such times by the mother for the purposes of telephone contact as ordered;
(d)copies of the paid return airfares bookings in the children’s names.
It is specifically noted that Orders 8, 9, 10, 11 and 12 made on 6 January 2017 remain in force and effect.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5854 of 2016

Mr Sellers

Applicant

And

Ms Burns

Respondent

REASONS FOR JUDGMENT

The present interim applications for determination relate to parenting arrangements for the two children of the parties’ marriage.
Previous proceedings have been before this Court in relation to the issue of spousal maintenance and the reasons for judgment in those proceedings set out the context of the parties’ relationship: Burns & Sellers [2017] FamCA 242.
The subject children are F (“F”) born in 2010 who is now at school and D (“D”) born in 2013. The child attends preschool.
After the birth of F the mother took maternity leave and returned to work after about 18 months working thereafter about two days per week. The parties married in 2013 sometime after the birth of their first child. Subsequent to the birth of the child D the mother again took maternity leave, returning to work in August 2015 for two to three days per week.
The parties separated in October 2016.
Interim parenting issues were previously before Loughnan J on 6 January 2017 and relevantly interim orders in summary were made as follows:
a)that an Independent Children’s Lawyer be appointed to represent the children;
b)that the children live with the mother;
c)that the children spend time with the father as agreed between the parties and in default of agreement:
i)during the 2016/2017 Christmas school holidays from 10.00 am 11 January 2017 to 4.00 pm 14 January 2017 and from 10.00 am 20 January 2017 to 4.00 pm 24 January 2017;
ii)during school terms in 2017 in a two-week cycle in week one from the conclusion of school on Friday until 9.00 am Saturday and in week 2 from 9.00 am Saturday to 4.00 pm Sunday and each week from after-school Wednesday until before school Thursday for the child F and 11.30 am for the child D;
d)changeovers to be effected as agreed or otherwise if not taking place at school or preschool then outside the mother’s home;
e)telephone or other electronic communication with the children by each parent when the children are staying with the other parent between 5.00 pm and 6.00 pm daily or otherwise as agreed.
As can be seen, these interim orders make no provision for school holidays subsequent to the 2016/2017 Christmas school holiday period.
The parties returned for a further engagement as to interim parenting before the Senior Registrar on 22 March 2017 when orders were made providing for the children’s time with the father during the term one school holidays 2017 be from 9.00 am 8 April 2017 to 10.00 am 12 April 2017, from 9.00 am 16 April 2017 to 10.00 am 20 April 2017 and from 9.00 am 24 April 2017 to 10.00 am 25 April 2017.

The Applications

The father filed on 3 March 2017 an Application in a Case seeking among other things further interim parenting orders relating to the two children of the marriage.
The father seeks orders in that application as to his time with the children that in summary provide for the children to spend time with him:
a)during school term in a two-week cycle in week one from the conclusion of school on Friday or 3.00 pm until 11.00 am Saturday and in week 2 from 3.00 pm or the conclusion of school Friday until 9.00 am or the commencement of school on Monday and in each week from after-school Wednesday until the start of school for the child F and 11.30 am for the child D on Thursday;
b)for one half of each mid-year school holiday period being the first half in even numbered years and the second half in odd numbered years;
c)during Christmas school holidays on a week about basis commencing from the first Saturday of the Christmas school holiday period with the children to spend the first of such weeks with the father;
d)notwithstanding the previous orders that the children spend time with the father from 10.00 am 24 December to 2.00 pm 25 December in odd numbered years and from 2.00 pm 25 December to 6.00 pm 26 December in even numbered years;
e)from 4.00 pm on the Saturday of Father’s Day weekend until 7.00 pm on Father’s Day in each year;
f)from 4.00 pm until 8.00 pm on 6 August, 31 October and 10 December in each year.
The father relied upon the following affidavits:
a)affidavit of the father filed 6 January 2017 as to certain paragraphs;
b)affidavit of the father filed 3 February 2017 as to certain paragraphs;
c)affidavit of the father filed 10 May 2017;
d)affidavit of Mr H Sellers, paternal grandfather filed 2 February 2017;
e)affidavit of Mr I filed 2 February 2017;
f)affidavit of Ms J filed 2 February 2017.
The respondent mother provided to the Court a minute of orders sought by her at the interim hearing: Exh “G”.
Those orders relevantly in summary provide for the orders made as to school term time on 6 January 2017 to continue as is until the end of term 2, 2017 and thereafter the children spend time with the father during school term on alternate weekends from after school/preschool Friday or 9.00 am if not at school or preschool to 4.00 pm Sunday (extended to the Monday in 2018).
Otherwise, the mother proposed the children have time with the father as follows:
a)during midyear school holidays from 9.00 am the first day of the holidays until 4.00 pm on the fifth day;
b)during Christmas school holidays 2017/2018 from 9.00 am the first day of the holidays to 4.00 pm on the sixth day and then from 9.00 am on the first day of the fifth week to 4.00 pm on the fifth day later.
The mother, otherwise, sought orders as to the father’s time at Christmas, Father’s Day and birthdays and orders facilitating the father taking the children to the South Pacific on one occasion during 2017 school holidays in company with a qualified nanny.
The mother relied upon the following documents:
a)her affidavit filed 29 may 2017;
b)the affidavit of Ms K, maternal grandmother filed 29 May 2017.
The Independent Children’s Lawyer provided at the interim hearing a minute of order sought by her on behalf of the children: Exh “F”. The orders sought by the Independent Children’s Lawyer as contained in the Independent Children’s Lawyer outline of written submissions relevantly provide in summary as follows:
a)that the children live with the mother;
b)that orders made on 6 January 2017 as to the children’s time with the father during school term be discharged;
c)that the children spend time with the father during school term in a two-week cycle being in the first week from after school/preschool Friday to 4.00 pm Sunday and in the second week from after school preschool Wednesday to the commencement of school Friday;
d)that the children spend time with the father during forthcoming school holiday periods as follows:
i)9.00 am 1 July 2017 to 10.00 am 7 July 2017;
ii)9.00 am 13 July 2017 to 15 July 2017;
iii)9.00 am 23 September 2017 to 10.00 am 1 October 2017;
iv)16 December 2017 to 3.00 pm 24 December 2017;
v)3.00 pm 1 January 2018 to 10.00 am 9 January 2018;
vi)9.00 am 17 January 2018 to 5.00 pm 22 January 2018;
e)that the children thereafter during school term in 2018 spend time with the father for the first half of the term 1, 2 and 3 school holiday periods with such time to commence at 9.00 am on the first Saturday of the school holidays and to conclude at 5.00 pm on the day that is the half point day during such holiday period;
f)that during the December 2018/January 2019 school holiday period the children spend time with the father from 9.00 am on the first day of the holidays until 9.00 am two weeks later and from 9.00 am on the first day of the fifth week until 9.00 am one week later;
g)that the children spend time with the father from 9.00 am to 7.00 pm on Father’s Day and from 9.00 am to 7.00 pm on the father’s birthday where it falls on a weekend or during school holidays or otherwise from 3.00 pm to 6.00 pm where it falls on a school day;
h)that changeovers be as agreed between the parties where not at school or preschool and in default of agreement take place outside the mother’s home;
i)that notwithstanding the above orders and subject to the parties’ agreement in writing, otherwise, the parties’ time with the children shall be suspended so that the children spend time with the parties as follows:
i)for not less than three hours on each child’s birthday at a time to be agreed or in default of agreement from 3.00 pm to 6.00 pm with the parent who does not already have the children in their care on that day;
ii)from 9.00 am to 7.00 pm with the mother on Mother’s Day;
iii)from 9.00 am to 7.00 pm on the mother’s birthday where it falls on a weekend or during school holidays or otherwise from 3.00 pm to 6.00 pm where it falls on a school day;
j)that the father be permitted to travel with the children to The South Pacific on one occasion during the 2017 school holidays during the time the children spend with him provided that not less than 14 days before the date on which the father proposes to travel with the children the father furnishes to the mother the details of a qualified nanny to travel and remain with the children throughout the trip, an accurate itinerary, details of the address(es) at which the children will be staying, copies of return airfares in the children’s names and telephone numbers at which the children can be contacted.
To suggest that the discrete issues for determination between the parties are almost non-justiciable would be an understatement and mostly could have been resolved by common sense with regard to the welfare of the children. The issues for determination between them demonstrate that both parties have little insight into the need for these young children to have a settled and meaningful relationship with both of their parents.
Both proposals involve numerous changeovers that can only be unsettling for the children. The orders proposed by the Independent Children’s Lawyer seek to address this and other issues.

The father’s evidence

Subsequent to separation the parties attended mediation and agreement was reached that the children would live with the mother and spend time with the father as agreed.
Having regard to the issues that have now arisen such an agreement appears to be a triumph of hope over reality. The agreement exhibited to the father’s affidavit demonstrates the parties’ willingness to engage in minutiae relating to the children, most of which should have been capable of being resolved with the application of common-sense.
The father continued to have an active engagement with the children post separation taking the children or either of them to rugby, swimming, soccer and nippers, being engaged in reading groups and facilitating some pickups from school and preschool.
There appears no issue that the father has had a significant and involved engagement with the children, although the mother was and continues to be their primary carer.
As at 6 January 2017 the father asserts that the mother had only permitted the child F to stay with him overnight two nights a week and had not permitted the child D to stay overnight with him at all since late October 2016. Interim orders addressed that complaint.
The father raises issues in relation to the mother’s concern as to his alleged excessive alcohol consumption. However, in circumstances where the mother’s position is that the children will spend continuous overnight time with the father, it appears that there must be no perceived risk of harm to the children and the issue was otherwise addressed by orders made on 6 January 2017 restraining both parties from excessive consumption of alcohol or the consumption of non-prescribed drugs prior to and at times when the children are spending time with each of them.
The father asserts that the child F has expressed a wish to spend equal time with him.
Otherwise, the father identifies that both children have a close and loving relationship with the paternal grandfather and have spent regular time at the grandfather’s farm since they were born. The paternal grandfather is clearly supportive of what he sees as a strong and loving relationship between the children and the father.
Unfortunately the director of the child F’s preschool has elected to become engaged in the parenting conflict between the mother and father. She speaks well of the father’s engagement in the child’s preschool and its activities in the period from January 2013 to January 2016 at which time the child commenced formal schooling.
Regrettably, the father’s affidavit evidence has a strong self-serving tenor about it and is deprecating of the mother. The same can be said of the mother’s affidavit material. Such is reflective of the nature of their present relationship.
The father expresses concerns that the mother has inappropriately engaged the children in the issues between the parents.
The father proposes in the forthcoming June/July school holidays that he be able to take the children overseas to the South Pacific for a holiday with his family for nine nights. Such period representing a significant proportion of the school holiday period and absence from the mother. To facilitate that trip he seeks that the children be able to spend time with him during the holidays in one block period.

The mother’s evidence

The mother says that she is in good health save that she is recovering from a stress fracture of her hip that she suffered in September 2016. She further asserts that she is suffering from stress and anxiety as a consequence of the breakdown of her relationship with the father.

The mother presently does not work and devotes her full-time care and attention to the children, save for short periods when she utilises the assistance of a babysitter.
The mother asserts that until October 2015 the father worked long hours and was frequently away from the home. She asserts that the father demonstrated, at least to her, a lack of close engagement with the children during the early years. Yet he has had significant engagement post separation.
The mother is assisted by the maternal grandmother as required in relation to the care of the children.
The mother has been the primary carer of the children. There is concession by the father that the children are to live primarily with the mother.
The mother also devotes significant portions of her affidavit material to deprecating the father, his engagement with the children, his overall conduct towards her and his asserted abuse of alcohol. She further complains, like the father about her, as to the father inappropriately engaging the children in parenting issues.
The mother makes various allegations as to conduct by the father during their cohabitation that she asserts was family violence. A determination of that issue will need to await final hearing when all the evidence can be tested.
The mother makes complaint about what she perceives to be the father’s lack of supervision of the children yet on her own case seeks that they spend continuous periods with him.
The mother asserts that subsequent to the block periods provided for the children to spend time with the father during the 2016/17 Christmas school holidays the child F returned sunburnt and constipated. The child she asserts subsequent to his return to her care was very clingy and sought to be close to the mother. This would be expected as the child was barely three years of age when he during those holiday periods was first separated from his primary carer for a period of time.
The mother further asserts that after school holiday time during the term 1 school holidays the children were returned on one occasion overly tired, physically exhausted, dirty and hungry. The children she said were unsettled with tantrums and fighting following their return. Yet she seeks to continue the arrangement that the children spend block time with the father during holiday periods.
As to overseas travel the mother says that the children have travelled to the South Pacific with the mother and father and friends on a previous occasion. The father, she says, has never travelled interstate or overseas with the children without her being present. She expresses some concerns as to the father’s capacity to appropriately care for the children during any overseas holiday and seeks that he be assisted by a nanny. The Independent Children’s Lawyer supports such assistance.
The mother complains of ongoing harassment by the father by refusing to allow her to speak to the children on the phone when they are with him, by him attending at her home in her absence without her consent, by failing or refusing to return the children’s school uniforms, clothes and children’s belongings after the children spend time with him or returning the children to her dressed inappropriately in underwear and a T-shirt.
She has had occasion to report her concerns as to the father’s behaviour to the New South Wales police on several occasions and the Department of Family and Community Services has received notifications of concern as to aspects of their relationship.
The mother is supported in her application by the maternal grandmother who gives evidence as to her ongoing engagement with the children.

The Child Responsive Program Memorandum

The Memorandum (Exh “C”) was prepared by the family consultant following interviews with the parties and the older child in March 2017.
Key issues were identified as:
a)the children’s live with and spend time with arrangements;
b)the children’s exposure to conflict;
c)changeovers and unilateral decision making;
d)allegations that the father misuses alcohol and that the mother used/uses cocaine;
e)the children’s relationship with each parent;
f)the children’s telephone contact with the parent with whom they are not spending time.
It is otherwise clear from the memorandum that both parents and, to some extent, extended family have inappropriately engaged the children in the dispute before the Court.
The consultant’s observations of both parents with the children were unremarkable and evidenced a warm and close relationship between the children and each of the parents.
The memorandum evidences the parties’ continuing willingness to make adverse allegations one against the other particularly as to issues that would suggest some risk to the children in either household. Yet each of the parties proposes significant time with the other parent.
Surprisingly, having regard to their respective mutual allegations, the father ingenuously suggested to the consultant that he and the mother “were able to communicate and be physically near each other without conflict”.
In evaluation the consultant opined:
44.This assessment provides initial expert advice to the family and to the Court about the issues and the children’s needs.
45.There appears to have been a significant event of conflict post separation which the children were exposed to. Mr Sellers’s report that he took the children from a swimming pool because Ms Burns had taken them to the maternal aunt’s, raises concerns about Mr Sellers reacting to a perceived wrong-doing without considering the effect on the children or prioritising their needs above his. Both parties should refrain from making any unilateral decisions about the children or their arrangements. If an agreement cannot be reached or one of the parties rescinds on an agreement, either party acting despite this only raises opportunity for conflict to occur and prioritises their own needs above the children’s, which is likely to have a negative impact on the children and their relationships.
46.It would appear that the parties may benefit from having specific interim Orders (including telephone time) so as to limit the need for negotiation between the parties around the children’s spends time arrangements.
47.Concerns were raised about Mr Sellers’s alcohol use. It is noted that he agreed to not consume alcohol beyond the legal driving limit while spending time with the children, however, Ms Burns raised concerns that he would not comply with Court Orders, which is a matter for the Court. Concerns were also raised about Ms Burns’s previous and/or current drug use, which is also a matter for the Court.
48.Although Mr Sellers considered that he and Ms Burns were able to communicate effectively, Ms Burns did not appear to share this view, and considered Mr Sellers a bully and raised concerns about him harassing her if he did not get his way. Allegations of family violence were also made against Mr Sellers, which he denied. This will be a matter for the Court’s determination.
49.The parties may benefit from attending a post separation parenting course.
The consultant recommended the appointment of an Independent Children’s Lawyer and that a family report be obtained.
At least it is some credit to the parties that subsequently they have been able to appoint an agreed single expert psychologist to prepare a report for the Court at an early date.

Interim Parenting

In Marvel & Marvel[2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence in the following terms:
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
121.…………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.”
122.Later, at paragraph [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 Deiter & Deiter [2011] FamCAFC 82 the Full Court was particularly concerned with the situation where the contested facts related to an assessment of risk and said at [61]:
… Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
In George & George [2013] FamCAFC 182 the Full Court confirmed that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.
In Eaby & Speelman (2015) FamCAFC 104 the Full Court on the same issue relevantly observed:
18.…that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
In Banks [2015] FamCAFC 36 the Full Court said:
47. As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
48. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
49. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD(2014) FamCAFC 42.
50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

The Law

The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where:
a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence [s 61DA(2)],
b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].
The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
If a parenting order is to be made by consent and the order provides or is to provide for equal shared parental responsibility the Court may but is not required to consider equal or substantial and significant time [s 65DAA(6)].

Best Interests

The Primary Considerations: s 60CC(2)

The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

Section 60CC(2)(a) – “meaningful” relationship:

In Mazorski v Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
It is clear from the consultant’s memorandum that the children enjoy a good relationship with both parents. There is no issue that the children are to live primarily with the mother and indeed spend substantial and significant time with the father. In all the circumstances such arrangements would represent a continuation of the children’s meaningful relationship with both parents. The reservation is that should the parents not reflect upon their past conduct in terms of engaging the children in the conflict and their own conflict in the presence of the children, then harm may be done to these young children.

Section 60CC(2)(b) – need to protect.

This factor is certainly raised by both parties in the context of the allegations they make one against the other. Yet the father is agreeable to the children living primarily with the mother and the mother is agreeable to the children spending essentially substantial and significant time with the father. In such a circumstance it can only be hoped that such allegations are not inappropriately ventilated at any final hearing.
The protective issues then that arise are those that address the ongoing conflict between the parties. It is clear that the present order for telephone contact each day is causing conflict between the parties and is used as a tool one against the other. Both parties need to moderate their behaviour and facilitate the order being appropriately implemented.
The mother complains of the father’s conduct in failing to return clothing and other items following the children’s time with him, particularly school uniforms. Such a circumstance, it is to be inferred, could be distressing to the children and of course leads to even further conflict between the parties. In this regard it would appear in the children’s best interests that the father’s weekend time that is agreed to commence subsequent to the conclusion of the school day/preschool day conclude on the father’s weekend at school/preschool on Monday. He will need to present the older child to school in uniform ready for the day. Mid-week time should also conclude on the morning of a school day with the mother collecting the children from school at the end of the day to reduce the need for the parties to exchange or return any of the children’s uniforms or belongings at changeovers. As for weekend time and holiday time it is reasonable for the father to have mostly his own clothing for the children so as to avoid conflict and complaint.

There have been too many changeovers at which the Independent Children’s Lawyer expressed concern. This can be addressed with the children spending the longer weekend period with the father and his midweek time being reduced to a shorter period to avoid unnecessary disruption to the children and hopefully to give them a sense of primary residence with their mother.

The Additional Considerations:

Section 60CC(3) sets out the additional considerations. Regard has been had to all. Relevantly in this matter:
a)any views expressed by the children and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views;
The children are of an immature age and have been engaged by either or both parties in the issues before the Court. No weight should be attached to any views asserted to be expressed by the older child.
b)the nature of the relationship of the children with:
i)each of the children's parents; and
ii)other persons (including any grandparent or other relative of the children);
The children’s relationship with both parents has been considered above and orders will be made to ensure that those relationships continue to be meaningful to both children. The children, otherwise, have appropriate engagement with extended paternal and maternal family and this can continue to be facilitated by each parent.
c)the extent to which each of the children's parents has taken, or failed to take, the opportunity:
i)to participate in making decisions about major long-term issues in relation to the children; and
ii)to spend time with the children; and
iii)to communicate with the children;
This consideration is of little utility in the context of these interim proceedings. There is no issue that both parents, notwithstanding their behaviour to each other have been appropriately engaged in the children’s lives. They need to be mindful of exposing the children to their interpersonal conflict.
ca)…
d)the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from:
i)either of their parents; or
ii)any other child, or other person (including any grandparent or other relative of the children), with whom they have been living;
Effectively the proposals of both parents are such as to tinker around the edges in relation to the current arrangements and to make arrangements for forthcoming school holiday periods. There is most likely to be no effect of any such change on the children as contemplated by this consideration. Changes will give the children a settled routine.
e)…
f)the capacity of:
i)each of the children's parents; and
ii)any other person (including any grandparent or other relative of the children);
to provide for the needs of the children, including emotional and intellectual needs;
The conduct of the parents has been considered above and both demonstrate little understanding as to the appropriateness of their ongoing behaviour in terms of the children and the children’s needs particularly their emotional needs such as to be removed from conflict and any engagement in the issues for determination before the Court. It is hoped that moving into the future both parents will demonstrate an appropriate capacity to meet the needs of the children in this regard. If not, then orders may be the subject of substantial change at a final hearing.
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children's parents, and any other characteristics of the children that the court thinks are relevant;
The children are both young and immature. The mother’s evidence is indicative of a close dependent relationship with her whilst they are developing the ability to appropriately separate from her and spend more extended periods of time with the father.
h)…
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
As discussed above both parents by reason of their ongoing conflict and the exposure of both children to such conflict have demonstrated to date inappropriate attitudes to the children and their responsibilities of parenthood. It could only be hoped that comments made in the context of these reasons for judgment will see significant improvement in their mutual relationship in so far as it impacts on the children.
j)any family violence involving the child or a member of the child's family;
As referred to above there are allegations and counter allegations as to family violence the outcome of which will await final trial if indeed such assertions are relevant to orders to be made in the best interests of the children.
k)if a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:
i)the nature of the order;
ii)the circumstances in which the order was made;
iii)any evidence admitted in proceedings for the order;
iv)any findings made by the Court in, or in proceedings for, the order;
v)any other relevant matter;
There is no current family violence order, although there is reference in the consultant’s memorandum to an order being made for the protection of the mother in 2015. Otherwise, there is no evidence as to such order before the Court.
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 the child;
These are interim proceedings and orders made will continue pending either final hearing or settlement between the parties.
m)any other fact or circumstance that the Court thinks is relevant.
There is no other relevant fact or circumstance.

The Presumption: Parental Responsibility

The Court is satisfied that in all circumstances of this matter the presumption as to equal shared parental responsibility should apply. There are significant outstanding evidentiary issues in respect of which the parties are in direct conflict. It may well be that the allocation of parental responsibility is revisited at final hearing.
An order will accordingly be made that the parties have equal shared parental responsibility for the children.
It is clear that these parents need clarity as to ongoing parenting arrangements in relation to the children. It is to be expected that they will appropriately comply with orders to be made.
Having regard to the best interests of the children as discussed above and having a particular regard to the orders proposed by the Independent Children’s Lawyer on behalf of the children, it is appropriate that orders be fashioned substantially as sought by the Independent Children’s Lawyer. Such orders will avoid multiple changeovers and consolidate the children’s time with the father, ensuring that they have some stability pending final hearing.
Orders will accordingly be made as set out at the forefront of these reasons for judgment.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 21 June 2017.

Associate:

Date: 21 June 2017