SHAW & COOPER

[2015] FCCA 777

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHAW & COOPER [2015] FCCA 777

Catchwords:
FAMILY LAW – Parenting – interim hearing – spend time with arrangements – parenting plan.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 63C, 64B, 65DAB

Goode & Goode (2006) FLC 93-286
McCall & Clark [2009] FamCAFC 92

Applicant: MR SHAW

Respondent: MS COOPER

File Number: SYC 7566 of 2014

Judgment of: Judge Monahan

Hearing date: 27 January 2015

Date of Last Submission: 27 January 2015

Delivered at: Sydney

Delivered on: 27 January 2015

REPRESENTATION

Counsel for the Applicant: Mr Longworth

Solicitors for the Applicant: Swaab Attorneys

Counsel for the Respondent: Mr Johnston

Solicitors for the Respondent: Abrams Turner Whelan Family Lawyers

ORDERS

THE COURT ORDERS THAT:

1. All extant applications be adjourned to this Court on a date and time to be fixed upon the release of the expert report for mention (“the mention hearing”).

2. The objection to the subpoena filed 13 January 2015 be withdrawn.

AND THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

1. X born (omitted) 2008 (“the child”) live with the Applicant Father.

2. The child spend time with the Respondent Mother as follows:

   (a)On Mondays:

   (i)During school term from after school until 7:00pm (with the mother to feed the child dinner);

   (ii)During school holidays from 8:00am to 5:00pm;

   (b)On Wednesdays:

   (i)During school term from after school until 7:00pm (with the mother to feed the child dinner);

   (ii)During school holidays from 8:00am to 5:00pm;

   (c)On alternate Fridays commencing 6 February 2015:

   (i)During school term from after school until 7:00pm (with the mother to feed the child dinner);

   (ii)During school holidays from 8:00am to 5:00pm;

   (d)Each alternate weekend commencing 31 January 2015;

   (i)From 9:00am until 5:00pm Saturday; and

   (ii)From 9:00am until 5:00pm Sunday.

   (e)The child’s time with the Mother be suspended and the child live with the father at the following times:

   (i)On the Father’s birthday;

   (ii)On father’s day

   (f)The child’s time with the Father be suspended and the child spend time with the Mother at the following times:

   (i)On Mother’s day from 9:00am until 5:00pm

   (ii)On the Mother’s birthday from after school until 7:00pm (if a school day) or 9:00am to 5:00pm if a weekend.

3. The Mother be at liberty to have telephone contact with the child between 5:00pm and 6:00pm on those days he is not in her care.

4. On school days, unless otherwise agreed, the Mother be responsible for collecting the child at the commencement of the child’s time with her time and returning the child to the Father at his residence or such other place as agreed at the conclusion of such time.

5. On non-school days, unless otherwise agreed, the Father be responsible for delivering the child to be the Mother at the commencement of all times the child is to come into the Mother’s care at such places as agreed or, failing agreement, the Mother’s residence and the Mother be responsible for returning the child to the Father at his place of residence at the conclusion of such times at such place as agreed or, failing agreement, the Father’s residence.

6. Pursuant to r.15.09 of the Federal Circuit Court Rules 2001, Dr R, child and family psychiatrist, (or such other expert as agreed) be appointed as single expert witness to enquire into and report upon matters relating to the welfare of the child and that in preparing their report to the Court, the expert be requested to consider the following matters:

   (a)Whether the child is at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;

   (b)Any views expressed by the child and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those issues;

   (c)The relationships between the child and each of his parents and any other relevant person;

   (d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the parents or any other person with whom the child has been living;

   (e)The capacity of each parent or any other person to provide for he needs of the child, including emotional and intellectual needs;

   (f)The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents;

   (g)The effect upon the child of any family violence to which he may have been exposed and the need to protect the child from being exposed to family violence in the future;

   (h)The mental state and any diagnosis of both parents insofar as it relates to parenting issues and their willingness to address such issues it hey exist;

   (i)The mental health of the child and any recommendations of therapeutic counselling if appropriate for the child;

   (j)The benefit to the child of having a meaningful relationship with both of his parents; and

   (k)Any other matter the Court expert considers relevant.

7. Each party be responsible for one half of the costs of the preparation of the expert report.

8. The parties have liberty to apply in relation to paragraphs 8 and 9 herein.

9. The Mother cause the child’s school bag to be returned to the Father before the commencement of school tomorrow.

10. Each party ensure that the child is wearing a life jacket at all times when on any water-based vessel when required by law.

11. Each party be and is hereby restrained from the following:

    (a)Denigrating the other party, or any member of the other party’s family, to or in the presence or hearing of the child, or allowing any other person to do so; and

    (b)Discussing these proceedings with the child.

THE COURT NOTES THAT:

A.The issue of the supervision of the child’s time with the Father was not pressed today.

B.The Father provided the Court with an undertaking not to disclose the Mother’s address to any third party, including to the Mother’s family.

C.The Court expects the parties to participate in mediation following the release of the expert report prior to the mention hearing.

D.The purpose of the mention hearing is to:

(a)consider the expert report;

(b)receive an update on the progress of the parenting arrangements;

(c)consider the outcome of any mediation; and

(d)make further directions in the matter which may include consideration of listing this matter for final hearing.

E.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 7566 of 2014

MR SHAW

Applicant

And

MS COOPER

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a parenting application by MR SHAW (“the father”) against MS COOPER (“the mother”). The relevant child of the relationship is X born (omitted) 2008 (“X” or “the child”).

2. This decision only concerns interim parenting arrangements, and in particular, whether, until further order, X should remain living with the father or return to live with the mother. Depending on the Court’s decision in respect of the issue of interim residence, the ‘spend time with’ arrangements are also in dispute.

3. There is also a dispute as to whether the mater may benefit from a Regulation 15 expert report in lieu of a family report.

4. Both parties were legally represented before me today by counsel; the father, by Mr Longworth and the mother by Mr Johnston.

5. I have excused counsel from appearing at the delivery of these reasons this afternoon.

6. Any statutory references made during the course of these reasons will be to the Family Law Act 1975 (“the Act”).

Background

1. The father was born on (omitted) 1981 and the mother on (omitted) 1982. The parties commenced cohabitation in 2007 (in January according to the father, and in July according to the mother). The parties separated in January 2010. Their child, X, was born on (omitted) 2008 and is currently 6 years of age.

2. I note that both parties provided the Court with case outline documents that incorporated detailed chronologies which may provide further background information.

Issues and Proposals

1. As stated, the issues for this decision are:

   a)whether in the short term, X should primarily live with the father or with the mother;

   b)depending on which parent the child is primarily living with, the ‘spend time with arrangements’. The father’s proposal is set out in his minute of orders attached to his case outline document, noting that in that minute the father only proposes what could be described as ‘day time’ to be spent (in other words, he is not proposing that the time spent include overnight time). The mother’s proposal is similarly set out in the minute of orders included in her case outline document. Her proposal does reflect the arrangements that appear to have been in existence prior to the child coming into the father’s full time care late November/early December and further reflects the parenting plan that the parties entered into approximately 12 months ago.

   c)whether the matter may benefit from an expert report from a child and family psychiatrist, as the father seeks, rather than a family report from a Court-based or Regulation 7 family consultant, as the mother seeks.

2. There is general agreement in relation to changeover. The parent who the child is living with or spending time with will collect and return the child to the relevant school on the relevant days. In relation to other occasions, there appeared to be agreement that the parent who has the child on any particular occasion deliver the child to the other parent at the commencement and return on such occasions.

3. There was also agreement in respect of there being orders for the following (and in no particular order):

   a)that the parties refrain, or cause any third party to refrain from physically disciplining the child;

   b)not to discuss these proceedings with the child or in the hearing of the child and allowing a third party to do so;

   c)mutual non-denigration; and

   d)a specific issue, that is ensuring the child is wearing a lifejacket when on any boat which it might be described as not licensed to commercially convey members of the public, such as a pleasure boat or a small craft.

4. The father also agreed, or undertook, not to disclose the wife’s new residential address to any member of the wife’s family. When I refer to the wife’s family, I understand the objection to be to the maternal grandmother, the maternal aunts (there being two), and the maternal uncle.

5. I note the father no longer presses for the mother’s time with the child to be supervised.

Evidence

1. The father relies on his affidavit sworn and filed on 20 January 2015. He also provided the Court with a case outline document that incorporates the minute of orders sought.

2. The mother relies on her affidavit, sworn and filed on 23 January 2015, and she also provided the Court with a case outline document incorporating the minute of orders sought.

3. In addition, both parties tendered quite a number of documents produced under subpoena:

   ·Tagged documents in material produced by NSW Family & Community Services (AF1);

   ·Tagged documents in material produced by NSW Family & Community Services (RM1);

   ·Tagged documents in the material produced by NSW Police (AF2);

   ·Tagged documents in the material produced by (omitted) Local Health District (AF3);

   ·Letter from Swaab Attorneys to ATW dated 18 December 2014 (AF4);

   ·Letter from Swaab Attorneys to ATW dated 19 January 2015 (AF5);

   ·Copy of the document produced under subpoena from Cth Human Services along with material printed from Wikipedia on 27.1.15 regarding the listed drug names (RM2); and

   ·Letter to the Father from the CSA dated 10 September 2014 (AF6).

4. I note that the mother withdrew her objection to the subpoena to the Commonwealth Department of Human Services, and somewhat ironically tendered some material arising from that subpoena during the course of these proceedings. So as part of today’s orders the Court will allow the mother to withdraw that subpoena objection.

Child Dispute Conference Memorandum

1. When the matter first came before me as an urgent matter on the duty list on 4 December 2014, I determined that there was merit in referring the parties to a duty or urgent Child Dispute Conference (“CDC”). The parties duly attended with Family Consultant, Ms M. Following the CDC Ms M provided the parties of the Court with a comprehensive memorandum.

2. The memorandum stated the following:

   “Summary of agreement(s) reached

   X will remain living with his father for the time being

   Issues remaining in dispute

   Whether or not Ms Cooper poses a risk to X’s safety

   Family safety factors

   Mr Shaw said that he was contacted by Ms Cooper’s mother and sister due to concerns that they allegedly have about Ms Cooper’s mental health. He said that he has been told that Ms Cooper has been screaming and yelling at people and that the police have been called to her home on two or three occasions over the past fortnight. Mr Shaw also said that he has noticed some unusual incidents, like X not being dressed properly and him complaining about his mother yelling and smacking him.

   Mr Shaw said that Ms Cooper’s mother and sister called the local mental health team to conduct an assessment however Ms Cooper refused to engage with them and so they called him.

   Ms Cooper described a dysfunctional history of family relationships in her family of origin. She said that she and X have been living with her sister and her sister’s partner and her sister’s children for the last six months. Ms Cooper said that her sister is in a violent relationship and that police have been called to their home as a result of this. She said that her sister took steps to have an AVO in relation to her partner but then did not pursue it at Court. Ms Cooper said that her sister allowed this man to move back into the home and she (Ms Cooper) disapproved and so cut off contact with her sister and her sister’s family. She said that her sister was upset about this and that they argued. Ms Cooper said that her sister spoke to their mother who then sided with her sister and she (Ms Cooper) argued with her mother. She said that her mother called the police on 2 December 2014, but that the police took no action.

   Ms Cooper is aware of the concerns raised about her mental health. She said that she voluntarily attended the (omitted) mental health team on 3 December 2014 and has a brief report from them. Ms Cooper said that the report does not suggest that she has a mental illness.

   Issues relating to the children

   X is almost 6 years old. He has been primarily cared for by his mother since birth but has spent significant time with his father. Both parents describe the other as “good parents,” with Mr Shaw clarifying that Ms Cooper is a good mother when things are going well.

   Apparently X believes that there is something wrong with his mother and that she needs to get better. This is likely to worry him. It is in X’s best interests to see his mother and know that she is all right.

   Ms Cooper will be moving out of her sister’s home today. She is able to stay with a friend temporarily and until she secures more permanent accommodation. Ms Cooper has agreed for X to remain living with his father until she is able to find somewhere to live. She said that she has access to funds which make this possible.

   Mr Shaw indicated that he has not seen a report from (omitted) mental health, and in any case has some concerns about the depth of assessment that might have been conducted. He would like Ms Cooper to undergo a more thorough psychiatric assessment before he will feel satisfied that X is not at risk in her care. Ms Cooper said that she is prepared to undertake a more thorough psychiatric assessment but does not agree to supervision given she already has a report from the agency that Mr Shaw asked her to attend. She would like X to be returned to her care as soon as possible.

   In the meantime, Ms Cooper would like to spend time with X every afternoon after school up until 5PM on Monday, Wednesday and Thursday and up until 7PM on Tuesday and Friday. She would like to spend time with him on the weekend and in particular on Saturday 6 December 2014 from 8AM until 7PM.

   If the Court finds that Ms Cooper poses a risk to X, both parents agree that X’s godfather “Mr R” would be an appropriate supervisor if he signs an undertaking to the Court to ensure X’s safety. Both parents agree that they will accommodate his availability.

   Mr Shaw said that, should a psychiatric assessment indicate that Ms Cooper does not pose a risk to X, and she has stable accommodation, he would like to alter the current arrangement to 50/50 shared care.

   Issues impeding resolution

   Whether or not Ms Cooper has a mental illness or the events of the past few weeks are related to stress caused by family dysfunction.”

Submissions

1. Each party’s counsel presented oral submissions today in addition to the material in the case outline documents. The transcript for the interim hearing heard around luncheon today will, of course, reflect those reasons. I do not propose to summarise those submissions in any detail at this point of these reasons, but I will refer to them where relevant during the course of these reasons.

Law and Discussion

1. All parenting proceedings are governed by the provisions of Part VII of the Act. Parenting orders are defined in s.64B of the Act, and deal with where a child lives which relevant to this dispute, and in addition, the time that a child spends with another parent or person. Parenting orders also deal with the allocation of parental responsibility.

2. Section 60CA of the Act provides as follows:

   “In deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.”

3. Section 60CA through s.60CC of the Act deals with how the Court determines the best interests of a child. This is sometimes referred to as the ‘legislative pathway’. The most relevant to these parenting proceedings that are before me presently are the primary considerations in s.60CC(2) and the additional considerations in s.60CC(3) where relevant, and I will consider those briefly in a moment. Before doing so, I’ll make some general comments about the process of how the Court determines interim parenting disputes, and the law relevant parental responsibility and parenting plans.

Interim parenting proceedings

1. In addition to the relevant statutory criteria, the Court is guided by case law relevant to interim parenting disputes including the Full Court’s decision in Goode v Goode (2006) FLC 93-286 (“Goode”). At this point, I note the following observation of the Full Court at paragraph 81 of Goode that:

   “In making interim decisions, the court will still often be faced with conflicting facts, little helpful evidence and disputes between parents as to what constitutes the best interests of the child.”

2. Clearly this matter is such a case. More specifically, it raises the reality that the Court cannot fully determine issues of credit at an interim hearing as the hearing is truncated, proceeds by way of submissions only and the evidence being presented by the parties is often still being assembled and is not tested by cross-examination. That all having been said, the Full Court in Goode made it clear that the legislative pathway must, however, be followed. In other words, the relevant provisions of the Act post the 2006 and 2012 amendments must be followed.

Parental Responsibility

1. The Court was not asked to consider the issue of parental responsibility or, more particularly, the presumption in favour of equal shared parental responsibility, as part of this decision. The dispute was simply limited to the issues previously outlined. Nevertheless, by making a parenting order the Court notes that s.61DA of the Act incorporates a presumption that the Court is required to consider when it makes a parenting order – namely, that the Court must apply a presumption that is in the best interests of the child concerned for the child’s parents to have equal shared parental responsibility.

2. That said, exceptions based on family violence, and/or the best interests of the child concerned, do exist. Moreover, and of direct relevance to this proceeding, is s.61DA(3), which states:

   “When a court is considering an interim order, the presumption applies unless the court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order.”

   This provision was discussed by the Full Court in Goode.

3. At the commencement of the interim hearing this afternoon I indicated to the parties that I had formed the preliminary view that, pursuant to s.61DA(3) of the Act, it would not be appropriate for the Court to consider issues of parental responsibility for this interim decision, and I note that neither party sought to address the Court in respect to that issue.

4. As the issue of parental responsibility will not be considered as part of this decision there will be no order as to parental responsibility made by the Court today. That said, the Court reminds the parties, and in particular the party with whom the child will primarily be residing in the short term, that decision-making relevant to parental responsibility should be consultative, particularly given that both parties are legally represented.

5. Given there will be no order for equal shared parental responsibility being made today, s.65DAA of the Act is not trigger and, thus, will not be considered as part of this decision.

Parenting Plans

1. The Act specifically encourages parents to enter into parenting plans. Parenting plans are intended to provide a simple and formal process for formalising agreements about parenting between parents. Formally, a parenting plan is defined by s.63C of the Act as an agreement that is in writing, signed and dated, is or was made between parents of the child, and deals with certain matters.

2. I note that parenting plans can include child support provisions, although, to be effective, the plan must be combined with a child support agreement.

3. Changes introduced to the Act on 7 June 2012 require or impose an obligation on lawyers, family dispute resolution practitioners, family consultants, and counsellors, to advise parents that they can consider a parenting plan. If they advise on such a plan there is a long list of compulsory information that must be given to the parents, which includes the obligation to explain in simple language the availability of programs designed to help parents if they experience difficulties in complying with their obligations under the plan.

4. In this case I note that the relevant parenting plan was dated 25 January 2014 that is, only 12 months ago. Consequently, the Court can only assume, in the absence of evidence to the contrary, that the adviser, Kids First Mediation, carried out their statutory obligations prior to the parties entering into the parenting plan. The plan itself is clearly drafted, in my view, comprehensive.

5. I note that parenting plans may be varied or revoked by further written agreement, although there is no evidence that that occurred in this case.

6. Unlike child agreements that existed under the pre-Family Law Reform Act period, and parenting plans registered prior to 2004, parenting plans can no longer be registered with the Court. Consequently, they are not enforceable by a Court, like a Court order is.

7. I note again that the parenting plan before me was entered into in 2014 and, consequently, it could not be registered under the Act in any event.

8. Nevertheless, it is important to note that s.65DAB of the Act, if the Court is considering making a parenting order in relation to a child (and clearly, that is what the Court is required to do this evening) the Court is to have regard to the terms of the most recent plan, if any, that has been entered into between the child’s parents to the extent to which the plan relates to the child if doing so would be in the interests of the child.

Primary Considerations: s.60CC(2)

1. Section 60CC(2)(a) requires the Court to consider the benefit of a child having a meaningful relationship with both of the child’s parents. The Full Court considered this provision and the concept of meaningful relationship in McCall & Clark [2009] FamCAFC 92.

2. In summary, what the Court is required to do is to consider and weigh the available evidence and determine, assuming the Court is satisfied that it is in the child’s best interests, how and what orders can be framed in order to ensure that the child has a meaningful relationship with both of the child’s parents.

3. Generally speaking, it is beneficial for a child to have a meaningful relationship with each of the child’s parents and their extended family. In other words, it would be in this child’s best interests to develop a meaningful relationship not just with his father but also with his mother.

4. That said, the Court must also consider s.60CC(2)(b) of the Act, that being the need to protect the child from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence, and there are some live issues in this case that warrant further investigation.

5. There is an assertion that the present evidence suggests that the mother might have an undiagnosed mental illness or condition that may pose a risk to X. The mother denies that she has ever been diagnosed with any illness or condition that would impact upon her parenting of X.

6. It is difficult, indeed impossible, in this very early interim decision, for the Court to make any finding about the mother’s mental health. I note the evidence in respect of the involvement of the (omitted) Mental Health Team (“the Team”) leading up to, and following, the incident that resulted in the father retaining the child on the first of December 2014.

7. I note, in particular, a letter from the Team to the mother, dated 4 December 2014. In that letter, which was before the Court when it was before me on 4 December 2014, Ms L, a registered nurse with the Team, states the following:

   “Ms Cooper attended the (omitted) Mental Health Team at the (omitted) Centre, (omitted), New South Wales, on 3 December 2014 for a mental health assessment. At the time of the assessment there were no acute mental health issues identified, and was suggested to link in with a GP. If you require any information please contact the Medical Legal Department in (omitted) district.”

8. I note that there were submissions this afternoon as to the meaning of the word “no acute mental health issues”, and I also note the concession from the mother that she has not seen a GP since that time. That said, there is also a note in the material subpoenaed from the relevant government health service, that there was a follow-up after 4 December 2014, including a note of a discussion a team member had with a GP, Dr G, who, it would appear, works in a practice that the mother has used and has seen the mother on at least one occasion. That note records that the relevant doctor indicated that he would “refer her [the mother] to the (omitted) Clinic under s291”. Now, whilst it was conceded that no one knew exactly what ‘s.291’ was, there was a concession from the mother’s legal representative that the (omitted) Clinic is a clinic that deals with members of the public presenting with symptoms of depression and bipolar disorder. When that alleged referral was actually made, or if it was made, is not entirely clear, but it is a business record.

9. Overall, the available evidence is of sufficient concern to the Court to adopt a cautious approach in respect to the mental health allegations.

10. At this point, I also note, with some concern, the apparent failure by the mother to provide details of treating medical professionals to which both parties had been attending upon in the previous two year period.

11. There was an order that the Court made on 4 December 2014, after a lengthy discussion with the parties’ legal representatives about the form of the order. It was clear to the Court that the mother only provided those details in Court today. Whilst I acknowledge that the relevant order on file could have been drafted more elegantly by stipulating a timeframe, any reasonable interpretation of the order that I made would preclude an interpretation that such information could be provided as late as today. The order clearly followed an order which allowed either party to file and serve up to 10 subpoenas. Its intention was clear.

12. I note that in a letter dated 18 December 2014 between the parties’ lawyers provided the details of the father’s relevant medical details. That letter also requested, inter alia, the medical details of the mother. That was over five weeks ago. Consequently, the Court is satisfied that an appropriate independent mental health assessment by a single expert is appropriate to the needs of this case. I will return to that issue later.

13. Overall, there are issues in this case warranting investigation, and the Court consequently needs to tread cautiously in the interim arrangements that, of course, will be necessary in this decision and beyond. But I stress again, these are only interim decisions that the Court makes today. These are not final decisions.

14. I note that, pursuant to the amendments made to the Act in 2012, I am required to give greater weight to s.60CC(2)(b) as against s.60CC(2)(a).

Additional considerations: s.60CC(3)

1. In relation to s.60CC(3)(a), I would note that the views of the child, while of course significant, will be somewhat difficult, in this case, to determine, given the child is just six years of age. Nevertheless, it may be something that a family consultant, if appointed, or a single expert, if similarly appointed, can assist the Court on, with, presumably, observations of the child with each of the parents, as well as appropriate questions being put to the child. I note that both parties have included alleged conversations that they have had with the child, in their affidavit material.

2. I now turn to s.60CC(3)(b), the nature of the relationship between the child and each of the child’s parents. We have, not uncommonly in these types of disputes, different stories being presented to the Court at this stage. That evidence, of course, will require testing. Nevertheless, it would appear that until early December 2014, the child has always been in the mother’s primary care, and since separation, the child has spent consistent and regular time with the father, including overnight time. In more recent times, of course, the child has lived with the father and spent supervised time with the mother. As previously stated, although the father proposes that the child remain living with him in the short term and spend time with the mother, he no longer presses for that time to be supervised. The father opposes any overnight time occurring at this stage.

3. As to s.60CC(3)(c), the extent to which each parent has provided an opportunity to participate, that is a crucial factor in the case before me. The father, of course, made a unilateral decision to withhold the child from the mother’s care. The reason why he did such, and why such has occurred, will of course require testing at the appropriate time in the Court.

4. Under s.60CC(3)(ca), the extent to which each of the children’s parents have fulfilled their obligations to maintain the child, I note that both parties make allegations against the other. The mother has, as I have indicated, clearly had the child in her consistent, full-time care since separation, and that is not the subject of challenge by the father. I note that both parties make child support and child support related complaints about the other parent.

5. As to s.60CC(3)(d), the likely effect of any changes, both parties seek changes to the orders that were made on 4 December 2014. Broadly speaking, the mother seeks a return to what might be described as the “status quo” that existed between the parties up until the end of November 2014, and as reflected in the parenting plan. The father urges caution, pending an appropriate mental health assessment of the mother. Regardless, any change needs to be, of course, appropriately handled in the best interests of the child. That said, any prolonged delay in the time that a child lives with, or spends time with, a parent may cause problems or difficulties for the child, when and if that time is ultimately resumed.

6. I now move to s.60CC(3)(e), the practical difficulty issues. With the exception of the expert report issue, neither party appears to assert any particular cost issues in respect of their proposals. Geographically, it would now appear that the parties live in reasonable close proximity.

7. Pursuant to s.60CC(3)(f), the capacity of each of the child’s parents, I note again that each party makes criticisms of the other. That evidence, and those criticisms, will, of course, require testing.

8. With respect of s.60CC(3)(g), maturity, sex, lifestyle, background issues, there are no specific matters here to assist the Court.

9. In respect of s.60CC(3)(h), I am not aware that either party, or the child, identifies as Aboriginal or a Torres Strait Islander.

10. In relation to s.60CC(3)(i), the attitude issues, I simply reiterate earlier comments.

11. I now turn to a consideration of s.60CC(3)(j) (family violence) and s.60CC(3)(k) (family violence orders). On my reading of the material, there are no allegations of family violence being made by one party against the other. Nor can I see is there any evidence of a current or past Apprehended Violence Order(s) being in place that affects the child or the parties.

12. As to s.60CC(3)(l), whether it would be preferable to make an order that would least likely to lead to the institution of further proceedings, this is not applicable at this stage of the proceedings because this is an interim decision.

13. As to s.60CC(3)(m), any other fact or circumstance, I note that I have already made some comments about whether the matter may benefit from a single expert report earlier in these reasons. Another possibility, of course, that I did raise with the parties was that there be a specific mental health assessment of one of the parties, done in conjunction with a Family Report. My only further comment about that is the potential delay in getting any meaningful recommendations.

14. In in her CDC Memorandum, under the heading ‘Case pathway recommendations’ Ms M marked a Family Report under Further Assessment and made the following comment:

    “If the matter proceeds, and a chapter 15 psychiatric expert report is not deemed necessary.”

    I would agree with Mr Longworth’s submission that while Ms M recommended further assessment by a Family Report, there was a caveat in that, if the Court agreed, or indeed if the parties agreed, that a “Chapter 15 psychiatric report” was necessary, the outcome would be the latter. The reference to chapter 15, of course, is to chapter 15 of the Family Law Rules. Whilst I have the discretion to dispense with the Federal Circuit Court Rules and apply the rules of the Family Court, in respect of family law matters, regulation 15 of the Federal Circuit Court Rules 2001, and more particularly regulations 15.07 to 15.12 deal with expert evidence and expert reports.

15. I have previously indicated that the Court is satisfied there is merit in there being an appropriate independent mental health assessment of the mother. The benefits of having an expert do a comprehensive report for the parties is that the expert can also make recommendations in relation to parenting matters, as well as in relation to the mental health of a party, or the child, in suitable cases.

16. Having weighed up the options, the Court is of the view, particularly given the likely timeframes, that a single expert should be appointed to conduct the assessment and prepare the report at the earliest opportunity.

17. While the mother raises issues of having a lack of resources to fund such a report, or rather to contribute to one half of such a report, there is evidence in the form of the recent child support assessment that she had a taxable income in the amount of $95,197.00 in the 2012/2013 tax year. Consequently, I am satisfied, in the absence of any evidence to the contrary, that each party should equally contribute to the cost of the expert report.

Conclusion

1. Having regard to the respective applications and submissions and in light of the available evidence and the relevant statutory provisions, the Court is satisfied to determine as follows:

2. Until further order, the child should remain living with the father.

3. As to the ‘spend time with’ arrangements, the Court is satisfied that in the short term, the arrangements as proposed by the father are appropriate, with the addition of alternate Fridays being added into the mix so that the child would spend the following:

   a)each Monday after school with the mother, or on Mondays during school holidays;

   b)Wednesdays after school with the mother, or Wednesdays for school holidays;

   c)each alternate weekend, commencing this weekend, on a Saturday and then a Sunday; and

   d)then the alternate Friday would then be available to the child, again, that would be from after school until 7:00pm.

4. Noting that the issue of telephone communication did not feature in today’s submissions, the order sought by the father will be ordered today, and that is an order that provides for the child to be able to communicate with the mother, effectively on every day that the child is not otherwise in her care.

5. As to changeovers, the mother, of course, will be responsible for collecting the child from school on those days that the child comes into her care, and returning the child to the father at the conclusion of those times. That is logical, because that maximises the time that the child can be with the mother. On the other occasions, that is, on non-school days, the father is to cause the child to be delivered to the mother’s place of residence or such place as they agree to, at the commencement of all times that the child comes into the mother’s care, and the mother is to cause the child to be delivered back to the father, at his place of residence or such a place as they agree to, at the conclusion of all such times.

6. There will be orders for the parties to cause a single expert report to be obtained. The form of order can be adapted from the proposal of the father. I note the Court was advised that Dr R has capacity in late May next and, in default of any agreement for another expert, Dr R will be appointed to do to the necessary report.

7. The matter can return for mention on a date to be fixed following the release of the expert report. At this point let me indicate that the Court would expect the parties to engage in a formal mediation process prior to bringing the matter back to Court, and following the release of the Expert Report. That said, clearly the Court opens the door to a further review of the interim parenting arrangements, following the release of the expert report. That is only fair, in the interests of, not just the parties but, of course, of the child.

8. Lastly, included in the Orders that I pronounce this evening, there will be the orders that were flagged earlier in these reasons.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Monahan

Associate:

Date:  28 April 2015