SLATER & SLATER

[2019] FCCA 2069

FEDERAL CIRCUIT COURT OF AUSTRALIA

SLATER & SLATER [2019] FCCA 2069

Catchwords:
FAMILY LAW – Parenting – interim Orders – time child should spend with parents – where changeover should take place – best interests of the child – not in best interests of the child to spend equal time with the parents – not in best interests of the child to spend substantial and significant time with both parents.

Legislation:

Family Law Act 1975 (Cth), ss.60, 61, 64, 65

Cases cited:

AMS v AIF (1999) 199 CLR 160

Goode v Goode (2006) 36 Fam LR 422

Keats & Keats [2016] FamCAFC 156

Marvel v Marvel (2010) 43 Fam LR 348

Mazorski & Albright (2007) 37 FamLR 518

McCall & Clark (2009) FLC

MRR v GR [2010] HCA 4

U v U (2002) 211 CLR 238

Waterford & Waterford [2013] FamCA 33

Applicant: MR SLATER

Respondent: MS SLATER

File Number: MLC 2931 of 2018

Judgment of: Her Honour Judge C. E. Kirton QC

Hearing date: 16 October 2018

Date of Last Submission: 16 October 2018

Delivered at: Melbourne

Delivered on: 31 July 2019

REPRESENTATION

Counsel for the Applicant: Mr Scriva

Solicitors for the Applicant: Dorota Sokolowski

Counsel for the Respondent: Ms Foong

Solicitors for the Respondent: Peninsula Community Legal Centre

ORDERS

1. Orders 2 and 6 of the Consent Orders made on 12 July 2018 be discharged.

UNTIL FURTHER ORDER:

1. The Applicant (Father) and the Respondent (Mother) have equal shared parental responsibility for the child [X], born on … 2015 ([X]).

2. [X] shall commence spending time with the Father:

   (a)Pursuant to Order 4(a)(i) from Friday 2 August 2019 for a period of six months.

   (b)Pursuant to Order 4(a)(ii) from Friday 7 February 2020.

   (c)Pursuant to Order 4(b) from Friday 9 August 2019.

3. On alternating weeks, [X] spend time and communicate with the Father as follows:

   (a)In week one:

   (i)From Friday 8:30 am until Saturday 5:30 pm and each alternate Friday thereafter.

   (ii)From Friday 8:30 am until Sunday 5.30 pm and each alternate Friday thereafter.

   (b)     In week two, from Friday 8:30 am until 5:30 pm that day.

   (c)As may otherwise be agreed between the Mother and the Father in writing (including text and email).

4. Changeovers that do not take place at childcare shall take place at the Suburb J Police Station.

5. The Father be at liberty to communicate with [X] by telephone, Skype, FaceTime or video call equivalent each Tuesday from 6:30 pm to 7:00 pm, with the Mother to facilitate such communication by answering the call (if necessary), but otherwise the Mother shall not remain present during the call and the Mother shall afford [X] privacy during the call, with calls not to exceed 30 minutes.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) 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 the Annexure and these particulars are included in these orders.

B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2931 of 2018

MR SLATER

Applicant

and

MS SLATER

Respondent

REASONS FOR JUDGMENT

Introduction

1. This proceeding relates to parenting and property matters.   This is an interim decision in relation to only the parenting proceedings concerning the child [X] born on … 2015 ([X]).  The Applicant is the Father and the Respondent is the Mother of [X].

Issues to be Determined

1. The following interim issues are in dispute between the parties:

   a)The time that [X] should spend with the Father.

   b)Where changeover should take place when changeover does not occur at childcare.

Synopsis

1. I have determined that:

   a)     [X] spend time and communicate with the Father as follows:

   In week one:

   i)From Friday 8:30 am until Saturday 5:30 pm each alternate Friday thereafter, commencing Friday 2 August 2019 for a period of six months.

   ii)From Friday 8:30 am until Sunday 5:30 pm and each alternate Friday thereafter, commencing Friday 7 February 2020.

   In week two, from Friday 8:30 am until 5.30 pm that day commencing Friday 9 August 2019.

   b)Changeovers that do not take place at childcare shall take place at the Suburb J Police Station.

Background

1. The parties to this proceeding are from Country K.  The Father was born in Country K on … 1978 and is 40 years of age.  The Mother was born on … 1982 and is 37 years of age. The parties commenced living together in Country K in … 2013 and married on … 2014.

2. [X] was born in Country K on … 2015.  In … 2015 the Father moved to Australia from Country K and commenced working in Australia on a 457 work sponsored visa.  In … 2015 the Mother and [X] joined the Father in Australia to live.

3. In late 2017 the parties separated under one roof and in March 2018 the parties separated finally with the Father leaving the matrimonial home.

4. The Father works as a professional.  The Mother has worked full time since March 2017 as a professional for the Employer L.

Procedural History

1. The Father commenced this proceeding for parenting orders on 19 March 2018. The Father sought an abridgment of time so that the Initiating Application be heard on an urgent basis, however that application was not granted by a Registrar of the Court.

2. At the time of filing the Initiating Application the Father was self-represented.  The Father also filed an affidavit[1] and a Notice of Risk making allegations against the Mother.   

   [1] Affidavit of the Father, affirmed on 19 March 2018, filed 19 March 2018.

3. The Father sought interim and final orders that:

   a)The Father and the Mother have joint parental responsibility for [X].

   b)[X] live with the Mother. 

   c)[X] spend time and communicate with the Father each week on:

   i)Monday from 8:00 am to 6:00 pm;

   ii)Tuesday, Wednesday and Thursday for up to one hour by video call between 7:00 pm and 9:00 pm;

   iii)Saturday from 9:00 am to 2:00 pm;

   iv)Sunday from 2:00 pm to 7:00 pm.

4. The Father became legally represented on 11 April 2018 when his current solicitors filed a Notice of Address for Service.

5. The Mother filed a Response on 23 April 2018 seeking parenting and property orders.  The Mother also filed an affidavit[2] (Mother’s First Affidavit), a Financial Statement and a Notice of Risk which made allegations against the Father.  At the time of filing her Response the Mother was represented by her current lawyers.

   [2] Affidavit of the Mother, affirmed on 19 April 2018, filed 23 April 2018.

6. The Mother sought interim parenting orders that:

   a)There be an abridgment of time and that the application be listed for hearing as an application without notice or alternatively on an urgent expedited basis.

   b)All prior orders restraining the removal of [X] from the Commonwealth of Australia be discharged.

   c)The Australian Federal Police remove [X] from the Airport Watch List.

   d)The Mother and Father have equal shared parental responsibility for [X].

   e)[X] live with the Mother.

   f)[X] spend time with the Father as follows:

   i)Each Saturday from 3:00 pm to 6:00 pm;

   ii)Each Wednesday from after childcare for a period of 1½ hours;

   iii)By Skype every Monday and every Thursday from 6:00 pm to 6:15 pm.

   g)Changeover take place in the car park at McDonald's Suburb A on the corner of Street B and Street C, Suburb A (McDonald's Suburb A).

   h)The Father be restrained from consuming or being under the influence of alcohol 24 hours prior to or during any period that [X] is in his care.

   i)Pursuant to s. 11F of the Family Law Act 1975 (Cth) (Act), the parties and [X] attend upon a Family Consultant for the purposes of a Child Inclusive Conference.

   j)Pursuant to s. 68L(2) of the Act [X] be independently represented.

   k)The Father engage and complete a parenting after separation or other parenting course and provide evidence of completion of the course.

   l)The Father attend a Men’s Behaviour Change course or other relevant anger management course and provide evidence of completion of the course. 

7. The matter first came before the Court on 26 April 2018 in the Duty List (First Hearing).  Both the Mother and the Father were represented by Counsel.  In relation to parenting matters the Court made interim orders  that:

   a)The proceeding be adjourned to 12 July 2018 for an interim hearing.

   b)Pursuant to s.11F of the Act the parties and [X] attend upon a Family Consultant of the Court for the purposes of a Child Inclusive Conference on 22 June 2018 and that the Family Consultant provide a written memorandum to the Court and the parties as soon as practicable thereafter.

   c)[X] spend time with the Father each week:

   i)On Friday from 9:00 am to 6:00 pm;

   ii)On Sunday from 9:00 am to 6:00 pm;

   iii)By video call each Tuesday between 6:30 pm and 7:00 pm (Video Call Order)[3].

   d)[X]’s time with his Father to commence on Sunday 29 April 2018 on condition that on 26 April 2018 the Father provide to the Mother’s solicitors his current residential address.

   e)The Mother and the Father attend and complete as soon as practicable, a Parenting Apart Post Separation Parenting Program involving at least three separate sessions at an appropriate organisation.

   f)The proceeding be listed for final hearing with an estimate of two days on 16 October 2018. Trial directions were also made. The trial directions included an order that pursuant to s.62G of the Act the parties and [X] attend upon a Family Consultant nominated by the Regional Coordinator of Child Dispute Services of the Court for the preparation of a Family Report, to be given to the Court no less than 35 days before the final hearing.

   [3] Order 5(c) of the Orders made on 26 April 2018.

8. At the First Hearing it was also ordered by consent that until further order:

   a)[X] live with the Mother.

   b)Changeover take place at McDonald's Suburb A.

   c)The Mother and Father be restrained by injunction from:

   i)Consuming alcohol or being under the influence of alcohol  during or 24 hours prior to [X] being in their care;

   ii)Exposing or allowing [X] to be exposed to family violence;

   iii)Denigrating the other parent in the presence or hearing of [X];

   iv)Discussing with [X] any matter in relation to this parenting dispute. 

9. On 17 May 2018 the Father filed a Financial Statement.

10. The parties and [X] attended the Court on 22 June 2018 for a Child Inclusive Conference with Family Consultant Ms D.  The Child Inclusive Conference Memorandum to Court was subsequently released to the Court and to the parties’ lawyers (Section 11F Report).

11. On 26 June 2018 the Father filed an Application in a Case seeking the following parenting orders:

    a)Discharging the orders made at the First Hearing referred to in paragraph 14(c) and seeking interim orders that [X] spend time and communicate with the Father on a fortnightly basis as follows:

    i)In week one, from Monday 6:00 pm until Tuesday 9:00 am and from Thursday 6:00 pm until Monday 9:00 am in week two (5 nights);

    ii)In week two, from Wednesday 6:00 pm until Thursday 9:00 am and by video call on Saturday between 6:30 pm and 7:00 pm (1 night).

    b)Changeover to be at a venue agreed to by the parents from time to time and in default of agreement at Suburb A Childcare when it is open or otherwise at the Suburb J Police Station.

    c)The Father be allowed to attend the Suburb A Childcare at any time with permission of Suburb A Childcare.

    d)The Mother be restrained from communicating with the Father other than in regard to child arrangements by any means other than through a parenting mobile application, email, text message, a mediator or solicitor.

    e)The Father be permitted  to travel with [X] to Country K between … 2018 and … 2018 and ancillary orders in relation to the proposed travel to Country K.

12. On 26 June 2018 the Father also filed an affidavit (Father’s Second Affidavit) in support of the Application in a Case.  An Affidavit by Ms E was also filed by the Father on 11 July 2018 in support of the Father’s Application in a Case.

13. The Mother filed a Response to an Application in a Case on 3 July 2018 seeking orders that the Father’s Application in a Case be dismissed.  The Mother also filed an affidavit (Mother’s Second Affidavit) and an Affidavit of Ms F, a friend of the Mother’s.

14. The matter next came before the Court on 12 July 2018 for an Interim Hearing (Second Hearing). Both the Mother and Father were represented by Counsel.  In relation to parenting matters the Court at the Second Hearing made interim orders by consent that:

    a)The Father attend a Men’s Behavioural Change Program (14 weeks) with Relationships Australia as recommended by Ms D in the Section 11F Report.

    b)Changeover when not taking place at childcare be at the Suburb J Police Station.

    c)The Father pay $60 into the Mother’s bank account each week for the purposes of the Mother and [X] travelling to and from the Suburb J Police Station for the purposes of changeover.

    d)The orders made at the First Hearing and referred to in paragraph 14(c) be discharged and that [X] spend time with the Father each week:

    i)On Friday from 8:30 am to 5:30 pm;

    ii)On Sunday from 9:00 am to 4:00 pm;

    commencing on Friday, 13 July 2018 and on Sunday, 15 July 2018[4].

    [4] Order 6 of the Consent Orders made on 12 July 2018.

15. I note that the consent orders prepared by Counsel at the Second Hearing and submitted by the Father’s solicitor to the Court states in Order 6:

    That order 5 of the orders made by this court on 26 April, 2018 be discharged and replaced as follows:

    (i)Every Friday from 8:30 am to 5:30 pm and on Sunday from 9:00 am to 4:00 pm commencing on Friday 13 July, 2018 and on Sunday 15 July 2018.

16. This Order 6 discharged the Order made at the First Hearing that the Father spend time with [X] which is referred to in paragraph 14(c) and includes the Video Call Order. I refer to the discussion concerning this matter in relation to s.60CC(3)(m) in paragraphs 105 to 108.

17. The Family Report prepared by Family Consultant Ms G, dated 5 September 2019 (Family Report) was provided to each of the parties’ lawyers.

18. On 1 October 2018 the Mother filed an Amended Response to the Initiating Application (Amended Response) seeking amended parenting and financial orders.  The Mother sought the following final parenting orders in the Amended Response:

    a)The parties have equal shared parental responsibility for [X].

    b)[X] live with the Mother.

    c)That [X] spend time with the Father as follows:

    i)Until [X] turns four years of age:

    A.Every alternate Thursday from after childcare to Friday 5:00 pm.

    B.Every alternate Friday from 9:00 am to 5:00 pm.

    ii)Subject to the proceeding order being successful, from the age of four years until [X] turns five years of age:

    A. Every alternate Thursday after childcare to Saturday 5:00 pm;

    B. Every alternate Friday from 9:00 am to 5:00 pm;

    iii)Subject to the proceeding order being successful from the age of five years:

    A.Every alternate Thursday from after school until Sunday    5:00 pm.

    B.Every alternate Thursday from after school until Friday morning before school.

    iv)When [X] commences school, in the school holidays during the first year:

    A.     For three consecutive nights of the first week of the term holidays;

    B.     In the long summer holidays every alternate week.

    v)After [X] has been at school for one year, one half of the school holidays to be agreed between the parties.

    d)The Father be at liberty to communicate with [X] by telephone, Skype, FaceTime or video call equivalent on a Tuesday from 6:30 pm to 7:00pm with the Mother to facilitate such communication by answering the call (if necessary), but otherwise the Mother shall not remain present during the call and the Mother shall afford [X] privacy during the call, with calls not to exceed 30 minutes.

    e)The Mother be at liberty to communicate with [X] by telephone, Skype, FaceTime or video call equivalent on a Friday from 6:30 pm to 7:00 pm if [X] is not otherwise in the Mother’s care, with the Father to facilitate such communication by answering the call (if necessary) will, but otherwise the Father shall not remain present during the call and the Father shall afford [X] privacy during the call, with calls not to exceed 30 minutes.

    f)Changeover to take place at:

    i)      The Suburb J Police Station; 

    ii)     When [X] is of school age, at [X]’s school and in the carpark at McDonald's Suburb A or any other McDonald’s close to the Mother’s place of residence on a non-school day.

    g)The Father be restrained from consuming or being under the influence of alcohol 24 hours prior to or during any period that [X] is in his care.

h)Each parent shall advise the other parent of any serious illness or injury suffered by [X] as soon as practicable and authorise any treating medical practitioner to release information and to consult with both parents regarding [X].

1. On 1 October 2018 the Mother also filed an Affidavit[5] in support of her Amended Response (Mother’s Third Affidavit). 

   [5] Mother’s Affidavit, affirmed 27.9.18, filed 1.10.18.

2. The Father also filed an affidavit on 1 October 2018[6] (Father’s Third Affidavit).  The Father also filed an affidavit by work colleague Mr H[7].  

   [6] Father’s Affidavit, affirmed 1.10.18, filed 1.10.18.

   [7] Affidavit of Mr H, affirmed 20.9.18, filed 1.10.18.

3. In the Father’s Third Affidavit the Father sought final parenting orders that [X] live with the Father as follows:

   a)Until [X] starts school:

   i)On alternate weekends from Friday 5:00 pm after childcare until Monday 9:00 am before childcare, provided that in the event of [X] being unwell or if the Father is able to look after [X] on Monday, [X] should not be required to attend childcare on Monday other than for the purpose of changeover or collection by the Mother (3 nights);

   ii)In the intervening period from Thursday 5:00 pm after childcare until Friday 9:00 am before childcare, with the same conditions as in the previous paragraph (one night);

   iii)On special occasions such as [X]’s birthday, the Father’s birthday, Father’s Day, Christmas Day and Easter Monday.

   b)After [X] starts school:

   i)On alternate weekends from Thursday after school until the following Monday before school provided that in the event of Monday being a day off school then until 6:00 pm on Monday (4 nights);

   ii)In the intervening week from Thursday after school until Friday before school and in the event that there is no school on Friday then until 6:00 pm on Friday (one night).

1. The Father also sought the following final parenting orders in the Father’s Third Affidavit:

   a)That [X] communicate with him every Tuesday from 6:30 pm to 7:00 pm by video call and that the Mother facilitate the calls by ensuring that [X] is not distracted by electronic or media devices such as television, radio, computers, phones, tablet and the like devices (sic).

   b)That each party be restrained from removing [X] from the Commonwealth of Australia and that [X]’s name be placed on the Airport Watchlist.

   c)That the Mother:

   i)Be restrained from consuming alcohol whilst caring for [X];

   ii)Undertake a seven week anger management course with relationships Australia and provide proof of completion.

2. The Father did not file an Amended Initiating Application seeking the orders sought in paragraphs 28 and 29.

3. On 12 October 2018 the Mother filed an Outline of Case Document.  The final parenting orders sought by the Mother in the Outline of Case Document were consistent with the parenting orders sought in the Amended Response.

4. The proceeding was listed for final hearing on 16 October 2018 (Third Hearing).  Both parties were represented by Counsel and the proceeding was stood down for negotiations between the parties. 

5. The parties were able to agree that there be a watchlist order by consent[8].

   [8] Transcript T2:3-4.

6. The parties were unable to agree upon:

   a)The time that [X] was to spend with the Father.

   b)Where changeovers should take place when they do not occur at  childcare.

   c)Settlement of the property proceedings.

7. Accordingly the proceeding was required to be re-listed for final hearing at a later date.  Counsel each made submissions in relation the interim parenting orders that should be made for [X] to spend time with the Father, pending the re-listed final hearing.  The decision in relation to the interim parenting orders was reserved.  The following Orders were  made at the Third Hearing:

   a)The proceeding was listed for final hearing on 16 September 2019 with an estimated hearing time of two days.

   b)The Mother and the Father and their servants and agents were restrained from removing [X] from the Commonwealth of Australia for a period of two years.

   c)The Court requested the Australian Federal Police to place [X]’s name on the Airport Watchlist for a period of two years.        

   d)Trial directions were also made.  The trial directions again included an order that the parties and [X] attend upon a Family Consultant nominated by the Regional Coordinator of Child Dispute Services of the Court for the preparation of a further Family Report, to be given to the Court no less than 35 days before the final hearing.

The Proposals of the Parties

1. At the conclusion of submissions each of the parties put the following proposals to the Court in relation to the time that [X] should spend with the Father pending the final hearing and where changeovers should take place.

Father’s Proposal

1. The Father proposed that [X] spend time with the Father as follows (Father’s Proposal):

   a)In week one:

   i)From the conclusion of childcare on Friday until 5:30 pm Saturday[9] (one night);

   ii)From 9:00 am to 4:00 pm Sunday[10]. 

   b)In week two, from 9:00 am Thursday until 5:30 pm Friday (one night)[11].

   [9] Ibid; T24:7-38.

   [10] Ibid; T24:44-25:12.

   [11] Ibid; T26:23-28 and T29:24-30:18.

2. The Father’s Proposal included a proposal that changeovers that do not take place at childcare continue to take place at the Suburb J Police Station[12].

   [12] Ibid; T26:39-28:30.

Mother’s Proposal

1. The Mother proposed that [X] spend time with the Father as follows (Mother’s Proposal):

   a)In week one, from Friday 8:30 am until Saturday 5:30 pm (one night);

   b)In week two, from Friday 8:30 am until 5:30 pm that day[13];

   c)When [X] turns four, in week one, from Friday at 8:30 am to Sunday at 5:30 pm (two nights).

   [13] Ibid; T31:8-35.

2. The Mother’s Proposal included a proposal that changeovers that do not take place at childcare take place at McDonald's Suburb A[14].

   [14] Ibid; T27:1-13 and T28:41-29:1.

The Law

1. The principles governing the Court’s decision in this proceeding are set out in Part VII of the Act. The Court in determining this application must consider what orders are in [X]’s best interests: s.60CA of the Act. What this means in individual cases is determined by a number of statutory provisions.

2. The objects of Part VII of the Act are set out in s.60B(1) and assist in clarifying what Part VII aims to achieve to ensure that the best interests of children are met. There are also principles that underlie these statutory objects: s.60B(2).

3. Section 65D of the Act gives the Court power to make a parenting order which is defined by s.64B(1).

4. In determining what is in [X]’s best interests the Court must consider the matters set out in s.60CC of the Act. Section 60CC sets out the primary and additional considerations that the Court is to take into account in determining what is in the best interests of [X]. Each of those matters where relevant must be considered and assessed in the context of the respective proposals. The Court must then determine which of the proposals is in [X]'s best interests.

5. The Court is not bound by the parties’ respective proposals (AMS v AIF[15] and U v U[16]).

   [15] (1999) 199 CLR 160.

   [16] (2002) 211 CLR 238.

6. In applying the primary considerations the Court is to give greater weight to the considerations set out in s.60CC(2)(b): s.60CC(2A).

7. The Full Court in Goode v Goode[17] mandated that the legislative pathway must be followed in all parenting cases and set out the procedural steps to be followed in interim proceedings[18].  It was noted by the Full Court that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place[19].

   [17] (2006) 36 Fam LR 422.

   [18] Ibid., 445, at [81]-[82].

   [19] Ibid., 445, at [82].

8. In Marvel v Marvel[20] the Full Court made the following obiter comments:

   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[21].

   [20] (2010) 43 Fam LR 348.

   [21] Ibid., at [120].

9. In Keats & Keats[22] the Full Court held in respect of interim proceedings:

   [. ..] that apart from relying upon the uncontroversial or agreed facts, a judge may 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[23].

   [22] [2016] FamCAFC 156.

   [23] Ibid., at [9].

10. An interim hearing is therefore by its very nature a curtailed hearing.  Evidence is limited and the matter is decided on the papers.

11. I will first consider the primary considerations of the Act.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;

1. The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford[24], Mazorski & Albright[25] and McCall & Clark[26]. 

   [24] [2013] FamCA 33.

   [25] (2007) 37 FamLR 518.

   [26] (2009) FLC 93-405.

2. In the Section 11F Report Ms D reported:

   [X] appears to enjoy an affectionate, warm relationship with both parents.[27]

   [27] Section 11F Report, p.3.

3. In the Family Report Ms G reported:

   The child was assessed as having a warm and affectionate relationship with both his parents although it was noted that he has spent most of his time with his mother[28].

   [28] Family Report, [50].

4. I therefore conclude that [X] has a meaningful relationship with both of his parents.  It was not disputed at the Third Hearing that [X] should continue to have a meaningful relationship with both parents.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. I refer to the discussion in relation to s.60CC(3)(j) and (k).

2. Further, in the Section 11F Report Ms D reported:

   There was some indication that [the Father] has used family violence behaviours but has little insight into these behaviours and the impact of them.   It would be helpful for [X] and for the co-parent relationship if [the Father] registers with and completes the Men’s Behaviour Change Program (14 week group) with Relationships Australia…[29]

   [29] Section 11F Report, p.3.

3. Orders were made by consent at the Second Hearing that the Father attend a Men’s Behaviour Change Program as recommended by Ms D in the Section 11F Report. The Father deposed in the Third Affidavit that:

   I have followed all FCC and Family consultant’s recommendations, agreeing to complete a ‘man’s behaviour change program’ (20 weeks) which I am undertaking now.  I have also completed a ‘parenting after separation program’ and an additional online parenting course ‘Parent Works’ designed by the University of Sydney.  I have reflected on my past relationship and parenting shortcomings and have learned a great deal[30].

   [30] Father's Third Affidavit, at [18].

4. The additional considerations are set out in s.60CC(3) of the Act. I will now consider the additional considerations.

Section 60CC(3)(a) any views expressed by the child 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 child's views;

1. [X] was not interviewed for the Section 11F Report as the Family Consultant reported that he was too young to interview[31].  The Family Consultant relied on observations of [X] with each of his parents.

   [31] Section 11F Report, p.2.

2. In the Family Report Ms D reported that [X]:

   […] demonstrated good language in English, with a good vocabulary and was said to be bi-lingual, in Country K.  He was able to count to at least 10, knew the basic colours and was a responsive, thoughtful and gentle child who was cooperative, easy to manage and with no particular physical issues[32].

   [32] Family Report, [38].

Section 60CC(3)(b) the nature of the relationship of the child with:

(i)     each of the child's parents; and

(ii)   other persons (including any grandparent or other relative of the child);

Each of the child's parents

1. I refer to the discussion in relation to s. 60CC(2)(a). Further, both the Section 11F Report and the Family Report recommended a gradual increase in the time that [X] spends with his Father, including overnight time.

2. In the Section 11F Report Ms D reported:

   [The Father’s] proposal comprises a significant increase in the time that [X] spends with him, including overnight time, which [X] would likely find challenging, given his age and stage of development.  Any increases in time with his father would optimally be gradual.  A child of [X]’s age would cope better with smaller more frequent blocks of time, particularly given that he is away from his primary carer four days a week when he is at day care[33].

   [33] Family Report, p.3. 

3. In the Family Report Ms G reported:

   While both parents observed [X] has indicated generalised anxiety, probably related to the tension between them and their separation, they differed in their opinion about how to best manage that situation.  The father wanted to significantly extend his time with his son, including three consecutive overnights in one week while the mother believed that [X], at 3.3 years was too young for overnights and that it was important to wait until he was at least five years old.

The child was assessed as having a warm and affectionate relationship with both his parents although it was noted that he has spent most of his time with his mother.  During the observations, he indicated some generalised anxiety by initially clinging to his mother and crying when leaving his father. […]

It was considered prudent to proceed gradually in relation to [X]’s extension of time with his father, particularly with the introduction of consecutive overnights.  As both his parents are employed, it was also considered desirable to consider the issue of each parent having significant weekend time with their child[34].

[34] Ibid., [49]-[51].

Other persons (including any grandparent or other relative of the child)

1. This is not a relevant consideration. 

Section 60CC(3)(c) the extent to which each of the child'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 child; and

(ii)   to spend time with the child; and

(iii)    to communicate with the child;

Participation in making decisions about major long-term issues in relation to the Child

1. The Father in his Initiating Application and the Mother in her Amended Response each seek final orders that they have equal shared parental responsibility for [X].

2. Both of the parents have sought to participate in making decisions about long term issues in relation to [X]. 

Opportunity to spend time and communicate with the Child

1. Subsequent to separation [X] has continued to live with the Mother. The Father has consistently sought to spend time with and to communicate with [X]. I refer to the discussion in relation to s.60CC(3)(b)(i).

Section 60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

1. The Mother has provided for [X]’s needs once she commenced employment in Australia and since separation in March 2018[35].

   [35] Wife’s Third Affidavit, at [86]-[88].

2. On 16 July 2018 the Father was assessed to pay Child Support for the period 1 September 2018 to 30 November 2019 in the sum of $857.25[36].

   [36] Husband’s Third Affidavit, at [25] and Annexure “S-2”.

Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)     either of his or her parents; or

(ii)   any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living;

Either of his or her parents

1. I refer to the discussion in relation to s. 60CC(3)(b)(i). The Mother’s Proposal is consistent with the substance of the recommendations of both the Section 11F Report and the Family Report, that there be a gradual increase in the time that [X] spends with his Father, including overnight time. It is also consistent with the recommendation in the Family Report that it was desirable for each parent to have significant weekend time with [X], as both parents are employed[37].  

   [37] Family Report, at [51].

2. The Family Report recommended:

   […] that [X] could commence his ‘spend time’ with his father with one night per fortnight, for example, alternate Thursday after child care to Friday 5pm and alternate Friday 9 am - 5 pm until [X] turns four years of age, and if that was successful to be followed by [:]

   Alternate Thursday after child care to Saturday 5 pm and alternate Friday 9 am – 5 pm until he turns five years of age, and if successful, to be followed by [:]

   Alternate Thursday after school until Sunday 5 pm and alternate Thursday after school until Friday morning, to school.

   School holidays could commence with three consecutive night overnights in the first year (in the second week of term holidays and in alternate weeks during the long summer holidays) followed by half the school holidays in the following years[38].    

   [38] Ibid; at [52]-[55].

3. At the time the Family Report was prepared the Father’s proposal before the Court was in accordance with his Application in a Case.  In the interview with the Family Report writer the Father indicated that he had changed his proposal to alternate Fridays after childcare to Monday to before childcare (three nights) and alternate Thursdays overnight, being four overnights in a fortnight[39].  The Father’s Proposal was therefore not considered by the Family Report writer.    

   [39] Ibid; at [11].

4. The Father’s Proposal is less consistent with the recommendations of both the Section 11F Report and the Family Report than the Mother’s Proposal. These reports recommend that there be a gradual increase in the time that [X] spends with the Father, including overnight time. The Father’s Proposal increases [X]’s time with the Father immediately to one night each week and two consecutive full days each alternate week.

5. The Mother’s Proposal commences the overnight visits on a fortnightly basis for a period of time before moving to two consecutive nights on a fortnightly basis. I determine, that based upon the recommendations of the Section 11F Report and the Family Report, the Mother’s Proposal insofar as it relates to the time [X] spends with the Father is to be preferred to the Father’s Proposal.

Any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living

1. This is not a relevant consideration.

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

1. The Mother lives in the former matrimonial home, which is a two bedroom rented flat in Suburb A. The Father also lives in a two bedroom rented flat in Suburb A.  The distance between the two homes is approximately a five minute drive[40].

   [40] Ibid; at [2].

2. At the Second Hearing it was ordered by consent that changeover take place at the Suburb J Police Station when not taking place at childcare.  It was also ordered by consent that the Father pay $60 into the Mother’s bank account each week for the purpose of the Mother and [X] travelling to and from the Suburb J Police Station for the purposes of changeover.

3. The Father has worked since … 2018 in Melbourne as a professional.  The Family Report writer reported that the Father’s hours of work were Monday to Thursday 9:00 am – 5:00 pm, with some flexibility, and that he did not work on weekends[41].   The Mother has worked as a professional for the Employer L since … 2017.  The Family Report writer reported that her hours of work were Monday to Friday 9.00 am to 5.00 pm, and that she did not work on weekends[42].

   [41] Ibid; at [4].

   [42] Ibid; at [5].

4. Apart from the fact that both parents are employed and the extra cost for the Mother to travel to the Suburb J Police Station for changeovers, there are no other no practical difficulties and expenses for [X] to spend time and communicate with the Father.

Section 60CC(3)(f) the capacity of:

(i)     each of the child's parents; and

(ii)    any other person (including any grandparent or other relative of the child);

To provide for the needs of the child, including the emotional and intellectual needs;

Each of the child’s parents

1. The Family Report concludes in relation to the parents:

   Both were assessed to be appropriate carers to their child, [X] but had significant difficulties communicating with each other about their child.  This was not helped by the Intervention Order against the Father, dated 13/3/2018 which included [X][43].

   [43] Ibid; at [48].

Any other person (including any grandparent or other relative of the child)

1. This is not a relevant consideration.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the that the court thinks are relevant;

1. [X] is now aged 4.  The Family Report writer described [X] as:

   […] of slight build, average height and with brown hair and dark brown eyes[44].

   I otherwise refer to the discussion in relation to s.60CC(3)(a).

   [44] Ibid; at [38].

2. Any other relevant factors have been discussed elsewhere in these reasons.

Section 60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child:

(i)     the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and     

(ii)   the likely impact any proposed parenting order under this Part will have on that right;

1. This is not a relevant consideration.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. I refer to and adopt the discussion in relation to s.60CC(2)(a), s.60CC(2)(b) and s.60CC(3)(b)(i).

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;

1. The Mother deposes that the Father was:

   […] verbally, emotionally and physically abusive towards me and controlling of me throughout the relationship[45].

   The Mother in her Third Affidavits deposes to the Father’s domestic violence during the relationship and after separation. The Mother alleges that the Father drinks alcohol excessively and that he would get aggressive when he had been drinking[46].

   [45] Mother’s Third Affidavit, at [7].

   [46] Mother’s Third Affidavit, at [18]-[19].

2. The Father alleges that the Mother drinks alcohol excessively and that she would become abusive when she had been drinking.[47]  The Mother denies that she drinks alcohol to excess and deposed that she only drinks alcohol socially[48].

   [47] Ibid; at [39], [40], [42], [47], [59], [73], [74], [76], [89]

   [48] Mother’s First Affidavit, at [7].

3. The Father denies committing domestic violence during the relationship or after separation.

Section 60CC(3)(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              

1. the nature of the order;

1. On 26 June 2017 the Mother obtained an Interim Intervention Order (First Interim Intervention Order) against the Father[49].

   [49] Ibid; at [12] and Outline of Case Document, Chronology, p.2.

2. On 7 July 2017 the Father gave a written undertaking to the Magistrates’ Court at Suburb M not to commit family violence against the Wife (Undertaking)[50].

   [50] Ibid; at [12] and “S-3”.

3. On 13 March 2018 the Mother obtained an ex-parte Interim Intervention Order against the Father (Second Interim Intervention Order[51]).  Both the Mother and [X] were named as Aggrieved Family Members.

   [51] Annexure to Initiating Application. 

4. On 1 June 2018 the Second Interim Intervention Order was varied to permit the Father to communicate with the Mother in writing concerning parenting arrangements in relation to [X][52].

   [52] Father's Third Affidavit, at [97] and [98] and Annexure “S-11”.

1. the circumstances in which the order was made;

1. The Father has deposed that the Mother obtained the First Interim Intervention Order “based on false allegations”[53].

   [53] Ibid; at [91].

2. I note the terms of the Undertaking given by the Husband and in particular that the Undertaking states:

   It is noted that the parties intend on attending marriage and/or family counselling[54].

   [54] Mother’s First Affidavit, Annexure “S-3”.

3. On 5 March 2018 the Father attended the Suburb M Justice Centre to apply for an Intervention Order against the Mother.  The appointment was made for 16 March 2018[55].

   [55] Father’s Third Affidavit, at [93].

4. The Father was served with the Second Interim Intervention Order on 15 March 2018 and was required to leave the former matrimonial home[56]. 

   [56] Ibid; at [94].

5. On 16 March 2018 Father attended his appointment at the Suburb M Justice Centre and made an application for an Intervention Order against the Mother.  The Application was returnable on 27 April 2018[57] (Father’s Application). 

   [57] Ibid; at [95] and Annexure “S-8”.

6. On 27 April 2018 the Mother and the Father attended the Suburb M Justice Centre and the Court made an order for each party to provide further and better particulars of their respective allegations.  On 18 May 2018 the Father provided Further and Better Particulars of the Father’s Application[58].  On 22 May 2018 the Mother provided Further and Better Particulars of the Second Interim Intervention Order[59].   The Court also adjourned both matters to 1 June 2018.

   [58] Ibid; at [96] and “S-9”.

   [59] Loc. cit. and “S-10”.

7. On 1 June 2018 the Second Interim Intervention Order (as varied) and the Father’s Application were adjourned to a defended hearing on 3 December 2018.

(iii)  any evidence admitted in proceedings for the order;

1. There is no evidence before the Court of any evidence admitted in any proceedings involving the First Interim Intervention Order, the Undertaking, the Second Interim Intervention Order or the Father’s Application.

1. any findings made by the court, or in proceedings for, the order;

1. There is no evidence before the Court of any findings by the Magistrates’ Court at Suburb M in any proceedings involving the First Interim Intervention Order, the Undertaking, the Second Interim Intervention Order or the Father’s Application.

1. any other relevant matter;

1. All matters relevant to this interim judgment have otherwise been considered in these reasons.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. This is an interim decision. The orders that I intend to make follow closely the recommendations made in both the Section 11F Report and the Family Report.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant.

1. As discussed above, at the First Hearing the Video Call Order was made.  At the Second Hearing the Video Call Order was discharged by Order 6 of the Consent Orders and replacement Orders for [X] to spend time with the Father were made.  No replacement Order was made for video calls between the Father and [X].

2. In any event the parties have proceeded on the basis that the Video Call Order remains in place.  The Family Report refers to the Video Call  Order[60] and reports in relation to the video calls between [X] and the Father as follows: 

   The Skype calls were discussed and while the father said that [X] is usually happy to be involved, occasionally he doesn’t want to talk.  He said he would not make [X] stay on the line if he wanted to go.  The mother said that although [X] initially doesn’t want to have the call and usually acted the same way when having Skype calls with his maternal grandmother, she usually managed to get him to stay there[61].

   [60] Family Report, at [6].

   [61] Ibid; at [33].

3. The Father has sought interim and final orders for video calls in his Initiating Application.  The Mother in her Amended Response has sought final orders for both her and the Father to have video calls. 

4. In order to rectify a situation where the parties have unintentionally discharged the Video Call Order I intend to make an interim order in accordance with the Video Call Order and in accordance with the terms of the order sought by the Mother in her Amended Response.  As this these are interim orders I do not propose to make any orders in favour of the Mother having Skype or video calls with [X] without hearing from the parties.   

Where Changeover is to take Place 

1. The Court has been requested to make interim orders as to where changeover should take place in circumstances where changeover does not take place at childcare. 

2. At the First Hearing it was ordered by consent that changeover in these circumstances take place at McDonald's Suburb A.  At the Second Hearing it was ordered by consent that changeover instead take place at the Suburb J Police Station. 

3. The Mother’s Amended Response and her Outline of Case Document seek orders that changeover take place at the Suburb J Police Station until [X] is of school age and then at the school or on a non-school day in the carpark at McDonald's Suburb A or any other McDonald’s close to the Mother’s place of residence.

4. However the Mother’s Proposal now includes a proposal that changeovers that do not take place at childcare, take place at McDonald's Suburb A. Counsel for the Mother argued that McDonald's Suburb A was a more appropriate venue for the changeovers to take place as it was more child friendly and there are also CCTV cameras if either party was concerned about their safety. Further, there is a playground for [X] to play in if either party is running late, instead of waiting at the police station[62].    

   [62] Transcript T27:1-13.

5. The Father’s Proposal included a proposal that changeovers that do not take place at the childcare continue to take place at the Suburb J Police Station.  Counsel for the Father argued that the Suburb J Police Station was the preferred location for the Father because of the Mother’s constant allegations of the Father breaching the Second Interim Intervention Order[63].

   [63] Ibid. T15-28:3.

6. I agree with Counsel for the Mother that in ideal circumstances changeovers at a McDonald’s Restaurant is a preferred location to that of the Suburb J Police Station.  However I have now had an opportunity to read the affidavits filed in this proceeding by the parties and note the competing allegations made by the parties against each other.  On an interim application it is not possible to make any findings of fact in relation to these allegations.  I intend to adopt a cautious approach to this issue and to maintain the status quo, which has been previously consented to by both parties.  Changeover will remain at the Suburb J Police Station for the interim. It will be for the trial judge, when assessing each of the parties under cross examination to form a view as to whether changeovers at the Suburb J Police Station is in [X]’s best interests. 

Equal Shared Parental Responsibility

1. Section 61DA of the Act provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child. The presumption can be rebutted if it is otherwise not in the best interest of the child for the child’s parents to have equal shared parental responsibility.

2. Section 61DA of the Act provides as follows:

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

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

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

   (b)family violence.

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

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

3. The Father in his Initiating Application seeks interim and final orders that the Mother and the Father have equal shared parental responsibility for [X].  The Mother in her Response also sought interim orders that the Mother and the Father have equal shared parental responsibility for [X]. The Mother’s Amended Response sought these orders as final orders.

4. The Section 11F Report and the Family Report did not support giving either parent sole parental responsibility. At the Third Hearing Counsel did not address me on this issue. Therefore pursuant to s.61DA(3) of the Act and on the basis of the Section 11F Report and the Family Report I determine that until further order it is in [X]’s best interests for the Mother and the Father to have equal shared parental responsibility.

Statutory Pathway

1. Where the parents have equal shared parental responsibility for a child, sub-ss.(1)-(5) inclusive of s.65DAA of the Act requires the Court to consider the child spending equal time, or substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:

   Equal time

   (1)     Subject to subsection (6), if a parenting order provides (or is            to provide) that a child’s parents are to have equal shared                   parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with                each of the parents would be in the best interests of the             child; and

   (b)     consider whether the child spending equal time with                each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or   including a provision in the order) for the child to spend           equal time with each of the parents.

   Substantial and significant time

   (2)     Subject to subsection (6), if:

   (a)     a parenting order provides (or is to provide) that a   child’s parents are to have equal shared parental                    responsibility for the child; and

   (b)     the court does not make an order (or include a provision              in the order) for the child to spend equal time with each            of the parents;

   the court must:

   (c) consider whether the child spending substantial and                significant time with each of the parents would be in the              best interests of the child; and

   (d)     consider whether the child spending substantial and                significant time with each of the parents is reasonably                  practicable; and

   (e) if it is, consider making an order to provide (or   including a provision in the order) for the child to spend          substantial and significant time with each of the   parents.

   (3)     For the purposes of subsection (2), a child will be taken to                spend substantial and significant time with a parent only if:

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

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

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

   (b)    the time the child spends with the parent allows the   parent to be involved in:

   (i)     the child’s daily routine; and

   (ii)occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child             to be involved in occasions and events that are of   special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child    lspends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2)                 whether it is reasonably practicable for a child to spend equal            time, or substantial and significant time, with each of the                   child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each     other; and

   (b)    the parents’ current and future capacity to implement an              arrangement for the child spending equal time, or   substantial and significant time, with each of the   parents; and

   (c)      the parents’ current and future capacity to   communicate with each other and resolve difficulties               that might arise in  implementing an arrangement of                   that kind; and

   (d)     the impact that an arrangement of that kind would have          on the child; and

   (e) such other matters as the court considers relevant.

2. In MRR v GR[64], the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an Order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an Order for equal time. The High Court said:

   Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent[65].

   [64] [2010] HCA 4.

   [65] [2010] HCA 4, at [13].

3. As there will be an interim order for equal shared parental responsibility, I am now required to address the statutory pathway as set out in s.65DAA(1) – (5).

Equal Time with Both Parents

1. Firstly I will address [X] spending equal time with both parents[66].  Neither the Mother’s Proposal or the Father’s Proposal involves [X] spending equal time with each parent.

   [66] Section 65DAA(1).

2. In considering whether [X] spending equal time with both parents to would be in his best interests[67], I have taken into account the matters discussed in relation to s.60CC(2)(a), s.60CC(3)(a), 60CC(3)(b)(i) and 60CC(3)(d). I therefore determine that equal time with both parents would not be in [X]’s best interests: s.65DAA(1)(a).

   [67] Ibid; (1)(a)

3. As I have determined that it is not in [X]’s best interests to spend equal time with both parents, on the basis of MRR v GR[68] I may not make an order pursuant to s.66DAA(1) for equal time. I am therefore now required pursuant to s.60DAA(2) to consider whether an order that [X] spend substantial and significant time with each of his parents is in his best interests.   

   [68] [2010] HCA 4.

Substantial and Significant Time

1. The Court therefore must consider whether [X] spending substantial and significant time with each of the parents for the purposes of this interim decision is:

   a)In the best interests of [X]: s.65DAA(2)(c); and

   b)Reasonably practicable: s.65DAA(2)(d).

2. In considering whether [X] spending substantial and significant time with both parents would be in [X]’s best interests[69], I have taken into account the matters discussed in relation to s.60CC(2)(a), s.60CC(3)(a), 60CC(3)(b)(i) and 60CC(3)(d). I therefore determine that for the purposes of this interim decision, substantial and significant time with both parents would not be in [X]’s best interests: s.65DAA(2)(c).

   [69] Section 65DAA(2)(c).

3. As I have determined that it is not in [X]’s best interests to spend substantial and significant time with both parents on an interim basis, I am unable to make an order for substantial and significant time[70].  It is therefore not necessary for me to consider whether it would be reasonably practicable for [X] to spend substantial and significant time with both parents[71].

   [70] Section 65DAA(2)(c)-(e).

   [71] Ibid (2)(d) and Section 65DA(5)(a) – (e).

Consideration and Conclusion Proposed Order

1. In considering this interim decision I have adopted a conservative approach that is not likely to cause harm to [X], as suggested by the Full Court for interim matters in Marvel v Marvel[72].

   [72] (2010) 43 Fam LR 348, at [120].

2. I have followed the legislative pathway as require by Goode v Goode[73], to the extent that I have been able, given that this is an interim case and the evidence is untested by cross examination.

   [73] (2006) 36 Fam LR 422, 445, at [81]-[82].

3. I have considered each of the primary considerations in s.60CC(2) and accorded greater weight to the considerations set out in s.60CC(2)(b). I have also considered each of the additional considerations in s.60CC(3) to extent that they are relevant. For the reasons set out herein, I determine that the Mother’s Proposal is in the best interests of [X] as required by s.60CA of the Act.

4. In the event that this proceeding is unable to be heard by the Court on the forthcoming trial date I intend to make orders that take into account the fact that [X] is now four years old.  I have allowed for a six month period of fortnightly overnight visits with the Father before moving to the Mother’s Proposal of two consecutive nights each alternate Friday and Saturday night.  This will allow [X] to be gradually accustomed to spending overnights at his Father’s home each alternate week.  I have made orders accordingly.

I certify that the preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for judgment of Judge C. E.  Kirton QC

Date: 31 July 2019