Townsend and Brookbank

[2007] FamCA 359

FAMILY COURT OF AUSTRALIA

TOWNSEND & BROOKBANK [2007] FamCA 359

FAMILY LAW - CHILDREN - With whom a child lives - Interim orders

Family Law Act 1975 (Cth)

Goode and Goode [2006] FamCA 1346
Cowling and Cowling (1998) FLC 92-801

APPLICANT: Ms Townsend

RESPONDENT: Mr Brookbank

FILE NUMBER: SYC 1296 of 2007

DATE DELIVERED: 24 April 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: O'Ryan J

HEARING DATE: 18 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Winfield

SOLICITOR FOR THE APPLICANT: Peninsula Law

COUNSEL FOR THE RESPONDENT: Mr Freidlander

SOLICITOR FOR THE RESPONDENT: Coast Law

Orders

1. The interim parenting orders made in the Local Court at W on 20 February 2007 be discharged.

2. Until further order the Mother and the Father have the sole responsibility for the daily care, welfare and development of the child during periods when the child is spending time with each parent.

3. Until further order the child spend time with the Father as follows:

   3.1     Every second weekend from Friday at 5.00 pm to the following Sunday at 5.00 pm.

   3.2In the intervening week from 3.00 pm on Wednesday until 9.00 am on the following Thursday.

   3.3In the event that the Father’s birthday should fall on a day when the child is not otherwise spending time with the Father pursuant to these orders then from 10.00 am to 6.00 pm on that day.

   3.4In the event that Father’s Day should fall on a day when the child is not otherwise spending time with the Father pursuant to these orders then from 10.00 am to 6.00 pm on that day.

4. Until further order subject to order 3 hereof the child otherwise live with the Mother.

5. Until further order notwithstanding order 3 hereof the child shall not spend time with the Father on Mother’s Day and the Mother’s birthday.

6. Until further order for the purpose of implementing these orders the Mother or her parents shall deliver the child to the Father’s sister’s residence at B at the commencement of the time the child is to spend with the Father and the Father or his sister shall return the child to the residence of the Mother or the Mother’s parents’ residence at the conclusion of the time the child is to spend with the Father.

7. Until further order the Father not engage in any employment activities during periods when the child spends time with him pursuant to these orders.

8. Until further order the Father and the Mother shall keep each other informed at all times of their residential address, home telephone number and mobile telephone numbers AND shall notify the other of any change within 72 hours of the change.

9. Pursuant to s 65DA(2) and s 62B 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1296  of 2007

Ms Townsend

Applicant

And

Mr Brookbank

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before me for hearing is a Notice of Appeal filed on 26 February 2007 on behalf of the mother in which she seeks to appeal against interim parenting orders made in the Local Court at W on 20 February 2007.  The respondent is the father.  The Father seeks that the appeal be dismissed.

2. The Father was born in April 1986 and the Mother was born in September 1986.  The parties commenced cohabitation in February or April 2005 and separated in February 2006. 

3. There is one child of the relationship, a daughter, who was born in November 2005. 

4. I had the benefit of a written outline of argument on behalf of the Mother.

Background

1. The Father contended that the parties commenced cohabitation in February 2005 and the Mother contended they commenced cohabitation in April 2005. 

2. While the Mother was pregnant she commenced a journalism course at TAFE which she attended two days a week for about six months and as well, she was in full time paid employment.

3. The Father worked full time during the relationship.

4. The child was born in November 2005 and at this time the Mother ceased paid employment.

5. The parties separated in February 2006 and after separation the child primarily resided with the Mother.  At this time the child was only approximately four or five months old.  The Mother was breastfeeding the child.  I have no doubt that both during the relationship and subsequent to separation the Mother was primarily responsible for the care of the child. 

6. The Mother said that initially after separation she would take the child to the Father’s house on Friday afternoons and collect the child at about lunch time on the following Sunday.  This arrangement continued for approximately three months.  During this period the Mother was breastfeeding the child and she would attend the Father’s home when it was time for the child to be fed.  The Mother said that this became inconvenient and often caused arguments.  She then expressed milk and provided the Father with the required amount needed for the weekend.

7. During the hearing I was able to ascertain in discussion with counsel that this arrangement for the Father to spend time with the child continued until about May 2006. 

8. In about May 2006 the Mother commenced a ten week acting course in Theatre and Television.  The Mother said that during the first three weeks of the course the child would stay with the maternal grandmother however, after the first three weeks the parties reached an agreement whereby the Mother dropped the child off at the Father’s home on the Thursday evening and collected her at lunchtime on the following Sunday. 

9. In May 2006 an Application for Final Orders was filed on behalf of the Mother in the Local Court at W.  In this Application the Mother sought “draft consent order” and also “urgent interim order”.  On the same day namely May 2006 an Application in a Case was filed on behalf of the Mother. 

10. During discussion it was agreed that in effect between May and August 2006 the Father would spend time with the child at least every second weekend.

11. The Mother contended that during this period an incident occurred when the Father did not return the child and she had to collect the child the following day. 

12. In her affidavit in support of the present application the Mother contended that she commenced proceedings in June 2006 and at the time had no legal representation.  I believe the proceedings were commenced in May 2006, although they may have come before the Local Court at W in June 2006.  The Mother contended, and I accept, that the proceedings were adjourned so as to enable the parties to obtain legal advice. 

13. The proceedings were again before the Local Court at W in June 2006 and July 2006 and on each occasion were adjourned. 

14. Then on 1 August 2006 the parties consulted and they reached, what the Mother described as a three month trial agreement regarding the Father spending time with the child.  The Mother attached to her affidavit a copy of the agreement and it provided in effect that the child would spend time with the Father each alternate weekend commencing on 11 August 2006 from 5.00 pm on Friday to 5.00 pm on the following Sunday and each alternate week from Wednesday at 5.00 pm to the following Friday at 5.00 pm if the Father was not working full time in paid employment.  The agreement provided that in the event that the Father was working in full time paid employment then he would spend time with the child each alternate Wednesday from 5.00 pm to the following Thursday morning.

15. The Mother contended that in August 2006 the proceedings before the Local Court were adjourned to early November 2006 to enable the parties to “trial the three month agreement”.  This was admitted by the Father.

16. As to the agreement the Mother said that the Father was not willing to complete the agreement and she attached to her affidavit copies of correspondence between the parties lawyers.  By letter dated 22 August 2006 a lawyer for the Father wrote to a lawyer for the Mother and advised that the Mother no longer agreed with the proposal and that the time the Father was spending with the child was in accordance with prior arrangements namely, each weekend from Friday to Sunday.  By letter dated 4 September 2006 a lawyer for the Mother wrote to the lawyer for the Father and advised that the Mother was willing to abide by the agreement but there were difficulties with the Father completing the agreement.  As well there was reference to the Father’s failure to attend an appointment and it was stated that contact would be suspended and resumed on terms of the agreement once an executed copy was received from the Father.  The Father had not signed draft consent orders.

17. In discussion it was agreed that the next relevant period was between August and November 2006.  In summary, it was agreed that the Father spent time with the child every second weekend from Friday afternoon to the following Sunday however, on some occasions the period of time would commence on a Thursday and on some occasions the child would return on the Friday.

18. The Mother contended that on 5 September 2006 she received numerous telephone calls from the Father and at one point he attended at the Mother’s home and the parties had an argument.  The Mother subsequently made an application for an Apprehended Violence Order.

19. On 28 September 2006 the Father’s lawyers filed a Notice of Ceasing to Act.

20. The Mother contended that on 11 October 2006 the parties reached an agreement and she attached to her affidavit a copy of the agreement, which appears to have been signed by both parties.  The Father agreed that the parents reached an agreement on 11 October 2006.  This agreement was stated to be a “trial based agreement” for a period three months commencing on 16 October 2006 and concluding on 16 January 2007.  It provided that in each alternate week the Father would spend time with the child from Friday at 2.30 pm until the following Sunday at 8.00 pm and in each alternate week from Wednesday at 9.00 am until the following Friday morning at 9.00 am.

21. An incident occurred on 13 October 2006 which may ultimately be explored at the hearing of the Applications for Final Orders.  The Mother contended that the Father would not return the child and as a result she suspended any arrangement whereby the child spend time with the Father.  In discussion at first I was informed that the Mother contended that the child did not spend any overnight time with the Father between 13 October 2006 and 20 January 2007, although he did see the child at the Mother’s home.  The Father however, contended that the alternate weekend arrangement continued during this period.  Again this issue may or may not be explored in more detail at the hearing of the Applications for Final Orders. 

22. On 13 December 2006 an Application for Final Orders was filed on behalf of the Mother.  As well, on 13 December 2006 an Application for Interim Orders was filed on behalf of the Mother.  In this application the Mother sought the following orders:

    1.      That the child namely, [a daughter], born [in] November 2005 (“the child”) shall live with the Applicant Mother.

    2.      That the mother/father have the sole responsibility for the daily care, welfare and development of the child during periods when they are with her/him, and that the mother/father have the sole responsibility for the daily care, welfare and development of the child during periods when they are with her/him.

    3.      That the child shall spend time with the father as follows:

    a.Every second weekend from Friday at 5.00 pm to Sunday at 3.00 pm.

    b.For the mother’s birthday:

    i.Should same fall on a day not a weekend and not during any contact period of the mother then the mother shall have care of the child that day from 1.00 pm to 6.00 pm.

    ii.Should same fall on a weekend and not during any contact period of the mother then the mother shall have care of the child that day from 10.00 am to 6.00 pm.

    c.For the father’s birthday, should same fall on a day not during a contact period then the father shall have care of the child from 10.00 am to 6.00 pm.

    d.For Mothers Day, should same fall on a day not during the contact period, then the mother shall have care of the child from 8.00 am to 6.00 pm.

    e.For Fathers Day should same fall on a day not during a contact period then the father shall have care of the child from 8.00 am to 6.00 pm.

    4.      The mother or mother’s parent’s shall drop the child off at the father’s sister’s residence at the commencement of contact and the father’s sister shall return the child to the mother’s or mother’s parent’s residence at the conclusion of contact.

    5.      The father and the mother shall keep each other informed at all times of their residential address, home telephone number and mobile telephone numbers AND shall notify the other of any change within 72 hours of the change.

23. I note that the interim orders sought by the Mother were in identical terms to the final orders sought by her.  The applications were returnable in the Local Court at W in January 2007.

24. The Mother contended that the parties reached another agreement and it was agreed that the Father would spend time with the child between 20 and 29 January 2007 and he did so.  However, he failed to return the child on 29 January 2007 and the Mother gave evidence about her attempts on that day to contact the Father.  The Mother was unsuccessful however, she finally made contact with the Father at approximately 2.00 am on 30 January 2007 and she contended that when she asked the Father why he had not returned the child he simply stated that he was “angry”.  The Mother collected the child the following day.  Thereafter the Mother suspended any time the child spent with the Father.

25. In February 2007 a Response to an Application for Final Orders was filed on behalf of the Father and on the same day a Response to an Application in a Case was filed on behalf of the Father.  The Father sought the following orders:

    1.      That the Mother and the Father have joint responsibility for the long term care welfare and development of the child of the relationship namely, [a daughter], born [in] November 2006 (“[the child]”).

    2.      That the Mother and the Father has sole responsibility for the day to day care welfare and development of [the child] whilst she is in each of their care.

    3.      That [the child] spend time with the Father as follows:-

    a)Every second week, during school term time from Sunday at 4.00 p.m. to Sunday at 4.00 pm the following week;

    b)The first half of each school holiday period, excluding the Christmas holidays;

    c)For half each Christmas school holiday period, being the first half in odd years, and the second half in even years;

    d)notwithstanding any other order herein, for the weekend that Father’s Day occurs from 5.00 p.m. Friday to 5.00 p.m. Sunday;

    e)By telephone at 6.30 p.m. on [the child’s] birthday, in the event that she is not with him, such telephone call to be implemented by the Mother telephoning the Father;

    f)By telephone at 6.30 p.m. each Sunday, to be implemented by the Mother telephoning the Father; and

    g)Such other times as are agreed upon between the parties in writing.

    4.      That [the child] spend time with the Mother at all other times, including, and notwithstanding any other orders herein, from 5.00 p.m. Friday to 5.00 p.m. Sunday on the weekend that Mother’s Day occurs.

    5.      That the Father’s time with [the child] be implemented by way of the Mother delivering her to the Father’s sisters home at [B] at the commencement and collecting her from the Father’s residence at the conclusion.

    6.      That the parties advise the other in writing of their current address and telephone number, and advise the other in writing of any change, including details of the new address and / or telephone number, in writing within forty eight hours of said change.

    7.      That the Mother immediately notify the Father in the event that [the child] suffers an injury or illness.

    8.      That the Mother pay the Father’s costs of and in connection with these proceedings.

    Again, I observe that the Father sought as interim orders a regime identical to what he proposed as final orders.

26. The Father swore an affidavit on 8 February 2007 which was in support of his Response to an Application in a Case.  He said that he had just begun working for his family in a family business.

27. The Mother contended that there were then negotiations during which she proposed that the Father spend time with the child from 12 noon on Friday 9 February 2007 to 5.00 pm on Sunday 11 February 2007 and the Father did not agree.  As well, the Mother proposed that the Father spend time with the child every alternate weekend from 12 noon on Friday to 5.00 pm on the following Sunday and she attached to her affidavit a copy of a letter dated 14 February 2007 sent to the Father’s lawyers.

28. On 15 February 2007 the Mother swore an affidavit in support of her Application in a Case filed on 13 December 2006.

29. In February 2007 the following orders were made in the Local Court at W:

    Transferred to Federal Magistrates Court at Newcastle

    Interim orders as sought in response to application in case.

    Parties directed to attend counselling

    See attached for Interim Orders

    1.      That the Mother and the Father have joint responsibility for the long term care welfare and development of the child of the relationship namely, [a daughter] born [in] November 2006 (“[the child]”).

    2.      That the Mother and the Father has sole responsibility for the day to day care welfare and development of [the child] whilst she is in each of their care.

    3.      That [the child] spend time with the Father as follows:-

    a)Every second week, during school term time from Sunday at 4.00 p.m. to Sunday at 4.00 pm the following week;

    b)The first half of each school holiday period, excluding the Christmas holidays;

    c)For half each Christmas school holiday period, being the first half in odd years, and the second half in even years;

    d)Notwithstanding any other order herein, for the weekend that Father’s Day occurs from 5.00 p.m. Friday to 5.00 p.m. Sunday;

    e)By telephone at 6.30 p.m. on [the child’s] birthday, in the event that she is not with him, such telephone call to be implemented by the Mother telephoning the Father;

    f)By telephone at 6.30 p.m. each Sunday, to be implemented by the Mother telephoning the Father; and

    g)Such other times as are agreed upon between the parties in writing.

    4.      That [the child] spend time with the Mother at all other times, including, and notwithstanding any other orders herein, from 5.00 p.m. Friday to 5.00 p.m. Sunday on the weekend that Mother’s Day occurs.

    5.      That the Father’s time with [the child] be implemented by way of the Mother delivering her to the Father’s sisters home at [B] at the commencement and collecting her from the Father’s residence at the conclusion.

    6.      That the parties advise the other in writing of their current address and telephone number, and advise the other in writing of any change, including details of the new address and / or telephone number, in writing within forty eight hours of said change.

    7.      That the Mother immediately notify the Father in the event that [the child] suffers an injury or illness.

    8.      That the Mother pay the Father’s costs of and in connection with these proceedings.

30. It will be observed that the learned Magistrate made interim orders that are in the same terms as the orders sought by the Father both on an interim and final basis.  The Magistrate also made an order that the proceedings be transferred to the Federal Magistrates Court at Newcastle.  The hearing before me is a hearing de novo however, I made it clear in discussions that I had grave doubts about why the Magistrate made the above orders and I maintain that opinion.  I observe that the orders included half of school holiday periods.

1. Then, on 26 February 2007 a Notice of Appeal was filed on behalf of the Mother and she seeks the following orders in the event that the appeal is successful:

   1.      That the child namely [a daughter] born [in] November 2005 (“the child”) shall live with the Applicant mother.

   2.      That the mother/father have the sole responsibility for the daily care, welfare and development of the child during periods when they are with her/him, and that the mother/father have the sole responsibility for the daily care, welfare and development of the child during periods when they are with her/him.

   3.      That the child shall spend time with the father as follows:

   a.Every second weekend from Friday at 5.00 pm to Sunday at 3.00 pm.

   b.For the mother’s birthday:

   i.Should same fall on a day not a weekend and not during any contact period of the mother then the mother shall have care of the child that day from 1.00 pm to 6.00 pm.

   ii.Should same fall on a weekend and not during any contact period of the mother then the mother shall have care of the child that day from 10.00 am to 6.00 pm.

   c.For the father’s birthday, should same fall on a day not during a contact period then the father shall have care of the child from 10.00 am to 6.00 pm.

   d.For Mothers Day, should same fall on a day not during the contact period, then the mother shall have care of the child from 8.00 am to 6.00 pm.

   e.For Fathers Day should same fall on a day not during a contact period then the father shall have care of the child from 8.00 am to 6.00 pm.

   4.      The mother or mother’s parent’s shall drop the child off at the father’s sister’s residence at the commencement of contact and the father’s sister shall return the child to the mother’s or mother’s parent’s residence at the conclusion of contact.

   5.      The father and the mother shall keep each other informed at all times of their residential address, home telephone number and mobile telephone numbers AND shall notify the other of any change within 72 hours of the change.

2. On 17 April 2007 the Mother swore a further affidavit.  In this affidavit, amongst other things, the Mother contended that the order made on 20 February 2007 “did not reflect the status quo” referring to the arrangements prior to the orders and I agree with this contention.  The Mother also made allegations about the effect on the child of the parenting regime established by the interim orders.  She also contended that the Father is working for his family in a family business approximately eight hours a day.  The Mother also contended that the Father currently attends rugby league training three days a week for approximately one to two hour sessions and as well plays rugby league football.  The Mother is currently attending university for five hours a week and apart from this commitment she is available to provide full time care for the child.

3. On the day of the hearing namely, 18 April 2007 an affidavit was sworn by the Father and he contended that when the child is with him she has never appeared to be overly tired or distressed.  He gave evidence about his involvement with the care of the child.  He contended that since 21 February 2007 he has arranged his casual work so that he works long hours in the week when the child is with the Mother and that when she is in his care he has rarely worked although he has gone to work on average on one occasion for two weeks when the child was spending time with him and that during this period the child was cared for by his mother.  The Father resides with his parents.

4. The Father contended that he takes the child to attend rugby league training and that she sometimes goes with one or more of his brothers or sisters and their children.  He said that he use to play second grade rugby union but he transferred to rugby league because the training was not so intensive and would not interfere with his time with the child.

5. It was agreed that at the conclusion of the current proceedings the file be returned to the Federal Magistrates Court in Newcastle and that the matter be dealt with in that Court.

Parenting - relevant principles

1. For a discussion of the relevant provisions of Pt VII of the Family Law Act1975 (Cth) see Goode and Goode [2006] FamCA 1346.

2. Section 61C(1) in Pt VII of the Family Law Act provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for that child.  The meaning of “parental responsibility” is defined in s 61B of the Act.  Parental responsibility means all the duties, powers and authority which by law parents have in relation to a child.  It relates to decision-making, not time to be spent with each parent.  The presumption relates only to parents, and has no application to orders for parental responsibility in favour of other people.  In Goode the Full Court said that the parents may still be together or may be separated; there will be no court order and the parents may exercise the responsibility either independently or jointly.  

3. However, by virtue of s 61C(3) the joint parental responsibility is subject to any order I may make.  Section 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.

4. Section 65D(1) of the Act provides, subject to a presumption of equal shared parental responsibility in s 61DA, parenting plans and Div 6 of Pt VII, that I may make such parenting order as I think proper.  Section 64B(1) defines the term “parenting order” and s 64B(2) specifies the matters that a parenting order may deal with.  This includes the person with whom a child is to live, the time a child is to spend with another person and the allocation of parental responsibility for a child.  Section 64B(3) provides that an order may deal with allocation of responsibility for making decisions about long-term issues.

5. In deciding whether to make a particular parenting order in relation to a child s 60CA requires that I regard the best interests of the child as the paramount consideration: see also s 65AA.

6. In determining what is in the best interests of a child I must consider the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3) of the Act.  There are two primary considerations and 13 additional considerations.  I must also have regard to the objects of Pt VII identified in s 60B(1) and the principles expressed in s 60B(2) underlying the objects.

7. As to the two primary considerations, the first is the benefit to the child of having a meaningful relationship with both parents.  The second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  The terms “abuse” and ‘”family violence” are defined in s 4 of the Act.

8. The 13 additional considerations include the views of the child, the nature of the relationship of the child with each of the parents, the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents. 

9. Section 60CG requires that I ensure that any order I make is consistent with any family violence orders and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount.

10. Section 61DA(1) provides that when making a parenting order I must apply a presumption that it is in the best interests of the child for the parents to have “equal shared parental responsibility” for the child.  It is a presumption that relates solely to the allocation of parental responsibility as defined in s 61B.  It is not a presumption about the amount of time a child spends with each parent.  The presumption does not apply in certain circumstances.

11. Section 65DAC deals with the effect of a parenting order that provides for shared parental responsibility and specifies that the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.  Section 65DAC(2) provides that the order is taken to require that the decision is to be made jointly by the persons who have shared parental responsibility.  The term “major long term issues” is defined in s 4 and includes issues relating to education and religious upbringing.  However, s 65DAE makes clear that a shared parental responsibility order does not require consultation about issues that are not major long term issues unless a contrary order was made. 

12. In Goode the Full Court said that there is a difference between parental responsibility which exists as a result of s 61C and an order which has the effect set out in s 65DAC.

13. Section 61DA(2) provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence.  Further, s 61DA(4) provides that the presumption may be rebutted if I was satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.  In summary, if the presumption does not apply or is rebutted then I must determine, without any presumption, what order relating to parental responsibility, if any, would be in the child’s best interests, applying s 60CC and s 60B.

14. If I am satisfied that the presumption of equal shared parental responsibility does apply then by s 65DAA(1) I have to consider whether it would be in the best interests of the child to spend equal time with each parent and whether it is reasonably practicable for the child to spend equal time with each parent.  If both conditions are satisfied I then must consider making an order for the child to spend equal time with each parent.  In determining the first matter, namely whether it would be in the best interests of the child to spend equal time with each parent, I have to apply s 60C and s 60B.  In determining the second matter, namely whether it is reasonably practicable, I am required to consider the matters in s 65DAA(5).

15. If I am satisfied that the presumption of equal shared parental responsibility applied but that an order not be made for the child to spend equal time with each parent then by s 65DAA(2) I have to consider whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether it is reasonably practicable for the child to spend substantial and significant time with each parent.  If both conditions are satisfied then I must consider making an order for the child to spend substantial and significant time with each parent.  Again, in determining the first matter namely whether it would be in the best interests of the child to spend substantial and significant time with each parent I have to apply s 60C and s 60B   In determining the second matter, namely whether it is reasonably practicable I have to consider the matters in s 65DAA(5).  Section 65DAA(3) sets out what is meant by substantial and significant time.

16. In Goode the Full Court said that in the event that neither the concept of equal time nor substantial and significant time “delivers an outcome that promotes” the best interests of a child then “the issue is at large and to be determined in accordance with” the best interests of the child.  The best interests of a child are determined by consideration of the matters in s 60B and s 60CC.

Interim proceedings

1. Section 61DA(3) provides that when making an interim order the presumption of equal shared parental responsibility applies unless I consider it would not be appropriate in the circumstances for the presumption to be applied when making the order.  In Goode the Full Court said that this is an important sub section and that it provides a discretion not to be exercised in a “broad exclusionary manner but only in circumstances where limited evidence may make the application of the presumption or its rebuttal difficult”.  The Full Court also set out what it identified as the “legislative pathway” that “must be followed” in making interim decisions.

2. The legislation, with the exception of s 61DA(3), does not contain any provisions that deal separately or discretely with the “legislative pathway” to be followed in making interim decisions.  In my view, and it is apparent from what was said by the Full Court in Goode, that in making both, what I will call a final decision and an interim decision, the legislative pathway is as specified in the Act and it is the same pathway.  For example the Full Court said that there is no distinction drawn in s 61DA between interim and final proceedings.  In making an interim decision I have to take into account precisely the same statutory considerations that I have to take into account when making a final decision.  However, in my view, in applying the statutory considerations it has to be undertaken in the context of the nature of the enquiry and the purpose.  The enquiry at an interim stage is ordinarily, and for good reasons, very limited.  The hearing ordinarily proceeds in a truncated way and there is no oral examination of either party or any witness.  In Cowling and Cowling (1998) FLC 92-801 it was described as an “abridged process” and in Goode the Full Court referred to the “circumscribed nature of the proceedings”.   There may be issues in dispute in relation to which no finding can be made except at the hearing of the applications for final orders.  As well, the purpose of the inquiry is to decide on an interim basis a parenting regime that is in the best interests of a child pending the hearing of the applications for final orders.  Thus it follows that certain statutory considerations may be given more or less weight in making an interim decision than they would be when making a final decision.  For example, in Goode the Full Court said that the maintenance of a stable or well-settled arrangement will be one of the factors to be considered pursuant to the additional considerations in s 60CC(3) and to be determined in conjunction with the primary consideration in s 60CC(2)(a) of the benefit to the child of having a meaningful relationship with both of the parents.

3. In Goode the Full Court also said that because of the nature of the hearing the “reasons given…may be brief”.  I agree with this however, this may not always be possible given the “legislative pathway”  the Full Court said  “must be followed” in making interim decisions.

Statutory considerations

1. In this case I have already identified the competing proposals.  It is apparent from what I have set out in relation to the proposed parenting regimes where the parties are at issue.

2. There are a number of agreed relevant facts.  There are a number of relevant facts which are in dispute.

3. I propose to first deal with each of the two primary considerations in s 60CC and then the 13 additional considerations in that section having regard to the object and principles of Pt VII.  I will then consider whether the presumption of equal shared parental responsibility does not apply or if it would not be appropriate in the circumstances for the presumption to be applied or if it is rebutted.  If the presumption does apply and it is appropriate that it be applied and it has not been rebutted then pursuant to s 65DAA I will consider whether the child is to spend equal time or substantial and significant time with each parent. 

Primary considerations

1. I am required to consider the benefits to the child of having a meaningful relationship with both of the parents.  This is an important matter.  It is important that the child have a meaningful relationship with both parents and this is agreed. 

2. I am required to consider the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. 

3. On behalf of the Mother it was submitted that the retention by the Father of the child on three occasions “has the potential to cause the child psychological harm”.  This matter may have to be investigated however the evidence does not enable me to safely conclude that there is any need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. 

Secondary considerations

1. I am required to consider any views expressed by the child and any factors, such as the maturity or level of understanding of each child, that I think are relevant to the weight I should give to the views of the child.  Section 60CD sets out how I may inform myself of views expressed by a child.  However, I am not permitted to require a child to express views in relation to any matter: see s 60CE.  This matter is not relevant.

2. I am required to consider the nature of the relationship of the child with each of the parents and other persons including any grandparent or other relative of each child.  This is an important matter.  I accept that the child has a good relationship with each of the parents.

3. I am required to consider the willingness and ability of each of the parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.  In this context, I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child and to spend time with the child and to communicate with the child.  I also have to consider the extent to which each of the parents has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to the child and spending time with the child and communicating with the child.  I am also required to consider the extent to which each of the parents has fulfilled or failed to fulfil his or her obligation to maintain the child.  If the parents have separated I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated.  This is an important matter. 

4. I am satisfied that both parents have demonstrated a willingness and ability to facilitate, and encourage, a close and continuing relationship between the child and the other parent. 

5. I am required to consider the likely effect of any changes in the circumstances of the child including the likely effect on the child of any separation from either parent or any other child or other person including any grandparent or other relative of the child, with whom the child has been living.

6. This is an important matter.  I am satisfied that after the birth of the child both during the relationship and after separation the Mother was primarily responsible for the care of the child.  This situation existed for approximately 14 or 15 months until it was changed on 20 February 2007.  The current arrangement has only been in place for approximately eight weeks.  I am satisfied that prior to 20 February 2007 there was a stable arrangement in place and that this was particularly important for this very young child.  I do not accept that the fact that a different arrangement has existed for approximately eight weeks is a reason why significant weight should not be given to the prior comparatively long standing arrangement.  Before this long standing arrangement was changed amongst other things I am of the view that there should be evidence as to the effect on such a young child of separation for significant periods from the primary carer.

1. I am required to consider the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the right of the child to maintain personal relations and direct contact with both parents on a regular basis.  This does not appear to be an important matter.

2. I am required to consider the capacity of each of the parents and any other person including any grandparent or other relative to provide for the needs of the child, including emotional and intellectual needs.  This is an important matter.

3. I am satisfied that the Mother has the capacity to provide for the needs of the child, including emotional and intellectual needs.  This is acknowledged by the Father given the post separation arrangements and what he seeks on an interim and final basis.  However, there are issues about the capacity of the Father to care for the child on an extended basis.  There are issues about his employment and involvement in other activities.  The Father lives with his parents and I infer that he may be dependent on others for assistance.  However, there is no evidence from any members of the paternal family

4. I am required to consider the maturity, sex, lifestyle and background including lifestyle, culture and traditions of the child and of either of the parents and any other characteristics of the child that I think are relevant. 

5. This is an important matter.  As I have said the child is very young.  Next, it is important for the child to have a connection with the culture of each parent.  The Father said that he has a very strong ethnic and cultural of New Zealand Maori and Cook Island.

6. I am required to consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents.  In this context, I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child and to spend time with the child and to communicate with the child.  I also have to consider the extent to which each of the parents has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to the child and spending time with the child and communicating with the child.  I am also required to consider the extent to which each of the parents has fulfilled or failed to fulfil his or her obligation to maintain the child.  If the parents have separated I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated.

7. These matters may be important.  I am satisfied that the Mother has an appropriate attitude to the child and to the responsibilities of parenthood.  There were some incidents during 2006 when the Father failed to return the child as he was required to do that may be relevant to his attitude to the child and to the responsibilities of parenthood.

8. I am required to consider any family violence involving the child or a member of the child's family.  I am also required to consider any family violence order that applies to the child or a member of the child's family if the order is a final order or the making of the order was contested by a person.  The term "family violence order" is defined in s 4 of the Act to mean an order including an interim order made under a prescribed law of a State or Territory to protect a person from family violence.  The parties to the proceedings must inform me of any family violence order if they are aware that a family violence order applies to the child or a member of the child's family.  In considering what order to make I must to the extent that it is possible to do so consistently with the best interests of the child being the paramount consideration ensure that any parenting order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence: s 60CG(1).  I may also include in any order any safeguards that I consider necessary for the safety of those affected by the order; s 60CG(2).

9. There is an apprehended violence order however I am of the opinion that these matters are not relevant to what I have to currently decide.  No submissions were made about these matters.

10. I am required to consider 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.  There will be further proceedings namely the hearing of the applications for final orders.

11. I am required to consider any other fact or circumstance that I think is relevant.  There is nothing I want to say about this consideration beyond what I have said elsewhere.  However, it is relevant when considering this matter to have regard to what was the settled arrangement prior to 20 February 2007.

Conclusion – parenting

1. I am satisfied that the presumption of equal shared parental responsibility does apply.  However, given the age of the child, the separation of the child from the primary carer and the issues in relation to the capacity of the Father to provide for the child on an extended basis it would not be appropriate in the circumstances for the presumption to be applied.  If I am in error in relation to this last finding then for the same reasons in my view the presumption has been rebutted.  Thus I do not have to consider whether the Father should spend equal or significant and substantial time with the child.

2. I am satisfied that until the hearing of the applications for final orders it is in the best interests of the child that she primarily live with the Mother.  However, I am also of the opinion that it is in the best interests of the child that she spend time with the Father.

3. The Father should spend time with the child each week including for some overnight periods.  This is consistent with what happened during 2006.  Given the importance of the child spending time with the Father and I am going to make an order that he not engage in employment during such periods.  Amongst other things, this is because of the acceptance, including by the Mother, of the benefits to the child having a meaningful relationship with the Father.  However, I accept that the Father may during daylight hours rely on the assistance from members of his family when he plays football on a weekend.

4. I am not going to make an order for the Father to spend extended periods of time during what are the gazetted school holiday periods.  The child does not attend school. 

5. I observe that given the age of the child and other matters the orders I propose to make may satisfy definition of substantial and significant time in 65DAA(3).

6. The parties sought that the file be returned to the Federal Magistrates Court in Newcastle because it is believed that the applications for final orders will be resolved in that court sooner than they could be resolved in this court.  I make no comment about this except that I infer that the parties are anxious to have the matter finally determined as soon as possible

I certify that the preceding 87 paragraphs are
a true copy of the reasons for judgment
of the Honourable Justice O’Ryan

………………………………………………………..
Associate: 
Date: 20 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as TOWNSEND & BROOKBANK