TURNBULL & TURNBULL

[2015] FamCA 1099

FAMILY COURT OF AUSTRALIA

TURNBULL & TURNBULL [2015] FamCA 1099

FAMILY LAW – CHILDREN – Interim parenting – Previous interim orders in place – Where the father has since obtained employment some distance from the mother – Issue over where the child should attend school in the coming year, time spent with the father and changeovers – Significant interpersonal conflict between the parents – Best interests of the child – Where the child has established a relationship with the school proposed by the mother and both proposed schools are a significant distance from the father –The child to attend the school proposed by the mother – Where the interests of the child in a meaningful relationship with both parents is indicative of substantially retaining the current regime of the child’s time with the father – Changeover arrangements given the parents’ conflict.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA

Goode and Goode [2006] FamCA 1346
Kirkland and Granger [2007] FamCA 1471
Marvel & Marvel(No. 2) [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
Raymond and Harold [2009] FamCA 155
Re G: Children’s Schooling [2000] FamCA 462
Turnbull [2014] FCCA 2606

APPLICANT: Ms Turnbull

RESPONDENT: Mr Turnbull

FILE NUMBER: PAC 4597 of 2014

DATE DELIVERED: 10 December 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 30 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dura

SOLICITOR FOR THE APPLICANT: M & K Lawyers

COUNSEL FOR THE RESPONDENT: Mr Levy

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

Orders pending further order:

1. That Orders 3 and 4 made on 14 November 2014 be discharged.

2. That the child spend time with the father as agreed between the mother and father in writing with such writing to include but be not limited to SMS or email communication and in default of agreement as follows:

   (a)       until the commencement of school term one in 2016 each alternate week from after day care on Friday to before day care on Monday commencing Friday, 11 December 2015 and in each other week from after day care on Monday to before day care on Tuesday commencing Monday, 21 December 2015;

   (b)       that from the commencement of school term one in 2016 and thereafter during school term each alternate week commencing on the first weekend after the resumption of school term from after-school care on Friday to before school care on Monday and in each other week from after school care Monday to before school care on Tuesday;

   (c)       during the Term 1, 2 and 3 mid-year public school holidays from after school care on the last day of school term until 5.00 pm on the midpoint Saturday of such holiday period;

   (d)       from 4.00 pm Christmas Eve 2015 until 1.00 pm Christmas Day 2015 provided always that the father’s time with the child shall be suspended thereafter until 6.00 pm on 26 December 2015.

3. That both the mother and father be at liberty to attend on such occasions and at such events as are significant to the child’s welfare being occasions relating to education, religious education, health, sporting activities, extracurricular activities or other occasions significant to the welfare of the child where the attendance of either or both parents is to be reasonably expected.

4. That for the purposes of the father’s time with the child where changeovers cannot be facilitated at day care or before and after school care as the child is not attending either of those facilities on the relevant day then changeovers for the commencement of the father’s time shall be at the mother’s residence at 6.30 pm and at the mother’s residence at 6.30 am at the conclusion of such time and that for the purposes of other changeovers as provided for above such changeovers shall be at the mother’s home.

5. That the mother shall be permitted to do all things necessary and sign all necessary documents so as to procure the enrolment and attendance of the child at the Suburb A Public School and the before and after school program operated by the Suburb A Early Learning Centre pending further order and this order shall be sufficient authority for the mother to do so.

6. That for the purposes of the child’s collection from or delivery to day care or before and after school care the father is authorised to nominate members of his extended paternal family to assist in that regard together with such other person or persons as the mother and father shall agree in writing with such writing to include be not limited to SMS or email communication.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4597  of 2014

Ms Turnbull

Applicant

And

Mr Turnbull

Respondent

REASONS FOR JUDGMENT

Context

1. The mother has filed an Application in a Case seeking interim parenting orders in relation to the only child of her relationship with the father, B born in 2010 (“the child”).

2. The application comes before the Court in circumstances where the proceedings have been ongoing now for more than 12 months. The proceedings were commenced in the Federal Circuit Court by the father on 25 September 2014.

3. On 30 October 2014 and order was made for the preparation of a family report.

4. On 14 November 2014 interim orders were made by Judge Dunkley in the Federal Circuit Court following an interim hearing (Turnbull & Turnbull [2014] FCCA 2606) that provided for:

   a)The mother and father to have equal shared parental responsibility for the child;

   b)For the child to live with the mother;

   c)For the child to spend time with the father in one week from 6.00 pm Sunday until 6.00 pm Tuesday and in the other week from 6.00 pm Friday to 6.00 pm Sunday and at such other times as the parties may agree;

   d)Changeovers were to be effected either at the child’s preschool the Suburb A Early Learning Centre or the mother’s home as applicable; and

   e)That the parties contact the Family Relationships Centre at Suburb C for the purposes of engaging in a post-separation parenting course designed to improve their communication and dealings with each other about the child’s parenting.

5. On 13 August 2015 a family report by Mr D was released to the parties and then on 4 September 2015 proceedings were transferred to this Court.

6. It is of some moment to note that the recommendations in the family report, which are referred to below, were made in the context of the father at that time continuing to live within close proximity to the mother. Certainly since the release of the family report the father’s circumstances as to employment and the necessity for significant travel to and from his place of employment have significantly changed.

The issues

1. Ultimately at interim hearing the issues for determination were limited to the following:

   a)The child’s schooling arrangements on an interim basis particularly in relation to the 2016 school year;

   b)The appropriate time for the child to spend with the father;

   c)The father’s arrangements for the child’s delivery to, and pick up from, the Early Learning Centre or from the commencement of school, before and after-school care when the child is to be in his care.

2. The mother sought orders on an interim hearing that provided for:

   a)The child be enrolled in and attend the Suburb A Public School;

   b)The child’s time with the father to be from 6.00 pm each alternate Friday evening to 6.00 pm Sunday and in default of the father collecting the child by 8.00 pm on Friday then the child’s time with the father commence at 8.00 am Saturday; and

   c)That changeovers be affected at the mother’s home.

3. The father sought orders that substantially provided for:

   a)The child to be enrolled in and attend at E School, Suburb F;

   b)That in addition to the child spending time with the father as provided for in the orders of November 2014, there be orders for the child to spend time with the father:

   i)Over the Christmas festive period 2015 and 2016;

   ii)During the Term 1, 2 and 3 school holiday periods in 2016;

   iii)During the Christmas school holiday period 2016/2017; and

   c)That changeovers take place either at the Suburb A Early Learning Centre or after school care and otherwise from the McDonald’s Family Restaurant at Suburb G, to be facilitated by the father or his nominee.

The relationship

1. The parties married in 2009, having commenced cohabitation in December 2006.

2. The subject child is the only child of their relationship. The mother worked full-time until shortly before the birth of the child in 2010 and thereafter remained on maternity leave until early November 2010.

3. Subsequent to the mother returning to work, the paternal grandmother cared for the child on Mondays. The child attended childcare in the Sydney CBD near the mother’s place of employment on Tuesdays, Wednesdays and Thursdays and the father cared for the child on Fridays. In early 2011 the father returned to full-time work and the child commenced to attend day care four days per week. Then the mother was between jobs from 21 February 2011 until 18 April 2011 and during that time she cared for the child full-time. In August 2012 the paternal grandmother ceased caring for the child on a Monday and the child commenced day care five days per week.

4. The mother was retrenched from her then employment on 11 March 2014 and commenced her current employment on 16 June 2014. In the intervening period the child continue to attend day care on Friday and otherwise the mother cared for the child at home.

5. The mother and father separated in September 2014 and the father at that time or shortly thereafter commenced another relationship. There is a child of that relationship, H, born in 2015, who resides with his mother in I Town. The father is no longer in that relationship.

6. The father, who works in a professional occupation, ceased employed in April 2015 and thereafter had made little contribution financially by way of child support or other expenses for the child. The father then obtained further employment about 5 November 2015, commencing work at a law firm in the I Town CBD.

7. He has maintained his residence at Suburb J, a short distance from the mother’s residence at Suburb G, and has made arrangements for accommodation in I Town for two or three nights mid-week each week.

8. However it is common ground that the travel to and from I Town depending on traffic would take about two and a half hours.

9. The mother has expressed concern that various other people have been dropping off and collecting the child from the early learning centre other than the father.

Schooling

1. The mother has considered arrangements for the child’s schooling for the commencement of the school year in 2016. She says that she formed the view it would be in the child’s best interests to attend the Suburb A Public School for various reasons including:

   a)The school is adjacent to the child’s present day care centre where the child has attended for some years;

   b)Most of the children from the day care centre will commence attending the school in 2016;

   c)Some of the child’s friends are already at the school;

   d)The child care centre also runs the before and after school program for the school and the child will thus be familiar with that venue for before and after school care;

   e)The child has also attended some transition to school sessions at the public school through the day care centre;

   f)The hours offered for before and after school care at the Early Learning Centre is of some utility in relation to the work hours of both the mother and father.

2. The child has attended the Kindergarten orientation day at the Suburb A Public School.

3. The mother communicated her various preferences in relation to the child’s school to the father by email in early February 2015. The father responded outlining his preference for the child to attend E School at Suburb F.

4. The child is able to attend at the Suburb A Public School or E School depending on the outcome of this application. The mother has also made arrangements for the child to be enrolled in the before and after school care operated by the Early Learning Centre five days per week in 2016.

5. The father it appears unbeknownst to the mother had sought to enrol the child in the Suburb J Out of School Hours Care Centre. The mother has been informed by that centre that there is no place available for the child.

6. The father expresses concern that the mother’s proposed school is a small school which has one class per year and some composite classes. The father further had said that the school would be difficult for him to get to should he be working in the CBD in Sydney when he obtains employment. Subsequent to expressing that concern he has not obtained employment in Sydney but in the I Town CBD even further distant from the mother’s proposed school and still a very significant distance from the school proposed by him.

7. The travel time from the father’s home at Suburb J to the mother’s home at Suburb G was substantially agreed at about 10 – 15 minutes. The further travel time from the mother’s home to the mother’s proposed school was a further 10 – 15 minutes. The father’s proposed school is about equidistant between the mother’s home and the father’s home but as is the mother’s proposed school, it is about two and a half hours’ drive from I Town.

8. The father proposes E School at Suburb F, a systemic Christian school with fees of about $1500 per annum. The father has sought to make arrangements for the child to be enrolled at E. The father has arranged for a place to be available for the child at before and after school care which operates from 6.45 am until 6.30 pm each school day. In the alternative the father proposes that the child attend Suburb K Public School.

9. The father asserts that E offers an excellent curriculum and extra-curricular activities. He asserts that the child would quickly make new friends at the school.

10. In the context of the competing proposals the school that affords the best opportunities for this child awaits determination at a final hearing.

The parties’ conflict

1. In his Reasons for Judgment referred to above, Dunkley J said:

   7. At the directions hearing on 29 October 2014 the parties were directed to attend a Child Dispute Conference pursuant to s.11F of the Family Law Act 1975. 

   8.        As a result of that conference the Family Consultant reported that some of the issues impeding resolution were as follows:

   •         The parties were in dispute about the father’s relationship with [the child].

   •         The mother was not prepared to enter into a discussion about when it would be suitable for [the child’s] time with her father to be progressed or what the progression should be. She was adamant that overnight time would not occur in the near future and that the child needed an unidentified amount of time to adjust to the current orders.

   9.        The Consultant also noted:-

   This conference has raised significant concerns about the impact of the parental conflict on [the child] and the potential for it to undermine [the child’s] relationship with her parents. It is recommended that these parents attend Family Therapy to assist with the parental conflict, adherence to orders and progression of [the child’s] time with her father.

   10.      After returning from the Child Dispute Conference insufficient time then remained for an Interim Hearing and the case was listed for Interim Hearing on 30 October 2014. The father sought at the Interim Hearing more than twenty interim parenting orders including:

   The mother is restrained from conveying to [the child] either verbally or non-verbally or from permitting any other person to convey to [the child], that the mother is disappointed or upset with the father or the mother is disappointed or upset because the child is going to spend time with the father or because the child has spent time with the father.

   And:

   Each parent is to facilitate the child taking the child’s belongings including clothes and toys freely between the parents respective residences.

   11.      The representative for the father was unable to elaborate how either of those orders could be implemented or enforced if made. Many of the other orders did not necessitate an interim determination and were perhaps indicative of a person who sought to unnecessarily control a former partner through the guise of parenting orders.

2. Dunkley J then said:

   42.      Clearly from the above each of the parties is inappropriately involving [the child] in the parental separation discourse. [The child] is unlikely to understand the term “coaching” but each party blithely uses it. This is indicative of and supports the Family Consultants opinion that the parents need to seek professional advice about how to support the child’s relationships and adjustment to the parenting arrangements.

   43.      The father is highly critical of the mother as to her capacity to feed [the child] properly, her propensity to use physical discipline with the child, her bringing [the child’s] puppy to changeover and her unwillingness to foster overnight time and relationship for him with the child, and concerning the mother’s mental health.

   44.      The mother for her part does not accept that the father was a capable parent. She believes that the father’s mental health affects his capacity to parent the child. She believes the circumstances of his living at a home owned by his mother provides substandard housing that is dangerous to [the child]. She does not believe [the child] has a good relationship with the father.

   45.      Clearly these parties will focus on any deficit in the other party as a means of bolstering their court application. There is a “tit for tat” quality to their complaints, indicative of immaturity and immature parenting.

   46.      Neither is entirely focused on [the child] and her wellbeing at this point in time.

3. Nothing has changed.

4. In the family report (Exh C) the mother complains that the father was refusing to adhere to day care arrangements whilst the father claims that the child is unsettled by the mother’s “obsessive” behaviour at home changeovers. The mother further complained about the father’s controlling behaviour towards her during the marriage and that he had been more preoccupied with his own interests.

5. The father had been seeing a clinical psychologist Mr L since March 2013 that being about 18 months before separation. A report dated 22 October 2014 (Exh H) reveals that on initial presentation the father reported symptoms suggestive of acute stress mood and anxiety difficulties triggered by ongoing issues at his place of work. The father later complained of marriage difficulties describing the mother as “verbally and emotionally abusive”. The psychologist “observed the father exhibit many of the neurovegetative symptoms of depression/adjustment and acute stress difficulties”. The father was engaged by the psychologist in elements of cognitive behavioural therapy working to problem solve ongoing issues in his workplace and in his marriage.

6. The notes of the father’s meetings with the psychologist reveal the father disclosing an admission to hospital in early March 2013 following a minor stroke and the father collapsing at work with an ambulance being called.

7. The father had somewhat unformed proposals on interview with the family consultant wanting the child to either live with him primarily, spend equal time on a week about basis or maintain the current arrangements as put in place by the interim orders.

8. The father complained that the child was affected by the mother’s alleged hostility towards him and her possessive behaviour. The family consultant observed that the mother appeared to regard the father and his mother as threats to her emotional security. The family consultant said that unresolved relationship issues were affecting the parties’ communication over the child.

1. Whilst in the context of an interim hearing it is difficult to make findings of fact, the allegations made by the parties against each other as to their conduct and communication is clearly indicative of an interpersonal relationship that is fraught with suspicion, obstinacy and conflict.

2. It is also apparent that the post-separation relationship between the father and the mother of the child H has ended in less than satisfactory circumstances as evidenced by that mother’s correspondence with the father’s solicitors. That correspondence provides further concern as to the father’s capacity in relation to managing interpersonal relationships.

Changeovers

1. The mother makes complaint that persons unknown to her have been delivering the child to and collecting the child from the Early Learning Centre. Ultimately it became apparent that she was aware that the father’s grandfather’s partner has been able to assist the father as she resides nearby in Suburb M. The mother makes no complaint about her involvement.

2. The paternal grandmother who had a significant engagement with the child as referred to above enjoys a good relationship with the child and is also available to assist the father.

3. The mother’s complaint is that the father’s new girlfriend who is not known to her was authorised by the father without the mother’s knowledge to deliver and/or collect the child from the Early Learning Centre. This person was not on evidence and nothing is known of her in the context of the present parenting issues between the mother and father or her suitability.

4. The father makes no complaint about such arrangements as the mother may make with the Early Learning Centre for the child’s delivery thereto and pick up therefrom.

5. The father says that on Monday and Friday afternoons he leaves work at 5.00 pm and generally arrives home at about 7.00 pm. This is inconsistent with his own assertion as to the length of the trip. The inference is that he is more likely to arrive home between 7.30 pm and 8.00 pm. The father says that once the child commences school he will also be assisted by a paid nanny in relation to changeovers and child care whilst he is travelling to and from work in addition to the assistance provided by either his mother or his grandfather’s partner.

Discussion – Schooling

1. The question of children’s schooling was considered by the Full Court of the Family Court in Re G: Children’s Schooling [2000] FamCA 462. The Full Court in re-exercising the discretion proceeded on the basis that (at [65]):

   … although there is no legal presumption in favour of the residence parent and, correspondingly, no hurdle or onus faced by the other parent, that is not to say that the reality of the children residing predominantly with one parent has no relevance.

2. Cronin J in Kirkland and Granger [2007] FamCA 1471 said at [60]:

   There is little doubt therefore that an impasse between parents relating to both current and future education is a matter within the definition of parental responsibility and one which should the parties not be able to agree upon, a court should step in to their shoes. The Act gives no guidance as to how that decision making process is to occur save that any decision must be in the best interests of the child. Section 65D (1) says that the court may make such parenting order as it thinks proper.

3. Young J in Raymond and Harold [2009] FamCA 155 said at [204]:

   … There are many reported decisions of this court dealing with the determination of the appropriate school, the most often cited of which is the decision of the Full Court in Re G: Children’s Schooling [2000] FamCA 462 where the various factors considered by that court on the schooling issue included:

   othe wishes of the child, where appropriate;

   oany prior agreement in relation to schooling;

   oany change to the existing arrangements;

   oany anxiety which the child may experience as a result of changing peer groups;

   othe views of the parents about the aspect of change upon the  a child;

   othe travel time to school;

   othe costs of education;

   oany particulate issue that may have a real impact upon the child and his immediate schooling and social environment

   The above list of matters are not exhaustive. They vary from case to case and are always to be tailored to the individual needs of the child.

4. The present issue as to schooling is raised on an interim basis without the opportunity of contested and, if appropriate, expert evidence as to the educational requirements and educational opportunities offered to the child by the school’s proposed by each of the parents.

5. The child is in a well-settled arrangement in the primary care of the mother and has an established a relationship as discussed above with the school proposed by the mother. Indeed, the child has attended her kindergarten orientation at that school.

6. The father’s new employment in I Town renders any argument as to the exigencies of distance between the various schools proposed of no assistance in the context of this interim hearing. A detailed consideration as to schooling will remain for final determination on the basis of appropriate evidence in due course.

7. The child is young and will be beginning her first year of formal schooling in kindergarten in 2016. On present indications final parenting proceedings between the parties will be heard to finality in this Registry well before the end of the 2016 school year. If ordered at that time the child will be able to transition to such other school as is determined on the evidence.

8. A consideration of the factors referred to above are clearly indicative of the child at least on an interim basis remaining in her present day care and proposed school arrangements thus preserving her present peer group and social capital pending final hearing.

Parenting

1. In Marvel & Marvel(No. 2) [2010] FamCAFC 101 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the difficulties associated with making findings on contested evidence as follows:

   120.     As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   …

   122. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   123.     Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

2. The relevant principles in relation to parenting are well settled Goode and Goode [2006] FamCA 1346. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

3. Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child. In the context of this matter it is not necessary to undertake a detailed examination of each of the consideration set out in s 60CC. The issues are limited as discussed above.

4. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. In this matter interim orders have already been made for the mother and father to have equal shared parental responsibility and for the child to live primarily with the mother. It is not necessary in the context of this application to further consider the question of parental responsibility nor as it turns out, on the proposals of each of the parties the question of equal time.

5. The question for determination relates to the time the child will spend with the father where he proposes orders that provide for the child to spend substantial and significant time with him. The mother is substantially in agreement in her proposals were reflective of substantial and significant time.

The Law: s 60CC

The Primary Considerations: s 60CC(2)

1. The primary considerations are:

   a)The benefit to the child of having a meaningful relationship with both of the child's parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

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

1. In Mazorski & Albright [2007] FamCA 520; Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

3. The subject child is young and will commence formal schooling in  2016. The mother expresses concern about the significant travel to be undertaken by the father and the lateness of the hour at which he may collect the child from day care or after school care and the early hours that the child may need to be delivered to the same services. However the mother faces the same difficulty as the father and she also has the assistance of family members.

4. The child has spent four nights per fortnight with the father and it appears members of his extended family.

5. The child, the father asserts, has a developing relationship with her half sibling. Although the nature of the father’s ongoing relationships with the mother and with this child appears to be at the moment a matter of conjecture.

6. However it is important for the child to continue to enjoy a regular relationship with the father as has continued since separation. Such a relationship will be valuable and important to the child in years to come. This consideration is indicative of substantially retaining the current regime of the child’s time with the father.

7. The mother makes reference to some attachment difficulties that the child exhibits in her presence including the child co-sleeping with her. This is an inappropriate arrangement.

8. Otherwise it is to be inferred that the child has been exposed to the conflict between the parents as they each detail in their respective affidavits. It would thus be not surprising that the child is commencing to exhibit signs of an anxious attachment with the mother. The nature of the mother’s relationship with the child will await consideration of a further more detailed family report having regard to the substantially changed circumstances of the father.

Section 60CC(2)(b) – need to protect

1. This is not a significant consideration save for the mother and father being conscious of the need to not expose the child to their conflict either verbally or by conduct. As referred to above there are commencing signs that the child may be developing anxious attachment as a consequence of the behaviour of both the mother and father.

The additional considerations: s 60CC(3)

1. The child is young age and even if there was an expression of views for the Court’s consideration they would be afforded little or no weight.

2. The nature of the relationship between each of the parents is discussed above and they both need to look introspectively at the way in which they are managing their interpersonal relationship. Neither has any real reflective capacity as to the needs of their child. It is clear that the only person that may suffer as a consequence of their ongoing behaviour is the child.

3. The child enjoys a good relationship with extended paternal and maternal family

4. Both parents until separation appear to have taken the opportunity to participate in making decisions about the long-term issues in relation to the child. Subsequent to separation the child has resided in circumstances prescribed by interim orders.

5. The mother complains that the father has not fulfilled his obligation to contribute to the maintenance of the child. The father has had a period of unemployment post-separation and is now in full-time salaried employment. This would appear not to present an ongoing issue into the future.

6. The parties are arguing over discrete changes in relation to the child’s time with the father but there is no issue that her substantive primary residence with the mother will not be disturbed.

7. The issue of significant change relates to the father’s proposal as to schooling. This would result in a significant dislocation of the child’s established peer group and social capital as referred to above. Should there be an order that the child change proposed schools as sought by the father there is a risk that at final hearing there could be a further change that may well reflect the mother’s proposal for schooling. It is not appropriate to expose the child to unnecessary change in interim circumstances.

8. There is no practical difficulty or expense considerations as to the child spending time and communicating with each of the parents. Regrettably they both reside remotely from their place of employment and it is necessary for the child on any proposal to remain in long day care and ultimately in before and after school care. Perhaps into the future the parents may look at the child’s needs in terms of their long-term geographic residential proposals.

9. Clearly the capacity of each of the parents to provide for the needs of the child including the child’s emotional and intellectual needs is largely overshadowed by their ongoing conflictual relationship in the context of which they both reveal little reflective capacity as to the needs of the child. They have to date prioritised their own conflict over the interests of this little girl. No doubt this aspect of their relationship will be an issue at final trial.

10. The child is immature and requires an ongoing and consistent relationship with each of her parents so as to ensure that both primary and secondary attachments are properly developed and that she is able to move freely without anxiety between her parents.

11. Both parents have demonstrated an inappropriate attitude to the child and their responsibilities of parenthood by reason of their all-consuming conflict and self-interest. An engagement in a post-separation parenting program may well facilitate some improvement in their interpersonal relationship. The conflict is indicative of orders that obviate any face to face changeovers as best can be avoided.

12. There are no relevant allegations of family violence.

13. The present application is an interim application and final parenting orders will no doubt await a resolution by agreement or a final hearing.

14. There is no other relevant fact or circumstance.

Discussion

1. The matters discussed above demonstrate no reason why the father’s overall time with the child should be reduced in terms of nights per fortnight. However at present the father is required to return the child to the mother’s home on a Sunday evening and collect the child from the mother’s home on the following Sunday evening. The conflict between the parties requires that an order be made changing those arrangements as does the imposition of such arrangement on the mother’s weekend time.

2. On an interim basis the best interests of the child can be met by the father’s weekend time commencing from day care or after school care on Friday and concluding at day care or before school care on a Monday. Otherwise for the purposes of the child’s time with the father in the “off week” the child could overnight with the father from after day care or school on Monday until before day care or school the next morning Tuesday. Such an arrangement was contended for in submissions on behalf of the mother. Orders will be made accordingly.

3. The parties were in agreement as to school holiday time in the mid-year holiday periods at the conclusion of school terms 1, 2 and 3 in 2016 to be shared with that arrangement taking them up to the time of a prospective final hearing. An order will be made accordingly.

4. Otherwise for the reasons discussed above orders will be made facilitating the mother enrolling the child in the Suburb A Public School.

5. The mother made much complaint about the father’s arrangements for others to assist him in collecting or delivering the child to day care in circumstances where travel from his place of employment precluded his attendance at the day care centre during its operating hours. The main issue focused upon the father without the mother’s consent authorising his present “girlfriend” to do so on his behalf. There was no issue that extended paternal family as referred to above could be authorised by him to assist and otherwise it is appropriate to order that he not authorise any other person to collect or deliver the child to day care or before and after school care unless that person is agreed to by both parents in writing with that agreement being communicated to the day care or before and after school centre.  

6. Otherwise the parties were not unexpectedly in dispute as to their respective time with the child over the Christmas festive period. In submissions it was contended by the father that he should have time with the child from 9.00 am Christmas Eve to 1.00 pm Christmas Day as he had already made arrangements to travel interstate thereafter. The mother did not agree with that proposal but proposed that the child spend time with the father from 4.00 pm Christmas Eve to 11.00 am Christmas Day. The issue is non-justiciable and simply reflects the position that these parties cannot agree on any issue. The mother propounded no good reason why the father’s proposal should be rejected and it appears appropriate, save that the mother should have some time with the child on Christmas Eve.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 10 December 2015.

Associate: 

Date:  10 December 2015