Vickers and Kingsmill & Anor

[2015] FamCA 713

FAMILY COURT OF AUSTRALIA

VICKERS & KINGSMILL AND ANOR [2015] FamCA 713

FAMILY LAW – CHILDREN – Interim – Best Interests – Where interim orders were made in the Federal Circuit Court that the child live with the mother and spend time with the father – Where the Department of Communities, Child Safety and Disability Services became involved with the family – Where proceedings were commenced in the Children’s Court – Where the child was placed into foster care – Where a Protective Supervision Order was then made in the Children’s Court providing that the child live with the mother and spend supervised time with the father – Where the father seeks interim orders that the child spend time with him pursuant to the existing Federal Circuit Court Orders – Where the Director-General of the Department is an intervener in these proceedings and submits that they will seek the revocation of the Protective Supervision Order in the Children’s Court – Order that the child continue to spend supervised time with the father.

FAMILY LAW – CHILDREN – PRACTICE AND PROCEDURE – Transfer of proceedings back to the Federal Circuit Court of Australia.  

Child Protection Act 1999 (Qld)
Family Law Act 1975 (Cth)

APPLICANT: Mr Vickers

RESPONDENT: Ms Kingsmill

INTERVENER: Director-General, Department of Communities, Child Safety and Disability Services

INDEPENDENT CHILDREN’S LAWYER: Tony Kingston

FILE NUMBER: BRC 9732 of 2012

DATE DELIVERED: 28 August 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 24 August 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Cox
Dean Kath Kohler Solicitors

COUNSEL FOR THE RESPONDENT: Mr Neaves of Counsel

SOLICITOR FOR THE RESPONDENT: Ryan Lawyers

SOLICITOR FOR THE INTERVENER: Ms Thomas
Crown Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Tony Kingston
Norman & Kingston

Orders

IT IS DECLARED, BY CONSENT

1. That these proceedings relating to the child, B born … 2008 (“the child”), are not proceedings in relation to a child who is “under the care, (however described) of a person under a child welfare law” within the meaning of that term as used in s 69ZK(1) of the Family Law Act 1975 (Cth) (“the Act”).

IT IS ORDERED

1. That all previous parenting Orders are discharged.

IT IS ORDERED UNTIL FURTHER ORDER

1. That the mother shall have sole parental responsibility for making all decisions about the “major long-term issues” (as that term is defined in the Act) in relation to the child.

2. That when the mother is to make a decision about the “major long-term issues” (as that term is defined in the Act) in relation to the child:

   (a)       She shall inform the father in writing of the decision to be made;

   (b)       She shall invite written input from the father;

   (c)She shall take the father’s input into account when making the decision; and

   (d)       She shall inform the father in writing of the decision she makes.

3. That the child shall live with the mother.

4. That commencing as soon as can be put in place the child shall spend time with the father for two (2) hours per fortnight to be supervised by the C Town Contact Centre at times to be arranged between the mother, the father and the C Town Contact Centre;

5. That the child shall communicate with the father as follows:

   (a)By telephone each Tuesday and Sunday evenings between the hours of 5.00 pm and 5.30 pm for a period of up to 20 minutes each time.

6. That the mother and the father shall:

   (a)Keep the other informed at all times of their residential address, landline and mobile telephone numbers and inform the other party in writing within 48 hours of any change to these details;

   (b)Inform the other parent as soon as reasonably practicable of any significant medical conditions, significant health issues or significant injuries suffered by the child and provide all available information relevant to such issue to the other parent.

7. That the mother shall authorise the school attended by the child to provide the father with such information about the child’s educational progress or other school related activities that the school usually provides to parents of children attending the school, and for the school to provide copies of school photographs, reports and other such documents that it usually provides to parents to the father at his request and expense.

8. That the mother shall ensure the child continues to attend the Supporting Children after Separation Program that he has been attending, or such other similar Program that is offered by the providers of that Program, for as long as the providers of that Program advise her that they consider the child should continue to attend.

9. That neither parent is to:

   (a)physically discipline the child or allow any third person to physically discipline the child;

   (b)question the child about the personal life of the other parent;

   (c)question the child about discipline he may be subject to by the other parent or in the other parent’s household;

   (d)discuss these proceedings with the child or any third person within the hearing or presence of the child;

   (e)denigrate or speak insultingly of the other parent or the other parent’s partner within the hearing or presence of the child,

   (f)allow third persons to denigrate or speak insultingly of the other parent within the hearing or presence of the child, and will remove the child from the presence of any third person who does.

IT IS FURTHER ORDERED

1. That these proceedings, BRC9732/2012, be transferred to the Federal Circuit Court at Brisbane for further mention on a date to be fixed by that Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vickers & Kingsmill and Anor 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 BRISBANE

FILE NUMBER: BRC 9732 of 2012

Mr Vickers

Applicant

And

Ms Kingsmill

Respondent

And

Director General
Department of Communities, Child Safety & Disability Services

Intervener

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

1. Seven year old B is the subject of competing parenting Orders applications of his parents that are currently pending in this Court.

2. In April 2013, around a year after their separation, the child’s parents agreed for this Court to make a final parenting Order that provided for them to equally share parental responsibility for the child and for him to live with his mother and spend time with his father every second weekend, half of school holidays and a couple of hours after school on one other weekday.

3. At the time that Order was made, the child’s parents lived in a town at the bottom of the Great Dividing Range in south east Queensland. Then, in January 2014, the mother filed a fresh application in the Federal Circuit Court seeking to move with the child to another town situated a few hours’ drive away. The father responded, seeking a final order that the child live with him.

4. On 12 August 2014, Judge Howard of the FCC made an interim parenting Order that provided for the child to continue living with his mother, for her to be able to relocate with him to that other town and for the child to continue to spend time with his father every second weekend and half of the school holidays. His Honour also ordered that the parties complete a Parenting Orders Program and, if considered appropriate by the Program Co-ordinator, a Triple P parenting program, an anger management program and any drug and alcohol programs as might be necessary. His Honour also ordered the appointment of an Independent Children’s Lawyer to represent the child’s best interests in the proceedings. It is worth observing, in my opinion, that in making that parenting Order, is Honour had the assistance of family reports prepared by the experienced Social Worker, Ms D.

5. Shortly after that Order was made, the Queensland Department of Communities, Child Safety and Disability Services (“the Department”) became very involved with the family and began investigating notifications that were coming from within each parent’s household about the other parent’s care of the child. On 24 November 2014, the father’s new wife contacted the Department and informed Departmental staff that she and the father were not going to hand the child back to the mother at the end of the court scheduled time he was spending with them because of suspicions of physical abuse to the child perpetrated in the mother’s household.

6. That same day, in apparent response to that information, the Department obtained a Temporary Assessment Order under the Child Protection Act 1999 (Qld) in the Children’s Court in C Town placing the child in the temporary custody of the Chief Executive of the Department so that further investigations could take place. the child was taken into the Department’s custody and placed with approved carers. Clearly, the Departmental position was that the child’s best interests were not being served leaving him in the care of his father and his new wife or putting him back into the immediate care of the mother either.

7. On 27 November 2014, an application for a Court Assessment Order was filed by the Department and on 3 December 2014, such an Order was made for the child to remain in the Department’s custody for a further four weeks.

8. On 2 December 2014, Judge Howard transferred the parenting Orders proceedings from the Federal Circuit Court to the Family Court. I am unaware of his reasons for doing so, but infer that it may have been because of the allegations of physical abuse being made by the parents against each other and the Departmental involvement.

9. On 12 December 2014, the Court Assessment Order was revoked at the request of the Department and a Protective Supervision Order was obtained with the child being placed back in the care of the mother and the father being permitted only supervised time with the child. Again, that move clearly reflected the Department’s position that the child’s best interests were served by placing him back in the day to day care of his mother but with the time he spent with his father to be supervised. That position has been maintained by the continued listing of the Departmental application for the requisite Order in the Children’s Court in C Town during the months that have passed since and the Children’s Court’s making of the requisite Order for short periods of time on each hearing. The next listing date of that application in that Court is set for 16 September, 2015.

10. Relevantly, the child’s mother did not move to the other town and now has no intention of doing so as her partner’s employment circumstances have changed. She and the child and the child’s father still live in the same small town, not far from C Town, that they did when they lived together as a family.

11. On 10 June 2015, the father filed an Application in a Case seeking an interim parenting Order that the child again spend unsupervised time with him pursuant to Judge Howard’s August 2014 parenting Order.

12. The mother opposes that application and asks for an Order that continues supervised time.

13. The ICL opposes the father’s application but supports a reintroduction of unsupervised time over a gradual period leading up to alternate weekends.

14. The Director General of the Department exercised the right to intervene in the proceedings conferred by s 92A of the Family Law Act 1975 (Cth) (“the Act”) and opposed the father’s application for unsupervised time with his child to recommence. The legal representative for the Director General submitted that the Court should make an interim parenting Order that continued the supervision of the child’s time with the father, but informed the Court that the Director General would, in any event, abide by the Court’s determination and would seek the revocation of the Protective Supervision Order in the Children’s Court on 16 September 2015.

15. Having considered the evidence and the thoughtful submissions made for each of the parties, I have determined to make an interim parenting Order that provides for a continuation of supervision of the child’s time with the father for the time being, satisfied that is the proper Order having regard to the child’s best interests. These are my reasons.

Is there a clash of Jurisdictions?

1. The father’s Application in a Case firstly seeks a Declaration that the proceedings in this Court are not proceedings in relation to a child who is under the care of anyone (however described) under a child welfare law within the meaning of s 69ZK(1) of the Act.

2. That section provides as follows:

   (1)A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:

   (a)  the order is expressed to come into effect when the child ceases to be under that care; or

   (b)the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.

   (2)    Nothing in this Act, and no decree under this Act, affects:

   (a)the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or

   (b)       any such order made or action taken; or

   (c)      the operation of a child welfare law in relation to a child.

   (3)  If it appears to a court having jurisdiction under this Act that another court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first-mentioned court  may adjourn any proceedings before it that relate to the child.

3. None of the other parties opposed the making of the Declaration. In fact, the legal representative of the Director-General agreed that the child is not in the care of the Director General (or some other person within the Department) within the meaning of the term “in the care of” as used in that section.  The Court was informed that as the child is subject only to a Protective Supervision Order which is an Order that directs a parent not to have contact with the child other than when a stated person or a person of a stated category is present he is not “in the care of” anyone as is the pre-requisite for the operation of s.69ZK.

4. I accept that as correct and will, accordingly, make the Declaration sought.

The Evidence

1. The parents separated in 2012 after a relatively short marriage. The separation was and has continued to be highly conflictual. There are allegations of domestic violence between the parents and conflicting allegations of emotional and physical abuse of the child. There are allegations that the father has relatively significant anger management problems.

2. Each parent re-partnered soon after separation and the parental conflict has entwined each of the new partners, with allegations of abuse, violence and lack of appropriate parental care being made by each household against the other household.

3. From around mid-June 2014, the father and his new wife took the child to the police and made complaints of abuse of the child by the mother’s new partner. The police interviewed the child in recorded interviews at the instigation of the father and his wife, no less than five times. Police attended the mother’s address and spoke with her and her partner. Police spoke to neighbours of the mother and her partner. Police determined to take no further action, reportedly considering the child’s information inconsistent and without appropriate particulars, and having no other basis upon which to press any charges.

4. Departmental officers interviewed the child. He reportedly denied that his mother or her partner ever hurt him. He reportedly said that his father and step-mother told him to tell the police that his mother’s partner had given him bruises with his steel capped boots and that they told him to say that or they would not give him lunch. He is reported to have said that he cannot say “no” to them because he will not get lunch. He reportedly said at home (his mother’s place) when he gets into trouble he has “time out” in his room, but that at his father’s place he gets smacked really hard on the bottom and his step-mother yells at him.

5. From late December 2014, supported family contact between the child and his father was in place through the Department at its offices in C Town. It was not successful, in that the child was repeatedly assessed as not wanting to spend time with his father and being nervous and scared to go into his company. Also, some of those visits that were set up or attempted to be set up did not take place due to the father’s unavailability.

6. In April 2015, the Department proposed a changed model of supervised time between the father and the child that included therapeutic contact through the Family Intervention Program offered by E Community Services. The proposed model included counselling for the child as well as supervised, therapeutic time between the child and the father.

7. The father would not agree to the introduction of the proposed model as he did not agree for the child to have counselling. Nevertheless, arrangements for the child to spend time with the father were put in place and on 11 June 2015, the child had his first actual visit since late November 2014 where he spent any time with his father. The case note of the supervisor, Mr F, reflects that he successfully introduced the child to the father through an outdoor game of football before rain forced them indoors where they continued to play a number of games and interact appropriately.

8. The next visit took place on 25 June 2015 and was again successfully introduced by Mr F through a football game outside. This visit was also recorded to have gone well with the interaction being appropriate.

9. The next visit took place on 2 July 2015 and again went well. Scheduled visits on 7 July, 9 July and 14 July did not take place with the father cancelling one and the mother cancelling two with the giving of appropriate notice. Another visit took place on 24 July 2015.  

10. Mr F reports that both the mother and father are usually punctual in arrival and departure, that the father has arrived happy and eager to see his son and that the child is always keen to play outside but has happily engaged with his father in whatever game he has been playing and has been observed to enjoy the games he has played with him.

11. Mr F reports:

    Overall the contacts between [the father] and [the child] have been characterised by play and fun, with both [the father] and [the child] observably enjoying themselves in a child-focused manner.

12. Significantly, in the context of the concerns held by the Department in this case, in an affidavit filed herein on 18 August 2015, the father said:

    24. At the visit on 30 July 2015 when I arrived at [E] Family Services [Mr F] mentioned to me that he had noticed some bruises on [the child’s] arms when he arrived there.

    25. When I arrived [the child] had put a jumper on over his shirt so the bruises were not visible to me at this time.

    26. As the contact progressed I asked [the child] if he wanted to take his jumper off, as he may have been getting warm, but when I asked [the child] started to get quite upset.

    27. [Mr F] suggested to me to just leave [the child] be, which I did. [Mr F] also told me that he would write a report to the Department about the bruises he had witnessed. I asked [Mr F] if he could send this to my solicitor but he informed me that it would have to go to the Department first and they would then have to provide it to my solicitor.

    28. To date I have been advised by my solicitor that his report has not been received.

    29. These bruises are of great concern to me as I have had previous concerns about the child being physically disciplined by [Ms Kingsmill’s] partner. I have noticed many bruises on [the child] in the past when he has spent time with me, and I was very worried that the Department would not do anything about this, especially given that they seem to be supporting [Ms Kingsmill] in everything to do with this case.

1. In an affidavit filed on 21 August 2015, Departmental Child Safety Officer Ms G, deposed to having received a telephone call from Mr F on 19 August 2015. She also deposed to Mr F informing her that he had received a letter from the father’s solicitors in which they had informed him that the father had instructed them that Mr F was preparing a report in relation to some bruises he saw on the child’s arms during the visit on 30 July 2015. Ms G deposed that Mr F told her that he had never (my emphasis) witnessed bruising on the child, before or during a supervised family contact visit and neither had the father raised this as an issue with him during any visits. Ms G attached an email she received from Mr F to which he attached a copy of an email he had sent to the father’s solicitors confirming his position on this matter.

2. At this interim stage, acknowledging that I have not seen either the father or Mr F in the witness box under cross-examination, I consider I can nevertheless give some weight to the facts that Mr F is independent and apparently objective and has otherwise written favourably of the father when considering the likelihood that he is not being dishonest about his recount of this issue. Without making any absolute finding one way or the other, the complete denial by Mr F of the father’s very detailed and serious assertions raises serious concern about the father’s position.

3. There is evidence of a May 2015 conversation between the Departmental Child Safety Officer, Ms G and the child’s school teacher. The teacher advised that the child had made great progress and improvements since the start of the year. She also told Ms G that the father’s current wife had contacted the school, made accusations and told the school that if the child was to present to school in a jumper or long pants on a hot day, this indicates he will be covered in bruises and is being “bashed” and that he should then be checked for bruises.

4. Then, Ms G’s affidavit filed 10 July 2015 includes the following evidence that, in my view, is fairly critical to the determination of this competing interim parenting orders application. She deposed to the father’s current wife having attended the Department’s office in C Town on 18 June 2015 at which time she is recorded as having told Departmental officers:

   (i)That she has ended her relationship with the father because of all of the “abuse” she has suffered in the week prior, particularly on Thursday 11 June 2015 when the father pushed her and was physical to her;

   (ii)That neither the mother nor the father should be parents of the child;

   (iii)That when the father was having unsupervised visits with the child before the Department became involved in late 2014, she would consciously never leave the child alone with the father as she did not believe the father could “handle” the child;

   (iv)That the father used to give the child “beatings” and that these got worse around August 2014 as the child’s behaviour deteriorated;

   (v)That the beatings would usually occur after the child was doing his homework and he would struggle with it, causing the father not to be able to cope;

   (vi)That a “beating” involved the father hitting the child again and again, all the way down the hallway of their home and this occurred frequently;

   (vii)That if she did have to leave the home when the child was there she would always make sure her adult son was around;

   (viii)That the father has an anger management problem;

   (ix)That she had not reported these concerns earlier as she did not consider she was provided with a chance to speak to Child Safety Officers during the Departmental investigation;

   (x)That there were times when she believed the father had made false reports to the Department;

   (xi)That she was not sure if the father had coached the child to say things but that she “would not put that past [him]”;

   (xii)That she is not seeking a DVO against the father as she feels this would just make things worse as she has had a locksmith change the locks on their home;

   (xiii)That she believes the child is also at risk in his mother’s care but had no evidence to support this;

   (xiv)That the child should be in foster care.

5. Interestingly and relevantly, in my view, in his affidavit filed 18 August 2015, the father does not even acknowledge or respond to the matters raised about his partner in Ms G’s affidavit. Consequently, the Court is left in a position of not even knowing if the father is still living in the same home that he was previously living in when the child was spending unsupervised time with him or if the father advances any reason why his wife might make up false complaints about him or what he says about her allegations at all, save for his denials that he has “ever inflicted any physically (sic) violence” on the child or ever smacked him “really hard”.

6. Of course, I cannot, after this truncated interim hearing, progress to making findings based on an acceptance of the evidence of the Child Safety Officer’s reporting of the new wife’s complaints as being evidence of the facts as they actually happened in the father’s household, but it is seriously concerning evidence which must be given considerable weight in this interim determination, particularly in the absence of response by the father when he did put a further affidavit into evidence.

Some Principles

1. Be it on an interim parenting Orders application or a final one, pursuant to the provisions of Part VII of the Act this Court is to make such parenting orders as the Court thinks “proper”, and, in so doing, must regard the best interests of the subject child as the paramount consideration.

2. In determining what is in a particular child’s best interests the Court must consider an extensive list of matters.[1] Those matters include, listed as “primary considerations”, the benefit to the child of having a meaningful relationship with each of its parents, as well as the need to protect the child from physical or psychological harm.

   [1] That list is set out in s 60CC of the Act

3. The “best interests” inquiry can be a broad one. That is made clear by the inclusion in the list of the consideration of “any other fact or circumstance that the court thinks is relevant”.  Additionally, in determining the proper parenting orders to make, the Court should also be mindful of the Objects and the Principles underlying those Objects that are expressly set out at the commencement of Part VII. Of course, the actual weight to be attached to the various components of all the applicable statutory provisions will vary from case to case having regard to the evidence and the Court’s factual findings. The process is however, necessarily, a little different when interim parenting Orders are being determined after a truncated, “on the papers” hearing in a duty list where submissions are heard after the affidavit material is read. Sometimes decisions are required to be made in these circumstances on the basis of assessment of levels of risk where, after a full hearing with cross-examination, findings of fact might be made that would significantly impact upon that assessment of risk, potentially resulting in a completely different decision.

4. Bearing in mind that the “best interests of the child” is the paramount consideration, an exercise of caution in favour of ensuring protection of the child in the interim period until all of the evidence can be tested and thoroughly considered can hardly be a surprising course for a Court statutorily mandated to make such order as is proper to make, even where a parent or both parents are left disappointed with the outcome at that time.

This Case  

1. The ICL relied upon Mr F’s reported observations of the four visits he supervised between father and child in June and July this year in support of the submission that the child’s time with his father need not be supervised. I hasten to add that he conditioned his submission on the Court making an Order restraining the father from taking the child to the police and permitting further interviewing without first getting his approval of such a course.

2. I accept that the observations of those first four visits that had taken place since late last year were positive ones, but with respect to the ICL, it may very well be the fact that the father’s time with the child was supervised that explains why the sessions were positive experiences for the child.

3. Having regard to all of the evidence, particularly with so many unanswered questions about the father’s emotional and physical care of the child being raised by that evidence, I am of the view that putting unsupervised time between the child and his father back in place right now is premature and would expose the child to a risk of harm that I consider unacceptable at the moment.

4. The Court was informed that a further family report has been commissioned by the ICL from a psychologist and that it will be prepared over the next few months. That process might lead to expert opinions being expressed that might impact upon this interim assessment of the circumstances. That is a matter of speculation at this point in time and cannot be pre-empted. What the parties do with that report once it is produced will, of course, be a matter for them and their legal representatives.

5. In the meantime, the child has been appropriately reintroduced to spending time with his father and that is being supported by supervision, ensuring that the father only acts and speaks appropriately to the child when with him. The child is also being supported by counselling he has been receiving, particularly through involvement in a suitable program of support for children in post-separation circumstances. His school and teacher are alert to the need to give this child particular attention and care and to be alert to his needs and protection issues. The Department has been intricately involved over the last ten months and will, I expect, remain vigilant.

6. I am of the view that continuation of the rebuilding of the relationship between father and child under supervision for the time being is in the child’s best interests whilst at the same time the child is given independent, expert support through the counselling program he has been involved in. I will order that his mother continue to ensure that the child attends at such a program.

7. I was informed that the current provider of supervision will not continue to provide it after the protective supervision order is revoked and the Department steps back. Accordingly, the parenting Order I make will provide for the supervision to take place fortnightly for two hours at the C Town Children’s Contact Centre.

8. I will also Order telephone communication, twice per week, but not provide for it to be supervised. I will order restraints on the things the parents may speak to the child about and I will order restraints against physical discipline. These restraints are, in my view, necessary having regard to the evidence about what this boy has endured in recent times.

Parental Responsibility

1. The issue of parental responsibility is to be determined as well. The 2013 consent Order provided for equal shared parental responsibility. Judge Howard’s Order last year did not change that. The mother now seeks an interim change to that and for sole parental responsibility to be conferred upon her.

2. Determining what is a “proper” parenting order to make is subject to the application of a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for that child, unless there are reasonable grounds to believe that a parent of the child has engaged in family violence or abuse of the child.[2] Even if there are no such reasonable grounds, the Court may still make a different parental responsibility order if persuaded, on the evidence, the presumption should not apply.

   [2] Section 61DA(1) and s 61DA(2) of the Act

3. “Parental responsibility” is defined in s 61B of the Act. It means, in relation to a child, all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. It matters most, at least in my judgment, when decisions are to be made about what are defined in the Act as “major long-term issues” in relation to a child. That term is defined in s 4 to mean “issues about the care, welfare and development of the child of a long-term nature” and includes (but is not limited to) issues of that nature about the child’s education (eg what school she goes to), the child’s religious and cultural upbringing (eg should she be brought up as a Christian or without taught adherence to a particular faith), the child’s health (eg should she have elective surgery to have her tonsils removed or not), and the child’s name.

4. If a parenting order is made conferring parental responsibility in respect of a child equally on that child’s parents, there are a number of consequences. Most relevant to the determination of this issue in this case at this interim stage, in my view, is the mandatory requirement, imposed by s 65DAC of the Act, when a decision about a major long-term issue in relation to the child is to be made, for each of the parents to consult the other in relation to the decision and to make a genuine effort to come to a joint decision. The statutory provision goes further than that though. The decision is actually required to be made jointly by the persons who share parental responsibility. The statutory provision does not provide an alternative or fall-back position. As I have so often said, in my judgment, it follows that if the decision is not made jointly it cannot be made at all, thus requiring parties to go back to family dispute resolution processes and, if that fails, to the courts for a decision to be made. This is indeed, in my view, relevant to consider when determining whether the conferral of parental responsibility on two persons is in the relevant child’s best interests.

5. In this case, I am satisfied that the conflict is so high and the parents’ feelings towards each other are so jaundiced that they could not yet manage to focus on the child’s best interests when having to discuss and negotiate decisions about major long-term issues in respect to the child. Forcing them to by leaving in place a parental responsibility Order that imposes a statutory obligation to have to jointly make such decisions is, in my view at least, not in the child’s best interests. I will make an interim Order conferring sole parental responsibility on the mother conditioned upon informing the father and seeking his views and advising him of the ultimate decision made.

6. Finally, the ICL submitted that these parenting proceedings do not bear the hallmarks of a matter that requires the attention and resources of this Court and, particularly having regard to the length of time it would probably take for it to progress to trial here in this Court as compared with the Federal Circuit Court, he submitted that I should transfer it back to that Court.

7. After hearing that submission, I asked if any of the other parties contended that the matter should stay in this Court. None did.

8. Notwithstanding longstanding commitment of this Court to the avoidance of judicial “ping-pong” with matters that have been transferred from the Federal Circuit Court, I am persuaded by the fact that the transfer back to that Court was sought by the ICL and was not opposed by any of the other three parties, acceptance of the likelihood that the matter will progress to trial faster in that Court than in this one (particularly in this Registry, having regard to anticipated limitations in judicial resources in this Court in the near future) and a view that, ultimately, the issues do not appear to be so complex that they need the resources of this Court to determine them. I do acknowledge that there are allegations of physical abuse of the child, but I do not consider on the evidence I have seen that those will be so forensically difficult to determine that they dictate that the matter should remain in this Court. I will transfer the matter back to the Federal Circuit Court.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 28 August 2015.

Associate: 

Date:  28 August 2015