WADDELL & MADDEN
[2011] FMCAfam 1533
•15 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WADDELL & MADDEN | [2011] FMCAfam 1533 |
| FAMILY LAW – Interim parenting application – child’s geographical place of residence – time spent with father. |
| Family Law Act 1975, ss.4, 10J, 13C, 60B, 60CA, 60CC, 60I, 61DA, 63C, 65DAA, 65DAB, 65DAC, 65F, 68B, 69ZN, 69ZT |
| Goode & Goode (2006) FLCA 93-286 Marvel & Marvel [2010] FamCAFC 101 Starr & Duggan [2009] FamCAFC 115 Taylor & Barker [2007] FamCA 1246 Sealey & Archer [2008] FamCAFC 142 State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 U & U [2002] HCA 36 Pitken & Hendry [2008] FamCA 186 MRR & GR[2010] HCA 4 Dylan & Dylan [2007] FamCA 842 |
| Applicant: | MR WADDELL |
| Respondent: | MS MADDEN |
| File Number: | PAC 4155 of 2011 |
| Judgment of: | Harman FM |
| Hearing date: | 15 December 2011 |
| Date of Last Submission: | 15 December 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 15 December 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Mason Mia & Associates |
| Solicitors for the Respondent: | Kenny Spring Solicitors |
ORDERS
Make orders in accordance with orders (1), (3), (4), (5), (7) to (10) inclusive and (12) to (20) inclusive, of the orders sought by the father in his application in the case of 1 November 2011.
No later than three days prior to X’s first scheduled day of school attendance, the respondent mother is to ensure that X’s place of residence is established within the (omitted) Council area.
In addition to periods of time that X is to spend with each of her parents, pursuant to the above orders:
(a)X shall, at all times when not spending time with, and in the care of, her father, spend time with her mother; and
(b)Commencing with the school holidays at the conclusion of term 1, 2012, each parent shall have X in their care, and spend time with her, for one half of that holiday period, and absent agreement to the contrary, X shall spend time with her father from 3pm Friday until 3pm the following Friday and in accordance with the order for week about time, made herein.
For the purpose of X passing into her father’s care, he shall collect her from school, if a school attendance day, and otherwise from the mother’s home.
For the purpose of X passing into her mother’s care, she shall collect her from her school, if a school day, and otherwise from the father’s home.
Pursuant to s. 13C of the Family Law Act 1975, and in the event that there is no agreement between the parents by 23 December 2011 as to the school X will attend, commencing 2012, each of the parents is to do all things within their power to then forthwith arrange, and if possible, attend Family Dispute Resolution as soon as practicable, and ideally, before the commencement of term 1 2012, to discuss and attempt to resolve and reach agreement regarding that issue.
IT IS NOTED that publication of this judgment under the pseudonym Waddell & Madden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4155 of 2011
| MR WADDELL |
Applicant
And
| MS MADDEN |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving competing applications for interim parenting orders with respect to a young child, X, born (omitted) 2007, and accordingly, shortly to turn five years of age. That event is of some significance in the context of these proceedings as X will commence school in 2012 being in approximately two months time.
The proceedings were commenced by X’s father, who is the applicant for the purpose of today’s proceedings, being Mr Waddell. The respondent to the proceedings is X’s mother, Ms Madden.
The proceedings were commenced by an application in a case filed 1 November 2011, and in dealing with that application, I have had regard to two affidavits filed by the father, being that accompanying the application in the case, sworn 25 October 2011, and a further affidavit in reply, sworn 12 December 2011.
In Ms Madden’s case, I have had regard to the response to an application in a case filed by her, 9 December 2011, together with her affidavit filed at the same time. I have also had the benefit of submissions on behalf of both parties today.
Background and History
The parties are not substantially in dispute with respect to the circumstances of their relationship. The relationship between the parties was somewhat fractured but commenced in or about August of 2005. A final separation between the parties occurred in April of 2008, at which time X was a child of one year of age. The parties had periods of separation prior to this.
Following separation, Ms Madden and X obtained rental accommodation in (omitted). That continued to be the case, whether in the same accommodation or a number of other rented premises in (omitted), until October of 2011, at which time Ms Madden relocated with X from (omitted) to (omitted), a distance which the parties agree, and is the subject of some evidence, of some 46 kilometres and a trip of about the same time in minutes.
The circumstances of that relocation are entirely unknown to the Court. That arises as the only evidence given by Ms Madden with respect to her relocation is contained in paragraph 44 of her affidavit, being the last paragraph of that three page document and in these terms:
“X and I moved from (omitted) to (omitted) in October 2011.”
There is no other detail provided as to the reasons why, although it is certainly suggested, and appropriately so, in submissions that there was some financial imperative. It would also appear, by reference to the financial statement and Affidavit which were filed by Ms Madden on 26 October 2011, that she moved to cohabit in a relationship with her partner, Mr P.
Otherwise, there is no detail as to the precise date of the relocation or, as I have indicated, the circumstances of it or any difficulties that would arise in the event, if relief as sought by Mr Waddell were granted, Ms Madden were required to return to (omitted). That is simply a deficiency in the evidence.
The parties would appear, although the document has not yet been tendered, to have reached agreement with respect to the vast majority of relief sought by Mr Waddell in his application. That much is apparent, even without the submission of terms of settlement from the terms of the orders proposed by Ms Madden in her response to the application in a case, which indicates that she consents to orders (1), (5), (6), (6)(a), (6)(c), (7) to (20) inclusive, of the orders sought by Mr Waddell.
That leaves at large issues between these parties of:
a)whether X is to be returned to reside in the (omitted) area with her mother or in any other arrangement;
b)the time that X will spend with her father; and
c)the school that X will attend in 2012 when she commences school.
There is no application before the Court today seeking to define the school that X will attend, although the parties appear, in all probability, to be at one as to the school she will attend in the event that X is returned to the (omitted) area and being a private school that will be funded by the father and/or his relatives. It is proposed in Ms Madden’s case that in the event that she is not compelled to return X to the (omitted) area, that she would attend the local public school in (omitted).
Mr Waddell’s position as to whether X would attend the same school in (omitted), irrespective of whether relocation occurs, is less clear, but in any event, as I have indicated, that is not an application made to the Court today and will need to be the subject of further application or negotiation between the parties in the event that there is not, in fact, agreement, and subject to and dependent upon the orders made today regarding X’s place of residence in a geographical sense.
There is agreement between these parties that since September 2011, if not an earlier time, that X has been spending time with her father from 3.30pm till 7.30pm each Monday and Wednesday, and from 3.30pm Friday till 7.30pm Monday every second weekend. That is deposed to in paragraph 19 of Mr Waddell’s affidavit, filed 26 October 2011. At the time of swearing that affidavit the proceedings were before the local Court. The paragraph concludes, having set out the periods of time that X spends with her father, with the words “as per the parenting plan”. When these proceedings were before the local Court in (omitted) on 1 September 2011, an order was made in the following terms:
“Parties are unable to agree. The parties do agree to comply with the existing parenting place [sic]. File transferred to Federal Magistrates Court, Parramatta, by consent order. Telephone contact to occur each day between 6 and 8 pm.”
The parenting plan
Each of the parties, in their material, has referred to and purported to annex to their affidavit, (although in the case of Ms Madden’s affidavit, whilst reference is made to its annexure that has not, in fact, occurred), a document which is referred to by each of them, and indeed, by the order of the Local Court, as a “parenting plan”.] That document appears as annexure A to the father’s affidavit, sworn on 25 October 2011. I have not read that document, or had any reference to it. I have, instead, relied upon paragraph 19 of the father’s affidavit as referred to above, as setting out the arrangements in place for X’s time with her father.
The document, whilst it is referred to as a “parenting plan”, is nothing of the sort. The legislation clearly sets out the requirements of a parenting plan. Those requirements are quite specific and are set out in paragraph 63C of the legislation. To be appropriately and accurately described as a parenting plan, one has reference to that section headed “Meaning of Parenting Plan and Related Terms”. It defines a parenting plan as follows:
“A parenting plan is an agreement that:
(a) is in writing; and
(b) is or was made between the parents of a child; and
(ba) is signed by the parents of the child; and
(bb) is dated; and
(c) deals with a matter or matters mentioned in subsection (2).”
The section goes on to set out under the descriptor “Scope of Parenting Plan” the Matters that may be dealt with in a parenting plan relating to a child’s care or responsibilities for the child.
The document that is referred to by the parties and by the learned State Magistrate is not a parenting plan. It is a document prepared by an unspecified person but, presumably, the Family Dispute Resolution Practitioner with whom the parties engaged at the (omitted) Family Relationship Centre. The document indicates the names of two Family Dispute Resolution Practitioners although it does not suggest that the document is authored by them, although that would appear a reasonable inference.
The difficulty with the document is that whilst it is in writing, it is not signed by anybody and it is not dated, other than a date on the front of the document which, presumably, is its date of preparation. Each of the parents has in their material, referred specifically to the fact that the document has not been signed by the other parent. It has not been signed by either of them.
In accordance with s.10J of the Family Law Act1975 evidence of communications in the presence of Family Dispute Resolution Practitioners which occur in Family Dispute Resolution or to persons to whom parties are referred by a family dispute resolution practitioner are inadmissible. Exceptions exist only as to admissions and disclosures of abuse. That provision is in the following terms:
“Evidence of anything said, or any admission made by, or in the company of:
(a) a family dispute resolution practitioner conducting family dispute resolution; or
(b) a person (the professional) to whom the family dispute resolution practitioner refers a person for medical or other professional consultation, while the professional is carrying out professional services for that person,
is not admissible;
(c) in any Court, whether or not exercising Federal jurisdiction; or
(d) in any proceedings before a person authorised to hear evidence. (emphasis added)”
Section 131 of the Evidence Act 1994 also excludes and renders inadmissible, (subject to a number of exceptions as enumerated in that section), evidence of negotiations between parties.
On the basis of either s.10J of the Act or s.131 of the Evidence Act, the document that has been prepared could not be admissible in any Court for any purpose. The document clearly seeks to set out an agreement that was apparently negotiated between parents with the assistance of, and in the company of, a Family Dispute Resolution Practitioner, and accordingly must, by necessity, contain and be a record of evidence of anything said in the company of a Family Dispute Resolution Practitioner.
On that basis, and as I have indicated, I have not considered or had any reference to the document and, indeed, it will be struck out as part of the evidence presently before the Court as it should not be here. That is not intended as some castigation or overt criticism of the legal practitioners for the parties but simply a reflection of the mandatory nature of the exclusion of that evidence, specifically under section 10J, but also by reference to s. 131 of the Evidence Act.
I have also been urged by the parties, through their material and in submissions, to have some regard to the “parenting plan”. Indeed, if it were a parenting plan, s. 65DAB mandates such consideration. Section 65DAB is in the following terms:
“When making a parenting order in relation to a child, the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents (to the extent to which that plan relates to the child) if doing so would be in the best interests of the child.”
The document that is before me is not a parenting plan and, accordingly, s. 65DAB is not enlivened. Similarly, reference has been made to s. 65DAC, detailing the effect of a parenting order that provides for equal shared parental responsibility. These submission appear to be on the basis that equal shared parental responsibility is referred to and touched upon within the document referred to as a parenting plan, but to which I have not had regard. Section 65DAC would not apply even if the offending document were a parenting plan as the plan does not contain nor create parenting orders.
The parties do consent, by the terms of the orders sought in the application in a case and the response thereto, to an order for equal shared parental responsibility. However, no such order exists at this point in time and, accordingly, and to that extent, a number of the issues which flow from submissions as to the effect of, and the requirement for, parents to consult with each other, having regard to an order for equal shared parental responsibility, does not apply.
However, I will have regard to the presumption as to equal shared parental responsibility, as detailed in s. 61DA, and address that in due course.
Also in submissions I have been referred, and appropriately so, to the Full Court’s decision in Starr & Duggan [2009] FamCAFC 115 and, in particular, paragraphs 38 and 39 thereof. I incorporate those paragraphs into these reasons. The Full Court, in that instance, provides as follows:
“However, it is important to emphasise (as was made clear in Taylor & Barker [2007] FamCA 1246 and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
· first make findings concerning the relevant s 60CC factors;
· then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
· then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.”
The Full Court has also made clear in authorities, such as Goode& Goode (2006) FLCA 93-286 and Marvel & Marvel [2010] FamCAFC 101 that the legislative pathway that is to be followed in cases requiring determination under Part VII of the legislation and whether on a final or interim basis, although acknowledging and recognising that on an interim basis, the evidence available to address each of the relevant and numerous considerations under Part VII will be less than complete.
The Evidence
The evidence in this case is most assuredly, and as observed above, less than complete. However, the evidence is also, particularly in Ms Madden’s case, somewhat deficient with respect to a number of important and significant aspects of her case. The more useful information that has been received by the Court has come by way of submission. That has been a credit to the solicitor appearing as agent in the matter but does not represent evidence. The Court must, and can only make, determinations in any case, including parenting proceedings, by reference to evidence.
Division 12A provides some latitude as to how the Court deals with and receives evidence in parenting proceedings. However, Division 12A does not authorise, require or contemplate the Court derogating from usual practice in determining a case by reference to admissible evidence. To do otherwise would be to deny due process to one or both parties and the application and provision of due process to the parties through the determination of cases based on admissible and probative evidence is, in fact, a cornerstone of achieving the Court’s obligations as set out in s. 60CA to regard the child’s best interests as paramount.
Division 12A commences by setting out a number of principles for the conduct of child-related proceedings in s. 69ZN.
Those principles are:
a)Firstly, to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of proceedings.
b)Secondly, to actively direct, control and manage the conduct of the proceedings.
c)Thirdly, to conduct proceedings in a way that will safeguard the child concerned against family violence, child abuse and child neglect and similarly protect the parties against family violence.
d)The fourth principle is the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
e)Finally, and fifthly, the Court is to conduct proceedings without undue delay and with as little formality and legal technicality and form as possible.
To give effect to those principles, s. 69ZQ sets out a number of general duties upon the Court in dealing with child-related proceedings. The Court is mandated to:
a)Decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily;
b)Decide the order in which the issues are to be decided;
c)Give directions or make orders about the timing of steps that would be taken;
d)In deciding whether a particular step is to be taken, consider the likely benefits of taking that step and the cost of it;
e)Make appropriate use of technology;
f)If the Court considers it appropriate, encourage the parties to use family dispute resolution or family counselling [Indeed, whilst the Court is given a general duty to consider the use of family counselling and family dispute resolution, that is a mandated requirement by reference to s. 60I and s. 65F];
g)Deal with as many aspects of the matter as it can on a single occasion; and
h)Deal with the matter, where appropriate, without requiring the parties’ physical attendance.
It is on the basis of the above duties, and notwithstanding orders made by Henderson FM on 1 November 2011which required both parties to attend Court in person, that leave has been granted for the father and his attorney to appear by telephone.
The Court is also enjoined to not apply certain aspects of the Evidence Act 1994 unless the Court decides otherwise. Those provisions are contained in s. 69ZT. Sub-s (1) of s. 69ZT excludes from applications certain aspects of the Evidence Act but not the totality of it. The rules excluded are specifically rules which deal with the giving of evidence, examination-in-chief, re-examination and cross-examination, the use of certain documents in evidence, and rules with respect to hearsay, opinion, admission, evidence of judgments and convictions, tendency and coincidence evidence, credibility and character.
However, the Court has two overriding obligations enshrined in s. 69ZT. Firstly, the Court has the power, under sub-s(3), to direct the application of those provisions otherwise excluded in circumstances where the Court is satisfied that the matter is exceptional and the Court has taken into account a number of enumerated considerations. I do not propose, in this case, to so find and to require the strict application of those rules. However, sub-s (2) also, somewhat oxymoronically, provides a statement as follows:
“The Court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision of the Evidence Act not applying because of subsection (1).”
The effect of that provision is to remind the Court that some caution must be exercised in relying upon “evidence” that would not otherwise be admissible or probative in making decisions of importance.
Any decision concerning the welfare of a child, the most vulnerable members of our society, must be an important decision and, accordingly, must be made on the basis of evidence and evidence that is of probative value. The difficulty in this case is not only that there are portions of the affidavit material which would, but for the operation of s. 69ZT, be excluded, but there are substantial portions of evidence that would be relevant to aspects of significance and importance to the determination that the Court is asked to make that are simply not in evidence, and particularly so as regards Ms Madden’s evidence.
During the course of submissions, an application was made and I propose to so treat it and address it, for an adjournment of the proceedings to enable further evidence to be put on to address those matters. The difficulties with that application are manifest. Firstly, Henderson FM, at the time that these proceedings were listed made a clear and specific direction:
“The mother is to file her response and affidavit in reply by 2 December 2011.”
That material was not, in fact, filed until 9 December 2011, although no issue or concern is raised in that regard by the father. Clearly, I can be satisfied that the father has been afforded due process and adequate notice of the mother’s case as a consequence of his attendance today, that issue not having been raised by his counsel, and indeed, he has had the opportunity to file an affidavit in response.
I am entirely satisfied that the father is not disadvantaged by any delay in filing by Ms Madden. However, the Court is also required, and as is made clear, not only by the principles enumerated above from s. 69ZN, but by the general obligations upon Courts in this day and age, (as discussed by the Kirby J in State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 and Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411), to manage and control proceedings, which are a valuable and expensive community resource. It is, indeed, a resource that is not only valuable and expensive, but is limited and is, indeed, coveted by a high volume of litigants, particularly in this Court.
Whilst the majority (Dawson, Gaudron and McHugh JJ) in State of Queensland v J L Holdings Pty Ltd said:
“Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of the court is the attainment of justice and no principle of case management can be allowed to supplant that aim”
I am satisfied that the attainment of justice is not compromised in this case and that the desire of the respondent to address deficiencies in her case, as to which procedural directions have already been made and opportunity given, must be balanced against due process to the applicant who has made his case ready notwithstanding late service, as well as this child’s best interests in having her arrangements determined on an interim basis and with certainty prior to commencing school in the same week that the Court will resume sitting.
On those bases I am satisfied that the matter can, and should, proceed today, based on the evidence that is available and which has been filed, largely in accordance with, and in compliance with, directions made for its filing. That is also so, as the matter had commenced on the basis of an indication by both parties that they were ready to proceed to deal with the determination of the matter today, on the basis of the judiciable issues as presented. Accordingly, I do not propose to adjourn the proceedings to enable further evidence to be filed.
Further, in that regard, I note that the parties had been directed to attend a Child Dispute Conference on 21 November 2011. It is common ground that that conference did not proceed and neither party attended. It would appear, and I accept, that Ms Madden was not advised by her attorney of the date for that conference until after the date had passed. That is highly regrettable, particularly as some three weeks notice had been given by the Court of that date. The use of a Family Consultant’s time is also a valuable and limited resource in this registry of the Court if not, indeed, the Court generally. The information that may have flowed from, and indeed the opportunity for discussion and potential resolution of issues between the parties at the child dispute conference, is a missed opportunity which is regrettable, but is simply another circumstance of the case which has meant that the evidence before the Court is less than complete and, in some respects, having regard to the determinations to be made, not only regrettable, but potentially disadvantageous to one or both parties.
The legislative pathway
As I referred to above, the Full Court has, in authorities such as Goode and Marvel, made clear that the Court is required to follow the legislative pathway set out in the legislation.
The legislative pathway commences with a consideration of s. 60B which sets out the objects and principles of the legislation as follows:
“(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
The objects and principles provide a framework and a context within which the substantive provisions of the legislation are to be interpreted applied in arriving at a decision that is in the child’s best interests. They do not form part of the operative law but are designed to inform and assist in the interpretation and application of the substantive provisions. However, as such, the objects and principles are somewhat illuminating, particularly within the context of this case.
Certainly this child has two parents who have been actively involved with her on an equal, or not significantly less than equal footing, for most, if not all, of her life.
What is also made clear from the affidavit material is that this little girl has a variety of relatives and extended family. What the evidence does not speak to, however, is the role, if any, that any of these people play in this little girl’s life or, indeed, whether she has any real interaction with them.
That is particularly so as regards Ms Madden’s material which, under a heading “Extended Family”, commencing at paragraph 21 and concluding at paragraph 26, sets out a number of cousins, aunts, uncles and the like. The only detail I have in that regard, however, is that this little girl’s aunt, Ms S, babysits from time to time. There is no connection otherwise drawn between the identification of those relatives and the role played by them, or the relationship they have, with this little girl. It is indicated that a number of the uncles, cousins and aunties “see each other from time to time”, whatever that phrase may mean in reality.
That is another difficulty in the evidence that is before the Court which, on the basis that each of these parents is represented, is not an issue, which, in any way, falls or falls solely at the feet of Ms Madden. The material that has been filed in her case is, to put it bluntly, deficient as to addressing the issues that are required to be dealt with by the Court and in presenting her case in its best light. That creates a number of difficulties for the Court as information and evidence that would otherwise be germane and important in applying the legislative pathway is simply not available.
Having considered the objects and principles, the Court is required to consider s. 61DA, being the presumption of equal shared parental responsibility. As I have indicated, each of the parents consents and submits to an order for equal shared parental responsibility. However, the parties’ consent, (see U & U [2002] HCA 36) does not, in any way, derogate from the Court’s requirement to still consider the presumption and to arrive at its own determination, subject to an obligation of due process to raise with the parties any resistance to ordering that to which they consent.
The presumption of equal shared parental responsibility applies unless the circumstances set out in sub-s (2) are present and/or unless the Court is satisfied that it should not apply in interim proceedings (as it is inappropriate), or the presumption is rebutted as provided by sub-s (4).
The circumstances in which the presumption does not apply, as set out in sub-s (2), are not present in this case. There is no allegation of abuse of the child or any child nor any allegation of family violence. Accordingly, the presumption applies unless I am satisfied pursuant to sub-s (3), these being interim proceedings, that it is not appropriate for it to apply. I am not so satisfied nor is it suggested to be so.
Subsection (4) allows the presumption to be rebutted if the Court is satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility. It is not suggested by either of the parties, nor would their evidence support such suggestion were it made, that it would be inappropriate or not in the child’s best interests for these parents to share parental responsibility. Accordingly, the presumption does and will apply and I will, in due course, as is consented to by the parties, make an order for equal shared parental responsibility.
As the presumption applies, I am mandated to then consider, pursuant to s. 65DAA, equal time as set out in sub-s (1) and, if not satisfied that equal time would be appropriate, having regard to the dual test of what is reasonably practical and what is in the child’s best interests, to then consider substantial and significant time, applying the same dual test before considering or making any other order as to time.
The parties’ proposals with respect to time, it being remembered that the time that is ordered by the Court is to achieve the purpose of the child’s meaningful involvement and meaningful relationship with each parent, rather than as an end in itself, are somewhat disparate.
The father, in his case, proposes, subject to whether the Court is satisfied that the child should be returned to the (omitted) area or not, two alternatives. In the event that X is returned to the (omitted) Council area, Mr Waddell proposes an equal shared care arrangement on a week about basis. Each of the parties has indicated during submissions, and it being absent from their respective proposals, that there would be an equal sharing of school holidays, on whatever basis that may be. In the alternative, and in the event that X continues to reside in (omitted), it is proposed that there would then be time from Friday to Sunday each alternate weekend, as well as time from Wednesday afternoon to Thursday morning each week. That would provide for this little girl to spend four nights per fortnight with her father.
That latter of the above proposals is not dissimilar to that which has been occurring for some little time, although it is a different structure of time.
For her part, Ms Madden proposes that there would be time each alternate weekend from Friday to Sunday, and with her undertaking travel by delivering X to her father in (omitted) and collecting her from the father on Sundays, as well as the time on Wednesday to Thursday, and on the basis of Mr Waddell undertaking all travel. That was not apparent from the application and the response but was clarified during the course of submissions.
In considering substantial time, equal time, or any other time arrangement, the Court is required to apply, as I have indicated, the dual test of what is in a child’s best interests and what is reasonably practicable, having regard to s. 65DAA, sub-s (5). Section 65DAA, sub-s (5), to a large extent, can be seen to codify the present state of social science research as regards the indicia or counter-indicia of shared care arrangements which, both equal time and substantial and significant time as defined by s. 65DAA(1) and (2) respectively, would be described as in a social science context.
As the Full Court had observed in Starr & Duggan to which I have been taken and also as highlighted in the most erudite discussion of the application of the legislative pathway undertaken by Murphy J in Pitken & Hendry [2008] FamCA 186 and as the High Court reminds in MRR & GR [2010] HCA 4, the consideration of reasonable practicality as set out in s. 65DAA(5), is a mandatory consideration which can, in most circumstances, be reasonably and usefully undertaken as part of the s. 60CC consideration.
In the context of this case, the substantial judiciable issue that is, in fact, urged upon the Court, is whether orders should be made, presumably pursuant to s. 68B, which mandate and compel this child’s primary place of residence to be returned to a residence within the (omitted) Council area, the boundaries of which are not specifically defined in the material before me but which, presumably, does not include (omitted).
There is some compulsion that the proposals of the parties be considered, having regard to their present circumstances. Accordingly, I do not propose, as I am urged to do, to deal specifically with the consideration as to whether X should be returned to the (omitted) region before embarking upon a consideration of what arrangements should be in place for these parties. However, that determination would be substantially guided by s. 65DAA(5) and issues of reasonable practicality, as well as by s. 60CC and what is in this child’s best interests.
As the Full Court made clear in Starr & Duggan, s. 65DAA provides a useful framework to consider the advantages and disadvantages of equal and substantial and significant time arrangements, including proposals to relocate. The evidential difficulty that I am faced with in Ms Madden’s case is that I have no information whatsoever as to her relocation or why it has occurred. That is not to suggest that it is incumbent upon Ms Madden to provide an explanation or justification. But knowledge of the circumstances of the move may assist in more clearly identifying this child’s needs and best interests.
The only evidence really before me is that the move did occur at some date before 26 October 2011 and that clearly this was a determination made other than by mutual consent and consultation between these parents. Irrespective of whether there was an order in place, or indeed an agreement between these parties, the decision that has been made in relation to a change of the child’s place of residence would, by reference to the presumption which is in place under the legislation, be a major long-term issue as defined in s. 4 of the Act.
That section provides:
“Major long-term issues in relation to a child means 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:
(a) The child’s education, both current and future;
(b) The parties had some prospect of agreement in that regard but it is not yet crystallised.
(c) The child’s religious and cultural upbringing;
(d)The child’s health; the child’s name; and
(e) Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.”
The definition of major long-term issues perhaps impacts, as may well have been envisaged by the Full Court in Starr & Duggan, upon the issue of reasonable practicality. The evidence of the parties in relation to the distance is, as I have indicated, that it is about 46 kilometres and takes about three-quarters of an hour each way to traverse, subject to road and traffic conditions. The distance to be travelled has been calculated by the father as being, on the basis of the arrangements that had been in place to date but which, it would appear, neither party seeks to continue in the event that X continues living with her mother in (omitted), would be 920 kilometres of travel per fortnight.
On the basis of the mother’s proposal, it is suggested that this would be 552 kilometres per fortnight of travel. It is suggested in the mother’s case that, notwithstanding relocation to (omitted) – I use that term in its loosest sense, rather than to suggest that it is a significant distance that has been moved – that X, from whatever date in October the move occurred until some two weeks ago, continued to attend preschool in (omitted). Indeed, Ms Madden’s evidence is that she continues to travel to (omitted) on a regular, if not daily basis, to undertake her employment which is based in (omitted). It is suggested that there is no evidence that the travel which X has undertaken in that regard, which one can assume is on the basis of the father’s submission, 920 kilometres per fortnight, has been onerous or disadvantageous to X.
The difficulty with that submission, however, is that there is simply no evidence about that issue at all, as to whether it has been deleterious, beneficial or neutral. It is one of the many areas where the Court is simply left with nothing. Again, I do not suggest by that comment that Ms Madden has deliberately determined to not place that information before the Court. Her material, it would appear from that which is contained within it, scant as it may be, has not been prepared with any real reference by her legal practitioners to the matters which the Court would be required to address in this case, particularly by reference to s. 60CC or s. 65DAA, or either.
However, it is a substantial and significant amount of travel for a little girl. It is also an amount of travel that will be impacted come the commencement of term 1 2012, with this little girl commencing school. There is, again, no evidence to suggest how that would, or would not, impact upon this little girl, although midweek travel would clearly be limited, on Ms Madden’s proposal, to this little girl being collected on Wednesday afternoons and returned by her father on Thursdays.
The other aspects of the evidence in relation to this little girl’s arrangements, as I have indicated, would suggest that neither party seeks to continue the arrangement that had been in place prior to the move to (omitted) although it would seem that the arrangement has continued to date. Clearly, the commencement of school would make that a very onerous burden for this little girl, if not her parents, in making that travel occur.
Section 60CC commences with the primary considerations set out in sub-s (2), only one of which has application to this case. 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.
I hasten to repeat that protection is simply not an issue in this case.
As regards the benefit to the child of having a meaningful relationship with both parents, it would appear that the arrangements that the parties have put into place without the need for Court intervention, although it would appear with the assistance of family dispute resolution, are those which the parents had considered to be in this little girl’s best interests at the point that those arrangements commenced, being no later than September 2011.
It is not suggested that those arrangements as negotiated between these parents have been deleterious to this child’s welfare. One can assume from that that the parents had both accepted, at the time that the arrangement was negotiated and implemented and on an ongoing basis, that the arrangements, in fact, met and accorded with this little girl’s best interests.
The additional considerations, both can stand alone as matters of relevance and importance of themselves and assist in informing the primary consideration.
As observed by Carmody J in Dylan & Dylan [2007] FamCA 842 the additional considerations are anything but secondary. They are simply additional. That does not mean that they have lesser or greater importance than the primary consideration. Those additional considerations are as follows:
Views
There is no evidence at all before the Court in relation to this little girl’s views. That, perhaps, does not create the same degree of difficulty as the absence of evidence with respect to other aspects of this little girl’s welfare, as at her age, I would require some particular persuasion, and preferably by evidence from an objective source, as to why significant weight would be attached to such views. But as I have indicated, there is simply no evidence about it.
The nature of the child’s relationship with each parent and with other persons, including grandparents and any other relative
This would extend to and include, in the context of this case, Ms Madden’s partner. The difficulty is, again, that neither parent has really sought to place any evidence before the Court as to their present relationship. However, the father certainly asserts that he enjoys a good relationship with his little girl and there is no reason whatsoever to doubt, as it is not suggested by the father, nor is it suggested by any of the evidence that is available, that this little girl has other than an excellent relationship with her mother. There is no evidence, however, as to this little girl’s relationship with any other person.
Willingness and ability of each parent to facilitate and encourage a close and continuing relationship
I am urged, in the father’s case, to accept that I should make a substantial criticism of the mother’s willingness and ability to facilitate this little girl’s close and continuing relationship with her father on the basis of her unilateral move with her to (omitted). I do not accept that that is necessarily a criticism or at least not a criticism of the same magnitude as I am urged to accept. It is not suggested, for instance, that the mother’s move has rendered it impossible for the arrangement that had been in place, and mutually negotiated between them, with or without the assistance of a Family Dispute Resolution Practitioner, to continue to spend time with her father, in accordance with that arrangement, and to continue her relationship.
There is no evidence to suggest that the move has, of itself, or as a consequence of limitations upon time or any other circumstance, had an impact upon this little girl’s relationship with her father. Clearly, however, the move should have been discussed and should have been canvassed and appropriately addressed by the parties. In that regard, I note that the material makes clear that the father had, at all times, made clear his objection and opposition to the move. On 27 September 2011, correspondence was forwarded by Ms Madden’s attorneys, suggesting that over the long weekend in October that Ms Madden was relocating. It was made clear what arrangements were then proposed in relation to changeovers and which involved travel occurring between (omitted) and (omitted) by both parents. That, clearly, would have had some impact on the operation of that arrangement as to the time and the nature of the time, and that which was done with the time, spent by the father with his daughter. It was proposed that Ms Madden would drop X at her sister’s address in (omitted) on Mondays and Wednesdays, and Mr Waddell was requested to drop X back to (omitted) from 10 October 2011 onwards, at 7.30 pm, “in line with the existing arrangements”. At the time that those arrangements came into being these parties lived some one or two minutes apart from each other.
There was certainly no delay in Mr Waddell providing instructions, or those instructions being communicated by his attorneys to Ms Madden’s. Indeed, on 30 September 2011, some three days after the letter from Ms Madden’s attorneys, correspondence was forwarded, making very clear that Mr Waddell did not consent to the move, nor the arrangements for travel that were then proposed. He indicated quite clearly in that correspondence that he was of the view that the relocation and issues surrounding it had not been raised in Court (there then being proceedings on foot), but that they would be raised by him when the matter was next listed on 1 November 2011, and that an order would be sought restraining the move.
Notwithstanding that notice the move still occurred. It is not to suggest that Ms Madden did not have a right to do so, as regards herself, and it has been made clear by the Full Court that there is no jurisdiction resident within the Act to restrain a parent as to their place of residence, only the residence of a child.
The consequence of the move was that the judiciable issue which is before the Court today was then born and, accordingly, this Court’s jurisdiction to deal with that issue is now enlivened.
In any event, I am not satisfied that the criticism of Ms Madden and her actions should be of the full weight proposed in the father’s submissions. It is a criticism that does not, of itself, assist in making the determination which the Court is called upon to make as the basis for the determination is the child’s best interests and not judgement, punishment or rebuke of Ms Madden.
The likely effect of any change in the child’s circumstances, including separation from either of his or her parents, or any other child or person
It is clear that there is likely to be an effect upon this little girl, as a consequence of her move, and the proposals put by each of her parents for her future time with the other parent. Again, it is to be remembered that the time a child spends with a parent is not an object in itself. It is purely to achieve the objects of the legislation and the primary consideration, being a parent’s meaningful involvement and meaningful relationship with the child, and more importantly, to meet the child’s best interests, assuming, as the objects do to some extent, that the above goals are beneficial unless demonstrated to be otherwise.
The effect of change arising from the move to (omitted) is that this little girl has, to date, been exposed to a far more significant level of travel than previously occurred. This is, on the basis of the mother’s proposals, an arrangement that would continue in the future, and in relation to the time that is then proposed, and which can reasonably occur once this little girl starts school and is occupied Monday to Friday with that endeavour, will limit the father’s capacity to be involved, not only in relation to his time with his daughter, but in relation to those arrangements themselves.
A “meaningful involvement”, as described in s. 60B, is not purely based on relationships. If it were intended to be so, the legislation would be in those terms. The objects are intended to create both a consideration of meaningful relationship and meaningful involvement. That would include, with respect to a school-aged child, participation in the child’s school life, taking her to and from school, (which is proposed by Ms Madden to occur on Wednesdays and Thursdays) but also involvement and engagement with the school such as meeting her friends, taking her to her classroom door, speaking with her teacher, and meeting the parents of her peers as subject to it being a matter within the availability and will of a parent, participating in the school community, whether in reading groups, work bees, or otherwise.
These are all important aspects of a parent’s meaningful involvement with their child. That also extends to, and includes, out-of-school activities, whether related to school or otherwise, such as assisting with homework and projects, and extra-curricular activities. There is no evidence that this little girl is presently engaged in, or indeed, envisaged to be engaged in, such activities, but certainly the distance between these parties, whether short term or long term, would create more substantial difficulty in that involvement by either parent.
That difficulty in involvement also extends, to some extent, to Ms Madden, who will be working in (omitted) during the day, at least for some days of the week, and some distance from her school. It will create difficulties for both parents in the event of a difficulty at the school, such as illness or misadventure, in that both will have to travel from (omitted) to (omitted). There is a degree of artificiality in that sense.
Practical difficulty and expense
Clearly, there is far more practical difficulty and expense on Ms Madden’s proposal, for one or both parents – and I am satisfied in all probability, both – in spending time and communicating with X and being involved in her life by maintaining personal relationships and the like. There is less so in the event that both parents were residing in the same geographical area. In the absence of any application to effect change to the place of residence of X, that would be an issue that would simply be balanced in relation to each parent’s proposals, and factored in as best as one can, as part of the s. 65DAA(5).
In the context of this case, there is a live application that would seek to effect change, and accordingly, the balancing of practical difficulty and expense on an interim basis must be considered.
The capacity of each parent to provide for the child’s needs
There is no suggestion that either of these parents is in any way impeded or deficient in that regard.
The maturity, sex, lifestyle and background of the child
This factor has little relevance other than this child’s age. She is a very small child, and whilst becoming more independent, and that will continue and be increased through her commencement at school, she is still largely dependent upon her parents. It is not otherwise of any great assistance in this determination.
The child’s aboriginality or Torres Strait Islander background
X is not and this is not relevant.
The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
Each is critical of the other in this regard. The father is critical of the mother on the basis of the relocation and her doing with a disregard of his role as a joint parent. The mother is critical of the father, in that he does not provide child support at present and would appear to be unemployed. Neither of those is of any great assistance in this determination, although relevant, potentially more so, pursuant to s. 60CC(4).
That section requires the Court to take account of the extent to which a parent has taken, or failed to take, the opportunity to participate in major long-term issue decisions, or to facilitate the other parent’s participation in such decisions, as well as a requirement to consider the extent to which a parent has failed, or has fulfilled, their obligations to maintain the child. In relation to the non-payment of child support, and by reference to the objects of the Child Support Assessment Act 1989, children have a right and expectation to be supported by their parents, in accordance with their capacity to do so, and also clearly identifying that children share in changes to their parents’ financial positions.
That would appear to be what has occurred in this case and the evidence suggests that there is, at least, some limited attempt to assist financially, both through meeting arrears of preschool fees paid by the father or his extended family, and the father’s proposal that he and his extended family will meet all fees with respect to this little girl attending a private school.
In relation to the failure to facilitate the father’s participation in decision-making regarding the move to (omitted) that remains a valid criticism of the mother raised in the father’s case.
Family Violence and Family Violence Orders
Factors (j) and (k) both deal with family violence and the existence of family violence orders, neither of which, thankfully for this little girl, is alive in this case.
Whether it would be preferable to make orders that will least likely lead to the institution of further proceedings
As these are interim proceedings it is trite to say that further proceedings will occur. However, there are a number of aspects of that obligation which the Court can fulfil today, they being:
a)Firstly, a determination as to whether further family dispute resolution or family counselling would be of assistance. Section 65F requires that the parties attend counselling, subject to a number of exceptions, before a final determination is made. It would not appear to present any great utility at this point in time. It may be ordered at some future time or the parties may seek it out by themselves. Further family dispute resolution, similarly, I am satisfied I need not order today, although the parties are clearly at liberty to pursue it should they wish.
b)Secondly, it means that the Court must have some regard to the workability or sustainability of arrangements, which perhaps is directly connected to, and a convenient point at which to commence the consideration of s. 65DAA(5).
Factors Dealing with Reasonable Practicality
If arrangements are onerous or difficult, it is hard to see how they would continue without further frustration, which may indeed lead to future proceedings, in the event of either non-compliance or a suggestion of a change in circumstances. It also means that I must consider the practical and logistical effect of each party’s proposals as part of the overall decision-making process.
Sub-s (m) of s. 60CC reserves for the Court an ability to consider any other fact or circumstance that the Court considers relevant.
It is not the role of this Court to create policy or to send messages to the public as to the application and utilisation of the legislation in a fashion that might, perhaps, arise through the criminal jurisdiction, whereby the imposition of penalty is intended, not only to send a clear message to a perpetrator, but also the community at large. Indeed, these proceedings have no aspect of punitive nature at all. They are proceedings focused upon the entirely positive and appropriate factor of the child’s best interests as the paramount consideration as set out in s. 60CA. However, I am conscious of the requirement – although no order presently exists, or existed at the time of the move – that parents should consult with each other and jointly, and hopefully cooperatively and consensually, make arrangements for their children’s best interests and future care. That has clearly not occurred in this case.
In relation to s. 65DAA, I am required to consider how far apart the parties live. Again, as this case involves an application which seeks to directly engage with that issue, I have the twofold task of determining whether I should make any positive order which addresses the distance between these parents, and if I do not, must then factor in the relative availability of these parents and their distance from each other.
The distance, as has been submitted in Ms Madden’s case, is not substantial. However, it is sufficient to create real difficulties, both as to the father’s participation and involvement in the child’s day-to-day life, and in that regard, I have some reference to both the objects and the definition of substantial and significant time in s. 65DAA(3), to which I will return. It is also logistically difficult, particularly as regards midweek time, having regard to the father’s caring responsibilities and his financial position. I know very little about the father’s financial position, other than he is presently unemployed, and I am told in submissions, owns a house.
However, I am aware from his material that the father also has a child who was nine months of age at the date of his affidavit in October and, accordingly, would now be 10 or 11 months of age. There are orders in force with respect to that child, of an interim nature, and proceedings pending before this Court with respect to that child, Y, whereby the father spends time with her on a near-daily basis. He spends periods of time with her from 2.30pm till 5.30pm each Tuesday to Friday inclusive, as well as a period of time each Sunday and each alternate Saturday.
On that basis, there would be some real practical difficulty and some real interference in that relationship – although that is not the paramount consideration in this case, but rather X’s relationships with her parents. If the father were required to travel each Wednesday afternoon it would intrude into the time he has Y in his care. It would not impede his travelling on Thursday mornings, but he would be required to be leaving to collect this little girl, X, from her school at or about the time that he is to collect Y, and accordingly, would be transporting that child with him in a motor vehicle for an hour and a half of his time with her. That is a matter of some real practical difficulty for the father.
I am required to consider the parents’ current and future capacity to implement arrangement of equal time or substantial and significant time. Clearly, equal or substantial and significant time would be far more problematic if these parties did not live in relative proximity to each other. The mother does not propose to relocate, but I am asked in the father’s case, to make a positive order requiring so. On the basis that the parties lived in relative proximity to each other, it would be far more open to them to spend equal time, or substantial and significant time, each with X.
The parents’ current and future capacity to communicate and resolve difficulties.
I am satisfied that, whilst at face value one could be critical of their capacity as these proceedings are before the Court, I note:
a)The parties were able, for a period of at least two years, to negotiate arrangements without any outside intervention;
b)The parties were able, upon attending family dispute resolution, to reach apparent agreement regarding parenting arrangements, and that agreement has been put into effect, notwithstanding that neither party has signed the draft parenting plan; and
c)The parties have been able, in these proceedings, to agree on the vast majority of orders proposed.
Accordingly, I am not satisfied that they have any communication difficulty of any great substance, and certainly not of such substance as would require mandated attendance at family counselling or family dispute resolution to communicate and resolve difficulties.
The impact of the arrangement upon the child
In that regard, and particularly by reference to equal time and substantial and significant time as sought in the father’s case, I am satisfied that the child would, in all probability, cope with whatever orders or arrangements these parents put into place as they are both capable, competent, loving parents. It is suggested that there would be a negative impact on X if she were to continue living in (omitted) as that would have some impact upon the extent to which her father could be involved in both her care and other aspects of her life.
There may well be some impact upon X in the event that she were required to relocate and I am perfectly satisfied, particularly as it is not raised as any opposition, that if such an order were made, her mother would relocate with her, if such relocation were compelled. However, the difficulty I have in that regard is that there is no evidence, whatsoever, addressing that. This Court can only make a determination based on evidence. The weight that is attached to evidence is, perhaps, a separate matter, having regard to the issues I have addressed in relation to Division 12A. However, the entire absence of that evidence means it simply cannot be considered and the answer certainly cannot be speculated.
In considering equal time, and by reference to the tests that I have addressed above, I am satisfied that this little girl would cope with spending a period of a week with her father and that this would, potentially, bring some real benefit to her. I can infer from the fact that each of these parents concedes that school holidays would be shared equally, that they also are in agreement that a period of a week at a time would not be disadvantageous, or perhaps in more positive terms, these being excellent parents, is considered to be to her advantage.
However, school holiday time and school term time are different things. That is, perhaps, acknowledged by s. 65DAA(3), which provides some definition of substantial and significant time. It refers to children spending substantial and significant time as including weekdays, school holidays, school days, time that enables both parents to be involved in the child’s daily routine and occasions that are of significance to the child, as well as of significance to parents. In that regard, I am conscious that weekday time and non-weekday time during school terms for this little girl are and will be different.
However, it would also fulfil the obligation created by the legislation, and recognised by both the objects and s. 65DAA(3), as being beneficial to this child. It would enable both parents to participate in the child’s daily routine and to be a real and active part of it, to participate in events that are significant for this child, as well as events that are significant for parents, although that must, by reference to s. 60CA, be a lesser consideration than events of significance to the child.
There is, again, no evidence to suggest that such an arrangement would not be beneficial and, certainly, the only evidence that I have inferentially, if not otherwise, is the parents’ agreement to a week about period being beneficial to this child at least during school holidays. I am satisfied on that basis that such an arrangement would provide benefits to this child and would do so whether equal time or close to equal time.
The difficulty I have, as it relates to the primary judiciable issue before this Court today, is that such an arrangement would be largely, if not wholly, impractical, in the event that these parents, on an interim basis – and it being remembered that this is an interim determination only – continue to live any significant distance apart. In that regard I am satisfied that (omitted) to (omitted) would represent, during school terms, a significant distance. It would require this child to leave home when in the father’s care, even if only one day per week, at an hour much earlier than otherwise at least if attending school in (omitted). The same would apply as regards the mother’s home if the child were schooled in (omitted). Similarly, she should have the opportunity to be schooled where she primarily lives so she can form and explore friendships and other activities as part of a broader community.
Whilst it might be suggested that kindergarten, as the first year of school, has little importance, and can, perhaps, be viewed as less significant than, for instance, Year 12, it is a most important and significant year for this little girl. It is her first year of school. She will have many adjustments to make. She will experience many new delights and, one would hope, will enjoy school. I have some confidence that she will, as clearly, and as demonstrated in social science literature, children’s innate capacities and abilities have some impact upon their development at school, but far more important is the support, encouragement and backing of both parents.
To that extent, I am satisfied that by reference to the above matters, and in particular, the impact that it would have upon this little girl’s capacity to have active and equal involvement with both her parents, and the absence of any evidence that suggests that it is in any way impractical, or even difficult, for the relocation back to (omitted) to occur, that such an order should, on an interim basis, be made.
That does not mean that on a final basis, when this matter will be heard, presumably by Henderson FM, that a different determination may not be arrived at, with what one would hope will be far more fulsome evidence and, possibly, a family report, if same is ordered by Henderson FM on whose docket this matter resides. That being the case, I am satisfied that it would then be beneficial for this little girl, and in her best interests, for the interim period between now and final conclusion of the matter, for orders to be made as sought by the father.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 20 March 2012
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