Weaver and Cantrell - [2008] FMCAfam 961

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WEAVER & CANTRELL

[2008] FMCAfam 961

FAMILY LAW – Interim parenting orders – application to vary existing final orders – whether s.60I certificate required.

Family Law Act 1975, ss.60B, 60CA, 60CC, 60I, 61DA, 65D, 65DAA

CDJ v VAJ (1998) 197 CLR 172
Goode & Goode [2006] Fam CA 1346
Rice & Asplund (1979) FLC 90-725
Bennett & Bennett (1991) FLC 92-191
King & Finneran (2001) FLC 93-079
SPS & PLS [2008] Fam CA FC 16

Applicant:

MR WEAVER

Respondent:

MS CANTRELL (FORMERLY KNOWN AS REEVE)

File Number:

BRC 6456 of 2007

Judgment of:

Wilson FM

Hearing date:

26 August 2008

Date of Last Submission:

26 August 2008

Delivered at:

Brisbane

Delivered on:

3 September 2008

REPRESENTATION

Counsel for the Applicant:

Mr Foley

Solicitors for the Applicant:

Hopgood Ganim Lawyers

Counsel for the Respondent:

Mr Andrew

Solicitors for the Respondent:

McMillan Kelly & Thomas Lawyers

ORDERS

That both parties be permitted to seek parenting orders in respect of the child [X] different to those made by consent in the Family Court of Australia on 17 April 2003
That until further order the child live with the mother at all times he is not spending time and communicating with the father.
That the child shall spend time with the father at all times as may be agreed between the parties, and failing agreement:
(a)Each alternate weekend during school term from Friday afternoon until Sunday evening, commencing on Friday 5 September 2008;
(b)For one half of the Queensland gazetted school holidays;
(c)By telephone at all reasonable times, although not more frequently than three times weekly.
For the purposes of Order 3 hereof:
(a)The father shall collect [X] from after school care on Friday afternoon by not later than 5 pm;
(b)On Sunday evening and during school holidays changeover shall occur at a midpoint between the parties’ residences, to be agreed by them, not later than 7 pm;
(c)School holidays shall be taken to commence at the conclusion of school on the last day of term, and to end at the commencement of the following school term.
Each party must advise the other of:
(a) Any illness, accident or injury suffered by a child;
(b) Any medical or dental treatment provided to a child;
(c) Any medication a child is to take whilst the child is in the other’s care including the dosage;
(d) Any special dietary requirements that apply to the child.
That both parents be at liberty to obtain information regarding the child’s health and medical issues and this order can be regarded as authority for the relevant doctor and hospital to provide relevant information about the children to either parent.
That both parents be at liberty to obtain information regarding the child’s education and to obtain copies of all school information including newsletters, reports, photographs and details of any school activities be at liberty to attend at all school functions and events to which parents are ordinarily invited.
That each party is restrained from criticising the other party and their family to or in the presence or hearing of the child and must use their best endeavours to ensure that no other person does this,
That both parents be courteous and respectful in their communications with each other and respect each others right to privacy and not attend the residence of the other parent without prior arrangement and consent.
That the parties notify each other within 24 hours of any change of address or telephone number (including mobile and landline phone).
That neither parent shall discuss legal matters in the presence or hearing of the child nor allow any third party to do so.
That neither parent shall use the child to communicate with the other parent and wherever possible, will use email or other written communication to convey information relevant to the child’s welfare to the other of them.
That this matter be listed for trial review at 9.30am on 24 March 2009 in the Federal Magistrates Court of Australia at Brisbane.
That this matter be set down for final hearing with an estimated duration of two days at 10.00am on 7 April 2009 in the Federal Magistrates Court of Australia at Brisbane.
That the evidence in chief of each witness, other than an expert witness, at the hearing be on affidavit.
That each party file and serve an affidavit of the evidence in chief of each witness (or indicate which earlier affidavits will be relied upon) other than an expert witness by no later than 28 days prior to 7 April 2009.
That each party file and serve any affidavits in reply by no later than
21 days prior to 7 April 2009.
That each party shall notify the other in writing of any objections to the affidavit evidence stating succinctly the ground of objection by no later than 14 days prior to 7 April 2009.
That any party receiving objections to affidavit evidence file and serve a written response thereto by no later than 7 days prior to 7 April 2009.
That a written report of any expert who is to give evidence on behalf of any party be filed and served by no later than 21 days prior to 7 April 2009.
That each party put any statement of facts (other than that relied on by the expert) to be contended for by that party and any questions for consideration by the expert by no later than 14 days prior to (7 April 2009.
That the expert use his/her best endeavours to provide a written response to such statement of facts and/or questions by no later than
7 days prior to 7 April 2009.
That each party provide particulars of the final orders sought by that party by no later than 14 days prior to 7 April 2009.
That
the applicant pay any hearing fee or seek a waiver of the fee

6 weeks prior to hearing date.
That the applicant (unless otherwise agreed by the parties) deliver to the Court and the other party(s) by no later than 4.00pm on the second last working day before the trial is due to commence a Court Book indexed and paginated, containing working copies of:
(a) the affidavits to be relied on by the applicant;
(b) the affidavits to be relied on by the respondent;
(c) any expert reports;
(d) a written list of any objections to the affidavit material of the applicant;
(e) a written response to such objections by the applicant;
(f) a written list of any objections to the affidavit material of the respondent;
(g) a written response to such objections by the respondent;
(h)any questions or material put to an expert for comment, and the expert’s reply thereto;
(i)a document setting out clearly the final orders sought by the applicant;
(j)a document setting out clearly the final orders sought by the respondent;
(k)a case outline, or written submissions, to be relied on by either party.
Each party has liberty to apply on the giving of not less than 2 business days notice in writing to the court and to the other party.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 6456 of 2007

MR WEAVER

Applicant

And

MS CANTRELL

Respondent

REASONS FOR JUDGMENT

By application filed on 25 July 2008, parenting orders are sought by the applicant father in respect of his son [X], born in 2000. By a response filed 25 August 2008, the respondent mother sets out those parenting orders that she seeks.
Both parents seek the court’s assistance in deciding what parenting orders should be made on an interim basis. As is made clear by s.60CA of the Family Law Act1975 (“the Act”) the best interests of [X] are my paramount consideration in determining what parenting orders to make.
As the majority High Court justices observed in CDJ v VAJ (1998) 197 CLR 172 at 219 best interests are values, not facts. The best interests of the children must be judged according to the facts and circumstances of each individual case. The court must be careful not to judge a party’s behaviour against some artificial or ideal standard. Often the choice confronting the court in parenting cases is between alternatives, both of which are less than optimal.
As s.60CC(1) makes clear, in determining what orders are in [X]’s best interests, I am required to consider the matters in s.60CC(2) and (3) of the Act, informed by the principles and objects set out in s.60B of the Act.
The task of the court on an application for interim parenting orders is assisted by the decision of the Full Court of the Family Court of Australia in Goode & Goode [2006] Fam CA 1346, particularly at [82].
Two preliminary issues must be dealt with before any consideration of whether, and if so what, interim parenting orders should be made.
Section 60I(7) of the Act provides:
Requirement to attempt to resolve dispute by family dispute resolution before applying for a parenting order
(7) Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order.
No certificate of a family dispute resolution practitioner has been filed in these proceedings. The question arises as to whether the court can, and should, hear and determine the application.
The applicant father relies on s.60I(9)(d) which provides:
(9) Subsection (7) does not apply to an application for a Part VII order in relation to a child if:
…
(d) the application is made in circumstances of urgency; or
…
In my view there are no circumstances of genuine urgency attending the present application. As the history of the matter, referred to in more detail below, reveals, final consent parenting orders were made on 17 April 2003 in the Family Court. On 25 July 2007 the father filed an application for contravention in this Court, alleging breaches by the mother of the 2003 orders. That application was compromised on the basis that the parties would attend upon Mr Phillip Trudinger, an experienced psychologist, with a view to a family report being prepared, in an effort for the parties to negotiate appropriate parenting orders.
The parties, sometimes together, and at other times individually, have attended upon Mr Trudinger on multiple occasions. At a joint session on 8 April 2008 agreement was reached for [X] to live with his father. There is a factual dispute about the terms of that agreement, which I will deal with in due course. On 11 July 2008, after spending holiday time with the mother, [X] did not return to live with the father. That asserted refusal by the mother to continue to abide by the agreement made on 8 April 2008 precipitated the father’s application.
The application was, as I have said, filed on 25 July 2008. It was listed for hearing before me on 26 August 2008. A Registrar of the Family Court determined that the application was not suitable for urgent listing.
In circumstances where the parties have been the subject of Court orders since 2003, and have been involved in prolonged and detailed counselling sessions with an experienced psychologist, and there is no risk of immediate harm to the child, I do not consider that the applicant has made out a case of urgency.
Section 60I(9) of the Act does not confer on the Court a general discretion to dispense with the need for a s.60I certificate. That is unfortunate in the present case, because the parties have endeavoured to negotiate a resolution to their dispute, with the assistance of

Mr Trudinger. Unfortunately, Mr Trudinger is not a registered family dispute resolution provider and cannot issue a s.60I certificate.
In my view, it would be a waste of time and resources for the parties to have to attend a registered family dispute resolution provider, simply for the purposes of securing a certificate. But that is what the legislation seems to require.
In my view, there is another answer to that initial dilemma. Section 60I(9)(b) provides:
(9) Subsection (7) does not apply to an application for a Part VII order in relation to a child if:
…
(b) the court is satisfied that there are reasonable grounds to believe that:
(i) there has been abuse of the child by one of the parties to the proceedings; or
(ii) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
(iii) there has been family violence by one of the parties to the proceedings; or
(iv) there is a risk of family violence by one of the parties to the proceedings; or
…
The term “family violence” is defined in s.4(1) of the Act in very wide terms, as follows:
"family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
Therefore, it seems by reading this definition with s.60I(9)(b) if there are reasonable grounds to believe that there is a risk of family violence by one of the parties to the proceedings, or that there has been family violence by one of the parties, the need for a certificate is abated.
In my view, on this interim application, and on the mother’s own evidence, I can have such degree of satisfaction.
I should point out that there are allegations in the affidavit material, and in Mr Trudinger’s report, about family violence perpetrated by the mother’s husband, Mr C. Mr C is not a party to the proceedings. Any conduct on his part would not, it seems, be caught by the exemption in s.60I(9)(b) of the Act.
At paragraphs 44 and 46 of her affidavit, the mother says:
“I deny that I ever said that [X] was living in fear of his step-father. Firstly I have never referred to [Mr C] as his step-father only ever as [Mr C] or “[nickname omitted]”. [X] has always known [Mr C] as “[nickname omitted]” and it is what he calls him. I did however explain that I have seen the look of fear on [X]’s face and explaining that over the past years or so as [Mr C] and I had been under so much scrutiny and living with so much stress that [Mr C] and I had lost our tempers and that all 3 children should not have to cope with this. This has only happened on a couple of occasions and there has never been any physical violence. There have been arguments between us du to the level of stress as a result of these proceedings but never in front of the children.
. . .
The time that I was referring to was in fact one morning when I was getting the children ready to go to Doctor Trudinger’s office and at the time I had to deliver [X] to school and drop the girls at my sister’s house to be cared for. I was stressed at the time, I was running late and I raised my voice at [X]. It was the first time in my memory that I saw a look of fear on his face. . . . “
This occasion seems to me to fall within the definition of ‘family violence’. It was conduct of the mother towards [X] (in the form of shouting at him) that according to the mother caused [X] to be apprehensive about his personal well being. This was manifested by the look of fear on his face.
Whilst it might seem rather innocuous in the overall scheme of things, in my view this incident volunteered by the mother allows me to have reasonable grounds to believe that there has been family violence by one of the parties to the proceedings.
In those circumstances, I conclude that s.60I(7) does not apply to these proceedings and I have jurisdiction to consider both parties’ application for interim parenting orders.
The next argument raised on behalf of the mother is that the father’s application is essentially to re-open existing parenting orders, and he must demonstrate a significant change in circumstances before the Court will allow that to occur. The mother’s counsel submits that no such circumstances are disclosed and the father’s application should be summarily terminated, as a threshold matter.
The threshold issue, as I have described it, is often ascribed to the decision of the Full Court of the Family Court in Rice & Asplund (1979) FLC 90-725, although the principle predates that decision. The Act permits the Court, by s.65D, to make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order. There are, however, no guidelines in the Act as to when a Court may refuse to entertain an application for variation or discharge of an existing order. The Act does not prescribe the matters that the Court should consider in determining whether or not to exercise its jurisdiction to so act.
In Rice & Asplund Evatt CJ said at pp 78,905-6:
“The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstances which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. The court must apply the principles of sec. 64 and weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reasons for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court’s assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard.”
There the Full Court stated that these were not matters for a preliminary submission. However, later cases have ameliorated that position. In Bennett & Bennett (1991) FLC 92-191 the Full Court of the Family Court said, in a joint judgment, at p. 78,262:
“As to the second point, it is, we think, a matter of discretion as to whether a Judge embarks upon a full hearing of a matter or determines the threshold question as to a change in circumstances. This is in no way to derogate from the general principle expressed by the Full Court in Rice and Asplund (1979) FLC 90-725, and in Zabaneh and Zabaneh (1986) FLC 91-766, that fresh application for custody should not be entertained unless there exists a substantial change in circumstances. In some cases, however, and her Honour apparently considered that this was one of them, it is not easy to determine the threshold question without going into the merits of the matter. Obviously, if this is done, and as a result of taking such a course, the trial Judge comes to the conclusion, as her Honour did, that a change of custody is warranted in the interests of the child, then it would be unthinkable not to give effect to such a conclusion upon the basis that no change in circumstances had been shown. The fact that the determination as to whether or not to deal with a change in circumstances as a preliminary issue or to proceed to a full hearing is a discretionary matter, is supported by the remarks of the High Court in refusing leave to appeal in the recent case of Lowe v Lowe (6 April 1990).”

In King & Finneran (2001) FLC 93-079 at p. 88,367 Collier J said:
“40. Clearly, in Rice and Asplund itself and the following authorities, there is no indication or guideline as to the manner in which the court is to reach its determination as to whether or not the matter will be dealt with as a threshold test.
41. The rule in Rice and Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the maters set out in section 68F would defeat the purpose of that protection. It would mean that before the matter could be dealt with, a complete hearing, or as I understand the appellant’s submissions at least a hearing dealing with the section 68F factors, would have to be undertaken and completed.
42. A judge or magistrate exercising jurisdiction under the Family Law Act is not required to undertake the exercise of identification and evaluation that the husband urges. To do so would be to abolish for all effective purposes the opportunity of a court to make a threshold determination in cases where such an early end to the litigation was the best result for the children.
43. The husband’s line of argument in this regard is flawed. It is not the case that an application of the Rice and Asplund test divides or compartmentalises a matter into a threshold component and a merit component. It is clear that a trial judge has a discretion as to whether or not a deal with the matter at a threshold level or to embark upon a full hearing (see Bennett and Bennett (1991) FLC 92-191).
44. To apply the test in Rice and Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision. This is not always a clear distinction.
…
49. Clearly, both words indicate something out of the ordinary course of events. To be either significant or substantial is to indicate that a matter is of importance, of consequence, of real worth, of ample or considerable amount, quantity, size etc. When related to a change in circumstances, this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.
…
62. What is required is that a trial judge be satisfied that there has been demonstrated such a change that it must be a matter of concern and required the court to examine the situation of the children afresh. There is no assistance to be gained from the authorities as to whether or not this can be done cumulatively. The law at present requires that there be a change such as to require re-litigation. That change can be made up of component parts or could rely on one single but major change. However, a cumulative basis for change in circumstances cannot be made simply by weight of numbers of the changes alleged to have occurred.”
The correct approach to be adopted by courts considering the application of the so called principle in Rice & Asplund was recently reviewed by Warnick J sitting on appeal in SPS & PLS [2008] Fam CA FC 16. After reviewing certain of the authorities his Honour said at [43]:
“Moreover, the force of the rule is likely vary according to the nature and degree of change sought to a previous order. At one end of the parameters in the instant case, the father sought only a relatively small increase in time with the children. Again, the factors which bore upon whether that increase was or was not in the children’s best interest at least deserved discussion”
In the present case, the father is seeking considerable change to the existing orders. Most obviously, he is seeking an order that [X] live with him, whereas the existing orders provide for [X] to live with the mother.
As Warnick J said at paragraph [48(v)]:
“The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier orders.”
At [55] his Honour observed that the ends served by the rule will vary according to whether it is applied at the outset of, or at the end of, a hearing. The purpose of the rule is to discourage endless litigation. His Honour thought that the rule was best applied as a preliminary matter: see [50] – [74].
His Honour summarised the position at [81] as follows:
“Thus, in my view when the threshold question described in Rice & Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.”
In my view, the evidence presently before the Court sufficiently persuades me that it is in the best interests of [X] for those parenting orders dealing with his care to be reviewed. It has been alleged by the father that the mother was non-compliant with the consent orders made in 2003. The reasons for that, if established, need to be reviewed. There have been quite significant changes in [X]’s care arrangements since 8 April 2008. Evidence is now available from Mr Trudinger. [X] is embroiled in the latest dispute of the parties. In the absence of intervention by the Court I fear that conflict will continue indefinitely. It may ultimately be decided that the parenting orders of 17 April 2003 should remain in force, but the threshold or preliminary question is whether the parties should be allowed to re-agitate parenting issues. In my view, they should be.
The interim orders sought by the father are as follows:
(1)Previous Orders
1.1That the orders of the Family Court of Australia at Brisbane made by consent on 17 April 2003 be discharged.
(2)Living and time arrangements
2.1That [X] live with the father.
2.2That [X] spend time with and communicate with the mother as ordered by this honourable Court.
(3)Recovery Order
3.1 That the hearing of this application be abridged.
3.2 In the alternative to (4) above, permission be granted to serve short notice of this application.
3.3 Pursuant to section 67Q of the Family Law Act a recovery order issue directed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia requiring them to return the child, [X] ([X]), born in 2000, to the father and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.
3.4 That any recovery order made by this honourable Court lie in the Registry for a period of 24 hours before execution by an authorised person.
3.5 That the respondent mother pay the applicant father’s costs of and incidental to this application to be assessed.
(4)Parental Responsibility
4.1That the father and mother have joint parental responsibility for [X] until further order.
4.2That the each party have day to day parental responsibility for [X] while he is being cared for by that party.
(5)Specific issues
5.1 That [X] attend [C] School.
5.2 That an injunction issue restraining the mother from removing [X] from [C] School and enrolling him in any other school.
5.3 That until further order, the father be responsible for decisions concerning the management of [X]’s medical and dental treatment.
There is no need for the court to deal with section 3 of the orders sought by the father as the mother is represented and before the court and will abide by its orders.
The interim orders sought by the mother are as follows:
Responsibility for decision making
(1)That each parent has the sole responsibility to make decisions about the children’s day to day care, welfare and development whilst they are in that parent’s care.
(2)That the parents retain joint parental responsibility for decisions about the long term care welfare and development of the children including but not limited to the responsibility to discuss and make joint decisions in relation to the children’s:
(a)Schooling;
(b)Medical treatment;
(c)Extra curricular activities.
Shared residence
(3)That the child [X], born in 2000 live with the mother.
(4)That the child spend time and communicate with the father at all times as agreed between the parents and failing agreement, no less than;
(a)Each alternate weekend during the school term from the conclusion of school on Friday until the commencement school on Monday; and
(b)For up to one half of the children’s school holidays (subject to the father being on leave from employment), alternating between the first and second halves, with the father to have the children for the first half in each odd numbered year and the second half in each even numbered year.
(c)Where the father’s time with the children is to include:
(i)The second half of the holidays, such time will commence at 9.00am on the middle day of the children’s school holidays and conclude at 5.00pm the day prior to the children returning to school; and
(ii)The first half, such period to start from 9.00am on the day after the children’s last day of school and concluding at 9.00am on the middle day of the children’s school holidays.
In this order:
“the children’s school holidays” means the school holidays exercised by the school attended by the children from time to time.
“the middle day” means the day which is mid way between the first day of the children’s school holidays and the last day of the children’s school holidays including weekends, public holidays and pupil free days.
Other time/communication
(5)That the children spend time and communicate with the each parent as follows:
(a)On each child’s birthday, the parent with whom the children are not residing will spend time with the children from after school until 7.30pm;
(b)By telephone at all reasonable times, and no less than each Monday and Wednesday evenings between 7.00pm and 7.30pm when in the care of the other parent;
(c)With the father spend time with the child for the entire weekend upon which Father’s Day falls and the mother spend time with the child for the entire weekend upon which Mother’s Day falls;
(d)With the mother from 11.00am Christmas Day to 5.00pm Boxing Day in even numbered years and from 9.00am Christmas Eve to 11.00am Christmas Day in odd numbered years.
(e)With the father from 9.00am Christmas Eve until 11.00am Christmas Day in even numbered years and from 11.00am Christmas Day until 5.00pm Boxing Day in odd numbered years;
(f)With the mother from 9.00am Good Friday until 5.00pm Easter Saturday in each odd number year and from 5.00pm Easter Saturday until 5.00pm Easter Monday in all even numbered years;
(g)With the father from 5.00pm Easter Saturday until 5.000pm Easter Monday in all odd numbered years and from 9.00am Good Friday until 5.00pm Easter Saturday in each even numbered year;
(h)At all schooling, sporting and extracurricular events to which parents are ordinarily invited, irrespective of whether the children are residing with that parent at the time.
Changeover
(6)That for the purpose of the parents spending time with the children not in accordance with order 4(a), collection and delivery of the children with be facilitated by, the parent commencing time with the children collecting them from the residence of the other parent.
Specific issues
(7)Each party must advise the other of:
(a)Any illness, accident or injury suffered by a child;
(b)Any medical or dental treatment provided to a child;
(c)Any medication a child is to take whilst the child is in the other’s care including the dosage;
(d)Any special dietary requirements that apply to the child.
(8)That both parents be at liberty to obtain information regarding the child’s health and medical issues and this order can be regarded as authority for the relevant doctor and hospital to provide relevant information about the children to either parent.
(9)That both parents be at liberty to obtain information regarding the child’s education and to obtain copies of all school information including newsletters, reports, photographs and details of any school activities be at liberty to attend at all school functions and events to which parents are ordinarily invited.
(10)That each party is restrained from criticising the other party and their family to or in the presence or hearing of the child and must use their best endeavours to ensure that no other person does this,
(11)That both parents be courteous and respectful in their communications with each other and respect each others right to privacy and not attend the residence of the other parent without prior arrangement and consent.
(12)That the parties notify each other within 24 hours of any change of address or telephone number (including mobile and landline phone).
(13)That neither parent shall discuss legal matters in the presence or hearing of the child nor allow any third party to do so.
(14)That neither parent shall use the child to communicate with the other parent and wherever possible, will use email or other written communication to convey information relevant to the child’s welfare to the other of them.
(15)That neither parent drink alcohol to excess whilst the child are in their care or smoke cigarettes in the presence of the child and used there best endeavours to ensure others do not smoke cigarettes in the vicinity of the child.
(16)That each parent keep the other notified of their residential address, landline telephone number, work telephone number, mobile telephone number and email address.
Both parents are mature. The father is a 37 year old self employed [omitted], and has previously worked as an [omitted] and as a [omitted]. The father lives at [A]. The father has married. His wife, Ms W, has sworn an affidavit in support of the father’s application. They have been in a relationship since 2001, and married in February this year. The father says that [X] and his wife get along well together. The father and his wife are expecting a child in 2009.
The mother is a 36 year old who runs a small business from her home at [F]. The mother married Mr C in February 2007. They have been in a relationship since 30 September 2000.
[X] has two half siblings, [Y] and [Z] who are 3 and 1 years of age respectively. They live with the mother and her husband. The mother says that [X] has a very close relationship with his sisters.
Counsel for the father observed that the absence of any evidence from Mr C was a telling omission from the mother’s case. I agree. Given the quite serious allegations made by the father concerning Mr C, I would have expected at least a short affidavit from him responding to the allegations. Nevertheless, the inference that might be drawn from the failure of the mother to adduce evidence from Mr C does not assist me to resolve what the appropriate interim parenting orders are in this case. The Jones v Dunkel inference cannot be used to make a positive finding that what the father says is correct. That is, one cannot use the absence of evidence as a substitute for probative evidence that an event occurred. So far as it is necessary, the mother has relevantly denied that the conduct complained of by the father has occurred. In so far as it was the mother who herself said things about Mr C, for example to Mr Trudinger, it is for her to respond to those matters, and she has done so.
On 17 April 2003 consent parenting orders were made by Registrar Spelleken (as her Honour then was) in the Family Court of Australia. Those orders relevantly provided that:
a)[X] live with his mother;
b)Both parents have joint responsibility for the long term care, welfare and development of the child;
c)[X] spend time with his father for one half of the gazetted Queensland school holidays, on each alternate weekend, and for one overnight in the other week;
d)The father be responsible for transport for changeover.
The mother says at paragraph 12 of her affidavit:
“Since [X] was born [the father] has played a major part in his life. [X] does have a close, loving relationship with his father and also with his wife.”
[X]’s parents never lived together, but as s.60B(2)(a) of the Act makes clear, [X] still has the right to know and be cared for by both of his parents.
The arguments in the present case focussed largely on which parent [X] should live with. Counsel for the father focussed on [X]’s emotional and intellectual wellbeing. He argued that the stability of arrangements for the care of [X] will be enhanced if [X] lives predominantly with the father.
It was accepted by both parents that, given the geographic separation of their respective homes, the types of orders contemplated by s.65DAA of the Act were not reasonably practicable.
Rather, the father sought an order that [X] return to live with him. He relied heavily on his better care of [X]’s health, and the improvement in his school results whilst in the father’s care.
Following the making of the orders in April 2003 [X] lived predominantly with the mother.
The father says that on 8 April 2008 during a session with

Mr Trudinger, the mother advised that she wanted [X] to live with his father, and provided a document entitled “List of Demands”, which the father has described as “conditions that were to attach to his change”.
The father asserts that the mother agreed to the change in living arrangements because:
a)
She said that she could not stand to see [X] “living in fear of his step-father” and seeing fear in [X]’s eyes when he looked at

Mr C;
b)She said Mr C had an anger management problem and that it was the father’s fault, in that every time Mr C sees the father or hears his name it causes a “reaction”;
c)She could no longer continue to care for [X] under the scrutiny of the father, and could no longer cope with his needs;
d)Her husband was always terse towards and very hard on [X];
e)Her husband could not deal with the anger relating to the father still being in their lives, so it would be better for [X] to live with his father;
f)She could not understand why the father continually pressured her to take [X] to the dentist and this pressure was adversely affecting her family.
The mother says that the father has put continual pressure on her, and her husband, since the orders were made in 2003. She denied that her husband commits family violence, as that term is defined, but agrees that there is a considerable degree of stress in her household, she says because of the actions of the father.
There is a dispute between the parties as to whether the change in [X]’s living arrangements were intended to be for only a trial period, or whether it was intended to be something more permanent. I cannot resolve that dispute on an interim application. In any event, the court retains the discretion to make parenting orders, or to refuse to make parenting orders irrespective of what the parents of a child may agree. My guiding consideration is what is in [X]’s best interests.

I do note that at paragraph 87 of his affidavit the father says that the parenting arrangements agreed to on 8 April 2008 were to occur “until new parenting orders about these matters could be finalised.” At paragraph 98 the father says that when the decision was made that [X] would live with him there was no discussion that the arrangements were a trial or that they were reversible. It was discussed that Mr Trudinger would maintain contact with them and the situation would be reviewed in six months. However on page 18 of the affidavit the father says “the arrangements were temporary until such time as Consent Orders could be reached to formalise the arrangements”. The father alleges that as part of the compromise of his contravention proceedings the parties agreed to review the parenting orders after the family report had been obtained from Mr Trudinger.
The mother says that since the orders were made in 2003, there was only ever one contravention that she admits, because she was pregnant and pushed to the limit by the father’s constant harassment over issues dealt with on many occasions in many ways. The mother says that the father has always been critical of her parenting and has continually doubted her judgment, doctors’ judgments and stressed her with constant allegations.
The mother says that she recalls quite clearly that the change in residence was for a trial period. The mother says that she had significant concerns about how [X] would cope being away from his siblings and home.
In the “List of Demands” the mother presented on 8 April 2008 she stated that:
a)She did not believe that [X] was better off with his father;
b)She was agreeing to [X] living with his father to stop harassment from the father that had been ongoing for seven years, and because she could not afford an ongoing legal dispute;
c)[X] is able to reverse the living arrangements if he so wishes; and
d)“New arrangements to commence once all details are agreed upon and documented”
A report has been prepared by Mr Trudinger, dated 26 August 2008. In it, Mr Trudinger:
a)Records the mother’s reluctance to participate in the report process until the father’s solicitors threatened to re-list the matter in court;
b)Records the father complaining of issues regarding the child’s name, health issues and the lack of communication between the parents;
c)Records the father expressing the view, at paragraph 13 of the report, that the mother’s inability to cope with stress and her “consistent inconsistencies and her anxious ways of dealing with stress by avoiding and simply making unilateral decisions” is one of his primary concerns as to how this impacts on [X];
d)Records the mother stating that the present conflict started because she asked her mother (who is a solicitor) to write to the father asking him to stop asking [X] to live with him;
e)Says, at paragraph 24, that the mother summarised her position with “it would be nice if [the father] could see he has a wonderful son and stop trying to prove I’m doing a bad job”;
f)
Sets out at paragraphs 34 to 40 how the mother came to her decision to [X] living with the father. It is evident from what

Mr Trudinger has set out that this decision was very difficult for the mother, was made at a time of considerable distress, and was made as a means to avoid further conflict with the father. However at paragraph 39 the mother is recorded as saying that she rationally and emotionally believed that it was best for [X] to live with his father;
g)Notes that the primary reason given by the mother for accepting that [X] should live with his father is because of the anger displayed by her husband, and the fear and anxiety experienced by [X] as a result. This is expanded upon at paragraphs 37 and 38 of the report;
h)Records the mother stating, at paragraph 43, that she had concerns about [X] attending [F] school;
i)Says that over the ten weeks following the joint session on 8 April 2008 when it was agreed that [X] would move to live with his father, he worked with the parties to review the transition. The mother said she was not going to change her mind, but did say that she saw the arrangement as a trial for at least six months;
j)Reports seeing the mother after she decided that [X] would not return to live with the father in July. The mother reported that [X] had changed, and that the father would not communicate with her. Her concerns are set out at paragraph 51 of the report;
k)Records his interaction with and observations of [X]. [X] said that he liked [C] School. When spoken to on 9 July 2008 [X] was not aware that he was remaining with his mother or returning to [F] School. On 2 August [X] said he might be living with his mother for good. He said “I don’t know why. It just happened; I don’t know why it did.” When asked if it was a good or a bad thing [X] said “I can’t decide about that”
l)Says, at paragraph 77:
“Over the course of my contact and interaction with the parents and [X] it has appeared [the mother] is often times inconsistent and scattered in her thoughts and perceptions, as well as her interactions with both [X] and [the father] and myself. She appears, in my view, easily stressed and at those times has, in my experience, engaged in a series of impulsive decision making, which appear to be based on her stress, anxious perceptions and reactions to those perceptions”
m)Says, at paragraph 81:
“It is certainly a strong impression and there is evidence of inconsistent patterns of behaviour and perceptions on the part of [the mother] over the course of my involvement with her and indeed her involvement in this process. She has evidenced in my view, reactions to the process or situations and has appeared to become stressed and anxious over prospects and attempted to avoid and withdraw firstly from aspects of assessment. Over the time line [the mother] has displayed inconsistent and at times erratic behaviour through some of her comments and messages to myself and my office staff. It could be the case that similar behaviours and inconsistent patterns are likely to have impacted on the process of the interaction with [the father] over the course of time and this recent pattern of behaviour from November 2007 through to June 2008 is perhaps an example of those patterns and how these interactions have impacted on both [the father] and [X] from time to time.”
n)Considers, at paragraph 82, that despite what has occurred, [X] is relatively well adjusted. He does display some aspects of emotional vulnerability and at times displays some immature patterns of behaviour;
o)Says, at paragraph 83:
“Throughout his appointments with me [X] has made comments which appear to reflect his confusion and at times difficulties being unsure as to how to react, behave or comment about his family situation. Certainly he appears at times as cautious and guarded at making comments about his parents or their partners and differences between his household situations. In my view he is likely well aware of his mother’s emotional variability, probably Mr C’s anger and as well difficulties that exist between his mother and his father. Again however he appears to be relatively well adjusted and perhaps this is best evidenced by the change in schools and his apparent adjustment to that situation and adjustment to residing with his father for a period of approximately ten weeks. Similarly his return to [the mother’s] home appears to be relatively readjusted and there do not appear to be significant behavioural or emotional reactions. There is however some concern that [X] has been exposed to, and in my view, likely exposed over a course of time to a range of stressors and inconsistent experiences.”
Mr Trudinger presents effectively three options at paragraph 90 of his report. The father advocates option (c).
It is evident from Mr Trudinger’s discussion, particularly relating to his speaking to [X], that although [X] appears to have adjusted well to the turmoil in his living arrangements this year, he has been and will continue to be exposed to stresses in that regard. It is, in my view, quite unsatisfactory for a young child to be moved backwards and forwards between the parent’s respective homes, seemingly with no explanation as to why that is happening. It must be confusing for him. The critical question for me to answer is whether [X] should be subjected to yet another change in the home in which he lives, on an interim application. It may well be that at a final hearing of this matter, the father persuades the court that it is in [X]’s best interests that he lives predominantly with his father. That does not necessarily mean that such a change should be implemented on an interim application. The Court must bear in mind the possibility that at the final hearing it will be determined that it is in [X]’s best interests to live predominantly with his mother. If his home has been changed on an interim basis, [X] will be subjected to yet another relocation. Neither of these options is palatable.
In accordance with the philosophy underlying s.60CC(2) I will make orders that ensure that [X] has the opportunity to continue to develop his relationship with both parents. I am satisfied that [X] has a close and loving relationship with both of his parents. He has also developed relationships with his father’s wife, his mother’s husband and his two half sisters. Those relationships need to be encouraged.
In his submissions, counsel for the father placed much emphasis on [X]’s attendance and performance at school whilst in the father’s care, compared to the mother’s care. When [X] moved to live with the father on 20 April 2008 he was enrolled at [C] School. Otherwise, [X] has attended [F] School from the beginning of the 2006 school year except for the period 20 April 2008 to 27 June 2008.
Reference to school reports from the two schools does tend to highlight the better performance of [X] whilst at [C] School. That may be attributable to a number of factors. [X] may have liked his teacher better at one school, the curriculum may have been more to his liking, he may have been encouraged by his father to try harder, he may have felt more comfortable at one of the schools. Until this issue is further explored at trial, I cannot resolve why [X] seems to have fared better at [C] School than at [F] School.
The material does demonstrate that whilst in the mother’s care, [X]’s attention to his homework and his absenteeism were concerning. That is certainly a factor that weighs in the father’s favour on the application. It is, however, only a factor and cannot be determinative of the issue. I believe that I can have some confidence, the issue now having been exposed and no doubt will be subject to further scrutiny that the mother will do her best to ensure that [X] attends school and does his homework, if [X] lives with her until the final hearing. If she does not, the father will no doubt elicit evidence of her shortcomings in that regard.
The father also relies on the mother’s husband’s alleged anger management problem. The mother denies that her husband has such a problem. Even with the absence of any evidence from Mr C, I cannot make any findings in that regard. The father does not know what occurs in the mother’s household from his own knowledge. He relies on what the mother has said to Mr Trudinger, and what [X] tells him.
[X] is still very young. He is of an age where his views ought not be accorded any significant weight. In any case, as Mr Trudinger’s report demonstrates [X] has not expressed any firm views one way or the other.
There are a number of factual matters upon which the parties are in dispute, and which cannot be resolved on the interim application. These include:
a)Whether the mother’s husband dropped [X] onto a coffee table thereby inflicting serious facial injuries;
b)Whether the mother properly manages [X]’s asthma;
c)Whether the mother provides [X] with a nutritious diet;
d)Whether [X] is reliant on the school tuckshop for his meals;
e)Whether the mother’s diagnosed conditions of post traumatic stress disorder and bipolar disorder (present at the time the earlier orders were made) adversely affect her capacity to parent [X].
There are two aspects of the mother’s behaviour that are a cause for concern. First, when the mother refused to allow [X] to return to live with his father in July this year, she re-enrolled him at [F] School. She did so without any consultation with the father. The orders of 17 April 2003 gave both parents joint parental responsibility. The mother ought not to have acted as she did. Her behaviour demonstrates a certain unwillingness to allow the father to fully participate in decision making regarding his son.
Secondly, the manner in which [X] was not returned to his father’s care is a matter of concern. On 8 July 2008 the father says that he received an email from the mother informing him that [X] would not be returning to live with him after the school holidays finished on 14 July and that she was re-enrolling him at [F] School
In her email dated 8 July 2008 the mother says:
“[X] has now spent a trial period with you and I have found this period very difficult as I have seen him torn between his love for his home, his family and his sisters and his feeling that you expect him to want to stay with you.
I have noticed that he seems afraid of some of the consequences that are involved in your discipline and he has been reluctant to return to you after being with us.
. . .
I have re-enrolled him at [F] School and he will return there next term. We will have to discuss arrangements for him to spend time with you but at this stage I feel that a return to the original orders would be the best solution for us all.
This occurred notwithstanding the fact that the parties were involved in prolonged sessions with Mr Trudinger. There was no discussion, there was no forewarning. The mother acted peremptorily. That reflects the concerns expressed by Mr Trudinger, above. The mother has not given any plausible reason as to why she did not take her concerns back to Mr Trudinger and attempt to negotiate with the father.
There is also an issue between the parties about the child’s name. In my view, an interim application is not the appropriate occasion on which to make orders in that regard. It is a matter that obviously concerns the father, and one to which the mother should have been more sensitive. The father says that [X] was enrolled at the [F] school under the surname Reeve, despite the fact that his registered birth surname is Weaver-Reeve. The mother accepts that this occurred and has taken steps to rectify her error.
I am unable to make any findings at this stage as to the willingness of either parent to facilitate and encourage a relationship between the other parent and [X]. Both profess a willingness to do so. However, if the mother’s evidence about the father’s overbearing behaviour is accepted, or the father’s evidence about the mother’s ever changing position is accepted, doubts must arise as to whether that other parent is truly making an effort to support and encourage a relationship with the other parent.
As the evidence presently stands, I am inclined to consider the father has the greater capacity to provide for [X]’s emotional and intellectual needs. The dynamics of the mother’s household needs to be further explored before any final determination can be made on this issue.
An incident of family violence, as I pointed out earlier in these reasons, has occurred in the mother’s household. It is not of such a nature to have any meaningful impact on the orders that should be made in [X]’s best interests. There are undoubtedly tensions that have arisen because of the parental conflict. The mother says that she has acted in the way that she has because she feels under constant pressure from the father to act in a certain way, and he is looking for any opportunity to discredit her parenting capacity. The mother also says that the father is emotionally abusing [X] by trying to persuade him to live with his father. If that is in fact the case, then the mother’s behaviour must be looked at against that background.
There is no practical difficulty and expense with [X] spending time with the parent with whom he is not predominantly living. Such time will necessarily be restricted to weekends and school holidays, because of the geographic distance the parties live apart, and the fact that [X] attends school from Monday to Friday each week during school term.
After considering each of the matters in s.60CC(2) and (3) of the Act two matters persuade me that [X] should remain living with his mother until the final hearing of this matter.
First, there are orders in place to that effect. Notwithstanding that I have found that this is an appropriate case for the parenting orders to be reviewed, I am not convinced on the material presently filed that those orders have to be changed. I consider that determination is better made at a final hearing, after all of the relevant evidence is in and the parties have been cross examined. [X] has suffered enough dislocation this year already. He should not be subjected to another, perhaps only temporary, move. I am not satisfied that [X]’s better performance at school whilst in the care of the father, once fully investigated, is a sufficient matter to warrant a further change in the home at which [X] lives.
Secondly, I am satisfied that [X]’s relationship with his father, and with his father’s wife, can be sustained in the period until trial by weekend and school holiday time. The relationship is already on strong foundations. On the other hand, the relationship between [X] and his siblings is still in the developmental phase, and I am concerned that a separation of [X] from his siblings is not in [X]’s best interests. [X] has only lived in his father’s care for a matter of a few months. He is likely to enjoy more familiarity in the mother’s home. Of course, that dynamic will change again in the New Year when the father and his wife have a child of their own.
The orders of 17 April 2003 provide for both parents to have joint parental responsibility. I am required to consider whether the presumption in s.61DA(1) of the Act applies. In my view, having made a finding that there are reasonable grounds to believe that the mother has engaged in family violence for the purpose of permitting the application to proceed, I must necessarily conclude that the presumption is displaced by s.61DA(2) of the Act. That having been said, on this interim application I am not persuaded that the order made on 17 April 2003 should be discharged.
As the presumption in s.61DA(1) does not apply, I am not required by s.65DAA to consider the matters therein, although as pointed out earlier in these reasons, both parties accept that it is not reasonably practicable for the parent with whom [X] is not predominantly living to spend either equal time or substantial and significant time, as that term is defined, with the other parent.
This matter will have to proceed to final hearing. I will make orders to that effect. The parties should be encouraged to continue to negotiate, either with or without the assistance of Mr Trudinger, in the intervening period.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Wilson FM

Associate: Lynnette Chin

Date: 3 September 2008