WEMPEL & NISBETT
[2012] FMCAfam 1406
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WEMPEL & NISBETT | [2012] FMCAfam 1406 |
| FAMILY LAW – Children – parenting – orders – interim orders – best interests of the child – parental responsibility – equal shared parental responsibility. PRACTICE AND PROCEDURE – Descriptions of parties – Applicant to be referred as “Applicant” – Respondent to be referred to as “Respondent” – use of informal descriptions of parties not be followed. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 60H, 61DA, 61DB, 64B, 64C, 65DAA Federal Magistrates Act 1999 (Cth), s.3 Federal Magistrates Court Rules 2001, r. 15.09 |
| H v Minister for Immigration and Citizenship [2010] FCAFC 119 Lusito & Lusito [2011] FMCAfam 55 Maurice & Barry [2010] FamCA 687 |
| Applicant: | MS WEMPEL |
| Respondent: | MS NISBETT |
| File Number: | SYC 1391 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 16 August 2012 |
| Date of Last Submission: | 16 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Fielden and Associates |
| Counsel for the Respondent: | Ms Hausmann |
| Solicitors for the Respondent: | Kyle Family Lawyers |
ORDERS
UNTIL FURTHER ORDER
The Applicant and the Respondent are to have equal shared parental responsibility for the child [X] born [in] 2009.
The child [X] is to live with each of the parties as follows:
(a)With the Applicant from 1:00 pm each Thursday until 10:00 am each Sunday; and
(b)With the Respondent from 10:00 am each Sunday until 1:00 pm each Thursday;
(c)EXCEPT THAT on any weekend that the Respondent is required to be away for work, changeover on the Sunday will be at a time to be notified by the Respondent not less than two (2) weeks prior to that weekend.
The child [X] will continue to attend the [K] Pre-School on Tuesday, Wednesday and Thursday in each week.
For the purpose of changeover between the parties, unless otherwise agreed:
(a)On Sunday mornings, the Respondent will collect [X] from the Applicant at [E] or, if it is raining, the [omitted] Café, [E]; and
(b)On Thursdays, the Applicant will collect [X] from pre-school between 1:00 pm and 3:30 pm, or at another place and time as agreed between the parties on non pre-school days.
The child [X] will spend time with each of the Applicant and the Respondent for special occasions as agreed, such time to include the following:
(a)Mother’s Day when the usual changeover time of 10:00 am is to extend to 12:00 noon; and
(b)Christmas 2012, when [X]’s time with the Applicant is to extend to include the period from 10:00 am on the Sunday before Christmas being 23 December 2012 until 11:00 am on Christmas Day 25 December and [X]’s usual time with the Respondent is to extend to include the period between 1:00 pm on the Thursday after Christmas being 27 December 2012 and 10:00 am on the Sunday after Christmas being 30 December 2012.
All other Applications for Interim Orders are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Wempel & Nisbett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1391 of 2012
| MS WEMPEL |
Applicant
And
| MS NISBETT |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for interim parenting orders relating to the parties’ child, [X], who is nearly four years old. [X] was born to the Respondent [in] 2009 after IVF treatment. The parties separated on 24 November 2010.
Essentially, the parties disagree on the amount of time [X] should spend with each of them and about the pre-school and then school which the child should attend.
Background
The parties were both born [in] 1968 and so are 44 years of age. They met in February 2004 and commenced living together in June or July 2005.
The parties commenced IVF treatment in 2008. This was successful and the Respondent became pregnant. The child [X] was born [in] 2009.
The Respondent took twelve months maternity leave from her employment to care for the child. The Applicant also took leave from her work, for a period of two months. The parties shared the care of the child on weekends.
The parties separated on 24 November 2010.
The Applicant has since had a child following IVF treatment. [Y] was born on [in] 2012. [Y] is not the subject of litigation between the parties, except that there is some agreement that [X] should spend time with the Applicant on [Y]’s birthday.
Proceedings commenced between the parties when the Applicant filed an Application for property and parenting orders on 12 March 2012. The Application was returnable on 23 April 2012.
The Respondent filed her Response, affidavit in support and financial statement on 20 April 2012.
On 23 April the parties entered into interim Consent Orders relating to property matters. The Court directed the parties to attend a Conciliation Conference before a Registrar of the Court to deal with the property issues between them and directed them to attend a Child Dispute Conference with a Family Consultant under s.11F of the Family Law Act 1975.
The Conciliation Conference took place on 18 June 2012. The parties were successful in negotiating a settlement of their property issues and final property Orders were made by consent that same day.
The Applicant filed an Amended Initiating Application seeking further parenting Orders.
The parties attended the Child Dispute Conference with a Family Consultant on 2 July 2012. The parties did not agree on parenting orders for [X]. The Family Consultant noted that there were several issues remaining in dispute, comprising:
·Thursday changeover;
·The Respondent’s view that it was in the child’s interests to minimize the number of changeovers between the parties because of tension between them
·The Applicant’s proposal to change the existing arrangement so that the child would spend four nights a week with her and three with the Respondent, which the Respondent opposed
·Which school the child should attend
There were, however, areas where the parties did not disagree. The Family Consultant reported that there were no family safety factors identified by either party.
Again:
Neither parent raised any parenting issues – both view [X] as being parented well in both of their households and as being loved by both parents.[1]
[1] Family Consultant Memorandum to Court 2 July 2012
The Family Consultant recommended that a Family Report should be ordered.
On 2 July 2012 the Court listed the proceedings for an Interim hearing on parenting matters, to take place on 16 August 2012. The parties were directed to file and serve their affidavits by 10 August 2012.
On 10 August, the Applicant filed a document with the rather curious title “Amended Amended Initiating Application”[2] and a supporting affidavit. In this Amended Application, the Applicant sought orders:
a)changing the arrangements to provide for [X] to live with the Applicant from 10:00 am on Wednesdays until 10:00 am on Sundays in each week;
b)An order for [X] to remain enrolled at [K], his current pre-school, until July 2013, after which time he would commence at [C] Primary School Pre-school; and
c)An order for [X] to be enrolled at [C] Primary School from the commencement of Term 1 in 2014.
[2] The term “Further Amended Application” is more common
The Applicant also filed an affidavit of the Applicant affirmed on 10 August 2012 annexing, inter alia, a Report from Ms B, Clinical Psychologist, dated 8 August 2011.
On 16 August 2012 the Court listed the Application for final hearing for three days, to commence on 30 April 2013. A Family Report under the provisions of s.62G of the Family Law Act was ordered.
Regrettably, the Court will no longer be able to hear the Application at that time, as the Court will not now be sitting on either 30 April or 1 May 2013.
Orders Sought
The Applicant seeks in her Amended (etc) Application an order that:
The Single Expert Report of Ms B, Psychologist dated 8/8/2011 is released into evidence.
The applicant also seeks interim orders that:
a)the parties should have equal shared parental responsibility for the child [X];
b)the child should live with the Applicant:
i)until the commencement of school from 10:00 am each Wednesday until 10:00 am each Sunday;
ii)once the child starts school he should live with the Applicant on a week about basis with changeovers after school on Fridays.
c)[X] would remain enrolled at [K] until July 2013 at which time he would commence pre-school at [C] Primary School Pre-school;
d)[X] would attend [C] Primary School from kindergarten in 2014;
e)[X] would spend half the school holidays and special occasions with the Applicant and the Respondent , including time with the Applicant on the birthday of [X]’s brother [Y] each year; and
f)The Applicant would be able to take [X] on an overseas holiday each odd-numbered year and the Respondent to be able to take [X] on a two week overseas holiday each even-numbered year.
The Respondent’s counsel, Ms Hausman, handed up in court on the day of the hearing a Minute of Orders Sought by the Respondent.
In the Minute of Order, the Respondent seeks orders until further that:
a)[X] would live with each parent as follows:
i)with the Applicant from 1:00 pm each Thursday until 10:00 am each Sunday;
ii)with the Respondent from 10:00 am each Sunday until 1:00 pm each Thursday; and
iii)except that, on any weekend the Respondent is required to be away for work, changeover on the Sunday will be at a time to be notified by the Respondent not less than 2 weeks prior to that weekend.
b)[X] will continue to attend [K] Pre-school on Tuesday, Wednesday and Thursday each week;
c)For the purposes of changeover between the parents, unless otherwise agreed:
i)On Sunday mornings, the Respondent shall collect [X] from the Applicant at [E] or, if it is raining, [omitted]Café, [E]; and
ii)On Thursdays, the Applicant will collect [X] from pre-school between 1:00 pm and 3:30 pm, or at another place and time as agreed between the parties on non pre-school days.
d)[X] will spend time with each parent for special occasions as agreed, such time to include the following:
i)Mother’s Day when the usual changeover time of 10:00 am shall extend to 12:00 noon;
ii)Christmas Day, when [X]’s usual time with the Applicant will extend to include the period from 10:00 am on the Sunday before Christmas until 11:00 am on Christmas Day and [X]’s usual time with the Respondent will extend to include the period between 1:00 pm on the Thursday after Christmas and 10:00 am on the Sunday after Christmas.
The Respondent seeks orders that the parties’ applications about which primary school the child will attend should be adjourned to the final hearing. In the alternative she seeks an order that the child should attend [W] School from kindergarten to Year 6.
Evidence and Submissions
The Applicant relies on her affidavit of 10 August 2012.
The Respondent relies on two affidavits, both filed on 13 August 2012:
a)The affidavit of the Respondent affirmed on 12 August 2012; and
b)The affidavit of the Respondent’s mother, Ms N, affirmed on 11 August 2012.
The Court directed that the parties should file their affidavits no later than 10 August 2012. Regrettably, the Respondent’s affidavits were late, but, as no objection was raised by Ms Fielden for the Applicant and the documents were filed on the next working day, nothing turns on the lateness.
However, it is the practice in this Registry that an affidavit by a witness to be used at an interim should not exceed ten pages of text. The Respondent’s affidavit, ignoring the formal parts and the annexures, runs to twelve pages. If practitioners persist in “sailing close to the wind” in respect of the Court’s directions, they may well find a less accommodating opponent than the solicitor for the Applicant who will ask the Court not to admit the documents that do not comply.
In her affidavit, the Applicant deposes that both she and the Respondent are recorded on [X]’s birth certificate as “Mother” but there is also a notation that records the Respondent as “Birth Mother”. A copy of the child’s birth certificate is annexed to the Applicant’s affidavit and it can be seen that there is a notation by the Registrar dated [omitted] 2009 stating:
Birth mother is Ms Nisbett.
The Applicant goes on to make this request in her affidavit, under the heading NOMENCLATURE FOR COURT PROCEEDINGS:
7. I would like to make a request of the Court in relation to the nomenclature that is used to describe myself and [Ms Nisbett][3] in these proceedings. I would like to be called “Ms Wempel” or “the Applicant and for [Ms Nisbett] to be called “Ms Nisbett” or “the Respondent”.
8. During our relationship we never ever used the term “co-mother”. I was shocked to see that [Ms Nisbett] used this terminology in her Response.
9. I find being called “the co-mother” quite hurtful as it appears aimed to erase my equal status as [X]’s mother. I could never imagine [X] calling me his “co-mother”.[4]
[3] The name by which the Applicant refers to the Respondent
[4] Affidavit of Ms Wempel 10.8.2012 at paragraphs [7]-[9]
The point made by the Applicant is a valid one. All too often, practitioners in this jurisdiction use informal descriptions to describe parties in parenting proceedings as “Mum” or “Dad”. In a recent decision from a State Court I noted that the plaintiff and the Respondent were referred to as “[first names omitted]”. It is a practice that will not be followed in this Court.
Whilst one the Objects of the Federal Magistrates Act 1999 is “to enable the Federal Magistrates Court to operate as informally as possible as possible in the exercise of judicial power” (s.3(2)(b)), this should not extend to describing parties to proceedings in informal terms.
Parties to parenting proceedings in the vast majority of cases have come to the Court to have issues about the care, welfare and development of their children decided by a Court exercising the judicial power of the Commonwealth of Australia. To describe them, or address them, in informal terms is, in my view, patronising and it is a practice that should not be followed.
Parties to proceedings before the Court are entitled to be treated with respect by the Court and by practitioners.
It will be noted that the parties are referred to in these Reasons for Decision as “The Applicant” or “The Respondent”, as the case may be. When referred to collectively they will be described as “the parties”.
The Applicant describes in detail in her affidavit how she took leave from her work to play a significant part in the primary care of the child, returning to work when the child was two and half months old, but still continuing to look after his care.
After they separated, the Applicant and the Respondent attended mediation with Jewishcare “and negotiated a shared care arrangement for [X] where he would live at [E] three (3) nights a week with me and four (4) nights a week with [Ms Nisbett] at [M].”[5]
[5] Affidavit of Ms Wempel 10.8.2012 at [38]
The Applicant deposed that the child adjusted to this arrangement very well. She went on to depose that she agreed to this plan as a temporary arrangement for [X]’s sake in the hope that it would reduce the conflict between the Respondent and herself. Apart from a few occasions where the Applicant states that the Respondent unilaterally retained the child, the parties have largely followed that arrangement.
The Applicant deposed that after the Respondent moved out of the home at [M] to care for her aged mother at her home in [B], the Respondent unilaterally enrolled the child at the [K] childcare centre at [B]. [B] is on the other side of Sydney from where the Applicant lives.
The Applicant deposed that in October 2010 she started IVF treatment using sperm from the same donor who had fathered [X]. She gave birth to her son [Y] [in] 2012. She states that [X] has become very attached to [Y].
The Applicant states in her affidavit that she has put arrangements in place to allow her to be a “stay-at-home mum” for the next two years.
The Applicant also describes in her affidavit how it was that a report was prepared by Ms B, a Clinical Psychologist:
In March 2011, [Ms Nisbett] and I agreed that we would request Ms B, Psychologist to prepare an Expert Report to provide some expert advice about the best parenting arrangements for [X] and his attachment. We agreed that this report would have the status of a Single Expert Report if Court proceedings were later commenced by either party.[6]
[6] Affidavit of Ms Wempel 10.8.2012 at [69]
The Applicant deposed that the Respondent changed to “her fourth lawyer” and attempted to alter the parenting arrangement.
The Applicant states in her affidavit that whilst she agrees that it is good for [X] to have a few days in pre-school to help with socialisation and prepare him for school, she does not agree that he should be in child care three days a week when he could be at home with her and [Y].
Once [X] commences school the Applicant proposes that [X] will live with herself and the Respondent in a shared care arrangement.
The Applicant sets out her reasons why she wishes [X] to attend a school in the inner West of Sydney:
84. When [Ms Nisbett] and I were deciding to have a child together we discussed a lot of plans for our child’s future. In particular we were concerned about protecting our child from discrimination arising from the fact that he or she came from a lesbian family.
85. From the time that [X] was born, [Ms Nisbett] and I always agreed that [X] would attend school in Sydney’s Inner West where lesbian families are more common and where he was less likely to suffer discrimination from his peers or teachers.[7]
[7] Ibid at [84]-[85]
The Applicant opposes [X] attending [W] Primary School, which she states is 45-60 minutes away from her home. She wants [X] and [Y] to go to the same school as brothers. She would like [X] to be in her care from Wednesday morning to Sunday morning whilst she is a “stay-at-home mother”.
The Applicant’s solicitor, Ms Fielden, referred the Court to the decisions of Purdon-Sully FM in Lusito & Lusito[8], the Full Court of the Federal Court (Moore, Kenny and Tracey JJ) in H v Minister for Immigration and Citizenship[9], and Faulks DCJ in Maurice & Barry[10].
[8] [2011] FMCAfam 55
[9] [2010] FCAFC 119
[10] [2010] FamCA 687
In Lusito & Lusito, Purdon-Sully FM considered circumstances similar to those in the present case, where a child was born to one party in a same-sex relationship as a result of an artificial conception procedure involving one of the parties had been the subject of IVF treatment using donor sperm from an unknown biological father. Her Honour held that the party to the relationship who was the non-biological party was a “parent” under s.60H of the Family Law Act.
The Respondent conceded that the child has “a very close and loving relationship” with both herself and the Applicant.[11] She remained living in the parties’ former family home after the Applicant moved out on 23 February 2011. She continued to live there until February 2012, when she moved to her mother’s home in [omitted].
[11] Affidavit of Ms Nisbett 12.8.2012 at paragraph [7]
It is the Respondent’s evidence that the shared overnight care for [X] was “traumatic and damaging” for him, especially when the parties were doing seven changeovers each fortnight. Now that the child spends four nights with her and three nights with the Applicant he is much more settled, as there are only four changeovers.
The Respondent deposes that the child is happy and doing well at [K] Pre-school, where he has been for three terms. She believes that it is important for [X] to continue spending two and a half days at pre-school in the lead up to starting primary school. She does not want to give up the place the child has on Thursdays as she fears that there may not be a place available for him on Thursdays in 2013 if it is given up at this stage. She takes leave from her work during school holidays.
The Respondent states that the Applicant’s proposal reverses the number of nights that [X] has been cared for by each party for the past 18 months and completely changes the pre-school routine into which he has settled over the past six months. She considers the Applicant’s plan to be unworkable and requires her to do all the driving, instead of sharing the travel as has been the case up until the present time.
The Respondent opposes the Applicant’s proposal to change [X]’s pre-school, claiming that it would be “unnecessarily disruptive” for him.
The Respondent proposes that [X] should attend [W] Primary School in 2014. She states that she asked the Principal and the Assistant Principal whether they thought [X] would have problems because he has same-sex parents. They assured her that it would not cause a problem and told her about the school’s policies.
The Respondent does not wish [X] to attend [C] Primary School in [omitted] because the child would be travelling to school during the morning peak hour. She believes that if [X] were to attend [W] Primary School he would spend much less time travelling.
The Respondent deposes that [X] speaks fondly of the child [Y], or [nickname omitted], although she herself has some “conflicted” feelings about the child [Y], arising out of circumstances to do with the breakdown of her relationship with the Applicant. However, she states:
I am and will continue to support [X] having a positive relationship with [Y].[12]
[12] Affidavit of Ms Nisbett 12.8.2012 at [100]
The Respondent also relies on an affidavit by her mother, the thrust of which is that she, too, has a close and loving relationship with [X] and is available to assist her daughter with his care. Whilst she has been diagnosed with breast cancer, she states that her treatment seems to have been successful and she is not in danger of imminent demise. Even if she were to die or move to aged care:
[X] and [Ms Nisbett] could stay living in the house at least until [X] finishes primary school.[13]
[13] Affidavit of Ms N 11.8.2012 at paragraph [5]
Ms Hausman of counsel, who appeared for the Respondent, submitted that the Applicant’s proposal would turn the current arrangement “on its head” and would reduce her client’s time with [X]. The child is in a settled routine and it would not be in his best interests to change it at an interim hearing. The Applicant’s wish that [X] and [Y], his biological half-brother, should attend school together as brothers is a long way away because [Y] is not due to commence primary school until 2017.
In short, it was submitted that it was not in the child’s best interests to change the parenting arrangements at an interim hearing.
The Relevant Law
Section 60CA of the Family Law Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections 60CC(2) and (3) of the Act.
The matters in subsections 60CC(2) are the primary considerations and concern:
a)the benefit to the child of having a meaningful relationship with both parents; and
b)the need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence.
The matters in subsection 60CC(3) are additional considerations. They include such things as any views expressed by the child and any factors that the Court thinks are relevant to the weight that should be given to those views (paragraph (a)), and the nature of the relationship of the child with each of the child’s parents and with other persons, including grandparents (paragraph (b)).
Subsection 61DA(1) of the Act requires the Court, when making a parenting order in relation to a child, to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, this presumption does not apply in cases of abuse or family violence (s.61DA(2)), and it may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s.61DA(4)).
The presumption of equal shared parental responsibility applies when the Court is making an interim order, unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied (s.61DA(3)).
If the Court does make an order for equal shared parental responsibility, the Court is then required by s.65DAA to consider whether equal time with each parent or, failing that, substantial and significant time with each parent would be:
a)in the child’s best interests; and
b)reasonably practicable.
All of those matters have been considered.
Parenting orders may be made in favour of a parent of the child or some other person (see s.64C). Parenting orders may deal with a variety of matters, including the person or persons with whom a child may live, the time a child is to spend with another person, and the allocation of parental responsibility for the child (see s.64B(2)). The subsection expressly provides that:
The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
Subsection 60H(1) of the Act provides for cases where a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent). Provided that either of the conditions in subparagraphs (b)(i) or (b)(ii) is met, then, “whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:
(c) the child is the child of the woman and of the other intended parent.
Conclusions
The Applicant seeks an order for equal shared parental responsibility. There is no mention of whether or not equal shared parental responsibility is appropriate in the Respondent’s Minute of Orders Sought.
However, the presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility must apply unless there is a reason why it should not, or is inappropriate, or is rebutted. The Applicant and the Respondent are the child’s parents (subsection 60H(1)). There are no issues of violence or abuse. The parties agree that each of them has a close and loving relationship with [X]. There is nothing to show that it would not be appropriate in the circumstances for the presumption to be applied when making the orders.
In any event, s.61DB provides that when the Court is making final orders, it should disregard the allocation of parental responsibility made in the interim order.
I intend to make an order that the parties are to have equal shared parental responsibility for [X].
Neither party specifically seeks an order for [X] to spend equal time with his parents, but each party seeks an order for substantial and significant time. The current arrangement provides for substantial and significant time with each of the parties.
Turning to the primary considerations in s.60CC(2), there is no issue that both the Applicant and the Respondent have a close and loving relationship with the child. Thus, there is a benefit to him in having a meaningful relationship with both of them.
Similarly, there is no issue about any need to protect [X] from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Regarding the additional considerations in s.60CC(3), there is no evidence about [X]’s views and, in any event, at the age of 3 years and 11 months, he is not of sufficient maturity for his vies to be given any weight.
The child has a close and loving relationship with both the Applicant and the Respondent. There is also evidence that he has a close relationship with his grandmother, Ms N, and with his half-brother [Y].
The application before the Court concerns the parties’ proposals for making decisions about major long-term issues in relation to the child and in spending time with him.
The Court is required to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child. The Applicant deposes at paragraph [68] of her affidavit:
Although [Ms Nisbett] has been liable to pay me approximately $44 per week in child support since separation, she has never paid ma any child support. I have not pursued child support through the Child Support Agency as I was afraid that it would anger [Ms Nisbett].
The Respondent submits that a change in [X]’s circumstances, including living arrangements and the pre-school he is to attend, would be disruptive to him and not in his best interests.
The parties both live in suburbs of Sydney, but on opposite sides of the harbour, which means that they live about three quarters of an hour to an hour’s drive away from each other’s residence.
Neither party claims that the other lacks the capacity to provide for [X]’s needs.
The child concerned is a little boy who was born [in] 2009. He will attain the age of four years in about six weeks’ time. He is the child of a same-sex couple who have now separated. His biological father is anonymous and plays no role in his life. The Applicant wishes to enrol him at a school in the inner west of Sydney, where she believes that he is less likely to be subject to discrimination from his teachers or peers. The Respondent believes that the school that she has chosen for him will adequately cater for that situation.
There are no allegations of family violence, nor are there any family violence orders in operation.
This is an interim application, and a final hearing will take place in 2013. Thus, there will be further proceedings in respect of the child.
The Applicant seeks an order that:
The Single Expert Report of Ms B, Psychologist dated 8/8/2011 is released into evidence.
This Application is misconceived. The parties took the unusual step of obtaining a report, referring the psychologist concerned to the Family Law Rules, to obtain a “Single Expert Report” before any litigation, presumably in the Family Court, had even commenced.
In this Court, the appointment of a Court Expert is governed by Rule 15.09 of the Federal Magistrates Court Rules 2001. No order has been made by the Court under this Rule. It is not appropriate for one party to impose on the other an expert report as if it were the report of a court-ordered expert. If the Applicant wishes to rely on such a report, then it should be tendered in the proper way at a final hearing and, if admitted, will be regarded as a partisan report by the party seeking to rely upon it.
This is an Application for interim orders with a final hearing to take place in the new year. It is inappropriate to seek orders about the school the child is to attend at the beginning of 2014, or what is to happen in the school holidays from 2014 onwards.
Similarly, an order about taking the child overseas for a holiday in alternating years is premature. No evidence has been led about any proposed overseas holiday in 2013 or subsequently.
I am not persuaded that it has been shown to be in the child’s best interests to change the current parenting arrangements, which would go from three days with the Applicant and four days with the Respondent to the other way round. The Applicant wishes to spend more time with him and allow him to spend more time with [Y]. However, [X] already spends time with [Y], who is still only a baby in any event. He was born on [date omitted] this year, so he is still only a baby, aged seven months.
Why, too, is it in [X]’s best interests to change pre-schools in July 2013? It is anticipated that the final hearing will have taken place before then. I am not satisfied that it is in the child’s best interests to change when there is evidence that he has settled well into his current pre-school.
This is another example of something that the Court sees all too frequently, an application for what should really be final orders at an interim hearing. There is an expectation amongst some practitioners at the Sydney Registry that an interim hearing is a matter of course, and all too often the Court sees applications for interim orders in the same terms as the final orders sought. The plethora of interim applications, which are often thinly-disguised applications for an expedited hearing, leads to delays in reaching final hearings.
Interim hearings are for interim issues. The Orders sought by the Respondent in her counsel’s Minute of Orders Sought of 16 August 2012 represent a suitable arrangement for [X] for the immediate future.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 19 December 2012
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