WHITTLE & ANTON

[2017] FCCA 825

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHITTLE & ANTON [2017] FCCA 825

Catchwords:
FAMILY LAW – Interim parenting orders – best interests of child.

Legislation:

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

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 348

SS & AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654

Banks & Banks [2015] FamCAFC 36

Applicant: MR WHITTLE

Respondent: MS ANTON

File Number: PAC 4224 of 2016

Judgment of: Judge Newbrun

Hearing date: 7 April 2017

Date of Last Submission: 7 April 2017

Delivered at: Parramatta

Delivered on: 1 May 2017

REPRESENTATION

Counsel for the Applicant: Mr Shroder

Solicitors for the Applicant: Rafton Family Lawyers

Counsel for the Respondent: Ms Spain

Solicitors for the Respondent: Newnhams Solicitors

ORDERS PENDING FURTHER ORDER

1. Discharge Orders 1-3 inclusive of Exhibit A of the Court’s Orders of 17 October 2016, and discharge Orders 5-7 inclusive of Exhibit A of the Court’s Orders of 16 March 2017.

2. The child shall live with the mother.

3. The father shall not physically chastise the child whilst the child is in his care, nor verbally denigrate or belittle the child during such times.

4. Commencing Tuesday 2 May 2017 for one month, the child shall spend time with the father as follows:

   (a)each Tuesday from 3 PM until 6 PM;

   (b)each Sunday from 10 AM to 3 PM.

5. Thereafter for 2 months, the child shall spend time with the father as follows:

   (a)each Tuesday from 3 PM until 6 PM;

   (b)each Sunday from 10 AM to 5 PM.

6. Thereafter for 2 months, the child shall spend time with the father as follows:

   (a)each Tuesday from 3 PM until 6 PM;

   (b)each fortnightly Saturday from 12 noon to Sunday 12 noon.

7. Thereafter, the child shall spend time with the father as follows:

   (a)each Tuesday from 3 PM until 6 PM;

   (b)each fortnightly Saturday from 9am to Sunday 5pm.

8. For the purposes of the child’s time with the father on each Tuesday, as referred to above, the father shall collect the child from day care at the commencement of his time and deliver him to McDonald’s restaurant at the corner of (omitted) and (omitted) at the conclusion of his time.

9. For the purposes of the child’s time with the father otherwise, as referred to above, changeover shall be effected at the McDonald’s restaurant, (omitted) (city bound), (omitted).

10. Each party shall ensure that the other is advised promptly of any medical emergency or significant illness suffered by or relating to the child and including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided and to visit the children if hospitalised or confined to bed.

11. That each party shall do all things and sign all documents necessary to authorise and direct any pre-school or school attended by the child to discuss with the father the child’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to parents or relating to the children specifically and both parties shall be entitled to fully participate in all and any activities at the school or connected with the school.

12. Pursuant to Section 68L of the Family Law Act 1975 the child X born (omitted) 2013 shall be independently represented and request that the Legal Aid Commission provide that representation.

13. The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed.

14. Leave to parties and the Independent Children’s Lawyer to issue more than five Subpoenas for production of documents.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4224 of 2016

MR WHITTLE

Applicant

And

MS ANTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. This was an interim hearing relating to competing interim parenting proposals of the parties for their child X born (omitted) 2013 (“the child”).

2. The child has been living primarily with the mother since the parties’ separation in about May 2014, and has spent time with the father for certain periods since separation up to about mid-March 2017.

3. The mother, inter-alia, sought that the child’s time to be spent with the father be supervised. The father’s proposed interim parenting orders sought, inter alia, unsupervised time.

4. The father’s interim parenting orders sought were initially referred to in his case outline. At the interim hearing the father, through his counsel, revised his interim “time with” proposals to be as follows:

   The father spend time with the child:

   a)one night each alternate weekend from Friday 12 noon to Saturday 12 noon;

   b)each other weekend, on Sunday from 9AM to 5PM;

   c)for two hours every Tuesday night.

5. The mother’s interim parenting proposals were as set out in her Response filed 10 October 2016. Proposed order 4 provided, “That the child spend reportable supervised time with the father as agreed, or failing agreement, every second Sunday for a period of:

   a)2 hours from 9:30AM until 11:30AM, if such time occurs a contact centre; or

   b)3 hours from 9:30AM until 12:30PM if such time is facilitated by an appropriate supervising agency.”

Material relied on by parties

1. The mother relied upon her Affidavits filed 14 October 2016, and 4 April 2017, and Response filed 10 October 2016, and case outline dated 7 April 2017.

2. The father relied upon his Affidavits filed 7 September 2016, 14 October 2016, 3 April 2017, Affidavit of Ms C filed 3 April 2017, Amended Initiating Application filed 19 September 2016, proposed interim orders 1 to 12 (subject to those variations referred to previously in these Reasons) and case outline of his counsel.

3. The parties relied upon the Child Dispute Conference Memorandum to Court dated 20 October 2016, Exhibit A.

4. The parties relied upon certain subpoenaed material; tabbed medical records from (omitted) Pty Ltd, and tabbed records from NSW Police, Exhibit C.

5. The Court has considered all this material of the parties, including the subpoenaed material, and submissions.

Evidence

1. The father is aged 41 years and the mother is aged almost 37 years.

2. The mother works as a (occupation omitted). The father works as a (occupation omitted).

3. The mother resides at (omitted). The father resides in granny flat premises at (omitted). At the interim hearing, the mother informed the Court that in the event that the Court ordered the child to spend any unsupervised time with the father, she did not have any objection to those granny flat premises of the father.

4. The parties commenced cohabitation around (omitted) 2011. They married in (omitted) 2011. A final separation occurred in May 2014. The child had been born on (omitted) 2013.

5. Between the separation and about November 2014, the father spent intermittent time with the child during the daytime.

6. In November 2014 the parties attended mediation and entered into a parenting plan. The child’s time with the father was to begin with the child spending half days on Fridays with the father. According to the mother, the father began spending time with the child for 6 hours on a Friday and 7 hours on a Sunday each week.

7. At the end of October 2015 the parties agreed that the child could spend time with the father on Thursday afternoons until Friday evening, and such overnight time commenced.

8. The mother asserts that from about January 2016 she noticed changes in the child’s behaviour. She asserted, inter alia, that when the child spilt a drink or had an accident he would burst into tears and say words to the effect: “don’t hit me. Daddy hits X.” The mother asserts in this context that the child’s day care centre director also “relayed above incidents to me as well.”

9. In April 2016 the mother informed the father that she was proposing that the parties revert to the original parenting agreement relating to the child spending daytime only with the father, as she asserted that the child was not coping with the existing arrangements.

10. On 21 April 2016, the mother sent the father a message stating, inter alia, “As X’s primary care giver and mother, I do get to dictate the terms of your time with X. Your repeated disregard for X’s routine is a huge problem.”

11. In April 2016 the mother asserts that the child informed her that the father was smacking him and calling him stupid, and on 18 May 2016, the mother told the father of these statements by the child to her. The father denied these assertions.

12. Thereafter, at the mother’s insistence, the child was to spend supervised time with the father for two hours on a Sunday from 10AM to 12PM, at a local park. There was an incident on 1 May 2016 at a park. Then the mother requested that the child’s time with the father be under the supervision of a contact centre.

13. The medical reports in evidence, Exhibit B, refer to a mental health assessment for the child by the GP containing a referral date of 24 April 2016. The presenting problems of the child are noted as “anxiety and adjustment disorder possibly due to current childcare arrangements.”

14. The medical report of the GP dated 24 April 2016 (Annexure E to the mother’s affidavit filed 10 October 2016), states, inter-alia,

    “Following review today as well as information from X’s daycare I can confirm that I am concerned for X’s well-being. He can be unsettled and aggressive in the last 3 months which is a step away from his usual behaviour. He has been very clingy at home and unable to sleep on his own when prior he was sleeping on his own. There has been a sharp decline in his behaviour over the past 3 months and the cause of this is unclear. I have asked his mother to make an appointment with a child psychologist and his paediatrician for review. From my interview with his mother there appears to be some irregularity to his childcare arrangements which can certainly be disruptive to his routine. Routine is extremely important at this age. I feel that it would be in X’s best interest to maintain sleeping in the same room seven days a week and establish a regular routine in terms of his care so that he is not exposed to constant change. I have encouraged mum to use mediation to engage with X’s father to establish this regular routine and once he is over 3 years old to try overnight stays at other accommodation but in the interim sleep overnight at his mother’s house with a regular bedtime routine.”

15. On 9 May 2016 the father attended the family GP apparently informing the GP that the child’s day care had concerns about his behaviour. The next day the GP referred the child to see a psychologist.

16. The father states that he thereafter attempted contact with the child’s psychologist, Dr M, (omitted) General Practice, and Dr G, paediatrician. The mother states that the child saw the paediatrician on 17 May 2016. She states that she received advice that the child was too young to see a psychologist, and states (see the email to the father dated 29 May 2016, Annexure G) that she was seeing a clinical psychologist who specialises in children, “and she is helping X through me and his other caregivers.”

17. The father spent some supervised time with the child at his day care centre on a few occasions; at the end of May 2016 and in early June 2016.

18. On 7 September 2016 the father commenced the within proceedings.

19. On 17 October 2016, both parties being legally represented, they agreed to interim consent parenting orders that, inter-alia, the child would live with the mother and spend time with the father each Tuesday from 3PM to 6PM, and each Sunday from 10AM to 5PM. Thereafter such time was facilitated, until an incident which occurred on 19 March 2017. The father states he has not exercised any time with the child since 21 March 2017.

20. On 16 March 2017, by consent the parties agreed to make up time between the child and the father (as the mother proposed to travel overseas) in addition to the orders of 17 October 2016 as follows:

    a)Thursday, 30 March 2017 from 3PM until 6PM;

    b)Thursday, 6 April 2017 from 3PM until 6PM;

    c)Saturday, 8 April 2017 from 10AM until 5PM;

    d)Friday, 28 April 2017 from 10AM until 5PM;

    e)Friday, 5 May 2017 from 10AM until 5PM.

21. The parties are in dispute about an incident which occurred between the child and the father on 19 March 2017, a Sunday, when the child was spending time with the father.

22. The father, in his last Affidavit, asserts that at 2:15PM he was cooking lunch for the child and himself and they were engaged in a game whereby the child, who was dressed as a pirate, threw a small plastic token at the father and the father threw tokens at him in exaggerated responses whilst shouting, falling over and rolling on the floor pretending to be stuck and needing assistance to get up in his pirate outfit. The father states that the child threw the token at him and as he performed “a rolly-polly” action near the lounge, his leg hit the child in the face. The father states that he was facing away from the child at the time of his “rolly polly” but he presumes that the child ran forward towards him after he threw a plastic token. The father states that the child began to cry and held his nose and a small amount of blood came out.

23. After a short period of time the father administered Panadol to the child. The father later noted the incident in the parties’ communication diary.  The father states further that he later spoke with the mother and told her that the child “had hit his face”, and that there was a small amount of blood on his nose, as well as the medication the father administered and the ice block that was given to the child. The father annexes a copy of the text message sent by him on the day of the incident to the mother, following the mother messaging the father stating, “X’s nose started bleeding again in the waiting room (of the GP). The doctor means you hit it hard and it’s going to need some time to heal but is not broken”, and which stated, inter-alia, “This is what he fell off/over when I went to check pasta cooking for lunch. We built a toy fort”. In this context the Court notes that the father had attached a photograph of the child sitting on a lounge surrounded by toys to his text message.

24. The Affidavit of the family friend of the father, Ms C, states that the father told her on the day of the incident that he was playing on the lounge with the child and the child rolled off the lounge and knocked his nose and it bled a little bit.

25. The mother’s last Affidavit asserted that on the day of the incident, when the child was returned to the mother by the father following the incident, the father had stated to the mother, in the presence of the child, that he had not hit the child in the face, but that the child had fallen off the lounge. The mother asserts that when the child had been placed in the car with the maternal grandparents, she had requested an explanation from the father as to what had occurred and the father again stated that the child had fallen off the lounge, that he had cried for about an hour and then he had given the child some Panadol. The mother then asserts in her last Affidavit that when driving home with the child she had asked the child what had happened, and the child told her that he didn’t fall off the lounge but that the father had hit him in the face. The mother had then asked the child, “are you sure it wasn’t an accident?” To which the mother alleges the child replied, “no, on purpose.”

26. The mother took the child to the doctor’s surgery. The medical records subpoenaed and in evidence, Exhibit B, record the attendance on 19 March 2017, with the relevant clinical note stating, “hit R side face, was with dad, parents divorced,  R nostril medial side red inflamed , sl bleeding r nose noted today, bactroban nasal cream, hold nose, young patient says was hit on face by dad before nose bled.” There is no evidence before the Court that the GP notified FACS of this injury.

27. Later that evening, the mother alleges that the child continued to complain about his nose being sore. The mother alleges that the child told her that he was going to tell the father that he was not allowed to hit him anymore. The mother alleges that she asked the child, “Are you worried about daddy hitting you again?”, to which the child replied, “Yes.” On 20 March 2017, the mother asserts that she contacted FACS about the incident. She asserts that she was advised to call the police. She called the police on the evening of 20 March 2017. The police attended her residence on the morning of Tuesday, 21 March 2017. A police officer took the child to the toy room to interview him and another police officer took the mother to the driveway to interview her.

28. The NSW police notes in evidence, in relation to this incident, Exhibit C, state, inter alia, that the police spoke with the child on 21 March 2017 and the child had stated, “Daddy hit me when he fell over. He then gave me a tissue and a ice block.” The police spoke with the father in relation to the incident who had stated that he was playing a game of Pirates at the time with the child. The father told the police the incident was accidental. The police notes state, “Some of the version match up with what the child was saying even though his communication was very limited.” The police observed that the child did not appear distressed to talk to police and police could not see any visible injury as the incident happened only two days prior. It is stated that police will be notifying FACS in relation to the incident. The Court observes that there is no material before the Court from FACS in relation to the incident.

29. The affidavit of Ms C filed 3 April 2017 states, inter alia that she is a close family friend of the father, she lives in the adjoining property to the father and has known him for over 20 years, she has a very close relationship with the child who actually refers to her as grandma, her husband is referred to by the child as Pappa, she and her husband usually see the child when the father exercises time with the child, she is a retired (occupation omitted) having worked in the (employer omitted) for a period of 40 years, she has 14 grandchildren, and nothing that she has observed has caused her any concern about the father’s care of the child, that she has observed the child be very independent and happy when spending time with the father; that the father and the child enjoy playing together, and they are regularly laughing and giggling together. She states that on some occasions she has observed the father to create a “fan cave” which is made by an open ended doona with the fan at the end blowing in. She states the father also creates a rolling game where he rolls the child up in a blanket and each time the child says “again, again.” She states that the father is very hands-on and is very inventive with the games he plays with the child. She states that the games she has observed have been appropriate to the child’s age.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the problems associated with making findings on disputed evidence as follows:

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

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

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

   [123] Later, at [100] their Honours amplified their comments and said:

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

1. Of this, the Full Court in Eaby & Speelman (2015) FLC 93-654 said at 80, 332:

   [80] As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

2. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks v Banks (2015) FamCAFC 36, especially at paragraph 46 to 52.

3. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

4. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

5. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

6. When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA (3).

7. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

8. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.

9. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration.

1. The child has meaningful relationships with each parent and would benefit from a continuance of those relationships, provided he is not exposed to physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence in their care. 

2. Following the parties’ separation, the child spent time with the father up to about 21 March 2017. The Court refers to its previous discussion of the evidence as to the child’s time spent with the father after the separation to this date. The child’s time with the father was usually during the daytime, although there was a period from about the end of October 2015 until about April 2016 when the child spent some limited overnight time with the father.

3. The Court notes the parties’ consent interim orders of 17 October 2016 and 16 March 2017 providing for the child to spend not insubstantial daytime “time” with the father, which time was facilitated up to about the time of the incident on 19 March 2017. The Court notes the report of the family GP of 24 April 2016, referred to previously in these reasons, in relation to the issue of overnight time.

4. Should the child spend time with the father supervised in accordance with the mother’s interim parenting proposals (proposed order 4, being supervised time with the father as agreed, or failing agreement, every second Sunday for a period of 2 or 3 hours, depending on whether it is a contact centre or appropriate supervising agency) there is a not insignificant risk that the child’s meaningful relationship with the father will be adversely affected.

5. Should the child begin to resume spending daytime time with the father on a graduating basis leading to fortnightly weekend time (one overnight only), with two hours on Tuesday afternoons each week, the child’s meaningful relationship with the father should be maintained and enhanced.

Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The Court has considered the mother’s allegations relating to the child being smacked and deliberately hit by the father, which allegations are denied by the father. The father also denies belittling the child by calling him stupid, which the mother alleges. The Court refers to its discussion previously in these reasons relating to the mother’s allegations of the child’s historical complaints to her of being smacked by the father and the incident of 19 March 2017. Whilst the Court is unable to make findings of fact at this interim stage, the Court does not ignore the mother’s allegations.

2. In relation to the smacking allegations, the Court notes the mother’s allegations that these complaints of the child allegedly originated from about January 2016 when she noticed changes in the child’s behaviour. In about May 2016 the mother informed the father of the smacking allegations. In this context, it is not without relevance that on 17 October 2016 and 16 March 2017 the mother agreed to consent parenting orders that the child spend weekly daytime time with the father. Whilst the mother alleges that the child exhibited some anxiety-related symptoms in relation to this smacking issue, there is no evidence before the Court that the child had experienced serious physical injury in this context, and nor is there any report from a psychologist or other mental health professional that the child has suffered significant emotional harm. 

3. At this interim stage, the Court is unable to make findings of fact in relation to the disputed incident on 19 March 2017. Whilst the Court notes some arguable inconsistencies in the father’s account of the incident (eg the father’s Affidavit does not expressly refer to the child injuring his nose having fallen off the lounge, compared to his text message communication to the mother), the Court also notes the father’s Affidavit refers to the nature of the “rolly polly” game being played with the child including “falling over and rolling on the floor pretending to be stuck and needing assistance to get up in his pirate outfit” and the fact that the father presumed that the child had run towards him after he threw a plastic token, the father’s timely reporting of the incident both in the communication diary and to the mother, the leading nature of some of the mother’s questioning of the child in this context, the medical notes in relation to the incident, and the police notes of the apparent separate interview with the child who had stated, “Daddy hit me when he fell over” (which is arguably consistent with the father’s evidence). The Court also notes the Affidavit evidence of Ms C, the family friend of the father and to whom the child refers to as grandma, in which she refers, inter alia, to the nature of the games that the father plays with the child.

4. Both in relation to the smacking allegations, the allegations of the child being belittled verbally by the father, and the incident of 19 March 2007, the Court is of the view at this interim stage, acting cautiously, that there should be no unacceptable risk of the child being exposed to abuse, neglect or family violence while spending unsupervised time with the father, provided protective orders are made that the father shall not physically chastise the child whilst the child is in his care, nor verbally denigrate or belittle the child during such times.

5. The Court notes the mother’s allegations and evidence relating to the child’s adverse behaviour and emotional disturbances following spending certain time with the father, including overnight time, and her allegations regarding improvements in the child’s behaviour following the adjustment to his time spent with the father after April 2016. The Court notes the father’s competing contentions in this context. The Court notes the parties’ respective attendances at health practitioners seeking to alleviate their concerns in this context in relation to the child. The Court notes the medical report of the GP dated 24 April 2016 stating, inter alia, that the cause in the decline of the child’s behaviour over the previous 3 months was unclear, and also notes the doctor’s comments as to the child’s regular routine and that overnight stays might be considered after the child has reached 3 years. Again, and in this context, there is no report from a psychologist or other mental health professional that the child has suffered significant emotional harm. 

6. The Court also notes the mother’s allegations that the child, following the consent interim orders of 17 October 2016, and following spending time with the father, was, inter alia, unsettled with his sleeping routine and exhibited certain behavioural issues. Again, in this context, it is not without relevance that on 16 March 2017 the mother agreed to consent parenting orders that the child spend not insignificant weekly daytime “time” with the father.

7. Whilst the Court at this interim stage is unable to make findings of fact in relation to the cause of the child’s alleged behavioural and other disturbances, the Court does not ignore the mother’s allegations in this context.

8. At this interim stage, proceeding cautiously, the Court is of the view that there will be no unacceptable risk of harm to the child in spending unsupervised time with the father provided that such time is spent on a graduating basis leading to fortnightly weekend time (one overnight only), with two hours on each Tuesday afternoon.

9. The Court notes the father’s submissions as to risk issues raised by him (see in particular his case outline) that, inter alia, the child is at risk in relation to his emotional and psychological well-being by being alienated from the father by the mother, and he submits that there are concerns the mother is subjecting the child to systems abuse (for example, unilateral consultations with health professionals), and concerns in relation to the mother’s mental health. The Court notes the father refers to, inter alia, the mother’s dictatorial stance towards the child’s time with the father (for example, Annexure A to his Affidavit filed 7 September 2016, page 12 of 39, where the mother on 21 April 2016, tells the father, “As X’s primary care giver and mother, I do get to dictate the terms of your time with X.” The Court also refers to messages from the mother to the father that she will call the police in certain circumstances. Whilst it is arguable that there is a concerning level of stridency (and perhaps, without deciding, having its source from the mother’s excessive levels of anxiety in relation to the child) in the manner in which the mother seeks to co-parent the child with the father (including in relation to the nature and extent of the child’s time with the father), at this interim stage the Court is not in a position to make findings of fact in relation to the father’s submissions in this context. 

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The child is too young to express meaningful views.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The Court refers to its meaningful relationship primary consideration discussion above. The Court notes the child’s apparent positive relationship with the maternal grandparents and Ms C, the family friend of the father.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. Both parties would appear to have taken such opportunities, whilst noting that the parties have not usually participated jointly in relation to health professional consultations touching the child’s health.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. The father asserts that he pays child support; in his first affidavit filed 7 September 2016 he stated that he was paying $1225 per month. The mother alleges that the father has not been truthful in his child-support disclosures, which is denied by the father (and he asserts that he has offered the mother more money for child-support on numerous occasions in the past but that the mother declines his assistance), and asserts in her most recent affidavit that the father is in arrears of child support of some $651.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. At this interim stage, the Court is of the view that should the child spend unsupervised time with the father on a graduating basis leading to fortnightly weekend time (one overnight only), with two hours on Tuesday afternoons each week, the child’s meaningful relationship with the mother should not be adversely affected.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. The mother lives at (omitted) and the father lives at (omitted). No party asserts that there is any relevant significant practical difficulty and expense in this context.

(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

1. Subject to the Court’s discussion above under the need to protect primary consideration, both parties would appear to have such capacities.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant

1. The child was born on (omitted) 2013.

3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

1. The father identifies himself as an Indigenous Australian and asserts that he has involved the child in Indigenous cultural activities.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. Subject to the Court’s discussion above under the need to protect primary consideration, both parties would appear to have demonstrated appropriate attitudes to the child and to their responsibilities of parenthood.

(j) Any family violence involving the child or a member of the child's family.

1. The Court refers to its discussion above under the need to protect primary consideration.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter.

1. Not applicable.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. These are interim proceedings.

m) Any other fact or circumstance that the Court thinks is relevant.

1. The Court notes that it is important for the parties to be able to each obtain information from the child’s day care and schools, and information relating to medical treatment of the child, and in this context the Court would regard the father’s proposed interim orders 8 and 9 to be in the best interests of the child.

2. The Court notes the makeup time orders of 16 March 2017 in Exhibit A of those orders in relation to the mother’s proposed overseas travel with the child. In view of events which have transpired since the incident of 19 March 2017, and noting the Court’s proposed graduated “time with” orders below between the child and the father, it is probably not in the best interests of the child for the makeup time to occur.

3. The mother submitted that because she works full time as a (occupation omitted) during the week, if the court (contrary to the mother’s proposed orders for supervised time) was minded to order the child to spend unsupervised weekend time with the child, then she would want a clear weekend with the child. The court’s proposed graduating “time with” orders, referred to below, seek to gradually build up the child’s time with the father through initially some daytime time, reflecting past consent interim parenting orders, seeking to avoid any possible emotional disturbance in the child, leading to some modest overnight fortnightly time (thus enabling the mother to have a clear weekend with the child), together with the regular weekly Tuesday afternoon time.

Parental responsibility

1. The father seeks an interim order for equal shared parental responsibility. The mother seeks no order in this context. The child is aged about 3 ½ years. The father told the Family Consultant at the Child Dispute Conference in October 2016 that there was very poor and minimal communication between the parties. The father said communication often results in conflict. The mother told the Family Consultant that communication from the father was often abusive and threatening in nature. The parties told the Family Consultant that they are not able to effectively communicate with each other. Accordingly, at this interim stage, the Court does not propose to make an express order for parental responsibility. 

Summary

1. Evaluating the above discussed considerations under s60CC of the Act, it will be in the best interests of the child to make interim orders as follows:

   (1)Discharge Orders 1-3 inclusive of Exhibit A of the Court’s Orders of 17 October 2016, and discharge Orders 5-7 inclusive of Exhibit A of the Court’s Orders of 16 March 2017.

   (2)The child shall live with the mother.

   (3)The father shall not physically chastise the child whilst the child is in his care, nor verbally denigrate or belittle the child during such times.

   (4)Commencing Tuesday 2 May 2017 for one month, the child shall spend time with the father as follows:

   a.each Tuesday from 3 PM until 6 PM;

   b.each Sunday from 10 AM to 3 PM.

   (5)Thereafter for 2 months, the child shall spend time with the father as follows:

   a.each Tuesday from 3 PM until 6 PM;

   b.each Sunday from 10 AM to 5 PM.

   (6)Thereafter for 2 months, the child shall spend time with the father as follows:

   a.each Tuesday from 3 PM until 6 PM;

   b.each fortnightly Saturday from 12 noon to Sunday 12 noon.

   (7)Thereafter, the child shall spend time with the father as follows:

   a.each Tuesday from 3 PM until 6 PM;

   b.each fortnightly Saturday from 9am to Sunday 5pm.

   (8)For the purposes of the child’s time with the father on each Tuesday, as referred to above, the father shall collect the child from daycare at the commencement of his time and deliver him to McDonald’s restaurant at the corner of (omitted) and (omitted), at the conclusion of his time.

   (9)For the purposes of the child’s time with the father otherwise, as referred to above, changeover shall be effected at the McDonald’s restaurant, (omitted) (city bound), (omitted).

   (10)Each party shall ensure that the other is advised promptly of any medical emergency or significant illness suffered by or relating to the child and including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided and to visit the children if hospitalised or confined to bed.

   (11)That each party shall do all things and sign all documents necessary to authorise and direct any pre-school or school attended by the child to discuss with the father the child’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to parents or relating to the children specifically and both parties shall be entitled to fully participate in all and any activities at the school or connected with the school.

   (12)Pursuant to Section 68L of the Family Law Act 1975 the child X born (omitted) 2013 shall be independently represented and request that the Legal Aid Commission provide that representation.

   (13)The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed.

   (14)Leave to parties and the Independent Children’s Lawyer to issue more than five Subpoenas for production of documents.

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

Date:  1 May 2017