WIGGIN & BANNON
[2011] FMCAfam 1491
•22 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WIGGIN & BANNON | [2011] FMCAfam 1491 |
| FAMILY LAW – Children – parenting orders – Interim Orders – best interests of the child – parental responsibility – whether Court should order equal shared parental responsibility – whether Mother should have sole parental responsibility for the child – Father to spend time with the child – supervision – whether Father’s time with the child should be supervised – whether appropriate to make an order about parental responsibility at an interim hearing – third party – whether Court should make orders restraining male friend of Mother – Objects and Principles of Family Law Act 1975 (Cth) Part VII – meaningful involvement of both parents in the life of the child. PRACTICE & PROCEDURE – Further order sought by Father about Mother’s male friend – procedural fairness – insufficient notice – where Court declined to entertain application for further order because of insufficient notice to the Respondent Mother. PRACTICE & PROCEDURE – Affidavits – directions for filing affidavits – where Court directed that affidavits be filed and served no later than 15 December 2011 – where parties filed affidavits after the date set by the Court – observations on the undesirability of late filing of material. PRACTICE & PROCEDURE – Venue – change of venue – application should be heard in Wollongong. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61C, 61DA, 65AA, 65D, 65DAA Federal Magistrates Court Rules 2001, r.8.01 |
| In the Marriage of Bieganski (1993) 16 Fam LR 353 Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 In the Marriage of Jaeger (1994) 18 Fam LR 126; FLC 92-492 M v M (1988) 12 Fam LR 606; FLC 91-979 Mallahan & Mallahan [2010] FamCA 631 |
| Applicant: | MR WIGGIN |
| Respondent: | MS BANNON |
| File Number: | BRC 9256 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 December 2011 |
| Date of Last Submission: | 22 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2011 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Simpson |
| Solicitors for the Applicant: | Springwood Lawyers |
| Solicitor for the Respondent: | Mr Fernie as agent for Rebecca Bailey |
| Solicitors for the Respondent: | Rebecca Bailey & Associates |
ORDERS
UNTIL FURTHER ORDER
All earlier parenting Orders are vacated.
The child [X] born [in] 2001 is to live with the Respondent Mother.
The Applicant Father is to spend time and communicate with the child [X] as follows:
(a)from 9:00am to 5:00pm on Tuesday 27 December and Wednesday 28 December 2011;
(b)from 9:00am to 5:00pm on Saturday 7 January 2012 and on the first Saturday of each month thereafter; and
(c)from 9:00am to 5:00 pm on Sunday 8 January 2012 and on each Sunday following the first Saturday of each month thereafter; and
(d)by telephone between 6:00pm and 6:30pm (NSW time) on the following days:
(i)each Tuesday;
(ii)the child’s birthday;
(iii)the father’s birthday;
(iv)Father’s Day; and
(v)Christmas Day commencing on Christmas Day 25 December 2011.
The Father is restrained from:
(a)discussing these proceedings or any issue relating to these proceedings with the child or in the presence of the child;
(b)interrogating the child about matters concerning the Mother including her relationship with third parties;
(c)asking the child to pass messages to the Mother; or
(d)using offensive language to him or in his presence.
The Father is restrained from consuming alcohol or any illicit drug at any time when the child is in his care or for twelve (12) hours beforehand.
The parties are restrained from using any physical force to chastise the child.
The Application is transferred to the Wollongong Registry of the Court to be listed for further mention before Federal Magistrate Foster on a date to be fixed by his Honour.
IT IS NOTED that publication of this judgment under the pseudonym Wiggin & Bannon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
BRC 9256 of 2010
| MR WIGGIN |
Applicant
And
| MS BANNON |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Father of a boy called [X], who is ten years old, for interim parenting orders. [X] lives with his mother. The Mother does not agree with many of the orders that the Father seeks.
Areas of Agreement
The parties agree that [X] is to continue living with his mother and that he will spend some time with his father. They do not agree about the details of when and how [X] will spend time with his father.
Issues
The issues between the parties are:
a)Parental responsibility – the Father wants equal shared parental responsibility but the Mother wants an order that she should have sole parental responsibility for the child; and
b)Whether the Father’s time with [X] should be supervised.
Orders Sought
The Father seeks orders that:
a)[X] should continue to live with the Mother;
b)the parties should have equal shared parental responsibility for [X];
c)that he should spend time with the child, to include overnight time:
i)from Christmas Eve to Christmas Day at 12 noon;
ii)one weekend in February 2012;
iii)for the first week of the child’s Easter school holidays in 2012;
iv)for half of all subsequent school holidays; and
v)by telephone on Wednesday evenings and Saturday mornings and on special days such as Christmas Day and Father’s Day.
d)Initially, the Father’s time with the child would be spent at a place within two hours driving distance of the Mother’s residence; and
e)usual and uncontroversial orders relating to:
i)the Father being able to contact the child’s treating doctors and schools when necessary;
ii)the parties advising each other of any change of address or telephone number;
iii)the parties notifying each other of any serious accident or illness concerning the child; and
iv)the parties being restrained from denigrating each other or each other’s partner.
The Father’s solicitor, Mr Simpson, told the Court on the morning of the hearing that the Father also sought an order concerning the Mother’s male friend Mr D. It was conceded that there was no minute containing this order and that Mr Fernie, who appeared as agent for the Mother’s solicitor, had only recently been made aware of that proposed order.
In the circumstances, I declined to entertain an application for that order, which appeared to be very much an afterthought, because insufficient notice had been given to the Respondent.
The interim orders sought by the Mother were set out in a minute of proposed orders prepared by the Mother’s solicitor.
The Mother seeks orders to the effect that:
a)the child should live with her;[1]
[1] This is uncontroversial
b)she should have sole parental responsibility for the child;
c)the Father should spend time with [X] only on the first Saturday of each month from 10:00am to 4:00pm with the time to be supervised by one Ms S;
d)the child should speak to the Father on the telephone:
i)each Tuesday;
ii)on the child’s birthday;
iii)on the Father’s birthday;
iv)on Father’s Day; and
v)on Christmas Day.
e)Neither parent should denigrate each other or their respective partners;[2]
[2] This, too, is uncontroversial
f)The Father is to be restrained from:
i)discussing any issues in the proceedings with the child;
ii)discussing the proceedings with or in the presence of the child;
iii)discussing the Mother’s relationships with third parties with the child;
iv)passing messages through the child; or
v)swearing or using inappropriate language to the child.
g)the Father to submit to supervised chain of custody urinalysis every two months on four occasions and provide a copy of the results to the Mother’s solicitor;
h)the Father to be restrained from consuming alcohol in the presence of the child or for twelve hours before spending any time with the child; and
i)the Father be restrained from using physical force when disciplining the child.
Background
The Father was born [in] 1976. He is 35 years old.
The Mother was born [in] 1977. She is 34 years old.
The parties commenced their relationship in August 1999. They separated in April or May 2002.[3]
[3] The Mother gives both dates in her affidavit sworn on 16 February 2011 at paragraphs [2] (May) and [3](April).
There is one child of the relationship, [X], who was born on [in] 2001. He is now ten years of age. [X] lives with the Mother and has done since the parties separated in 2002.
The Father lives in a suburb of Brisbane, Queensland. The Mother lives in a suburb of Wollongong, New South Wales.
The Father commenced these proceedings on 4th October 2010 by filing an Application for parenting orders in the Brisbane Registry of the Court. The Application first came before the Court in Brisbane on 29th November 2010. On that day Lapthorn FM made various parenting orders by consent and granted leave to transfer the Application to the Wollongong Registry of this Court.
The consent orders provided that the child should live with the Mother and the Father should be permitted to speak to the child on the telephone on certain occasions, including Christmas Day 2010 and each Monday between 6:00pm and 7:00pm.
The Application was mentioned before Altobelli FM at Wollongong on 9th May 2011. On that date his Honour varied the earlier consent orders, again by consent, and ordered a Family Report under the provisions of s.62G of the Family Law Act.
The Family Report was prepared by Dr H, a Family Consultant, and released to the parties by Altobelli FM on 3rd November 2011.
The Application was mentioned before his Honour on 5th December 2011 at Wollongong and listed for interim hearing in the Sydney Registry of the Court on 22nd December 2011. His Honour also made this direction:
The parties are to file and serve any further material on which they seek to rely no later than 15 December 2011.
Evidence
The Father relied on the following affidavits:
a)affidavit of the father sworn 30th September 2010;
b)affidavit of the father sworn 20th July 2011; and
c)affidavit of the father sworn 14th October 2011.
Notwithstanding his Honour’s direction, the Father filed two further affidavits on 21st December 2011:
a)a further affidavit by the Father; and
b)an affidavit by his mother, Ms W.
The Mother sought to rely on these affidavits:
a)affidavit of the mother sworn 16th February 2011;
b)a further affidavit of the mother sworn on 19th December 2011 and filed electronically the next day;
c)an affidavit by the Mother’s mother, sworn on 16th December 2011 and filed electronically the same day; and
d)an affidavit by the Mother’s sister sworn on 19th December 2011 and filed electronically the same day.
Again, the Mother’s solicitor filed three of the four affidavits relied on by her client three working days after the deadline set by his Honour.
There has been no satisfactory reason given as to why the practitioners concerned were unable to comply with the perfectly clear direction given by his Honour to file and serve their material no later than 15th December. The Father and his mother both reside at the same address in a Brisbane suburb. The Mother and her sister both reside in the same suburb and their mother lives in an adjoining suburb of Wollongong.
All too often, practitioners appear to disregard the explicit directions given by the Court about filing their affidavits on time. It is a matter that has bedevilled this Court since its inception and the Family Court for an even longer time (see In the Marriage of Jaeger[4]). In Jaeger, Fogarty J, with whom Finn and McCall JJ agreed, said:
…The Court has gone to a great deal of trouble in recent times to set out a clear regimen of procedures relating to the preparation of cases which go on for trial and one of the reasons for that it to ensure that the case runs through smoothly, that there is not trial by ambush or, alternatively, that the case is not disrupted by adjournments whilst parties call evidence which was not previously anticipated.[5]
[4] (1994) 18 Fam LR 126; FLC 92-492
[5] (1994) FLC 92-492 at 81,118
All too often, as in this case, the practitioners are equally to blame. In my view, it is not unreasonable for this Court to insist that practitioners regard the directions made by the Court for the filing of affidavits as orders that should be obeyed rather than just a faint hope by the Court that can be easily disregarded.
Practitioners are on notice that the Court will insist on strict compliance with directions made for trial or interim hearing. Any party who wishes to rely on an affidavit filed and served out of time will need to demonstrate why the reception of the affidavit into evidence is necessary to assist the Court in making a parenting order that is in the best interests of the child concerned.
In the present case, however, the late-filed affidavits contain little that is of relevance to the issues to be decided. The affidavits of the Mother’s sister and Mother do not appear to contain anything of relevance at all.
The Family Report
The Court has been fortunate to have the assistance of the Family Report, which was released to the parties on 3rd November 2011. For the purposes of preparing her Report, Dr H interviewed the following people on 24th October 2011:
a)the Father;
b)the paternal grandmother;
c)the Mother; and
d)the child.
Dr H noted that the maternal aunt, the Mother’s sister, attended but was not interviewed.
In her evaluation, the family consultant stated at paragraph 45 of the Report:
It would seem that the child has a meaningful relationship with his father and wishes for more contact although he seems quite anxious about the prospect. It is not clear whether the child is anxious about his father’s behaviour during visits/phone calls or his mother’s feelings about him developing an affectional bond with his father. Nothing emerged during this assessment to convince me the mother’s concerns about the child’s welfare in the care of the father are supported. Mr Wiggin presented as normally-nurturant, genuinely interested in his son and adequately protective., The paternal grandmother Ms W presented as having good parental sensitivity. Her presence during visits should be considered adequate to ensure the child’s safety and comfort.[6]
[6] Family Report page 13 at [45]
The family consultant made this recommendation:
Unless the evidentiary material should convince the court that the child will be at immediate risk of harm in the care of his father there is no reason to oppose the father’s proposal[7], but a trip to Queensland should not occur before the father visits the son in the local area for a long weekend or week (e.g. during Christmas school holidays) as it may help allay the anxieties of mother and maternal kin about a longer trip if the child safely returns from a local trip.[8]
[7] i.e. equal shared parental responsibility, the child to live with the Mother and spend half the school holidays and some weekends with the Father in the Wollongong area
[8] Family Report pages 14-15 at [49]
The family consultant also recommended that:
a)both parents should be referred to an appropriate parenting orders program;
b)consideration should be given to the appointment of an Independent Children’s Lawyer; and
c)
an Expert Report should be prepared including a full psychological profile of both parents and the Mother’s friend
Mr D, drugs testing as required and subpoenaed mental health, welfare and police records.
It is fair to say that the Mother does not agree with many of the matters contained in the Family Report. In paragraph 16(a) – (v) of the Mother’s late-filed affidavit of 19th December 2011, covering some seven pages, the Mother provides a commentary on the Family Report in which she disagrees with many of the factual matters contained in the Report.
This affidavit was apparently prepared specifically for the purpose of the interim hearing that took place on 22nd December. With respect, the Mother’s commentary is of very little use to the Court in an interim hearing, because an interim hearing normally does not involve the testing of evidence by cross-examination. It was never the case that
Dr H was going to be called for cross-examination on her Report at the interim hearing, so the Mother’s comments can assume no higher status than a submission.
In any event, an affidavit of a party should be confined to a statement of the facts to be relied upon and should not be in the form of a submission. The Mother’s comments about the report should more properly be put to Dr H in cross-examination at the final hearing.
If the Mother’s affidavit had been restricted to those matters of fact that are the proper subject for an affidavit her solicitor may have been able to file and serve the affidavit in the time specified by the Court.
Submissions
Mr Simpson, who appeared for the Father, submitted that his client would undertake not to use illicit substances for 24 hours before any time spent with the child.
Further, it was submitted that the Court should have regard to the Objects of Part VII of the Family Law Act, especially the object in paragraph 60B(1)(a):
ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child…
Mr Simpson submitted that the Act contains a presumption of equal shared parental responsibility in s.61DA. There is no evidence of abuse or family violence and the Father denies that violence occurred. The Father is not seeking substantial and significant time with the child but something less at this stage.
It was conceded that the parents do not have a good relationship and it was suggested that changeovers should take place at the child’s school, where possible.
Mr Simpson also conceded on behalf of his client that the Mother had most likely already made arrangements for herself and the child for Christmas Eve and Christmas Day, noting that the interim hearing was taking place on 22nd December.
For the Mother, Mr Fernie submitted that it was appropriate for the Court to make an order that the Mother have sole parental responsibility for the child, although he conceded that subsection 61DA(3) of the Act provides that when the Court is making an interim parenting order, the presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility applies unless it would not be appropriate in the circumstances.
As for the Father’s time with the child, Mr Fernie submitted that [X] is not ready for block contact with his father just yet. It has been two years since he has spent time with his father and he is an anxious child, as Dr H noted in the Family Report. Mr Fernie pointed out that the Father had not spoken to the child by telephone since 5th December. He told the Court that the Mother had used the loudspeaker on the telephone to monitor the Father’s calls to the child.
Mr Fernie submitted that the Mother was offering that the Father should spend face to face time with the child on the first Saturday of each month. However, she has some suspicions about the Father’s drug use, which would need to be allayed before the Father should spend time with him.
Mr Simpson told the Court that his client would like to spend some time close to Christmas with his son. He would travel down from Brisbane to spend time with him. The Father proposes to drive down and stay in the local area.
The Relevant Law
When making a parenting order, the Court is required by subsection 61DA(1) of the Family Law Act 1975 to apply a presumption that is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (see Goode & Goode[9] at [51]).
[9] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
When 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 (see subsection 61DA(3)). The Full Court of the Family Court held in Goode & Goode at [78] that subsection 61DA(3):
…provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult.[10]
[10] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 at [78]
The sequence for dealing with these requirements has been set out by Murphy J in Mallahan & Mallahan[11] at [37]:
[11] [2010] FamCA 631
· First apply a presumption that it is in the best interests of the subject children for their parents to have equal shared parental responsibility in respect of them;
· Next, make findings as to whether any “family violence” or “abuse”, as each is defined, exists;
· Further or alternatively, then make findings, by reference to s. 60CC(3) about such matters relating to best interests relevant to the issue of whether parental responsibility should be shared equally;
· Determine, accordingly, whether the presumption of equal shared parental responsibility is, as a result of findings about each (or, perhaps, both) of the above matte5rs, respectively, inapplicable or rebutted or, presumption or not, whether such an order should be made;
· If the presumption is rebutted and such an order should not otherwise be made, make findings about best interests relevant to a determination of what ultimate orders are in the best interests of these particular children in their particular circumstances (s. 65D;s. 60CA; s. 65AA). (As the Full Court put it in Goode, the enquiry about best interests is “at large”);
· If the presumption is not inapplicable or not rebutted, or if it be determined that an order for equal shared parental responsibility should in any even be made, the court must (s 65DAA) then proceed to:
- make findings as to whether the subject children’s best interests are best met by an order for equal time; and
- make findings as to the matters prescribed in s 65DAA(5), and, as a result;
- make findings about whether an equal time order is reasonably practicable (that is, in the words of the High Court, make “a practical assessment of whether equal time parenting is feasible”): and
- If it is not, conduct the same process, but this time with findings directed to a consideration of whether a “substantial and significant time” order (as defined – see s 65DAA(3)) should be made;
· If neither an equal time order, nor a substantial and significant time order, should be made, proceed to determine the orders which the earlier findings point to being in the children’s best interests (s 65D; s 60CA; s 65AA).[12]
[12] [2010] FamCA 631 [37]
Importantly, the Court has an obligation to consider the exercise of the power to make each order in the prescribed manner when the precondition for an order for equal shared parental responsibility has been met, even if neither party seeks an order for either equal time or substantial and significant time.[13]
[13] [2010] FamCA 631 [38]-[39]
Subsection 60B(1) of the Act sets out the objects of Part VII of the Act, which are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA of the Act provides that, in deciding whether to make a parenting order, the Court must regard the best interests of the child as the paramount consideration. To determine what is in the child’s best interest, the Court must have regard to the primary considerations in subsection 60CC (2) and the additional considerations in subsection 60CC(3) of the Act.
Subsection 60CC(4) requires the Court to consider the extent to which each of the child’s parents has fulfilled or failed to fulfil their responsibilities as a parent. Where the parties have separated, the
Court must have regard to events that have occurred and circumstances that have existed since the separation occurred (see subsection 60CC(4A)).
I have considered all of those matters where they are relevant.
Finally, on the subject of parental responsibility, section 61C of the Act provides that each of the parents of a child who is not 18 has parental responsibility for that child. That responsibility is not affected by any changes in the nature of the relationship of the child’s parents, such as separation or marriage or remarriage (s.61C(2)).
Conclusions
This is an interim application about relatively narrow issues, mainly about the time that the Father spends with the child and whether it should be supervised or not.
In my view, this is one case where the relevant evidence is insufficient to allow the Court to make a determination as to whether the application of the presumption of equal shared parental responsibility is in the best interests of this child or not. Subsection 61DA(3) provides that the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim parenting order.
It is more appropriate for the Court to make this determination at a final hearing and I propose to make no order in that regard. As I understand it, this means that the situation in subsection 61C(1) continues to apply, namely that each parent has parental responsibility for him until further order.
The best interests of the child are the paramount consideration.
There is no evidence that there is a need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, with the possible exception of the mother’s concern about the fact that the Father may be using illicit drugs. The evidence is not sufficient to warrant an order for chain of custody urinalysis, as the Mother seeks, but an order will be made restraining the father from consuming either alcohol or any illicit drug at any time when the child is in his care or for twelve hours beforehand.
It appears clear from the family report that there is a benefit to this boy in having a meaningful relationship with both his mother and his father.
[X] is now ten years old, having been born [in] 2001. He has expressed a wish to the family consultant to spend more time with his father although he was noted to be “quite anxious about the prospect”. He is certainly old enough and of sufficient maturity for the Court to give his views some weight.
[X] was assessed by the Family Consultant to have “warm and trusting relationships”[14] with his mother and his aunt. He has also been assessed as having a meaningful relationship with his father, whom he greeted in a “friendly but slightly bashful way”.[15] I note that the Family Consultant recorded that [X] described his father to her by saying “He looks like a bigger version of me”.[16] These words allow an inference that this boy has some positive identification with his father, in my view.
[14] Family Report page 11 at [37]
[15] Ibid page 11 at [38]
[16] Ibid
[X] was also observed to be initially shy with his paternal grandmother but warmed to her when she spoke to him about her dog. The Family Consultant noted that the child gave both his father and his grandmother “a farewell embrace”.[17]
[17] Family Report page 12 at [39]
There has to be a concern about the mother’s willingness to facilitate and encourage a close and continuing relationship between [X] and his father. I am not satisfied that the evidence shows that this unwillingness is justified. It seems to refer more to her negative feelings about the father arising out of their former relationship. The Family Report states:
In response to a question about the benefits of the child maintaining a relationship with his father, Ms Bannon said there were none. She could not maintain topic relevance and reverted to talking about her own relationship with Mr Wiggin…
When pressed Ms Bannon conceded that it may be beneficial to [X] to know that his Dad continues to care about him but stressed that if telephone calls(are) to occur they need to be consistent and the content needs to be appropriate.[18]
[18] Ibid pages 5 and 6 [16]
By comparison, the Father spoke positively of the Mother’s parenting skills:
Mr Wiggin reiterated that he believes Ms Bannon is a good, loving mother to his son and he has no intention of attempting to remove the child from her care.[19]
[19] Ibid page 7 at [24]
It would appear that there would be some negative effect on the child if he were no longer to spend any time or have any communication with his father. There would appear to be a positive effect on him if he were to have a consistent relationship with his father.
There are practical difficulties in the child spending time with his father because of the location of their respective homes. The Father lives in a suburb of Brisbane and [X] lives with his mother in a suburb if Wollongong.
The Mother and father and the child’s paternal grandmother would appear to have the capacity to provide for the child’s physical needs. The Mother, in opposing the child spending much time with his father, is perhaps not considering the child’s emotional needs above her own.
There is no evidence of any current family violence or any current family violence order.
This is not a case where the Father is seeking equal time with the child or even substantial and significant time. The relationship has to progress a long way before substantial and significant time should be considered. I am not persuaded that this is the time for the Father and child to spend lengthy periods of time together, certainly at the Father’s home in Queensland. Overnight time is perhaps a little way off, as the child needs to get used to his father and, just as importantly, the Mother needs to see that the Father is neither a threat to the child or to her.
The Mother seeks an order that the Father’s time with the child should be supervised. Supervision of a child’s time with a parent would be appropriate where unsupervised time would expose the child to an unacceptable risk of abuse (M v M;[20] In the Marriage of Bieganski[21]). There is no evidence of an unacceptable risk of abuse to this child in his father’s care.
[20] (1988) 12 Fam LR 606; FLC 91-979
[21] (1993) 16 Fam LR 353
As the Father will drive down from Brisbane to see the child, I consider it appropriate that he should spend two days at a time with him, although it should be restricted to daytime only at this stage. There should also be regular telephone communication.
The Future Progress of the matter
This is an Application that was commenced in the Brisbane Registry and subsequently transferred to Wollongong. The interim application was only heard in the Sydney Registry for convenience. It should properly return to Wollongong for final hearing. The Father lives in a suburb of Brisbane. The Mother and the child both live in a suburb of Wollongong.
The convenience of one of the parties, at least, and the need to limit the cost of the proceeding would call for the Application to return to Wollongong. I propose to transfer it back to Wollongong under the provisions of Rule 8.01.
The Application will be listed before Foster FM in Wollongong on a date that suits his Honour. It will be for his Honour to decide whether the child’s interests should be separately represented, as Mr Fernie submitted. It will also be for his Honour to decide whether to order an expert report including a full psychological profile of both parents and Mr D.
Finally, it is noted that Mr D did not attend the interviews for the Family Report, nor is he on affidavit.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 19 January 2012
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