ZEELAN & ABNEY
[2020] FCCA 884
•26 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZEELAN & ABNEY | [2020] FCCA 884 |
| Catchwords: FAMILY LAW – Interim care arrangements for a young child – competing allegations of family violence – more generalised allegations of violence – conceded volatile and conflictual relationship between the parents – whether time requires supervision – consideration of unacceptable risk – significant geographic distance between the parents – consideration of COVID 19 as regards the health of the mother and child – social distancing and isolation – father required to travel to and obtain accommodation in the area in which the child lives and at which time is to occur – time or changeovers occurring in a public place ill-advised and contraindicated – child’s best interests require certainty and safety. |
| Legislation: Family Law Act 1975 (Cth), ss.69ZL, 60A, 61DA, 61C, 60CC |
| Cases cited: Johns & Jasapas [2016] FamCA 471 Harridge & Harridge [2010] FamCA 445 Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR ZEELAN |
| Respondent: | MS ABNEY |
| File Number: | PAC 112 of 2020 |
| Judgment of: | Judge Harman |
| Hearing date: | 26 March 2020 |
| Date of Last Submission: | 26 March 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 26 March 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Ahmad of AI Legal |
| Solicitors for the Respondent: | Ms Ahmed of Buttar Caldwell & Co |
ORDERS
Pending further Order, the child X born … 2018 shall live with her mother Ms Abney.
Pending further Order, X shall spend time with her father Mr Zeelan at the father’s election, to be made prior to first period of time occurring, either:
(a)Each Saturday from 10.00am until 5.00pm; or
(b)Each alternate weekend from 1.00pm until 5.00pm Saturday and 10.00am until 5pm Sunday;
the father to communicate his election to the mother prior to close of business 27 March 2020.
For the purpose of the father’s time with X:
(a)The father shall obtain hotel, AirBnB or similar accommodation, at which time with the child can occur; and
(b)The mother shall cause the child to be delivered to the father at that accommodation at the commencement of each period and collected from the father at that accommodation at the conclusion of each period, that accommodation to be in or about the Town B area.
The father shall be entitled to communicate with X by FaceTime or similar video chat app each day that X is not in or to be in his care and between 5-5:30pm and, with respect to same, each parent shall ensure that the other is advised of:
(a)All relevant details to enable such communication to occur.
(b)The mother shall assist X in operating that equipment or in answering the call on behalf of X.
(c)Otherwise assist X in engaging in that communicating with her father.
The father shall refrain from consuming alcohol during or 12 hours prior to any period X is to be in his care.
Each parent shall advise the other forthwith and contemporaneous with the event of:
(a)Any diagnosis they or any member of their household receive of testing positive for the coronavirus and, in the event that they or any member of their household or extended family test positive, they shall ensure the child is cared for by a person or persons who has not tested positive and/or has not come into contact with those persons who have tested positive; and
(b)Any significant illness, injury or hospitalisation relating to X to include sufficient authority and instruction to enable each parent to consult with any treating medical practitioner and to visit X if hospitalised.
The matter is adjourned for further mention and directions to 8 September 2020 at 11:45am.
Note: The purpose of the adjournment is to facilitate the above time and to enable the parties to engage in further negotiation with a view to limiting and resolving issues and, if all issues have not been resolved to finality the matter will then be moved towards trial as expeditiously as possible.
The father shall file and serve an Amended Application or Reply together with an Affidavit sufficient to comply with Federal Circuit Court Rules 2001 and Financial Statement so as to address the financial issues now joined by the Respondent, such material to be filed and served no later than close of business 22 May 2020.
Pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall forthwith and within seven (7) days contact a Family Dispute Resolution Practitioner agreed between them for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for Family Dispute Resolution and subject to the assessment of suitability each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete Family Dispute Resolution prior to the next Court event.
IT IS NOTED that publication of this judgment under the pseudonym Zeelan & Abney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 112 of 2020
| MR ZEELAN |
Applicant
And
| MS ABNEY |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to interim parenting arrangements, with respect to a young child, X.
X was born on … 2018. She is, accordingly, not quite 18 months of age.
The parties to the proceedings are X’s parents, her father, the applicant and her mother, the respondent.
The parties were involved in a relatively brief cohabitation and involved with each other in a slightly longer relationship. The parties lived together from July, 2018 until 1 January 2019. Accordingly, at the time that these parents separated, young X was only weeks of age. At that point in time she would not have had any particular experience of her parents co-parenting her in any fashion.
Shortly after the separation of the parents and in or about April 2019, difficulties with the practice of relationship between X and her parents and each of them were exacerbated by the mother’s move to the Town B area. That is not raised as a criticism of the mother. She gives clear evidence of an event which occurred at that time and precipitated the move, although the facts and circumstances of that event are highly contested.
The mother indicates that she has a broad family network in the Town B and Canberra area to which she returned, having lived there until some little time before she met the father.
These proceedings are heard by telephone and these reasons are given in short form, pursuant to section 69ZL Family Law Act 1975 (Cth).
Parties’ proposals
By reference to the Application and Response of each of the parties, the dispute is broad.
The father, by his Initiating Application, seeks a coercive order requiring that both mother and child return to the Sydney area. That is so, notwithstanding that the application was filed in … 2020 and the mother’s move to Town B with X was eight months or so earlier. Needless to say, there was little utility in that Application and, appropriately, no doubt consistent with the advice of counsel who has conducted this gentleman’s affairs with aplomb, that Application is not pressed.
The Initiating Application also seeks a fairly extensive suite of orders including the immediate introduction of alternate weekend overnight time and other periods in the alternative. The Initiating Application also seeks that in the event that the mother does not relocate herself and X to Sydney, that X pass to live with her father.
That position is not that which is determined by these reasons.
The father, by a Minute, Exhibit A1, proposes that there be a relatively quick albeit graduating regime of time spent by him with X. The proposal includes time each alternate weekend being for a period on Saturday and then all day Sunday, without supervision, before building to a further two months of unsupervised but overnight time, Saturday to Sunday each alternate weekend, and with the father responsible for finding his own accommodation. Thereafter, it is proposed that there be time from Friday to Monday, each alternate weekend.
Curiously, and somewhat problematically in light of the current pandemic, the father proposes changeovers at a Police station in Town C. Town C is something resembling a midway point between the parties’ residences in Sydney and Town B respectively.
The mother, for her part, by her Response, proposes a far more restrictive regime of time. The mother, by that Response, proposes that the father undertake a suite of pathology tests with respect to drugs and alcohol, engage in a Taking Responsibility Men’s Behaviour Change programme as well as individual face to face counselling through a community-based organisation. Upon completion of those requirements, the mother proposes that the father then practice a relationship with X for two hours at a time, once per week, with professional supervision.
The above is not what is pressed for the purpose of this determination.
The orders that the mother seeks are set out in Exhibit R1. The mother proposes, subject to the father completing a COVID-19 test, something which may not be possible as he does not meet any of the presently available criteria to be provided with the test as a priority, that time occur each alternate weekend from 10am till 6pm, on each of Saturday and Sunday and that time to be supervised by the mother’s brother. On the mother’s proposal time would occur at a hotel or similar private location for four visits or eight weeks.
Thereafter, the mother proposes that there be time each Saturday and Sunday, unsupervised, for the same period and for 12 visits. That is, for 24 weeks. That proposal would go well beyond the adjourned date that will likely be allocated to these proceedings.
The mother then proposes that after the above visits, on a supervised and unsupervised basis, that time progress to being alternate weekends, overnight, from Saturday to Sunday that time to occur in the Town B area.
A number of other orders are sought by the mother which need not be recited specifically, at this time.
Thus, the disputes between the parties relate to:
a)Is supervision necessary?
b)Should there be some provision for Facetime communication between the father and the child?
c)How rapidly should time increase?; and,
d)Should there be specific locations nominated for the time or some trigger to determine what they would be?
Material considered in dealing with the proceedings
I have read the material that the parties have filed and/or identified, comprising, in the mother’s case, her Response, Notice of Risk and Affidavit and in the father’s case, his Initiating Application, pages 3 to 6 inclusive of his first Affidavit, the entirety of his second Affidavit, together with a Notice of Risk. I have also considered the Minutes of Orders described above.
Unacceptable risk
It is trite to observe that there are many reasons why supervision of time may be ordered. This would include, for example, periods when a child is a relative stranger to a parent, and vice versa and, thus, the supervision is intended to be with the presence of someone with whom the child is familiar, to ensure that the child becomes familiar with that parent. That is not directly connected with what would fall within the umbrella of unacceptable risk.
There are other cases in which supervision might be ordered on the basis that a parent (in this case the father) has not demonstrated his capacity to meet the child’s needs. Thus, supervision might be provided, again by a person familiar with the child and with the duties of parenting that particular child, so as to provide, as it were, some “on the job instruction” for that parent and to provide some satisfaction and trust building between the parents.
There is then the third category in which supervision occurs, where there is an unacceptable risk or an unresolved risk which, if ultimately demonstrated to be so, would create difficulty for the parties. The latter category is what is described in this case, it would seem, by reference to the evidence filed.
The mother suggests, via her Notice of Risk, that the father has perpetrated abuse of the child or is a risk to the child as he has:
a)Perpetrated family violence towards the mother in front of the child; and,
b)A history of violence towards the mother and others.
It is suggested that these risks are particularly associated with drug and alcohol use.
Further, due to the child’s age, the mother wants supervised time spent by the child with her father.
The mother also raises concerns about unspecified associates of the father, who may pose a risk, there being references in the material to the father being suggested as an associate of or member of what is often described as a “social club”.
In determining the issue of unacceptable risk, I am conscious, in the limited time available to deal with the matter and the limited evidence relied upon, of the useful heuristics or rhetorical questions posed by Tree and Murphy JJ in Johns & Jasapas [2016] FamCA 471 (‘Johns & Jasapas’) and Harridge & Harridge [2010] FamCA 445, respectively. I propose to adopt that approach and incorporate paragraphs 46 to 48 of Johns & Jasapas herein:
The notion of unacceptable risk
46. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
47. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
48. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
In posing each of the questions, there is some illumination of risk.
What harmful outcome is potentially present?
This is unclear. One can infer from the mother’s evidence that the risk is that the father will fail to meet the child’s needs, or be so distracted by drug or alcohol use, and/or a propensity to violence, that the child’s needs will either not be met, or the child herself injured by the father, or perhaps violence visited upon others whilst the child is present. These are all things the mother alleges with respect to the father not specific to the child and past care.
The evidence of the parties with respect to violence is, in some respects, curious. There are two significant events that are referred to in the evidence, particularly that of the mother.
The parties seem to adopt the same manner of referring to those events, being the “gender reveal party” incident and the “Easter 2019 incident”.
The first incident, the gender reveal party, occurred in … 2018. That is, prior to the child’s birth. The fact that violence, as is suggested by the mother, occurred prior to the birth of the relevant child, does not render that event irrelevant.
The mother suggests that on this occasion, and at a party to reveal the gender of the child then-unborn, that the father consumed a substantial quantity of alcohol and then became involved in an argument and physical altercation with the mother’s brother, the very person proposed as the supervisor of the father’s time. The father is suggested to have been experiencing psychosis, although that is the mother’s lay opinion (paragraph 44 of the mother’s Affidavit). The father is suggested to have “ripped down” the roller door, although it is clear that it was pulled shut, presumably with some real vigour or violence.
The father is suggested to have assaulted the mother’s brother by punching him and breaking his nose. The father is suggested to have been transported to, and possibly treated at hospital, in relation to either psychosis or simply his significant alcohol consumption.
The second event, Easter 2019, the parties each address in their evidence, albeit one would think they are different events.
The mother suggests that during an argument, something which, it would appear on the evidence, was a frequent occurrence between these parents, their relationship being, without intending to distract from allegations of violence, volatile, that violence was visited upon her by the father.
At paragraph 86 of the mother’s Affidavit, the mother suggests that while she was holding young X, bearing in mind that she was of very tender age at that point, the father kicked her to the leg so hard that the mother fell to the ground. The child was placed on a bed, the mother began to scream in pain. The mother annexes photographs, although they are black and white copies and, thus, somewhat difficult to discern, of injuries suggested to have been experienced as a consequence of the kick.
Certainly, as the mother describes it, it is a horrific and unnecessary assault by one person upon another.
The mother suggests that members of the father’s family were present and that they were of little assistance.
An argument then occurred with respect to the child. The mother ultimately took the child and left.
The father suggests that he was the victim of significant violence by the mother towards him. The father’s evidence appears fantastic, (although even the fantastic can occur), being that the mother has, on that occasion at Easter 2019 and other occasions, been involved in screaming at and swearing at the father, slapping and punching and kicking him, hitting him with glass bottles, a metal candle stand, whipping him with cables and, curiously, slashing him with kitchen knives.
None of that was included in the first Affidavit, but appears in the second. I do not draw any inference from that development in the evidence, but merely observe that the father raises allegations of violence also.
The father’s allegations must be tempered by the reality that he proposes, on both a final and interim basis, that the child live with the mother. Accordingly, one would think that he does not similarly agitate that there is a risk to the child.
As a consequence of that which the father alleges, presumably it is raised in response to the mother’s material, there is suggested to be justification for any action that the father has undertaken. In that regard, the father suggests, with respect to the Easter event, that he was experiencing a number of these behaviours - being slapped, kicked, yelled at and sworn at by the mother. The mother, on that occasion, is suggested to be stomping on his legs and kicking him until, eventually, after he apparently calmly asked the mother to “calm down” whilst being continuously punched by the mother, he…”kicked my leg out at her, in self-defence”.
Whatever occurred, it was clearly vastly unpleasant, especially for the young child.
Thereafter, time between father and child continued to occur. There is some controversy as to the periods of time that have occurred, and particularly, the number of visits that have occurred when the father has had young X in his presence. The father suggests there have been possibly six or possibly as many as 12 occasions when he has had the child, predominantly for periods of hours at a time, without the mother’s presence or the presence of any other person. The mother suggests it is two brief occasions.
It is clear that there have been a significant number of occasions when the mother or her brother, or both, have been present with the father for the purpose of the father spending time with the child (amongst other reasons as regards the mother’s presence). The mother suggests in her material that, notwithstanding the much earlier separation of the parties in January 2019, their sexual relationship with each other continued until November 2019. Accordingly, the times that the parties spent together may well signal something other than merely the mother being present to ensure that the child is safe and properly supervised.
Finally, the parties are not short of funds, (as most litigants who come before this Court are). If professional supervision were required, the father can afford it. If it is necessary to obtain accommodation or meet travel expenses, again, the father can afford it. That is a benefit to this family, in seeking to address the difficulties that they face, particularly with a three or more hour drive between their respective homes.
The above all relate to the harmful outcome that is potentially present for the child. There are two competing outcomes for this child which might be described broadly as “harmful”.
The first is more difficult to specify. The mother suggests that there is a harmful outcome to the child if supervision is not applied. What that outcome might be is not at all clear. The harmful outcome is difficult to discern. I can only infer, as I commence this portion of the reasons, that the child might experience the father’s violent acting out. To the extent that there are concerns about excessive alcohol use, that might be addressed through injunction. Each proposes that there be one.
The second issue that must be addressed is the harmful outcome for this child of exposure to ongoing conflict and hostility between the parents. That is not to seek to euphemise or in any way invalidate or disregard the mother’s allegations that she has experienced violence (or, for that matter, the father’s allegations that he has).
I do not seek to use the word “conflict” to conflate it with “violence”. They are separate things. However, both parties are clear that when they are together, it often ends in arguments and screaming matches and is, at the very least, volatile conflict. Accordingly, it might be better for this child that she not see her parents interacting or, at least, not in that way. But that leads to the difficulty of a harmful outcome for this child in unnecessary restrictions upon the development of her relationship with her father. That is a harmful outcome for this child and a risk.
What is the probability of it coming about?
I am not satisfied that these harmful outcomes are equally probable.
It must be observed that if one views the mother’s past presence or that of her brother as being “supervision”, then there has already been well over 12 months of supervision taking place. One wonders what transpired in that time that might have provided a greater degree of trust or would be provided by a further continuation of the mother’s brother being present to supervise for more visits. There have been 12 months of visits. Why another two months is necessary is somewhat unclear.
What risks are probable in the situation, short-term, medium-term and long-term?
There are a number of risks. The risk to the child of having a fractured development of relationship with the father, (noting that she is now commencing a period of bonding and attachment), is significant. It is well accepted that interference in the development of secure attachments with a parent, at this point in life, can have a lifelong impact upon a child, their formation of relationships, etcetera.
The exposure of this child to significant anger, let alone violence or neglect is also well understood. It can have lifelong effects.
What is absent in the evidence, however, is any suggestion that the latter has occurred. Certainly, it might be suggested that the mother or her brother have been present to ensure that it is not so. But the father has also been present. There is no suggestion that the child has developed fear of the father, has been harmed by the father, or that the father has caused significant disadvantage to the child in any fashion. That is not to suggest that the danger must materialise or the damage be done before risk becomes “unacceptable”. It is the apprehension that it may be so that is important.
But after 12 months of supervision, one would think there is some confidence in predicting whether it might occur. I am not satisfied the probability is high or that it is as high as the risk to the child of further fracturing of relationship with artificial restrictions.
What are the factors that could increase or decrease risk?
Certainly, the father undertaking, of his own volition, (although the mother has sought it in her Response and may well have raised it in correspondence), parenting courses and programs, is beneficial. The course itself does not parent the child however. It is the parent receiving the information and learning from it. There is nothing to suggest that the father has not and will not continue to do so. Thus, there is at least some tentative step towards decreasing the risk that might be inferred from the mother’s case.
In relation to the fracturing of the child’s relationship and development of attachment with the father, there are no factors that could increase or decrease risk, save the extension of time to now make it regular. One of the criticisms is that the past time arrangements have been infrequent and irregular. The father blames the mother. The mother suggests that the father is culpable, taking holidays and leave and taking time as and when he feels like it. That may be true at times, it may not. But the greater difficulty has been the complete absence of certainty as to when time will be practiced. Time has been organised ad hoc, and accordingly, this child is left pondering when she will see her father. Accordingly, the factors that would most likely decrease risk in relation to the relationship are far more readily identified and predicted.
What measures are available, whose deployment could mitigate those risks?
These are, I am satisfied, sufficiently addressed above, save and except for one issue. This case is, of course, dealt with in the context of a global pandemic. There are presently severe restrictions on businesses that can operate and, in all probability, there will, in the very foreseeable future –weeks, if not days – be further restrictions that might impose real difficulty in the arrangements either party proposes, especially to the extent that they involve visitation occurring in public places.
Clearly, what needs to happen for this child is that her visits need to occur at a fixed location. That cannot and should not be the mother’s home. It will mean the father obtaining some form of accommodation, renting a day room or otherwise at a hotel or similar lodgings, so that there is a place to which the child can be delivered and a place that the child can spend time with the father. He will need to bring toys, food and other things. This is not a time in history when a parent can collect a child, take them to a café, visit a playground or go to other activities with their child. That will soon be prohibited, once stricter lockdown restrictions appropriately come into effect.
For the child’s health and protection, it is important that there be a fixed place where time occurs, notwithstanding the 3 to 3 ½ hour’s distance between the parties’ home. Hence, thankfully, the parties have funds.
The mother is suggested to have asthma, which makes her more vulnerable to infection with CV19. It may be that the mother wishes her brother to undertake the delivery and collection of the child on her behalf, so that she does not need to come into contact with the person she describes as her tormentor. She need not leave the home and thus need not endanger her health.
But my real concern, (not suggesting the mother’s health is not important), is this young child’s health. She simply cannot be outside for six hours of a visit with her father, or any period, mixing with others. The risks of contagion are simply too high.
I accept, as is submitted on the father’s part, his case having been run with alacrity, that that is highly inconvenient for the father. Indeed, it is possible that restrictions may be imposed upon the populace that are so prescriptive that any arrangement that sees the father travelling to collect the child, whether from Town C Police Station or to be delivered to him at an Hotel in Town B, will become impossible.
Conclusion
They are the risks as I apprehend them, and as I understand them. I am not satisfied that they support a need for supervision or ongoing supervision, especially when there has already been 12 months of effective supervision without complaint, or substantial complaint.
Legislative Provisions
That then leaves the Part VII provisions which must be addressed.
I must commence with section 60A of the Family Law Act 1975 (supra), which reminds the Court that in all that is done, the child’s best interests are the paramount consideration.
I must then have regard to the objects and principles. They do not form part of the substantive law to be applied to the facts and circumstances of the case but do assist in understanding how those provisions might be applied, as well as guiding the outcome that the Court should endeavour to achieve.
The Court should endeavour to ensure that children’s best interests are met by ensuring that young X has the benefit of both parents having a meaningful involvement in her life to the maximum extent consistent with her best interests.
There is certainly some concern about the violence which seems to surround the father at different times, together with allegations of drug use (although, the most significant allegation is now nearly 20 years ago). Those allegations are something that the mother has known for some little time and would appear to have known before conception of this child.
There is the need to protect the child, although as described above, I am not satisfied that there is an unacceptable risk from which the child needs protection in the nature of supervision.
Meaningful involvement must be tempered by facts and circumstances relevant to the child such as the mother’s health predisposition and the mother’s concerns with respect to coming into contact with the father. In that regard, whilst the mother has been present as a supervisor, for want of better description, of the father’s time, her presence has, perhaps, also been to continue the adult relationship in some fashion until late last year.
That does not necessarily detract from acceptance of the mother’s allegations. I do not proceed on that basis. It may be that she was putting her own interests aside to act protectively, although certainly, the father agitates to the contrary.
The meaningful involvement that can occur is tempered by distance. It is also tempered by the current circumstances. I do not suggest that the Court needs to respond in any specific fashion, such as to restrict time merely because a pandemic is in place. But the Court must respond to the specific elements that are well known and understood.
Social distancing and isolation
There is nothing to be gained from this child being in a public place with others. That is unnecessary and dangerous.
I intend to impose a requirement that the father obtain an Hotel or similar accommodation, and that is where the child will be delivered to him and where time with the child will be spent. The father should bring a supply of toys, books, food and other things, everything he needs, as though he were conducting his time with X in his own home. However, that meaningful involvement will best be achieved, I am satisfied, by an arrangement that is as frequent as possible.
Adequacy of Care
If the father can accommodate weekly time, then it should be one day per week. If he cannot, then it should be two days each alternate weekend. Clearly, weekly time is preferable. It is a matter for the father, how he wishes to regulate that business.
I am satisfied that the child will receive adequate and proper care, from either parent, for the periods of time that they will be responsible for X’s care.
There is no challenge that the mother cannot meet the child’s needs on a full-time basis. Whilst there is doubt raised with respect to the father, it is not sufficient to obviate against at least full days with this young child.
The objects all support an arrangement of the type I have described.
The principles underlying the objects create rights for young X. These rights include the right to know and be cared for by both parents, and to spend time and communicate with both parents on a regular basis. X has not been able to do that for some little time.
The father should be entitled to bring other family members with him on visits, subject to each exercising, as all health advisories urge, common sense. Not a room full of people, but certainly a relative or two, so that they can also develop and/or continue relationships with this child, subject to appropriate social distancing and everybody being sensible and pragmatic as to their own health, let alone the child’s.
All of that would support frequent and regular weekly time or, if the father believes that he simply cannot do so, fortnightly time, although, that is far less desirable.
Parental Responsibility
I must then turn to section 61DA, the presumption of equal shared parental responsibility.
The mother seeks sole parental responsibility, the father equal shared parental responsibility.
These are interim proceedings. I am satisfied that subsection (3) should apply. It would be inappropriate for the presumption to apply, in light of the allegations each raises of the other, until such time as that evidence can be properly and fully explored.
If either is able to demonstrate proof of the material they lead, then their position may be supported. But at this point, it is not tested, it is very much challenged, and there is no objective basis upon which a finding could be made. Whilst findings can be made at interim hearing (I note the caution at paragraph 68 of Goode & Goode (2006) FLC 93-286), this is not a case in which I am satisfied findings could or need be made. I am satisfied the parents should have joint and several parental responsibility per section 61C. Thus, each is entitled to make decisions whilst the child is with them. This child, at her age, not yet two, does not have any significant major issues decision that requires determination by these parents, in any event.
Section 60CC
Thus, I turn to section 60CC to address all issues.
I must commence with the primary considerations being the benefit to the child of a meaningful relationship with both parents and a need to protect the child, the latter prioritised over the former by subsection (2A). I am satisfied that the issue of risk is already addressed and discussed sufficiently above.
The benefit to this child of a meaningful relationship with both parents can only be achieved, as regards her father, by:
a)Regular and frequent time;
b)The father using that time to parent the child, if one might conflate the noun and the verb; and,
c)That time being supported. One cannot make the mother support the time nor trust the father, but that is best achieved through the father demonstrating that he is sufficiently capable to meet the child’s needs. After 12 months of the father being present and “part of the team”, as it were, meeting the child’s needs, it is time for him to “fly solo”.
I am satisfied that, during day visits, the child’s needs will be met. The benefits to this child of not only being with her father but being parented by him, are abundant. It means that she can begin to develop a relationship, (at least, in the nature of a secure attachment). She can be confident that her father can meet her needs, trusting of his ability to soothe her and feed her, meet her need for sustenance, clothing, sleep and otherwise. That would support regular and frequently, ideally weekly time, but at least alternate weekly time.
Each of the parties has proposed a movement towards overnight time, the father far more rapidly than the mother. On the mother’s proposal, overnight time would not commence until well after the adjourned date to which I propose to put these proceedings. Thus, I am satisfied, with little evidence, and as the parties acknowledge, very much challenged and untested evidence, that I should not proceed beyond that which is necessary and readily predictable. It is about taking appropriate and predictable steps, to excuse the pun “baby steps”.
The child has been spending time with the father, with the mother or mother’s brother or both present, and has had very few, somewhere between 2 and 12 occasions when the father has met her needs solely, albeit for short periods of time. To now develop a regular routine of weekly or, possibly, fortnightly time to allow the father to meet those needs is the step that is needed at this point, before beginning to embark upon a determination of whether this child is ready for overnight time.
The additional considerations do not assist a great deal.
There is no evidence of the child’s views, and it would carry little weight.
The child clearly has a well-established beginning of a relationship with the mother, (that language being somewhat irrelevant for a child of this age). But her needs are being met, there being no challenge that it is so, and that is how they will continue to be met.
The child’s relationship with the father is fledgling and developing. It needs to develop further. It can only do so through regular and predictable time.
Each parent is able to meet the child’s needs.
I am satisfied, as I have already described, the change of arrangements will be positive for this child. She will finally have the opportunity to be parented by each parent, albeit far less than equal time.
Practical difficulties are manifest. The parties live some little distance apart. However, the father has a very reliable car, the means to put petrol in it and the means to obtain accommodation to house the child whilst he is in the Town B area. Accordingly, those difficulties can be readily overcome.
The parties do not communicate particularly well or resolve difficulties, but there is not much on offer to assist them at this particular point.
Capacity of the parents is adequate.
I have addressed the balance of issues, I am satisfied sufficiently, and for those reason, Orders will be made for time as alluded to and for FaceTime communication. I want to be very clear for the sake of these parties. No one should expect that FaceTime communication is going to be for any particular length of time. 18 month old children do not sit in front of phones nor should they for very long.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 20 April 2020
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