Norton & Norton [2015] FCCA 2098 (12 August 2015)

Last Updated: 22 October 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

NORTON & NORTON

[2015] FCCA 2098

Catchwords: FAMILY LAW – Interim Parenting Orders – father’s Application to vary Interim Orders – s.61DA(3) – not appropriate to apply presumption of equal shared parental responsibility – not in best interests of children to make Order for further time that the children spend with Father.

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

Goode v Goode (2006) FLC 93-286 Cowling v Cowling [1998] FamCA 19; (1998) FLC 92-801 Marvel & Marvel (No.2) [2010] FamCAFC 101 Banks & Banks [2015] FamCAFC 36

Applicant:

MS NORTON

Respondent:

MR NORTON

File Number:

PAC 986 of 2015

Judgment of:

Judge Newbrun

Hearing date:

17 July 2015

Date of Last Submission:

17 July 2015

Delivered at:

Parramatta

Delivered on:

12 August 2015

REPRESENTATION

Solicitors for the Applicant:

Murray J Nott Solicitors

Counsel for the Respondent:

Mr Johnson

Solicitors for the Respondent:

Biddulph & Salenger

ORDERS

(1) The Respondent Father’s Application to discharge Order 2(a) of the Interim Orders made by the Court on 16 March 2015, be dismissed.
(2) The Respondent Father’s Application to vary Order 12(b) of the Interim Orders made by the Court on 16 March 2015, be dismissed.
(3) The Court makes Orders in accordance with exhibit D, headed Short Minutes of Consent Order, dated 17 July 2015.

PAC 986 of 2015

NORTON & NORTON

SHORT MINUTES OF CONSENT ORDER

By consent, the Court orders in addition to the Orders of 16 March 2015:

(1) That pending further order, the parents have telephone time with the children each alternate day they are in the other parents’ care between 6pm and 7pm.
(2) That pending further order, the Father spend time with the children for one half of each school term holiday commencing on the day following break-up day to 6pm on the mid Saturday.
(3) That the Father shall spend time with the children on Father’s Day from 9am to 6pm and with the Mother from 9am to 6pm on Mother’s Day.
(4) That the Father spend time with the children during the December/January holidays for the first half to 6pm on the mid Saturday in 2015 and alternating between the first half and second half in subsequent years.
(5) That the Father spend time with the children from 9am on Christmas Eve to 12.30pm on Christmas Day in even numbered years and with the Mother from 9am Christmas Eve to 12.30pm Christmas Day in odd numbered years.
(6) That the children spend from 9am to 6pm with the Father on Father’s Day and from 9am to 6pm with the Mother on Mother’s Day.
(7) That the children spend time with the parent with whom they are not living on each of their birthdays and if on a week day from after school to 6.30pm and on a weekend day from 11am to 3pm and at the same times on a parents birthday.
(8) That pending further order, the Father shall not be obliged to have X attend at pre-school on week days when he is in the Father’s care provided that the Father shall personally care for X on those days and deliver the child to day care on Wednesday morning.
(9) That pursuant to Order 8 of the orders of 16 March 2015, the parties shall forthwith attend upon (omitted) of Relation Space, (omitted) for Family Counselling.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA

PAC 986 of 2015

MS NORTON

Applicant

And

MR NORTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. This was an Interim Hearing held to determine the Respondent Father’s Application for equal shared parental responsibility and further time, from Friday after school to Saturday morning 9 AM, on a fortnightly basis, to be spent by the children of the parties with him.
2. Specifically, the Father sought Orders as follows, (see Minute of Order, exhibit C, dated 17 July 2015):
   • “That Order 2(a) of the Orders made on 16 March 2015, be discharged.
   • That Order 12(b) of the Orders made on 16 March 2015, be varied to provide that the time commence from after school and pre-school on Friday, in lieu of 9 AM Saturday.”
3. Order 2(a) of the Interim Orders made on 16 March 2015, provided that the Mother have sole parental responsibility for the children.
4. Order 12(b) of the Interim Orders made on 16 March 2015, provided:
   • “12. After the return of the children to the Mother, the Father shall spend time and communicate with the children as follows:
   • (b) Two weeks after the fourth period, 22 May 2015, provided in Order (a) above, and each alternate week thereafter commencing Saturday, 9 AM to the commencement of school Wednesday;”
5. The children of the parties are Y born (omitted) 2008 and X born (omitted) 2011.
6. On 16 March 2015, Interim Terms of Settlement by consent were made Orders of this Court by Judge Donald. Those interim terms provided, inter alia, in addition to the above Orders, for the children to be returned to the Mother’s care forthwith, the oldest child Y to resume her education at (omitted) Public school and the child X to resume day care at Kids Academy (omitted).
7. On 16 March 2015 the Court had further ordered that the proceedings were adjourned to 17 July 2015 for Interim Hearing.
8. At the outset of the Interim Hearing on 17 July 2015, the parties’ legal representatives indicated that an agreement had been reached in relation to certain parenting issues, including telephone time and family counselling (see exhibit D, headed Short Minutes of Consent Order, dated 17 July 2015).
9. However, as indicated above, the Father’s counsel indicated to the Court that the only interim parenting issues that the Father wished to litigate before the Court were the issues of parental responsibility and extra time that the children would spend with the Father on a fortnightly basis. The Mother opposed the making of these additional Orders. The Mother’s proposal was that the current Interim Orders of
   16 March 2015 continue.

The parties relied on the following documents:

10. The Mother:
    • Initiating application filed 6 March 2015
    • Affidavit of the Mother filed 6 March 2015
    • Affidavit of Mother filed 16 March 2015
    • Affidavit of Mother filed 10 July 2015
    • Notice of Risk filed 6 March 2015
    • Child Dispute Conference Memorandum of 25 June 2015
11. The Father:
    • Response of Father filed 13 March 2015
    • Affidavit of Father filed 13 March 2015
    • Affidavit of Father filed 10 July 2015
    • Affidavit of Ms O filed 13 March 2015
12. The following exhibits were relied upon by the parties:
    • Exhibit A: certain documents under subpoena from (omitted) Daycare Centre, (omitted), including applications for enrolment or re-enrolment of the child X with that Centre.
    • Exhibit B: email communication between the Mother and Father of 18 May 2015.
13. Relating to parental responsibility, the Father submitted that pursuant to section 61 DA(3) of the Family Law Act, the presumption of equal shared parental responsibility for the children should apply.

Uncontested Relevant Facts

14. The parties married in (country omitted) on (omitted) 2006.
15. The child Y was born on (omitted) 2008.
16. The child X was born on (omitted) 2011.
17. The children were breastfed by the Mother for 2 years.
18. When Y was about 10 months old, the Mother was on maternity leave and she was made redundant from her position at (employer omitted).
19. In (omitted) 2009, the Mother was appointed an (occupation omitted) at (employer omitted); the role was three days per week, from 8:30 AM to 4:30 PM which enabled her to drop off and collect Y from day care and allowed her two days per week to spend at home with her. (This role was increased to 4 days per week in (omitted) 2014 due to financial pressure).
20. In April/May 2011, the parties moved to (omitted) to live. At about this time the Mother ceased work to go on maternity leave with the birth of X. The parties enrolled Y at Kids Academy (omitted) three days per week, this allowed the Mother to spend time alone with X and look after the house.
21. In about (omitted) 2012, the Mother worked in paid employment from home for about two days per week, this arrangement lasted for about six months.
22. In about (omitted) 2012, X started daycare at the (omitted) at (omitted) for three days per week. The application form completed by the Mother referred to herself as the primary parent/guardian and the Father as the secondary parent/guardian with full contact details provided for both parties. The emergency contacts were stated to be the paternal grandparents.
23. Over the last eight years the Father has had 9 jobs. Some were of very short duration. In between jobs, the Father had periods of unemployment. The Father continued applying for employment. The children remained in their usual daycare arrangements throughout these periods of unemployment.
24. Prior to separation, the Mother had asked the Father on several occasions if he wanted to stay home and be the primary carer for the children with the Mother working full time. The Mother told the Father, that such an arrangement was not what she wanted but she wished to know what the Father wanted. The Father responded that he would keep looking for work as the parties could not survive on the Mother’s salary.
25. The Father’s income has varied from $60,000-$300,000 per annum. As an (occupation omitted) he has operated in this capacity as a salaried employee, as a sole trader and through a discretionary trading trust of which the Mother is a trustee and beneficiary.
26. In (omitted) 2014, the Father went on a three week long trip to (country omitted) leaving the Mother at home with sole responsibility of the children. The Father first mentioned this trip in about August 2014 to the Mother. The Father had told the Mother, that the trip was a prize for special limited edition BMW Motorcycle owners. The Mother was strongly opposed to the Father going on this trip. In early September 2014, the Father suddenly decided that the trip would go ahead.
27. Prior to separation in or about mid November 2014, the Mother packed the children’s school and daycare bags, ensured that they had spare clothes, clean sheets, lunches, readers and any other items needed for school. She provided them with breakfast and assisted them to get dressed. If the Father was not working or working from home, he would often come with the Mother to drop the children off and drop the Mother off at the train station so that he could use her car during the day. After work, the Mother usually collected the children, made their dinner, oversaw their bath and bed routine and got them ready for bed. Y had daily readers for kindergarten. The Mother would listen to her read her reader every day.
28. Prior to separation, the Father took numerous trips for work. He went to (country omitted) for (employer omitted) in 2007, frequent trips to Melbourne and (country omitted) with (employer omitted). He took occasional trips to Melbourne or Brisbane with his most recent employer (employer omitted). In (omitted) 2012, he travelled to the (country omitted) for several weeks for his employer at that time, (employer omitted). The Mother, for her part, travelled for her work about once every 3 to 6 months, usually to Melbourne for a period of 2 to 3 days. During these trips the Father looked after the children.
29. On the 26 November 2014, the parties had a heated conversation about their relationship. At this time the Mother was afraid of the Father. On 28 November 2014, the Mother went to see a marriage counsellor. On the Mother’s return home she had a conversation with the Father about her discussions with the counsellor. The Mother found the Father’s questioning of her controlling and she felt intimidated and scared.
30. The Father, at least since the separation, had been frequently staying overnight elsewhere.
31. On (omitted) 2014, the Mother was due to have surgery at a private hospital. She stayed at her Father’s home for a week thereafter. During this week the Mother requested the Father to see or speak to the children on Facetime. The Father refused this request telling the Mother that a child psychologist had advised him that the children should not see the Mother. The Mother asked the Father for the name of the child psychologist. The Father said he couldn’t recall. The Father told the Mother, that he had told the children, “Mummy doesn’t love Daddy any more, and that is why she doesn’t live here anymore. From now on, you will spend a week with daddy and a week with mummy.” During this week, the Mother requested the Father to have dinner with the children and speak to them on Facetime via text message. The Father declined to allow the children to speak to her, telling her that the children were happy and settled and that the feedback from school and daycare was that they were perfectly fine.
32. During this week that the children did not see the Mother, there had been email communications between the parties, SMS messages and photos so that the Mother could see what the children were doing. Nevertheless, the Mother had found the behaviour of the Father during this week to be extremely frightening, intimidating and controlling, and she was distressed and upset from having spent the entire week away from the children. The Mother was very concerned about the children’s emotional state given the disruption and distress that might be caused by the marital breakdown. The Mother was further concerned that the Father would not return the children.
33. The Mother, on Friday 5 December 2014, collected the children from school and daycare. Later that day the parties signed a parenting plan. The plan was stated to continue until 31 January 2015. Both parents would share physical control of children and ensure continuing contact with both parents. Inter-alia, both parents were to have equal rights and responsibilities toward the children. Under the plan, certain matters were stated to require mutual consent, inter alia, enrolment in or leaving a particular private or public school or daycare centre and participation in extracurricular activities.
34. Thereafter, during the school holidays, the parties had a week on/week off arrangement for the care of the children. The children were in the Mother’s care over the Christmas week in accordance with an agreement. The Mother sent a text message to the Father twice in that week including on Christmas Day asking if he wanted to speak to the children, but there was no reply.
35. On 15 January 2015, the parties attended mediation.
36. On 16 January 2015, the Father told the Mother that he wanted to change X’s daycare centre and Y's School. He told the Mother that he would soon be starting to do some work in the city and would not be able to work a full day in the city and get back in time to pick up the children.
37. On 19 January 2015, the Father, without informing the Mother, enrolled the child X in a new daycare centre called (omitted) Day Care Centre at (omitted). The child was enrolled every day between Monday and Friday with a start date to be 2 February 2015. Both parties were stated to be the parents of the child. The Father was stated to work full time each day between Monday and Friday. The Mother was stated to work full time on Monday, Tuesday, Wednesday and Thursday. As to fees/administration and news/general communications to be received by email, only the Father was stated to receive such emails. At the bottom of page 2 it was hand written, “As of 25/2 Ms Norton is not authorised to collect”. The emergency contacts in the event that both parents were unavailable were stated to be the Father’s parents. The application was signed only by the Father.
38. On 21 January 2015, the Father emailed the Mother stating, inter-alia, that he wanted to further discuss the issue of school and childcare arrangements. He stated that the parties needed to find alternatives that were compatible with both of their commuting and work schedules. He stated that he been looking at different locations for daycare and schools. He stated that he would prefer to make the changes quickly, as he wanted to minimise disruption to Y after term had started. The next day the Mother replied to the Father stating, inter-alia, that whilst she took on board his concerns, she believed it was in the children’s best interests to maintain as much continuity as possible at this time and that their current school and daycare arrangements provided a stable environment where they were both settled. She stated that she was prepared to discuss options at mediation which they had proposed for three weeks time. She stated that if he would like to discuss sooner, she would be happy for them to arrange an earlier session with the mediator.
39. The Mother re-enrolled the child X at the daycare centre at Kids Academy (omitted) on or about 22 January 2015. In the application form the Mother was named as the primary parent/guardian. The Father’s name was not mentioned. The emergency contacts were stated to be the children’s step grandmother and two friends of the Mother.
40. Each weekday when the child X was in the Father’s care after
    2 February 2015 (up to 16 March 2015), the child attended (omitted) Day Care Centre at (omitted).
41. The children were collected by the Father on Friday 6 February 2015. Following exchanges of emails between the parties the children were dropped off at the Mother’s residence on 13 February 2015.
42. On 10 February 2015, the parties attended a further mediation regarding parenting issues. At that mediation the mediator suggested to the parties that they spend the next fortnight trying to resolve the schooling issue between themselves via email. During that period, the parties exchanged emails without reaching a resolution.
43. On 11 February 2015, the Father emailed the Mother stating that he had been looking at schools, day care and housing in the area centred around her office.
44. On 19 February 2015, the Father emailed the Mother stating, inter-alia, that he would like to make certain changes to the children’s schooling and daycare centre.
45. On Friday 20 February 2015, the Mother sent an email to the Father seeking assurances from him that he would return the children to her on Friday 27 February, that he would take no steps to enrol Y in any other school until that issue had been resolved by mediation, negotiation or otherwise, and that he would not move the children to a new residence without giving her advance notice of the new address. The Mother stated that if the Father was prepared to provide these assurances, she would deliver the children to him at the (omitted) residence at 6:30 PM. The Father immediately replied that he agreed. On 20 February 2015, the Mother attended the (omitted) residence and delivered the children to the Father. Thereafter, the children remained in the Father’s care until this Court ordered that the children be returned to the Mother on 16 March 2015.
46. On 24 February 2015, the Father’s Father made a statutory declaration stating that he and his wife Ms O were the joint owners of (omitted) which was their primary residence. It stated that their granddaughter Y would be resident at their property from 15 March 2015.
47. On 24 February 2015, the Mother was informed by the Principal of (omitted) Public School that the Father had come to the school that day and requested to transfer Y to (omitted) Public School. On 25 February 2015, the Mother was informed by the Principal of (omitted) Public School that the Father was proposing to enrol Y in that school next week.
48. On 25 February 2015, the Father had declared he was no longer bound by the above agreement of 20 February 2015; in an email communication of that date to the Mother he stated that in light of her decision to withdraw from mediation and in the absence of any current parenting agreement between them, he could no longer agree to the prior agreement as he did not believe that they were in the best interests of the children. Thereafter, for about 3 weeks, the Father retained the children and the Mother did not see them. He enrolled the child Y at (omitted) School without the Mother’s agreement. He caused his lawyer to send to the Mother a letter seeking assurances that she would not disrupt the school transition while they continued to resolve their differences of opinion. On 1 March 2015, the children and the Father moved into his parent’s unit in (omitted). The Mother engaged lawyers seeking to have the children returned to her.
49. On 1 March 2015, the Father emailed the Mother asking her if she would like to come with him to drop Y off to her first day at the new school the following day. The Mother replied to the Father stating that she did not consent to Y being enrolled at (omitted) Public school. She requested the Father to return the children to her at 7 PM the next day at her address. A further request on 2 March 2015, was sent by the Mother to the Father. The Mother stated that she was distressed by the Father’s actions.
50. On 4 March 2015, Ms J of the Department of Education and Communities sent an email to Ms S stating, inter-alia,
    • “The Father has told me: He has the children during the week and the Mother has them every second Friday and weekend.” The Mother had previously written to that department after the Father had retained the children without her agreement.
51. On 4 March 2015, the Mother spoke to the Father by telephone after she had just spoken with the children. The Father stated that he wanted to talk to the Mother briefly. He stated that he wanted to get together with the Mother to talk. The Mother stated to the Father that she did not want to meet him in person because she found him threatening and intimidating. The Father stated that they could meet in a public place such as a cafe in (omitted). The Father told the Mother that he had taken a lease on an apartment in (omitted). He told her that he wanted to be able to get to the point where he could give her the children for the weekend and they wouldn’t have to have an argument about it next week.
52. The Mother replied,
    • “For the weekend? You seem to have very rigid ideas about what you think is acceptable.”
53. The Father replied,
    • “I’m holding out an olive branch here.”
54. In the Father’s affidavit filed 13 March 2015, he states that he should not have changed Y’s school unilaterally. He stated, inter-alia,
    • “I was concerned the time was passing without a resolution nor any further attempt to co-operate in mediation. With the school term commenced I wanted to give Y the best opportunity of settling in with a new cohort at the beginning of the year while the rest of the children in her class were still settling. Y is in year 1. I did all I could to keep Ms Norton informed. I invited her to accompany Y to the new school and to play an active role in helping Y transition to the new school.”
55. As stated above, this Court on 16 March 2015, made Interim Orders by consent, inter alia,
    • that the children be returned to the Mother at
      6:30 PM;
    • that they live with the Mother;
    • that the Mother have sole parental responsibility for them;
    • and that the Father spend time and communicate with the children on a graduated basis-commencing 27 March to 29 March
    • each alternate week thereafter from Saturday, 9 AM to Monday before school;
    • 2 weeks after the fourth period, 22 May 2015, and each alternate week thereafter commencing Saturday, 9 AM to commencement of school Wednesday.
    • To give effect to these Orders, the Father was required to collect the children from the Applicant’s residence and the Applicant was to collect the children from the Respondent’s residence at 9 AM, except during school term when the children will be collected from school/daycare as the case may be.
56. In accordance with the Orders, the children were duly returned to the Mother on 16 March 2015.
57. The Mother re-enrolled the child X with the Kids Academy (omitted) on 19 May 2015. The Mother was stated to be the parent/legal guardian of the child. The Father was stated to be a parent and the Father of the child. Contact details for each parent was given. The emergency contact persons were stated to be the children’s step grandmother and family friends of the Mother.
58. On 23 June 2015, the parties attended a Child Dispute Conference with the Court. The Mother proposed that the current interim arrangements continue. The Father proposed that the children live in a shared care equal time arrangement. The Mother stated, that in her view the Father’s recent behaviour had been “scary” and alleged that the Father had been “controlling and unpredictable”. She alleged that during the relationship, the Father was manipulative and would emotionally blackmail her. The Father stated, that he attended counselling and alleged that the Mother had been emotionally and financially abusive towards him during their relationship. Both parties described that their communication currently was poor and there was conflict between them. The Father stated, that he had told the children about the facts of the Consent Orders (on 16 March 2015) so that they understood what was happening. The Family Consultant, by way of future directions, stated, inter-alia, that an Independent Children’s Lawyer be appointed and that a Family Report may assist the Court.
59. In the Mother’s affidavit sworn 10 July 2015, she states that in the last week she has received more frequent communication from the children while they were in the care of the Father.
60. After the Interim Consent Orders on 16 March 2015, the parties often communicated through their respective solicitors in relation to possible variation of the Orders, including in April, May, June (on 17 June 2015, the Father’s solicitors referred to a possible Contravention Application against the Mother) 2015. There have been email communications between the parties since the Interim Consent Orders. Whilst some communications have been cordial on their face, other communications have been accusatory, for example, an email on
    26 June 2015 from the Father to the Mother stating, “Please do not deny me the opportunity to collect my daughter from school at the start of her holiday as set out in the Orders.”
61. The Father works as a self-employed (occupation omitted). He works from home or from a serviced office space nearby in (omitted). He regularly needs to meet with clients and suppliers in their city based office. He does this about 4 to 5 times per week during normal business hours. It is very difficult for the Father to arrange his work schedule to fit in with his clients, unless he is able to travel into the city easily. The Father is now reliant on his sole income to pay his living expenses, meet the children’s expenses, including child-support payments, pay matrimonial debts and his legal costs. The Father believes that the Interim Orders of 16 March 2015, impose significant restrictions on his ability to commit to regular office hours to his clients due to the significant amount of travel time to drop off and collect the children.
62. The Father has been in a relationship with Ms V, since January 2015. She is aged 35 years. According to the Father, it is not a serious relationship but a committed relationship. She has become involved with the children and they have accepted her as his girlfriend.
63. In the Father’s affidavit filed 10 July 2015 he states, that the Mother strongly insisted on having sole parental responsibility for the children for the time being. He states, “I agreed to this arrangement in the interim Orders.”
64. The Father confirms that he currently collects the children from the Mother’s home in (omitted) at 9 AM on Saturdays. He sets out in his Affidavit the various weekend activities that he participates in with the children. He states that on Mondays and Tuesdays he leaves home at
    2 PM in Order to collect Y from school in (omitted) at
    3:15 PM. He returns home to (omitted) by about 4:30 PM.
65. In the Father’s above Affidavit, he makes certain allegations in relation to the Mother’s behaviour since the Interim Consent Orders made on 16 March 2015. It is evident from these allegations that there continues to be significant hostility between the parties and cooperation between them in relation to the children is far from optimal. Again, it is notable that there has been substantial communication between the parties since that time only through their respective legal representatives.

DISCUSSION

66. In Goode and Goode (2006) FLC 93-286 the Full Court referred to the following statement made in Cowling v Cowling [1998] FamCA 19; (1998) FLC 92-801:
    • 18. The Family Law Act does not draw any distinction between the principles to be applied in determining residence in interim and final proceedings. The essential difference between them is one of procedure. Interlocutory proceedings do not determine the long term rights and obligations of the parties and their children. The issue for determination at an Interim Hearing involves a consideration of what Orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at Interim Hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties. Accordingly, in determining what Orders should be made, the Court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties' respective proposals for the future. In some cases, it may also be necessary to consider child protection issues.
67. In Goode v Goode, the Full Court said:
    • 68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting Orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
68. In Marvel & Marvel (No. 2) [2010] FamCAFC 101 the Full Court (Faulks DCJ, Boland and Stevenson JJ) stated:
    • 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 paragraph 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.
69. The relevant principles in relation to parenting and interim proceedings have been set out in Goode v Goode (2006) FLC 93-286. Recently in Banks & Banks [2015] FamCAFC 36 (12 March 2015), the Full Court (Thackray Murphy & Kent JJ) stated:
    • 23. Given the appeal will be allowed on the basis of a miscarriage in the conduct of the hearing below, it will be instructive to set out what the Full Court said in Goode v Goode (2006) FLC 93-286 at 80,903 concerning the way in which an interim parenting application should be determined:
    • 81. In making interim decisions the Court will still be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
    • 82. In an interim case that would involve the following:
      • a) identifying the competing proposals of the parties;
      • b) identifying the issues in dispute in the Interim Hearing;
      • c) identifying any agreed or uncontested relevant facts;
      • d) considering the matters in section 60 CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
      • e) deciding whether the presumption in section 61 DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
      • f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
      • g) if the presumption applies and is not rebutted, considering making an Order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60 CC, or impracticable;
      • h) if equal time is found not to be in the child’s best interest, considering making an Order that the child spend substantial and significant time as defined in section 65 DAA (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 60 CC, or impracticable;
      • i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, in making such Orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60 CC;
      • j) if the presumption is not applied or is rebutted, then making such Order as it is in the best interests of the child, as a result of consideration of one or more of the matters in section 60 CC; and
      • k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it all, even if neither has sorted, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
    • 24. Subject to what has since been said in SCVG & KLD (2014) FLC 93-582, we adopt this citation from Goode. We note only that it is the making of an Order for equal shared parental responsibility that triggers the requirement to consider making Orders for equal time or substantial and significant time.”
70. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
    • (1) The objects of this Part 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.
    • (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
      • (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
      • (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
      • (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
      • (d) parents should agree about the future parenting of their children; and
      • (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
71. Section 60CA provides that:
    • In deciding whether to make a particular parenting Order, the Court is to regard the best interests of the child as the paramount consideration.
72. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
73. Section 61DA of the Act provides:
    • That when making a parenting Order, 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.
74. The presumption does not apply where:
    • a) There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
    • b) In interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order [s 61DA(3)]; and
    • c) If the Court is satisfied that an Order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
75. If the presumption in section 61DA is to apply and the Court makes an Order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
76. As set out above, section 61DA(3) provides that when the Court is making an Interim Order, the 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 applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order.
77. At this interim stage, the Court considers that it would not be appropriate in the circumstances for the presumption of equal shared parental responsibility to be applied. The evidence indicates that the Father presently lacks an ability to confer and act co-operatively in an open fashion with the Mother in relation to major long term parenting issues. The Court notes the Father’s unilateral conduct in enrolling and moving the children to the new pre-school and primary school from their previous well-established schools. The Father’s enrolment of the child X in the new pre-school on or about 19 January 2015, without disclosing that action to the Mother (in the face of their parenting plan and whilst continuing to negotiate with the Mother) was less than frank. The Father’s action in retaining the children in his care from on or about 20 February 2015 to 16 March 2015, including his reneging on the agreement with the Mother on 20 February 2015, also displayed, to say the least, an inability to confer and act co-operatively, in an open manner, with the Mother.
78. The Father’s statements to Ms J of the Department of Education and Communities prior to 4 March 2015, that he had care of the children during the week and the Mother had care of the children every second Friday and weekend were also less than frank.
79. The Father’s unwillingness to allow the Mother to see or speak with the children during the first week of December 2014 was, in the circumstances, less than co-operative.
80. The Father’s counsel submitted, inter-alia, that the Father was remorseful in relation to his unilateral conduct. The Father’s Affidavit filed 13 March 2015, paragraph 10, states that the Father realises that he should not have changed Y’s school unilaterally. He states, inter-alia, that he did all that he could to keep the Mother informed. The Father’s counsel also points to the agreements reached between the parties on 17 July 2015, with the assistance of the legal representatives for the parties, in relation to certain parenting issues, being indicative, it is submitted, of cooperation between the parties. Nevertheless, the evidence at this interim stage does indicate a disturbing pattern of secretive and unilateral conduct by the Father in relation to major long term parental issues in relation to the children.
81. The Court also notes, that the parties’ communication between each other is poor and that there is conflict and hostility between them. There is evidence that the Mother is fearful and intimidated by the Father. By inference from the Father’s conduct, set out above, and the Mother’s reactions thereto, there presently exists a serious lack of trust between the parties. At this interim stage, these matters will militate against the parties being able to act co-operatively in relation to major long term parenting issues and create a real risk of further and increased conflict between them with consequential detrimental effects upon the children.
82. The Court will now consider resolution of the Father’s proposal for further “time with” Orders, by reference to the children’s’ best interest considerations in section 60 CC of the Act.

The Primary Considerations: s.60CC(2)

83. The primary considerations are:
    • a) The benefit to the child of having a meaningful relationship with both of the child's parents; and
    • b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. This consideration attracts greater weight of the two.

Section 60CC(2)(a) – “meaningful” relationship

84. The children presently enjoy a meaningful relationship with both parties. The Court is of the view that there is a real risk that the children’s meaningful relationships with the parties might be jeopardised if the Father’s proposal for extra time with the children is made at this interim stage.
85. The Court refers to the evidence of the Father’s unilateral and other conduct discussed above in relation to section 61 DA (3). Noting the parties’ poor communication and continued conflict, hostility and lack of trust, the Court is of the view that if it acceded to the Father’s proposal, there is a real risk of increased parental conflict occurring by reason of the increased contact between the parents that would likely have to occur, such increased contact involving the usual weekday and other issues relating to the care and maintenance of children. (In this context the Court has noted the Father’s submission that under his proposal, the Saturday morning changeover involving personal contact between the parties, would be removed).
86. Presently, under the Interim Orders of 16 March 2015, the children spend time with the Father for some 4 nights each fortnight. Under the Father’s proposed Order for extra time, the children would spend time with the Father for 5 nights each fortnight, being a regime approaching an equal shared care arrangement. Again, in the circumstances outlined above, the Court is not persuaded that there presently exists between the parties, an appropriate level of communication, cooperation and trust to enable the Father’s proposed extended “time with” regime to operate productively in the best interests of the children.
87. The Court notes, that the current “time with” Interim Orders, spanning from 9 AM Saturday to Wednesday morning in each fortnight, some 4 nights per fortnight, enables the Father to spend both weekend leisure time with the children and also be involved in their weekday school routines, such time constituting substantial and significant time under the Act.

Section 60CC(2)(b) – need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The Additional Considerations: s.60CC(3)

88. The Court has had regard to each of the additional considerations set out in section 60CC(3) of the Act. The relevant considerations are as follows:
    • a) Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views;
89. The children are aged almost 7 years and 4 years. No significant weight can be attached to their 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);
90. The children enjoy a close relationship with each parent. The children enjoy a warm relationship with the Mother’s Stepmother and the Father’s parents. These relationships can be maintained through the continuation of the Interim Orders of the Court of 16 March 2015.

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;

91. This consideration is not relevant.
    • 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;
92. Prior to the separation of the parties in November 2014, both parties were significantly involved in the lives of the children on a weekly basis, whilst noting their respective work commitments and travels overseas that necessitated absences from the children. Following the separation, the parties sought to carry out an equal shared parenting arrangement, noting the Father’s withholding of the children from the Mother in the first week of December 2014, and then his withholding the children from about 20 February 2015 until 16 March 2015. Since 16 March 2015 to date, pursuant to the Consent Orders of that date, the children have been living with the Mother and spending time with the Father for some 4 nights out of 14 each fortnight.
93. In the Father’s affidavit of 10 July 2015, he refers to his concerns in relation to the children’s behaviour, such as being less disciplined, more emotional, and a level of involvement of Y in the parenting dispute between the parties. The Father suggests in that affidavit that the Interim Consent Orders of 16 March 2015, specifically the “time with” Orders, have contributed to these alleged changes in the children’s behaviour and have negatively impacted upon his relationship with the children.
94. In circumstances where the children have been exposed to the recent conflicts between the parties, school upheavals and returns, statements made by the Father to the children that the Mother no longer loves the Father, and the Father explaining to them the facts of the Interim Consent Orders of 16 March 2015 (“so that they understood what was happening”), the Court is not persuaded at this interim stage that the reduced time that the children have been spending with the Father since the Interim Consent Orders of the 16 March 2015, fully or adequately explains these concerns of the Father. The Court is of the view that these are matters can be properly dealt with by a detailed Family Report pending a Final Hearing.
95. The Court refers to its discussion above under the primary consideration factor “meaningful relationship”. Again, the Court is concerned at this interim stage, if the Father’s proposal for extra time with the children is acceded to, that there is a real risk of increased parental conflict with consequential deleterious effects upon the children. The existing Interim Consent “time with” Orders of 16 March 2015, still represent substantial and significant time that the children will spend with the Father. The Court also refers to the above agreement reached between the parties, with the assistance of their legal representatives, on 17 July 2015, relating, inter-alia, to increased telephone time by the Father with the children and an agreement that the Father shall not be obliged to have X attend preschool on weekdays when he is in the Father’s care.
    • e) The practical difficulty and expense of a child spending time with and communicating with a 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;
96. This consideration is not relevant.
    • 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
97. Both parties are attentive to the children’s intellectual and physical needs when they are in their care. It is clear that the children are loved by both parents. The children enjoy warm relationships with extended family.
    • 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;
98. This consideration is not relevant.

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;

99. This consideration is not relevant.
    • i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
100. Prior to separation, both parents appear to have demonstrated a positive attitude to the children and to the responsibilities of parenthood. However, the Court refers to the Father’s unilateral and other conduct that has been discussed above by the Court under s.61DA(3) and under the primary consideration heading “meaningful relationship”; this conduct did not demonstrate an appropriate attitude to the children nor to the responsibilities of parenthood.
     • j) Any family violence involving the child or a member of the child's family;
101. This consideration is not relevant.
     • 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 evidence admitted in proceedings for the Order; any findings made by the Court in, or in proceedings for, the Order; any other relevant matter
102. This consideration is not relevant.
     • 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;
103. The view of the Court is that the Mother’s proposals that the Interim Consent Orders of 16 March 2015 continue, as against the Father’s proposals, would be least likely to lead to the institution of further proceedings in relation to the children. Again, the Court refers to its discussion above under s.61DA and under the primary consideration heading “meaningful relationship”; the Court is of the view that an Order extending the children’s time with the Father as sought by the Father, will create a real risk of increased conflict between the parties, and the prospect of further proceedings in relation to the children with potential deleterious effects upon them.
     • m) Any other fact or circumstance that the Court thinks is relevant;
104. The Court notes, that following the parties’ separation in November 2014 and leading up to the return of the children to the Mother on
     16 March 2015, the children were significantly exposed to the conflict between the parties and underwent significant upheaval, albeit relatively short lived, in their schooling arrangements. The Court notes the ages of the children and their need for stability in their living and care arrangements. Since 16 March 2015 to date, the children have experienced some stability and certainty in their care arrangements; whilst this is not a particularly lengthy period, the Court gives some weight to the benefit to the children of continuing these arrangements.

Summary

105. The Court is of the view that at this interim stage it is not appropriate in the circumstances that the presumption of equal shared parental responsibility apply. The Mother should continue to have sole parental responsibility for the children. Further, it is not in the best interests of the children that the Father’s proposal for further time with the children be acceded to. It is in the best interests of the children that the existing Interim Consent Order of 16 March 2015, that the children spend time with the Father in each alternate week commencing Saturday 9 AM to commencement of school Wednesday continue and not be extended as sought by the Father.
106. Orders will be made accordingly.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate:

Date:12 August 2015