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Langer & Franke [2020] FCCA 1852 (15 July 2020)

Last Updated: 18 August 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

LANGER & FRANKE
[2020] FCCA 1852


Catchwords:
FAMILY LAW – Interim proceedings – parenting – whether father is a an unacceptable risk to child – whether risk can be mitigated by orders – where presumption of equal shared parental responsibility does not apply – where parties have consented for numerous orders to be made – where orders can mitigate risk to child – overnight time with father ordered.


Legislation:

Cases cited:
A & A & The Child Representative [1998] FamCA 25; (1998) 22 FamLR 756
Goode & Goode (2006) FLC 93-286
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
Grella & Jamieson [2017] FamCAFC 21


Applicant:
MS LANGER

Respondent:
MR FRANKE

File Number:
SYC 3648 of 2018

Judgment of:
Judge Morley

Hearing date:
12 August 2019

Date of Last Submission:
12 August 2019

Delivered at:
Sydney

Delivered on:
15 July 2020


REPRESENTATION

Solicitors for the Applicant:
Ms Siu of As Family Lawyers

Counsel for the Respondent:
Ms Clifford

Solicitors for the Respondent:
Blanchfield Nicholls

Solicitors for the Independent Children's Lawyer:
Mr Samuel of Brian Samuel & Associates


ORDERS

THE COURT ORDERS ON A FINAL BASIS:

(1) That the child X born in 2012 (“X”) live with her mother.

PENDING FURTHER ORDERS, THE COURT ORDERS:

(2) That X spend time with her father as follows:

(a) For a period of 4 months from these orders, each alternate weekend from 9.00 AM on Saturday until 5.00 PM on Sunday, the first occasion to commence on the Saturday second after the making of these orders;

(b) Following the expiration of 4 months from these order, each alternate weekend from 4.00 PM on Friday until 5.00 PM on Sunday;

(c) Each Thursday from 4.00 PM until 8.00 PM, the first such occasion to be the Thursday immediately following the making of these orders;

(d) For 3 consecutive nights in the school holidays at the end of Term 3 in 2020 separate from the time under (a) at times agreed between the parents and failing agreement from 9.00 AM on the first Tuesday of the holidays until 5.00 PM on the following Friday;

(e) For two occasions of 7 consecutive nights during January 2021 at times to be agreed between the parents, with such occasions to be separated by at least 7 consecutive nights;

(f) The father’s time with X under (b) and (c) is suspended for the whole of January 2021;

(g) From the school holidays at the end of term 1 in 2021, for half of each school holiday period, at times agreed between the parents and failing agreement for the first half of school holidays that commence in an even numbered year and for the second half of school holidays that commence in an odd numbered year;

(h) The father’s time with X under (b) and (c) is suspended during all school holidays from and including the school holidays at the end of term 1 in 2021 and for (c) will recommence on the Thursday first after the end of all school holidays and for (b) will recommence on the first weekend after the end of school holidays that commenced in an even numbered year and on the second weekend after the end of school holidays that commenced in an odd numbered year;

(i) On Father’s Day from 8.45 AM until 5.00 PM should Father’s Day occur on a day when X would not otherwise spend time with her father pursuant to these orders.

(3) That the father communicate with X by telephone each Monday and Wednesday at some time between 6.45 PM and 7.15 PM, the father to initiate the call.

(4) That all changeovers at the start and end of X’s time with her father shall take place in front of Ms B’s shop at Suburb C, and in the event that the shop closes down, in front of those premises.

(5) That in the event that Mother’s Day occurs on a day when X will be spending time with her father pursuant to these orders, the father’s time will end at 8.45 AM on Mother’s Day.

(6) That without admissions, each of the parents is restrained from physically disciplining X and allowing any other person to physically discipline X.

(7) That without admissions, each of the parents is restrained from denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence or hearing of X.

(8) That without admissions, each of the parents is restrained from allowing X to remain in the presence of, or within X’s hearing of, any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household.

(9) That whilst X is in his care, the father shall provide X with nutritious food at all regular mealtimes.

(10) That the mother and the father shall keep each other advised in a timely manner with respect to all significant decisions in respect of X’s life and in particular relating to her health and medical needs and schooling.

(11) That in the event that the child suffers any injury, is hospitalised or suffers any significant illness, the parent in whose care X is at the time shall notify the other parent immediately, except in the case of an emergency where they shall do so as soon as is reasonably practicable.

(12) That the mother and the father shall each be entitled to enrol X in and take her to any extracurricular activities during any periods whilst she is in such parent’s care pursuant to these orders NOTING THAT X presently attends sports whilst in the father’s care on Saturday and swimming on Saturdays whilst in the mother’s care as well as sports during the week.

(13) That both parents shall be entitled to attend upon any school functions of X that parents normally attend.

(14) That in the event that the mother has not already done so, she is to do all things necessary and sign all documents required to authorise X’s school to forward to the father directly copies of X’s school reports.

(15) That the parties keep each other advised as to their respective residential addresses and contact details.

(16) That the father is to forthwith enrol in and complete a ‘taking responsibility’ course and an anger management course and provide evidence that he has enrolled in such courses to the mother’s legal representative and to the Independent Child’s Lawyer.

(17) That the father is to forthwith obtain a mental health assessment report form a psychiatrist of his choosing and provide a copy of such assessment to the mother and to the Independent Child’s Lawyer, with such assessment to address the following:

(a) Period of assessment of the father and details as to all appointments attended;

(b) Whether the father suffers from any mental illness;

(c) The expert’s prognosis;

(d) Any treatment recommended;

(e) The father’s capacity to care for a child and in particular whether there are any risk issues in respect to such capacity;

(f) Any other issues that the expert considers to be relevant.

(18) That the father provide to his psychiatrist referred to in the preceding order a copy of any parenting orders made by the Court as at the date of the interim hearing along with these orders and the Child Inclusive Conference memorandum dated 8 May 2019.

(19) That the parents each attend a post separation parenting course in order to improve their communication with each other.

(20) That each of MR FRANKE born in 1978 and MS LANGER born in 1977 and their servants or agents are restrained from removing or attempting to remove or causing or permitting the removal of the child X born in 2012 (a female) from the Commonwealth of Australia AND it is requested that the Australian Federal Police give effect to this Order by placing the name of the child X born in 2012 (a female) on the Family Law Watch List until further Order of the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3648 of 2018

MS LANGER

Applicant

And

MR FRANKE

Respondent


REASONS FOR JUDGMENT

  1. These reasons relate to an interim hearing in parenting proceedings under the Family Law Act 1975 (Cth) (‘the Act’) between the applicant father, Mr Franke (‘the father’), and the respondent mother, Ms Langer (‘the mother’), concerning parenting arrangements for their daughter, X, born in 2012. X was seven years and seven months of age at the time of the interim hearing and was represented by an Independent Child’s Lawyer (‘the ICL’).
  2. The parties commenced their relationship in 2005 whilst both lived in Country D. The parties moved to Australia in 2007, married in 2010, separated on 3 June 2017, and were divorced on 7 August 2018.
  3. These proceedings were commenced by an Initiating Application filed by the father on 14 December 2018. The parties had entered into final property settlement orders by consent on 22 October 2018.
  4. X was five years and five months of age when the parties separated. The father has spent regular time with X since separation, at first by agreement and after commencement of these proceedings pursuant to interim orders, but has not spent any overnight time with X since the parties separated.
  5. At the interim hearing, the father was represented by Mr Siu, solicitor advocate, the mother was represented by Ms Clifford of counsel, and Mr Samuel appeared on his own behalf as the ICL for X.
  6. The issue for determination in the interim hearing was what amount of time and upon what, if any, conditions the father would spend time with X pending the final hearing.
  7. The father sought an order that on the interim basis, the parties have equal shared parental responsibility for X. No interim order in relation to parental responsibility was sought by the mother or the ICL. The mother sought a final order that she have sole parental responsibility for X
  8. As will be detailed later in these reasons, a minute of order was presented to the Court at the interim hearing by the ICL. Both parties indicated substantial agreement with most of the orders set out in that minute with the exception, on the part of both parties, of the orders relating to the father’s time with X and the father’s telephone communication with X. That consent by both parties to most of the orders sought by the ICL includes consent to orders requiring the father to obtain a mental health assessment from a psychiatrist of his choosing and provide such assessment to the mother and the ICL. Despite the parties’ consent to those orders, I will address that issue later in these reasons.
  9. The father seeks that his time with X now progress to overnight time for two nights each alternate weekend. The mother seeks that the father’s time with X remain as day time only and that it be supervised by a commercial supervision agency for a period of no less than two months from the date of orders, at the father’s cost. The ICL proposes that the father’s time be day time only but without any supervision.
  10. The mother asserts that if the father’s time with X is not supervised for a period of at least two months after the making of orders, there is a risk to X. She also asserts that overnight time is inappropriate. Both those assertion are based on her allegations that the father:
    1. Abused X by inappropriate physical discipline when she was a baby;
    2. Exposed X to family violence perpetrated by the father against the mother;
    1. Has anger problems that result in outbursts that are harmful for X to be exposed to, or result in physical abuse to X; and
    1. Suffers from mental health issues, specifically paranoia and suicidal ideation.
  11. The father asserts that neither he nor the mother present any risk to X.
  12. The mother did not seek any specific interim order relating to changeover between the parties, but indicated during the interim hearing her acceptance of the changeover order proposed by the ICL.
  13. The ICL has sought the following orders in relation to the matters in issue:
    1. That X spends time with her father during school term each alternate weekend from 9.45AM to 6.30PM on Saturday and from 9.45AM until 5.00PM on Sunday and at such other dates and times and for such other periods as are agreed by the parties in writing;
    2. That X spends time with her father during “the short school holiday periods” for the second week of each school holiday period from 9.45AM until 6.30PM each day, commencing on the second Saturday of each such period and ending on the following Friday, and at such other dates and times and for such other periods as are agreed to by the parties in writing;
    1. That X spends time with her father during the “summer school holidays” by agreement between the parties, and in the absence of such agreement, the parties shall attend a mediation conference organised by the ICL through Legal Aid NSW, provided that the parents provide the ICL with reasonable notice of any such disagreement;
    1. That all changeovers take place at a public venue as agreed to by the parties in writing and, in the absence of such agreement, in the front of Ms B’s shop in Suburb C.
  14. Both the mother and the father sought an interim and a final order that X live with her mother. I asked each of the parties and the ICL if there was consent to an order being made on a final basis that X live with her mother to which each of the parties and the ICL signified consent. I will make a final order for X to live with her mother.
  15. The ICL sought a number of orders to which each of the parties advised they would consent:
    1. That all changeovers take place at the public venue as agreed to by the parties in writing and, in the absence of such agreement, in the front of Ms B’s Shop in Suburb C;
    2. That X spend time with her father on Father’s Day from 8.45AM until 5.00PM in the event that she is not otherwise spending time with him on that day;
    1. That any time the father would spend with X on Mother’s Day be suspended on Mother’s Day;
    1. That without admissions, each of the parties be restrained from the following:
      1. Exposing X to violence, including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed to X, the mother, the father, or any other member of either party’s household;
      2. Physically disciplining X;
      3. Denigrating the other parent or members of the other parent’s family in the presence or hearing of X and requiring that each parent do all acts and things reasonably necessary to prevent any other person doing so;
      4. Discussing the proceedings or any issue arising out of the proceedings with X or permitting any third party to do so;
      5. Making critical or derogatory remarks on social media, such as Facebook or Twitter, in relation to the other parent or referring in any way to the proceedings;
      6. Being under the influence of alcohol in the presence of X or whilst X is in his or her care;
      7. Using, ingesting or administering to himself or herself any illicit or non-prescribed drugs (other than over-the-counter medication); and
      8. Bringing X into contact with any person under the influence of illicit drugs or alcohol in excess;
    2. That the parents keep each other advised in a timely manner in respect of all significant decisions in respect of X’s life and, in particular, relating to her health and medical needs and schooling;
    3. In the event that X suffers any injury, is hospitalised or suffers any significant illness, the parent in whose care X is at the time shall notify the other parent immediately except in the case of an emergency, where they shall do so as soon as is reasonably practicable;
    4. That the parents shall each be entitled to enrol X in and take X to any extracurricular activities during any period whilst X is in such parent’s care pursuant to orders, noting that X presently attends sports whilst in the father’s care on Saturday and swimming on Saturdays whilst in the mother’s care, as well as sports during the week;
    5. That both parents be entitled to attend upon any school functions of X that parents normally attend;
    6. In the event that the mother has not already done so, she is to do all things necessary and sign all documents required to authorise X’s school to forward to the father directly copies of X’s school reports;
    7. That the parties keep each other advised as to their respective residential address and contact details;
    8. That X remain on the airport watchlist until further order of the Court;
    1. That the father forthwith enrol in and complete a ‘taking responsibility course’ and an ‘anger management course’ and provide evidence that he has enrolled in such courses to the mother’s legal representative and to the ICL;
    1. That the father forthwith obtain a mental health assessment report from a psychiatrist of his choosing and provide a copy of such assessment to the mother and to the ICL, such assessment to address the following:
      1. The period of assessment with the father and details as to all appointments attended;
      2. Whether the father suffers from any mental illness;
      3. The expert’s prognosis;
      4. Any treatment recommended;
      5. The father’s capacity to care for X and in particular whether there are any risk issues in respect of such capacity; and
      6. Any other issues that the expert considers to be relevant;
    2. That the father provide to his psychiatrist referred to in order 13 a copy of any parenting orders made by the Court as at the date of the interim hearing along with the Child Inclusive Conference memorandum dated 8 May 2019; and
    3. That the parents each attend a ‘post-separation parenting course’ in order to improve their communication with each other.

The proceedings up to the interim hearing

  1. The father filed his Initiating Application commencing these proceedings on 14 December 2018, and the mother filed her response on 19 February 2019.
  2. The matter came before Judge Harper (as his Honour then was) for its first return date on 27 February 2019. His Honour made the following orders:
    1. That pursuant to section 11F of the Act the parties attend a Child Inclusive Conference;
    2. That the father spend time with X each alternate weekend from 9.45AM until 6.30PM on Saturday and from 9.45AM until 5.00PM on Sunday, commencing on 9 and 10 March 2019;
    1. Restrained the parties from discussing the proceedings with X except when it is necessary for the purposes of the Child Inclusive Conference; and
    1. The matter was adjourned for further mention to 13 May 2019.
  3. The parties attended the Child Inclusive Conference on 8 May 2019, were interviewed separately, and X was interviewed by the Family Consultant.
  4. The matter was again mentioned before the Court on 13 May 2019, at which time I made an order under section 68L of the Act for an ICL to represent the interests of X in the proceedings, an order under section 62G of the Act for the preparation of a Family Report, and adjourned the matter for an interim hearing on 12 August 2019.
  5. The interim hearing proceeded on 12 August 2019.

The evidence

  1. The father was born in Country E and was 41 years of age at interim hearing. The mother was born in Country D and was 42 years of age at interim hearing. The mother became an Australian citizen in 2011.
  2. The parties met in 2005 whilst the mother was living in her country of birth and the father was working in Country D. During that time they formed a cohabitive relationship. They travelled to Australia in 2007 to enable the father to take up an employment opportunity in Perth. The mother says that the parties separated for a period of time while they were living in Perth and that she returned to live in Country D for five weeks. The parties reconciled their relationship, and the mother returned to Australia in 2007, but this time to Sydney, where the father had moved, and resumed their cohabitation.
  3. X was born in 2012. Neither party has any other child.
  4. The parties separated on 3 June 2017 and divorced on 7 August 2018. At the time of their separation the father left the home the parties had purchased, a unit in Suburb C in inner-city Sydney. The mother and X remained occupying the property. Pursuant to the property settlement orders made by consent between the parties in October 2018, the father transferred his interest in the Suburb C unit to the mother, and she is now the sole owner as between the parties. The mother and X continue to live in the Suburb C unit.
  5. The father lives in a two-bedroom leased flat in Suburb F. One bedroom is set up for use by X if she is in the father’s care overnight. He is employed as a professional and works for a company based at Suburb G in Sydney. He is employed full-time and works Monday to Friday, 9:00AM until 5:00PM. He is in good health.
  6. The mother lives in the two-bedroom flat owned by her at Suburb C. X has her own bedroom. The mother is employed on a casual basis as a tradesperson for both Employer H and Employer J, and she is also self-employed as a tradesperson. She volunteers at X’s school on Fridays. She is in good health.
  7. The mother employs a nanny – currently Ms K, and formerly Ms L – to assist her with the care of X while the mother is at work.
  8. Neither parent has re-partnered.
  9. The father asserts in his evidence that from the time of X’s birth, he provided care to her on a day-to-day basis equally with the mother, the common pattern during X’s infancy being for the mother to care for her during the day while the father was at work and for the father to care for her in the afternoon and evening while the mother was at work. The mother was at that time and continues to be a self-employed tradesperson who works for Employer H (amongst other businesses), with her hours of work corresponding with evenings and her employer’s demands. The father asserts that prior to the parties’ separation in June 2015, he did “the greater share of the parenting[1] from the time X started preschool in 2015 until early 2017.
  10. The mother denies that the father provided equal care for X, but admits that they did share her care on an unequal basis. The mother asserts that from early on she wanted to hire a nanny to assist with X’s care, but that the father refused. They established a regime of the mother taking X to work with her during the day and the father collecting X from the mother around the middle of the day and caring for X until the mother finished work. The mother says that this was in consequence of the father’s employment with Employer M, where he was able to leave work early and work from home a lot of the time. Once X started attending preschool in 2015, she was taken to preschool by her mother and collected from preschool by her father, who, the mother says, “supervised her until I returned home and gave her dinner that I had prepared”.
  11. X commenced her attendance at N Preschool around her third birthday in 2015, and during her first year, she attended three days a week from 9.30AM until 1.00PM. During her second year, she increased her attendance to four days a week from 9.30AM until 3.00PM.
  12. Around the time of the parties’ separation and for a couple of months following separation, the father attended upon Ms O, a psychologist, at the P Centre in Suburb Q. The father was referred by his general practitioner, Dr R. The father was provided by his general practitioner with a ‘GP mental healthcare plan’ in relation to the referral. The father was treated by Ms O by therapy sessions for low mood and anxiety. All of the medical records for the father produced on subpoena by Ms O make it patently obvious that the father’s low mood and anxiety was related to the breakdown of his marital relationship and that there was a steady improvement in his presentation between his first consultation on 1 June 2017 (two days prior to separation) and his last appointment on 7 August 2017. I will say more about this later in these reasons in relation to the issue raised by the mother and the ICL in relation to the father’s mental health.
  13. It seems on the evidence, though it is not entirely clear on the part of either party, that from the parties’ separation on 3 June 2017 until about October 2017, the father mainly spent time with X by coming to the former matrimonial home at Suburb C. The mother complains that the father “frequently attended the former matrimonial home to check on us”, asserting that such occurred up to three times per day, and that the father admitted himself into the home without prior notice to the mother, having retained a key to the property. For his part, the father says in paragraph 47 of his affidavit:
  14. The mother’s evidence combined with the father’s use of the phrase “I mostly coordinated with [the mother] before attending the home” indicates that there were occasions when the father would attend the matrimonial home after separation without any prior notice to the mother and admit himself to the home without the leave of, or necessarily the knowledge, of the mother. This no doubt caused the mother considerable stress and anxiety, and if the mother’s assertions in relation to family violence perpetrated against her by the father are true, then her stress and anxiety on these occasions would have been all the greater.
  15. From about October 2017, the parties established a pattern of the father spending time with X:
    1. Each Thursday from 3.30PM until 5.30PM;
    2. Each Saturday from 9.45AM until 6PM; and
    1. Each Sunday from 9.45AM until 6PM (though the mother asserts that the Sunday times concluded at 5.00PM).
  16. The father asserts that he attended “appointments and activities that X had”, but the mother asserts that his attendance at these appointments was an upset to her as:
  17. The parties attended a Family Dispute Resolution mediation on 8 November 2017 at the S Family Relationship Centre. A document was prepared as a result of that mediation and entitled “Parenting Agreement”, a copy of which is annexure ‘A’ to the father’s affidavit. However, the document never became a parenting agreement within the meaning of that term in the Act as it was not signed by either party.[2] As the document is not a parenting agreement and is patently the product of Family Dispute Resolution between the parties, having been conducted by persons described on the document as “family dispute resolution practitioners”, I cannot take notice of anything in that document past the title page as they are not admissible in evidence.[3]
  18. The mother says that “in or around the beginning of 2018”, the father started spending time with X every second Saturday from 9.45AM until 6.00PM and Sunday from 9.45AM to 5.00PM and one afternoon a week after school on the afternoon that she went with her father to sports. She further asserts that on some occasions, he would have other time with X at her home in the evening while she was at work and that the nanny employed by the mother would take over from him. The mother says that these “at home” occasions ceased in about July 2018.[4]
  19. The mother changed the locks on the Suburb C home in August 2018, and the father was not able to gain entry to the property after that time.
  20. In about October 2018, the mother arranged for X to have sessions with her school counsellor to assist X to “cope with stress and her emotions” because the mother perceived that X was becoming “angrier more frequently, and her mood changed rapidly”.[5] For his part, the father complains that the mother did not tell him at any time about X having sessions with her school counsellor and that he only found out about that matter when reading the mother’s affidavit.
  21. The father has not had any overnight time with X since the parties separated.
  22. Both parties make assertions that the other party has perpetrated family violence, each denying the allegations made by the other.
  23. The mother asserts the following family violence on the part of the father:
    1. That in early 2007 when the parties were residing in Perth, the father pushed the mother and ripped a phone cord out of the wall. The father denies that the event ever occurred;
    2. That sometime in 2012, the father said to the mother, “I’m going to kill you and smash your face in.” The father denies that he ever made any statement of that nature;
    3. That on 3 December 2016, the father grabbed the mother by the arm near her elbow and pushed her aside with force, causing the mother to knock her elbow on the door and sustain a large bruise. The father denies that the incident ever occurred as described by the mother;
    4. That in early 2017 the father threatened to throw the mother out into the street on several occasions. The father denies that he ever made such threats;
    1. That on 29 May 2017 the mother became aware that the father had installed listening devices or recording devices in their home, and the mother asserts that the father admitted same to her. The mother’s assertions in this regard find some corroboration in the evidence of Mr T who, in paragraph 9 of his affidavit, asserts that in or around April or May 2017 the father said to him words to the effect of “I have installed sensors around the apartment to record the times when people enter. I will not allow [the mother] to have people in the apartment unless I am there.”
    1. That in August 2018 the father was violent to the mother in the child’s presence in that he jammed his foot in the mother’s Suburb C unit door when she was trying to shut the door. The mother managed to close the door but asserts that “the lock had been broken” and that X had run to her room to hide. During a subsequent attendance by both parents and the child at Suburb C Police Station the mother asserts that the father made repeated statements that he would not bring X back to the mother. The father did spend time with X and did return her to the mother. The father does not address this incident specifically, but in paragraph 44 of his affidavit he says that the mother “...pushed me during the argument in or about March 2018, and this is why I contacted the police.” The mother is speaking of August 2018 and the father of March 2018;
    2. That in July 2018 the father was at the mother’s residence and tried to give the mother a new health insurance card, which the mother would not accept. Thereafter the father pushed her aside and pushed the card into her letterbox. The father denies all of the incident;
    3. That “when X was still a baby, [the father] pulled hard on X’s hair in response to her grabbing hold of his hair whilst he was holding her.”[6] and “another occasion [the father] smacked X on the head in an attempt to discipline her.”[7]

The mother asserts that after these events occurred both parents attended a ‘positive parenting course’ and it was explained to the father that his style of discipline was not appropriate and was probably illegal. The father for his part says:

The father does not specifically address the mother’s allegation about pulling the child’s hair when she was a baby;

  1. That when X was a small baby the father was giving her a bath and put her face into the water. For his part the father says that he was bathing X and her nose touched the soapy foam floating on the water and that the mother then “...overreacted and screamed at me saying words to the effect of, “[You] almost killed X.”; and
  2. The mother asserts that the father denigrated and belittled her throughout their relationship and following their separation.
  1. The father asserts that the mother would often shout at him in X’s presence. He says that when the parties argued he would often attempt to retreat to the bedroom to avoid the conflict, but that the mother would follow him and keep shouting at him.
  2. The father admits that on an occasion he broke a coffee table in frustration at the mother’s shouting when he was trying to avoid an argument.
  3. It is of note that in the Child Inclusive Conference memorandum to the Court the Family Consultant records:
  4. I also note that in the Child Inclusive Conference memorandum the Family Consultant records that the mother alleged that the father perpetrated family violence against her of a nature not referred to by the mother in her evidence in any way, being:
  5. There is no evidence that there are or have at any time been any apprehended violence orders between the parties or affecting either of them.
  6. Both parties give evidence to the effect that neither party has any family in Australia, the mother’s family being mainly in Country D and the father’s in Country E. The father seeks an order that X be placed on the watchlist on an interim basis, and an order is sought by the ICL, consented to by both of the parties “That the child shall remain on the airport watchlist until further order of the Court.
  7. I have no evidence that X has been placed on the airport watchlist, the inference from the wording of the ICL’s order sought being that she may have been placed on the airport watchlist as a result of an application being forwarded to the Federal Police upon the filing of the father’s Initiating Application. However, such listings often only last until the first return date of such an application. Both parties made it clear at the hearing that they consented to a watchlist order being made and I will make such an order on an interim basis.
  8. The mother raises the issue of the father’s parenting capacity and in her evidence asserts that the father is not capable of properly looking after X, though inherently in her application she considers that after the period of supervision sought in her order he would be capable of looking after X through the daytime.
  9. In her evidence she asserts that while X is in the father’s care:
    1. He does not feed her properly;
    2. That he gave X an electronic tablet device set up so that he could contact her;
    1. That he insists that X attend sports classes when the mother asserts X does not like the classes;
    1. That he was on an occasion late collecting X from school; and
    2. That as a consequence there is no arrangement for him to collect X from school anymore.
  10. In her affidavit the mother expresses fears (not objected to on hearing) that the father will not care for X, that he will harm himself or X, and that “He may take X away without me knowing where he has gone.”
  11. The mother’s fear that the father will take X away and not return her to her mother are not grounded in any of the evidence. In that regard the mother relies on the evidence summarised above, in relation to family violence, and below in relation to her assertion of the father’s mental health issues to ground her fear that he may harm himself or X.
  12. For his part the father denies that he would ever do anything outside X’s best interests by retaining her from her mother or from failing to provide her with proper and appropriate care. He deposes that he feeds X appropriately when she is in his care and that she does not go home to her mother hungry.[9]
  13. In the Child Inclusive Conference memorandum the Family Consultant records that the father alleged that the mother “Has undiagnosed mental health problems.” There is no evidence to that effect whatsoever.
  14. The mother asserts in her evidence that the father has mental health problems. She bases those assertions on the family violence that she asserts the father perpetrated against her and on statements she asserts the father made to her at various times, such as:
    1. In late May 2017 words to the effect of, “Chinese spies are after me.
    2. In July 2017 words to the effect of, “I went to Suburb U cliff,” and “I am hearing voices.”
  15. The mother also grounds her assertion that the father has mental health issues on his engaging with the psychologist, Ms O, of P Centre, psychology practice, at about the time of and in the few months following their separation. Patently, the ICL is concerned that the father may have mental health issues that can present a risk to X as he submitted that the Court should take a cautious approach in relation to orders for the time to be spent by the father of the child “...as there is no expert evidence and so there should not be any order for overnight time but the Court should keep the status quo going.” However, the ICL does not consider there is a need for supervision of the father’s time.
  16. In her submissions on behalf of the mother at the hearing, Ms Clifford stressed the evidence presented by the mother to ground her assertion that the father suffers from mental health problems and that there should be no order for the father to spend overnight time with X until his alleged mental health issues had been thoroughly investigated. Ms Clifford referred to the documents in exhibit R2, being all of the material produced on subpoena by Ms O, psychologist.
  17. I have read and very carefully considered every word contained in the documents produced by Ms O. There is nothing therein to ground an assertion that the father suffers from a mental health condition. The whole of that material indicates that at about the time of the parties’ separation and the complete breakdown of their relationship the father, through his general practitioner, sought some therapy assistance from a suitably qualified health professional to assist him with feelings of distress, agitation, low mood and anxiety that were consequent upon those difficulties and work pressures. He attended for that therapy on a frequent basis including:
    1. 5, 15, 19 and 26 June 2017;
    2. 3, 17, and 24 July 2017; and
    1. A final session on 7 August 2017.
  18. The psychologist noted on several occasions “Nil suicidal ideation. Missing daughter.” By 26 June 2017 the psychologise was consistently noting “Mood improved. Less anxious. Appears calmer. Reports mood improving. Mood continues to improve.” In the final session notes for 7 August 2017, the psychologist writes that the father “Appeared more settled and happier. Less anxious.”
  19. I point out that in those notes Ms O on occasions misnames the mother as “X”. The context makes that plain, particularly on 3 July 2017.
  20. The exhibits relating to the correspondence between the parties’ solicitors, being exhibits A1 through to A4 inclusive, do not assist me in this interim matter.
  21. The affidavit of Mr T, relied on by the mother, is of assistance only in relation to his corroboration of statements made by the mother in her evidence to the effect that the father had installed some sort of surveillance devices in the former matrimonial home in April or May 2017, shortly before the parties’ separation.
  22. I have carefully read and considered the Child Inclusive Conference memorandum prepared by Family Consultant, Ms V. I note that in the memorandum the Family Consultant notes an agreement between the parties that the father may contact X by telephone twice per week. I also note that under the heading Drug and Alcohol Problems the Family Consultant notes “Not identified as a risk issue.”
  23. There is no evidence in either party’s affidavit in relation to drugs or alcohol use being an issue in the matter and, accordingly, both parties indicate their acceptance of orders sought by the ICL restraining the parties in relation to matters of alcohol use and use of “illicit or non-prescribed drugs”. The parties also accepted orders preventing their bringing X into contact with persons under the influence of illicit drugs or alcohol, however, there is no evidence to support the making of such injunctive orders. I note statements made by the Full Court on several occasions to the effect that the Court should not interfere in the parenting of a child by the child’s parents except to an extent necessary, with the best interests of the child as the paramount consideration.[10]
  24. The Family Consultant notes “There is a considerable amount of parental conflict between the parents” and that “The parents do not communicate during changeovers.” Helpfully, the Family Consultant indicates that she was advised that changeovers prior to the interim hearing “...occur in front of a shop near the mother’s home” which I will infer is the “Ms B’s Shop in Suburb C” referred to in the changeover order sought by the ICL, and agreed to by both the parties. The respective interim orders sought by the parties are silent in relation to changeover.
  25. The Family Consultant interviewed X and found her to be “A friendly, talkative and smart child.”
  26. I highlight, from the Family Consultant’s notes of her interview with X, the following:
    1. X referred to her father as a “kind and playful” person and said that she likes the hugs he gives her;
    2. X referred to her mother as “nice, giving and caring”;
    1. X told the consultant that:
      1. Her parents were not friends;
      2. That they argue a lot; and
      3. That she would like her parents to be friends.

As an aside, I hope that each of the parents has read the note of that, which is expressed by X in the memorandum 3 or 4 times, and are cognisant that though circumstance dictate that they may well not be able to be ‘friends’ in any way, they could appear to X to be at least friendly when interacting, for her benefit.

  1. X is noted as expressing to the Family Consultant that she would like to extend the time she spends with her father to include overnight time. X said that if she does not feel comfortable she could speak to her mother and get a hug from her father in order to feel more comfortable and settled.
  2. X said she loves both her parents.”
  1. I have read very carefully and considered the seven points made by the Family Consultant under the heading “Future Directions” in the memorandum.
  2. As already stated, I have reviewed and have considered very carefully the submissions made at the interim hearing by the ICL, by Ms Clifford of counsel on behalf of the mother, and by Mr Siu on behalf of the father. I was referred by Ms Clifford in particular to the Full Court’s decision Deiter & Deiter,[11] and in particular to [61], [79], [83] and [87] of that important decision in relation to the treatment of allegations of family violence in interim parenting matters where the evidence in relation thereto is conflicting.
  3. The father pays child support of $1,748 per month pursuant to an assessment under the child support legislation. He pays half the cost of X’s extracurricular activities pursuant to a voluntary agreement between the parties. The mother indicates that she did not receive any child support from the father until March 2018 (nine months after separation). There is inference in the father’s evidence that he provided some voluntary financial assistance prior to March 2018.
  4. In addition to the regular time spent by the father with X pursuant to the orders made on 27 February 2019, the father has spent additional time with X during some school holidays by arrangement with the mother – each day of the second week of the April 2019 school holidays from 9.45 am until 6 pm each day, and for each day of the second week of the July 2019 school holidays from 9.45 am until 6.30 pm each day, and from 3.30 pm until 6 pm on X’s birthday in 2019.

The law

  1. In parenting proceedings under the Act, the Court is required to follow the legislative pathway set down in the Act. That applies to interim hearings on parenting issues.[12]
  2. The Court must give attention to section 60B of the Act that sets out the objects of Part IV of the Act relating to children. Those objects inform the making of parenting orders.[13] That section also contains the principles behind those objects. In this matter I have considered those objects and the principles behind those objects.
  3. Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration. The child’s interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter, but the child’s interests must always be the paramount consideration.
  4. In parenting proceedings, pursuant to section 65D of the Act, the Court may, subject to the presumption of equal shared parental responsibility in section 61DA and consideration of parenting plans under section 65DAB, make such parenting order as it thinks proper.[14] The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[15]
  5. In determining what is in a child’s best interest, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC and make findings. [16]
  6. Section 61DA provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[17]
  7. The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse. The presumption, when applying, may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[18]
  8. When the Court is considering parenting matters on the interim basis the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making interim orders.
  9. If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then pursuant to section 65DAA, the Court must consider:
    1. Whether the child spending equal time with each parent would be in the best interest of the child;[19] and
    2. Whether the child spending equal time with each of the parents is reasonably practicable.[20]
If both questions are answered ‘yes’, the Court must consider making an order to provide for the child to spend equal time with each of the parents.[21]
  1. If the Court does not make an order for the child to spend equal time with each of the parents, then the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable and, if the answer to both is yes, the Court is to consider making an order to provide for the child to spend substantial and significant time with each of the parents.
  2. What is meant by substantial and significant time is set out in section 65DAA(3) of the Act and includes days that fall on weekends and holidays, days that do not fall on weekends or holidays, the child being able to be involved in occasions and events special to the parents, the parents being able to be involved in occasions and events of particular significance to the child, and the parents being able to be included in the child’s daily routine.
  3. If the Court does not make an order for the child to spend substantial and significant time with each of the child’s parents, the Court must then go on to determine what parenting orders are proper in the best interests of the child, per section 65D.
  4. As to what is ‘proper’ and how the Court’s discretion is to be exercised I note the comments of the Full Court of the Family Court of Australia in the recent decision of Grella & Jamieson:[22]
  5. There is much jurisprudence on the issue of risk in parenting proceedings. The jurisprudence may be simplified by saying that the task of the Court where risks are asserted is not necessarily to make a finding as to whether the actions and events asserted have actually happened or have definitely not happened, as such a finding is rarely open to the Court on the evidence and most particularly in interim parenting proceedings replete with contested evidence.
  6. Rather, the task of the Court is to assess whether the evidence establishes that there is a risk to the best interests of the child. If the evidence establishes that there is such a risk, briefly expressed, the Court must:
    1. Assess whether that risk is an acceptable risk or an unacceptable risk;
    2. If it is assessed that it is an unacceptable risk, assess whether or not the risk can be mitigated by appropriate orders; and
    1. Decide what orders are proper in all the circumstances in the best interests of the child.
  7. Detailed exposition of the treatment of risk in parenting matters can be found in the decision of the High Court in M & M[24] and the decisions of the Full Court of the Family Court of Australia in A & A & The Child Representative,[25] Napier & Hepburn,[26] Johnson & Page,[27] Deiter & Deiter,[28] and Eaby & Speelman.[29]
  8. Where there is contested evidence in an interim hearing the Court is not always able to make a finding, but must do what can be done on the basis of agreed facts and any contested evidence where there is sufficient corroboration on one side to enable a finding. This is to enable the Court to perform its function, and resolve any interim issues with the best interests of the child as the paramount consideration, and make whatever orders are then considered proper.
  9. In SS & AH,[30] in the context of discussing the obligations of the Court whilst conducting interim children’s proceedings where the evidence available was contradictory in nature but nonetheless raised significant welfare concerns for the children concerned, the Court observed:
  10. As noted by the Full Court of the Family Court of Australia in Eaby & Speelman,[32] this approach “enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.”[33]

Section 60CC – The Primary Considerations

  1. The primary considerations are the benefit to X of having a meaningful relationship with both of her parents and any need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[34] Subsection 2A mandates that the Court must give greater weight to the consideration of any need to protect X over the benefit to X of having a meaningful relationship with both of her parents.
  2. The mother has been X’s primary carer since the parties separated on 3 June 2015. Prior to that time there is some conflicting evidence between the parties as to the care provided by the father for X, but it is inherent in the evidence, including in the evidence of the mother, that X was in the father’s sole care for regular periods of time while the mother was engaged in her employment. I can also infer that when they were both home they both contributed to her care.
  3. X was five years and five months of age when her parents separated and she has not been cared for overnight by her father since that time. The mother refused to agree to the father spending overnight time with X and the father properly refrained from any precipitate action on his behalf to force the issue prior to the making of the interim orders on 27 February 2019.
  4. Of particular note here is the note from the Family Consultant’s interview with X in the Child Inclusive Conference memorandum to Court “X said that she loves both of her parents.
  5. Patently it is to X’s benefit to have a meaningful relationship with both of her parents.[35] At the present time it is inherent in all the evidence that she has a close and loving and meaningful relationship with her mother. X’s comments to the Family Consultant in her interview, that her father is “kind and playful”, that she likes the hugs he gives her, and that she would like to extend the time she spends with her father to include overnight time, indicate that there is a meaningful relationship between X and her father. It does indicate a close and loving relationship, though the evidence before the Court on the interim hearing does not allow an evaluation of that relationship beyond that point or, and it is not necessary in any case, a comparison of X’s meaningful relationship with each of her parents.
  6. Is there a risk to X in her father’s care such that it is unacceptable and needs to be mitigated by her time with her father being “...supervised for a period of no less than two months from the date of orders”, as sought by the mother, and to not include any overnight time, as sought by both the mother and the ICL?
  7. The mother asserts in her evidence and her submissions that the father is affected by mental health issues that require him to undergo psychiatric assessment and that, in the current circumstances, presents an unacceptable risk to X that can only be mitigated by the orders for supervision and daytime only time between father and daughter. The evidence does not support that assertion. There is certainly no diagnosis of any mental health issue affecting the father. The evidence relied upon by the mother and the ICL’s in order to ground a need for psychiatric assessment of the father, and the making of orders addressing an unacceptable risk, is not enough.
  8. The evidence presented by the mother of statements made to her by the father following separation, that caused her concern in relation to his mental health, are not such as to cause me to find that there is a risk to X in the father’s care without supervision and/or overnight in consequence of any mental health issues. The father denies having said, “Chinese spies are after me.” The father does not address in his evidence the assertion by the mother that shortly after separation he said to her words to the effect of “I went to Suburb U cliff,” and, “I am hearing voices.
  9. In effect, that evidence is part contested and part not contested. In any event I find that the evidence presented by the mother is not such as to ground a finding of risk. To the contrary, the evidence contained in the documents produced on subpoena by Ms O, psychologist, tend very much to the contrary. I note that there is no suggestion therein of concern in relation to the father’s mental health and certainly no suggestion of a diagnosis.
  10. The mother asserts a risk to X in the father’s unsupervised care and at all overnight consequent upon what she asserts is a lack of parenting capacity on the part of the father, including:
    1. His inability, failure or refusal to provide appropriate food for X; and
    2. His failure on an occasion to collect X from school on time.

I find that the evidence does not ground any risk, certainly not unacceptable risk, to X in her father’s care, unsupervised or overnight, in relation to his parenting capacity.

  1. The mother asserts a risk to X in the father’s unsupervised care and at all overnight in consequence of the family violence perpetrated by the father to both X and the mother during cohabitation and following separation. The mother asserts that the father dealt in a dangerous manner with X when she was a baby by pulling her hair hard and by smacking her on the head. Those assertions are denied by the father. The evidence is conflicting. The assertion in relation to pulling hair is not specifically dealt with by the father, but the father’s evidence is to the effect that he denies that he has ever been violent towards the child.[36] I cannot make a finding in relation to that matter on the interim basis, but I must not disregard it. No pulling of a child’s hair is lawful. No striking of a child on the head, or anywhere above the neck and shoulders, is lawful. However, the mother does not make any assertions of violence by the father to X at any time past the asserted incident.
  2. X is now eight years and five months of age (she was seven years and seven months of age at the interim hearing) and is assessed by the Family Consultant to be a “...talkative and smart child...”. X would certainly be able to report any inappropriate dealing with her by her father in the nature of inappropriate physical discipline, and has been able to do so since the parties separated. However, there is no evidence from the mother of any such incidents coming to light between separation and the interim hearing. X patently has no fear of her father, but rather has a wish to spend more time with him, including overnight time.
  3. I find that there is no risk to X in spending unsupervised time and overnight time with her father consequent upon any risk of physical violence perpetrated by the father on X. That is not to discount or ignore the conflicting evidence between the parties in relation to family violence asserted to have been perpetrated on the mother by the father, but with the evidence thereon being conflicting I cannot make a finding at the present time.
  4. In taking all of the evidence in relation to family violence into account, and in considering what parenting orders are properly to be made with the interests of X as the paramount consideration, I find that it would be appropriate to make an order restraining both parties from physically disciplining X in any way, noting that such an order is proposed by the ICL and agreed to by both parents.
  5. I find that there is no unacceptable risk to X when in her father’s unsupervised care, including overnight. What that time should be in X’s best interests I will consider later in these reasons.

Section 60CC – the additional considerations

  1. I have referred to X’s views as expressed to the Family Consultant and noted in the Child Inclusive Conference memorandum to Court earlier in these reasons. [37]That evidence included that X would like to extend the time she spends with her father to include overnight time and that she indicated that if she does not feel comfortable during that time she will speak to her mother, get a hug from her father and feel more comfortable and settled.
  2. At the time of her interview in the Child Inclusive Conference, X was seven years and four months of age and not of an age where her wishes are a particularly weighty or determinative factor in considering what parenting orders are properly being made with her best interests as the paramount consideration. However, I do take her wishes as expressed in the Child Inclusive Conference memorandum to Court into account and give them some weight.
  3. I have already made findings above in relation to the nature of the relationship of X with each of her parents.[38] It is in X’s interest to be able to maintain and develop her relationship with her father. The nature of her relationship would have been inhibited between June 2017 and the interim hearing (and up to the present time) by reason of her only being in her father’s care during the daytime and not overnight. I find that the nature of the relationship between X and her father supports the making of interim orders for her to spend some overnight time with her father and that such orders would allow that relationship to be placed on a more normal parent/child footing. That is in X’s best interests.
  4. There is no evidence to indicate that the father has failed to take every opportunity afforded to him by his arrangements with the mother and then by interim orders, to spend time with and communicate with X.[39] I have no evidence in relation to participation by the father in decisions relating to long-term issues for X other than in relation to her attendance for counselling with her school counsellor, in relation to which the father asserts that he was not consulted by the mother.
  5. The father pays child support as assessed for X and, on his evidence, sought to keep X covered by his private health insurance until that responsibility was taken over voluntarily by the mother.[40] He asserts that he voluntarily pays other money for X’s benefit, being half the cost of her extracurricular activities. Other than the support provided by the father as outlined, all of X’s financial support and maintenance is met by her mother.
  6. If orders are made for X to spend overnight time with her father, then there will be a change in her circumstances in that she will have more time with her father and less time with her mother, and in particular overnight.[41] I find that there is nothing in the evidence to ground a finding that such a change would be to X’s detriment, but rather I find that such a change will be to X’s benefit in enabling her to pursue her relationship with her father on a more normal parent/child basis by including the night time and morning routines that come with overnight time.
  7. There is no evidence to indicate that there is any practical difficulty or expense involved in X spending time with or communicating with her father.[42] The mother living at Suburb C and the father at Suburb F means that the parents live in fair proximity to each other and the proposal of the ICL, and referred to by the mother in paragraph 78 of her affidavit, that changeovers occur in front of Ms B’s Shop in Suburb C is accepted by both parties.
  8. I find that it is appropriate to maintain that changeover arrangement and not to make an order that provides for the father to commence his time with X by collecting her from school in consequence of the asserted, but untested, evidence that the father was on an occasion late to collect X from school, leading to the school needing to contact the mother to collect X.
  9. The capacity of each of X’s parents to provide for her needs, including her emotional and intellectual needs, has been considered earlier in these reasons when I considered the mother’s assertion that the father lacks parenting capacity.[43]
  10. The mother patently has capacity to provide for X’s needs and there is no evidence that she has failed to provide for all of her needs whilst being her full-time carer on all overnight occasions since the parties separated and for most of X’s days in that time.
  11. There is conflicting evidence in relation to the father’s attitude to providing appropriate food for X during her time with him, but no complaint was made by X to the Family Consultant.[44] However, as the evidence in this regard is conflicting, and I must take serious notice of the evidence presented by the mother in this regard, I find that it would be appropriate on the interim basis to make an order requiring the father to provide appropriate nutritious food for X at all regular mealtimes while X is in his care.
  12. X has a mixed Country E and Country D cultural background, with X and each of her parents being of the religion omitted faith.[45] The mother asserts that there is conflict between the parties as to the degree of involvement by each of X in her religion omitted faith, but she does not give particular evidence in that regard. The father gives evidence that he has and would support X’s religious upbringing in her faith.
  13. I have traversed earlier in these reasons the largely conflicting evidence between the parties relating to family violence and have examined the issue of family violence as an asserted unacceptable risk for X in her father’s unsupervised or overnight care.[46] It does not require reconsideration here. There are no family violence orders between the parties or involving either of the parties.

Parental responsibility

  1. Neither the mother nor the ICL seek an interim order relating to parental responsibility for X. The father seeks an interim order that the parties have equal shared parental responsibility for X.
  2. Section 61DA of the Act mandates 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 for the child. That presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The section further provides that when the Court is making an interim order the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order.
  3. If the Court considers on the interim basis that it is not appropriate in the circumstances for the presumption to be applied when making the order, and there is no existing interim or final order that the parents have equal shared parental responsibility for the child, then section 61C of the Act continues to apply and the parents each have parental responsibility for X.
  4. The evidence between the parties in relation to assertions of family violence is largely conflicting, but there is sufficient concession by the father for me to making a finding that there are reasonable grounds to believe that the father has engaged in family violence. Such concessions include his admission that he broke a coffee table in frustration at the mother’s shouting during the relationship and his admission to the Family Consultant, as reported in the memorandum, that he has said things to the mother that he should not have and has screamed at her and called her names and “That it is a possibility that he threatened to kill [the mother]”.
  5. Accordingly, I find that the presumption does not apply.
  6. I find on the current state of the evidence that it is appropriate to leave the situation in relation to parental responsibility as provided for in section 61C of the Act pending the final hearing of these proceedings or final orders by consent.
  7. As I am not making an order that parents have equal shared responsibility for X, and as there is no order current that provides that, I am not required to consider the matters set out in section 65DAA of the Act relating to equal time and substantial and significant time.

What orders are proper?

  1. Based upon my consideration of the primary and additional considerations in section 60CC of the Act and my consideration of the whole of the evidence relied upon in the interim hearing, including the submissions made on behalf of each of the parties and the ICL both in written submissions in the case outlines and oral submissions at the interim hearing, I find that it is appropriate to make orders for the father to spend time with X without a condition of supervision being imposed.
  2. I find that it is appropriate that such time between the father and X include overnight time, and so more than that proposed by the mother and the ICL, but that initially it not be to the extent of double overnight each alternate weekend as proposed by the father. I find that it would be in the best interests of X for the time to be for one overnight each fortnight for a period of four months and then two consecutive overnights per fortnight pending final hearing. I find that it is appropriate for the time between X and the father to include Thursday afternoons from 4.00PM until 8.00PM, with changeovers to be outside Ms B’s shop at Suburb C and not by collection from school as proposed by the father.
  3. I find that it is not appropriate to make orders as sought by the father in relation to school holidays that would provide for him to have half of the term 1, 2 and 3 school holidays and half of the long school holiday at the end of term 4. Rather, I find that it is appropriate that he have three consecutive nights with X during the school holidays at the end of term 3 in 2020 and two individual weeks during the Christmas school holidays at the end of term 4 2020, and thereafter half of the school holidays pending final hearing.
  4. I find it is appropriate for the father to have telephone communication with X on two occasions each week, to occur between 6.45PM and 7.15PM, with the father to initiate the call. In consequence of the state of the relationship between the parents I find that it is appropriate to define the times each week for such calls to be on Monday and Wednesday evening each week.
  5. I find that it is appropriate to make all of the orders proposed by the ICL that were agreed to by both of the parties, being orders 3.4 to 3.6 inclusive, 5 (but not 5.6 or 5.7 or 5.8 relating to drugs and alcohol, for the reasons stated earlier in these reasons), and 6 to 16 inclusive.
  6. Included in the orders proposed by the ICL, that I have indicated I will make, is the order requiring the father to obtain a mental health assessment report from a psychiatrist of his choosing and to provide the assessment to the mother and the ICL. The assessment must address stated topics. The order will authorise the father to provide for that psychiatrist a copy of any parenting orders made by the Court and also provide the Child Inclusive Conference memorandum dated 8 May 2019. This would seem to be in conflict with the findings I have made in relation to the father’s mental health, but as the matter has all the appearance of going to final hearing and the father clearly signified, through his solicitor advocate, his consent to those orders, I will make the orders so that there will be further expert evidence available to the Court on that topic.
  7. As indicated earlier in these reasons I will make a final order, by consent, that X live with her mother. I will also make an interim watchlist order by consent.
  8. I will not make an order in relation to parental responsibility.
  9. I consider that it is appropriate to indicate that it was brought to my attention that the Family Report ordered by me on 13 May 2019 has been prepared and sent to Chambers for release prior to preparation of these reasons. I have not read the contents of that Family Report in order to confirm that it is appropriate to release it, and I have not included it in formulating these reasons or the orders to be made on the interim basis. The Family Report was not part of the evidence on interim hearing and no application has been made to the Court to reopen the interim hearing to move the Court to consider the Family Report in relation to the interim hearing.

  1. Accordingly, I make the orders as set out at the start of these reasons.

I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of Judge Morley

Associate:

Date: 15 July 2020


[1] Affidavit of the father sworn 7 August 2019, [12].
[2] Family Law Act 1975 (Cth) s 63(1)(ba).
[3] Family Law Act 1975 (Cth) s 10J.
[4] Affidavit of the mother sworn 22 July 2019, [63].
[5] Affidavit of the mother sworn 22 July 2019, [64].
[6] Affidavit of the mother sworn 22 July 2019, [30].
[7] Affidavit of the mother sworn 22 July 2019, [31].
[8] Affidavit of the mother sworn 22 July 2019, [43].
[9] Affidavit of the father sworn 7 August 2019, [40(b)] and [53].
[10] VR & RR [2002] FamCA 320; [2002] FLC 93-099, Marvel & Marvel [2010] FamCAFC 101; [2010] 43 Fam LR 348.
[11] Deiter & Deiter [2011] FamCAFC 82.
[12] MRR & GR [2010] HCA 240; Goode & Goode (2006) FLC 93-286; Marvel & Marvel [2010] FamCAFC 101; (2010) 240 FLR 367.
[13] Family Law Act 1975 (Cth) s 60B.
[14] Family Law Act 1975 (Cth) s 65D(1).
[15] Family Law Act 1975 (Cth) s 65D(2).
[16] Family Law Act 1975 (Cth) s 60CC.
[17] Family Law Act 1975 (Cth) s 61DA.
[18] Family Law Act 1975 (Cth) s 60B.
[19] Family Law Act 1975 (Cth) s 65DAA(1)(a).
[20] Family Law Act 1975 (Cth) s 65DAA(1)(b).
[21] Family Law Act 1975 (Cth) s 65DAA(1)(c).
[22] Grella & Jamieson [2017] FamCAFC 21.
[23] Grella & Jamieson [2017] FamCAFC 21, [18].
[24] M & M [1988] FamCA 11; (1988) FLC 91-973.
[25] A & A & The Child Representative [1998] FamCA 25; (1998) 22 FamLR 756, [3.23] to [3.25].
[26] Napier & Hepburn [2006] FamCA 1316; (2006) FLC 93-303.
[27] Johnson & Page [2007] FamCA 1235; (2007) FLC 93-344.
[28] Deiter & Deiter [2011] FamCAFC 82, [61].
[29] Eaby & Speelman [2015] FamCAFC 104.
[30] SS & AH [2010] FamCAFC 13 (Boland, Thackray, and O’Ryan JJ).
[31] SS & AH [2010] FamCAFC 13, [100].
[32] Eaby & Speelman [2015] FamCAFC 104 (Thackray, Ryan, and Forrest JJ).
[33] Eaby & Speelman [2015] FamCAFC 104, [19].
[34] Family Law Act 1975 (Cth) s 60CC(2).
[35] Family Law Act 1975 (Cth) s 60CC(2)(a).
[36] Affidavit of the father sworn 7 August 2019, [41].
[37] Family Law Act 1975 (Cth) s 60CC(3)(a).
[38] Family Law Act 1975 (Cth) s 60CC(3)(b).
[39] Family Law Act 1975 (Cth) s 60CC(3)(c).
[40] Family Law Act 1975 (Cth) s 60CC(3)(ca).
[41] Family Law Act 1975 (Cth) s 60CC(3)(d).
[42] Family Law Act 1975 (Cth) s 60CC(3)(e).
[43] Family Law Act 1975 (Cth) s 60CC(3)(f).
[44] Family Law Act 1975 (Cth) s 60CC(3)(i).
[45] Family Law Act 1975 (Cth) s 60CC(3)(g).
[46] Family Law Act 1975 (Cth) s 60CC(3)(j),(k).


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