FEDERAL CIRCUIT COURT OF AUSTRALIA
| CALLIGAN & RADICAN | [2020] FCCA 1664 |
| Catchwords: FAMILY LAW – Interim proceedings – parenting – whether either party risk to children – where risks can be mitigated by appropriate orders – where equal shared parental responsibility ordered – where practical difficulties with substantial and significant time – where substantial and significant time not ordered. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 68LA |
| Cases cited: Jones v Dunkel (1959) 101 CLR 298 M & M (1988) FLC 91-973 |
| Applicant: | MR CALLIGAN |
| Respondent: | MS RADICAN |
| File Number: | SYC 7876 of 2017 |
| Judgment of: | Judge Morley |
| Hearing date: | 25 June 2019 |
| Date of Last Submission: | 25 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Dr Barnett |
| Solicitors for the Applicant: | Broun Abrahams Burreket |
| Counsel for the Respondent: | Mr Hegedus acting on a direct access brief for the Respondent |
| Solicitors for the Independent Children's Lawyer: | Mr McGreal of Holmes Donnelly & Co Solicitors |
ORDERS
PENDING FURTHER ORDERS THE COURT ORDERS:
The parents have equal shared parental responsibility for the children X born in 2010 and Y born in 2012 (“the children”).
That the children live with their mother.
That the children spend time with their father:
(a)each Tuesday from the end of school until 7.00 PM;
(b)each alternate weekend from the end of school on Friday until whichever of the following is elected by the father in writing to the mother no later than 7.00 PM on the Tuesday before the weekend occasion:
(i)5.00 PM on Sunday if the children are collected by the mother from the father’s place of residence;
(ii)7.00 PM Sunday if the father delivers the children to the mother or her nominee at the Suburb B Wharf; or
(iii)the start of school on Monday morning if the father delivers the children to their school;
(c)For half of each school holiday period being the first half of school holidays that commence in an odd numbered year and the second half of school holidays that commence in an even numbered year, and for this purpose school holidays commence at 5.30 PM on the day that school ends for the children and end at 5.30 PM on the day before school attendance resumes for the children AND changeovers at the start and the end of the father’s school holiday time with the children shall occur at the McDonalds Family Restaurant at Suburb C;
(d)from 9.00 AM until 6.00 PM on Father’s Day if the children would not otherwise be in his care on Father’s Day, with the mother to deliver the children to the father’s place of residence at the start of that time and the father to deliver the children to the mother at the Suburb B Wharf at the end of that time;
(e)in even numbered years from 11.00 AM on 25 December until 7.00PM on 26 December with changeovers to occur at the father’s place of residence at the start and at the Suburb B Wharf at the end;
(f)at such other times as may be agreed between the parents in writing from time to time.
That in the event that the children would otherwise be spending time with the father pursuant to order 3(b) on Mother’s Day, the father’s time with the children on the Mother’s day weekend shall end at 7.00 PM on the Saturday before Mother’s Day with changeover at the Suburb B Wharf.
That in odd numbered years the children shall be in their mother’s care from 11.00 AM on 25 December until 7.00 PM on 26 December with changeovers to occur at the father’s place of residence at the start and at the Suburb B Wharf at the end.
That the mother shall regularly engage with and follow the recommendations of her general practitioner and any specialist health professionals, such as psychiatrists or psychologists, to whom she is referred by her general practitioner.
That both parents are restrained from using marijuana in any of its forms for a period of 48 hours before the children or either of them come into their care and at all whilst the children or either of the children are in their care.
That the mother shall ensure that each of the children attend school on school days during school terms except when they are too ill to attend school or by reason of a necessity to attend at an appointment or similar occasion that cannot be scheduled outside of school hours.
That 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 of or within the hearing of either of the children.
That each of the parents is restrained from allowing either of the children to remain in the presence of or within either of the children’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.
That each of the parents is restrained from discussing these proceedings with, or in the presence or hearing of either of the children, and each of the parents is further restrained from showing either of the children any document pertaining to these proceedings.
That the children shall remain enrolled at and attending Suburb B School.
That the mother is restrained from changing the children’s place of residence without the father’s written consent or further order of the Court.
IT IS NOTED that publication of this judgment under the pseudonym Calligan & Radican is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7876 of 2017
| MR CALLIGAN |
Applicant
And
| MS RADICAN |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings under the Family Law Act 1975 (Cth) (‘the Act’) between the applicant father, Mr Calligan (‘the father’), and the respondent mother, Ms Radican (‘the mother’), concerning parenting arrangements for their children, X, born in 2010 and Y, born in 2012. The children are represented by an Independent Children’s Lawyer (‘the ICL’).
The proceedings were commenced by the father filing his Initiating Application on 13 May 2019. An interim hearing was conducted on 25 June 2019 to determine two issues. Firstly, which parent the children should live with and, secondly, the amount of time the children should spend with their other parent. Both determinations are to be made pending final orders.
Germane to the issues in the case, at the time of the interim hearing the father resided at Suburb D, a Region E suburb of Sydney, and the mother resided Suburb F, near the Region G Bridge at Suburb B, between Sydney and Suburb H.
The father’s case is based on his assertion that the mother lacks adequate parenting capacity to have the children in her full-time care resulting from her mental health issues and use of marijuana. He asserts the consequence of those two issues is that, therefore, she provides inadequate care on a day-to-day basis for the children.
The mother’s case is based on her assertion that she has always been the primary carer for the children, that she had placed the children in the father’s care for one school term to enable her to stabilise her circumstances, and that on the children returning to her care, there has been and remains no defect in her parenting capacity that makes her incapable of providing full and adequate care for the children.
The material relied upon by each of the parties
The father relied upon the following material at the interim hearing:
a)Initiating Application filed 13 May 2019;
b)Notice of Risk filed 13 May 2019;
c)Affidavit of the father sworn 10 May and filed 13 May 2019;
d)Affidavit of Ms J, the father’s partner, sworn and filed 20 June 2019;
e)Affidavit of Dr K, the father’s treating psychologist, sworn 22 May and filed 23 May 2019;
f)Updated Outline of Case document dated 24 June 2019, prepared by the father’s counsel, which became exhibit A8; and
g)A Minute of Interim Orders sought by the applicant father.
The mother relied on the following material at the interim hearing:
a)Response to Initiating Application filed 6 June 2019;
b)Notice of Risk filed 6 June 2019;
c)Affidavit of the mother sworn or affirmed 5 June and filed 6 June 2019;
d)Affidavit of the mother sworn or affirmed and filed 20 June 2019;
e)Affidavit of Ms L, the mother’s elder sister, sworn or affirmed 5 June and filed 6 June 2019; and
f)Respondent’s Outline of Submissions dated 25 June 2019, prepared by the mother’s counsel.
The father also relied upon the following evidence:
a)Exhibit A1 – a print of an SMS text message, dated 24 May 2019, sent by the solicitor for the father to mother requesting, pursuant to an interim order, that she undertake urine analysis testing within 24 hours;
b)Exhibit A2 – a letter dated 24 May 2019 from the solicitors for the father to the mother, sent as an attachment to an email, which, amongst other things, contains the request that the mother undertake urine analysis testing within 24 hours of the request, and a print of the email to which that letter was attached;
c)Exhibit A3 – documents containing material produced on subpoena by Region M Local Health District, and being the documents therein marked with tags F1, F4, F6, F7, F8, ICL4, and ICL5;
d)Exhibit A4 – being a two page e-report, number ... , produced by the then-named Department of Family and Community Services NSW;
e)Exhibit A5 – being a note, undated, prepared by the Principal of Suburb B School;
f)Exhibit A6 – the attendance records for each of the children in relation to their attendance at Suburb B School. The record includes the years 2016 to 2019 inclusive for X and 2018 and 2019 for Y;
g)Exhibit A7 – documents produced on subpoena by N Hospital, being the documents contained therein marked with tags F24 and F9;
h)Exhibit A9 – four documents marked with purple tags and one document marked with an orange ICL tag from the documents produced on subpoena by Dr O;
i)Exhibit A10 – from the documents produced on subpoena by the Department of Family and Community Services, a five page document marked with a purple F tag, dated 25 December 2018, and a four page document marked with a purple F tag, dated 4 February 2019;
j)Exhibit A11 – results sheet of urine analysis testing undergone by the father on 3 June 2019;
k)Exhibit A12 – a repeat of exhibits of A1 and A2 and a results sheet for urine analysis testing undergone by the mother on 6 June 2019;
l)Exhibit A13 – a print of two emails, both dated 6 February 2019, being an exchange between the father and the Human Resources Manager at Employer P, the father’s place of employment;
m)Exhibit A14 – all of the documents produced on subpoena by Dr Q, child and family therapist;
n)Exhibit A15 – all of the documents produced on subpoena by Dr R, general practitioner;
o)Exhibit A16 – from the documents produced on subpoena by Dr K, psychologist, a letter dated 31 January 2019 from Dr K to Dr S;
p)Exhibit A17 – a letter dated 16 September 2015 from Dr S to Dr T;
q)Exhibit A18 – from the documents produced on subpoena by Suburb U School, the attendance records for the children relating to term 1 2019; and
r)Exhibit A19 – a print of an email dated 18 June 2019 at 4.49PM from the solicitor for the ICL to the mother, requesting that she undergo urine analysis testing pursuant to the interim orders within 24 hours “of transmission of this email”.[1]
[1] Exhibit A19.
The mother relied on the following further evidence:
a)Exhibit R1 – from the material produced on subpoena by Suburb U School, a page of handwritten notes of a conversation between the school principal and the mother on 17 March 2019, marked with tag 1;
b)Exhibit R2 – material from the documents produced on subpoena by Dr S including:
(i) Clinical notes made by Dr S in relation to the father on 6 February 2015, marked with tag 2;
(ii) A letter dated 20 February 2015 from Dr S to Ms V, marked with tag 3; and
(iii) A letter dated 15 November 2010 from Dr W of the Black Dog Institute Depression Clinic to Dr Z, in relation to the father, marked with tag 4;
c)Exhibit R3 – from the documents produced on subpoena by Dr K, psychologist, handwritten notes made 17 August 2018, marked with tag 5, and 23 November 2018, marked with tag 6;
d)Exhibit R4 – from the material produced on subpoena by Dr R, general practitioner, including:
(i) A medical certificate dated 2 May 2019 by Dr AA relating to Y suffering from asthma marked with tag 8;
(ii) Progress notes made 2 May 2019 by Dr AA in relation to Y, marked with tag 9; and
(iii) Notes from a consultation on 12 June 2019 between Dr R and the mother, marked with tag 10;
e)Exhibit R5 – from the documents produced on subpoena by Dr Q, child and family therapist, a ‘family session form’ dated 5 April 2019 and the notes of a therapy session by Dr Q with the children marked with tag 11;
f)Exhibit R6 – results of urine analysis testing of the mother on 20 June 2019;
g)Exhibit R7 – a copy of a letter sent by facsimile transmission from the mother to Dr CC of Suburb DD Specialist Clinic, undated; and
h)Exhibit R8 – material from the documents produced on subpoena by Dr O but limited to all of the documents therein that relate to any consultations between Dr O and the mother in relation to the mother’s own health and mental health.
The ICL relied upon the following further evidence:
a)Exhibit ICL1 – the attendance records for each of the children during 2018 in the documents produced on subpoena by Town EE School; and
b)Exhibit ICL2 – a memorandum prepared on 17 May 2019 by Ms FF, principal of Suburb B School, in relation to a meeting of the principal, the school counsellor, and Mr GG.
I have read and carefully considered all of the material and evidence relied upon by each of the parties and by the ICL. All of that material has been considered by me and informs my considerations and findings in these reasons.
The proceedings
The proceedings were commenced by the father filing his Initiating Application on 13 May 2019 in relation to which leave for short service was granted and a first return date of 23 May 2019 was set. The mother filed her Response to an Initiating Application on 6 June 2019, after the first return date.
When the matter came before the Court on 23 May 2019 orders were made appointing an ICL to represent the interests of the children in the proceedings and appointing a Child Dispute Conference for 5 July 2019. The parties entered into interim consent orders, without prejudice to the father’s interim application and any interim application to be made by the mother in her response, providing, in summary:
a)That the children live with their mother and that the maternal grandmother would be present or that the mother and children would reside with the maternal aunt, Ms L (who lived near the mother.)
b)That the children spend time with their father each Tuesday from after school until 7 pm and each alternate weekend from after school on Friday until the start of school on Monday and at any other times as agreed in writing between the parties.
c)That changeovers would occur by the father collecting the children from the school or Kids Club at the start of his time and the father returning the children to Suburb B Wharf at the end of his time on Tuesdays and by the mother collecting the children from the father’s place of residence at 7.30 am on Mondays.
d)The father to have telephone communication with the children each Tuesday and Thursday at 7 pm for no longer than 30 minutes, the father calling the mother’s landline.
e)The children to remain enrolled at Suburb B School.
f)The mother to arrange an appointment with Dr HH, psychiatrist, for an assessment of her mental health.
g)That both parties undertake random urine analysis on the request of the other party’s legal representative or the other party if self-represented on no more than two occasions per week, conducted in accordance with the Australia/New Zealand standard, with the results to be provided to the other party.
h)The children travel with the father for a holiday to Country JJ in 2019 and have Skype communication with the mother while on the trip.
i)That both parties be restrained from attending each other’s residence without express written consent of the other party, from denigrating the other party in the presence or hearing of the children or allowing others to do so, or from discussing the proceedings in the hearing or presence of the children or allowing others to do so.
The matter was adjourned for an interim hearing on 7 June 2019.
On 7 June 2019, the mother made application for an adjournment of the interim hearing on the basis that she needed to arrange further legal representation and prepare her case. On the day, she was represented by Mr Hegedus of counsel.
The interim hearing was adjourned to 25 June 2019, with interim orders being made by consent dismissing the order made 23 May for urine analysis at the request of the other party and substituting an order for urine analysis request to be made by the ICL on no more than two occasions per week, dismissing the order made 23 May that the mother make an urgent appointment with Dr HH, psychiatrist, and replacing that with an order that the mother attend upon Dr HH or another psychiatrist recommended by her GP for treatment in relation to her mental health, and that she follow all reasonable recommendations of such psychiatrist and GP, an order enabling the ICL to obtain information in relation to those attendances, and an order restrained each of the parties from taking any illicit substance.
A notation was made on 7 June 2019 for the maternal grandmother and Mr KK (the husband of the mother’s elder sister Ms L) to provide undertakings in an appropriate form in relation to their being largely present while the mother spends time with the children. The maternal grandmother completed such an undertaking on 10 June 2019. The maternal grandmother agreed to be bound by that undertaking until 25 June 2019 or excused by the Court, whichever occurred first, and that undertaking was filed on 11 June 2019.
The interim hearing was held on 25 June 2019. The father was represented by Dr Barnett of counsel, the mother was represented by Mr Hegedus, of counsel, and Mr McGreal appeared as solicitor advocate for the ICL. A case outline document was provided by counsel for each of the mother and the father and submissions were made on behalf of each of the parties and on behalf of the ICL.
The orders sought on interim hearing
The orders sought by the father were contained in the minute of interim orders provided by his counsel and were as follows, in summary:
a)That the children live with the father;
b)That the children spend time with the mother as agreed in writing between the parties and failing agreement:
(i) Each alternate weekend during school term from the end of school on Friday to 6.00PM on Sunday or 6.00PM on Monday if a long weekend;
(ii) For the first week of the school holidays at the end of terms 1, 2, and 3;
(iii) For half the school holiday at the end of term 4, being the first half in odd numbered years and the second half in even numbered years;
(iv) From 9.00AM to 6.00PM on Mother’s Day;
(v) From 9.00AM Christmas Eve to 10.00AM Christmas Day in odd numbered years and from 10.00AM Christmas Day to 6.00PM Boxing Day in even numbered years.
c)That notwithstanding any other order, the children live with the father:
(i) From 9.00AM to 6.00PM on Father’s Day;
(ii) From 10.00AM Christmas Day to 6.00PM Boxing Day in odd numbered years and from 9.00AM Christmas Eve to 10.00AM Christmas Day in even numbered years.
d)That for the purposes of the school holidays orders, school holidays commence at the end of school on the final mandatory day of school term and conclude at the commencement of school on the first mandatory of school in the next term;
e)That the parties be restrained from:
(i) Abusing, denigrating, demeaning, or belittling the other parent, their partner, and/or members of their family in the presence or hearing of the children;
(ii) Allowing or permitting any other person to abuse, denigrate, demean, or belittle the other parent, their partner, and/or members of their family in the presence or hearing of the children;
(iii) Discussing the proceedings and/or issues pertaining to the proceedings in the presence or hearing of the children; and
(iv) Showing the children a copy of any document pertaining to the proceedings;
f)That when the mother’s time with the children commences on a school day, handover occur at the children’s school and otherwise, handover occur by the mother collecting the children from the father’s residence at the start of her time and the father collecting the children from the mother at Suburb B Wharf at the conclusion of her time, unless otherwise agreed between the parties in writing;
g)That the parties use the ‘Divvito’ communication app to communicate with each other about issues relating to the children and, in event of an emergency, communicate by text message only;
h)That any proposed change to time to be spent with the children be communicated to the other parent by ‘Divvito’ not less than seven days prior to the intended change; and
i)That the father be permitted to enrol the children in Suburb U School and that each party do all things to encourage and facilitate the children’s attendance at and participation in extra-curricular activities in which the children are registered. appropriate
In the course of submissions, Dr Barnett indicated on behalf of the father that he accepts that an order in relation to the mother spending time with the children on weekends may be from Friday to Monday each alternate weekend if the mother is able to deliver the children to their school (Suburb U School) on the Monday morning. The father further indicated that he is amenable to orders being made that the mother can spend time with the children on one midweek afternoon if the mother is able to attend at Suburb U School to pick the children up.
It was further indicated on behalf of the father in submissions that he would agree to an order that he comply with an asthma plan relating to Y, to be provided to him by the mother.
The orders sought by the mother in the interim hearing were contained in a combination of her Response, filed 6 June 2019, and the Case Outline prepared by her counsel. The order sought by were as follows, in summary:
a)That the parents have equal shared responsibility for the children;
b)That the children live the mother;
c)That the children spend time with the father each Tuesday from after school or 4.30PM until 7.00PM and each alternate weekend from after school on Friday until before school on Monday and at such other times as are agreed in writing between the parties;
d)That for changeover on Tuesdays, the father collect the children from Suburb B School or Kids Club at the start of his time and return them to Suburb B Wharf at the end of his time;
e)For alternate weekends, the father collect the children from Suburb B School or Kids Club on Friday and return the children to Suburb B School on Monday.
f)That the father have telephone communication with the children each Tuesday and Thursday morning at 7.00AM for no longer than 30 minutes, the father to call the mother’s landline;
g)That the children remain in enrolled at Suburb B School;
h)That the children be permitted to travel with the father for their Country JJ holiday, in 2019, and the mother be able to contact them by Skype during the trip;
i)That both parties be restrained from attending the other party’s residence without express written consent to the other party;
j)That both parties be restrained from denigrating the other party in the hearing or presence of the children and use their best endeavours to ensure no other person does so; and
k)The father spend time with the children for the first week of the school holidays at the end of terms 1, 2 and 3 and for one half of the school holidays at the end of term 4, being the first half of school holidays in odd numbered years and the second half of school holidays in even numbered years.
Accordingly, the main issues for resolution on the interim basis are:
a)With whom the children should live;
b)What time the other parent would spend with the children during school term (the parents being in agreement as to the time the other parent would spend with the children during school holidays); and
c)The school to be attended by the children. Naturally enough, the school to be attended by the children would be resolved by the decision as to which parent the children would live with.
In submissions, the ICL indicated that they sought orders, in summary, as follows:
a)That the children continue to live with their mother;
b)That they spend time with their father each Tuesday evening, each alternate weekend and for half of school holidays, and that they have telephone communication each Tuesday and Thursday at 7.00AM;
c)That if the Court considers that there is an unacceptable risk to the children in the care of the mother, it can be mitigated by appropriate orders that:
(i) The mother attend regularly with her general practitioner and follow all advice and recommendations in relation to medication;
(ii) She attend upon a psychiatrist or psychologist as recommended by her general practitioner; and
(iii) The mother provide authority to the ICL to contact her treaters to check on her compliance;
d)That an order continue that each of the parties undergo urine analysis at the request of the ICL, such request to be no more than once per month and that the results be provided to the ICL and the other party within five to seven days of the request;
e)That the mother be restrained from changing the children’s place of residence without a further order of the Court or the father’s written consent;
f)That the children attend Suburb B School;
g)That each of the parties be restrained from involving the children in their dispute by discussing the proceedings with the children or by denigrating the other parent – in effect, that orders 14 and 15 in the consent orders made on 23 May 2019 continue;
h)That the father be provided, and comply with, the asthma treatment plan for Y.
Self-evidently, the ICL supported the children remaining in the care of the mother on the interim basis and spending time with their father, without any supervision or ‘being present’ order being required so long as injunctive orders were made requiring the mother to maintain appropriate contact with her treaters in relation to mental health issues, and both parties were restrained from involving the children any further in the proceedings.
The evidence
At the interim hearing, the father was 45 years of age and living with his partner, Ms J, in Ms J’s home at Suburb D. The father had been diagnosed with bipolar disorder and attention deficit hyperactivity disorder in about 2013, and has a history of seeking appropriate treatment for his medical health issues. He was employed as a public servant at Employer P and had, for some periods of time, been a supervisor.
The mother was 40 years of age at the time of the interim hearing and was residing in her own home at Suburb F, a suburb in the Region G near Suburb B. Travel to and from the suburb is by ferry that leaves from and returns to the Suburb B Wharf. The mother had completed qualifications at the LL University at about the time the parties commenced their cohabitation. She had begun work in 2009 on further studies. Her working life had been very much involved with public service.
The mother had been treated on occasions for mental health issues, including depression and anxiety and queries had been raised on occasions as to whether or not she suffered from bipolar disorder. However, no specific evidence of a diagnosis to that effect was before the Court.
The father gives evidence that the travel time between his home at Suburb D and the Suburb B Wharf for Suburb F was 60 minutes.
The parties commenced their cohabitation in 2008 and married in 2009. They separated on 7 February 2015 and were divorced on 20 April 2018.
At the time of their separation, the father was employed at Employer P as a public servant and the mother was engaged full-time in home duties, though hoping to one day resume her studies.
Following separation, the father resided between his place of employment, Employer P, where he was up until February 2019 a live in worker, and his mother’s home at Suburb D. There was a brief period following separation where the father resided in shared accommodation. The mother left the matrimonial home leased by the parties at Suburb MM and lived with the children in a leased flat at Suburb NN. The lease was obtained by the father on behalf of the mother and children, the father paying the bond and $500.00 per week towards rent and expenses for the children. The father spent time with the children every second weekend and on a weekday night each week with any overnights taking place at his mother’s home at Suburb D.
In September 2015, the mother made a decision to move to, and buy a house at Suburb F. The father asserts that the move was without consultation with him. The mother asserts that she consulted with the father and that he was against the move. The mother purchased the house and moved to Suburb F with the children in 2015.
Following the mother’s move to Suburb F, it was no longer feasible for the father to spend the Tuesday night each week with the children and he changed that time to each Tuesday afternoon, provided them with dinner and “Delivered them back home before the last ferry at 7.30 pm.” He continued to spend time with the children each alternate weekend and for half of the school holidays.
In 2016, X started kindergarten at Suburb B School. Y started at school in kindergarten in 2018.
The mother’s sister, Ms L and her husband Mr KK were already living at Suburb F when the mother and children moved there.
The father took no action by way of proceedings to prevent the mother and children moving from Suburb NN to Suburb F in September 2015 or thereafter.
During the first term of school in 2018, an incident occurred between X and the Principal of Suburb B School which caused the mother to call into question the appropriateness of the Principal’s conduct and the Principal’s competence. There can be no finding in relation to that incident or the appropriateness of the actions of either the Principal or the mother, as a consequence, as there is insufficient evidence to enable any such finding.
As a consequence of the incident involving X and the school Principal, the mother decided to withdraw the children from the school and to move for a period of time to live with her parents at Town EE and to enrol the children at Town EE School.
Once again, the father asserts that the move by the mother and children to live with the maternal grandparents at Town EE and for the children to change schools was made without consultation with him. The mother asserts that he was advised of the move and opposed it.
The mother and the children lived with the maternal grandparents at Town EE, and the children attended Town EE School from May to October 2018, covering the second and third school terms of that year. During that time, the father continued to spend time with the children each alternate weekend, but the distance involved meant that he did not spend time with them on a Tuesday afternoon and evening.
In October 2018, the mother and the children returned to live at the mother’s home at Suburb F and the children returned to school at Suburb B School for term 4.
The mother gives evidence that the trip by ferry from Suburb F to the Suburb B Wharf takes 15 minutes and that the distance from the ferry to the children’s public school takes five minutes. The mother has deposed that the children are in company of between 20 and 30 other children who live at Suburb F and attend the school and that the children are always under the supervision of a “ferry parent”, a “ferry parent” being a parent who is on a volunteer roster system of supervision worked out amongst the applicable residents of Suburb F. The mother contends that the children wait in a park near the ferry wharf and are then conveyed to the school by a bus, a trip taking two to three minutes.
The mother says that the move in May 2018, to live with her parents at Town EE, was also prompted by her mother’s request that she assist her in the care of the mother’s aunt (the maternal grandmother’s sister) “Aunty Ms OO” who was terminally ill and needed close care. The mother and the children lived with the maternal grandparents for 19 weeks from May to October 2018. The mother says that during most of the father’s alternate weekend occasions with the children, the mother drove the children from Town EE to Sydney on the Friday evening to deliver the children to the father. The mother’s Aunt Ms OO passed away toward the end of the 19 weeks.
Late in term 3 2018, the mother received a telephone call from an employee of the Department of Education and was advised that the school Principal would be on leave for the duration of term 4. The mother says that this circumstance, and the passing of her Aunt Ms OO, prompted her decision to return with the children to reside at Suburb F in October 2018.
On the children returning to Suburb F, the father was able to resume his Tuesday evening time with them each alternate weekend and for half the school holidays.
In November and December of 2018, the mother deposes that she was having increasing difficulty with regulating her emotions and coping with life in general, particularly her financial responsibilities, including payment of the loan account secured by mortgage on her Suburb F property. She also deposes that she was having difficulty with the children.
Just before Christmas she and her sister Ms L between them hosted their older sister Ms PP for a visit for some weeks from overseas. As will be referred to below, Ms PP became concerned at the mother’s ability to cope generally and particularly in relation to the children at about this time and took the step of making a report to the Department of Family and Community Services (as the Department was then known), though not asking for any action to be taken. Also at about this time, a meeting was held at the very end of term 4 by certain persons at the Suburb B School to consider concerns about the care of the children by the mother over the Christmas school holiday period.
The children were in the father’s care from 1 to 14 January 2019, being school holiday time with their father and they then returned to their mother’s care. Their mother was not coping and by arrangement between the mother and the father, the children passed into the father’s care on 22 January 2019. The father’s evidence is that there was agreement between the parents that the children would be in his care for the whole of term 1 and term 2 in 2019 and that the parties would then reassess the situation. The mother’s evidence is that the agreement was that the children would be in the father’s care for only term 1 of 2019 whilst she recovered her ability to cope and undertook some part time employment, with the children to come back into her care at the end of the term.
The father asserts in his evidence that the mother did not see or spend time with the children for a period of 53 days from 22 January till 15 March 2019 and that that circumstance was only the result of her failure to seek such time. He acknowledges that the mother did speak with the children during that time.
The mother, for her part, asserts that she was unable to spend time with the children from 22 January until 2 March 2019 because she was, in effect, prevented from doing so by the father. There is some corroboration of the mother’s assertion contained in exhibit A10 which contains contemporaneous notes indicating that on 4 February 2019 the mother made a complaint to the Department of Family & Community Services (as the Department was then named) and to the police that the father was not allowing her to see or talk to her children. The mother gives evidence that she applied for a grant of Legal Aid to enable her to commence proceedings to recover the children on 14 February 2019. She states that she did not find out the result of her application until April 2019, when she was notified that her application for a grant of Legal Aid had been refused due to her ownership of a residential unit at Town EE. There is corroboration of this evidence in notes taken by Dr O of a consultation with the mother at about this time, contained in exhibit A9.
The parents are in agreement that when the children went into the father’s care on 22 January 2019 it was agreed that he would enrol them at SS School at Suburb MM, being a primary school across the road from Employer P where the father worked as that would be the most convenient school for him to deliver the children to school and collect them after school each day. The mother asserts that the father reneged on this agreement and enrolled the children in Suburb U Public School; the father asserts that he attempted to make enquiries about enrolment at SS School, but was unable to arrange that enrolment. He then enrolled the children in Suburb U School as he deemed the school appropriate and convenient for him to deliver the children to and collect them from on his way to and from work. An added consideration was that his partner, Ms J, could also assist.
The mother was very upset at the failure of the father to enrol the children in and have them attend at SS School. She considered the same to be a breach of their agreement, just as she considered the father’s failure, as she asserts, to enable her to spend time with the children until mid-March 2019 to be a breach of their agreement. It was on the basis of those asserted breaches of the agreement that the mother began taking steps to commence legal proceedings.
The mother asserts that she was under serious financial pressure in the later months of 2018, which added to her emotional breakdown. In particular she found herself in a position of being unable to make the payments required on the loan account secured by way of mortgage on her Suburb F property. She gives evidence of arranging to engage in a sale of her Town EE unit and to apply the net proceeds of sale to a reduction of the loan account secured on Suburb F so as to relieve that financial pressure.
In late April the maternal grandparents contacted the father and asked if they could spend some time with the children at their home from 25 to 27 April 2019. The father agreed and the children went to stay with their grandparents at Town EE. On 27 April 2019, the mother was at her parent’s home at Town EE and she took the children back into her care. She informed the father that she was taking the children with her back to Suburb F with the intent that the children would resume living with her and attending Suburb B School. When the mother saw the children, they indicated to her that they wanted to go home with her to Suburb F, and once there, the children indicated that they wanted to stay living with her
On Sunday 28 April 2019, the father and Ms J travelled to Suburb F and to the mother’s home. The father indicated that he wanted to discuss the care arrangements for the children, that he wanted the children to return to live with him in accordance with the agreement made in January 2019, and return to Suburb U School. The mother indicated that she wanted some support in a meeting while the issues were discussed and so the parents and Ms J went down the road to the home of Ms L and Mr KK and the relevant discussion took place.
The mother indicated, during that discussion, that she intended to have the children remain living with her and attend at Suburb B School. The father formed a view – and such view was certainly child-focused – that it would be inappropriate for him to attempt to remove the children against the mother’s will with whatever scene and circumstance may evolve from that, and accordingly, he said to the children with quite a deal of emotion, as recounted in the affidavit of Ms L “Mummy and I can’t agree, but you are staying with Mummy for now.”
The father and Ms J then left, and the children remained living with the mother and returned to attendance at Suburb B School. It was the intention of the parties to follow up this discussion with a mediation.
The father attended at Suburb B School on 1 May 2019 at the end of school with the intent of taking the children back with him to resume living with him and resume attending Suburb U School. He enlisted the support of the school authorities and, at first, it seemed that such support would be provided, but in the event the children refused to go with him. The father says “They became upset and would not get into my car or come with me.”
As a result of the children’s attitude, the school authorities changed their view about the children accompanying the father and indicated that he should leave without them. The father left.
The father spent some time with the children for one and a half hours on 7 May 2019, but there is no detail in the evidence in relation to that occasion.
As already stated, the father commenced these proceedings on 13 May 2015 and the matter was before the Court with interim orders being made by consent for the father to spend time with the children on 23 May 2019.
In the father’s affidavit he gives some evidence comparing the relevant educational standard between Suburb B School and Suburb U School.[2] However, this matter is not a contest as to which school is the better school to be attended by the children, but is a contest between the parents on the issue of with whom the children should live, the school to then be attended by the children following on naturally from that decision.
[2] Affidavit of the father sworn 10 May 2019, [76]-[77].
At some time in late April 2019, the father moved to live permanently with Ms J at her home at Suburb D. There is variation in the evidence as to when this move occurred. The father states at paragraph 84 of his affidavit that the move was on 27 April 2019 when he says “The children and I moved into Ms J’s home at Suburb D.” However, I note that the children had not been in his care since 25 April 2019 when they went to stay with their maternal grandparents. Ms J in her affidavit at paragraph 10 says that “In March 2019, Mr Calligan and I decided that we would all move into my home in Suburb D. We moved into my house on 15 April 2019.”
Nothing at all turns on this variance in the date of taking up residence, but it is mentioned only as it was another change occurring or to occur in the children’s lives at about the time they left the father’s care and returned to the mother’s care.
In the father’s affidavit he gives some detailed evidence for the period from 2 June 2016 to 19 December 2018 of occasions when he asserts the mother was not coping with caring for the children.[3] Inherent in that evidence is that on occasions when the mother was not coping, she reached out to him or to health professionals for assistance. No application was made by the father in that time period for the children to leave the mother’s full time care and come into his care, or for any orders mitigating any risks for the children in the mother’s care.
[3] Affidavit of the father sworn 10 May 2019, [12]-[37].
The evidence, and that of the mother in her affidavit covering that period of time, is certainly evidence of the mother’s ability to cope generally and to cope with the care of the children breaking down over a period of time in mid-2018. It is the mother’s evidence that at this particular time she was under severe financial pressure and that she was also suffering from chronic respiratory illness, an assertion borne out in many of the exhibits that indicate that the mother on several occasions sought assistance for respiratory illness, and referred to the debilitating effects it was having upon her.
Use and misuse of illicit drugs by the parties has been raised as a risk issue in this matter, though the evidence presented by each of the parties about the asserted use of illicit drugs by the other parent is minimal. In the mother’s affidavit of 5 June 2019 at paragraph 14 the mother asserts that at the time of the party’s separation in February 2015:
I was also concerned about Mr Calligan’s safety because Mr Calligan had been spending a lot of time with Mr TT taking recreational drugs, particularly cocaine …
In paragraph 15 she says:
A lot of Mr Calligan’s spare time during the marriage was taken up with socialising outside of the family home with a group of high school friends with whom he would engage in the consumption of recreational drugs…
The father does not make assertions in relation to use of drugs by the mother in his affidavit of 10 May 2019, nor does Ms J in hers of 20 June 2019. However, in the mother’s affidavit of 20 June 2019 at paragraph 40 she says:
I admit that I smoked marijuana on occasions socially since separating from Mr Calligan. Over the period of Christmas 2018 and then when Mr Calligan took the children unilaterally into his care in January 2019, I admit that I increased my consumption of marijuana perhaps as a response to the trauma of the circumstances which left me feeling shocked, helpless and overwhelmed. I have not consumed marijuana since the commencement of these court proceedings in mid-May. Since abstaining, I have felt more capable of problem solving and more resilient in general. I intend to continue to refrain from smoking marijuana.
Exhibit A11 is the results sheet for urinalysis testing undergone by the father on 3 June 2019. None of the drugs tested for, including cocaine metabolites, were detected. Exhibit A12 contains the results of urinalysis testing undergone by the mother on 6 June 2019 following a request made by the father’s solicitors pursuant to the interim orders on 24 May 2019, that testing being required to be undertaken within 24 hours of the request (in reality, within 24 hours of the request coming to the attention of the mother), and the test shows a positive result for cannabis metabolites. There is no expert evidence before the Court, nor any lay evidence, of the period of time during which cannabis metabolites remain detectable by urine analysis following use by the person tested.
Exhibit R6 is the urine analysis test results for the mother for a test undertaken on 20 June 2019 which show a negative (not detected) result for cannabis metabolites. The test was requested pursuant to the interim orders by the independent children’s lawyer by an email to the mother at 4:49PM on the afternoon of 18 June 2019 (a Tuesday). The results are negative for all drugs for which the mother was tested.
All of the urinalysis tests referred to were conducted in accordance with the Australian/New Zealand Standard 4308:2008.
The evidence in the exhibits
As stated above, I have read and carefully considered all of the evidence contained in all of the exhibits in the interim hearing. Some of that evidence requires mention and comment.
Exhibit A3 contains evidence of a report made by the mother’s sister Ms PP to a social worker with Region M Local Health District. The document indicates that Ms PP is seeking some advice as to “what to do to get Ms Radican help.” She reports that: “She is not sleeping, the house is in chaos, and she is shouting, which is unlike her.” and “Ms Radican is also using a lot of marijuana.”
Ms PP indicated that the children were alright and they had been taken to live with their father and that the mother “is not a danger to herself or others.” Ms PP also stated that the mother, “Has bipolar disorder.” But that cannot be taken as evidence of the truth of that assertion as no expertise is established for Ms PP. The report is made on 31 December 2018, during the period of time when the mother, on her own evidence, and as borne out by her own actions in passing the children into the care of their father on 22 January 2019, was not coping for various reasons. There is no indication as to what is meant by, “a lot of marijuana” in terms of the report made by Ms PP. Ms PP did not seek that any action be taken whatsoever but was simply seeking some advice with a view to the mother’s family discussing the situation.
An entry in the mother’s medical records in the exhibit for 3 September 2017 indicates that she is suffering from depression and anxiety and a chronic chest-infection problem. Concerningly, there is a note that she admitted to some suicidal ideation and that she thinks that, “Maybe her children would be better off without her.” The notes make it clear that at the particular time of the consultation, the children were in the father’s care and the mother had sought the assistance of her parents in the preceding days.
The other document relating to the mother’s health in exhibit A3 is a note that in 2013 Dr HH psychiatrist in Suburb MM reaffirmed a diagnosis of bipolar disorder II for the mother. This was related by the mother to her treaters during her consultation at Region E Hospital on 3 September 2017.
Exhibit A4 is a report prepared by the Department of Family and Community Services (as the Department was then named) dated 18 December 2018 of a report made by a mandatory reporter of concerns about the wellbeing of the children in the care of the mother, with the long Christmas school holiday commencing. Patently, on the document, the reporter is someone at Suburb B School and contained some complaints about the mother that may well be linked to the contretemps between the mother, the school Principal, and others at the school. It contains the following beside the heading “Known impacts on the child (young person)”:
– both show signs of trauma and exposure to a parent with mental illness. They can become stressed, withdrawn, frustrated and antisocial. Sometimes they arrive without any (sufficient) nutritious food, have dirty uniforms, have not bathed or brushed hair.
It also notes that “Recently, Ms Radican requested the girls go to their dad as she was not coping.”
The document is a narration by an officer of the Department of Family and Community Services (as the Department was then named) of notification made by someone from the children’s school. No detail is given of actual events or observation of matters for the children, only a general summary. Notably, the notifier says that the mother has mentioned to the notifier on several occasions that she was not coping, was stressed, and overwhelmed and that when this happens, the mother shuts herself off from the world and does not answer communication via email or phone. However, the document makes it obvious that the mother is communicating her stressed circumstances with persons at the school and has already begun taking steps to address her situation by beginning to explore an arrangement whereby the children spend time with their father whilst she recovers her situation – a circumstance that came to eventuality on 22 January 2019.
Exhibit A6, being the attendance records for the children at Suburb B School, show the children’s poor attendance rate. During 2018 X had 18 whole days absent and Y had 24 whole days absent. However, I note that both children are marked out as absent for the same nine days between 14 May and 24 May 2018, being, on the evidence, obviously, the start of the period of time when the mother had withdrawn the children from the school and moved them to Town EE Public School.
In Exhibit A7 are documents and records from the N Hospital and in particular for the mother on 3 September 2017 (matching with the records from NSW Health in exhibit A3) where it is noted that the mother is experiencing respiratory problems and some mental health issues but notes “no acute risk of harm to self or others.”
On the next day, 4 September 2017, there are notes that the mother has been experiencing some panic attacks consequent upon financial stresses, but reports no thoughts of suicidal ideation.
Exhibit A9 relates to the mother’s health records with Dr O and pairs with exhibit R8, being the whole of the document so produced. A reading of the whole of the document bears out that in October, November, and December 2018, the mother was feeling under a great deal of pressure and was failing to cope adequately with caring for the children, that she made frequent contact with her doctor for medical assistance and did not attempt to conceal her difficulties. Ultimately this lead to her agreement with the father on 22 January 2019 for the children to pass into his care for a period of time.
Exhibit A10 is material produced on subpoena by the Department of Family and Community Services (as it then was) and repeats the material in exhibit A4.
It also contains a document evidencing a complaint made by the mother to the Department on 4 February 2019, complaining that the father had not returned the children to her care in accordance with an agreement previously reached, that she has no concern for the children’s welfare whilst in the care of their father, but that her concern is that the father does not allow the girls to speak with her. The mother indicates that she had contacted the police on 3 February 2019 with the same information.
This is during the period of time from 21 January to 15 March 2019, during which the father asserts the mother made no attempt to spend time with the children, but evidences a contemporaneous complaint by the mother that she was having difficulties in communicating with the children at all due to the actions of the father. However, no detail or particularisation is provided.
Exhibit A14 is the documents produced on subpoena by Mr BB, a child and family therapist who held consultations with the father and Ms J on 6 March 2019 and then with the children on 20 March and 5 April 2019. Concerningly, Dr Q notes, from the session on 20 March 2019, that X “Feels that at times, her mother has been “rude” about her father.” He also records that:
X states that mother talks about father negatively, although father does not talk about mother negatively. X states she feels hurt when mother speaks negatively about FA – asks mother to stop – mother continues – feels mother is doing the wrong thing but loves mother.
In the session on 5 April 2019, Dr Q notes:
Discussion about time with mother = the girls state that their mother has not been discussing their father and no “negative vibes” from mother about father in the most recent visit to mother. Both girls appeared to enjoy the time with their mother and appeared free to love their mother and spend time with their mother.
Exhibit A15 contains medical notes for the mother with Dr R of Suburb RR Medical Centre. In particular, I note from 12 June 2019, during consultation between the mother and Dr R, it is recorded that the mother “States last cannabis use was three weeks ago.”
The time so referred to would correspond with about the time the mother became aware of the proceedings commenced by the father and so does not contradict her evidence, in paragraph 40 of her affidavit, of not having consumed any marijuana since the commencement of the Court proceedings in mid-May 2019.
The mother had a consultation with Dr R on 24 May 2019. The doctor notes the mother advising:
Since girls have been back, she has been better…IS coping with daily activities…ensuring the kids are going to school, et cetera. Still appeared calm and well-groomed. She was teary and appropriately distressed by the events that were occurring. She stated that the five weeks that the girls were prevented from seeing her were devastating.
Exhibit A16 and exhibit R3 are documents produced by Dr K, a psychologist, and indicate that the father had been diagnosed with attention deficit and hyperactivity disorder and bipolar disorder, though the father reported that he had never experienced any manic episodes. Notes taken by the treater on 23 November 2018 include the “Smoked cannabis 3-4/year.”
Exhibit A17 is a letter of 16 September 2015 from Dr S referring the mother for treatment by Dr T and noting “Ms Radican has a previous diagnosis of bipolar mood disorder.” Dr S also records:
I am concerned for her well-being and the well-being of her children. She is very capable and wanting help to deal with her current overwhelming issues. She has an appointment with you in November, but I feel that it is more urgent.
This occurred in the September of the year in which the parties separated and once again indicates the mother proactively sought appropriate health and treatment when she felt under stress and had difficulty coping.
Exhibit R2 are documents contained in the father’s health records produced on subpoena by Dr S, his general practitioner. It includes a note on the father having suicidal ideation on 6 February 2015, the day before the parties’ separation, the note states on 20 February 2015, shortly after the separation, that “Mr Calligan has endured a long history of psychiatric diagnoses – depression, ADD, bipolar mood disorder.”
The exhibit also includes a report by Dr W, psychiatrist, of 15 November 2010 noting:
I believe it is most likely that Mr Calligan has a type II bipolar disorder. He can identify periods of elevated mood, which have been recurrent since his twenties. These are generally short-lived and do occur in the absence of alcohol and illegal substance use.
The report is now nearly 10 years old.
Exhibit ICL2 is a print of a note made of a meeting on 17 May 2019 by the principal, the school counsellor, and one other, Mr GG at Suburb B School in response the subpoena to produce documents served upon the school at that time. The principal is the school principal with whom the mother had an issue during 2018 and who was on leave from the school through term 4 of 2018. The document is merely a note of the school’s response to being served with the subpoena. It reads:
main concern: the parenting capacity of the mother in response to a subpoena served to her this week regarding a challenge to custody of the children from the father. No immediate concern but wanting to mitigate future risk.[4]
[4] Exhibit ICL2.
It was submitted by Mr McGreal for the ICL that the genuineness of the father’s concerns may be open to question as the children lived with the mother following separation for four and a half years. Mr McGreal further submitted that there was limited documentary evidence, contained in the documents tendered to the Court, to substantiate the father’s assertions in relation to the mother’s mental health issues. His ultimate submission was that if the mother’s mental health was as bad as asserted by the father, then the Court might expect the mother to have come to the attention of emergency services, which had not occurred. He noted that, on the evidence, both the mother and the father had used cannabis in the past and that such use can have an effect on the mental health issues for both parents. He noted that there were no general practitioner reports indicating ill health or signs of neglect in the children.
On behalf of the mother, Mr Hegedus submitted that the mother had been the primary carer for the children since their birth and that apart from the period from the end of the school year 2018 until 27 April 2019, she had been the main carer for the children for the majority of their lives. In that regard, he submitted that the evidence showed that during the parties’ cohabitation, the mother had set aside her studies to concentrate on day-to-day care of the children whilst the father focused on his career as a public servant.
He submitted that the evidence showed that the mother did not dispute that 2018 had been a difficult year for her. It was his submission that on reflection the mother could have made better decisions, such as her decision to relocate to Town EE and change the children’s school, but that such decisions were consequences of particular events and not the product of a mental incapacity on the part of the mother. He submitted that the evidence did not establish any risk that required the disturbance of the status quo, the return of the children to their father’s care, and/or the change of the children’s school on an interim basis.
In submissions on behalf of the father, Dr Barnett drew the Court’s attention to the evidence contained in the exhibits and, in particular, the health records of the mother and the children’s attendance records at Suburb B School. Dr Barnett referred to the lack of evidence or detail from the mother about her marijuana use and submitted that the Court could draw a ‘Jones v Dunkel inference’ from the mother’s failure to put that evidence before the Court.[5]
[5] A ‘Jones & Dunkel inference’ being a reference to the principle established in Jones v Dunkel (1959) 101 CLR 298, [320] that in a circumstance where there is an unexplained failure to give evidence by a party, it can be inferred that the evidence, which was the subject of that failure, may not have assisted the party.
Dr Barnett submitted that whilst the circumstance of the mother’s mental health was sufficient to raise the issue of her mental health being an unacceptable risk for the children whilst in her care, the father’s mental health was not. The mother did not raise the father’s mental health as an issue affecting his parenting capacity and there is ample evidence that the father had sought and obtained appropriate mental health treatment over the previous five years. It was the father’s submission that he had been frank with the Court in his affidavit evidence relating to his mental health history.
The law
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.[6]
[6] MRR & GR [2010] HCA 240; Goode & Goode (2006) FLC 93-286; Marvel & Marvel (2010) 240 FLR 367.
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.[7] That section also contains the principles behind those objects. In this matter I have considered those objects and the principles behind those objects.
[7] Family Law Act 1975 (Cth) s 60B.
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.
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.[8] The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[9]
[8] Family Law Act 1975 (Cth) s 65D(1).
[9] Family Law Act 1975 (Cth) s 65D(2).
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. [10]
[10] Family Law Act 1975 (Cth) s 60CC.
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.[11]
[11] Family Law Act 1975 (Cth) s 61DA.
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.[12]
[12] Family Law Act 1975 (Cth) s 60B.
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.
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:
a)Whether the child spending equal time with each parent would be in the best interest of the child;[13] and
b)Whether the child spending equal time with each of the parents is reasonably practicable.[14]
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.[15]
[13] Family Law Act 1975 (Cth) s 65DAA(1)(a).
[14] Family Law Act 1975 (Cth) s 65DAA(1)(b).
[15] Family Law Act 1975 (Cth) s 65DAA(1)(c).
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.
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.
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.
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:[16]
A discretionary judgment concerning the parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.[17]
[16] Grella & Jamieson [2017] FamCAFC 21.
[17] Grella & Jamieson [2017] FamCAFC 21, [18].
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.
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:
a)Assess whether that risk is an acceptable risk or an unacceptable risk;
b)If it is assessed that it is an unacceptable risk, assess whether or not the risk can be mitigated by appropriate orders; and
c)Decide what orders are proper in all the circumstances in the best interests of the child.
Detailed exposition of the treatment of risk in parenting matters can be found in the decision of the High Court in M & M[18] and the decisions of the Full Court of the Family Court of Australia in A & A & The Child Representative,[19] Napier & Hepburn,[20] Johnson & Page,[21] Deiter & Deiter,[22] and Eaby & Speelman.[23]
[18] M & M (1988) FLC 91-973.
[19] A & A & The Child Representative (1998) 22 FamLR 756, [3.23] to [3.25].
[20] Napier & Hepburn (2006) FLC 93-303.
[21] Johnson & Page (2007) FLC 93-344.
[22] Deiter & Deiter [2011] FamCAFC 82, [61].
[23] Eaby & Speelman [2015] FamCAFC 104 (Thackray, Ryan, and Forrest JJ).
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.
In SS & AH,[24] 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:
… 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.[25]
[24] SS & AH [2010] FamCAFC 13 (Boland, Thackray, and O’Ryan JJ).
[25] SS & AH [2010] FamCAFC 13, [100].
As noted by the Full Court of the Family Court of Australia in Eaby & Speelman,[26] 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.”[27]
[26] Eaby & Speelman [2015] FamCAFC 104 (Thackray, Ryan, and Forrest JJ).
[27] Eaby & Speelman [2015] FamCAFC 104 (Thackray, Ryan, and Forrest JJ), [19].
Section 60CC – the primary considerations
The primary considerations set out in section 60CC(2) of the Act are, firstly, the benefit to the children of having a meaningful relationship with both of their parents and, secondly, any need to protect the children from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.[28] Subsection (2A) requires that the Court give greater weight to the consideration of any need to protect the children over the benefit to the children of having a meaningful relationship with both of their parents.
[28] Family Law Act 1975 (Cth) s 60CC(2).
Both children have a meaningful relationship with each of their parents.[29] They have a close and loving relationship with each of their parents. That is not in dispute between the parties and it is plain on the evidence. There is obvious benefit to the children in being able to maintain their meaningful relationship with each of their parents and to have that meaningful relationship continue to develop year to year.
[29] Family Law Act 1975 (Cth) s (2)(a).
The real issues in this interim hearing, regarding the question of with whom the children should live, revolve around asserted risks to the children in the care of their mother and questioning by the father of the mother’s parenting capacity. Despite the evidence contained in the mother’s two affidavits, critical of the father in various ways, it is not her case that the father presents a risk to the children and it is not her case the father lacks parenting capacity to care for the children. That is inherent in the orders that she seeks in relation to the time the children would spend with their father.
It is the father’s case that the mother presents a risk to the children consequent upon her mental health issues, and lack of ability to cope, leading to a breakdown in the level of care she provides for the children. The mother, herself, made plain in late 2018 and in January 2019 that she was not coping and that the children needed to go into the care of their father for a period of time.
It is the mother’s case that she was aware of her difficulties and that she took appropriate and child focused action to address the children’s care and needs in the light of her difficulties. It is the mother’s contention that she did this by placing them, for a time, in the care of their father, but that the agreement made with the father, in relation to their schooling and their time and communication with her, was not honoured by the father. The mother submits that when she considered that she had overcome her difficulties and was in an improved state, she was able to cope and she took the children back into her care.
It is the father’s position that the mother showed alarming signs of not being able to cope with and care for the children adequately, not only in the latter part of 2018, but on occasions in the years since separation. The father further submits that there came a point where the parents agreed between them that the girls would pass into the father’s care for at least term 1 and term 2 of 2019, with the parents to reassess the situation at the end of that time. The father says that the mother made a unilateral decision to take the children back into her care at Easter 2019. He argues that the Court should not be satisfied that the mother’s position has so improved that she can adequately cope with and care for the children, and that, accordingly, the children should return to his care on the interim basis and spend time with the mother as sought by him in his Minute of Order.
Patently, the father has no concern that the children are at risk in the care of the mother for a period of up to about three weeks, during the school holidays at the end of term 4 in each year as that is the order that he seeks. He has no concern that the children are at risk, and considers that the mother has adequate parenting capacity to care for them appropriately, each alternate weekend from after school Friday until the start of school Monday, including the mother travelling with the children from Suburb F on the Region G near Suburb B to the children’s school proposed by the father at Suburb U, on Monday morning each alternate weekend.
The issues of the asserted risk presented by the mother to the children and her parenting capacity are enmeshed.
The evidence going to the mother’s lack of ability to cope, as set out in the father’s affidavit, is replete with occasions when the father’s asserted knowledge of the mother’s inability to cope has come to his attention only because of statements made to him by the mother.[30] Despite the father’s evidence,[31] covering a period from 2 June 2016 to 18 December 2018, he at no time took steps to have the children come into his care on a full-time basis and nor, on the evidence, did he make any notifications to relevant government bodies of concern about the children’s care with their mother.
[30] See, for instance, paragraphs [6(a)] – [6(i)] of the affidavit of the Father sworn 10 May 2019.
[31] Affidavit of the Father sworn 10 May 2019, [12]–[37].
That fact in and of itself is by no means any sort of evidence that the mother’s care was adequate, that her parenting capacity was appropriate, nor that the children were never in any form of risk in the mother’s care during that time. It is evidence, however, that throughout that time, despite the matters related by him in his evidence, the father did not consider that it was in the best interests of the children to leave the mother’s care and come into his care or, if he did so consider, he did nothing to act upon that consideration.
Both of the parents have mental health issues. They both have had diagnoses in relation to bipolar mood disorder, the mother has had diagnoses in relation to depression and anxiety, and the father has had diagnoses in relation to attention deficit hyperactivity disorder. On all of the evidence, both parents have taken appropriate steps over the years to engage with health professionals in relation to their mental health issues and to seek appropriate treatment and, when appropriate, medication. The evidence relied upon by the father, particularly in the exhibits, in relation to the mother’s health generally and mental health issues in particular, is in the most part, based upon an accumulation of evidence generated by the mother herself seeking help and treatment.
The only specific evidence given of a lack of care by the mother of children is in some evidence in exhibits from Suburb B School as detailed earlier in these reasons, and that evidence is non-specific.[32] It is mainly confined to the notification made by an officer of the school to the then-named Department of Family and Community Services on 18 December 2018, mentioning in general terms what the notifier considered to be indications of the children reacting to mental health issues being suffered by the mother.
[32] Exhibit ICL2.
The only specific evidence of an actual event referred to is in relation to a teacher being present when Y removed her shoes on one occasion, seeing that her feet were dirty, asking her when she last bathed and being told “we are country children”. A child of Y’s age having dirty feet on one occasion does not morph to a general lack of care and attention to the children’s health, wellbeing, and welfare.
As referred to above, at an interim hearing where there is contested evidence before the Court or evidence not in specific contest, but that can be given little weight, being of the nature of inferences drawn by a deponent or hearsay, the Court is unable to make specific findings unless the totality of evidence provides sufficient corroboration of one party’s version of contested evidence as to make it reasonable and appropriate to proceed to a finding. Nevertheless, and even in cases of a mass of very little other than contested evidence, the Court must perform its function and determine what parenting orders are best to be made on the interim basis in the interests of the children, with the children’s interests being the paramount consideration.
With that in mind, I find that there is the potential for risk to the children in the mother’s full-time care. I take the view that if the mother fails to appropriately address and deal with her mental health issues by seeking and obtaining appropriate treatment, particularly at times of escalated mental health issues and crises – such as during her serious financial stress in late 2018 – then there is a risk to the children.[33] On the evidence, the mother did, and always has, sought that appropriate advice and treatment.
[33] Affidavit of Mother sworn 5 June 2019, [41].
I find that the potential risk to the children presented by the mother’s mental health issues can be appropriately mitigated, so as to render such risk not unacceptable, by the making of orders requiring the mother to regularly engage with and follow the recommendations of her general practitioner and any specialist health professionals, such as psychiatrists or psychologists, to whom she is referred by her general practitioner. Such an order is in line with the proposal by the ICL.
A question I must consider is: is there a risk to the children in either parent’s care consequent upon their misuse of illegal substances, and in particular, marijuana?
There is evidence that both parties have been users of marijuana. The mother admitted to same in her affidavit, and showed a positive result for cannabis metabolites in her urinalysis test of 6 June 2019.[34] The mother had a negative result a few weeks later on 20 June 2019. The father in his disclosure noted, in the notes taken by Dr K on 23 November 2018, that he “smoke cannabis 3-4 times per year”.[35] Even for persons without any mental health issues the use, and in particular the long-term use, of marijuana has a detrimental effect on the health and mental wellbeing and presents a risk factor for children in their care due to its effect on their awareness and reaction abilities. For persons with existing mental health issues the risk of detrimental effects from use of marijuana is greater.
[34] Affidavit of Mother sworn 20 June 2019, [40].
[35] Exhibit R3.
The mother deposes that she has ceased use of marijuana and will not use again.[36] The father presented a clear urine analysis test result in relation to all drugs tested for, including marijuana metabolites on 3 June 2019.[37] I find that any risk presented to the children by the mother in relation to her admitted history of using marijuana can be appropriately mitigated by an injunctive order restraining each of the parents from using marijuana at all whilst the children are in their care, and for a period of 48 hours prior to the children coming into their care.
[36] Affidavit of Mother sworn 20 June 2019, [40].
[37] Exhibit A12.
Is there a risk to the children’s development and wellbeing by them inappropriately missing school whilst in the mother’s care?
The attendance records for the children at Suburb B School would indicate that they have missed a considerable amount of school.[38] However, the records are skewed for 2018 by the nine days they are shown as absent when they had, in fact, moved with their mother to live with their maternal grandparents at Town EE and had begun attending Town EE Public School. Nevertheless, it is not a matter that can be fully teased out and resolved on the interim basis. Accordingly, there is a possibility of risk to the children if, whilst in their mother’s care, they are not appropriately parented by her and required to attend school, except on occasions when they are ill or in other circumstances with a reasonable basis, going to the child’s own welfare, why they would not be at school. Such instances include appointments with health professionals or similar that cannot be made outside school hours.
[38] Exhibits A18, A6, ICL1.
I find this risk can be addressed by the making of an appropriate order that requires the mother to ensure that each of the children attend school on school days during school terms except when they are too ill to attend school or by reason of a necessity to attend at an appointment or similar occasion that cannot be scheduled outside of school hours.
Overall, on the issue of risk to children and whether there is any unacceptable risk or risks in the care of their mother, I find on all of the evidence that no occasion has arisen when the children have come to harm or been put in the way of harm whilst in the care of their mother in consequence of the mother’s mental health issues or any other risk factor. I find that on occasions when the mother’s mental health has presented a cause for concern in relation to the children’s welfare, the mother has sought and obtained appropriate mental health assistance from health professionals. The mother has also not concealed her circumstances from others, including the father, the maternal grandparents, and the school authorities.
I find that appropriate orders can be made to mitigate any risk to the children in the mother’s care. I find that there is no need to protect the children from physical or psychological harm that requires, in their best interests, that their circumstances, in relation to with whom they live and the time they spend with the other parent, should be anything other than as it was from the time of the parties’ separation in February 2015 up to the time of the interim hearing, except for the period from 21 January 2019 to 27 April 2019.
Section 66CC – the additional considerations
No specific evidence is available as to the children’s views on the issue of with whom they should live and what time they should spend with the other parent.[39] At the interim hearing, the Court did not have benefit of the children’s views through a Child Inclusive Conference memorandum or family or expert’s report, and no submissions were made to Court on behalf of the ICL conveying the children’s wishes, as allowed pursuant to section 68LA(7) of the Act. That, of course, is absolutely no criticism whatsoever of the ICL in view of the terms of that subsection, the short time between appointment and the interim hearing, and keeping in mind the many other factors that can apply.
[39] Family Law Act 1975 (Cth) s 60CC(3)(a).
During their two therapy interviews with Dr Q, both occurring whilst the children were in their father’s care in March and April 2019, the children complained of their mother saying negative things about their father.[40] However, they indicated at their second interview that their mother was no longer doing so. They also indicated their enjoyment of their time with their mother. What the children did not do was complain of the time while they were living with their mother nor make any disclosures of matters that would cause the children any concern or fear in relation to living with their mother.
[40] Exhibit A14.
Similarly, of course, the children make no complaint whatsoever in relation to their time living with their father. However, they do note some disquiet to Dr Q about the number of changes occurring in their life, including an impending change in their place of residence with their father by going to live at the home of the father’s partner, Ms J.
I have already examined earlier, under the heading of the primary considerations, the nature of the relationship of each of the children with their parents.[41] On the evidence, the children have an excellent relationship with the father’s partner, Ms J, and in that regard, I take into account all of the evidence contained in Ms J’s affidavit.[42] However, whilst for the first four and a half years of X’s life and three and a half years of Y’s life, they lived with both of their parents, for the four and a half years following separation, they were principally in the care of their mother and spent alternate weekend time and one evening a week with their father – with the exception that between May to October 2018 they were living with their mother at Town EE when the midweek time could not occur. [43]
[41] Family Law Act 1975 (Cth) s 60CC(3)(b).
[42] Affidavit of Ms J sworn 20 June 2019.
[43] Affidavit of Father sworn 10 May 2019, [28(b)], [48], [96].
The parties conducted their parenting of the children throughout that time, from 7 February 2015 to May 2018, on an informal basis without Court orders. During that time, despite the mother’s move, first to Suburb F from September to October 2015 and to Town EE from May to October 2018 without, the father asserts, his consent, the father did not find cause to disturb the children living principally with their mother. The parties were able to cooperate consistently so the father could spend as much time with the children as practical given work requirements, distance, and so forth.
The nature of the relationship between the children and their mother is necessarily of a nature between a child and their principal carer, even during cohabitation, while the nature of the relationship between the children and their father is of a nature of a child with their alternate weekend and half school holiday carer.[44] Absent any unacceptable risk that cannot be mitigated by appropriate orders, I find that the nature of those relationships should not be altered on the interim basis.
[44] Family Law Act 1975 (Cth) s 60CC(2)(b).
The children’s circumstances since the parties separated, and continuing up to the current time except for the period from January to April 2019, are that they lived principally with their mother, most of that time on Suburb F, and that they have attended Suburb B School. That is where each of the girls started school and where they have attended throughout their schooling to date, except for their two terms at Town EE in 2018 and the period of term 1 in 2019 when they were at Suburb U School.
What is the likely effect on the children of any change in those circumstances by an order being made as sought by the father that they live with him and spend alternate weekend time and half school holidays with their mother and that they return to Suburb U School?
It is difficult to make findings in relation to this consideration on the available evidence and absent the assistance of some social science by way of a Family Report, such as the Court would normally have at a final hearing. However, the children have been subjected to quite a number of changes over their lives including:
a)The move from Suburb MM to Suburb NN following the parties’ separation in February 2017;
b)The move to live in Suburb F in October 2015;
c)The move to live at Town EE in May 2018;
d)The return to live in Suburb F in October 2018;
e)The move to live with their father at Suburb U in January 2019;
f)The move or prospective move to live with their father and Ms J at Suburb D in April 2019; and
g)Their return to live with their mother in Suburb F on 27 April 2019.
In the absence of unacceptable risks to the children that cannot be mitigated by appropriate orders, I find that a further change at this interim stage in the children’s circumstances, with the possibility of yet another change depending on the result of any final hearing or final agreement by consent between the parties, is not in the children’s best interests.[45]
[45] Family Law Act 1975 (Cth) s 60CC(2)(d).
The practical difficulty and the expense of the children spending time and communicating with their parents is a consideration in this matter given the distance between the parties’ respective places of residence.[46] The father lives at Suburb D on the Region E of Sydney, and the mother resides in Suburb F in the Region G near Suburb B. The practical difficulty and expense would accrue principally to whichever parent was spending time with the children while they are living with the other parent, and the sharing of the practical difficulty and expense would be dependent upon the changeover orders made.
[46] Family Law Act 1975 (Cth) s 60CC(2)(e).
I find that the father is in a better position to deal with the expense of spending time with the children over that distance, given that the father is in full-time employment as a public servant, and the mother is in receipt of Centrelink benefits and child support. I find that the practical difficulty cannot be avoided, but, on the evidence, has not presented a bar to the children spending alternate weekend time and half the school holidays with the parent with whom they do not live, historically the father.
I find on the evidence that both parents are capable of overcoming the practical difficulties and expense such that those difficulties and expenses need not substantially affect the children’s trying to maintain personal relations and direct contact with both parents on a regular basis.
The additional consideration of parenting capacity is a major issue in these proceedings, and I have made extensive comment in relation to parenting capacity so far as it relates to the mother earlier in these reasons.[47]
[47] Family Law Act 1975 (Cth) s 60CC(2)(f).
The mother experienced a diminution of her parenting capacity through the later months of 2018. The mother was able to recognise this and she took the, no doubt to her, drastic step of arranging with the father to pass full-time care of the children to him for an agreed period of time whilst she sorted herself out. The length of that agreed period of time is disputed by the parties. The evidence indicates that the mother took steps to sort herself out, including seeking relief from her financial stresses by planning a sale of her Town EE unit and felt by late April that it was appropriate to take the children back into her care.
An area of concern in relation to the period of incapacity is the mother’s continued use of marijuana past the time when she took the children back into her care. On the evidence as I have reviewed it above, the mother almost certainly continued to use marijuana into May 2019, after the time she had taken the children back into her care. On her evidence, her decision to cease use of marijuana coincided with her knowledge that these proceedings had been commenced. However, as I have found that the risk presented by the mother’s use of marijuana can be mitigated appropriately by injunctive order, and such order will apply mutually between the parties, this area of the mother’s parenting capacity and attitude to the responsibilities of parenthood is also appropriately addressed.[48]
[48] Family Law Act 1975 (Cth) s 60CC(2)(i).
In relation to the father’s parenting capacity, I note the period of time between 22 January and 15 March 2019 when the children did not spend any time with their mother. I have referred to evidence in the exhibits corroborative of the mother complaining to the then-named Department of Family and Community Services, NSW Health and her health providers, about her lack of ability to organise time with the children and adequate communication with them while they are in the father’s care.[49]
[49] Exhibits A10 and A3.
Whilst the evidence in that regard is in dispute between the parties, it is nevertheless inherent in the evidence that the father, in acting in a child focused manner, should have taken all available steps to ensure that the children were able to spend time with their mother during that period of time. He should not have merely left it to arrangement by the mother and assert or complain that the mother did not take steps to spend time with the children, without presenting any evidence of efforts made on his part to make time between the mother and the children occur. However, as a result of the interim hearing parenting orders that will be made, this element of question of the father’s parenting capacity, going to his willingness to actively foster the relationship between the children and their mother, need not be a concern.[50]
[50] Family Law Act 1975 (Cth) s 60CC(2)(m).
Happily for the parties and the children, despite all of their difficulties, this is not a matter where family violence is a consideration.[51]
[51] Family Law Act 1975 (Cth) s 60CC(2)(j).
Overall, on the basis of my consideration of the primary and additional considerations that I find relevant in section 60CC, I find that it is in the best interests of X and Y that they remain living with their mother and that they spend time with their father. What that time would be, I must determine in the course of my further consideration and findings on the legislative pathway.
Parental responsibility
The father seeks as a final order that he have sole parental responsibility for the children and that the children live with him. The mother did not seek an order relating to parental responsibility on either a final or interim basis in her Response to an Initiating Application.
The father has not sought an order relating to parental responsibility in the interim orders sought by him as set out in his Minute of Interim Orders. The mother advised through her counsel in his Case Outline, that an order be made on the interim basis that the parents have equal shared parental responsibility for the children.
The presumption set out in section 61DA of the Act – that when making parenting order in relation to children, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility for the children –applies in this case. That is because there are no reasonable grounds to believe that the parents of the children have engaged in the abuse of either the children or in family violence. However, the presumption is rebuttable by evidence satisfying the Court that it would not be in the best interests of the children for their parents to have equal shared responsibility for them, or if the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making interim orders.[52]
[52] Family Law Act 1975 (Cth) s 61DA(4).
From the time of birth of each of the children, the parents have both had parental responsibility for them pursuant to section 61C of the Act.[53] That is a different concept to parents having equal shared parental responsibility for children, as explained by the Full Court in Goode & Goode,[54] and does not bring with it the legislative requirement to consult and attempt to reach agreement in relation to long-term issues affecting the children.
[53] Family Law Act 1975 (Cth) s 61C.
[54] Goode & Goode (2006) FLC 93-286.
Though the father proposes an order that the parties utilise the ‘Divvito’ communication app to communicate between them in relation to issues affecting the children other than emergency matters, the evidence shows that there has not been a lack of ability between these parents since their separation to communicate in relation to the children.[55]
[55] Family Law Act 1975 (Cth) s 65DAA(5)(c).
The father’s evidence is replete with communication between the parties, even going, justifiably even on the mother’s response to that evidence, to a complaint of over-communication on occasions. I am satisfied that it is appropriate to apply the presumption in this case. I am also satisfied that it is in the best interests of the children that their parents have equal shared parental responsibility for them on the interim basis and, accordingly, I will make an order to that effect.
I find that this is not a case where it is necessary for the parents to communicate principally through one of the commercial apps available through the internet or telephone system, and that they are eminently capable of communicating and communicating well in relation to issues affecting the welfare of the children face-to-face. This is indicated by their meeting on 28 January 2019 and their history of communication by telephone, by SMS message, and by email.
Section 65DAA – equal time or substantially significant time or other appropriate order
Having found that it is appropriate to make an order that the parents have equal shared parental responsibility for the children, I must consider whether the children spending equal time with each of their parents would be in the best interests of the children and consider whether the children spending equal time with each of their parents is reasonably practicable.[56] If I find it is in their interests and reasonably practicable, I must consider making an order to provide for the children to spend equal time with each of their parents.
[56] Family Law Act 1975 (Cth) s 65DAA(1).
Neither of the parties seek an order on the interim basis or on the final basis that the children spend equal time with each of their parents. On the interim basis I do not have sufficient evidence, and the evidence that I do have has not been adequately tested for me to make a finding that the children spending equal time with each of their parents would be in their best interests. To make such a finding, I consider that I would also need to have the assistance of some social science as provided through a Family Report.
Whether or not I considered that it was in the children’s best interests to spend equal time with each of their parents, it is the case in this matter that such circumstance would not be reasonably practicable given the geographic distance between the parents’ places of residence. It would mean that in a circumstance where the children were spending time with each of their parents, they would either have to go to school close to one parent rather than the other, with consequent burdensome travel time for the period they are in the other parent’s care, or go to school at some place equidistant between their parents with constant burdensome travel time. That being the case, I find that it is not in the best interests of the children on the interim basis to spend equal time with each of their parents, and it is not reasonably practicable, and, therefore, I will not go on to consider making an order to that effect.
As I will not make an order that the children spend equal time with each of their parents, I must consider whether the children spending substantial and significant time with each of their parents would be in their best interests, and whether such time would be reasonably practicable. If it is in their best interests and reasonably practicable, I must then consider making an order to that effect.[57]
[57] Family Law Act 1975 (Cth) s 65DAA(2).
What is meant by substantial and significant time is set out in section 65DAA(3) of the Act and includes the children spending time with each parent that falls on weekdays, weekends, and holidays which involves the parents being able to be involved in the children’s daily routine and occasions of particular significance to the children. It also includes the children being able to be involved in occasions and events that are of special significance to the parent.
The orders sought by each of the parties on the interim basis for the time to be spent by the other party with the children if their application that the children live with them is successful do not amount in either case to substantial and significant time. During school time, it is confined to, at most, Friday to Monday and an evening per week and half the school holidays. The father does not propose any other time for the mother midweek during school terms. The mother proposes midweek time for the father with the children from after school or 4.30PM until 7.00PM on Tuesdays.
For the same reasons that I found that it is not currently in the children’s best interests to make an order on the interim basis that they spend substantial and significant time with each parent and that same is currently not reasonably practicable, I find that it is not necessary to go and consider making such an order.
Having found that it is in the child’s best interests to continue living with their mother, I must consider what order is proper to be made in the children’s best interests for their time with and communication with their father. In that regard, I am guided by what has been possible, practicable, and the actual practice between the parties, in the main, from February 2015 until the present time. That practice is that they spend time with their father each Tuesday from after school until 7.30PM or whatever time they need to be delivered to the Suburb B Wharf to catch the last ferry of the evening to Suburb F.
I find that it is proper in the interests of the children that they are met at Suburb B Wharf by their mother to accompany them back to Suburb F. At the time of preparation of these reasons, X is still nine, about to be 10 years of age, and Y is seven, about to be eight years of age.
I further find that it is, on the aforementioned basis, appropriate for the children to spend time with their father each alternate weekend during school term from after school on Friday until either:
a)Sunday at 5.00PM, allowing time for them to travel back to Suburb B Wharf to catch at least the last ferry if they are collected from the father by their mother at his place of residence;
b)Sunday at 7.00PM, if they are delivered to Suburb B Wharf by their father; or
c)Start of school Monday morning, if their father is prepared to deliver them to school, and at such other times as may be agreed in writing between the parties.
I find on the basis of consent between the parties that it is in the children’s best interest that they spend time with their father for the first week of the school holiday periods at the end of terms 1, 2, and 3 in each school year, and for one half of the school holidays at the end of term 4 each school year, being the first half of school holidays in odd numbered years and the second half of school holidays in even numbered years.
I further find that it is appropriate to make the orders as sought by the father in relation to Father’s Day and Mother’s Day each year and sharing time between their parents over the Christmas period from Christmas Eve to Boxing Day.
Other orders sought
In addition to the orders I have indicated I will make above, I find that it is appropriate to make an order, as sought, in varying terms on both parties, restraining both parties from denigrating the other party, any member of other party’s family or any member of the other party’s household, in the presence or hearing of the children, or allowing the children to remain in the presence of any other person who is doing so and restraining the parties from discussing these proceedings with, or in the presence or hearing, of the children and from showing the children any document pertaining to these proceedings.
In relation to changeover of the children at the start and finish of the father’s time with them, I find that it is appropriate to have the father collect the children from school on Tuesday afternoon and deliver them to the mother at Suburb B Wharf on Tuesday evening. It is also appropriate for the father to collect the children from school or after school care on Friday afternoons during school term, and for the mother to collect the children from the father’s place of residence on Sunday evening during school term. That is to be the case unless the father elects on any occasion, with appropriate notice of the mother, to return the children to Suburb B Wharf on Sunday evening by 7.00PM or to have the children in his care until the start of school on Monday morning and deliver them to school at that time.
In relation to changeovers in relation to school holidays, I find that it is appropriate for changeovers at the start, in the middle, and at the end of school holidays, where necessary, to occur by the parents meeting at the McDonalds Family Restaurant at Suburb C.
As I have found that it is appropriate for the children to live with their mother and spend time with their father during school term on alternate weekends and on Tuesday afternoon, I find that it is appropriate to make an order as sought by the mother that the children remain enrolled at Suburb B School. I also find that it is appropriate to make an order as sought by the ICL, that the mother be restrained from changing the children’s place of residence without further order of the Court or the father’s written consent.
Accordingly, I make the interim parenting orders set out at the start of these reasons.
I certify that the preceding one hundred and ninety (190) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 10 July 2020
- AGLC
- CALLIGAN & RADICAN [2020] FCCA 1664
- Case
- [2020] FCCA 1664
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether either parent posed a risk to the children, and if so, whether such risks could be managed through specific orders. It also had to consider the appropriate parenting arrangements, including the extent of time each parent would spend with the children, in light of the principle of equal shared parental responsibility.
The court found that while risks existed, they could be addressed by making specific orders. Consequently, the court ordered equal shared parental responsibility for the children. However, it determined that practical difficulties prevented the implementation of substantial and significant time for the father, and therefore, such an order was not made. The court issued detailed orders regarding the children's living arrangements, time spent with each parent, holiday arrangements, and specific prohibitions against denigration and discussing proceedings in the children's presence. The mother was also ordered to engage with health professionals and ensure the children's school attendance, while both parents were restrained from marijuana use for a period before and during contact.
Orders
Orders of the court
PENDING FURTHER ORDERS THE COURT ORDERS:
1.
The parents have equal shared parental responsibility for the children X born in 2010 and Y born in 2012 (“the children”).
2.
That the children live with their mother.
3.
That the children spend time with their father:
(a) each Tuesday from the end of school until 7.00 PM;
(b) each alternate weekend from the end of school on Friday until whichever of the following is elected by the father in writing to the mother no later than 7.00 PM on the Tuesday before the weekend occasion:
(i) 5.00 PM on Sunday if the children are collected by the mother from the father’s place of residence;
(ii) 7.00 PM Sunday if the father delivers the children to the mother or her nominee at the Suburb B Wharf; or
(iii) the start of school on Monday morning if the father delivers the children to their school;
(c) For half of each school holiday period being the first half of school holidays that commence in an odd numbered year and the second half of school holidays that commence in an even numbered year, and for this purpose school holidays commence at 5.30 PM on the day that school ends for the children and end at 5.30 PM on the day before school attendance resumes for the children AND changeovers at the start and the end of the father’s school holiday time with the children shall occur at the McDonalds Family Restaurant at Suburb C;
(d) from 9.00 AM until 6.00 PM on Father’s Day if the children would not otherwise be in his care on Father’s Day, with the mother to deliver the children to the father’s place of residence at the start of that time and the father to deliver the children to the mother at the Suburb B Wharf at the end of that time;
(e) in even numbered years from 11.00 AM on 25 December until 7.00PM on 26 December with changeovers to occur at the father’s place of residence at the start and at the Suburb B Wharf at the end;
(f) at such other times as may be agreed between the parents in writing from time to time.
4.
That in the event that the children would otherwise be spending time with the father pursuant to order 3(b) on Mother’s Day, the father’s time with the children on the Mother’s day weekend shall end at 7.00 PM on the Saturday before Mother’s Day with changeover at the Suburb B Wharf.
5.
That in odd numbered years the children shall be in their mother’s care from 11.00 AM on 25 December until 7.00 PM on 26 December with changeovers to occur at the father’s place of residence at the start and at the Suburb B Wharf at the end.
6.
That the mother shall regularly engage with and follow the recommendations of her general practitioner and any specialist health professionals, such as psychiatrists or psychologists, to whom she is referred by her general practitioner.
7.
That both parents are restrained from using marijuana in any of its forms for a period of 48 hours before the children or either of them come into their care and at all whilst the children or either of the children are in their care.
8.
That the mother shall ensure that each of the children attend school on school days during school terms except when they are too ill to attend school or by reason of a necessity to attend at an appointment or similar occasion that cannot be scheduled outside of school hours.
9.
That 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 of or within the hearing of either of the children.
10.
That each of the parents is restrained from allowing either of the children to remain in the presence of or within either of the children’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.
11.
That each of the parents is restrained from discussing these proceedings with, or in the presence or hearing of either of the children, and each of the parents is further restrained from showing either of the children any document pertaining to these proceedings.
12.
That the children shall remain enrolled at and attending Suburb B School.
13.
That the mother is restrained from changing the children’s place of residence without the father’s written consent or further order of the Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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