HAGANS & HAGANS

[2020] FCCA 943

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAGANS & HAGANS [2020] FCCA 943

Catchwords:
FAMILY LAW – Interim parenting orders – where parties have good communication – where allegations of illicit drug use by one party – where use of illicit drugs historical – where neither party seeks equal time arrangement – where equal parental responsibility ordered – where substantial and significant time not appropriate – where incremental increase in father’s time appropriate.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA, 65D, 65DAA, 65DAE

Cases cited:

A & A & The Child Representative [1998] FamCA 25
M & M (1998) 166 CLR 69
Goode & Goode [2006] FamCA 1346
Napier & Hepburn [2006] FamCA 1316
Johnson & Page [2007] FamCA 1235
Taylor & Barker [2007] FamCA 1246
Sealey & Archer [2008] FamCAFC 142
Starr & Duggan [2009] FamCAFC 115
MRR & GR (2010) 240 CLR 461
SS & AH [2010] FamCAFC 13
Marvel & Marvel [2010] FamCAFC 101
Dieter & Dieter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
Bondelmonte & Bondelmonte [2017] 259 CLR 662
Grella & Jamieson [2017] FamCAFC 21

Franklyn & Franklyn [2019] FamCAFC 256

Applicant: MR HAGANS

Respondent: MS HAGANS

File Number: SYC 3076 of 2018

Judgment of: Judge Morley

Hearing date: 18 February 2020

Date of Last Submission: 9 April 2020

Delivered at: Sydney

Delivered on: 3 June 2020

REPRESENTATION

Counsel for the Applicant: Dr Barnett

Solicitors for the Applicant: Pearson Emerson Meyer Family Lawyers

Counsel for the Respondent: Ms Spain

Solicitors for the Respondent: Newnhams Solicitors

ORDERS

THAT PENDING FURTHER ORDERS THE COURT ORDERS:

1. That all previous interim parenting orders are vacated;

2. That the parties have equal shared parental responsibility for their child X, born in 2015;

3. That X live with her mother;

4. That X spend time with her father as agreed between the parties, and, failing agreement, until 30 September 2020:

   (a)Each Wednesday from 3.30PM until Thursday at 8.00PM;

   (b)Each alternate weekend from 5.00PM on Friday until 4.30PM on Sunday, commencing on the weekend X is next due to spend time with her father pursuant to the orders made on 15 August 2018;

5. That the father spend time with X as agreed between the parties and, failing agreement, from 1 October 2020 until X commences school attendance in 2021:

   (a)Each Wednesday from 3.30PM until Thursday at 8.00AM;

   (b)Each alternate weekend from 5.00PM on Friday until 8.00AM on Monday, or 3.30PM on Monday if the Monday is a public holiday, including bank holidays, maintaining the same pattern of weekends as provided for in order 4(b);

6. That X spend time with her father as agreed between the parties and, failing agreement, from when X commences school in 2021:

   (a)During school term time, each Wednesday from the end of school until Thursday at the start of school;

   (b)During school term time, each alternate weekend from the end of school on Friday until the start of school on Monday, or 3.30PM on Monday, if a public holiday including bank holiday, commencing on the second weekend of term 1 in 2021;

   (c)For the first week of the school holidays at the end of terms 1, 2 and 3, from 9.00AM on the first Sunday of the school holidays until 9.00AM on the second Sunday of the school holidays;

   (d)During the school holidays at the end of term 4. from 9.00AM on the first Sunday of the school holidays until 9.00AM on the following Sunday, and each alternate week thereafter during the said school holidays; and

   (e)The father’s time with X pursuant to order 6(b) will resume on the first weekend after the start of each school term.

7. That notwithstanding any other order:

   (a)That X spend time with her father from 8.00AM on Easter Thursday until 5.00PM on Easter Saturday in even numbered years and from 5.00PM on Easter Saturday until 5.00PM on Easter Monday in odd-numbered years;

   (b)That X live with her mother from 8.00AM on Easter Thursday until 5.00PM on Easter Saturday in odd-numbered years and from 5.00PM on Easter Saturday until 5.00PM on Easter Monday in even-numbered years;

   (c)That X spend time with her father on the Father’s Day weekend from 5.00PM on the Saturday until 5.00PM on Father’s Day each year;

   (d)That X live with her mother on the Mother’s Day weekend from 5.00PM on the Saturday until 5.00PM on Mother’s Day each year;

   (e)That X spend time with her father from 11.00AM on 24 December until 11.00AM on 25 December in even-numbered years, and from 11.00AM on 25 December until 5.00PM on 27 December in odd-numbered years;

   (f)That X live with her mother from 11.00AM on 24 December until 11.00AM on 25 December in odd-numbered years and from 11.00AM on 25 December until 5.00PM on 27 December in even-numbered years;

   (g)That X live with or spend time with the parent with whom she is not living on her birthday, each year from 3.30PM until 6.15PM if it is a childcare/school day and from 8.00AM to 1.30PM if her birthday falls on a weekend or day on which X is not attending childcare/school;

   (h)That X live with her mother on her mother’s birthday, each year, in the event that X is not living with her on that day from 3.30PM until 6.15PM if occurring on a childcare/school day and from 9.00AM to 1.30PM if occurring on a non-childcare/school day;

   (i)X will spend time with her father on his birthday, each year in the event that X is not otherwise living with him on that day, from 3.30PM until 6.15PM if occurring during a childcare/school day and from 9.00AM till 1.30PM if occurring on a non-childcare/school day.

8. That notwithstanding any other order, X will spend time with her father:

   (a)From 4.30PM on Sunday, 19 July 2020 until 8.00AM on Thursday, 23 July 2020;

   (b)From 9.30AM on Friday, 28 August 2020 until 8.00AM on Wednesday, 2 September 2020;  and

   (c)From 5.00PM on 27 December 2020 until 12.00PM on 1 January 2021.

9. That notwithstanding any other order, X will live with her mother:

   (a)From 9.00AM on 4 July 2020 until 8.00AM on 16 July 2020;  and

   (b)From 5.00PM on the night preceding X’s first day of school in 2021.

10. That each of the parents will do all things necessary to ensure X has reasonable telephone and FaceTime contact with the other parent with whom X is not living or spending time, at times agreed between the parents, noting that each parent will use his and her best endeavour to encourage and facilitate such contact, and wherever possible will take place between 5.30PM and 6.30PM on the Saturday and on at least one additional day during any midweek period in excess of 72 hours when X is in the care of the other parent.

11. That each parent will provide the requisite written or verbal consents, authorities and agreements to facilitate both parents receiving and having access to:

    (a)Childcare/school premises and staff; and

    (b)Childcare/school reports, photographs, event notices and attendance requests.

12. That each of the parents is restrained from making comments derogatory of the other parent, any member of the other parent’s family, or any member of the other parent’s household, in the presence or hearing of X.

13. That each of the parents is restrained from allowing X to remain in the presence of or within her hearing of any other person who is making comments derogatory of the other parent, any member of the other parent’s family, or any member of the other parent’s household.

14. That:

    (a)Unless otherwise agreed by the parents in writing, the father or his nominee will collect X from childcare/school at the commencement of each period during which X is spending time with her father, and on occasions when X will not be at childcare/school at the commencement of her time with the father, then the father will collect X from the mother’s place of residence; and

    (b)On occasions when X will not be delivered to childcare/school at the end of her time with her father, X will be collected by her mother from her father’s place of residence.

15. That each parent shall inform the other as soon as practicable, and in any event within four hours, of any serious illness or injury, not including common colds and like illnesses, suffered by X whilst in the care of that parent and of any hospital treatment required by X.

16. That neither parent may permit X to consult with any counsellor, therapist, psychologist, or psychiatrist without first obtaining the consent of the other parent in writing, with such consent not to be unreasonably withheld.

17. That each parent shall notify the other parent of the name of any medical practitioner, health professional, or alternative health professional who treats X when she is in the care of that parent, and provide such person with an authority to provide to the other parent such documents and information as that other parent may require in relation to X.

18. That each parent must notify the other parent by email not more than 24 hours after any change to their residential address, landline telephone number (if any), mobile telephone number, and email address.

19. That each of the parents is restrained from discussing these proceedings or the contents of any document filed in or intended for use in these proceedings with X or within X’s hearing, other than with the leave of the Court.

20. That each of the parents is restrained from discussing the arrangements for X or any alteration to those arrangements at the point of collection or return of X at the commencement or conclusion of her time with either parent.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3076 of 2018

MR HAGANS

Applicant

And

MS HAGANS

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to parenting issues under the Family Law Act(Cth) 1975 (‘the Act’) between the applicant father, Mr Hagans, (‘the father’), and the respondent mother, Ms Hagans, (‘the mother’), concerning their daughter, X (‘X’), born in 2015.

2. On 18 February 2020 I conducted an interim hearing in which both parties sought interim parenting orders that varied the combination of orders that were in force from hearings conducted on 15 August 2018 and 27 September 2019.   

3. The parties commenced cohabitation in 2007, married in 2009, separated on 15 April 2016, and were divorced on 29 May 2018. X is the only child of their relationship, and she is the only child of each of the parties. 

4. The father resides in Suburb A with his partner, Ms B (‘Ms B’). The mother resides in Suburb C with her partner, Mr D (‘Mr D’). Mr D has two children, E aged 11 years and F aged 9 years. E and F live with the mother and Mr D five nights a fortnight, being each alternate weekend from Wednesday after school until Monday before school and for half the school holidays. 

5. The father is a professional in employment with the Employer G. The mother is a professional employed four days per week by Employer H.

6. X currently attends J School three days a week on Monday, Tuesday and Wednesday from about 8.00AM until 3.30PM. X is due to commence school in 2021 at K School in Suburb C, a school agreed upon between her parents.

The proceedings

1. Proceedings were commenced on 16 May 2018 with the filing of an Initiating Application by the father, responded to on 5 July 2018 by the mother. The matter was set down for an interim hearing before Judge Harper (as his Honour then was) on 16 August 2018, but prior to that time the parties came to a consent agreement, and orders were made in accordance with that consent agreement by his Honour in chambers on 15 August 2018. 

2. Those orders provided on an interim basis:

   a)For the parents to have equal shared parental responsibility for X;

   b)For X to live with her mother and to spend time with her father for a period of six months:

   i)Each Monday from 3.30PM till 6.15PM;

   ii)Each Wednesday from 3.30PM until Thursday at 8.00AM; and

   iii)Each Saturday from 9.30AM until 4.30PM. 

   c)At the expiration of six months, the orders provided for X to:

   i)Spend time with her father each alternate Monday from 3.30PM until 6.15PM;

   ii)Each Wednesday at 3.30PM until Thursday at 8.00AM; and

   iii)Each alternate weekend from 9.30AM on Saturday until 4.30PM on Sunday.

3. Orders were made for X to spend other specific time with each of her parents by way of short holiday times, not exceeding one overnight on any occasion, and taking into account special occasions such as Easter, Father’s Day, Mother’s Day, X’s birthday, each of the parent’s birthdays, public holidays, and the Christmas period.

4. It was the intent of the parties, as expressed in those consent orders, that the matter would then go over to sometime after 15 August 2019 for consideration by the parties of further time to be spent between the father and X.

5. A consent arrangement was not able to be reached between the parents in late 2019, and as a consequence the matter was listed for a further interim hearing on 18 February 2020.

6. Prior to the interim hearing, on 27 September 2019, the parties reached a further interim arrangement providing for the time that X would spend with each of her parents in the period from 24 December 2019 up to 27 January 2020. 

7. On 18 February 2020, the matter went to the further interim hearing, the father being represented by Dr Barnett of counsel and the mother being represented by Ms Spain of counsel.

8. At the end of that interim hearing, I granted leave to the respondent mother to have a subpoena addressed to Dr L issued by the Court, and returnable six days after the date of issue. I also made an order that upon production of documents in response to that subpoena issued to Dr L, leave was granted to both parties to photocopy all material produced.

9. I further directed that both parties were to provide any written submissions in relation to the material produced by Dr L, in the event they wished to make submissions, by no later than 4.00PM on 10 March 2020, such written submissions to be forwarded to Chambers. The time for filing the further written submissions was extended on the application of both parties.

10. On 26 February 2020, I made an order in chambers granting leave to the mother to issue subpoenas with short service to Dr M of N Medical Centre, Dr O, and Medicare. On 30 March 2020, I reserved the judgment in relation to the interim hearing occurring on 18 February 2020. 

11. Further written submissions were received on behalf of the mother on 2 April 2020 and on behalf of the father on 9 April 2020.  It is by consent of both parties and leave of the Court that those written submissions received after judgment was reserved are considered in these reasons.

The evidence relied upon by the parties

1. At the interim hearing, the father relied upon the following documents:

   a)An Outline of Case document prepared by his counsel, Dr Barnett, and a separate Minute of Orders (not being the Minute of Order attached to the Outline of Case document) setting out the orders sought by the father;

   b)His Application in a Case filed 19 September 2019;

   c)The affidavit of the father sworn 24 January 2020 and filed that day;

   d)An affidavit of the father sworn 18 February 2020 and filed in Court at the interim hearing after leave was granted;

   e)An affidavit of Ms B affirmed 24 January 2020 and filed that day;

   f)An affidavit of Dr O sworn or affirmed on 23 January 2020 and filed 24 January 2020, a registered psychologist consulted by the father, and attaching thereto a report dated 17 January 2020;

   g)Exhibit A1, being a report by Dr L, forensic psychiatrist, dated 24 January 2020 in relation to the father;

   h)Exhibit A2, being a report by Dr L, forensic psychiatrist, dated 18 February 2020 relating to the father and being by way of an addendum to that doctor’s report of 24 January 2020 (exhibit A1); and

   i)Affidavit of the father sworn 19 September 2019 and filed that day.

2. The father also relied upon further written submissions prepared by his counsel, Dr Barnett, filed 9 April 2020.

3. The following documents were relied upon by the mother:

   a)A Case Outline document prepared by her counsel, Ms Spain, which included a Minute of the Orders sought by the mother at the interim hearing;

   b)The mother’s Response to Application in a Case filed 24 September 2019;

   c)The affidavit of the mother sworn 24 September 2019 and filed that day;

   d)The affidavit of the mother sworn 14 February 2020 and filed that day, together with the annexures to that affidavit handed up in Court, without objection, during the interim hearing; and

   e)Paragraphs 46 to 50 of the mother’s affidavit sworn 4 July 2018 and filed 5 July 2018. That material was specifically referred to by the mother in paragraph 32 of her affidavit sworn 14 February 2020, and accordingly I took that material to be material relied upon by the mother in the interim hearing.[1]

   [1] Franklyn & Franklyn [2019] FamCAFC 256.

4. The mother also relied upon further written submissions prepared by Ms Spain and filed 2 April 2020.

5. In relation to the further written submissions relied upon by each of the parties, they each relied upon the material produced on subpoena subsequent to the interim hearing, with leave, by Dr L and Dr O.

6. Practice Direction 2 of 2017 limits the affidavit that may be relied upon from any one witness in an interim hearing, including by parties, to 10 pages of text and five annexures. [2] Nevertheless, I accepted the evidence of the father contained in his three affidavits sworn 19 September 2019, 24 January 2020, and 18 February 2020, and I accepted the evidence of the mother in her affidavits filed 24 September 2019 and 14 February 2020.

   [2] Federal Circuit Court Of Australia, Practice Direction No. 2 of 2017 – Interim Family Law Proceedings.

7. The issue for the consideration of the Court in the interim hearing was the amount of time that X should spend with her father, it being agreed between the parties throughout the proceedings that they have equal shared parental responsibility for X, and that she live with her mother on the interim basis.

8. On a final basis, the father seeks an arrangement where X spends equal time with each of her parents. The mother seeks final orders that X lives with her and spends defined time with her father on a graduating basis to a point where, from X’s eighth birthday in 2023, she will spend:

   a)Each Wednesday from after school until the start of school on Thursday;

   b)Each alternate weekend from 9.30AM Saturday to the start of school the following Tuesday;

   c)One half of the term 1, 2 and 3 school holidays;

   d)Two weeks in the term 4 school holidays with her father; as well as

   e)Defined arrangements for special occasions. 

9. At the time of the interim hearing the father was spending time with X as follows:

   a)Each alternate Monday from 3.30PM to 6.15PM;

   b)Each Wednesday from 3.30PM until Thursday at 8.00AM;

   c)Each alternate weekend from 9.30AM on Saturday till 4.30PM on Sunday; and

   d)The father to spend time with X on public holidays and special occasions including Christmas, New Year, Easter and Father’s Day as arranged between the parties following the defined times for those special occasions set out in the orders of 15 August 2018 and 27 September 2019.

The orders sought by the parties

1. In summary form, and leaving out ancillary orders that were a matter of agreement between the parties that are not set out in any consent orders, the father sought the following orders on interim hearing:

   a)That X live with her mother;

   b)That X spend time with him as agreed between the parties in writing and failing agreement:

   i)Each alternate Monday from 3.30PM, or 8.00AM if a public holiday including a bank holiday, until 6.15PM;

   ii)Each Wednesday from 3.30PM until Thursday at 8.00AM; and

   iii)Each alternate weekend from 5.00PM Friday until 4.30PM on Sunday for a period of six months, then each alternate weekend from 5.00PM on Friday until 8.00AM on Monday;

   c)That X spend holiday time with him for increasing periods of time during 2020 from a three-night period over Easter and a two-night period in late April through to two occasions of four nights and one occasion of five nights and finally, to a six-night period at the end of December 2020;

   d)That in 2021, when X has started school attendance:

   i)She spend the first week of the school holidays at the end of terms 1, 2 and 3 with him from 9.00AM on Sunday to 9.00AM the following Sunday;

   ii)That she spend alternate weeks with him during the school holidays at the end of term 4 commencing the first week of the school holiday period from 9.00AM Sunday to 9.00AM the following Sunday and alternating weekly thereafter;

   e)That X spend time with her father from 11.00AM on 24 December till 11.00AM on 25 December in even-numbered years and from 11.00AM on 25 December until 5.00PM on 26 December in odd-numbered years;

   f)That X live with her mother from 11.00AM on 25 December until 5.00PM on 26 December in even-numbered years and from 11.00AM on 24 December until 11.00AM on 25 December in odd-numbered years;

   g)That X spend time with her father from 9.00AM on Good Friday 2021 until 2.30PM on Easter Sunday 2021 and from 2.30PM on Easter Sunday 2022 to 6.15PM on Easter Monday 2022;

   h)That X live with her mother from 2.30PM on Easter Sunday 2021 until 6.15PM on Easter Monday 2021 and from 9.00AM on Good Friday 2022 until 2.30PM on Easter Sunday 2022;

   i)That X spend time with her father from 12.00PM until 6.15PM on all public holidays including bank holidays each year, in the event that X is not otherwise living with him at that time, except during the Easter, Christmas and New Year periods;

   j)That X have reasonable telephone and FaceTime contact with the parent with whom she is not living, at times agreed between the parties, and wherever possible between 5.30PM and 6.30PM, and including FaceTime contact on a Saturday and at least one additional day during any midweek period in excess of 72 hours when X is in the care of the other parent; and

   k)A restraint on the mother changing X’s surname or causing her to be known by any surname other than ‘Hagans’.

1. Leaving out orders agreed to by the parties, the mother sought orders at interim hearing summarised as follows:

   a)By implication, that the interim consent orders made on 15 August 2018 not otherwise contradicted by alternative orders sought by the mother continue;

   b)That X spend time with her father at such times as are agreed between the parties in writing, and failing agreement:

   i)Each alternate Wednesday from 3.30PM until Thursday at 8.00AM on the Wednesday and Thursday following the weekend that X spends time with her father; and

   ii)Each alternate weekend from 5.00AM on Friday until 4.30PM on Sunday;

   c)That X spend time with her father from 9.00AM on Good Friday 2020 until 5.00PM on Easter Saturday 2020 and live with her mother from 5.00PM Easter Saturday 2020 until 5.00PM on 18 April 2020;

   d)That during that December 2020/January 2021 period X spend time with her father:

   i)From 5.00PM on 29 December 2020 until 9.00AM on 1 January 2021;

   ii)From 5.00PM on 7 January 2021 to 5.00PM on 10 January 2021; and

   e)That X live with her mother:

   i)From 9.00AM on 1 January 2021 until 5.00PM on 7 January 2021; and

   ii)From 9.00AM on 23 January 2021 until 5.00PM on 26 January 2021;

   f)That unless otherwise agreed by the parents in writing, the father collect X from childcare/school at the start of his time with her, but if X is not at childcare/school, the mother deliver X to the father’s home at the start of the father’s time with X, and the father return X to the mother’s home at the end of his time with her;

   g)That the parents do everything to ensure that X has reasonable telephone and FaceTime contact with the parent with whom she is not spending time, at times agreed between the parties, with the parent with whom X is spending time to initiate telephone and FaceTime contact with the other parent, which shall wherever possible take place at 8.00AM on the Sunday morning;

2. The father did not seek an order at interim hearing different to the order for changeover set out in the interim orders made by consent on 15 August 2019, which the father sought to specifically preserve. That order provided for the father to collect X from childcare at the start of his time with her, and if X is not at childcare, for the father to collect X from the mother’s home at the start of his time and for the mother to collect or arrange for X to be collected from the father’s home at the end of his time with her. 

3. I was greatly assisted in this matter by the Case Outlines provided by counsel appearing for each of the parties and by their oral submissions. 

The evidence

1. The history of the parties’ relationship is set out in the introduction to these reasons.

2. The thrust of the mother’s evidence going to the issue of how much time the father should spend with X dealt mainly with the risks asserted by the mother in her Notice of Risk filed 4 July 2018. That assertion was consequent upon:

   a)The father’s history of mental health issues;

   b)His inability to regulate his emotions; and

   c)The mother’s evidence of X’s behaviour, related by the mother to the time that X spends with her father, its duration and regularity, asserted by the mother to be causing X distress.

3. In the interim hearing the mother asserted further risks associated with her allegation that the father has a history of abuse of alcohol and illicit drugs and continues to do so. 

4. In paragraphs 46 to 50 of the mother’s affidavit of 4 July 2018, she gives some evidence of what she refers to as the father’s mental health issues. She narrates an incident toward the end of 2010, about a year after the parties’ married and some five and a half years before they separated, when she heard a loud bang at home and rushed into the room the noise came from to find out what was happening.[3] She asserts that she saw that the father had tied a necktie around his neck, and around a door handle “and had apparently slammed the door”.[4]

   [3] Affidavit of Ms Hagans sworn 4 July 2018, [46]-[50].

   [4] Affidavit of Ms Hagans sworn 4 July 2018, [46].

5. The father does not refer to this incident in his affidavits, but it is referred to in paragraph 25 of the report of 24 January 2020 by Dr L:

   He has told me that through his mid-thirties, in the context of the problems in his relationship with his ex-wife at the time, including the struggles with conception;  he had suffered significant anxiety and depression;  with suicidal thoughts, urges and behaviours;  with, on one occasion in 2010 or 2011, his ex-wife finding he is attempting to tie a belt to the back of a door, in what he has described to me as, “…attempted suicide…in a half-hearted way…”.  He has told me that at the time he was treated with antidepressant medication (Sertraline, Zoloft, in small doses), that, “…worked for a time…”.[5]

   [5] Exhibit A1, [25].

6. The mother recites that in early 2006 during marriage counselling sessions the father said, “I have had thoughts about suicide over the last year”.[6] There is no evidence before the Court of the father manifesting any suicidal ideation by actions other than the one occasion towards the end of 2010, 10 years ago, and five years before the birth of his daughter. These ideations occurred at a time when the parties were dealing with their difficulties with natural conception and at the start of or early in their participation in in vitro fertilisation.

   [6] Affidavit of Ms Hagans sworn 4 July 2018, [47].

7. The mother gives evidence that the father exhibited anger by hitting his head against the wall or floor, and pushing their dog away when she came over to him if he was angry. In her affidavit of 24 September 2019, the mother says that during their relationship, the father would strike his head repeatedly against the brick wall or lie on the floor and strike the floor or his hand against his head. 

8. In her affidavit of 14 February 2020, the mother describes an incident occurring when she was pregnant with X, therefore sometime between March and December 2015 when, following a verbal exchange, the father began crying. The mother deposes that the father said “It’s too much pressure. It’s too much. I can’t cope.”,[7] and that he began hitting his fist on the wall and then curled up in a ball on the floor and hit his head on the floor and said, “Just leave me alone.  Just leave me alone.  I’m a terrible person”.[8] 

   [7] Affidavit of Ms Hagans sworn 14 February 2020, [32].

   [8] Affidavit of Ms Hagans sworn 14 February 2020, [32].

9. In the father’s affidavit of 24 January 2020 he says, “I do not agree that during my relationship with Ms Hagans I would repeatedly strike my head against a brick wall or lay on the floor and strike the floor or my hand against my head”.[9] 

   [9] Affidavit of Mr Hagans sworn 24 January 2020, [33].

10. The father says that he was treated for anxiety from about 2010 until about 2013 and that following the parties’ separation in April 2016, he began attending with Dr O, a psychologist, for counselling and support for anxiety.

11. The father relies on an affidavit by Dr O that attaches his CV and a report dated 17 January 2020. The father had 17 counselling sessions with Dr O between April 2016 and March 2017, a follow-up phone call on 30 May 2017 and an appointment on 15 October 2019. At the October appointment, Dr O administered the Depression Anxiety Stress Scale psychometric test (not a diagnostic test) in relation to which Dr O reports the father’s scores as: 

    a)Depression – normal (4);

    b)Anxiety – normal (0); and

    c)Stress – normal (8).[10]

    [10] Affidavit of Dr O sworn 23 January 2020, p 11.

12. During the consultations the father disclosed his suicide attempt with the belt or tie on the door handle in about 2010 or 2011 referred to above. Dr O also conducted a suicide assessment on regular occasions and consistently is certain that the father was no risk to himself.

13. Dr O gives his opinion that as of October 2019 the father was not suffering from a mental health disorder. [11]

    [11] Affidavit of Dr O sworn 23 January 2020, p 13, [7].

14. The report and addendum to report prepared by Dr L (exhibits A1 and A2) indicate that Dr L is the father’s, “current treating psychiatrist”,[12] and reveals that the father reported to Dr L a binge drinking history in his university days in the United Kingdom (where he was born). The report also reveals the father’s use of ecstasy and cocaine in his mid-20s, “resulting in problems with anger and arguments with his ex-wife; but that, at least over the past three years, in the relationship with his current partner, he has no longer used MDMA, or used cocaine on a regular basis”.[13]

    [12] Exhibit A1, [4].

    [13] Exhibit A1, [22].

15. The father reported to Dr L that in his mid-20s he had attended the P Clinic in England as an outpatient for treatment of problems with anxiety, depression, alcohol, and other drug use. He reported to Dr L his 2010 or 2011 suicide attempt, as detailed above, and that throughout his adulthood he has struggled with being impulsive.[14] On the basis of the history and examination conducted by Dr L, the doctor diagnosed the father with adult ADD and prescribed medication for treatment of that condition.[15] 

    [14] Exhibit A1, [25].

    [15] Exhibit A1, [33].

16. Some concern could be raised by comments toward the end of Dr L’s report of 24 January 2020

    Furthermore, with successful resolution of the proceedings regarding his daughter, and focus on reducing his alcohol and other drug use, I am also optimistic regarding the longer-term outcome for his anxiety and mood management. On the information available to me, I do not consider that Mr Hagans current mental health condition; including the current nature and extent of his adult ADD, his alcohol and other drug use, and ... his history of problems with anxiety and mood; would significantly impact his capacity to parent his daughter.[16]

    [16] Exhibit A1, [41].

17. This reference to, “the current nature and extent of…his alcohol and other drug use”,[17] is not based on any history given by the father that he has been a user of illicit drugs past his mid-20s.  In the addendum report dated 18 February 2020 Dr L says,

    The presence of significant substance abuse requires a second opinion from a psychiatrist or an addiction medicine specialist supporting psychostimulant treatment for patients with a psychiatric diagnosis of adult ADD.  As per my report dated 24 January 2020, I have not diagnosed Mr Hagans as suffering from significant substance abuse, or a substance use disorder, and I have not sought such a second opinion as a result.[18]

    [17] Exhibit A1, [41].

    [18] Exhibit A2, [6].

18. In the notes taken by Dr L, produced under subpoena and tendered by both parties in their further written submissions after the interim hearing, it is asserted by Ms Spain for the mother that father is noted as abusing MDMA and cocaine of recent times and as being a continuing heavy drinker of alcohol. However, when the actual words tending towards that effect are taken in context with the age headings used by the doctor when taking his notes of the father’s narration of his life history, it is apparent that the behaviours noted relate to an earlier period of the father’s life, specifically when the father was in his mid-twenties and also in his early years as a migrant to Australia. It is clear on that evidence that the behaviours are historical and not current.

19. I note that the “Application for Authority to Prescribe a Schedule 8 Drug – Psychostimulant” dated 22 November 2019 prepared by Dr L confirms this interpretation.[19]

    [19] Short Submissions on Subpoena Material filed 9 April 2020, p 17.

20. No evidence is given by the mother of her being personally aware of illicit drug use by the father. 

21. I have read and considered very carefully all of the evidence filed by each of the parties and relied upon in the interim hearing as detailed earlier in these reasons, and the report and addendum to report by Dr L in exhibits A1 and A2. I find on the basis of all of that evidence that there is no risk to X presented by her father in relation to any mental health issue, including his having been diagnosed with adult ADD, or misuse of substances by the father or failure of emotional regulation by the father. 

22. The other issue raised by the mother, as foundation for her case for orders to be made relating to the father’s time with X as sought by her, is her assertion of the reaction of X to the time she has spent with the father, its duration and frequency, since the interim orders made by consent on 15 August 2018. 

23. In her affidavit of 24 September 2019 the mother asserts that X has not coped well with “the changes to her routine”,[20] following the orders of August 2018, giving the following evidence: 

    a)Following the Wednesday to Thursday overnight occasions, X would be very quiet and withdrawn on the drive home on Thursday morning and then once home she would often have “a big melt-down or tantrum”;[21]

    b)Following the February 2019 change, to X spending every second weekend with her father from Saturday to Sunday, X would have bouts of crying during the Sunday evening after coming home and her sleep patterns were affected by being unable to be soothed at night;[22]

    c)On Father’s Day 2019, at changeover at the start of X’s time with her father, she was very distressed and did not want to leave her mother. In any event, she did leave her mother and went and spent time with her father;[23]

    d)The mother gives evidence that the father has had difficulty administering Panadol in liquid form to X on occasions when X has had a fever or other such illness whilst in his care. The mother gives X Panadol in liquid form;[24] 

    e)The mother complained that despite her best efforts to ensure that X’s toilet training regime, particularly at night, was consistent between the two households, the father has allowed X to relapse for a period of time and use a night-time nappy;[25] 

    f)On 10 August 2019 at changeover at the start of X’s time with her father, X was very distressed and stayed behind her mother’s back, refusing to go with her father, and screamed “for about 30 minutes”.[26] With the mother’s encouragement, X did go with her father. [27]

    g)The mother recounts that on an occasion when the parties were consulting Ms Q for advice on the best way to disclose to X the true nature of her paternal parentage (sperm donor IVF treatment), the father became distressed and cried. The mother’s inclusion of this in her evidence causes me some concern as to what she sees as relevant to the best interests of X. It is not a matter that I consider relates to any element of risk for X in spending time with her father, the whole of the difficulties with conception between the parties being patently, on the evidence of both parties, a very emotive issue for the father.[28] 

    [20] Affidavit of Ms Hagans sworn 24 September 2019, [21].

    [21] Affidavit of Ms Hagans sworn 24 September 2019, [21.1].

    [22] Affidavit of Ms Hagans sworn 24 September 2019, [21.4].

    [23] Affidavit of Ms Hagans sworn 24 September 2019, [22].

    [24] Affidavit of Ms Hagans sworn 24 September 2019, [24].

    [25] Affidavit of Ms Hagans sworn 24 September 2019, [28].

    [26] Affidavit of Ms Hagans sworn 24 September 2019, [29].

    [27] Affidavit of Ms Hagans sworn 24 September 2019, [29].

    [28] Affidavit of Ms Hagans sworn 24 September 2019, [30].

24. In the mother’s affidavit of 14 February 2020, she gives the following evidence relevant to X’s reaction to spending time with her father:

    a)Following occasions when X spends time with her father, she is very happy to see her mother and makes comments to her mother to the effect that she does not like being away from her and that she misses her. She gives evidence that X makes statements indicating that she does not want to spend as long away from her mother and with her father as is provided for in the August 2018 orders:

    i)“Mummy, I don’t want to go with daddy for so long.  I want to stay with you”;[29]

    [29] Affidavit of Ms Hagans sworn 14 February 2020, [10].

    ii)“I don’t want to go. I want to stay with you, mummy”;[30] and

    iii)“Why did you not pick me up yesterday?”. This was following overnight time with her father from 1 to 3 January 2020. [31]

    b)The mother gives evidence of an occasion between 6 and 8 February 2020 when the father, again, was not able to give X Panadol in liquid form;[32] 

    c)In paragraph 31.13 of the affidavit, the mother says:

    The Monday times X spends with Mr Hagans is disruptive and disturbs X’s routine.  The Monday nights were introduced when X was very little and short, frequent visits were at that time more in X’s best interests.  Now that she is four years of age, the transitions have become harder and more disruptive to X’s routine.  As I collect X so late from Mr Hagans’ house, at 6.15 pm, we do not get home until approximately 6.45 pm.  This means that her usual bedtime routine, beginning at 7 pm is pushed back.[33]

    d)The mother refers to an occasion on 7 January 2020 when X was, again, unwilling to go with the father at the start of his time, but after encouragement from her mother and an “extra cuddle”,[34] as X’s way of prolonging her goodbye with her mum, X did go with her father and spent the time with him;

    e)The mother says “When I collect X from Mr Hagans’, I have never observed her to be sad to leave Mr Hagans as she always jumps into my arms and gives me a big cuddle.”[35] The fact that X is very happy to see her mother at the end of spending time with her father, her mother being her principal carer throughout her life and very much her primary attachment figure, does not mean that X does not enjoy her time with her father or that such time has been of too long a duration or occurring too frequently.

    [30] Affidavit of Ms Hagans sworn 14 February 2020, [13].

    [31] Affidavit of Ms Hagans sworn 14 February 2020, [14].

    [32] Affidavit of Ms Hagans sworn 14 February 2020, [26].

    [33] Affidavit of Ms Hagans sworn 14 February 2020, [31.13].

    [34] Affidavit of Ms Hagans sworn 14 February 2020, [31.14].

    [35] Affidavit of Ms Hagans sworn 14 February 2020, [31.14].

25. As I have said in relation to specific matters, I have read and considered very carefully all of the evidence relied upon by the mother at the interim hearing and all of the evidence relied upon by the father at the interim hearing. I have carefully read and considered the contents of the Child-Dispute Conference Memorandum to Court dated 1 August 2018 prepared by Family Consultant R, following interviews with the parties on 30 July 2018 both separately and then together.

26. I find that there is nothing in the evidence that grounds any finding of a risk to X in spending time with her father. I find that there is nothing in the evidence that mitigates against X spending increased time with her father as sought by him in his Minute of Order on interim hearing consequent upon X’s reaction to or behaviour prior to or following occasions of time with her father. 

27. The mother gives evidence that “some changeovers are still difficult, and I try to avoid conflict as much as possible”[36] and that on occasions the maternal grandfather or maternal grandmother collect X on the mother’s behalf. The father makes no complaint in relation to this and does not seek any order requiring changeover to be conducted by the mother only. He does make comment in his evidence that he would like to be advised as to who is collecting X, but he does not seek any order in his Minute of Orders to that effect.

    [36] Affidavit of Ms Hagans sworn 24 September 2019, [41].

28. On a careful consideration of all of the evidence presented on interim hearing by the mother, I find that there is not sufficient evidence, or really any at all, of changeovers being particularly conflictual between the parties, such that changeovers not occurring by collection from or return of X to childcare (or eventually school), should be other than at the parents’ places of residence and attended by either the parents or trusted persons on their behalf;

1. The mother gives evidence that she does not use any other surname for X other than ‘Hagans’ and she has no intention of using any other surname for X.

The law

1. In any parenting proceedings under the Act, the Court is required to follow the legislative pathway. That applies to interim hearings on parenting issues.[37]

   [37] See especially Goode & Goode [2006] FamCA 1346 (Bryan CJ, Finn, and Boland JJ); Marvel & Marvel [2010] FamCAFC 101 (Faulks DCJ, Boland, and Stevenson JJ); MRR & GR (2010) 240 CLR 461 (French CJ, Gummow, Hayne, Kiefel, and Bell JJ).

2. The Court must give attention to section 60B that sets out the objects of Part VII of the Act as those objects inform the making of parenting orders and that section contains the principles behind those objects.[38]

   [38] Family Law Act 1975 (Cth) s 60B.

3. In this matter I have considered those objects and the principles behind those objects.

4. 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.[39] 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. However, the child’s interests must always be the paramount consideration.

   [39] Family Law Act 1975 (Cth) s 60CA.

5. 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.[40] The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[41]

   [40] Family Law Act 1975 (Cth) s 65D(1).

   [41] Family Law Act 1975 (Cth) s 65D(2).

6. In determining what is in the child’s best interests, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC of the Act and make findings.[42]

   [42] Family Law Act 1975 (Cth) s 60CC(1).

7. 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.[43]

   [43] Family Law Act 1975 (Cth) s 61DA(1).

8. The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse.[44] The presumption, when applying, may be rebutted by evidence that satisfies the Court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.[45]

   [44] Family Law Act 1975 (Cth) s 61DA(2).

   [45] Family Law Act 1975 (Cth) s 61DA(4)

9. When the Court is considering parenting matters on the interim basis, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making the order.[46]

   [46] Family Law Act 1975 (Cth) s 61DA(3).

10. 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;[47] and

    b)Whether the child spending equal time with each of the parents is reasonably practicable.[48]

    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.[49]

    [47] Family Law Act 1975 (Cth) s 65DAA(1)(a).

    [48] Family Law Act 1975 (Cth) s 65DAA(1)(b).

    [49] Family Law Act 1975 (Cth) s 65DAA(1)(c).

11. If the Court makes an order for equal shared parental responsibility, but does not make an order for the child to spend equal time with each of the parents, then the Court must consider:

    a)Whether the child spending substantial and significant time with each of the parents will be in the best interest of the child;[50] and

    b)Whether the child spending substantial and significant time with each of the parents is reasonably practicable.[51]

    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.[52]

    [50] Family Law Act 1975 (Cth) s 65DAA(2)(c).

    [51] Family Law Act 1975 (Cth) s 65DAA (2)(d).

    [52] Family Law Act 1975 (Cth) s 65DAA(2)(e).

12. What is meant by “substantial and significant time”[53] is set out in section 65DAA(3) of the Act and includes:

    a)Days that fall on weekends and holidays;[54]

    b)Days that do not fall on weekends or holidays;[55]

    c)The child being able to be involved in occasions and events special to the parents;[56]

    d)The parents being able to be involved in occasions and events of particular significance to the child;[57] and

    e)The parents participating in the child’s daily routine.[58]

    [53] Family Law Act 1975 (Cth) s 65DAA(2)(e).

    [54] Family Law Act 1975 (Cth) s 65DAA(3)(a)(i).

    [55] Family Law Act 1975 (Cth) s 65DAA(3)(a)(ii).

    [56] Family Law Act 1975 (Cth) s 65DAA(3)(c),

    [57] Family Law Act 1975 (Cth) s 65DAA(3)(b)(ii).

    [58] Family Law Act 1975 (Cth) s 65DAA(3)(b)(i).

13. 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.[59]

    [59] Family Law Act 1975 (Cth) s 65D.

14. 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 Grella & Jamieson:[60]

    A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.[61]

    [60] Grella & Jamieson [2017] FamCAFC 21 (Bryant CJ, May, & Kent JJ).

    [61] Grella & Jamieson [2017] FamCAFC 21, [18].

15. There is no requirement that the Court consider the best interests of the child under section 60CC, the matters dealt with in section 61DA as to parental responsibility, and the time to be spent under section 65DAA, in any particular order. It is suggested by the Full Court in Starr & Duggan[62] that a useful approach is to:

    a)First make findings in relation to the considerations set out in 60CC;

    b)Then, to consider in the light of the findings made in relation to section 60CC how (or if and how) an order is to be made relating to parental responsibility; and

    c)Then, to consider the matters under section 61DAA relating to equal time or substantial and significant time and, if neither is determined to be in the child’s best interest, to go on to determine what parenting orders are proper to be made in the child’s best interests.[63]

    [62] Starr & Duggan [2009] FamCAFC 115 (Boland, Thackray, & Watts JJ).

    [63] Starr & Duggan [2009] FamCAFC 115, [38]. See also Taylor & Barker [2007] FamCA 1246 (Bryant CJ, Faulks DCJ, & Finn J); Sealey & Archer [2008] FamCAFC 142 (Bryant CJ, Finn, & Thackray JJ).

16. As the High Court of Australia said in their joint judgment in Bondelmonte & Bondelmonte:[64]

    A parenting order made under section 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the Court to be relevant [Family Law Act 1975 (Cth) s 60CC(3)(m)]. The primary considerations in section 60CC(2) are matters to be borne in mind as consistent with the objects of Part VII. The additional considerations in section 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion [Norbis & Norbis (1986) 161 CLR 513 at 518], as does the overall assessment of what is in the best interests of the child.[65]

    [64] Bondelmonte & Bondelmonte [2017] 259 CLR 662 (Keifel, Bell, Keane, Nettle, and Gordon JJ).

    [65] Bondelmonte & Bondelmonte [2017] 259 CLR 662, [32].

17. There is much jurisprudence on 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, such a finding rarely being open to the Court on the evidence, but rather to assess whether the evidence establishes that there is a risk to the best interests of the child.

18. 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.

19. Detailed exposition of the treatment of risk in family law parenting matters can be found in the High Court’s decision in M & M,[66] and the decisions of the Full Court of the Family Court of Australia in A & A,[67] Napier & Hepburn,[68] and Johnson & Page.[69]

    [66] M & M (1998) 166 CLR 69 (Mason CJ, Brennan, Dawson, Toohey, & Gaudron JJ).

    [67] A & A & The Child Representative [1998] FamCA 25 (Fogarty, Kay, and Brown JJ).

    [68] Napier & Hepburn [2006] FamCA 1316 (Bryant CJ, Kay, and Warnick JJ).

    [69] Johnson & Page [2007] FamCA 1235 (May, Boland, and Stevenson JJ).

20. In Dieter & Dieter,[70] the Full Court found:

    The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.[71]

    [70] Dieter & Dieter [2011] FamCAFC 82 (Finn, Thackray, and Strickland JJ).

    [71] Dieter & Dieter [2011] FamCAFC 82, [61].

21. I further note the comments made by the Full Court of the Family Court of Australia in the case A & A:[72]

    [3.23] The task which his Honour was required to perform was to determine whether the evidence was such as to establish that there would be an unacceptable risk to the children if they were to have contact or supervised contact with the husband. The basis of that is that if there were an apprehension that the husband was the perpetrator of this violent assault that, together with the profile of such an assailant referred to in Dr Waters' evidence, to which we will refer later, may cause the Court to conclude that future contact by the father to these young children, at least unless strictly supervised, will carry with it a risk that he may act in a similarly irrational and violent way towards them. This is aside altogether from the question of its effect upon the wife. The concentration here is upon the welfare and safety of the children. In reaching a conclusion on that issue, it is necessary for the Court to form some opinion about the connection between the assault and the husband. It would not be necessary in this exercise to reach a positive conclusion that he was the assailant. On the other hand, if the Court reached a comfortable conclusion that the husband was not the assailant, that would be likely to have a profound effect upon the approach to the question of contact.

    [3.24] In cases of this sort often it is not possible for the Court to form a positive view at one end or the other end of this scale of persuasion and it is not necessary for it to do so: see the discussion in N and S (1996) FLC 92-655. The term identified by the High Court in M and M of "unacceptable risk" provides the touchstone for such an enquiry. Usually they are sexual abuse or similar cases, but this approach includes cases of the type identified here which involve the assessment of the risk of future physical and/or emotional harm: see M and M, supra, CLR at 77 referred to above.

    [3.25] Here the primary question which his Honour should have addressed was, looking at the whole of the evidence, whether contact (or at least contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantify in any precise way, it may place those children in circumstances of potential jeopardy in the future in their father's care.[73]

    [72] A & A & The Child Representative [1998] FamCA 25 (Fogarty, Kay, and Brown JJ).

    [73] A & A & The Child Representative [1998] FamCA 25, [3.23]-[3.25] (emphasis added).

22. Where there is contested evidence in an interim hearing, the Court is not always able to make a finding. In cases of contested evidence, the Court is mindful to consider whether the evidence is sufficiently corroborated, and whether this corroboration is existent on the balance of the evidence before the Court, or on the balance of one party’s evidence in support of their case. Either case may enable the Court to make a finding.

23. Irrespective of whether the Court is capable of making a finding, the Court must do what can be done on the basis of agreed facts and contested evidence to perform the function of the Court – to resolve any interim issues with the best interests of the child as the paramount consideration, and to make whatever orders are then considered proper.

24. In SS & AH,[74] 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.[75]

    [74] SS & AH [2010] FamCAFC 13 (Boland, Thackray, and O’Ryan JJ).

    [75] SS & AH [2010] FamCAFC 13, [100].

25. As noted by the Full Court of the Family Court of Australia in Eaby & Speelman,[76] 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.”[77]

    [76] Eaby & Speelman [2015] FamCAFC 104 (Thackray, Ryan, and Forrest JJ).

    [77] Eaby & Speelman [2015] FamCAFC 104, [19]. See especially SS & AH [2010] FamCAFC 13, [100]; see also Marvel & Marvel [2010] FamCAFC 101 (Faulks CJ, Boland, and Stevenson JJ).

26. The Court should not ignore child protection issues merely because those issues are incapable of definite resolution at the interim stage. This is the position in the matter currently before the Court, as is so often the case with interim parenting matters.

27. The Full Court again discussed the conduct of interim proceedings in Keats & Keats,[78] noting that:

    … the principles that emerge from cases such as SS & AH (2010) FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a Judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on a child in the event that a controversial assertion is acted upon or rejected (see also Salah & Salah [2016] FamCAFC 100).[79]

    [78] Keats & Keats [2016] FamCAFC 156 (Ainslie-Wallace, Ryan, and Cronin JJ).

    [79] Keats & Keats [2016] FamCAFC 156, [9].

28. Having outlined the evidence I will now turn to the considerations under section 60CC and then I will consider the issue of parental responsibility under section 61DA and anything that may flow from that on the legislative pathway.

Primary considerations in section 60CC

1. The primary considerations are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect of family violence.[80] In applying the primary considerations, the Court is to give greater weight to the consideration relating to the need to protect a child over the benefit to the child of having a meaningful relationship with both of the child’s parents.[81]

   [80] Family Law Act 1975 (Cth) s 60CC(2).

   [81] Family Law Act 1975 (Cth) s 60CC(2A).

2. On the evidence, X has a meaningful, close, and loving relationship with her mother. In consequence, the benefit to X of having an ongoing meaningful relationship with her mother and having sufficient time together to continue to develop that relationship is obvious. The increases in time to be spent between X and her father, proposed in the orders sought by the father on interim hearing, are not such that they would have such an impact on the time spent between X and her mother that it would cause a diminution of the meaningful relationship between X and her mother.[82]

   [82] Family Law Act 1975 (Cth) s 60CC(2)(a).

3. X has a meaningful relationship with her father. She has been spending time with her father all her life. She was only four months of age when the parties separated, but she has been spending age‑appropriate time with her father since that separation. As detailed above, the mother gives evidence of X’s behavioural reactions both before leaving her mother to spend time with her father and on returning from spending time with her father. I have found that such evidence is not a basis on which to find that there is a reason to limit X’s time with her father below what it is currently, nor a basis to find that an increase in the time between X and her father as sought by the father in his orders would be a detriment to X.[83]

   [83] Family Law Act 1975 (Cth) s 60CC(2)(a).

4. That X may have some distress on leaving her mother, that she may miss her mother when she is with her father, and that she may have some behavioural problems as described in the mother’s evidence when she returns from time with her father, does not outweigh the benefit to X of having that time with her father. It also does not outweigh having sufficient time with her father, on an age-appropriate basis, to enable her to continue to develop a meaningful relationship with her father, which must necessarily, given the different in time spent with each parent, be a less developed relationship than between X and her mother. 

5. X’s mother has been her primary carer from the time of her birth.  She is patently her primary attachment figure. It is not surprising that X looks to her mother for her own personal and emotional security at all times. However, it is in X’s interest to sustain and develop a relationship with her father whereby she can also look to him for her personal and emotional security and to enjoy the personality benefits, both short and long term, of a stable and loving relationship with both of her parents.

6. I find that there is great benefit to X in having a meaningful relationship with both of her parents. I find that the orders sought by the father as to the time he spends with X on a regular basis are in line with enabling X and her father to continue and to further develop their meaningful relationship. As I have found, that time will not cause any diminution in or harm to the close, loving, and meaningful between X and her mother. 

Is there a need to protect X from physical or psychological harm on any basis?

1. I have found that the matters referred to by the mother in her evidence and by the father in his evidence going to issues relating to his mental health, including his recent diagnosis with adult ADD, his past issues with alcohol and illicit drugs, and his anxiety and emotional regulation cause no risk whatsoever to X. In making that finding, I have taken the mother’s evidence at its height.[84] 

   [84] Family Law Act 1975 (Cth) s 60CC(2)(b).

2. In this matter, there is no need to give weight to a need to protect X over and above the benefit to X of having a meaningful relationship with both of her parents, as I find that there is no need to protect X as there is no element of risk attaching to her spending time with her father as sought by him in his interim application.

The relevant additional considerations in section 60CC

1. X is four years of age and, as such, her wishes would not be taken into account in the matter. A child’s wishes may be relevant evidence for the Court for purposes other than considering and making findings in relation to what a child may want; they may be relevant as indicators of risk or no risk. In this case, there is no evidence in relation to X’s wishes, and if there were they would be given no weight.[85] 

   [85] Family Law Act 1975 (Cth) s 60CC(3)(a).

2. I have already made findings about the nature of the relationship between X and each of her parents.[86]

   [86] Family Law Act 1975 (Cth) s 60CC(3)(b).

3. On the evidence, I find that X has an appropriate relationship with the mother’s partner, Mr D, and his daughters, E and F.[87]

   [87] Family Law Act 1975 (Cth) s 60CC(3)(b)(ii).

4. I also find that there is an appropriate relationship between X and her father’s partner, Ms B.[88] In this regard, I note the evidence of Ms B in her affidavit, at paragraphs 9 to 15 in particular.[89] 

   [88] Family Law Act 1975 (Cth) s 60CC(3)(b)(ii).

   [89] Affidavit of Ms B sworn24 January 2020, [9]-[15].

5. Both of X’s parents have taken the opportunity to participate in making decisions about major long-term issues in relation to X.[90] For example, the selection of the school to be attended by X when she commences kindergarten in 2021 – J School in Suburb C.

   [90] Family Law Act 1975 (Cth) s 60CC(3)(c).

6. I find, on the evidence, that X’s parents are able to communicate with each other in relation to short-term health issues for X, and I have no doubt that each will take every opportunity to communicate, and would communicate, with each other in the event that any long-term health issues arose for X.[91] Both parents take every opportunity open to them to spend time with X and to communicate with X, hence these proceedings.

   [91] Family Law Act 1975 (Cth) s 60CC(3)(c).

7. Both of X’s parents fulfil their obligation to maintain X. The father pays child support as assessed, and the mother provides for all the rest of X’s financial support.[92] 

   [92] Family Law Act 1975 (Cth) s 60CC(3)(ca).

8. In relation to the likely effect of any changes in X’s circumstances,[93] including the effect on X of any separation from either of her parents and any other persons, I refer to my comments and findings above when examining the benefit to X of having a meaningful relationship with both of her parents. If orders are made for X to spend time with her father in the terms sought by the father in his application, there will be a lessening of the time X spends with her mother and with Mr D, E, and F. There will be an increase in the time X spends with her father and Ms B. 

   [93] Family Law Act 1975 (Cth) s 60CC(3)(d).

9. An increase in X’s time with her father as sought by him, and a consequent decrease in time with her mother, will not create any detriment to X’s best interests that would outweigh the benefit to X in having a further opportunity to spend time with her father.

10. The father’s parenting capacity is put in issue by the mother in the evidence she presents on the interim hearing. For example, the Mother refers to his inability to administer liquid Panadol to X when she has a need due to minor illness. There are other examples in the mother’s evidence that can be taken to be critical of the father’s parenting capacity. Taking the mother’s evidence at its height, I find that the father has appropriate capacity to provide for X’s needs, including her emotional and intellectual needs.[94] 

    [94] Family Law Act 1975 (Cth) s 60CC(3)(f).

11. Some of the evidence presented by the mother could bring some conduct by the father in the past within the definition of family violence found in section 4AB of the Act if the conduct the mother describes caused damage to property. However, the mother does not describe such damage, and accordingly I find that this is not a matter where there has been family violence involving X or a member of X’s family.[95]

    [95] Family Law Act 1975 (Cth) s 60CC(3)(j).

Parental responsibility

1. At almost the earliest opportunity in this matter the parents agreed to an order that they have equal shared parental responsibility for X. They also agreed to an order that they each have responsibility for making decisions for the day-to-childcare, welfare and development of X during periods when X is living with each. However, such an order is not needed due to the provisions of section 65DAE of the Act.[96]

   [96] Family Law Act 1975 (Cth) s 65DAE.

2. There is nothing in the evidence, whatsoever, that would indicate that it is not in X’s best interests for her parents to have equal shared parental responsibility and so rebut the presumption, and accordingly the presumption in section 61DA of the Act, that it is in the best interests of X for her parents to have equal shared parental responsibility for her, stands.[97]

   [97] Family Law Act 1975 (Cth) s 61DA.

3. For ease of the parties’ reference and ‘tidiness’, I will vacate the orders made by consent on 15 August 2018 and replace them with a full set of orders following my consideration of the interim hearing, and accordingly, I will make a fresh interim order that the parties have equal shared parental responsibility for X.

The considerations under section 65DAA of the Act

1. As I will make an order that X’s parents have equal shared parental responsibility for her, I must consider the matters set out in section 65DAA of the Act as described earlier in these reasons.

2. Though the father seeks final orders that X spend equal time with each of her parents, the orders sought by him on the interim hearing are not for equal time. The orders sought by the mother on the interim basis and on a final basis are not for equal time.

3. X is four years of age. She will be five years of age in 2020 and will start school in 2021. At X’s age, and given the history to date set out in these reasons of the time she has spent with her father since the parties separated when X was four months old, I find that it would not be in X’s best interest currently to spend equal time with each of her parents.[98] 

   [98] Family Law Act 1975 (Cth) s 65DAA(1).

4. It is reasonably practicable for X to spend equal time with each of her parents on the basis of their proximity of residence to each other, but I do not currently have enough evidence to make full findings in relation to the reasonable practicability of X spending equal time with each of her parents so far as her day-to-day supervision and care is concerned. However, as I have found that it is not in X’s best interest to spend equal time with each of her parents, I need not go any further in relation to considering such an order. 

5. Having found that it is not in X’s best interest to spend equal time with each of her parents, I must consider whether it is in her best interest to spend substantial and significant time with each of her parents and whether it is reasonably practicable for her to spend substantial and significant time with each of her parents and, if the answer to both is yes, to consider making such an order.[99] 

   [99] Family Law Act 1975 (Cth) s 65DAA(2).

6. The orders sought on the interim basis by the father do not amount to substantial and significant time as they do not encompass the whole of weekdays (non-weekend days) except during school holiday time. I find that at the present time it is in X’s best interest to make orders for her to spend time with her father on the basis of the orders sought by the father in the interim application.

7. That involves one step at about a six-month mark to increase the alternate weekend time from Friday to Sunday to Friday to Monday with the other regular time being over Wednesday night. Accordingly, I find that it is not currently in X’s best interest to make orders that provide for her to spend substantial and significant time with each of her parents. 

What is the appropriate time for X to spend with her father?

1. The father seeks orders that would provide that X spends time with him:

   a)During 2020 and until she starts school at the start of 2021 each alternate Monday from 3.30PM (or 8.00AM if a public holiday including bank holiday) until 6.15PM;

   b)Each Wednesday from 3.30PM until Thursday at 8.00AM; and

   c)Each alternate weekend, starting with 5.00PM Friday to 4.30PM Sunday and then after six months increasing to 5.00PM Friday to 8.00AM Monday. 

2. Leaving aside holiday time and school holiday time at the moment, I have paid particular attention to the mother’s comments in her evidence, quoted earlier in these reasons, relating to the time that X spends with her father on Mondays. X is in her final year at childcare and will commence school at the start of 2021. I find that X spending time with her father on the regular basis every Wednesday night and every second weekend is appropriate. Given her current age it is no longer a circumstance, as is appropriate for children in their infancy whilst they are forming their attachments, that frequency is more important and beneficial than quantity. 

3. I find that it is appropriate at this time to cease the time between X and her father on Mondays, even each alternate Monday as sought by the father, and to maintain the Wednesday evening time and increase the alternative weekend time in line with the orders sought by the father, firstly, from Friday to Sunday and after a period of six months from Friday to Monday. 

4. I find that it is appropriate that once X commences her school attendance that she spend one week in each of the term 1, 2 and 3 school holidays with her father and week about during the Christmas school holidays with her father. 

5. I find that it is appropriate to provide for the father to spend some holiday time with X during 2020 separate from the alternate weekend time on an increasing basis from four nights to five nights, on specific dates as sought by the father.  

6. I find that it is appropriate to make defined orders for X spending time with her father and her mother for the special occasions of birthdays, Easter, Christmas, Father’s Day, and Mother’s Day, a number of which are matters of agreement between the parents already and all of which can be varied by the parents by written agreement between them from to time. 

7. I find that it is appropriate to make the communication order for telephone and FaceTime as sought by the father as opposed to that sought by the mother, as the father’s proposal provides for more regular contact between X and the parent from whom she is away. 

8. In relation to changeovers that do not occur by collection of X from childcare/school or return of X to childcare/school, I find that it is appropriate that such changeovers occur at the parents’ places of residence, unless otherwise agreed between them and that such changeover be in the pattern where X is collected from the other parent’s residence by the parent into whose care she is moving.  That way if the parent travelling to collect X is late for any reason, the other parent has had more time with X, but it is not that carer parent’s fault and so there is no basis for argument or accusation. 

9. The father seeks an order that the mother be restrained from changing X’s surname and to prevent X being known by any surname other than, ‘Hagans’. I find that there is not sufficient evidence to raise a concern that the mother has or will unilaterally alter the surname used for X and, accordingly, I decline to make such an injunctive order. 

10. In conclusion, I note the comment made by the family consultant at the very end of the Child Dispute Conference Memorandum:

    Given that there are limited risk issues in this matter, the parents may benefit from attending mediation in an attempt to reach an agreement.[100]

    [100] Child Dispute Conference Memorandum to Court prepared 30 July 2018, p 3.

11. I encourage the parents to explore their own pathways to agreement for X’s future parenting because they are both, to borrow a valued phrase from my brother Judge Altobelli, ‘good parents, good people’. In making decisions in the best interests of X, the Court has what I call a ‘bubble of information’, being the admitted evidence in a hearing upon which to base a plan for X’s future parenting. The father and the mother have the full ‘100-volume-encyclopaedia’ on X. No one can know her better and, therefore, there is no one better than they to make those final decisions.  If that cannot be achieved, the Court will perform its function.

I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Judge Morley

Associate: 

Date: 3 June 2020