MRR v GR

1. The applicant father in his oral evidence demonstrated an understanding of the issues identified by Dr E and his own time with the child X as follows:

You were asked questions about the time that you would like to spend with [X] and how it relates to [Mr D]. So what would you seek if [Mr D] was, as he appears to say, it could be every weekend, so that could potentially mean that you won't be seeing [X]. So you would agree with me, wouldn't you, that that wouldn't be satisfactory, would it?

I - I'm okay with that. I'm - I'm fine for [X] to spend that time with her dad. I just hope that if there's some events that she could spend time with me and her sisters, be it later on in date, like milestones or something. It's...

HIS HONOUR: Well, you can take it that you will be entitled to attend schooling events relating to [X] and sporting activities, because I suppose they would be related to the other girls, in any event. So outside the ambit of the time with orders that define your time, there's a general order allowing you to attend on other occasions, I think you could reasonably expect that will extend to [X], because otherwise she will feel a bit left out, I think?

1. The applicant father rejected any suggestion that he would treat X differently to the other children.

1. Section 65C of the Family Law Act 1975 (Cth) ("the Act") provides that persons other than parents, including grandparents and any other person concerned with the care, welfare and development of the child, can apply for parenting orders.
2. It is clear, having regard to the circumstances of the child both historical and at present as referred to above, that the applicant father is concerned with the care, welfare and development of the child. The child X's welfare is inextricably mixed with the welfare of her half siblings, who will be spending significant time with the applicant father.
3. This matter, however, involves a non-parent. The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394, which said that the settled legislative pathway followed to determine the best interests of a child is not the prescribed pathway in respect of determining best interests in proceedings between a parent and non-parent. The Full Court accepted, however, that it may be necessary to address some of those legal principles in determining the outcome.
4. Consideration of non-parents in respect of the best interests considerations can be facilitated by reference to s 60CC(3)(m). The Full Court in a number of recent cases has made it clear that the additional consideration s 60CC(3)(m), allowing the Court to consider "", acts as a catch all provision. It is, therefore, appropriate to apply the relevant considerations in respect of the applicant Mr Lipovic by way of application of

... there are no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). ...

1. The Full Court in Yamada & Cain [2013] FamCAFC 64 said:
   1. ... It is axiomatic that the fact of parenthood is centrally important to a decision about the best interests of a child. Unsurprisingly, the Act makes that clear by outlining the powers, duties and responsibilities of parents. Some of Part VII's provisions do not apply to non-parents. ...

1. It has also been said that the provisions of Part VII, and s 60CC in particular, do not give a clear "indication of the weight to be attached to the child's relationship with a person other than his or her parent compared with the child's relationship with the natural parent ..." (Mulvaney & Lane [2009] FamCAFC 76; (2009) FLC 93-404 per Finn J at [15]). As also noted in Donnell (at [120]) it has been suggested that "in proceedings between a parent and a non-parent all of the relevant provisions of the Act referring specifically to parents 'fall away'" (original emphasis). ...

However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a "parent" to ensure that clearly relevant matters are given appropriate weight. (original emphasis)

We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a "primary consideration" ...

1. As the Full Court said in Aldridge & Keaton (supra), an additional consideration may, in a particular case, outweigh a primary consideration, and at [75] said "all applications for parenting orders remain to be determined with the particular child's best interests as the paramount but not sole determinant".
2. Finally, the Full Court in Yamada & Cain (supra) said at [27]:

The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parent_hood_ which is crucial to the best interests of the child, but parent_ing_ - and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders. (original emphasis)

1. Such is clearly the case in this matter relating to the child X.

1. The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode [2006] FamCA 1346. The High Court in MRR v GR [2010] HCA 4 affirmed those principles.
2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
4. Section 60CC then outlines the primary (s 60CC(2)) and additional (s 60CC(3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
5. Whilst s 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility, there is no such issue for determination in the context of this matter.

The Primary Considerations: s 60CC(2)

1. The primary considerations are:
   1. the benefit to the child of having a meaningful relationship with both of the child's parents; and
   2. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. Section 60CC(3) sets out the additional considerations. Regard has been had to all insofar as they are relevant in the circumstances of this matter.

1. In considering the factual background and the preceding discussion it is clearly, as so adamantly opined by Dr E, in the best interests of the child X to maintain with her sisters a relationship with the applicant Mr Lipovic.
2. Such a relationship must, of course, in an appropriate way give way in circumstances where X's father Mr D is reasonably available to spend time with her, but such time should not be to the exclusion of X being able to spend time with Mr Lipovic with her sisters.
3. The psychological difficulties that could flow to X by being excluded from time with Mr Lipovic in circumstances where her sisters are spending as contemplated by the consent orders substantial and significant time with him is clear from the evidence of Dr E set out above. In most respects this risk to the child X arising from being "excluded" is the significant determining factor in the context of this discrete issue.
4. It is in the best interests of the child that she be able to spend time, in the company of her sisters, the time prescribed for them to spend with Mr Lipovic, either as defined by orders made 31 October 2018 or as otherwise agreed between the mother and Mr Lipovic.
5. Such time for the child X to spend with Mr Lipovic should reasonably give way in circumstances where on reasonable notice X is to spend time with her biological father but not to such an extent that it excludes X completely from spending time in the company of her sisters with Mr Lipovic.
6. In the best interests of the child X, orders are made as set out at the forefront of these reasons for judgment.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 1 February 2019.