ALBISTON & PEDANO
[2020] FCCA 3628
•31 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALBISTON & PEDANO | [2020] FCCA 3628 |
| Catchwords: FAMILY LAW – Parenting – short form reasons – care arrangements for one child – listed on short notice in circumstances related to COVID-19 pandemic – where mother seeks child’s time with father be suspended in circumstances where child would have to isolate for 14 days upon return to Queensland – considerations of court when dealing with matter on an urgent and predominantly ex parte basis pursuant to rule 5.03 – effect on child of travelling during COVID-19. |
| Legislation: Family Law Act 1975 (Cth), ss.60B; 60CA; 60CC; 61DA; 69ZL; Federal Circuit Court Rules 2001 (Cth), r.5.03 |
| Cases cited: Gordon & Gordon [2015] FamCA 616 Banham & Banham [2020] FCCA 1201 Cheadle & Pointer [2020] FamCAFC 277 |
| Applicant: | MR ALBISTON |
| Respondent: | MS PEDANO |
| File Number: | BRC 11763 of 2014 |
| Judgment of: | Judge Harman |
| Hearing date: | 31 July 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 31 July 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr C. Lee of Lexington Law Group |
| Solicitors for the Respondent: | Ms K. Saunders of Taussig Cherrie Fildes |
ORDERS
Leave is granted to the Mother to make an oral Application for suspension of the existing Parenting Orders with respect to the child, X, born in 2006, insofar as compliance with those Orders and X’s practise of time with his Father is scheduled to occur this weekend, 31 July - 2 August 2020.
Until 5pm on 6 August 2020, Order 5(a) of the Orders made 21 May 2015 is suspended.
Note: The matter is next listed before me on 6 August 2020 at 10am.
The costs of both parties with respect to today’s listing and determination are reserved.
The Mother shall ensure that X is able to receive any telephone or video communication from his Father over the weekend, 31 July - 2 August 2020, irrespective of whether provision is made for that communication in the Orders of 21 May 2015, and shall allow X to speak with his father by those means upon the Father calling with privacy and without interruption or distraction.
IT IS NOTED that publication of this judgment under the pseudonym Albiston & Pedano is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
BRC 11763 of 2014
| MR ALBISTON |
Applicant
And
| MS PEDANO |
Respondent
EX-TEMPORE REASONS FOR JUDGMENT
These proceedings relate to care arrangements for a young child, X, born in 2006.
The parties to the proceedings are X’s parents. X’s Mother is, for today’s purposes, the Applicant (although she is the Respondent in the substantive proceedings which next come before the Court in three working days). The Respondent to this Application is X’s father. He is the Applicant in the substantive proceedings.
The matter is called at 3pm on one hour’s notice to the parties. It is dealt with by telephone, with my staff and I in different locations.
These reasons are given in short form pursuant to section 69ZL of the Family Law Act 1975 (Cth).
History of proceedings
There are existing Orders in place with respect to X’s care arrangements. Their terms would not appear to be the subject of any controversy.
Those Orders provide for X to live with his Mother in Queensland. X’s Father lives in New South Wales. Time between X and his Father is to occur one weekend per month (or close to it), and for periods during school holidays. There is also provision for communication by electronic and other means.
The substantive proceedings that are presently on foot were commenced by an Application filed by X’s Father. The substantive proceedings comprise two specific Applications:
a)An Application for Contravention; together with,
b)An Application in a Case.
The Application for Contravention alleges that certain periods of time have not occurred and without reasonable excuse. That is an Application that will await its determination in due course and need not be addressed further today.
The Application in a Case would appear to seek a number of Orders varying the substantive Orders sought to be enforced by the Application for Contravention. Again, the substantive Applications need not be further considered.
The matter is listed before me Thursday next via the COVID list. The COVID Registrar, before whom, it would appear, there have been a number of appearances already, determined that it would be so.
The proceedings are listed today on short notice and on the basis of an oral application to suspend operation of the order for this weekend. That arises in circumstances directly related to the COVID pandemic and pertaining to the impact upon the child and the child’s best interests.
As has been disclosed earlier today by Queensland State Government officials, there has been an expansion of the “COVID hotspot” to include the entirety of the Sydney basin. That impacts the ability to have free trade and intercourse between the States without mandatory quarantining. The restrictions come into effect at midnight tonight. X is due to travel to NSW at 5:30pm today and return to Queensland on Sunday next.
That the entirety of the greater Sydney metropolitan area is now included within the designated hotspot, such that persons from the Sydney greater metropolitan area or who have visited the area cannot enter Queensland or, if permitted to enter, are required to quarantine or self isolate for 14 days, directly impacts this family.
In the case of young X, it would appear common ground that he would be permitted to re-enter Queensland, being ordinarily a resident of Queensland, but would then be required to self-isolate for a period of 14 days. Accordingly, it would seem that this will be the fate, as it were, that will befall X upon his return from the scheduled weekend period scheduled to occur this weekend and upon arriving home on Sunday evening.
The Mother seeks that time for this weekend be suspended. The Father resists that position, and understandably so. Arrangements have been made for this child to board a flight at 5.30pm today - that is, a little under two hours from now. Hence the urgency that is suggested with respect to the case, and explicably and understandably so from the Mother’s perspective when she is already the subject of an Application for Contravention, whether denied or otherwise, with respect to past occasions. It would be remiss of her to not seek to address the current circumstance and to thus leave herself open to further allegations that she has failed to comply with an Order.
The Application does come on with urgency. The legal representatives for the Father indicate that they have not, in light of the time period and their commitments, had the opportunity yet to obtain proper instructions, if any, from their client. That circumstance must be addressed. I propose to do so by reference to rule 5.03 of the Federal Circuit Court Rules 2001 (Cth).
Therein, the Court must consider, when determining to deal with the matters on an urgent and predominantly ex parte basis (whilst this matter is not dealt with on that basis, the absence of participation of the Father in this court event, conducted by telephone, renders it at least analogous) the following.
Whether there are previous proceedings
There are, as set out above.
Whether there are current proceedings
There are, as set out above.
The particulars of the orders in force.
There is no dispute that the child is scheduled to travel to Sydney this evening to stay with the Father for two nights and to then return to the Mother in Queensland on Sunday. As soon as the child arrives, or very proximate to it, the above restraints will come into effect. It is an agreed reality that the child will, upon return to Queensland, be required to self-isolate for 14 days. Thus, he will not be able to leave the home, attend school, or engage in other activities outside of his home save in accordance with public health regulations issued in Queensland.
The steps taken to tell the respondent
Certainly, the notice is very brief but, appropriately, the Applicant has not sought to proceed on an ex parte basis but to place the matter before the Court as soon as possible. The notice is tempered by the commitments of the Court, which do not allow it to be listed later in the day. The matter is dealt with at 3pm. Indeed, delay would be counterintuitive and potentially render the Application nugatory, as the flight is due very shortly.
The immediacy and nature of harm or damage that will result
I will deal with this as part of the substantive aspect of the case. However, it is trite to observe that the child’s best interests, as section 60CA of the Family Law Act (supra) dictates, must be paramount in all considerations.
Why the making of an order is a matter of urgency and why an abridgement of time is not sufficient
That can be simply answered. If the matter is not dealt with before 5.30pm today, the Mother will, on its face, be prima facie in contravention of the Order unless the child boards the flight to travel to Sydney.
Undertaking in financial proceedings
Not relevant.
Other facts and circumstances
I am not satisfied that there are other facts or circumstances that can or should be taken into account other than by reference to the substance of the dispute to which I now turn.
Evidence
There is very little evidence available. That is no criticism of the parties - certainly not of the Mother, the Applicant for present purposes. It is simply a function of the rapidly developing responses to the COVID‑19 pandemic and the resurgence or continuation of infections.
The parties are agreed that the Queensland Government has today issued amended public health regulations as recited above. It would seem common ground that the child will be required – possibly also other members of his household, whether in compliance with the public health regulations or as a matter of practicality (the Mother for example, may be required to stay home with the child and supervise him during the day). But, certainly, what is known is that this young lad, X, soon to turn 14, will be precluded from other than self-isolation at his home.
It would seem that there has been some limited communication between the parties with respect to what might occur. Each have put submissions through their legal representatives as to the unpredictability of what may lay ahead of today. Indeed, it is unpredictable. If one had thought in February of this year that we would be in this present state it would have been considered unimaginable. However, there are good public health reasons for these restrictions. A Benthamist approach of utility, of the greatest good for the greatest number, is inherent in the restrictions that are in place and which continue to develop not only in Queensland but in other States and the Commonwealth more generally.
Beyond that there is little, if any, evidence. Accordingly, I will address the matter and refer to specific aspects of the evidence as required by reference to the legislative provisions.
Legislative Provisions
In turning to the legislative provisions, I must commence with section 60CA of the Family Law Act (supra) which, as already observed, requires that the child’s best interests be treated as the paramount consideration. As discussed, for example, by Forrest J in Gordon & Gordon,[1] if the child’s best interests are to genuinely have meaning, then what is required is to treat those best interests as informing all aspects of the case including, I am satisfied, the determination which I have already touched upon, that the matter can and should proceed on the basis of an oral application with limited evidence today.
[1] [2015] FamCA 616.
This is an interlocutory application and I do not propose to seek to prejudice the position of either party by proceeding beyond that which is entirely necessary, in other words, an address of what will occur this weekend.
I must then turn to the objects and principles in section 60B of the Family Law Act (supra) and which I incorporate herein.
Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
The objects and principles do not form part of the substantive law to be applied to the facts and circumstances of the case but do assist in understanding and interpreting those provisions as well as guiding the Court as to the outcome that should generally be achieved.
Accordingly, I must have regard to the need to make Orders that will ensure X’s best interests by ensuring that he has the benefit of both parents having a meaningful involvement in his life to the maximum extent consistent with his best interests and that he is protected from harm through exposure to abuse, neglect or family violence. It is perhaps not that exposure which is relevant to today’s purposes, but the general impact of public health considerations and the specific consequences thereof for X if he were to attend this weekend.
Submissions have been put on the basis of the detriment that the child will suffer, potentially, at least, from such self-quarantining. He will be socially isolated. He will not be able to attend school, although he may be able to participate remotely. It would be a significant impact on his life and that of his family, the Mother’s household, with whom he lives. It is the former that is the significant issue in this determination.
I am conscious that there have been a number of determinations already in this time of pandemic, both in this jurisdiction and overseas. I am conscious, for example, as discussed in Banham & Banham[2] and in Collingwood & Collingwood,[3] that online platforms such as Zoom have been discussed as temporarily sufficient to provide for the continuation of a relationship and communication between the parent and child if it is not possible for face to face time to occur.
[2] [2020] FCCA 1201 at [13].
[3] [2020] FamCA 390 at [29].
The Application that is brought has a pragmatic basis. This child will be required to self-quarantine if he boards a plane to travel to Sydney and has not returned to Queensland by midnight tonight. That is what would occur if he came to Sydney.
I am conscious that the Father would feel extremely aggrieved if that time did not occur. There may be financial consequences: tickets that are not refundable, transferable or otherwise. However, they must, as section 60CA of the Family Law Act (supra) requires, bend to the child’s best interests.
There is no blanket policy that children should never leave their primary home to visit another parent in this pandemic (see, for example, Cheadle & Pointer[4]). However, what is sought by the Mother is no such Application. She seeks to address the crisis and be alleviated from her responsibilities with respect to the present period that is to occur.
[4] [2020] FamCAFC 277.
I am not satisfied that the evidence presented, limited as it is, would raise any issue as to prejudice to the child’s immediate health or that of the members of the Mother’s household, but it is a very real circumstance for this child that he will be required to self-quarantine.
It is important for members of the community to comply with public health regulations relating to social distancing. Breaches thereof are significant and important, not only as a matter of compliance with laws generally, but for the health and safety of entire communities, including the ongoing or reintroduced restrictions with respect to travel internationally and now also domestically.
In those circumstances, I am conscious that in balancing the child’s relationship – already suggested on the Father’s case, as would be evident from the fact that he has filed an Application for Contravention - potentially not practised as fully or completely as it could be or as the Orders dictate against the practical realities and detriments to the child. It is the child’s best interests that are paramount in this circumstance and nothing else.
Those objects and principles would provide some slight support to the position that the Mother advances: that the period should not occur.
The principles underlying the objects create rights, if they might be so described, for young X: a right to know and be cared for by both of his parents, a right to spend time, on a regular basis, and communicate, on a regular basis, with both of his parents and that parents should share duties and responsibilities and agree about future parenting. Sadly, the parents have not been able to agree on a solution to the present impost, in other words, the certain reality that X will be required to self-isolate for 14 days.
I cannot predict the future any better than the parties and, accordingly, I do not propose to take into account what might occur with further periods of time – a weekend to occur in September, together with a period of school holidays. Events will unfold as they unfold and they hopefully will be responded to as they should be. Restrictions might tighten. It might be impossible for the child to leave the State or to do so safely. They might ease and there may be no issue in relation to the September visit. Accordingly, again, I propose to confine this determination to this weekend.
Beyond that, the child’s right to spend time and communicate with the parents is impacted by this determination.
If I accede to the Mother’s Application, it will preclude a period of face to face time that the child is clearly aware is planned, paid for and organised. It will disappoint the Father, but the Father’s disappointment is subservient to the child’s best interests and I am satisfied that those interests can and should be best considered in the context of any infringement upon the rights of young X to spend time with his Father and, through the Father, with other relatives, by reference to section 60CC of the Family Law Act (supra).
I am conscious I must also have regard to section 61DA of the Family Law Act (supra). On the basis that there are already Orders in force addressing those issues, I do not propose nor am I asked to interfere with them. I would leave them as they are. The presumption of equal shared parental responsibility would apply.
What I am asked to deal with is not an Application to determine the time and practice of a relationship between X and his parents, but to interfere on a very limited basis with one period.
In turning to section 60CC of the Family Law Act (supra), I must have regard to the primary considerations, being the benefit to the child of a meaningful relationship with both of the child’s parents, together with the need to protect the child from physical or psychological harm.
The benefit to X of a meaningful relationship with both parents might be achieved, albeit imperfectly and certainly not to the same standard as face to face time, through, in these curious and unpredictable times, increased use of technology – telephone calls, video calls and the like. I have already referred to that and repeat and adopt the comments made above.
There is, in reality, no need to protect the child from physical or psychological harm to exposure to abuse, neglect or family violence, but it is the general disadvantage that will be inflicted upon him, and only him, as a consequence of the requirement to self-quarantine. It is regrettable that such circumstances have arisen in our nation, let alone the world, but they have. The Court can only deal with reality, not with ideal arrangements which would see the parents perhaps able to facilitate relationships without such impediments.
Hence, the primary considerations do not assist a great deal.
Additional considerations
Views
Nothing is known of X’s views with respect to boarding a plane and then, upon return, self-quarantining for 14 days.
The nature of the child’s relationship with each parent
That is not known, but one can infer that it is certainly a good relationship. On the basis of the Orders that are presently in place, it is practised on a basis intended, in light of the distance between the parties’ homes - more than 1000 kilometres - to be as much as can occur. If the relationship is strong – and the Father’s case is that it is so – then missing a period of time would be a disappointment for X but it would not fundamentally shape or erode his relationship.
The extent to which each of the parents have taken or failed to take the opportunity to participate in decision-making
This is not relevant.
The extent to which the parents have met their obligations and maintained the child
This is not relevant
The likely effect of change
This is relevant. The impact upon this child of 14 days of self-quarantining would, to my mind and for the purpose of this weekend alone, outweigh the benefit to him of travel. That would be the determinative and dispositive issue.
Practical difficulty and expense
There are practical difficulties that are overcome through the child travelling by air. However, there are then the difficulties of self-quarantining. They are real for this child. They are real for the Mother’s household and the other persons with whom the child lives.
I am not urged to consider that there is a risk of infection, merely to consider those practical realities. They are sufficient, to my mind, to support the relief that is sought.
Capacity of the parents
This is not relevant.
The maturity, sex, lifestyle and background of the child
This does not assist a great deal. It is unfortunate that there is clearly already controversy between these parents regarding X’s arrangements which will not be aided or in any way ameliorated by this determination, but it is the child’s interests with respect to travel this weekend which must be considered. It is the child upon whom the burden of self isolation falls, followed by the Mother and all of the members of that household.
Aboriginality
This is not raised as a factor.
The attitude to the child and the responsibilities of parenthood
This is not relevant at present on the basis, as I have found above, (and, indeed, it is not submitted on the Mother’s part), that the pandemic is not a blanket relief from compliance. The pandemic and restrictions with respect thereto are not in any way raised disingenuously. It is not so much the pandemic but the impact and consequence upon the child of public health regulations to come into effect at midnight tonight that are relevant. I could not criticise the Mother.
Family violence and family violence orders
These factors are not raised.
Whether it is preferable to avoid future proceedings
This is not something that I can address at this time. The matter has a listing next week. It will take the path it takes.
Other factors
I am not satisfied that there are any other factors that are particularly relevant.
For those reasons, I am satisfied that a case is made out, on an interlocutory basis, for the relief that is sought.
Accordingly, Orders are made as follows.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the ex-tempore reasons for judgment of Judge Harman
Associate:
Date: 17 February 2021
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