ALLARD & ALLARD

Case [2021] FCCA 665

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALLARD & ALLARD [2021] FCCA 665
Catchwords:
FAMILY LAW – Parenting – allegations of family violence – parental responsibility – best interests of the child – the paramount consideration – views of the child – intractable conflict between the parents.  

Legislation:

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

Evidence Act 1995 (Cth), s.140

Cases cited:

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1
AMS v AIF (1999) 199 CLR 160

Boensch (as trustee of the Boensch Trust) v Pascoe (2019) 375 ALR 15

Bondelmonte and Bondelmonte & Anor (2017) 259 CLR 662

Briginshaw v Briginshaw (1938) 60 CLR 336

Browne v Dunn (1894) 6 R 67

Collu & Rinaldo [2010] FamCAFC 53 (25 March 2010)
Dylan & Dylan [2008] FamCAFC 109

In the Marriage of LC & TC (1998) 23 Fam LR 75

Mazorski v Albright (2007) 37 Fam LR 518

Qantas Airways Ltd v Gama (2008) 167 FCR 537
Rice v Asplund (1979) FLC 90-725
Sigley v Evor [2011] FamCAFC 22
Slater v Light (2011) 45 Fam LR 41
SPS v PLS (2008) 217 FLR 164
Wei & Wei And Anor [2020] FamCAFC 224
Duarte v Morse [2019] FamCAFC 93
B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676
Murgatroyd and Murgatroyd (No 2) [2019] FamCA 617
Applicant: MS ALLARD
Respondent: MR ALLARD
File Number: BRC 1064 of 2018
Judgment of: Judge Howard
Hearing dates: 2, 3, 4 & 5 November 2020
Date of Last Submission: 11 January 2021
Delivered at: Brisbane
Delivered on: 6 April 2021

REPRESENTATION

Counsel for the Applicant: Mr Kennedy of Counsel
Solicitors for the Applicant: Robyn McKenzie Solicitor
Counsel for the Respondent: Mr Morris of Queens Counsel
Counsel for the Independent Children's Lawyer: Mr Dodd of Counsel
Solicitors for the Independent Children's Lawyer: ELR Law

ORDERS

  1. That all previous parenting orders be discharged.

Parental Responsibility

  1. That the mother have sole parental responsibility for long term decisions concerning X born in 2006 (“X”).

Live with

  1. That X live with the mother.

Time

  1. That X to spend time and communicate with her father at all times she expresses a wish to do so and the mother shall facilitate that time and in addition:

    (a)For 4 visits, once each calendar month, being the first Sunday of each month with the first visit to take place on the first Sunday of the month after the making of these orders, from 11am to 2pm, with the father to collect and return X from the "Brisbane" sign at the Location B, outside the Suburb C.

    (b)After those 4 visits, X shall spend time and communicate with her father at all times she expresses a wish to do so and the mother shall facilitate that time.

  2. That the mother is to:

    (a)encourage and assist X to send to her father a card or letter or gift on Father's day and Christmas and her father's birthday; and

    (b)encourage and assist X to invite…

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Details
AGLC
ALLARD & ALLARD [2021] FCCA 665
Case
[2021] FCCA 665
Decision Date

CaseChat Overview and Summary

This matter concerned parenting orders for a child named X, born in 2006. The dispute involved allegations of family violence, specifically the fraudulent manufacture of a document by the father, which the mother alleged. The court was required to determine the parenting arrangements for X, considering the paramount consideration of the child's best interests.

The legal issues before the court included whether the mother had proven her allegation of fraudulent document manufacture against the father to the requisite standard, and how to determine the parenting arrangements for X in light of the evidence and the statutory considerations. The court was also required to consider the views of the child and the intractable conflict between the parents.

The court found that the mother had not proven her allegation of fraudulent document manufacture against the father to the required standard, referencing the principles in *Briginshaw v Briginshaw* and *Qantas Airways Ltd v Gama*. The court noted that the mother's assertion was unsupported by further evidence. The court then turned to the paramount consideration of the child's best interests, as mandated by section 60CA of the *Family Law Act 1975* (Cth). Applying section 60CC, the court determined that the child's views, given her age, outweighed other considerations. The court also noted the ongoing conflict between the parents and their inability to communicate productively.

The court ordered that all previous parenting orders be discharged. The mother was granted sole parental responsibility for long-term decisions concerning X, and X was ordered to live with the mother. Specific provisions were made for X to spend time and communicate with her father at times she expressed a wish to do so, with the mother to facilitate this. Further orders detailed specific supervised visits, communication protocols between the parents, and requirements for respectful communication regarding the other parent in X's presence. The court also authorised both parents to obtain information about X from schools and healthcare providers and mandated email communication for specific information sharing. The Independent Children's Lawyer was discharged.

Orders

Orders of the court

1.

That all previous parenting orders be discharged.

Parental Responsibility

2.

That the mother have sole parental responsibility for long term decisions concerning X born in 2006 (“X”).

Live with

3.

That X live with the mother.

Time

4.

That X to spend time and communicate with her father at all times she expresses a wish to do so and the mother shall facilitate that time and in addition:

(a) For 4 visits, once each calendar month, being the first Sunday of each month with the first visit to take place on the first Sunday of the month after the making of these orders, from 11am to 2pm, with the father to collect and return X from the "Brisbane" sign at the Location B, outside the Suburb C.

(b) After those 4 visits, X shall spend time and communicate with her father at all times she expresses a wish to do so and the mother shall facilitate that time.

5.

That the mother is to:

(a) encourage and assist X to send to her father a card or letter or gift on Father's day and Christmas and her father's birthday; and

(b) encourage and assist X to invite her father to school and extracurricular events where parents are invited to attend; and

(c) schooling and extra-curricular activities.

6.

That the father is at liberty to:

(a) Text the child, not more often than once per week, each Tuesday between 3pm and 6pm;

(b) Send either email, letter or card to X not more often than once per week.

Provided however the above orders shall not limit the capacity of the father to respond to email or text communication by X.

7.

That during the time that X is with either parent, that parent shall:

(a) Respect the privacy of the other parent and not question X about the personal life of the other parent;

(b) Shall ensure that X is not exposed to any matters relating to these proceedings;

(c) Speak. of the other parent respectfully; and

(d) Not denigrate or insult the other parent in the presence or hearing of X and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of X.

Authority to Obtain Information

8.

That the parents hereby authorise and this order shall act as sufficient authority for any school, doctor or other health care provider attended by X, to provide each parent information about X's educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child at the requesting parent’s cost.

Sharing Information

9.

That the mother and father shall communicate by email regarding the following:

(a) Keep the other parent informed at all times of their residential address, email address and contact telephone number and notify the other parent of any change to email and telephone number and if changing residence notify the other at least seven (7) days prior to their intended relocating their residence beyond a radius of twenty (20) kilometres from where they currently reside;

(b) Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the other parent with information they are lawfully able to provide about the child; and

(c) Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child.

Specific Issues

10.

That the father is at liberty to attend any school or extra-curricular activity upon being invited to do so by X.

11.

That the Independent Children's Lawyer be discharged.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Having regard to the gravity of the matters alleged against the father (fraudulent manufacture of a document) I am not satisfied that this has been proved by the mother to the requisite standard. In this regard, I am keeping in mind the words of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. In Qantas Airways Ltd v Gama (2008) 167 FCR 537 Branson J (sitting as part of the Full Court of the Federal Court of Australia) stated at paragraph 128 that section 140(2) of the Evidence Act “was intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities.” Branson J’s reference to “the common law position” is a reference to Dixon J’s explanation of the law in Briginshaw. At pages 361–362 in Briginshaw, Dixon J (as His Honour then was) stated:-“Except upon criminal issue to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction " should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.”An examination of Exhibit 3 indicates a trail of emails between the parents. There is nothing on the face of the document that would indicate to the Court that the email from the mother to the father, dated 24 March 2016 was fabricated. Apart from the mother's mere assertion – the mother has produced no other evidence to support her contention that the email in question was fabricated by the father. It is for that reason that I have concluded that the mother has not proven her allegation to the requisite standard. More likely than not these parents (as appears to have occurred very often) were in conflict as to the interpretation of the orders and their inability to communicate in a productive manner (for the benefit of the child) led to a situation where – the father was working on the basis that the mother had agreed for the child to spend his birthday with him and the mother proceeded on the basis that the child would return to her care two days beforehand. What happened next also requires the Court's consideration. In 2016 the father was celebrating his 50th birthday at Location B in Suburb G and X was present. It is apparent from the evidence that the mother and her partner (Mr H) were attempting to locate the father and the child. Mr H, who gave evidence that he has some experience in military intelligence, told the Court that he went to the Location B and he saw the father and the child and then went home and got the mother and both the mother and Mr H then attended at Location B.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 60CA of the Act mandates how a Court is to decide whether or not to make a particular parenting order in relation to a child. The section states:-“60CA Child’s best interests paramount consideration in making a parenting orderIn deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”(Emphasis added) The best interests of the child is not the sole consideration – but it remains the paramount consideration: note AMS v AIF (1999) 199 CLR 160 at 193 per Kirby J. The concept of "the paramount consideration" has been considered at appellate level on numerous occasions. In B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676 at paragraph 9.51 the Full Court provided the following helpful summary in relation to determinations under Part VII of the Act. The relevant parts of the Act remain, to all intents and purposes, identical. At paragraph 9.51 the Full Court stated:-“9.51. In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Pt VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.” The principles outlined by the Full Court of the Family Court in B and B were recently confirmed and supported by the Family Court of Australia in Murgatroyd and Murgatroyd (No 2) [2019] FamCA 617, especially at paragraph 18 (per Forrest J) . Section 60CC is entitled “how a court determines what is in a child’s best interests” The Full Court stated Slater v Light (2011) 45 Fam LR 41 at paragraph 45:-“The Act does not mandate the discussion of considerations under s 60CC in any particular order, and it is well-recognised that additional considerations may outweigh primary considerations despite the nomenclature of s 60CC(2) and (3): see Aldridge v Keaton (2009) 42 Fam LR 369 ; (2009) FLC 93-421 ; [2009] FamCAFC 229 at [74] ; Mulvany v Lane (2009) 41 Fam LR 418 ; (2009) FLC 93-404 ; [2009] FamCAFC 76 at [84] ; Champness v Hanson (2009) FLC 93-407 ; [2009] FamCAFC 96 at [101]–[103] ; Marsden v Winch (No 3) [2007] FamCA 1364 at [76]–[78] .” In the context of this case and having regard to the age of the child and the strength of the views expressed by the child, the additional consideration (section 60CC(3)(a)) does, in my view, outweigh the other considerations in section 60CC. This will become apparent upon a complete reading of these reasons for judgment. 2016 was the father’s 50th birthday. The father’s evidence is that the mother had agreed with him in writing that X could spend extra time with him on his birthday. The father’s contention is supported by exhibit 3. Exhibit 3 indicates that on 16 March 2016 the mother sent an email to the father in relation to the account for the child’s hobby lessons. The text of that email is as follows:-“Hi Mr Allard, Attached is X’s hobby account. I just paid another $60, can you pay the balance of $65 the BPay details are at the bottom of account. Next account we will split cost 50/50. ThanksMs Allard”