Allwright & Allwright (No 2)

[2023] FedCFamC1F 901

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Allwright & Allwright (No 2) [2023] FedCFamC1F 901

File number:

CAC 89 of 2022

Judgment of:

AUSTIN J

Date of judgment:

20 October 2023

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Parenting – Where the paternal grandparents review orders made by a senior judicial registrar dismissing their application for the children to spend time with them – Where the paternal grandparents abandon their proposal requiring the children to travel interstate during each school holiday period to spend time with them – Where the paternal grandparents seek orders in accordance with the recommendation of the Independent Children’s Lawyer (“the ICL”) – Where the ICL proposes the children spend time with the paternal grandparents under professional supervision at a contact centre on a monthly basis – Where the mother opposes the review and contends the orders of the senior judicial registrar be maintained – Where the mother was unable to articulate how the children may be exposed to the risk of psychological harm by occasionally spending professionally supervised time with the paternal grandparents – Where the children are willing to spend time with the paternal grandparents at a contact centre – Where the re-introduction of the paternal grandparents into the children’s lives is modest and cautious – Orders of the senior judicial registrar discharged – Interim orders made for the paternal grandparents to spend professionally supervised time with the children once per month.

Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 64B, 65AA, 65D, 65DAA

Cases cited:

Banks v Banks (2015) FLC 93-637; [2015] FamCAFC 36

Bondelmonte & Bondelmonte (2017) 259 CLR 602

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

RCB v Forrest (2012) 247 CLR 304

Division:

Division 1 First Instance

Number of paragraphs:

49

Date of hearing:

20 October 2023

Place:

Newcastle (via Microsoft Teams)

The Applicant:

Litigant in person

The Respondents:

Litigants in person

Solicitor for the Independent Children's Lawyer:

Legal Aid NSW

ORDERS

CAC 89 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ALLWRIGHT

Applicant

AND:

MR ALLWRIGHT

First Respondent

MS TYRRELL

Second Respondent

MR TYRRELL

Third Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	20 OCTOBER 2023

THE COURT ORDERS THAT:

1.Order 1 made on 27 July 2023 is discharged.

2.The mother and paternal grandparents shall take all reasonable steps to ensure that the children (X, born 2013; Y, born 2015; and Z, born 2019) (“the children”) spend supervised time with the paternal grandparents once per month upon the following conditions:

(a)The supervisor of the time spent by the children with the paternal grandparents shall be staff at the B Contact Centre at City C, NSW (“the supervisor”).

(b)The mother and paternal grandparents shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor.

(c)The monthly time spent by the children with the paternal grandparents shall occur on the dates and commence at the times designated by the supervisor.

(d)The paternal grandparents shall pay the costs due to the supervisor.

(e)The mother shall cause the delivery of the children to, and the collection of the children from, the supervisor at the commencement and conclusion of the time spent by the children with the paternal grandparents.

(f)The mother and paternal grandparents shall comply with all reasonable requests and directions of the supervisor.

(g)Leave is granted to the mother and paternal grandparents to provide a copy of these orders to the supervisor.

3.The paternal grandparents are restrained from facilitating any form of oral or written communication between the children and the father.

4.Otherwise:

(a)the Application in a Proceeding filed on 5 September 2023 is dismissed;

(b)the Application for Review filed on 17 August 2023 is dismissed; and

(c)any and all other interim applications made under Pt VII of the Family Law Act 1975 (Cth) are dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Allwright & Tyrrell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. These proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) concern the three children of the applicant mother and respondent father, but the paternal grandparents are joined to the proceedings as additional respondents.

2. The mother alleges the father sexually and physically abused her older children from a former relationship and so refuses to allow the father any contact with the children. For the moment, the father acquiesces to that situation. The father lives in Queensland, either with or near to the paternal grandparents. The mother and children live in rural NSW.

3. However, the paternal grandparents are anxious to maintain their connections with the children and so, in May 2023, filed an application seeking interim orders requiring the children to spend time with them in Queensland. Their application was dismissed by a senior judicial registrar (“the registrar”) in July 2023, which decision the paternal grandparents challenge by their review application filed in August 2023.

4. The Application for Review filed on 17 August 2023 is granted, but not in the terms sought.

   Background

5. The mother and father commenced a relationship in 2012.

6. At that time, the mother had two children from a former relationship. They were then aged about six and three years.

7. Three children were born to the relationship of the mother and father between 2013 and 2017. They are now aged between nine and six years.

8. The mother and father separated in December 2021 and, in January 2022, the mother commenced these proceedings. Central to the proceedings is an allegation that the father abused the mother’s two older children during the course of their relationship. The allegations were actively investigated by police in both NSW and Queensland.

9. Presently, it is known the father is charged with offences and will be prosecuted. There are also allied family violence proceedings pending against him, in which orders are sought for the protection of the mother, her two older children, and the three subject children (Exhibit ICL1).

10. In February 2022, interim orders were made for the children to live with the mother and for her to have sole parental responsibility for the children. It was then specifically ordered that the children would spend no time with the father pending the release of a report by NSW Department of Communities & Justice concerning the abuse allegations made against him.

11. No interim orders have yet been made to regulate the children’s contact with the paternal grandparents – hence the interim application they filed in May 2023.

12. The paternal grandparents’ application was heard by the registrar on 21 July 2023 and dismissed a week later on 27 July 2023.

13. The paternal grandparents filed their review application within time and so this is an original hearing of the paternal grandparents’ application for interim orders in respect of the children.

    Proposals

14. The orders sought by the paternal grandparents in their Application in a Proceeding lodged on 5 May 2023 entailed compulsion of the children to travel to Queensland during each school holiday period to spend time with them, with the mother to bear equal liability for the cost of airfares. Such orders were sought on the basis of their undertakings to ensure the children are not brought into contact with the father.

15. The paternal grandparents now abandon that proposal. In their Application for Review filed on 17 August 2023, they seek this order instead:

    To be able to see my grandchildren as per [the ICL] recommendation.

16. The proposal advanced by the ICL is that the children spend time with the paternal grandparents under professional supervision at a contact centre in City C, NSW on a monthly basis.

17. The mother’s position is that the review application should be dismissed and the registrar’s orders maintained. She did not file a Response to the Application in a Proceeding.

18. The father appeared and supported the proposal of the ICL and paternal grandparents.

    Evidence

19. The paternal grandparents relied upon their joint affidavit filed on 16 October 2023.

20. The mother relied upon her affidavit filed on 12 July 2023.

21. The father adduced no evidence.

22. The ICL adduced two documents in evidence: first, an email received from NSW police on 18 October 2023 (Exhibit ICL1); and secondly, an email she sent to the parties on 19 July 2023 confirming details about the proposed supervised time (Exhibit ICL2).

    Legal principles

23. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D(1)), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

24. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

25. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). The presumption does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), may be disregarded in interim hearings (s 61DA(3)), and may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent or other adult, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

26. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

27. This is a review hearing, which entails the de novo hearing of the interim dispute. The principles to which I have just adverted apply equally to interim parenting orders.

28. Being an interim hearing in respect of parenting orders, the procedure is that established by the Full Court in Goode & Goode (2006) FLC 93-286, where it was said (at [68]):

    …the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future. 

29. In Banks v Banks (2015) FLC 93-637 at [47]–[50], the Full Court noted how a paucity of uncontested evidence means only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim proceedings should be confined to only those issues which, in the best interests of the child, require determination prior to a proper determination at trial. The trial is the time and place to settle factual controversies. Interim hearings ought not be used for that purpose unless circumstances are urgent and there is no alternative.

    Best interests – primary considerations

30. Section 60CC(2)(a) of the Act is irrelevant because there is presently no contest that, for the time being at least, the children will not maintain meaningful relationships with both parents.

31. While s 60CC(2)(b) is relevant to the ultimate resolution of the parenting dispute between the parents, one may wonder how it is a material consideration in determining whether or not the children should spend professionally supervised time with only the paternal grandparents at a contact centre in NSW.

32. It could not be and was not rationally contended that the paternal grandparents pose some form of risk of physical harm to the children by reason of their “abuse”, “neglect” or exposure to “family violence”, which cannot be attenuated by the proposed professional supervision.

33. The mother contended the children might still be exposed to the risk of psychological harm by occasionally spending time with the paternal grandparents under professional supervision, but she was unable to clearly or persuasively articulate how or why. Her submissions were instead directed to the prospect of the harmony of her household being disturbed by orders requiring the children to see their grandparents. The mother’s submissions were inadequate to invoke the provisions of s 60CC(2)(b) of the Act as a material consideration.

    Best interests – additional considerations

34. Nobody addressed the factors prescribed by s 60CC(3) of the Act individually.

35. The ICL contended the children would benefit from the restoration of their relationships with the paternal grandparents, which they formerly enjoyed (Mother’s affidavit at [66] and [76]).

36. The mother sought to contend the children’s relationships with the paternal grandparents were destroyed, or at least gravely impaired, by their retention of the eldest child in early 2022, which situation the mother had to rectify by seeking the interim orders made in February 2022. The mother’s evidence about the children’s unsettlement could conceivably have been caused by that ruction in their family life, but it is no less plausible that they grieve the sudden loss of any contact with the paternal grandparents.

37. The ICL confirmed she has conferred with the children and they were uniformly willing to spend time with the paternal grandparents at the contact centre, as the ICL proposed. She confirmed the eldest child was particularly keen. The apprehension of the middle child and youngest child is only that they or the eldest child might be abducted and withheld from the mother. Clearly, that could not happen at a contact centre and they could be easily re-assured about that fear.

38. The ICL submitted the orders for supervised time would tend to re-assure the children that they are safe with the paternal grandparents and that, despite the turmoil of early 2022, they are loved by the paternal grandparents.

39. The mother’s submissions did not detract from those propositions. She said the children have busy lives, but they could not be so busy they could not see the paternal grandparents for a few hours each month. The mother professed the children feel no void in their lives by reason of the paternal grandparents’ absence and they do not want any contact with them, but that is not what the children told the ICL. They might have expressed contrary views to the mother, but it is well known that children are vulnerable to the influence of the adults with whom they live (Bondelmonte & Bondelmonte (2017) 259 CLR 602 at [34]–[41]; RCB v Forrest (2012) 247 CLR 304 at [52]).

40. The mother, perhaps understandably, was critical of the paternal grandparents’ behaviour in withholding the eldest child in early 2022 and by their staunch support of the father despite the serious allegations made against him, but the children should not now be denied interaction with the paternal grandparents just to punish them. The mother’s submissions did tend to have a punitive rather than protective flavour.

41. The mother said the children might be unsettled by the re-introduction of the paternal grandparents into their lives, which is true, but the manner in which they will be re-introduced to the children is modest and cautious. The mother is undoubtedly a competent parent and it is more likely than not she will capably deal with any sense of unsettlement the children may feel.

42. The mother did not cavil with the ICL’s submission that she could easily implement the orders by conveying the children to and from the supervised visits each month. She lives about 50 minutes driving time away from the contact centre. The paternal grandparents agreed to meet all costs of the supervision.

43. Given the submissions made, the children’s best interests are more likely to be promoted by the orders proposed by the ICL and the paternal grandparents, who additionally confirmed their willingness to submit to an injunction which restrains them from facilitating any contact between the children and the father.

    Conclusions

44. This is a fresh application for parenting orders, so the application of s 61DA of the Act must be the first consideration. It is not appropriate to apply the presumption of the allocation of equal shared parental responsibility for the children to the parents because: this is only an interim hearing (s 61DA(3)); the mother was formerly granted sole parental responsibility for the children on an interim basis in February 2022; and neither the other parties nor the ICL sought to disturb the existing interim allocation of parental responsibility to the mother.

45. The existing interim orders providing for the children to live with the mother and for her to have sole parental responsibility for them will not be varied.

46. Orders are made requiring the children to spend supervised time with the paternal grandparents once each month in City C, NSW. The evidence reveals there is a 3–6 months wait list (Exhibit ICL2), so it may take some time for the orders to be implemented. The parties are ordered to begin the intake assessment forthwith.

47. The injunction to which the paternal grandparents were willing to submit is also made.

48. The injunction proposed by the ICL restraining the parties from recording the children is rejected. The injunction was not made by the registrar when initially proposed by only the ICL, there was no evidence directed to the order, and its drafting made it unclear whether the injunction relates to any recording of the children at all or the prevention of the future use of recordings in evidence.

49. The dismissal order of the registrar is discharged. Other than the orders forecast, all other applications are dismissed.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       31 October 2023