Alonso & Deen

Case [2021] FedCFamC1F 262

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Alonso & Deen [2021] FedCFamC1F 262

File number(s): SYC 9099 of 2020
Judgment of: MCCLELLAND DCJ
Date of judgment: 8 December 2021
Catchwords: FAMILY LAW – PARENTING – Review of Registrar’s decision granting interim parenting orders – Mother seeks sole parental responsibility for medical issues – Where child has diagnoses of attention deficit hyperactivity disorder and history of self-harm – Where there is high conflict and a lack of cooperation between the parents – Allegations of exclusion in the making of medical decisions – Allegations of physical and emotional harm made by both parents – Parents’ failure to consider best interests of the children – Limitations of interim proceedings – Application dismissed save for one order.
Legislation:

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

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 100(1)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 14.05, 14.07
Cases cited:

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

Blinko & Blinko [2015] FamCAFC 146

Cowling & Cowling (1998) 143 FLR 400; [1998] FamCA 19

Feiteiro & Feiteiro [2019] FamCA 647

Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346

Henley & Henley [2019] FamCA 101

Marvel v Marvel (2010) 240 FLR 367; [2010] FamCAFC 101

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

McCall & Clark (2009) 41 Fam LR 483; [2009] FamCAFC 92

Russell & Close [1993] FamCA 62

SS & AH [2010] FamCAFC 13

Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Division: Division 1 First Instance
Number of paragraphs: 147
Date of hearing: 29 October 2021
Place: Sydney
Counsel for the Applicant: Mr Othen
Solicitor for the Applicant: Newnhams Solicitors
The Respondent: Ms Deen in person
Counsel for the Independent Children's Lawyer: Ms Treherne
Solicitor for the Independent Children's Lawyer: Christina Lam & Associates

ORDERS

SYC 9099 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR ALONSO

Applicant
AND:

MS DEEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

8 DECEMBER 2021

THE COURT ORDERS THAT:

1.Save in respect of Order (4) of the orders made by the senior judicial registrar on 6 September 2021, the mother’s Application for Review filed on 27 September 2021 is dismissed.

2.Order (4) of the orders made by the senior judicial registrar on 6 September 2021 is discharged and in the place of that order the following shall apply:

“4. The parents do all things reasonably necessary to attend upon Dr B of C Counselling with the child Z either together or individually at his direction, including frequency, and that the father be permitted to bring Z to such sessions providing that the costs of Dr B in the period subsequent to these orders will be met by the father.”

3.X, born … 2007 (“X”), and Y, born … 2011 (“Y

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AGLC
Alonso & Deen [2021] FedCFamC1F 262
Case
[2021] FedCFamC1F 262
Decision Date

CaseChat Overview and Summary

The matter before the court involves a review of an interim parenting order made by a judicial registrar. The parties, a mother and a father, have two children, X, Y, and Z. The dispute centers on the interim parenting arrangements following the parties' separation. The court was required to decide whether the interim parenting orders proposed by the Independent Children's Lawyer (ICL) were in the best interests of the children. Additionally, the court had to consider the relevant factors under section 60CC of the Family Law Act 1975, including the health and development of the children, their emotional and intellectual needs, and the views of the children.

The court began by outlining the agreed-upon facts, including the mother's primary role as the children's caretaker, the father's history of depression, and the children's respective diagnoses and health conditions. The court then addressed the presumption under section 61DA of the Family Law Act 1975 that it is in the best interests of the child for the parents to have equal shared parental responsibility, considering whether there were reasonable grounds to believe that a parent had engaged in abuse or family violence. The court found no such grounds and thus applied the presumption. The court then considered whether the presumption should be rebutted based on evidence that equal shared parental responsibility would not be in the best interests of the children. After examining the evidence, the court decided that the presumption should not be rebutted.

The court then proceeded to make orders for the children's best interests, considering the relevant factors under section 60CC. The court ultimately decided that the orders proposed by the ICL were in the best interests of the children. The court found that the proposed arrangements would allow the children to maintain their routine and stability while also ensuring their emotional and developmental needs were met. The court also noted the importance of both parents being involved in the children's lives and the benefits of the children spending time with both parents.

In conclusion, the court upheld the interim parenting orders proposed by the ICL, finding them to be in the best interests of the children. The court emphasized the importance of stability, routine, and the involvement of both parents in the children's lives. The court also noted the children's emotional and developmental needs and the benefits of the proposed arrangements. The court's decision ensures that the children's best interests are prioritized during this interim period.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The father otherwise supports the orders proposed by the ICL. Those orders will be set out in detail below.BACKGROUND The mother is 54 years of age and the father is 51. They were married in 2006. It did not appear to be disputed that the mother has been the children’s primary carer both during the parties’ marriage and subsequent to their separation. The father has been the primary income earner of the family, although the mother has also contributed to the earnings of the family. Equally, the father has played a role in respect to caring for the children. Clearly, the extent of each party’s respective roles will be considered in greater detail in the final hearing of this matter. It is not disputed that the father has a history of depression, which can fluctuate as a result of life events, including periods of stress in his occupation as a barrister. In 2017, the parties commenced seeing a paediatrician in respect to developmental issues confronting Z. The paediatrician, Dr F, diagnosed Z with ADHD and prescribed him Ritalin. The parties agree that Z’s medication has since changed. It was also acknowledged that X has some mental health challenges and has also been diagnosed with ADHD. It did not appear to be disputed that X has engaged in concerning behaviour, including incidents of self-harm.[1] [1] Mother's affidavit filed 27 July 2021, paragraph 46 It also did not appear to be disputed that Y is prone to suffering asthma and eczema, which the mother contends is exacerbated by periods of stress.[2] While not understating the potential significance of a child suffering those conditions, it has not been necessary for me to further consider that issue in this decision.[2] Mother's affidavit filed 27 July 2021, paragraph 136 The parties separated in October 2020, and during the following month, engaged in a “nesting” arrangement whereby the mother and the father would each stay in the former matrimonial home with the children on an alternating basis. Following their separation, the parties attempted to reach agreement in respect to ongoing parenting arrangements, including by attending mediation. They were unfortunately unsuccessful in that endeavour. The husband commenced these proceedings by way of an Initiating Application filed on 18 December 2020. Despite the absence of orders, the parties were able to reach agreement in respect to interim parenting arrangements for the two eldest children. From February 2021, X and Y spent time with the father in a fortnightly cycle as follows:(a)During Week 1, from after school on Friday to the commencement of school on the Monday; and(b)During Week 2, X from after school on Tuesday to before school on Wednesday, and Y from after school on Wednesday to before school on Thursday.These arrangements continued during Terms 1 and 2 of 2021. During the April 2021 school holidays, X and Y spent time with the father on three occasions. It is acknowledged that Z has a difficult relationship with his father, and it did not appear to be disputed that on 16 January 2021 and 14 February 2021, Z left the care of his father to return to his mother.

Evidence

Evidence Before The Court

During the September school holidays, both X and Y spent seven consecutive days with the father.[4][4] Father’s affidavit filed 26 October 2021, paragraph 16EVIDENCE The mother relies upon the following:(c)Her Application for Review filed on 27 September 2021;(d)Her Affidavit filed 27 July 2021;(e)Child Inclusive Conference memorandum dated 26 October 2021;(f)Her diary entries from July–August 2021, marked as Exhibit “C”;(g)Her diary entries from September–October 2021, marked as Exhibit “D”;(h)Miscellaneous tender bundle of 24 pages, excluding pages 1–4 and page 16, marked as Exhibit “E”; and(i)Additional tender bundle of the mother entitled “S5”, “S10”, and “S11”, marked as Exhibit “F”. The father relied upon the following:(a)His Affidavit filed 26 October 2021; and(b)Court Book consisting of evidence submitted to the senior judicial registrar. The ICL relied upon a tender bundle of 95 pages, which was marked as Exhibit “B”.NATURE OF A REVIEW OF A REGISTRAR’S DECISION Section 100(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) provides for judicial supervision of orders made by registrars under delegated authority by enabling a party to seek a review of a power exercised by a delegate of Division 1 of the Court (being a judicial registrar). Rule 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the 2021 Rules”) sets out when a party may apply for a review:14.05 Application for review of order or decision(1)A party may apply for a review of an exercise of a power referred to in the table in clause 2 of Schedule 4 by a Senior Judicial Registrar or Judicial Registrar by filing an Application for Review and a copy of the order or decision sought to be reviewed in the filing registry within 21 days after the order or decision is made.(2)A party may apply for a review of any other exercise of a power under these Rules by a Senior Judicial Registrar or Judicial Registrar by filing an Application for Review and a copy of the order or decision sought to be reviewed in the filing registry within 21 days after the order or decision is made.… Further, r 14.07 of the same rules provides:14.07 Procedure for review(1)A court must hear an application for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar as an original hearing.Note: In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.(2) The court may receive as evidence:(a) any affidavit or exhibit tendered in the first hearing; or(b) any further affidavit or exhibit; or(c) the transcript (if any) of the first hearing; or(d)if a transcript is not available—an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.… A review of a judicial registrar’s determination is an original hearing, in the sense that error does not need to be established: see Feiteiro & Feiteiro [2019] FamCA 647 referring to Henley & Henley [2019] FamCA 101 at [7]. Thus, the review is taken to mean a re-examination of the matter afresh: see Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at 71. Accordingly, this matter is considered as a hearing afresh in which each party is seeking interim parenting orders.APPROACH OF THE COURT IN INTERIM PARENTING PROCEEDINGS

Decision

Reasons for decision

Rule 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the 2021 Rules”) sets out when a party may apply for a review:14.05 Application for review of order or decision(1)A party may apply for a review of an exercise of a power referred to in the table in clause 2 of Schedule 4 by a Senior Judicial Registrar or Judicial Registrar by filing an Application for Review and a copy of the order or decision sought to be reviewed in the filing registry within 21 days after the order or decision is made.(2)A party may apply for a review of any other exercise of a power under these Rules by a Senior Judicial Registrar or Judicial Registrar by filing an Application for Review and a copy of the order or decision sought to be reviewed in the filing registry within 21 days after the order or decision is made.… Further, r 14.07 of the same rules provides:14.07 Procedure for review(1)A court must hear an application for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar as an original hearing.Note: In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.(2) The court may receive as evidence:(a) any affidavit or exhibit tendered in the first hearing; or(b) any further affidavit or exhibit; or(c) the transcript (if any) of the first hearing; or(d)if a transcript is not available—an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.… A review of a judicial registrar’s determination is an original hearing, in the sense that error does not need to be established: see Feiteiro & Feiteiro [2019] FamCA 647 referring to Henley & Henley [2019] FamCA 101 at [7]. Thus, the review is taken to mean a re-examination of the matter afresh: see Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at 71. Accordingly, this matter is considered as a hearing afresh in which each party is seeking interim parenting orders.APPROACH OF THE COURT IN INTERIM PARENTING PROCEEDINGS This Court has, on a number of occasions, described the difficulties of determining cases which concern a child in interim proceedings, which are necessarily an abridged process wherein evidence cannot be tested. In Goode & Goode (2006) 206 FLR 212 (“Goode”), the Full Court set out guidance for considering an application for parenting orders on an interim basis. In applying that guidance as set out by the Full Court in Goode at [81]–[82], I will approach consideration of the parties’ respective contentions by:(a) identifying the competing proposals of the parties;(b) identifying the issues in dispute in the interim hearing;(c) identifying any agreed or uncontested relevant facts;(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place)” (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

Ratio Decidendi

Legal Principle Established

Helpfully, the ICL identified at [9]–[19] of her case outline what I agree appears to be uncontentious facts as follows:9. X has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and associated anxiety. She was diagnosed with depression in August 2020 and is currently seeing a psychiatrist, Dr G: M1 [65]. X is currently in Year 8 at H School. 10. Y has no current diagnoses but is currently seeing the school counsellor for ongoing therapeutic support due to thoughts of suicide and self-harm. He is a sensitive soul: F3 [14]. Y has critical asthma and allergy medications: M1 [44]. Y has reportedly had “bad thoughts, sometimes about killing myself” and was tearful or cried through most of his interview with the family consultant: CIC p 4. Y attends J School and is in Year 5. 11. Z has been diagnosed with high inattention, impulsiveness and ADHD. Z has demonstrated very difficult behaviours for the parents to manage. Z is currently seeing Dr B at C Counselling. Z is currently in Year 5 at M School.12. The father (51 years old) is a professional and the mother (54 years old) is a health professional. Both parents work full-time. 13. The parties were married for over 14 years. Their relationship irretrievably broke down in September 2020: F1 [8], M1 [7]. 14. For the period between September 2020 and October 2020, the parties were separated under the same roof: F1 [8], M1 [61]. Perhaps unsurprisingly, there was a high level of conflict between the parents and the father subsequently moved out of the matrimonial home and into a rented unit. The children struggled emotionally and psychologically during this period: CIC p 2. 15. The father has been diagnosed with anxiety and depression and is receiving weekly ongoing therapeutic support from his psychiatrist, Dr K. He has been on medication since 2015. 16. The mother has no current mental health diagnoses, but does attend on a psychologist, Ms N, on a weekly basis. 17. In 2020, the mother’s niece (her sister’s child) passed away from a rare type of cancer. Y was badly affected by his cousin’s passing: M1 [51], [57]. 18. There was an incident on 24 December 2020, where the father lost his temper at Z and was physically aggressive toward Z: ICL TB p 88. 19. The children have experienced a great deal of disruption to their lives in the past two years as a result of the COVID-19 pandemic and changes to their school routine, a change of household arrangements and the separation of their parents, not to mention the very difficult passing of their cousin who was a similar age to them.ADDRESSING THE SECTION 60CC CONSIDERATIONSThe Law – Concepts and Principles The consideration as to what orders are in the best interests of children is informed by the relevant objects set out in the Family Law Act 1975 (Cth) (“the Act”). Section 61DA of the Act relevantly provides that(1)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.…(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in:(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or(b) family violence.…(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.