Ames & Caddy

Case [2023] FedCFamC1F 133

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Ames & Caddy [2023] FedCFamC1F 133

File number(s): BRC 2566 of 2022
Judgment of: MCGUIRE J
Date of judgment: 9 March 2023
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application by mother to review a decision of a Senior Judicial Registrar’s in respect of interim parenting arrangements where orders were made that the children live with the father – where the children had lived with the mother since the parents’ separation in 2017 – where orders had been made by consent in September 2020 confirming the children to live primarily with the mother and spend weekend and holiday time with the father – Hearing de novo – consideration of s60CC factors – order for children to remain living with the mother confirming the consent orders of September 2020 – order for prioritised trial
Legislation: Family Law Act 1975 (Cth) ss 60B and 60CC
Cases cited:

Eaby & Speelman (2015) FLC–643; [2015] FamCAFC 104

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

Marvel & Marvel [2010] FamCAFC 101

SS & AH [2010] FamCAFC 13

Banks & Banks (2023) FLC93-637
Division: Division 1 First Instance
Number of paragraphs: 83
Date of hearing: 7 March 2023
Place: Hobart
Solicitor for the Applicant: Litigant in person
Solicitor for the Respondent: Litigant in Person
Counsel for the Respondent: Ms Berck
Solicitor for the Independent Children's Lawyer: Berck Solicitors

ORDERS

BRC 2566 of 2022

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

MR AMES

Applicant
AND:

MS CADDY

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

MCGUIRE J

DATE OF ORDER:

9 March 2023

THE COURT ORDERS THAT:

1.Orders 2, 3, 4, 5 and 6 of the Orders made on 2 February 2023 be discharged.

2.The Orders of the 9 September 2020 be reinstated and remain in full force and effect from this day.

3.These orders permit the mother to collect the children X born 2013 (age 10 years) (“X”) and Y born 2014 (aged eight years) (“Y”) from their school this day or otherwise as arranged between the parties and the Independent Children’s Lawyer.

4.The mother be permitted to provide a copy of these orders to the Principal of the children’s school.

5.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

6.There be liberty to both parents, Mr Ames and Ms Caddy, to apply on short notice to McGuire J or any other Judicial Officer of this Court in respect of the report/assessments of the parents.

7.The matter remains listed for trial directions before a Registrar of this Court on 15 March 2023 with the matter to be allocated a trial date with such priority as the Court can offer.

Note:   The form…

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AGLC
Ames & Caddy [2023] FedCFamC1F 133
Case
[2023] FedCFamC1F 133
Decision Date

CaseChat Overview and Summary

The case of Ames & Caddy was heard in the Family Court of Australia, where the father had initiated proceedings seeking a review of the primary care arrangements for his two children. The dispute centred around the existing care arrangements that were established by consent orders in September 2020, which allowed the children to primarily reside with the mother while spending alternate weekends and holidays with the father. The father's application sought a re-evaluation of these arrangements, arguing that he should be the primary carer for the children due to concerns about the mother's ability to provide a stable and nurturing environment. The mother, on the other hand, maintained that the existing arrangements were in the best interests of the children and that the father's application was driven by a desire to undermine her role as a parent.

The primary legal issue the court had to decide was whether the existing care arrangements were still in the best interests of the children, given the recent changes in living arrangements and the allegations of family violence and emotional distress affecting the children. The court also needed to consider the urgency of the matter and the potential impact of delaying a decision on the children's well-being. Another key issue was the credibility and weight to be given to the mutual allegations of family violence and the psychological assessments of the children.

The court proceeded with the hearing without waiting for the psychiatric assessments, which were not expected to be completed for several weeks. The judge acknowledged the importance of these assessments but determined that other urgent considerations necessitated an immediate ruling. The court emphasised the need for caution in making findings in such interim proceedings, where evidence is untested and issues of credibility and disputed facts are difficult to resolve. The judge noted the agreed facts, including the children's primary residence with the mother since separation, the recent period of living with the father, and the children's diagnosed emotional conditions. Despite the mutual allegations of domestic violence, the court decided that these issues, given the long-standing separation of the parents and the prior consent orders, should not be the primary focus of its decision on the children's best interests.

The court ultimately decided to maintain the existing care arrangements, with the children primarily residing with the mother and continuing to spend time with the father as per the previous consent orders. The judge ordered that either parent could bring the matter back before the court if they believed that the psychiatric assessments raised relevant matters. This decision allowed for a timely resolution of the immediate issues concerning the children's care while also providing a mechanism for revisiting the case if necessary based on the forthcoming assessments.

Orders

Orders of the court

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Background

Background to the litigation

It is my understanding that orders have been made for each of the parents to be psychiatrically assessed with interviews to take place this week but, unfortunately, where the reports and assessments cannot be provided for some time and, on some suggestions, perhaps not for up to eight weeks. Submissions were taken from each of the parties and the ICL as to whether I should reserve my determination until those reports/assessments are available. Not surprisingly, the father, supported by the ICL, suggested that the Court awaits the reports whereas the mother urged an early consideration. I determined to proceed without further psychiatric assessments due to other considerations of urgency which will become apparent in these Reasons but where I will provide orders which will allow either of the parents, if they believe relevant matters arise from the report/assessments, to bring the matter back before me or another judge of this Court on short notice. BACKGROUND FACTS The mother is 45 years of age. There is no evidence that she is currently re-partnered. The father is 58 years and has re-partnered with Ms F who is apparently the mother of two now adult children. Ms F did not provide an affidavit for the hearing before me. The parents met in about 2010. They married in early 2012. The parties agree that they separated in early 2019 but continued to live under the same roof until June 2019. The mother is currently unemployed. She resides in a house in Suburb G. There are no other occupants of the home. The father lives in the former matrimonial home. He works full-time as a consultant with flexible hours. Ms F works full-time in a senior management role. Following separation the children continued to live with the mother but spent no time with the father for approximately five months. Importantly for this application, the parties entered into consent orders in this Court in September 2020 providing inter alia for the children to live primarily with the mother and spend time with the father on alternate weekends between Friday afternoon and Monday morning together with special occasions and half of all school holidays. There are mutual, recent and historical, allegations of family violence between the parents in various forms of the definition of such violence. There have been domestic violence orders in favour of each of the parties against the other. There have been at least 16 reports to the Child Protection Authorities in respect of the children and, from the evidence before me, none of these appear to have been substantiated. These proceedings were commenced by the father in an application filed in the Brisbane Registry on 8 March 2022. Interviews for a Family Report took place on 4 October 2022. As indicated above, the decision now the subject of the Review was heard and determined by the SJR on 2 February 2023. THE RELEVANT LAW The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provide that the hearing before me proceed as a hearing de novo. Perhaps understandably, the parties, and in particular the father, had difficulty understanding the distinction between a hearing de novo and an appeal where he came to Court armed with the orders of the SJR.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The ICL made only brief submissions and effectively in support of the father’s case to be primary carer. The matter was stood down for over two hours to allow the ICL to read the relatively brief affidavit filed only the day before by the father and to “prepare” her submissions. Those submissions emphasised what she thought was the risk to the children’s emotional psyche in the care of the mother. It is clear, and she says as much, that the ICL effectively adopted as recommendations some of the observations and suggestions of the Family Consultant and the Evatt Reporter as being unequivocal recommendations.CONSIDERATION Not unusually at this interim stage of proceedings, this is a matter where there is much dispute together with mutual allegation and denial. Issues of credit and disputed fact are difficult in the extreme to determine without the testing of the evidence. As such, I note the various authorities that suggest the making of findings in such disputed interim proceeding should be couched with greater circumspection and some caution. The known and agreed facts are few but relevant and are summarised as follows:(1)the children have lived primarily with their mother since separation in 2017; (2)the status quo of the children living with their mother and having weekend and holiday time with their father was sanctioned by consent orders made in September 2020 and, as advised to the parties, matters raised now which occurred prior to the entering of consent orders are of little or no consideration for the Court at this stage subject to argument otherwise; (3)the children have now lived with the father since early 2023 being a period of just less than five weeks; (4)the orders, the subject of the Review, have served to completely sever any relationship for these children with their mother by way of contact or communication;(5)it is agreed that the children suffer from various levels of anxiety, trauma, and/or depression;(6)the assessments of H Psychology offer that X has a provisional diagnosis of ADHD (moderate severity) and that Y has a diagnosis of a behavioural disorder. The H Psychology Assessment does not assist us as to the causes of these conditions. Each of the parents is keen to blame the other for the children’s emotional difficulties and each is reluctant to look at any contributory or other cause for those conditions; and(7)the parties agree, and it is blatantly obvious, that these parents continue an acrimonious, critical, accusative, and suspicious relationship. Where there are denials and the lack of testing of evidence, I am unable to make findings of fact in respect of the mother’s allegations against the father of the domestic violence of various types. I do say, however, and in circumstances where the parents separated as long ago as 2017 and were able to reach consensus by consent orders in respect of their children in September 2020, such issues should not dominate my consideration now as to the children’s best interests.