Amiri & Elbaz
[2021] FCCA 35
•18 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Amiri & Elbaz [2021] FCCA 35
File number(s): SYC 2517 of 2019 Judgment of: JUDGE MORLEY Date of judgment: 18 January 2021 Catchwords: FAMILY LAW – Interim Parenting – best interests – where mother seeks final orders for sole parental responsibility – conflicting evidence – where father denies mother’s assertions that he has had no involvement in the child’s life – where child expresses clear views – order for child to spend time with the father in accordance with her wishes. Legislation: Family Law Act 1975 (Cth) ss 60B, 60C, 60CA, 60CC, 60I, 61C, 65CD, 65D, 61DA, 65DA, 65DAA, 65DAB, 65DAE, 68B 60CD Cases cited: Goode & Goode (2006) FLC 93-286
MRR & GR [2010] HCA 240
Marvel & Marvel (2010) 240 FLR 367
SS & AH [2010] FamCAFC 13
Eaby & Speelman [2015] FamCAFC 104
Grella & Jamieson [2017] FamCAFC 21
Number of paragraphs: 95 Date of hearing: 17 February 2020 Place: Sydney Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Cheryl Orr Family Law Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
SYC 2517 of 2019 BETWEEN: MR AMIRI
Applicant
AND: MS ELBAZ
Respondent
ORDER MADE BY:
JUDGE MORLEY
DATE OF ORDER:
18 JANUARY 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The child X born in 2005 live with her mother.
2.Within 7 days the father notify the Independent Children’s Lawyer in writing of his mobile telephone number.
3.Within 5 days of compliance by the father with order 2 the Independent Children’s Lawyer notify the child direct of the father’s mobile telephone number and upon request by the child thereafter again advise the child of the father’s mobile telephone number.
4.The child spend time with and communicate with her father in accordance with the child’s wishes and both parents must do all things necessary to facilitate the child spending time with and communicating with her father in accordance with her wishes.
5.Each of the parents must do all things necessary to ensure that each of them receives copies of all of the child’s school reports, school notices and school newsletters and each parent is entitled to arrange and attend parent-teacher interviews relating to the child, though not at the same time unless by agreement between them.
6.Each of the parents inform the other parent as soon as possible of any medical issues affecting the child and each parent is entitled to receive all and any information from medical professionals attending on the child that is proper to be advised to a parent of a child born in 2005.
7.Each of the parents is restrained from making comments derogatory of the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence or hearing of the child.
8.Each of the parents is restrained from allowing the child to remain in the presence of, or within the child’s hearing of any other person who is making comments derogatory of the other parent, any member of the other parent’s family or any member of the other parent’s household.
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 under the pseudonym Amiri & Elbaz is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY
INTRODUCTION
These are parenting issues proceedings between the applicant father, Mr Amiri (“the father”) and the respondent mother, Ms Elbaz (“the mother”) concerning parenting arrangements for their child, X, born in 2015. The proceedings were commenced by the father filing his initiating application seeking interim and final parenting orders on 18 April 2019, to which the mother responded by filing her response on 3 July 2019 seeking that the father’s application for interim orders be dismissed and seeking final parenting and property settlement orders.
On 3 July 2019 the matter had its first mention before Senior Registrar Campbell. An order was made for the parties and child to attend a Child Inclusive Conference on 28 August 2019, which they did attend, and a declaration was made by consent that the father is the biological father of the child. A consent notation was made that the declaration was made in relation to the mother making an application to the Child Support Agency for an assessment of child support to be paid by the father to the mother for the child. The matter was adjourned to my list on 27 September 2019.
On 27 September 2019, I made an order appointing an Independent Children's Lawyer to represent X’s interests in the proceedings and the matter was set down for an interim hearing on 17 February 2020. The interim hearing took place on that day with the documents relied upon by the parties being identified, submissions being made by the father on his own behalf, submissions being for the mother by her solicitor advocate, Ms Orr, and submissions being made for the Independent Children's Lawyer by solicitor advocate, Mr Wilkins. I reserved judgment and made an order in relation to a USB device containing certain video evidence, sought to be tendered and relied upon by the father, that any objection to the Court viewing that material on the USB device was to be made to Chambers by the respondent mother and by the Independent Children's Lawyer by 4 pm on 28 February 2020. No such objection was received and the document was entered as an exhibit and marked as exhibit A1.
The property aspect of the matter raised in the mother’s response fell away on the basis that the Court had no jurisdiction to entertain any such application.
The main issue in the parenting proceedings is what time, if any, the child should spend with the father.
The interim hearing was like so many interim hearings on parenting issues before the Court in that there was a wealth of contested evidence between the parties, contested evidence that could not be tested. However, it differed from most such cases in that the contested evidence related to the assertion by the father of having spent time with the child from the time of the child’s birth until about 2018, including at his home from the time the child was about two and a half years of age until 2014, when the child was eight years of age. By comparison, the mother’s evidence was that the father had never spent any time with the child, has no relationship with the child and that the child does not want to spend any time with the father or have a relationship with him.
MATERIALS RELIED UPON BY THE PARTIES
The father relied upon the following material:
(a)Initiating Application filed 18 April 2019;
(b)Notice of Risk filed 18 April 2019;
(c)Affidavit of the Father affirmed 18 April 2019;
(d)Affidavit of the Father sworn 14 January 2020;
(e)Affidavit of Ms B (18 year old half sibling of the child) sworn 12 November 2019;
(f)Affidavit of Ms C (former second wife of the father) affirmed 31 October 2019.
The father also relied on exhibit A1, being a USB device containing videos referred to in the father’s affidavit of 14 January 2020.
The father filed a further affidavit sworn by him on 24 February 2020, but there was no application by the father, at that time, or at the further mention of the matter on 6 April 2020 to reopen the evidence at the interim hearing, the evidence having been concluded and all submissions made at the interim hearing on 17 February 2020. Accordingly, I have not taken that affidavit into consideration in the matter.
The mother relied upon the following material:
(a)Response filed 3 July 2019;
(b)Notice of Risk filed 3 July 2019;
(c)Affidavit of the mother sworn 3 July 2019 and filed that day;
(d)Case Outline document for the mother, prepared by her solicitor advocate, Ms Orr.
The mother also relied upon the following exhibits:
(a)Exhibit R1 – the child's semester 2 2019 report from her high school;
(b)Exhibit R2 – an undated letter addressed, "To whom it may concern," on the letterhead of D School from the deputy principal, Mr E;
(c)Exhibit R3 – an undated letter addressed, “To whom it may concern” from Dr F of Suburb G Medical Centre stating that same was ‘printed on 25 June 2019;
(d)Exhibit R4 – a letter addressed, "To whom it may concern," from Ms H, program manager of J Day Care at Suburb G, undated;
(e)Exhibit R5 - letter dated 29 July 2019 addressed to, "The presiding magistrate, Federal Circuit Court of Australia - Sydney," from Ms K, as chairperson of and on behalf of the Country L Women’s Association;
(f)Exhibit R6 - letter dated 22 October 2019 addressed to the mother from the Child Support Agency, Department of Human Services (Commonwealth).word Association;
The Independent Children's Lawyer relied upon exhibit ICL1, being the Child Inclusive Conference Memorandum dated 28 August 2019, prepared by Family Consultant M, based on interviews with each of the parents separately and with the child on that day.
I have taken into account the whole of the material relied upon by each of the parties (excluding the father's affidavit of 24 February 2020) and by the Independent Children's Lawyer and the submissions made by the father on his own behalf, by Ms Orr on behalf of the mother and by Mr Wilkins for the Independent Children's Lawyer.
THE COMPETING APPLICATIONS
The father sought the following interim orders:
(a)that the parents have equal shared parental responsibility for the child;
(b)that the parents consult and make a genuine effort to come to a joint decision in relation to any long-term issues concerning the child's education, health, changes to the child's living arrangements, insofar as they impact on each parents' time with the child in accordance with the orders;
(c)that the parent who has care of the child make decisions relating to her day-to-day care;
(d)that the child live with her mother and spend time with her father every weekend from 6 pm on Saturday until the start of school on Monday and for the first half of each school holiday period commencing at 10 am on the day after school breaks up and concluding at 5 pm on the midpoint day, with each weekend time to be suspended during school holidays;
(e)on each parents' birthday, with the applicable parent, if not already spending time with that parent, from 9 am until 5 pm;
(f)on Mother's Day with the mother, if not already spending time with her from 9 am until 5 pm;
(g)that each parent notify the other parent within two days of any change to their residential address, telephone number or email address;
(h)that each parent do all things necessary to ensure that each receives copies of all school reports, school notices, school photos, school newsletters and the like with particular reference to school functions and activities in which the child is involved, including parent and teacher interviews and the like;
(i)that each party inform the other parent as soon as possible with regard to any medical issues concerning the child and authorise any medical practitioner to communicate relevant information to both parents;
(j)that each parent be restrained, pursuant to section 68B of the Family Law Act 1975 (Cth), from denigrating each, or a partner of the either parent, in the presence or hearing of the child and each parent is to ensure that no other person denigrates the other parent, or a partner of either parent, in the presence or hearing of the child;
(k)changeovers to be effected by the mother delivering the child at the father's residence at the start of his time and the mother collecting the child from the father's residence at the end of his time.
I note in relation to the orders sought by the father that they are exactly the same as the final orders sought by the father, except for one difference – in the final orders, the father seeks that the child spend time with him every weekend from 6 pm on Saturday until the commencement of school the following Tuesday. If the orders sought by the father on the interim basis were made, then a final hearing would be about an extension of his time with the child for one night each week.
The orders sought by the father would mean that the child would not spend a weekend with her mother, except during the second half of each school holiday period.
The orders sought by the father in relation to the parents consulting with each other and making a genuine effort to come to a joint decision is a concept part and parcel with the meaning of parents having equal shared parental responsibility for a child, as sought by the father in his order 1.
A third order sought by the father, in relation to each parent having sole responsibility for making decisions about the day-to-day care, welfare and development of the child during periods when the child is in their respective care is unnecessary, that matter being fully dealt with by section 65DAE of the Act.
The father's proposed order in relation to time between the mother and the child on Mother's Day suggests that it applies only if Mother's Day falls on a day on which the mother is not otherwise spending time with the child pursuant to the orders, but if the orders sought by the father were made, the child would never be spending time with her mother on Mother's Day, as Mother's Day never occurs during a school holiday period and the orders sought by the father propose that the child be in his care every Sunday outside of school holiday times.
The father proposes an order that the mother do all of the travelling for the child in relation to the time the father seeks to spend with the child.
The only interim order sought in the mother's response was that the father's application for interim orders be dismissed.
The final orders sought by the mother in her response were that she have sole parental responsibility for the child, that the child live with her and spend no time with her father, and that the father be restrained from communicating with the child in any form whatsoever, including face-to-face, social media, telephone or by way of any third person making representations to the child at the direct request of the father. The mother sought, as a final order, a declaration as to paternity, confirming that the father was the biological father of X. That order was made by consent on the first return date.
In the case outline document prepared by Ms Orr for the mother, the Court was advised that:
The mother seeks an order from the Court that X spend time with her father as per her wishes.
The Independent Children's Lawyer indicated that he had held a conference with X and that whilst she had not expressed a wish in that conference to have nothing to do with her father, she had expressed a strong wish that there be no orders in relation to time between herself and her father.
EVIDENCE
I have read and carefully considered all of the affidavit evidence in this matter and all of the exhibits in the matter, including several viewings in chambers of the short video clips contained on exhibit A1 (USB device). I have also carefully considered the submissions made by Mr Amiri on his own behalf, by Ms Orr for the mother and by Mr Wilkins as the Independent Children's Lawyer.
As I indicated earlier in these reasons, this case is not remarkable as an interim parenting matter, in that there is a mass of contested evidence, but it is remarkable in that the father contends a frequent – weekly or fortnightly and half school holidays – relationship between himself and X that is contested by the mother. The father asserts to having spent time with X from the time of her birth until about 2014, and occasions thereafter at community or family events, whereas the mother asserts that the father has never spent time with X and that even at community events attended by the father, the mother and the child, the father ignored X completely until the most recent time, shortly before the commencement of these proceedings.
Further than that, in the Family Consultant's report of her interview with X set out in the Child Inclusive Conference Memorandum to Court (exhibit ICL1) she reports X as saying:
…that she has never spent time with Mr Amiri outside of the community event. She said that she only sees her father and her paternal half-siblings at community events. On these occasions, she said that she would briefly say hello to her father…
and that:
She has never been to her father's house and that he has never come to her house.
I will refer to that document further later on in these reasons.
At the time of the interim hearing, the father was 55 years of age and the mother was 52 years of age. X was 14 years and two months of age.
The father came to Australia from his country of origin in 1996 and became an Australian citizen in the year 2000. He has been married twice. He has three children with his first wife – N, now 20 years; Ms B, now 18 years; and O, who turned 16 a week after the interim hearing. After his divorce from his first wife, he remarried Ms C, and they had three children together, P, aged 10, and twins, Q and R, aged eight. The father and Ms C separated in about 2015 and have since divorced.
The mother was born in Country S and was married to the father's brother, Mr T, who was killed in 2002 by rebel soldiers during the Country S Civil War. The mother and the late Mr T had three children. the mother refers to having ‘…raised three other children’ besides X in paragraph 4 of her affidavit – U, who is 30 years of age; V, who is 27 years of age; and W, who is 20 years of age. The father asserts that the mother and the late Mr T had another child, Y, being the eldest child, who is now also a resident in Australia, having come to Australia after the mother migrated to Australia in 2004 with U, V and W. This baffling conflict in the parties’ evidence is puzzling, but it has no bearing on the Court's determination of the issue in these interim proceedings.
On coming to Australia with the assistance of her uncle, Mr Z, the mother began a relationship with the father in consequence of cultural issues affecting them as brother and sister-in-law in circumstances where the mother's husband was deceased and, for a period of time, they had an intimate relationship as a result of which the mother fell pregnant with X, who was born in 2005.
The father's version of events following X's birth are that he visited the mother and X at the mother's home frequently – at least once each week – during the two years following X's birth and that the time he spent with X increased once she turned about two-and-a-half years of age. He says that in 2008, X began staying overnight at this home on the weekend fortnightly and that this circumstance continued until 2015. He says that X called him ‘Great Daddy’. When X started school in 2011, she began spending half of all school holiday periods with the father at his home, including three weeks of the Christmas school holiday period, often accompanied during school holidays by her half-sister, W (the mother spells this person's name as W, now 20 years of age).
The father says that in 2015 he and the mother argued over problems arising between the father and his then wife, Ms C, and that as a result of their arguments, the mother told the father that she would not let X spend time with him anymore. He then says that in February 2018 the mother agreed to let him spend time with X at his home and so he collected X at 6 pm on Saturday and returned her to her school on Monday. He says that on this occasion he purchased a laptop computer for X and he annexes a copy of the receipt for the purchase to his affidavit. He says that the mother would not allow X to spend time with him on any occasions thereafter and he only saw her and was able to talk to her and spend time with X at social functions within the Australian Country AA community.
The father relies on the evidence in exhibit A1, the USB device, containing eight video clips, each very short. The father does not appear in any of the videos, but he asserts that X appears in each. He asserts that they are:
(a)X in a car being driven by the father in March 2016 ‘making silly faces’;
(b)X at his home on 21 September 2016 putting groceries in the fridge;
(c)X playing with the twins, Q and R, in 2017, place unknown;
(d)X singing with her half-sister, Ms B, in Ms B's bedroom on 14 April 2017 during a sleepover at the father's home;
(e)X singing with the father's children, B and O, on 16 April 2017, place unknown;
(f)X dancing between the kitchen and living room of the father's home on 16 April 2017;
(g)X with O ‘at a social event’ on 6 April 2019, place unknown;
(h)X spending time with Ms B and O at a birthday party on 29 March 2019, place unknown.
The father annexes to his affidavit of 14 January 2020 a number of photographs that he asserts depict X with various of her half‑siblings and depict the mother and the father together at social events on various occasions between 2004 and 2016. The father attaches as "15" to that affidavit a photo that he says depicts X in company with his daughters, Ms B and O, and the mother's daughter, W, on a day when the four of them went to the cinema at Suburb BB in 2019.
As stressed by Ms Orr in her submissions on behalf of the mother, it is notable that none of the video films or the photographs presented in evidence by the father depict X in his immediate company. Ms Orr advised in submissions – noting that there were no directions for affidavits in reply for the interim hearing – that the mother instructed her that she denies that the persons depicted in the photos annexed to the father’s affidavit of 14 January 2020 are who the father says they are.
In submissions, the Independent Children's Lawyer noted that the photos may be consistent with the father knowing X, but do not really support the case of either party, given that the child indicated to the Independent Children's Lawyer that she has seen the father at community social events.
The father relied on an affidavit by his daughter, Ms B, 18 years of age. She gives evidence that she and her siblings visited the mother's home and that X would spend time with her father at his home, on occasions accompanied by the mother, and that Ms B would see X at the father's home on weekends when she was also spending time with him (she lived during the week with her mother). Ms B says that on weekends, when X was not spending time with the father at his home, Ms B and others of her siblings would go to the mother's house to see X. She says that once X was four or five years of age, she began spending overnight time at the father's house during school holidays. Finally, she says that sometime in 2016 or 2017, X stopped spending time with the father at his home.
The father also relies on the affidavit of his second wife, Ms C, from whom he separated about four years ago and from whom he is divorced. She says that when she arrived in Australia in 2008, she was met at the airport by the father and the mother. She says that she, the father and their children ‘spent a lot of time’ with the mother and her children, including X, and they visited each other's homes often. She says that X came to the father's home and slept overnight, either weekly or fortnightly and for multiple overnight stays during school holidays, sometimes accompanied by her half-sister, W. Finally, she says that she has had no contact with the mother or X since 2018.
The mother's evidence is entirely different.
The mother, in effect, denies all of the father's evidence and that of Ms B and Ms C, by saying that from the moment she told the father that she was pregnant with his child, X, he refused to be involved in X's life. She says that she did not hear from him from when she was pregnant with X until she received an invitation from CC Counselling to engage in mediation in about June of 2018. She attended with the Family Dispute Resolution practitioner on 8 June 2018 and after explaining that there was no relationship between the father and X, she was told by the mediator that the matter was not suitable to proceed to mediation. The section 60I Certificate said to be relied upon by the father reflects such a decision, but not the basis upon which that decision was made.
The mother says quite plainly that X has no relationship with the father or with any of his children and that the father is a stranger to X. She says that the father never participated in X's life in any manner and that she has been X's primary and only carer since the time of her birth. She gives evidence that X has told her that she refuses to see her father and wants nothing to do with him. In relation to community events conducted through the DD organisation, attended by both the father and the mother and at which X was also present, she says the father totally ignored X until 2019, when the father started coming up close to X and staring at her. The mother does not give any evidence of the father talking to or seeking to otherwise engage with X in any way.
The mother asserts family violence perpetrated by the father through ‘intimidation and harassment’ and refers to a telephone call she received from the father on 29 January 2018 at midnight in which he threatened her with court proceedings. She refers to pressure being brought to bear on her by community elders in the DD organisation, seeking to convene a meeting to discuss the issue of the father's relationship with X. The mother has refused to engage in such meeting or discussions.
The parties and X attended a Child Inclusive Conference with the Family Consultant, M, on 28 August 2019. The parents were interviewed separately and the Family Consultant interviewed X. No agreements were reached.
The Child Inclusive Conference Memorandum to Court reflects that no risk issues were identified, including as to family violence and that the parents:
…provided opposing narratives of their relationship and time spent together since Ms Elbaz became pregnant with X.
She reports that the mother explained to her, as the mother details in her affidavit, that she has come under pressure from the elders of the DD community in consequence of the father telling those elders that the mother had initiated the court proceedings, whereas, in fact, the proceedings were commenced by the father.
The Memorandum notes:
Ms Elbaz said that X has never had significant relationships with Mr Amiri and the paternal half-siblings. She said that X has never been to his home, or any paternal family member's home, to spend time with Mr Amiri or any other paternal family members. Ms Elbaz said that, at most, X would see them at community events. Ms Elbaz said that X would say hello to her father at these events, but have little interaction with him other than this.
On the other hand, the Family Consultant notes that:
Mr Amiri has said that he spent regular time with X until 2017. He said that from 2011-2015 he spent time with X on a weekly basis and he said that X spent half of each school holiday period with him, his wife and her paternal half siblings … he said that his relationship with X used to be ‘close’.
The Family Consultant reports from her interview with X that:
X indicated having close relationships with her mother, maternal half-siblings … that she is well cared for by her mother.
She then notes:
X said that she has never spent time with Mr Amiri outside of a community event. She said that she only sees her father and her paternal half-siblings at community events. On these occasions, she said she would briefly say hello to her father. She suggested that she would spend more time with her paternal half-siblings than with her father. She indicated having limited relationships with Mr Amiri and her paternal half-siblings. X said that she has never been to her father's house and that he has never come to her house.
X said that she does not want to spend any time with Mr Amiri. She appeared unsure why he was wanting her to spend time with him. X said that she did not want to further develop her relationship with Mr Amiri. She said that she would be ‘mad’ if orders are made that require her to spend some time with him. X said that she calls Mr Amiri ‘Dad’. X appeared open to further developing her relationship with her paternal half-siblings. She said that she does not want orders for this and will continue to see them at community events.
Exhibit R1 is a copy of X's school report from D School for semester 2 of 2019, when X was in year 8. It indicates that X is doing well at school.
Exhibits R2, R3, R4 and R5 indicate that the authorities at D School, Suburb G Medical Centre, J Day Care at Suburb G (where X was in long day-care) and the Country L Women's Association are all familiar with X and her mother, but have no knowledge of her father. These documents, of themselves, do not discount any involvement of the father in X's life to date. Exhibit R6 is correspondence dated 22 October 2019 to the mother from the Child Support Agency in relation to assessments of child support to be paid by the father to the mother for X, no doubt consequent upon the action taken by the mother following the declaration of paternity made by consent on 3 July 2019 in these proceedings.
THE LAW - INTERIM PARENTING PROCEEDINGS
In parenting proceedings under the Act, the Court is required to follow the legislative pathway set down in the Act that applies to interim hearings on parenting issues (MRR & GR [2010] HCA 240; Goode & Goode (2006) FLC 93-286; Marvel & Marvel (2010) 240 FLR 367).
The Court must give attention to section 60B of the Act that sets out the objects of Part IV of the Act relating to children. Those objects inform the making of parenting orders.[1] That section also contains the principles behind those objects. In this matter I have considered those objects and the principles behind those objects.
[1] Family Law Act 1975 (Cth) s 60B.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. The child's interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter, but the child's interests must always be the paramount consideration.
In parenting proceedings, pursuant to section 65D of the Act, the Court may, subject to the presumption of equal shared parental responsibility in section 61DA and consideration of parenting plans under section 65DAB, make such parenting order as it thinks proper.[2] The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[3]
[2] Family Law Act 1975 (Cth) s 65D(1).
[3] Family Law Act 1975 (Cth) s 65D(2).
In determining what is in a child’s best interest, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC and make findings. [4]
[4] Family Law Act 1975 (Cth) s 60CC.
Section 61DA provides that 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.[5]
[5] Family Law Act 1975 (Cth) s 61DA.
The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse. The presumption, when applying, 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.[6]
[6] Family Law Act 1975 (Cth) s 60B.
When the Court is considering parenting matters on the interim basis the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making interim orders.
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then pursuant to section 65DAA, the Court must consider:
(a)Whether the child spending equal time with each parent would be in the best interest of the child;[7] and
(b)Whether the child spending equal time with each of the parents is reasonably practicable.[8]
If both questions are answered 'yes', the Court must consider making an order to provide for the child to spend equal time with each of the parents.
[7] Family Law Act 1975 (Cth) s 65DAA(1)(a).
[8] Family Law Act 1975 (Cth) s 65DAA(1)(b).
If the Court does not make an order for the child to spend equal time with each of the parents, then the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable and, if the answer to both is yes, the Court is to consider making an order to provide for the child to spend substantial and significant time with each of the parents.
What is meant by substantial and significant time is set out in section 65DAA(3) of the Act and includes days that fall on weekends and holidays, days that do not fall on weekends or holidays, the child being able to be involved in occasions and events special to the parents, the parents being able to be involved in occasions and events of particular significance to the child, and the parents being able to be included in the child's daily routine.
If the Court does not make an order for the child to spend substantial and significant time with each of the child's parents, the Court must then go on to determine what parenting orders are proper in the best interests of the child, per section 65D.
As to what is 'proper' and how the Court's discretion is to be exercised I note the comments of the Full Court of the Family Court of Australia in the decision of Grella & Jamieson [2017] FamCAFC 21:[9]
A discretionary judgment concerning the parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.[10]
[9] Ibid [18].
[10] Ibid.
Where there is contested evidence in an interim hearing the Court is not always able to make a finding, but must do what can be done on the basis of agreed facts and any contested evidence where there is sufficient corroboration on one side to enable a finding. This is to enable the Court to perform its function, and resolve any interim issues with the best interests of the child as the paramount consideration, and make whatever orders are then considered proper.
In SS & AH,[11] in the context of discussing the obligations of the Court whilst conducting interim children’s proceedings where the evidence available was contradictory in nature but nonetheless raised significant welfare concerns for the children concerned, the Court observed:
… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.[12]
[11] SS & AH [2010] FamCAFC 13 (Boland, Thackray, and O’Ryan JJ).
[12] Ibid [100].
As noted by the Full Court of the Family Court of Australia in Eaby & Speelman,[13] this approach ‘enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.’[14]
[13] Eaby & Speelman [2015] FamCAFC 104.
[14] Ibid [19].
SECTION 60CC - THE PRIMARY CONSIDERATIONS
The primary considerations are the benefit to X of having a meaningful relationship with both of her parents and any need to protect X from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Subsection (2A) mandates that the Court must give greater weight to the consideration of any need to protect X over the benefit to X of having a meaningful relationship with both of her parents.
This is not a risk case relating to family violence, alcohol or illicit drug use, parental mental health or overseas abduction or any of those usual risk elements, but may be a risk case in relation to the psychological effect on X of either being denied an ongoing relationship with her father, if she has had one, and is now prevented or influenced against having an ongoing relationship by her mother, as the father alleges, or from being forced into a relationship with the father whom she does not know by the making of Court orders for specific time – as asserted by the mother.
As shown, the nature of the relationship between X and her father, or the non-existence of any such relationship, is a matter of diametrically opposed contested evidence. While the Court cannot make findings on an interim basis where there is contested evidence without some weight of evidence on one side or the other by way of corroborations that can tip the scale for a finding, this case does not provide that corroborating evidence that would enable a resolution of the competing claims of the parents in relation to the relationship with X and her father.
On the mother's side, there are the exhibits which come from organisations with which X has been involved long term and which indicate that they have had no association with or knowledge of the father. As stated, however, those documents themselves do not discount a relationship between X and her father, where there may have been circumstances where the father spent the time with X as he asserts, but did not involve himself with her long day-care at J Day Care, with her school or her medical practitioner and it is not unreasonable to think that he may not have been involved with the Country L Women's organisation.
On the other side, the father puts in the short videos contained on the USB device in exhibit A1 and the photographs attached to his affidavit of 14 January 2020. In none of the videos or the photographs does the father appear with the child. All and any of those videos or photographs could have been made at community events or have been made by persons other than the father at persons' homes other than the father's home. The father asserts that some of the videos and some of the photographs are taken at his home. That is contested by the mother and there has been no testing of the evidence.
The state of the evidence leads to a finding that, other than the possible psychological risk to X already referred to, there is no element of risk in this matter that gives rise to a need to protect X. On the other hand, the state of the evidence makes it extremely difficult to make any finding when considering the benefit to X of having a meaningful relationship with both of her parents. The father asserts that there is benefit to her in that she would be continuing a meaningful relationship with him.
The mother asserts that there is no benefit to X as she has reached 14 years and two months of age at the time of the interim hearing (nearly 15 years of age at the time of preparation of these reasons) without having any relationship with her father other than acknowledging that he is her father. This gives rise to an extreme difficulty in deciding how to proceed on this interim basis.
X's age, the comments she made to the Family Consultant in the Child Inclusive Conference, and her reported comments to the Independent Children’s Lawyer as provided to the Court by Mr Wilkins in his submissions, tend towards a finding that whatever orders may be made on an interim basis should leave matters in X's own hands to either follow what she knows to have been a relationship, despite influence that may have been brought to bear upon her to make certain statements to the contrary, or to decide to explore the establishment of such a relationship if it has never existed, or to reject the intrusion into her life at the stage of mid-teens, of a person who has not been a participant in her life up to that time.
SECTION 60CC - THE ADDITIONAL CONSIDERATIONS
X's views are clearly expressed through the Child Inclusive Conference Memorandum to Court and are quoted in full earlier in these reasons. Her wishes are also conveyed to the Court by the Independent Children’s Lawyer, Mr Wilkins, and in submissions and are properly received pursuant to section 60CD of the Act. Mr Wilkins advised in submissions that during his conference with X she told him that she had no recollection of staying over at her father's home and that she has only seen her father at social gatherings of the community.
He advised that in the conference X presented, in his view, as a very mature 14-year-old, such that on meeting her he had the impression that she was somewhat older than that. He submitted that she had not expressed a wish to him to have nothing to do with her father, but rather, she had expressed a wish not to have Court orders made in relation to time to be spent with her father. He reported that X expressed that it was ‘weird’ that her father was seeking orders to spend time with her now. He further advised that X informed him that she would be ‘mad’ if orders were made for her to spend time with her father.
There is no doubt whatsoever that the mother was X's primary carer in her infancy and has been so throughout her life. X confirms a close relationship with her mother and denies a relationship with her father. As already stated, consideration of the nature of the relationship of X with her father and with her paternal half-siblings is rendered very difficult, or impossible, on the state of the contested evidence.
The same can be said in relation to the consideration of the extent to which the father has taken or failed to take the opportunity to participate in making decisions about major long-term issues for X, to spend time with X and to communicate with her. On the father's evidence, he would appear to have taken every opportunity. On the mother's evidence, he would appear to have taken no such opportunity. Similarly, in relation to the extent to which the father has fulfilled or failed to fulfil his obligation to maintain X, the father asserts in paragraph 10 of his affidavit of 14 January 2020:
I have contributed both financially and non-financially to X's upbringing.
The father does not give any specific evidence of any financial support provided by him to the mother for X's benefit prior to the mother being able to register for an assessment of Child Support to be paid by the father to the mother after the declaration of paternity was made by consent in the Court on 3 July 2019 in these proceedings.
Once again, consideration of likely effect of any change in X's circumstances, including the likely effect on her of any separation from either of her parents or from any of her half-siblings, paternal or maternal, is extremely difficult to consider and assess on the state of the evidence.
It may be that a continuation of a separation of X from her father, such as has been the case since January 2018 (on the father's own admission) would be a continuation of a breach in their relationship and have a detrimental effect on X, as referred to above on the father's case, or a change in her circumstances by her being the subject of orders that time be spent between herself and her father where there has to date been no such relationship, as is put in the mother's case, and consequent separation for those periods of time from her mother and her maternal half-siblings may also have its psychological effect to her detriment.
The gulf between no order for time between X and her father and the making of orders as sought by the father for time to occur from 6 pm Saturday until start of school on Monday every weekend and for half of each school holiday period is a very wide gulf and, on the evidence, it is rendered extremely difficult to say where along the line, over that gulf, an order should be.
There is no evidence that there is any practical difficulty or expense in X spending time with her father.
In relation to parenting capacity, the mother has proven her parenting capacity in relation to raising X, but the question arises as to whether the mother's parenting capacity is called into question if the father's case were accepted and the breach in the relationship between father and child was caused by the mother. If the father's case is accepted, then his parenting capacity is not called into question in that no complaint is raised about his care of X, but, of course, on the case presented by the mother, no complaint could be identified and raised, because there has been no care of X by the father! On the state of the evidence, consideration of the parties' relevant parenting capacities provides little help.
X is nearly 15 years of age and is a young lady in her mid-teens, very much involved with her school community and with her cultural community. It would seem on the evidence of both parties participating regularly in cultural community events that she could pursue that cultural interaction in the care of either parent.
The comments made above about parenting capacity can be applied to the consideration of the attitude to X and the responsibilities of parenthood demonstrated by each of her parents. On the state of the evidence, proper consideration and findings in this regard are rendered impossible.
There is no evidence of family violence and there is no evidence of any family violence orders ever applying to X or any member of her family.
Examination of the primary and additional considerations in section 60CC leads me to find that, on the interim basis, X's relationship with her father, whether it is a continuation of a relationship that has been in hiatus since January 2018 or the establishment of such a relationship where there has been none before, is best left with X by giving her the means to communicate with her father and make arrangements for contact and spending time if she chooses, or to refrain from doing so, if that be her choice.
SECTION 61DA - PARENTAL RESPONSIBILITY
The presumption in section 61DA that it is in X's best interests for her parents to have equal shared parental responsibility for her applies in these interim proceedings unless I consider that it would not be appropriate in the circumstances for the presumption to be applied on the basis that there is no evidence of abuse or family violence affecting X. The evidence of the mother would be sufficient to rebut the presumption in that if X has had no relationship with her father and is about to be 15 years of age, then it would not be in her best interests for her parents to have equal shared responsibility for her. However, I cannot make the required finding to come to that conclusion. Accordingly, I find that in the circumstances it is not appropriate or in X's best interests, to apply the presumption in these interim proceedings and that the matter is best left under section 61C pursuant to which of the parents has parental responsibility for X.
X is in year 9 at high school and there is no suggestion that there is any need to make decisions about changing schools for her. There is no evidence that she has any pressing long-term medical issue or any other long-term parenting decision that needs to be made about her in the short or even the long term.
As there will not be an order that X's parents have equal parental responsibility for her, I do not need to consider the matters raised in section 65DAA relating to X spending equal time with each of her parents or spending substantial and significant time with each of her parents.
CONCLUSION
In view of the state of the evidence and the effect of that evidence on my consideration of the primary and additional considerations in section 60CC, I find that the orders properly to be made in X's best interests with her interests as the paramount consideration, but not the only consideration, are that she live with her mother and that she be armed with the means to contact and communicate with her father and herself arrange to spend time with him, should that be her wish.
I consider that the appropriate means of achieving this, given the assertion by the father that the mother is and has been alienating him from X, and the mother's assertion that there is no relationship between X and her father, is to have the father notify the Independent Child’s Lawyer of his mobile telephone number and to have the Independent Child’s Lawyer ensure that X herself is given knowledge of that phone number and then to provide that X spend time with her father in accordance with her wishes, thereby arming X with the ability to make arrangements and, by the nature of that order, requiring her mother to cooperate in any such arrangements.
As the mother entered into the declaration of paternity by consent and the parents each have parental responsibility for X, pursuant to section 61C of the Act, I find that it is appropriate to make the orders sought by the father in relation to each parent being able to obtain information about X's educational and medical matters. I also find that it is appropriate to make an order restraining each of the parents from making derogatory comments about the other parent in the presence or hearing of X or allowing her to be exposed to other persons making such comments, and to extend that to members of each parents' family and members of each parents' household, but to not make an injunction as a personal protection order under section 68B, as sought by the father.
Accordingly, I make the orders set out at the start of these reasons.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley. Associate:
Dated: 18 January 2021
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Consent
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Injunction
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