Apted and Apted

[2018] FCCA 785

FEDERAL CIRCUIT COURT OF AUSTRALIA

APTED & APTED [2018] FCCA 785

Catchwords:
FAMILY LAW – Parenting – interim proceedings – 2 children aged 4 and 2 – recovery order – both parent’s claim to be primary carer – shared care arrangement versus live with mother and spend alternate weekends with father ­ cross allegations of family violence – cross allegations of drug use – best interest of the children.

Legislation:

Family Law Act 1975 (Cth), pt.VII

Cases cited:
Goode & Goode [2006] FamCA 1346
Marvel & Marvel [2010] FamCAFC 101
SS & AH [2010] FamCAFC 13
U & U (2002) FLC 93-112

Applicant: MS APTED

Respondent: MR APTED

File Number: NCC 348 of 2018

Judgment of: Judge Middleton

Hearing date: 12 February 2018

Date of Last Submission: 12 February 2018

Delivered at: Newcastle

Delivered on: 12 February 2018

REPRESENTATION

Counsel for the Applicant: n/a

Solicitors for the Applicant: Watts Mccray Kearnans

Counsel for the Respondent: Mr Battley

Solicitors for the Respondent: Woolbridge Lawyers Pty Ltd

ORDERS

1. Today, the parties are to attend a child dispute conference with a family consultant pursuant to section 11F(1) of the Family Law Act 1975.

2. The parties are advised that if a person who is ordered to attend an appointment with a family consultant under section 11F fails to comply with:

3. The Order made by the Court; or

   (a)Any instruction the consultant gives to the person; the consultant must report the failure to the Court.

   (b)On receiving the report, the Court may make any further Orders it considers appropriate.

4. The Court may make Orders under section 11F(2) :

   (a)On its own initiative; or

   (b)On the application of:

   (i)A party to the proceedings; or

   (ii)A lawyer independently representing a child’s interests under an order made under section 68L.

5. Both parties shall submit themselves for hair follicle testing at an accredited clinic, with the parties to provide no less than three (3) centimetres (or such length as may be agreed between the parties) of hair for such testing, and the parties be restrained from taking any steps to interfere with the test result.

6. Each party bear their own costs of such testing

7. The Mother do all things reasonably necessary to encourage her partner Mr J to submit himself for hair follicle testing at an accredited clinic, with the Mr J to provide no less than three (3) centimetres (or such length as may be agreed between the parties) of hair for such testing, and he be restrained from taking any steps to interfere with the test result.

8. Each of the parties share the costs of all testing equally.

9. The parties contact Unifam for the purpose of engaging in the Keeping in Contact program within seven (7) days of today’s date.

10. Both parties comply with all reasonable directions of the Keeping in Contact program co-ordinator.

11. The children [X] born (omitted) 2013 and [Y] born (omitted) 2015 (“the children”) live with the Father as follows:

    (a)In Week 1: On Thursday from the conclusion of school or child care to 4.00pm Sunday, with the Father to collect the children from their respective childcare centre or school on Thursday and return them to the Mother or such other nominated person at the (omitted) Club on Sunday at 4.00pm.

    (b)In Week 2: On Wednesday from the conclusion of school or child care to until Friday evening at 6.00pm, with the Father from their respective childcare centre or school on Wednesday and return them to the Mother or such other nominated person at the (omitted) Club at 6.00pm on Friday.

12. Notwithstanding any other order herein the children shall spend time with both parents on the following occasions:

    (a)On the Father’s birthday from 9.00am on the Father’s birthday, the children are to spend time with the Father until 5.00pm with the Father to collect the children at the commencement of time from the (omitted) club and return them to the Mother or such other nominated person at the (omitted) Club at the conclusion of time.

    (b)On the Mother’s birthday from 9.00am on the Mother’s birthday, the children are to spend time with the Mother until 5.00pm with changeover to occur at the (omitted) Club at the commencement and conclusion of that time.

    (c)On Father’s Day from 9.00am on Father’s Day the children are to spend time with the Father until 6.00pm with changeover to occur at the (omitted) Club at the commencement and conclusion of that time

    (d)On Mother’s Day from 9.00am on Mother’s Day the children are to spend time with the Mother until 6.00pm with changeover to occur at the (omitted) Club at the commencement and conclusion of that time.

13. The children live with the Mother at all such other times.

14. The children spend time with the other parent as agreed between the parties in writing at all such other times.

15. The children have telephone or facetime contact with the Father each Monday at 5.00pm with the Father to initiate the call to a number nominated by the Mother and the Mother to afford the children privacy during the call.

16. The Mother and Father provide by way of disclosure details of all treating medical specialists including psychologists, psychiatrists and counsellors attended on by them in the previous 24 months.

17. Until further order each party, MS APTED born 22 December 1984 and MR APTED born 28 February 1983 their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said children [X] born 12 June 2013 and [Y] born 29 July 2015 (“the children”) from the Commonwealth of Australia for a period of 2 years;  

    AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watchlist for the said period, or until the Court orders its removal. 

1. Both parties do all things reasonably necessary to contact the Department of Foreign Affairs & Trade to cause the cancellation of the child [X]’s passport.

2. The Father is to deliver the children to the child care centre by no later than 8.00am on 13 February 2018.

3. Pursuant to s.62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Senior Family Consultant, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:

   (a)To consider the factors in S60CC & S65DAA of the Family Law Act 1975.

   (b)To assess the parents (and other significant adults)

   (c)To assess the parents interactions (and those of other significant adults)

   (d)To assess the children’s developmental and emotional state.

   (e)To assess the relationship of the children to the parents (and other significant persons) and the wishes of the children.

   (f)To assess the proposed and actual home environments.

   (g)To assess the proposals of each party as to the children’s future.

4. The Court requests the said report be released by 16 July 2018.

5. Pursuant to Regulation 1.06 of the Federal Circuit Court Rules 2001 the court dispenses with the requirement of Division 15A.2 of the said Rules and the family consultant is granted leave to inspect all documents produced in response to subpoena whether such documents have or have not been released for inspection.

6. If the Family Consultant is unable to inspect documents produced in response to subpoena at the Newcastle Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the Family Consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.

7. The matter is adjourned to 9.30am on 6 August 2018 at Newcastle for directions hearing.

IT IS NOTED that publication of this judgment under the pseudonym Apted & Apted is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

No. NCC 348 of 2018

MS APTED

Applicant

And

MR APTED

Respondent

REASONS FOR JUDGMENT

Ex tempore

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. This matter comes before me today on the first return by way of an Initiating Application filed by the mother on 7 February 2018. 

2. The matter relates to two children, [X] born (omitted) 2013 and [Y] born (omitted) 2015. 

Documents relied upon

1. The mother relied upon her Initiating Application, Notice of Risk and her Affidavit filed 7 February 2018 and an Affidavit of the maternal grandmother filed 9 February 2018. 

2. The father filed his Response on 12 February 2018, and he relies today on his Response, Affidavit and Notice of Risk and an Affidavit of the paternal grandmother all filed on 12 February 2018. 

3. The orders sought by the Respondent are set out in his Response.

4. The orders sought by the Applicant are set out in the Mother’s Minute of Order, exhibit 1 in today’s proceedings. 

The law

1. The matter involves parenting arrangements for children, and as such the provisions of part VII of the Family Law Act (the Act) apply. 

2. Earlier today the matter was before me, and the parties were directed to attend a child-dispute conference, and the court has available to it, as do the parties, a Memorandum under the hand of Mr C, family consultant, to which both parties referred. 

3. The matter came to be commenced in this court upon the mother realising on 1 February 2018 that both children had been taken into the care of the father.  Since that time the children have not spent any time with the mother and have had very limited communication with the mother.  The mother initially and indeed pursuant to exhibit 1 still seeks a recovery order for both children. 

4. In Goode & Goode[1] the Full Court set out a pathway to follow in determining interim hearings, and I will follow that pathway.

   [1] [2006] FamCA 1346

Identifying the proposals

1. The father’s proposal is for a seven-on-seven-off arrangement, an equal-shared parenting arrangement. 

2. The mother’s proposal is for the children to spend each alternate weekend with the father from 4 pm Friday until 4 pm Sunday, such time being supervised by the paternal grandmother. 

3. Both parties assert that the other perpetrated family violence. 

4. Both parties assert that the other party is taking drugs now or in the past and has been and will be affected by drugs when caring for the children into the future. 

5. The father asserts that the mother has been neglecting the children whilst they are in her care. 

6. Much of the factual matrix that I am left to determine is in dispute.  That’s not surprising.  This is the Federal Circuit Court after all, and these are interim hearings. 

7. In Marvel & Marvel[2], the Full Court said at paragraph 120:

   ‘As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children.’

   [2] [2010] FamCAFC 101

8. In SS & AH[3] again the Full Court said this at paragraph 100:

   ‘The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested.  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.’

   [3] [2010] FamCAFC 13

9. This is an interim hearing.  I cannot make a finding as to whether there was family violence and, if there was, who was responsible for it. 

10. Section 60CG of the Family Law Act, however, requires me when allegations of family violence are made to make orders consistently with the child’s best interests being the paramount consideration – section 60CA – and in doing so ensure that the order is consistent with any family-violence order and does not expose a person to an unacceptable risk of family violence. 

11. There is currently an Apprehended Domestic Violence Order application on foot.  There was previously an Apprehended Domestic Violence Order in place. 

12. The mother through her solicitor informs the court that the Apprehended Domestic Violence Order is next before the court on 1 March of this year and indicated that it was a non-urgent application.  In those circumstances it is unlikely to be heard. 

13. I am also informed that there are no current orders in place. 

14. What then is the risk, if any, of family violence? 

15. In determining if there’s a risk to the children of being exposed to family violence I must, of course, have regard to past history relating to the care of these children. 

16. The best snapshot of that past history is found at annexure “C” of the father’s Affidavit, a letter dated 2 January 2018 from the mother’s lawyer, where it says amongst other things:

    ‘Our client disputes your assertion that you are the children’s primary carer.  Initially since April of 2017, the children spent in week 1 from Wednesday to Friday with you and in week 2 from Thursday afternoon to Monday morning (or 6 nights per fortnight with you).  Approximately three months ago we are instructed that in week 1 the children spent from Wednesday to Friday with you (or 7 nights per fortnight with you).

17. The inference being that the other time was otherwise continuing. 

18. It follows then, that from April of 2017 the children have been spending substantial and significant time with both of their parents. 

19. Both parents assert that they are the primary carer of the children. 

20. What is uncontested is that for a period of approximately six months post separation the children were in the sole care of their mother, totally absent their father while he was overseas. 

21. What is clear and uncontested on the evidence is that in 2014 the children were totally absent their father for 94 days, in 2015 totally absent their father for 102 days and in 2016 totally absent their father for 93 days. 

22. Primary carer is one thing.  Primary attachment is another.  Primary attachment does not necessarily correlate with the number of days a child spends with each parent. 

23. Primary attachment goes to matters such as who do the children take comfort from when in distress, who do they run to, who do they feel most settled by.  They are the important aspects of primary care and primary attachment that I must turn my mind to. 

24. As the Full Court said in SS & AH[4], I have to use my intuition.  I cannot determine the facts.  I have to weigh up the probabilities of competing claims and the likely impact on the children in the event that a controversial assertion is acted upon or rejected. 

    [4] [2010] FamCAFC 13

25. One view, in terms of acting conservatively, is to make orders for an equal-time arrangement.  But in circumstances where there is a considerable amount of acrimony between these parents and, in the words of the family consultant ‘an extremely poor co-parenting relationship’, I cannot be satisfied that an equal-time arrangement would be in their best interests on an interim basis. 

26. Equal-time arrangements, we know through empirical evidence, require good, if not excellent, levels of communication, require flexibility by both parents, require extremely good co-operation between the parents, and in circumstances where that is absent, children are exposed to conflict.

27. There is decades’ worth of empirical data that satisfies me that children who are exposed to conflict suffer psychological harm in the long run. 

28. It goes without saying, that I must protect children from harm.  The Act says so at section 60CC(2)(b). 

29. Psychological harm is significant, particularly where these are two very young children with very malleable brains that can be adversely affected very quickly, if interim orders are made exposing the children to risk. 

30. I must act cautiously. 

31. Exhibit 2 in the proceedings is a document from (omitted) Early-learning Centre which shows that the mother predominantly has been delivering the children to and collecting the children from day-care. 

32. The father says in his Affidavit at paragraph 94:

    ‘The only task Ms Apted completes consistently is taking [X] to preschool, because it is on her way to work.’

33. I am not sure whether that means the mother picks the child up from the father’s residence or whether that means the child is in her care in the morning and she takes the child to school.  But the fact that the children are taken to and picked up from day-care by the mother in the main, along with the absence of the father for the periods of time specified above, that assist me, doing the best that I can and using my intuition, to be satisfied on balance that the children are primarily attached to the mother at this interim stage. 

34. Ultimately a family consultant or another expert will give me evidence as to their primary attachment.  I do not have that before me.  I can only use my intuition.

35. Turning to section 60CC of the Act, as I must, and working through those matters.

The benefit to the child of having a meaningful relationship with both of the child's parents 

1. I am satisfied that these children will benefit from having a meaningful relationship with both of their parents. 

2. On any view of the evidence, since April 2017 until December 2017, the children were spending almost equal and, indeed, at times equal time between the parents.  It is unfortunate that the parties are before me now and these children are potentially about to be embroiled in litigation. 

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. In relation to the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence, I cannot make any findings in relation to those matters at this stage. 

Any views expressed by the children

1. Obviously, there are no views expressed by the children. 

The nature of the relationship of the child with parents and significant others

1. I am satisfied that these children would have a strong bond with both of their parents.  I have no doubt about that when one considers the amount of time that the children have been spending with both of their parents.

2. I have some evidence from the maternal grandmother that she has looked after the children whilst the mother has worked and I am satisfied that there would be a relationship with the maternal grandmother. 

3. I am satisfied that there would be a relationship with the paternal grandmother. 

4. These are all relationships that are important to the children and they should be maintained and continue.

The extent to which each of the child's parents has taken, or failed to take, the opportunity to participate, spend time with and communicate with the child

1. There is some evidence that the father’s opportunity to make decisions and spend time with and communicate with the children has been impacted upon by his work throughout the relationship and post separation.

1. However I have no doubt that the father wants to be involved in and take every opportunity in making decisions for these children, spending time with the children and communicating with the children on an equal basis with the mother.

2. As does the mother, perhaps not on an equal basis with the father at this stage, but she certainly wants to be involved 100 % to the extent she can be. 

The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

1. The father provides evidence that he has maintained the children and there is no evidence to the contrary.  I am satisfied that that has occurred.

The likely effect of any changes in the child's circumstances

1. In terms of the likely effect of any changes in the children’s circumstances, there has been a change. 

2. The children have been withheld from seeing their mother for some little time now.  That should immediately stop. 

3. The nature of the father’s orders being sought would allow me to infer that he sees no practical difficulty or expense involved in spending time with the children.

4. Indeed, the mother’s proposals as put to the father as early as January this year would also indicate that there is no practical difficulty or expense that would interfere with the children’s ability to spend time with both parents.

The capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs

1. Unilateral decisions made by both parents in this matter have the potential to embroil the children in conflict.  When parents make unilateral decisions they, to an extent, put the children’s needs second to their own. 

2. It is most unhelpful for developing brains to be withheld from their usual routine and both parents have done that on occasion.  That should stop. 

60CC(3)(h)

1. I am not told that the child is of Aboriginal or Torres Strait Island descent.

2. There is nothing about the maturity, sex, lifestyle and background but for the allegations of drug use that is relevant to this matter.

The attitude to the children and to the responsibilities of parenthood demonstrated by each of the child’s parents

1. Again, there is some evidence that the parents, although they may be thinking that they are doing what is right for their children, are not fully focusing in on their children’s needs. 

2. The children’s needs at this young age are to have a fulfilling, loving, secure relationship with both parents. 

3. That needs to occur to the extent possible in circumstances where the parents have an extremely poor co-parenting relationship.  They will need to work on that.  I will make orders about that. 

Any family violence involving the child or a member of the child's family

1. I have spoken about the allegations of family violence.  As I said, there is no family violence order in place at this time.

2. I am not bound by either party’s proposal, U & U[5] tells me that. 

   [5] (2002) FLC 93-112

3. I am assisted by the evidence contained within both parties’ material but, in particular, the evidence contained at annexure “F” of the father’s Affidavit. Notwithstanding the serious allegations that are being raised, there is a suggestion, maybe even as high as a proposal, being put in that correspondence that the children should spend time with the father, albeit supervised in week 1 from Thursday through to Sunday;  and in week 2, from Thursday through to Friday. 

4. That tells me that the mother was primarily concerned, as was submitted by her lawyer, with the issue of the children not being returned to her rather than any issues relating to the care provided in the father’s home. 

5. It is not in contest that the father lives with the paternal grandmother.  There are no allegations being raised that the children have been harmed in the father’s care. 

6. The allegations of family violence, even if ultimately proved, relate to, in my assessment, situational couple violence rather than the most serious type of family violence, that being the coercive and controlling type of family violence. 

7. As I said, they are my preliminary views, not findings, but it would seem that the mother’s concerns about family violence have been secondary to the need to ensure that the children are returned in a timely fashion.

8. I am not satisfied that there is any need for supervision either in the mother’s home or in the father’s home. 

9. The allegations made by each against the other are serious allegations.  Ultimately, they will either be proved or not, but at this stage, I cannot make findings sufficient for a finding for supervision. 

10. The mother seeks a sole parental responsibility order; the father seeks an equal shared parental responsibility order.

11. Section 61DA(3) of the Act states:

    ‘When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.’

12. The presumption referred to, of course, is the presumption contained in section 61DA(1) of the Act, that is, that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

13. As I said earlier during submissions, there is certainly enough evidence before me to satisfy me that this is a very acrimonious relationship with an extremely poor co-parenting relationship currently between the parents. 

14. In those circumstances, I am certainly satisfied that there are circumstances such that the presumption should not apply. 

15. Would I then make an order for sole parental responsibility or would I simply allow the parties to continue what is at law their obligations to share that parental responsibility?

16. I am inclined to make no order in relation to parental responsibility.  In my view, parental responsibility goes to one of the primary considerations and that is the benefit of a child having a meaningful relationship with both parents. 

17. It seems to me that it would be very difficult for either parent to have a meaningful relationship with either of these children if they were not involved in decision-making, ultimately. 

18. The decision for sole parental responsibility in those circumstances, in my view, is a very serious decision and one that can only be made after all of the evidence is heard, weighed and tested. 

19. For those reasons, I will make no order in relation to parental responsibility.

20. For these reasons I make the following orders.

I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Date: 6 April 2018