Arena & Arena (No 6)

Case [2024] FedCFamC1F 364

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Arena & Arena (No 6) [2024] FedCFamC1F 364

File number(s): WOC 1226 of 2019
Judgment of: CURRAN J
Date of judgment: 28 May 2024
Catchwords:

FAMILY LAW – PARENTING – Final hearing – Where orders were made by consent for the mother to have sole parental responsibility – Where the mother alleges the father poses a risk of harm to the children if they spend overnight time – Where the mother alleges coercive and controlling behaviour by the father – Where one of the children is neurodiverse – Where the children are involved in the parental conflict – Where the parents have a high conflict relationship – Where the children spend unsupervised time with the father – Whether the children should spend overnight time with the father – Where orders made for the children to live with the mother – Where orders made for the children to spend overnight time with the father – Where orders made for the children to spend special occasions and school holiday time with the father – Where the mother is permitted to take the children overseas for holidays

FAMILY LAW – EVIDENCE – s 138 of the Evidence Act – Unauthorised recordings of private conversations – Alleged contravention of Surveillance Devices Act – Consideration of the meaning of “lawful interests” – Where the mother was found to be protecting lawful interests – Where recordings admitted into evidence

Legislation:

Australian Passports Act 2005 (Cth) s 11

Evidence Act 1995 (Cth) Ch 3, s 138

Family Law Act 1975 (Cth) ss 60CA, 60CC, 65Y, 69ZT, 102NA

Surveillance Devices Act 2007 (NSW) s 7

Cases cited:

Amador & Amador (2009) 43 Fam LR 268

Arena & Arena (No 2) [2023] FedCFamC1F 1011

Arena & Arena (No 3) [2023] FedCFamC1F 1129

Arena & Arena (No 4) [2024] FedCFamC1F 22

Bondelmonte v Bondelmonte (2017) 259 CLR 662

Briginshaw v Briginshaw (1938) 60 CLR 336

Fitzwater v Fitzwater (2019) 60 Fam LR 212

Isles & Nelissen (2022) FLC 94-092

McCall & Clark [2009] 41 Fam LR 483

Mazorski & Allbright (2007) 37 Fam LR 518

Marsden & Winch (No 3) [2007] FamCA 1364

Sigley & Evor (2011) 44 Fam LR 439

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 1 First Instance
Number of paragraphs: 399
Date of last submission/s: 21 May 2024
Date of hearing: 28 – 31 August 2023 & 21 November 2023
Place: Sydney
Counsel for the Applicant: Mr Lawrence
Solicitor for the Applicant: Maguire & Mcinerney Lawyers
Counsel for the Respondent: Mr McGirr
Counsel for the Respondent: Mr Cataldi (on the second occasion)
Solicitor for the Respondent: Houston Dearn O’Connor
Solicitor for the Respondent: John Stonham & Co (on the second occasion)
Solicitor Advocate for the Independent Children's Lawyer: Ms Dodson
Solicitor for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

WOC 1226 of 2019

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

MS ARENA

Applicant
AND:

MS ARENA

Respondent

INDEPENDENT CHILDREN'S…

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Arena & Arena (No 6) [2024] FedCFamC1F 364
Case
[2024] FedCFamC1F 364
Decision Date

CaseChat Overview and Summary

In the case of Arena & Arena (No 6), the Family Court of Australia was tasked with determining the appropriate parenting arrangements for the children of the separated parties, focusing particularly on the time the children should spend with the father. The mother sought to restrict the children's overnight time with the father, alleging that he posed a risk of harm and exhibited coercive and controlling behaviour. In contrast, the father sought a more equal distribution of overnight time with the children. The children, a 14-year-old with Autism Spectrum Disorder and a 13-year-old, have been living with the mother since the separation in August 2019, and have not spent any overnight time with the father. The court needed to decide whether the children should spend overnight time with the father and, if so, under what conditions.

The court considered the evidence, including audio recordings made by the mother of private conversations between the parents, which were initially challenged by the father on the basis of alleged contraventions of the Surveillance Devices Act. The court found that the mother's recordings were admissible as she was acting to protect her lawful interests. The evidence revealed a pattern of high-conflict interactions between the parents, often in the presence of the children, which had a significant impact on the children's wellbeing. The court also heard from a Court Child Expert and considered the recommendations of a psychologist following intensive family therapy sessions.

After carefully considering all the evidence and submissions, the court concluded that the orders were in the best interests of the children. The court made orders for the children to live with the mother but to spend specific periods of time with the father, including weekly unsupervised time on Thursdays and alternate Sundays, as well as special occasions and school holiday time. The court also ordered that the mother be permitted to take the children overseas for holidays, provided she gave the father adequate notice. The court emphasized the importance of minimising the children's exposure to the parents' conflict and ensuring their safety and wellbeing. The final orders aimed to balance the children's need for stability and continuity with the father's right to spend meaningful time with them.

Orders

Orders of the court

WOC 1226 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ARENA

Applicant

AND:

MS ARENA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

28 MAY 2024

THE COURT ORDERS THAT:

1. The children shall live with the mother.

2. The children shall spend time with the father as follows, commencing from the week of 10 June 2024:

(a) Each Thursday from the conclusion of school to the commencement of school on the Friday and from 9.00 am on Thursday to 9.00 am on Friday on a non‑school day;

(b) Each alternate Sunday from 9.00 am to the commencement of school on the Monday, or to 9.00 am on a Monday on a non-school day; and

(c) At other times as agreed between the parents in writing.

3. If the father is unable to spend time with the children in accordance with these orders, then the father must provide the mother with 72 hours written notice.

4. If the father is unable to spend school holiday time with the children in accordance with these orders, the father must provide the mother with 14 days’ written notice.

5. The children are to spend time with the father, and the children’s time with the mother be suspended on the following occasions:

(a) In odd numbered years from 3.00 pm Christmas Eve until 3.00 pm Christmas Day;

(b) In even numbered years from 3.00 pm Christmas Day until 3.00 pm Boxing Day;

(c) In odd numbered years from 3.00 pm Easter Sunday until 3.00 pm Easter Monday;

(d) In even numbered years from 3.00 pm Easter Saturday until 3.00 pm Easter Sunday;

(e) In the event that the father’s birthday falls on a day that the children are living with or spending time with the mother, then the children are to spend time with the father from 9.00 am until 4.00 pm if a non-school day, or from the conclusion of school until 8.30 pm if a school day;

(f) In the event that Father’s Day falls during a time when the children are living with or spending time with the mother, then the children are to spend time with the father from 5.00 pm the Saturday prior to Father’s Day until 7.30 pm on Father’s Day each year;

(g) During each of the school holiday periods, each Tuesday from 9.00am to 9.00am Wednesday, with such time to be under the following conditions:

(i) The additional time is not to coincide with the children’s school holiday time with the mother; and

(ii) The additional time is not to coincide with the mother’s birthday or Christmas Day.

6. The children are to spend time with the mother and the children’s time with the father be suspended on the following occasions:

(a) In even numbered years from 3.00 pm Christmas Eve until 3.00 pm Christmas Day;

(b) In odd numbered years from 3.00 pm Christmas Day until 3.00 pm Boxing Day;

(c) In even numbered years from 3.00 pm Easter Sunday until 3.00 pm Easter Monday;

(d) In odd numbered years from 3.00 pm Easter Saturday until 3.00 pm Easter Sunday;

(e) In the event that the mother’s birthday falls on a day that the children are living with or spending time with the father, then the children are to spend time with the mother from 9.00 am until 4.00 pm if a non-school day, or from the conclusion of school until 8.30 pm if a school day;

(f) In the event that Mother’s Day falls during a time when the children are spending time with the father, then the children are to spend time with the mother from 5.00 pm the Saturday prior to Mother’s Day until 7.30 pm on Mother’s Day each year;

(g) For one block period in each calendar year, from the conclusion of school on the last day of term until the middle Saturday of the school holidays to take place in either the Term 1, Term 2 or Term 3 school holiday period as nominated by the mother and subject to the following conditions:

(i) The mother is to provide the father with no less than 35 day’s written notice of the short school holiday period nominated in each calendar year; and

(ii) In the event that Easter falls in the Term 1 short school holiday period and the said short school holiday period is nominated by the mother, then the time pursuant to Order 5(c)-(d) is to proceed notwithstanding Order 6(g)(i).

(h) During the Christmas school holidays for one block period of up to 21 consecutive days subject to the following conditions:

(i) The mother is to provide the father with no less than 35 days’ written notice of the proposed dates in writing; and

(ii) The proposed dates must exclude Christmas Day.

7. In the event that the children’s time with the father does not occur as a consequence of the mother’s election to spend block time during the school holidays, then the father is at liberty to propose make up time with the children on one occasion to be nominated by the father, with such time to be under the following conditions:

(i) The make-up time is to occur in the same school holiday period;

(ii) The make up time is to not coincide with the mother’s school holiday time pursuant to these orders;

(iii) The make up time is not to occur on Easter Sunday, Christmas Day or the mother’s birthday;

(iv) The make up time is to occur from 9.00am on the nominated day to 9.00am the following day;

(v) The nominated day shall not be the day immediately prior to or immediately after a day that the children would otherwise be in the father’s care; and

(vi) The father is to provide no less than 14 days written notice to the mother of the day nominated for the make up time.

8. Pursuant to s 65Y of the Family Law Act 1975 (Cth), the mother be permitted to remove the children from the Commonwealth of Australia for the purposes of international travel, provided that the mother provides the father with at least eight weeks’ written notice of her intention to travel with the children, including providing the father with travel dates, destination, means of travel, and contact arrangements for communication between the father and the children whilst they are overseas.

9. Pursuant to s 11 of the Australian Passports Act 2005 (Cth), upon the mother’s application to apply for or, renew a passport for the children X born 2009 and Y born 2010, such passport be issued to the mother without the need for the Father’s signature or consent and will thereafter remain in the Mother’s possession.

10. Should the mother travel interstate with the children, she will notify the father one week prior to the travel of the destination and the dates they will be away.

11. The children have telephone, Skype or similar electronic contact with the parent that they are not with at the relevant time, as follows:

(a) At any other reasonable time as requested by the children; and

(b) For X, each Tuesday between 6.30pm and 7.30pm.

12. To facilitate the communication referred to at Order 11 herein, the other parent shall assist X to place the call and provide the children with privacy during such conversations.

13. In the event of the child suffering a medical emergency requiring medical attention whilst in the care of either parent:

(a) The other parent is to be notified as soon as practicable;

(b) The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable; and

(c) The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and information retained by them upon request.

14. The mother is to do all acts and things necessary to irrevocably authorise any doctor and specialist upon whom the children, or either of them, attend to forward to the father, at his expense, copies of any medical reports.

15. The mother is to do all acts and things necessary to irrevocably authorise any school attended by the children, or either of them, to forward directly to the Father copies of all of each child’s school reports, individual education plans and any written material pertaining to each child’s academic and extra-curricular activities.

16. Within 7 days of the date of these orders the parties will exchange their current mobile phone number and email address and each party keep shall the other informed of their current mobile phone number and email address within 24 hours of any changes occurring.

17. Order 2 of the orders dated 31 August 2024 be discharged.

18. The parents are to do all things necessary to changeover the children as follows:

(a) All changeovers that occur at the conclusion or commencement of a school day are to take place at the children’s school;

(b) For all other changeovers, the parents or their nominated person shall changeover the children at the BP Service Station, G Centre, Suburb H; and

(c) Each parent is to remain in their motor vehicle except in the case of an emergency.

19. The father complete the courses “[J Program]”, or similar, and “Parenting after Separation”, or similar.

20. The father is to undertake a period of counselling on a monthly basis or as otherwise recommended by his treating psychologist for a period of not less than 12 months.

21. A copy of these orders and reasons for judgment be provided to the father’s treating psychologist.

22. The mother be permitted to provide a copy of the orders and these reasons to any of the children’s treating psychologists or counsellors.

23. It is requested that the Court Child Expert Ms C meet with the children to explain the effect of the orders, and the Independent Children’s Lawyers is to liaise with Ms C for such purpose.

24. After compliance with Order 23 above, the Independent Children’s Lawyer will be discharged.

THE COURT NOTES THAT:

A. The existing orders for the children to spend time with the father will continue until the commencement of the final spend time with orders on 10 June 2024.

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

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

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

Background

Background to the litigation

The key issue in dispute in this matter is in respect of the time the children should spend with the father. The mother seeks orders for the children to spend no overnight time with the father but to spend each Thursday from after school until 8.00 pm and alternate Sundays from 9.00am until 4.00 pm with the father. The father seeks orders that the children spend overnight time with him, graduating until they reach an equal time arrangement.BACKGROUND The parties commenced cohabitation in 1997. The parties married in 2004. The parties’ first child, X, was born in 2009 and was 14 years old at the time of the final hearing, and is now 15 years old. The parties’ second child, Y, was born in 2010 and was 13 years old at the time of the final hearing. The parties separated on a final basis on 9 August 2019, when the mother moved out of the former matrimonial home with the children. X has special needs, being diagnosed with Autism Spectrum Disorder (“ASD”), moderate intellectual disability, attention-deficit/hyperactivity disorder (“ADHD”), anxiety, and speech delay. Ms C (“the Court Child Expert”) described Y as an intelligent, compliant, and sensitive child, under immense pressure. Each of his parents describe him as a smart, sensitive, and responsible boy who cares deeply for those he loves. Y is described as mature for his age. Since separation in August 2019, the children have lived with the mother and have not spent any overnight time with the father. The mother said she initially facilitated time after separation between the father and the children for short periods on a Friday after school until 6.30 pm, and for several hours on each Sunday. The mother arranged for Y to attend upon Counsellor Mr K at L Psychology at Suburb M in late September 2019. After his first session, Mr K recommended that the children should only spend supervised time with the father. The children ceased spending time with the father on 5 October 2019, following allegations of risk to the children in the father’s care, including Y’s alleged disclosure to the mother that the father had hit him in the stomach. The mother asserts that she ceased the children’s time with the father because she was concerned that the father was unable to control his anger and she had concerns for the children’s safety and welfare. On 28 October 2019, proceedings were commenced by the mother by way of filing an Initiating Application in what was then Federal Circuit Court. The matter was transferred to the Family Court of Australia on 20 November 2020 by his Honour Judge Altobelli, as he then was. On 4 December 2019, interim consent orders were made by Judge Altobelli. Those orders engaged Dr E to undertake a private Child Inclusive Conference, and arranged for the children, on a without prejudice basis, to spend time with the father supervised by N Contact Service each Saturday from 1.00 pm to 5.00 pm, and at other times as agreed by the parties in writing. In December 2019, the children commenced supervised time with the father, facilitated by N Contact Service. In accordance with Dr E’s recommendations, the parties and the children attended Reportable Intensive Family Therapy (“RIFT”) with Dr F in mid-September 2020. After four days of RIFT, it was agreed for the father to spend time with the children for four hours unsupervised on Sundays from 10.00 am to 2.00 pm.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Orders were made by consent on 31 August 2023 in relation to changeovers. Order 2.1 should be varied to include the commencement of school in circumstances where I have ordered overnight time.CONCLUSION Having carefully considered all the evidence before the Court and the submissions as made, I am satisfied that the orders are in the best interests of the children.THE ADMISSIBILITY OF THE RECORDINGS MADE BY THE MOTHER I determined that the recordings made by the mother were admissible and allowed them and the transcripts into evidence. There was no dispute that the events were recorded had occurred. My reasons follow. Section 69ZT of the Act excludes certain parts of Chapter 3 of the Evidence Act 1995 (Cth) (“the Evidence Act”) in child related proceedings, however, s 69ZT(3) empowers me to apply an excluded provision to an issue in parenting proceedings if satisfied that the circumstances are exceptional, and having taken into account those factors set out. I am so satisfied, and I address each consideration in turn below. The question of admissibility of the recording made by the mother is determined by the relevant provisions in and in particular s 138 of the Evidence Act. Section 138 of the Evidence Act provides:Evidence that was obtained: improperly or in contravention of an Australian law; or in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. The Surveillance Devices Act 2007 (NSW) (“the Surveillance Devices Act”) governs the use of devices to record private conversations. Section 7(1) of the Surveillance Devices Act states: (1) A person must not knowingly install, use or cause to be used or maintain a listening device:(a)to overhear, record, monitor or listen to a private conversation to which the person is not a party, or (b)to record a private conversation to which the person is a party. Pursuant to s 7(3) of the Surveillance Devices Act, s 7(1)(b) does not apply to the use of a listening device by a party to a private conversation if:(a)all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or(b)a principal party to the conversation consents to the listening device being so used and the recording of the conversation: (i)is reasonably necessary for the protection of the lawful interests of that principal party, or (ii)is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation. It is the father’s case that the recorded conversations were evidence obtained in contravention of the Surveillance Devices Act. It is submitted on his behalf that the father did not know and did not consent to the mother using her mobile phone to record his private conversation and that the mother did not record the conversation for the purpose of protecting her lawful interests.

Ratio Decidendi

Legal Principle Established

However, the mother did not contend the risk of harm of his alleged behaviour was unacceptable, such that the children should not spend time with the father, but rather that the time should be limited to alternate Sundays from 9.00 am until 4.00 pm, and weekly time Thursday after school until 8.00 pm. Prior to separation – alleged incidents Prior to separation the mother detailed a number of incidents that she alleged were instances family violence, including that the father called X a “mongrel” and threatened him on 25 January 2018; the father hit the mother’s face with the back of his hand causing injury to her face; that the father hit X; that the father hit Y on the head on 29 April 2019; that the father threatened to burn the house down on 9 March 2019; and that he made threats, used demeaning language, and yelled during numerous periods prior to separation.Incidents captured in the audio recordings Audio recordings of a number of incidents from 2018 and 2019, being prior to the parties’ separation, were admitted into evidence. The father accepted the events had occurred and agreed that the transcripts of the events were accurate. The audio recordings illustrate that both parents in their communication with each other during these events, failed to shield the children from their open hostility, high emotion, and arguments. In each of the arguments that were recorded it is apparent that X was distressed and likely having a “meltdown” and that Y was also present. The audio recordings revealed that the mother said a number of critical things to and about the father, to and in the presence of the children, including:(a)On 25 January 2018:(i)“You really have some issues, I really want you to see someone, cause you’re destroying the family with your aggression.”(ii)“You need help, you seriously do, you are nasty and cruel, just go.”(iii)“You are so mean, that is disgraceful, disgraceful what you call your kid and in front of your other child. You have some, you need help. Any son, any Father that calls their kid that needs help. You need help.”(iv)“no, you don’t call your kids names mate, but we put up with you”.(v)“Just get out of our lives, seriously get out of our lives. Go, I don’t want my kids exposed to this anymore, just go, nasty and cruel.” (vi)“Go away, walk away from us, walk away from him, go outside and go somewhere. Walk away. Just let him have his breakfast. Just go away. Poor [Y], your aggression, you think that is right for him. Just go, go. I’ve had enough… I don’t want to be with a man like you anymore. Go away.”(vii)“Don’t yell like that alright, don’t yell like daddy does, okay, it’s not good, it’s not good”(b)On 3 December 2018: (i)“I know he scares everyone mate, I can’t let you kids live like this anymore, it’s just not fair”;(ii)“I don’t know how many times I have to tell your dad to stop, he can’t help himself”.(c)On 26 December 2018: (i)“He’s scared of you mate, cause you’re just an angry aggressive man.”(ii)“These kids don’t deserve to grow up like this, they don’t deserve, I’m doing a huge injustice, massive by staying here”.(d)On 5 January 2019:(i)“get out please, leave my kids alone and don’t come back”;(ii)“I just want dad to leave mate, okay I’m tired of him swearing”;(iii)“just whack him over the head mate”;(iv)“all calm until the volcano comes home and creates chaos”.(e)On 15 February 2019: “he’s just like that mate”; and(f)On 17 March 2019: “he is always yelling mate, he is always yelling [X]”.