Augusto & Jarl (No 2)

[2024] FedCFamC1F 259

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Augusto & Jarl (No 2) [2024] FedCFamC1F 259

File number:

MLC 14045 of 2020

Judgment of:

AUSTIN J

Date of judgment:

18 April 2024

Catchwords:

FAMILY LAW – PARENTING – Practice and procedure – Review of decision – Where the mother seeks the review of a decision of a senior judicial registrar (“the registrar”) which introduced overnight time between the child and the father – Where the father was previously spending unsupervised time with the child on one day per week – Where the dispute is confined to a single overnight stay each fortnight – Where the orders of the registrar are supported by the father and the Independent Children’s Lawyer (“the ICL”) – Where on the available evidence there is no need to protect the child from either subjection or exposure to physical or psychological harm caused by the father – Where courts cannot impulsively react to litigants’ subjective fears –  Review application dismissed – Costs ordered in a fixed sum in favour of the father and the ICL.

Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61C, 61DA, 64B, 65D, 65AA, 65DAA, 65DAC, 69ZX, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17

Cases cited:

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

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

Division:

Division 1 First Instance

Number of paragraphs:

49

Date of hearing:

18 April 2024

Place:

Newcastle (via Microsoft Teams)

Solicitor for the Applicant:

Robertson Legal & Conveyancing

Counsel for the Respondent:

Ms Juneja

Solicitor for the Respondent:

Nevett Ford

Counsel for the Independent Children's Lawyer:

Mr Allen

Solicitor for the Independent Children's Lawyer:

Victoria Legal Aid

ORDERS

MLC 14045 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR AUGUSTO

Applicant

AND:

MS JARL

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	18 APRIL 2024

THE COURT ORDERS THAT:

1.The Application for Review filed on 1 March 2024 is dismissed.

2.Order 2 made on 12 March 2024 is discharged.

3.The respondent mother shall pay the applicant father’s party/party costs of and incidental to the review hearing fixed in the sum of $1,500.00.

4.The respondent mother shall pay the Independent Children’s Lawyer’s party/party costs of and incidental to the review hearing fixed in the sum of $1,707.00.

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).

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 by this Court under the pseudonym Augusto & Jarl has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. These reasons explain the dismissal of an application by the mother to review interim parenting orders made by the senior judicial registrar (“the registrar”) on 29 February 2024.

   Background

2. The parties are engaged in a dispute over their child, now nearly five years of age, under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).

3. The proceedings were commenced by the father in December 2020, with numerous sets of interim orders made since then.

4. In March 2021, with the parties’ consent, orders were made for the child to live with the mother and to spend time with the father. The time the child was to spend with the father under the orders was short but frequent, because he was then less than two years old. Those orders were effectively confirmed by more orders made in August 2021.

5. In May 2022, orders were made to expand the time the child spends with the father.

6. The proceedings were tried over several days in February 2023, following which judgment was reserved, but never delivered, because in or about March 2023 (when the child was still three years old) the mother alleged he made disclosures which suggested his sexual abuse by the father. As a consequence, the mother resisted compliance with the existing interim orders, which caused the father to file an interim application seeking orders compelling her compliance with the existing orders.

7. After hearing the parties’ fresh competing interim applications, in May 2023, more interim orders were made requiring the child to spend time with the father on Saturdays for seven hours, for which purpose only the changeovers were required to be supervised by a nominated professional supervisor. Those orders were effectively confirmed by more interim orders made in July 2023.

8. The proceedings were transferred to the Federal Circuit and Family Court of Australia (Division 1) and have since been listed for another trial commencing on 1 July 2024.

9. In November 2023, the father filed an application seeking to expand the time the child spends with him on an interim basis, which application the mother opposed. In December 2023, as an interim measure, the registrar left arrangements as they were on Saturdays, but dispensed with the need for supervised changeovers, and listed the dispute for further hearing in February 2024.

10. Following the hearing, the registrar made orders on 29 February 2024. Relevantly, Order 3 made provision for the child to spend increasing time with the father, being:

    (a)each alternate weekend, initially from 9.00 am on Saturday until 11.00 am on Sunday on two occasions, but thereafter until 5.30 pm on Sunday (Order 3(a)); and

    (b)each alternate Tuesday for a couple of hours after kindergarten (Order 3(b)).

11. On 1 March 2024, the mother filed an Application for Review, seeking the review of Order 3.

12. Then, on 12 March 2024, the registrar stayed the operation of Order 3(a), but not 3(b), pending the determination of the mother’s review application.

    Proposals

13. The mother sought that the orders preceding those made by the registrar on 29 February 2024 remain operable. That was the effect of both her Response to an Application in a Proceeding filed on 23 February 2024 and her Application for Review filed on 1 March 2024. It follows that the mother’s proposal is for the child to spend time with the father as required by the orders last made on 5 December 2023 – each Saturday from 9.00 am until 4.00 pm. The preceding orders made in May 2023 and July 2023 imposed the same arrangements, save that the times were instead 9.30 am to 4.30 pm.

14. The father was content to abide by the orders made by the registrar rather than pursue the orders he formerly sought in his Application in a Proceeding filed on 3 November 2023.

15. The Independent Children’s Lawyer (“the ICL”) also supported the retention of the orders made by the registrar.

16. So analysed, the relative futility of the review application is exposed.

17. First, the dispute is essentially limited to whether the child spends unsupervised time with the father on one day each week or on two consecutive days each fortnight, the distinction being without any real difference. The dispute is confined the single overnight stay each fortnight.

18. Secondly, whatever orders are now made will only govern the family’s affairs for the next two months before the trial begins on 1 July 2024.

    Evidence

19. The mother relied upon her affidavit filed on 16 April 2024.

20. The father relied upon his two affidavits filed on 31 October 2023 and 17 April 2024.

21. The ICL relied upon:

    (a)the two Family Reports dated 30 July 2021 and 4 October 2022; and

    (b)paragraph 106 of the judgment delivered by Judge Boymal on 25 May 2023 (Exhibit ICL 1).

    Legal principles

22. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D(1)), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

23. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

24. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). The presumption does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), may be disregarded in interim hearings (s 61DA(3)), and may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent or other adult, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

25. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

26. This is a review hearing, which entails the de novo hearing of the interim dispute. The principles to which I have just adverted apply equally to interim parenting orders.

27. Being an interim hearing in respect of parenting orders, the procedure is that established by the Full Court in Goode & Goode (2006) FLC 93-286, where it was said (at [68]):

    …the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future. 

28. In Banks v Banks (2015) FLC 93-637 at [47]–[50], the Full Court noted how a paucity of uncontested evidence means only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim proceedings should be confined to only those issues which, in the best interests of the child, require determination prior to a proper determination at trial. The trial is the time and place to settle factual controversies. Interim hearings ought not be used for that purpose unless circumstances are urgent and there is no alternative.

    Child’s best interests – primary considerations (s 60CC(2))

29. The father does not seek to disturb the child’s residence with the mother, implying he accepts the child derives benefit from his meaningful relationship with her.

30. By her present stance, the mother wants the child to continue spending regular unsupervised time with the father, implying she accepts the child derives benefit from his meaningful relationship with him.

31. Regardless of the fears supposedly entertained by the mother, either formerly or currently, about the prospect of the child’s abuse or neglect by the father, her express proposal is for the child to spend unsupervised time with the father for not less than seven contiguous hours every Saturday pursuant to interim orders made successively in May 2023, July 2023 and December 2023. It beggars belief that she would advocate for that outcome if she genuinely believes the child is at some form of risk of harm in the father’s care. Whatever harm could befall the child during the expanded visits ordered by the registrar could just as easily befall the child during the time he already spends with the father every Saturday, with which arrangements the mother is content. It consequently follows that no evidence adduced for the intended purpose of engaging s 60CC(2)(b) of the Act could rationally have that effect.

32. Judge Boymal found on the available evidence in May 2023 that the child was not at any unacceptable risk of harm when in the father’s care, which finding the mother did not dispute could be taken into account (s 69ZX(3)(b)). The mother has not adduced any evidence in this hearing which would justify revision of that provisional finding.

33. The second court child expert reported in October 2022 that she regarded the father to possess “exceptional parenting skills”, including an ability to “multi-task, manage time, ensure [the child’s] safety, and attend to [the child’s] needs” (at [53]).

34. The mother’s counsel emphasised the mother’s “worry” and “concern” about the child spending overnight time with the father, but the articulation of her worries and concerns is quite unhelpful because they may not be objectively justified. Attention must instead focus upon the findings which may be objectively made and inferred from the available evidence. Courts cannot impulsively react to litigants’ subjective fears. The Court can only be motivated to make orders which are premised upon fact-based findings, even though factual findings in interlocutory hearings on untested evidence can only ever be circumspect.

35. On the available evidence, there is no need to protect the child from either subjection or exposure to physical or psychological harm caused by the father.

    Child’s best interests – additional considerations (s 60CC(3))

36. Neither the parties nor the ICL addressed any factor under s 60CC(3) of the Act as being relevant to the outcome of the interim dispute.

    Disposition

37. The parties are both endowed by law with parental responsibility for the child (s 61C(1) and s 61C(2)). That situation has not yet been varied by any interim parenting order made between the parties (s 61C(3) and s 61D).

38. Whenever a parenting order is made, subject to exceptions (ss 61DA(2), 61DA(3) and 61DA(4)) the Court must apply the presumption that the child’s best interests require an order allocating the parents with equal shared parental responsibility (s 61DA(1)).

39. Neither the parties nor the ICL addressed this statutory requirement. On the available evidence, I am not prepared to find the exceptions in either s 61DA(2) or s 61DA(4) of the Act are made out.

40. Section 61DA(3) of the Act is applied as, in the face of this seemingly puerile narrow dispute over the duration of the child’s interim visits with the father, I am not satisfied it would be appropriate to apply the presumption of equal shared parental responsibility, as that would require them to comply with s 65DAC of the Act – something they are seemingly unable to do. Both parties will retain parental responsibility for the child, as conferred by law.

41. Since no order is made conferring the parents with equal shared parental responsibility for the child, there is no need to consider the provisions of s 65DAA of the Act.

42. The child will remain resident with the mother.

43. Given it is desirous for the child to derive benefit from his meaningful relationship with both parents and there is no need for orders to ensure the child’s safety while in the father’s care, it is appropriate for the child to spend regular and more expansive time with him. The regime now posited by the father and the ICL, replicating the order made by the registrar and embracing the affirmative opinions expressed by two court child experts about the expansion of the child’s time with the father to include overnight stays, recommends itself.

44. I would make orders in similar, if not identical, terms to those ordered by the registrar, in which event there is no need to disturb the existing orders. It is only necessary to dismiss the review application.

45. The ICL asked that an inadvertently incorrect order made by the registrar on 12 March 2024 be discharged, which application is granted because neither party opposed it.

    Costs

46. Following upon the dismissal of the review application, both the father and the ICL sought orders against the mother for the payment of their costs associated with the hearing. 

47. The father sought his costs in the sum of $3,300.00 on the basis that the review application was wholly unsuccessful (s 117(2A)(e)). The costs application was resisted by the mother on the basis of her deteriorated financial circumstances, it being contended she is not employed, she receives Centrelink benefits, and has “no assets”. However, her counsel was impelled to concede she was not briefed pro bono and her brief fee on the hearing was $2,200.00, which fee is admittedly being paid by the mother by resort to her own resources and the assistance of her parents. In any event, impecuniosity is not a shield against ill-advised litigation.  The review application was ill-conceived and ought not have been brought, which consideration outweighs the mother’s contended penury. 

48. Although the father sought costs of $3,300.00, I am only prepared to fix his costs at half that sum so as to be more commensurate with the brief fee charged by Counsel for the ICL. By doing so, I rely upon r 12.17 (1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

49. The ICL sought fixed fees of $1,707.00, again on the basis the review application was wholly unsuccessful. The assistance provided by the ICL in the hearing was particularly helpful. I am not satisfied on the strength of the submissions made by the mother’s counsel that the provisions of s 117(4)(b) of the Act are engaged in her favour and accordingly I order the mother to pay the ICL’s costs in the sum sought.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       22 April 2024