BAGEN & BAGEN
[2020] FCCA 667
•25 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAGEN & BAGEN | [2020] FCCA 667 |
| Catchwords: FAMILY LAW – Interim Parenting – best interests of child – orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D |
| Cases cited: Goode & Goode (2006) FLC93-286 Marvel & Marvel [2010] FamCA 240 |
| Applicant: | MR BAGEN |
| Respondent: | MS BAGEN |
| File Number: | PAC 2733 of 2019 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 8 November 2019 |
| Date of Last Submission: | 10 March 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 25 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Mahony |
| Solicitors for the Applicant: | Ms Belovic |
| Counsel for the Respondent: | Mr Todd |
| Solicitors for the Respondent: | Mr Neagle |
| Solicitors for the Independent Children's Lawyer: | Ms Escobar |
ORDERS PENDING FURTHER ORDER
That the child X (D.O.B. 2017) lives with the Respondent Mother.
The father’s interim application to spend supervised time with the child, as set out in his document titled “Amended Minutes of Orders” (forwarded to the Court by the father’s solicitors on 25 February 2020) is dismissed.
These parenting proceedings are forthwith transferred to the Family Court of Australia, Parramatta Registry.
IT IS NOTED that publication of this judgment under the pseudonym Bagen & Bagen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2733 of 2019
| MR BAGEN |
Applicant
And
| MS BAGEN |
Respondent
REASONS FOR JUDGMENT
This interim hearing relates to the child X born in 2017.
The father, at the interim hearing on 8 November 2019, had sought to spend supervised time with the child, initially at the A Private Contact Centre Service at B Street, Suburb C. The full extent of his proposed interim parenting orders were set out in his case outline prepared by his Counsel.
The mother opposed the child spending any time with the father at this interim stage, “Pending further order; pending the criminal investigation of the incidents which occurred in 2019; pending the outcome of the ADVO proceedings in respect of which a final hearing is listed on 14 November 2019 and the two counts of contravention of the ADVO of which a final hearing is listed on 18 December 2019; and pending the preparation and release of a family report in these proceedings”. Such position of the mother was supported by the ICL.
On 20 November 2019, after the Court had reserved its judgment, it caused to be sent the following email to the parties and ICL:
“The Court is considering the parties’ and ICL’s competing proposals from the interim hearing.
In relation to the father’s proposals, in relation to supervised time at A Contact Centre, the Court is considering an additional order, in relation to any intake assessment process of the parties at A Contact Centre, that the ICL be directed to provide to A Contact Centre a copy of the Affidavit of Assistant Police Commissioner Mr D sworn 8 November 2019, together with a copy of the Courts reasons for judgement, if the Court was to order that the child spend supervised time at A Contact Centre. The Court invites the parties and ICL’s brief written submissions…in relation to such possible additional order.”
Thereafter, the parties and ICL made brief written submissions. (The court should state, respectfully, in relation to the father’s written submissions, that it rejects any suggestion that the Court had, prior to or at the time of sending the above email to the parties and ICL, pre-determined that supervised time between the child and the father supervised at A Contact Centre was in the best interests of the child and should occur, and rejects any suggestion, “that the Court had undertaken the risk assessment task for which submissions were made at the interim hearing.” As stated at the outset, in the Court’s above email, was the Court’s clear statement that it was, “considering the parties’ and ICL’s competing proposals from the interim hearing.”)
At a mention of the matter on 11 December 2019, by consent, the following directions were made:
1. Leave is granted to the applicant father to file and serve evidence, on affidavit, in relation to the preparedness of A Contact Centre to afford to the parties supervised time between the child and the father, and as to how the child would be protected from harm if they were to afford such supervised time. Such evidence to be filed and served by 15 January 2020.
2. Leave is granted to the respondent mother and ICL to file and serve evidence, on affidavit, in relation to any evidence filed and served pursuant to the above order by 29 January 2020.
3. By consent Orders are made in accordance with the Consent Orders marked Exhibit A and attached hereto.
The orders in exhibit A provided:
“1.That subject to order 2, the father’s solicitor shall provide a copy of the affidavit of Mr D sworn on 8 November 2019 to A Contact Centre on 20 December 2019.
2. That within 48 hours the ICL shall provide a copy of these orders to the Crown Solicitors Office and communicate to them that if they object to order 1 they shall have liberty to relist the matter by emailing His Honour Judge Newbrun’s Associate… and that they do so no later than 4 PM, 18 December 2019.”
4. The proceedings were adjourned for mention to 11 February 2020.
At the mention on 11 February 2020, counsel for the father informed the court that A Contact Centre had declined to provide supervision; that the father did not seek to rely on any further evidence for the interim hearing; and that the court should proceed to deliver its judgment.
On 25 February 2020 the father’s solicitors sent to the Court by email the father’s amended proposed interim parenting orders titled “Amended Minutes of Orders”. In that document, the father proposed orders, inter alia, that the child live with the mother; and that the father’s time with the child be supervised by either E Contact Service; F Counselling Sydney City Centre; F Counselling Suburb G; F Counselling Suburb H; or such other service as agreed to by the parties, twice per week between 10 AM and 1 PM. The father proposed an order that the ICL be permitted to provide a copy of the affidavit of assistant police Commissioner Mr D (as to the relevant contents of this affidavit, see below) to the supervised contact service nominated by the father in order to assist the supervised contact service complete the intake procedure.
On 10 March 2020, at a mention of the proceedings, and following the parties’ submissions, including written submissions of the mother, the Court granted leave to the father to rely upon his proposed amended interim parenting orders sent to the court on 25 February 2020.
Materials relied upon
The father relied upon his Case Outline and the documents referred to in his case outline.
The mother relied upon the documents referred to in her Case Outline and her Case Outline.
The ICL relied upon her Case Outline.
There were certain exhibited documents in evidence:
Exhibit A: being certain NSW Police subpoenaed documents relating to the father, including an affidavit of Assistant Police Commissioner Mr D sworn on 8 November 2019 (paras 12-14);
Exhibit B: A Contact Centre document.
Agreed facts unless otherwise stated
In the early hours of 2019 bullets were fired into the home of the maternal grandparents’ residence at J Street, Suburb K, which the parties and the child were then resident and present. Bullets were also fired into a car parked outside the house. The NSW Police asserted in their “Grounds of the Application” for a Provisional AVO against the father, inter alia, that at least seven bullets were fired into the house and nine bullets into the car. Those Grounds asserted that the car belonged to the mother.
Thereafter, the above incident was investigated by the police and it continues to be investigated by them. Nobody has been charged by the police to date in relation to the incident. The father denies any involvement in relation to the shooting. He asserts that he is just as much a victim in respect of the incident as the mother and her family are.
The father asserts that in about January 2019 he was approached by his high school friend Mr L to come and join him at his shop and to help him run the business. He asserts that in about February 2019 he ceased working in the construction industry and began to assist Mr L in the running of his business.
An Affidavit of Assistant Commissioner of Police, Mr D sworn 8 November 2019, asserts, inter alia, that at 1:05 AM in 2019, unknown persons fired shots in the front ground floor bedroom window of a house at M Street, Suburb N, and a vehicle parked in front of the house. He asserts that the police have received information to indicate that the father may have been the target of the “public place shooting” due to his association with Mr L, “the Applicant’s business partner”. He asserts that the investigation into the public place shooting is ongoing, and that “Police are unable to estimate at this time when the investigation is likely to conclude.”
The father spent time with the child for one hour, in the presence of the mother, on about 24 May 2019. He also spent time with the child for about 45 minutes at a police station on 27 May 2019.
The mother alleges that in late May 2019, a detective from the NSW Police asked her to come to the Suburb O police station and give a statement of the events that occurred on the night of the shooting. She alleges that whilst she was there, the detective showed her a document containing documents regarding potential criminal behaviour by the father. She alleges that she saw some of the information regarding his alleged involvement in illegal drugs and firearm possession.
The father asserts that between 27 and 29 May 2019, a police detective told him that the police had “intel” that he was in possession of firearms and drugs, to which the father denied. The father asserts that on 30 May 2019 the police served him with a firearms prohibition order.
On 11 June 2019 a provisional ADVO was made against the father for the protection of the mother, the child, the maternal grandparents, and certain other named persons.
On 13 June 2019, on a without admission basis in the Local Court at Suburb P, an interim ADVO was made against the father for the protection of the mother and the child. A defended hearing was listed for 18 December 2019 at Suburb P Local Court.
The father was charged, on 10 July 2019, with breach of the ADVO in relation to the father’s request for mail redirection. On 9 August 2019 the father was again charged with breach of the ADVO in respect of a subpoena filed in the Local Court proceedings. The police will allege, in relation to these alleged breaches, that the father was seeking to locate the whereabouts of the mother and child. The father denies these allegations.
The mother makes allegations in relation to the father’s alleged criminal connections which are significantly denied by the father. The father admits to a conviction for affray in about 2010, and alleges that the mother knew about one of his friends’ involvement with the justice system.
On 31 October 2019, the father attended Suburb P Local Court to have the current interim ADVO amended with respect to the child so as to provide for contact to occur in accordance with any orders made by the Family Law Court.
Legal principles
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel [2010] FamCA 240, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[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. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] later, at paragraph 100 their Honours amplified their comments and said:
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. 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.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, 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.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s.60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 50, “When it is obvious that the findings made as to some of the s.60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors”.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
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: section 61DA of the Act. 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: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
Meaningful relationship primary consideration
The mother has been the child’s primary carer from birth to date.
The child has a meaningful relationship with the mother and would benefit from a continuance of that relationship.
The father’s material suggests that the child had a meaningful relationship with him at the time of the shooting incident in May 2019. The father asserts that he was significantly involved in the child’s life before this time. The mother disputes the extent of the child’s relationship with the father alleging that the father had a limited involvement in the child’s care before this incident.
The child has not spent significant time with the father since about the time of the incident in late May 2019 and his relationship with the father may well have dissipated since then by reason, in particular, of the effluxion of time and the child’s tender age.
The child may well benefit from the re-development of his former meaningful relationship with the father provided it is safe for him for that to occur. Should the child begin to spend supervised time with the father then there would be some reasonable prospect that the child’s former meaningful relationship with the father could be re-developed.
However, by reason of the matters discussed below, under the need to protect primary consideration, on the material presently before the court, there is an unacceptable risk of physical harm posed to the child in spending supervised time with the father as proposed by him, which outweighs the benefit to the child of his meaningful relationship with the father being restored.
Need to protect primary consideration
The mother alleges significant family violence perpetrated against her by the father during the relationship, which the father denies. She alleges verbal abuse, yelling, and aggressive behaviour by the father during the relationship. The Court refers to its discussions above in relation to domestic violence orders. The Court has concerns, in this context, of the child spending unsupervised time with the child, however the Court would assess that supervised time, as proposed by the father, would sufficiently address its concerns in relation to these allegations of the mother.
In relation to the incident in 2019, on the material before the Court, there is an unacceptable risk of harm posed to the child if spending unsupervised time with the father.
The Court would assess, on the material before the Court, that there is a reasonable possibility of the father being the subject of a targeted shooting (or perhaps some other form of targeted physical attack) by a third person or persons if spending unsupervised time with the child. Should this occur, then then there is a significant risk that the child could be exposed to very serious physical harm, if not death.
However, the question arises as to whether the above risk of the child being exposed to very serious physical harm, if not death, were the father to be the subject of an attack, could be sufficiently minimised or ameliorated by the child spending supervised time with the father at one of the contact centres as proposed by the father.
On the material before the Court, the Court would assess that there is a reasonable possibility that the father might be the subject of a targeted shooting (or perhaps some other form of targeted physical attack) by a third person or persons whilst the father is spending supervised time with the child at a contact centre, as proposed by him. Should this occur, again, then there is a significant risk that the child could be exposed to very serious physical harm, if not death.
In the view of the court, the father has failed to adduce relevant material before the court as to whether any of his nominated contact centres would be prepared to offer supervision, after having been briefed as to the nature of the risk, and what they would do to protect the child at their particular contact centre.
Should the father adduce such material, then the court would be in a position to properly assess whether the proposed supervision would sufficiently minimise or ameliorate the risk of harm to the child.
It would be an abrogation of the court’s obligation to assess any asserted risk of harm to the child to simply order supervised time at one of the father’s nominated contact centres on the assumption that, the contact centre having conducted a relevant intake assessment of the parties and the child and having been briefed as to the nature of the risk, the contact centre would take sufficient steps to minimise or ameliorate the risk of the child being exposed to the risk of harm.
Accordingly, in circumstances where the father has failed to adduce such material, as discussed above, there remains an unacceptable risk of physical harm posed to the child in spending supervised time with the father as proposed by him.
If the court were to order supervised time, as proposed by the father, then even if the parties were restrained from informing any third party of the Court’s orders for supervision, then, based on the material before the Court, that would not necessarily remove the real chance that a person or persons intent on harming the father would follow him to a contact centre, as proposed by him.
In the view of the court, on the material before it, the father’s proposed changeover arrangements for such supervised time at a contact centre would not sufficiently minimise the risk of harm to the child; the child could still be at risk spending supervised time with the father at the contact centre, as discussed previously in these Reasons.
The Court, in formulating its above views, has not overlooked, in particular, having considered all the father’s submissions, that:
a)there is no evidence of the father being the target of an attack since the incident in 2019;
b)the incident occurred in the early hours in 2019;
c)it is not alleged that the father was responsible for the shooting in 2019;
d)the father was not the only person present within the home in 2019;
e)the father, to a not inconsiderable extent, has cooperated with NSW police since the incident in 2019;
f)the father has not been arrested or charged in relation to the incident in 2019;
g)The father has not been charged with any criminal offence relating to illicit drugs or firearms since the incident in 2019.
The Court gives significant weight to this need to protect primary consideration.
Additional considerations
Both parties assert that they each have sought to actively participate in the child’s life and in his care, although there is a significant dispute between the parties in this context. The father’s material suggests that he has sought to spend regular time with the child and to participate in decision-making for the child.
It would appear that each of the parties has sought to financially support the child when caring and/or spending time with the child.
The child has positive relationships with the maternal grandparents and extended maternal family.
There is presently no child support assessment and it would appear that the father is not paying child support.
The mother has the capacity to provide for the child’s needs including emotional and intellectual needs. The father asserts that he has such capacities, denied by the mother.
Evaluating the above discussed considerations under s60CC of the Act, it will be in the best interests of the child to make the following interim parenting orders:
a)That the child X (D.O.B. 2017) lives with the Respondent Mother.
b)The father’s interim application to spend supervised time with the child, and set out in his document titled “Amended Minutes of Orders” (forwarded to the Court by the father’s solicitors on 25 February 2020) is dismissed.
Transfer of proceedings to Family Court of Australia
The parties have requested that these proceedings be transferred to the Family Court of Australia, both in view of the likely length of the final hearing (in excess of 4 days) and their complexity.
A significant issue in the proceedings would be whether the father was in fact the target of the shooting incident in May 2019. Other issues potentially flow from any finding the Court makes on this issue, for example, possible need to protect issues.
Another significant issue would relate to the mother’s allegations of family violence and the father’s alleged associations with persons having criminal connections. Other issues would include parenting capacity.
The parties indicated there would be witnesses called from the mother’s extended family (the maternal grandparents and aunts and uncles), private investigators, the father’s extended family (the paternal grandparents), third party witnesses relating to the father’s alleged criminal connections, and numerous witnesses called to give evidence from the NSW Police Force. Such latter witnesses may well seek to claim public interest immunity from giving evidence by reason of, inter alia, apparent ongoing investigations in relation to the shooting, and leading to complex legal argument and prolongation of the trial.
The Court is of the view that it is likely that these parenting proceedings will take longer than 4 days of final hearing. They are also potentially quite complex. Accordingly, the proceedings should be transferred to the Family Court of Australia.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 25 March 2020
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