FEDERAL CIRCUIT COURT OF AUSTRALIA
Baldridge & Baldridge [2021] FCCA 132
File number(s): MLC 7058 of 2020 Judgment of: HER HONOUR JUDGE C. E. KIRTON QC Date of judgment: 7 January 2021 Catchwords: FAMILY LAW – Children – best interests of the children – father seeks equal shared parental responsibility and substantial and significant time – where mother has not allowed the father to have any contact with the children since separation some 17 months ago – allegations of extensive family violence perpetrated by the father during the marriage – mother seeks sole parental responsibility and no time with the father – mother contends stress of the prospect of father having contact with the children is detrimental to her health – basis for unacceptable risk of physical and psychological harm – social isolation and neglect of the children in the mother’s care – physical and mental health of mother –mother suffers from Multiple Sclerosis and possible Functional Neurological Disorder – mother’s day-to-day functioning severely impacted – long-term depression and anxiety – acute distress occasioned by prospect of children spending time with the father – where the mother refuses to engage in counselling and caregiving supports – children assuming caregiving responsibilities – parentification of children – return of Section 11F Memorandum – Court guided by recommendations of family consultant – where mother denies the impact of her mental and physical health on the children – where mother’s mental health detrimental to a meaningful relationship with the father – where the court must balance the risk of the mother’s parenting capacity diminishing if the children resume a relationship with the father and the benefit of this relationship to the children – where the father does not pose an unacceptable risk to the children – where the children are at risk of psychological harm and neglect in the care of the Mother – consideration of ss.60CA and 60CC(2)(b) – primary consideration – the benefit of meaningful relationship with both parents – recommendations for incremental increase in time – conservative approach adopted – interim orders made for time with the father each Saturday– paternal grandparents to be in substantial attendance. Legislation: Family Law Act1975 (Cth) ss 4AB, 11F, 60B, 60CA, 60CC, 62B, 62G, 64B, 65D, 65DA, 65DAA, 67Z, 68L, 75, 102NA
Federal Circuit Court Rules 2001 (Cth) r 13.04
Family Law (Fees) Regulation 2012 (Cth)
Cases cited: Goode v Goode (2006) 36 Fam LR 422
Keane & Keane [2020] FamCA 99
Keane & Keane [2021] FamCAFC 1
Keats & Keats [2016] FamCAFC 156
Marvel v Marvel (2010) 43 Fam LR 348
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Re Andrew (1996) FLC 92-692
U v U (2002) 211 CLR 238
Waterford & Waterford
Number of paragraphs: 84 Date of last submission/s: 7 January 2021 Date of hearing: 7 January 2021 Place: Melbourne Counsel for the Applicant: Ms Goldthorp Solicitor for the Applicant: Pearsons Lawyers Counsel for the Respondent: Ms…
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- Baldridge & Baldridge [2021] FCCA 132
- Case
- [2021] FCCA 132
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CaseChat Overview and Summary
The court was required to determine whether the father posed an unacceptable risk of physical or psychological harm to the children, and to balance this risk against the benefit of a meaningful relationship with both parents, as mandated by section 60CA and section 60CC(2)(b) of the *Family Law Act 1975* (Cth). The court also had to consider the mother's mental and physical health, including her Multiple Sclerosis and possible Functional Neurological Disorder, and how these conditions impacted her parenting capacity and the children's well-being, including the phenomenon of parentification. The children's expressed wishes to see their father were also a significant factor.
Her Honour adopted a conservative approach, consistent with interim decision-making principles, and followed the legislative pathway outlined in *Goode v Goode*. The court considered the primary considerations under section 60CC(2) of the Act, giving greater weight to the benefit of a meaningful relationship with both parents. The court found that the father did not pose an unacceptable risk to the children, but conversely, the children were at risk of psychological harm and neglect in the mother's care. The court noted the children's expressed desire to see their father and the 17-month period of no contact.
Interim orders were made on 7 January 2021, which the court determined were in the best interests of the children. These orders included an incremental increase in time with the father, specifically time each Saturday from 10:00 am to 5:00 pm, with the paternal grandparents to be in substantial attendance. The matter was adjourned for an interim defended hearing and a final hearing, with directions for the filing of affidavits, outlines of case, and the appointment of an Independent Children's Lawyer. The paternal grandparents were ordered to file undertakings to ensure their attendance during the father's time with the children.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The matter be adjourned to the Federal Circuit Court of Australia on 5 February 2021 at 10:00 am for Interim Defended Hearing.
2. The matter be listed for final hearing in the Federal Circuit Court of Australia on a date to be fixed, with an estimated hearing time of 3 days (Final Hearing).
3. In the event of any applicable filing, setting down, mediation or enforcement fee or fees (Fees) not having been waived, the party responsible for the payment of the Fees or any of them shall pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in the Family Law (Fees) Regulation 2012 (Cth), that time being no later than 28 days prior to the Final Hearing.
4. Pursuant to s.68L(2) of the Family Law Act 1975 (Cth) the children X born in 2010 and Y born in 2014 (collectively, Children) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the parties make application to Victoria Legal Aid requesting that they make such arrangement as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:
(a) forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service;
(b) within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents;
(c) the Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published at (http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/about/policies-and-procedures/guidelines-independent-childrens-lawyer), and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and
(d) the Independent Children’s Lawyer prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she may recommend be made as final orders as soon as the Independent Children’s Lawyer is able to, and not less than 5 business days before the trial.
5. The evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the Court) AND:
(a) The Applicant electronically file and serve any further affidavits to be relied upon by the Applicant at the Final Hearing not later than 21 days prior to the trial;
(b) The Respondent electronically file and serve any further affidavits to be relied upon by the Respondent at the Final Hearing not later than 14 days prior to the trial;
(c) The Independent Children’s Lawyer electronically file and serve any further affidavits to be relied upon by them at the Final Hearing not later than 7 days prior to the trial;
AND FURTHER that each party be permitted to rely upon only one affidavit by each of the parties and each witness unless the party has first obtained leave of the Court.
6. Each party provide to the Court at the commencement of the Final Hearing, a statement setting out the costs incurred to that date and from what source those costs have been paid and what costs are expected to be incurred until the completion of the Final Hearing.
7. Each party must have available for their witnesses copies of all affidavits and of all the documents those witnesses shall be referring to at the Final Hearing.
8. Not later than 4:00 pm two business days prior to the Final Hearing all parties electronically file and serve an Outline of Case Document (not exceeding 5 pages) including the following:
(a) a list of the material relied upon;
(b) a brief chronology listing significant events;
(c) a list of the significant factual issues requiring determination;
(d) a list of contentions with respect to each of the considerations relevant to determining the best interests of the children (s.60CC factors);
(e) a list of contentions relevant to the operation of s.65DAA;
(f) a list of any other contentions relevant to the decision;
(g) a table listing all of the assets, liabilities and financial resources claimed to be part of the pool, with the values contended for by each party;
(h) main contentions on disputes as to:
(i) inclusion of items in the pool; and
(ii) the value of items where the value is in dispute;
(i) list of contributions claimed or contended for and the percentage assessment on contributions contended for;
(j) list of other factors relied upon (s.75(2) factors) and percentage adjustment contended for;
(k) other contentions relevant to determining a ‘just and equitable’ division of property; and
(l) the actual orders sought.
9. No party be permitted to rely upon an affidavit or outline if it is not filed in accordance with these orders (nor any affidavit not listed in their outline filed in accordance with these orders) unless they have first obtained leave of the Court.
AND THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:
10. By 4:00 pm on 8 January 2021, the paternal grandparents, Mr B and Ms C (paternal grandparents), file and serve undertakings that they will be in substantial attendance with the Applicant Father (Father) when the Father spends time with the Children pursuant to these Orders.
11. The Children spend time and communicate with the Father each Saturday from 10:00 am until 5:00 pm with the paternal grandparents, or either of them, to be in substantial attendance.
12. Changeover occur in the carpark of the McDonalds in Suburb D, or such other place as agreed between the parties, with the Respondent Mother to be at liberty to send an agent to effect changeover on her behalf.
13. Written reasons for the Interim Decision be reserved.
AND THE COURT NOTES THAT:
A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.
B. If in any proceedings there are allegations of family violence and the provisions of s.102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (Scheme) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E. If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
All relevant matters have been referred to in these Reasons for Judgment.Consideration and Conclusion In this matter the Mother alleges that the Father poses as an unacceptable risk to the Children and that the stress of the prospect of the Father having contact with the Children would be detrimental to her health and therefore vicariously have a detrimental effect upon the Children. In relation to the Mother’s latter allegation, the Mother appears to be relying upon the Re Andrew principle which was recently reviewed, [45] together with its application in various authorities, by Justice McEvoy in Keane & Keane.[46] Subsequent to the 7 January 2021 Hearing the Full Court of the Family Court dismissed an appeal of Justice McEvoy’s Judgment.[47] The Full Court considered the Re Andrew principle and the approach to be adopted by the Court.[48] [45] Re Andrew (1996) FLC 92-692.[46] [2020] FamCA 99, at [82]-[93].[47] Keane & Keane [2021] FamCAFC 1.[48] [2021] FamCAFC 1, at [72]-[85]. In considering this interim decision I have adopted a conservative approach that is not likely to cause harm to the Children, as suggested by the Full Court for interim matters in Marvel v Marvel.[49]I have followed the legislative pathway as required by Goode v Goode,[50] to the extent that I have been able, given that this is an interim case and the evidence is untested by cross-examination. [49] (2010) 43 Fam LR 348, at [120].[50] (2006) 36 Fam LR 422, at [81]-[82]. I have considered each of the primary considerations in s.60CC(2) and accorded greater weight to the considerations set out in s.60CC(2)(b). I have also considered each of the additional considerations in s.60CC(3), to the extent that they are relevant to this interim decision. I have been required to balance the Mother’s allegations about the Father, with the evidence before the Court in relation to the welfare of the Children in the Mother’s care and the Children’s expressed views that they wanted to see their Father. The evidence before the Court is that the Children in the Mother’s care are experiencing social isolation and neglect. The Children had not seen their Father or had any contact with him for some 17 months at the time the Orders were made on 7 January 2021. I determine that Interim Orders made on 7 January 2021 are in the best interests the Children as required by s.60CA of the Act.