BANNER & SLOANE
[2017] FCCA 2003
•23 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BANNER & SLOANE | [2017] FCCA 2003 |
| Catchwords: FAMILY LAW – Interim Parenting – two boys aged 14 and 9 – risk of harm assessment – father charged with common assault of 14 year old child – children’s time with father. |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 60CA, 61C, 61DA, 65DAA, Crimes (Forensic Provisions) Act 2000, s.32A |
| Cases cited: Goode v Goode (2007) 36 FamLR 422 Slater & Light [2011] FamCAFC 1 |
| Applicant: | MS BANNER |
| Respondent: | MR SLOANE |
| File Number: | PAC 3076 of 2014 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 27 July 2017 |
| Date of Last Submission: | 27 July 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 23 August 2017 |
REPRESENTATION
| Appearing for the Applicant: | Ms Morrison |
| Solicitors for the Applicant: | Mahony Family Lawyers |
| Appearing for the Respondent: | Mr Corish |
| Solicitors for the Respondent: | Corish & Co |
| Appearing for the Independent Children's Lawyer: | Ms Hafey |
| Solicitors for the Independent Children's Lawyer: | Legal Aid New South Wales |
PENDING FURTHER ORDER:
The children shall live with the mother.
The children shall spend time with the father on one occasion each fortnight for no less than three hours as agreed to by the parents in writing and failing agreement commencing on the first Wednesday after the making of these orders and each alternate Wednesday thereafter, from after school to 7.30pm, with the father or his nominee to collect the children from their respective schools at the commencement of such time and the mother or her nominee to collect the children from the father’s residence at the conclusion of such time.
In addition to order (3) above, [X] shall spend time with the father in accordance with his wishes.
In addition to order (3) above and commencing on Sunday 8 October 2017 and each alternate Sunday thereafter, [Y] shall spend time with the father for no less than six hours as agreed to between the parents in writing and failing agreement from 9am to 3pm, with the father or his nominee to collect the child from the mother’s residence at the commencement of such time and the mother or her nominee to collect the child from the father’s residence at the conclusion of such time.
Notwithstanding any other order the children shall spend time with the father:
(a)On Father’s Day from 12 noon to 4pm; and
(b)On 25 December 2017 from 3pm to 8pm.
with the mother to deliver the children to the father’s residence at the commencement of the time and the father to deliver the children to the mother’s residence at the conclusion of the time.
The parties are restrained from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and each parent shall use their best endeavours to prevent any third party from making critical comments about the other parent in the presence and/or hearing of the children.
Pursuant to Section 13C (1) b of the Family Law Act 1975 the parties shall between 1 November 2017 and 1 December 2017 attend mediation with an accredited Family Dispute Resolution Practitioner as agreed between the parties or failing agreement on the application of either party as nominated by the President or other office bearer of one of the following:
§LEADR;
§Australian Mediation Association;
§Australian Institute of Arbitrators and Mediators; and
§Law Society of NSW Mediation Unit.
The parties shall be responsible for ensuring that a copy of their documents as filed are provided to the Family Dispute Resolution Practitioner not less than 7 days prior to the mediation.
Forthwith upon a Family Dispute Resolution Practitioner being agreed or nominated then each party shall:
(a)Do all things, sign all documents and give all consents, authorities and instructions necessary to instruct and retain that practitioner;
(b)Pay one half of all fees charged by the practitioner;
(c)Attend at such times, dates and places necessary to complete mediation.
The parties are to share the cost of mediation equally.
List the matter for directions at 11.30am on 1 December 2017.
IT IS NOTED that publication of this judgment under the pseudonym Banner &Sloane is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3076 of 2014
| MS BANNER |
Applicant
And
| MR SLOANE |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction
These are the Reasons for Judgment in relation to interim parenting proceedings concerning two children [X] born 2002 and [Y] born 2007.
The parties to the proceedings are the Applicant mother Ms Banner and the Respondent father Mr Sloane.
The proceedings to which these Reasons refer were commenced by way of Initiating Application filed on 17 February 2017.
On the first return date of the matter on 3 April 2017 the Court made orders appointing an Independent Children’s Lawyer, directing the parties and the children to participate in a Child Inclusive Conference on 20 April 2017 and the matter was adjourned for directions on 15 June 2017.
On 15 June 2017 the Court set the matter down for an urgent interim hearing on 27 July 2017 and directed the parties to file and serve an Amended Initiating Application and Amended Response respectively together with a short Affidavit dealing with interim issues to be determined by the Court on 27 July 2017.
Documents relied upon
The Applicant relied on the following documents at interim hearing:
a)Amended Initiating Application filed on 21 June 2017;
b)Notice of Risk filed 17 February 2017;
c)Affidavit of Ms Banner affirmed and filed on 14 July 2017; and
d)Child Inclusive Conference Memorandum dated 20 April 2017.
The Respondent relied on the following documents at interim hearing:
a)Affidavit of Mr Sloane sworn 28 June 2017 and filed 6 July 2017;
b)Affidavit of Ms M sworn and filed on 29 March 2017;
c)Affidavit of Mr P sworn and filed on 30 March 2017;
d)Affidavit of Mr N sworn and filed on 30 March 2017; and
e)Child Inclusive Conference Memorandum dated 20 April 2017.
The following documents became Exhibit’s in the proceedings:
a)Exhibit 1 – material produced under Subpoena by (omitted) School – Sleeve 1, being tab M1.3;
b)Exhibit 2 – material produced under Subpoena by New South Wales Police – Sleeve 3, being tabs M3.1, M3.2 and M3.3;
c)Exhibit 3 – material produced under Subpoena by Ms S, Integrated Clinical Services – Sleeve 5, being tabs M5.1, M5.2, M5.3 and M5.4; and
d)Exhibit 4 – material produced under Subpoena by New South Wales Police – Sleeve 4, being tabs A, B and C.
Competing proposals
The Applicant is seeking that the child [X] spend time and communicate with the father in accordance with his expressed wishes and that the child [Y] spend time and communicate with the father as agreed between the parties in writing.
The Respondent is seeking that the children spend time with him each alternate Sunday from 10am to 6pm for a period of three months and alternate Tuesdays from after school until 6.30pm and that thereafter time to increase to include overnight time each alternate weekend providing the children wish to do so. The father also seeks to spend time with the children during school holidays in accordance with the children’s wishes.
The Law
The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in s60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children.
The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the parents.
It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the children.[3]
[2] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court in
[3] Ibid at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[4] The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[4] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]
[5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[6]
[6] s61DA(3)
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests and reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7]
[7] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[8] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.
[8] (2007) 36 Fam LR 422, (2006) FLC 93-286
As stated by the Full Court in Keats & Keats, in respect of the conduct of interim proceedings:[9]
…the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may 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.
[9] [2016] FamCAFC 156 at [9]
Issues in Dispute
The main issue in dispute for determination at this interim stage is whether there should be interim orders made for the children to spend time with the Respondent and whether such time should be supervised and if so whether the Respondent’s proposed supervisors are suitable.
Uncontested Relevant Facts
The father was born on (omitted) 1963 and is currently aged 53 years.
The mother was born on (omitted) 1966 and is currently aged 50 years.
The parties commenced living together in 1996.
The first child of the relationship, [X] was born on (omitted) 2002 and is currently aged 14 years.
The second child of the relationship, [Y] was born on (omitted) 2007 and is currently aged 9 years.
The parties separated in September 2013 but remained living under the same roof until approximately early May 2014 with the Respondent leaving the family home later that month.
On 1 July 2014 the Applicant filed an Initiating Application and on 11 August 2014 the Court made final parenting and property orders by consent. The parenting orders provided that:
a)The parties have equal shared parental responsibility for the children;
b)The children live with the mother;
c)The children spend time with the father during school terms each alternate week from the conclusion of school on Thursday to the commencement of School on Monday and on one day each fortnight as agreed between the parties from the conclusion of school, or 3pm if a non-school day to 6pm that same evening, absent agreement that day to be Tuesday after the alternate weekend time;
d)The children spend time with the father on Father’s Day from 9am to 5pm and time with the mother on Mother’s Day from 9am to 5pm if not already in their respective care;
e)The children spend time with the father on each of the children’s birthdays for three hours;
f)The children spend time with the father from 4pm Christmas Day to 4pm Boxing Day, unless otherwise agreed; and
g)Other ancillary orders.
Overnight time with the father commenced on 31 October 2015 and alternate weekend time from after school Friday until 6pm Sunday commenced on 4 March 2016.
Both children commenced seeking the assistance of a psychologist in December 2016.
The children have not spent any time with the Respondent since 10 January 2017.
Other relevant evidence
The mother says that the children have not spent extended overnight time with the father from after school Thursday to before school on Monday, as provided for in the 2014 Orders for a number of reasons including the father’s accommodation which did not have walls or appropriate heating during winter and that the father was inconsistent in the time that he spent with the children. She says that he would often cancel visits, change drop off and pick up times and would often want to swap days.
The mother states that despite the consent orders made in 2014 the parties continued with a parenting arrangement which was in place prior to the making of consent orders that the children would spend some day time with the father each alternate Sunday. This progressed to overnight time from Saturday to Sunday each alternate week from 31 October 2015 and that it was not until 4 March 2016 that the children began spending overnight time with the father from after school Friday to 6pm Sunday each alternate weekend.
The mother says that this arrangement began to deteriorate throughout 2015/2016 when the children expressed to her that they did not want to spend time or communicate with the father on a regular basis.
The mother describes a number of occasions when the children were spending time with the father and either one or both of them were returned to the mother’s care upset and uncontrollably crying. She also describes a number of occasions when the children have been spending time with the father and the children have called the mother upset and crying.
Following a weekend visit with the father on 23 October 2016 the mother overhead the children discussing their visit with each other and reports hearing them say:
Dad yells and throws stuff around the place all the time.
Over the weekend dad made heaps of comments about [Y]’s weight.
He keeps telling us we have to spend Thursday to Monday with him every second week as that is what is in the parenting plan.
He says he will be emailing you to tell you that you have to make us go for the visits.
He got angry that he wouldn’t be spending my birthday with me and threw a Berkelouw book bag at me with a book in it and yelled at me “you can take it now”.
Dad went ballistic, he started screaming, swearing and got a screw driver and removed the bathroom door.
I don’t want to go anymore, I am sick of it, he gets so angry with us and is constantly threatening not to pay for school anymore and complaining about how much we cost him.
The children spent time with the father from 5 January 2017 to 11 January 2017. On 10 January 2017, the mother says that she received a number of phone calls which woke her up. She saw that the calls were from [X]. She telephoned him back and he said to her that “Dad’s hit me.” The mother says that [X] was crying on the phone and asking the mother to come and get him. The mother promptly got in the car and drove to the father’s home, arriving in the early hours of the morning. She says [X] was standing out the front of the father’s house and according to the mother [X] told her that the father had ‘laid into’ him when he was lying in his bunk bed.
Because she didn’t know where [Y] was, and she was “fairly panicked” over the telephone the mother had demanded that [Y] come home with her as “he will be struggling and having anxiety as a result of what happened.” At no point in time does the mother depose that she asked the father what happened. The father did not agree to have [Y] return with the mother, so she called the Police. The mother then deposes as follows:
I stood with [X] for support when he explained to the Police what had happened and while he provided a statement…
As a result of the incident, the Police applied for and obtained an Apprehended Violence Order listing [X] as the protected person and the father as the defendant. The father was also charged with common assault.
The father in his Affidavit outlines what occurred on the 10 January 2017. He says the incident was “unfortunate” and that on its face because of the involvement with the police it appears “very serious”. He says he takes responsibility for what happened and agrees that he was at fault. However, the father says that it was not really necessary that Ms Banner call the police and treat the incident in this way. The father describes what occurred as follows:
It was about 11.00pm after I made three trips to their bedside to calm them down. I then went in a fourth time. [X] made a rude remark. I admit I lost my temper and clipped him over the top of his head with the open palm of my right hand. He then retaliated and punched me. I got up on his bed and held him down with his face up, by his shoulders. He then insisted on ringing his mother and going home.
The police notes of what [X] said on the night are annexed to the father’s Affidavit. They record as follows:
When dad tried to punch me and slapped me I felt angry and sad. I am not afraid of dad as I expect him to act the way he did and is usually agressive (sic).
On 17 January 2017 the father agreed to the making of a final Apprehended Violence Order without admission, for a period of 12 months.
On 28 February 2017, the father made an application pursuant to s32A of the Crimes (Forensic Provisions) Act 2000 (NSW) that the charges be dismissed on the basis that he was suffering from a mental health condition. Ultimately, the father was found guilty but without proceeding to conviction and was directed to enter into a 12 month good behaviour bond pursuant to s10(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW), and to comply with the Apprehended Violence Order whilst current.
The mother in her Affidavit filed 14 July 2017 describes a number of incidents of violence perpetrated by the father towards her.
She describes an incident on 3 December 2013 when the father punched the mother. Following this incident the police were called and an Apprehended Domestic Violence Order was obtained for the protection of the mother.
She says that the father would become angry and would also cause damage to the walls and property during arguments. The mother describes an incident on about 9 May 2014 where the parties had an argument about the father attending the home uninvited. The mother says that during this argument the mothers arm became lodged between the door and the door frame as a result of the father’s actions and left bruising to her arm.
The father denies the allegations of violence made by the mother against him. He emphatically states “I was never violent to Ms Banner.”
The father’s view is that the mother has not promoted the children’s relationship with the father. He says in his evidence:
I have often seen Ms Banner show displeasure and anger towards me, even some 3 years since our separation. I hear her questioning the boys when they arrive home in a cynical way and seeming to be displeased if they indicate they have enjoyed their time or activities…. I have observed the effect of this upon the boys. [Y] tends to not be so greatly affected. However, [X] does seem affected by her anger and negativity towards me… Ms Banner seems to be intent on actively undermining my relationship with the boys.”
The father says that on 5 November 2016 the mother said to him “I’m taking steps to rid you from our lives.”
Parental Responsibility
Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[10]
[10] See note 1 s61C
Neither party seeks an order for parental responsibility at this interim stage. For that reason, no order allocating parental responsibility will be made.
Primary Considerations and Risk of Harm
The protection of the children from harm is an important matter for the Court’s consideration when weighing up the primary considerations. Indeed, the Court must prioritise the need to protect children from harm as against the benefit of children having a meaningful relationship with the parents.
Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made. In doing so the Court must weigh up any risk of harm to the children, all the while considering what might be in the children’s best interests. It is the existence and magnitude of the risk of harm that is a fundamental matter to be taken into account in deciding what orders are to be made in respect of what time, if any, the children is to spend with the father.[11]
[11] M & M (1988) 166 CLR 69 at 77
The father says that he has in the past had a positive relationship with the children. The mother certainly through her application accepts that the children will benefit from a relationship with the father. However, she submits to the Court that any time between the children and the father should be supervised, and that the incident in January 2017 was not a one-off event but rather indicative of the father’s inability to appropriately respond to the children and their behaviours.
It was submitted on behalf of the Independent Children’s Lawyer that there is no reason to stop the relationship between the children and the father, despite the incident in January 2017. It was further submitted that there should be a structured activity between the children and the father, and that that time should be limited and uncomplicated. It should not be open to discussion.
The father has been found guilty of common assault.
The father is currently subject to a 12 month good behaviour bond and a 12 month Apprehended Domestic Violence Order. These two matters are of sufficient gravity such that the Court is satisfied that the father will be on his best behaviour during any periods of time the Court deems appropriate the children spend with him.
Furthermore, the father has expressed remorse at his behaviour. The father is continuing counselling and treatment with a psychologist. He is reported to have “committed to helping himself both psychologically and physically, and now reports to have a clear insight into his frustration and at times anger with his boys.”
Despite the difficulties which the children are said by the mother to have experienced in their interactions with the father, and the matters which the children refer to in the Child Inclusive Child Dispute Conference Memorandum, the children have the emotional freedom, maturity and ability to speak to the mother about any concerns they may have in the future about the father. While this may result in the children making complaints about trivial matters to the mother, and some further difficulties in the parties’ co-parenting relationship, it is a protective factor for the children.
Furthermore, the Court would expect the father to put into practice the many things which he has learnt in the numerous parenting courses he has to date completed, such that there is not a situation similar to the one which occurred in January 2017.
Other Relevant Considerations
Views of the children
The parties and the children participated in a Child Inclusive Conference with a Family Consultant on 20 April 2017. The Memorandum to the Court states in summary that:
a)With respect to the child [X]:
i)That the Respondent sometimes grabs him by the arms and shoulders to restrain him when the father is angry;
ii)He would be “ok” with seeing the father although he would like contact to be limited to short day stays with such time being fixed;
iii)He would be “ok” with spending overnight time with the father providing it was not a school night;
iv)He would not feel completely safe with the father following the incident on 10 January 2017;
v)He enjoys spending time with the father when they do fun activities but that the father is often angry, yells a lot and “throws things around”; and
vi)He is enjoying living with the mother describing it as “calm and open”.
b)With respect to the child [Y]:
i)He spoke positively about living with the mother and that she was helpful and caring towards he and his brother;
ii)He spoke about the father being angry and said that “Dad just doesn’t treat [X] well and gets angry with him”.
iii)He recalled the last time he saw the father the father was angry that the children would not be quiet and that he saw the father climbing into [X]’s bed and that he could hear the father “hitting” [X].
iv)He would like to see the father again but not overnight.
Nature of children’s relationships
The mother has been the primary carer of the children since their birth. The children have not spent any time with their father following the incident on 10 January 2017.
The children’s relationship with the father is somewhat fractured. While both children express a view that they have had difficulties with the father, they both appear to want to spend some time with him and continue to have a relationship with him. The father, as previously noted, says that prior to January 2017 he enjoyed a warm and loving relationship with the children.
Parent’s involvement with decision making, spending time and communicating with the child and Maintenance of the children
The father pays child support above what he says would be the assessed amount. He also pays approximately $25,000 per annum in private school fees for the children.
Likely effect of change and practical difficulty of spending time
The children were spending time with the father prior to January 2017, and have not done so since that time. While there will be some change to their routine as a result of the orders which are made compared to their current routines, spending time with the father will not be a routine which is unfamiliar to the children. The Court is not aware of any practical difficulty of the children spending time with the father.
Capacity to provide for children’s needs and the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents
These matters have to a large extent been addressed elsewhere in these Reasons.
Allegations of Family Violence
Issues of family violence have been addressed earlier in these Reasons. The Court has carefully considered the allegations and formed the view that the likely impact of those matters is such that there is no unacceptable risk of harm to the child in spending unsupervised time with the father.
Institution of further proceedings and other relevant matters
These are only interim orders, and it is likely that if the matter proceeds to final hearing, there may be a time period of at least some twelve months before the matter is decided on a final basis, much depending on whether a Family Report is to be ordered.
The length of time that the matter will take to reach readiness for a final hearing is also something which the Court has considered in making these interim orders, particularly in trying to balance the children having a meaningful relationship with both of their parents while ensuring that their safety is ensured as much as possible.
Conclusion
It is in the children’s best interest for them to resume spending time with the father. Given the difficulties which have to date said to have been experienced, it is in the children’s best interest for there to be short, structured time which is not open to negotiation between the children and the father. [X] should however have the opportunity of spending extra time with his father if he so chooses, including overnight time.
Likewise, the father and [Y] have enjoyed attending (omitted) together in the past, and this is an activity which the Court sees as further promoting a healthy relationship between the child and the father. For that reason, time on Sundays between [Y] and the father will be ordered, but to commence in a staggered fashion to the regular fortnightly time.
In all of the circumstances and for all of the reasons set out above, it is in the children’s best for orders to be made as set out at the forefront of these Reasons.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 23 August 2017
Key Legal Topics
Areas of Law
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Civil Procedure
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Administrative Law
Legal Concepts
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Judicial Review
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Standing
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Procedural Fairness
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Natural Justice
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