BANNERT & HEADLEY

[2020] FCCA 2600

FEDERAL CIRCUIT COURT OF AUSTRALIA

BANNERT & HEADLEY [2020] FCCA 2600

Catchwords:
FAMILY LAW – Parenting – interim hearing in relation to children who are 13 and 11 – where the mother asserts the children should not spend much time with the father – where the children have expressed views to family consultant which differ to their parents – where the children have been exposed to parental conflict. 

Legislation:

Family Law Act 1975 (Cth), s.60CC

Applicant: MS BANNERT

Respondent: MR HEADLEY

File Number: ADC 1043 of 2019

Judgment of: Judge Young

Hearing date: 27 August 2020

Date of Last Submission: 27 August 2020

Delivered at: Darwin

Delivered on: 27 August 2020

REPRESENTATION

Counsel for the Applicant: Ms Cocks

Solicitors for the Applicant: Tindall Gask Bentley

Counsel for the Respondent: Ms Dickson

Solicitors for the Respondent: David Burrell & Co

ORDERS

UPON NOTING:

A.That in the event that X expresses a wish to have some flexibility in relation to the time she spends with each parent, then the parents are to give serious consideration to her wishes and, to the extent reasonable, to giving effect to those wishes.

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That paragraph 1 of the Order made 26 June 2020 be discharged.

2. That the children X born in 2007 and X born in 2009 shall live equally with each parent in a week about arrangement (including during all school holiday periods) with changeovers to take place at 5.00pm on Friday with such arrangement to commence on Friday 11 September 2020 with the father to have the children in his care from 5.00pm on 11 September 2020 to 5.00pm on 18 September 2020 and each alternate week thereafter.

   NOTING that until the commencement of the arrangement in paragraph 2 above, the children shall spend time with the father from 5:00pm on Friday 28 August 2020 to the commencement of school on Monday 31August 2020.

3. That the children shall spend time with the father on Father's Day from 11.00am to 7.00pm.

4. That the children shall spend time with the parent that does not have the children living with them on the children’s birthdays AND their respective birthdays as follows:-

   (a)If a school day from the conclusion of school until 6.30pm;

   (b)If a non-school day from 1.00pm until 5.00pm.

5. That the children shall live with each of the parents at Christmas 2020 as follows:

   (a)With the mother from 4pm on Christmas Eve until 4pm on Christmas Day;

   (b)With the father from 4pm on Christmas Day until 4pm on Boxing Day.

6. That in relation to the child Y, the mother shall forthwith provide to the father:

   (a)Particulars as to Y’s diagnosis, treatment and medication to be administered to Y;

   (b)Particulars of any service upon which Y attends.

7. The parties do all things and acts necessary to jointly write to Dr B to obtain information about the required frequency of the administration of medication.

8. That within 48 hours of making an appointment for Y’s attendance upon any treating specialists, psychologists or the like, the mother shall advise the father of the details of that appointment so that the father may attend same.

9. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship X born in 2007 and Y born in 2009 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 29 January 2021.

10. That the family report to deal with the following matters:

    (a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

    (b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

    (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.

11. That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

12. That the parties are to telephone the Case Coordinator Children Dispute Services on 1300 352 000 fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

13. That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

14. That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

NOTING:

B.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

C.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

D.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 15 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

IT IS FURTHER ORDERED:

1. That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

2. That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

3. That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any material produced pursuant to subpoena and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served prior to the family report interviews as follows:

   (a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

   (b)annexing such material as is considered relevant, with

   (c)the affidavit to be paginated, indexed and exhibits tagged.

4. That the matter is listed for trial on 17, 18 and 19 May 2021 at 10.00am (allowing three days).

5. That each party file and serve on each other party one affidavit of evidence in chief and one affidavit of each witness complying with rule 15.28 of the Federal Circuit Court Rules 2001 intended to be relied upon at trial no later than 28 days prior to the trial.

6. That on or before 28 days prior to trial the applicant pay the setting down fee and such further daily hearing fee should the matter continue to day 3 and the respondent pay such further daily hearing fee on day 2 as required pursuant to the Family Law (Fees) Regulation 2012.

7. That at least 48 hours prior to trial, Counsel for each party and the Independent Children’s Lawyer file and serve a Case Outline document which clearly identifies the following:

   (a)a list of the material relied upon;

   (b)a brief chronology listing significant events;

   (c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child (section 60CC factors);

   (d)a list of other contentions relevant to the decision;

   (e)whether the presumption of equal shared parental responsibility applies (section 61DA), and if not the contentions relied upon;

   (f)a list of the considerations relevant to considerations of equal and substantial parenting time (section 65DAA);

   (g)a list of other relevant considerations (including the relevant section number) (for example, sections 60CG, 61F, 65DAB and/or 65DAC); and

   (h)the actual orders sought.

8. That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court.

9. That in the event that either party wishes to cross examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention no later than 14 days before the commencement of the hearing.

10. That in the event that no such notice is given to the family report writer or the family report writer is unavailable, the family report will be admitted into evidence without cross examination.

THE COURT FURTHER NOTES THAT:

E.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

F.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

G.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

H.If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

IT IS NOTED that publication of this judgment under the pseudonym Bannert & Headley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 1043 of 2019

MS BANNERT

Applicant

And

MR HEADLEY

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This an interim hearing in relation to X, who is almost thirteen and a half and Y, who is 11 years old.  It seems to be an agreed position, or it was said, that Y is somewhere on the autism spectrum but I am not aware of any precise information about that.  There was also some evidence that he is receiving some medication for anxiety, although again, I am not given any precise information about that.  While I understand the agreed position about Y is that he has some condition, possibly autism spectrum disorder, as I say, I am not aware of any precise evidence about that, and I am certainly not making any finding about that, but I understand that is an issue.

3. It appears to be common ground that after the parties separated in 2017 a shared care arrangement was put in place.  By that I mean an equal time arrangement for the children.  That appeared to continue until earlier this year when the mother took the view that that arrangement was not appropriate for the children, and not in their best interests, in particular because the children did not wish to spend so much time with their father.  In her affidavit, filed on 14 July 2020, she specifically says:

   [38] For some time now, the children have expressed their reluctance to continue to live in a week-about arrangement.

   [39] X does not wish to spend time with the respondent as she is often left to herself and spends much of the time in her room.  The respondent does not undertake any activities with the children, and when she is in the care of the respondent, she often visits a friend who lives nearby to the respondent.

   [40] It has been difficult to ascertain Y’s reasons for not wanting to spend time with the respondent.  I believe, however, it relates to an incident which he witnessed on 15 December 2019, which I will detail below, as he has recently raised same to his school principal.

4. The reference to 15 December is a reference to an incident where, it seems, the father and his present partner, I gather, his uncle and, I think, his uncle’s wife were present at a concert in the park at Suburb C Centre.  It appears that the mother was also present there and Y was with her.

5. The mother’s version of that event is that she approached the father to return to the father, I gather, Y’s mobile phone.  The father and his party were in a restaurant, the D Restaurant, and the windows were open, as it was summer of course in Adelaide.  She says that as she handed the phone through the window, the paternal uncle grabbed her and started screaming and cursing, and went on to assault her. 

6. I should say that the father’s version of that incident is quite different.  He says that his partner was present.  It is frankly astonishing to me, considering the level of hostility between these parties, that they would seek to have anything to do with each other at such an occasion but we are not evidently dealing with parties who are necessarily calmly rational.  The father’s version of that event is that the mother approached him and his uncle and party but she was drunk and abusive.  He says that she, that is the mother, abused the father’s partner, calling her a “whore” and continued to abuse the party.  It seems then that the uncle stepped outside and tried to push the mother away and the mother resisted.

7. The father also says that he attempted to prise the mother’s hand off a window frame and move the mother along.  As Ms Cocks says, that is an admission of assault.  I agree.  As far as I am aware in South Australia provocation does not constitute a defence to the crime of assault and it is probably an aggravated assault, being a male and a female.  Nevertheless, if it were true that, as the father alleges, the mother was drunk and repeatedly insulted his partner as a “whore” in a public place, it is hardly surprising that the scene turned into a nasty and unpleasant one, as it clearly did on any version.

8. However, I am not satisfied, as Ms Cocks points out, that I can form a view about whether that matter reflects poorly on the father’s parenting capacity, which is the way she framed the submission.  I am not satisfied that there is any inference I can draw beyond what I have described about that incident.  It seems to me the real issue in this case is, apart from the obvious hostility of the parties, their inability to behave calmly or rationally towards each other, even if it runs the risk of exposing the children to family violence, as that incident on 15 December clearly did, as Y was present.  Whether or not he saw it, the parties differ about that, in any event it was a disgraceful incident.

9. The mother’s evidence, as I have said, is that the children have expressed unequivocal wishes not to spend so much time with their father.  The mother goes further and says that one of the reasons for Y’s reluctance or unwillingness to spend time with the father is that he witnessed that incident.  A child inclusive conference was ordered by me in June or thereabouts, and the interviews took place on 13 August, which is only last week.

10. The views expressed by the children were very different to those that the mother said they had expressed.  X, the 13 year old, expressed a wish to return to a week-about arrangement, whereby she spent time with the father and the mother, and she expressed a wish for changeovers to occur on Fridays at 5 pm.  X gave reasons why she thought the present arrangement was unsatisfactory.  She said she wished to spend more time with the father, and simply weekend time was not enough.

11. She has clearly been, in my view, subjected to pressure by both parents.  She told the family consultant that the mother spoke to her before the interview and told X that she needed to choose wisely because the mother could not afford to be changing the arrangements.  X said that she felt pressured by that.  She also was potentially placed under pressure by her father who, according to X, said that unless she was going to live week about, he would sell the house.  If X is correct in her understanding of that, that seems to me to be an entirely illegitimate factor to place before a child.

12. Not surprisingly, given my description of the material before me, X said that she feels placed in the middle of the parents’ conflict.  That seems to me to be unavoidable and I am far from satisfied that either of these parents have done their best to shield these children from their conflict.  X was considered by the family consultant to be an insightful young person.  X was particularly concerned about her younger brother, Y, and the stress that the parental conflict was, in X’s view, causing Y.  So it seems that there is at least one person in the family who expresses a genuine fear for the effect of this conflict on Y.

13. The family consultant’s interview with Y was also very illuminating.  Y’s responses were perhaps somewhat limited in their usefulness for me in determining his wishes, given his age and perhaps his diagnosis, but Y was clear that he wanted to be wherever X was.  I think it is clear from this that there is a very strong bond between Y and X, perhaps not surprisingly given the sense of compassion and concern that comes through in what X says about her younger brother.

14. X also said that she wishes to have some degree of flexibility built into these arrangements and I am of the view that there are ample indications in what X has said to the family consultant that X is a mature and insightful child, indeed young woman, and I am very disposed to try and build some mechanism into the orders that would see her wishes observed about that.

15. I cannot draw any particular inferences about this matter from the contested material as the parties are obviously diametrically opposed on almost everything: However, I am satisfied that I should not give all that much weight to the mother’s assertion in her affidavit about the children’s views.  That material is not borne out by the report of the family consultant following interviews with the children.  The children, particularly X, expressed a clear view about wishing to have an equal time arrangement, and Y expressed a clear view that he wanted to go where X went. I am satisfied that, essentially, Y should go where X goes.

16. Whether or not the issues in subsection 60CC(2)(a) and (b) are particularly engaged in this case, I am not sure.  It appears that both children have a meaningful relationship with both parents.  I am not satisfied that there are any matters I need to take into account, in particular in relation to subsection 60CC(2)(b), though there are some allegations that the children, or at least Y, have been exposed to family violence.  While I think there is some substance in that, I do not know whose fault it was or how that unfolded.  It appears to me that this was a situation where either parent might be said to have been foolish in not removing themselves from the situation when they saw the other parent nearby, if they were so lacking in confidence about how the situation would unfold.

17. In relation to the other factors in subsection 60CC(3), I have had regard to all of those but, as I say, as between the various parents, I do not believe I can form a particular view that means any of those factors should be given particular weight, or indeed, form any view about what the content of a finding in relation to those matters might be, with the exception of the children’s wishes.   I am satisfied that the children’s wishes are as I have described and I am satisfied that having regard to those wishes, and the significant weight that I give to the wishes, particularly X’s, there ought to be an order that the children live with each parent on a week-about basis, with changeover on Friday at 5 pm.

1. The parties have, not surprisingly, been unable to refer me to any matters that they agree on and have each provided different sets of minutes.  They have not been able to provide me with a minute that deals with any agreement on Father’s Day, Mother’s Day, children’s birthdays or Christmas, nothing at all.  I was just presented with two sets of minutes with the option of choosing between them.  The danger with that of course is that if I choose one, some other things will be missed out, but that can easily be avoided by parties attempting to narrow the focus of their dispute.

2. I am not prepared to sort through the two sets of minutes and see where they agree and where they do not agree.  The matter has already consumed the time that was set aside for it.

   ORDERS DELIVERED

3. Now, that is a reasonably vague formulation, but just so that each party knows exactly what I mean by that.  X is thirteen and a half.  There has got to be some flexibility.  I do not mean by that that if she expresses a wish not to go to spend any time with the other parent that that thereby excuses that parent from sending the child because, frankly, I do not have, at this stage, much confidence in the credibility of the parents.  Credibility, like anything else, is a fact that needs to be established and, in my view, the credibility of these parties has not been established, so I do not know.

4. By the phrase “some flexibility”, I mean if she wants to leave a bit earlier or do whatever, or if she has some event on that means that she wants to come the next day, for example, I would expect each parent to seriously consider that and, unless there was a very good reason, to attempt to accommodate it.  I have not said anything about Y in that but given the evident closeness between Y and X, that might also have some effect on Y.  He might want stay with her or go with her.  I mean, it might not always be possible. 

5. Now, I know that in saying something as vague as I have said to each of these parents, who clearly have no ability to co-parent, what I may say is possibly meaningless.  But just so neither parent is under any illusion about what I mean, if we get to a trial and there is evidence about one party unreasonably failing to consider giving X some flexibility, I am very likely to draw inferences about that party’s parenting capacity.  

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 15 September 2020