BARTLETT & DENNY

[2019] FCCA 1173

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARTLETT & DENNY [2019] FCCA 1173

Catchwords:
FAMILY LAW – Interim parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCA 240

Eaby & Speelman [2015] FamCAFC 104

Banks & Banks [2015] FamCAFC 36

Applicant: MR BARTLETT

Respondent: MS DENNY

File Number: PAC 5587 of 2017

Judgment of: Judge Newbrun

Hearing date: 8 March 2019

Date of Last Submission: 8 March 2019

Delivered at: Parramatta

Delivered on: 8 May 2019

REPRESENTATION

Solicitors for the Applicant: Mr Youssef of Taylor & Scott Lawyers

Counsel for the Respondent: Ms Snelling

Solicitors for the Respondent:	Harb Lawyers
Solicitors for the Independent Children’s Lawyer:	Mr Ng of Adams & Partners

ORDERS PENDING FURTHER ORDER

1. That Order 1(e) of the Court’s Orders of 21 December 2018 be discharged.

2. That the children spend time with the father each alternate weekend from 8 am Saturday until 4 pm Sunday.

3. That for the purpose of facilitating changeover, the father shall collect and deliver the children to and from Property A.

4. That the parties are hereby restrained by way of injunction from denigrating the other party in the presence of the children, or within hearing distance from the children, and each party shall use their best endeavours to ensure no other person does so.

5. That the parties are hereby restrained by way of injunction from yelling at the children when the children are in their respective care.

6. The proceedings are adjourned for mention to 15 August 2019 at 9:30 am. At this mention the Court will expect the parties to advise the Court as to whether the Family Report of Dr B has been issued to the parties and Independent Children’s Lawyer.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5587 of 2017

MR BARTLETT

Applicant

And

MS DENNY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This interim hearing relates to the children [X] born … 2010 and [Y] born … 2012.

Proposals

1. The father sought interim parenting Orders in accordance with his Amended Minute of Order; inter alia, he sought a graduated progression of the children’s time with the father beginning with unsupervised time from after school Friday until 7 pm on Sunday, and each alternative week thereafter, and ultimately progressing to from after school Friday until the commencement of school on Tuesday, and each alternative week thereafter, together with discrete time with the child during school holidays and on special occasions.

2. The mother sought a continuation of the interim parenting Order made on 21 December 2018 that until further Order the father spend time with the children every Saturday from 8 am to 4 pm.  She submitted that such Orders should continue at least until the Family Report of Dr B was issued. At the interim hearing, the mother and the Independent Children’s Lawyer informed the Court that the parties had engaged Dr B to prepare a Family Report, with Family Report interviews to occur in June 2019.

3. The Independent Children’s Lawyer (“ICL”) sought interim parenting Orders, inter alia, that the children spend time with the father each alternate weekend from 8 am Saturday until 4 pm Sunday (see his Minute of Order filed 19 December 2018).

Material relied upon

1. The mother relied upon the following documents:

   a)Response to Initiating Application filed 25 January 2018;

   b)Affidavits of Ms Denny filed 29 January 2018 and 14 December 2018.

2. The father relied upon the following documents:

   a)Affidavits of Mr Bartlett filed 7 November 2017 and 14 December 2018;

   b)Child Inclusive Conference Memorandum to Court dated 14 February 2018.

3. The following exhibits were relied upon:

   a)Child Inclusive Conference Memorandum to Court dated 14 February 2018 (Exhibit A);

   b)Letter from Suburb C Medical Centre dated 21 May 2010 (Exhibit B).

Agreed facts unless otherwise stated

1. The mother was born in … 1976 and the father was born in … 1965.

2. The parents commenced cohabitation in … 2001.  They separated in December 2016.  The father asserts that following separation he travelled to Country D to visit family in … 2016.  He asserts that he returned to Australia one month later.  He did not see the children until 10 February 2018; he asserts that the mother did not allow him to communicate or spend time with the children during this period.

3. The father asserts that the mother applied for an interim ADVO against the father in January 2017 for the protection of the mother and children.  He asserts that he consented to a final ADVO in April 2018, without admissions, which expired in April 2019.

4. The father asserts that he was charged in March 2017 with assault occasioning actual bodily harm and common assault for alleged incidents in March and November 2016 involving the mother.  He asserts that in April 2017 such charges against him were withdrawn by the police.

5. On 29 January 2018, by consent, the parties agreed to interim parenting Orders, inter alia, that the parties have equal shared parental responsibility for the children; that the children live with the mother; and that the children spend time with the father on a supervised basis for three hours every Saturday.

6. Thereafter the children spent supervised time with the father through Connecting Families.

7. On 3 August 2018, the parties agreed by consent that the above supervision requirement be discharged and that the children spend time with the father each Saturday in a two-week cycle: in Week 1, from 10 am until 4:45 pm, and in Week 2, from 10 am until 2 pm.  They also agreed that the father should be able to communicate with the children by phone or videoconferencing (such as FaceTime) each Thursday between 6 pm to 6:30 pm.  The father asserts that such unsupervised time had gone well.  He asserts that the children often ran up to him, hugged and kissed him, and were obviously excited and happy to see him.  The mother disputes these assertions.

8. On 21 December 2018 the parties agreed by consent to suspend the above time with Orders of 3 August 2018, and that the children spend time with the father every Saturday from 8 am to 4 pm.

9. The father asserts that on 31 May 2018 he completed the Anchor program Talking with Your Kids through Uniting.  The father further asserts that on 25 June 2018 he completed a Parenting After Separation – Focus on Kids course with Relationships Australia.  He asserts that on 20 November 2018 he completed the Keeping Contact course through Uniting.  The father asserts that he feels that he benefited and learned something from each course.

10. The mother asserts that she attended the Keeping Contact program with Uniting.

11. A Child Inclusive Conference was held on 13 February 2018.  The parties and the children were interviewed.

12. At that conference the child [X], then aged seven years and nine months, told the family consultant, inter alia, that the father yells at the mother.  She did not recall if she had seen the mother yell at the father.  The child stated that sometimes the mother says to her, “[d]o you remember when dad punched me?”, with the child stating that she did not recall this event.  She stated that she would like to spend time with the father on weekends.  She said that she would not like to sleep at the father’s house because she would be worried that he would yell.  She stated that if she was in trouble the mother would smack her and talk to her in a strict voice.  She stated that when she was in trouble with the father, he would yell at her.  She said that on one occasion she hid some prawns behind her table and when the father found them the father punched her in the back.

13. The child [Y], then aged five years and four months, told the family consultant, inter alia, that both parents yelled at him if he was in trouble, and that the father yelled louder.  This child expressed a strong desire to spend more time with the father, stating he wanted to have sleepovers at the father’s home.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. 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.

3. 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.

4. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.

5. 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.

6. 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.

7. 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).

8. 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).

9. 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.

10. 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.

11. 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.

The best interests of the children

Section 60CC Considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration

1. The children have a meaningful relationship with both parents and would benefit from a continuance of those relationships.

2. For a significant period post separation, from about February 2018 to August 2018, the children spent regular supervised time with the father.  Thereafter the children spent daytime time with the father. 

3. There is a significant prospect that should the children commence to spend time with the father each alternate weekend from 8 am Saturday until 4 pm Sunday their meaningful relationship with the father can be maintained and enhanced.  Following the issuing of the Family Report, the extent of the children’s overnight time with the father on a fortnightly basis can be reconsidered, together with the issue of school holiday time and special occasions with the father.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The mother alleges significant family violence perpetrated against her in the presence of the children during the relationship.  She also alleges that the children were subjected to direct family violence by the father. 

2. The mother alleges in her Affidavit filed 14 December 2018 that she wishes for the father’s contact with the children to revert to supervised visits (the Court notes again that at the interim hearing the mother sought the continuance of the Order of 21 December 2018 that the children spend unsupervised day time time with the father).  She alleges that the child [X] in particular has been suffering from having spent time with the father.  Inter alia, the mother alleges that the children were feeling pressured by the father in relation to speaking to him on the telephone.  The mother alleges that the child [X] had disclosed to her that the father had been denigrating the mother in her presence.

3. The Court refers to the children’s statements to the family consultant.  The youngest child stated that he would like to spend overnight time with the father.  The eldest child [X] stated that she would not like to sleep at the father’s house because she was worried that the father would yell.  In the mother’s Affidavit filed 14 December 2018 the mother alleges that the child [X] told the mother that she didn’t want a sleepover at the father’s house because, inter alia, she was scared of the father and had been affected by what the father had said about the mother.  The mother alleges that the progression to unsupervised visits had taken place on the condition that the father would stop making the children upset and confused.  The mother alleges that the father keeps on psychologically abusing the children.

4. The Court has had regard to Exhibit B, being a very brief referral letter from the mothers general practitioner to a psychologist regarding the child [X]; the Court observes that no particularisation is given in this letter in relation to the child’s alleged anxiety disorder or reference to having experienced “domestic violence”.

5. The Court has had regard to the signed statement of Mr and Mrs E on behalf of the mother attached to the mother’s first Affidavit.  This statement, relating to alleged aggressive and violent behaviour by the father, lacks particularisation.

6. The father significantly denies the mother’s allegations of family violence.

7. The supervision contact reports suggest that the children spent positive time with the father and were not fearful of him.  Such reports do not indicate that the father attended such contact whilst under the effects of alcohol.  They do not suggest that the father has engaged in significant denigration of the mother in the presence of the children.

8. In the view of the Court, should the children commence spending time with the father each alternate weekend from 8 am Saturday until 4 pm Sunday, there will be no unacceptable risk of harm posed to the children in such circumstances, provided that interim restraining Orders are made that neither party yell at the children whilst the children are in their respective care, that neither party denigrates the other party in the presence of the children, and that each party use their best endeavours to ensure that no other person does so.

Section 60CC(3) - additional considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The Court takes into account the statements made by the children to the family consultant and alleged statements made by the children to the mother, whilst noting their tender ages.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The Court refers to the meaningful relationship primary consideration above.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. There is a significant suggestion on the material before the court that both parents have taken such opportunities, where possible.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. It would appear that each parent has fulfilled such obligations during such times as the children have been in their respective care.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. Should the children spend time with the father as discussed above under the primary considerations, there should be no detrimental effect upon the children’s meaningful relationship with the mother.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. Not applicable.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The Court refers to its discussions above in these Reasons.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

1. Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. There is a significant suggestion on the material before the Court that both parents have taken such opportunities, where possible.

(j) Any family violence involving the child or a member of the child's family

1. The Court refers to its discussion above under the need to protect primary consideration.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter

1. The Court refers to its discussions above in these Reasons relating to previous ADVO.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. These are interim proceedings.

(m) Any other fact or circumstance that the Court thinks is relevant

1. In the view of the Court, at this early interim stage, taking into account the nature and extent of the children’s time with the father (in particular post separation), observing that there has been no overnight time since separation, taking into account the fact that there would appear to be an element of distrust on the part of the mother towards the father insofar as the children are concerned in particular, and taking into account the Court’s discussions above under the meaningful relationship and need to protect primary considerations, it will not be in the best interests of the children to spend equal time with the parties, nor will it be in their best interests to spend substantial and significant time with the father.  And further, taking into account such matters, it will not be in the best interests of the children, at least until the Family Report is considered, that the children spend time with the father, on an interim basis, beyond spending each alternate weekend from 8 am Saturday until 4 pm Sunday with him.  In passing, it would appear that there is no practicability issue in relation to the issue of equal time or substantial and significant time.

Parental responsibility

1. An interim Order was made by consent between the parties on 29 January 2018.

Summary

1. Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following interim Orders:

   (1)That Order 1(e) of the Court’s Orders of 21 December 2018 be discharged.

   (2)That the children spend time with the father each alternate weekend from 8 am Saturday until 4 pm Sunday.

   (3)That for the purpose of facilitating changeover, the father shall collect and deliver the children to and from Property A, NSW.

   (4)That the parties are hereby restrained by way of injunction from denigrating the other party in the presence of the children, or within hearing distance from the children, and each party shall use their best endeavours to ensure no other person does so.

   (5)That the parties are hereby restrained by way of injunction from yelling at the children when the children are in their respective care.

   (6)The proceedings are adjourned for mention to 15 August 2019 at 9:30 am. At this mention the Court will expect the parties to advise the Court as to whether the Family Report of Dr B has been issued to the parties and Independent Children’s Lawyer.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 8 May 2019