FEDERAL CIRCUIT COURT OF AUSTRALIA
Bateman & Bateman [2021] FCCA 65
File number(s): MLC 11942 of 2020 Judgment of: HER HONOUR JUDGE C. E. KIRTON QC Date of judgment: 21 January 2021 Catchwords: FAMILY LAW – Children – interim decision – urgent application to the Court in the National COVID-19 list – application by the mother for reinstatement of previous care arrangements for youngest child – return of urgent Child Inclusive Conference pursuant to s.11F – eldest children reside with the mother – eldest children presently estranged from the father – equal shared care arrangement for youngest child – unilateral change of residence by the father and suspension of mother’s time with youngest child – separation of siblings – deterioration of sibling relationship – suspension of communication with the mother – alienation by the father – coaching by the father – family violence – interim intervention order obtained by the mother – high level of acrimony – consideration of ss.61DA and 65DAA – whether the presumption of equal shared responsibility applies in relation to eldest children – parents inability to co-parent effectively – parental capacity of the father to provide for children’s emotional and intellectual needs – father’s attitude towards the mother – denigration of children by the father – where the father lacks insight – presumption of equal shared responsibility does not apply to eldest children – views expressed by eldest children given significant weight – orders for father to complete Men’s Behavioural Change Program – appointment of Independent Children’s Lawyer – consideration of s.60CC factors – conservative approach adopted – best interests of the child – interim orders made for recommencement of time with mother pending return of matter to Court. Legislation: Family Law Act 1975 (Cth) ss 11F, 60B, 60CA, 60CC, 61DA, 64B, 65D, 65DAA, 69ZW
Federal Circuit Court Rules 2001 (Cth)
Cases cited: Goode v Goode (2006) 36 Fam LR 422
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
U v U (2002) 211 CLR 238
Waterford & Waterford [2013] FamCA 33
Number of paragraphs: 134 Date of last submission/s: 7 January 2021 Date of hearing: 7 January 2021 Place: Melbourne Solicitor for the Applicant: Springvale Monash Legal Service For the Respondent: The Respondent appeared in person ORDERS
MLC 11942 of 2020 BETWEEN: MS BATEMAN
ApplicantAND: MR BATEMAN
Respondent
ORDER MADE BY:
HER HONOUR JUDGE C. E. KIRTON QC
DATE OF ORDER:
21 JANUARY 2021
THE COURT ORDERS THAT:
1.All extant applications be adjourned to the Duty List of this Court before Judge McNab on 22 March 2021 at 9.45 am.
AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Parental Responsibility
2.The Applicant Mother, Ms Bateman (Mother) have sole parental responsibility for the children X, born 2003 (X) and Y born 2005 (Y), provided always that the Mother keep the…
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CaseChat Overview and Summary
The court was required to determine several legal issues, including whether the presumption of equal shared parental responsibility applied to the eldest children, X and Y, given their ages and estrangement from the father. It also needed to consider the parents' inability to co-parent effectively, the father's capacity to meet the children's emotional and intellectual needs, his attitude towards the mother, and his lack of insight into his behaviour. The court had to assess the best interests of the children under section 60CC of the Family Law Act 1975 (Cth), giving significant weight to the views expressed by the eldest children.
Her Honour Judge C. E. Kirton QC found that the presumption of equal shared parental responsibility did not apply to the eldest children, X and Y. The court adopted a conservative approach, prioritising the best interests of the children. The reasoning highlighted the father's denigration of the mother and his lack of insight, which impacted his capacity to co-parent. Consequently, the court made interim orders, including granting the mother sole parental responsibility for X and Y, subject to consultation with the father on significant long-term decisions. X and Y were ordered to live with the mother and spend time and communicate with the father according to their wishes. Z was to live with the father, with specific interim time arrangements for Z to spend time with the mother. The court also ordered the father to complete a Men’s Behavioural Change Program and appointed an Independent Children’s Lawyer to represent the children. Further orders addressed communication protocols between the parents, changeover arrangements, and restraints on parental behaviour, including prohibitions on denigrating the other parent in the children's presence.
Orders
Orders of the court
MLC 11942 of 2020
BETWEEN:
MS BATEMAN
Applicant
AND:
MR BATEMAN
Respondent
ORDER MADE BY:
HER HONOUR JUDGE C. E. KIRTON QC
DATE OF ORDER:
21 JANUARY 2021
THE COURT ORDERS THAT:
1. All extant applications be adjourned to the Duty List of this Court before Judge McNab on 22 March 2021 at 9.45 am.
AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Parental Responsibility
2. The Applicant Mother, Ms Bateman (Mother) have sole parental responsibility for the children X, born 2003 (X) and Y born 2005 (Y), provided always that the Mother keep the Respondent Father, Mr Bateman (Father) informed of significant long term decisions that she makes in relation to X and Y and actively seeks the Father’s input on such issues.
3. For the purpose of Order 2:
(a) Before any such long term decisions are made in respect of X and/or Y:
(i) The Mother shall advise the Father by email of her proposal relating to X and/or Y; and
(ii) If the Father wishes to comment on the Mother’s proposal (or if the Father has any proposal he wishes to make relating to X and/or Y on this issue) he shall, within seven (7) days after the date of the Mother’s email, advise the Mother by one email (to the email address from which the Mother sent her communication) of his views;
(iii) Upon receipt of any comment or proposal by the Father, the Mother shall give consideration to the Father’s views;
(iv) After the Mother has considered the Father’s comments, she shall make a decision and advise the Father by email of the outcome immediately after making that decision; and
(v) If the Father does not respond by email as provided in Order 3(a)(ii), the Mother shall be entitled to presume that the Father does not wish to be involved and she may decide the issue.
BY CONSENT, THE COURT ORDERS UNTIL FURTHER ORDER THAT:
4. The Mother and the Father have equal shared parental responsibility for the child Z (Z) born 2008.
BY ORDER OF THE COURT, THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Living Arrangements for X, Y and Z (together the Children)
5. X and Y live with the Mother.
6. Z live with the Father.
Arrangements for the Children to Spend Time with their Parents
7. X and Y spend time and communicate with the Father in accordance with their wishes.
8. Z spend time with the Mother as follows:
(a) On Saturday 23 January 2021 from 10:00 am to 5:00 pm.
(b) On Saturday 30 January 2021 and Sunday 31 January 2021 from 10:00 am to 5:00 pm on each day.
(c) From 10:00 am Saturday 6 February 2021 to 5:00 pm Sunday 7 February 2021.
(d) From after school or 4:00 pm Friday 12 February 2021 to the commencement of school (or if a non-school day 9:00 am) Monday 15 February 2021 and each alternate weekend thereafter.
(e) From after school or 4:00 pm on Wednesday 17 February 2021 to the commencement of school (or if a non-school day 9:00 am) Thursday 18 February 2021 and each week thereafter, in addition to the time spent in sub-paragraph (d).
(f) The first half of the Term 1 2021 holidays from Thursday, 1 April 2021 after school or 4:00 pm to Thursday, 8 April 2021 at 4:00 pm.
(g) Commencing at the end of the first week Term 2 2021, from Friday after school or 4:00 pm to the following Friday at the commencement of school (or if a non-school day at 9:00 am) and each alternate week thereafter.
BY CONSENT, THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Arrangements for the Children to Communicate with their Parents
9. The Father is permitted to communicate with X and Y via text or email.
10. When Z is living with the Father he must ensure that Z’ mobile phone is charged and available for the Mother to call Z each Tuesday and Thursday when Z is not in the Mother’s care between 5:00 pm and 6:00 pm.
11. Further to Order 10, the Father is to permit Z if she wishes to phone the Mother from her mobile phone at any other time or to text message the Mother.
12. The Father must ensure that he gives Z privacy for any phone calls that Z has with the Mother.
BY ORDER OF THE COURT, THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Changeover
13. For the purposes of Order 8 and unless otherwise agreed in writing (including by email) all changeovers are to take place at Z’ school or at the McDonalds’ Restaurant, corner of A Street and B Street, Suburb C.
BY CONSENT, THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Restraints on the Parents
14. The Mother and the Father and their servants and agents be and are hereby restrained from:
(a) Abusing, belittling, insulting or otherwise denigrating the other parent, their relatives or friends within the presence or hearing of the Children.
(b) Commenting, discussing, or referring to any part of the family law proceedings, including communications, negotiations, or showing any documents from these proceedings, or allowing any other person to do so within the presence or hearing of the Children.
(c) Encouraging the Children not to comply with these Orders.
15. The Mother must ensure that when Z is in the Mother’s care pursuant to Order 8 of these Orders, that Z is appropriately supervised when Y is present in the Mother’s home.
16. The Mother and the Father be and are hereby restrained from passing messages or communicating through Z about parenting arrangements.
Parents to Provide Information
17. The Mother shall obtain, utilise and maintain a family account with an online parenting application (Parenting App), which the Mother and Father shall use to communicate with each other in regard to Z. The Mother shall establish the account and invite the Father to join within 7 days of these Orders being made.
18. The Mother and Father are to communicate about matters concerning Z in relation to school arrangements, medical appointments, counselling appointments and the like, solely and exclusively through the Parenting App.
19. Each parent shall inform the other as soon as practicable by phone of any significant illness or injury requiring hospitalisation suffered by any of the Children whilst they are in their respective care, along with the names of any treating medical, dental or allied health professional so that each parent may liaise with the same.
20. Subject to Orders 17 to 19, the parents are otherwise to communicate with each other only by email.
Miscellaneous
21. The Mother be and is hereby authorised:
(a) To contact School D or School E (as the case may be) or any other school that Z is enrolled at and have the Mother’s name recorded in the school’s enrolment records as being an emergency contact in relation to Z for the school, with all relevant contact details as required by the school. AND IT IS DIRECTED that the Mother be at liberty to produce a copy of these Orders to Z’ school, by way of such authorisation.
(b) To request from the Principal of any school attended by Z copies of school reports, newsletters, event notices, school photographs and the like at her respective cost. AND IT IS DIRECTED that either parent be at liberty to produce a copy of these Orders to Z’ school, by way of such authorisation.
22. Both parties be at liberty to attend Z’ school events including, but not limited to, parent teacher interviews and other events organised by the school.
23. Notwithstanding that the Mother has sole parental responsibility for X and Y, each parent is authorised to speak with any of X and Y’s treating medical or health professionals from time to time, including any treating specialist(s) as to X and Y’s diagnosis, prognosis and treatment. AND IT IS DIRECTED that either parent be at liberty to produce a copy of these Orders to the treating health professionals for X and Y, by way of such authorisation.
24. The Mother and the Father forthwith each enrol in and complete a Parenting Orders Program and provide proof of completion to the other parent and to the Independent Children’s Lawyer if appointed.
AND THE COURT ORDERS FURTHER THAT:
Appointment of Independent Children’s Lawyer
25. Pursuant to s.68L(2) of the Family Law Act 1975 (Cth) (Act) the children X, born 2003, Y born 2005 and Z born 2008 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 an 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’ is published at (http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccwweb/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.
(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 five business days before the trial.
26. Copies of the Child Inclusive Conference Memorandum to Court, dated 24 December 2020 (Child Inclusive Conference Memorandum), if accompanied by a copy of this Order, may be given to:
(a) Any Independent Children’s Lawyer in the proceedings.
(b) A child protection authority.
(c) A State or Territory legal aid authority.
AND that no person release the Child Inclusive Conference Memorandum, or provide access to the Child Inclusive Conference Memorandum to any other person.
27. The Father is to forthwith enrol in, attend and complete a Men’s Behaviour Change Program as recommended by the Family Advocacy and Support Service support worker at the Melbourne Registry of the Court (Telephone contact: 03 8373 7917).
28. The Father is to provide proof of completion of the Men’s Behaviour Change Program to the Mother and to the Independent Children’s Lawyer (if appointed).
29. Pursuant to s.68Q of the Act, to the extent that a family violence intervention order is inconsistent with these Orders, these Orders shall prevail.
AND THE COURT NOTES THAT:
A. If in any proceedings there are allegations of family violence and the provisions of s.102NA of the Act apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B. 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.
C. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D. If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
E. Pursuant to ss.65DA(2) and 62B of the Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
F. In the event of non-compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a) The filing of documents;
(b) The payment of any applicable filing, setting down, mediation or enforcement fee or fees; and/or
(c) Any other procedural issues;
The application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
G. To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial judge, or by another appropriate court officer, shortly prior to the final hearing date.
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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