Bateman & Bateman
[2021] FCCA 65
•21 January 2021
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: AMS v AIF (1999) 199 CLR 160
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 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 ( 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.
IT IS NOTED that publication of this judgment under the pseudonym Bateman & Bateman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C. E. KIRTON QC:
Introduction
This is an Interim decision in relation to a parenting proceeding that was filed in the National COVID-19 List on 21 December 2020 in relation to the children X, born 2003 (X), Y born 2005 (Y) and Z born 2008 (Z) (together the Children). The Applicant is the Mother of the Children and the Respondent is the Father of the Children.
The Father alleges that the Mother is the perpetrator of family violence against Z and that Z is fearful of returning to the Mother’s care. Z had been living in an equal time arrangement with the parties. It is not in dispute that Z has not spent any time with the Mother since 22 November 2020. The Mother alleges that the Father is refusing to facilitate a meaningful relationship with Z and the Mother, and that Z wants to return to living with both parents.[1] X and Y both live with the Mother.
[1] Orders 23.12.20, Notations D, G, H and I.
Issues to be Determined
The following interim parenting issues are in dispute between the parties:
(a)The allocation of parental responsibility for X and Y.
(b)Who the Children should live with.
(c)The time the Children should spend with the parent with whom they are not living.
(d)Whether changeover should take place at the McDonalds’ Restaurant, corner of A Street and B Street, Suburb C.
(e)Whether the Father should enrol in and complete a men’s behaviour change program.
(f)Whether Z should be required to attend counselling with a counsellor of the Mother’s choice.
Synopsis
I have determined that:
(a)The Mother have sole parental responsibility for X and Y, subject to a requirement to consult with the Father prior to making a decision.
(b)X and Y live with the Mother.
(c)Z spend increasing time with the Mother and return to a shared care living arrangement with the Mother and the Father on a week about basis from the end of the first week of Term 2 2020.
(d)X and Y spend time with the Father in accordance with their wishes.
(e)Changeover take place at the McDonalds’ Restaurant, corner of A Street and B Street, Suburb C, when changeover is not taking place at Z’ school.
(f)The Father be ordered to enrol in and complete a men’s behaviour change program.
(g)The issue of Z attending a Counsellor be deferred until an Independent Children’s Lawyer is appointed unless the parties reach a mutual agreement earlier.
Background
The Mother was born in Australia on 1974 and is 46 years of age.[2] The Father was born on 1976 in Australia and is 44 years of age.[3] The parties commenced cohabitation in 2000 and married on 14 January 2001.[4] The parties separated on 18 August 2019 after a relationship of some 19 years.[5]
[2] Application for Consent Orders, filed 4.11.20, Part A, at [4].
[3] Application for Consent Orders, filed 4.11.20, Part A, at [4].
[4] Application for Consent Orders, filed 4.11.20, Part B, at [6] and [7].
[5] Application for Consent Orders, filed 4.11.20, Part B, at [8].
The Mother is employed full time as a manager in social services.[6] During the marriage the Mother was the main carer of the Children.[7] The Father is a sales professional and is a manager of a business in an outer suburb of Melbourne.[8] During the marriage the Father worked full time.
[6] Application for Consent Orders, filed 4.11.20, Part A, at [2]; and Affidavit of the Mother dated 17.12.20 and filed 21.12.20 (Mother’s 21 December 2020 Affidavit) at [8].
[7] Affidavit of the Mother dated and filed 5.1.21 (Mother’s 5 January 2021 Affidavit) at second paragraphs [1]-[2].
[8] Application for Consent Orders, filed 4.11.20, Part A at [2] and Part H at [46]; and Mother’s 5 January 2021 Affidavit at second paragraph [2].
There are three children of the relationship X, born 2003 now aged 17, Y born 2005 now aged 15 and Z born 2008 now aged 12. At the time the parties separated X was aged 16, Y was 14 and Z was 11.
After separation on 18 August 2019 the parties had an informal agreement where Z lived with the Mother on Wednesday, Thursday and Friday and on alternate Saturday nights, being 7 nights over a 14 day period.[9] When Melbourne entered its first lockdown in late March 2020, the parties changed this arrangement, as the Mother’s workplace in social services was a high risk environment due to the pandemic. The Mother therefore agreed to Z living with the Father and spending each weekend with the Mother from Friday to Sunday evening, as well as to Z having dinner with the Mother on Wednesday evenings.[10]
[9] Mother’s 21 December 2020 Affidavit at [7].
[10] Mother’s 21 December 2020 Affidavit at [8].
By October 2020 when the pandemic restrictions were eased in Melbourne, the Father only allowed Z to spend Friday and Saturday nights with the Mother. Z was also not allowed to contact or talk with the Mother.[11] By the end of October 2020 the Father only permitted Z to spend one night a week with the Mother on Fridays.[12]
[11] Mother’s 21 December 2020 Affidavit at [9].
[12] Mother’s 21 December 2020 Affidavit at [11].
The last occasion that the Mother saw Z was when the Father picked Z up from the Mother’s home on 22 November 2020.[13]
[13] Mother’s 21 December 2020 Affidavit at [13].
After the parties separated, X lived with the Father for a period of two months and spent time with the Mother. X then returned to live with the Mother.[14]
[14] Mother’s 5 January 2020 Affidavit at second paragraph [7].
Y also lived with the Father for a period of two months after the parties separated on 18 August 2019. During this two month period Y was not allowed to contact the Mother. The Father also changed Y’s school from School F to School G without consulting the Mother.[15] Y spent 6 weeks over the 2019/2020 summer school holidays living with the Father and lived with him for the first term of 2020.[16]
[15] Mother’s 5 January 2021 Affidavit at [42]-[43].
[16] Mother’s 5 January 2021 Affidavit at second paragraph [10].
X and Y both now live full time with the Mother and are not spending any regular time with the Father.[17]
[17] Child Inclusive Conference Memorandum, dated 24.12.20 at [24]; Mother’s 21 December 2020 Affidavit at [6].
On 21 July 2020 the Mother obtained an Interim Intervention Order at the Magistrates’ Court at Suburb H on the application of a member of the Victoria Police (Interim Intervention Order).[18] The Father was named as the respondent in the Interim Intervention Order and the Mother as the protected person. The Interim Intervention Order was made after the Father repeatedly sent abusive emails to the Mother and called her multiple times and verbally abused her.[19]
[18] Mother’s 21 December 2020 Affidavit at [19] and Annexure “A”.
[19] Mother’s 21 December 2020 Affidavit at [19]; Mother’s 5 January 2021 Affidavit at [72] and Annexure “A1-5”.
Procedural History
This proceeding was initially commenced by the Father filing an Application for Consent Orders on 4 November 2020 seeking final property orders (Application for Consent Orders). At the time the Application for Consent Orders was filed the Father was represented by Lander and Rogers and the Mother was self-represented. The Application for Consent Orders stated that X and Y were in the primary care of the Mother and that Z was in the primary care of the Mother and the Father.[20]
[20] Application for Consent Orders Part D at [20].
On 22 December 2020 final property Orders by consent were made by a Registrar of the Court (22 December 2020 Final Property Orders). The Application for Consent Orders contains the following notation on the form:
IF THE CHILD DOES NOT SPEND EQUAL TIME WITH EACH OF THE PARENTS IDENTIFY THE PERSON WITH WHOM THE CHILD LIVES MOST OF THE TIME.[21]
[21] Application for Consent Orders Part D at [20].
Prior to the 22 December 2020 Final Property Orders being made, the Father did not amend the Application for Consent Orders to indicate that Z was not spending equal time with the Mother and the Father as required by the Application for Consent Orders Court form.
On 21 December 2020 the Mother filed an Initiating Application (Initiating Application) and applied for the Initiating Application to be listed in the National COVID-19 List. The Mother also filed an affidavit on 21 December 2020[22] (Mother’s 21 December 2020 Affidavit). The Mother’s 21 December 2020 Affidavit was not witnessed at the time of signing by the Mother due to the COVID-19 restrictions and was filed with the Court in accordance with the Joint Practice Direction 2: JPD of 2020 – Special Measures in response to COVID-19 Electronic filing, Viewing of Subpoenas, Annexures to Affidavits, Signatures on Documents to Affidavits, and Fees (Joint Practice Direction 2). At the time the Mother filed the Initiating Application and the Mother’s 21 December 2020 Affidavit she was self-represented.
[22] Mother’s 21 December 2020 Affidavit.
In the Initiating Application the Mother seeks Interim Orders that may be summarised as follows:
(a)Z be returned to live with the Mother.
(b)Z spend such time with the Father as is ordered by the Court.
(c)Y and X live with the Mother and spend time with the Father in accordance with their wishes.
(d)The parties and the Children attend upon a Family Consultant for a Child Inclusive Conference.
The Mother seeks to particularise the final parenting orders that she will request the Court to make after interim parenting Orders are made.
On 21 December 2020 the Mother also filed a Notice of Child Abuse, Family Violence or Risk (Mother’s Notice of Child Abuse, Family Violence or Risk).
On 23 December 2020 the Mother filed a Notice of Address for Service which indicated that she was represented by the Springvale Monash Legal Service.
The Initiating Application was listed for hearing on 23 December 2020 via videoconference before Senior Registrar McGrath at the Sydney Registry. Ms Videion, Solicitor, appeared on behalf of the Mother and the Father was self-represented.
The Senior Registrar made the following notations on the Orders made on 23 December 2020:
A. This is the first return date of this matter in the National COVID-19 List.
B. This matter is allocated to the docket of Judge McNab.
C. The parties separated at the end of 2019.
D. The child, Z (aged 12) had been living in an equal time arrangement with the parties. The two elder children, X (aged 17) and Y (aged 15) both live with the Mother.
E. There is an Interim Intervention Order in place against the Father for the protection of the Mother which was Orders by the Magistrates Court of Victoria at Suburb H on 20 August 2020.
F. The Mother works in social services and by agreement, and due to the Mother being a frontline worker and at a potentially higher risk of exposure to COVID-19, the parties agreed to vary the parenting arrangements for the child to live primarily with the Father, and to spend significant and substantial time with the Mother.
G. It is not in dispute Z has not spent any time with the Mother since 22 November 2020.
H. The Father alleges that the Mother is the perpetrator of family violence against Z and that she is fearful of returning to the Mother’s care.
I. The Mother alleges that the Father is refusing to facilitate a meaningful relationship with Z and the Mother, and that the child wishes to return to live in with both parents.
J. The Mother proposed interim time for the child to spend time with her at Christmas, and the Father indicated that the child was with him on the call when he was appearing before the Court and she indicated to him that she did not wish to spend time with the Mother at Christmas. The Father requested that it be noted that the child indicated her wish not to spend time with the Mother.
K. The Senior Registrar asked that the Father remove the child from the room where he was taking the call to appear before the Court, and reminded the parties that children are not to be present whilst the matter is before the Court, under any circumstances.
Senior Registrar McGrath made Orders on 23 December 2020 which may be relevantly summarised as follows:
(a)The Initiating Application was adjourned to 7 January 2021 at 10:00 am before myself for directions and possible interim defended hearing.
(b)The Father to file and serve a Notice of Address for Service by no later than 4:00 pm on 23 December 2020.
(c)The Father to file and serve a Response setting out with precision the interim and final orders sought, an affidavit and any other document required by the Federal Circuit Court Rules 2001 (Cth) no later than 4:00 pm on 5 January 2021.
(d)Pursuant to s.11F of the Family Law Act 1975 (Cth) (Act) the parties were directed to attend with a Family Consultant for the purpose of a Child Inclusive Conference at the Melbourne Registry on 24 December 2020.
(e)The Department of Health and Human Services (Victoria) (DHHS) and Victoria Police were directed pursuant to s.69ZW of the Act to provide documents and information (Section 69ZW Order).
The Father failed to file a Notice of Address for Service in accordance with Order 2 of the Senior Registrar’s Orders made on 23 December 2020.
On 24 December 2020 the parties and Z participated in a Child Inclusive Conference with Family Consultant I at the Melbourne Registry. X and Y were not interviewed during the Child Inclusive Conference. Due to the restrictions in Victoria due to the COVID-19 pandemic the Child Inclusive Conference interviews were conducted via videoconference on Microsoft Teams. Family Consultant I prepared a Child Inclusive Conference Memorandum to the Court, dated 24 December 2020 (Child Inclusive Conference Memorandum). The Child Inclusive Conference Memorandum was prepared before a response was received from DHHS in relation to the Section 69ZW Order made by Senior Registrar McGrath on 23 December 2020.
On 31 December 2020 DHHS provided it’s Response pursuant to the Section 69ZW Order (Section 69ZW Response).
On 4 January 2021, I made an Order in Chambers concerning the inspection and photocopying of the Section 69ZW Response by the parties and any ICL appointed.
The Mother filed a second affidavit on 5 January 2021,[23] which was filed pursuant to Joint Practice Direction 2 (Mother’s 5 January 2021 Affidavit).
[23] Mother’s Affidavit dated and filed 5.1.21.
On 6 January 2021 the Father filed a Response (Response). The Response indicated that the Father was self-represented. The Father seeks the following as final orders:
1. Z to remain 100% in my custody ongoing, or until such time as she wants to, and feels safe and comfortable, to stay at her mother’s house.
2. X and Y to have a formal agreement to their care/custody, agreed to by us as parents. Their wishes to be taken into account but them not to be forced to choose between parents themselves.
3. To be consulted in all decisions and matters for all 3 children, medical education, incidents regarding police or other authorities; prior to any decisions being made.
The Father did not seek any interim orders in the Response.
The Father filed an affidavit on 6 January 2021,[24] which was filed pursuant to Joint Practice Direction 2 (Father’s Affidavit). On 6 January 2021 the Father also filed a Notice of Child Abuse, Family Violence or Risk.
[24] Father’s Affidavit dated 4.1.21 and filed 6.1.21.
The proceeding came before me on 7 January 2021 as an interim defended hearing (Interim Defended Hearing). The Mother was represented by Ms Videion, Solicitor and the Father was self-represented. The Interim Defended Hearing took place by video conference on Microsoft Teams however the Father appeared by audioconference only. After hearing submissions, Interim Judgment was reserved.[25]
PROPOSALS OF THE PARTIES
[25] Order 1, Orders 7.1.21.
Mother’s Proposal
The Mother’s proposed interim orders are contained in a Minute of Proposed Orders that was emailed to my Associates on 6 January 2021 by the Mother’s solicitor (Mother’s Minute of Proposed Orders).[26] The Mother’s Minute of Proposed Orders may be summarised as follows (Mother’s Proposal):
[26] Applicant’s Exhibit 3.
(a)Z live with the Father.
(b)X and Y live with the Mother and spend time and communicate with the Father in accordance with their wishes and will contact him to facilitate this.
(c)The Mother have sole parental responsibility for X and Y and the Mother will inform the Father regarding major decisions about their education and health.
(d)The Mother and the Father have equal shared parental responsibility for Z.
(e)Z spend time with the Mother as follows:
(i)On Saturday 9 January 2021 from 10:00 am to 5:00 pm;
(ii)On Saturday 16 January 2021 and Sunday 17 January 2021 from 10:00 am to 5:00 pm on each day;
(iii)On Saturday 23 January 2021 from 10:00 am to Sunday 24 January 2021 at 5:00 pm;
(iv)Commencing Friday 29 January 2021 from after school or 4:00 pm to Monday at the commencement of school or if a non-school day 9:00 am and each alternate weekend thereafter;
(v)From Wednesday 3 February 2021 from after school or 4:00 pm the following Thursday at the commencement of school or if a non-school day 9:00 am each week, in addition to the time spent in sub-paragraph (iv);
(vi)The first half of the school term holidays from Thursday 1 April 2021 after school or 4:00 pm to Thursday 8 April 2021 at 4:00 pm;
(vii)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 of a non-school day at 9:00 am and each alternate week thereafter.
(f)When Z is living with the Father he must make sure that Z’s mobile phone is charged and available for the Mother to call her each Tuesday and Thursday when she is not in the Mother’s care between 5:00 pm and 6:00 pm.
(g)Z can if she wishes, phone her Mother from her mobile phone at any other time or text message her.
(h)The Father must give Z privacy for any phone calls with the Mother.
(i)The Father be permitted to communicate with X and Y via text or email.
(j)Changeovers take place at Z’ school or the McDonalds, corner of A Street and B Street, Suburb C.
(k)When Z is in her Mother’s care the Mother ensure that she is appropriately supervised when Y is at home.
(l)The parties must not discuss these proceedings or any parental concerns between the parents with Z and must not denigrate members of the family to her.
(m)The parents must refrain from passing messages or communicating through Z about parenting arrangements.
(n)The Mother be authorised to contact School D School (or any other school Z is enrolled at) and have her name on the enrolment form for Z as the parent, the emergency contact with her mobile phone number and email address.
(o)The Mother be authorised to receive all school notices, events and invitation to parent-teacher interviews and the like.
(p)The Mother be authorised to attend any school functions.
(q)Z attend the counsellor Ms J at K Road, Suburb L and the parents give their consent for her to attend. If consent is not given by either party, Ms J be authorised to treat Z.
(r)The Father attended a men’s anger management or men’s behaviour change program and provide a certificate of completion to the Mother.
(s)The parents enrol in and complete a parenting order program.
(t)The parents communicate about Z through a family ‘app’ such as Our Family Wizard. The communication to include school arrangements medical appointments counselling appointments and the like.
(u)The parents to communicate with each other by email only.
(v)If there is a medical emergency for any of the Children, the parent they are living with will immediately notify the other parent by phone.
(w)Appointment of an Independent Children’s Lawyer.
(x)A Family Report pursuant to s.62G of the Act be prepared at least 35 days prior to a final hearing to include all the Children.
(y)The matter be adjourned for mention in early May 2021.
Documents Relied on by the Mother
The Mother relied on the following documents:[27]
(a)The Initiating Application;
(b)The Mother’s 21 December 2020 Affidavit;
(c)The Mother’s Notice of Child Abuse, Family Violence or Risk;
(d)The Mother’s 5 January 2021 Affidavit;
(e)The Child Inclusive Conference Memorandum; and
(f)The Section 69ZW Response.
[27] Transcript P3:L44-P4:L45.
At the Interim Defended Hearing the Mother affirmed that the contents of the Mother’s 21 December 2020 Affidavit and the Mother’s 5 January 2021 Affidavit were true and correct to the best of her knowledge and belief. [28] The Mother made a correction to paragraph 54 of the Mother’s 5 January 2021 Affidavit.[29] The Mother’s 21 December 2020 Affidavit and the Mother’s 5 January 2021 Affidavit were each tendered by the Mother’s Solicitor into evidence.[30]
[28] Transcript P5:L25-P6:L23.
[29] Transcript P6:L6-19.
[30] The Mother’s 21 December 2020 Affidavit is Applicant’s Exhibit 1; and the Mother’s 5 January 2021 Affidavit is Applicant’s Exhibit 2.
Father’s Proposal
The Response sought no interim orders, notwithstanding Senior Registrar McGrath’s Order that the Father file a Response “setting out with precision the interim and final orders sought”.[31] The Father has therefore put no interim proposal to the Court. Prior to the Interim Defended Hearing the Father had received a copy of the Mother’s Minute of Proposed Orders by email on 6 January 2021. In relation to the Mother’s Proposal, the Father opposes paragraphs (b), (c), (e)(i) to (vii), (j), (q) and (r).[32]
[31] Orders 23.12.20, Order 3.
[32] Transcript P16:L32-P20:L33.
Documents Relied on by the Father
The Father relied on the following documents:[33]
(a)The Response;
(b)The Father’s Affidavit.
[33] Transcript P15:L6-13.
At the Interim Defended Hearing the Father deposed that the contents of the Father’s Affidavit were true and correct to the best of his knowledge and belief.[34] The Father’s Affidavit was tendered into evidence.[35]
[34] Transcript P15:L15-P16:L13.
[35] Father’s Affidavit is Respondent’s Exhibit 1.
RELEVANT LEGAL PRINCIPLES
The principles governing the Court’s decision in this proceeding are set out in Part VII of the Act. The Court in determining this application must consider what orders are in the Children’s best interests: s.60CA of the Act. What this means is individual cases are determined by a number of statutory provisions.
The objects of Part VII of the Act are set out in s.60B(1) and assist in clarifying what Part VII aims to achieve to ensure that the best interests of children are met. There are also principles that underlie these statutory objects: s.60B(2).
Section 65D of the Act gives the Court power to make a parenting order which is defined by s.64B(1).
In determining what is in the Children’s best interests the Court must consider the matters set out in s.60CC of the Act. Section 60CC sets out the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the Children. Each of those matters where relevant must be considered and assessed in the context of the respective proposals. The Court must then determine which of the proposals is in the Children’s best interests.
The Court is not bound by the parties’ respective proposals (AMS v AIF[36] and U v U[37]).
[36] (1999) 199 CLR 160.
[37] (2002) 211 CLR 238.
In applying the primary considerations the Court is to give greater weight to the considerations set out in s.60CC(2)(b): s.60CC(2A).
The Full Court in Goode v Goode[38] mandated that the legislative pathway must be followed in all parenting cases and set out the procedural steps to be followed in interim proceedings.[39] It was noted by the Full Court that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.[40]
[38] (2006) 36 Fam LR 422.
[39] Ibid 445, at [81]-[82].
[40] Ibid 445, at [82].
In Marvel v Marvel[41] the Full Court made the following obiter comments:
[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 […][42]
[41] (2010) 43 Fam LR 348.
[42] Ibid, at [120].
In Keats & Keats[43] the Full Court held in respect of interim proceedings:
[9] […] 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.[44]
[43] [2016] FamCAFC 156.
[44] Ibid, at [9].
An interim hearing is therefore by its very nature a curtailed hearing. Evidence is limited and the matter is decided on the papers.
I will first consider the primary considerations of the Act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford,[45] Mazorski & Albright[46] and McCall & Clark.[47]
[45] [2013] FamCA 33.
[46] (2007) 37 Fam LR 518.
[47] (2009) FLC 93-405.
The Mother has deposed:
The father has refused to allow Z to have a relationship with me or the boys and has not demonstrated he has the capacity to facilitate that relationship.[48]
[48] Mother’s 5 January 2021 Affidavit at [76].
The Father has deposed:
Z has told me that she gets questioned a lot about me by her mother yet gets yelled at for talking about me and what we do. She says that she does not feel comfortable with her mother.[49]
[49] Father’s Affidavit at [20].
In the Child Inclusive Conference Memorandum the Family Consultant reported:
21.[…] Z expressed that she would like to have a relationship with [the Mother], however struggled to manage this sometimes. Z explained that this was due to [the Mother] regularly discussing her father with negative connotation with her, which made her uncomfortable.
[…]
25.Z has been through substantial changes in the last 14 months and likely has been exposed to significant adult conflict. Z would benefit from having a positive relationship with both her mother and her father. Z would benefit from re-establishing a relationship with her mother at this point in time. Considering both parties have demonstrated limited willingness to negotiate care arrangements, the court may consider providing a relatively structured timetable re-introducing Z and [the Mother] to spending time together, this could potentially negate some future conflict between the parties.
(Emphasis added).
I therefore conclude that it is in Z’ best interest to have a meaningful relationship with both of her parents. The Mother’s Proposal is consistent with the recommendation in paragraph 25 of the Child Inclusive Conference Memorandum.
As noted above X and Y were not interviewed during the Child Inclusive Conference.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
On 21 July 2020 the Mother obtained the Interim Intervention Order at the Magistrates’ Court at Suburb H on the application of a member of the Victoria Police.[50]
[50] Mother’s 21 December 2020 Affidavit at [19] and Annexure “A”.
In the Child Inclusive Conference Memorandum the Family Consultant reported:
2.[The Father] reported that the parties’ relationship deteriorated to a point in which there were regular arguments occurring in the family home. However, [the Father] denied allegations that he was abusive in any form towards [the Mother]. […]
3.Conversely, [the Mother] reported that the parties’ relationship was categorised by emotional abuse, perpetrated by [the Father]. She advised that she would feel constantly under pressure to ensure [the Father] was not upset or angered in the home. She expressed that this resulted in a significant power in-balance between the parties in which she did not feel safe to question or challenge [the Father]. [The Mother] stated that there was no physical abuse during the relationship, however [the Father] would become physically heightened during arguments, which included him damaging property when he was angry.
4.Both parties acknowledged that during their relationship the children were exposed to conflict and verbal arguments in the family home.
(Emphasis added).
I otherwise refer to the discussion in relation to s.60CC(3)(j) and (k). The Father’s family violence directed towards the Mother is otherwise detailed in the Mother’s Notice of Child Abuse, Family Violence or Risk.[51]
Z
[51] Mother’s Notice of Child Abuse, Family Violence or Risk at [35].
The Mother has not seen Z since 22 November 2020.[52] The Father refused to make any arrangements for Z to spend any time with the Mother prior to the issue of this proceeding or over the Christmas period, claiming that Z did not want to spend time with her Mother.[53]
[52] Mother’s 21 December 2020 Affidavit at [13].
[53] Mother’s 21 December 2020 Affidavit at [22] and Annexure “B”; and Mother’s 5 January 2021 Affidavit at first paragraphs [7]-[10].
The Mother deposed that Z has never told her that she feels unsafe at home with her. Z had been contacting the Mother regularly via Snapchat using an alias until the first Court date on 23 December 2020. Z has also secretly telephoned the Mother in the middle of the night and she also messaged the Mother before Christmas to say that she wanted to go Christmas shopping with her.[54]
[54] Mother’s 5 January 2021 Affidavit at first paragraphs [13]-[15].
In the Child Inclusive Conference Memorandum the Family Consultant reported:
22.There have been significant changes for Z in a short period of time including the separation of her parents, who is providing primary care for her and how much time she is spending with the other parent. This has required a number of adjustments on Z’ behalf, potentially resulting in feelings of uncertainty regarding her care. Z would benefit from reassurance from the adults in her life that her needs are being prioritised above the adult conflict and issues occurring. This requires no further exposure to adult conflict or issues with both parties demonstrating they are motivated to work towards structured, predictable, child focused arrangements for Z.
23.Z presented as highly in-tune with the current conflict between the parties and expressed a level of distress in saying something that would upset or disappoint one of her parents. This likely indicates that Z has been placed in a position of split loyalty between the two parties where she potentially feels guilt for expressing her wishes and feelings freely. Further to this Z appears to have taken on responsibility for the emotional well-being of her parents, wanting to keep both of them happy. This potentially puts Z in a position in which safeguarding her parents’ feelings takes precedence to her own. If this is the case, this is an inappropriate amount of responsibility and pressure for a 12 year old girl. Moving forward Z would benefit from both parties being mindful that Z likely wants to please both of them. Should this be her priority, her own emotional needs and well-being may come secondary to this which could be harmful.
The Section 69ZW Response concludes:
No information was obtained from Z’ school to suggest that she expressed feeing unsafe in the care of [the Mother].[55]
At this time, the Department holds no information to say that Z is at unacceptable risk in the care of [the Mother] or [the Father]. […] [the Mother] has been appropriate in her responses to Y when he has become aggressive, by intervening and seeking professional help/support. The Department believe that [the Mother] is therefore fulfilling her parental duties to keep her children safe and support their emotional wellbeing.[56]
Y
[55] Section 69ZW Response at p.2.
[56] Section 69ZW Response at p.3.
The Mother deposed that during the marriage Y had challenging behaviours and that the Father would react to these behaviours by becoming aggressive. The Father:
[…] smashed Y’s phone and was angry and emotionally and psychologically abusive towards him, calling him names including a “sissy”.[57]
[57] Mother’s 5 January 2021 Affidavit at [47].
In August 2020 the Father threatened to report Y to the police for “stealing” a laptop computer which was a family laptop. The Father had previously given the laptop to Y. The Father also told Y that he was a “Mummy’s boy” for staying with the Mother. The Father proceeded to report the theft of the laptop to the police. The Mother attended the Suburb L police station and made a statement that the laptop was given to Y for school and that he had not stolen anything from the Father. Y was so distressed by the Father’s threat to report him to the police that the Mother had to engage support services for Y.[58]
[58] Mother’s 21 December 2020 Affidavit at [20] and Mother’s 5 January 2020 Affidavit at [50]-[60].
At Christmas dinner 2020, at the paternal grandparents’ home, the Father was hostile and denigrated Y. The Father told Y he would never hire him after Y told him he wanted to be a sales professional like him.[59]
[59] Mother’s 5 January 2020 Affidavit at [12].
There is no evidence before the Court that Z is at risk of psychological or emotional harm in the care of the Mother. Taking into account the matters discussed in relation to s.60CC(2)(a), there is evidence before the Court that Z will be at risk of emotional and psychological harm if she does not recommence spending time with her Mother. There is evidence before the Court that Y is at risk of emotional and psychological harm from the Father.
The additional considerations are set out in s.60CC(3) of the Act. I will now consider the additional considerations which are relevant for this interim Judgment.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
Z
In the Child Inclusive Conference Memorandum the Family Consultant reported:
Z is a 12 year old girl who presented as engaging and articulate.[60]
[60] Child Inclusive Conference Memorandum at [19].
I otherwise refer to and repeat the matters discussed in relation to s.60CC(2)(a).
The Father has persistently maintained that Z does not want to spend time with her Mother and that she does not feel safe at her Mother’s home. I propose to place limited weight upon any views that Z has expressed and be guided by the observations and recommendations of the Family Consultant in the Child Inclusive Conference Memorandum.
Y
Adoh was in Year 10 at School G in 2020. He will be 16 in 2021. Y now lives full time with the Mother. Apart from Christmas Day dinner 2020, Y last spent time with the Father in August 2020.[61] At 15 Y is at an age where his views on where he would prefer to live and the time he would like to spend with the parent with whom he is not living should be given weight by the Court.
X
[61] Mother’s 5 January 2020 Affidavit at first paragraph [11].
X is in Year 12 at School F and turns 18 in 2021. He did well in Year 11, undertaking two Year 12 subjects. The Mother has deposed that in November 2020 after the Father refused to allow Z to return to live with her, X offered to stay with Z at the Father’s home in the hope that the Father would let Z return to live with the Mother. When X went to live with the Father, he asked the Mother to pick him up half an hour later. X told the Mother he was uncomfortable staying with the Father.[62]
[62] Mother's 5 January 2021 Affidavit at first paragraph [12].
X now lives full time with the Mother. At 17 X is at an age where his views on where he would prefer to live and the time he may wish to spend with the parent with whom he is not living should be given significant weight by the Court.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
Each of the child's parents
In relation to Z, I refer to the discussion in relation to s. 60CC(2)(a).
The Mother deposed that she had always had a close mother-daughter relationship with Z and that Z had always been comfortable in confiding in her about school, friends and other issues.[63]
[63] Mother’s 5 January 2021 Affidavit at [27].
The Father’s relationship with X and Y appears to be deeply troubled. I refer to and repeat the matters discussed in relation to s.60CC(2)(b) in relation to Y. After X and Y started living full time with the Mother, the Father cut off their mobile phone plans and he refused to contribute financially to their care.[64] More recently the Mother took X and Y to see the Father for Christmas dinner at the paternal grandparents’ house. The Father gave them no Christmas presents. X and Y left the paternal grandparents’ house after an hour. They told the Mother they left because the Father was hostile and denigrated Y. Y told the Mother that he was “done” after what the Father had said to him at Christmas dinner.[65]
Other persons (including any grandparent or other relative of the child)
[64] Mother's 5 January 2021 Affidavit at [25].
[65] Mother's 5 January 2021 Affidavit at [11]-[12].
This is not a relevant consideration.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
Participation in making decisions about major long-term issues in relation to the child
The Mother
In the Mother’s Proposal the Mother seeks Interim Orders that she have sole parental responsibility for X and Y and that she will inform the Father regarding major decisions about their education. The Mother also seeks equal shared parental responsibility for Z.
The Father
The Father has made unilateral decisions in relation to the Children and sought to exclude the Mother from participating in making decisions about long term issues in relation to the Children.
After the parties separated on 18 August 2019 the Father withdrew Y from School F and enrolled him in School G without consulting the Mother.[66] The Father enrolled Y in year 11 and 12 physical education notwithstanding Y’s lack of interest in physical education and his difficulties with school.[67]
[66] Mothers 5 January 2021 Affidavit at [42]- [43].
[67] Mothers 5 January 2021 Affidavit at [44]-[46].
The Father refused to allow Z to attend School N where she was enrolled for 2021 in Year 7. The Father contacted School N and told the school that she would not be enrolled there. On 20 July 2020 the Father sent an email to the Mother that included the following:
After I sell I will then be able to work out where I will be living in the world and then I will organise Z’s high school.
[…] she won’t be going to the shit holes you want her to go to!
And it will be where I am living. Which at this point will be nowhere near here or you.[68]
[68] Mother’s 5 January 2020 Affidavit at [72] and Annexure “A1-5”.
The Father completed an enrolment form for School D[69] for Z instead, without consulting the Mother. In late November 2020 the Father sent an enrolment form for School D home with Z and told Z that the Mother had to sign the form. The paternal grandmother was listed as the emergency contact for Z on the enrolment form and not the Mother. The Father told the school that Z lived full time with him.[70]
[69] The Mother’s 5 January 2021 Affidavit refers to School E at [22] and School D at [23], [24] and [26]. At the Interim Defended Hearing the Court was informed by the Solicitor for the Mother that this was the same school but in fact these are separate schools. For the purposes of these Reasons for Judgment the school will be referred to as School D.
[70] Mother’s 5 January 2021 Affidavit at [20]-[22].
It is not evident how the Father intends to be able to afford Z’ fees for School D. The Application for Consent Orders discloses that the Husband has an income of $465 a week.[71] The Mother has deposed that the fees for School D are $27,000 per annum.[72] The Father is not paying child support for X and Y.
Opportunity to spend time and communicate with the Child
[71] Application for Consent Orders at Part H at [38].
[72] Mother’s 5 January 2021 Affidavit at [26].
The Mother has consistently sought to spend time with Z since October 2020. The Father has consistently refused to allow Z to spend time and communicate with the Mother since 22 November 2020.
Section 60CC(3)(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;
The Father has refused to financially contribute to X and Y’s care because they are living with the Mother. The Mother has deposed that she has an exemption from Services Australia from being required to apply for child support because of the Father’s family violence.[73]
Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Either of his or her parents
[73] Mother’s 5 January 2021 Affidavit at [25].
In relation to Z, I refer to the discussion in relation to s.60CC(2)(a).
In relation to Y, I refer to the discussion in relation to ss.60CC(2)(b) and 60CC(3)(a) and 60CC(3)(b).
Any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
In the Child Inclusive Conference Memorandum the Family Consultant reported:
24.Z has two older brothers who reside with [the Mother]. Both parents advised that the boys are not currently spending any time with their father, therefore should Z not spend time with her mother, she also will not be seeing her brothers. Sibling relationships should be promoted wherever safe and possible. Concerns have been raised regarding Y, and some anti-social behaviours in the home. [The Mother] however reported he is now being support[ed] professionally and his behaviours have settled. If possible, Z would likely benefit from spending some time with her brothers when she is at [the Mother’s] home. With [the Mother] safeguarding Z from being exposed to any drug use, violence or other anti-social behaviours when in her care.
(Emphasis added)
I conclude that unless Z commences to spend time with the Mother, she will continue to experience emotional and psychological harm and that the relationship between Z and the Mother will deteriorate. I also conclude that unless Z commences to spend time with X and Y the sibling relationship between Z and her brothers will deteriorate. The Mother’s Proposal promotes Z’ relationship between her Mother and her brothers.
I conclude on the evidence presently before the Court that any change in the current arrangements between Y and the Father could cause detriment to Y. Until such time as the Court has expert evidence before it in relation to Y and has recommendations from an Independent Children’s Lawyer, the status quo should therefore be maintained. The Mother’s Proposal achieves this objective.
I conclude on the evidence presently before the Court that any change in the current arrangements between X and the Father may cause detriment to X. Until such time as the Court has recommendations from an Independent Children’s Lawyer as to what X’s wishes are in relation to where he lives and spending time with the Father, the status quo should therefore be maintained. The Mother’s Proposal achieves this objective.
Section 60CC(3)(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including the emotional and intellectual needs;
Each of the child’s parents
The Mother
During the marriage the Mother was the main carer of the Children.[74]
The Father
[74] Mother’s 5 January 2021 Affidavit at second paragraphs [1]-[2].
During the marriage the Father’s involvement was taking X and Y to their sports and coaching. He did not usually attend parent teacher interviews.[75]
[75] Mother’s 5 January 2021 Affidavit at second paragraphs [1].
The Father has demonstrated a significant inability to provide for Z’ emotional needs by not facilitating Z spending any time with her Mother or any form of communication with her Mother, since 22 November 2020. The Father also prevented, or attempted to prevent the Mother from attending significant end of primary school events for Z, using the Interim Intervention order as the pretext. These events were Z’ graduation from primary school on 10 December 2020 and last day of school festivities on 18 December 2020.[76]
[76] Mother’s 21 December 2020 Affidavit at [15]-[16].
The Father has also demonstrated inability to provide for Y’s emotional and intellectual needs by reason of the matters discussed in relation to ss.60CC(2)(b), 60CC(3)(a) and 60(3)(b).
Any other person (including any grandparent or other relative of the child)
This is not a relevant consideration.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I refer to and adopt the discussion in relation to ss.60CC(2)(a) and 60CC(2)(b).
The Father demonstrated a significant failure of responsibility as a parent on 23 December 2020 by allowing Z to be present during the hearing before Senior Registrar McGrath. The Mother deposed that during the hearing when Z was present the Father:[77]
(a)Commented to the Senior Registrar that he suspected that some of the Children “were not my own”.
(b)Repeatedly stated that Z felt unsafe in the Mother’s care.
(c)Said to the Registrar “she doesn’t want to go, you can ask her she’s right here”.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
[77] Mother’s 5 January 2020 Affidavit at first paragraphs [8]-[10].
On 21 July 2020 the Mother obtained the Interim Intervention Order at the Magistrates’ Court at Suburb H on the application of a member of the Victoria Police.[78] The Father was named as the respondent and the Mother as the protected person.
[78] Mother’s 21 December 2020 Affidavit at [19] and Annexure “A”.
In relation to Y I refer to and repeat the matters referred to in ss.60CC(2)(a) and 60CC(3)(b).
Section 60CC(3)(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:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
The nature of the order
I refer to and adopt the matters set out in relation to s.60CC(3)(j).
The circumstances in which the order was made
The Interim Intervention Order was made in circumstances where the Father repeatedly emailed the Mother abusive messages and called her on her mobile up to 30 times a day and abused her.[79] In paragraph 72 of the Mother’s 5 January 2021 Affidavit the Mother set out some examples of the Father’s abusive emails. The Mother annexed these emails to her 5 January 2021 Affidavit as Annexure “A1-5”. The Father’s emails are written in response to politely written emails from the Mother between 9 June 2020 and 22 August 2020. The Father responded in a dictatorial, aggressive, threatening and profoundly derogatory manner. The hallmark of the Father’s emails to the Mother was to refer to the Mother repeatedly as a “cunt”.
[79] Mother’s 21 December 2020 Affidavit at [19]; Transcript P7:L40-41. Mother’s 5 January 2021 Affidavit at [67]-[72].
The Father’s abusive emails and texts commenced after the Mother moved out of the former matrimonial home. I do not otherwise propose in this Judgment to set out the contents of the emails that the Father sent to the Mother, other than to say that the Father greatly demeaned himself by sending such correspondence.
Any evidence admitted in proceedings for the order
There was no evidence before the Court of any evidence admitted in the proceedings involving the Interim Intervention Order before the Magistrates’ Court at Suburb H.
Any findings made by the court, or in proceedings for, the order
There was no evidence before the Court of any findings in the proceedings involving the Interim Intervention Order before the Magistrates’ Court at Suburb H.
Any other relevant matter
In the Mother’s Proposal an order is sought that the Father attend and complete a men’s behaviour change program. During the Interim Defended Hearing I asked the Father what his response was to this proposal and his response was an emphatic “Absolutely not”.[80]
[80] Transcript P19:L38-46.
In my view taking into account the matters discussed in ss.60CC(2)(b), 60CC(3)(b), 60CC(3)(j) and 60CC(3)(k) it is appropriate for an order to be made that the Father attend and complete a men’s behaviour change course. The family violence that the Father has participated in is precisely what such courses are targeting.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant;
Changeovers
The Father objected to the changeover location proposed in the Mother’s Proposal (when not taking place at Z’ school), being the McDonalds’ Restaurant, corner of A Street and B Street, Suburb C. The Father offered no alternative location but complained that the proposed changeover location was too convenient to the Mother’s residence.[81]
[81] Transcript P20:L16-23.
In the absence of any alternative proposal by the Father for changeover an order will be made in accordance with the Mother’s Proposal, subject to any other agreement in writing between the parties.
Counselling for Z
The Family Consultant recommended that Z undertake therapeutic support which would provide Z with independent professional support.[82]
[82] Child Inclusive Conference Memorandum at [30].
The Father objected to the Mother’s suggestion of the counsellor referred to in the Mother’s Proposal. The Father did not object to Z undertaking therapeutic counselling, however he was concerned that he did not get a choice of which counsellor it was to be. The Father said that he would jointly pay for such counselling.[83]
[83] Transcript P19:L19-34.
The choice of a therapeutic counsellor for a child is an important decision. Each parent should have the opportunity to provide their opinion in relation to the selection of the counsellor. In this case, I intend to request Victoria Legal Aid to appoint an Independent Children’s Lawyer (ICL) for the Children. It is to be expected that the ICL will assist the parties to expeditiously arrange for a mutually agreed counsellor for Z. In these circumstances I decline to make the orders sought in paragraph (q) of the Mother’s Proposal.
Equal Shared Parental Responsibility
Section 61DA of the Act provides that 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. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child. The presumption can be rebutted if it is otherwise not in the best interest of the child for the child’s parents to have equal shared parental responsibility.
Section 61DA of the Act provides as follows:
(1)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.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3)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.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In this case the Mother’s Proposal seeks:
(a)Sole parental responsibility for X and Y, with the Mother to inform the Father about major decisions about their education and health. The Father opposes the Mother’s Proposal and seeks equal parental responsibility for X and Y.
(b)The Mother and the Father have equal parental responsibility for Z. The Father agrees with the Mother’s Proposal.
I determine that it is not in X and Y’s best interests pursuant to ss.60CA and 60CC(1) of the Act for the parents to have equal shared parental responsibility and that the presumption in s.61DA(1) does not apply for the following reasons:
(a)The presumption does not apply pursuant to s.61DA(2) of the Act, on the basis that there are reasonable grounds to believe that the Father has engaged in abuse of Y (s.61DA(2)(a)) and also engaged in family violence (s.61DA(2)(b)); and
(b)The presumption does not apply pursuant to s.61DA(3) of the Act, on the basis that the Court is making interim orders and it is not appropriate in the circumstances for the presumption to be applied.
Considering first s.61DA(2)(a) of the Act, I refer to and rely on the discussion in relation to ss.60CC(2)(b) and 60CC(3)(b) of the Act in relation to the Father’s psychological and emotional abuse of Y. Therefore pursuant to s.61DA(2)(a) of the Act, the presumption of equal shared parental responsibility does not apply, on the basis that there are reasonable grounds to believe that the Father has engaged in abuse of Y.
Considering s.61DA(2)(b) of the Act, I refer to the discussion in relation to ss.60CC(3)(j) and 60CC(3)(k) of the Act. Therefore pursuant to s.61DA(2)(b) of the Act, the presumption of equal shared parental responsibility does not apply, on the basis that there are reasonable grounds to believe that the Father has engaged in family violence.
Considering s.61DA(3) of the Act, I take into account the nature of the abusive and extremely derogatory emails that the Father sent to the Mother, as discussed in relation to s.60CC(3)(k). I also take into consideration that, on the evidence presently before the Court, X and Y are presently estranged from the Father, live with the Mother and are not spending any time with the Father. I also take into account that in the Child Inclusive Conference Memorandum the Family Consultant reported:
Both parties clearly indicated that they currently have a hostile relationship, reporting no faith in the other’s capacity to negotiate, or establish a positive and appropriate co-parenting partnership.[84]
[84] Child Inclusive Conference Memorandum at [17].
Therefore pursuant to s.61DA(3) of the Act, the presumption of equal shared parental responsibility does not apply for the purposes of these interim orders, as I determine it is not appropriate for the presumption to apply.
Orders will be made for the Mother to have sole parental responsibility for X and Y. I intend however to include in the Orders an obligation on the Mother to make a genuine effort to consult with the Father and come to a joint decision if possible. Orders will also be made providing the Father with authority to speak with any of X and Y’s treating medical or health professionals from time to time.
Statutory Pathway
As I have found that there is no equal shared parental responsibility pursuant to s.61DA of the Act for X and Y, there is no requirement for mandatory consideration of equal time or significant and substantial time pursuant to s.65DAA of the Act in relation to X or Y: s.65DA(1) of the Act. I therefore determine that it is in X and Y’s best interests pursuant to ss.60CA and 60CC(1) of the Act that they spend time and communicate with the Father in accordance with their wishes.
The parties have however consented to interim equal shared parental responsibility in relation to Z.
Where the parents have equal shared parental responsibility for a child, sub-ss.(1)-(5) inclusive of s.65DAA of the Act requires the Court to consider the child spending equal time, or substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:
Equal time
(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
As there is to be an interim order for equal shared parental responsibility for Z, I am now required to address the statutory pathway as set out in s.65DAA(1) – (5).
Equal Time with Both Parents
It is not in dispute between the parties that Z had been living in an equal time arrangement between the parties since the parties separated.[85] The Mother’s Proposal provides for a graduated return to Z spending equal time with both of her parents, commencing at the end of the second week of Term 2 2021.
[85] Orders 23.12.20, Notation D.
I consider that Z spending equal time with each of her parents is in Z’ best interests: s.65DAA(1)(a). The Father lives in Town M and the Mother lives in Suburb C. No argument was advanced by the Father as to why Z should not return to spending equal time with each of her parents, other than his claims that Z was fearful of the Mother, did not want to see her Mother and was at risk in the Mother’s household. I therefore consider that Z spending equal time with each of her parents is reasonably practicable: s.65DAA(1)(b).
Therefore I will make interim Orders for Z to spend equal time with both parents in accordance with the Mother’s Proposal.
Consideration and Conclusion
In considering this interim decision I have adopted a conservative approach that is not likely to cause harm to the Children, as suggested by the Full Court for interim matters in Marvel v Marvel.[86]
[86] (2010) 43 Fam LR 348, at [120].
I have followed the legislative pathway as required by Goode v Goode[87], to the extent that I have been able, given that this is an interim case and the evidence is untested by cross-examination.
[87] (2006) 36 Fam LR 422, at [81]-[82].
I have considered each of the primary considerations in s.60CC(2) and accorded greater weight to the considerations set out in s.60CC(2)(b). I have also considered each of the additional considerations in s.60CC(3), to extent that they are relevant to this interim decision. For the reasons set out herein, I have accepted the orders sought in the Mother’s Proposal, save for the appointment of a counsellor for Z. I determine that Interim Orders in accordance with the Mother’s Proposal are in the best interests of the Children, as required by s.60CA of the Act. Orders will be made accordingly.
In relation to the further conduct of this proceeding I have not made any procedural orders other than to confirm the return date of the proceeding in the Duty List before the docket Judge. In accordance with Joint Practice Direction 1 of 2021 – The COVID-19 List procedural orders will be made by the docket Judge.
I certify that the preceding one hundred and thirty four (134) paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C. E. Kirton QC. Associate:
Dated: 21 January 2021
Key Legal Topics
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Family Law
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Procedural Fairness
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