Bateman & Bateman

Case [2021] FCCA 65


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
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…

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AGLC
Bateman & Bateman [2021] FCCA 65
Case
[2021] FCCA 65
Decision Date

CaseChat Overview and Summary

This case involved an urgent application in the National COVID-19 list concerning the parenting arrangements for three children, X (born 2003), Y (born 2005), and Z (born 2008). The mother sought the reinstatement of previous care arrangements for the youngest child, Z, and the return of an urgent Child Inclusive Conference. The eldest children, X and Y, resided with the mother and were estranged from the father, while Z had been subject to an equal shared care arrangement that was unilaterally altered by the father, leading to the separation of the siblings and a deterioration of their relationship. Allegations of family violence, parental alienation, and coaching by the father were raised, and the mother had obtained an interim intervention order.

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

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].

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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