BEHN & ZIOMEK
[2017] FamCA 847
•25 October 2017
FAMILY COURT OF AUSTRALIA
| BEHN & ZIOMEK | [2017] FamCA 847 |
| FAMILY LAW – CHILDREN – Where there is one child of the relationship – Where there are allegations of family violence by the mother against the father – Where there are allegations that the mother is alienating the child from the father – Where the father sought to vary previous orders to increase the time he spends with the child – Where the father sought orders to extend the block periods of time that the child spends with him over the 2017/2018 Christmas school holidays – Where the father sought that changeovers occur at a restaurant rather than a Police Station – Where it is not appropriate for the presumption of equal shared parental responsibility to apply – Section 60CC considerations – Court finds Police Station should to continue to be the location for changeover – Court finds that the father’s block time with the child over the 2017/2018 Christmas school holidays should be in block periods of no more than five nights – Orders made that, following the commencement of school, the child’s time with the father be from 5.00pm on Friday to 5.00pm on Sunday in week one and from 5.00pm on Friday until 5.00pm on Saturday in week two. |
| Family Law Act 1975 (Cth) ss 43, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA Family Law Rules 2004 (Cth) r 15.41, pt 15 |
| B and B (1993) FLC 92-357 SS v AH [2010] FamCAFC 13 Salah & Salah (2016) FLC 93‑713 Sigley v Evor (2011) 44 Fam LR 439 |
| APPLICANT: | Mr Behn |
| RESPONDENT: | Ms Ziomek |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
| FILE NUMBER: | NCC | 5 | of | 2014 |
| DATE DELIVERED: | 25 October 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 4 October 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fowler |
| SOLICITOR FOR THE APPLICANT: | Slater & Gordon Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Mr Cohen of David H Cohen & Co |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Kelso of Legal Aid New South Wales |
Orders
THE COURT ORDERS PENDING FURTHER ORDER THAT:
Order 2 of the orders made on 28 October 2016 be discharged.
The father is to spend time with the child, L born … 2012, as follows:
Until the commencement of school term in 2018:
(a)In week one (being the week commencing on Monday, 30 October 2017) and each alternative week thereafter, from 9.30am Friday to 4.30pm Sunday;
(b)In week two (being the week commencing on Monday, 6 November 2017) and each alternate week thereafter, from 9.30am Thursday to 4.30pm Friday;
(c)During January 2018 the time in week one is extended to conclude at 5.00pm Tuesday;
(d)From 12 noon on 24 December 2017 until 12 noon on 25 December 2017;
From the commencement of school in 2018:
(e)In week one and each alternate week thereafter, from 5.00pm Friday to 5.00pm Sunday;
(f)In week two and each alternate week thereafter, from 5.00pm Friday to 5.00pm Saturday;
(g)During the school holidays in 2018, the time in week one is extended to conclude at 5.00pm Tuesday; and
(h) At such other times as agreed between the parties in writing.
AND THE COURT NOTES THAT:
A. The matter remains listed for final hearing for 5 days commencing on 19 March 2018.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Behn & Ziomek has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: NCC 5 of 2014
| Mr Behn |
Applicant
And
| Ms Ziomek |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
Legal Aid New South Wales
REASONS FOR JUDGMENT
Introduction
This matter concerns an application for interim parenting orders concerning the parties’ only child, L born in 2012. The substantive hearing has been listed for a period of five days commencing 19 March 2018. The matter has been brought on urgently as a result of the father applying for orders regarding L’s school, in circumstances where L is to commence school at the beginning of 2018.
At the hearing on 4 October 2017, the father indicated that he did not press his application for interim orders concerning L’s schooling and acknowledged that it is appropriate for that matter to be dealt with at final hearing. The father did, however, press his application to vary current parenting arrangements which are in accordance with interim parenting orders that were made on 28 October 2016.
The orders that were made on 28 October 2016 provide that the father is to spend time with the child:
·in week one and each alternate week thereafter, from 9.30 am Friday to 4.30 pm Sunday, and in week two and each alternate week thereafter, from 9.30 am Thursday to 4.30 pm Friday;
·during January 2017, the time in week one is extended to conclude at 4.30 pm Monday;
·during the April school holidays in 2017 the time in week one is extended to conclude at 4.30 pm Tuesday; and
·from 12 noon on 24 December 2016 until 12 noon on 25 December 2016.
The orders made on 28 October 2016 provided for the issue of which school L is to attend to be determined at final hearing.
The application for variation of the interim parenting orders is made in the context of the parties’ broader dispute that will be considered at the final hearing. By way of summary, the broader dispute involves the following contentions.
The mother alleges that she has been the subject of coercive and controlling conduct by the husband that, if established, would constitute serious family violence. The mother contends that her parenting capacity has been adversely impacted by the father’s conduct. The mother further alleges that the child has witnessed the father’s conduct and, in the context of the physical illness and intellectual limitations affecting the child, the child becomes anxious when he is separated from the mother for a length of time that is more than a few days.
The father, on the other hand, alleges that the mother has taken every opportunity to obstruct the development of the child’s relationship with the father. This, he contends, has required him to file a number of applications in this Court. The father states that he has a close and loving relationship with the child and that the mother’s contentions regarding the child’s insecurity are unfounded. The father further contends that the child has a close and loving relationship with the father’s new partner and with the child of the father and his new partner.
Background
This is the fourth time that a judgment has been delivered in respect to matters that have arisen between these parties.[1] Each of those decisions deals with elements of the background to the parties’ dispute in the context of the issues that have been considered in those separate proceedings.
[1] See Behn & Ziomek [2014] FamCA 157, Behn & Ziomek [2015] FamCA 1185 and Behn & Ziomek [2016] FamCA 907.
For the purpose of these proceedings, the relevant background facts and, where disagreed, factual contentions of the parties, are summarised in the following table:
| DATE | EVENT |
| 1978 | Mr Behn (father) born, currently aged 39 years. |
| 1988 | Ms Ziomek (mother) born, currently aged 29 years. |
| 2008 | Parties marry and commence residing together in Australia. |
| 2012 | L born. L is currently aged 5 years and 2 months. |
| 27.02.2013 | Father was medically retired from the Australian Defence Force. |
| 18.06.2013 | Mother travelled to Germany for the purposes of a holiday. |
| 08.07.2013 | Parties separate. Mother remains residing in Germany. |
| 17.07.2013 | Mother alleges Father said to the Mother during a Skype conversation “I will have my son by the end of the year, legal or illegal, and you’ll never see him again.” |
| 20.09.2013 | Father commenced proceedings under the Hague Convention seeking return of L to Australia. |
| 05.11.2013 | Order made by German District Court that L to return from Germany to Australia. |
| 18.12.2013 | Mother appeals orders of 05.11.2013. Appeal listed for hearing. Parties enter into interim agreement for mother to return with L to Australia on or before 12.01.2014 and for L to spend time with the father. |
| 07.01.2014 | Father initiated proceedings in the Family Court in Newcastle seeking equal time arrangement for L and that, amongst other things, the parties be required to live no more than 50kms from each other. |
| 09.01.2014 | Mother returns with L to Australia. |
| 09.01.2014 – 24.02.2014 | The father does not spend any time with L. Father alleges mother’s non-compliance with interim agreement. |
| 28.01.2014 | Father filed Amended Application. Matter was listed before Registrar McFadden. It was determined that the Contravention Application the father wished to file was refused on the grounds that there were no current orders of an Australian Court to which a Contravention Application could apply. |
| 25.02.2014 | Family Court of Australia at Newcastle. The Honourable Justice Cleary made interim orders including: 1. The proceedings be transferred to the Sydney Registry. 2. The child live with the mother. 3. The child spend time with the father on 3 occasions each week and failing agreement they be on Tuesday, Thursday and Saturday as follows: 3.1 For a period of 2 weeks, from 10am to 12 noon. 4. Changeovers take place at B Contact Centre, Suburb C, unless agreed. 6. The father communicate with the child by Skype as agreed but failing agreement on Monday, Wednesday and Friday at 6pm for up to 10 minutes. |
| 25.07.2014 | The mother’s application for an AVO was listed for Hearing. |
| 18.08.2014 | The mother asserts that Ms Rof the V Centre expressed concerns that she was unable to guarantee the contact Centre’s staff safety if the Father is in the vicinity of their premises. |
| 23.09.2014 | Divorce order granted by the Federal Circuit Court at Sydney. |
| In or about November 2014 | L commenced attending speech therapy. |
| 12.11.2014 | Family Court of Australia at Sydney. Senior Registrar Campbell made Orders including: 1. Order 5 made 24/02/2014 is varied so changeovers are to occur at Suburb F Police Station. 2. The parties to provide to the ICL and each other a list of medical practitioners the child has attended on. 3. The parties to inform the ICL and each other of any changes to the child's medications and the medical practitioners the child attends on. 4. Each party attend a Parenting after Separation course. 5. Leave to the mother to redact her address and phone number from documents produced under subpoena. 6. The ICL may have access to the un-redacted documents. |
| 28.11.2014 | Father filed Application In a Case. |
| 05.03.2015 | Father filed Contravention Application. |
| 09.03.2015 | Family Court of Australia at Sydney. The Hon Justice Rees. Orders made including: 1. Orders 3 and 6 made 24/02/2014 be discharged. 2. The child spend time with the father as follows: (a) Week 1: (i) Tuesday 9.30am to 4.30pm. (ii) 9.30am Thursday to 4.30pm Friday. (iii) Skype on Monday and Wednesday at 6pm for up to 10 minutes. (b) Week 2: (i) Tuesday 9.30am to 4.30pm. (ii) 9.30am Saturday to 4.30pm Sunday. (iii) Skype on Monday and Wednesday at 6pm for up to 10 minutes (c) Other times as agreed. 3. The mother have Skype time with the child in week 1 on Thursday at 6pm for up to 10 minutes and in week 2 on Saturday for up to 10 minutes. 4. Each party provide to the other an emergency contact number within 7 days. |
| 29.06.2015 | Matter was listed before Justice Johnson when the following Orders were made: 1. That the father’s Contravention Application is adjourned to 10:00 am on 7 December 2015 for one day. 2. That the Court notes that the mother’s solicitor has informed the Court that the mother has achieved approximately 90 percent compliance with the order yet the father insists on a hearing date. |
| In or about September 2015 | The mother asserts that the Father unilaterally enrolled L to a preschool in Central Coast. |
| 07.12.2015 | McClelland J dismissed the father’s contravention Application filed on 5 March 2015 with costs of the hearing. |
| 02.03.2016 | Mother asserts that Father sent an email in relation to L seeing Dr J for nose bleeding, which reads “I do not consent to the mother attempting to cauteris our child L nose under any circumstance unless life threating.” |
| 18.04.2016 | Mother alleges that L had Skype communication with the Father when the following conversation occurred: Father said: "What did you do today?" L said: "I went to preschool." Father said: "Oh, thank you for telling me. I'm so happy you told me. Thank you. I'm going to pass that straight onto my solicitor." Mother said: "It's time to say bye, L." L said: "Bye Daddy." Father said: "Bye L. Enjoy your last night with your Mummy." |
| 19.04.2016 | Father attends at Suburb F Police Station to collect L. Mother does not attend. Provisional orders for AVO for the protection of the mother. L ceases spending time with the father. |
| 16.06.2016 | Father filed Contravention Application. |
| 20.07.2016 | Mother asserts Ms M, Speech Pathologist made recommendations that L is not suitable to commence school in 2017, due to L continuing to display immature behaviours in the recent therapy sessions. |
| 27.07.2016 | Mother filed Response to the Father’s Application In a Case, Notice of Risk and supporting Affidavit. |
| 29.07.2016 | Matter was listed before Registrar Campbell when the following Orders were made: 1. That the child L born … 2012 spend additional time with the father from 9:30 am Saturday 30 July 2016 to 4:30 pm Sunday 31 July 2016. 2. The Court notes the agreements of the parties as follows: 2.1 For the purposes of the orders made 9 March 2015 the week commencing 25 July 2016 and ending 31 July 2016 is “week one” and the week commencing 1 August 2016 and ending 7 August 2016 is “week two”. 2.2 The mother agrees to reinstate her facilitation of the current interim spend time with orders, forthwith. 2.3 The mother does not agree to reinstate the current interim orders for Skype Communication between the child and the parents. The father, without prejudice, agrees that the Skype Communication in the current interim orders will not take place between this date and the first day of the LAT unless agreed between the parties in writing. 2.4 The father agrees that if the mother complies with the current interim orders, save as to Skype Communication, and order 1 herein he will withdraw his Application- Contravention filed 16 June 2016 on the first LAT day and each party agrees they will pay their own costs of and incidental to that Application. 2.5 Either party may raise with the trial Judge on the first day of the LAT contravention or variation of Skype Communication. |
| 15.09.2016 | Matter was listed for LAT before Justice McClelland when the following Orders were made: 1. The matter is listed for interim hearing at 10.00 am on 19 October 2016 in respect to an Application in a Case which is to be filed by the father concerning the child spending time with the father during the school holidays, whether the child commences school in 2017 and the father’s objections to the subpoenas issued by the mother to Department of Defence and the Department of Veteran Affairs. 2. The father to file the Application in a Case referred to in Order 2 above together with an affidavit in support within 14 days of the date of these Orders. 3. The mother is to file a Response to the Application in a Case and affidavit in support within a further 14 days. 4. The father’s Contravention Application filed on 16 June 2016 is withdrawn and dismissed with no order as to costs. 5. The mother’s legal representative to inspect those documents produced under the subpoenas issued to the Department of Defence and the Department of Veteran Affairs to which there is no objection raised by the father in the adjourned period. |
| 19.09.2016 | An ADVO Order was made by consent for a period of 12 months, with additional Order 6 which provided the Father must not approach or contact the Mother by any means whatsoever except through the Father’s legal representative or as authorised by current Parenting Order under the Family Law Act 1975. |
| 29.09.2016 | Father filed Application In a Case and supporting Affidavit. |
| 11.10.2016 | Mother filed Response to Application In a Case and supporting Affidavit. |
| 28.10.2016 | Matter was listed before Justice McClelland in the Family Court when Orders were made as follows: 1. Orders 2 and 3 of the orders made on 9 March 2015 are discharged. 2. The father is to spend time with the child, [L] born … 2012 (“L”), as follows: a. In week one (being the week commencing on Monday 31 October 2016) and each alternate week thereafter, from 9.30 am Friday to 4.30 pm Sunday. b. In week two (being the week commencing on Monday 7 November 2016) and each alternate week thereafter, from 9.30 am Thursday to 4.30 pm Friday. c. During January 2017 the time in week one is extended to conclude at 4.30 pm Monday. d. During the April school holidays in 2017 the time in week one is extended to conclude at 4.30 pm Tuesday. e. From 12 noon on 24 December 2016 until 12 noon on 25 December 2016. f. At other times as agreed. 3. The issue of which school L will attend is to be determined at final hearing. |
| 27.07.2017 | Father files interim application. Seeking interim orders in respect to schooling and variation of parenting arrangements. |
| 13.09.2017 | Family Report of Ms O released. |
| 04.10.2017 | Matter listed for interim hearing before His Honour Justice McClelland. |
Competing applications
The father’s application
The father initially sought the following orders in his Application in a Case filed on 27 July 2017 and sealed on 3 August 2017:
1. That leave be granted to serve this Application short notice.
2. That both parties shall do all such acts and things, provide all necessary authorities and sign all such documents as may be required to cause the child named [L] born … 2012 to attend [Q School] commencing in the 2018 school year.
3. That Order 2 of the Orders made on 28 October 2016 be and is hereby discharged .
4. That the child shall spend time with the Father as follows:
Prior to the child commencing school:
(a) During school terms, in Week 1 from 9:30am Friday to 6:30pm Tuesday and in Week 2 from 9:30am Thursday to 6:30pm Friday;
(b) During one half of all school holiday periods with the child to live with the Father during the first half of the school holidays and with the Mother in the second half of the school holidays. For the purpose of this Order, the school holidays commence at the conclusion of school on the last day of the school term and end on the day before the first day of the new school term.
Upon the child commencing school:
(c) During school terms, the child shall live with the parents on a week-about basis at the Central Coast from after school Friday in Week I to before school Friday in Week 2 with the Father and with the Mother at the Central Coast from after school Friday in Week 2 to before school Friday the following week;
(d) During one half of all school holiday periods with the child to live with the Father during the first half of the school holidays and with the Mother in the second half of the school holidays. For the purpose of this Order, the school holidays commence at the conclusion of school on the last day of the school term and end on the day before the first day of the new school term.
5. In the event that the Mother does not relocate to the Central Coast then in the alternative to Order 4(c) hereof, the child shall live with the Father at the Central Coast and spend time with the Mother during school terms each alternate weekend from after school Friday to 6:30pm Sunday.
6. That notwithstanding Order 4 hereof, the child shall spend time with the Father on special occasions as follows:
(a) From 9:30am on Friday, 1 September 2017 to 4:30pm on Friday, 8 September 2017;
(b) From 6:00pm Christmas Eve to 6:00pm Boxing Day in each year;
(c) From 9:30am to 6:30pm on Father's Day.
7. That the Father's time with the child shall be suspended as follows:
(a) From 8:00am to 6:00pm on Christmas Eve each year;
(b) From 9:30am to 6:30pm on Mother's Day.
8. That Order 1 of the Orders made on 12 November 2014 be varied to provide that changeover occur at the child's school, once he commences primary schooling, or otherwise the Father shall collect the child from McDonalds Suburb S at the commencement of his time with the child and the Mother shall collect the child at Suburb F Shopping Centre at the cessation of the Father's time.
9. That these Orders may be varied with the consent of both parties in writing.
The mothers application
The orders sought by the mother in her case outline document were as follows:
1. That the Application In a Case filed by the Father on 27 July 2017 be dismissed.
2. That the Orders 2a and 2b made on 28 October 2016 be discharged.
3. That when [L] born … 2012 commences school in 2018, he spends time with the Father as follows:
i. Each alternative week from Friday 5:00pm to Sunday 5:00pm;
ii. In order to facilitate the Father’s time with L, changeovers are to occur at Suburb F Police Station.
4. Such further or other Orders the Court deems fit.
The Independent Children’s Lawyer’s proposed orders
The Independent Children’s Lawyer (“ICL”) proposed the following orders in the Outline of Case document:
1. That Order 2 orders made 28th October, 2016 continue until the commencement of the 2017/2018 Christmas school holidays.
2. That the father spend time with the child of the marriage namely [L] born … 2012 as follows:-
a. In the 2017/2018 Christmas school holidays for three block periods of seven days as follows:-
i. From 9.30 am 17th December to 5 pm 24th December, 2017.
ii. From 9.30 am 31st December, 2017 to 5 pm 7th January, 2018.
iii. From 9.30 am 14 January, 2018 to 5 pm 21 January, 2018.
b. Following commencement of school in week one (being the first weekend following the commencement of students commencing school) and each alternate weekend from completion of school Friday to 5 pm Sunday.
h. (sic) Such other times as agreed between the parties.
3. That L attend a school as chosen by the mother.
4. That the mother shall forthwith inform the school which L is to attend of the father full name, address and contact details and instruct the school to have the father included in any parent email list.
5. That the mother shall forthwith inform the father of the details of the school and provide to the father a copy of any any information provided by the school to the parents.
6. For the purposes of order 2(a) the father shall collect and return the child to the mother at the Suburb F Police Station.
7. That for the purposes of order 2(b) the father shall collect the child from the school on Friday and return the child to the mother at the Suburb F police station at the conclusion of this time.
Father’s amended proposal
After having the opportunity to consider the minute of order proposed by the ICL, the husband proposed a variation to the orders he was seeking based on the orders proposed by the ICL. Those revised orders were as follows:
1. That Order 2 orders made on 28th October, 2016 (and varied in chambers on 30 November 2016) continue until the commencement of the 2017/2018 Christmas school holidays save that it be varied to the effect that the time the child spends with the father shall conclude on each occasion at 5pm.
2. That the father spent time with the child of the marriage namely [L] born … as follows:-
(a) In the 2017/2018 Christmas school holidays for three block periods of seven days as follows:-
(i) From 5pm 24th December to 5pm 31st December, 2017.
(ii) From 9.30 am 7 January 2018 to 5pm 14th January, 2018.
(iii) From 9.30 am 21 January, 2018 to 5pm 28 January, 2018.
(b) Following commencement of school in week one (being the first weekend following the commencement of students commencing school) and each alternate weekend from completion of school Friday to commencement of school Monday, and in week 2 and each alternate week thereafter from after school Thursday to commencement of school Friday.
(c) Such other times as agreed between the parties.
3. That [L] attend a school chosen by the mother provided that before the mother chooses a school she shall provide to the father details of any school/s she proposes and consider any views provided by the father in writing within 14 days before making a decision.
4. That the mother shall forthwith inform the school which [L] is to attend of the father full name, address and contact details and instruct the school to have the father included in any parent email list.
5. That the mother shall forthwith inform the father of the details of the school and provide to the father a copy of any information provided by the school to the parents.
6. For the purposes of Order 2(a) the Father shall collect and return the child to the Mother at McDonalds Suburb F.
7. That for the purposes of Order 2(b) the Father shall collect the child from the school on Friday and return the child to the Mother at McDonalds Suburb F at the conclusion of his time.
Evidence
The father relied upon the following documents:
a)Application in a Case filed 3 August 2017;
b)Affidavit of Mr Behn filed 27 July 2017; and
c)Affidavit of Ms Z filed 27 July 2017.
The mother relied upon the following documents:
a)Response to Application in a Case filed 29 September 2017; and
b)Affidavit of Ms BB sworn and filed 29 September 2017.
The ICL relied upon the following documents:
a)Family Report of Family Consultant Ms O dated 13 September 2017.
parenting matters -The Law - Concepts and Principles
The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60B sets out the objects and principles of Part VII. These are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(4) notes that an additional object of Part VII of the Act is to give effect to the Convention on the Rights of the Child (“the Convention”).[2] Article 19 of the Convention requires parties to the Convention to take steps, including through “judicial involvement”, to:
protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
[2] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
The presumption of equal shared parental responsibility
Section 61DA(1) provides that the Court must apply a presumption that “it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”. Section 61DA(3) provides that:
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.
As I have earlier indicated, in these interim proceedings, the Court is unable to make findings of fact including in respect to the significant issues as to whether the father has engaged in conduct that constitutes family violence and, further, whether the mother has engaged in conduct that is intended to alienate the child from the father. In those circumstances, I do not consider that it is appropriate for the presumption of equal shared parental responsibility to apply at this stage of the proceedings.
It is therefore unnecessary to consider whether the child should spend equal or substantial and significant time with each parent in accordance with section 65DAA of the Act. In those circumstances, the Court’s task is to determine directly what orders are in the best interests of the children.
Paramount consideration in making parenting orders
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in section 65DAA.
Section 60CC sets out the list of matters that the Court must consider in determining what is in the child’s best interests. The primary considerations are set out in section 60CC(2). Those considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, section 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (section 60CC(2)(b)).
Additional Considerations
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. At this point it is sufficient to note that, broadly, those considerations deal with the following matters:
·Issues relating to the children – their views, level of maturity, culture and relationships.
·Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility.
·Issues of family violence.
·Effect of change.
·Practical difficulty of implementation of orders.
·Avoiding further proceedings.
·Other relevant matters.
Additional obligations in the context of allegations of family violence
Section 43 of the Act provides:
Principles to be applied by courts
(1) The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:
(a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;
(b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;
(c) the need to protect the rights of children and to promote their welfare;
(ca) the need to ensure protection from family violence; and
(d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.
(2) Paragraph (1)(a) does not apply in relation to the exercise of jurisdiction conferred or invested by Division 2.
Section 60CG provides:
Court to consider risk of family violence
(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Applying Section 60CC Considerations
In this matter, I refer to and adopt paragraphs 51 to 76 of my reasons for judgment dated 28 October 2016 wherein, insofar as it was possible in those interim proceedings, I addressed the relevant section 60CC considerations in respect to the circumstances of the parties as at that date.[3]
[3] Behn & Ziomek [2016] FamCA 907.
The father contends that the time specified in the orders made on 28 October 2016 for L to return to the care of his mother should be extended from 4.30pm until 5.00pm. The father contends that this variation should be made to provide for a period of transition to the subsequent orders that he proposes in respect to L spending block periods of time with his father in the holiday period.
The father’s reasons for proposing such a variation do not constitute a change in circumstances that justifies varying the orders made on 28 October 2016. In that respect I refer to Rice & Asplund[4] and the helpful discussion of the principles of that case as applied in subsequent cases by Macmillan J in Newton & Henzel [2016] FamCA 323 at paragraphs 12 to 18.
[4][1978] 6 Fam LR 570.
In a similar context, the father proposes that the father’s time with L commence at 5.00pm on Christmas Eve and extend until 31 December 2017. The reason for the father’s proposal is that he asserts that the mother adheres to the German tradition of celebrating Christmas on Christmas Eve. As indicated in my reasons for judgment delivered on 28 October 2016, the mother disputes this is the case. Accordingly, appropriate arrangements for the child to spend time with his parents at Christmas time will be a matter that requires determination at final hearing and I do not therefore propose to revisit the order that I made on 28 October 2016 in that respect.
Consistent with Banks and Banks,[5] I will consider the remaining proposed orders in the context of those section 60CC considerations that I am capable of considering at this stage of the proceedings. While I have considered each of the matters referred to in section 60CC, I will restrict my discussion to those which I consider to be relevant to these interim proceedings.
Issues Relating to the Children - Their Views, Level of Maturity, Culture And Relationships
[5] [2015] FamCAFC 36.
Any views expressed by the child
Section 60CC(3)(a) requires the Court to have regard to 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.
L is only five years old and, accordingly, L has not been questioned as to his wishes in respect to parenting arrangements. Nevertheless, both parties accepted that he has a close and loving relationship with both parents. The following extracts from the family report are relevant in that respect:
When [the father] entered the observation room, [L] immediately jumped up and greeted him enthusiastically with a warm hug and kiss. [L] appeared to be very comfortable with his father.[6]
…
The observation of [L] with his father would indicate that they have a mutually positive and loving relationship.[7]
….
L did not resist spending time with [the father] during the family assessment and the observation of [L] and his father would indicate that he clearly loves his father and their relationship appears to be robust.[8]
The nature of the relationship of the child with each of the child’s parents and other persons
[6] Family Report dated 12 September 2017 at [66].
[7] Ibid.
[8] Ibid at [77].
Relationship with parents
Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.
As I have indicated, both parties acknowledged that L has a close and loving relationship with both of his parents. The father also contends that L has a close and loving relationship with the father’s new partner and their child. For the purposes of these interim proceedings I assume that is also the case.
The maturity, sex, lifestyle and background of the child and either of the child’s parents
Section 60CC(3)(g) requires the Court to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
This issue is particularly relevant in determining whether there should be, as proposed by the father, an increase in the amount of time at L spends with him during the forthcoming 2017/2018 Christmas school holiday period.
The father contends that the period of time that the child spends with him during the Christmas holiday period should be extended from five days to seven days. In so contending, the father disputes the mother’s contentions that the child suffers from separation anxiety. I will subsequently discuss that issue in greater detail.
In my decision dated 28 October 2016, I noted that there will be an issue, to consider at final hearing, as to whether L has any intellectual and or behavioural challenges.
Annexure E to the mother’s affidavit dated 29 September 2017 attaches a report of Ms DD who is a child psychologist. The child was referred to Ms DD by the child’s treating general practitioner Dr FF. By way of summary, that report provided the following diagnoses:
·L has below average intellectual ability.
·L has impaired adaptive behaviours.
·L has difficulties with working memory.
·L has difficulty with processing information presented non-verbally including in respect to visual spatial skills.
·L has difficulties with fluid reasoning which means he may have difficulty solving problems, applying logical reasoning and understanding complicated concepts.
At the interim hearing I reserved, for future determination, the issue as to whether the report of Ms DD is admissible as a treating practitioner’s report pursuant to Rule 15.41 of the Family Law Rules 2004 (Cth) (“the Rules”). The issue as to the admissibility of reports from treating doctors and therapists will be determined at the final hearing. Accordingly, at this stage of the proceedings, I do not propose to have regard to Ms DD’s opinion in respect to those matters.
As I indicated in my decision of 28 October 2016, the mother contends that L has difficulty in being separated from her. At paragraph 21 of her affidavit dated 29 September 2017, the mother states:
(ii) [L] has been having great difficulty coping in this situation. [L] is usually very unsettled, confused and in high need of reassurance when he returns home from spending time with [the father]. By way of example, on or about 6 April 2017, after [L] returned home at 4:30pm, [L] was very confused and kept on saying to me “Can you be my Mummy? I want you to be my Mummy, please.”… [L] behaved in this manner for a couple of days and he went to and from a highly anxious state. As soon as [L] would settle down, he would return to an anxious state. [L] and I created a book with photos of us, where [L] helped to glue the photos of different ages of [L] to assist his distress and to enable him to feel stable. We also had story time reading books by Rosie Greening like ‘hippo is happy’ and ‘sheep is scared’ and ‘the great big book of feelings’ by Mary Hoffan and Ros Asquirth to help [L] better understand and deal with his emotions, confusion and his up and down behaviour and anxious reverted clingy state.
(iii) [L’s] behaviour has become more extreme and prolonged on his return to me from the time he spent with [the father] since the time period has become longer. On or about 14 – 19 April 2017, [L] spent additional time with Shane during the school holidays. Upon [L’s] return to me, [L] was emotionally not stable. [L] was constantly worried about me leaving him. [L] would often feel the need to be close to me the whole time, sitting on my lap, holding my hand, frequently asking for cuddles and to be carried. [L] also had difficulty controlling his emotions and displayed unusually strong emotional responses to everyday kind of situations. On or about 18 April 2017 in the evening, I asked [L] to go and brush his teeth, as it is part of his normal bedtime routine. [L] started crying, screaming and stomping his foot on the ground. I took me several minutes to settle [L] to brush his teeth and continue with his bedtime routine. After I tucked [L] into bed and told him a bedtime story it was time for me to turn the light off and leave [L’s] room. [L] got very upset, holding on to me tightly, begging me to stay saying the words to the effect “Please stay Mummy. Don’t go. Please stay.” I stayed with [L] until he was asleep to help him feel secure and have a peaceful night of sleep.
At paragraph 7 of his written submissions, counsel for the father contended:
…This is inconsistent with the observations made by and the opinion expressed by Mr. [HH], psychologist, who has seen [L] on two occasions, including on 18 April 2017 after [L] had spent four nights and almost 5 days with the father. Mr. [HH] expressed the opinion that [L] presented as “well settled” and “he displayed no signs of missing his mother or fearing separation from his father” and that [L] does not display “clinically significant anxiety”. Mr. [HH] also opined that it is a perfectly normal response for a child of [L’s] age to exhibit some signs of some difficulty with adjustment to a shared custody arrangement.[9]
[9] Reference was made to Annexure I to the Father’s Affidavit dated 27 July 2017 at pages 39 – 40.
Counsel for the father submitted that the Court could appropriately have regard to the views expressed by Mr HH in his report as the report, he contended, is in the nature of a report form a treating therapist and therefore admissible pursuant to rule 15.41 of the Rules.
Once again, at the interim hearing, I reserved for determination at the final hearing the question as to whether the report of Mr HH is admissible pursuant to part 15 of the Rules. Accordingly, I do not propose to have regard to the report of Mr HH at this interim stage of the proceedings.
In summary, there is an issue to be determined at the final hearing as to L’s ability to cope with spending time away from his mother. Taking a cautious approach in these interim proceedings, I therefore reject the father’s proposal to extend the block periods of time that L spends with him over the forthcoming Christmas holidays from five nights to seven nights.
In those circumstances, the orders that I propose will be consistent with the orders I made on 28 October 2016 in respect to the Christmas 2016/2017 holiday period as extended by the amount of time that applied during the April 2017 school holiday period.
The culture of the child if the child is Aboriginal or a Torres Strait Islander
Section 60CC(3)(h) requires the Court to consider issues pertaining to the culture of the child if the child is Aboriginal or Torres Strait Islander.
This consideration is not relevant.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility
Long term decision making, time and communication
Section 60CC(3)(c) requires the Court to consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.
At this interim stage of the proceedings there is insufficient information to enable me to make a determination in respect to this issue.
The parent’s obligations to maintain the child
Section 60CC(3)(ca) requires the Court to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
In this matter, the father is not paying child support although he indicates a willingness to do so. The mother contends that she has not sought child support because she does not want the father to become aware of her place of residence.
This matter will require further consideration at final hearing.
The capacity of each of the child's parents
Section 60CC(3)(f) requires the Court to consider the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.
There is insufficient information available at this interim stage of the proceedings to enable the Court to make a determination in respect to this consideration.
Attitude and parental responsibility
Section 60CC(3)(i) requires the Court to consider the attitude to the child, and parental responsibilities, by each of the child’s parents.
As noted, the father contends that the mother has acted irresponsibly in engaging in conduct the purpose of alienating the child from him. The mother, on the other hand, alleges that the father has engaged in conduct that constitutes family violence and that there have been occasions on which L has witnessed that conduct.
At this interim stage of the proceedings I am unable to make a determination in respect to these competing factual contentions.
Issues of family violence
Any family violence involving a child or a member of the child’s family
Section 60CC(3)(j) requires the Court to consider any family violence involving a child or a member of the child’s family.
As noted, in the family report it is recorded that the mother alleges that she has been subject to conduct on the part of the father that, if established, would constitute serious family violence.
The mother has previously contended that she has not sought child support from the father for reasons that include her concern about the father becoming aware of her place of residence. The mother contends that if the father becomes aware of the school that the child attends it will make it easier for him to find out where the mother lives. In these interim proceedings, I am not in a position to determine whether or not the mother’s concerns are well-founded.
I note, however, that section 43 and section 60CG of the Act require the Court to have regard to the need to protect a person from being exposed to family violence.
At this stage of the proceedings, I am not in a position to determine whether or not the mother’s allegations do or do not have substance. Accordingly, once again, taking a cautious approach, at this interim stage of the proceedings, I do not propose making orders that require the mother to consult with the father in respect to the school that the child attends or to make an order that results in the father being informed of where that school is. On that basis, I do not propose making orders 3, 4, 5, 6 or 7 that were proposed by the father and supported by the Independent Children’s Lawyer.
Whether any family violence order has or continues to apply
Section 60CC(3)(k) requires the Court to consider any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
On 19 September 2016 an Apprehended Domestic Violence Order was made in which the mother was identified as a protected person in respect to the father. The father contends that order was made by consent and no inferences should be drawn from the fact that it was so made.
In these interim proceedings there is an absence of information regarding the circumstances in which the order was made. Accordingly, I do not propose to have regard to this consideration in these interim proceedings.
Effect of change
Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
L will commence school in 2018. This, in itself, will represent a significant change for him. All parties were in agreement that it is necessary to vary the orders that were made on 28 October 2016 in order to accommodate the time that L will be spending at school. The variation of these orders will also represent a significant change for L.
I am concerned that if it is the case, as contended by the mother, that L experiences anxiety in being separated from her, that he may similarly suffer anxiety in being separated for the purpose of attending school.
As there will only be a relatively short period of time between the completion of the 2017/2018 Christmas holiday period and the hearing of this case, consistent with a cautious approach being taken in interim proceedings, I am of the view that it would be preferable for L to be taken to and picked up from school by the one parent. In this case that parent should be his mother because she is his primary carer.
This will provide a period of time for L to adjust to attending school. Appropriate post-hearing arrangements can be considered at the final hearing of this matter.
In these interim proceedings, I therefore do not propose to make the orders sought by the father, which were supported by the Independent Children’s Lawyer, for the changeover of L spending time with one parent to the other, to occur at L’s school.
Practical difficulty of implementation
Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The most significant issue in respect to the practical difficulty of implementation of the parenting arrangements is in respect to changeover.
In this matter, the mother contends that the father’s conduct gave rise to difficulties in utilising the services of a contact centre as the location of changeover. As a result, the mother contends that it has been necessary for changeover to occur at the Suburb F Police Station in accordance with orders that were originally made by Senior Registrar Cameron on 12 November 2014.
The father contends, however, that changeover at the Suburb F Police Station has exposed L to witnessing incidents where members of the public have engaged in antisocial behaviour. The solicitor for the wife acknowledged that there was a potential for such events to occur at a police station.
Nevertheless, the mother contends that, as result of concerns she has about being exposed to conduct that she alleges constitutes family violence, that changeover should continue to occur at the Suburb F Police Station. Again, taking a cautious approach in these interim proceedings, the Court finds it is appropriate for Suburb F Police Station to continue to be the location for changeover.
Avoiding further proceedings
Section 60CC(3)(l) requires the Court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
These are interim proceedings and, accordingly, this consideration is not relevant.
Other relevant matters
Section 60CC(3)(m) requires the Court to consider any other facts or circumstances the Court considers relevant.
There are no other relevant matters that I have taken into consideration in these proceedings.
Primary considerations
Meaningful relationship
In this matter, both parties acknowledge that it is in the children’s best interests to have a meaningful relationship with both parents in terms of section 60CC(2)(a) of the Act. I accept that to be the case. In Sigley v Evor (2011) 44 Fam LR 439, the Full Court confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child”.[10]
[10] Citing Mazorski & Albright [2007] FamCA 520 at [26].
At paragraph 83 of the Family Report, the Family Consultant notes that “young children require frequent contact with both parents to maintain established relationships”.
I have had regard to that opinion in rejecting the mother’s proposal for L to spend only one block period per fortnight with his father after the commencement of the 2018 school year.
I therefore propose to make orders that will result in L spending an equivalent number of nights with his father as were specified in the orders made on 28 October 2016. To facilitate L attending school on Friday, however, the time in week two will be moved from Thursday evening to Friday evening.
In making that order, I recognise that it does not provide for L to spend one full weekend with his mother nor does it provide an opportunity for the father to be engaged with L’s school and his education. However, as I have previously indicated, there is a relatively brief period of time between L commencing school and the final hearing of this matter and those issues can be further considered at that hearing.
Unacceptable risk
Determining whether a child would be at an unacceptable risk with a parent involves a balancing exercise. In B and B (1993) FLC 92-357 at 79,778, the Full Court described the task of determining whether a child would be at an unacceptable risk in spending time with a parent as being to “achieve a balance” between the risk of detriment to the child from abuse and “the possibility of benefit to the child from parental access.” Specifically, the Full Court said it is necessary to determine whether “that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access”.
In M v M (1988) 166 CLR 69 the High Court said at paragraph 78:
To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of [harm].
Writing extra-judicially, Hon. John Fogarty AM, a former Judge of this Court said:
… unacceptable risk in the High Court’s formulation [in M v M] requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.[11]
[11] Hon. John Fogarty AM in ‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249 at 261.
Where an unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm.[12]
[12] Stott & Holger and Anor [2017] FamCAFC 152 referring to (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67]).
If a determination is made that such a risk exists the Court is then required to consider whether that unacceptable risk can be ameliorated by safeguards.[13]
[13] Bennett and Bennett (1991) FLC 92-191 at 78,267.
In the article by the Hon. John Fogarty to which I have referred, his Honour wrote:
The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’… (emphasis added).
In interim proceedings, it is difficult to identify unacceptable risk and determine whether reasonable safeguards can mitigate against that risk. In Cowling v Cowling (1998) FLC 92-801 at paragraph 18 the Full Court said, in respect to interim proceedings:
Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.
Despite the limitations on the Court’s ability to make findings in respect to controversial facts, the Court is not relieved of its obligation to consider risk. In that respect as in SS v AH,[14] the majority of the Full Court (Boland and Thackray JJ) said:
… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[14] [2010] FamCAFC 13 at [100], see also Keats & Keats [2016] FamCAFC 156 at [9] and Salah & Salah (2016) FLC 93‑713 at 81,516 – 81,517 [39] – [40].
It is to be observed that the reference, by the Full Court in SS v AH,[15] to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk,[16] as long as there is a proper basis for those “possibilities”.
[15] Ibid.
[16] Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.
As previously noted, in this matter, the mother alleges that she has been the subject of coercive and controlling conduct on the part of the father that constitutes family violence. The mother contends that there is a risk that L will be exposed to such controlling and coercive conduct, on the part of the father, in the future. The mother does not, however, contend that L is at risk of physical harm in the care of his father.
The mother further contends that she has been psychologically impacted by the alleged family violence to which she alleges she has been exposed. This, in turn, the mother contends, has impacted upon her parenting ability and has the potential to impact upon her parenting ability in the future. This, she contends presents a risk to L.
On the other hand, as noted, the father contends that the mother is engaging in conduct that alienates L from him and this also presents a psychological risk to L.
As noted in the Family Report, these matters are complex and will require detailed consideration of the parties’ competing factual contentions at final hearing. While I am not in a position to make findings in respect to the parties’ contentions, the contentions have provided the context in which I have taken a cautious approach in these interim proceedings.
orders
By way of summary, the orders that I make in these proceedings are to replace order 2 of the orders I made on 28 October 2016, with an order that provides that the amount of time L spends with his father in week one during January 2018 is extended to conclude at 5.00pm on Tuesday.
The order will also vary the spend time arrangements from the commencement of school in 2018 so that L’s time with his father commences at 5.00pm on Friday and extends to 5.00pm on Sunday in week one and, in week two, extends from 5.00pm on Friday until 5.00pm on Saturday.
For all these reasons I make the orders as set out at the commencement of these Reasons for Judgment.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 25 October 2017.
Associate:
Date: 25 October 2017
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