Benson & Jeffreys

Case [2024] FedCFamC1F 709

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Benson & Jeffreys [2024] FedCFamC1F 709

File number(s): MLC 15240 of 2023
Judgment of: SMITH J
Date of judgment: 2 October 2024
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Oral reasons – Where the Senior Judicial Registrar made orders for interim change of residence – Where the children are living with the father – Where the mother is to have supervised time and communication – Where the mother sought a reversal of those orders – Where the mother raises allegations of family violence – Principles on interim hearings – Where the court cannot make findings of fact – Where the current orders promote the best interests of the children – Where the assessed possible risks of psychological harm from the mother outweigh the possible risks of family violence by the father – Application dismissed.
Legislation:

Evidence Act 1995 (Cth) Pt 3.3, s 79

Family Law Act 1975 (Cth) Pts I, VII, ss 4, 60B, 60CA, 60CC, 61B, 61C, 61D, 61DAA, 61DAB, 64B, 65AA, 65D, 65DAAA
Cases cited:

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Dasreef Pty Ltd & Hawchar (2011) 243 CLR 588; [2011] HCA 21

Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104

Goode & Goode (2006) FLC93-286; [2006] FamCA 1346

Makita (Australia) Pty Ltd & Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101

RCB as Litigation Guardian of EKV, CEV, CIV and LRV v Hon Justice Colin James Forrest (2012) 247 CLR 304; [2012] HCA 47

SS v AH [2010] FamCAFC 13
Division: Division 1 First Instance
Number of paragraphs: 79
Date of hearing: 25 September 2024
Place: Newcastle by Microsoft Teams
Counsel for the Applicant: Ms Ferrari
Solicitor for the Applicant: Slf Lawyers
The Respondent: Litigant in person
Counsel for the Independent Children’s Lawyer: Ms Mansfield
Solicitor for the Independent Children’s Lawyer: Southern Family Law

ORDERS

MLC 15240 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS BENSON

Applicant
AND:

MR JEFFREYS

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

SMITH J

DATE OF ORDER:

2 OCTOBER 2024

THE COURT ORDERS THAT:

1.The Application for Review filed by the mother on 5 September 2024 is dismissed.

2.Orders 14 – 37 of the orders dated 19 August 2024 are confirmed subject to Order 3 below. 

3.Order 26 of the orders dated 19 August 2024 be varied to read “6:00 pm and 6:30 pm” wherever it presently reads “5:00 pm and 5:30 pm”.

4.Liberty is granted to the father to file an Application in a Proceeding to change the children’s schools from the commencement of the 2025 school year.

5.All outstanding Applications are adjourned to Judicial Registrar McGee’s List (by Microsoft Teams) on Friday, 25 October 2024 at 10.00 am for a procedural hearing.

6.Costs reserved.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This…

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AGLC
Benson & Jeffreys [2024] FedCFamC1F 709
Case
[2024] FedCFamC1F 709
Decision Date

CaseChat Overview and Summary

In the case of Benson & Jeffreys, the Federal Circuit and Family Court of Australia (Division 1) addressed an application for a review of interim orders concerning the residence and contact arrangements for two children. The mother sought to reverse the orders that had placed the children in the primary residence of the father, with supervised time and communication arrangements for the mother. The legal issues before the court were whether the interim orders were in the best interests of the children, considering the allegations of family violence and the need for psychological safety. The court had to weigh the evidence and determine if the current orders should be maintained or altered.

The court considered the principles applicable to interim hearings, acknowledging the difficulty in making findings of fact without a full evidentiary process. The court recognised the importance of promoting the children's best interests and safety. The mother's allegations of family violence were not substantiated by the court due to the lack of evidence, and the court found that the current orders, which placed the children with the father, better served their safety and best interests. The evidence suggested that the children were at a higher risk of psychological harm from the mother, and the court was satisfied that the father provided a safer and more supportive environment.

Given the evidence presented, the court dismissed the mother's application for review and confirmed the existing interim orders. The court varied one aspect of the contact arrangements to allow for phone calls between 6:00 pm and 6:30 pm instead of 5:00 pm and 5:30 pm, as requested by the father. The court also granted the father liberty to apply to change the children's schools from the start of the 2025 school year and reserved costs. The final orders confirmed the interim arrangements, with adjustments to the communication schedule and a direction for a procedural hearing on outstanding applications.

ORDERS:
MLC 15240 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS BENSON
Applicant
AND:
MR JEFFREYS
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
2 OCTOBER 2024
THE COURT ORDERS THAT:
1. The Application for Review filed by the mother on 5 September 2024 is dismissed.
2. Orders 14 – 37 of the orders dated 19 August 2024 are confirmed subject to Order 3 below.
3. Order 26 of the orders dated 19 August 2024 be varied to read “6:00 pm and 6:30 pm” wherever it presently reads “5:00 pm and 5:30 pm”.
4. Liberty is granted to the father to file an Application in a Proceeding to change the children’s schools from the commencement of the 2025 school year.
5. All outstanding Applications are adjourned to Judicial Registrar McGee’s List (by Microsoft Teams) on Friday, 25 October 2024 at 10.00 am for a procedural hearing.
6. Costs reserved.

Orders

Orders of the court

MLC 15240 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS BENSON

Applicant

AND:

MR JEFFREYS

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

SMITH J

DATE OF ORDER:

2 OCTOBER 2024

THE COURT ORDERS THAT:

1. The Application for Review filed by the mother on 5 September 2024 is dismissed.

2. Orders 14 – 37 of the orders dated 19 August 2024 are confirmed subject to Order 3 below.

3. Order 26 of the orders dated 19 August 2024 be varied to read “6:00 pm and 6:30 pm” wherever it presently reads “5:00 pm and 5:30 pm”.

4. Liberty is granted to the father to file an Application in a Proceeding to change the children’s schools from the commencement of the 2025 school year.

5. All outstanding Applications are adjourned to Judicial Registrar McGee’s List (by Microsoft Teams) on Friday, 25 October 2024 at 10.00 am for a procedural hearing.

6. Costs reserved.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The mother seeks a review and, effectively, discharge or, in substance, a reversal of those orders. The ICL and the father effectively seek that those existing orders be maintained. Since this is an oral decision, and so the parties are not kept waiting, I will indicate now that for reasons which follow, I effectively accept the submissions of the Independent Children’s Lawyer, and I will, substantially, dismiss the Application for Review and confirm the existing orders. BACKGROUND The parties commenced a relationship in 2012. The date on which it concluded is in dispute, but it was by 2016. The parties were involved in prior proceedings which resulted in final orders made in 2019, by consent, for the children to live in a week-about arrangement with each parent (“the 2019 orders”). These proceedings commenced in December 2023 when the mother filed an Application for further final orders. As I understand it, there is no dispute that the 2019 orders have irrevocably broken down. I am comfortably satisfied and find that this is a matter in which there has been a significant change, that the criteria in s 65DAAA are comfortably established, and that the best interests of the children require a reconsideration of the existing final orders. The Independent Children’s Lawyer was re-appointed for the children on 8 February 2024, and a Child Impact Report was requested on the same date, and was subsequently released on 12 March 2024. There were interim orders on 8 February 2024 for the children to live with the mother and spend time with the father: (a) Each Saturday from 9.30am until 7.30pm (b) On Wednesday from after school or 2.40pm until 7.30pm(c) Such further and other times as agreed in writing between the parties With the father’s partner, [Ms B] to be in substantial attendance On 19 March 2024, there were further interim orders for the children to spend time and communicate with the father each alternate weekend from the conclusion of school on Friday, in effect, until the commencement of school on Monday, and each alternate Thursday from the conclusion of school to the Friday, and the father was at liberty to communicate with the children via SMS. On 19 March 2024, there was a variation which is not particularly relevant now. On 5 June 2024, there were orders for a Family Report. The children did not, substantially, spend time with the father in breach of the interim orders. Consequently, the father filed a Contravention Application on 18 March 2024, which was withdrawn, and a further one on 12 July 2024, which was also withdrawn. The mother filed an Application in a Proceeding on 22 May 2024 which was set down for interim hearing on 8 August 2024. She sought the orders set out in that application. That is the application which substantially comes before me, having been determined, and in respect of which there is a review. I note that part of the mother’s original application was for discharge of the Independent Children’s Lawyer, however at the commencement of this review hearing the mother withdrew that application. I note that the mother’s position that the ICL should be discharged was said by the ICL to be consistent with the various issues raised by the Single Expert Ms C, in effect, of abuse of litigation, although Ms C does not use those terms. I also note, that the mother was seeking supervised time and has not pressed that and, again, the ICL made submissions about that which I will deal with in due course.

Evidence

Evidence Before The Court

This is a case which falls fairly and squarely in that category. THE EVIDENCE The mother says in her affidavit that the father is a perpetrator of family violence, that she has attempted to comply with the spend time orders and the children, on multiple occasions, have refused and become distressed and visibly emotional when they are asked to see the father. She says that the spend time equal time arrangement was complied with until it got to the point where it could not be complied with, and I note, in particular, there are serious allegations made by her at paragraph [118(a)] to [118(i)]. The father denies the allegations of family violence and I can make no findings about them. The father says that the mother is a difficult person who seeks conflict. I note the father suggests in his most recent affidavit, that although there has been a difficult transition, the children are now comfortable in his care. The Court is in no position to make any finding about any of these competing allegations of family violence but obviously must consider them, given that the primary issue is the children’s safety. Child Impact Report The Child Impact Report of 8 March 2024, prepared by Ms G, a Court Child Expert within the Court, recorded each party’s history and allegations, their versions of events, their then proposals, the issue about the mother’s time in South Australia, the recovery application litigation that followed, the disputed allegations of family violence made by the mother, and the disputed allegations that the mother is antagonistic and seeks conflict made by the father. The mother emphasised paragraphs [18] to [19] of that report as evidence of family violence given by the children and, of course, Ms G supported the children remaining in the mother’s primary care:[2]18.The children’s narrative presented as aligned when discussing their experiences of both parties. The children presented that they perceive [Ms Benson] and her partner, [Mr H], as safe and trusted adults in their lives. They discussed viewing [Ms Benson] as ‘kind’ and caring, who is tactile, affectionate, engages with them in different activities and is attentive to their expressed needs.19.The children’s narrative indicated perceiving [Mr Jeffreys] as exhibiting a harsher parenting approach, that has included being ‘smacked’ whereby this has resulted in the children sustaining a bruise. The children discussed that [Mr Jeffreys] may ‘yell’ a lot, may cause them to feel embarrassed or to miss out on treats or activities, as a form of punishment, should they not do what is asked of them.(Emphasis in original)[2] Exhibit ICL 1. I note, of course, that a Child Impact Report is a relatively curtailed process. Single Expert Report Ms C was selected and interviewed the parties, but not the children, as the mother failed to manage to obtain their attendance at interviews. The mother relies upon the children not attending Ms C as a factor which significantly reduces the weight to be attached to Ms C’s Single Expert Report.

Decision

Reasons for decision

The father was self-represented. He largely adopted the ICL’s submissions. As I said, the main contribution he made was he says phone calls should be 6.00 to 6.30 pm. CONCLUSION I have been through the principles, and I have them in mind. Where there are untested allegations of family violence of the kind the mother makes, the Court needs to be extremely cautious. However, I give some weight obviously to the denial and to an experienced expert’s concerns about the narrative. I am very aware that, sometimes, a judge at an interim hearing weighing the evidence as best they can comes to a conclusion which, ultimately, either that judge including me or another judge may, when they’ve had the benefit of the full evidence, realise was wrong, and that is one of the burdens we face. Nevertheless, it is required that I do the best I can to promote the children’s best interests on the evidence I have. Weighing all the evidence as best I can, it seems to me that the children’s safety would be best promoted, particularly in terms of their psychological safety and the avoidance of potential educational neglect, by the maintenance of the current orders that they live with the father, where the evidence of risk of psychological harm from the mother seems to be more reliable to me than the evidence of risk of family violence to the children by the father. In that context, I note what I have said about the children’s views and given that one of the issues is the mother undermining the father’s relationship and given the children’s ages, I give limited weight to their views, although I acknowledge them. On the material before me, the children’s developmental, psychological, emotional and cultural needs, which are for a safe and emotionally supportive environment, are, best dealt with by the father who appears to have a greater capacity to provide for those needs. The children will benefit from having a relationship with each parent, but that requires it to be a safe relationship, and I am satisfied that, on balance, the best way for that to be achieved is by the current orders. I have addressed the allegations of family violence and the family violence orders. If there has been another family violence order made which I have not been told about in the meantime, and if these orders are inconsistent with that, then I note the inconsistency and I note that I do not know what evidence may have been before a magistrate, but I know the evidence before me, and I am satisfied that the children are safer with the father at the moment than they are with the mother; and, in effect, doing the best I can, I find that the weight of the evidence supports the children’s safety and best interests being served by, in effect, the existing interim orders. I was not given detailed submissions by the ICL or the father as to how they might otherwise be varied, nor by the mother as to how they might be varied if I did not accept her case. Accordingly, I make Orders 1 to 6 as set out above.

Ratio Decidendi

Legal Principle Established

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