Beta & Avron
[2021] FamCA 35
•8 February 2021
FAMILY COURT OF AUSTRALIA
Beta & Avron [2021] FamCA 35
File number(s): PAC 844 of 2020 Judgment of: FOSTER J Date of judgment: 8 February 2021 Catchwords: FAMILY LAW – CHILDREN – Review of Senior Registrar’s decision – Application to review a decision of a Senior Registrar in respect of interim parenting arrangements including where one of the children are to attend school – Review by way of hearing de novo – Application for review dismissed. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 69ZL Cases cited: Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
Marvel & Marvel (2010) 43 Fam LR 348
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) 41 Fam LR 483
MRR v GR [2010] HCA 4
Number of paragraphs: 76 Date of hearing: 27 January 2021 Place: Parramatta Counsel for the Applicant: Mr Greenaway Solicitor for the Applicant: Michael Jokovic & Associates Counsel for the Respondent: Mr Givney Solicitor for the Respondent: Lewarne & Goldsmith ORDERS
PAC 844 of 2020 BETWEEN: MS BETA
ApplicantAND: MS AVRON
Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
27 JANUARY 2021
THE COURT ORDERS THAT:
1.Leave is granted to the biological mother to amend the application for review to seek to review to Order 1 made by the Senior Registrar on 26 November 2020.
2.The Application for Review of the Senior Registrar’s orders made on 26 November 2020 be dismissed.
3.Orders made by the Senior Registrar on 26 November 2020 are confirmed in the same terms as follows:
PENDING FURTHER ORDER IT IS ORDERED THAT
(1)That the Applicant mother Ms Avron have sole parental responsibility for the children X born … 2015 and Y born … 2016 in relation to the issue of schooling.
(2)That X and Y live with the Applicant.
(3)That the children X and Y shall live with the Respondent as follows:
(a)Week 1 - Each alternate week from the conclusion of school on Friday until the commencement on school on Monday morning and each alternate week thereafter.
(b)Week 2 – from the conclusion of school on Thursday until the commencement of school on Friday morning and each alternate week thereafter.
(c)For one half of the Term 1, 2 and 3 school holiday periods being the first half in even years and the second half in odd years.
(d)During the Christmas school holiday period commencing at 9.00am on the first Saturday following the last school day of Term 4 to be taken in blocks of 7 nights with the Respondent to have the first week in even years and the second week in odd years.
(4)The children to spend time with the Respondent from 4.00pm Christmas Eve until 4pm on Boxing Day in 2020 and each even year thereafter.
(5)The Children to spend time with the Respondent from 4pm Boxing Day 2021 until the next scheduled Saturday 10.00am changeover and each odd year thereafter.
(6)The Children to spend time with the Applicant from 4pm Boxing Day 2020 until the next scheduled 10am changeover and each even year thereafter.
(7)The children to spend time with the Applicant from 4pm Christmas Eve until 4pm Boxing Day in 2021 and each odd year thereafter.
(8)The child X is to be enrolled in and to commence her Primary Schooling at B School in 2021. For the purpose of this order the Applicant and Respondent are to sign all required documentation required of the school for the purpose of X’s enrolment.
(9)In the event that changeover of the children does not occur at the school/day-care of the children then changeover of the children shall occur at Suburb F located at C Street, Suburb F.
(10)That each the Applicant mother and the Respondent mother be permitted to take the children for a holiday within Australia (interstate holiday) during periods when the children are living with the Applicant/Respondent pursuant to these Orders, provided that the party intending to travel provide the other parent written details of the interstate holiday at least 2 weeks prior, including:
(a)Day of departure from and return to Sydney.
(b)Copy of itinerary provided by a travel agent or airline in relation to the interstate holiday.
(c)A copy of the return airline ticket for the children; and
(d)Details of how the children can be contacted whilst away from Sydney including contact telephone numbers and addresses at which the children will be residing whilst away from Sydney.
(11)For the purposes of these Orders the school holidays are to commence at 10.00 am on first day after the conclusion of the school term and shall conclude at 10.00 am on the day prior to the commencement of the school term.
(12)Time pursuant to these Orders for the second half of the school holidays shall commence at 10.00 am on the middle day of such period and shall conclude at 10.00 am on the day prior to the commencement of the new school term.
(13)Each party shall do all acts and things necessary and sign all documents to authorise any school at which the children attend or any medical practitioner upon which the children attend to provide all requested information in respect to the children to the other party and to discuss all issues relating to the well being of the children with the other party.
(14)Each the Applicant mother and Respondent mother shall do all acts and things and sign all documents necessary to authorise and direct any school attended by the children to discuss with each of the parties the children’s school attendance and progress, furnish school reports, photographs and copies of correspondence, newsletters or other material produced by the school.
(15)In the event the children are spending time away from the other parent for a period of (7) nights then the parent who has the children shall ensure that a facetime call is to be made to the other parent at least 3 times during the period, at the request of the other parent. In the event that the parent who has the children does not have network access then a telephone call is to be made on the same terms in lieu of a facetime call.
(16)The Applicant mother and Respondent mother each to provide to the other the residential address and contact telephone numbers and to advise the other party of any change thereto within 24 hours of such change occurring.
4.Reasons for judgment will be published shortly.
5.All other interim applications are dismissed.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Beta & Avron has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
These proceedings were commenced by the applicant mother, the biological mother of the subject children, by Initiating Application filed 20 February 2020.
The application concerns two children: X born in 2015 ("the older child") and Y born in 2016 ("the younger child") collectively "the children".
The respondent is the non-biological mother of the children.
On 26 November 2020 interim orders were made by Senior Registrar Campbell pending further order, in summary, that:
(1)The applicant mother have sole parental responsibility for the children in relation to the issue of schooling.
(2)The children live with the applicant.
(3)The children live with the respondent as follows:
(a)Week 1- each alternate week from the conclusion of school Friday until the commencement of school on Monday morning and each alternate week thereafter;
(b)Week 2- from the conclusion of school on Thursday until the commencement of school on Friday morning and each alternate week thereafter;
(c)For one half of the Term 1, 2 and 3 school holiday periods being the first half in even years and the second half in odd years;
(d)During the Christmas school holiday period commencing at 9.00 am on the first Saturday following the last school day of Term 4 to be taken in blocks of seven nights with the respondent to have the first week in even years and the second week in odd years.
(4)The children to spend time with the Respondent from 4.00 pm Christmas Eve until 4.00 pm on Boxing Day in 2020 and each even year thereafter.
(5)The children to spend time with the Respondent from 4.00 pm Boxing Day 2021 until the next scheduled Saturday 10.00 am changeover and each odd year thereafter.
(6)The children to spend time with the Applicant from 4pm Boxing Day 2020 until the next scheduled 10.00 am changeover and each even year thereafter.
(7)The children to spend time with the Applicant from 4.00 pm Christmas Eve until 4.00 pm Boxing Day in 2021 and each odd year Thereafter.
(8)The older child is to be enrolled in and to commence her Primary Schooling at B School in 2021. For the purpose of this order the Applicant and Respondent are to sign all required documentation required of the school for the purpose of older child’s enrolment.
(9)In the event that changeover of the children does not occur at the school/day-care of the children then changeover of the children shall occur at Suburb F located at C Street, Suburb F.
(10)That each the applicant mother and the respondent mother be permitted to take the children for a holiday within Australia (interstate holiday) during periods when the children are living with the Applicant/Respondent pursuant to these Orders, provided that the party intending to travel provide the other parent written details of the interstate holiday at least two weeks prior, including:
(a)Day of departure from and return to Sydney;
(b)Copy of itinerary provided by a travel agent or airline in relation to the interstate holiday;
(c)A copy of the return airline ticket for the children; and
(d)Details of how the children can be contacted whilst away from Sydney including contact telephone numbers and addresses at which the children will be residing whilst away from Sydney.
(11)For the purposes of these Orders the school holidays are to commence at 10.00 am on first day after the conclusion of the school term and shall conclude at 10.00 am on the day prior to the commencement of the school term.
(12)Time pursuant to these Orders for the second half of the school holidays shall commence at 10.00 am on the middle day of such period and shall conclude at 10.00 am on the day prior to the commencement of the new school term.
(13)Each party shall do all acts and things necessary and sign all documents to authorise any school at which the children attend or any medical practitioner upon which the children attend to provide all requested information in respect to the children to the other party and to discuss all issues relating to the wellbeing of the children with the other party.
(14)Each the applicant mother and respondent mother shall do all acts and things and sign all documents necessary to authorise and direct any school attended by the children to discuss with each of the parties the children’s school attendance and progress, furnish school reports, photographs and copies of correspondence, newsletters or other material produced by the school.
(15)In the event the children are spending time away from the other parent for a period of (7) nights then the parent who has the children shall ensure that a facetime call is to be made to the other parent at least 3 times during the period, at the request of the other parent. In the event that the parent who has the children does not have network access then a telephone call is to be made on the same terms in lieu of a facetime call.
(16)The applicant mother and respondent mother each to provide to the other the residential address and contact telephone numbers and to advise the other party of any change thereto within 24 hours of such change occurring.
The following day (27 November 2020) the respondent filed an Application in a Case seeking that the orders of the Senior Registrar be reviewed and set aside and that interim orders be made that:
(1)The children live with her:
(a)Week 1 from 4.30 pm on Wednesday to 4.00 pm on the following Saturday.
(b)Week 2 from 4.30 pm on Wednesday to 4.00 pm on the following Sunday.
(2)Both parties are restrained from enrolling the older child in any other school other than D School.
The respondent also filed a separate Application in a Case on the same day seeking that the Senior Registrar's orders be stayed. Directions were made by the Senior Registrar in relation to this application who on 18 December 2020 then adjourned the stay application to the judicial list.
The applicant seeks that the respondent's Application for Review be dismissed.
On 27 January 2021 the application for review and the application to stay the Senior Registrar's orders came before this Court for determination.
At the review hearing, the respondent, being the applicant for review, relied upon:
(a)Response to Initiating Application filed 7 April 2020;
(b)Application in a Case filed 2 December 2020 seeking a stay of the Senior Registrar’s orders;
(c)Her affidavit filed 23 November 2020; and
(d)Her affidavit filed 22 January 2021.
The applicant relied upon:
(a)Application in a Case filed 21 September 2020;
(b)Her affidavit sworn 18 November 2020;
(c)Her further affidavit filed 18 January 2021;
(d)The affidavit of her current partner sworn 18 November 2020;
(e)The affidavit of her mother (the children’s grandmother) sworn 18 November 2020; and
(f)Parenting Questionnaire filed 14 September 2020.
The Court dismissed the respondent’s Application for Review, confirmed the orders made by the Senior Registrar and reasons for judgment were reserved. These are those reasons.
The proceedings
The applicant commenced proceedings by way of Initiating Application filed on 20 February 2020 seeking parenting and property final orders only. In summary and amongst other things, the applicant sought parenting orders that:
(a)The applicant have sole parental responsibility for the children;
(b)The children live with the applicant;
(c)The children spend time with the respondent in Week 1 from the conclusion of school on Friday until 5.00 pm on Sunday and each alternate week thereafter and in Week 2 from the conclusion of school Thursday until the commencement of school on Friday and each alternate week thereafter;
(d)The applicant is to spend time with the children for one half of the Term 1, 2 and 3 school holiday period being the second half in even years and the first half in odd years;
(e)During the Christmas school holiday period until Christmas 2022 for the first week of the school holiday period in odd years to conclusion at 10.00 am on 26 December and each alternate week thereafter such that the school holiday period is to be taken in blocks of seven nights other than the first week of the school holiday period;
(f)Commencing Christmas 2022 for the first week of the school holiday period in odd years to conclude at 10.00 am on 26 December and the balance of the block of the school holiday period to be shared equally with the respondent having the first period commencing 26 December and each odd year thereafter; and
(g)The applicant and respondent each do all things necessary to cause the surname of the children to be changed to Beta-Avron.
The respondent filed a Response on 7 April 2020 seeking parenting and property orders. In summary and amongst other orders, the respondent sought parenting orders that:
(a)The parties have shared parental responsibility for the children;
(b)The children spend time with the respondent during the school term in a two week cycle in the first week from 4.30 pm on Wednesday to 4.00 pm the following Saturday and in the second week of that two week cycle from 4.30 pm Wednesday to 4.00 pm on the following Sunday;
(c)The children spend half the school holiday periods with the respondent as agreed however failing agreement the children will spend the first half of those holidays with the respondent in even numbered years and the second half of those school holidays with the respondent in odd numbered years; and
(d)Notwithstanding orders herein that holiday time during the end of year or Christmas school holiday periods provided for in orders herein will be suspended from 10.00 am on 24 December to 4.00 pm on 26 December and the mother not spending time with the children in the first half of the school holidays will spend time with the children from 10.00 am on 24 December to midday on 25 December and the mother spending time with the children from the first half of the school holidays time will resume at 12.00 noon on Christmas day.
On 5 May 2020 the parties were interviewed by a family consultant as part of the Child Responsive Program and a Children and Parents Issue Assessment was subsequently prepared.
On 24 July 2020 when the matter was before a registrar for directions the parties were in disagreement about some interim parenting matters, including the issue of schooling for the older child. The registrar noted on this occasion that if the parties could not resolve these issues, the matter may need to be listed for a Senior Registrar if any interim application was filed.
At a registrar's directions hearing on 4 August 2020, the parties were still in dispute as to interim parenting arrangements for the children including the issue of schooling for the older child in 2021, however, neither party had filed an interim application. The registrar directed that the parties file an Application in a Case as to the interim parenting orders sought and made directions for the matter to be listed for a Less Adversarial Trial.
On 15 September 2020 the matter came before the Court for a Less Adversarial Trial. Noting that the interim parenting proceedings (subject to the filing of an interim application by one of the parties) was due to come before the registrar the following month.
On 21 September 2020 the applicant filed an Application in a Case seeking interim parenting orders in similar terms to those that she sought on a final basis. In summary, the applicant relevantly sought interim orders that:
(a)The applicant have sole parental responsibility for the children;
(b)The children live with the applicant;
(c)The children spend time with the respondent in Week 1 from the conclusion of school on Friday until the commencement of school on Monday and each alternate week thereafter and in Week 2 from the conclusion of school on Thursday until the commencement of school on Friday morning and each alternate week thereafter;
(d)The parties do all things necessary to cause the surname of the children to be changed to Beta-Avron; and
(e)The older child be enrolled in and commence her primary schooling at B School in 2021.
On 6 October 2020 directions were made by a registrar for the respondent mother to file a Response and the matter was listed for an interim hearing before Senior Registrar Campbell in November 2020.
On 22 October 2020 the respondent filed a Response to the applicant's Application in a Case seeking orders, in summary, that:
(a)The applicant’s Application in a Case be dismissed.
(b)The children live with the respondent.
(c)The older child attend D School commencing at the start of the school year in 2021 and the younger child commence at that school at the commencement of 2022.
(d)The children spend time with the applicant:
(i)each alternate week commencing the first Friday after the date of orders herein from the conclusion of school or day care on Friday until the commencement of school or day care on the following Monday morning thereafter; and
(ii)In the week following the weekend the children have spent with the mother from the conclusion of school Wednesday to the commencement of school on Thursday.
The interim hearing proceeded before the Senior Registrar on 26 November 2020. At the interim hearing the respondent had changed her position and, it seems, sought orders pursuant to a Minute of Order tendered on the day that the children live in an equal time arrangement. She continued to press for orders to be made that the older child attend D School. Otherwise, the realm of the dispute had narrowed significantly and the Senior Registrar was only required to determine the issue of the children’s live with arrangements and what school the older child should attend. Following the interim hearing, orders were made largely in the terms sought by the applicant and as set out earlier in these Reasons.
Context
The applicant is presently 37 and the respondent is currently 50.
The parties commenced cohabitation in October 2010 and separated on a final basis in April 2018 but remained under the one roof until July 2018. In July 2018 the applicant moved in with her parents in Suburb G.
The older child, conceived by the applicant through IVF, was born in 2015 and is currently five years old. The younger child who was also conceived by the applicant through IVF was born in 2016 and is currently four years old.
In April 2019 the applicant moved to Suburb H where she currently lives with her new partner.
It is approximately a one hour drive between the two parties' residences.
Both parties work in the public service. The applicant currently works on a part time basis, three days a week (Wednesday to Friday). The respondent mother works three days a week (Monday to Wednesday).
At the time of the interim hearing before the Senior Registrar, the children were living in an equal time arrangement, transitioning between the parties on Wednesdays between 5.30 pm to 6.00 pm and on alternating Saturdays and Sundays at 4.00 pm. The older child was attending preschool near the applicant’s residence on Tuesdays and Wednesdays, and was attending a different preschool near the respondent’s residence on Thursdays and Fridays.
The applicant biological mother's evidence
The applicant asserts that she has been the primary carer for both children since birth, including taking the children to medical appointments, feeding and bathing the children (even on the days she worked) and attending to otherwise implementing the children's routines. She deposes that during her pregnancy with the second child she experienced significant health issues which resulted in her being hospitalised at times, and that during these periods, the respondent struggled to care for the older child and regularly required the assistance of the applicant's parents.
The applicant asserts that when she left the former matrimonial home in July 2018 she did not take the children with her as she says the respondent mother would only allow her to take the children if she agreed to a shared care arrangement. The applicant asserts that when she would try to discuss the children's care arrangements with the respondent mother following separation and her proposal that the children live with her and spend alternate weekends with the respondent, the respondent would threaten that she would not see the children again.
The applicant deposes that her relationship with the respondent mother has become extremely fractured and that their inability to communicate about issues to do with the children has in the past been detrimental to the children's health. The applicant deposes to numerous occasions where she says the children have returned to her care with various health concerns that the respondent has provided her no information regarding such. She also deposes to numerous observations of the children following spending time with the children which she considers to be examples of poor hygiene.
The children currently participate in extra-curricular activities and attend health related appointments nearby the applicant’s residence, including weekly swimming lessons.
The applicant seeks to change the children's live with arrangements such that they would spend four nights a fortnight with the respondent and the balance of time with the applicant, contending that the prior arrangement is impractical once the older child commences school.
The respondent mother's evidence
The respondent mother says that since separation in July 2018 the children have lived in an equal time arrangement which in her view has worked well.
The respondent argues that the older child should remain at D School where she attended preschool in 2019 and part time in 2020 as she is well settled at this school.
The respondent denies that allegations made by the applicant regarding her capacity to care for the children and disagrees with the applicant's description of the extent to which each party played in the parenting of the children. The respondent is concerned about the applicant's capacity to foster a relationship between her and the children and is concerned that the applicant makes comments to the children attempting to undermine this relationship.
It was submitted on behalf of the respondent that if the Court was not persuaded to make orders for an equal time arrangement, the Court may consider “reducing the time to either of the parents but not to a situation where it is not a shared arrangement”. It was further submitted that the Court “may consider” an 8:6 arrangement or a 9:5 arrangement.
It was also submitted on behalf of the respondent that the case will likely require a Family Report to assist with the determination of the dispute and the Court should approach the matter on a conservative basis until such time.
The CAPIA Report
The family consultant interviewed the parties over the phone on 5 May 2020. Due to the ages of the children and the current COVID-19 restrictions, the children were not interviewed or observed interacting with either parent.
The applicant reported that the children are attached to her current partner and that they function as one family unit when the children are in her care.
The applicant reported that the respondent has limitations in her parenting capacity, telling the family consultant that the respondent is not familiar with the children's routines, has difficulty soothing the children when they are distressed and reported that the children display anxiety and distress driven behaviours prior to spending time with the respondent. The respondent denied these assertions made by the applicant.
The applicant alleged that during the relationship the respondent displayed controlling and psychologically abusive behaviours, including manipulative behaviours. The respondent alleged that during the relationship the applicant displayed physical violence on one occasion by punching a hole in the wall, and that she was told by others that some of the applicant's behaviour was controlling. Neither parent reported concern as to their physical or emotional safety in relation to the other.
The applicant told the family consultant that during the parties' relationship the respondent had a high level of alcohol consumption but asserted she could not comment on her current consumption.
Both parents reported that communication between the parties is problematic, and that they do not share information about the children prior to, following or at the point of changeover.
The applicant explained to the family consultant that she is seeking sole parental responsibility for the children and for the children to live with her because she does not believe the respondent is able to adequately care for the children. She elaborated that the respondent has taken no interest in having the children in her care and that she is only seeking for the children to live in an equal care arrangement out of retaliation.
The respondent told the family consultant that she and the mother previously had an amicable co-parenting relationship which was based on maintaining the same routine and providing the children with consistency. She told the family consultant that she believes the applicant's current hostility towards her could be a strategy to make it appear to the Court that the parties cannot effectively communicate and co-parent the children.
The family consultant opined:
The current distance between the parents’ homes may prove burdensome for frequent travel between the parents’ homes as well as impractical for schooling.
There is significant anxiety, hostility, and conflict in the co-parenting relationship, the source and direction of which is outside the scope of this assessment to determine. However, these emotional states, and resulting behaviours by each or both of the parents, whether continuous or at different points in time, is likely to negatively impact on the children’s experience of a stable, coherent, and consistent, parenting subsystem.
Further to this, the parents are currently unable to communicate effectively to develop a shared understanding, and respond in tandem to, and the children’s health, developmental, educational and day-to-day care needs. This means that, while initially the parents may have followed the routine they had in place prior to separation, the children’s routine across the different households is likely to become increasingly different, or separate. The children may respond to this by compartmentalising their experiences of, and responses to, their different care environments; or the different environments may become increasingly diffuse and disorganised in their minds, undermining their sense of predictability, certainty and security in both care environments.
The family consultant recommended that a Family Report may assist the Court. She also recommended that the Court may be assisted by the parties' participation in a multi-session post-separation parenting program.
Interim Parenting: Short Reasons for judgment
In Goode & Goode (2006) FLC 93-286, the Full Court set out the pathway to be followed in saying that the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is "significantly curtailed". Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and must have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future.
Since Goode, s 69ZL of the Family Law Act 1975 (Cth) ("the Act") has been enacted which provides that a court may give reasons in short form for a decision it makes in relation to an interim parenting order. In relation to the interim parenting orders, these are the Court's short form reasons for decision.
In Marvel & Marvel (2010) 43 Fam LR 348 the Full Court discussed the difficulties associated with making findings on contested evidence in the following terms:
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
121.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
“In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”
122. Later, at paragraph [100] their Honours amplified their comments and said:
“The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. 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.”
In Deiter & Deiter [2011] FamCAFC 82 the Full Court was particularly concerned with the situation where the contested facts related to an assessment of risk and said at [61]:
… Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
THE LAW
The relevant principles in relation to parenting and interim proceedings are well settled: Goode. The High Court in MRR v GR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility. The presumption does not apply where:
(a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence [s 61DA(2)],
(b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].
The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child's best interests [s 61DA(4)].
The issue of final parental responsibility will remain an issue for determination at final hearing. In the interim proceedings before the Senior Registrar, the realm of the dispute narrowed such that the Senior Registrar was not required to determine the issue of parental responsibility in the interim. However, the issue of parental responsibility should be considered to the limited extent that it relates to the dispute about the children’s schooling, and on this basis the outcome of the determination regarding schooling will guide the determination as to parental responsibility.
Best Interests
The Primary Considerations
The primary 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 applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
In Mazorski v Albright (2007) 37 Fam LR 518, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) 41 Fam LR 483 at [121] the Full Court accepted as appropriate this interpretation by Brown J of "meaningful relationship".
The children have established relationships with both parents. The parties disagree about the role each has played in the parenting of the children in the past and the nature of their relationships with the children. The applicant makes a number of allegations of neglect regarding the level of care provided by the respondent which are all denied by her. These factual disagreements are not able to be resolved at an interim hearing and where there is no real objective evidence to support either of the parties' contentions, the interim dispute must be determined on the basis of the undisputed facts alone.
As set out above, it is well settled that a meaningful relationship is a qualitative concept which is important and valuable to the child rather than being a strictly quantitative concept. This is particularly important in the case at hand where the respondent's proposal is the continuation of an equal time arrangement in circumstances where the parties' distance from each other presents a significant practical difficulty to such an arrangement and raises the question of whether such an arrangement is in the children’s best interests.
Further, the family consultant’s views regarding the "significant anxiety, hostility and conflict in the co-parenting relationship" which is "likely to negatively impact on the children's experience of a stable, coherent, and consistent, parenting subsystem" contraindicates any arrangement for equal time. This weighs in favour of the orders sought by the applicant.
The Additional Considerations: s 60CC(3)
Section 60CC(3) sets out the additional considerations. Regard has been had to all but the most relevant are discussed below.
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)considerations relating to an Aboriginal or Torres Strait Islander child – not applicable;
(i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)Any family violence involving the child or a member of the child’s family;
(k)If a family violence order applies – not applicable
(l)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;
(m)Any other fact or circumstance that the court thinks is relevant.
The children were not interviewed by the family consultant due to their young ages in circumstances where all interviews were conducted electronically. As such, their views are not available.
As set out above, the nature of the children's relationship with each parent remains in dispute. The same can be said about the extent to which each of the child’s parents have taken the opportunity to participate in decisions in relation to the child and the extent to which each of the parents has fulfilled or failed to fulfil their obligations to maintain the children. On the evidence available, it would appear that the children enjoy a close relationship with both parents.
It is not in dispute that the older daughter requires speech therapy and the applicant facilitates this child’s attendance upon a speech therapist.
The children appear to have a close relationship with the applicant’s mother who it seems plays a significant role in the lives of the children. The children also appear to have a close relationship with the applicant’s current partner with whom the children live when in the applicant’s care. The applicant’s current partner also assists in the day-to-day care of the children. It also appears that the children have a warm relationship with the respondent’s current partner though she does not currently reside with the respondent.
The parents live approximately one hour from each other which presents a practical difficulty for the children continuing to reside in an equal time arrangement. The respondent mother's equal time and schooling proposal would require the older child (and the younger child undertaking the journey if other arrangements cannot be made) to travel approximately one hour to school. On the respondent’s equal time proposal, this means on some occasions the child will be travelling around two hours a day, to and from school, when she is in the care of the applicant in the morning and then returning to the applicant’s care in the afternoon. Again, the respondent’s proposal would see the child spend a significant number of hours travelling each week. The applicant proposal would mean that the children are required to undergo significantly less travel time. Particularly given the children's young ages, this is an extremely weighty consideration.
The respondent's proposal would see the maintenance of what has been the children's living arrangements since separation although it is asserted by the applicant that such arrangements were imposed by the respondent. It will also see the older child remain at the same school she has attended preschool where on the respondent's evidence she will have the same teacher and classmates. This consideration needs to be weighed against the other considerations, particularly the onerous travel requirements associated with the maintenance of the status quo, which are indicative of a change in circumstances for the children.
The applicant's proposal will allow the children to more freely participate in the extracurricular activities they have participated in the area where the applicant resides in the past as well as leave open the possibility for regular participation in other extra-curricular activities.
On the basis of the foregoing and having considered the competing proposals, the Court is satisfied that the applicant's proposal is more child focussed and better aligns with the best interests considerations.
Orders are made confirming the Senior Registrar's orders and dismissing the respondent's application.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 8 February 2021
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