Binns & Palister

Case [2021] FedCFamC1F 142

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Binns & Palister [2021] FedCFamC1F 142 

File number(s): BRC 2496 of 2017
Judgment of: HOWARD J
Date of judgment: 19 October 2021
Catchwords: FAMILY LAW – PARENTING – undefended hearing – where the matter proceeded on an undefended basis due to the failure of the applicant mother to appear and comply with orders and directions of the Court – Court’s discretion to allow the defaulting party to participate in the undefended hearing – where the evidence put before the Court by the parties was not sufficient to allow the Court to make a decision in the children’s best interests – where updated oral evidence was taken from both the mother and father – where updated expert evidence was adduced – where the parties agreed with the procedural approach adopted by the Court – consideration of risk – where the two children live in different households – where the children’s best interests are served with each of them residing with their current respective resident parent.    
Legislation:

Evidence Act 1977 (Qld) s 93A

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA, 91B

Family Law Rules 2004 (Cth) r 11.02

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.33

Cases cited:

Baghti & Baghti & Ors [2015] FamCAFC 71

Banks v Banks (2015) FLC 93-637

Beckham v Desprez (2015) 55 Fam LR 310

Briginshaw v Briginshaw (1938) 60 CLR 336

Calvert and Madock [2020] FamCA 219

Cox v Pedrana (2013) 48 Fam LR 65

Eagle & Scarlett (No.2) [2020] FamCAFC 291

Fitzwater and Fitzwater (2019) 60 Fam LR 212

In the Marriage of N and S (1995) 19 Fam LR 837

Johnson v Page (2007) FLC 93-344

M v M (1988) 166 CLR 69

Napier v Hepburn (2006) 36 Fam LR 395

Qantas Airways Ltd v Gama (2008) 167 FCR 537

Vesey & Lygon [2017] FamCA 717

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Zane & Allan [2008] FamCAFC 115
Division: Division 1 First Instance
Number of paragraphs: 88
Date of last submission/s: 14 October 2021
Date of hearing: 3, 8, 10 September 2021 and 7 October 2021
Place: Brisbane
Counsel for the Applicant: Mr Casey
Solicitor for the Applicant: Hofstee Lawyers
Counsel for the Respondent: Mr Pope
Solicitor for the Respondent: Derek Legal
Counsel for the Independent Children's Lawyer: Mr Ashcroft
Solicitor for the Independent Children's Lawyer: Dooley Solicitors

ORDERS

BRC2496 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS BINNS
Applicant

AND:

MR PALISTER
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

HOWARD J

DATE OF ORDER:

19 OCTOBER 2021

THE COURT ORDERS ON A FINAL BASIS:  

1.That all previous parenting orders be discharged.

2.That the child X born … 2005 (“X”) live with the father.

3.That the father have sole parental responsibility for X.

4.That the child Y born … 2007 (“Y”) live with the mother.

5.That the mother have sole parental…

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Binns & Palister [2021] FedCFamC1F 142
Case
[2021] FedCFamC1F 142
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CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Binns & Palister involved a dispute over the care and custody of two children, X and Y. The matter proceeded on an undefended basis due to the failure of the applicant mother to appear and comply with orders and directions of the Court. The legal issues included the court's discretion to allow the defaulting party to participate in the undefended hearing, the adequacy of the evidence presented, and the children's best interests. The court had to determine whether there was sufficient evidence to make a decision regarding the children's welfare and whether the children would be at an unacceptable risk of harm in the care of the father. The court also had to consider the procedural approach taken and the implications of updated oral and expert evidence.

The court exercised its discretion to allow the defaulting party to participate in the undefended hearing by taking updated oral evidence from both parents and updated expert evidence. The court noted that the evidence presented was not initially sufficient to allow a decision in the children's best interests. The procedural approach adopted was agreed upon by both parties. The court thoroughly considered the risk factors, including allegations of sexual or physical abuse by the father, and concluded that there was no unacceptable risk of harm in the father's care. The court also concluded that the father would be a suitable parent for both children. However, given the strong opposition of the 14-year-old Y to living with the father, the court determined that a transition was not feasible at that time.

The court made final orders that child X would live with the father and spend time and communicate with the mother in accordance with X's wishes, with the father having sole parental responsibility for X. Child Y would live with the mother and spend time and communicate with the father in accordance with Y's wishes, with the mother having sole parental responsibility for Y. Both parents were required to facilitate communication between X and Y. The court discharged all previous parenting orders and the Independent Children’s Lawyer. The decision was based on the primary considerations outlined in section 60CC(2) of the Act, focusing on the benefit of having a meaningful relationship with both parents and the need to protect the children from harm.

Orders

Orders of the court

BRC2496 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS BINNS

Applicant

AND:

MR PALISTER

Respondent

AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

HOWARD J

DATE OF ORDER:

19 OCTOBER 2021

THE COURT ORDERS ON A FINAL BASIS:

1. That all previous parenting orders be discharged.

2. That the child X born … 2005 (“X”) live with the father.

3. That the father have sole parental responsibility for X.

4. That the child Y born … 2007 (“Y”) live with the mother.

5. That the mother have sole parental responsibility for Y.

6. That X spend time and communicate with the mother at such times that X wishes.

7. That Y spend time and communicate with the father at such times that Y wishes.

8. That both parents shall facilitate communication between X and Y.

9. That the Independent Children’s Lawyer be discharged.

Background

Background to the litigation

Having come to that conclusion, it follows that I am also of the view that the children are not and would not be at an unacceptable risk of harm in the care of the father. As urged by Fogarty J – I have given “real and substantial consideration to the facts of the case”. The facts do not give rise to an unacceptable risk in the father’s care. I have taken into account all the questions posed by Fogarty J. For instance, it could not possibly be said that the child Y, “genuinely believes” what she told the Police initially about the photographing by the father. If she did genuinely believe it to be true, then it is incomprehensible that at the age of 11 years and six months she could not even remember having recently explained to the Police the nature or substance of those allegations. I do note that Fogarty J’s decision in N and S was a dissenting judgement, but his Honour’s views have been supported by the Full Court in subsequent decisions: Napier v Hepburn (2006) 36 Fam LR 395 (at paragraph 56) and Johnson v Page (2007) FLC 93-344 (at paragraphs 66 and 95) and Fitzwater and Fitzwater (2019) 60 Fam LR 212 (at paragraphs 14 to 16). There is no other evidence before the Court relied upon by the parties in these proceedings in relation to allegations of sexual or physical abuse perpetrated by the father against Y or against any of the children. Dr E made reference to members of his staff having been told that Y considered she was a victim of physical and/or sexual abuse. There are no details of those comments. There is no evidence before this Court in relation to those allegations. The conclusion of the Court is that the children are not at any unacceptable risk of harm in the care of the father. My conclusions in relation to risk relating to the father lead to my further conclusion that the father would be a suitable parent for both X and Y. The very real problem which must be confronted is the fact that Y is 14 years of age and her wishes have been made very clear. Two years ago it was impossible to effect a transition from the mother’s care to the father’s care. The situation would only be even more difficult now. Y is receiving significant support at the moment under the auspices of NMHS and MYS. That support was outlined the evidence of Dr E. Neither Dr E nor Ms C support a conclusion that the child should transition now to the care of the father. In the evidence of Ms C – it is apparent that she does support a move from the mother – but only to some independent, unknown third person – preferably within the realm of State care/child safety. This Court, of course, has no power to make such an order. The Court’s powers are limited to making a parenting order in favour of a party currently before the Court. Those parties are either the father or the mother. On 10 September 2021, the Court drew the attention of the parties to a decision of Carew J in Vesey & Lygon [2017] FamCA 717. In that case, the her Honour included various findings of the commencement her order (in the nature of Notations) and also stated that:-“It is respectfully requested that the Department of Communities, Child Safety and Disability Services (Qld) (“the Department”) take all necessary steps to forthwith remove B born…2002, C born…2006 and D born…2014 from the mother.”

Evidence

Evidence Before The Court

Dixon J’s judgment in Briginshaw v Briginshaw (1938) 60 CLR 336 remains applicable and helpful when considering the standard of proof in a case such as the present. My view in that regard is supported by a decision of Branson J in Qantas Airways Ltd v Gama (2008) 167 FCR 537. At paragraph 128, Branson J noted that section 140(2) of the Evidence Act:-“…was intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities.” I am also keeping in mind those decisions of the Family Court of Australia following the High Court's decision in M v M. In particular, Fogarty J’s decision In the Marriage of N and S (1995) 19 Fam LR 837. Fogarty J stated from page 860:-“Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?” Given that the child Y was not able to remember what is was that she had alleged against the father – a mere two months after she first made the allegations to the Police – I have come to the conclusion that the events described by Y to the Police (in relation to the allegations of the father photographing Y and her sister et cetera) simply did not occur. My view in that regard is reinforced by the fact that the nine-year-old Z denied that any such incident or incidents have occurred. Z confirmed that she has never been made to feel uncomfortable by her father. In the circumstances, I consider that the Court is in a position to make a finding that the allegation made by the child Y, concerning the father taking inappropriate photographs of her and her sister Z did not occur. The allegation is groundless. Further support for my conclusion in that regard is found in the fact that the Police did not uncover any inappropriate photographs of the children of father’s telephone. There is no suggestion from anyone that the father had more than one telephone.

Decision

Reasons for decision

I am also encouraged by the fact that the mother is engaging with the CC Service (an indigenous support network). This will be beneficial to Y (note section 60CC(3)(h)). Conclusion It will be apparent from these reasons that there will be a final order that X will live with the father and only spend time and have communication with the mother in accordance with his wishes. The father will have sole parental responsibility in respect of X. The mother agrees with the father’s proposal (in broad terms) concerning X. For the reasons stated, there will be a final order that Y live with the mother. The mother will have sole parental responsibility in respect of Y. Y will spend time and communicate with the father in accordance with Y’s wishes. Both parents shall be required by order to facilitate communication between X and Y. I have had regard to section 61DA. The presumption in that paragraph of the Act has been rebutted in respect of both children (for the reasons stated). Because there will be no order in accordance with section 61DA, there is no necessity for the Court to consider the provisions of section 65DAA. Further, I note there is no necessity for the Court to provide any detailed reasons concerning any other aspect of Part VII of the Act. Each of the parties provided a further written submission on 14 October 2021. I have had close regard to those written submissions. Each submission supports the making of a final order.

Ratio Decidendi

Legal Principle Established

The primary considerations are found in section 60CC(2) and are as follows:- “(2) 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.(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).” Whilst the provisions of Part VII of the Act are often referred to as a ‘framework’ or ‘legislative pathway’ – there is no requirement that the sections of Part VII be considered in any particular order. [4] The Full Court of the Family Court further opined in Cox v Pedrana (2013) 48 Fam LR 651 at paragraph 31:-“31. While reference to a “legislative pathway” is, of course, an accurate descriptor of what individual sections within Pt VII of the Act require when taken together, care must be taken to not permit arguments about form to take precedence over the substance of what Pt VII requires. Equally, care must be taken to ensure that the use of such an expression is not to be a suggestion that a particular order must be followed if error is to be avoided…”[4] Cox v Pedrana (2013) 48 Fam LR 651 at [29] to [31]; Beckham v Desprez (2015) 55 Fam LR 310 at [31]. A determination under Part VII does not require the Court to make findings in relation to all those facts that may be in issue between the parties. This much has been said by the Full Court in Baghti & Baghti & Ors [2015] FamCAFC 71. The Court is only required to make findings and determine those facts which “are necessary for the determination of the issues between the parties.”[5] The High Court in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 stated at paragraph 62, per Gleeson CJ, McHugh and Gummow JJ, inter-alia: “62...A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.”[5] Baghti & Baghti & Ors [2015] FamCAFC 71 at [63]. The Full Court of the Family Court recently supported this dicta in Whisprun in a decision of Eagle & Scarlett (No.2) [2020] FamCAFC 291 (at paragraph 103). This approach is also consistent with what the Full Court has said in cases such as Banks v Banks (2015) FLC 93-637 – where the Full Court (when discussing the requirement to consider s.60CC factors) said at paragraph 49:-“49…It is also important to stress here that the requirement to ‘consider’ each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion” Whilst it should be noted that Banks was decided in relation to an interim orders application, I have come across no authority which would doubt its applicability to final orders applications – noting that what is required of the Court on both interim and final order applications is a consideration of the same statutory provisions. This approach is consistent with other decisions of this Court at first instance (see for example Calvert and Madock [2020] FamCA 219 at paragraph 46).