Borchard and Portner

[2019] FamCA 236

FAMILY COURT OF AUSTRALIA

BORCHARD & PORTNER [2019] FamCA 236

FAMILY LAW – CHILDREN – Interim orders – Best Interests – With whom the child should spend time – Where final orders were made in 2016 providing for the child to live with the mother unless she relocated outside of Australia – Where the mother relocated back to the United Kingdom and the child’s residence reverted to the father – Where the mother has returned to live in Australia – Where interim orders were sought to restore the child’s relationship with the mother – Where the father has recently relocated to pursue an employment opportunity and the current travel time between the parties’ respective residences is approximately four hours in duration – Where the child has a strong and meaningful relationship with the father from which she derives benefit – Where the father has been consistently present in the child’s life – Where the child’s views are considered – Ordered the child live with the father and spend two hours per fortnight with the mother.
FAMILY LAW – CHILDREN – Parental responsibility – Where presumption of equal shared parental responsibility is rebutted because it is not in the child’s best interests – Ordered the father have sole parental responsibility for the child as the residential parent.   

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 64B, 65AA, 65D. 65DAA, 65DAC

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

APPLICANT: Mr Borchard

RESPONDENT: Ms Portner

INDEPENDENT CHILDREN’S LAWYER: Jennifer Blundell & Associates

FILE NUMBER: NCC 3224 of 2014

DATE DELIVERED: 5 April 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 5 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Mr Leishman, Andersons Solicitors

COUNSEL FOR THE RESPONDENT: Mr Murray

SOLICITOR FOR THE RESPONDENT: Equilaw Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Blundell, Jennifer Blundell And Associates

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT

1.All former parenting orders in relation to the child B, born … 2007, are suspended.

2.The father shall have sole parental responsibility for the child.

3.The child shall live with the father.

4.The parties shall take all reasonable steps to ensure the child spends time with the mother each alternate Saturday from 11:00 am until 1:00 pm, commencing on Saturday, 13 April 2019.

5.For the purpose of implementing Order 4, the parties shall cause the child to be exchanged at the McDonald’s Restaurant at Town A, NSW.

6.Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

7.Otherwise:

a.The application for interim relief sought in the Initiating Application filed on 20 December 2018 is dismissed;

b.The Response to an Application in a Case filed on 5 February 2019 is dismissed;

c.The Amended Response to an Application in a Case filed on 3 April 2019 is dismissed; and

d.Any and all other outstanding applications for interim relief are dismissed.

IT IS FURTHER ORDERED THAT

8.The trial of this matter is listed before Justice Austin at 10:00 am on Monday, 22 July 2019, for a period of three days.

9.The setting down and trial fees shall be paid by the parties in equal shares, within one month of the date of these orders.

10.The applicant father shall file and serve any Amended Application by Thursday, 18 April 2019.

11.The respondent mother shall file and serve any Amended Response by Friday, 3 May 2019.

12.The parties shall file and serve the affidavits upon which they rely at trial by Friday, 21 June 2019.

13.Leave is granted to the applicant father to file and serve one affidavit for himself only.

14.Leave is granted to the respondent mother to file and serve one affidavit for each of the following persons:

a.Herself; and

b.Ms E.

15.The witness relied upon by the Independent Children’s Lawyer will be the Family Consultant.

16.Except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any past affidavits, without the leave of the court.

17.The Independent Children’s Lawyer shall forthwith notify the Family Consultant in writing of the trial dates and confirm the availability of the Family Consultant to give evidence on those dates.

18.Leave is granted to the Independent Children’s Lawyer to issue a subpoena to:

a.The principal of any school attended by the child; and

b.The child’s treating psychologist.

19.The parties shall by Wednesday, 17 July 2019, file and serve upon one another, a Case Outline Document containing:

a.Short Summary of Argument; and

b.List of Authorities.

20.If either party should default in the compliance with these orders the other party may, on notice being given to the other, seek that the matter be re-listed for consideration of further orders pursuant to Rule 11.02(2) of the Family Law Rules.

21.Liberty to restore the matter to the list on seven days notice for further procedural directions.

NOTATION

A.The parties and the Independent Children’s Lawyer advise the Court they require an expedited trial and do not require a Family Report to be prepared by the Family Consultant pursuant to s 62G of the Family Law Act.

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 Borchard & Portner 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 NEWCASTLE

FILE NUMBER: NCC 3224 of 2014

Mr Borchard

Applicant

And

Ms Portner

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1.Pending before the Court is an interim parenting dispute between the mother and the father over their daughter who is nearly 12 years old. 

2.Prior litigation between the parties was resolved when Cleary J made final orders in October 2016 providing that the child live with the mother if she continues to live in the Town D area but if, as she must have foreshadowed as a possibility, she moved back to live in the United Kingdom (“UK”) then the child would instead live with the father. Some supplementary orders were made by Cleary J in December 2016 investing the father with sole parental responsibility with regard to the child’s education and medical treatment in Australia, but otherwise allocating the parties with equal shared parental responsibility.

3.At some point afterwards, the mother left Australia to live in the UK and the child’s residence reverted to the father. The child apparently last spent time with the mother in January 2018, prior to resumption of litigation. 

4.The current litigation was commenced in December 2018, shortly after the mother moved back to live in Australia, in the Town D area.  

5.The parties’ initial competing interim applications were first returnable before the Court on 8 February 2019. On that date, the hearing was adjourned until after the family conferred with the Family Consultant pursuant to an order made under s 11F of the Family Law Act 1975 (Cth) (“the Act”) to help resolve their dispute. But in the interregnum, orders were consensually made requiring the father to “make the child available to spend time with the mother” for one hour each week and to also “make the child available” to communicate with the mother by telephone each Thursday evening.

6.The family met with the Family Consultant and a Memorandum of that consultation was prepared for the Court in March 2019. According to the available evidence, the child did spend one hour each week with the mother in accordance with the interim orders, though the child was apparently resistant to do so. However, the telephone communication did not occur, for which each party apparently blames the other.

7.The father recently moved with the child from the Town D area to the Town F area, allegedly to take up a new employment opportunity. I remain unsure whether the mother accepts or disputes the integrity of the reason he offers for the relocation, but presently that is immaterial. Regardless, the mother is and will apparently remain resident in the Town D area. The drive between the Town D area and Town F areas is said to be around four hours in duration. 

8.The mother’s current application is two-fold. First, she wants the dispute listed for trial on an expedited basis. Importantly, she does not want a Family Report prepared pursuant to s 62G of the Act. She is content to rely upon the Memorandum of the Family Consultant dated 4 March 2019. The father and the Independent Children's Lawyer consent to that application. Second, the mother wants interim orders made to restore and regulate her interaction with the child until the trial, now that the father and child have relocated their residence some distance away from her. Specifically, she wants orders for the child to spend time with her for eight hours on a weekend once per month and to communicate with her by telephone each Thursday evening. The father and the Independent Children's Lawyer both oppose any such interim orders.

9.Although there was some initial misunderstanding about the father’s position, he does not simply want the mother’s amended oral application dismissed. He also wants the existing parenting orders suspended. They are the orders formerly made by Cleary J on a final basis, together with the interim orders recently made by me with the parties’ consent on 8 February 2019. As I understand it, the Independent Children's Lawyer supports the father’s proposal.

EVIDENCE

10.In support of her amended oral application for interim orders, the mother relied upon her two affidavits filed on 5 February 2019 and 3 April 2019. 

11.The father relied upon his affidavit filed on 20 December 2018. 

12.Both parties and the Independent Children's Lawyer relied upon the Family Consultant’s Memorandum dated 4 March 2019. 

LEGAL PRINCIPLES

13.Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

14.When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

15.The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). The presumption of equal shared parental responsibility does not apply in certain circumstances (s 61DA(2)) and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)).

16.In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

17.Those principles apply regardless of whether the parenting orders are being sought on a final or interim basis.

18.The procedure for conducting an interim hearing such as this has been authoritatively established by the Full Court. In Goode & Goode (2006) FLC 93-286, the Full Court said at [68]:

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 would have regard to the care arrangements prior to the separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

19.In Banks & Banks (2015) FLC 93-637 at [47] to [50], the Full Court noted that a paucity of uncontroversial evidence means that only limited consideration may be given to the factors prescribed by s 60CC of the Act, and further interim disputes should be confined to only those issues which the best interests of the child require be determined prior to a proper determination at trial. Not every s 60CC factor need be discussed in that process.

20.It is impossible for the Court to make a finding in this interlocutory hearing about the underlying factual dispute between the parties, namely, whether the child’s resistance to the mother is the product of her own experience and an expression of her own will (as the father contends) or merely responsive to the father’s deliberate or unintentional influence upon her to reject the mother (as the mother contends). 

BEST INTERESTS OF THE CHILD

Section 60CC(2)(a)

21.The child undoubtedly has a strong and meaningful relationship with the father from which she derives much benefit. The Family Consultant reported that the child described having a “very close relationship with the father” (at [24]). The Family Consultant also described the child as being supportive of, and loyal to, the father. She noted the father has been a consistent presence in the child’s life for many years and especially over the last two years when the mother returned to the UK to live. The Family Consultant opined the child feels strong loyalty to the father and that he is a very important person to her (at [52]). So much could hardly be doubted.

22.By comparison, the child described her relationship with the mother to the Family Consultant in such a way as to lead the Family Consultant to describe it as a “complex and, at times, conflicted relationship” (at [24]).

23.It seems the child became very upset when the mother decided to relocate back to the UK in or about November 2016. The father told the Family Consultant that he had since experienced difficulty in persuading the child to talk to the mother by telephone (at [10]). According to him, the child reached the point where she refused to spend time with the mother over the Christmas period of 2017 (at [11]). The father reported to the Family Consultant that, when he told the child in November 2018 that the mother was returning to live in Australia, the child became resistant to communicate with the mother and professed she did not wish to see the mother (at [13]). The Family Consultant formed the opinion that the child felt blame for the mother’s decision to move away from Australia to the UK, knowing the child would stay in Australia. The child obviously felt abandoned.

24.The child asserted to the Family Consultant that the father tries to encourage her relationship with the mother (at [32]) though, as I have said, the mother apparently doubts that sentiment.

25.According to the Family Consultant, the themes of the child’s interview centred on her anger and distress at her perceived abandonment by the mother. In the view of the Family Consultant, the child has “ambivalent feelings” towards the mother (at [50]). She apparently loves her, but she also hates her for causing her to feel so distressed and angry. The Family Consultant considered that, until the mother left Australia for the UK in 2016, the mother had been the child’s primary attachment figure (at [55]). 

26.Those statements attributed to the child and those opinions borne by the Family Consultant lead me to the conclusion that the child still has a meaningful relationship with the mother, but she presently derives much less benefit from it than she does from her meaningful relationship with the father.

27.That is an important consideration because, even if the child’s feelings towards the mother are ambivalent, her residual love for the mother leaves room for cautious optimism that orders requiring their future interaction will help restore their relationship. I impute from the Family Consultant’s Memorandum that the child harbours an unspoken desire for some form of restoration of her relationship with the mother.

Section 60CC(2)(b)

28.Neither party suggested the child was at risk of physical or psychological harm as a consequence of either subjection or exposure to neglect, family violence or abuse. Consequently, it is of no relevance to the outcome of these proceedings.

Section 60CC(3)

29.The child’s views are a significant consideration in these proceedings, given that she is approaching adolescence. According to the Family Consultant, the child expressed “strong views” to “sever her relationship with the mother”, but the Family Consultant considered her reasons were “quite complex and tied into the history of the matter” (at [20]).

30.The child clearly told the Family Consultant she would be very upset if orders were made for her to spend time with the mother and, conversely, she would be very happy if no orders were made compelling her to see the mother (at [34]). Her age and maturity requires some weight to be reposed in her views, but she is not yet old enough or mature enough for her views to be dispositive of the pending applications. Her expressed views must be seen through the prism of the, as yet undetermined, factual dispute about whether they are influenced by the father.  They must also be contrasted with the Family Consultant’s presently unchallenged and untested opinions about the child’s feelings of ambivalence towards the mother. It may be that her expression of strong sentiments not to interact with the mother are simply a manifestation of her indignation at being abandoned by the mother and she may genuinely harbour a desire to rejuvenate her relationship with the mother. That obviously will be a matter for the trial. 

31.Self-evidently, the father’s decision to relocate with the child from the Town D area to the Town F area makes it much more difficult for the parties to exchange the child between them. On the face of it, the father’s decision to relocate with the child does not seem unreasonable. When he met with the Family Consultant a little over a month ago he foreshadowed the possible need to move away from the Town D area in order to secure his employment. Consequently, his recent relocation is not an entire surprise.

CONCLUSIONS AND ORDERS

32.Returning then to the issue of parental responsibility, the Act imports a presumption that parents should be conferred with equal shared parental responsibility for their child.

33.There is no evidence adduced of family violence or abuse so as to make the presumption of equal shared parental responsibility inapplicable. However, according to the Family Consultant, both parties reported to her having a “poor co-parenting relationship” (at [41]). It would appear the parties are incapable of conferring over important issues related to the child with the temperance, courtesy and civility that would be demanded of them by s 65DAC of the Act. In the circumstances, I am led to conclude in the relative scarcity of other evidence that the presumption of equal shared parental responsibility is rebutted because it would not be in the child’s best interests for her parents to have equal shared parental responsibility for her (s 61DA(4)).

34.I will, therefore, make an order for the father to have sole parental responsibility for the child, since there is no doubt that, for the time being at least, he will remain the child’s residential carer. Because no order is made for equal shared parental responsibility, s 65DAA of the Act is not engaged and I need not give consideration to its provisions.

35.I turn, therefore, to consider what, if any order, should be made for the child to spend time with the mother. The mother conceded to the Family Consultant that her departure to the UK in 2016 “greatly affected” the child and that the child had not coped well since (at [43]). In the view of the Family Consultant, if the child is ordered to spend “substantial and significant time” with the mother, it is unlikely the child will cope due to her anxiety. That is to say nothing of the Family Consultant’s opinion that the child would struggle to spend significant time with the mother when such order would flatly contradict her expressed views (at [56]). The evidence rules out any prospect of an interim order providing for the child to spend substantial and significant time with the mother.

36.The Family Consultant was of the view that if orders were made so as to not require the child to spend time with the mother then the child would be able to settle and, subject to her receiving therapeutic counselling, the reprieve may give her an opportunity to address her emotional flux and her ambivalent feelings towards the mother in relative safety (at [57]).

37.While the Family Consultant opined that outcome would enable the child to relieve herself of angst in the short term, the Family Consultant was far from satisfied that it would be reflective of the child’s long term best interests. The Family Consultant was alive to the real risk that if the child does not spend time with the mother then the relationship between them is liable to break down completely (at [58]). 

38.The Family Consultant sought to tentatively direct a way through the conflict by recommending that an order be made for the child to spend short periods of time with the mother in relative safety. She recommended two hours a fortnight, which she considered would not disrupt the child too much (at [59]). I pause to acknowledge that, less than two months ago, the father consented to an order which required him to present the child to the mother once each week for one hour. According to the evidence, the order was successfully implemented, at least initially. No submission made by the father’s lawyer was sufficient to convince me that he is now incapable of presenting the child to the mother only half as frequently, but for visits of two hours instead of only one. The tentative recommendation of the Family Consultant, for the child and the mother to be brought together for two hours once a fortnight, seems to me to be a sensible compromise. An order in those terms takes into account the distance between the parties’ two households.

39.For those reasons I intend to make an order that the child spend time with the mother for two hours each fortnight and the order will be expressed in terms which requires the parties to do their best to ensure it happens. 

40.The mother also applied for an order compelling the father to make the child available for telephone calls once a week. I decline to make such an order. The evidence of the Family Consultant is that the telephone communication required by the consent orders made on 8 February 2019 has not been successfully achieved (at [14]). I have insufficient evidence to enable any determination as to where responsibility for that breach should lie, but to make an order perpetuating the arrangement in the certain knowledge it will continue to be unsuccessful is only going to be productive of more friction. I therefore decline to make an order for telephone communication. 

41.For those reasons I make orders in the following terms.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 5 April 2019.

Associate: 

Date:  24 April 2019