Bradbury and Lander and Ors (No 2)

[2020] FamCA 42

FAMILY COURT OF AUSTRALIA

BRADBURY & LANDER AND ORS (NO. 2) [2020] FamCA 42

FAMILY LAW – Applications in a Case – dismissed

APPLICANT: Mr Bradbury

RESPONDENT: Ms Lander

SECOND RESPONDENTS: Mr & Ms B Lander

INDEPENDENT CHILDREN’S LAWYER: Ms M Burgess

FILE NUMBER: CAC 239 of 2017

DATE DELIVERED: 21 January 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 21 January 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Haddock

SOLICITOR FOR THE APPLICANT: Infinity Legal

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE SECOND RESPONDENTS: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mary Burgess

Orders

1. The Mother's Response filed 16 January 2020 is dismissed.

IT IS NOTED THAT

1. That Response incorporated the two previous Applications in a Case that the Mother filed, therefore the Applications in a Case filed by the Mother on 24 November 2019 and 4 December 2019 are dismissed.

2. I dismiss the Response filed on 8 January 2020 by the maternal grandparents.

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 Bradbury & Lander 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 CANBERRA

FILE NUMBER: CAC 239 of 2017

Mr Bradbury

Applicant

And

Ms Lander

Respondent

And

Mr & Ms B Lander
Second Respondents

EX TEMPORE REASONS FOR JUDGMENT

1. This case involves competing applications regarding the child of the relationship, Y, and also an application on behalf of the Mother in respect to various property and procedural matters. 

2. The proceedings are awaiting a final hearing which I observe is the only means by which the extent and the scope of the disputed factual matters might be able to be resolved.  Interim hearings are notorious for their lack of capacity to adequately resolve contested factual issues.  This is a matter which is replete with contested factual issues of a nature which could only be resolved, if they can be resolved at all, by the hearing of contested evidence and the testing of that evidence at a final hearing. 

3. There are competing proposals made in relation to Y.

4. The Father seeks that there be a move from the current regime such that Y should only spend time with her Mother in a professionally supervised form.

5. The Mother seeks that there be an alteration of the current regime such that she would be the primary carer.  Her position in relation to this is supported by the maternal grandparents who are parties to these proceedings.  The Mother seeks that in that regime, with her as a primary carer, that Y would still spend either two or three nights per week with the Father. 

6. The current orders have been in place following a contested interim hearing with judgment being delivered in January 2019.  Those orders provide for the Father to have sole parental responsibility for Y and for the Mother to have one night per week with Y, along with provision for holiday time. 

7. Prior to that, arrangements have been, since shortly after the end of the relationship; from 3 March 2017, for Y to have supervised time with her Mother, from 24 April 2017 for Y to have unsupervised time with the Mother three afternoons a week, such arrangement being generally continued by orders from 28 September 2017 until January 2018 when the orders were changed such that the Mother had alternate Fridays to Saturdays along with, in the other week, Friday and Saturday periods, and then on 21 August 2018 that changed to one night and one afternoon per week before being changed by me to one night per week in January 2019.

8. Prior to the parties’ separation it is unclear exactly what the parenting arrangements were, as that forms part of the contested facts in the matter, but it seems reasonably certain that the Mother was heavily involved in Y's care.  When the current orders were imposed in January 2019 a significant part of the Father's argument was that there was such conflict and hostility, hostility on the part of the Mother towards him, that he should be the primary carer.  He argued at that point that the orders that are currently in place would support meaningful relationship with the Mother, and it has been accepted that his argument then accepted that there were benefits of meaningful relationship with the Mother at that time. 

9. I am now asked to consider the parties’ competing applications on what is quite limited information. 

10. The Father's affidavit material focuses on the need for change based again on the question of hostility towards him by the Mother and conflict, particularly conflict which takes place at the handovers which by my orders of January 2019 are required to take place at a police station.  Even though they are required to take place at a police station (unless alternate arrangements are made or unless a suitable third party is involved) there have still been gross difficulties in the handovers taking place.  There is not evidence available to me that enables me to find a more acceptable regime for the handover in what are undesirable circumstances for Y.  The ongoing conflict at handovers is not in Y's best interest but I am not provided with evidence that enables me to cure that particular ill. 

11. The Mother does not have an affidavit available to her in these interim proceedings, at least not an affidavit that has been prepared by her.  It may be noted that she filed an affidavit outside of the filing directions and was declined permission to rely upon that affidavit.  That left minimal material, although the Mother was still able to rely upon an affidavit supplied by her daughter Jacqueline and one by her sister.  That material principally relied on dated material. 

12. The maternal grandparents were able to rely upon an affidavit even though it had been filed out of time.  That affidavit was in large part argumentative and was not directed to the current circumstances faced by Y.  Rather, it concentrated on parsing and retracing previous interim hearings and the proceedings which surrounded them, and the circumstances of those hearings.  Those matters may of course be of great importance at a final hearing and the Court is equipped with the facility to seek to resolve those disputes.  They did not assist in the resolution of the current dispute between the parties.  It may be observed that there is some evidence led by the Mother and maternal grandparents which is supportive of the notion that there was family violence in the relationship between the parents, but do not point to Y being at any significant risk.  Even if their evidence is accepted, it is unclear even on the acceptance of their evidence that it provides adequate evidence that the episodes of violence were significant episodes of violence.  It is simply not clear at this point but remains a matter which I anticipate will need to be resolved at a final hearing on the testing of contested evidence. 

13. Again, it should be observed that despite the leading of that evidence about allegations of family violence it still remains the Mother's position that the Father should spend two to three nights per week with Y.  She says that that limited time would provide adequate protection.

14. Questions were also raised about the interim proceedings, primarily on the part of the maternal grandparents, alleging that the Father had understated his mental health issues to various report writers, and questions were raised about whether in 2015, when the Father asserted he was Y's primary carer, that he really wished to be interacting with Y.

15. The various historical matters which may be seen to move into 2017 and touched 2018 are insufficient to support the orders that have been sought by the Mother in respect of the change of parenting arrangements for Y.  They simply do not deal with her current circumstances in a way that will allow me to determine that it is in her best interests that there be a departure from the current regime when considering the matters raised under s 60CC.  It may be observed that this is a case where the determination of Y's best interests hinges upon the primary considerations.

16. The Father, for his part, says that there is a risk posed by the vitriol held, he alleges, by the Mother towards him; by the conflict that takes place between them, primarily shown at the handovers; but also shown in the transmission of SMS messages between them.  It may be that at a final hearing the Father is able to adduce a compelling case of the Mother being vitriolic towards him on the basis of communications with him and various Facebook posts.  It is clear and undisputed that there is high conflict and difficulties at handover.  The Father points to these risking Y's exposure to that vitriol and conflict and includes amongst those risks the potential for the neglect of Y by her Mother, by the Mother being distracted by this vitriol, and points to impact upon him from being the subject of that vitriol, and the potential for that to undermine his capacity to parent. 

17. I note that there is no direct evidence even reasonably suggestive of either of these two outcomes.  In fact, the Father's material points to no actual impact on Y of the vitriol which he alleges flows from the Mother, nor of the conflict.  Rather, his case is predicated on the risk potential of that vitriol and conflict. 

18. His proposal is one of professional supervision to be funded by the Mother.  The evidence does not enable me to have any confidence, either in the short or medium term that such supervised contact could actually take place.  I cannot be confident that it is available.  I cannot be confident there is funding for it.  This would have the effect of a temporary cessation of the relationship between the Mother and Y.

19. I was reminded helpfully by counsel that there is no presumption that there are benefits which flow from meaningful relationships, but again I was assisted by counsel’s appropriate concession that the previous conduct of this matter has been on the basis that there are benefits of meaningful relationship between Y and the Mother.  In any event this is a long-term significant relationship for Y.  It includes likely periods of substantial care up until closely before the first of the orders in the Federal Circuit Court when Y was about three years old.  I am required by s 60CC to consider the likely effect of a change in circumstances and I note that this is a relationship that Y has had throughout her life, that it is likely to be important to Y, that the orders proposed would involve the temporary removal of the Mother, and it is unclear what effects might flow from that.  But they raise the spectre of negative consequences of such a sharp change in the relationships and the important relationships within Y's life.  On that basis, and being unable to identify that there is in fact a present significant risk to Y of the current regime, that there are significant changes to be faced by her if I make the orders sought by the Father, and on the basis that there has previously been the proceedings conducted on the basis of there being benefits of meaningful relationship in maintaining the relationship between Y and her Mother, I refuse the Father's application on the basis that it is not in Y's best interests. 

20. Accordingly, the position then is that the Father's application is refused as is the Mother’s, the Mother’s primarily on the basis that there is such a lack of evidence as to be unable to address the 60CC considerations adequately on an interim basis to demonstrate that there should be a change of circumstances in Y's best interests or that she should, regardless of whether one considers it as a change of circumstances, be Y's primary carer. 

21. The Mother also in her application sought a suite of procedural and property and maintenance and other orders.  On the refusal to the Mother of permission to rely upon her primary affidavit there is insufficient evidence to support any of those orders. 

22. Finally, the Mother sought an order that she be permitted to serve the Father with Court documents by email.  The Rules provide mechanisms for the service of documents.  Service can be affected adequately by compliance with those Rules which include provision for the service of documents by post.  In a case where, having observed the material sought to be relied upon by the Mother at a late stage of the proceedings which included more than a thousand pages of exhibited material, and noting also that the Rules provide that a hard copy of such exhibits are to be provided in any event, I decline to depart from the scheme that is set out in the Rules for the service of documents. 

23. Accordingly, I dismiss the Mother's response and I note that that response incorporated the two previous Applications in a Case that she had made which are also dismissed.

24. I dismiss the Response filed by the maternal grandparents.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 21 January 2020.

Associate:

Date:  31 January 2020