Breck & MacKellar

[2021] FedCFamC1F 102

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Breck & MacKellar [2021] FedCFamC1F 102

File number(s):

ADC 283 of 2021

Judgment of:

AUSTIN J

Date of judgment:

23 September 2021

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Review of Decision – Where the Senior Registrar made interim parenting orders joining the maternal grandparents to the proceedings and for the child to live with the applicant father two days a week and with the maternal grandparents at all other times – Where the applicant father seeks review of those orders – Where the maternal grandparents sought an adjournment of the hearing – Where it would be a repudiation of the statutory demand for efficiency to postpone an urgent interim application concerning a child – Application dismissed – Where the Senior Registrar did not allocate parental responsibility, nor was it the subject of any submission by the parties – Where the child’s residence should remain with the maternal grandparents – Application dismissed – Where the respondent mother and maternal grandparents sought costs of an incidental to the review proceedings – Where the application was wholly unsuccessful – Costs ordered in a fixed sum.

Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61D, 61DA, 64B, 64D, 65C, 65AA, 65DAA, 66CC, 69C, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.05

Cases cited:

Aldridge & Keaton (2009) FLC 93-421

Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175

Banks & Banks (2015) FLC 93-637

Goode & Goode (2006) FLC 93-286

Maldera & Orbel (2014) FLC 93-602

Valentine & Lacerra (2013) FLC 93-539

Division:

Division 1 First Instance

Number of paragraphs:

60

Date of hearing:

23 September 2021

Place:

Newcastle

Counsel for the Applicant:

Mr Robinson

Solicitor for the Applicant:

The Family Law Project

Counsel for the First Respondent:

Mr Jelbert

Solicitor for the First Respondent:

Camena Legal

Counsel for the Second and Third Respondents:

Mr Praolini

Solicitor for the Second and Third Respondents:

Angela Ferdinandy

Counsel for the Independent Children's Lawyer:

Ms Lindsay

Solicitor for the Independent Children's Lawyer:

Denise M Rieniets & Associates Pty Ltd

ORDERS

ADC 283 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1

BETWEEN:

MR BRECK

Applicant

AND:

MS A MACKELLAR

First Respondent

MS MACKELLAR

Second Respondent

MR B MACKELLAR

Third Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	23 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The Application for Review filed on 2 September 2021 is dismissed.

2.The father shall pay the respondents’ costs of and incidental to the review application assessed at $1,250 inclusive of GST for the First Respondent and $1,250 inclusive of GST for the Second and Third Respondents.

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 r 17.02 Family Law Rules 2004 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Breck & MacKellar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. These proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) concern a child born in 2018, who is now not quite three years of age.

2. The applicant is the father.

3. The first respondent is the mother.

4. The maternal grandparents are the second and third respondents respectively, having been joined to the proceedings in August 2021.

5. The proceedings were commenced by the father in January 2021 against only the mother, apparently due to his dissatisfaction with the level of his involvement in the child’s life.

6. Interim orders were made between the parents in March 2021, providing for the child to live with the mother, but on condition that she and the child live with the maternal grandparents, with whom they had historically always lived. Provision was also made for the child to spend time with the father.

7. Unfortunately for the mother, she has not enjoyed stable psychological health. In or about June 2021, she disengaged from the maternal grandparents and vacated their home, leaving the child in their care. That precipitated a flurry of interim applications for new parenting orders. Those applications comprise:

   (a)the Application in a Case filed by the maternal grandparents on 2 July 2021;

   (b)the Application in a Case filed by the father on 9 July 2021;

   (c)the Response to an Application in a Case filed by the father on 16 August 2021; and

   (d)the Response to an Application in a Case filed by the mother on 20 July 2021. 

8. Those applications were all listed for hearing before the Senior Registrar on 17 August 2021, at which time the dispute was adjourned to 26 August 2021. Following a hearing on that date, the Senior Registrar made orders which essentially provided for:

   (a)the maternal grandparents’ joinder as parties to the proceedings as the second and third respondents (Orders 1 and 2);

   (b)the child to live with the father for two days each week (Order 4); and

   (c)the child to live with the maternal grandparents at all other times (Order 5). 

9. The father filed an Application for Review on 2 September 2021, seeking the review of only Orders 1, 2 and 5 made by the Senior Registrar. Although there was no formal application to review Order 4, at least inferentially, the father’s dissatisfaction extended to incorporate that order because he wants the full-time residence of the child.

10. The review application was opposed by the mother, the maternal grandparents and the Independent Children’s Lawyer (“the ICL”).  The review application was listed for hearing before me today (23 September 2021) and, for the reasons which follow, it is dismissed.

    Evidence

11. The father relied upon:

    (a)his affidavit filed on 16 August 2021;

    (b)his affidavit filed on 24 August 2021; and

    (c)the affidavit of the paternal grandmother, filed on 16 August 2021. 

12. The mother relied on her affidavit filed on 25 August 2021. 

13. The maternal grandparents relied upon the affidavit of the maternal grandmother, filed on 15 September 2021.

14. The maternal grandparents also relied upon paragraphs 33 and 41 of the father’s affidavit, filed on 21 January 2021, but not read by the father in his case. As a consequence, those two paragraphs of that affidavit were tendered in evidence (over the father’s objection) and were marked as an exhibit (Exhibit A). Despite the submissions made by the father’s counsel, the evidence was clearly relevant, though amenable to argument over its probative value.

15. The ICL relied upon the affidavit she filed on 18 August 2021.

    Adjournment Application

16. Before the hearing commenced, the maternal grandparents sought an adjournment of the hearing until after the family report is released, which is expected to be not before 30 September 2021. The application was refused.

17. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) envisage review applications being heard and determined promptly (r 14.05(4)). It would be tantamount to the repudiation of common law principles (Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175) and the statutory demand for efficiency (s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)) for the Court to postpone hearing what is supposed to be an urgent interim application concerning a child.

18. Regardless of the contents of the family report, the opinions and recommendations within it will be untested and will not assist the resolution of any contentious issues of fact or law because conclusive findings are beyond the ambit of an interlocutory hearing.

    Legal Principles

19. 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).

20. 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).

21. 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), though that presumption may be either rendered inapplicable (s 61DA(2)) or rebutted (s 61DA(4)).

22. 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.

23. Those statutory considerations apply, whether or not the orders under Pt VII of the Act are sought on a final or, as is the case here, interim basis.

24. The procedure for conducting an interim hearing 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 separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

25. The Full Court also said (at [74]):

    The filing of lengthy affidavits is unlikely to be helpful where the Court is unable to make findings about disputed facts.

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

    Best Interests - Primary Considerations (s 60CC(2))

27. I proceed upon the assumption that the child enjoys and derives benefit from meaningful relationships with both parents. I did not understand it to be seriously contended otherwise, even though the child does not presently live with either one of them.

28. The father seeks the child’s primary residential care, but he does not assert that outcome is necessary in order to ensure the child retains a meaningful relationship with him. That must be so because the father contends he and the child already enjoy a meaningful relationship, despite his hitherto limited involvement in the child’s life.

29. The underlying premise of the father’s dissatisfaction with the current arrangement is that the maternal family have, either intentionally or inadvertently, marginalised him in the child’s life.  But that is not a finding which is open at this juncture. Both the mother and the maternal grandparents assert, or at least imply, the father’s limited involvement in the child’s life has been due to his voluntary decision. Presumably, the viewpoints advanced by the parties are their honest perceptions but they are, nonetheless, irreconcilable and no finding is possible on untested evidence.

30. Regardless of the reason why, the father has had much less involvement in the child’s life than have the mother and the maternal grandparents. By the father’s own admission, aside from merely day-time visits, the child has only spent 28 nights in his care in the period between the child’s birth in December 2018 and his commencement of these proceedings in January 2021 (father’s first affidavit at [22]). For the whole of that time, the child has lived in the maternal grandparents’ home, from which home the mother has come and gone intermittently. Even when the parents briefly reconciled their relationship in late 2020, the child apparently remained primarily resident with the maternal grandparents (father’s second affidavit at [17]).

31. The closeness of the child’s relationships with the maternal grandparents is not a primary consideration under s 60CC(2)(a) of the Act, but is rather an additional consideration under s 60CC(3)(b) of the Act, though nonetheless an important feature of the evidence. His residence in their household for the whole of his life is a compelling consideration in determining what is in his best interests.

32. The father sought to contend that, in effect, the mother has disqualified herself from current consideration as the primary residential carer and so, in a contest narrowed to one between himself and the maternal grandparents, he must be selected as the primary residential carer because of the primacy of the “parental” relationship established by the provisions of s 60CC of the Act and the guideline judgment of the Full Court in Goode & Goode. However, the submission is rejected.

33. As the father was impelled to concede, the maternal grandparents have standing under the Act and they enjoy an unconditional right to prosecute parenting applications in respect of the child (ss 65C(ba) and 69C(2)(c)). Accordingly, when alerted to that, the father abandoned his attempt to review Orders 1 and 2 made by the Senior Registrar. However, as an aside, the maternal grandparents ought to have been designated “interveners” rather than “respondents”, because they were joined as parties on their own application, not by reason of their response to applications brought against them.

34. In any event, the father’s express or implied contention that he enjoys a more favourable position under the Act compared to that of the maternal grandparents is a submission which is inconsistent with established authority.

35. Where the provisions of ss 60B and 60CC of the Act refer specifically to “parents” in the objects, principles and considerations relevant to the determination of a child’s best interests, the legislature does not intend the reference to encompass parties or third parties who are not “parents” of the subject children (Aldridge & Keaton (2009) FLC 93-421 at [44]–[48]). Nevertheless, the Act does not import any presumption in favour of parents over non-parents in the determination of proper parenting orders (Maldera & Orbel (2014) FLC 93-602 at [79]–[81]; Valentine & Lacerra (2013) FLC 93-539 at [42]–[43]; Aldridge & Keaton at [59]–[61], [75]–[81] and [83]). It must follow that the father’s submission of his statutory entitlement to preferential treatment over the maternal grandparents, absent any evidence of him posing an unacceptable risk of harm to the child, must be rejected.

36. The father made no submission that s 60CC(2)(b) was engaged by the evidence and I consequently find the child does not need protection against any risk of harm from subjection or exposure to family violence, abuse or neglect in the maternal grandparents’ care. While the father deposed that the child is not safe in the maternal grandparents’ care (father’s first affidavit at [29]) and that they neglect his need for speech pathology (father’s first affidavit at [28]), I pay such opinions no heed in the face of his counsel’s forensic decision not to press the allegations as being relevant.

    Best Interests – Additional Considerations (s 66CC(3))

37. I have already stressed the importance of the child’s relationships with the maternal grandparents and the stability he seemingly thereby enjoys in their care. The maternal grandmother deposed this in her affidavit (at [14]):

    [The child] has lived with us for his whole life.  He has his own room.  All of his belongings are at our home.  My husband and I have given [the child] both stability and consistency in his life.  He has never spent a night away from us other than on ordered time spent to the father for one night per week since May 2021…

38. No more need be said about the stability of the child’s residence with the maternal grandparents.

39. The father is fearful the maternal grandparents do not support the child’s relationship with him, but aside from one aspect of the evidence to which I will shortly return, the evidence does not bear out his apprehension. Decisions about the extent of the child’s engagement with him up until June 2021 were within the exclusive province of the mother. She had the benefit of the interim residence order made in March of 2021 and she was the one who decided whether or not the child actually spent time with the father. Prior to those interim orders being made, arrangements for the child were exclusively a matter for negotiation between the parents, as they each held parental responsibility.

40. It was only from June 2021, when the mother vacated the maternal grandparents’ household and left the child in their care, that they had to step into the breach and make such decisions for the child. The father robustly alleged the maternal grandparents refused to allow the child to spend time with him, but there is an entirely plausible explanation for that. The paternal grandmother deposed this in her affidavit (at [22]):

    On 30 June 2021 the father sent [the maternal grandfather] a message saying that his lawyer told him that we had to hand [the child] over to him because [the mother] was in hospital.  I then contacted the DCP and told them what the father had said.  They said that they recommended to me that we not hand [the child] to the father.  I told the father’s lawyers that I would hand him over for his court ordered time if he gave an undertaking to hand [the child] back.  He refused.

41. In the face of the father’s refusal to give the undertaking sought by the maternal grandparents, they reasonably inferred that he would not return the child to them – hence their decision to file an application seeking to intervene in the proceedings.

42. It is clear the maternal grandparents’ inference about the father’s intentions was reasonably drawn. In this hearing, the father boldly instructed his counsel to submit that once a substitute order was made for the child to live with him, another order should then be made to sever the child’s relationships with the maternal grandparents by eliminating (either immediately or gradually) the child’s visits with them. The lack of insight into the child’s emotional needs which is evident from such instructions and submission was astonishing.

43. The evidence shows an acceptable level of cooperation between the father and the maternal grandparents, which a few examples will serve to illustrate. In Exhibit A, the father deposed that, in a period when he and the mother were not getting along, he was able to successfully negotiate with the maternal grandparents for the child to spend time with him around his work commitments. The father also deposed the handovers of the child between him and the maternal grandparents were “uneventful” after the Senior Registrar’s orders were made (father’s second affidavit at [7]). Further, the father deposed that he and the maternal grandparents had been able to negotiate variations to the times of the child’s visits around special occasions (father’s second affidavit at [15]).

1. I acknowledge the paternal grandmother gives evidence of the maternal grandparents instructing the child to call the father by his first name rather than by the epithet “daddy” (paternal grandmother’s affidavit at [20]), which practice should be deprecated, but that alone is insufficient to bear out the argument that the maternal grandparents are intent on destroying the child’s filial relationship with the father and certainly does not now warrant reversal of the child’s residence.

2. Aside from the stability of the child’s residence with the maternal grandparents, it is plain that the father has very little comparative experience of providing primary care for the child and, in addition, there is very little evidence about his availability to provide primary care. The father deposed only this (in his first affidavit at [33]):

   I have flexible work arrangements that will allow me to care for [the child] on a full-time basis.  In the event I am required to work my family is supportive and can assist in caring for [the child] on those occasions.

3. No other factors under s 66CC(3) of the Act were addressed in submissions.

   Conclusion

4. I will return momentarily to the presumption of parental responsibility which ordinarily applies under s 61DA of the Act, as discussed by the Full Court in Goode v Goode.

5. It will be obvious from the reasons so far given that the focus of the parties’ submissions was entirely upon with whom the child should live. I have concluded the child’s primary residence should remain with the maternal grandparents. In summary, the reasons for that conclusion are these: the child’s relationships with them (on the available evidence) are just as important as the filial relationships he enjoys with both the mother and the father; the child has lived with the maternal grandparents in their home for his whole life; and there is no risk of harm to him in their household.

6. When informed of that result and asked how the proceedings should then be determined, both parents and the maternal grandparents proposed that I simply dismiss the review application. The ICL submitted the appropriate course would be for the discretion under Pt VII of the Act to be exercised afresh, this being a hearing de novo, but was prepared to acquiesce to the parties’ mutual position so as not to create more conflict.

7. The problem created by the parties’ proposal is this: the starting point for making any parenting orders, as already mentioned, is s 61DA of the Act and the presumption it creates for an order allocating equal shared parental responsibility to a child’s parents. If an order for equal shared parental responsibility is made in favour of the parents then it is obligatory to consider certain residential alternatives under s 65DAA of the Act. Unfortunately, the important issue of parental responsibility was not the subject of any submission by the parties at all.

8. In this particular instance it is quite plain that the two parents have diametrically opposed views about what is best for the child and so I draw the rather obvious conclusion that the presumption of equal shared parental responsibility is rebutted by the evidence of their conflict (s 61DA(4)). However, it will be observed from the suite of orders made by the Senior Registrar on 26 August 2021 that none was made allocating parental responsibility. It must therefore follow that, presently, parental responsibility for the child remains vested in both parents pursuant to the provisions of the Act (ss 61C and 61D). It is incongruous that the parents should still retain parental responsibility for the child when the decision has been forecast that orders will be made for the child to live with the maternal grandparents. Nonetheless, that is the outcome for which the parties have mutually advocated and it is not for me to run their cases.

9. Accordingly, I will do as the parties request and make an order to simply dismiss the Application for Review.

   Costs

10. The mother and the maternal grandparents both sought their costs of and incidental to these review proceedings, which applications were resisted by the father.

11. The ordinary rule under s 117(1) of the Act is that parties to the proceedings should bear their own costs of the proceedings, but of course an order for costs may be made (s 117(2)) subject to consideration of the mandatory factors prescribed by the Act (s 117(2A)).

12. Turning to consider those factors, it is submitted that all parties to these proceedings are in receipt of grants of legal aid. I remain puzzled as to how the father’s grant of legal aid could extend to support this unmeritorious review application but, regardless, it was not contended by the father that his receipt of legal aid precludes any costs order being made against him in the other parties’ favour. Their defence of this review application in vindication of the orders made by the Senior Registrar has had the effect of depleting the capped legal aid funding granted to both the mother and the maternal grandparents, thereby reducing the funds they could otherwise have applied towards resolution of the substantive proceedings.

13. I impute the financial circumstances of the parties are relatively meagre, having regard to their respective entitlement to legal aid, but the evidence demonstrates the father is in at least part-time employment and he is also a Defence Force reservist, for which I presume he is paid.

14. The review application was wholly unsuccessful because, in my view, it was wholly without merit. The extension of the review application to dispute even the orders made by the Senior Registrar joining the maternal grandparents as parties to the proceedings exemplifies just how misconceived the application was.

15. I am persuaded to make an order for costs against the father in respect of both the mother and the maternal grandparents. I reject the father’s counsel submission that the mother is not entitled to costs because it was unnecessary for her to appear and defend the orders. The father named her as the first respondent to his application so, as a party to the proceedings, she was entitled to defend the Senior Registrar’s orders, just as were the maternal grandparents.

16. Turning then to the question of quantum, there was an argument between counsel about the appropriate quantification of the scale costs but, having heard the submissions, I am satisfied the sum of $1,250 (inclusive of GST) is an appropriate sum to award to both the mother and the maternal grandparents.

17. For those reasons, I make orders in these terms.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       5 October 2021