BROOK & BROOK

[2015] FamCA 1016

FAMILY COURT OF AUSTRALIA

BROOK & BROOK [2015] FamCA 1016

FAMILY LAW – CHILDREN – Best interests – question of the child’s time with the father on an interim basis following a final hearing and pending judgment – where the mother alleges risk of family violence to the child – where the father seeks to move to overnight time – where the child has been spending unsupervised weekday time with the father – where the mother does not propose supervised time – no unacceptable risk to the child in spending weekend time and holiday time with the father in the interim  – interim orders made that the child spend day time with the father on weekdays and weekends

Family Law Act 1975 (Cth)

Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637
Goode and & Goode [2006] FamCA 1346; (2006) FLC 93-286
Harridge and Anor & Harridge and Anor [2010] FamCA 445

APPLICANT: Ms Brook

RESPONDENT: Mr Brook

FILE NUMBER: MLC 11123 of 2013

DATE DELIVERED: 19 November 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 12,13,14 & 15 October 2015 and 4, 5 & 6 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weil

SOLICITOR FOR THE APPLICANT: Williams Winter

COUNSEL FOR THE RESPONDENT: Ms Byrnes

SOLICITOR FOR THE RESPONDENT: Carew Counsel Pty Ltd

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The child B born … 2009 spend time with the father:

   (a)until 25 November 2015 or the end of the 2015 C School year in the event that the father does not travel to the United Kingdom as follows:

   (i)on Monday and Wednesday of each week from after school or 2.45 pm until 6.30 pm;

   (ii)on Saturday 21 November 2015 from 10.00 am until 4.00 pm; and

   (iii)on Saturday 5 and Sunday 6 December 2015 from 10.00 am until 4.00 pm;

   (b)for the period of the C School long summer holidays or from 15 December 2015 in the event that the father travels to the United Kingdom as follows:

   (i)on Tuesday 22 December 2015 from 10.00 am until 4.00 pm;

   (ii)on Wednesday 23 December 2015 from 10.00 am until 4.00 pm;

   (iii)on Christmas Day 2015 from 3.00 pm until 8.00 pm;

   (iv)on each alternate Monday and Wednesday from 2.45 pm until 6.30 pm commencing Monday 28 December 2015 and each alternate week thereafter;

   (v)on Saturday 2 January 2016 from 10.00 am until 6.30 pm and on Sunday 3 January 2016 from 10.00 am until 6.30 pm and each alternate weekend thereafter including 30 and 31 January 2016; and

   (vi)on Wednesday 6 January 2016 from 10.00 am until 6.30 pm and each alternate week thereafter;

   (c)       from the commencement of the 2016 school year as follows:

   (i)on each Monday and Wednesday from after school or 2.45 pm until 6.30 pm; and

   (ii)on Saturday from 10.00 am until 6.30 pm commencing 13 February 2016 and on Sunday from 10.00 am until 6.30 pm commencing 14 February 2016 and each alternate Saturday and Sunday thereafter.

2. All interim applications be otherwise dismissed and removed from the list of cases awaiting hearing.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11123 of 2013

Ms Brook

Applicant

And

Mr Brook

Respondent

REASONS FOR JUDGMENT

1. This matter was listed for a final hearing of the parties’ competing applications for both parenting and property orders commencing on 12 October 2015. I heard the matter over the following three days, the matter concluding on 6 November 2015 after a further three days of hearing. On 6 November 2015 I made orders adjourning the matter to a date to be fixed for judgment both with respect to the final parenting and property orders sought by the parties and the interim parenting orders sought by the father. 

2. On 26 March 2014 the parties consented to interim orders that they have shared parental responsibility for the child B, who is now six years of age, and that he spend time with the father from the completion of his time at the Early Learning Centre at C School until 6.30 pm each Monday, Tuesday, Wednesday and Thursday, for four hours on the child’s birthday and at such other times as agreed in writing between the parties. That arrangement remained in place until 18 August 2015 when the mother filed an application in a case seeking that the orders with respect to the child’s time with the father be discharged and thereafter that time be reserved pending further order. On 4 September 2015 the father’s time with the child was reinstated albeit it was for only two nights after school each week. Although the father consented to the reduced time he did so in the context of the matter being listed for final hearing a matter of weeks later. It is in that context that the father seeks interim orders to take effect pending judgment being delivered.

3. The father seeks orders that the child spend time and communicate with him in the interim as follows:

   a)    for the period of making these orders until 25 November 2015 when the father proposes to travel to the United Kingdom or in the event that he does not travel overseas until the end of the [C School] year:

   i)     on Saturday 7 November 2015 from 10.00 am until 4.00 pm

   ii)  on Mondays, Tuesdays and Wednesdays of each week from after school or 2.45 pm until 6.30 pm (including his birthday on 9 November 2015);

   iii)            on Saturday 14 November from 10.00 am to 4.00 pm; and

   iv) on Saturday 21 and Sunday 22 December 2015 from 10.00 am to 4.00 pm;

   b)   for the period of the C School long summer holidays or from 15 December 2015 if the father travels overseas as follows:

   i)     on Wednesday 16 December 2015 and each alternate Wednesday thereafter from 10.00 am until 6.30 pm;

   ii)  on each alternate Monday, Wednesday and Friday from 2.45 pm until 6.30 pm commencing Friday 18 December 2015 and each alternate week thereafter;

   iii)            from 10.00 am on Saturday until 6.00 pm on Sunday commencing on 2 January 2016 and each alternate weekend thereafter; and

   iv) on Christmas Day 2015 from 2.45 pm until 2.45 pm on Boxing Day 2015;

   c)   from the commencement of the 2016 school year as follows:

   i)     on each Monday, Tuesday, Wednesday and Thursday from after school or 2.45 pm until 6.30 pm; and

   ii)  from afterschool or 2.45 pm on each alternate Friday until the commencement of school or 8.30 pm on the Monday.

4. The mother’s proposal with respect to any interim orders is the same as her proposal for final orders which is a continuation of the current arrangements which provide for the child to spend time with the father from after school on Mondays and Wednesdays and such other times as the parties may agree in writing.

Legal Principles

1. The Full Court in Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 set out the legislative pathway for the Court to follow in determining an application for interim parenting orders. In the recent case of Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637 Thackray CJ, Murphy and Kent JJ whilst referring to this legislative pathway and noting that it is the making of an order for equal shared parental responsibility that triggers the requirement that the Court consider whether it should make orders for equal time or substantial and significant time also said as follows:

   47. As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.

   48. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   49. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. 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: SCVG & KLD (2014) FLC 93-582.

   50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

   (original emphasis)

Discussion

1. The circumstances in this case differ from most interim hearings in that I have in this case heard all of the evidence, that evidence has been tested and judgment has been reserved. Not all of that evidence or all of the s 60CC considerations of the Family Law Act 1975 (Cth) (“the Act”) are relevant particularly in circumstances where I am being asked to make orders on an interim basis as to what time the child should spend with the father until final judgment is delivered.

2. In essence the mother’s case with respect to both interim and final orders is that there is an ongoing risk to the child in the father’s care given the substantial and ongoing history of family violence, controlling behaviour and the father’s ongoing problems with anger management. She is fearful not just in relation to the father’s behaviour towards her and the child’s exposure to that behaviour, but also in relation to the risk she says the father poses directly to the child. The mother told Ms D the family consultant of her concern that the father would harm the child to get back at her. It was her case that not only is the child fearful of the father but that he is also fearful for her safety because of the father’s behaviour. Although in his opening address counsel for the mother submitted that the mother is extremely fearful for both her safety and the child’s safety, the mother did not put her case on the basis that her parenting capacity would be diminished as a consequence of her fear of the father’s behaviour and how that would impact upon the child’s wellbeing.

3. Perhaps somewhat surprisingly, given the way in which she put her case, the mother did not propose that the child should spend no time or only supervised time with the father but that he should spend several hours of unsupervised time with the father during school term after child care or school on two occasions each week.  

4. The father’s case is that the child would benefit from having a meaningful relationship with both he and the mother and that although he does have a meaningful relationship with the child both the orders to which he consented on 4 September 2015 and the mother’s proposal place unnecessary restrictions upon that relationship.

5. Both of the primary considerations are relevant in relation to the father’s application for interim orders, and I must consider both the question of family violence and any family violence orders that apply, and I must weigh up the benefit to the child of having a meaningful relationship with both of his father and the mother and the need to protect him from physical or psychological harm from being subjected to abuse, neglect or family violence giving greater weight to the second of the primary considerations. I am also mindful that there are Intervention Orders in force both in relation to the mother and the child albeit that the father may be seeking to set aside the order, he says was made in his absence, insofar as it purports to include the child.   

6. Although the mother does not dispute that it is in the child’s best interests to have a meaningful relationship with the father, I was left with the strong impression having heard her evidence that she viewed herself as being the child’s primary parent, that only she knew what was best for him and that the father’s role in the child’s life was of less significance. The mother had a generally negative view of the father, had some significant difficulty acknowledging the importance of the father in the child’s life and had a tendency to always assume the worst about the father. Whilst on the one hand that might be explained by what she says is a significant history of family violence and abuse, my impression was that it was not limited to and was not only as a result of that alleged violence and abuse. One example was the mother’s reaction to the concerns expressed by the C School Early Learning Centre about the child’s behaviour at the school. Upon being called to the school and shown the video taken of the child’s behaviour in class, the mother’s response was to file an application in a case seeking to suspend the orders with respect to the child spending time with the father, unilaterally suspending that time in anticipation of the matter being listed for hearing. The concern is that the mother considered only one possibility and that was that it was the time the child was spending with the father which was the cause of his problem when there were arguably many possible causes. Significantly although the mother reported that the child is more settled at home since the reduction of his time with the father, the school reported that they had not noticed any significant change in his behaviour at school.

7. There are serious allegations of family violence in this case however even if I were to accept the mother’s evidence about that family violence and abuse and the father’s inability to control his anger in its entirety for the purposes of determining the father’s interim application, there is also evidence which suggests not only a positive relationship between the child and his father but more importantly that the child does not appear to be fearful of the father. That evidence includes the information given by staff of the Early Learning Centre to the Department of Health and Human Services after the mother filed a Notice of Child Abuse, Family Violence or Risk of Family Violence on 18 August 2015 (“the Notice of Risk”) and the evidence of Ms D, the family consultant. The Department of Health and Human Services, in response to the Notice of Risk when the mother filed her application in a case seeking to suspend the child’s time with the mother, reported as follows:

   Contact was made with childcare staff who stated that [the father] had access with [the child] every Monday, Tuesday, Wednesday and Thursday from 3.30-6.30, and that he picked [the child] up from the childcare and dropped him off at [the mother’s] home. Childcare staff have contact with [the father] 4 times a week and have never had any concerns in relation to [the child’s] relationship with [the father] and believe that [the child] has a “nice” relationship with [the father]. Childcare centre staff stated that [the child] presented well, the parent’s [sic] presented well and there were no concerns in relation to [the child] as he did not present as fearful or anxious towards any of his parents. Childcare staff believe that [the child] has been exposed to the ongoing conflict between the parents and has anxiety, and they have recommended to the Family Law Court that the child should be linked in with a Psychologist due to his anxiety and exposure to conflict between his parents.   

8. In her report Ms D highlighted inconsistencies in the negative aspects of the child’s account of and concerns about the father with her observations of his interaction with the father. She described that interaction at paragraph 71 of her report as follows:

   [B] was then informed that his father was close by and he was going to be seeing him shortly. [The child] thought that was a good idea. [The father] was then bought [sic] to the play room and upon entering [the child] looked up and smiled spontaneously at him. They then engaged in a style of play that looked very comfortable and familiar. [The child] sat close to his father and they chatted and played. They engaged in some fantasy play around the circus that had burnt down as well as playing a vigorous game of the soccer table which both appeared to enjoy. They then played a game about the Lion King and [the father] was able to name all of the characters and engage [the child] where he was at in the play. A close warm relationship was observed between them.

9. Ms D at paragraph 80 went on to say as follows:

   The major problem in this matter is that there is a small child caught in the middle of this dispute and neither party can recognise that the child’s experiences of, and feeling for, each of his parents can exist quite apart from their views of each other. [The child] at 5 young years of age feels a level of responsibility that no child his age should bear. He is left with an invidious choice of protecting his mother by denying his father, or causing his mother considerable upset by enjoying a relationship with his father. [The child’s] inconsistent reporting of his experiences with his father and his joy at seeing him was an indication of this very dynamic at play.  

10. It was submitted by counsel for the father that the child has spent time with the father on more than 400 occasions since separation and that the mother has made no allegations which would suggest that the child has come to any harm in the father’s care. Whilst I cannot make findings as to how many times the child has seen the father, it is also common ground that at least since early 2015, when the father and mother, the mother says at her instigation, agreed upon changeover outside the father’s apartment until the mother unilaterally suspended the child’s time with the father and since the reintroduction of the child’s time with the father pursuant to the orders made 4 September 2015, that the child’s time with the father appears to have been relatively uneventful. This is notwithstanding that the father would have no doubt been very upset when the mother unilaterally suspended the child’s time with him and notwithstanding that the mother collects the child from the father’s flat. Although the mother says that the father sends the child out to her and that she and the father do not come into contact if, as she submits, the father has a history of breaching the intervention orders restraining him from approaching her, that would be an obvious time when he might do so   

11. Although  Dr E, who was engaged to provide a psychiatric assessment of both the father and the mother, described the father as presenting from a psychiatric point of view as having “… a rigid obsessive disposition, and a determination not to be bested by his ex-wife”, he did concede that this was a gut feeling rather than the way in which the father presented during his assessment. He also said in cross-examination that he did not feel that the father presented a physical risk to the child.   

12. Ms D in her report considered three scenarios. The first was based upon further information being required, the second was based upon the Court finding that the father had perpetrated serious and ongoing violence to the mother and the third was if the Court were to find that the father did not pose an ongoing risk to the child. Having heard all the evidence it is the second and third scenarios which are relevant for the purposes of the decision I am to make in the interim.

1. As previously referred to, even if I accept the mother’s allegations of family violence and abuse for the purposes of this interim application, the evidence, even on her own case, does not support a conclusion that in Ms D’s words the father poses “an ongoing risk to the child”. I will address the allegations of family violence and abuse in more detail for the purposes of making final orders. However even on the mother’s own evidence there have been no recent incidents and in fact there is evidence of some relatively civil communication between the parties when necessary in relation to the arrangements for the child and the mother also gave evidence that she has seen the father on a number of occasions recently and that those chance meetings have been uneventful.

2. Ms D’s third recommendation was that if I were to find that the father did not pose an ongoing risk to the child then the father and the mother should have equal shared parental responsibility, the child should live with his mother and spend time with the father from the end of school each Wednesday until the start of school on Thursday and his time with the father should be built up to alternate weekends from after school on Friday to the commencement of school on Monday. It was Ms D’s recommendation when she completed her report, which was dated 24 August 2015, that that day time for a period of six hours on a Saturday and Sunday could commence immediately.

3. In Harridge and Anor & Harridge and Anor [2010] FamCA 445 Murphy J discussed the interaction between the benefits to a child of a meaningful relationship with both of his or her parents and the need to protect that child from abuse, in that case sexual abuse. In discussing the nature of unacceptable risk Murphy J said at paragraph 64 as follows:

   In cases where allegations of abusive behaviour involving children, or potentially involving children, are made, an assessment of any risks associated with the parenting orders contended for, and ultimately, those which might attend orders made by the court, must play a central role…

4. It is hard to understand where it is the mother’s case that the child spend unsupervised time with the father on at least two occasions each week that at least insofar as the father is proposing that he spend time with the child during the day on weekends that the risk, even if there is one, would not be similar. Counsel for the mother could not offer any explanation as to why that would not be the case. The only explanation offered by the mother was to the effect that weekend time was her time with the child. Similarly the mother did not address why, if the child is spending unsupervised time with the father during school term, at the very least he should not spend similar time with the father during the school holidays.  Although the mother might prefer to have the child spend every weekend with her, or as is clear from the evidence some weekend time with her and some with the maternal grandparents, and spend his holiday time with her subject to her agreement with respect to spending time with the father, the child has two parents and in my view it is important that the child spend time with both of his parents and not just time after school during the week as proposed by the mother.

5. I am satisfied having heard all of the evidence including the evidence of  Dr E and Ms D that in all of the circumstances of this case spending time with the father during the day on weekends and school holidays in the interim would not expose the child to an unacceptable risk of abuse and propose to accede to the father’s application at least to that extent.   

6. However it is the father’s case that even in the interim the time the child spends with him should increase from extended daytime periods to overnight. Ms D’s evidence was that if the Court were to find that the father did not pose any ongoing risk to the child that it would be appropriate to start with two or three occasions of more extended daytime periods with the father on a Saturday and Sunday before moving to overnight time. Having regard to the fact that the child has not spent any overnight time with the father, Ms D’s evidence as to the introduction of overnight time and the fact that the father is going to be overseas from late November until early December 2015 and that the mother is going to be in Queensland between 9 and 14 December 2015, I do not propose to make interim orders for overnight time. Although if I ultimately do determine that it is in the child’s best interests to spend overnight time with the father this may result, subject to when I am in a position to deliver judgment, in more than the two or three extended daytime periods suggested by Ms D, I am satisfied that as long as the child is spending regular and extended periods of time with the father this will not have a significant impact in the short term on either his relationship with the father or his welfare generally.   

7. It was also Ms D’s clear preference, in the event the Court were to be satisfied that there was no ongoing risk to the child, that a regime should be introduced which provides for changeover at school eliminating the necessity for the father and the mother to come into contact. However in circumstances where the child has not spent any overnight time with the father and school holidays are approaching it is almost inevitable that there will need to be some changeovers outside the father’s flat as the parties have been doing without complaint since earlier this year.

8. The father also proposes the continuation in the interim of his after school time adding an extra night to make it three nights per week and both weekday and weekend time during the school holidays. Although Ms D did not address this directly in her evidence, I am satisfied that given that the child has been used to spending time with his father after school each week, initially four nights per week and since early September two nights per week, that he should continue to spend that time with the father on at least two days per week in addition to the weekend time. There is no reason why during the school holidays that this should not be for more extended periods. I also propose to make orders that the child spend time with the father on Christmas Day, albeit not overnight. Although this may be inconvenient for the mother if she wishes to spend time with her family in F Town I am satisfied that it is important for the child to share significant occasions such as Christmas with both his parents. 

9. Although it was the mother’s case that she should have sole parental responsibility for the child on a final basis, counsel for the mother did not submit that the Court should make an order to that effect on an interim basis thereby varying the interim order made by consent on 24 March 2014. The father similarly did not submit that the interim order should be varied. That being the case I must consider whether it would be in the child’s best interests and reasonably practical for the child to spend equal or substantial time with the father in the interim.

10. Although the father’s preference might be for the child to spend equal time with he and the mother, he is not seeking orders to that effect on either a final or interim basis. In those circumstances I am satisfied that equal time is neither in the child’s best interests or reasonably practical in the interim.

11. Neither party made submissions with respect to whether or not the father’s proposal amounted to substantial and significant time and the focus of the submissions was on whether the time the father proposes is in the child’s best interests rather than on the question of whether it is reasonably practical. As I have already discussed the family consultant expressed some reservations about the current arrangement for changeover that was related to the child’s welfare rather than the practicality of those arrangements. 

12. It is questionable in my view whether the orders I propose to make absent any overnight time amount to substantial and significant time. The mother’s proposal certainly would not. In fact if the Court were to adopt the mother’s proposal the father would not spend any time with the father during school holidays without the mother’s agreement in writing.

13. However I am satisfied that the orders I propose to make are in the child’s best interests having regard to the relevant primary and additional considerations in s 60CC of the Act. The new regime will allow the child to adapt to spending increased time with the father as recommended by Ms D, establishing the foundations for overnight time if that is what is ultimately determined to be in his best interests.

14. I had some difficulty with the dates proposed by the father, however I have attempted to adapt and reconcile the regime proposed by the father, absent overnight time with the recommendations of Ms D, having regard to the father and mother’s respective overseas and interstate travel.  

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 19 November 2015.

Associate: 

Date:  19 November 2015