Bulow and Snell (No 2)

[2015] FamCA 670

FAMILY COURT OF AUSTRALIA

BULOW & SNELL (NO 2) [2015] FamCA 670

FAMILY LAW – CHILDREN – Interim parenting – where there is substantial agreement between the parents – where the issue for determination is the extent of mid-week time the child spends with the mother – consideration of the best interests of the child.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA
Mental Health Act 2007 (NSW) s 22

Deiter & Deiter [2011] FamCAFC 82
Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
MRR v GRR (2010) 240 CLR 461

APPLICANT: Ms Bulow

RESPONDENT: Mr Snell

INDEPENDENT CHILDREN’S LAWYER: Phillip A Wilkins & Associates

FILE NUMBER: PAC 6198 of 2014

DATE DELIVERED: 17 August 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 11 August 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: SVW Legal

COUNSEL FOR THE RESPONDENT: Mr Gould

SOLICITOR FOR THE RESPONDENT: Duffy Law Group

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Phillip A Wilkins & Associates

Orders

By Consent and pending further order:

1. That the child B live with the father at times when the child is not living with the mother.

2. That the child live with the mother as agreed between the mother and father in writing with such writing to include SMS or email communication and in default of agreement as follows:

   (a)       Each alternate weekend during school term commencing on the first weekend after the resumption of school term from after school Friday to before school Monday and for the purposes of the current school term such weekends shall commence on Friday 29 August 2015;

   (b)       During the school holiday periods at the conclusion of terms 1, 2 and 3 from after school on the last day of school term until 6.00 pm on the midpoint Saturday of such holiday periods;

   (c)       During the Christmas school holiday period 2015/2016 commencing after school on 18 December 2015 and concluding at 6.00 pm on the following Friday and thereafter each alternate week from 6.00 pm Friday to 6.00 pm the following Friday provided always that the child’s time with the mother shall be suspended from 12 noon Christmas Day until 6.00 pm Boxing Day;

   (d)       On the Mother’s Day weekend from 6.00 pm Saturday until before school Monday provided always that the child’s time with the mother shall be suspended on the Father’s Day weekend from 6.00 pm Saturday until before school Monday.

3. That for the purposes of the child’s time with the mother where changeovers are not to be effected at the child’s school the father shall deliver the child to the mother at the McDonald’s Family Restaurant at Suburb C and the mother shall return the child to the father at the conclusion of the child’s time with her to that place.

4. That the mother shall continue consulting her psychologist Ms D and obey all reasonable recommendations of her psychologist as to continuing treatment or therapy including her attendance and participation in any program or intervention or treatment by any other health professional reasonably recommended.

5. That the mother shall do all things necessary to authorise and facilitate the independent children’s lawyer obtaining such information as may be reasonably required from the mother’s psychologist as to the mothers ongoing treatment, presentation and prognosis.

6. That the mother be restrained from engaging the child in any therapeutic or psychological counselling without the written consent of the independent children’s lawyer.

7. The mother and father undertake (by provision of urine screen in accordance with the Australian/NZ Standard 4308:2008 or any subsequent approved standard) urinalysis for drug screening within 48 hours of a request to do so from the independent children’s lawyer with such request to be communicated by email, SMS or facsimile transmission to the solicitor for the party or the party directly and provide copies of the results of the tests to the other party and the independent children’s lawyer within 48 hours of receipt of same. For the purposes of this Order the mother if unrepresented shall within 24 hours provide to the independent children’s lawyer details of their mobile telephone number, email address if available and facsimile number if available.

8. That the independent children’s lawyer is at liberty on a random basis to request the mother not more than once each calendar month to submit to a liver function test and carbohydrate transferring deficient blood test (CTD) at her expense with such request to be made by letter, email, fax or phone call to the mother’s legal representative and thereafter such test to be undertaken as soon as practicable and in any event no later than 48 hours from the making of such request with such testing to be undertaken at the mother’s expense and the mother shall thereafter provide copies of test results to the legal representative for the father and to the independent children’s lawyer forthwith.

9. That the mother and father are restrained from contacting or communicating with each other except in relation to the child and in an emergency in which case such contact or communication shall wherever possible be by text message or email communication.

10. That the mother and father are restrained from publishing including placing any publication or information on social media of any details concerning the dispute between them in relation to the child.

11. That the mother and father are restrained from consuming alcohol while the child is in their respective care and for a period of 12 hours prior to the child coming into their care.

Pending further order, it is further ordered that:

1. That the mother and father have equal shared parental responsibility for the child B born on … 2008.

2. That the child spend time with the mother in the week preceding her weekend time from after school Monday to before school Wednesday.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Bulow & Snell (No 2) 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 PARRAMATTA

FILE NUMBER: PAC 6198  of 2014

Ms Bulow

Applicant

And

Mr Snell

Respondent

REASONS FOR JUDGMENT

1. The present matter for determination is the interim parenting arrangements for the child of the applicant mother and respondent father B born in 2008.

2. Preliminary interim orders were made by Hannam J on 16 April 2015 (Bulow & Snell [2015] FamCA 326) pending appointment of an Independent Children’s Lawyer (ICL) and the matter coming back before the Court on 11 August 2015.

3. In circumstances where there were concerns in relation to the child’s welfare in the substantial care of the mother and where both parties made allegations against the other, orders were made on 16 April 2015 relevantly to the following effect:

   a)That the child live with the father,

   b)That the child spend time with the mother on an alternating weekly regime being in week one from Saturday after the child’s soccer game until 2.00 pm Sunday and in week 2 from after school Friday until the following Monday before school,

   c)That the mother submit to liver function test and carbohydrate transferring deficient blood test (CTD) at the request of ICL.

4. At the commencement of the present application there were significant issues between the parties. The father initially sought that the mother have supervised time with the child and the mother for her part sought that the father have supervised time with the child.

5. However as submissions unfolded it became clear that there was significant agreement between the parties and the matters on which the parties were able to agree are set out above in terms of the consent orders.

6. Ultimately the parties remained at issue in relation to the question of the child’s time with the mother during the school term other than on the alternate weekend basis agreed to.

7. The mother proposed that she have further time with the child during the school term from after school Monday until before school Wednesday in the week prior to her weekend. The father proposed that the mother’s mid-week time be only from after school Monday until before school Tuesday.

8. The father’s primary concern about the mid-week time was his contention that the mother’s perceived efforts to undermine his relationship with the child would risk the child becoming alienated from him should the child spend two nights mid-week in the mother’s household.

9. The rationale of that submission is firmly based upon material produced on subpoena by the New South Wales Department of Family and Community Services (Exh C) and the NSW Police Service (Exh B). Both sets of documents give rise to a significant inference that the mother has sought to manipulate the system to her own benefit in relation to the child and enmesh the child in the dispute. There is a strong inference that she sought to do so in the light of this pending interim hearing in relation to the child’s living circumstances.

10. However in circumstances where the father has agreed to the child’s time with the mother being on a substantial and significant basis it is difficult to see the underlying logic in limiting the child’s mid-week time with the mother to one night instead of two.

11. The mother herself has conceded that the child should primarily live with the father pending final determination of these proceedings and in those circumstances it is reasonable to expect that her conduct in endeavouring to use the system for her own purposes would be perceived by her as no longer having any forensic benefit and indeed should she continue such behaviour be detrimental to her ultimate aim in seeking to have the child return to live primarily with her.

12. As was observed by Hannam J in her Reasons for Judgment at [24]:

    As far as the likely effect in any change of the child’s circumstances is concerned, under the father’s proposal the child will continue to go to the same school which is obviously very important. The father’s acknowledgement that it is important that the child spend some time with his half-sisters is obviously also important. The child is clearly comfortable living in either household.

13. The father acknowledges that the child misses his mother and seeks to spend more time with her. Quite correctly the father has ongoing significant concerns as to the mother’s parenting capacity by reason of the matters referred to in her Honour’s Reasons for Judgment.

14. Likewise the mother expresses concern as a consequence of the history of mutual violence between the mother and father to which the child has been exposed. The risk of such ongoing exposure is addressed by the very circumstances that the parties are now separated and have been separated since January 2014.

Discussion

1. In Deiter & Deiter [2011] FamCAFC 82, the Full Court (Finn, Thackray & Strickland JJ) said:

   61.      The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made… 

   62.      We are aware that in Goode and Goode (2006) FLC 93-286 the Full Court referred with some approval to the following statement made in Cowling v Cowling (1998) FLC 92-801 (our emphasis added):

   18.      The Family Law Act does not draw any distinction between the principles to be applied in determining residence in interim and final proceedings. The essential difference between them is one of procedure. Interlocutory proceedings do not determine the long term rights and obligations of the parties and their children. The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties. Accordingly, in determining what orders should be made, the Court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties' respective proposals for the future. In some cases, it may also be necessary to consider child protection issues.

   63.      In our view, the proposition contained in the final sentence of the quotation is most important.  In any event, in Goode and Goode, the Full Court said:

   68.      In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, 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.

   In Marvel & Marvel (No. 2) [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the difficulties associated with making findings on contested evidence as follows:

   120.    As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   …

   122.    In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   123.    Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

2. The Full Court in Goode and Goode (2006) FLC 93-286 provided a “framework” as to how applications for parenting orders are to be determined. The High Court of Australia in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.

3. The relevant principles in relation to parenting and interim proceedings are well settled: see Goode (supra).

4. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

5. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

6. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

7. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.

8. The presumption does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)In interim proceedings where  the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

9. In this matter the parties both assert issues of violence. Where the ultimate factual findings as to same await final hearing and having regard to the significant agreement between the parties the presumption will apply. Neither party contended otherwise.

10. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

1. As the parties are in substantial agreement as to the child’s time with the mother save for the discrete issue for determination the statutory provision is of little utility.

Best interests of the child

The Additional Considerations: s 60CC(3)

1. The Court has had regard to each of the additional considerations set out in s 60CC(3) of the Act. The relevant considerations are as follows:

   a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views:

   The child has a strong relationship with both parents. He has been exposed to violence in their relationship. He expresses a wish to spend more time with his mother. His views such as they are to some extent are tainted by the conduct of the mother as discussed above.

   b)The nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child):

   The child sees himself as living “with both parents” and said to the Family Consultant that he was happy to remain with his father (Exh A). He is clearly torn between his parents but not sure as to whether he was safe with his mother. The Family Consultant is of the view that the child is “parentified’ and as such feels responsible for the care and welfare of a parent. In this case the strong inference is that it is the mother. The child has a good relationship with the paternal grandparents who support the father’s application.

   c)The extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with the child, and to communicate with the child:

   There are significant factual disputes, the determination of which will await final hearing.

   ca)Obligation to maintain:

   In the context of this interim hearing this consideration is of no utility.

   d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living:

   This is discussed above.

   e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis:

   This is not a relevant consideration in the context of this matter.

   f)The capacity of each of the child's parents; and any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs:

   Again this is a factor that will require a resolution of the significant factual dispute between the parties at final hearing.

   g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant:

   This is not a relevant consideration.

   h)If the child is an Aboriginal child or a Torres Strait Islander child.

   This is not a relevant consideration.

   i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents:

   Once again in the context of allegations one against the other of violence and other aberrant behaviour this factor will be considered at final hearing.

   Any family violence involving the child or a member of the child's family:

   There are issues as to family violence and other behaviour coming within the definition of family violence in terms of the allegations made against each other by the mother and father. The factual determination of these allegations will await final hearing.

   The mother in April 2015 attended at the home of her former partner (the father of her two older children) and his wife in an aggressive manner and broke a glass window in a door cutting her arm. Police later attended at her home and the mother was scheduled under s 22 of the Mental Health Act 2007 (NSW) and taken to Suburb E Hospital. She was later discharged. She was charged with malicious damage and an interim Apprehended Violence Order was granted for the protection of her former partner.

   The mother has subsequently engaged with her treating psychologist and her emotional regulation and psychological health has improved significantly.

   j)If a family violence order applies …

   See above.

   k)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child:

   These are interim proceedings only.

   l)Any other fact or circumstance …

   There are no other relevant matters.

The Primary Considerations: s 60CC(2)

1. The primary considerations are:

   a)The benefit to the child of having a meaningful relationship with both of the child's parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. In Mazorski & Albright [2007] FamCA 520; Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

3. In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

4. Section 60CC(2)(b) – need to protect; This is perhaps the most significant factor. The child has been exposed to significant episodes of domestic violence and other unsatisfactory behaviour from both the mother and the father. The saving grace is that the parties have now been separated for some significant time and the prospect of the child being exposed to such behaviour is now substantially reduced. The father contends that the child is at some risk when in the care of the mother from her abuse of alcohol and psychological fragility.

5. Orders will be made in relation to the use of alcohol by both parties and for the mother to continue intervention with her treating psychologist pending further order. The father for his part no longer seeks orders that the mother’s time be supervised. In the light of the parties themselves agreeing as to the child’s time with the mother and that agreement in itself representing substantial and significant time, the father’s submission that an extension of mid-week overnight time from one night to two nights would put the child at risk of further conduct by the mother whereby she would seek to alienate the child from the father has little substance.

6. The ICL has been granted leave to relist proceedings on short notice and that in itself provides a significant protective mechanism that facilitates the matter coming back before the Court on short notice should the mother’s behaviour deteriorate or there be concerns as to her enmeshment of the child in the issues before the Court.

Section 65DAA

1. In light of there being an order for equal shared parental responsibility, the Court is required to give consideration to whether the child spending equal time with each of the parents is in the best interests of the child and reasonably practicable, and if so, to consider making an order for such equal time.

2. If not the Court is then required to consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and reasonably practicable.

3. The parties themselves have resolved issues that would otherwise arise under this provision and accordingly there is no need to consider its application.

Conclusion

1. For the reasons given above it is appropriate that the court make orders for the parties to have equal shared parental responsibility for the child. Otherwise as to the discrete issue of overnight time it is in the child’s best interests by reason of the matters set out above that the mother’s mid-week time be for 2 consecutive nights.

2. Orders will be made accordingly.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 17 August 2015.

Associate: 

Date:  17 August 2015