CALLISTER & VALLENCOURT
[2021] FCCA 466
•12 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CALLISTER & VALLENCOURT | [2021] FCCA 466 |
| Catchwords: FAMILY LAW – Interim parenting – best interests of child – orders made. |
| Legislation: Family Law Act 1975 (Cth), ss 62G(2), 60B, 60CA, 60CC |
| Cases cited: Goode & Goode (2006) FLC 93-286 Marvel & Marvel [2010] FamCAFC 101 Eaby & Speelman [2015] FamCAFC 104 Banks & Banks [2015] FamCAFC 36 |
| Applicant: | MR CALLISTER |
| Respondent: | MS VALLENCOURT |
| File Number: | PAC 3370 of 2010 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 10 March 2021 |
| Date of Last Submission: | 10 March 2021 |
| Delivered at: | Parramatta |
| Delivered on: | 12 March 2021 |
REPRESENTATION
| The Applicant appeared in person |
| The Respondent appeared in person |
| Solicitors for the Independent Children’s Lawyer: | Ms Rutkowska - Ark Law Lawyers |
ORDERS PENDING FURTHER ORDER
The Court suspends all previous Orders relating to the child, X born in 2007, spending time with the Father that are inconsistent with the Orders below.
Commencing Saturday, 13 March 2021, the child shall spend time with the Father as follows:
(a)For one month, each fortnightly weekend during the following times: Saturday 9 AM to 11 AM and Sunday 9 AM to 11 AM; then,
(b)For one month, each fortnightly weekend during the following times: Saturday 9 AM to 1 PM and Sunday 9 AM to 1 PM; then,
(c)For one month, each fortnightly weekend during the following times: Saturday 9 AM to 3 PM and Sunday 9 AM to 3 PM; then,
(d)Thereafter, each fortnightly weekend during the following times: Saturday 9 AM to 5 PM and Sunday 9 AM to 5 PM.
The mother shall have sole parental responsibility in relation to medical decisions in relation to the child, but otherwise the parties shall have equal shared parental responsibility in relation to the child.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by February 2022.
The Family Report shall deal with the following matters:
(a)Any views expressed by the child(ren) the subject of parenting orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the child(ren) with each of the child(ren)’s parents and with significant other persons;
(c)The willingness and ability of each of the child(ren)’s parents to facilitate and encourage a close and continuing relationship between the child(ren) and the other parent.
(d)The likely effect of any changes in the child(ren)’s circumstances, including the likely effect on the child(ren) of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child(ren) has/have been living.
(e)The practical difficulty and expense of the child(ren) spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child(ren)’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)The capacity of each parent, or another person, to provide for the needs of the child(ren), including emotional and intellectual needs.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child(ren) and of either of the child(ren)’s parents and any other characteristics of the child(ren) that the reporter thinks are relevant.
(h)Each parent’s attitude to the child(ren) and to the responsibilities of parenthood.
(i)Any family violence involving the child(ren) or a member of the child(ren)’s family.
The parties shall attend all appointments with the Family Consultant and shall ensure the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.
The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.
The proceedings are listed for mention following release of the Family Report on a date to be advised to the parties in due course.
IT IS NOTED that publication of this judgment under the pseudonym Callister & Vallencourt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3370 of 2010
| MR CALLISTER |
Applicant
And
| MS VALLENCOURT |
Respondent
REASONS FOR JUDGMENT
Introduction
This interim hearing relates to the child X born in 2007.
Previously, there had been final parenting orders made in the Local Court of NSW at Suburb B dated 30 November 2009.
The Father commenced proceedings in this Court on 12 December 2019.
The Mother contends in her Case Outline that since separation of the parties in 2009, the child has predominantly lived with the Mother and has had regular visits with the Father of about four nights each fortnight.
Proposals
At the interim hearing, the Father proposed that the child spend time with the parties in an equal time arrangement. In the alternative, he sought interim parenting orders that the child spend fortnightly time with him from Friday 5 PM to Sunday 5 PM. His last proposal, in the alternative, submitted at the interim hearing, was for the child to spend fortnightly time with him from Friday 5 PM to Sunday 5 PM, with the child to stay overnight at the residence of the paternal grandparents.
The Mother, at the interim hearing, proposed that the child spend time with the Father on Saturdays 9 AM to 5 PM and Sundays 9 AM to 5 PM, each fortnight.
The ICL, proposed that the child should spend time with the Father on Saturdays and Sundays each fortnight, during the daytime, and that such time should be gradually built up, starting for two hours for one month, for four hours for the second month, for half a day for the third month, and in the fourth month and thereafter, on an interim basis, for a full day.
Material relied upon
The Mother relied upon the following documents:
a)Notice of Risk filed 12 December 2019;
b)Affidavits of Mother filed 18 December 2019, 16 June 2020, 29 July 2020 and 4 March 2021;
c)Affidavit of Father filed 18 December 2019.
The Father relied upon the following documents:
a)a) His Affidavits filed 18 December 2019 and 4 March 2021.
The following Exhibits were relied upon:
a)Exhibit A: ICL subpoena bundle of documents;
b)Exhibit B: Child Inclusive Conference Memorandum to Court dated 6 March 2020;
c)Exhibit C: Child Dispute Conference Memorandum to Court dated 15 December 2020.
Agreed facts unless otherwise stated
The Mother was born in 1982. The Father was born in 1983.
In 2011, the Mother remarried to Mr Vallencourt. They had two children together, C and D.
The Father’s household comprises his new partner; the Father’s partner’s 4 children (aged 16, 14 (E), 12, and 9); and, for 5 nights each fortnight, the Father’s children from a previous relationship aged 9, 7, and 6.
The parties married in 2003. They separated on a final basis in about mid-2009.
The child has not spent face-to-face time with the Father since about early November 2020.
Relevant legal principles
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed 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.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects and principles of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In this context, the Court refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 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”.
The Best Interests of the Children
Section 60CC Considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The child loves both parents which is reciprocated by the parents.
The child has a meaningful relationship with the Mother and she will benefit from a continuance of that relationship. The Mother would appear to have been the child’s primary carer from birth to date, whilst the Father, it would appear, has provided significant care to the child himself both during the relationship and post separation.
There is a significant suggestion, on the material before the Court, that the child’s meaningful relationship with the Father became strained in about November 2020 when the Father allegedly told the child over the telephone that the child could not visit his house anymore. This alleged statement by the Father to the child had followed investigations that the child had allegedly been engaged in inappropriate sexual activity with the child E, aged 14 years. In this latter regard, the Court refers to page 13 of 29 of the ICL subpoenaed tender bundle, Exhibit A, which alleges: “(The Father) has proclaimed that he does not want X to visit him at his house anymore as he does not want any more allegations to be made.”
Should the Court make the ICL’s proposed interim orders, there is a significant prospect that the child’s relationship with the Father can begin to be re-established to its former state and in a timely manner.
The Court is concerned that should it make the father’s proposed orders, even including his proposed alternative orders, bearing in mind the significant suggestion that the child’s relationship with the father is presently strained and she has not spent time with him since early November 2020, that there is a real risk that the timely restoration of the child’s former relationship with the father may be put at risk. In the view of the Court, re-establishment of time between the child and the father should occur cautiously and conservatively, including taking into account the discussions below under the need to protect primary consideration.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
On the material before the Court, there is a significant suggestion that at least in about May 2020 the child may well have been engaging in inappropriate sexual activity with the child E at the residence of the Father and was wanting those activities to continue. In this regard, the Court refers to, inter alia, the Mother’s allegations, the child’s alleged text messages to E (see, for example, Annexure A to the Mother’s Affidavit filed 29 July 2020), the Mother’s notifications to the police, and alleged disclosures by the child to caseworkers from NSW Communities and Justice. The Court has significant concerns in relation to this issue of alleged inappropriate sexual activity by the child.
There is a significant suggestion, on the material before the Court, that the Father to date has had significant doubts as to the above allegations relating to the child and E (inter alia, he contends that the child E was not formally interviewed). It would also appear that the Father’s partner has had similar doubts. At the interim hearing, the Father, in submissions, stated that he doubted the authenticity of some of the alleged text messages from the child E. At page 13 of 29 of the ICL subpoenaed tender bundle, Exhibit A, it is recorded in the Communities and Justice file note as follows: “It is worth mentioning however that (the Father) has been not believing of the incident which precipitated the current investigation and through further conversations with him, he does not appear to alleviate from this. When Caseworkers remind (the Father) of X’s disclosures, (the Father) has said that he believes that these disclosures are because of X’s Mother.”
Taking the above matters into account, in particular, the Court has a serious doubt that any injunction or restraining order against the Father that he, for example, supervise the child in relation to E, were the child to spend overnight time with the Father at his residence, could minimise the risk of the child engaging in inappropriate sexual activity with E. Firstly, the Court has a serious doubt that the Father would properly endeavour to comply with such an injunction. And in any event, even if such an injunction or restraining order were to be made against the Father, and the Court could be confident (which it is not) that the Father would endeavour to properly comply with such an injunction or restraining order, the Court has a significant doubt that such an injunction could be practically complied with by the Father, taking into account the number of children in the Father’s household, and taking into account the practical difficulties of complying with such an order during sleeping hours particularly if the child was determined to engage in inappropriate sexual activity with E.
Accordingly, in the view of the Court, and acting cautiously and conservatively, the risk of the child, aged 13, engaging in inappropriate sexual activity with E, aged 14, can best be minimised by the child spending daytime time with the Father as proposed by the ICL.
The Court should state that it would regard sexual activity between the child, age 13, and E, aged 14, to be an activity not in the child’s best interests as being age inappropriate, and in this regard the Court refers to, inter alia, the alleged statements and actions of police and Communities and Justice.
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The Mother contends and alleges that the child has been diagnosed with autism spectrum disorder level 2, and in this regard she refers to a diagnosis of the paediatrician. The Mother refers to alleged behaviour by the child which is contended to be consistent with this diagnosis. The Father, on the material before the Court, would appear to have doubts as to whether this diagnosis was made correctly.
On 5 March 2020, the child told the family consultant that she wished to live with each of the parents on a week about basis. However, as submitted by the ICL, there is a significant suggestion, on the material before the Court that at such time the child may well have been engaging in inappropriate sexual activity with the child E or at least intending to so engage.
The parties have expressed differing views and beliefs to the family consultant at the Child Dispute Conference on 18 November 2020 in relation to the child’s wishes as to which party she would like to live with.
Taking into account the Court’s concerns in relation to the child’s alleged inappropriate sexual activity, as discussed above under the need to protect primary consideration, together with the child’s alleged diagnosis of autism and the Mother’s allegations relating to her observations of the child which she contends are consistent with this diagnosis, the Court would not attach any significant weight to the child’s views at this interim stage.
(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 Court refers to the meaningful relationship primary consideration discussed above. The child would also appear to have positive relationships with the members of the parties’ extended families, including stepsiblings.
(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
Both parties have sought to take such opportunities.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Both parties would appear to have maintained the child when the child was in each of the parties’ respective care.
(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
The Court refers to its discussions above under the meaningful relationship primary consideration.
(e) The practical difficulty and expense of a child spending time with and communicating with the 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
The Father contended that should the Court make the Mother’s or ICL’s proposed interim orders, relating to spending time with the child during the daytime, that he would have serious practical difficulties in meeting such proposed orders because of his practical obligations to his other children on weekends. The Court recognises that should it make the ICL’s proposed orders that there may well be time clashes between such orders and the Father’s proposed time to be spent with his other children. However, there is force to the Mother and ICL’s submissions, in this context, inter alia, that the Father’s own children are not living in his primary care (they are spending five nights each fortnight with him), and there is a need in any event for the Father to begin to repair his relationship with the child having not spent face-to-face time with her since November 2020; there is a present need for the Father to focus on the child.
(f) the capacity of:
i) each of the child’s parents; and
ii) 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
The Court refers to its discussions above under the meaningful relationship primary consideration in relation to the Father relating to the significant suggestion that the Father’s relationship with the child has become strained to some extent by reason, in particular, of alleged statements made by the Father to the child in about November 2020. The Court refers to the Mother’s allegations relating to alleged denigration of her by the Father in the presence of the child. The Court also refers to the Father’s allegations relating to the Mother, significantly denied by her, as to not facilitating his relationship with the child. Otherwise, both parties would appear to have such capacities.
(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
The Court refers to its discussions above under s 60CC(3)(a) (the views of the child).
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussions above under the primary considerations and s 60CC(f) above.
(j) Any family violence involving the child or a member of the child's family
The Court refers to the family violence observations of the family consultant in the Child Dispute Conference Memorandum.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter
Not applicable.
(l) 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
In the view of the Court, at this interim stage, the proposed orders of the ICL, compared to the proposed orders of the Father, would be least likely to lead to the institution of further proceedings in relation to the child, and in this regard, the Court refers to its concerns discussed above under the need to protect primary consideration.
m) Any other fact or circumstance that the Court thinks is relevant
As to the Father’s proposals, in the alternative, that the child spend fortnightly time with him with the child to sleep overnight at the residence of the paternal grandparents, there is force to the submissions of the ICL in this regard; there is no significant material before the Court relating to the paternal grandparents and this proposal of the Father in the alternative.
Parental responsibility
The Mother, supported by the ICL, seeks an order for interim sole parental responsibility relating to major medical decisions to be made for the child.
The child has been diagnosed with autism spectrum disorder, although this diagnosis has been significantly doubted by the Father, with the Father asserting, inter alia, that one of his own children has autism. The paediatrician who made the diagnosis of autism also indicated that the child was being investigated for dyslexia and ADHD. The Mother alleges that the Father has not responded, in a timely fashion, to her suggestion that a second opinion be obtained in relation to the autism diagnosis. The child was being treated by a paediatrician for autism, and generalised anxieties and sleep initiation difficulties in May 2020.
The Mother raised with the paediatrician in May 2020 her concerns regarding alleged sexualised behaviour and preference/orientation of the child. It is noted again, that the Father has doubted the Mother’s allegations in this context.
There is a significant suggestion, on the material before the Court, that the parties have been involved in significant disputation with each other over the last couple of years, including in relation to the child, and that their ability to productively co-parent the child on a regular basis is deficient. There would appear to be a significant level of distrust between the parties.
There is a significant suggestion on the material before the Court that this particular child may well need major medical decisions to be made on her behalf in a timely fashion. The Court has a significant doubt that the parties can reach agreement in a timely fashion in relation to such decisions without conflict. At this interim stage, it will be in the best interests of the child that the Mother have sole parental responsibility for medical decisions to be made in relation to the child.
As to equal time, the Court refers to its discussions immediately above under the heading ‘Parental Responsibility’. In the view of the Court, on the material before it, these parties lack sufficient co-parenting capacity, trust and communication, to be able to successfully implement an equal time arrangement. An equal time arrangement, in the view of the Court, carries the significant risk that the parties would experience conflict, with the potential consequence that the child’s relationship with one or both parents would be detrimentally affected. As to potential substantial and significant time to be spent between the child and the Father, the Court is of the view, on the material before it, that such an order would not be in the best interests of the child and this regard the Court refers to its discussions above under the primary considerations.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following interim Orders:
The Court suspends all previous Orders relating to the child spending time with the Father that are inconsistent with the Orders below.
Commencing Saturday, 13 March 2021, the child shall spend time with the Father as follows:
(a)For one month, each fortnightly weekend during the following times: Saturday 9 AM to 11 AM and Sunday 9 AM to 11 AM; then,
(b)For one month, each fortnightly weekend during the following times: Saturday 9 AM to 1 PM and Sunday 9 AM to 1 PM; then,
(c)For one month, each fortnightly weekend during the following times: Saturday 9 AM to 3 PM and Sunday 9 AM to 3 PM; then,
(d)Thereafter, each fortnightly weekend during the following times: Saturday 9 AM to 5 PM and Sunday 9 AM to 5 PM.
The mother shall have sole parental responsibility in relation to medical decisions in relation to the child, but otherwise the parties shall have equal shared parental responsibility in relation to the child.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by February 2022.
The Family Report shall deal with the following matters:
(a)Any views expressed by the child(ren) the subject of parenting orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the child(ren) with each of the child(ren)’s parents and with significant other persons;
(c)The willingness and ability of each of the child(ren)’s parents to facilitate and encourage a close and continuing relationship between the child(ren) and the other parent.
(d)The likely effect of any changes in the child(ren)’s circumstances, including the likely effect on the child(ren) of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child(ren) has/have been living.
(e)The practical difficulty and expense of the child(ren) spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child(ren)’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)The capacity of each parent, or another person, to provide for the needs of the child(ren), including emotional and intellectual needs.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child(ren) and of either of the child(ren)’s parents and any other characteristics of the child(ren) that the reporter thinks are relevant.
(h)Each parent’s attitude to the child(ren) and to the responsibilities of parenthood.
(i)Any family violence involving the child(ren) or a member of the child(ren)’s family.
The parties shall attend all appointments with the Family Consultant and shall ensure the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.
The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.
The proceedings are listed for mention following release of the Family Report on a date to be advised to the parties in due course.
I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 12 March 2021
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Family Law
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