Cardellini & De Bono
[2021] FedCFamC1F 251
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cardellini & De Bono [2021] FedCFamC1F 251
File number(s): MLC 2525 of 2021 Judgment of: WILSON J Date of judgment: 6 December 2021 Catchwords: FAMILY LAW – REVIEW OF SENIOR JUDICIAL REGISTRAR’S DECISION – decision under review ordered week-about time for each parent with the child – father not wanting weekend time as he says that time impedes his business activities as a sales professional – best interest considerations addressed – review application dismissed.
FAMILY LAW – PARENTING – father seeking orders restraining mother’s partner from having contact with the child – allegations by father of violence by mother’s partner – family consultant recommending no restraints – father’s application dismissed.
Legislation: Family Law Act 1975 s 60CC Cases cited: Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
Harris & Caladine (1991) 172 CLR 84
M & M (1988) 166 CLR 69
Marvel v Marvel (2010) 43 FamLR 343
Polland & Nordberg [2019] FamCAFC 361
Redmond & Redmond [2014] FamCAFC 155
SS & AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 78 Date of hearing: 18 November 2021 Place: Melbourne Counsel for the Applicant: Mr A. Robinson Solicitor for the Applicant: Clancy and Triado Counsel for the Respondent: Mr G. Combes Solicitor for the Respondent: Marcou & Associates Pty Ltd Lawyers ORDERS
MLC 2525 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CARDELLINI
Applicant
AND: MS DE BONO
Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
6 DECEMBER 2021
THE COURT ORDERS THAT:
1.The applicant’s review application filed on 29 September 2021 is dismissed.
2.Any application for costs must be provided to my associates by email by no later than 4:00pm on 13 December 2021.
3.The party seeking costs must file and serve written submissions in support of that costs application by 4:00pm on 27 December 2021.
4.The party against whom a costs order is sought must file and serve written submissions in opposition to the making of a costs order by 4:00pm on 14 January 2022.
5.A decision on costs will be made on the papers.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (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 Cardellini & De Bono has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
By application filed on 29 September 2021, the applicant father has applied to review the orders made by Senior Judicial Registrar Hoult on 9 September 2021.
Pursuant to those orders the child is to live with the mother and father on a week-about basis. The father carries on business as a sales professional. His counsel informed me that he works on Saturdays conducting client meetings and that his having the child on a Saturday presents complications for the father.
The father sought a restraint on the mother’s partner having contact with the child. The father contended that the mother’s partner presented an unacceptable risk to the child.
For the reasons that follow this review of the decision of the senior judicial registrar is dismissed.
RELEVANT FACTUAL CONTEXT
The mother and the father met in 2012, they commenced living together in 2013, the child was born in 2014 and the parties permanently separated in 2020. They were not married. Pursuant to previous consent orders, the child had lived with the mother three days a week and with the father four nights a week. The senior judicial registrar ordered a week-about regime in relation to the child’s living arrangement.
Expressed most basically, the mother lives in Suburb B. The child attends school in Suburb C which the mother said is 2.8km from her home. The father lives in Suburb D. The mother deposed to the father’s residence being about 45 minutes’ drive, one way, to the mother’s residence. She also deposed to the father having purchased a home in Suburb E in Region F, about 120 kilometres from the mother’s home.
Psychologist and family consultant Ms G made an affidavit on 21 October 2021 to which she exhibited her family report dated 27 August 2021. The more important matters that arose from the family consultant’s report were as follows –
(a)both parents are 40 years of age or thereabouts;
(b)the child is seven years of age;
(c)the mother has three teenage children from a previous relationship;
(d)the mother works on a casual basis with her partner in a small business;
(e)the business at which the father works is in Suburb H;
(f)in accordance with orders made on 8 April 2021 the child lives with the father each Saturday afternoon to Wednesday morning during school time (four nights in the week) and with the mother each Wednesday after school to Saturday afternoon (three nights in the week) during school time along with half school holidays;
(g)changeovers which do not occur at school occur at the mother’s home;
(h)pursuant to orders made on 8 April 2021, the mother is not to bring the child into contact with the mother’s partner;
(i)the father is divorced from his previous wife and the mother is divorced from her previous husband; and
(j)the mother and her partner were in a relationship as adolescents.
According to the family consultant, in January 2021 the father learned that the mother and her partner had formed a relationship and that in February 2021 the mother’s partner had been involved in a violent incident. In February 2021 the father did not return the child to the mother’s care. Orders were then made on 8 April 2021 after the father commenced this litigation in March 2021.
Ms G recorded in her family report that the father described himself as “one of the most hands on fathers you would come across”. The family consultant also recorded the mother’s preference for a week-about arrangement.
The issue of the alleged violence by the mother’s partner was the subject of specific evidence from Ms G. I have addressed it in the passages set out below.
So far as the time the child spends with his parents was concerned, Ms G recommended an equal shared care arrangement of alternate weeks between Fridays and Saturdays during school time along with one overnight time with the non-resident parent.
Ms G was of the view that the child is healthy, well cared for, progressing well at school and that he is a bright and capable child. Ms G said each parent presented as a competent caregiver for the child. Ms G favoured the mother’s proposal of alternative weeks.
Ms G specifically addressed the father’s proposal of the child living with the father each Saturday afternoon to Thursday morning and with the mother each Thursday to Saturday. Ms G contrasted that proposal with the mother’s proposal for the child to live with the mother and the father on a week-about regime. Ms G recommended ordering the mother’s proposal.
THE FATHER’S EVIDENCE
In the course of submissions on 18 November 2021, counsel for the father took me to material filed in this proceeding which went beyond the documentation identified in part B of his outline of case filed on 3 November 2021. No objection was raised to that course. On behalf of the father, Mr Robinson of counsel identified the three issues for my determination as being –
(a)the living arrangements for the child;
(b)whether a restraint should be imposed in relation to the child’s contact with the mother’s partner; and
(c)whether the mother’s proposal in her consent minute dated 3 September 2021 should be ordered.
The father relied on several of his own affidavits. They were made on 9 March 2021, 6 April 2021 and 1 October 2021. Each is lengthy and canvassed matters some of which went beyond matters of relevance on this review application. So far as the father’s evidence in relation to the first issue was concerned, namely, the child’s living arrangements, the following is a fair distillation of it –
(a)he is 40 years of age, living with his father in Suburb D and he is employed as a sales professional;
(b)he commenced a relationship with the mother in 2012, they commenced living together in 2013, the child was born in 2014 and they separated in 2020;
(c)the majority of the balance of the father’s 9 March 2021 affidavit covered the father’s suspicions about the mother’s partner;
(d)as a sales professional his busiest time of work is Thursday nights and Saturday mornings so the arrangement for the child to be in the father’s care for four nights per week allowed the child to live with the mother when the father was at work; and
(e)he lives in Suburb D but works in Suburb H, near the mother’s house and the child’s school.
The father’s 10 October 2021 affidavit included what he described as his “objection” to various observations by the family consultant. The father’s use of the word objection was erroneous. As a litigant he (of his own accord) has no evidentiary entitlement to object to a family consultant’s recommendations or assessment. Solicitors preparing affidavits for use in litigation in this court should take greater care than to include gratuitous comments that a deponent “objects” to one matter or another. The father “objected” to the recommendations by the family consultant in relation to –
(a)the father meeting and talking with the mother’s partner;
(b)the father moving closer to the child’s school; and
(c)the week-about arrangement.
Elsewhere in that affidavit the father embedded legal submissions into his narrative of events, wholly impermissible even on an interlocutory application. Rule 8.16(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 requires an affidavit to be “confined to facts” and “confined to admissible evidence”. Many of the subparagraphs to paragraph 49 of the father’s 1 October 2021 affidavit were submissions and therefore not facts of which rule 8.16(1) speaks. The introductory words of paragraph 49 of the father’s affidavit revealed the inadmissibility of a large portion of paragraph 49. Again, solicitors should be diligent to ensure that deponents depose to facts only. Paragraph 49 does not do that. There may be costs consequences for that failure or omission.
So far as the first issue was concerned, the wife addressed it in her affidavit made 29 October 2021, some details of which have already been recorded above. She deposed to the child, on occasions, speaking to the wife and that the child described the Suburb E property where she said the applicant lives. The mother deposed to the father directing the focus of this case to be the father’s work commitments and that the father wants orders to be made that fit in with his hours of work. She said she works as well, a matter that the senior judicial registrar raised with the father when the matter was before the senior judicial registrar.
Let me now go to the second issue before applying the relevant principles of law. The gravamen of the father’s evidence was to the effect that the mother’s partner poses an unacceptable risk to the child within the contemplation of the High Court’s decision in M & M.[1] The father sought an order the effect of which was to impose a restraint on the child coming into contact with the mother’s partner.
[1] (1988) 166 CLR 69.
The evidence in relation to the factual background surrounding the father’s request for the restraint order was contested, although not in respect of every detail. The manner in which a judge in my shoes should properly address contested factual issues on an interlocutory application has been the subject of several statements in decisions in this court.[2] Those statements caution against a court making factual findings on the hearing of an interlocutory application that is contested. In this case several aspects of the factual matrix concerning the mother’s partner’s violence were disputed. In accordance with the authorities recorded in the footnote below, when assessing that disputed evidence I have proceeded on the basis that I should make factual findings arising from that contested evidence with great circumspection. Many matters arising from that disputed evidence can only be resolved after deponents are cross-examined at trial.
[2] Marvel v Marvel (2010) 43 FamLR 343, Eaby & Speelman [2015] FamCAFC 104, Redmond & Redmond [2014] FamCAFC 155, SS & AH [2010] FamCAFC 13, Deiter & Deiter [2011] FamCAFC 82 and Polland & Nordberg [2019] FamCAFC 361.
Equally, the court is required to act protectively towards the child if evidence exists that an unacceptable risk presents itself in the child having contact with the mother’s partner. For the reasons set out below, in my view an unacceptable risk does not exist in the child having contact with the mother’s partner. To better explain my reasoning on this issue, it is necessary to address the evidence in this case concerning allegations of violence attributed to the mother’s partner.
The mother and her partner were romantically linked in their youth, each later marrying different persons and in the mother’s case, she later cohabited with the applicant in this case after her divorce. The mother’s partner’s marriage failed. The father learned of the mother’s reconnection with the mother’s partner in late January 2021. The applicant and the respondent had separated much earlier. The father gave evidence he believed a prospect existed that he and the mother may be able to reconcile. He deposed to being upset upon learning that the mother and her partner had commenced a relationship. The father deposed to then contacting the estranged wife of the mother’s partner, describing his contact as “reaching out” to her, a phrase that introduced an unhelpful colloquialism. The father obviously found a means of contacting the mother’s partner’s former wife. In paragraph 26 of his affidavit made 9 March 2021 the father described the information given to him by the mother’s partner’s former wife, most if not all of which was probatively dubious hearsay evidence. Strict rules of evidence have very limited application in parenting cases by operation of s 69ZT of the Family Law Act. This was an interlocutory application. Hearsay may be allowed on interlocutory applications. I have read paragraph 26 as representing information that tended to explain why the father contacted the Department of Health and Human Services (“DHHS”) as he deposed in paragraph 33 of the same affidavit. He stated that DHHS indicated that it did not intend to take the matter further.
Correspondence produced from the Department of Families, Fairness and Housing (“DFFH”) dated 23 March 2021 and from DHHS dated 21 April 2021 was largely consistent with information given by DHHS, namely that each had decided to take no further action.
Solicitors then became involved from 3 February 2021. The father took the view that he was acting to promote the best interests of the child. He gave intricate details of times, dates and contents of contacts he made with the mother and also with her partner.
The relevant incident occurred on 3 February 2021. The father gave his version of events based on information given to him by the mother’s partner’s former wife. In précis form, it was alleged that the mother’s partner became enraged and damaged the mother’s home. The child was not present as he was with the father at the time. The father deposed, in significant detail, to the events even though he was not present. Then followed assertions by the father about aspects of the mother’s mental health. The mother responded by accusing the father of using the child as a weapon.
The father made two further affidavits. In the affidavit made 6 April 2021, the father deposed to inspecting various police records that he said “confirm (my) suspicions about family violence” by the mother’s partner. Paragraph 21 of that affidavit was a submission, not a deposition of fact of which the father was capable of giving first hand evidence and instead it was commentary. Reading the totality of the applicant’s affidavit material, it was apparent to me that he was determined to be selective in the information he gave the court, preferring to advance his own agenda in relation especially to his restraint application, over any objectively maintainable narration of relevant events.
In his affidavit made 1 October 2021 the father argued with and made submissions about the adequacy, content and quality of the family consultant’s report. It was apparent to me that the father is unwilling to abide by any report that does not support his views about what he perceived to be risks to his child as posed by the mother’s partner.
The mother’s partner made two affidavits. The first was made 8 October 2021. The deponent later deposed to not relying on that affidavit.
I have proceeded accordingly.
The mother’s partner’s affidavit made 29 October 2021 in support of this review application also addressed his current relationship with the mother, with his former wife and the incident on 3 February 2021. In précis form, he deposed that –
(a)he and the mother intend to live together;
(b)his 20 year marriage to his former wife ended in mid-2020;
(c)he regretted the pain caused to many persons by the 3 February 2021 incident;
(d)the father had used information obtained from the former wife of the mother’s partner in order to harass the mother and in order to instruct solicitors who, on instruction, asserted matters to the mother’s partner following the commencement of the relationship between the mother and new partner;
(e)he was not violent or a drug addict;
(f)he was upset at the impact the father’s conduct was having on the mother;
(g)he took the view that his former wife and the father were conspiring to bring the relationship between the mother and her partner to an end;
(h)on the night of the incident he was unable to console the mother or to relieve her state of upset; and
(i)those events were the precursor circumstances to the incident on 3 February 2021.
He deposed to the fact that the father had used the information concerning the 3 February incident as a basis for restraining the mother’s partner from having contact with the child. He said the father sought a personal safety intervention order leading to the grant of an ex parte intervention order which was resisted by the mother’s partner. A full, contested hearing on the intervention order application will be heard on 24 and 25 March 2022. The mother’s partner has been formally charged with three offences in relation to the 3 February 2021 incident although, by the date of his affidavit, those charges had not been heard. The mother’s partner sought orders on this review application that he is not restrained in his contact with the child.
In debate before me on 18 November 2021 counsel for the father submitted that certain details of the incident of 3 February 2021 had not been put before the family consultant for her consideration. That much was true in relation to the affidavit material made subsequent to interviews conducted by the family consultant on 19 May 2021 and 25 May 2021. That said, the family consultant did in fact interview the mother, the father, the child, the mother’s adult and teenage children from her earlier marriage as well as the mother’s partner. The report of the family consultant is lengthy, detailed and comprehensive. Perfectly properly, the family consultant devoted a significant portion of the report to a deep consideration of consequences of the violence alleged against the mother’s partner in relation to the 3 February 2021 incident. The father’s counsel argued before me that the family consultant’s recommendation would almost certainly have been less forgiving of the mother’s partner had the full details including police information, been produced to the family consultant for her consideration. I cannot reach that conclusion.
The father’s counsel, before me, argued that the mother’s evidence presently before the court should not be accepted. He submitted that I should place reliance on the information the mother gave to the police shortly after the incident. As to the submission that I should reject the mother’s present evidence, the authorities that include Eaby, Marvel, AA & SH and those others surveyed above instruct trial judges such as me to make factual findings on interim applications with great circumspection. I pointed out to the father’s counsel that a credit finding of the sort he urged me to make was precisely the finding that intermediate appellate learning in this court eschews me from making. Self-evidently, whether or not the mother’s evidence should be accepted in its entirety or partially, whether some or all of her evidence is corroborated by objectively supportable evidence and whether her evidence is to be preferred to the evidence of the father on a particular matter must await the trial of this proceeding. I do not proceed on this review application with a predilection towards accepting or rejecting the evidence of any deponent. That said, I do indicate that I place reliance upon the family consultant’s report in which she considered the totality of the information available to her in relation to matters that go to the child’s best interests. As has already been mentioned, the family consultant took into account certain (admittedly not the entirety of the) information about the alleged violence of the mother’s partner and then –
(a)recommended a week-about shared care arrangement for the child; and
(b)made no suggestion that the interaction between the mother’s partner and the child be the subject of restraint.
For that matter, between paragraphs 66 and 81 of her report, the family consultant specifically addressed factors relating to the child. She accurately synthesised the relevant issues as advocated by each of the child’s parents.
On behalf of the mother, Mr Combes submitted that the evidence did not disclose an unacceptable risk. He correctly contended that in circumstances where a large number of the factual issues are disputed, it was safest for me to place reliance upon the report of the family consultant. Mr Combes of counsel submitted that as at today’s date, the family consultant did not regard the alleged violence of the mother’s partner as an issue. Further, he submitted that departmental documentation similarly revealed no existence of risk. The child has a favourable relationship with the mother’s partner, according to Mr Combes. Mr Combes said, correctly in my view, that the father’s submissions fly in the face of the information about risk as given by the two departmental reports and by the family consultant.
APPLICABLE STATUTORY PROVISIONS
Being a review of the orders made by a senior judicial registrar and not an appeal for error of law, I am required to conduct a hearing de novo, making such orders as to me seem appropriate. The orders sought are “parenting orders” for the purpose of the Family Law Act. When formulating parenting orders, the court is required to make such orders as the court considers appropriate in the best interests of the child. One of the more important considerations that guide a court in making orders that are in the child’s best interests is the need for the child to have a meaningful relationship with both of the child’s parents. Of course, that consideration is subordinated where evidence reveals that there is a need for orders to be made to protect the child from physical or psychological harm within the contemplation of s 60CC(2)(b). Where such a need exists, greater weight must be given to the matters bearing upon s 60CC(2)(b) issues.
Here, the week-about arrangement promotes the primary consideration reposed in s 60CC(2)(a) of the Family Law Act. The family consultant has recommended as much.
But the issues before me on this review application are not determined solely by reference to the recommendations of the family consultant especially having regard to the fact that in this case the father is particularly vociferous in his criticisms of the family report. In reaching the conclusion at which I have arrived on this application I have taken into account all that the father has said in his criticisms of the family consultant’s report.
On behalf of the father, counsel urged me to place considerable store in the evidence of his client (whether direct, indirect, circumstantial or inferential) about the violence alleged against the mother’s partner. To that the following must be said –
(a)the father’s assertions represent no more than presently untested allegations;
(b)whether the father is able to sustain his civil proceeding against the mother’s partner remains to be seen;
(c)whether the father is able to prove to the requisite evidentiary standard the allegations he makes in this case against the mother’s partner also remains to be seen;
(d)the incident in early February 2021 is almost 12 months ago since which time there has been no repeat of any violent episodes according the evidence;
(e)the relations between the mother, the mother’s partner and the mother’s partner’s former wife are presently cordial – or at least, they are not hostile; and
(f)the mother and the mother’s partner’s former wife recognise the importance of the child being raised in a stable environment.
Having interviewed the mother’s former partner, the family consultant was not driven to a conclusion that the mother’s partner represented an unacceptable risk in his interactions with the mother or with the child. To the contrary – a fair reading of the family report indicates that notwithstanding the father’s unproven assertions about family violence allegedly perpetrated by the mother’s partner, the family consultant nevertheless recommended that a shared care week-about arrangement between the parents in relation to the child should be orchestrated.
In addition to my consideration of the primary considerations in s 60CC(2), I am also required by s 60CC(3) to address the 14 separate subsections of s 60CC(3). The first relates to any views expressed by the child under s 60CC(3)(a). The family consultant’s evidence on point was a little obscure. In paragraph 218 she mentioned the child’s wish for the family unit to be reinstated and in paragraph 170 of her report Ms G stated that the child had told her the child wanted his parents to get back together but that he added “I don’t think that will happen.” It is true that Ms G did not ask the child, in terms, whether the child wished for the week-about arrangement as proposed by the mother or the regime proposed by the father. However even if questioning along those lines had been put to the child, he is seven years of age and any answer given by the child may not have provided particular illumination nor attracted particular weight.
For the purposes of s 60CC(3)(b) of the Family Law Act, both parents enjoy a favourable relationship with the child and the child loves each parent in return. Similarly the evidence reveals that the child and the mother’s partner enjoy a favourable relationship. To my mind, that tends to bear upon the determination of the father’s application to restrain the mother’s partner from contacting or being in contact with the child.
Section 60CC(3)(c) invites a consideration of the extent to which each parent has taken (or conversely failed to take) the opportunity of participating in making decisions about major long-term issues, about spending time with the child and about communicating with the child. Both parents have been devoted parents and they have behaved well towards the child. The child has responded well. No party addressed specifically on a matter enlivening any concerns in relation to this subsection.
Relevant to this subsection is the father’s work history and current work arrangements for him to work on Saturdays. He indicated that his work commitments take him to client meetings. To my way of thinking his work on Saturdays is the father’s choice and in that regard he has chosen not to spend time with the child on Saturdays when the father has elected to prioritise his work engagements.
For the purpose of s 60CC(3)(ca) it became relevant for me to assess the extent to which each parent fulfilled or failed to fulfil the parent’s obligation to maintain the child. The mother deposed to the father failing to pay child support since separation and even when the mother and the father were living together, that the father has not fully supported the child. She said the following –
20.I have found it offensive that, much has been made about the Applicant having to work, and that, everything should revolve around his hours of work. As noted above, I have always worked and continue to work to support my family. The Applicant has only himself to support and X when he is there, whereas, I have three children from my previous marriage and X from this relationship. When I was living with the Applicant, he did not provide for me and the children. I worked and paid for the living expenses, the Applicant kept his wages and money to himself. I had no access to his finances. He may well have had money saved; I would not know.
21. The Applicant is not paying child support for X and has not done so since separation.
The true position in relation to each parent’s discharge of his and her child support obligations must be tested in cross-examination.
The provisions of s 60CC(3)(d) were the subject of evidence from the family consultant. She stated as follows in paragraph 237 of her report –
It is more likely that X will thrive if an arrangement such as that proposed as an alternative by Ms De Bono – of alternate weeks - is accepted, given the above noted explanation against both parents’ primary proposals.
The week-about arrangement recommended by the family consultant seemed to recognise the phenomenon of the father living in Suburb D and the mother living in Suburb B, the distance between the two and the possible impact of the distance on the child. The mother’s affidavit at paragraph 10 embedded a statement that the father had purchased a home on Suburb H in Region F. The father did not address that statement by the mother and instead gave his address as being that of his father’s residence. That aside, the family consultant did not raise any particular issue of concern for the purpose of s 60CC(3)(d).
Similarly, no particular point was raised by either counsel or for that matter by the family consultant in relation to the factors canvassed in s 60CC(3)(e).
An examination of the capacity of each parent and any other relevant person to provide for the needs of the child including the child’s emotional and intellectual needs is enlivened by s 60CC(3)(f). The family consultant addressed this issue in reference to the mother (between paragraphs 89 and 94 of her report), in reference to the father (paragraphs 95 to 98) and in reference to the mother’s partner (paragraphs 99 to 107). So far as the mother was concerned, the family consultant reported that the mother was warm and focused on the child. The consultant made a similar observation of the father. The family consultant observed that the mother’s partner told her that he and the child “got on really well”. Beyond that, the consultant did not go into the capacity of any of those three persons to provide for the intellectual and emotional needs of the child.
So far as the father’s capacity to provide for the child’s needs when the father is busiest with client meetings, the father exhibited wholesale unwillingness to provide for the child’s needs. At no stage in the review application before me did the father’s counsel indicate a willingness by the father for the father to do anything but conduct client meetings on Saturdays. That seemed to me to bear upon the father’s capacity to provide for the needs of the child, at least on Saturdays.
Section 60CC(3)(h) was not relevant.
An examination of the attitude to the child and the responsibilities of parenthood as demonstrated by each parent is enlivened by s 60CC(3)(i). Nothing adverse was recorded by the family consultant in that respect. Ms G addressed the issue from paragraph 185 of her report. She stated that each parent was a competent caregiver to the child. However, the family consultant recommended that each parent engage in family therapy.
Family violence is the subject of ss 60CC(3)(j) and (k). In the father’s written submissions, he stated that the mother’s partner’s previous wife obtained intervention orders against the mother’s partner on two separate occasions, in October 2020 and January 2021.
Certain of the intervention orders have been withdrawn or discontinued whereas in respect of others, undertakings have been given. For example –
(a)an application and summons for an intervention order was made against the father by the mother on 4 March of 2021;
(b)on 10 March 2021 a family violence interim intervention order was made against the father where the protected persons are the mother, the child and a third person named Ms J;
(c)on 22 March 2021 an application was made for variation of that intervention order;
(d)on 7 April 2021 an interim intervention order was made against the mother’s partner where the protected persons are the father and the child;
(e)on 27 May 2021 a family violence interim intervention order was made against the mother’s partner where the protected persons are the mother, the child and a third person, Ms J;
(f)on 3 June 2021 a family violence interim intervention order was made against the father where the protected persons are the mother, and two other persons, Ms K and Ms J; and finally
(g)on 22 June 2021 the father gave an undertaking.
Of course, it must at once be said that the definition in the Family Law Act of “family violence” is extremely broad, reflective of a deliberate legislative intendment to give the protection offered by the statutory provisions applicable to it the widest possible reach. It must also be said that a court in a case in which allegations of family violence are made cannot, and must not, slough off the allegations without carefully considering them. I have carefully considered the allegations. Yet I have also recognised that the allegations are untested and the family consultant has recommended as she has despite the existence of those allegations. While I am not required as a matter of law to unreservedly accept whatever the family consultant recommends, it seems to me she has applied her forensic skills in properly addressing the broader issues in this case and she has made her recommendations for a week-about arrangement for the child and the parents.
So far as s 60CC(3)(l) considerations are concerned, having regard to the hostility that exists between the father and the mother’s partner and the ongoing litigation between them in the Magistrates’ Court, it is unlikely that any order I make will have any bearing on further skirmishing between the father, the mother and the mother’s partner.
Section 60CC(3)(m) is not enlivened and counsel did not make submissions to that effect.
THE PARTIES’ PROPOSALS IN DETAIL
The father’s proposals were set out in his case outline. They were as follows –
1.That the parties have equal shared parental responsibility for the long-term care, welfare and development of the child X born … 2014 (“the child”; “X”).
2.That the child X live with the Father.
3.That X spend time with the Mother from after school (or 9.00am if a non-school day) on Thursday until 5.00pm on Saturday each week.
Or in the alternative to paragraphs 2 and 3 above
That until further Order and without prejudice to the Father’s ability to argue otherwise at a Final Hearing, the child X live with the parties in accordance with Orders 2 and 3 of the Orders of 8 April 2021, being as follows:
3.1 With the Father each week from 5.30pm on Saturday to the commencement of school on Wednesday morning (or 12noon if it is a non-school day; and
3.2 With the Mother at all other times.
4.That in accordance with Order 4 of the Orders of 8 April 2021, the Mother by herself, her servants and agents, be and is hereby restrained by injunction from bringing the child into contact with Mr L by any means.
5.That further Orders be made in the terms of the Minute of Consent agreed to the parties on 3 September 2021 setting out arrangements for special occasions, non-school changeovers and other ancillary parenting issues. Specifically:
5.1 The Father and Mother shall spend additional time with X on each of the following special days as follows:
(a)For X’s birthday commencing in 2022:
(i).With the parent that does not have X from the conclusion of school until 7.30pm on a school day, or if not a school day from 10.00am until 5:00pm; and
(ii).or as otherwise agreed between the parents in writing including email and or SMS text message.
(b)For Christmas in 2021:
(i).with the Father from 10.00am on Christmas Eve until 10.00am on Christmas Day in 2021; and
(ii).with the Mother from 10.00am on Christmas Day until 10.00am Boxing Day in 2021.
(c)For Greek Easter, in the event that X would not otherwise be in the Mother’s care, then with the Mother from 12 noon on Saturday until the commencement of school (or 12 noon if a non-school day) the following Monday.
(d)For Catholic Easter, in the event that X would not otherwise be in the Father’s care, then with the Father from 12 noon on Saturday until the commencement of school (or 12 noon if a non-school day) the following Monday.
(e)For Father’s Day, in the event that X would not otherwise be in the Father’s care, then with the Father from 5pm on the Saturday prior to Father’s Day until the commencement of school (or 9am if a non-school day) the following Monday.
(f)For Mother’s Day, in the event that X would not otherwise be in the Mother’s care, then with the Mother from 5pm on the Saturday prior to Mother’s Day until the commencement of school (or 9am if a non-school day) the following Monday.
(g)At any other times that the parents agree to from time to time in writing including email and or SMS text message.
5.2 For all changeovers which do not take place at the child’s school, the Father collect the child from the Mother’s residence at the commencement of time and deliver the child to the Mother’s residence at the conclusion of time.
5.3 In the event that either parent is unable to care for the child for more than two days, then the other parent has the first option to care for the child.
5.4 The parties be and hereby restrained by injunction from changing the child’s residence outside the State of Victoria without the prior express written consent of the other party.
5.5 The parties each be restrained by injunction from denigrating the other party or members of the other party’s family to the child or in the presence of the child or allowing others to do so.
5.6 The child have FaceTime communication with the other parent every second night at 8.00pm, and such communication be facilitated by the parents.
5.7 The parents shall immediately inform the other of any serious illness or injury sustained by X whilst in their care and provide any particulars of any treatment received by X, together with the name and address of the relevant medical health treatment provider and/or location at which X is a patient.
5.8 In the event that X is hospitalised both parents be permitted to visit X at the hospital.
5.9 Both parents be at liberty to contact and communicate with any doctor, allied health professional, counselor, or other medical practitioners X attends from time to time, regarding X’s medical and psychological condition, diagnosis, and treatment, with such communication to be at the requesting parent’s expense (if any) and this order shall act as authority for same.
5.10 Both parents be permitted to attend X’s school or extracurricular activity for special events usually attended by parents, subject to any school or extra-curricular activity policy as to parental attendance. s
5.11 Both parents be permitted to receive from the X’s school, at their expense (if any), all newsletters, photo order forms, information sheets, school reports and like information usually given to parents.
5.12 Both parents are permitted to attend teacher parent evenings and separate appointments to be made by the parents, if required.
5.13 The parties each keep the other advised of their respective:
(a)Mobile telephone number.
(b)Email address; and
(c)advise the other within seven days of any change of same.
6.Pursuant to ss.62B and 65DA of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in the Orders.
The mother’s proposal was put by her counsel in paragraphs 19 and 20 of her submissions. Those were as follows –
19. Formally, both parties seek that X live with them and spend alternate weekends with the other party (Application for Review filed 29 September 2021, Page 12 & Response to Initiating Application filed 6 April 2021, Page 7).
20. Ms De Bono has however adopted an alternative position, being for the maintenance of equally shared care, albeit on a ‘week about’ basis Family Report, paragraph 65.
The more formal proposals were set out in those court documents. They were as follows –
(a)the proposal set out in the application for review was identical to the proposal set out at paragraph 60 above; and
(b)the response, page 7, was this –
1.The mother and father have equal shared parental responsibility for X born … 2014 ("X")
2.X live with the mother.
3.X spend time and communicate with the father as follows:
(a)During the school term, each alternate weekend from the conclusion of school Friday ( or 3 .30pm if a non-school day) until 7 .30pm Sunday;
(b)Each Wednesday from conclusion of school until 7.30pm.
(c)For half of each term school holiday, from the conclusion of school Friday until 12 noon on the second Saturday thereafter;
(d)For half of the long summer school holidays on a week about basis:
(i).with the mother from the conclusion of school for the first week and every alternate week thereafter in all odd number years and with the father in the second week and every alternate week thereafter; and
(ii).with the father from the conclusion of school for the first week and every alternate week thereafter in all even years and with the Mother in the second week and every alternate week thereafter.
(iii).or as otherwise agreed between the parents in writing including email and or text message.
(e)During the school holidays and the long summer holidays the arrangements in suborder 3 (a) and (b) will be suspended. When the school resumes, the normal time spend regime in sub-order 3 (a) and (b) will resume in the continuing sequences as though the school holidays hand not intervened.
(f)at such further or other times as agreed between the parties in writing including email.
4.The father and mother shall spend additional time with X on each of the following special days as follows:
(a)For X's birthday commencing in 2022:
(i).with the parent that does not have X i from the conclusion of school until 7.30pm on a school day or if not a school day from10:00am until 5.00pm.
(ii).or as otherwise agreed between the parents in writing including email and or SMS text message.
(b)For Greek Easter, with the mother if X is not spending time, X will be returned to the mother from 12 noon Saturday.
(c)If the father is not spending time with X on Father's Day, from the preceding Saturday at 5.00pm until 5.00pm Father's Day.
(d)If the mother is not spending time with X on Mother's Day, from the preceding Saturday at 5.00pm until 5.00pm Mother's Day.
(e)or at any other times that the parents agree to from time to time in writing including email and or SMS text message.
(f)All changeovers to occur at school and when not at school at the Mother's residence at Suburb B or as otherwise agreed between the parents in writing including email and text messages.
5.The Applicant be restrained whether by himself, his servants, agents or howsoever otherwise from removing, attempting to remove, or allowing the removal of the child X, born … 2014, ("X") from the care of the mother unless otherwise specified by any order of this honourable court.
6.The father and, his servants and agents are restrained from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or any member of their immediate or extended family to or in the presence or hearing of any of the children and from permitting any other person so to do;
(b)assaulting, intimidating, molesting, harassing threatening, stalking causing or threatening to cause her bodily harm or otherwise committing family violence against one or either of the children and/or the mother
(c)Publish on the internet, by email or other electronic communication any derogatory material about the Respondent Mother or extended family; and
(d)Contact or communicate with the Respondent Mother by any means unless in writing and only in relation to parenting matters involving X.
7.That all communication between the Mother and the Father be child focussed and respectful, and in relation to the child only.
8.Pursuant to section 60CG of the Family Law Act 1975 ("the Act"), the Court make parenting orders consistent with the current Interim Family Violence Intervention Order Case Number … dated 10 March 2021, naming the Applicant father, MR CARDELLINI, the Respondent and the mother and the children, the protected persons, being that any parenting orders do not expose the child and/or the mother to an unacceptable risk of family violence from the father, his servants and/or agents.
9.That the parents shall immediately inform the other of any se1ious illness or sustained by X whilst in their care and provide any particulars of any treatment received by X, together with the name and address of the relevant medical health treatment provide and/ or location at which X is a patient.
10.In the event that X is hospitalised both parents be permitted to visit X at the hospital.
11.Both parents be at liberty to contact and communicate with any doctor, allied health professional, counsellor, or other medical practitioners X attends from time to time, regarding X's medical and psychological condition, diagnosis, and treatment, with such communication to be at the requesting parent's expense (if any) and this order shall act as authority for same.
12.That both parents be permitted to attend X's school or extracurricular activity for special events usually attended by parents, subject to any school or extracurricular activity policy as to parental attendance.
13.That both parents be permitted to receive from the X's school, at their expense (if any), all newsletters, photo order forms, information sheets, school reports and like information usually given to parents.
14.That both parents are permitted to attend teacher parent eveings and separate appointments to be made by the parents, if required.
15.That both parents will equally share the school fees and any other cost relating to X's school education, including but not limited to, school uniforms, schoolbooks, computers, school excursions and the like.
16.That both parties be permitted during their time with X to travel interstate with the X, and the travelling parent to advise the other that X is or will be interstate in a timely manner.
17.The parties each keep the other advised of their respective
(a)Mobile telephone number
(b)Email address
advise the other within seven days of any change of same.
18.The father pay the mother's costs of and incidental to these proceedings directly to Victoria Legal Aid.
19.Any other Orders as deemed appropriate by this Honourable Court.
20.Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
CONSIDERATION
The first issue to be addressed is the mother’s application for week-about time for the child. To that I now turn.
There seems to be no basis for a conclusion that the mother or the father is anything but a devoted and diligent parent. Each is presently in paid employment. Each works on weekends, as the father deposed in paragraph 11 of his 1 October 2021 affidavit and as the mother deposed at paragraph 38 of her 9 April 2021 affidavit. The father somehow takes the view that when he is busiest at work (paragraph 11 of his 1 October 2021 affidavit) the child should be in the mother’s care, irrespective of her own work commitments which require the mother to likewise work on weekends. Embedded in the father’s contentions in that regard is an underlying assumption that somehow his work obligations are more important than are those of the mother’s. Whether or not that is the fact, and irrespective of the logic or foundation of that view, the simple reality is that it ignores the best interests of the child by focussing on the parent’s work commitments rather than on the child. The family consultant wrote in unmistakable terms at paragraph 247 of her report that the child should be given the opportunity of spending an uninterrupted weekend with each parent. I agree with the submissions of the mother’s counsel that it is in the child’s best interests for the child to enjoy an uninterrupted weekend with each parent and that each parent must modify his and her work commitments to ensure that the child does in fact have an uninterrupted weekend with each parent.
In making that observation I am willing to proceed on the assumption that both parents are very good at their respective jobs. But that is to invert the enquiry. The considerations that the Family Law Act require me to take into account are predicated upon a parenting order that accords paramountcy to the best interests of the child. Those considerations do not speak of the importance of a parent’s job on weekends. In my view, the family consultant’s recommendations are sound and appropriate. Each parent would have week-about time with the child including weekend time. Each parent must therefore adjust his and her work commitments to ensure that occurs. The senior judicial registrar was entirely correct in his approach to the father’s application. I dismiss that part of the review of the senior judicial registrars decision made 9 September 2021.
The second issue relates to the father’s application to restrain the mother’s partner in having contact with the child. I reject the application. In my view the evidence does not reveal that the mother’s partner poses an unacceptable risk to the child. I say that for the reasons that follow. But before enumerating those, the submissions of the mother’s counsel are passingly relevant when he pointed out that on the father’s own application, the father was agitating for the mother to have the child for an additional two nights each week, making it tolerably plain that the father, in pressing that application, did not regard the risk of the mother’s partner as being significant. There is force in that submission.
It goes without saying in family law that a court will not make a parenting order that places a child at an unacceptable risk of harm[3] according to the civil standard of proof.[4] The court must act protectively. But in the circumstances of this case I take the view that the mother’s partner does not present an unacceptable risk to the child. The following are the integers underpinning that conclusion –
(a)each of DHHS and DFFH has elected to take no further action in relation to the mother’s partner;
(b)DFFH elected to take no further action subsequent to intervention orders and subsequent to the father commencing civil litigation against the mother’s partner;
(c)the family consultant has been cognisant of the conflict between the father and the mother’s partner yet at paragraph 109 of her report the family consultant stated that the child does not present as significantly impacted by that conflict;
(d)the violence exhibited by the mother’s partner was primarily separation instigated;
(e)at paragraph 167 and 214 of the family report the family consultant reported that the child told her that the mother’s partner does not get cross at the child and that the mother’s partner presented generally as being calm, coherent and rational;
(f)the mother’s partner has denied the father’s allegations that the mother’s partner has engaged in substance abuse and no objective evidence supports the assertion;
(g)any heavy consumption of alcohol by the mother’s partner ceased in March 2019 according to the mother’s partner’s cardiologist; and
(h)the allegations made by the father against the mother’s partner in relation to violence are denied by the mother’s partner and must await testing at trial.
[3] M & M (1986) 166 CLR 69.
[4] Brigginshaw v Brigginshaw (1938) 60 CLR 336.
Counsel for the father asked me to carefully examine the credibility of the mother on this application, arguing that the mother’s present attitude towards her partner is to be contrasted with the mother’s attitude towards her partner immediately following the February 2021 incident. To that submission two things must be said. First, this review application is an interim application in which witness veracity cannot be seriously tested as no witness entered the witness box to be subjected to cross-examination. That must await trial. Second, whatever may be said by the father about the mother and her support of her partner, the focus of this application is the best interests of the child. The hostility between the mother and the father may be relevant to other matters in this case. However, in my view a determination of the best interests of the child will be premised on a vastly more sophisticated consideration than the hostility between the child’s parents.
In those circumstances I reject the father’s application for orders restraining the mother’s partner having contact with the child.
The third issue raised in the father’s outline of case related, so he said, to orders agreed to by the parties on 3 September 2021. Those were as follows –
5.1 The Father and Mother shall spend additional time with X on each of the following special days as follows:
a) For X’s birthday commencing in 2022:
(i) With the parent that does not have X from the conclusion of school until 7.30pm on a school day, or if not a school day from 10.00am until 5:00pm; and
(ii) or as otherwise agreed between the parents in writing including email and or SMS text message.
b)For Christmas in 2021:
(i) with the Father from 10.00am on Christmas Eve until 10.00am on Christmas Day in 2021; and
(ii) with the Mother from 10.00am on Christmas Day until 10.00am Boxing Day in 2021.
c) For Greek Easter, in the event that X would not otherwise be in the Mother’s care, then with the Mother from 12 noon on Saturday until the commencement of school (or 12 noon if a non-school day) the following Monday.
d) For Catholic Easter, in the event that X would not otherwise be in the Father’s care, then with the Father from 12 noon on Saturday until the commencement of school (or 12 noon if a non-school day) the following Monday.
e) For Father’s Day, in the event that X would not otherwise be in the Father’s care, then with the Father from 5pm on the Saturday prior to Father’s Day until the commencement of school (or 9am if a non-school day) the following Monday.
f) For Mother’s Day, in the event that X would not otherwise be in the Mother’s care, then with the Mother from 5pm on the Saturday prior to Mother’s Day until the commencement of school (or 9am if a non-school day) the following Monday.
g) At any other times that the parents agree to from time to time in writing including email and or SMS text message.
5.2 For all changeovers which do not take place at the child’s school, the Father collect the child from the Mother’s residence at the commencement of time and deliver the child to the Mother’s residence at the conclusion of time.
5.3 In the event that either parent is unable to care for the child for more than two days, then the other parent has the first option to care for the child.
5.4 The parties be and hereby restrained by injunction from changing the child’s residence outside the State of Victoria without the prior express written consent of the other party.
5.5 The parties each be restrained by injunction from denigrating the other party or members of the other party’s family to the child or in the presence of the child or allowing others to do so.
5.6 The child have FaceTime communication with the other parent every second night at 8.00pm, and such communication be facilitated by the parents.
5.7 The parents shall immediately inform the other of any serious illness or injury sustained by X whilst in their care and provide any particulars of any treatment received by X, together with the name and address of the relevant medical health treatment provider and/or location at which X is a patient.
5.8 In the event that X is hospitalised both parents be permitted to visit X at the hospital.
5.9 Both parents be at liberty to contact and communicate with any doctor, allied health professional, counselor, or other medical practitioners X attends from time to time, regarding X’s medical and psychological condition, diagnosis, and treatment, with such communication to be at the requesting parent’s expense (if any) and this order shall act as authority for same.
5.10 Both parents be permitted to attend X’s school or extracurricular activity for special events usually attended by parents, subject to any school or extra-curricular activity policy as to parental attendance.
5.11 Both parents be permitted to receive from the X’s school, at their expense (if any), all newsletters, photo order forms, information sheets, school reports and like information usually given to parents.
5.12 Both parents are permitted to attend teacher parent evenings and separate appointments to be made by the parents, if required.
5.13 The parties each keep the other advised of their respective:
a) Mobile telephone number.
b) Email address; and
c) advise the other within seven days of any change of same.
As is apparent from the orders that are the subject of this review application, on 9 September 2021 the senior judicial registrar did not make orders in accordance with the 3 September 2021 minute. In debate before me, the father’s counsel pressed for the making of those consent orders, although the wife’s written submissions also dated 3 November 2021 likewise said nothing on the point.
Orders concerning additional time were made pursuant to paragraph 4 of the senior judicial registrar’s 9 September 2021 orders. The report of the family consultant did not address the point nor did counsel for the wife during the hearing before me on 18 November 2021.
It seems to me that by reason of –
(a)the senior judicial registrar’s orders of 9 September 2021 post-dating the consent orders signed on 3 September 2021;
(b)the wife’s supporting the 9 September 2021 orders;
(c)the wife saying nothing about the 3 September 2021 minute on this application; and
(d)as the 9 September 2021 orders differ (albeit slightly) to the 3 September 2021 minute;
the proper construction of the orders is that the 9 September orders replaced the 3 September minute.
In the father’s 1 October 2021 affidavit he states that the 3 September 2021 minute of consent orders were provided to the senior judicial registrar’s chambers on 3 September 2021. It seems to me that it was open to and perfectly proper for the senior judicial registrar to amend the 3 September 2021 consent minute provided by the parties in terms that better addressed the best interest of the child, especially having regard to the totality of the evidence before the senior judicial registrar. Where consent minutes are provided to the court, the court must be independently satisfied[5] that the orders sought are in the best interests of the child.
[5]Harris & Caladine (1991) 172 CLR 84.
Minor differences exist in the minute dated 3 September 2021 and the 9 September 2021 orders including –
(a)paragraph 5.1(b) of the 3 September minute incorporated a reference to the year 2021 whereas paragraph 4(b) of the 9 September orders was silent as to year;
(b)paragraph 5.1.(b)(i) and (ii) spoke of each year not merely the year 2021;
(c)paragraph 5.1(c) of the 3 September 2021 minute are different to paragraph 4(c) of the 9 September 2021 orders;
(d)paragraph 5.1(d) of the 3 September minute addressed catholic Easter whereas no equivalent provision was made in the 9 September 2021 orders;
(e)paragraph 5.1(e) of the 3 September 2021 minute set out a regime for Father’s Day that was different to the Father’s Day regime recorded in paragraph (4)(d) of the 9 September 2021 orders;
(f)paragraph 5.1(f) of the 3 September 2021 minute set out a regime for Mother’s Day that was different to the regime recorded in paragraph 4(e) of the 9 September 2021 orders; and
(g)paragraph 5.1(g) was substantially similar to the orders recorded (then repeated) in paragraphs 4(f) and (g) of the 9 September 2021 orders.
The differences identified above between the minute and the order were minor yet by reason of the deletion of references to the year 2021 in the 9 September 2021 orders, it must be taken that those orders were not to be limited solely to the year 2021. As the mother sought orders dismissing this review application, it follows that her consent to the 3 September 2021 minute is to be taken to have been rescinded. In those circumstances I am unable to accede to the father’s argument that these portions identified above of paragraph 5.1 of the 3 September 2021 minute remain by consent. They may have been on 3 September 2021 but they were superseded by the 9 September 2021 order. I construe that scenario as pointing away from the consent position that may be underpinned the 3 September 2021 minute. In those circumstances I refuse to make orders in terms of the 3 September 2021 consent minute as sought.
CONCLUSION
The father’s review application failed. I dismiss his review application filed 29 September 2021.
I am willing to entertain any application for costs so long as –
(a)the party seeking costs notifies my associates by email by no later than 4:00pm on 13 December 2021;
(b)the party seeking costs files and serves written submissions in support of that costs application by 4:00pm on 27 December 2021; and
(c)the party against whom a costs order is sought files and serves written submissions in opposition to the making of a costs order by 4:00pm on 14 January 2022.
A decision on costs will be made on the papers thereafter.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 6 December 2021
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