CARRINGTON & GUNBY

[2019] FamCA 763

FAMILY COURT OF AUSTRALIA

CARRINGTON & GUNBY [2019] FamCA 763

FAMILY LAW – CHILDREN – The rule in Rice v Asplund (1979) FLC 90-725 – The best interests of the child – Whether there has been a change in the child’s circumstances – Where the consent orders were made when the child was five years old – The child is now 11 years old – The family consultant considered that the child demonstrates maturity – Where the court must balance the risk to the child of ongoing litigation – Where the circumstances of the child have changed.

FAMILY LAW – CHILDREN – With whom a child lives – Orders – Contravention – Where the child is to live with the mother pursuant to consent orders made in 2013 – Where the father has retained the child for three months – Where the mother has not seen the child and is only able to have contact by phone once per week – Where the father alleges that the child is at risk due to the mother’s partner – Where the parties each make allegations about family violence.

FAMILY LAW – ENFORCEMENT OF ORDERS – Recovery order – Where the mother seeks an order for the return of the child – Where the father refuses to return the child unless certain orders are made – Order for delivery up of the child but if the father does not deliver up the child to the mother within 48 hours of the making of the orders then a recovery order to issue.

FAMILY LAW – ORDERS – Contravention – Where the father was found to have contravened the consent order and was ordered to enter into a bond within seven days – Where the father refused to enter into the bond – Where the contravention was “more serious” and dealt with under sub-div F of div 13A of the Family Law Act 1975 (Cth) – Court to consider an appropriate sentence – Where a sentence of imprisonment is appropriate – Where the sentence is to be suspended – Orders.

Family Law Act 1975 (Cth) div 13A, ss 60CC, 70NAF(3), 70NFB, 70NFB(2), 70NFG

Deiter & Deiter [2011] FamCAFC 82
Dobbs & Brayson (2007) FamCA 1261
Eaby & Speelman (2015) FLC 93-643
Freeman & Freeman (1987) FLC 91-857
Goode & Goode [2006] FamCAFC 1346
In the Marriage of McEnearney & McEnearney (1980) FLC 90-866
Marvel v Marvel [2010] FamCAFC 101
McClintock & Levier (2009) FLC 93-401
MRR v GR (2010) 240 CLR 461
Rice & Asplund (1979) FLC 90-725
Searson & Searson (2017) FLC 93-788
SPS & PLS (2008) FLC 93-363

APPLICANT: Mr Carrington

RESPONDENT: Ms Gunby

FILE NUMBER: ADC 4119 of 2008

DATE DELIVERED: 23 October 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 11 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Litigant in Person

SOLICITOR FOR THE RESPONDENT:

UPON NOTING that the orders made on 4 September 2013 remain in full force and effect

Orders

1. That the father forthwith deliver up B born … 2008 (“the child”) to the mother.

2. That if the father has not delivered up the child to the mother within forty eight (48) hours of the making of these orders THEN pursuant to s 67Q of the Family Law Act 1975 (Cth) a recovery order shall issue directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the child B born … 2008 and to return/deliver the said child to MS GUNBY or such other person as she may nominate in writing to receive the child on her behalf, and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found..

3. The following directions apply to the day to day care of the child until the child is delivered to the persons specified above:-

   (a)MR CARRINGTON is prohibited from removing or taking possession of the child other than in accordance with the current orders;

   (b)If MR CARRINGTON again removes or takes possession of the child other than in accordance with the current orders he may be arrested without Warrant;

   (c)The Registry Manager shall provide the person or persons to whom the Recovery Order is addressed with such information as the Registry Manager received under a Location Order (including a Commonwealth Information Order) that may assist in finding and recovering the child.

4. That execution of the orders herein is stayed for a period of forty eight (48) hours from the making of this order.

5. That a sealed copy of these orders are to be served upon MR CARRINGTON as soon as is practical but in any event service shall have deemed to have been effected by the order being forward by Registered Post to the father’s address for service at Suburb C, SA.

6. That the child is to forthwith be re-enrolled and to attend the G Primary School until further order.

7. That each of the parties are to provide the other with a current and active mobile phone number to enable information to be exchanged concerning the child and to enable the child to telephone each of the parties.

8. That the parties do attend at a further Child Inclusive Conference with the child at the Adelaide Registry of the Family Court of Australia on Wednesday 27 November 2019 at 9.30am.

9. That the father’s time with the child pursuant to Order 3 of Orders made 4 September 2013 be suspended for a period of twenty one (21) days from the making of this order.

10. That for a period of thirty (30) days from the making of this order the mother be restrained and an injunction granted retraining her from allowing the child to come into contact with MR E and that thereafter and for a period of sixty (60) days the mother is restrained from allowing the child to be in the presence of MR E without supervision.

11. That the father be sentenced to a term of imprisonment for a period of twenty one (21) days with such term to be suspended upon the following conditions:-

    (a)         That the father be of good behaviour;

    (b)That the father comply with current and future orders for a period of six (6) calendar months.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4119 of 2008

Mr Carrington

Applicant

And

Ms Gunby

Respondent

REASONS FOR JUDGMENT

Introduction  

1. The proceedings relate to the competing applications of Mr Carrington (“the father”) and Ms Gunby (“the mother”) with respect to the ongoing parenting arrangements for B born in 2008 (“the child”).

2. The proceedings before the Court are as follows:-

   (1)The imposition of penalty consequent upon a finding that Count 1 of the Contravention Application filed 3 July 2019 was proven in that the father has contravened orders made 4 September 2013;

   (2)The father’s Initiating Application filed 4 October 2019 seeking by way of final and interim relief a variation of the final parenting orders; and

   (3)The Response filed by the mother on 8 October 2019 seeking enforcement of the parenting orders, but in particular interim orders seeking that the child be the subject of a recovery order and that thereafter the father’s time be suspended for 21 days.

Background

1. The parties have been in heated litigation in respect of the parenting arrangements for the child since 2008.

2. On 4 September 2013 the parties reached consent orders that provided for each of them to have equal shared parental responsibility for the child who shall live with the mother and spend time with the father as follows:-

   ·Each alternate weekend from 6.00 pm Friday until 6.00 pm Sunday;

   ·For the first half of each short school holiday period from 6.00 pm on the last Friday of school term until 6.00 pm on the following Friday;

   ·For one half of the Christmas school holiday period on a week about basis and in default of agreement, the father to have the first week in 2014 and the second week in 2015 and alternating each year thereafter.

3. Despite ongoing litigation involving claims by each of the parties that the orders have not been complied with, there has not been any change to the final orders.

4. On 3 July 2019 the mother filed a Contravention Application alleging that in breach of the orders the father did not return the child to the mother as and from 30 June 2019. The child has remained in the father’s care and whilst there has been some telephone communication between the child and the mother, there has been no physical contact for at least 105 days.

5. On 27 September 2019 the Court found that Count 1 was proven and ordered that the father enter into a Bond within seven days for a period of 12 months with the conditions of the Bond being:-

   (a)That he be of good behaviour during the period of the Bond;

   (b)That he comply with all current and future parenting orders.

6. The father did not enter the Bond and refuses to do so other than in circumstances where the final orders are the subject of the following conditions:-

   (a)That the mother be restrained from allowing her partner to come into contact with the child;

   (b)That the mother’s time with the child be initially supervised;

   (c)That the mother undergo an appropriate parenting course and engage in a Mental Health Care Plan.

7. In circumstances where the father has not entered into the Bond and is unlikely to do so, consideration now needs to be given to an alternative penalty.

8. Given that the father has indicated an intention not to comply with the final orders in their current form, he filed an Initiating Application on 3 October 2019 seeking to vary the orders to reflect the following:-

   ·That the father have sole parental responsibility for the child.

   ·That the child live with the father.

   ·That the mother be restrained from allowing Mr E (“the mother’s partner”) from coming into contact with the child.

   ·That the child spend time with the mother each alternate weekend from 6.00 pm Friday until 6.00 pm Sunday providing her time is supervised.

   ·That the child be permitted to continue home education.

9. It is also agreed that since the father retained the child he has not attended school.

10. By Response filed 8 October 2019 the mother seeks that a recovery order do issue and upon recovery and the child being returned to her care, the orders of 4 September 2013 be suspended for 21 days.

The father’s initiating application

1. In support of his Initiating Application the father relies upon his Affidavit filed 28 September 2019. There is little by way of narrative, however, the father annexes the memorandum from a family consultant following the Child Inclusive Conference in support of his application.

2. The conference took place on 7 August 2019 consequent upon the mother filing the Contravention Application.

3. The issues in dispute allegedly reflect the child’s concern that the mother was not fostering the child’s relationship with the father and referred to aggressive and overbearing conduct by the mother’s partner.

4. The risk factors involved family violence, child safety and wellbeing and whilst no mental health issues were identified, the father considered that a Mental Health Care Plan would assist the mother to “reframe her view of the father”.

5. Each of the parties have filed a Notice of Child Abuse or Family Violence that purportedly relate to recent events.

6. It is an important consideration that the notation to the final orders acknowledges that neither party considered the child to be at risk in the other parent’s care.

7. The relationship between the parties is redolent with conflict and mistrust. They are not able to communicate with each other at any reasonable level even accepting that the father does not have a mobile phone and prefers to be contacted on his landline phone.

8. At the time of interview the child was 11 years of age. He had been in the father’s care for six weeks. He complained that he is fearful of the mother’s partner and considers that his mother prefers her partner to him.

9. The child also reports upset at the mother’s denigration of the father and the lack of support for the child’s relationship with him.

10. He was unsure whether his mother still loved him and he wants to see his mother but in the absence of her partner.

11. The child is uncertain as to the future and is stressed whenever the mother rings and is concerned that the police may attend at his father’s premises. It is not understood how the child may have gained that impression.

12. At present the child is not at school. He had attended F Primary School and following an allegation of being bullied he transferred to G Primary School where he has friends.

13. The parties were not able to reach agreement, however the family consultant recorded the proposals to which she considered the parties were likely to be amenable. By necessary implication the family consultant considers that the proposals are both viable and also in the child’s best interests.

14. For completeness, I set them out in full:-

    (1)[The child] returns to live with his mother on Sunday 11 August 2019 at 6PM, with alternate weekend arrangements with the father to commence from this time, and all handovers at Suburb C Police Station unless otherwise agreed, as per the Orders of 4/09/13.

    (2)Injunction preventing [the child] from ever being alone with [the mother’s partner].

    (3)[The child] returns to G Primary School (not F) from Monday 12 August 2019.

    (4)The father to be included on [the child’s] enrolment form at G [Primary School] and thereafter be at liberty to liaise with the school about [the child].

    (5)[The child] to be provided (immediately) with a phone that only allows him to telephone his mother and/or father and that [the child] is [at] liberty to contact either parent whenever he wishes.

    (6)Each party to provide the other with a current/active mobile phone number, to be used solely in regard to [the child].

    (7)The mother to access a GP Mental Health Care Plan to assist her to actively re-shape her view of the father, which of itself, may assist in improving communication between the parents about [the child], (as well as protecting [the child] from her unremitting negative view of the father).

    (8)…

15. The family consultant considered that notwithstanding the expressed concerns of the child that his mother had effectively isolated him from his family, the child should return to the mother’s care to give her an opportunity to regain the child’s trust.

16. The child’s return to formal school education was an important consideration.

17. The father does not intend to return the child to school. His preference is for home schooling, however, the father has not filed any information about the necessary approvals required for home schooling, nor the exemption for the child to not attend school. Given more than three months has now elapsed, it is reasonable that the father produce the child’s home schooling curriculum, assessments and indicators demonstrating that the child’s academic wellbeing and advancement is well in hand.

18. The mother is critical of the father’s assertion that the child is home schooled. She refers to telephone communication with the child where he reports little or no academic involvement and no encouragement from the father to achieve educational key indicators.

19. The father promotes his initiating application whereas the mother contends that all she seeks is enforcement of orders that generally have served the child’s interests over a long period of time.

20. The parties are self-represented and until advised were not aware that the filing of a further initiating application requires consideration of whether it is appropriate to do so by reference to the best interests of the child.

21. In Rice & Asplund (1979) FLC 90-725 Evatt CJ said at 78,905:-

    The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material. …

22. In Freeman & Freeman (1987) FLC 91-857 Strauss J said at 76,470 to 76,471:-

    [C]ontinuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. … The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential pre-requisite to their well-being. … Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.

23. Warnick J in SPS & PLS (2008) FLC 93-363 observed:-

    [69]… In reality, the facts that relate to the best interests of children per se and to the determination of such questions as whether there has been a change of circumstances of sufficient magnitude to justify fresh considerations of parenting arrangements are likely to be identical or at least intertwined and to the extent that the facts are otherwise, they may well not be susceptible of identification or assessment for weight until all of the evidence bearing upon factors that relate to a child’s best interests are before a court. The nature of the hearing that follows if the Rice and Asplund rule is not applied as a preliminary matter, as described by authority, may well be the wise and practical choice.

    …

    [81]Thus, in my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.

24. In the Marriage of McEnearney & McEnearney (1980) FLC 90-866 Nygh J considered the application of what was then the recent decision in Rice & Asplund. He noted at 75,498 – 75,499 that:-

    Previously judges tended to view custodial disputes as primarily conflicts between parental rights and this offered a situation in which it would be easier to apply the hallowed principles of res judicata and issue estoppel. This contrasts with the more flexible approach which is seen in more recent decisions of the Full Court such as in Rice & Asplund (supra).

    Having said that I would hasten to add that the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.

1. The Full Court in Searson & Searson (2017) FLC 93-788 considered the application of the rule in Rice & Asplund and referred at [10] to remarks by Warnick J in SPS & PLS (supra) that:-

   [A]t whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.

2. And by further reference to Warnick J’s remarks in SPS & PLS (supra) their Honours held at [12]:-

   Yet, as his Honour was at pains to point out, the rule is not the application of some esoteric principle but rather, the practical application of a principle designed to avoid “endless litigation” to the detriment of the relevant children in circumstances where otherwise the principles of res judicata do not apply.

3. In Searson (supra) the following appears at [16]:-

   In Marsden & Winch the Full Court said:-

   57.      In Miller … the court posed the question:

   [105]Adapting the language used by Warnick J in SPS & PLS … the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?

   58.That question might be better formulated in another way in the following proposition, namely that there is a requirement:

   (1)for a prima facie case of changed circumstances to have been established; and

   (2)for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.

4. The orders that regulate the current parenting arrangements were made in 2013 when the child was five years of age. He is now 11.

5. The parties remain in high conflict and there has been little or no communication possible between them. Whilst at this stage, I do not accept without question the matters raised by the family consultant, her remarks are nonetheless important and at least raise the possibility that the dysfunction between the parties is promoting a level of sadness in the child that is adverse to his wellbeing.

6. There may be issues in respect of the mother’s partner, although she denies that it is the case.

7. The mere efflux of time suggests that consideration may now need to bring to account the wishes and views of the child that the family consultant considered to be “articulate, seemingly mature beyond his years”.

8. A further consideration is the father’s entrenched position that he will not allow the child to spend time with the mother and is firm in his opposition to the child resuming full-time formal education.

9. It is an ongoing concern to balance the risk to the child of yet again a further round of litigation in circumstances where the Court proceedings were commenced shortly after the child’s birth and continued to the present day.

10. I am of the view that there has been a change in the child’s circumstances and that even taking into account the risks of further litigation, the child’s interests are served by the Court considering the future parenting arrangements for the child.

Sentence to be applied

1. Following the finding that the father has breached the order of 4 September 2013 I heard submissions from the parties as to penalty and determined that the father should enter into a Bond for a period of 12 months with the condition of the Bond being that he be of good behaviour during the period of the Bond and that he comply with all current and future parenting orders.

2. The father has determined that he will not enter into the Bond as ordered unless there is a substantial variation to the current parenting orders.

3. Applications for contravention orders are contained at div 13A of pt VII of the Family Law Act 1975 (Cth) (“the Act”).

4. I have determined that the contravention occurred without reasonable excuse and is “more serious” (sub-div F).

5. Section 70NFB of the Act provides for the orders that are available to be made by the Court. They include the following:-

   (a)A community service order;

   (b)An order requiring a person to enter into a Bond;

   (c)The power to make a further parenting order that will compensate a person for the time that the child did not spend with that person;

   (d)A fine;

   (e)To impose a sentence of imprisonment; or

   (f)to make an order requiring the party who committed the current contravention to compensate the other party for expenses incurred in respect of the contravention.

6. In McClintock & Levier (2009) FLC 93-401 Cronin J said at [233] that:-

   The focus of a court therefore in dealing with a contravention application under Division 13A must be in making orders which will enforce future compliance with its orders.

7. Given that the father has refused to enter into a Bond, I have given careful consideration to other sentencing options. The parties are impecunious and accordingly a monetary penalty or fine would represent an unnecessary and onerous punishment on the father.

8. The parties have been in litigation since 2008. It is unlikely that in addition to any other parenting option they would gain advantage from either of them attending a parenting course.

9. I do not consider that a community service order is appropriate and in those circumstances I have regard to ss NFB(2)(e) and 70NFG in relation to orders for imprisonment.

10. The mother supports a penalty of the imposition of imprisonment. She was not able to indicate the duration of any term of imprisonment, but she considered that imprisonment was appropriate in the circumstances taking into account the seriousness of the contravention namely, that the child had been retained by the father for in excess of 105 days and that the child had not been attending school.

11. I accept that imprisonment is an order of last resort.

12. I may only make an order for imprisonment pursuant to s 70NFB(2)(e) if I am “satisfied beyond reasonable doubt that the grounds for making that order exists”.

13. The Full Court in Dobbs & Brayson (2007) FamCA 1261 said of s 70NAF(3) as follows:-

    47.Returning to the interpretation first discussed, namely that, before a sentence of imprisonment can be imposed, s 70NAF requires the court to be satisfied beyond reasonable doubt of all of the following elements: the commission of a contravention, that the contravention was “more serious” and that other available orders were inappropriate; we note that each of these matters is a “step” required by provisions in Division 13A. Each “step”, in our view, is readily enough seen as a “ground” for making one of the orders in question. This interpretation we think consistent also with general principle, as emerges from the following authorities.

14. The test is one of last resort and requires that I be satisfied beyond reasonable doubt that the other orders that may be available under s 70NFB would “not be appropriate” in “all the circumstances of the case”.

15. I have given careful consideration to the other penalties that could be imposed.

16. The egregious nature of the father’s breach was such that an option, albeit of last resort, was a sentence of imprisonment. The concern of the Court was to ensure that orders were the subject of compliance by the father. Ample opportunity was given to the father to seek independent legal advice and during the course of the proceedings he took the opportunity to consult with the duty solicitor. The duty solicitor was advised of the nature of the proceedings and of the need, in particular, to focus on the issue of penalty. The Court was keen to urge the father to reflect upon his conduct but also of the advantages to him of a Bond which required nothing more than to be of good behaviour and to comply with orders of the Court.

17. To the extent that the father was concerned as to his ability or preparedness to comply with the existing orders, before the Court was his application to change, amend or vary the orders raised in his initiating application but in any event under s 70NBA.

18. The father declined to enter into the Bond.

19. In the present circumstances the father has had the benefit of more than three months to resume complying with the Court orders. He was steadfast in his refusal to contemplate the return of the child to the mother, or even that there be some provision for the child to spend time with the mother.

20. The father made it known that the child was in the vicinity of the Court and may even have been ensconced in a motor vehicle or at a nearby park with the paternal grandmother outside of the Court building. An opportunity was provided for the father to contact the child and have him brought into the precincts of the Court to speak to the mother. That did not occur.

21. The father’s behaviour satisfies me beyond reasonable doubt that only a sentence of imprisonment is appropriate.

22. Accordingly, I propose to order that the father be imprisoned for a period of 21 days from the date of this order but that it be suspended upon the following conditions:

    ·That the father be of good behaviour; and

    ·That the father comply with current and future orders for a period of six (6) calendar months.

Interim parenting orders

1. The father seeks that the orders of 4 September 2013 be suspended, with the child to live with the father and spend limited time with the mother subject to the child having no contact with the mother’s partner and the mother’s time to be initially supervised until she demonstrates “progress in parenting course and GP Mental Health Care Plan”.

2. The father relies upon the child inclusive memorandum and his notice of child abuse which alleges the following:-

   (1)[The child] has reported to SAPOL physical and psychological abuse. Physical assault by [the mother’s partner] with ongoing aggression causing extreme distress for the child. Child reports being thrown onto hard tiled kitchen floor in the week following child’s 11th birthday.

   (2)Daily jabbing and shouting and yelling at the child by [the mother’s partner].

   (3)Mother is aware of ongoing abuse and child reports that instructs him not to tell anybody, especially his father, using coercion and threats.

   (4)Child SAPOL interview report…

3. The mother seeks that the interim parenting arrangements are as provided for in the orders made 4 September 2013.

4. Without any admission, she is prepared to ensure that the child does not come into contact with her partner for a four week period.

5. She relies upon her Affidavit filed 6 October 2019 and contends that since the father retained the child on 30 June 2019 her only contact has been a weekly phone call.

6. She remains concerned that the child has not been attending school and disputes the father’s contention that his home schooling is academically directed.

7. The mother does not agree with the matters recorded by the family consultant and considers that by the time of the interview the child had been in the father’s care for a number of weeks and is parroting the father’s opposition to the mother.

8. The mother contends that her partner has had a long and loving relationship with the child since he was one year old. She denies that there has been any violent act or aggression and that the father’s accusations of abuse are false. She is clear that whilst there have been occasions when her partner has had disagreements with the child, any discipline is implemented by the mother and not her partner.

9. The mother alleges that it is the father who has perpetrated physical abuse of the child and that the father has engaged in unusual and frightening behaviour:-

   [I]ncluding incidents of physical abuse, leaving him [the child] alone in pubic (sic) places (the father will ‘run off’ and leave him alone and scared) late night playground visits to find lost wallets, and dumpster diving in op-shop bins.

10. There is no current investigation in respect of any aspect of abuse concerning the child and the mother’s partner.

Considerations relating to interim parenting

1. In Marvel v Marvel [2010] FamCAFC 101 the Full Court considered the question of making findings on contested evidence and as highlighted by the following remarks, considered that a cautious approach is desirable:

   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).

   121. …

   122.In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [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.

2. In Deiter & Deiter [2011] FamCAFC 82 the Court considered the situation where the contested facts related to an assessment of risk and the following appears at [61]:

   Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

3. In Eaby & Speelman (2015) FLC 93-643 the Full Court further considered the issue at [18]:

   [T]hat does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

The law

1. The relevant principles in relation to parenting and interim proceedings are well settled. In Goode & Goode [2006] FamCAFC 1346 the Full Court considered the principles applicable to parenting and interim proceedings and the principles have been reaffirmed by the High Court in MRR v GR (2010) 240 CLR 461.

Best interests of the child

1. I have given careful consideration to the primary and additional considerations in respect of s 60CC in order to determine what is in the child’s best interests.

2. Of particular concern is the father’s refusal to allow the child to return to his former primary school.

3. There is no presumption that a child should be educated by way of participating in formal school education or in a home school environment. What is important is that there be evidence that if a child is home schooled there is structure, form and formality to the arrangement.

4. The father has not provided any evidence as to the structure of the purported home school program.

5. The concern is that there is none and the child has missed out on a substantial and important component of his educational development.

6. I am not able to determine the veracity of the father’s allegation that the mother’s partner is abusive towards the child and the mother’s denial that the allegations have any basis in fact but rather, are a device of the father to thwart the current parenting orders.

7. I give weight to the matters raised by the family consultant in the memorandum as presented. However, a more considered assessment is likely to be required in order to fully understand the dynamics now in each of the parties’ households.

8. The father appears reluctant to allow any circumstance to arise that would bring the child and the mother into physical contact.

9. It was asserted during the course of the proceedings that the child was either in a motor vehicle or in a nearby park supervised by the paternal grandmother outside of the Court building. I do not know whether that is the case, but significant opportunity has been given to the father to have the child come into contact with the mother in a risk free environment.

10. The circumstances in which this child finds himself have now reached an unacceptable level. He is not attending school. He is not spending time with his mother in circumstances where she has been his primary caregiver for many years.

11. The issue in respect of the child’s engagement and interaction with the mother’s partner is also uncertain given the mother’s contention that the relationship between the child and her partner has been ongoing for a period of 10 years.

12. The family consultant considered that there was merit in the child returning to a parenting arrangement as determined by the current orders.

13. The mother is prepared to exclude her partner from coming into contact with the child for a period of 30 days.

14. In those circumstances, I consider that the child’s best interests are served by returning to the mother’s primary care and spending time with the father as determined by the orders of 4 September 2013.

15. I will make orders that generally give effect to the recommendation of the family consultant.

Recovery order

1. The father has indicated that he will not comply with the current order and return the child to the mother.

2. The uncertainty for the child is manifest and each of the parties reflect that the child is adversely affected by the current conflict.

3. The child needs to be returned to the primary care of the mother in order that his interests are properly served pursuant to the current parenting orders.

4. I propose to order that the father deliver up the child to the mother forthwith but if he shall not do so within 48 hours of orders having been made, I will make a recovery order ensuring that the child is delivered up to the mother pursuant to these orders.

Suspension of the father’s time

1. The mother seeks that in any event, the father’s time be suspended for a period of 21 days to enable the child to be resettled in her care and to enable the child to re-establish family relationships, normal sleep patterns and importantly, to return and reintegrate to the child’s school.

2. There is merit in the mother’s application and I will make orders accordingly. In any event, the child’s time with the mother during the period of the father’s time being suspended will occur in the absence of the mother’s partner.

3. Once the child’s parenting arrangements have stabilised there is advantage in a further reportable conference to occur pursuant to s 11F of the Act.

Conclusion

1. I make orders as appear the commencement of these reasons.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 23 October 2019.

Associate:

Date: 23 October 2019