CICERO & CICERO

[2020] FCCA 473

FEDERAL CIRCUIT COURT OF AUSTRALIA

CICERO & CICERO [2020] FCCA 473

Catchwords:
FAMILY LAW – Interim parenting orders – family violence – where parties in voluntary arrangement – where father breaches apprehended violence order – allegation of coercive and controlling type family violence – evidence of mental illness – impact of treatment of mental illness – children’s best interests – where parents demonstrate cooperation – conflict between final orders sought and interim orders sought by applicant. 

Legislation:

Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61C, 61DA, 61DAA, 65D, 65DAA

Cases cited:

Goode & Goode (2006) FLC 93-286
Starr & Duggan [2009] FamCAFC 115
MRR & GR (2010) HCA 240
Marvel & Marvel (2010) FLR 367
Eaby & Speelman [2015] FamCAFC 104
Grella & Jamieson (2017) FamCAFC 21

Applicant: MS CICERO

Respondent: MR CICERO

File Number: SYC 997 of 2018

Judgment of: Judge Morley

Hearing date: 24 February 2020

Date of Last Submission: 24 February 2020

Delivered at: Sydney

Delivered on: 3 March 2020

REPRESENTATION

Counsel for the Applicant: Mr Kelly

Solicitors for the Applicant: Maxwell, Meredith & Co Solicitors

Counsel for the Respondent: Mr Dura

Solicitors for the Respondent: Peter Mitchell Lawyers

Counsel for the Independent Children's Lawyer: Ms Lioumis

Solicitors for the Independent Children's Lawyer: Sydney West Family Lawyers

ORDERS

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1. The order in paragraph (2) in the minutes of interim consent orders referred to in order (8) of the orders made on 23 November 2018 is vacated;

2. That the children, X, born in 2010, and Y, born in 2011, spend time with their father as agreed between the parties from time to time, but failing an agreement, as follows:

   (i)During school term time, each alternate weekend from the conclusion of school on Friday or 3 pm in the event that it is a non-school day, to the commencement of school on Monday or 9 am in the event that it is a non-school day;

   (ii)For one half of each school holiday period at times as agreed between the parties from time to time, but failing an agreement, for the first half of school holidays that commence in an even-numbered year, and for the second half of school holidays that commence in an odd-numbered year.

3. That for the purpose of these interim orders, school holiday periods are deemed to commence at the conclusion of school attendance on the last day of the school term and to conclude at the commencement of school attendance on the first day of the new school term;

4. That any changeover that does not occur at school will occur by delivery of the children by the mother to the father’s place of residence at the start of his time with the children, and by delivery of the children by the father to the mother’s place of residence at the end of his time with the children;

5. That notwithstanding any other order, the children will be in the father’s care as follows:

   (a)On Father’s Day in each year at times to be agreed in writing between the parties and failing an agreement, from 9 am until 6 pm on Father’s Day;

   (b)From 9 am on Good Friday until 12 noon on Easter Saturday in even-numbered years, and from 12 noon on Easter Saturday until 6 pm on Easter Monday in odd-numbered years;

6. Notwithstanding any other order given, the children shall be in the care of the mother as follows:

   (a)On Mother’s Day each year at times agreed between the parties in writing and failing an agreement, from 9 am until 6 pm on Mother’s Day;

   (b)From 11 am on Christmas Eve 24 December until 11 am on Boxing Day 26 December in 2020;

   (c)From 9 am on Good Friday until 12 noon on Easter Saturday in odd-numbered years, and from 12 noon on Easter Saturday until 6 pm on Easter Monday in even-numbered years;

7. That each of the parties shall:

   (a)No later than 48 hours prior to same occurring, inform the other parent of any medical treatment to be administered to the children or of any appointment with a health professional at which the children are to attend;

   (b)Provide all authorities and directions necessary for all health professionals consulted by the children and all schools attended by the children to provide to each of the parties all information and material held by them in relation to the children, and all reports, bulletins, letters and like material provided by the school to parents in the normal course;

   (c)Sign all documents as are necessary to identify one parent as the primary parent and the other parent as the alternate emergency contact parent on all documentation requiring those disclosures relating to the children;

8. That both parties shall keep the other parent informed at all times of their current residential address, residential telephone number, if any, mobile telephone number, Skype contact details, and an email address;

9. That both parents be at liberty to communicate with the children by telephone and any other electronic method utilised by the children, including but not limited to email, SMS text message, Skype and Facebook, at all reasonable times by contacting the children by any of those means and neither parent will unreasonably refuse the children from communicating with the other parent;

10. That each of the parties shall, not later than 48 hours prior to the same, notify the other parent of all school, sporting and extracurricular events for the children and each parent is permitted to attend all such activities in which the children participate;

11. That each of the parties is restrained from making comments derogatory of the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence of or within the hearing of the children or either of the children;

12. That each of the parents is restrained from allowing the children or either of them to remain in the presence of or within either the children’s hearing of any other person who is making comments derogatory of the other parent, any member of the other parent’s family or any member of the other parent’s household;

13. Each of the parents is restrained from discussing these proceedings with either of the children or in the presence or hearing of either of the children, and each of the parents is restrained from showing any document connected with these proceedings to either of the children, or from allowing any other person to show any document connected with these proceedings to either of the children, other than as may occur in the course of a child-inclusive conference pursuant to orders of the Court;

14. That each of the parents is restrained from using obscene or inappropriate language in the presence or hearing of the children or either of the children.

IT IS NOTED that publication of this judgment under the pseudonym Cicero & Cicero is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 997 of 2018

MS CICERO

Applicant

And

MR CICERO

Respondent

REASONS FOR JUDGMENT

1. This is a matter relating to both parenting and property issues between Ms Cicero as the applicant wife/mother and Mr Cicero as the respondent husband/father.

2. The matter was set down for a final hearing for three days commencing on 24 February 2020 and was double-listed with another final hearing, as is the practice in this registry, and most particularly the practice in my docket. In the event, the other matter had priority and proceeded to hearing and this matter has gone over to another date for final hearing on a not reached basis with priority.

3. When it was apparent the matter would not be reached for final hearing, application was made on behalf of the respondent father for further interim orders in relation to parenting issues.  No interim orders were sought by the parties in relation to the financial aspects of the matter.

4. The parenting issue relates to the appropriate parenting arrangements to be made for the children, X born in 2010, aged nine years of age, and Y born in 2011, eight years of age.

5. On the occasion of 24 February 2020 when the matter was not reached, I conducted an interim hearing of the oral application made by the father for further interim orders pending the final hearing.  In preparation for the final hearing I had read all of the material to be relied upon by the parties at that proposed final hearing 24 to 26 February 2020.

6. In relation to the mother’s case she relied upon a case outline document prepared on her behalf by Mr Kelly of counsel and filed 23 February 2020;  her further amended initiating application, filed 9 January 2020;  a notice of risk, filed by the mother on 22 March 2010;  the mother’s affidavit, affirmed by her on 5 February 2020 and filed that day;  the affidavit of Ms B, the mother’s sister, sworn on 3 February 2020 and filed 6 February 2020;  and the affidavit of Ms C, a friend or acquaintance of the mother’s, sworn on 21 February 2020 and filed that day.

7. For the father I have read the material he sought to rely upon at final hearing, being a case outline document prepared for him by Mr Dura of counsel; his amended response, filed 13 November 2019; and his affidavit sworn or affirmed by him on 3 February 2020 and filed on 4 February 2020.

8. At the hearing the applicant mother was represented by Mr Kelly of counsel.  The respondent father was represented by Mr Dura of counsel, and the independent children’s lawyer was represented by Ms Lioumis of counsel.  Ms Lioumis provided to the Court and relied upon a case outline document prepared by her.  The Court also has the assistance of a Child Dispute Conference Memorandum to Court, and the Court notes that that document was specifically relied upon by the father in relation to the proposed final hearing and was referred to in submissions by counsel for each of the parties and the independent children’s lawyer.  That Child Dispute Conference Memorandum to the Court is dated 8 January 2019 and was prepared by family consultant, Ms D.

9. For the purpose of the interim hearing on parenting issues, a minute of orders sought by the respondent husband was provided to the Court, setting out the orders sought by him on an interim basis.  No separate minute of orders sought by the applicant wife was provided, but there was no need to do so because it was made very clear on behalf of the applicant mother by her counsel, Mr Kelly, that the mother opposed the making of any further interim orders on that occasion or pending the final hearing.

10. In the interim hearing, submissions were made at the Court’s invitation, first by Ms Lioumis for the ICL, then by Mr Dura for the father, and then by Mr Kelly for the mother, with some submissions in reply made by Mr Dura on behalf of the father.

11. For preparation of these reasons and the making of orders consequent upon this reasons I have read and considered all of the documents relied upon by the parties and, most particularly, the affidavits of the parties and the two affidavits by supporting witnesses relied upon by the mother.  I read and considered the whole of the contents of the Child Dispute Memorandum to the Court dated 8 January 2019.  I have read and considered the case outline documents prepared on behalf of each of the parties and the ICL.  In the course of the interim hearing documents were tendered into evidence and marked as exhibits.

12. Exhibit A1 is what may be described in the parlance as the father’s criminal history, produced under subpoena by New South Wales Police.  Exhibit A2 is material contained within documents produced under subpoena by E Hospital, being a document containing entries into the records on 5 March 2017 consisting of five pages.  That document relates to the health records of the respondent father and his attendance on that date, 5 March 2017, at that said hospital.  It should be noted in particular that it records in that document that on that occasion the husband was located and brought to the hospital by police, and the document notes:

    Given the amount of resources engaged in locating Mr Cicero today, police felt obliged to schedule Mr Cicero, although he is happy to be here.

13. I note that the reference to “Mr Cicero” is a reference to the husband, Mr Cicero.

14. Exhibit A3 is again material produced on subpoena by New South Wales Police, being the usual printout from the COPS records kept by police, and in particular entered as exhibit A3 are the entries for dates 6 October 2019, 3 September 2019, 20 November 2018, 18 April 2017, 13 April 2017, and 12 March 2017.

15. Exhibit A4 is certain of the documents produced on subpoena by F Medical Centre, and in particular documents relating to an attendance on 6 February 2017; a GPs Mental Health Care Plan dated 6 February 2017; two letters, one dated 6 February 2017 and the other 7 March 2017 from F Medical Practice, the first two recipient described as Ms G, being addressed as “Dear Dr G” and the other being addressed to a recipient described as “Dear Dr H” being Dr H.  Also letters from J Counselling, being a practice name used by Dr K, to Dr G, dated 15 February 2017 and 7 March 2017.

16. In preparing these reasons and for the making of orders, I have read and considered all of the material contained in the exhibits.  And in relation to the material produced under subpoena by the F Medical Practice I have considered all of the documents in those bundles marked by coloured tags, it being difficult to distinguish from the exhibit which particular pages were being referred to on the tender, and so for caution and to ensure that all material relied upon in the interim hearing is properly considered, I have, as I say, considered all of those documents in that material marked with a tag.  The F Medical Practice documents are comprised in two bundles, both bundles being produced to the Court on 29 January 2020.

17. The parties commenced their cohabitation in 2008, married in 2009, and separated 17 February 2017 under the same roof.  Sometime thereafter the mother and children vacated the matrimonial home.  The parties divorced on 1 May 2018.  Since the time of separation X and Y have been principally in the care of their mother. 

18. On the evidence, and it is not a matter in dispute, in the interim hearing the applicant mother has been the principal carer for the children through their lives, and when they were infants and toddlers was indisputably their primary attachment figure. 

19. The current interim orders in relation to the time the father spends with the children are those made by consent between the parties by her Honour Judge Henderson (as her Honour then was) on 23 November 2018, those orders providing that the children reside with their mother, that they spend time with their father every alternate weekend from after school or 5 pm in school holidays on Friday to 6 pm on Sunday.  On that occasion further order was made specifying dates during the school holiday at the end of the school year 2018 when the children would be spending time with the father. 

20. It is a matter of agreement between the parties that following the expiration of that specific order for time with the father during the school holidays, the parties have, of their own volition and on a voluntary basis on the part of the mother, arranged for the father to have time with the children during school holidays.  That factor is important for two reasons.  Firstly, noting as noteworthy and commendable that the mother has, as I say, voluntarily arranged those occasions with the father, giving him and the children opportunity to maintain and to develop their relationship, and it is also noteworthy in relation to the issue to be decided in the interim hearing.

21. The orders sought by the father on an interim basis in the interim hearing are, in summary, that he spend time with the children as agreed between the parties, but failing agreement, each alternate weekend from the end of school on Friday, or 3 pm if it is not a school day, to the start of school on Monday or 6 pm in the event that it is not a school day, and, for one half of each school holiday as agreed between the parties, and failing agreement, for the first half in even numbered years and for the second half in odd numbered years.

22. The father seeks an order that changeover be arranged when not occurring from or to school by the mother delivering the children to the father at his residence at the start of his time with the children, and the father returning the children to the mother at her residence at the end of his time with the children.  In addition, the father seeks specific orders for spending time with the children which he terms in the proposed orders as:

    The children shall live with the father as follows:

    For Father’s Day in each year by agreement, but failing agreement, from 9 am until 6 pm on Father’s Day,

    In even-numbered years from 9 am Good Friday until 12 noon Easter Saturday, and in odd-numbered years from 12 noon Easter Saturday until 6 pm on Easter Monday. 

23. The father seeks a further order that notwithstanding any other order the children are to be with their mother on Mother’s Day each year from 9 am until 6 pm, from 11 am on Christmas Eve 24 December 2020 until 11 am on Boxing Day 26 December 2020, and for that same period in each alternate year, being even-numbered years, from 9 am on Good Friday until 12 noon on Easter Saturday in odd-numbered years and from 12 noon on Easter Saturday until 6 pm on Easter Monday in even-numbered years. 

24. The father seeks an order defining school holiday periods as beginning at the conclusion of school on the last day of school term and ending with the commencement of school at the start of the new term. 

25. The father seeks what are often termed information orders, that is, for each of the parties to provide the other party with any necessary information that may arise in relation to:

    a)Any medical treatment administered to the children or any appointments at which the children are to attend;

    b)Information in relation to their current and any changes to residential address, residential telephone number, mobile telephone numbers, Skype contact details and email address; and

    c)The provision of any necessary authorities and directions for health professionals consulted by their children and all schools or pre-schools attended by the children, to provide each of the parties with information and material held by them in relation to the children.

26. I note that the reference to a pre-school is probably a little outdated, given that Y is now eight years of age. 

27. He seeks an order that both of the parties sign all documents and do everything necessary to have both parents noted as contacts for the children, being described as either primary or alternate emergency contact on documents related to the children.  That order sought doesn’t specific which parent is to be the primary and which parent is to the alternate emergency contact. 

28. He seeks an order that both parties be at liberty to communicate with the children by telephone and any other electronic method utilised by the children, including but not limited to email, SMS message, Skype and Facebook at all reasonable times by contacting the children by any of those means and that neither parent will unreasonably refuse the children from communicating with the other parent. 

29. He seeks an order that each of the parents give the other parent no less than 48 hours notice of any school sporting or extracurricular activity event for the children, that each of the parents are permitted to attend all such activities in which the children participate. 

30. And he seeks injunctive orders that the parties be restrained from and use their best endeavours to prevent any other person from making derogatory comments to or about the other party or his or her relatives to or in the presence of any of the children, discussing these proceedings with or in the presence of any of the children, and physically disciplining the children.

1. As stated earlier, the position of the applicant wife on the interim hearing is that no further interim orders will be made and that the interim parenting arrangements remain as they current are under the orders previously referred to as being currently in force.

2. In the further amended initiating application, filed 9 January 2020, and relied on by the applicant mother in relation to the proposed final hearing, the mother sought final orders relating to parenting, as relevant to my consideration of these interim issues, that she have sole parental responsibility for the children, and that the children spend time with their father each alternate weekend from 3 pm or the conclusion of school on Friday until 4 pm on Sunday, and for one half of each school holiday period by agreement between the parties, and failing agreement, for the first half of the school holiday period.  From 12 pm until 5 pm on Father’s Day each year if the children are not otherwise with their father at that time.  On the father’s birthday each year, if on a school day from 3 pm to 7 pm, if a non-school day from 12 pm until 7 pm.  On each of the children’s birthday, if a school day from 3 pm to 7 pm, if a non-school day from 12 pm to 7 pm.  On Christmas Day each year from 12 pm to 5 pm.  And that the children live with their mother at all other times.

3. The mother’s proposal in relation to changeover in the orders sought by her on a final basis are that the mother deliver the children to the father’s ordinary place of residence at the start of the children’s time with the father, and the father return the children to the mother’s ordinary place of residence at the end of his time with the children.

4. The mother seeks an order that each of the parties keep the other informed of his and her residential address and telephone number.

5. The mother seeks a final order that the children communicate with each parent by telephone or Skype at any reasonable time, and that each parent shall permit and not prevent or interfere with and do all things necessary to facilitate the children making telephone calls to and receiving telephone calls from the other parent of the children in the care of either parent.

6. And the mother seeks information and notification orders similar to those sought by the father in relation to medical treatments provided for the children, any medical emergencies or hospitalisations for the children.

7. The mother seeks a restraint on each of the parties, restraining them from denigrating the other parent or members of the other parent’s family or household in the presence of any of the children, from using obscene or inappropriate language in the presence of any of the children, from discussing these proceedings with the children or in their hearing or presence, and from showing the children any document connected with these proceedings.

8. I have not detailed all of the orders sought by the mother in her further amended initiating application in which she set out the final orders sought by her on final hearing because some of those orders are not an issue in these interim proceedings because they do not pair in any way with the orders sought by the father.  The reason I omit those orders is, as I have already said twice, that the father seeks specific interim orders, the mother seeks that no further interim orders be made. 

9. I have detailed the final orders sought by the mother because I consider the final orders she seeks, particularly in view of those orders being in a document presented to the Court for consideration in the final hearing that was to take place from 24 to 26 February 2020, to be relevant to my consideration of what orders are properly made in the best interests of the children for this interim hearing.

10. The mother provided an affidavit setting out her evidence for the final hearing, the text of which runs to 55 pages and some 565 paragraphs.  The comment is merely descriptive.  It is no way critical in any manner whatsoever.  The mother sets out in detail the evidence she would rely upon in hearing, and in that evidence she gives detail of occasions which, on the submissions made on her behalf by Mr Kelly on the interim hearing, the mother submits she grounds an element of risk for the children being in the care of the father for any period of time beyond that provided in the current interim orders.

11. As I have said, I have read and considered the entirety of the evidence given by the mother over those 55 pages of text, 565 paragraphs, and I have carefully also read and considered each of the annexures to that affidavit, annexure A to annexure K. 

12. These are short form reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) for this interim hearing, and I am not going to summarise in detail the evidence. Suffice it to say that the mother, in the course of her evidence in her affidavit, gives what I certainly regard as admissible evidence in relation to occasions of serious family violence. She gives evidence of occasions of extremely serious family violence amounting to what would be, on the basis of the evidence given by the mother, a serious sexual assault perpetrated on the mother by the father on more than one occasion.

13. The mother gives evidence that she submits as proving that the husband has stalked and intimidated her on the basis that the husband has been charged and convicted of that offence.  The documents tendered into evidence and marked as exhibit A1, being the father’s criminal history, indicate that in 2017 the father was convicted of an offence of contravene a prohibition or restriction in apprehended violence order (domestic).  The father received a bond under section 9 of the relevant legislation for a period of 12 months to be of good behaviour.

14. The criminal history tendered and admitted into evidence as exhibit A1 also indicates offences relating to violence, including offences relating to serious violence offences of assault occasioning actual bodily harm and damage to property of which the father was convicted in 1999 and 2000, and a contravention of an apprehended domestic violence order in 1999.

15. In brief summary and bearing well in mind that I have carefully read and considered the whole of the affidavit, the mother also gives evidence in her affidavit of conduct on the part of the father that she asserts is coercive and controlling, conduct on the part of the father that she asserts causes the children to be stressed and anxious and in fear, conduct on the part of the father of recent time that she asserts causes the children to complain to her of the father yelling at them, shouting at them and exhibiting angry behaviour.  And the mother gives extensive evidence in relation to behaviour on the part of the father which caused stress and anxiety in the marital household before the mother and children vacated the marital home sometime after the separation.  That, on the mother’s evidence, was consequent upon to a large extent the father suffering from a mental health issue, being obsessive compulsive disorder.  Evidence admitted in the interim hearing indicates that the father has had a diagnosis of obsessive compulsive disorder.

16. The father, in paragraph 55 of his affidavit, gives evidence of an attendance by him at some time inferred to be shortly after February 2017 on his family doctor, Dr K, and receiving a prescription for antidepressant medicine which he took for about 10 days, and a referral to a psychologist, Dr G, whom he consulted for 10 sessions to assist him with grief in relation to the separation.

17. He asserts in the last sentence of that paragraph:

    I depose that I have never been diagnosed despite the respondent’s assertion that I have am OCD.

18. The father asserts, further, in paragraph 74 of his affidavit:

    The mother has asserted that as a result of my OCD that I am not capable of caring for the children for periods longer than I currently have them in my care.  I dispute this assertion by the mother.

19. Based on the earlier paragraph 55 I infer that the father is denying both that he has OCD or that he is not capable of caring for the children for longer periods than he currently has them in his care.  However, against the father’s denial that he has been diagnosed with OCD is the material contained in the medical records from the F Medical Centre and E Hospital.

20. Further to that in the Child Dispute Conference Memorandum to Court under the heading Mental Health the family consultant notes:

    The mother said that the father has been diagnosed with obsessive compulsive disorder (OCD).  She said that many of the father’s behaviours and rituals revolve around hygiene.

21. At the next bullet point the family consultant reports:

    The father conceded that he has been diagnosed with OCD.  He agreed that he sent the mother a text message that indicated he intended to take his own life.  He said that he had some difficulty coming to terms with the separation, particularly because the mother had allegedly been having an extramarital relationship.  He said that he is now feeling very well within himself.

22. On the basis of the material in the exhibits and the material in the Child Dispute Conference Memorandum to Court, that latter document being particularly relied upon by the father as listed in the case outline document provided to the Court on his part, I find for the purpose of this interim hearing that the father is affected by mental health issue of OCD, but I also find on the basis of the exhibits that the father has sought and obtained treatment and therapy in relation to that condition.

23. The central issue in this interim hearing boils down quite simply to whether or not the father’s time with the children pending final hearing and the making of final orders should remain as it is under the current orders, that is, from Friday at the end of school of 5 pm in school holidays to 6 pm Sunday, or should be expanded as sought by the father from end of school or 3 pm on Friday until start of school or 6 pm if not a school day on Monday, and for one half of each school holiday period.

24. In parenting proceedings under the Family Law Act the Court is required to follow the legislative pathway and that requirement applies in interim hearings on parenting issues in the same way that it applies in final hearings.  Refer Goode & Goode (2006) FLC 93-286, Marvel & Marvel (2010) FLR 367, MRR & GR (2010) HCA 240; (2010) 240 CLR 461. In following the legislative pathway the Court must first give attention to section 60B that sets out the objects of Part VII of the Act, relating to children, and those objects have informed my consideration of the issues in this interim hearing and the orders that I will make. That section also sets out the principles behind the objects, and I considered those principles in formulating these reasons and in the orders I will make.

25. Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to children, the Court must regard the best interests of the children as the paramount consideration. Children’s interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter, but the children’s interests must always be the paramount consideration.

26. In determining what is in the children’s best interests, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC of the Act and make any appropriate findings.

27. Section 61DA provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility for the children. The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse. The presumption, if it applies, may be rebutted by evidence that satisfies the Court it would not be in the best interests of the children for the children’s parents to have equal shared parental responsibility for them. When the Court is considering parenting matters on an interim basis, as I am at the moment, the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making orders.

28. If an order is made providing for the children’s parents to have equal shared parental responsibility the Court must consider the matters set out in section 65DAA of the Act relating to a consideration of whether it is in the children’s best interests to spend equal time with each of their parents and whether it is reasonably practicable for the children to spend equal time with each of their parents, and, if it is both in their best interests and reasonably practicable, the Court should consider making an order that the children spend equal time with each of their parents. If the Court does not consider that it is in the children’s best interests to spend equal time, then the Court must go on to consider whether the children spending substantial and significant time with each of their parents would be in their best interest, and consider whether the children spending substantial and significant time with each of their parents is reasonably practicable.

29. If it is both in their interests and reasonably practicable the Court must then go on to consider making orders that provide for the children to spend substantial and significant time with each of their parents. If the Court does not decide it is in the best interests of the children to spend substantial and significant time, then the Court must go on to decide what orders are proper to be made in the best interests of the children, as provided in section 65D.

30. In relation to what is meant by substantial and significant time the Court is assisted by definition of that in section 65DAA(3) of the Act.

31. As to what is proper and how the Court’s discretion is to be exercised, I note the comments of the Full Court of the Family Court of Australia in the recent decision of Grella & Jamieson (2017) FamCAFC 21 at paragraph 18:

    A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments;  assumptions;  necessarily uncertain predictions and intuition.

32. There is no requirement that the Court consider the question of the best interests of the children under section 60CC, the matters dealt with in section 61DA as to parental responsibility, and section 65DAA as to equal time or substantial and significant time in any particular order, though the Full Court of the Family Court has suggested in Starr & Duggan [2009] FamCAFC 115 at paragraph 38 that a useful approach is to first make findings in relation to the considerations in 60CC, then to consider in the light of those findings as to if and how an order is to made relating to parental responsibility, and then to consider the matters set out under section 61DAA relating to equal time or substantial and significant time if applicable.

33. I now consider the relevant parts of the section 60CC considerations, then give my attention to the requirements of 61DA in relation to parental responsibility and what may flow from that in the legislative pathway under section 65DAA.

34. Where there is contested evidence in any interim hearing the Full Court in several decisions and notably Eaby & Speelman [2015] FamCAFC 104 has stated that a Court in an interim hearing should be cautious in making findings on contested factual issues and should refrain from proceeding to findings unless there is sufficient other evidence that enables the Court to make a safe finding on the balance of probabilities that the version given by one party can be preferred to and accepted over the version given by the other party.

35. In this matter some of the evidence presented by the mother in her affidavit finds some corroboration in her supporting affidavits by her sister, Ms B, and by her friend or acquaintance, Ms C.

36. Turning to section 60CC and the primary considerations, the first is the benefit of the children having a meaningful relationship with both of the children’s parents, and the second is the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Section 60CC(2A) mandates that in applying the considerations relating to a meaningful relationship and the need to protect children, greater weight is to be given to the need to protect children over the benefit to the child of having a meaningful relationship with both of their parents.

37. That brings these reasons to the focal issue in this matter, and that is the risk to the children asserted by the mother to be presented by the children spending any increased time with the father.

38. The mother, in paragraph 50 of her affidavit, says the following:

    I am seeking orders to allow the present parenting arrangements to continue.  While the children still have difficulty with Mr Cicero and in their relationship with him, I realise they need to have a relationship with him.  However, I feel that time should be kept to the current times (at most).

39. The mother gives evidence in which she asserts that, on returning from spending time with the father, the children make comments to her that indicate that they have been exposed to inappropriate comment to them or in their hearing in relation to the issues between the adults in the matter.  In paragraph 52 of her affidavit she refers to the children coming home after spending time with their father and discussing inappropriate conversations in relation to finance and the mother and father’s relationship, and telling the mother that the father “yells all the time”.

40. The mother gives evidence of the children making comments to her of being yelled at by the father, yelled at real loud and told they didn’t put their toys away, the father becoming angry with the children, the father looking angry, and the children asserting, and in particular X, that she gets anxious when her father yells at her.

41. As mentioned before, when the Court is presented with contested evidence on an interim hearing, the Court is in almost all cases not provided with the necessary information, materials and tools to make a finding as to which evidence is accepted and which evidence is not accepted.  However, the Court must perform its function and go on, based upon the evidence, to make orders that are proper in the best interests of the children. 

42. That being the case, the Court is not entitled to question or disregard or make findings to believe one and disbelieve the other simply on the basis of the competing words of the parties and without anything further to provide corroboration or greater weight to one side over the other.  Often this compels the Court to exercise a caution in the interests of the welfare of the children that may ultimately prove not to have been necessary if the contested evidence on the part of the parent asserting the other parent presents a risk, does not stand up to test in final hearing.  However, in this case there is another element to be considered in the light of the contested evidence, and that is the orders sought by each of the parties on a final basis in preparation for a hearing that they assumed would take place on 24 to 26 February 2020.

43. As detailed above, for the purpose of that final hearing, the mother sought to reduce the time the children spend with the father each alternate weekend from the conclusion of school on Friday until 6 pm on Sunday during school term time to the conclusion of school on Friday until 4 pm on Sunday, a reduction of two hours.  But the mother sought a final order that would provide for the children to be in the care of the father for one half of each school holiday period, by agreement between the parties, but failing agreement for the first half of the school holiday period.  In relation to school holidays at the end of terms 1, 2 and 3, one half would be, in effect, for eight nights, a bit over a week.  For the Christmas school holiday period, that time would be, presuming the children’s attendance is confined to public school and/or the Catholic school system, for one half of a period that varies between about five weeks and four days and five weeks and six days.

Considerations

1. In analysing and making necessary findings of what is to be done on the interim basis in the best interests of the children and, in particular, in the balance between consideration of the benefit to the children of having a meaningful relationship with each of their parents and any need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence, the nature of the asserted risks bear as full and close an analysis as is open to the Court on the basis of the available evidence.

2. At this point, I will make comment in relation to the submissions made on behalf of the parties and the ICL as in the main, they are directed to that issue of the asserted risk to the children and as to how that asserted risk should bear upon the amount of time the children spend with the father, both for alternate weekends, during school term time and during school holidays.  Bearing in mind that the father seeks an extension of school term time on the alternate weekend to include the Monday night through to the start of school or 5 pm if not a school day on Monday, and for one half of the school holidays.  The mother seeks that no interim orders be made.

3. Submissions made by Ms Lioumis on behalf of the ICL submitted that the difficulty for the Court is in reconciling the application made by the mother on the interim basis with the application made by the mother for final orders, on the assumption that that final hearing would have proceeded on 24 February 2020.  Ms Lioumis pointed out that certain parts of the mother’s evidence go to the conflict that has arisen between the parents and the failure of agreement between the parents that has occurred on certain occasions.  For example, the occasion of one of the children’s First Communion celebration and in relation to a recent Father’s Day.

4. Ms Lioumis submitted that by and large, the evidence indicates that these parents are able to cooperate to agree in excess of what many, many couples coming before the Court show they can communicate and cooperate, in that on a voluntary basis, they have been able to arrange school holidays after the expiration of the provision made for school holidays in the interim orders made in November 2018.  The ICL submitted that the orders sought by the father on the interim basis reflect, to a large degree, what occurs now in relation to school holidays and that the mother’s opposition to an extension of the father’s alternate weekend time from the Sunday evening to the Monday start of school or 5 pm if not a school day is not justified by the evidence taken at its height.

5. The ICL referred the Court in submissions in particular to paragraph 497 of the mother’s affidavit, in which she said:

   X and Y are doing well under the present regime of spending time.

6. In fairness to the mother, the mother is talking about the current regime under the current interim orders which she submits should remain as they are.  Despite the ICLs submission, I do not accept that the mother’s evidence in 497 can be taken as a basis for finding that it is appropriate to extend the children’s time to include the Sunday night or the Monday on its own, but I do find that it is a basis on which I can find that on the mother’s own evidence, the children are doing well and coping with the current regime of time and that their school reports and achievements are of a high standard and have not been adversely affected by the time they have been spending with the father.

7. If the children are coping with the current regime and if the children are not being adversely affected in their school work by the matters detailed by the mother in her affidavit, going to their complaints of the father and their asserted anxieties, and I will mention at this point matters detailed by the mother going into difficulties with toileting being experienced by Y, then, it is hard to see how the addition of one night and delivery of the children to school during the school term time will so adversely affect the children as to elevate any risk to requiring a need for protection of the children from physical or psychological harm, by being subjected to or exposed to abuse, neglect or family violence.

8. Before I consider the central issue further, I will go through the other relevant considerations in section 60CC so as to appropriately follow the legislative pathway. In relation to the first additional consideration, any views expressed by the children, in this matter, as pointed out with some force at the time the final hearing was being stood over, not reached on 24 February 2020, there is no appropriate material before the Court containing the children’s expressed views in any manner.

9. There is no family report in the matter, no family report having been sought by either of the parties or considered appropriate as needed by the Court of its own volition, and the only family consultant input is in a child dispute conference memorandum to the Court, but it is for that reason that on 24 February, an order was made pursuant to section 11F that the parties attend a child dispute conference at 9 am on 17 December 2020, so that in particular and amongst other things, any views expressed by the children could be brought before the Court for the final hearing of this matter when it comes on.

10. At the children’s ages of nine and eight, both children have reached, and X has just passed, what is known as the cognitive age for children whereby at about eight years of age – it is sometimes a bit before, sometimes a bit after – children begin to make reasoned decisions based on a primitive form of logic as opposed to making decisions for themselves based largely on instinct based on “I want”.  Nevertheless, children aged nine and eight are not old enough to express views that carry any great weight with the Court, unless those views are indicative of the children being affected by risk or indicative of the children being affected by action on the part of one or sometimes both parents or other persons of undue or improper influence. 

11. There is no such evidence in this case.  There is no evidence of the views expressed by the children other than what is included by the mother in her affidavit, what is included by the father in his affidavit, and for the purpose of an interim hearing where that evidence has not been tested, I cannot take any of that evidence as a basis on which to found a finding in relation to the children’s views, so I am not assisted by that consideration.

12. The nature of the relationship of the children with each of the children’s parents and any other relevant persons – I have already made some comment about the benefit of the children having a meaningful relationship with both parents because they do have a meaningful relationship with both parents. 

13. That much is patently obvious, and that much is not denied by either parent, that they have a meaningful relationship.  In fact, necessarily and obviously on the evidence, a close and very loving relationship with their mother is inherent in all of the evidence, and that they have a relationship with their father and it is a meaningful relationship is also plain on the evidence, though the extent of that meaningful relationship is a matter in contest between the parties.  Nevertheless, the nature of the relationship of each of the children with their father is such that on the evidence, they are not having such difficulty with spending time with him from Friday to Sunday as would lead to a finding that an extension of that time to Monday at the start of school during term time is not an extension in their best interests.

14. The next relevant additional consideration is the likely effect of any change in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other person.  This is relevant because the application of the father is that the children be in his care and out of the mother’s care over Sunday evening on each alternate weekend during school term time.  That would be a change in their circumstances.  On the whole of the evidence, I find that there is nothing presented that indicates that such a change would not be to the benefit of the children in giving them more time to pursue and develop and enjoy their meaningful relationship with their father without that one night per fortnight – that one night out of 14 having any detrimental effect on the children’s relationship with their mother or causing any possibility of the diminution in their relationship or any adverse effect on their relationship with their mother.

15. The next consideration I find relevant is the capacity of each of the children’s parents to provide for the needs of the children, including emotional and intellectual needs.  This is a very important consideration here because the mother’s evidence, and extensive evidence - and once again, I say that without any hint of criticism because her affidavit was prepared for the purpose of a final hearing and also it contains property matters, by the way – the mother’s evidence in much of the evidence given is presented to indicate that there is a lack of adequate parenting capacity on the part of the father in that he is not able to restrain himself from yelling at the children in a manner that her evidence would indicate is inappropriate, and is not able to restrain himself from becoming visibly angry in the presence of the children, and that historically, he has engaged in behaviours, largely on her evidence, commensurate with being affected by obsessive compulsive disorder, that cause a stressful situation in his household, and I note there that the father, in his evidence, concedes that his tendency to obsessive compulsive disorder, which he refers to without adopting a diagnosis, has tended to cause a stressful situation in the marital household prior to separation.

16. However, once again, I find that the whole of the evidence, taken at its height, is not such as to find that there is a lack of parenting capacity on the part of the father to appropriately care for the children and provide for their needs, including emotional and intellectual needs, if his time is extended during term time from Friday after school until Sunday evening, to Friday after school until Monday start of school.  The mother’s application for final orders continues to contemplate the children being in the father’s care over a Friday night and Saturday night and through into Sunday evening, or Sunday afternoon, during school term time.

17. I find that the mother conceding that that is an appropriate time for the children to be in the father’s care grounds a finding that there must be sufficient parenting capacity on the part of the father to be able to appropriately provide for the children and provide appropriate parenting for the children for an increase in time that goes from Sunday afternoon, or Sunday evening, under the current orders to Monday start of school during term time.  That finding is reinforced by the further application of the mother in the orders she seeks on final hearing that the children be in the father’s care for half of each school holiday period.

18. If it is the assertion of the mother to the Court that it is appropriate in the best interests of the children to be in the father’s care for periods varying between about a week – perhaps a little more, if half term holidays is taken literally – up to a period of just under three weeks, then, it is difficult to see how the children spending three nights once a fortnight in the father’s care would not be considered, on the same considerations, to be also in the children’s best interest. 

19. That was the conundrum, in effect, referred to by Ms Lioumis in her submissions to the Court, where she referred to the difficulty the Court would have in reconciling the mother’s application for final orders with the mother’s opposition to the interim orders as sought by the father.

20. I find that there is no necessity for the Court to give any consideration to the additional considerations in 60CC(3) that go to the extent that the parents have taken or failed to take opportunity to participate in major long-term decision making, spend time with the children, communicate with the children, have fulfilled or failed to fulfil their obligation to maintain the children, or in relation to the maturity, sex, lifestyle and background of the children and the parents.

21. The next relevant consideration is the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents.  The mother’s evidence indicates that certainly on occasions, the father has not demonstrated an appropriate attitude to the responsibilities of parenthood in relation to the children, but as I have already said, much of that evidence is contested evidence, much of that evidence is historical matters prior to separation when this family was a cohesive family unit, albeit - and even on the father’s admission, in often stressful circumstances caused by the father - but once again, all of that must be seen against the final orders contended for by the mother in her application before the Court for what was to be a final hearing.

22. Considerations in relation to family violence involving the children or a member of the children’s family bring me to the conviction of the father for contravening a prohibition or restriction contained in an apprehended violence order (domestic), that conviction occurring in April 2017.  In that regard, I have also read all of the entries to which I was referred on behalf of the mother, being an exhibit in her case, in the material produced by New South Wales Police being all of the COPS entries. 

23. I have read and considered all of that material, and on the basis of all of that, there is a clear finding supported clearly on the evidence that the father has perpetrated family violence. Were there not that clear evidence, on the basis of the material contained in the mother’s affidavit, even if I could not make a finding in relation to the mother’s evidence and particularly in relation to the extremely serious allegations of sexual assault contained therein, I would, on an interim basis, have made a finding that there was sufficient material for the Court to reasonably make a finding that there was family violence sufficient to render the presumption in section 61DA not applicable in relation to parental responsibility.

24. However, and it comes back to the same reasoning, the mother gives her evidence in relation to the family violence perpetrated by the father, evidence of the extremely serious criminal violence of a most serious kind that she asserts was perpetrated against her by the father.  In knowledge of and in light of that evidence, the mother, in November 2018, consented to the current interim orders for the father to spend alternate weekend time with the children Friday to Sunday, and for that time to also occur in school holidays other than the specific periods defined in that order, and the mother contends for the orders as set out in her further amended initiating application filed 9 January 2020.

25. On that basis, I find that though I make a finding that family violence has been perpetrated by the father, I also find that that consideration does not prevent the Court finding that an extension of the time the father spends with the children on an alternate weekend basis during school time can be extended from Sunday evening to Monday start of school in the best interests of the children.  The current regime of alternate weekend time has been in place since November 2018.  That is a year and a quarter.  The hearing of this matter, given the current state of my docket - and if it was not to be heard by me, the current state of the dockets of all other judges of the Federal Circuit Court in the four registries in New South Wales – would not take place until, at the earliest, the first half of 2021, unless it is able to be put in to dates made available by some other matter being settled and hearing dates vacated or something of that nature.

26. That being the case, the current regime of the father spending time with the children would likely have continued for a period in excess of two years and possibly more like two and a half years before the final hearing and the making of final orders. The time the father currently spends with the children is less than what is defined in section 65DAA(3) of the Act as substantial and significant time. After considering all of the matters set out in section 60CC, I find that it is in the best interests of the children to increase the time that the children spend in the care of the father during school term time from the current end time of 6 pm on Sunday to the commencement of school or 9 am on Monday.

27. In that regard, I do not find that it is in the best interests of the children to make the order in the specific terms sought by the father, which would provide that the time extends to the start of school Monday or 6 pm on Monday, in the event that it is a non-school day. I also find, on the basis of my consideration of the matters under section 60CC detailed above, my consideration of all of the evidence in this matter as I have said, that evidence other than the exhibits being evidence prepared by the parties in contemplation of a final hearing, that it is appropriate to make interim orders providing that the father spend one half of each school holiday with the children, either for time as agreed between the parties or failing agreement, for the first half of school holidays that commence in an even-numbered year, and for the second half of school holidays that commence in an odd-numbered year.

28. I also find that it is appropriate to make the orders relating to special occasions as sought by the father and detailed above relating to Father’s Day and Mother’s Day, relating to Christmas, and relating to the Easter period.  In relation to school holidays and for the prevention of any dispute between the parties and the danger that any such dispute may communicate itself to the children in some way, I find it is appropriate to make an order defining the start and finish of school holidays for the benefit of the parties in terms of the orders sought by the husband. 

29. That is, that school holidays commence at the conclusion of school on the last day of school term and end at the commencement of school on the first day of the new school term.  In relation to arrangements for changeover, the parties contend for the same changeover order where changeover is not taking place at school.  That is, they both contend that if it is not at school, the mother deliver the children to the father’s ordinary place of residence at the start of his time, and the father return the children to the mother’s place of residence at the end of his time.  I simply make comment that the reverse arrangement is often to be preferred, because if the party into whose care the children are moving is the one who does the travelling and collects the children from the other party’s residence, then, if the father collects the children from the mother’s residence at the start of his time and he is late getting there, he has lost time with the children but it is certainly not the mother’s fault and there is no basis for an argument. 

30. If the mother collects the children from the father’s place of residence at the end of his time and she is late getting there, he has had extra time with the children, but it is not his fault and there is no basis for an argument.  However, the parties have both opted for the reverse provision.  As they are the orders they have contended for, and I did not propose any alternate order and in consequence, give the parties the opportunity to make submissions about the reverse arrangement, then, I find that it is proper in the children’s best interest to make an order that changeovers not occurring at the children’s school occur by the mother delivering the children to the father’s place of residence at the start of his time, and the father returning the children to the mother’s place of residence at the end of his time. 

1. Hopefully, a spirit of cooperation and understanding prevails in the event that either party is delayed in their trip, and the children are delivered or returned late.  Perhaps the parties, in their spirit of cooperation, that despite certain elements in the evidence – and I say in relation to the mother that her evidence in relation to serious violence committed against her shows an extremely child-focused approach to cooperating with the father in spite of that evidence – perhaps in that spirit of cooperation, the parents might give some consideration to the comments I have made and perhaps reverse that arrangement of their own volition.

2. I also find that it is appropriate to make the notification and information orders contended for by each party, each in their own different wording but nevertheless, meaning the same thing.  As both parties seek orders – the father on an interim basis, the mother on a final basis – for injunctive relief in relation to any derogatory comments about the other parent and others in the presence or hearing of the children, discussing these proceedings in the presence or hearing of the children, I find that it is appropriate to make orders in relation to that injunctive relief.

3. The mother in her final orders seeks an order restraining each of the parties from using obscene or inappropriate language in the presence or hearing of the children.  That is not reflected in the interim orders sought by the father, but self-evidently, the use of obscene or inappropriate language in the presence or hearing of the children is almost certainly not in their best interest and I find that it is in their best interest to make that order, though I caution that the description “inappropriate language” is difficult of enforcement because of the difficulty of definition.

4. The father seeks an order restraining both parties from physically disciplining the children.  I find on the basis of the evidence and the matters submitted on and referred to in the interim hearing that it is not appropriate to make an injunctive order of that nature, noting that parents have a defence of lawful chastisement in relation to the law relating to assault.  That is a matter that can be left to the child focus and good parenting of the parents.  It is not an order contended for by the mother in her final orders.

5. As referred to earlier, at any time a parenting order is made, even on an interim basis, I am required to give attention to section 61DA and the presumption that the parents have equal shared parental responsibility for children. I have made a finding that there has been family violence in this matter and therefore, the presumption would not apply. Even though the presumption does not apply, the Court should go on to consider the situation in relation to parental responsibility, and I note that in the mother’s application for final orders, she contends for an order that she have sole parental responsibility for the children.

6. In the light of all of the evidence and my consideration of the matters under section 60CC, I find that on this interim basis, it is not appropriate in the circumstances to make an interim order dealing with parental responsibility, but rather, I leave the matter as it has been since the moment of birth of each of these children under section 61C of the Family Law Act 1975, in that each of the parents has parental responsibility for the children.  That, as the Full Court of the Family Court of Australia said in Goode & Goode and other cases, is a different legal situation from parents having equal shared parental responsibility for the children, but nevertheless, I find on the basis of the evidence available, that evidence being untested to the current time on interim hearing, and the submissions made, that it is not appropriate to go forward and make an order for equal shared parental responsibility. 

7. That being the case, I do not have to consider the matters relating to equal time with each of the parents or substantial and significant time with each of the parents in section 65DAA. The orders as sought by the father do not amount to substantial and significant time. The order that I have found it is appropriate to make in relation to alternate weekend time – that is, extending it from the Sunday evening to the Monday start of school during term time – does not amount to substantial and significant time.

8. The orders contended for by the father in the final hearing are on an entirely different basis to what he contends for on the interim basis, and in the final hearing, matters of equal time with each of the parents or, if that is not considered appropriate, substantial and significant time for the children with their mother will be relevant.  In conclusion, I comment that the interim orders sought by the father, meaning an extension of one night on the alternate weekend basis and a continuation of the informal arrangement that has been conducted between the parties since the expiration of the school holiday orders made in November 2018, but still fall far short of the orders contended for by the father as a final goal on a final basis, that being shared care.

9. Unfortunately, and I will go so far as use the expression even cruelly for the parties involved in litigation, and certainly also their children, this matter will not come to final resolution in the Court’s hands for at least a year from now, probably more.  To borrow a phrase from my brother Judge Altobelli that he has often used, and accepting from this expression those matters given in evidence by the mother about serious violence and criminal offences that she asserts were perpetrated against her by the father, at the current time in relation to parenting of the children, these people are good people and appear to be doing their best to parent these children in the circumstances of their separation and their new family situations.

10. I encourage the parties to give consideration, particularly following the child-inclusive conference in December of this year, if not before, to engaging in family dispute resolution with a view to finding a resolution in relation to parenting issues and even in relation to their financial issues so as to save themselves the inordinate delay and wait for their final hearing to come around again and the intense emotional pressure that that wait and the existence of these proceedings exerts on the parties and, to an extent, on their children.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Morley

Associate: 

Date: 31 March 2020