DANIELS & BARBER

[2017] FCCA 454

FEDERAL CIRCUIT COURT OF AUSTRALIA

DANIELS & BARBER [2017] FCCA 454

Catchwords:
FAMILY LAW – Parenting – urgent interim application – high conflict –
family consultant initially preferring equal shared time with each parent but overall, preferring that the husband has more time with the children – fact specific situation.

Legislation:

Family Law Act 1975, s.60CC

Applicant: MS DANIELS

Respondent: MR BARBER

File Number: MLC 11303 of 2016

Judgment of: Judge Wilson

Hearing date: 16 February 2017

Date of Last Submission: 16 February 2017

Delivered at: Melbourne

Delivered on: 10 March 2017

REPRESENTATION

Counsel for the Applicant: Mr P. O'Shannessey

Solicitors for the Applicant: Mills Oakley Lawyers

Counsel for the Respondent: Mr J. Salamanca

Solicitors for the Respondent: Kennedy Partners

ORDERS

1. Pursuant to s.39 of the Federal Circuit Court of Australia Act 1999 (Cth), this proceeding is transferred to the Melbourne Registry of the Family Court of Australia to be listed with such priority as that Court deems appropriate.

2. The children X born (omitted) 2007 and Y born (omitted) 2010 (“the children”) live with the husband.

3. Commencing Monday 20 February 2017, the children spend time with the wife during the school term as follows:

   (a)In week one from 3 pm or the conclusion of school on Friday until 9 am or the commencement of school on Monday; and

   (b)In week two from 3 pm or the conclusion of school on Wednesday until 9 am or the commencement of school on Friday.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11303 of 2016

MS DANIELS

Applicant

And

MR BARBER

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. I can indicate to the parties, and it is only fair that I do, that I recognise that this is a contested matter brought before me in urgent circumstances in an atmosphere of high conflict. Orders were made in November 2016 and February 2017 which have had the effect of preserving nothing more than the status quo. I also recognise that a number of issues are yet to be determined which include property matters. But importantly, the question of equal shared parental responsibility has to be determined at a later time.

2. Embedded in the assertions and counter-assertions of the parties is the fact that the parties remain at daggers draw. To some extent, that was ameliorated when the wife Ms Daniels (“the wife”) moved out of the former matrimonial home. The wife and the husband Mr Barber (“the husband”) now live apart and to some extent, the situation has become more even-keeled but nevertheless, when reading the affidavits I recognise that there is a highly emotionally-charged squabble that persists. The accuracy of the allegations and counter-allegations cannot be assessed at this interim hearing right now before me. Those will have to be tested at a full trial.

3. Most importantly for me I have to determine what, between now and the trial of this proceeding is in the best interests of the children X born (omitted) 2007 and Y born (omitted) 2010 (“the children”). To that extent I have to rely on the evidence that admittedly is contested and, to some extent, I can draw certain factual conclusions. Some facts are uncontested, but for the most part they are contested and can only be determined at a trial. When determining parenting issues, in large measure I look to recommendations or at least expert opinions given by those who are skilled in the field. Dr D has given an extensive examination in this case and he was forthright in the viva voce evidence he has previously given in the case. Initially, he plumped for an equal shared care arrangement, but modified that to the position where he favoured more time in favour of the husband.

4. I am not in a position to presently determine whether the submission made by Mr Salamanca, counsel for the husband, is correct to the effect that there is a high degree of emotion that underpins the propositions advanced by the wife but I do recognise that, at the moment, Dr D is recommending something that goes beyond equal shared care and it is in the husband’s favour. In the absence of any other evidence that would point to that equal shared care arrangement prevailing but in the face of direct evidence from Dr D on that point, recognising that there is a high amount of conflicting material, I have to say that at this interim position I must proceed on his evidence to the effect that an equal shared care position is not his preferred position and that the time that he recommends, slightly weighted to the husband, is to be preferred.

5. That situation will only prevail until the trial of this proceeding and to that end I will make orders transferring this proceeding to the Family Court of Australia on the basis that it will last longer than the time that I can give this case, having regard to the highly emotionally conflicted position in which the family finds itself. I will only be able to deal with this case probably nearer the middle of next year. In the face of the events that arise in this case that call for urgent resolution it is best that a court that deals with less than 100,000 cases every year is charged with the responsibility to determine that case.

6. In those circumstances, for a holding pattern I make orders in accordance with the husband’s position and say that it is not necessary for me to presently rule upon the competing positions advanced by the parties. But, for the benefit of whoever hears this next, let me condense them.

7. Mr O’Shannessy of counsel for the wife has advocated that -

   a)the events of November 2016 reflect poor parenting insight, as evidenced by the parenting of the husband;

   b)the husband has shown no response, or a slow response to arrangements about one of the children’s birthdays;

   c)one parent works full-time, whereas the other does not work full-time; and

   d)on one occasion or more a person (or possibly more, the evidence being unclear) who appeared to be a security guard, stopped the wife at a changeover, directed her to place a bag of the children’s effects on the ground in front of him, thereby giving rise to the possibility of an unsettling reaction from the children, which he said told in favour of the husband not having more time than the wife.

8. On behalf of the husband, Mr Salamanca advocated that -

   a)this case was all about a parent who was unable to cope under pressure. That was a reference to the wife. Mr Salamanca said that Dr D had indicated that the husband was an excellent parent, who was a loving and devoted father;

   b)the wife has not been open and frank in her evidence, especially in her evidence about panic attacks; and

   c)when properly understood, Dr D advocated for more time in favour of the husband than the other way around.

9. This is a high-conflict case that calls for resolution in much more urgent circumstances than I can give it prior to the middle of next year. In those circumstances, I transfer the case to the Family Court of Australia, having taken into account all matters that s.60CC of the Family Law Act 1975 (Cth) requires me to take into account and I will require the parties to give effect to minutes as proffered by

   
   

   Mr Salamanca.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 10 March 2017