DELFINO & SEACREST

[2020] FCCA 3531

FEDERAL CIRCUIT COURT OF AUSTRALIA

DELFINO & SEACREST [2020] FCCA 3531

Catchwords:
FAMILY LAW – Parenting - interim applications - best interests of child - Orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 69ZL

Cases cited:

Banks & Banks [2015] FamCAFC 36

Eaby & Speelman [2015] FamCAFC 104

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCAFC 101

Rice & Asplund (1979) FLC 90-725

Applicant: MS DELFINO

Respondent: MR SEACREST

File Number: PAC 3674 of 2019

Judgment of: Judge Newbrun

Hearing date: 25 November 2020

Date of Last Submission: 25 November 2020

Delivered at: Parramatta

Delivered on: 22 December 2020

REPRESENTATION

Solicitors for the Applicant: Mr Siu as agent

Solicitors for the Respondent:	Mr Kelly - McNally Jones Staff
Counsel for the Independent Children’s Lawyer:	Ms Hamilton of Counsel
Solicitors for the Independent Children’s Lawyer:	JLM Family Lawyers Pty Ltd

ORDERS PENDING FURTHER ORDER

1. That all previous parenting Orders be discharged.

2. That the child X born in 2010 live with the mother.

3. That the child spend time with the father each alternate weekend for a minimum of three hours on either Saturday or Sunday supervised by a private supervision agency.

4. That within seven days of the date of these Orders, the father is to provide to the mother written details of two supervision agencies who are available to supervise the father’s time with the child and within a further two days after receiving the father’s proposal, the mother shall select one of those agencies and advise the father in writing.

5. That within two days of the mother advising the father in writing of the selected supervision agencies, the parents are to contact the supervision agency and do intake and make arrangements for the father to commence spending time with the child as soon as the agency has an availability.

6. That the parents shall equally share the costs of the supervision and shall comply with all policies and procedures of the supervision agency.

7. That changeover shall occur by way of the mother delivering the child to the supervisor at a location advised by the supervisor at the commencement of the father’s time with the child and the mother collecting the child from the supervisor at a location advised by the supervisor at the conclusion of the father’s time with the child.

8. That the supervision agency provide to the solicitors for both parents a copy of the supervision report after each occasion supervision occurs and the solicitor for the father shall provide a copy of each supervision report the Independent Children’s Lawyer.

9. That the child have FaceTime, Zoom or Skype contact with the father each Wednesday from 7pm to 7.30pm with the father to contact the child on a mobile phone number or Zoom or Skype account provided to him by the mother within 2 days of the date of these Orders.

10. That within 14 days of the date of these Orders, the mother is to contact B Counselling Centre and enrol the child in the Anchor Program and provide to the father and the Independent Children’s Lawyer written confirmation of the child’s enrolment or placement on the waiting list and the mother is thereafter required to facilitate the child attending the first available appointment and any appointments thereafter as required by B Counselling Centre.

11. That within 14 days of the date of these Orders, the parents are to contact B Counselling Centre and enrol for the purposes of family counselling pursuant and provide written confirmation to the other parent and the Independent Children’s Lawyer in relation to placement on the waiting list and or their acceptance and commencement date into that program.

12. That both parents are to submit to Carbohydrate Deficient Transferrin Testing (CDT) testing at the request of the Independent Children’s Lawyer by email and subject to the following conditions:

    (a)That the testing be chain of custody;

    (b)That the test be undertaken within 24 hours of a request in writing by email from the Independent children’s Lawyer to the parent’s respective solicitors if represented or the mother and or father directly if unrepresented;

    (c)That should the mother and or father not be represented, then the mother and or father are to provide to the Independent Children’s Lawyer an email address for the purposes of this Order within 24 hours of becoming self-represented;

    (d)That there be no more than one request per calendar month;

    (e)That should any test results show a requirement for further testing, the mother and or father shall undergo further testing as required;

    (f)That the parents’ provide to the Independent Children’s Lawyer and the other parent’s solicitor a copy of the results within 48 hours of receipt of the results.

    (g)That each parent be solely responsible for the cost of their testing.

13. That each party their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child X born in 2010 either in the company of an adult or as unaccompanied minor from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.

14. That both parents be restrained from consuming alcohol while the child is in their care or for 12 hours prior to the child coming into their care.

15. That this Order be sufficient to allow both parents to receive from the child’s school all materials usually available to parents including but not limited to school reports and portfolios.

16. That should the child require urgent medical attention or be hospitalised, the mother shall advise the father of the details of the child’s diagnosis and prognosis by way of email and that both parties, within 7 days of the making of these Orders shall provide to each other an email address for this purpose.

17. That the parents’ are hereby restrained from speaking about each other or a member of the other parents household in a derogatory manner in the presence or hearing of the child and will remove the child from the presence or hearing or the any third party doing so.

18. That the parents are hereby restrained from speaking to the child about any matter in relation to these proceedings or showing the child any document in relation to these proceedings.

19. That a Family Report be prepared.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3674 of 2019

MS DELFINO

Applicant

And

MR SEACREST

Respondent

REASONS FOR JUDGMENT

1. These are short form reasons under section 69ZL of the Family Law Act1975 (Cth) relating to competing interim parenting proposals for the child X born in 2010.

2. The Mother’s proposals are set out in her Amended Initiating Application filed 10 August 2020; inter alia, she seeks an order that previous consent interim parenting orders made by this court on 25 March 2020 and 21 May 2020 be suspended; that the child live with the Mother; the Father spend time with the child supervised at the C Contact Centre each alternate Saturday for a period of two hours as per the Contact Centre’s availability; and that the Father have FaceTime with the child each week Wednesday at 4 PM.

3. The Father’s proposals are set out in his Amended Response filed 27 April 2020; inter alia, he seeks orders that the parties have equal shared parental responsibility for the child; that the child lives with the Father; that during school term the child spend time with the Mother as agreed and failing agreement pursuant to the following 2 week regime: in week 1, from the conclusion of school Friday 3:30 PM until 5 PM on Sunday; in week 2, from the conclusion of school on Friday 3:30 PM to 8 PM; that during the gazetted school holidays the child spends time with the Mother for one half of all gazetted school holiday periods; and the Father seeks other interim parenting related orders.

4. The ICL seeks orders in accordance with her Minute of Order annexed to her Case Outline filed 23 November 2020; inter alia, the ICL seeks orders that all previous parenting orders be discharged; that the child live with the Mother; that the child spend time with the Father each alternate weekend for a minimum of three hours on either Saturday or Sunday supervised by a private supervision agency; that the child have FaceTime, Zoom or Skype contact with the Father each Wednesday from 7 PM to 7:30 PM; that within 14 days the Mother contact B Counselling Centre and enrol the child in the Anchor Program; that within 14 days the parents contact B Counselling Centre and enrol for the purposes of family counselling; that both parents are to submit to CDT testing at the request of the ICL; and the ICL seeks other interim related parenting orders.

5. The Mother relied upon her Affidavits filed 21 May 2020 and 7 September 2020.

6. The Father relied upon his Affidavit filed 11 March 2020 (only paragraphs 22, 23, 24 – 27, and 28 – 50), and his Affidavit sworn 24 November 2020.

7. The ICL relied upon her counsel’s Case Outline filed 23 November 2020.

8. Before the Court in evidence at the interim hearing was Exhibit A, the Child Inclusive Conference Memorandum dated 22 July 2020; and Exhibit C being the ICL’s Tender Bundle of 45 pages.

Agreed facts unless otherwise stated

1. The Father is aged 46 years. The Mother is aged 39 years, and she hails from the Country D.

2. The Father alleges he is employed as a factory worker at Employer E at Suburb F.

3. The Father alleges that the parties commenced to live together in 2013 and separated in August 2017.

4. The Father alleges that the Mother was unemployed for the first two years of their relationship.

5. The Father alleges that whilst the parties lived together, his relationship with the child was a close one.

6. The Father alleges that following separation he spent time with the child on a regular basis until about August 2018.

7. The Father alleges that between August 2017 and August 2018, he would see the child regularly, and the child would occasionally stay overnight at his place.

8. The Father alleges that thereafter he was not able to locate the Mother until about mid-2019.

9. The Father alleges he spent time with the child in early June 2019. The Father alleges that he spent time with the child on the weekend commencing 22 November 2019.

10. The Court, by consent on 25 March 2020, made interim parenting Orders that the child should spend time with the Father each Saturday from 10AM to 5 PM. The Court made, by consent, interim parenting Orders on 21 May 2020 for the child to additionally spend time with the Father on the last weekend of every month from 10 AM Saturday to Sunday 5PM.

11. The Mother alleges that the child was resistant to spending time with the Father on 4 April 2020 and that on the journey from the Mother’s residence to the Father’s residence she had encouraged the child to spend time with the Father.

12. The Mother alleges that thereafter the child continued to be resistant to spend time with the Father despite her alleged encouragement.

Legal Principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel & Marvel [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

3. Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:

   As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

4. The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 50, “When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors”.

5. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

6. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

7. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In this context the Court refers to its discussion above in relation to Banks & Banks [2015] FamCAFC 36.

Discussion and determination

1. The child has a meaningful relationship with the Mother and will benefit from a continuance of that relationship. There is a significant suggestion on the material before the Court that the child’s primary attachment is to the Mother.

2. The child has a meaningful relationship with the Father and will benefit from a continuance of that relationship provided it is emotionally safe for the child to do so. There is a significant suggestion, on the material before the Court, that the child’s meaningful relationship with the Father may have become strained to some not insignificant extent by reason of the child being subjected to anger and screaming at the instance of the Father in a visit with him, as a result of which the child became scared, as referred to in paragraph 30 of the Child Inclusive Conference Memorandum. There is a significant suggestion, on the material before the Court, that the child, following this incident, has continued to remain fearful of spending unsupervised time with the Father. The Court takes into account the child’s statement to the family consultant that she may be less scared if someone accompanies her to future visits with the Father.

3. On the material before the Court, there is a significant suggestion that the child is satisfactorily cared for by the Mother whilst the child remains living in her primary care; there is no significant suggestion, on the material before the Court, that the child is at significant risk remaining in the Mother’s primary care. The Court observes that some school reports of the child before the Court are particularly satisfactory. On the material before the Court, including the matters discussed in the paragraph above, the Court has a real concern that should the child now live with the Father in his primary care the child may experience emotional harm. In a similar vein, the Court has a real concern that should the child spend time with the Mother as proposed by the Father there is a real risk that the child’s meaningful relationship with the Mother may be detrimentally affected.

4. Should the Child begin to spend supervised time with the Father, as proposed by the ICL, there is a real prospect that the child can begin to feel comfortable spending time with the Father and her meaningful relationship with the Father can be maintained.  

5. In the view of the Court, it will be in the best interests of the child to make the ICL’s proposed Order 9 relating to prospective FaceTime, Zoom or Skype contact between the child and the Father; the Court recognises that presently the child may not feel ready to have such communication with the Father but she should be encouraged by the Mother to have such communication with the Father.

6. The ICL’s proposed orders for the child participating in the Anchor Program will be an order in the best interests of the child and may well significantly assist the child in maintaining her meaningful relationship with the Father and resuming spending regular time with the Father.

7. Similarly, the ICL’s proposed order that the parties contact B Counselling Centre to enrol for the purposes of family counselling may assist the parties in beginning to form a positive and trusting co-parenting relationship, and will be an order in the best interests of the child.

8. In relation to family violence, each party makes serious allegations of family violence against each other.

9. The Father stated to the family consultant that he has become angry with the Mother in regards to parenting matters, but that he has never behaved in an abusive manner towards her.

10. The Father significantly denies the Mother’s allegations of family violence and controlling behaviour perpetrated against her by him.

11. In the Child Inclusive Conference Memorandum of 22 July 2020, the Mother makes serious allegations of family violence perpetrated against her by the Father during the relationship. For example, she alleged that an AVO was made in 2016 after the Father pushed her and she fell into a chair breaking a bone in her face. She alleged that she went to hospital and had a plate inserted into her face. This particular allegation is reiterated in the Mother’s Affidavit filed 7 September 2020, together with other serious allegations of family violence having been perpetrated against her by the Father.

12. The Mother alleges that on about 9 July 2016, the Father physically assaulted her including pushing her forward resulting in the Mother falling onto a couch and hitting her eye and cheekbone on the couch. She also alleges that she damaged her teeth following this alleged assault. The Mother attended hospital and underwent surgical treatment for the broken bone in her face. The Mother had alleged to at least one of her treating health professionals at about this time that she had been the victim of domestic violence.

1. The Mother alleges that the police put an ADVO in place for her protection following the above incident on 9 July 2016. The Mother alleges that following certain alleged verbal statements by the Father towards her, she did not attend Court for the hearing of the final ADVO and the matter was dropped.

2. The Mother alleges controlling behaviour by the Father. The Father, for his part, alleges controlling behaviour by the Mother against him.

3. In the Mother’s Affidavit filed 7 September 2020, she alleges:

   a)In paragraph 21, that the children often witnessed the Father being physically, mentally and verbally violent towards the Mother; the Mother does not give dates.

   b)In paragraph 31, that following the parties’ separation (August 2017) (the child would have been aged 7 years at separation), that the Father continued to verbally abuse the Mother in front of the children. She also alleged that the Father leaves abusive and intimidating messages on the Mother’s and the Child’s phone.  Again no dates are given by the Mother for these allegations. No details are given as to the content of the abusive and intimidating messages.

   c)In paragraph 33, that in March 2019 the child called the Mother while she was spending time with the Father, it was a Saturday morning and the child was screaming and crying. The Mother alleges that the child told her that the Father had become angry and was screaming at her. The Mother alleges that she understands that the Father had found an application on the child’s phone that the Mother had installed sometime prior which allowed the Mother to see where the children were.

   d)In paragraph 34, that since March 2019 she has been driving the child to changeover. The Mother alleges that she does so to ensure that she can get to the child quickly if the event (of March 2019) was to re-occur. The Mother alleges that when the child knows the time is coming to spend time with the Father, she often gets very upset. The Mother alleges that the child cries and screams and tells the Mother that she does not want to go.

   e)In paragraph 39, the Mother alleges that she fears for herself and the child’s safety around the Father. The Mother alleges that due to the Father’s history of violence towards herself and in front of the children she does not believe the child is safe with him unsupervised. The Mother alleges that the child has told her on many occasions that she does not want to spend time with the Father. She alleges that the child has told her that the Father tells her things and wants her to keep them from the Mother which upsets her. The Mother alleges that the child has made it clear to her that she is scared of the Father after the incident where he screamed at her in 2019 and at the changeovers since.

   f)In paragraph 40, the Mother alleges that the Father has continued to make threats and intimidate her and she does not believe that this will stop.

4. The Mother told the family consultant of alleged events relating to the child, when in the care of the Father, including calling the Mother on the Saturday morning, screaming and crying because the Father had allegedly become very angry, and had begun screaming at her. There is a significant suggestion that these alleged events relate to paragraph 33 of the Mother’s Affidavit filed 7 September 2020 in relation to alleged events in March 2019.

5. The child told the family consultant (on 3 July 2020), inter alia, that the Father was a good Father but then said she “can’t explain” and does not want to visit him much. The child told the family consultant that she has visited the Father twice at his house, and it was “sort of good” the first time. She said that on this occasion, the Father did not scream, so she felt calm. She reported that on the second occasion that she visited the Father, he got angry and started screaming, which made her feel scared, and that this is the reason she does not wish to go again. She said that she may be less scared if someone accompanies her to future visits with the Father, so that if he begins screaming, she can tell the other person what is happening.

6. The child told the family consultant that the father had told her to say things to the mother which are not really true.

7. The child told the family consultant that the parents often fought when they were in a relationship. She related an incident in which she heard the Mother scream and went to check on her. She said that she saw the Mother’s eye bleeding and that this made her feel scared.

8. The Court takes into account the family consultant’s opinion that given the child’s account of the Father’s behaviour towards her during her previous visits (including March 2019), including screaming at her and telling the child distressing and untruthful things, and her reported fear due to these actions, it was recommended that any time the child spends with the Father be supervised.

9. The family consultant stated that the Mother appeared to experience a high level of anxiety in relation to the Father, and she appeared avoidant of supporting the child in relation to the Father. For instance, the Mother stated that she is unaware of the reasons that the child does not want to spend time with the Father, she said that she refuses to listen to messages that the Father leaves the child on her phone, and she stated that when the child appeared scared in the Father’s care, she gave the child the responsibilities of calling the police if needed.

10. Taking into account the family consultant’s expert evidence in the Child Inclusive Conference Memorandum, acknowledging that that Memorandum is untested at this interim stage, together with the Mother’s allegations of alleged family violence having been perpetrated against her by the Father during the relationship, the Court is concerned that there is a real possibility that the Mother has experienced a high level of anxiety in relation to the Father by reason of alleged family violence having been perpetrated against her by the Father, and that such anxiety may well have contributed to the Mother being avoidant of supporting the child in relation to the Father. In relation to this concern of the Court, it is not without relevance that the family consultant makes no suggestion of manipulation by the Mother of the child in relation to the child spending time with the Father.

11. At this interim stage, the Court has a concern, based on the material before it, including the child’s statements to the family consultant, and including the Father’s statement to the family consultant that during the relationship he has become angry with the Mother in regards to parenting matters, that should the child now live with the Father, or spend unsupervised time with him if remaining living in the Mother’s primary care, there is a real possibility that the child may be exposed to anger on the part of the Father and thereby suffer emotional harm; in this regard, there is an unacceptable risk of the child being exposed to psychological harm if either living with the Father or spending unsupervised time with him.

12. The Court has not overlooked the Father’s allegations against the Mother that during the relationship she perpetrated family violence against the Father. In this context the Court refers to its previous discussions above in relation to the child potentially living with the father. The Court has had regard to the historical police material relating to the father’s allegations against the mother. Despite these allegations and material, the Court’s concerns in relation to the father remain. The Court observes that the family consultant was made aware of the father’s allegations against the mother in this context and ultimately recommended that the child spend supervised time with the father. The family consultant raised no concern in respect to the father’s allegations that the mother was brainwashing and manipulating the child. The Court takes into account the parties’ consent to past interim Orders providing for the child to live with the mother. The Court takes into account that the child expressed no significant concern about the mother to the family consultant; she stated that the mother was a good mum who cared for her.

13. In relation to the ICL’s proposed orders that the child’s time with the Father be supervised by a private supervision agency, the Father made no submission to the Court that financially he could not afford to equally share the cost of such supervision.

14. In relation to the ICL’s proposed orders for CDT testing of both parents, such orders were recommended by the family consultant and will be orders in the best interests of the child.

15. The ICL’s proposed Order 13 relating to an Airport Watch List order will be an order in the best interests of the child, noting the Mother’s birthplace in the Country D.

16. It will not be in the best interests of the child to be subject to an equal time arrangement, nor to spend time with the Father constituting substantial and significant time under the Family Law Act 1975, and in this respect the Court refers to its discussions above, including in relation to alleged family violence, and the views of the child, inter alia, expressed to the family consultant.

17. The Court should state, in relation to the views of the child expressed to the family consultant, that they are taken into account by the Court and given some weight at this interim hearing. Again, the Court takes into account the recommendations of the family consultant that any time the child spends with the Father be supervised, and in this regard the Court refers to the Child Inclusive Conference Memorandum, including paragraphs 30 and 36 of such memorandum. The Court acknowledges that the evidence of the family consultant remains untested at this interim stage.

18. The Court should state that it has not overlooked the interim parenting Orders made by the Court on 25 March 2020 and 21 May 2020 relating to unsupervised time between the child and the father. The Court observes that those orders were made by consent without there having been a contested interim hearing in relation to those orders.  However, by reason of the matters discussed above, including the contents of the Child Inclusive Conference Memorandum and the recommendations of the family consultant in that Memorandum, the Court is of the view that it will be in the best interests of the child to discharge those orders and make fresh parenting orders as proposed by the ICL, which includes Orders for supervised time between the child and the Father; the threshold requirements in Rice & Asplund (1979) FLC 90-725, if relevant, have been met by the Mother.

19. The ICL’s proposed Orders 15 and 16 should ensure that the parties are kept up-to-date with the child’s schooling activities and health position.

20. As to parental responsibility, the Court is not persuaded that it should make an express order for parental responsibility at this interim stage.  The child shall continue living in the Mother’s primary care with the Father to spend supervised time with the child.

21. The Court has previously referred to the Mother’s significant anxiety commented upon by the family consultant, and what the family consultant described as the Mother’s associated appearance of being avoidant of supporting the child in relation to the Father. The family consultant had recommended counselling for the Mother in this context.  In relation to such counselling, the Mother is urged to undertake such counselling. The Court observes, in any event, that the ICL’s proposed order for family counselling may well assist the Mother in this respect.

22. In summary, evaluating the above discussed relevant considerations under s 60CC of the Act, it will be in the best interests of the child to make the ICL’s proposed interim Orders set out in her counsel’s Case Outline.

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate: 

Date: 22 December 2020