Denton & Denton (No 3)
[2024] FedCFamC1F 476
•18 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Denton & Denton (No 3) [2024] FedCFamC1F 476
File number(s): SYC 1695 of 2021 Judgment of: ALTOBELLI J Date of judgment: 18 July 2024 Catchwords: FAMILY LAW – CHILDREN – Interim parenting – Where the final hearing is imminent – Where the father seeks a change of residence for the child until the final hearing – Where the father seeks for the child to spend professionally supervised time with the mother – Where the parties struggle to coparent – Where orders were made by consent for a Family Law Watchlist order and a mutual restraint on applying for a passport for the child – Where the Court dismisses all other interim applications. Legislation: Evidence Act 1995 (Cth) s 140(2)
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 60CC(2)(a), 61D(3), 61DA, 61DAA, 61DAB, 65DAA, 102NA
Family Law Amendment Act 2024 (Cth)
Cases cited: Cao & Cao (2018) FLC 93-880; [2018] FamCAFC 252
Denton & Denton (No 2) [2024] FedCFamC1F 144
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Fitzwater v Fitzwater (2019) Fam LR 212; [2019] FamCAFC 251
Franklyn & Franklyn [2019] FamCAFC 256
Goode & Goode (2006) 36 Fam LR 422; [2006] FamCA 1346
Illes & Nelisson (2022) FLC 94-092; [2022] FedCFamC1A 97
Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1
Kozma & Bielen [2022] FedCFamC2F 1003
M v M (1988) 166 CLR 69; [1998] HCA 68
Marvel & Marvel (No 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101
Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34
Salah & Salah (2016) FLC-713; [2016] FamCAFC 100
SS v AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 46 Date of hearing: 8 July 2024 Place: Sydney via videoconference The Applicant: Litigant in person Solicitor for the Respondent: Mr Singh Solicitor for the Independent Children's Lawyer: Mr Samuel ORDERS
SYC 1695 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DENTON
Applicant
AND: MS DENTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
18 JULY 2024
THE COURT ORDERS THAT:
1.The Applicant’s Application in a Proceeding in a Proceeding filed 31 May 2024 is dismissed.
2.The Applicant’s Application in a Proceeding filed 3 July 2024 is dismissed.
3.The Respondent’s Response to Application in a Proceeding filed 3 July 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Denton & Denton and has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the decision of the Court in a further round of interim applications relating to X born 2019. The applicant father (“the father”) filed an Application in a Proceeding on 31 May 2024 (“the interim parenting application”), and a separate Application in a Proceeding on 3 July 2024 (“the Family Law Watchlist application”). The Respondent mother (“the mother”) filed a Response to Application in a Proceeding on 3 July 2024 in relation to the interim parenting application. As it turns out, other than making orders by consent restraining the parents from obtaining a passport for X and placing X on the Family Law Watchlist, all other interim proceedings before the Court were dismissed.
BACKGROUND
The father is 45 years old and is currently employed as an educator. The mother is 43 years old and is currently employed as a health worker. The parties met in 2016, commenced living together in 2017, and were married in 2018. X was born in 2019, and the parties separated on a final basis on 25 November 2020. The mother has another child from a previous relationship; H born 2008, as does the father; J born 2009.
This matter is imminently listed for final hearing before me regarding both parenting and property issues commencing on 30 September 2024.
The father initiated proceedings in this Court on 10 March 2021. The first interim orders made by a Judicial Registrar on 25 June 2021 provided for X to live with the mother and for the father to spend two hours of supervised time with X on the weekend, amongst other ancillary orders. On 19 April 2023, a Senior Judicial Registrar ordered that the father’s time with X increase to three supervised hours per week. On 5 March 2024, I ordered that X spend time with the father from 10.00 am to 4.00 pm for an eight week block, followed by overnight time from 4.30 pm Friday to 4.30 pm Saturday for a 12 week period, eventually increasing to X spending each alternate weekend with the father from 4.30 pm on Friday to 4.30 pm on Sunday commencing 23 July 2024 (Denton & Denton (No 2) [2024] FedCFamC1F 144 (“Denton”)).
The mother, the father and X have all undergone mental health assessments and participated in the production of a single expert report in this matter. The Single Expert Report of Ms F has undergone multiple updates, the most recent version being dated 20 December 2023. The parties have also attended a conciliation conference, and a court-based Family Dispute Resolution conference with no agreement reached.
The father initiated contravention proceedings against the mother on 10 October 2023. It was determined on 13 June 2024 by a Senior Judicial Registrar, that the mother, without reasonable excuse, had hindered or prevented X from spending time with the father on 19 April 2023 as provided by orders of this Court.
The recent contravention proceedings and significant litigation history between the parties highlight the predominant issue underlying this matter. There is a palpable lack of trust between the parties. This impacts their ability to communicate with one another and renders any coparenting situation that arises completely ineffective. As I explained in my reasons for judgment delivered 11 March 2024 the parties would benefit from “ensuring that everything they do, say and even think is in the best interests of” the child (Denton at [22]).
THE COMPETING PROPOSALS
The father filed the interim parenting application on 31 May 2024. He sought that the X live with him until the final hearing, that the mother spends professionally supervised time with X at a contact centre, that the mother be restrained from communicating with X in T Language during such supervised visitation and that the father’s treating psychologist be provided with updated material for the purpose of preparing an updated mental health assessment.
In the Family Law Watchlist application, the father asked the Court to extend the orders made by Judge Cole on 29 June 2024 that initially placed X on the Family Law Watchlist, for the mother to provide her new address to the father and for the mother to surrender her Australian and Country U passports to the Court.
In the mother’s Response to an Application in a Proceeding filed 3 July 2024, she sought that the father’s application be dismissed, that X be retrained from spending time with Ms V during her time spent with the father, that Ms V be retrained from accompanying the father during changeover, and that the father be restrained from bringing any other person with him during changeover.
The Independent Children’s Lawyer did not file any written proposal. In his oral submissions it was ascertained that the Independent Children’s Lawyer was not minded to make a substantive proposal as the final hearing was imminent and that it was more appropriate to deal with such matters on a final basis. Consequently, in his Minute of Order it was sought that both the interim parenting application and the Family Law Watchlist application be dismissed, that X remain on the Family Law Watchlist and that the child’s passport be surrendered to the Court.
To both parties’ credit, it was agreed prior to commencing submissions that a Family Law Watchlist order and an order restraining the parties from applying for a passport for X ought to be made. Such orders were made on 8 July 2024 by consent pending the delivery of judgment in the final hearing.
THE EVIDENCE BEFORE THE COURT
In support of the interim parenting application, the father relies upon the following material:
(a)Application in a Proceeding filed 31 May 2024;
(b)His affidavit filed 31 May 2024;
(c)Affidavit of Ms V filed 31 May 2024; and
(d)Affidavit of Ms W filed 31 May 2024.
In support of the Family Law Watchlist application, the father relies upon the following material:
(a)Application in a Proceeding filed 3 July 2024;
(b)His affidavit filed 3 July 2024;
(c)Affidavit of Ms V filed 3 July 2024;
(d)Affidavit of Ms W filed 3 July 2024; and
(e)Affidavit of Mr Y filed 3 July 2024.
In support of her case, the mother relies upon the following material:
(a)Response to an Application in a Proceeding filed 3 July 2024; and
(b)Her affidavit filed 3 July 2024.
The Independent Children’s Lawyer did not file any material in this matter but did provide a Minute of Order at the interim hearing on 8 July 2024.
THE APPLICABLE LAW
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Family Law Amendment Act 2024 (Cth) (“the Amendment Act”) came into effect on 6 May 2024 and made substantive amendments to the previous Act which apply to these proceedings. In determining parenting matters under Part VII of the Act the Court must still regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part
The objects of this Part are:
(a) to ensure that the best interests of children are met, including by ensuring their safety; and
(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
The presumption of equal shared parental responsibility as created by the previous s 61DA of the Act has been abolished. Instead, s 61D(3) of the Act provides the Court with the ability to deal with the allocation of responsibility for making decisions in relation a child as follows:
61D Parenting orders and parental responsibility
…
(3)A parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child (see subsection 64B(3)) may provide for joint or sole decision-making in relation to all or specified major long-term issues.
Section 61DAA of the Act provides the Court with an understanding of what joint decision-making about major long-term issues entails:
61DAA Effect of parenting order that provides for joint decision-making about major long-term issues
(1) If a parenting order provides for joint decision-making by persons in relation to all or specified major long-term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
(a) to consult each other person in relation to each such decision; and
(b) to make a genuine effort to come to a joint decision.
(2) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Subject to any order to the contrary, s 61DAB clarifies that if a child is spending time with a person under a parenting order, the order is not taken to require that person to consult with a person who has parental responsibility about decisions that are made in relation to the child that are not major long-term issues.
Because s 60CA and s 60B refer to the best interests of the child, the Court must consider s 60CC which specifies how the Court determines what is in a child’s best interests:
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
General considerations
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
(Emphasis in original)
It should further be noted that due to the repeal of the former s 65DAA of the Act, there is no longer the statutory requirement for the Court consider equal time or substantial and significant time. Cases that refer to this section will need to be carefully considered as to whether they still apply in limited ways, if at all.
The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The case law
The Full Court’s decision in Goode & Goode (2006) 36 Fam LR 422 at [68] provides some guidance as to the procedure of interim parenting hearings:
the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
An interim hearing proceeds on evidence that is yet to be tested. There is no cross-examination to establish the veracity of the evidence before the Court. Where facts are in dispute the Court cannot make conclusive findings about those matters. As the Full Court observed in Franklyn & Franklyn [2019] FamCAFC 256 (“Franklyn”) at [73]:
In interlocutory hearings, to the extent it is possible, judges are enjoined to make decisions about interim orders based on agreed facts, less contentious evidence, and inferences which fairly arise (citation omitted), but decisions must still be made despite contentious evidence. Judges are obliged to act on the strength of the evidence presented and, if it is relatively weak, are entitled to treat it so.
Nonetheless, any such 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” (SS v AH [2010] FamCAFC 13 at [88]).
It is important to recognise that interim orders are only a waypoint on the road to a final solution for the family unit. As explained by the Full Court in Marvel & Marvel (No 2) (2010) 43 Fam LR 348 at [120] (“Marvel”):
As has been frequently 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.
The recent amendments to the Act
Pursuant to subsection 60CC(2)(a) of the Act the Court must have regard to what arrangement would promote the “safety” of a child and each person who has care of the child (whether or not a person has parental responsibility for the child).
“Safety” is not defined in the Act. It is often said that words in a statutory context are to be given their ordinary or natural meaning (Momcilovic v The Queen (2011) 245 CLR 1 at [56]). This Court is drawn to a view that “safety” is a state in which hazards or conditions leading to physical, psychological, or material harm are controlled in order to preserve the health and wellbeing of an individual. It is not the complete elimination of risk of harm, but rather making such order as affords the child the most optimal protection from harm.
In contemplating the child’s safety, or by natural implication any risk of an unacceptable nature to that safety posed by a proposal, the Court is mandated to consider any history of family violence, abuse or neglect involving the child or a person caring for the child, together with any family violence order previously or currently in place.
The assessment of risk, or the existence of indicators of potential harm, is an evidence-based conclusion referable to the statutory framework and is not discretionary (Illes & Nelisson [2022] FedCFamC1A 97 at [84]). The finding about whether an unacceptable risk to safety exists, based on known facts and circumstances, is either open on the evidence or it is not (Evidence Act 1995 (Cth) s 140(2)).
The central task of the Court is to assess the risk of harm posed to the child and to determine what orders should be made to ameliorate that risk. Intrinsic to that process is the need to assess the strength of the evidence from which it is said the risk should be inferred (Cao & Cao (2018) FLC 93-880 at [46] (“Cao”)). Inconsistencies and anomalies can reduce the weight given to evidence (Cao at [56]).
Serious allegations cannot be ignored at interlocutory events simply because they have been put in issue and are lacking in corroboration (Marvel at [122]–[123]; Salah & Salah (2016) 56 Fam LR 299 at [33]–[45]; Eaby & Speelman (2015) FLC 93-654 at [18]–[19]).
The Court’s function is discharged by examining the evidence carefully to determine whether it establishes an unacceptable risk of harm (M v M (1988) 166 CLR 69at [25]). Some risk arising to a child’s safety may be capable of amelioration by further order of the Court (Keane & Keane [2021] 62 Fam LR 190 at [84]; Kozma & Bielen [2022] FedCFamC2F 1003). A risk of some occurrence may be tolerable, but an unacceptably high risk of the same occurrence is not (Fitzwater v Fitzwater [2019] FamCAFC 251 at [148]– [149]).
PRELIMINARY OBSERVATIONS
This case has been in my docket since 6 October 2023 and has already come before me once for an interim hearing on 5 March 2024 which resulted in reasons for judgment and interim orders delivered on 11 March 2024 (Denton).
A synthesis of the material presented to the Court allows the following preliminary observations to be made:
(1)The father has hitherto represented himself in the proceedings, but an order has been made under s 102NA of the Act that should provide him with some representation at the final hearing which commences on 30 September 2024;
(2)The parents present as intelligent and caring;
(3)The father is articulate in representing himself and a capable advocate for the interests of X;
(4)Even though the mother has been represented during the entirety of the matter, the totality of the material before the Court suggests that she too is articulate, and is a capable advocate for the interests of X; and
(5)Regrettably, the level of trust that exists between the parties, as manifested by the litigation history, evidence filed, and communication between them, strongly suggests that they have a low level of trust for each other, and struggle to communicate in a constructive child-focused manner. The parents would do well to reflect on and address these issues. To do otherwise, is not in the best interests of X.
At the interim hearing on 8 July 2024, I commented to the parents that both seem to place inappropriate reliance on what X has allegedly said to them, without seeking to reality test the comment, or seek to discern its context. Based on experience, a plausible explanation for this phenomenon is that X is telling each parent what she thinks each wants to hear. This may be because she loves both her parents but is caught in a conflict of loyalty between them. She is seemingly the victim of this intractable parental conflict.
When the evidence of both parents, and in the father’s case his witnesses, is examined carefully, a number of things become apparent.
As foreshadowed above, there has been un-questioning reliance on what X has said. There was no reality testing by either parent as to the merit, likelihood, or veracity of the content of her comments. Thus, when X allegedly said to the father that the mother was taking her on a long holiday, two things that needed to happen, did not.
Firstly, the inherent ambiguity of X’s statement was not subjected to any discernment. Rather, the father jumped to the premature conclusion that she was going to be taken out of the country by the mother. Secondly, the lack of plausibility of X’s comment was not considered. The father knew, or at least ought to have known, that the mother could not obtain a passport for X without his knowledge, consent, and signature.
Moreover, when the mother made the very serious allegation against the father that he had slept naked in the same bed as X, she did so based on an inference arising from the narrative of a four-year-old child. There was likewise no consideration into the ambiguity of what might have been said, or the context in which it was said. There was thus no reality testing of this allegation.
Nonetheless, the mother was not deterred from subjecting her own daughter to an intrusive physical medical examination at Z Hospital in mid-2024. Concerningly, despite the serious nature of the mother’s allegation, there is at most an allusion to it within the mother’s evidence and the orders she seeks do not reflect any such concern.
Putting aside the evidentiary issues that prevent any adverse finding being made based on any of the allegations before the Court, there is no evidence to suggest that X is not safe in the care of either of her parents. That is not to say that issues of safety will not be considered at the imminent final hearing, provided plausible evidence is placed before the Court.
CONCLUSION
The issues relevant to the final hearing that do seem to be emerging include the mother’s contentions of the father’s coercive and controlling violence, the father’s contentions about the mother’s mental health, and mutual concerns surrounding the parenting capacity of the parents to provide for X’s needs. This includes her need to have a relationship with both parents.
For the time being, however, none of the orders sought, other than the orders made by consent recorded above, are supported by the evidence and the Court declines to make them.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 18 July 2024
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