Denton & Denton (No 3)

Case [2024] FedCFamC1F 476

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…

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AGLC
Denton & Denton (No 3) [2024] FedCFamC1F 476
Case
[2024] FedCFamC1F 476
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the Court was asked to decide interim parenting and Family Law Watchlist orders in the context of a contentious separation between the parties. The father sought a change of residence for the child until the final hearing and for the child to spend professionally supervised time with the mother. The mother opposed these applications. The Court also had to consider the parties’ struggle to coparent and orders made by consent regarding a Family Law Watchlist order and a mutual restraint on applying for a passport for the child. The Court dismissed all other interim applications. The legal issues the Court had to decide included the best interests of the child, the effectiveness of the proposed parenting arrangements, and the need for supervision and monitoring given the parties’ history. The Court found that the father’s proposed changes to the parenting arrangements were not in the child’s best interests, given the lack of trust and communication between the parties. The Court also found that the existing arrangements, including supervised time with the father, were sufficient and did not require further changes. The Court emphasised the importance of the child’s safety and well-being, and the need for the parties to work together for the child’s benefit. The Court ultimately dismissed the father’s interim parenting and Family Law Watchlist applications and upheld the existing orders. The Court ordered that the final hearing regarding both parenting and property issues would proceed as scheduled.

Orders

Orders of the court

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.

Background

Background to the litigation

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

Evidence

Evidence Before 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 PartThe 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.

Decision

Reasons for decision

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 interestsDetermining 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)

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.