Diacos & Gataki

[2020] FCCA 3466

FEDERAL CIRCUIT COURT OF AUSTRALIA

Diacos & Gataki [2020] FCCA 3466

File numbers:

MLC 11078 of 2020

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

30 October 2020

Catchwords:

FAMILY LAW – Parenting – where final orders were made in 2018 – where week about arrangements are in place – where mother fails to facilitate the father’s time – allegations of family violence – where father files urgent application.  

Legislation:

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

Cases cited:

Goode & Goode [2006] FamCA 1346

Rice & Asplund (1978) 6 FamLR 570

SPS & PLS [2008] FLC ¶93-363

Number of paragraphs:

87

Date of hearing:

30 October 2020

Place:

Melbourne

Solicitor for the Applicant:

Mr J Glass of Leslie Family Law

Counsel for the Respondent:

Mr M Puyol

Solicitor for the Respondent:

Knight Family Lawyers

ORDERS

MLC 11078 of 2020

BETWEEN:

MR DIACOS

Applicant

AND:

MS GATAKI

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	30 OCTOBER 2020

THE COURT ORDERS THAT:

1.The Respondent Mother do all acts and things to ensure the child X ('the child') born in 2014 attends school on Monday 2 November 2020.

2.The Applicant Father collect the child at the conclusion of school on Monday 2 November 2020 and the child remain in the Applicant Father's care until the conclusion of school the following Monday 9 November 2020 and the Applicant Father ensure the child attends school that day in the usual manner.

3.The Respondent Mother will collect the child at the conclusion of school on Monday 9 November 2020 and ensure the child attends school on Friday 13 November 2020 in the usual manner.

4.The Applicant Father collect the child at the conclusion of school on Friday 13 November 2020 and the week about arrangements that were previously in place during school term recommence in accordance with the Final Orders of 14 December 2018.

5.Until further order, both parties, their servants and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the X born in 2014  from the Commonwealth of Australia.  This order ceases to have effect 2 years after the date on which it is made.

6.The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders.

7.The Court requests that the Australian Federal Police place the name of the child on the Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.  This order ceases to have effect 2 years after the date on which it is made.

8.The matter be adjourned to the Federal Circuit Court of Australia on 11 February 2021 at 10.00am for Mention.

AND THE COURT NOTES THAT:

A.Save as provided herein the orders of 14 December 2018 remain in place.

B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

INTRODUCTION

1. This matter comes before me concerning the living arrangements of the child X born in 2014 (‘the child’).  The child turned six mid year and attends a B School stream of an inner city Melbourne school.  The Applicant Father (‘the Father’) lives in a suburb to the north of that, and the Respondent Mother (‘the Mother’) lives in a suburb to the west of that school. 

2. The parties had been in litigation for some time but final orders were made on 14 December 2018.  At that time the child was represented by an Independent Children's Lawyer, the Father appeared in person, and the Mother was represented by a solicitor and counsel who is experienced over many years in family law matters.  Orders were made that fundamentally the child was to live on a week about arrangement between the parents, and that the parties were to share school holidays, and there were precise arrangements for special days. 

3. There was also a provision at paragraph number 4 that each party ensure that the child is available to telephone or FaceTime with the other parent each Wednesday between 5.30pm and 6.00pm.  At paragraph 5 of those orders, changeover time for all time that does not take place at the children's school was to take place at Suburb C McDonalds, Street D, Suburb C, or any other place agreed between the parents in writing.  The McDonalds being a place that is approximately in between the two parents residences at that time. 

4. The parents were otherwise to keep each other advised of their current residential address and any intended change seven days prior notice be given.  The parents were to communicate with each other by email or text, unless otherwise agreed between them, and such communication is to be civil and respectful and limited to issues relevant to the child and in operation of these orders. 

5. Further, each parent was restrained by injunction from denigrating the other parent to the child or in the presence of or within the hearing of the child or allowing or permitting any other party to do so.  There were other orders made relating to the child's medical issues, education and religious matters.  There was also a watch list order that provided that the Child be restrained from leaving the Commonwealth of Australia, and that watch list order was to last until 14 December 2020.  I have been asked to extend that order until further order by the Father.  It is notorious the extent to which until further order watch list orders are a difficulty for the authorities and the Australian Federal Police to appropriately monitor. 

6. One issue in the case that may arise that has not been pressed, either when the matter was before me for a review of a registrar's decision or today is the issue of the principles of Rice & Asplund (1978) 6 FamLR 570 (‘Rice & Asplund’).  It may be that Rice & Asplund does or does not become an issue in the proceedings.  Neither party has addressed that matter at this point.  However, in SPS & PLS [2008] FLC 93-363 (‘SPS & PLS’) Warnick J at [83] concluded, having carefully analysed a number of authorities, said as follows:

   Accordingly, the rule may not impede hearing an application for a small alteration, which may require only a short and narrow inquiry, but may properly prevent a hearing in respect of far-reaching changes.

7. Hence, I am of the view that to extend the watch list order and otherwise a minor variation of the final orders for the purpose of getting the parties back into the rotation of week about arrangements that they had hitherto done by the Court order would fall within the SPS & PLS paragraph [83] provision, and that I am not by making either of those orders opening the gate to continuation of proceedings contrary to the philosophy behind Rice & Asplund.

8. For the purposes of the parties, the doctrine behind Rice & Asplund, notwithstanding that short statements of the rule, as it is known, may tend to mislead, but the point is that it is recognised by the authorities that frequent and continued litigation between parents relating to a child's living arrangements is contrary to the best interests of a child, and that fresh applications for a change of living arrangements should not be entertained unless there exists a substantial change in circumstances. 

9. Part of the philosophy underlying that is that it is considered that there may be enormous psychological harm which would be inflicted upon the parties, but also upon the child, and that would include the child being unnecessarily interviewed by experts about her family relationships and living arrangements.  That is the reason for the rule, and so it is with some caution that I approach the re-litigation of the living arrangements for the child when they were determined on a final basis as recently as 18 December 2018. 

10. It is the position of both counsel who appeared and who assisted me with concise submissions today that I should proceed on the basis that this is an interim hearing pending further hearing. This hearing may or may not result in an actual further final hearing as to the welfare of the child, and that the pathway, as it is known, of Goode & Goode [2006] FamCA 1346 (Goode & Goode) is what I should follow this day.

    THE REVIEW ISSUE

11. I should add that the matter came before me by reason of the Father initiating proceedings by filing an initiating application on 12 October 2020 and serving that application upon the Mother soon after.  The return date was a date some time hence, and the Father's lawyers filed an application for review of the Registrar's decision relating to times being abridged to enable a more urgent hearing than had been fixed.  That matter came before me on 22 October 2020, and the bulk of the day was applied to that hearing. 

12. Unusually, the Mother had retained solicitors and briefed counsel who appeared before me for the sole purpose of submitting that the Court did not have jurisdiction to review the Registrar's decision and relied on a number of authorities.  I ruled that I had jurisdiction and that I should exercise my discretion to vary the times of listing and times for service and reserve my reasons.  Those reasons are still reserved, and I will deliver them in due course. 

13. I was significantly assisted by the five pages of careful submissions of Mr Puyol of counsel that went to the jurisdictional issue.  Having determined jurisdiction and determined to exercise my discretion, I ordered that the matter be returnable before me this day, being Friday 30 October 2020, and I ordered that the Mother file material for the purpose.

14. I was assisted by a detailed outline of case by the Father's solicitor, which was marked in evidence as exhibit F3 and will be filed with the Court in the usual manner.  In addition to that, I had requested the Department of Health and Human Services (DHHS) family law liaison division to assist me by providing information relating to the involvement of DHHS in this family.  A short summary document was prepared and provided to me, which I provided to the parties' counsel.  That document is in evidence and is exhibit C1. 

    THE PARENTING ISSUE

15. The controversy arises from the circumstance that following the final orders on 14 December 2008, the child has lived week about with her parents and, as I understand, it is common ground, in compliance with the orders, until Friday, 18 September 2020.  The child had moved from the care of the Father on the previous Friday, 11 September 2020, pursuant to the orders. 

16. It is the Mother's case that on the train on the way home from that changeover, which I note did not occur at school because of COVID-19 arrangements, the parties had agreed to meet at E Shopping Centre in Suburb C for the purpose of the changeover.  On that day, the Mother asserts that the child told her that the Father had slapped her in the stomach, causing her to fall, which caused her to hurt her head and her legs, and the inference is that the Mother observed bruising.  It is apparent that at some point the Mother had complained of a breach of an intervention order to the police. 

17. On 14 September 2020, according to the Father, the police had contacted him for an interview regarding alleged breaches of the intervention order that was extant between the parties.  The police arranged for the Father to be interviewed on 18 September 2020, which he was.  That day was, by coincidence, the day that the child should have, according to the orders, returned to the Father's care.  The Mother notified the Father via a text message that the child would not be delivered for changeover at 3.30 pm as had previously been arranged. 

18. The Father responded by saying there was no basis for her to withhold the child.  On 21 September 2020, according to the Father, he telephoned Child Protection, who simply advised him that a notification had been received but otherwise provided him with no information.  It is to the credit of the Father that on 18 September 2020, or at any time between then and 21 September 2020, he did not, as the Mother had done, taken the law into his own hands. 

19. Because of the intervention order, he would not have been entitled to attend at the Mother's home to self-help to enforce the orders.  The material from the Mother demonstrates a concern that the Father might do just this, and, in fact, I was informed by her counsel today that for a time she resided in a hotel so as to avoid the unpleasantness of being confronted by the Father if he attended her home to exercise his time with the child. 

20. It is to the credit of the Father that when Child Protection did not have anything of substance to advise him other than the fact that a notification had been received, that he still did not attempt self-help.  On 22 September 2020, he again contacted Child Protection, seeking information but he was provided with only limited information.  On that day, he emailed the Mother seeking an explanation.   On 23 September 2020 the Father was due to have telephone contact with the child as he has telephone contact each Wednesday, as does the Mother with the child when the child lives with the Father.  He was permitted telephone contact. 

21. The Mother complains about the nature of that telephone call, and it is apparent that the Mother listens to the telephone calls between the child and the Father by having the telephone on speaker.  The orders are silent as to whether that can or cannot occur.  The usual arrangement in regard to telephone contact is that, in my experience, the Court and family lawyers drafting such matters assume and expect that the telephone call between the child and the other parent will be treated as private and confidential as between that child and that parent. 

22. In my experience, it is not usual that one parent listens to the otherwise private and confidential discussion between the other parent and the child.  On one view, and I do not make a finding about it, this may be an inappropriate invasion of the child's right to have a meaningful relationship with the other parent.  I do not know if the Father likewise monitors the calls that the child would make with the Mother when the child is in his care, but if he does, in my view, unless there is a good reason to the contrary, the ordinary context to the orders that was made would mean that he would not and should not. 

23. I have not been asked to vary that telephone order;  I may be at a subsequent time, but it is my view that unless there is a very good reason, neither parent should be listening to the telephone calls on speaker, as a matter of ordinary course. 

24. The evidence shows that the Father made a number of attempts to obtain information from Child Protection relating to any report concerning the child.  On 25 September 2020, the Father's solicitor wrote to the Mother seeking that the orders be complied with.  On 28 September 2020, the Mother responded advising that she was seeking further legal advice.  The Father continued to frequently attempt to contact Child Protection to ascertain if there was any proper or legal reason that may explain the Mother's failing to make the child available.  On 29 September, the Father's solicitor again wrote to the Mother, responding to her letter, pointing out that she continued to be in breach of the orders.  A response was pressed by no later than 2 October 2020. 

25. On 2 October 2020, the Father's solicitor received the first letter from the Mother's solicitor.  This was received at about 5.30pm on Friday, 2 October 2020.  The letter sought further time to gather instructions.  On 5 October 2020, there was a further letter whereby the Mother's solicitor was requesting time to obtain urgent instructions to enable a more fulsome response by close of business on 8 October 2020.  I might add that, in the meantime, the Father has been permitted to have the telephone call, albeit on speakerphone, between himself and the child. 

26. Later, the Mother complains of the nature of that communication as itself a reason to justify her unilateral changing of the child's living arrangements contrary to the orders.  On 8 October 2020, by document in evidence annexed to the Father's affidavit as -6, the Father received information from the Mother's solicitor as follows:

    “…our client has instructed us that the child has experienced physical, emotional and psychological abuse as a result of your client's conduct.”

27. It is the Father's case that he attempted to resolve the difficulty with the orders without self-help and without unnecessarily rushing to litigation.  By 12 October 2020, the Father had been able to prepare and file an application, including an affidavit.  That date that the Court was able to accommodate the matter was some time hence.  The application for the review was filed on 13 October 2020, and on 15 October 2020 the application for review was listed on 22 October 2020.  As I understand it, the Mother's solicitors were kept informed of these developments as they went along. 

28. On 22 October 2020, the review matter was listed before me.  As I have stated, I determined that I had jurisdiction and that I should exercise it by changing the date and the times for service.  I was initially troubled by the circumstance that a party acting contrary to, or in breach of, orders would, rather than make an application to the Court justifying that or provide any detailed particulars of the circumstances that may justify that circumstance, instead chose to retain solicitors and counsel for the purpose of contesting jurisdiction on the application to review. 

29. The jurisdictional application was on a highly technical matter; however, I would either have jurisdiction or I would not, and the Mother was legally entitled to do as she did.  I raised with her counsel this day whether I should draw an inference that the Mother had chosen to contest jurisdiction rather than grapple with the reality of the situation and that that inference may be adverse to his client.  Mr Puyol of counsel for the Mother was able to persuade me that I should not do so in the circumstances of the relatively short time that the Mother had for getting things organised. 

30. For the reasons that Mr Puyol pressed, or some of them, and the circumstance that the Mother was acting within the law, at least in this instance, I do not propose to draw an adverse inference of the manner in which she conducted the proceedings.  I have been troubled at the circumstance of the party who is, on the face of it, in breach of, or acting contrary to, recent final orders being permitted to exercise all his or her legal rights whilst not complying with his or her legal obligations pursuant to the orders; however, I have been persuaded and, on balance, do not draw any inference against the Mother in that regard in this interim hearing.

1. The Mother then, following the hearing, filed material on 28 October 2020, being a response and an affidavit, together with a notice of risk.  Before I come to that, I think I should put on the record some of the information obtained with the assistance of DHHS.  That information demonstrated that there was an open Child Protection case following the receipt of a report on 22 October 2020, and there are five concerns raised in the report to Child Protection in relation to the child’s welfare when with the father. 

2. Those five dot points are, in fact, entirely consistent with and conveniently summarise the concerns that the mother raises in her affidavit.  That complaint is currently in the intake phase and has not been progressed to Child Protection for an investigation; however, the allocated Child Protection practitioner has advised that the case is likely to proceed to closure pending follow-up with support services.  It is significant that there have been eight previous reports to Child Protection between 2017 and 2020. 

3. In the first report in this child's life, which was received on 20 July 2017, the reported concerns related to family violence perpetrated by the Father and the Mother's substance abuse and lack of stable housing.  The reported concerns were not substantiated and it was assessed at that time that there were no immediate concerns identified for the child in the care of either parent.  The remaining seven reports were closed at intake phase and did not progress to an investigation. 

4. It is not clear to me whether the report of 22 October 2020 is the eighth or the ninth report.  There is a further report or what is described as the most recent report, which is described as being from 14 September 2020 to 25 September 2020, where it was assessed that Child Protection intervention was not warranted at that time, but it then goes on:

   “…identified that the Father requires support and education regarding the effects of family violence on a child and parenting support in relation to the appropriate care of X.”

5. It was the Father's position that, in fact, he had, up to the date of hearing this afternoon, had no contact about those matters from Child Protection.  That is not inconsistent with what is stated in the report, and it may be that he will be contacted in regard to what is described as support and education by Child Protection. 

6. I took the step of treating the Father's outline of case as dealing with the Mother's affidavit.  With the agreement and consent of his solicitor, I had the Father sworn and he adopted on oath that the contents of that application were true and correct in every aspect to the extent that they were within his knowledge. 

7. I did that in the circumstances where that outline of case rebutted and denied the allegations that the Mother made, and in the circumstances where she had sworn to the truth of the matters the child was said to have reported to her, I regarded it as appropriate that the Father's rebuttal of those allegations also be on sworn material.  The matters that were pointed to in the Mother's affidavit and referred to by her counsel were as follows.  Paragraph [12] of the Mother's affidavit filed 28 October 2020 referred to 24 August 2020 when the Mother says:

   “On 24 August 2020, X was in my care, and we were having dinner at the time when she had an emotional breakdown at the table.  X was crying and expressed to me in words to the effect that she felt like her Father might kill her.  I was deeply concerned by this statement, and in a child-appropriate manner, I asked X in words to the effect if her father had threatened her verbally or physically.  X responded in words to the effect that she felt like it and this made her feel terrified.”

8. In the Father's outline of case, which the Mother had the benefit of being able to know about prior to the commencement of the hearing, the Father's outline points out that on 24 August 2020, the said day, that the events complained upon could not have happened because the child was in his care at that time.  In the Mother's counsel submissions, he sought leave to provide what his instructions were from the bar table responding to the "could not have happened" position of the Father. 

9. The Mother's counsel told me that that was a typographical error;  that it was meant to be a one, not a two, so that the actual date was 14 August 2020, and that on that same day, and this being a matter that was not referred to in the affidavit, the child had spoken to Kids Helpline for 41 minutes.  The inference that I drew and that I raised with her counsel was that the Mother was able to listen to at least what the child said in that conversation, and if the conversation was on speaker, which it may or may not have been, the Mother would have been able to listen to both sides of the conversation. 

10. I provided the opportunity for the Father's solicitor to take instructions as to whether that made any difference to his position.  The Father's position was that whether it was 14 August 2020 or 24 August 2020, the allegation of inappropriate discipline or physical assault upon the child was denied and I quote from paragraph [15] of the Father’s outline of case:

    “The Father categorically denies physically assaulting X in any way whatsoever.”

11. If true, those are matters of concern.  What would be of concern is what lies behind the child making that statement to the Mother.  Is it because what the child says is true, or are there some other dynamic at play in the Mother's household.  This being an interim hearing, and this being a controversial matter, I am unable to make a finding, but I do note that it is categorically denied by the Father. 

12. The Mother also points at paragraph [16] to an event on 11 September 2020 where she collected the child from E Shopping Centre after spending time with the Father.  This is the last time or day that the child had been in his care, 11 September 2020 being a Friday.  The Mother deposes that on the train returning home, the child expressed to her words to the effect that the Father had slapped her in the stomach and made her fall, causing her to hurt her head and legs on the ground, and that the child proceeded to show the bruises on her legs and touched the left side of her head whilst describing to me how much it hurt.  She said that the child later expressed to her words to the effect that the Father had also forcefully pushed her in the chest area when she was in his care. 

13. It is said by the combination of paragraph [18] and the submissions of the Mother that, on 4 September 2020, what was reported to the Suburb F Police Station on the basis of a breach of an intervention order was an allegation that the Father had demonstrated a violent episode during changeover, that is, that he was shouting and insulting her in front of the child and repeatedly called her a “demon” and that he came close enough to the child and the Mother to “make us feel threatened by his conduct.” 

14. The other matters that are pointed to by the Mother's justifying the change of living arrangements is deposed to at paragraphs [40] through to paragraph [43], which can be summarised as that the child tells the Mother that the Father denigrates her and her sister and that this process has impacted badly upon the child.  If true, that would impact badly upon the child.  The Father categorically denies such denigration.  If it is true, it should stop immediately.  However, I make no finding one way or the other. 

15. The Mother is concerned that the child experiences emotional and psychological abuse in the Father's care and through the telephone calls.  At paragraph [44] of her 28 October 2020 affidavit, she refers to an assault where she says that the child has said words to the effect:

    "hit me, because Papa hit me and you should hit me too." 

16. The Mother says that the child had expressed matters of this nature in or around September 2020.  I note that the Mother also asserts that after she contacted the Suburb G Police family violence unit, that they referred her to a ‘Ms H’ at the Suburb J Police Sexual Offences and Child Abuse Investigation Team (SOCIT) and that she spoke to one of the officers and was informed that they would not be proceeding with any criminal charges.  The Mother regards the child as telling her that the Father has made threats to kill her, that is, the child, and that she fears the Father's behaviour towards the child and herself escalating in the future. 

17. The Mother's counsel has acknowledged that the allegations are controversial facts and in issue, and he has pointed to the uncontroversial facts and that is that each party has described the child as being distressed when speaking to the Father, notwithstanding that they both put different reasons as to why that is so, but points to the fact that they agree it is so. 

18. The Mother's counsel, with some skill, then pressed that, in the circumstances of that uncontroversial fact, the Court should, in the best interests of the child, order a section 11F report and adjourn the proceedings for the receipt of the 11F report, which would also enable the Mother and the parties and the Court to access the material that is being produced upon subpoena. 

19. Following the hearing on 22 October 2020, the Mother's solicitors issued a number of subpoenas to a medical centre where the Mother says the child attended, to the school where the child attends, and to the Kids Helpline, and with a further subpoena to Ms H from K Health Centre, being the Mother's counsellor.  Before I go further I should note, in fact, what the Mother's response to final orders is.  The Mother seeks by way of final orders as follows:

    1.That the mother seeks leave to further particularise the final orders sought by her at a later date upon the release of a section 11F report.

    2.Any further and/or other orders deemed appropriate by this Honourable Court.

20. In regard to interim orders that the Mother sought:

    1.That the Child. X (“X”) live with the Mother.

    2.That the Father's face-to-face time pursuant to order 3 of the orders dated 14 December 2018 be reserved pending the release of a section 11F report,

    3.The child communicate with the Father every Wednesday between 5.30 to 6.00pm by telephone,

    4.That an urgent section 11F report be ordered,

    5.Any other order this Honourable Court deems appropriate.

21. I am troubled at the orders sought by the Mother.  In substance, they are orders to say that the Father's time should be suspended but that the Mother should have until sometime following the section 11F report, to formulate what orders she would seek which, of course, could include orders that the parties return to the existing orders. 

22. In terms of the material that's sought to be produced on subpoena I do not understand why the Mother could not have obtained a report or information from her own counsellor upon her own authority.  The same would apply in regard to the information from the Suburb L Medical Centre where the Mother says she took the child.  I would expect the Mother would be able to authorise that medical centre to provide a report or information.

23. In regard to the school, as one of the co-enrollers of the child in the school, I would have expected that the Mother would be able to obtain information by request from the school although it is possible that the school would not provide same unless the request was from both the Mother and the Father. 

24. In regard to the Kids Helpline the Mother would not be able to, by request, obtain information from Kids Helpline as I understand that service.  However, it is the Mother's case that she has already heard the child speak to the children's helpline so she would know the substance of what the child has said.  I do not see the issuing of a subpoena following the fixing of today for hearing (when those subpoenas are returnable on a date after today) as a sufficient justification for me not to deal with the matter.

25. As to the request for a section 11F report, in my view, assumes that the Rice & Asplund rule hurdle has been overcome.  It may be in due course, but I am not prepared to have the substance of these proceedings simply wait until I am able to provide a section 11F report but further, and more significantly, in my submission, a section 11F report would not ordinarily be ordered unless the rubicon of Rice & Asplund has been crossed.  In this case the Mother seeks to get the section 11F report to see if the case can be ordered in a manner that would then justify the orders that she seeks.

26. I am troubled about such a procedure in the face of final orders having been made on 14 December 2018.  Both parties have submitted to me that I should proceed to hear this matter as an interim hearing guided by the principles of Good & Goode.

27. In this matter I am guided by paragraph [82] of the Full Court in Goode & Goode and note that it is the joint position of the parties’ solicitor and counsel that I should do so.  The first aspect is to identify the competing proposals of the parties.  In that regard the Father presses that the child be returned to the still extant final orders of 14 December 2018.  The Mother's proposal is less clear.  Her proposal is that pending a section 11F report, whenever that may be, the Father's face-to-face time simply be suspended but that she formulate what her final orders sought is following that report.

28. The next step is to identify the issues in dispute in the interim hearing.  The issues that are in dispute are whether the Father has said or done anything to the child that would justify what the child is alleged to have said to the Mother as addressed in her affidavit at paragraph [12], [16], [17] and the paragraphs at [40] to [45] and at [58] and the further matter relating to what was put to me from the bar table.  That is what I will call the bar table evidence of the first of two telephone calls to Kids Helpline. 

29. The next matter is to identify any agreed or uncontested relevant facts.  Mr Puyol of counsel for the Mother points out to me that it is an agreed or uncontested fact that the child has been distressed in the weekly telephone calls with the Father and I acknowledge that.

30. The more significant agreed or uncontested facts is that since the orders were made on 14 December 2018, the child has lived pursuant to those orders in a week about arrangement uninterrupted until the child was not returned to the Father on Friday, 18 September 2020. 

31. The further agreed or uncontested facts is that the Mother did not take steps to apply to Court or vary the orders or inform the Father of the detail of the allegations of the matters that would justify interference with the orders until she was compelled by my order of 22 October 2020 to file and serve material preparing for this hearing.

32. The child is now six.  The further matters that I take into account is that there has, in fact, been a notification of the current controversy or circumstances to Child Protection and that at this point Child Protection have not intervened and further, that Child Protection have not spoken to the Father about any potential concerns notwithstanding his frequent contacting that department to give them the opportunity to do so.  Of course, that does not mean that there cannot be concerns or that there are not concerns and it does not mean that the child has not said the things reported by the Mother.

    THE SECTION 60CC CONSIDERATIONS

33. I was considering these matters prior to indicating what my orders would be, that I was proceeding on the basis that the child's best interests were the paramount consideration as I am directed by section 60CA of the Family Law Act 1975 (Cth) (‘the Act’). I am also, and I considered, bound by the primary considerations of how a Court determines what is in a child's best interests: section 60CC(2) of the Act. The primary considerations being

    (a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

    (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

34. I note section 60CC(2A); in applying the considerations set out in subsection (2), the Court is to give greater weight to the considerations set out in 2(b), that is, the need to protect the child from physical or psychological harm. So I am, by paragraph [82] or the pathway, directed to take into account matters under section 60CC as are relevant. I have taken into account section 60CC(2) and (2A) and I now turn to the additional considerations of section 60CC(3).

35. The first additional consideration at subsection (3)(a) being the views expressed by the child are recorded and are, according to the Mother, the basis upon which her concerns arise.  As I understand the Father's case, the child's distress arises from the circumstance that the child is not spending time with him.  However, on this interim hearing I am unable to give any or any substantial weight to what the Mother says the child's wishes are.  Those wishes being that she is fearful of the Father and by inference, does not wish to spend time with him.  The Mother also asserts that the child pleads with her not to be returned to the Father at the end of her week.

36. I then turn to subsection (3)(b), the nature of the child's relationship with each of the child's parents and the inference I draw is that as at December 2018 the child had a good or sufficient relationship with each parent to justify a week about arrangement and that absent the controversial evidence of what the Mother says, up until the events of August or September, I am satisfied that the child maintained a relationship with both parents.

37. Subsection (3)(c), which is the extent to which each of the child's parents has failed to take an opportunity to participate in decisions is not relevant for this hearing and (3)(ca), the extent to which each of the child's parents has fulfilled or failed to fulfil the parents obligations to maintain the child is not relevant. 

38. Subsection (3)(d); the likely effect of any change in the child's circumstances, including the likely effect on the child of any separation from his or her parents.  In this regard I take into account that the final orders provide that the child is to live week about and has done so for some time.  One of the parties allege that, in fact, the child had lived week about for some time prior to the final orders.  That may be the case but I put greater weight on the fact that final orders were made with the assistance of an Independent Children’s Lawyer, than the circumstances before that.  The current arrangements have the effect that the child is separated from one of the parents that the final orders required should be in the care of that parent on a week about basis. 

39. Subsection (3)(e), a practical difficulty and expenses is not applicable because the parties have demonstrated that they are able to make the practical arrangements of the week about arrangement work.

40. Subsection (3)(f), the capacity of each of the child's parents to provide for the needs, including emotional and intellectual needs.  There is no evidence before me, save for the recent allegations of the Mother, that would cause me to question that.  There is insufficient evidence on this interim hearing to cause me to question either parent's capacity to provide for the child. 

41. Subsection (3)(g), the maturity, sex, lifestyle and background, including lifestyle, culture and traditions that are relevant is not of relevance at this hearing and Subsection (3)(h), if the child is an Aboriginal or Torres Strait Islander child, certain considerations apply.  I have not been informed that the child is an Aboriginal or Torres Strait Island child so that provision is not relevant.

42. Subsection (3)(i) is an important provision.  The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents.  One of the matters that is a responsibility of parenthood is to carefully, and in a balanced manner, consider anything that the child has said to a parent that would impact on the child's welfare and the relationship that the child would have with the other parent.  One of the responsibilities of parenthood is to promote and deal with the primary considerations, which are twofold: the meaningful relationship, and the need to protect the child from physical and psychological harm.

1. I am troubled that to this point of time the Mother's demonstration of the responsibility of parenthood may be lacking because I am troubled at the extent to which and the manner in which she has considered what she says the child has reported to her and what she has observed on the child.  I am troubled that she has not contacted the Father to seek his input into what may have occurred or to have caused the child to report the matters, assuming that those matters are correctly reported.  I discussed with her counsel that one inference was that the issue of consulting the father to see what may have occurred never crossed her mind and alternatively, that it crossed her mind but she decided not to do it.

2. I do not know which of those it was but I am troubled that a parent would unilaterally cease to comply with final orders and then not bring any proceedings or to provide the other parent with the opportunity to even consider just what it is that would justify such a cause of action. 

3. At final hearing, if there is one, it may be that the Mother is able to persuade me that this initial or preliminary view is not correct.  But on the uncontroversial facts as they stand at this point in time, I think the inference is open that the mother has not embraced all of the responsibilities of parenthood in as careful a manner as she may have.

4. In her defence, it may be said that she is merely giving priority to the need to protect the child from physical or psychological harm and indeed, if there is a final hearing, that is a matter that may be relevant and may be explored.

5. Subsection (3)(j), any family violence involving the child or a member of the child's family.  The Mother alleges, effectively, family violence by the Father at changeovers from what she has observed herself and family violence from the father to the child.  If the Father's behaviour is as described by the Mother or within those parameters, that is appalling and it should stop.  I do not find that it did not occur in this case.  I do not find that it has occurred.  That is a controversial fact in issue between the parties.

6. I neither absolve the Father in my mind from the allegations, nor do I find that they're falsely made.  The final orders, as made, provide that changeover should be school-to-school where only one parent would be present.  The orders further provide that the parents are to communicate by text or email about the child.  Communications other than concerning the arrangements for the child by text or email, unless agreed, would be in breach of the orders and potentially in breach of the intervention order.  I am not finding that the Father has or has not made inappropriate comments to the Mother and I am not finding that the Mother has or has not overdramatised anything that the Father has said.  The allegations may be true.  However, at this interim hearing I am unable to find that they are.

7. Under subsection (3)(k) I am to take into account a family violence order that applies.  I am to take into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the Court and any other relevant matter.  I simply do not have that material before me to be able to consider those matters and I do not consider it expedient for the parties, the Court or in the best interests of the child to adjourn the matter to obtain evidence of those matters.  I note that this is an interim hearing on the papers.  I have not seen that order annexed to any of the material.  But I am sufficiently familiar with the standard form of family violence orders.  I expect and assume that the order is in that form and I take account that circumstance.  I take account of the circumstance that a family violence order exists and I infer that it exists for good reason.  That does not mean that I find that the Father ever committed the family violence that the Mother complained of or that he did not.  I simply note the family violence order and I presume that there is good reason for the order.

8. The next subsection 3(l), whether it would be preferable to make the order that is least likely to lead to the institution of further proceedings.  That provision assists me in this way.  There is already a final order and the issue is whether there is a sufficient basis to interfere with it. 

9. Then subsection (3)(m), any other fact or circumstance that the Court thinks is relevant.  Under this section the most significant matter or other fact or circumstance that is relevant is that following a range of events including multiple previous reports to Child Protection, Family Court litigation and intervention order proceedings, on 14 December 2018 a final order was made for the child to live week about.

10. That is a significant matter or fact or circumstance for me to take into account.  I also take into account that the Mother did not particularise or provide the Father with any details whatsoever as to the nature of what it was that had occurred until she filed her affidavit on 28 October 2020.  Now, it may be at final hearing that that all becomes clearer as to why that occurred and it may even be that the Mother has acted nothing but appropriately.  At this stage and being an interim hearing, the failure to inform the Father of what she said occurred is a matter on which I place some weight.  But the matter on which I place the most weight is the fact of a final order.

    CONCLUSION

11. The orders that the Mother seeks are at risk of treating the final order as simply a stage in the child's life that can be reviewed.  The simple fact is that the Mother seeks to be excused from providing any detail about the final orders that she seeks until the release of the section 11F report.  It is significant to me that the interview involved in a child inclusive section 11F report contains within it the very mischief that the conventional interpretation of the rule in Rice & Asplund seeks to avoid.

12. The Father's outline of case and application pressed that I effectively have a default recovery order issued.  I am not prepared to make that order.  I expect the Mother to comply with these orders.  If she did not, then the Father would be able to have the matter listed before me at very short notice to the Mother where I would then consider the issue of the recovery order, and at which time I would consider whatever events that have arisen since this order, if any, and would consider what the Mother has to say.  Whilst it may well be that I would issue a recovery order and as I sit here, I do not know why I would not, but I would listen to and consider what the Mother had to say in the event that she did not comply with the orders that I am about to make.

13. The other matter that was discussed was the current regime.  Under the week about cycle, the Father's week would have commenced this Friday afternoon from after school.  Before the hearing concluded, the Mother left the hearing, so to speak, by travelling to the school to collect the child.  She remained represented by her counsel.  She is to be commended for having the common sense and wherewithal to, in the middle of these conflictual proceedings, recall that she needs to attend to collecting the child.

14. I do not propose, as sought in the application, to order that the Mother deliver the child to the Father as it appears to me, from what I have been told, that the Mother does not have a motor car and her evidence is that she travels by train.  Further, there are allegations of trouble and the potential for trouble between the Mother and the Father.  I am not prepared to find that there is no substance whatsoever in the Mother's allegations about the Father.  Hence, it is my view that the return to the week about regime should be by way of a back to the practice of school-to-school pick-up.

15. I also note that the Father did not seek make up time, as is not uncommonly sought in this type of enforcement application.  I am grateful to him and give him some credit for having the insight to realise that the Court, and indeed himself, can only achieve the achievable, rather than seeking to balance the books, so to speak, with the child's time though there may be applications in the future.  I note that the Father's position simply was to get back to the existing orders.  They are the orders that I will make.

I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       18 December 2020