DIN & GALE

[2020] FamCA 716

FAMILY COURT OF AUSTRALIA

DIN & GALE [2020] FamCA 716

FAMILY LAW – CHILDREN – Interim orders pending final hearing in September 2020.

Family Law Act 1975 (Cth)

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Din

RESPONDENT: Ms Gale

INDEPENDENT CHILDREN’S LAWYER: Northside Family Law Centre

FILE NUMBER: LEC 93 of 2019

DATE DELIVERED: Orders made 30 July 2020; Reasons provided 5 August 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 17 July 2020

REPRESENTATION

APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Ms Miller, Jensens Solicitors & Attorneys

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mannering, Northside Family Law Centre

Orders

IT IS ORDERED THAT

1. Orders 2, 3, 4 and 5 of the Orders made on 23 August 2019 are discharged.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Unless otherwise agreed between the parents in writing, the child Z, born in 2017, shall spend time and communicate with the father as follows:

   (a)commencing on Friday 31 July 2020: each Friday between 10.00 am and 3.00 pm, with such time to occur in a public place located in the N Town local area and changeovers to occur at the B Centre, N Town;  and

   (b)commencing on Sunday 2 August 2020: each Sunday between 10.00 am and 4.00 pm, with such time to occur in a public place located in the Suburb D local area and changeovers to occur at C Park, Suburb D; and

   (c)by telephone or FaceTime: each Tuesday at 6.00 pm with:

   (i)the father to initiate the communication at 6.00 pm; and

   (ii)the mother to ensure that:

   A.the child is available to receive the communication;  and

   B.the child has privacy during the communication; and

   C.if, for any unforeseen circumstances, the child misses the telephone/FaceTime call from the father, the child communicates with the father by telephone or FaceTime at 6.00 pm the following night.

2. The mother is entitled to have another person attend changeover on her behalf, provided that:

   (a)any such person is known to the child; and

   (b)she informs the father by text, sent no less than 48 hours prior to the changeover, of the name of the person who shall attend at changeover on her behalf; and

   (c)no less than 48 hours prior to the changeover, she provides the father with a photograph of the person who shall attend at changeover on her behalf.

3. The mother and father shall each:

   (a)keep the other parent informed at all times of a contact telephone number and notify the other within 48 hours of any change to the same;  and

   (b)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the child and these orders authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child;  and

   (c)inform the other parent as soon as reasonably practicable of any medical condition significant health issue or significant illness suffered by the child and these orders authorise any treating medical practitioner to release the child’s medical information to the other parent.

4. The mother shall keep the Independent Children’s Lawyer informed of her residential address at all times and shall notify the Independent Children’s Lawyer of this in writing by no later than 48 hours from the making of this order and shall notify the Independent Children’s Lawyer within 48 hours of any subsequent change to the same.

5. These orders authorise the day-care centre attended by the child to give each parent information about the child’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child (at that parent’s cost).

6. The parents are at liberty to attend any and all events held at the child’s day-care centre to which parents are normally invited to attend.

7. The father is not permitted to remove the child from her day-care facility for any reason.

8. Each parent will ensure that the child is not exposed to any adult sexual activity whilst she is in their care.

9. During the time the child is with either parent, that parent shall:

   (a)respect the privacy of the other parent and not question the child about the personal life of the other parent;  and

   (b)speak of the other parent respectfully;  and

   (c)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that the others do not denigrate or insult the other parent in the hearing or presence of the child.

10. Within seven (7) days of the date of these Orders, the parents shall enrol in a Triple P or equivalent parenting course and they shall provide a copy of the Certificate of Completion to the Independent Children’s Lawyer.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Din & Gale has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 93 of 2019

Mr Din

Applicant

And

Ms Gale

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The proceedings for final parenting orders for these parents’ child, three year old Z, who was born in 2017, are currently listed to commence on 21 September 2020. This listing is as a result of an earlier order expediting the hearing of the proceedings.

2. The previous parenting orders, made by Senior Registrar Spink on 23 August 2019 (the August 2019 Orders), provided for Z to live with her mother and spend time with her father in a public place:

   a)each Friday: from 10.00 am to 12.00 pm;  and

   b)each Sunday: from 10.00 am to 12.00 pm;  and

   c)each Tuesday: from 5.30 pm to 6.30 pm.

3. The August 2019 Orders also provided that Z’s time with her father may be extended for a further hour and may occur in any location suitable for children, provided such time occurred in the presence of nominated supervisors (Ms F; Ms G; Ms H or Ms K) and that the supervisors not leave Z alone with her father at any time. The Orders provided for change-overs to occur at B Centre in N Town.

Brief summary of the current position

1. The father said, in his May 2020 affidavit, that Z had not spent any time with him since the introduction of COVID-19 social distancing restrictions and that he had last seen her on 29 March 2020.

2. However, it was agreed at the hearing before me that Z had spent time with her father at L Town on 11 July 2020 – between the hours of 10.00 am and noon and 2.00 pm and 4.00 pm. As I understood it, it was agreed that the parents had been able to agree about this time occurring as the mother had said that she could not provide Z for time on Friday and Sunday as provided for in the August 2019 Order.

3. I was also told by the mother’s legal representative that Z currently attends day-care at M Childcare Centre at Suburb D between 9.00 am and 4.00 pm each Tuesday and Wednesday. It seems that she has attended this day-care facility since February/March 2020. It was agreed that both parents would be able to participate in any events held at that Centre in which parents usually participate.

4. It was also agreed that the father would not remove Z from her day-care.

The competing applications for interim parenting orders[1]

[1]Application in a Case filed 27 May 2020, as amended by Application in a Case filed 8 July 2020; Response to Application in a Case filed 19 June 2020.

1. Consideration of the competing proposals on an interim basis must occur within the context that, to date, Z has lived primarily with her mother and has spent only relatively limited periods of time with her father since the parental separation. It must also take into account that, at the final hearing, the mother intends to press the Court to make a finding that Z will be at an unacceptable risk of sexual harm if her time with her father is unsupervised, whilst the father will seek findings that the mother has a history of failing to support Z in maintaining a meaningful relationship with him, which he asserts is demonstrated by an asserted history of failing to facilitate Z’s time with him and failing, without appropriate cause, to comply with the terms of the August 2019 Order. The father’s position is that, consequently, the Court will be persuaded to conclude that it is in Z’s best interests to live primarily with him and spend time with her mother.

2. The father’s position, broadly summarised, was that it is currently in Z’s best interests to continue to live primarily with her mother and spend unsupervised time with him each Friday (from 10.00 am to 2.00 pm), each Sunday (from 10.00 am to 4.00 pm) and overnight each alternate Sunday, such that the time occur from 4.00 pm Sunday until 10.00 am Monday. He also contended that the Court should make an order that Z’s parents have equal shard parental responsibility for the major long-term issues relating to her.

3. The father also sought a specific order that Z spend time with him on Father’s Day (which is on Sunday 6 September this year) and that such time occur between 10.00 am until 5.00 pm.[2] He also proposed that he and Z communicate by telephone or FaceTime at 6.00 pm each Tuesday.

   [2]As particularised in the Amended Application in a Case filed 8 July 2020.

4. The father also sought other interim orders as particularised in his various interim applications.

5. Broadly speaking, the mother proposed that Z spend time with her father each Friday and Sunday between 9.00 am and noon and that such time continue to occur in a public place; that there be an amendment to the proposed supervisors to enable the parents to additionally agree about such persons; that changeovers occur at C Park, Suburb D; that she be accorded sole parental responsibility for the major long-term issues relating to Z; and that Z communicate with her father by telephone between 5.00 pm and 5.30 pm each Tuesday.

6. The mother also sought that she not be required to keep the father informed about her residential address: during the course of the hearing the father accepted this position.

7. After the Court raised the possibility of the mother keeping the Independent Children’s Lawyer informed of her residential address – so as to ensure that Z’s residential address is known in case of unforeseen emergency – both parents appeared to accept this as an appropriate compromise order.

8. Whilst both parents sought orders that they engage with a psychologist to discuss and/or develop a parenting behaviours plan to address appropriate parenting behaviour for Z (as has been recommended in the Family Report), they were unable to agree about the person who would be engaged to provide such assistance. Given this impasse, as I informed the parties at the hearing, I was not persuaded that it was now appropriate to make such an order. Of course, the absence of an order requiring attendance on a particular person for stated purposes does not prevent the parents compromising their respective positions and agreeing to start this engagement prior to the final hearing.

Discussion of those orders which are in Z’s best interests pending the trial commencing 21 September 2020

1. The manner in which the Court is to approach, consider and determine applications for interim parenting orders such as the present is well-known and requires no further elucidation.[3] As noted in Banks & Banks,[4] it is unnecessary for each statutory consideration to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion. Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which, until the final hearing in September, some approximately seven weeks hence, are in Z’s best interests.

   [3]Goode & Goode (2006) FLC 93-286; Banks & Banks (2015) FLC 93-637.

   [4] (2015) FLC 93-637.

2. The previous parenting order contained no specific order about parental responsibility for Z. Consequently, by virtue of s 61C(1) of the Family Law Act1975 (Cth), each of Z’s parents currently has parental responsibility[5] for her.

   [5]As that term is defined in s 61B of the Family Law Act1975 (Cth).

3. Z’s parents are in dispute about the order about parental responsibility which is in currently in her best interests. Given this dispute, the other factual disputes between them, that the final hearing will occur in mid-September 2020 and that there is nothing in the evidence to suggest that there is any particular imminent decision to be made about any major long-term issue relating to Z, I consider that it would not now be appropriate in the circumstances for the presumption that it is in Z’s best interests for her parents to have equal shared parental responsibility for her to be applied.[6]

   [6]s 61DA(3) Family Law Act1975 (Cth).

4. I also consider that determination of the dispute about the issue of the allocation of parental responsibility can appropriately occur at the trial later this year.

5. Given the allegations made by the mother about the father’s behaviour, I accept that, on an interim basis, it is in Z’s best interests that her time with her father continue to occur in a public place. I also note that, during the course of submissions, the mother’s legal representative raised no issue on her behalf about Z spending time with her father at, for example, the beach.

6. Given the difficulties associated with travel between Queensland (where Z currently lives with her mother after their relocation to this State after the break-down of the parental relationship) and New South Wales (where Z’s father continues to live), I consider it in Z’s best interests at present that she spend time with her father on two occasions each week – rather than on the three occasions previously ordered.  In this way, any requirement for her or the parents to travel between States will be lessened.

7. However, I also consider it in Z’s best interests that she be afforded the opportunity to spend time with her father in a public place in his local environment, as well as spending time with him in a public place in Queensland. The Orders made on an interim basis enable Z to participate with her father at the markets which occur each Friday in his local area and will require him to travel to Queensland each Sunday to spend time with her here in a public place. In this way, Z will only be required to travel once per week in order to spend time with her father.

8. I also accept that, as the mother wishes to minimise her interaction with the father, it is more likely than not to be in Z’s best interests that the mother is able to have someone else attend changeovers on her behalf – provided that any such person is known to the child and the mother gives the father notice of her intention to ask someone else to take Z to changeovers.

9. Having heard the submissions made on behalf of each parent about the manner in which Z is to communicate with her father between now and the trial in mid-September 2020, I consider it in her best interests that such telephone or FaceTime communication occur each Tuesday at 6.00 pm. I arrive at this determination on an interim basis in order to accommodate the reality that the father’s work hours are such that to require an earlier call seems highly likely to be problematic and result in even more difficulties and disagreements between these parents.

10. Given the opinions expressed in the Family Report and that both parents’ evidence includes some details about their respective attendance at a festival at which they each describe the other engaging in consensual sexual activity with another adult, I consider it in Z’s best interests that both of her parents ensure that she is not exposed to any adult sexual activity whilst in their respective care.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 5 August 2020.

Associate:     

Date:              5 August 2020