Dione & Massoud
[2022] FedCFamC1F 734
Federal Circuit and Family Court of Australia
(DIVISION 1)
Dione & Massoud [2022] FedCFamC1F 734
File number(s): SYC 9655 of 2021 Judgment of: SCHONELL J Date of judgment: 27 September 2022 Catchwords: FAMILY LAW – PARENTING – Interim Orders – Where orders had been made for the children to live with the maternal grandmother and to spend supervised time with the father – Where the older child ran away from the maternal grandmother and now resides with the father – Where the maternal grandmother contends that the father poses a risk to the children – Where the father sought equal shared parental responsibility of the children and unsupervised time with the child residing with the maternal grandmother – Where this is a case of risk and the Court must therefore act cautiously – Final hearing dates allocated – Orders made increasing father’s time with the younger child and for the older child to spend time with the maternal step-grandfather. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CA, 60B, 60CC, 69ZL
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Adamson & Adamson [2018] FamCA 523
Dione & Massoud [2022] FedCFamC2F 898
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Freeman and Freeman (1987) FLC 91-857; [1986] FamCA 23
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Marvel & Marvel (No. 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150
Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Division: Division 1 First Instance Number of paragraphs: 62 Date of hearing: 15 September 2022 Place: Sydney Solicitor for the Applicant: One Group Legal Counsel for the Respondent: Mr Watkins Solicitor for the Respondent: Solari & Stock Lawyers Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates ORDERS
SYC 9655 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MASSOUD
Applicant
AND: MS DIONE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
27 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.All outstanding interlocutory applications are dismissed.
2.Order 3 made by Judge Neville on 11 February 2022 be varied as follows.
(a)Pending further Order, Y shall spend time with the father for a period up to five hours on one occasion each week;
(b)Such time be supervised by a supervising agency as agreed in writing between the parties and failing agreement by B Service;
(c)The cost of supervision is to be paid for by the father; and
(d)Time shall commence and conclude as agreed between the parties in writing, and failing agreement as nominated by the supervising agency.
3.The parties do all acts and things to enable the child X to spend time with Mr N as follows:
(a)From after school Wednesday each week until 7.00 pm; and
(b)Each alternate Saturday between 9am and 3 pm.
That it be noted that the maternal grandmother may attend upon these visits in Order 3(a) and 3(b) hereof.
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).
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 by this Court under the pseudonym Dione & Massoud has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are interim parenting proceedings involving two children, X born 2006 and Y born 2015. The parties to the proceedings are the children’s maternal grandmother and their father. There are orders in place in relation to the children and these reasons need to be read in conjunction with the Reasons for Judgment delivered by her Honour Judge Neville on 11 February 2022 in Dione & Massoud [2022] FedCFamC2F 898.
Her Honour’s orders provided that the children should live with their maternal grandmother, that she should have sole parental responsibility, and that the children should spend three hours per week on a supervised basis with their father. The judgment and orders clearly contemplate a further interim hearing in circumstances where the matter had come on with some degree of urgency and there was no expert parenting evidence before the Court.
Subsequent to the making of those orders, X left the maternal grandmother’s care on or about 27 April 2022. He initially lived with his brother Mr D and is now currently living with the father. X has not spent any time with the maternal grandmother since leaving her care.
Each of the parties, by the time they came to make their submissions, sought orders different to that contained in their respective application. The maternal grandmother, for her part, did not seek an order that X be returned to her care. She sought orders that X spend time with his maternal step-grandfather and through her counsel in submissions indicated that she was not opposed to an increase in Y’s time with his father to approximately four or five hours per week provided that the time continue to occur on a supervised basis. The Independent Children’s Lawyer’s (“the ICL’s”) case was largely in accordance with the position of the maternal grandmother.
The father, for his part, sought orders that he and the maternal grandmother have equal shared parental responsibility for the children, that X live with him, that Y continue to live with the maternal grandmother, that X spend time with the maternal grandmother in accordance with his wishes, and that Y spend time with the father on an unsupervised basis, initially each Sunday for a period of a month and thereafter each Saturday and Sunday for daytime only. The father’s Minute of Order contained a notation that the father would encourage X to spend time with the maternal step-grandfather and maternal aunt.
Each of the parties filed extensive case outlines, which included numerous affidavits, some of which pre-dated her Honour’s decision. I indicated that I would require the parties to comply with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which limited the parties to a single affidavit each.
As a consequence, the maternal grandmother sought to rely upon the following documents:
(1)Reasons for Judgment of Judge Neville;
(2)Affidavit of the maternal grandmother filed 1 July 2022;
(3)Affidavit of Mr N filed 1 July 2022; and
(4)Affidavit of Ms P filed 12 September 2022.
The father, for his part, relied upon the following documents:
(1)Amended Application in a Proceeding filed 22 July 2022;
(2)Affidavit of the father filed 6 June 2022;
(3)Affidavit of Mr Q filed 13 September 2022;
(4)Affidavit of Ms C filed 22 July 2022.
All parties and the ICL made reference to the Child Impact Report dated 31 May 2022.
Background
Some context to the current dispute arises from the careful reasons of Judge Neville. I do not propose to record in this judgment all of her Honour’s reasons but record below the following matters from her judgment that are relevant to the current application.
Her Honour observed that the parents of the children were in a relationship that had spanned a number of years ending in 2015, albeit as her Honour described as “the children did not ever live with their parents in an intact family unit” (at [5]).
Her Honour recorded that the father was in prison for a number of years and was released on parole in late 2021. Shortly after his release, X went to live with his father and Y remained with his mother.
The mother died in late 2021 and Y came into his maternal grandmother’s care. Before her Honour, it was agreed that he would continue to live with his maternal grandmother. Her Honour records the following:
42.It is too early in these proceedings to determine, with precision, the nature of the children’s relationships with the father. I observe however that those relationships must, by virtue of circumstance, be limited, where Y appears to have been [less than two months] old and X was almost nine years old when the father was incarcerated; and at the time of this interim hearing, he had been in the community for a period of only [a few] months. It would appear that the father has been incarcerated for most of Y’s life and for a significant part of X’s.
…
47.By necessity, these reasons will focus on risk in the father’s care because insofar as the father makes contentions about the parenting arrangements for the children, it appears that he does not suggest that either of the children are at risk of physical or psychological harm arising from being subjected or exposed to family violence, neglect, or abuse in the maternal grandmother’s care.
…
54.As an adult, it would appear that the father has been convicted of a range of offences, including but not limited to driving offences, weapons offences, drug-related offences and assault, between 1985 and 2006.
…
67.On the basis of the evidence available about the father’s criminal history, I observe that his behaviour has occurred over a number of decades. Insofar as it was submitted that the father has been on good behaviour since his release and that he does not appear to have committed any criminal convictions for some years now, I observe that his release was only a few months ago and that he had been incarcerated for a period of [a number of] years prior to that. I also observe that his offending history spans many years.
68.Insofar as it was submitted that the Court would have confidence that the father would be deterred from the commission of further offences given the conditions of his parole, I observe that the 2015 convictions appear to have been committed at a time when the father was facing serious criminal charges in relation to the 2012 matters; and where it appears he was on bail conditions in relation to those matters. Where there is no evidence about those proceedings other than what appears in the criminal history, I cannot be as confident about the father’s parole conditions being a deterrent to the commission of further offences as the father would invite.
69.In relation to the evidence available about the father’s criminal history, I observe the counsel for the father informed me, on instruction, that the father denies illicit drug use since the early 1990s. It is difficult to feel confident in that information, having regard to a possession offence which appears to have been committed in 1998; and in the absence of information about the outcome of the charge in 2012.
…
90.It is difficult at this interim stage of proceedings to draw any conclusions about the matters contended by the maternal grandmother and disputed by the father in this regard. However, having regard to the matters that I have outlined, it would appear to me that the father has an extensive history of engaging in criminal conduct; that it was not disclosed in his affidavit; that the offences for which he has been convicted are serious – they relate to weapons and drugs; and that his two older sons were involved in the commission of some of those offences.
…
92.If Y or X were to be exposed to the behaviour that grounded those convictions, I consider that each of the children would be at risk, and I consider that there is a need to protect both children from being subjected to or exposed to family violence and criminal conduct which would, in my view, constitute some form of abuse or neglect whilst in the father’s care.
…
94.The father contends that X’s wishes to remain in the father’s care; and that his relationship with the maternal grandmother is presently strained. In that regard, he relies upon text message communication sent by X to the maternal family which is included either in the maternal grandmother’s tender bundle or annexed to her affidavit.
…
98.It would appear from those text messages that X certainly has some strong views towards the maternal family.
…
102.It appears that each of the children has relationships with the extended maternal family. Both the maternal grandmother and the maternal aunt give evidence of a strong involvement with the children by virtue of their regular contact with the mother, particularly during the period that the father was incarcerated. They speak of warm and loving relationships that they shared with each of the children. It appears that the father accepted that X had, if not a good relationship, then at least not a negative one with the maternal family prior to the father’s release from custody.
103.No explanation is given by the father in his affidavit as to how or why things appear to have become so bad, so quickly in terms of X’s relationship with the maternal family. This is curious in circumstances where it would appear that X, who had lived in the mother’s primary care for all of his life, appeared to have had regular contact with his extended maternal family and where it appears he had good relationships with them. In submissions, it was contended that things may have soured when the mother appeared to have relapsed into alcohol use in late 2021, but it is difficult to see how this came to impact on X’s relationships with his maternal grandmother and maternal aunt.
114.For the reasons earlier given, I have concluded that there is a need to protect both of the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence in the father’s care.
115.In the event that I am wrong in concluding that potential exposure to criminal activity is a matter that falls within the definitions of family violence, abuse or neglect, I otherwise consider that it is a risk factor for X and Y. If it were the case that the father was, for any reason, to be charged with any further offences and go to prison under his parole conditions, or for any other reason, it would represent another loss of a parent if X was to be living with him.
116.Whether or not the risks are likely to arise is unknown at this time. Observing the caution that the authorities urge at an interim stage, and observing the significant consequences for X were he to be exposed to any of the matters that grounded the father’s earlier convictions, I consider that X is at risk in the father’s household and that X should live, on an interim basis, with the maternal grandmother and with Y.
Whether time needs to be supervised
117.Having regard to the text message communication to which I have made reference earlier in these reasons; the heightened tensions that are presently in existence between the maternal and the paternal family; and the risks that arise from the history of criminality in this matter, I consider that the children would be at an unacceptable risk of harm in the father’s unsupervised care. I can see no way, at this point in time, of mitigating the risks to which I have made reference other than through supervision.
…
119.In the circumstances, I consider that the children’s time needs to be supervised so as to protect them from the risk of being subjected to or exposed to any denigration, any discussion about the proceedings, or anything that might compromise the children’s memory of their mother. I say that in circumstances where it would appear that there were difficulties in the relationship as between the mother and the father, and where I have not been able to make sense of the comment the father says he made in late 2021 as recorded in the ADVO complaint.
…
129.I have given careful consideration to this matter because it is important for children that their parents play a decision making role in their life. I have concluded that it is in X and Y’s best interests, however, that the maternal grandmother, on an interim basis, holds sole parental responsibility.
Subsequent to the making of those Orders on 27 April 2022, X ran away from his maternal grandmother’s care.
In mid-2022, the parties and children attended upon a Court Child Expert who prepared the Child Impact Report. Whilst both parties placed some significant reliance upon the Child Impact Report, it is to be noted that such a report has some significant reservations. The note at the commencement of the Child Impact Report is to the following effect:
NOTE: The Child Impact Report provides preliminary expert advice about the needs and experiences of children, to support decision making through Dispute Resolution processes and Interim Hearings. Any views expressed, or professional recommendations made, by the Court Child Expert in a Child Impact Report need to be considered within the limited nature and focus of this type of assessment.
The Court Child Expert observed:
4.[X] presented as polite and very mature for his age which may speak to his experiences throughout his childhood. [X] is in year 10 and reports that he did not like school previously however he has learnt to enjoy school with help from his father. [X] spoke about his aspirations to complete his Higher School Certificate (HSC) in year 12 and attend university […]. He speaks to the influence that his father has had on him finishing school and setting goals for himself in the future. [X] reports that he has been attending school every day whilst living at his brother’s home and enjoys playing [a sport] as an “escape”.
…
8.[Y] spoke warmly about [Ms Dione] and described her as “nice”, “always has a smile” and he reportedly enjoys going to the […] park with her to ride his bike. [Y] reports that he enjoys living with [Ms Dione] and recalled when [Ms Dione] would visit him when he lived with his mother to bring food over and take him to school. It seems that [Y] also has a strong connection to [Ms E], “Aunty […]”, who attended the registry with [Y] for the assessment. [Y] spoke lovingly about his Aunty and reports that he enjoys spending time with her during movie nights. [Y] described [Mr Massoud] as “very good” and “best ever” and spoke positively about his relationship with his father. It seems that [Y] enjoys the time that he spends with [Mr Massoud] and he also enjoys seeing his younger brother, [Z], and his step-mother, [Ms C]. [Y] reports that he feels safe with his father and only had positive things to say about him.
9.… [X] stated that “windows will be broken” and “chairs will be thrown” if he is made to live with [Ms Dione].
10.[X] reports that his maternal grandfather, [Mr N], has put a lot of time into him and still communicates with [X] from time to time to check in with him. [X] spoke lovingly about [Mr N] and stated that he believes [Mr N] is the only person in the maternal family who genuinely cares about him. [X] would be open to spending time with [Mr N] and reports that he misses spending time with him. [X] reports that he gets frustrated when his grandmother and Aunty reach out to him as he feels that blame is being shifted to him because he ran away from the home.
11.[X] spoke warmly and positively about [Mr Massoud] and is of the view that his father has taught him important lessons about school and life skills. [X] stated that he wanted to pursue a relationship with his father however he felt that he was unable to because of [Ms Dione]. [X] stated that he wants to live with his father with [Y] and he reports that [Y] loves his father and enjoys spending time with him. [X] also spoke warmly about his step-mother, [Ms C], and reports that she used to look after him and help him if he needed. [X] reports that [Mr D] has been supportive of him since he has lived with him and takes him to [language] lessons whilst also encouraging him to attend school. [X] also reports that his older brother helps him with homework. It is noted that [Mr D] resides with his wife and has four young children to care for which indicates that this arrangement is not sustainable for [X] long-term.
…
16.[Y] and [X] have experienced significant grief and loss as a result of the death of their mother which they are still coming to terms with. Whilst experiencing grief and loss it seems that they have also been involved in entrenched family conflict between the maternal and paternal side of the family. It seems that as a result of this conflict [Y] and [X] are now separated from each other which causes concern for their attachment and relationship with each other give that they are having minimal contact. There have been significant reports of ongoing family violence from both the maternal and paternal side of the family and it seems that both of the children have been exposed to this violence which is likely to have an impact on their mental health and overall wellbeing.
Developmental Considerations
17.From the assessment it seems that [Y] has developed sound social and communication skills and he had the ability to engage in the interview independently without support. [Y] has experienced grief and loss from a young age and he has also experienced a lot of change over the past year. Relationships and attachments are important for [Y] at this stage of development to provide him with a secure and safe base whilst he finds his own independence and has the opportunity to develop physically, socially and emotionally. It appears that [Y] currently feels torn between both sides of his family as he is longing for his brother and expressed that he would like to live with both his grandmother and his father. It is imperative that the caregivers in [Y’s] life make a conscious effort not to involve [Y] in the ongoing conflict as this will only be a detriment to his emotional wellbeing. [Y] is already vulnerable due to the loss of his mother therefore he needs to be encouraged to pursue positive relationships with both sides of his family, permitting that the relationships are safe and do not expose him to risk. It is also important for [Y’s] identity and sense of self when he is older that he has the opportunity to form connections with both maternal and paternal family members.
…
19.[X] is at the age where he has the capacity to form his own views in relation to where he wishes to live and who he wishes to spend time with. Given that [X] has run away from [Ms Dione’s] home before and has indicated he is not willing to go back; it seems that if he was made to live with his grandmother this would cause further resentment which would be a detriment to the possibility of the relationship being repaired in the future. [Y] is at a different stage of development and appears to have a different relationship with both [Ms Dione] and [Ms Massoud]. It seems that [Y] has significant attachments with his grandmother and the maternal side of the family however he also wishes to spend more time with [Mr Massoud] and the paternal side of the family.
…
22.… [Mr Massoud] stated that he would be supportive of [X] and [Y] maintaining relationships with [Ms Dione] and the maternal side of the family however it is questioned whether this would be achievable given the entrenched conflict and reports of violence in the past.
…
26.[Y] appears to have strong attachments to [Ms Dione] and the maternal side of the family. It seems that disruption to his living arrangement would be another significant change for [Y] and disruption to his routine. It is however noted that [Y] also needs the opportunity to form meaningful relationships with [Mr Massoud] and his brothers. Further assessment may be required to determine whether [Y] can form these connections in a manner that keeps him from risk of harm and what living arrangements would be in his best interests in the long term.
27.It seems that [X] is willing to spend time with the maternal grandfather which could be a good opportunity for [X] and [Y] to spend time together which will help to maintain their connection with each other. This will also maintain [X’s] connection to the maternal family should he wish to repair relationships in the future. [Mr Massoud] has agreed that he would be willing to support [X] to spend time with the maternal grandfather.
28.[X] would benefit from engaging in therapeutic intervention to provide him with a safe space to process his childhood experiences whilst he is experiencing grief and loss following the death of his mother.
29.[Ms Dione] and [Mr Massoud], along with all family members, should make all efforts not to denigrate each other or either side of the family in front of [X] and [Y]. [X] and [Y] have been in the middle of ongoing family conflict and efforts should be made to protect them from this conflict.
As a consequence of the significant trauma that has been occasioned to these children due to the recent death of their mother and matters going to their welfare generally, the Court determined that this matter required some urgent attention and determined therefore that the matter should be listed as soon as possible for a final hearing.
That hearing cannot occur until February 2023 and accordingly, the parties were invited to make submissions within the context that there would be a final hearing in approximately six months’ time.
Submissions of the ICL
The ICL submitted that the Court should not change the existing orders in relation to X even though X had in the words of the ICL “self-placed himself with his father”. The ICL submitted that there remains some concerns for X’s safety in the father’s care but, given X’s age and clearly stated views, there was not much that the Court should do.
The ICL submitted that the existing orders in relation to Y should remain in place, namely, that they should be supervised. The ICL submitted that documents produced under subpoena by the school gave the ICL significant concerns in relation to matters of risk, including a risk that Y may be influenced by his father in a way that appears X may also have been influenced. The ICL urged that the Court should err on the side of caution and continue supervision of Y’s time with the father but that the time could increase to four to five hours a week.
The ICL also submitted that the Court should make orders in the terms of the maternal grandmother’s Minute of Order providing for time between X and the maternal step-grandfather.
Submissions of the maternal grandmother
Counsel for the maternal grandmother identified that prior to X leaving his father’s care, he had been a happy boy doing relatively well at school.
The maternal grandmother’s counsel placed significant weight upon the questions of risk of harm raised by her Honour in her Honour’s judgment and also made reference to documents produced under subpoena by New South Wales Police and the New South Wales Department of Education. The maternal grandmother’s submission was that those documents raised significant concerns about the father’s parenting capacity, his attitude to the responsibilities of parenting as well the question of risk. In particular, counsel for the maternal grandmother identified that documents produced by New South Wales Police disclose that at the time when X left the maternal grandmother’s home, the police contacted the father. Those documents (Exhibit 4) record the following:
7.15 pm police spoke with the MP father [Mr Massoud] over the phone on… [Mr Massoud] advised police that he had been notified by a family member which he would not disclose, that the MP is safe. [Mr Massoud] expressed to police that the MP does not want to live with his Grandmother any further and [Mr Massoud] will not assist police in telling them the whereabouts of the MP. He advised that he was with a family member, and that he has [multiple siblings and] cousins and wished police “goodluck” in finding him before their court date on the 20th of May where he believes he will gain the custody of the children. …
(As per the original)
MP is a reference to X.
If it be the case that the father said those words to the police, then it reflects poorly upon his parenting capacity and his attitudes to the responsibilities of parenting. If those words were said, they are inconsistent with a parent who is placing the interests of the child above their own needs.
The maternal grandmother’s counsel submitted that documents produced by the New South Wales Department of Education also give rise to significant concerns. Those documents would appear to reveal that X has been told much more about his father’s criminal history. The content of the New South Wales Department of Education documents is significantly at odds with what X reported to the Court Child Expert. They add to the risks identified by her Honour in her judgment.
The maternal grandmother submitted that time between Y and the father could increase but was concerned overall about the influence of the father.
Submissions of the father
The father’s solicitor submitted that the Court needs to look at the arrangements that existed after the father’s release from prison in circumstances where the mother, prior to her death, consented to the children spending unsupervised time with the father. The father’s solicitor submitted that the Court needs to reflect upon matters contained in the Child Impact Report that speak favourably of X’s relationship with his father and the positive influence of the father.
The father’s solicitor submitted that the Court would not be satisfied that the children will be exposed to a risk of harm and that in circumstances where the father has been granted parole, then the Court should be comfortable in the conclusion that there has already been undertaken a risk assessment in relation to the father and that should satisfy the Court that the father does not pose an unacceptable risk of harm.
The father’s solicitor identified that the supervision costs are expensive. He contended that the maternal grandmother posed a risk of harm to Y as identified in part by her past conduct and in part exemplified by the orders that were contained in her Response to Application in a Proceeding filed on 1 July 2022. The father’s solicitor identified that there was nothing in the material that would give the Court cause for concern about a risk posed by the father.
When specifically asked about the father’s attitude to the proposals that X spend time with his maternal step-grandfather, the father’s solicitor indicated that the father was supportive of that as set out in the notation to his orders but that he would not force X to spend time with the maternal step-grandfather nor would he consent to an order to that effect.
Applicable law
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”), I set out in short form my reasons.
This is an interim hearing and there has been no cross-examination. By virtue of that fact, I am unable to make findings in relation to the disputed facts. However, just because I am unable to determine or resolve a disputed fact and/or assertion does not mean that I ignore the allegations of risk.
In Marvel & Marvel (No. 2) (2010) 43 Fam LR 348 (which has been cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), the Court observed:
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at [100] their Honours amplified their comments and said:
[100] The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Adamson & Adamson [2018] FamCA 523, McClelland J (as he then was) observed:
50.It is to be observed that that reference in SS v AH to "probabilities" does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, "possibilities" are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those "possibilities".
Parenting proceedings are governed by Pt VII of the Act.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC of the Act. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
The Full Court in Goode & Goode (2006) FLC 93-286 (“Goode”) set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. Consistent with the guidelines outlined in Goode and to the extent relevant and necessary, I have in these reasons identified the competing proposals of the parties, the issues in dispute, and the contested facts.
Primary and additional considerations
In applying the primary considerations, the benefit to the child of having a meaningful relationship with both parents is subservient to the need to protect the child from the risks and harms identified in the subsection.
A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright (2007) 37 Fam LR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 Fam LR 439).
Both parties contend that it is important that Y have a meaningful relationship with the father. They differ as to the way in which this can occur. I am satisfied that the orders that I make, for the short time in which they will be operative, are such as to ensure that Y is able to maintain a meaningful relationship with his father. I note that the maternal grandmother is not seeking orders in relation to X and therefore accordingly, X will remain in the primary care of his father.
As stated, I am required when applying the primary considerations to give greater weight to the need to protect a child from risk and harm than to the benefit to the child of having a meaningful relationship with the child’s parents.
I note that there was no appeal from her Honour’s orders. During submissions, I was not taken to any part of her Honour’s judgment to suggest an error of fact or law, that her Honour had taken into account an irrelevant consideration, or that her Honour had erred in a particular way. Repeated applications in relation to children are inconsistent with their welfare.
It has been clearly articulated it numerous authorities that the Court should not “lightly entertain an application to reverse” an earlier order unless it is satisfied that there are changed circumstances (in the sense that a new factor has arisen or some material factor was not disclosed at the previous hearing) which would justify the reversal (see Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”) at 78,095). It is sometimes inelegantly described as the rule in Rice and Asplund.
In Freeman and Freeman (1987) FLC 91-857, Strauss J said at 76-470–76-471:
… Once the court … has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. …
The Full Court of the Family Court of Australia considered the so called rule in Miller & Harrington (2008) FLC 93-383. Relevant passages from the majority judgment are set out in full below.
72. It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
73. The application of the rule occurs within proceedings to which the provisions of Division VII of the Act apply. More specifically, the application of the rule occurs as part of “child related proceedings” within the meaning of s 69ZM. Accordingly, the court hearing argument as to the application of the rule at a preliminary stage is bound to apply the provisions of Division 12A of the Act.
74. Included among the mandatory requirements upon a court are: the obligations to (as seen) “decide which of the issues in the proceedings require full investigation and which may be disposed of summarily” (s 69ZQ(l)(a)) and to "deal with as many aspects of the matter as it can on a single occasion" ( s 69ZQ(l)(g)).
75. The provisions of s 69ZR(I ), empower the court to '”make a finding of fact in relation to the proceedings”, to "determine a matter arising out of the proceedings” and to "make an order in relation to an issue arising out of the proceedings” if the court considers that “it may assist in the determination of the proceedings”. The section goes on to provide (s 69ZR(2)) that the court may do any of the matters mentioned “. . . at the same time as making final orders'”.
76. The terms of s 69ZN of the Act, which set out the “principles for conducting child related proceedings” also apply to a hearing in which the rule in Rice and Asplund is applied at a preliminary stage. In particular, s 69ZN(3) and (5) provide:
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
…
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned against family violence, child abuse and child neglect; and
(b) the parties to the proceedings against family violence.
77. In SPS and PLS (2008) FLC 93-363, Warnick J held:
64..... in strict logic, if a judge is unable to determine on the papers if a change of circumstances, sufficient to embark on a fresh hearing of a parenting issue exists, then what the judge should embark upon is a hearing directed to that question, not one directed to "how the welfare of the children should best be served''
65. However, ellipsis in logic or not, subsequent authority has clearly reiterated that if the rule is not applied as a preliminary matter, then the hearing that follows is a full hearing of the “custody dispute”
78. Those statements can be seen to be supported by the earlier authorities referred to by his Honour. (See paras 66 - 68 of Warnick J’s judgment). Warnick J goes on to say:
69..... In reality, the facts that relate to the best interests of children per se and to the determination of such questions as whether there has been a change of circumstances of sufficient magnitude to justify a fresh consideration of parenting arrangements are likely to be identical or at least intertwined and to the extent that the facts are otherwise, they may well not be susceptible of identification or assessment for weight until all of the evidence bearing upon factors that relate to a child's best interests are before a court. The nature of the hearing that follows if the Rice v Asplund rule is not applied as a preliminary matter, as described by authority, may well be the wise and practical choice.
79. Later, Warnick J says:
81. Thus, in my view, when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of the party to appear or some lack of compliance with form and procedure, but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will, or ought be, about the interests of the child in not being subjected to further litigation, is more powerfully in the child's welfare, than to allow the application to continue.
80. In our view, that passage need not be taken as saying that the only way in which the rule in Rice and Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest.
81. Nor, as presently advised, do we think that the authorities cited by Warnick J in SPS preclude the possibility that, in a "preliminary" hearing for the purpose of ascertaining if an application for parenting orders should go no further because of the rule in Rice and Asplund, some resolution of factual disputes may occur, for example, whether a change of circumstances has or has not occurred.
82. However, the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.
83. This observation may be behind the approach that either the case of the applicant for parenting orders is, at a preliminary stage, taken at its highest, or the hearing embarked upon is an enquiry into all matters relating to the best interests of the child or children.
84. On the other hand, there is authority to suggest that these are not the only legitimate procedures. In Collivas & Cassimatis [2007] FMCAFam 293, Wilson FM, after noting that one party submitted that the other's application should be summarily dismissed as it did not overcome the threshold imposed by cases such as Rice and Asplund, said:
... questions arise as to the procedure to be adopted on this application. The first question is whether the threshold question should be decided as a preliminary issue, or whether there should be a full hearing of the evidence. The second question is, assuming that the threshold question is decided separately how the evidence adduced by the parties should be treated for the purpose of determining that issue. For example, if the Court looks only to the affidavit evidence adduced by the applicant and determines whether, on that material, the case should be allowed to go forward, then it seems to me that there is no point allowing the respondent to put on further affidavit evidence. On the other hand, if in determining the threshold issue the Court effectively conducts a mini-trial, then the respondent should be afforded the opportunity she seeks to adduce further evidence in reply to that served late by the applicant.
85. Among the authorities to which Wilson FM referred was King & Finneran (2001) FLC 93-079 at p 88,367 where Collier J said:
44. To apply the test in Rice and Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings ....
86. Wilson FM also said, of the decision in L & L (1992) FLC iJ92-274, that the Full Court of the Family Court approved of the judge at first instance dealing with a question of whether to permit a re-opening of parenting issues as a preliminary issue and to restrict cross-examination accordingly. He said that, in that case, evidence was adduced from a court counsellor who was cross-examined and that the Full Court endorsed the approach taken in that case.
87. However, the learned Federal Magistrate continued:
18. What the cases do not make clear is the process that the court should follow if it decides the threshold question in advance on a preliminary basis. That is, should the application be dealt with as on a demurrer or strike out application, and the court only look at the material of the applicant and decide, on that material alone, whether, assuming it is accepted, there is sufficient evidence to warrant the earlier orders being revisited. Or should the court treat the application similarly to a summary judgment application, and look at the material of both sides, and decide whether there is a serious issue raised which justifies the earlier orders being revisited. Or should the court effectively conduct a trial on the preliminary issue, with evidence and cross examination on the alleged change in circumstances.
19. There is some guidance as to the approach to be adopted. In R & B H, supra, the use of language that the court should be left in no doubt that it is necessary to revisit the parenting orders supports a critical analysis of the applicant's material. Although the passage from King & Finneran seems to suggest that court looks at all material then available to the court, which encompasses the material from both sides, it seems to me that the court should logically follow a three step process, sequentially dealing with the three questions articulated in paragraph 18 above. Each case will vary of course as to the stage at which the decision can be made that there is/is not sufficient evidence to warrant a re-opening of the parenting issues. As the learned authors of Australian Family Law & Practice, Brown (sic) & Fowler, observe at [ 16-360], the Full Court of the Family Court has made it clear that the question of whether there were circumstances which required a reconsideration of a parenting issue might, but need not, be determined as a preliminary issue. However, the court may consider that in light of the alleged changed circumstances, it was more appropriate to consider all the facts of the case before deciding whether the changes (sic) circumstances existed. An applicant's material might disclose no change in circumstance such that the application can be summarily dismissed without a respondent being required to put on evidence. An applicant's material might raise the suggestion that there is a changed circumstance which requires investigation but after reading the respondent's material the court might be satisfied that there is nothing in the point raised. The court may, as a matter of discretion determine the threshold issue without testing the evidence. Alternatively there maybe contested issues of fact as to whether there are changed circumstances in which case a court may need to hear from witnesses and allow cross-examination.
88. In the following paragraph, Wilson FM set out passages from the decision of the Full Court of the Family Court in Saad and Saad (1993) FLC i]92-332.
89. We refer to several of the paragraphs quoted, as they bear on the question under discussion:
(3) Although it may be inappropriate, and is often unhelpful, in proceedings in relation to the guardianship and custody of or access to a child, to treat either party as bearing an onus of proof in relation to the welfare of the child, where a party applies for the variation or discharge of an existing order of that kind that party bears at least a forensic onus of placing before the Court sufficient evidence of changed circumstances since the making of the existing order upon which the Court could be satisfied that it is in the interests of the welfare of the child to vary or discharge that order. (Rice and Asplund (1979) FLC J90- 725; Freeman and Freeman (1987) FLC 9 l-857.)
(Emphasis in original)
I am not satisfied that there has been any change of circumstances that warrant a reconsideration of the issue about supervision of Y’s time with his father. Whatever be the change occasioned by X at his age choosing to live with his father does not mean that the risk as determined by her Honour in relation to supervision of Y’s time has changed. It has not. The reasons why X has chosen and the circumstances operating that led to that decision will be explored at the final hearing.
Even assuming I were wrong as to whether there had been a change of circumstances, I cannot ignore the allegations of risks that are raised by the evidence. I cannot resolve the competing factual disputes that are identified in the judgment of her Honour Judge Neville and in the material produced by New South Wales Police and the Department of Education. The authorities guide that I should act cautiously and conservatively in such circumstances.
I do not accept the submissions of the father’s solicitor. I am of the view that there remain and are significant risks to these children. Those risks are amply identified in her Honour Judge Neville’s judgment and there is no matter that has arisen subsequent to the delivering of her Honour’s judgment that suggests that those risks have disappeared or ameliorated. Indeed, if anything, the documents produced by New South Wales Police and the Department of Education identify that the risks remain the same and if not are heightened. I am of the view that there continues to be a risk to Y in the event that supervision were lifted. In particular, I note that there was no recommendation made by the Court Child Expert that there should be a lifting of the restriction in relation to supervision in so far as it related to Y.
Those risks include the potential exposure of Y to criminal activity and a potential risk of Y being influenced in a negative way by his father. The Child Impact Report does not contend that there is no risk and indeed quite to the contrary contends that there remain risks in the proceedings. I am not in a position whereby I am able to confidently disregard such risks. As the authorities make clear, possibilities are a legitimate basis for a finding of risk.
One must always be cautious in interim proceedings about unintended consequences. It is for good reasons that the authorities direct judges to act with caution. I am concerned about the degree of risk that is attenuated by the orders as proposed by the father. I am also concerned about matters in relation to the father’s parenting capacity generally. In particular, the documents produced by New South Wales Police raise some significant concerns in that respect.
In determining what is in the best interests of the children, I will now turn to the additional considerations so far as they are relevant.
There is ample evidence as to X’s views about not wanting to spend time with the maternal grandmother. I note that no orders are pressed for his return. There is clear evidence as to the views of Y, albeit I recognise his age.
I accept that both children have a relationship with their father and, in the case of X, clearly had a relationship with his maternal grandmother. The reasons for the breakdown of that relationship remain unclear and unresolved and that will be clearly a focus of the final hearing.
A considerable focus, for the purposes of interim proceedings, is a consideration of the factors identified in s 60CC(3)(f) and (i) calling into focus the insight and capacity of the parties to place the children’s needs above their own and the attitudes of the parties to the responsibilities of parenthood. In that respect, I am concerned about the father’s attitude in relation to the orders that are proposed for time between X and the maternal step-grandfather. The material contained in the Child Impact Report clearly identifies that X wishes to see his maternal step-grandfather. It may well be that this is the only connection that X is able to maintain and possibly retain with the maternal side of the family given his current attitude. It reflects poorly upon the father that he would not consent to the orders that were proposed by the maternal grandmother and the ICL. It is not sufficient for the father merely to say that he will not compel his child, given the child’s age, to do something. I do not accept that the father does not have significant agency over X.
In Mulvany & Lane (2009) FLC 93-404, the Full Court constituted by May and Thackray JJ stated as follows:
76.It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Emphasis in original)
I am satisfied on the material before me that the primary consideration of the need to protect the child from a risk of harm is the most pressing and prevailing consideration and overwhelms any of the other matters that might otherwise be a relevant consideration within the terms of s 60CC(3).
This is a case all about risk. There is an extremely poor co-parenting relationship, a high level of distrust and there are allegations of risk. I am not, within the confines of this hearing, able to resolve the competing allegations.
Consistent with the obligation to act cautiously for the above reasons, I decline at this stage to make the orders the father seeks for parenting orders. These matters will have to await a final hearing, which I note is to take place in about five months’ time.
The consequence of the orders clearly will be that the children will be separated and Y will continue to remain in care of his maternal grandmother, whilst X will remain in the primary care of his father. This is an undesirable outcome but in circumstances where I am unable to make findings, where there is a question of risk, and the fact that the final hearing will be in approximately five months’ time, it unfortunately will have to remain the case until the Court is able to assess properly all of the evidence including with the benefit of more substantive expert evidence.
I do not regard it as being in the best interests at this stage for time in relation to Y to be unsupervised but I am satisfied that his time with his father should increase to up to five hours once a week. It is a matter for the father as to what he can afford by way of supervision but I will make orders that it can increase up to five hours. I am of the view that the orders as proposed by the ICL and the maternal grandmother for time between X and his maternal step-grandfather are in X’s best interests. They are consistent with X’s views and with the recommendations in the Child Impact Report and I propose to make such orders.
I am not satisfied that at this stage, notwithstanding that X is residing with his father, that it is appropriate that the orders in relation to parental responsibility should change. In that respect, I note that there is a short time between now and the final hearing when the Court will be in a better position to determine what the appropriate arrangements are moving into the future.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 27 September 2022
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