Downing & Marinos

[2019] FCCA 881

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOWNING & MARINOS & ANOR [2019] FCCA 881

Catchwords:
FAMILY LAW – Interim parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC

Cases cited:

Goode & Goode (2006) FLC 93-286
Marvel & Marvel [2010] FamCA 240
Eaby & Speelman [2015] FamCAFC 104
Banks & Banks (2015) FamCAFC 36

Applicant: MS DOWNING

First Respondent: MS MARINOS

Second Respondent: MR DONOVAN

File Number: PAC 668 of 2016

Judgment of: Judge Newbrun

Hearing date: 4 April 2019

Date of Last Submission: 4 April 2019

Delivered at: Parramatta

Delivered on: 5 April 2019

REPRESENTATION

Solicitors for the Applicant: Ms Birtles of Birtles Legal

Solicitors for the First Respondent: Mr De Mattia of John R De Mattia & Company

No appearance by the Second Respondent

Solicitors for the Independent Children’s Lawyer Mr Samuel of Brian Samuel & Associates

ORDERS PENDING FURTHER ORDER

1. Commencing Saturday, 22 June 2019, the children [X] born … 2010 and [Y] born … 2012 shall spend time with the paternal grandmother on the third weekend of each month, from 10 am Saturday to 4 pm Sunday, with changeover to occur at the Suburb A residence of the paternal grandmother’s daughter Ms B.

2. The mother’s proposed Order seeking a variation of Order 11 of the Court’s Orders of 30 January 2019 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 668 of 2016

MS DOWNING

Applicant

And

MS MARINOS

First Respondent

And

MR DONOVAN

Second Respondent

REASONS FOR JUDGMENT

1. At the mention of this matter on 4 April 2019, the mother requested the Court to determine the issue of the variation of Order 11 of the Court’s Orders of 30 January 2019.  That Order provided that pending further Order, by consent, the mother shall take all necessary steps to ensure that the children do not come into contact with Mr C.  It is noted that Mr C is not the biological father of the subject children (see immediately below) but is the biological father of the child [D] born … 2017.  The mother is the biological mother of that child.  The mother sought the variation so as to permit Mr C to spend time with [D].

2. The mother (ultimately following submissions) sought a variation as follows (deleting the existing Order 11):

   Pending further Order, the mother is permitted to allow Mr C to come into contact with the children [X] born … 2010 and [Y] born … 2012 [the subject children] on not more than three occasions each week, with two of such three occasions to occur on the weekend during the daytime, and with the mother to be present during any such contact.

3. The paternal grandmother opposed the above proposed variation.

4. The Independent Children’s Lawyer’s (“ICL’s”) initial position was that Mr C should visit [D] during school hours, when the subject children would be at school, so as to minimise the risk of Mr C potentially causing harm to the subject children.  It is noted that the mother’s solicitor informed the Court that Mr C works during the daytime and cannot visit the other child during school hours.  Ultimately, following submissions, the ICL submitted that there was no Affidavit from Mr C, and that he relied upon the contents of the Child Inclusive Conference Memorandum and submitted that the Court should be cautious in making any proposed variation.

5. Further, at the above mention of the proceedings, the paternal grandmother sought an interim Order that she spend time with the subject children on the third weekend of each month in Sydney, with changeover to be at the residence of the paternal grandmother’s daughter, Ms B, at Suburb A.  The paternal grandmother consented to the subject children not coming into contact with the father during any such time spent by the maternal grandmother with the subject children.

6. The mother opposed the subject children spending any overnight time with the paternal grandmother.  She proposed that the paternal grandmother spend time with the children in Sydney, once a month, on either a Saturday or Sunday, from 10 am to 4 pm.

7. The mother submitted that the child [X] had been “off the rails” after spending five to six weeks with the paternal grandmother recently.

8. The mother submitted that the child [X] is not ready to spend two nights per month with the paternal grandmother.  She submitted that this child was presently receiving counselling from the school counsellor and it was proposed that she see a private counsellor.  She submitted that the paternal grandmother was telling this child that she did not have to obey the mother.

9. The ICL supported the children spending overnight time with the paternal grandmother on the third weekend of each month, from 4 pm Friday until Sunday 4 pm.  The ICL submitted that the Court could act cautiously and only allow the subject children to spend one overnight during any such third weekend.

10. The Court has considered all the material filed in these proceedings of the parties.

11. The paternal grandmother alleges that the child [X] was pushed in the back by Mr C, causing the child to hit a wall.  She also alleges that this child has disclosed to her, inter alia, that Mr C has grabbed the mother around the throat, leaving bruising; that he has threatened neighbours with a knife, and the child has pulled the knife out of the carpet after the incident; and that he has punched holes in doors.  It is also alleged that the paternal grandmother was informed by the police that they have attended the mother’s home twelve times over the past twelve months due to reports of domestic violence (see the Notice of Risk filed 22 January 2019 and the Affidavit of the paternal grandmother filed 16 January 2019).

12. The Court observes that the following children presently live with the mother: the two subject children aged nine and six and a half, another child [E] aged three years, and [D] aged sixteen months.

13. The Court further observes that the mother spends time with two other children from her relationship with Mr F; [G] aged thirteen, and [H] aged ten.

14. The paternal grandmother alleges that [X] has told her that she is afraid of Mr C.  The paternal grandmother makes other allegations of domestic violence perpetrated by Mr C towards the mother.

15. In the mother’s Affidavit filed 30 January 2019, she asserts that during the last year Mr C spent time with the child [D] at his sister Ms J’s house.  The mother asserted that she never left this child alone with Mr C and that she always stayed at that house during these visits.  The mother asserts that the last visit Mr C had with their child at his sister’s house was in about mid-January 2019.  The mother frankly stated that there was an altercation between her and Mr C after they separated in October 2018.  The mother asserted in paragraph 27 of that Affidavit that she and Mr C do not live together and that if the Court finds it necessary to do so, then she is more than happy to enter into an undertaking to keep Mr C away from the children.  In paragraph 55 the mother asserts that she is not in a relationship with Mr C, she has no intention of resuming a relationship with him, and “the children will not have contact with him if they spend time with me”.

16. The Court observes that in parenting proceedings between the mother and Mr C in the local Court at Suburb K, Orders were made on 9 January 2019 that the mother have sole parental responsibility for their child, that their child shall live with the mother, and that Mr C shall spend time with their child “at reasonable times as arranged between the parties”.

17. The Court observes that the paternal grandmother lives in Town L.  The mother lives in Sydney in Suburb M.

18. The mother, the subject children and the maternal grandmother were the subject of a Child Inclusive Conference on 25 March 2019.

19. The mother told the family consultant that the existing Order 11, referred to above, prevents Mr C spending time with their child.

20. The Court refers to the allegations that the paternal grandmother made to the family consultant in relation to Mr C’s actions when in the presence of the subject children.  She alleged, for example, that when the mother and Mr C fight, the subject children will take the two younger children and lock themselves in a bedroom.

21. The mother denied to the family consultant that Mr C continues to spend time at her home to see his daughter despite her no longer being in a relationship with him.  The mother denied that there was physical or verbal abuse in her relationship with Mr C, and further denied that Mr C had ever been abusive to the child [X].

22. The mother told the family consultant that she did not have any concerns regarding the subject children’s physical safety with the paternal grandmother.  However, she told the family consultant that the paternal grandmother was telling the children bad things about her.  The mother reported to the family consultant that the child [X] had been especially difficult since returning from Town L, and she was seeking counselling to support this child.

23. The mother told the family consultant that she wants to manage when the children spend time with and speak to the paternal grandmother.

24. Both the mother and the paternal grandmother separately reported to the family consultant that they do not have current communication regarding the children.

25. The mother told the family consultant that the paternal grandmother is able to get inside [X]’s head and that she had kept this child from speaking to her for eighteen days.

26. The child [X], aged almost nine years, was interviewed by the family consultant.  Inter alia, she stated at the outset that she did not like the paternal grandmother because the paternal grandmother had tried to keep herself and her sister.  This child stated that Mr C was the mother’s boyfriend.  She reported that the mother and Mr C argued and that “sometimes it gets worse and Mr C started yelling even more”.  This child reported that Mr C had asked her and her sister “the other night”, if they “had to go or stay”.  This child expressed an ambivalent relationship with both the mother and the paternal grandmother.

27. This child stated that she did not want to live with the paternal grandmother and reported that she would like to speak to her on the telephone once a week.

28. The family consultant spoke to [Y].  She is aged six years and five months.

29. [Y] stated that Mr C comes to their home “a bit”.  She stated that the mother and Mr C fought and that Mr C yelled and screamed at the mother.  This child stated that she wanted to live with the mother.  She stated that when she talked on the phone to the paternal grandmother the paternal grandmother spoke about the mother rudely.  She said that the paternal grandmother “puts things in our head, when she is not”.  When asked about spending holidays with the paternal grandmother, this child said that she was spending the next holiday (April school holidays) with the paternal grandmother.

30. Under the heading “Future directions”, the family consultant stated that if the Court determines that there is veracity to the paternal grandmother’s allegations regarding family violence towards the mother and the child [X] perpetrated by Mr C, the restriction in regards to Mr C appears to be suitably protective of the subject children.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel & Marvel [2010] FamCA 240, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   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 paragraph 100 their Honours amplified their comments and said:

   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.

3. Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:

   As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

4. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.

5. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

6. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

7. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

8. In relation to the mother’s proposed variation of Order 11 of the Court’s Orders of 30 January 2019, the Court has some concern with varying this Order.  It is of the view that it will not be in the best interests of the subject children to vary that Order, acting cautiously and conservatively.  The Court, in coming to this view, takes into account:

   a)The allegations made by the paternal grandmother relating to statements allegedly made to her by the child [X] in relation to Mr C.

   b)The statements made by the subject children to the family consultant at the Child Inclusive Conference on 25 March 2019 relating to Mr C’s behaviour towards the mother.  It is not without relevance in this context that the mother denied to the family consultant that there had been verbal abuse in her relationship with Mr C.

   c)The expert evidence of the family consultant relating to the continuation of the current restriction in relation to Mr C coming into contact with the subject children.

   d)There is no affidavit from Mr C.  There is no evidence, in admissible form, that Mr C cannot spend time with the child [D] during the subject children’s school hours.  For example, it may well be practical for Mr C to spend time with [D], facilitated by the mother, during his lunchtime hours.

   e)The statement of the mother in her Affidavit filed 30 January 2019 that if the Court finds it necessary to do so then she is more than happy to enter into an undertaking to keep Mr C away from the children.  She also stated that she has no intention of resuming a relationship with Mr C “and so the children will not have contact with him if they spend time with me”.

   f)On the material before the court, the Court has no confidence, at this interim stage, that the mother would be able to ensure that Mr C will not abuse the subject children if he was permitted to have contact with them while he was spending time with [D], in light of the allegations of domestic violence made against Mr C in respect to the mother.  Nor does it have confidence that the mother would be able to ensure that she and Mr C do not verbally abuse each other when in the presence of the subject children, were the Court to make restraining Orders seeking to have the mother control the conduct of Mr C.

9. As to the proposal by the paternal grandmother that she spend time with the subject children in Sydney, the Court has concerns with the subject children spending more than one overnight (during the third weekend of each month) when spending time with the maternal grandmother in Sydney.

10. In the view of the Court, and acting cautiously and conservatively, it will be the best interests of the children spend time with the paternal grandmother on the third weekend of each month, in Sydney, from 10 am Saturday to 4 pm Sunday, but commencing on Saturday 22 June 2019.  This commencement date will further allow the mother to have counselling occur for the child [X] before [X] starts spending time with the paternal grandmother.

11. The Court’s above view takes into account, in particular:

    a)The mother’s statements to the family consultant that she had no concerns regarding the subject children’s physical safety when with the paternal grandmother.

    b)On 4 April 2019 the parties agreed to restraining Orders, inter alia, that the parties be restrained from denigrating the other in the presence or hearing of the subject children (such restraining Orders, together with only one overnight, should minimise the risk, inter alia, of the paternal grandmother denigrating the mother and inappropriately influencing the children’s attitudes against the mother).

    c)The child [X] told the family consultant that although she did not want to live with the paternal grandmother, she would like to speak to her on the telephone once a week.  There is no apparent express statement by this child that she does not want to spend any time with paternal grandmother.  The child [Y] told the family consultant that she expected to spend the next April school holidays with the paternal grandmother.

    d)The mother is arranging for the child [X] to receive counselling.  The mother asserts that this child has been especially difficult since returning from the paternal grandmother recently.

    e)The mother’s willingness to have the subject children spend extended time with the paternal grandmother from 21 December 2018 until 13 January 2019. 

12. The Court observes that the mother has been the children’s primary carer from birth to date.  The Court infers from all the material before it that the subject children probably have a positive relationship with the paternal grandmother, albeit acknowledging the family consultant’s observation that the child [X] “appeared to be ambivalent about her relationship” with the paternal grandmother.  Subject to the paternal grandmother not denigrating the mother in the presence of the subject children (now the subject of injunctions), she would appear to have the capacity to provide for the needs of the children.

Summary

1. Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following interim Orders:

   (1)     Commencing Saturday, 22 June 2019, the children [X] and [Y] shall spend time with the paternal grandmother on the third weekend of each month, from 10 am Saturday to 4 pm Sunday, with changeover to occur at the Suburb A residence of the paternal grandmother’s daughter Ms B.

   (2)     The mother’s proposed Order seeking a variation of Order 11 of the Court’s Orders of 30 January 2019 is dismissed.

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 5 April 2019