EDEN & KINGSTON

[2016] FCCA 2144

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDEN & KINGSTON [2016] FCCA 2144

Catchwords:
FAMILY LAW – Children – interim parenting – four children – children living with father since 2011 – retention of one of the children by mother in May 2016 – separation of siblings – allegations of family violence – parental conflict – presumption of equal shared parental responsibility rebutted – children to live with father and spend time with the mother.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA, 67T, 67V

Cases cited:

Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

Keats & Keats [2016] FamCAFC 156
SS v AH [2010] FamCAFC 13
Mazorski & Albright [2007] FamCA 520 at [26]
McCall & Clark [2009] FamCAFC at [121]

Applicant: MR EDEN

Respondent: MS KINGSTON

File Number: PAC 1016 of 2016

Judgment of: Judge Obradovic

Hearing date: 18 August 2016

Date of Last Submission: 18 August 2016

Delivered at: Parramatta

Delivered on: 19 August 2016

REPRESENTATION

Appearing for the Applicant: Ms Slewa

Solicitors for the Applicant: Bell Lawyers

Appearing for the Respondent: In person

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The father shall have sole parental responsibility for the children:

   (a)W born (omitted) 2001;

   (b)X born (omitted) 2003;

   (c)Y born (omitted) 2005; and

   (d)Z born (omitted) 2007.

2. The children shall live with the father.

3. W and X shall spend time with the mother in accordance with their wishes.

4. Commencing 26 August 2016 and each alternate fortnight thereafter, Z and Y shall spend time with the mother from Friday after school (or such other time as agreed between the parties) to 6pm on Sunday.

5. During the school holidays the children shall spend time with the mother as agreed between the parties but failing agreement for the first half of each school holiday period.

6. Pursuant to s68B of the Family Law Act1975 the mother is restrained by injunction from:

   (a)physically disciplining the children or any of them;

   (b)assaulting, molesting, harassing or threatening the children or any of them; and

   (c)engaging in conduct that intimidates the children or any of them;

7. Pursuant to s.67Q and 67U of the Act the mother is prohibited from removing or taking possession of Y except in accordance with these Orders.

8. Pursuant to s.68L of The Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children, W born (omitted) 2001; X born (omitted) 2003; Y born (omitted) 2005; and Z born (omitted) 2007 and the Legal Aid Commission of New South Wales is requested to provide such representation. 

9. The parties are to provide to the Independent Children’s Lawyer, within 48 hours of receiving notice of their appointment, all documents thus far filed by the parties in these proceedings together with all existing Orders and copies of any relevant reports.

10. Each of the parents is restrained from denigrating any member of the other’s household in the presence or hearing of the children or any of them or permitting or allowing any member of the parent’s household to do so.

11. The matter is listed for further directions at 11.30am on 15 November 2016.

12. Liberty is granted to the parents and the independent children’s lawyer to apply to have the matter re-listed on 7 days’ notice.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC1016 of 2016

MR EDEN

Applicant

And

MS KINGSTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Initiating Application filed 24 June 2016, the father sought a number of interim orders, including an order that the Initiating Application be heard on short notice. The application for short notice was refused by the Registrar on 21 June 2016, and the matter was listed at the first available date being 17 August 2016.

2. Before he commenced the parenting proceedings, the father had filed an Application for Divorce on 17 March 2016 which the Respondent mother sought be dismissed. The Divorce Application came before the Court on 21 June 2016 and was listed for hearing at 10am on 18 August 2016.

3. Ultimately both the interim application contained in the Initiating Application and the Divorce Application were heard on 18 August 2016, with the divorce granted by consent.

4. The orders sought by the father in the Initiating Application were as follows:

   a)the appointment of an Independent Children’s Lawyer;

   b)for the parties and children to attend a Child Inclusive Child Dispute Conference;

   c)a Recovery Order with respect to the child Y born (omitted) 2015;

   d)that the children W born (omitted) 2001, X born (omitted) 2003, Y born (omitted) 2005 and Z born (omitted) 2007 live with the father;

   e)that W and X spend time with the mother in accordance with their wishes;

   f)that Z and Y spend time with the mother each alternate Saturday with such time to be supervised through the (omitted) Children's Contact Centre; and

   g)other consequential orders.

5. At the commencement of the day the parties were ordered to attend a Child Dispute Conference, such conference being reportable. A Memorandum to the Court was produced by the Family Consultant, Ms B.

6. The father indicated to the Family Consultant that he wanted W and X to spend time with their mother as per their wishes and that Z and Y spend time with their mother each alternate weekend. This is a significantly different position to the one in his Initiating Application.

7. The father relied on his Affidavit sworn 15 June 2016 and filed on 24 June 2016.

8. The mother relied on her Affidavit sworn 17 August 2016 filed on the same day. The mother sought the orders contained in her Response namely for the status quo to remain. The mother in her Affidavit indicated that she agreed to the order for the appointment of an Independent Children’s Lawyer and for the parties to attend a Child Inclusive Child Dispute Conference.

The Law

1. In proceedings for Recovery Order, the Court may subject to section 67V of the Family Law Act1975, make such Recovery Order as it thinks proper (s67U). Pursuant to section 67V in deciding whether to make a Recovery Order in relation to a child a Court must have regard to the best interest of the child as the paramount consideration. Standing to apply for a Recovery Order is set out in s.67T and I am satisfied that the father is at least a person who is concerned with the care, welfare and development of the child such that he may bring the recovery application. He is also a parent with whom the child is to live under a parenting order if his application is acceded to by the Court.

2. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.

3. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

5. In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. 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 the child. In applying the considerations set out in subsection 60CC(2), the Court is to give greater weight to the consideration set out in paragraph (b).

6. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence: s60CG (1)(b)[1]. The Court may include[2] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [1] See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]

   [2] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

7. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.[3]

   [3] s61DA(3)

8. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents.  If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[4]

   [4] MRR v GR [2010] HCA 4 at [15]

9. The Full Court in Goode v Goode[5] mandated that this legislative approach must be followed in all parenting cases and in particular set out the procedural steps to be followed on an interim application, such as this one, namely:

   [5] (2007) 36 Fam LR 422, (2006) FLC 93-286

   (a)     Identifying the competing proposals of the parties;

   (b)     Identifying the issues in dispute;

   (c) Identifying any agreed or uncontested relevant facts;

   (d)     considering the matters in s.60CC that are relevant and, if      possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)     deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)     if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)     if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;

   (h)     if equal time is found not to be in the child’s best interests, considering  making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;

   (i)     if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of  consideration of one or more of the matters in s.60CC;

   (j)     if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and

   (k)     even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”

10. As stated by the Full Court in Keats & Keats [2016] FamCAFC 156 at [9]

    …the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, namely, that apart from relying upon the uncontroversial or agreed facts, a judge may 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.

    are, with respect, of relevance to the present proceedings.

11. I have already set out the parties’ competing proposals.

Uncontested Relevant Facts

1. The father was born on (omitted) 1975, he is 41 years of age.

2. The mother was born on (omitted) 1974, she is 42 years of age.

3. The parties were married on (omitted) 2006 and a decree nisi was made on 18 August 2016.

4. There are four children of the relationship:

   a)W born (omitted) 2001;

   b)X born (omitted) 2003;

   c)Y born (omitted) 2005; and

   d)Z born (omitted) 2007.

5. Between mid-late 2011 and 1 May 2016 all four children lived with the father and spent time with the mother.

6. On 1 May 2016 the father received a text message from the mother informing him that the child Y would not be returning to live with him. The father did not consent to the child living with the mother but they did initially agree that Y would spend time with the father every second weekend.

7. The last time that Y has spent time with the father was on 22 May 2016. 

8. The other three children have not spent time with the mother since at least late April 2016. Y has not spent time with her siblings since 22 May 2016.

9. Until 1 May 2016, Y attended (omitted) Public School together with her sister Z. W and X attend (omitted) High School. Y is in year six.

10. Since May 2016 Y has been attending (omitted) Public School, a decision made by the mother and without any consultation with the father.

11. On 24 May 2016 an interim Apprehended Domestic Violence Order was made for the protection of X from the mother.

12. On 15 August 2016 a final order for a period of nine months was made for the protection of X from the mother.

Disputed Facts

1. There are a number of disputed facts, mostly dealing with allegations of domestic violence during the parties’ relationship and also post their relationship.

2. The mother alleges in her Affidavit that there was physical and verbal abuse both ways during the parties’ relationship and that the father would degrade the mother in front of the children by making jokes about her weight and physical appearance. She says she often retaliated physically to the father after being slapped or pushed by the father.

3. The father alleges that during the parties’ relationship the mother was verbally abusive towards the children and that she was physically and verbally abusive towards him.

4. The father reports that recently the children W and X have said to him “Mum calls us little bastards and cunts because we don’t do things for her.  She also calls us little brats and says we are spoilt.” The children have also reported to the father that the mother has said to them “I shouldn’t have had you I should have aborted you, I wouldn’t have had to go through all this.”

Section 60CC Factors

Views of the children, Children’s relationships and Separation of Siblings

1. The mother stated to the Family Consultant that Y has expressed a strong wish to remain living with her and that she had been expressing this wish for some time.

2. In a text message sent to the father on 1 May 2016, the mother stated:

   Y is refusing to come back there. I made her last time (13/3/16) and she has been wanting for the last 6 weeks to live with me. She is now refusing to go back to u. So she will now be living with me.

3. Taken at its highest, the text message is evidence that the child only started expressing a wish to live with her mother from about mid March 2016 and that the mother did not do anything to discuss the issue with the father but rather let the child decide. Y was not yet 11 years old at the time that she was permitted to make this decision by the mother.

4. In circumstances where Y was one of four siblings living with her father, the fact that the mother supported Y in leaving her home and siblings and changing her school without any notice is indicative of a lack of insight. The mother does not in her evidence state that she had thought about how separating Y from her father, siblings, friends and home would impact upon Y or any of the other children. The mother’s evidence is simply silent on the issue.

5. It is clear from the text messages between Y and the father, that the child is confused about being separated from her father and her siblings, when she says things such as “Stuff is playing on my mind… like why the kids miss me”

6. Y says in text messages to her father:

   “I don’t want to live there I only want to visit but not until the stuff with X is done”

   “Y are u trying to force me back to you house dad?”

   “taking mum to court for me to go back there”

   “I’m not better there. I love being here with mum”

   “I’m not going back. I want to stay with mum… I’ll just keep running away”

7. It is concerning that Y is aware that there are things going on with X and that she does not want to see her siblings until those issues are sorted.

8. It is possible to infer from these text messages that Y feels that she has to take her mother’s side in the “dispute” between her brother and her mother. It is concerning that Y, if not all of the children, are aware of the parental conflict.

9. In other text messages said to be between the father and Y, the child says to the father “I made my decision u need to support it” to which the father replies “I don’t think this is Y”. I infer from this message said to be from Y that she has her mother’s full support and encouragement with respect to her purported stance.

10. The mother indicated to the Family Consultant that she has been in contact with Z who wants to see her. There was no other evidence of Z’s wishes, how she might be feeling about Y’s absence or of her relationships with her parents.

11. Both parents have stated that X does not want to spend time with his mother at the moment. According to the father’s statement to the Police made on 3 May 2016, on 21 April 2016 X told his father that the mother had hit X with a coat hanger because the children did not make their mother’s bed properly. X was interviewed by the Police as a result of this complaint and a final Apprehended Domestic Violence Order was made on 15 August 2016 as noted earlier.

12. There is no evidence as to what W’s wishes are but the parents agree that W and X should spend time with their mother in accordance with their wishes.

13. The children have been living as a family unit with their father from 2011 until May 2016. In the children’s lives this is a very long time, particularly for the younger children Y and Z.

14. The father is in a relationship with Ms A, who has two children from a previous relationship, A, who is 15 years old and B, who is 11 years old. B was going to the same school as Y before May 2016. The father says in his Affidavit that all of the children get on well with each other, while the mother says that Y did have some difficulties with B.

15. The mother has two other children from a previous relationship who are either adults or close to adulthood. There is no evidence of whether they live with the mother or of their relationships with the subject children.

16. Both parents confirmed to the Family Consultant that the children fight with each other.

17. Y, on the face of the text messages, appears to have a close and loving relationship with her father. She seems to be missing her father and her siblings, something which the mother confirmed when speaking to the Family Consultant. She also appears to have a close and loving relationship with her mother.

18. It is not clear on the evidence why Y has expressed the wish to live with her mother after years of living with her father. The highest the mother’s evidence takes it is that Y had reported feeling unsafe at her Father’s due to bullying from the other children there and bullying at school that she felt her father was ignoring. Y said she often felt ‘ignored’ and ‘uncared for’.

1. The mother does not allege that Y has been mistreated at the home of the father, in fact she does not raise any risk factors in her affidavit nor did she do so to the Family Consultant. She did allege though, to the Family Consultant, that the father did not ensure that the children’s medical and dental needs were met. Her Affidavit was silent about these matters.

2. In the Memorandum to the Court, Ms B opines:

   It is noted that, despite the parental conflict, and the alleged incident with X, it does not appear that Y’s relationship with her father, step-mother or siblings has broken down. It may be the case that she would quickly reintegrate into living… with him again if the Court was to make this Order in the interim.

Parent’s involvement with decision making, spending time and communicating with children and Maintenance of the children

1. The mother has spent time with the children on irregular basis since 2011, although it would seem as agreed between the parties.

2. There is no evidence about the other matters relevant to s.60CC(3)(c) and (ca).

Likely effect of change and practical difficulty of spending time

1. If an order was to be made for Y to live with her mother, there would be no change to her current circumstances. She would continue living where she has been living for the past three and a half months and she would continue attending the same school. It is likely that she would also continue to have a very limited relationship with her siblings and father.

2. If an order was made for Y to live with her father, she would be returned to her home and to the school which she attended previously.

3. There is no evidence that there would be practical difficulty with the children spending time with the non-resident parent either way.

Capacity to provide for children’s needs and the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. It may be that both parents have a lack of capacity to provide for the children’s emotional needs in the best way possible.

2. However, what is of significant concern to the Court is the mother’s actions in retaining Y where she is now separated from her father and her siblings and the emotional effect this would have not only on Y but also on all of her siblings. This is a fairly poor demonstration of the responsibilities of parenthood.

3. The mother has not facilitated nor encouraged Y spending time with her father or her siblings for almost three months. Her explanation is that this is what Y wants and that she does not want to force her to do something she does not want to do.

4. This was likewise the mother’s explanation for changing Y’s school the next day after she commenced living with her in May 2016. Y is only 11 years old. Residence and schooling are important decisions which need to be made by the parents.

5. It is unlikely that if Y was to remain living with the mother, the mother will facilitate but more importantly encourage, a relationship between Y and her father and Y and her siblings into the future.

6. While the relationship between Y, her siblings, her father and other members of the father’s household has not broken down, it is starting to fracture. It is important for Y (and the other children) that her relationships with her father and siblings remain intact.

7. The father has in the years the children have lived with him, facilitated a relationship between the mother and the children. He appears to have suited the mother’s convenience from time to time as to when the children would spend time with her and recently during the April school holidays the children spent a week of their holidays with the mother. It is likely that the father will continue to facilitate and encourage the children’s relationship with the mother.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents; if the child is an Aboriginal

1. The mother works as an (occupation omitted). She says that she only works during school hours.

2. The mother identifies as Aboriginal. However, there is no evidence about the mother’s or the children’s involvement in the Aboriginal culture.

Family Violence

1. The father is reported as having said to the Family Consultant

   There had been in incident earlier this year where [the mother]… had hit X with a coat hanger because the children had not made the bed properly. He claimed that X suffered bruising and a cut to his face.

2. In his statement to the Police, the father stated:

   It was not until the night of the 23 April that X told me that Ms Kingston wacked him three times. I could see one bruise on the left outer arm, halfway between his elbow and shoulder. It was the size of a fifty cent piece. The bruise was black in colour. I could see another bruise on his inner right arm just underneath his shoulder. The bruise was yellow in colour and a little bigger in size than a fifty cent piece.

3. Clearly there is some conflict of the allegation on the face of the father’s evidence and what was said to the Family Consultant.

4. The mother denies having hit X. She was unaware of any facial injuries and said that the bruise on his arm was caused by her grabbing him to stop him from stepping in front of a car in the city. This was said to the Family Consultant.

5. There is however a final Apprehended Domestic Violence Order protecting X from his mother. The order is only in standard terms, namely:

   1. The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person or a person with whom the protected person has a domestic relationship.

   2. The defendant must not engage in any other conduct that intimidates the protected person or a person with whom the protected person has a domestic relationship.

   3. The defendant must not stalk the protected person or a person with whom the protected person has a domestic relationship.

Institution of further proceedings and other relevant matters

1. These are only interim orders and it is likely that if the matter proceeds to final hearing, there will be a time period of at some six to twelve months before the matter is decided on a final basis. Much will depend on how the parties run the matter and what assistance the Independent Children’s Lawyer which appointment is made, is able to offer to the parties and to the Court. 

Primary Considerations

1. The Act does not mandate the discussion of considerations under s60CC in any particular order and it is well recognised that additional considerations may outweigh primary considerations.[6]

   [6] see for example Slater & Light [2011] FamCAFC 1at [45]

2. In applying the primary considerations set out in sub-s 60CC(2), the Court must give greater weight to the consideration set out in paragraph (2)(b), namely the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. It has been held that a meaningful relationship “is one which is important, significant and valuable to the child”:Mazorski & Albright[7] and cited with approval by the Full Court in McCall & Clark.[8] The focus is not on the relationship as such but on the benefit the relationship might have for the child.[9]

   [7] [2007] FamCA 520 at [26]

   [8] [2009] FamCAFC at  [121]

   [9] Ibid at [122]

4. Having regard to the matters set out above dealing with allegations of domestic violence and the fact of a current Apprehended Domestic Violence Order for the protection of one of the children, the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect and family violence is at the forefront of the Court’s deliberations.

5. There can be no doubt that the children benefit from having a meaningful relationship with both of their parents. However, that benefit needs to be weighed against the risk to the children.

6. It does not mean that merely because there are facts in dispute that the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts.[10] Recent Full Court authority suggest a cautious approach when dealing with allegations of family violence, particularly at the interim hearing level, when contested findings of fact cannot be resolved.[11]

   [10] Eaby & Speelman (20150 FLC 93-654 at [18] as cited by the Full Court in Salah & Salah [2016] FamCAFC 100 at [37]

   [11] Salah & Salah [2016] FamCAFC 100 at [35]

7. There is an immediate and short term risk that Y may run away. This is recognised and acknowledged in the orders which are made, in particular in relation to the mother being prohibited from removing or taking possession of Y except in accordance with these Orders.

8. The orders which are made provide safeguards for the children.

Parental Responsibility[12]

[12] S61DA

1. The presumption of equal shared parental responsibility relevantly, does not apply where there are reasonable grounds to believe that a parent of a child has engaged in family violence or abuse of the child. In this regard there is a current final Apprehended Domestic Violence Order for the protection of X and the father’s evidence in respect of the matters which the children have told him about the mother’s verbal abuse of them provides reasonable grounds to believe that the mother has engaged in family violence.

2. Furthermore, the presumption is rebutted where it would not be appropriate in the circumstances for the presumption to be applied when making a parenting order. There is significant parental conflict between the parents and while the parents are more often than not able to communicate about minor matters, they often have difficulty coming to agreement and have not exchanged important medical information and allied care information about the children.

3. Lastly, having considered the relevant s.60CC factors earlier in these reasons, I find that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.

4. I am satisfied that in all of the circumstances the presumption of equal shared parental responsibility is rebutted.

Independent Children’s Lawyer and Child Inclusive Child Dispute Conference

1. I am satisfied that the children’s interests ought to be independently represented, having regard to the parental conflict, the ages of the children and their views and the allegations of domestic violence.

2. It is too early in the proceedings to be ordering a Child Inclusive Child Dispute Conference, a matter which the Independent Children’s Lawyer ought to have some input in.

Conclusion

1. In all of the circumstances and for all of the reasons set out above, it is in the children’s best for orders to be made as set out at the forefront of these reasons.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 19 August 2016