Edhouse & Edhouse
[2021] FedCFamC1F 79
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Edhouse & Edhouse [2021] FedCFamC1F 79
File number(s): SYC 4161 of 2021 Judgment of: AUSTIN J Date of judgment: 22 September 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Where a Senior Registrar made interim parenting orders for the child to live with the mother and spend time with the father – Where the father sought a review of the decision – Where prior to the hearing the father applied for an adjournment – Application dismissed – Where both parties complain of family violence perpetrated by the other – Where the parties have been unable to compromise their conflict over issues concerning the child’s pre-school enrolment – Where the orders made by the Senior Registrar are discharged – Orders made – Where the presumption of equal shared parental responsibility does not apply – Where the mother shall have sole parental responsibility for the child – Where the child will continue to live with the mother and spend time with the father. Legislation: Evidence Act 1995 (Cth) s 135(c)
Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CC, 60CA, 61DA, 61C, 61D, 64B, 65AA, 65D, 65DAA
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Family Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Div 7.1.3, rr 5.07, 5.08, 7.01
Cases cited: Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175
Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
Division: Division 1 First Instance Number of paragraphs: 61 Date of hearing: 22 September 2021 Place: Newcastle Counsel for the Applicant: Ms Gillies SC Solicitor for the Applicant: Gayle Meredith & Associates Counsel for the Respondent: Mr Stapleton Solicitor for the Respondent: Horton Rhodes Legal ORDERS
SYC 4161 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR EDHOUSE
Applicant
AND: MS EDHOUSE
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
22 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Orders 2 and 3 made by the Senior Registrar on 25 August 2021 are discharged.
2.The mother shall have sole parental responsibility for the child X, born … 2019.
3.The child shall live with the mother.
4.The parties shall take all reasonable steps to ensure that the child spends time with the father each week from 5:00 pm Saturday until 7:00 pm Monday.
5.Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
6.Otherwise:
(a)The Application for Review filed on 14 September 2021 is dismissed; and
(b)The Application in a Proceeding filed on 21 September 2021 is dismissed.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
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 Edhouse & Edhouse has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
The parties to these proceedings separated in February 2021. They have one child. She was born in 2019 and is now not quite three years of age.
The father commenced proceedings in respect of the child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in June 2021, to which application the mother joined issue by her filed Response. Both parties sought interim orders in respect of the child in their initiating process.
The parties’ competing interim applications were listed for hearing before a Senior Registrar. On 25 August 2021, the Senior Registrar made orders for, essentially, the child to live with the mother and spend time with the father. In reality, the orders require the child to spend such substantial time with the father that the regime verges on being a shared-care arrangement.
On 14 September 2021, the father filed an Application for Review, seeking the review of the Senior Registrar’s decision. It is that application which is presently before me, and so I am conducting a hearing de novo of the parties’ respective underlying parenting applications.
PROPOSALS
The father’s position is curious. Although he sought to review only Orders 2 and 3 made by the Senior Registrar (being the orders for the child to live with the mother and spend time with him), he is not content with merely the reversal of the residential arrangement. The father additionally wants an order dictating the child’s enrolment at certain pre-schools on certain days of the week, which proposed order was not one he applied for before the Senior Registrar. The father conceded that such an order would impinge upon the parental responsibility for the child which each party currently enjoys.
Although the father sought an order for sole parental responsibility before the Senior Registrar, no parental responsibility order was actually made. The Senior Registrar dismissed all other outstanding applications which were not covered by the Senior Registrar’s orders (Order 7) and, even though the father did not seek to review that order, he now seeks an order which is inconsistent with it.
Given the provisions of the Act and the guideline judgment of the Full Court in Goode & Goode (2006) FLC 93-286, I do not see how I can conduct a de novo hearing without considering how parental responsibility for the child should be allocated. In any event, the father seeks both the substitute and additional orders set out in the Application for Review filed on 14 September 2021.
The mother’s position is also curious. As late as yesterday (21 September 2021), she filed an Application in a Proceeding in which she seeks a suite of orders which are different from both the application she made before the Senior Registrar and the orders actually made by the Senior Registrar. The mother informed the court she opposed the father’s review application, but that position cannot be sensibly rationalised with her current application for different orders from those which were made. It would appear that not enough thought has been applied to this interlocutory process by either party. I am left to presume that the mother now seeks the orders set out in her Application in a Proceeding filed on 21 September 2021.
EVIDENCE
The father relied upon:
(a)his affidavit filed on 4 June 2021;
(b)numerous exhibits (Exhibits F1 to F7 inclusive) comprising documents produced on subpoena by New South Wales Police concerning incidents involving the parties, either individually or collectively, in the period between April 2020 and April 2021;
(c)Exhibit F8, which comprises doctors’ notes concerning the mother from February 2021; and
(d)Exhibit F9, which comprises a discharge summary related to the mother dated 12 February 2021.
With the exception of Exhibits F7 and F8, none of the other exhibits were mentioned in submissions by the mother, which leads me to wonder why they were tendered.
The father sought to rely upon a second affidavit he filed on 2 July 2021, but leave was refused because no sufficient reason was advanced to warrant relaxation of r 5.08(1)(a) of the Family Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). When given the option, the father elected to rely upon his former rather than his later affidavit.
The father also sought to rely upon an affidavit of Mr B, filed on 2 July 2021, but leave was refused. Mr B is a psychotherapist who purports to give expert opinion evidence on the unilateral instructions of the father’s solicitors. The father conceded the evidence of Mr B was not led for the limited purpose allowed by r 7.01 of the Rules and no application has been made under Division 7.1.3 of the Rules to adduce evidence from an adversarial expert witness.
Mr B was asked by the father’s solicitors to report upon:
(a)the dates he was consulted by the parties, jointly and individually, for counselling;
(b)the “concerns” and “symptoms” that caused the parties to consult him;
(c)his “observations” of the parties;
(d)his “assessment” of the parties; and
(e)the “strategies” he suggested to alleviate their “concerns, symptoms and issues”.
No opinions offered by Mr B in response to such instructions could carry much probative weight, even if they could be characterised as potentially relevant evidence. Notwithstanding the attempt to adduce Mr B’s evidence in breach of the Rules, the evidence can also be rejected pursuant to s 135(c) of the Evidence Act 1995 (Cth) because its apparently limited probative value is outweighed by the danger that dealing with it would result in undue waste of time.
The father also sought to tender the mother’s ultrasound scan from 31 July 2018, depicting a foetus she was carrying at that point in time. When asked as to the relevance and probative value of the document, the father contended it had some bearing upon the mother’s reliability as a witness and tended to bear out his concerns about the mother’s emotional instability. I rejected the argument and rejected the document.
The father also sought to tender an email exchanged between the parties from May 2021 and some doctors’ notes related to the child from June 2021, but the tender was rejected because the evidence appeared to have no relevance.
The mother relied upon:
(a)her affidavit filed on 29 June 2021;
(b)the affidavit of her treating psychiatrist, Dr A, filed on 28 June 2021, but only insofar as his expert evidence falls within the boundaries erected by r 7.01 of the Rules; and
(c)Exhibit M1, being an application for voluntary admission to a mental health facility, dated 14 June 2021.
The mother’s application for leave to rely upon her second affidavit filed yesterday (21 September 2021) was refused because it infringed rr 5.07 and 5.08(1)(a) of the Rules.
ADJOURNMENT APPLICATION
Before the hearing started, the father applied for an adjournment. If granted, he wanted the hearing postponed for not less than six weeks until after the report commissioned from the single expert psychiatrist is released to the parties. The parties apparently met with the single expert yesterday and expect his or her report some six weeks hence.
The adjournment was refused and this is why.
The parties’ interim applications have been pending since June 2021. They were determined by the Senior Registrar in August 2021. The father sought to review the Senior Registrar’s decision, as is his right. The Rules envisage any review application is heard and determined promptly. The review application was listed for hearing before me within a week or so of it being filed, thereby fulfilling the court’s obligation to give the litigants swift access to the Court’s resources. It would be a rebuke of statutory demands (s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)) and common law principles (Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175) for the Court to postpone what is supposed to be an urgent interim application at the whim of the father. He is the applicant at whose request the Court has been hastily convened.
The proposal to postpone the hearing until more evidence is available is misconceived because, regardless of the contents of the single expert’s report, it will be untested evidence and, this being an interlocutory hearing only, no conclusive findings of fact or law can be made.
LEGAL PRINCIPLES
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA), though that presumption may be either rendered inapplicable (s 61DA(2)) or rebutted (s 61DA(4)).
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents or alternatively living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
Those principles apply whether or not the pending applications under Part VII of the Act are considered on an interim or final basis.
The procedure for conducting interim hearings has been authoritatively established by the Full Court. In Goode & Goode, the Full Court said (at [68]):
[T]he procedure for making interim parenting orders will continue to be an abridged process where the scope of the inquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
The Full Court also said in Goode & Goode (at [74]):
The filing of lengthy affidavits is unlikely to be helpful where the Court is unable to make findings about disputed facts.
In Banks & Banks (2015) FLC 93-637 (at [47]–[50]) the Full Court noted that a paucity of uncontested evidence means that only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim proceedings should be confined to only those issues which, in the best interests of the child, require determination prior to a proper determination at trial. Not every s 60CC factor need be discussed in that process.
BEST INTERESTS – PRIMARY CONSIDERATIONS (60CC(2))
Pursuant to s 60CC(2)(a) of the Act, it bears mentioning that there was no dispute in this hearing that the child enjoys meaningful relationships with both parties from which she derives benefit. So much is obvious from the parties’ respective proposals. Even though each party seeks the child’s residence, each proposes the child regularly spends substantial amounts of time with the other.
With respect to section 60CC(2)(b) of the Act, both parties adduced an abundance of evidence accusing the other of the commission of family violence. Each party alleges the child was exposed to their conflict whilst they cohabited.
It would appear from the documents in evidence that both parties attempted to enlist police assistance strategically. Exhibit F3 demonstrates that, in February 2021, shortly after the parties’ separation, the mother attended the police and made historical complaints of family violence against the father, said to have occurred months before in November 2020. No action was taken by the police. The father has done much the same thing. Exhibits F1 and F2 indicate that he approached the police in March 2021. According to the police report within Exhibit F1, he complained of an assault perpetrated upon him by the mother, but told police he did not want the matter pursued and was simply advising the police of the incident for the purposes of it being recorded. Exhibit F2 demonstrates that, about a week or more later, the father approached police at a different police station to express his dissatisfaction with the performance of the police officers to whom he had made his original report a week or so before, alleging those officers did not take him seriously and that they talked him out of taking further action against the mother.
The whole of the police documents comprising Exhibits F1 to F7 are replete with the parties’ allegations against one another – largely, if not entirely, uncorroborated – and show that the police were disinclined to take any action against either party. I draw the obvious inference from those exhibits that the police thought there was nothing to be gained by prosecuting either party on the strength of their uncorroborated but contradictory complaints. The police make this observation in Exhibit F1:
Both parties have expressed frustration and stress surrounding their separation and subsequent issues relating to custody of their child, however, neither party expressed specific fears relating to their safety. The author does not hold fears for the safety of either party and does not believe the criteria is met for the application of an ADVO.
…
The author is of the opinion that there is still insufficient evidence to proceed with legal action due to conflicting versions and the absence of evidence to support either party’s version of events.
According to the evidence before me, there is no suggestion of overt family violence between the parties for about the last six months, so it is apparent there is no present need to protect the child from exposure to family violence between the parties, save for there being safe arrangements for the child’s exchange between the parties. At this juncture I digress to observe that the Senior Registrar made an order for the manner in which the child was to be exchanged between the parties and neither party seeks a review of that order.
Finally, in dealing with the question of family violence, I note that the father filed a Notice of Risk in these proceedings on 4 June 2021. At paragraph 13(e) of that document this question is posed:
Do you allege that a child to whom the proceedings relate has suffered (or is at risk of suffering) serious psychological harm from experiencing family violence directly or indirectly?
to which question the father answered:
No.
I accept the submission made by counsel that, whatever be the situation with respect to family violence in the past, it is not, at this point in time, a significant consideration which influences the outcome of the dispute under s 60CC(2)(b) of the Act.
There were no allegations of “abuse” or “neglect” to engage s 60CC(2)(b) of the Act.
CHILD’S BEST INTERESTS – ADDITIONAL CONSIDERATIONS (60CC(3))
I begin by observing that most of the factors prescribed by s 60CC(3) of the Act were not discretely addressed by counsel for either party. I therefore only address those factors which are relevant, either expressly or inferentially, from the submissions which have been made.
I draw the obvious inference that the mother has been the primary carer of the child since the time the parties separated in February 2021. As I understand the evidence, the child went with the mother from NSW to Victoria for a period of about a fortnight in February 2021. After the mother and child returned to NSW in late February or early March 2021, the child has lived predominantly with the mother ever since. At about that time, or shortly afterwards, the parties were able to implement consensual arrangement for the care of the child which entailed the child spending several days each week with the father.
The father contends in his affidavit that the child spent three nights of each week with him and four nights with the mother. He deposed the child would begin spending time with him from Saturday and then return to the mother on Tuesday night of each week (Father’s affidavit at [5] and [8]). The mother’s evidence is very similar. She deposed that, up until the arrangement was changed by her unilaterally in May 2021, there was a consensual parenting arrangement in place where the child would spend three consecutive nights with the father from 2.00 pm on Saturday until 7.00 pm on Tuesday (Mother’s affidavit at [44]).
The father made some veiled suggestion that the mother has only been able to properly care for the child with the assistance of nannies, but that is an allegation expressly addressed by the mother. She alleged that her use of nannies was historical, whilst the parties were cohabiting. She deposed she first hired a nanny in April 2019 when she injured her back and the child was only about three months of age. Another nanny was hired when she began to work in the father’s business in about July 2019. Another nanny was hired in May 2020 for occasional care of the child for some hours at a time. All of that was whilst the parties were still cohabiting. There is no evidence before me that, since the parties have separated, the mother has relied upon any other person to maintain the primary care of the child.
The father seems to harbour quite sincere doubt about the mother’s parenting capacity, all of which seems premised on his concern about the stability of her mental health. However, I have the evidence of the mother’s treating psychiatrist, Dr A, who provided a report in June 2021. As I have already indicated, that expert evidence is admissible within the confines of r 7.01 of the Rules. Relevantly, Dr A opines that the mother suffers from post-traumatic stress disorder and major depressive disorder. He advises she presently takes a daily anti-depressant and another medication intermittently. She has been undergoing some therapy described as “EMDR”. He says that, as a consequence of such therapy, the mother’s stressors, which are attributed to the marital separation and its “attendant difficulties”, have since abated. Dr A is aware of the mother’s psychological history and has viewed documents which indicate she has not been diagnosed as being “mentally ill”. She apparently remains under his continuing care.
None of that expert evidence is undercut by the anxious consideration paid by the father to events proximate to the parties’ separation in January and February of 2021. There is no doubt the mother was admitted to a mental health facility for a couple of days in January 2021, with Exhibit M1 suggesting her admission was voluntary. It does not seem to me to really matter whether her admission was voluntary or involuntary. The admission followed a heated argument between the parties in the kitchen of their home, which ended by the mother stabbing a knife into a chopping board in anger or despair. That incident is also the subject of comment by the police in Exhibit F7.
Given the mother is a person who has suffered from depression or some like condition in the past, it is rather unsurprising that she might have actually, or been perceived to have, acted histrionically at or about the time of the parties’ separation. The mistake, I believe, the father has made is by assuming that the mother’s emotional presentation at or about the time of the breakdown of their relationship some nine months ago is necessarily how her current behaviour should be characterised and by implying that her current parenting capacity is therefore necessarily impaired. On the evidence before me, his assumptions are misplaced and I accept the submission made on behalf of the mother that there is no evidence which would reasonably allow any nexus to be drawn between the mother’s managed psychological condition and her current capacity to care for the child. There is no evidence the child is deleteriously affected by her residence with the mother.
On the other side of the paradigm, the mother doubts the father has the real capacity to offer primary care to the child because of his work commitments. He is a busy and competent healthcare professional who works during the week and on Saturday mornings, according to his own admission. He deposed to being a “specialist healthcare professional” and, although he says he is self-employed and has flexibility in relation to his work, very little is known about such flexibility. The only elaboration of that assertion is that he works for “shorter hours on Thursdays and some hours on Saturday mornings”. It is his express proposal that he will have one of the child’s former nannies assist him for hours at a time if he is otherwise engaged with his employment duties.
The mother contended that, in fact, the father was much more reliant upon outside assistance and depended upon the child attending a pre-school on Mondays and Tuesdays close to the father’s business and, but for the child’s care on those days at pre-school, he would not have been able to properly care for her.
Even now, upon review, the father’s proposal is for a specific order requiring the child to be re-enrolled in the pre-school near to his business on Mondays and Tuesdays each week. I draw the obvious inference that an implicit component of the father’s proposal for the child’s primary residence is that he will rely upon her attending day care on some of the week days when he is at work.
By comparison, the mother is not in gainful employment and is available for the child on a full-time basis. She deposed:
I am not currently in paid employment and I devote my time to caring for [the child].
That proposition was not challenged.
While the father submitted the mother had little or no support from family or friends, there is very little, if any, evidence that he is any better off. He admitted he envisages using a nanny as an assistant carer.
CONCLUSION
As I have already indicated, both parties complained of family violence perpetrated by the other. In such circumstances, it seems there must be reasonable grounds to believe that either or both of the parties has engaged in family violence at some stage during their relationship, in which event s 61DA(2) of the Act renders the presumption of equal shared parental responsibility inapplicable.
Although the mother’s counsel suggested I leave parental responsibility where it lies under the Act (ss 61C and 61D), I reject that submission. There are clear justiciable disputes over the child’s re-enrolment at a particular pre-school near to the father’s business on Mondays and Tuesdays each week and the regularity of her attendance at another pre-school nearer to the mother’s home on Friday of each week. For the father to seek such a specific and prescriptive order to resolve those two disputes, the only inference properly available is that the parties have been unable to compromise their conflict over those issues, which cannot now be left unaddressed. In the face of the mother’s unilateral decision to withdraw the child from the pre-school near to the father’s business on Mondays and Tuesdays of each week and her failure or refusal to re-enrol the child at that pre-school on those days, the father now seeks a prescriptive order to resolve the disputes over the child’s pre-school enrolments and attendance.
I am not able, it seems to me, to make a decision for the parties on the available evidence as to whether or not that is an appropriate outcome for the child and so the only sensible way to resolve the dispute is by giving one party or the other parental responsibility for the child on an interim basis. It would be absurd for parental responsibility to be conferred upon the party other than the one chosen as the primary residential carer.
Since I intend not to make an order for equal shared parental responsibility, s 65DAA of the Act is not engaged, and I am not obliged to consider whether the child should live with the parties for equal time or spend substantial and significant time with the non-residential parent. I pause to observe that neither party sought an order for equal time.
Dealing then with the central question of the child’s primary residence, in my view, the evidence points most strongly to the mother being the primary carer of the child. The reasons for that in summary are these: pursuant to a consensual arrangement between the parties, for some months between February and June 2021, the child spent most of her time living with the mother; secondly, that situation has continued to endure since June 2021, even though the father has objected to the continuity of that arrangement since he started these proceedings in June 2021; thirdly, on the uncontroversial evidence, the mother has greater availability to provide primary care to the child; fourthly, the mother has sufficient parenting capacity and I am not satisfied the father made good his complaints about the impingement of her parenting capacity by reason of her emotional instability; and lastly, for reasons I have already addressed under s 60CC(2(b) of the Act, the child does not require protection against any risk of harm in either household.
That brings me to the question of what time the child should spend with the father. In my view, the child should spend two days per week with the father, that being the proposal he made for the mother in reverse.
An issue then arises as to when the child should spend that time with the father. It is better not to fragment the child’s time with the father, as the mother proposed in her most recent application. It is important to embed some routine in the child’s life. I see no reason why the child cannot spend overnights with the father, as she consensually did for months earlier in the year. The father proposed that the child should live with him from after pre-school on Fridays until before pre-school on Wednesdays so, inferentially, any time between Friday evening and Tuesday evening must suit him to care for the child. It will be remembered that the former consensual arrangement between the parties was for the child to stay with the father from Saturday until Tuesday evening. The weekends should be split between the parents and, in the absence of any specific submission as to the precise time which the child should spend with the father, I have concluded the child should do so from Saturday evening until Monday evening.
Lastly, I return to the father’s proposal about a specific order compelling the child’s re-enrolment at a pre-school on Mondays and Tuesdays. There is no need for such an order because the allocation, at least on an interim basis, of parental responsibility for the child to the mother will enable the mother to make that decision for the child.
As I previously remarked, there is no need for me to consider the issue of the manner in which the child should be exchanged between the parties because an order to that effect was made by the Senior Registrar on 25 August 2021 (Order 4), and that order was not the subject of any review.
For those reasons, I make the following orders.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 29 September 2021
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