Edhouse & Edhouse

Case [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…

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Edhouse & Edhouse [2021] FedCFamC1F 79
Case
[2021] FedCFamC1F 79
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CaseChat Overview and Summary

In the case of Edhouse & Edhouse, the parties were engaged in a dispute concerning the primary residence and parental responsibility of their child. The father filed an application for a review of the orders made by a Senior Registrar, while the mother filed an Application in a Proceeding seeking a suite of orders that differed from both the father's application and the orders made by the Senior Registrar. The primary legal issues the court had to decide were whether there were reasonable grounds to believe that either party had engaged in family violence, and if so, whether the presumption of equal shared parental responsibility was applicable. The court also needed to determine whether the disputes over the child's pre-school enrolments and attendance could be resolved by giving one party or the other parental responsibility for the child on an interim basis.

The court found that both parties had accused each other of family violence, but the evidence presented was largely uncorroborated and contradictory. The police reports showed that the police were disinclined to take any action against either party due to the conflicting versions of events. The court concluded that there must be reasonable grounds to believe that either or both parties had engaged in family violence, which rendered the presumption of equal shared parental responsibility inapplicable. The court rejected the mother's submission to leave parental responsibility where it lies under the Act, and found that the evidence pointed most strongly to the mother being the primary carer of the child. The reasons for this were the consensual arrangement between the parties, the mother's greater availability to provide primary care, her sufficient parenting capacity, and the absence of any risk of harm in either household.

The court ordered that the child's primary residence be with the mother, and that the father have parental responsibility for the child. The court found that the evidence did not support an order for equal shared parental responsibility, and therefore did not need to consider whether the child should live with the parties for equal time or spend substantial and significant time with the non-residential parent. The court also found that the disputes over the child's pre-school enrolments and attendance could not be resolved without giving one party or the other parental responsibility for the child on an interim basis. The court noted that 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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.