Elias and Elias (No.2)
[2014] FCCA 2037
•5 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELIAS & ELIAS (No.2) | [2014] FCCA 2037 |
| Catchwords: FAMILY LAW – Parenting – interim hearing – whether child should spend time with the father in a contact centre – whether supervised time should be delayed until father’s criminal proceedings are finalised – mother opposes the child spending any supervised time with the father until expert report obtained – transfer of proceedings to Family Court of Australia. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 61DA, 64B, 65DAA |
| Elias & Elias [2014] FCCA 457 |
| Applicant: | MS ELIAS |
| Respondent: | MR ELIAS |
| File Number: | SYC 7597 of 2013 |
| Judgment of: | Judge Monahan |
| Hearing date: | 22 August 2014 |
| Date of Last Submission: | 22 August 2014 |
| Delivered at: | Sydney |
| Delivered on: | 5 September 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr White |
| Solicitors for the Applicant: | Meyer Partners Family Lawyers |
| Counsel for the Respondent: | Ms Boyle |
| Solicitors for the Respondent: | MCW Lawyers |
Independent Children’s Lawyer: Ms Power
ORDERS
THE COURT ORDERS THAT:
Pursuant to Division 15.2 of the Federal Circuit Court Rules, Dr. Q, Child and Family Psychiatrist, be appointed as the Single Expert (“the expert”) to enquire into and prepare a report (“the report”) upon matters relating to the welfare of the child, [X], born [omitted] 2012 (“the Child”) and in preparing the report for the Court, the expert be requested to consider the following matters:
(a)Whether the child has been or is at risk of being exposed or subjected to any physical or psychological harm or family violence;
(b)The nature of the relationship between the child and each of his parents and any other relevant person;
(c)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the parents;
(d)The capacity of each of the parents to provide for the children’s needs including his emotional and intellectual needs;
(e)The attitude to the child and to responsibilities of parenthood, demonstrated by each of the parents;
(f)The effect on the child of any family violence to which he may have been exposed;
(g)The effect on the child of spending equal time, or substantial and significant time with each party having regard to the party’s current and future capacity to:
(i)implement such an arrangement; and
(ii)communicate with each other and resolve difficulties that might arise.
(h)the mental state of both parents insofar as it relates to parenting issues and treatment options, if required; and
(i)any other matter the expert considers relevant.
Both parties shall share equally in the costs associated with the report and shall each pay into the Trust Account of Legal Aid the sum of $6,750.00 within 21 days of such a request by the Independent Children’s Lawyer for payment by Legal Aid NSW to the expert in respect of the fees upon completion of the report.
In the event that there remains monies available subsequent to the receipt of the memorandum of fees from the expert, these monies shall remain in the Trust Account of Legal Aid NSW and are to be returned to the parties in equal shares upon conclusion of the Court proceedings.
In the event that there is a shortfall the mother and the father are to pay such additional sum to meet the costs of the expert within 21 days of a request by Legal Aid NSW.
In the event that the expert is required for cross examination at any hearing in these proceedings, the parties shall be equally responsible for the expert’s costs in respect of such preparation and attendance and the parties are to pay such sum within 21 days of any request by Legal Aid NSW.
That the parties shall facilitate the preparation of the report including attending on and arranging for the child and any other significant person to attend upon the expert.
Leave is granted to the Independent Children’s Lawyer to issue subpoenas and have photocopy access to all material produced under subpoena for the purpose of providing same to the expert and that fees in respect of that photocopying be waived.
Upon the giving of an Undertaking by Mr E & Mrs E (“the paternal grandparents”) that they not refer to these proceedings or denigrate the applicant mother within the hearing or presence of the child, the paternal grandparents or either of them may attend the [K] Day Care Centre, [address omitted], for a period not exceeding one hour each week at 3:00pm each Tuesday or at a time specified by the Day Care Centre.
In the event that [K] Care Centre is unable to facilitate the child’s time with the paternal grandparents, the time between the child and the paternal grandparents is to take place at the [omitted] Library at 3:00pm each Tuesday or such time as agreed between the mother and the paternal grandparents.
The child spend time with the father supervised by the [C] Contact Service (“[C]”), [suburb omitted], for 2 hours each week, such times as specified by the [C].
The time the child spends with the father in Order 10 herein is not to commence until the father’s criminal proceedings are finalised and the Independent Children’s Lawyer informs the [C] in writing that Order 10 herein is to take effect.
The father is to ensure that the paternal grandparents or either of them are present with him at all times that he spends with the child at the [C] and the paternal grandparents time at the child’s Day Care Centre or Library is suspended during this time unless otherwise agreed in writing by the parties.
THE COURT NOTES THAT:
(A)The Independent Children’s Lawyer will confirm with the parties, the dates when they are to attend upon the expert for interviews for the purpose of the report, following the outcome of the father’s criminal proceedings.
(B)The issue of the father’s time with the child, and more particularly whether that time once commenced should remain supervised, may be reconsidered following the release of the expert’s report.
(C)Orders were made on 22 August 2014 transferring these proceedings to the Family Court of Australia (“Family Court”) following the pronouncement of these Orders.
(D)This matter remains listed on 8 December 2014 at 10.00am for mention before a Registrar of the Family Court.
(E)Paragraphs 1 to 10, paragraph 12 and Notation A herein reflect a Minute of Orders proposed by the Independent Children’s Lawyer (“the Minute”) that were not opposed by the Applicant and the Respondent at the interim hearing of parenting matters conducted on 22 August 2014.
(F)Paragraph 11 herein was an Order determined by the Court (and proposed by the ICL in the Minute).
(G)The paternal grandparents have provided the Court with signed Undertakings to the effect that, during the time the Child spends with either of them that they will not discuss the Court proceedings nor denigrate or criticise the Applicant within the hearing or presence of the Child.
(H)Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Elias & Elias (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7597 of 2013
| MS ELIAS |
Applicant
And
| MR ELIAS |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings are between MS ELIAS (“the mother”) and
MR ELIAS (“the father”) and involve both parenting and property applications. The relevant child of the relationship is [X] born [omitted] 2012 (“[X]” or “the child”).
This decision relates to interim parenting matters and more specifically, whether and/or when the child should commence spending supervised time with the father in a contact centre.
At the interim hearing conducted on 22 August 2014, both parties were represented by counsel; Mr White for the applicant mother and
Ms Boyle for the respondent father. In addition, Ms Power of New South Wales Legal Aid appeared as the Independent Children’s Lawyer (“ICL”).
Unless otherwise stated, any statutory references I make will be to the Family Law Act 1975 (“the Act”).
Background
This is the second interim hearing I have conducted in this matter. The first hearing related to practice and procedure issues relevant to the parties’ property dispute. In that decision, I provided some general background information in the reasons delivered on 12 March 2014.[1]
[1] Elias & Elias [2014] FCCA 457 at [6]-[9].
The ICL provided the following chronology of events which, while not representative of any agreement between the parties, provides a useful timeline of the parties’ relationship.
The father was born [omitted] 1973, and is currently aged 40. The mother was born [omitted] 1979, and is currently aged 35. The parties commenced cohabitation in mid-2006 and married on [omitted] 2009. The parties separated on a final basis on 18 October 2013. Their child, [X], was born in [omitted] 2012.
The mother alleges drug use by the father at the commencement of cohabitation. The mother further alleges that the father experienced mental health issues in February 2011, for which he was then admitted into [omitted] Hospital as an involuntary patient for approximately one month. The mother has also attended upon psychologists appointments in mid-2013.
The mother alleges various incidents of physical violence and sexual assault inflicted upon her by the father occurring between mid-2007 and finally on the 18 October 2013, whereby the father was arrested and charged with sexually assaulting the mother. A Provisional AVO followed on the 19 October 2013 and thereafter an Interim AVO and Ancillary Property Order was made on the 29 October 2013, with the mother and child as protected persons. These charges are the subject of ongoing criminal proceedings involving the father, which is listed for hearing commencing on 17 November 2014.
The mother commenced these proceedings with her Initiating Application filed on 20 December 2013. The proceedings came before me as an urgent matter in my duty list on 6 February 2014. On that occasion the parties were able to reach agreement on a number of interim parenting and property issues.
The matter returned to Court on the 14 May 2014. On that occasion, the matter was adjourned for interim hearing on 22 August 2014 and orders were made requiring both parties to attend a parenting after separation course. The father completed the “Parents Not Partners Course” at Interrelate on 11 June 2014. The mother completed the “Kids in Focus” seminar at a Family Relationships Centre on 19 June 2014.
Consent orders were made between the parties on 6 August 2014 for the father to undertake urine and blood testing at the request of the ICL. On the 13 August 2014, the ICL requested that the father undertake urine and blood testing in accordance with the Orders dated 6 August 2014. The father submitted to the request and undertook the urinalysis and blood testing at [omitted] Pathology on the 14 August 2014.
With respect to the commencement of supervised time, [C] Contact Centre sent correspondence to the ICL on 30 June 2014 informing her that after an additional intake interview with the father, the matter was deemed suitable for contact.
Issues and Proposals
The father seeks interim orders that would allow the child to immediately commence spending time with him at the [C] Contact Centre located in the Sydney suburb of [omitted].[2]
[2] See ICL’s Minute of proposed order, paragraph 10.
The ICL conditionally supports the father’s proposal. However, she seeks that the time not commence until the father’s criminal proceedings are finalised.[3] I will refer to those criminal proceedings, and the adverse impact they are having upon the child, the parties and these proceedings, shortly.
[3] Ibid, paragraph 11.
While the mother now broadly supports the child spending time with the father at a contact centre, she seeks that the time not commence until the parties, and the Court, have had the benefit of an expert report. At this point I should note that the parties are in agreement with the ICL’s proposal to obtain an expert report from Dr Q, Child and Family psychiatrist.[4] It is anticipated that the interviews for the expert report will not occur until later in the year and following the conclusion of the father’s criminal proceedings.
[4] Ibid, paragraphs 1-7.
I also note that the parties are also in agreement that the child should commence spending time with the paternal grandparents for one hour each week.[5] In addition, there is agreement that one or both of the paternal grandparents are to be present at all times that the child spends time with the father at the contact centre.[6]
[5] Ibid, paragraphs 8-9.
[6] Ibid, paragraph 12.
I will pronounce the agreed orders with the orders determined by the Court and arising from this decision.
Evidence
The father relied upon the following documents:
·Response filed 4 February 2014; and
·Father’s affidavit sworn and filed 4 February 2014 (paragraphs 1-6, 42-73).
The mother relied upon the following documents:
·Reply filed 3 April 2014;
·Mother’s affidavit filed 20 December 2013 (paragraph 67 to 115);
·Mother’s affidavit filed 3 April 2014 (paragraphs 19, 24-31, 41-59, 60-62, 73-77); and
·Notice of Child Abuse, Family Violence or Risk of Family Violence filed 3 April 2014.
Although the Court was advised that there are some relevant documents included in the subpoenaed materials, no documents were ultimately tendered during the course of submissions.
Submissions
In accordance with directions, the mother, the father and the ICL each provided the Court with a written case outline document prior to the commencement of the interim hearing.
In addition, each of the parties’ counsel, and the ICL, presented oral submissions. The transcript for the interim hearing that was conducted that day will of course reflect those reasons. I do not propose to summarise those submissions, but will refer to those submissions where relevant during the course of these reasons.
Law and discussion
All parenting proceedings are governed by Part VII of the Act. Parenting orders are defined in s.64B of the Act and essentially deal with where a child is to live and, relevant to this dispute, the time that a child spends with a parent, and the circumstances as to how that time is spent. Parenting orders may also deal with the allocation of parental responsibility and with “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child”.
Section 60CA of the Act provides as follows:
“In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.”
Section 60CA through s.60CC of the Act deals with how the Court determines the best interests of a child. The most relevant to these parenting proceedings that are before me presently are the primary considerations in s.60CC(2) and the additional considerations in s.60CC(3) where relevant, and I will consider those further in a moment.
In addition, the Court is guided by case law relevant to interim parenting disputes including the Full Court’s decision in Goode & Goode (2006) FLC 93-286 (“Goode”). At this point, I note the following observation of the Full Court at paragraph 81 of Goode that:
“In making interim decisions, the court will still often be faced with conflicting facts, little helpful evidence and disputes between parents as to what constitutes the best interests of the child.”
This matter is such a case.
More specifically, it raises the reality that the Court cannot fully determine issues of credit at an interim hearing as the evidence being presented by the parties has not been tested by cross-examination and the matter proceeded by way of submissions only. That having been said, the Full Court in Goode made it clear that the ‘legislative pathway’ must be followed. In other words, the relevant provisions of the Act post the 2006 and 2012 amendments must be followed.
There is, it would appear, considerable animosity and distrust between the parties in this case, and no doubt the history of the matter will be the subject of evidence in cross-examination at a final hearing should it be needed.
The criminal proceedings the father currently faces are very serious. He stands accused of sexually assaulting the mother on two occasions in October 2013. The Court was advised that those criminal proceedings are listed for hearing commencing on 17 November 2014. If the father is convicted, there is a real likelihood that, given the seriousness of the crimes alleged against him, he may be incarcerated for a considerable period of time.
I also note that the mother makes serious allegations that the father has mental health issues.
Parental Responsibility
The Court was not asked by the parties to consider the issue of parental responsibility and more particularly, the presumption in favour of equal shared parental responsibility as part of this decision. The dispute was limited to the discreet issues outlined above. Nevertheless, the Court notes that s.61DA of the Act incorporates a presumption that the Court is required to consider when otherwise making a parenting order; namely, that the Court must apply presumption that is in the best interest of the child for the child’s parents to have equal share parental responsibility.
I note in this case the father seeks such an outcome on an interim and a final basis. The mother, however, seeks an order for sole parental responsibility on an interim basis noting that she has requested to be excused from further particularising the final orders sought pending the outcome of the fathers criminal proceedings and the release of the expert report. At this stage, the ICL has not indicated a position in respect of parental responsibility.
There are a number of circumstances included in the Act where the Court may decide that the presumption in favour of equal shared parental responsibility should not apply:
·firstly, the presumption may not apply if there are reasonable grounds to believe that there has been abuse of the children or family violence (that is clearly a live issue in this case although I note that the evidence is yet to be tested);[7]
·secondly, if the Court is making an interim order, the Court may consider, in the circumstances, that it would not be appropriate for the presumption to be applied;[8] and
·thirdly, the presumption may be rebutted if the Court determines that it is contrary to the children’s best interests, having regard to the relevant legislation.[9]
[7] Section 61DA(2).
[8] Section 61DA(3).
[9] Section 61DA(4); see also s.60CC.
The effect of the Court not making an order for parental responsibility would be that parental responsibility could be exercised by both parents either jointly or independently. It is possible for the Court to order that one or more aspects of parental responsibility be allocated to one parent alone and the remaining aspects either be subject to no order or an order for equal shared parental responsibility. Such possibilities were discussed by the Full Court of the Family Court in Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103.[10]
[10] Newlands & Newlands [2007] FamCA 168 at [84]-[91] (per Bryant CJ, Finn & Boland JJ).
In this case, pending agreement and/or input from the ICL, I have determined that, pursuant to s.61DA(3), it would not be appropriate to apply the presumption or consider that issue at this very early stage of the proceedings.
Consequently, as the issue of parental responsibility will not be considered as part of this decision, there will be no order for parental responsibility made at this stage of the proceedings. That said, the Court reminds the parties, and in particular the mother, that until this issue is determined decision-making relevant to parental responsibility should be consultative, particularly given that both parties are legally represented. Given that there will be no order for parental responsibility at this stage, s.65DAA is not triggered and thus will not be considered as part of this decision.
I will now move to a consideration of the primary and additional considerations under s.60CC(2) and (3) of the Act.
Primary considerations: s.60CC(2)
Section 60CC(2)(a) requires the Court to consider the benefit of a child having a meaningful relationship with both of a child’s parents.
At this point, let me note that meaningful does not mean equal, but it clearly signifies that both parties should be involved with their child and consequently signifies an expectation of time to be spent. It is the right of the child to spend time with each parent and extended family. Generally speaking, it is beneficial for a child to have a meaningful relationship with the each of their parents and extended family.
The Full Court considered this provision and the concept of ‘meaningful relationship’ in McCall & Clark [2009] FamCAFC 92. In summary, what the Court is required to do is consider and weigh the available evidence and determine (assuming the Court is satisfied that it is in the children’s best interests) how and what orders can be framed in order to ensure that the children have a meaningful relationship with both of their parents (and by implication their extended family).
That said, the Court must also consider s.60CC(2)(b) of the Act, the need to protect the child from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence.
There is no doubt that it would be in [X]’s best interest to develop a meaningful relationship not just with his mother, but also with his father. That outcome, of course, needs to be balanced in respect of protecting the child from any physical or psychological harm and the like.
A live issue in this dispute is the concerns raised by the mother and the ICL in relation to whether [X] may be at risk of psychological harm if his time with the father is re-established then abruptly ceases because the father loses his liberty as a result of the criminal proceedings.
Although the matter is yet to benefit from an expert report from Dr Q, the Court has concerns about the potential disconnect the child may suffer if his time with the father is re-established, then ends soon thereafter. [X] has already experienced, rightly or wrongly, a considerable period of time without having any meaningful relationship with his father. The reasons why this has occurred will, no doubt, be the subject of cross-examination at any final hearing.
That said, the potential for a further disruption in the child’s relationship with the father is not remote, notwithstanding the reality that the father has not been convicted of the offences alleged and is entitled to the presumption of innocence.
There are clear issues in this case that warrant further investigation and the Court consequently needs to tread more cautiously in the interim arrangements that will be necessary in this decision and beyond.
I note also that pursuant to amendments to the Act that commenced in 2012, I am required to give greater weight to s.60CC(2)(b) as against s.60CC(2)(a).
Additional considerations: s.60CC(3)
In relation to s.60CC(3)(a), I would note that the views of the child, whilst significant, would be difficult to determine in this case given that [X] is just 2 years of age. Nevertheless, [X]’s “views” may be something that the single expert Dr Q can assist the Court with in due course through observations of the child with each of the parents.
In relation to s.60CC(3)(b) (the nature of the relationship between the child and each of the child’s parents), we have, not uncommonly in these types of disputes, different stories being presented to the Court at this stage. That evidence will require testing.
It would appear that the mother has been the child’s primary carer since birth, although the father asserts that he also cared for the child (with the assistance of the paternal grandparents) during 2013 when the mother returned to full-time work. Indeed, there appears to be factual agreement that during 2013 (until October of that year) the child attended day care three days per week (Monday, Thursday and Friday) and the father cared for the child with his parent’s assistance on Tuesdays and Wednesdays.
As to s.60CC(3)(c) (the extent to which each parent has taken, or failed to take the opportunity to participate in making decisions), again, each party make allegations and criticisms of the other.
As to s.60CC(2)(ca) (the extent to which each of the children’s parents have fulfilled their obligations to maintain the child), both parties make allegations against the other.
As to s.60CC(3)(d) (the likely effect of changes), that is very much the live issue in this interim dispute. The child has not spent time with the father since mid-October last year.
As a general finding, the Court is satisfied that this matter is in dire need of firm interim parenting arrangements. The Court does not want to see any delay occasioned that might escalate the situation to the point where the child’s relationship with the father is irrevocably harmed. That said, the Court has previously commented on risk of psychological harm [X] may suffer if his time with the father is re-established then abruptly ceases for reasons associated with the father’s criminal proceedings.
While I note the father’s argument that any risk of disconnect arising from him being unable to attend supervised visits would be ameliorated by the constant presence of the paternal grandparents, it is the child’s relationship with the father that is central. The child will be re-establishing and further developing his relationship with the paternal grandparents regardless of whether the child’s relationship with the father is re-established now or following the ‘finalisation’ of the father’s criminal proceedings.
I now move to s.60CC(3)(e) (the practical difficulty issues). While the mother’s allegations are yet to be tested, the fact remains that the child has not spent time with the father for over a year.
Contact centres play a crucial role in facilitating the child’s right to spend time with a parent in a safe and child focused way. In some cases independent supervision can provide the relevant party with powerful evidence that they are suitably able to care for the child without the need for further supervision.
I note that the mother’s anxiety about any potential risk to the child spending time with the father has now reduced and there is, as stated, an agreement for one or both of the parental grandparents to accompany the father to the supervised visits.
I now move to s.60CC(3)(f) (the capacity of each of the child’s parents). In this case the parties each made criticisms of the other. In particular, the mother raises serious allegations against the father which, if established, would seriously cast doubt on his capacity to parent [X]. I otherwise refer to previous comments.
In respect of s.60CC(3)(g) (maturity, sex, lifestyle and background), there are no specific matters here to assist the Court that have not already been referred to this decision.
In respect of s.60CC(3)(h) (if the child is an Aboriginal child or a Torres Strait Islander child), I am not aware that either the child is or identifies as an Aboriginal or Torres Strait Islander.
In relation to s.60CC(3)(i) (the attitude issues), I simply reiterate my earlier comments.
In respect of s.60CC(3)(j) (family violence) and s.60CC(3)(k) (family violence orders), they are both live issues and relevant in this case. The mother, in particular, makes disturbing allegations of family violence at the hands of the father. Those allegations will require testing.
In addition to the father’s criminal proceedings, there are unresolved family violence order proceedings between the parties. The Court is not in a position in this interim decision to make any findings as to whether family violence has occurred or not. Those issues will be considered by the District Court of NSW in November.
As to s.60CC(3)(l) (whether it would be preferable to make an order, that would be least likely to lead to the institution of further proceedings), this is not applicable at this stage because this is an interim decision.
As to s.60CC(3)(m) (any other fact or circumstance), the Court notes that the [C] Contact Service has indicated to the parties and the ICL that they have a paid place presently available on Saturday mornings (in addition to a mid-week place).
Otherwise, there is no other fact or circumstance that the Court raises that has not already been discussed in these reasons.
Conclusion
Having considered the issue in dispute in light of the relevant principles and the available evidence, the Court agrees with the ICL’s submission that the supervised time should not commence until the father’s criminal proceedings are finalised.
I note that I raised the issue of what the ICL meant by the word “finalised” during the course of submissions. Clearly, I am satisfied that should the father be found not guilty (or the criminal proceedings withdrawn) that it would be appropriate that the child immediately commence spending time with the father at the contact centre. If the father is convicted but is not incarcerated, or is not incarcerated on a full-time basis or his ability to attend the contact centre not restricted, then the Court also sees no difficulty with the supervised time commencing. If the father is convicted, but released on bail pending appeal, then an issue may arise as to whether the contact centre time should commence. That may be an issue that will require further judicial consideration.
As stated, given the nature of the substantive proceedings and the complexity of the matter, the parties requested the Court to transfer the proceedings to the Family Court of Australia. I note that I agreed to that request. I further note that the matter returns before a Registrar of the Family Court on 8 December 2014.
There will be orders of the Court (and consistent with the Minute of Order proposed by the ICL) to reflect these reasons.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Monahan.
Associate:
Date: 5 September 2014
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