ENRIGHT & NORMANDS
[2019] FCCA 1278
•9 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ENRIGHT & NORMANDS | [2019] FCCA 1278 |
| Catchwords: FAMILY LAW – Parenting – interim hearing – whether it is appropriate for the Court to make an order for equal time – whether there is an unacceptable risk of harm of the child spending unsupervised time with the father. |
| Legislation: Evidence Act 1995 (Cth) s.131 Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61C, 61DA, 61DAE 65DAA |
| Cases cited: Goode v Goode (2006) FLC 93-286. Godfrey and Sanders (2007) FamCA 102. Marvel v Marvel (2010) 43 Fam LR 348. MRR v GR (2010) FLC 93-424. Slater & Light (2013) 48 Fam LR 573. Banks v Banks (2015) FamCAFC 36. Eaby & Speelman (2015) FLC 93-654. Britt & Britt (2017) 56 Fam LR 526. |
| Applicant: | MR ENRIGHT |
| Respondent: | MS NORMANDS |
| File Number: | SYC 1162 of 2019 |
| Judgment of: | Judge Morley |
| Hearing date: | 9 May 2019 |
| Date of Last Submission: | 9 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 9 May 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Mokhtar of Amg Law Firm |
| Solicitors for the Respondent: | Mr Blumberg of Blumberg Family Lawyers |
ORDERS
The parents have equal shared parental responsibility for [X] (“the child”) born … 2017.
The child live with the mother.
Each of MR ENRIGHT born … 1979 and MS NORMANDS born … 1983 and their servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of [X], born … 2017, female, from the Commonwealth of Australia.
[X] be and is/are hereby restrained from leaving the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to the preceding order by placing the name(s) of the said child or children on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child or children’s name(s) on the Watch List for a period of two years.
Upon expiration of the period referred to in Order 5 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watch List.
The child is to spend time with her father until, and including, 7 August 2019 as follows:
(a)From 9am until 12 noon every Monday;
(b)From 4pm until 7pm every Wednesday;
(c)From 9am until 1pm every Saturday
The child is to spend time with her father, from and including, 10 August 2019 as follows:
(a)From 9am until 12 noon every Monday;
(b)From 4pm until 7pm every Wednesday;
(c)From 9am until 4pm every Saturday, except Saturday 31 August 2019
On Sunday 1 September 2019, being Father’s Day, the child is to spend time with her father from 9am until 4pm.
Changeovers at the start and end of the father’s time with the child occur at the Suburb A Library in Street B, Suburb A, as follows:
(a)In the vestibule inside the Library, if open; or
(b)Outside the front door if the Library is closed
Each of the parents is restrained from making comments derogatory of the other parent, any member of the other parents’ family, or any member of the other parents household in the presence or hearing of the child.
Each of the parents is restrained from allowing the child to remain in the presence or within the child’s hearing, of any other person who is making comments derogatory of the other parent, any member of the other parent’s family, or any member of the other parent’s household.
Each of the parents is restrained from physically chastising the child, including but not limited to by smacking, hitting, pushing or pulling.
Each parent is restrained from authorising or allowing any other person to physically chastise the child by, including but not limited to, smacking, hitting, pushing or pulling.
The matter is adjourned for mention, directions and possible further interim hearing to 20 September 2019 at 11am.
Any further affidavit material to be filed by the parties on the prospect of any further interim hearing on 20 September 2019, is to be filed and served no later than 6 September 2019.
The parties are to attend a Conciliation Conference with a Registrar at 10am on 14 June 2019.
The Registrar will undertake a compliance check on 7 June 2019 at 9:15am.
Each legal representative and any self-represented party is to attend the compliance check by telephone.
The dial-in details are:
Dial in number …
Passcode …
Each party must within 10 days from this date:
(a)do all things to provide full and frank disclosure to the other party including but not limited to such of the matters set out in Rule 24.03 of the Federal Circuit Court Rules 2001 as are relevant to these proceedings;
(b)comply with Rule 24.04 of the Federal Circuit Court Rules 2001 by serving on each other copies of the documents provided for therein as applicable; and
(c)provide confirmation that the Trustee of any fund sought to be the subject of a splitting order has been accorded procedural fairness.
At least 7 days before the Conciliation Conference the parties must deliver to the Registrar conducting the Conciliation Conference a collaboratively prepared single balance sheet setting out all assets, liabilities and financial resources which each party asserts are relevant to the determination of this matter, and the document shall have footnotes which explain the differences between the parties in relation to any disputed item.
Any documents required for the Conciliation conference are to be emailed to [email protected].
At least 7 days before the Conciliation Conference each party must send to the other and to the Registrar copies of:
(a)completed Conciliation Conference document, being a document setting out that party’s assertions as to:
(i)the percentage share of the net asset pool to which they are entitled;
(ii)the respective contributions of each party to the net asset pool (expressed as percentages);
(iii)any adjustment to be made pursuant to section 75(2) of the Family Law Act 1975 (expressed as a percentage); and
(iv)the facts alleged by each party in support of each of the foregoing.
Not less than 7 days prior to the Conciliation Conference each lawyer for a party shall provide to their client a written statement of fees incurred to that time, expected to be incurred for the Conciliation Conference and likely to be incurred in preparation for and conduct of a trial if the matter is not resolved.
The directions hearing listed on 14 June 2019 at 10am before Judge Monahan is hereby vacated.
THE COURT NOTES:
(a)In these orders no restriction is placed on where the father can spend his time with the child, pursuant to these orders.
(b)The Court has carefully considered, but has not made any specific order for telephone time between the father and the child, due to the frequency each week of the time the father will spend with the child.
(c)If the matter goes to a further interim hearing on 20 September 2019, the Court will consider affidavit evidence and material of any matter occurring from today to the date of that further interim hearing, but will not consider any factual matters antedating today unless such evidence was not readily or reasonably available to the party advancing that evidence, as at today.
(d)The parties will complete compliance with the Act and the Rules as to full and frank disclosure prior to the compliance check for the conciliation conference.
(e)The conciliation conference has been allocated on the basis that the property issue between the parties relates principally to debt and the allocation of the responsibility for that debt.
IT IS NOTED that publication of this judgment under the pseudonym Enright & Normands is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1162 of 2019
| MR ENRIGHT |
Applicant
And
| MS NORMANDS |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings today relate to an interim hearing on parenting issues between Mr Enright as Applicant father and Ms Normands as Respondent mother.
Both parties are represented by their solicitors on hearing.
The proceedings concern parenting orders to be made in the interests of [X] born … 2017.
At the time of hearing [X] is one year and eight months of age.
Procedural History
The parties met in about … 2012 and commenced cohabitation in about … 2013. The parties married on … 2015 and, pursuant to the evidence of each of the parties, they separated on an acceptance that their marital relationship had broken irretrievably in about February 2018.
The parties remained residing under the same roof until the mother vacated the matrimonial home with the child, [X], on 17 April 2018.
These proceedings were commenced by the father filing an Initiating Application on 26 February 2019 and first came before the Court before his Honour, Judge Monahan, on 1 May 2019.
The mother filed her Response to application for final orders on 7 May 2019.
On 1 May 2019 his Honour adjourned the matter to 9 May 2019 before himself, but in rearrangement of the Court calendar, the matter came into my docket for hearing by me on an interim basis today.
On that occasion, his Honour further adjourned the matter for further mention and directions at 10 am on 14 June 2019.
On that day his Honour made a further order that the parties attend a Child Dispute Conference on 24 May 2019 at 10 am and gave directions as to how and when the parties were to arrive for that conference. Self-evidently, that conference has not occurred as yet, but for reasons I will set out in this judgment I consider it appropriate to proceed with an interim hearing and consideration of the orders properly to be made in the short term for [X].
On that day his Honour further made an order that [X] be independently represented and made the usual request to the Legal Aid Commission of New South Wales to facilitate that representation. In the normal course it would not be expected that the Legal Aid Commission of New South Wales would have had time to action that order by today and it is not to be expected that an Independent Children’s Lawyer would have been appointed, let alone available and prepared today, to take part in this interim hearing.
On that day his Honour further made notations that the interim hearing to be conducted today would be limited to the issues as to whether [X]’s time with her father would be increased in the short term and if so the circumstances and frequency, noting that the father was seeking only to spend day time with the child at this point.
His Honour also noted the issue for consideration as to whether there should be any restraints in relation to the Applicant father’s time with the child pursuant to any orders made today.
The Parties’ Proposals
The father, in his Initiating Application filed 26 May 2019, set out the parenting and property orders he sought on a final basis and also the orders in relation to parenting he sought on an interim basis.
The mother, in her Response filed 7 May 2019, also set out the interim orders that she sought in relation to parenting, but did not set out any final orders in relation to either parenting or property. That will necessitate a direction for the mother to file an Amended Response to the application for final orders in due course to address both parenting and property on a final basis.
The actual orders sought today by each party are very properly set out on their behalf by their solicitors in case outlines prepared and filed to the Court in preparation for the interim hearing.
In the case outline document filed for the father, the orders he seeks have been set out. I incorporate into these reasons the orders set out under heading ‘F’ in the father’s case outline:
a)That within seven (7) days from the date of these Orders, the Mother provide to the father the residential address of the Child, [X], female, born …, 2018 (“the Child”).
b)That the Marshal of the Court, Deputy Marshall, all officers of the Australian Federal Police and all state and territory police officers are requested to find and recover the Child, [X], female, born … 2017 and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the Child may be found.
c)That the parties have equal shared parental responsibility for the Child, [X], female, born … 2017 (“the Child”).
d)That within seven (7) days from the date of these Orders, the Mother shall provide to the Father, the full address of where the Child resides.
e)That the child spend time with the father at all times as may be agreed to between the parties and failing agreement as follows:
i)From the date of these orders and for a period of three (3) months:
(i)From 9:00am until 12:00pm every Monday and Thursday;
(ii)From 4:00pm until 7:00pm every Wednesday;
(iii)From 9:00am until 1:00pm every Saturday.
ii)From the conclusion of the above and for a further period of three (3) months:
(i)From 9:00am until 12:00pm every Monday and Thursday;
(ii)From 4:00pm until 7:00pm every Wednesday;
(iii)From 9:00am until 4:00pm every Saturday.
f)That for the purposes of spending time with the Child, the father will collect the Child from an agreed location, or failing agreement, from the mother’s residence at the commencement of his time with the child.
g)That at the conclusion of the father’s time, the mother shall collect the Child from an agreed location, or failing agreement, from the father’s residence at the conclusion of the father’s time with the Child.
h)If Mother’s Day falls on a day when the mother does not otherwise have care of the Child, the mother will have care of the Child from 9:00am until 6:00pm on Mother’s Day notwithstanding any other order.
i)If Father’s Day falls on a day when the father does not otherwise have care of the Child, the Father will have care of the Child from 9:00am until 4:00pm on Father’s Day notwithstanding any other order.
j)That the father will be able to communicate by telephone with the father at all other times, and that the mother does all she can to facilitate such communication.
k)That the parties will be both entitled to attend all events and involving the Child, including, but not limited to school functions, sporting fixtures and extracurricular activities.
The orders sought by the mother are set out in her Annexure A to her case outline. I incorporate into these reasons the orders set out in Annexure A:
(a)That the child shall live with the mother.
(b)That the child shall spend time with the father as follows:
(i)Until the child is two and a half years of age, each Monday, Thursday and Saturday from 9:30am till 12noon;
(ii)Until the child is three years old each Monday, Thursday and Saturday from 9:30am till 1pm.
(c)That the father spends time with the child in the Suburb A Shopping Centre, with handovers and returns to take place at the Suburb A Library.
(d)That neither party denigrate the other party in the presence of the child.
(e)That if the father arrives more than five minutes late the time will be suspended for that occasion.
The Father’s Evidence
In preparation for the interim hearing, the father filed an Affidavit either sworn or affirmed by him on 22 February 2019 and I have read and carefully considered all of the paragraphs in that affidavit and the annexures thereto.
I have, in considering all of the material contained in that affidavit, given to that evidence such weight, paragraph by paragraph, as I deem appropriate.
In preparation for the interim hearing, the mother filed an affidavit affirmed by her on 3 May 2019. I have read and given careful consideration to all of the paragraphs in that affidavit and to the annexures thereto.
In the course of the interim hearing, two documents were tendered to the Court as exhibits on behalf of the father. Exhibit A1 is a print of an email dated 8 April 2018 from Mr Enright to Ms C. I have read and carefully considered the whole of that document.
Exhibit A2 consists of 11 pages of prints of a text message sequence between the father on the one part, his part of those conversations being shown in light green, and [X]’s maternal grandmother. Her part of that conversation being shown in white.
The mother did not object to that document being admitted into evidence, but did not accept that the pages submitted constituted an unbroken and comprehensive sequence of the conversations between the parties from the date first shown thereon, 6 April 2017, until the date last shown thereon, 7 August 2017. I have read and carefully considered all of the contents of that document.
In relation to that document I note that, on its face, it cannot purport to be a comprehensive print of all of the said conversations between the parties between those dates. I note that between a page showing items on 23 April 2017 and a page showing items on 15 May 2017 there is, when the Court examines the bottom of that first page and the top of the next page, self-evidently some omission of material.
The evidence relied upon by the father as stated above is contained in his affidavit either sworn or affirmed 22 February 2019. In relation to that material, as stated, I have read and carefully considered the whole of the document. I refer, in particular, to certain parts of the document in considering what orders are best to be made in the interest of [X] on this interim hearing.
The affidavit sets out the father’s evidence as to the commencement and sequence of the relationship between the parties and the father’s evidence in relation to some parts of the course of the relationship between the parties and the end of the relationship resulting from the parties’ separation.
In paragraph 17 thereof the father says:
In separation I have only been able to spend time with [X] outside of my place of residence and on Ms Normands’s request at public places, specifically at Suburb A Library and Shopping Centre.
I have accepted this arrangement as I have had no other choices and I wanted to use any opportunity to see my daughter.
On the evidence as presented by the parties and in the course of submissions, the Court is aware that undertakings were entered into either by both parties or by the father in relation to the time the father was to spend with the child pending the matter coming before the court for interim consideration.
The Court is not given by either party a copy of those undertakings, but as was put very properly by both solicitors those documents are, perhaps, protected from coming to the Court for consideration by section 131 of the Evidence Act, as the Court is told that they are marked as “Without Admissions” and more importantly “Without Prejudice” and may well represent evidence of negotiations between the parties outside of Court.
In the father’s affidavit, from paragraph 22 and going down to paragraph 35, the father gives evidence of his involvement in the care of [X] from the time [X] was born. That evidence includes the father’s evidence contained in paragraph 31 thereof to the following effect:
Similarly, on 18 February 2018 Ms Normands worked a full day. I spent the entire day caring for and spending time with [X].
I fed her with pumped breast milk and regular food and played with her in the morning and took her for the afternoon to Suburb D and we had a picnic and played there for the day. We returned in the evening at approximately 7 pm.
I recall being so exhausted I fell asleep when I returned, and I recall Ms Normands being very angry at me because I did not cook dinner that night or return all the equipment from her work.
The evidence has dual purpose in the course of consideration. Firstly, consideration of the evidence given by the father of care he has provided to the child at about the point of the parties’ separation in the absence of the mother, but also leaves the Court wondering if it is one of the occasions referred to by the mother in her affidavit of the father falling asleep, as he deposes, whilst the child is in his care, but before the return of the mother. It cannot be said that it is, because it is not clear from the paragraph.
In paragraphs 43 through to 55 of his affidavit, the father gives evidence about the time that he has spent with [X] since the parties’ separation. The father deposes in paragraph 44 that between 17 April 2018 and 16 August 2018 he had only spent 45 minutes with [X].
The father then deposes that since [X]’s first birthday on … 2017 he has been able to spend some increased time with [X] but still limited to periods of only two hours on any occasion. The father deposes in paragraph 46 that he currently spends with [X] two hours each Saturday and two hours each Monday. The father’s time with [X] has always been outside his place of residence and in a public place.
The father gives evidence in paragraph 56 of his affidavit, that he and the mother have been able to communicate using an online application called ‘Trello’. The documents tendered on the father’s behalf that I have referred to above as Exhibits A1 and A2 are identified in submissions made on the father’s behalf by Mr Mokhtar as being tendered for the purpose of countering allegations made by the mother in her evidence as to the husband being abusive and threatening to members of her family in communications between them.
In examining carefully the content of both of the documents entered as exhibits, the Court is able to find that they do not contain material that is threatening or abusive. The Court notes on the evidence that it is common that there was a period of time when the child’s maternal grandmother, luckily and fortunately for [X], was able to be with the parties and spend time with them.
Much of the material in these documents is discussion between the parties about family matters as to the text material and in the email is a one-sided statement, naturally enough, by the father to the grandmother going into certain family matters in detail.
As the maternal grandmother had been a guest in the parties’ home at some time, and based upon assertions made by the father that the maternal grandmother made certain statements, then the contents of the email are, in that light, perfectly explicable. The Court does not find that the maternal grandmother made those statements, as the Court is not in a position to so find.
The Mother’s Evidence
The mother’s evidence, as stated above, is contained in her affidavit affirmed 3 May 2019. As stated above, I have carefully read and considered all of that document and I give to each paragraph of that document the weight that I consider appropriate. In that document the mother gives her evidence of the commencement and course of the parties’ relationship through to the time of their separation.
In paragraph 20 of that affidavit the mother says:
[X] has not been immunised and cannot attend day care centres until primary school. I am [X]’s sole carer.
It is not clear from that paragraph if [X] will, ultimately, be able to attend primary school without having immunisations or if it is intended that she will have immunisations before that time.
In the course of the interim hearing, and in response to a statement made in submissions resulting in a question from the bench, both parties indicated that they were aware that [X] had not been immunised and it appeared both parties were complicit in not arranging immunisation for [X] at the moment. I make those statements without making any adverse comment toward the parties or without making any comment in relation to immunisation as such.
In the mother’s affidavit from paragraph 21 through to 39, the mother gives evidence in relation to incidents occurring in the course of the parties’ relationship leading, upon her evidence, to the breakdown in the relationship. In the course of that evidence the mother makes certain generalised statements, for example:
Mr Enright raised his voice to me when I expressed my opinion during a conversation at dinner. Mr Enright became angry, yelled at me and left the table.
Mr Enright often blamed me for our arguments and said that I caused him to yell at me through [sic] the way I was.
In paragraph 30:
Mr Enright often distorted what I said and tried to convince me that I was crazy and blamed my sleep deprivation.
In paragraph 31:
Mr Enright sent my family in Country E abusive and manipulative messages, emails and calls, to my mother Ms C, sisters Ms F and Ms G, and my brother-in-law Mr H. My family felt harassed and intimidated.
In relation to the material quoted and other such examples in the course of the affidavit, I note that generalised statements as such can have very little weight in the Court’s consideration as they are, at the very best, assertions made without providing a factual base.
Factual base is a description of an event occurring, repeating what was said, if anything, at least in “words to the effect of” and descriptions of actions. I am conscious of the decision of the Full Court of the Family Court of Australia in Britt & Britt[1] and whilst in my position as a trial judge I reserve my comment on the statement of the Full Court therein, in relation to the Evidence Act containing nothing against the admission of conclusions, the Full Court is very careful to make point that even where evidence is admissible, the next consideration for all Courts is a consideration of the weight to be assigned to evidence. I do not assign any weight to generalised statements in the affidavits presented in these proceedings. In referring to the affidavits I am referring to both affidavits. That is not a criticism of the crafters of the affidavits.
[1] Britt & Britt (2017) 56 Fam LR 526
I do note that in those paragraphs referred to earlier, the mother gives evidence in paragraph 26:
When I was 12 weeks pregnant, Mr Enright told me he was very overwhelmed by his finances and the changes that were going to take place when [X] was born: that he thought the only option, therefore, was to “jump off a bridge and kill” himself.
I also note carefully the material contained in paragraph 34:
After Mr Enright purchased the tickets, he hit the table with his fists several times while yelling at me to purchase my own ticket, despite Mr Enright previously telling me that he would pay for my ticket. I became very scared after seeing Mr Enright hit the table and thought that Mr Enright was going to hit me. [X] was sleeping in the next room and Mr Enright’s screaming woke her up.
In the mother’s affidavit, in paragraphs 41 to 44, and then again in paragraphs 50, 51, and 54, the mother gives evidence of disclosures she asserts that she made to various bodies in relation to behaviours of the father that she and, on her evidence, other persons, considered to be family violence. This includes disclosures made by the mother to New South Wales Police, a midwife named Ms J from ‘Early Childhood Centre’, the Region K Women’s Domestic Violence Court Advocacy Service, a social worker with Centrelink and the mother’s psychologist, Ms L. Any statements made by any of the persons to whom the mother deposes she made disclosures are in response to assertions made to them by the mother. In that regard, the mother has annexed as Annexure A to her affidavit an email dated 10 April 2018 from Ms M. Whilst these statements are corroborative of complaints made by the mother in relation to family violence, they are not of themselves any evidence that family violence occurred.
Importantly, in paragraphs 52 and 53 of the mother’s affidavit she gives evidence as to being concerned that if given opportunity, the father may take [X], leave Australia and go to Country N. In paragraph 53 the mother deposes:
I believe that there was a high risk that Mr Enright would take [X] to Country N as he was insisting that I sign forms for him to be able to travel.
In relation to Country N, the Court notes that Country N is a signatory to the Hague Convention. In relation to Country E, which was also pertinent as it is the mother’s country of origin, the Court notes that Country E is not a signatory to the Hague Convention.
In paragraphs 62 to 64, the mother gives her evidence in which she asserts that on at least two occasions she was subjected to stalking by the father. In March 2019, she asserts that she saw the father drive past the unit and look into her unit. In April 2019, the father arrived at her unit demanding to have his time with [X] when she had notified him that she would be running 20 minutes late to a changeover.
All of the evidence in the mother’s affidavit has been carefully considered, but most importantly is paragraph 65 of the mother’s affidavit in which the mother sets out in subparagraphs (a) to (e) thereof, the risks that she asserts apply for [X] if [X] is to be unsupervised in the father’s care. The words used by the mother at the commencement of paragraph 65 are:
If [X] is left unsupervised in Mr Enright’s care, the risk to [X] would be:
And then follows the subparagraphs (a) to (e) referred to. It is noted that in the orders sought by the mother on the interim hearing, it is not proposed by the mother that the father’s time with [X] be supervised in any form, or in the usual sense of supervision. It is noted that the mother proposes in her orders that any time that the father spends with [X] be:
In the Suburb A Shopping Centre area, with handovers and returns to take place at Suburb A Library.
It may be that in paragraph 65 of her affidavit, the mother considered the supervision referred to therein to be passive and unknowing supervision by other persons present around the public areas where the father would spend time with [X] pursuant to the orders the mother proposes. If it has the usual and formal meaning of “supervision”, then it is irrelevant as it is not an order sought by the mother on an interim hearing.
In considering carefully the mother’s assertions of risk, I have read with great care the subparagraphs in paragraph 65. Subparagraph (a) is under a heading, “[X] being abducted”. I note that headings do not form part of the sworn part of the document.
As mentioned by me to the parties through their solicitors in the course of submissions, fears of abduction can be addressed by the making of a Watch List order. A Watch List order is not part of the orders formally sought by the mother in her orders sought on interim hearing, though her solicitor properly indicated to the Court that the mother did seek the making of a Watch List order. A Watch List order is part of the orders sought by the father in the orders he seeks on interim hearing.
The evidence relied upon by the mother in that subparagraph (a) relates to incidents she asserts occurred in January 2018, being a month before the parties separated. Those incidents relate to the planning of travel within the time of the cohabitive relationship. The mother refers to advice given to her, as she asserts, by various professionals. I place no weight whatsoever on that subparagraph 2 in relation to the matter, as the advice given to the mother by other persons is based only on the assertions made by her to them and is of no weight.
Subparagraph (b) is under a heading “[X] being left unattended and neglected because Mr Enright is distracted or sleeping”. Thereunder in three numbered paragraphs the mother relates certain incidents when she asserts that during the course of their cohabitive relationship and, in paragraph 3, in the month of their separation, the mother asserts there were incidents where the father, through inattention including by falling asleep, was not properly caring for the child. One of those incidents in numbered paragraph 1 contains an assertion by the mother as follows:
When [X] was four months old, Mr Enright was distracted and left [X] on the couch unattended. [X] was young and could not sit by herself. [X] hit her head on the coffee table and fell to the floor.
I note that the mother does not indicate if the above occurred before or after the parties considered their relationship to be at an end.
In the course of submissions, I inquired if any medical assistance was sought or obtained for [X] as a consequence of, pursuant to that evidence, and at four months of age with the skull density of a four month old child, she had struck her head on a coffee table and then continued on to fall to the floor. In response I was informed, in effect from both parties, that [X]’s medical welfare was checked at the request of one or both parties by a chiropractor referred to, and on question, confirmed to be, [X]’s chiropractor. The Court can take it from the state of the evidence that as a result of the incident referred to [X] did not suffer any injury. In relation to paragraph 2:
When [X] was six months old, Mr Enright fell asleep while taking care of her and let her move around the living room by herself.
As pointed out by the solicitor for the father in submissions, it is unclear if this occurred totally outside the mother’s presence when she was away from wherever this was taking place, or if it occurred when the mother was also at the home.
Subparagraph 3 is under a heading, “[X] being seriously injured or killed”. Given the gravity of the asserted risk contained in that heading I have read and considered very carefully the material contained in the five numbered paragraphs that follow thereafter.
I do not consider that any of that purported evidence or, indeed, any of the evidence before me as a whole, by both the mother and the father, leads to any basis at all to make a finding, even on the basis of extreme benefit of the doubt and extreme improbability of risk, that there is any risk of the child being killed by the father.
The assertion in the paragraph is that the mother fears that the father would kill the child, herself and himself. There is no evidence of any weight to substantiate that fear. That is not to say that the mother does not hold that fear. That is not to say that the mother, if she does hold that fear, doesn’t hold that fear on the basis of a belief. I am not to make orders in the best interests of [X] based upon the beliefs of either or both of the parties, but based upon the evidence and the law.
Subparagraph (d), the heading, “Being verbally abused and subject to the denigration of me as her mother”. Following that heading is narration of an incident occurring in November 2018, at the end of the year in which the parties separated, in which the father:
Called me a bitch and told me that I was crazy.
This is asserted to have taken place in the presence of a third person who later made comment on it. I do not consider that the incident referred to is a basis on which I could find that there is a risk to [X] of psychological harm from the father in statements derogatory of the mother being made to [X] whilst [X] is in the father’s care.
Finally, paragraph (e), under the heading, “Not being properly cared for”. There follows on from this four numbered paragraphs relating four separate incidents purporting to raise a risk that in the father’s care, [X] will not be properly cared for. The first numbered paragraph relates to the mother’s assertion that when [X] was five and a half months old the father wished to feed [X] some formula.
The second numbered paragraph relates to April 2018 where it is again asserted by the mother that the father wished to feed [X] formula.
The third relates to an incident asserted to have occurred when [X] was six months old and was having swimming lessons. [X] was distressed in the water to the point where the mother jumped in to assist, calm [X] down and take her out of the water.
The fourth and last relates to the mother’s assertion that from when [X] was eight months of age up to the present time, the father has made requests to spend time with [X] after hours. There is no indication of what is meant by “after hours”. The mother asserts a belief then on her part. A belief is not admissible evidence on any basis, even though those parts of the Evidence Act that relate to hearsay evidence and to opinion evidence do not apply in these proceedings, being proceedings under division 12A of part 7 unless the Court makes an order that they will apply. The Court has not done so.
As such, that part of the paragraph would not get into evidence as it offends the first rule of admissibility. It is not relevant.
The Law
The Full Court of the Family Court of Australia in Goode & Goode[2] has set out a framework to be followed by Courts at first instance on interim applications relating to parenting matters and, in particular, following the amendments of the Family Law Act 1975 (Cth) (‘the Act’) occurring in the year 2006.
[2]Goode v Goode (2006) FLC 93-286
In paragraph 82 of the judgment, the Court set out a framework for Courts to follow. I incorporate paragraph 82 of Goode & Goode into these reasons:
[82] In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(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.
In these proceedings I have followed the framework as suggested by the court in Goode & Goode.
In this matter, as in so many interim matters concerning parenting orders on a contested basis, there are facts asserted by each of the parties which are disputed by the other party.
A Court in an interim hearing cannot make findings of fact on disputed facts unless there is sufficient other corroborative evidence of such a nature as to make it open to the Court to make a finding on the disputed fact on a balance of probability for interim purposes.
Absent such corroborative evidence going to a point where it enables such a finding, the Court is told repeatedly by the Full Court, and in all good common sense, that the Court should be extremely careful in attempting to make findings of fact on disputed evidence. I refer to Marvel & Marvel[3] where the Full Court, composed of Faulks DCJ, Boland and Stevenson JJ, discussed the problems associated with making findings on disputed evidence as follows:
[3]Marvel v Marvel (2010) 43 Fam LR 348
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
[121] The issue of when the making of findings on contested evidence will constitute appealable error has been considered in a number of Full Court decisions (see Goode at paragraph 82(d)). In this case we agree with the written submissions made by the former counsel for the ICL and the oral submissions of counsel for the ICL at the hearing of the appeal that two findings of the trial Judge were inappropriate, namely that:
a) the father demonstrated a greater level of parental responsibility when the evidence on which that finding was based was the fact the majority of the children lived with him; and
b) the incidents reported by the mother constituted “low level violence” as the violence identified fulfilled the statutory definition of family violence in the Act.
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Thereafter, the Full Court in Eaby & Speelman[4] said in paragraph 80 thereof:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child and for those issues not to be ignored.
[4]Eaby & Speelman (2015) FLC 93-654
Much of the disputed evidence between these parties is evidence going to the mother’s assertion of risks to [X] if she is to spend time with the father other than in accordance with the orders proposed by the mother.
That evidence is disputed by the father in pursuance of asserting to the Court that orders should be made for him to spend time with [X] in accordance with the orders he proposes. Pointedly, as well as being for different periods of time, the mother seeks to have all of the time the father spends with [X] take place in a public place in the Suburb A Shopping Centre area or at the Suburb A Library whilst the father seeks that he be unregulated by order as to where he spends his time with the child.
The Court, when questions of risk are raised in parenting proceedings, must be very careful to consider those elements of risk that are raised and to consider whether those risks require the Court to assess, in the best interests of a child when making parenting orders, first of all, whether the risks are, in fact, risks. If so, are those risks acceptable or unacceptable risks. If unacceptable risks, are there orders that can be put in place to mitigate or deal with the risk such that time can then be spent between the child and the asserted parent causing risk, or are the risks of such an unacceptable nature that there cannot be time.
Happily, this is not a case where it is asserted or put forward by the mother that they are unacceptable risks such that there should be no time. The mother proposes time.
The topic of risk was very fully considered by the Full Court of the Family Court of Australia in Slater & Light.[5] I incorporate into these reasons paragraphs 33 to 37 of the judgment thereto:
[5] Slater & Light (2013) 48 Fam LR 573
[33] Consideration of risk of emotional abuse stems from the mandatory considerations under the legislation. Section 60CC(2)(b) requires the Court, in determining the best interests of the child, to consider as a primary consideration, “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.
[34] The assessment of risk is guided by statements of the High Court and of this Court, albeit primarily in the assessment of risk of sexual abuse. In M and M (1988) 166 CLR 69 the High Court confirmed that consideration of abuse is not confined merely to a determination of the occurrence or risk of occurrence of abuse, but must be within the context of the Court’s broader and ultimate determination, that is, what arrangements are in the best interests of the child. In joint reasons for judgment, their Honours (Mason CJ, Brennan, Dawson, Gaudron and Toohey JJ) said (at p76-77):
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities. …
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
[35] Their Honours noted cases addressing magnitude of risk and appeared to prefer a standard of “unacceptable risk” in relation to parental access (at p78):
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A. v. A. (17)), “an element of risk” or “an appreciable risk” (Marriage of M. (18)), “a real possibility” (B. v. B. (Access) (19)), a “real risk” (Leveque v. Leveque (20)), and an “unacceptable risk”: In re G. (A minor) (21). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[36] In B and B (1988) FLC 91-978, a judgment delivered together with the decision in M v M, the High Court endorsed the statement of the Full Court majority (Baker and Maxwell JJ) in both M and M (1988) FLC 91-958 at p76,924 and in B and B (1988) FLC 91-957 at p76,935:
We are of the view as a matter of general principle, that in assessing whether or not there is risk to a child if access were to occur or risk that the welfare of a child could be endangered in the event of access, the ordinary civil standard of proof must be applied. If a trial Judge considers, upon the balance of probabilities, that the welfare of the child may be endangered or there is a risk that the child may be physically, sexually or emotionally harmed if access were to occur, then a trial Judge may, in our view, suspend access.
[37] In Johnson and Page (2007) FLC 93-344, the Full Court (May, Boland and Stevenson JJ) conducted a comprehensive review of the application of “unacceptable risk” following the High Court’s decision in M v M, and agreed with an enumeration of factors expressed by a former judge of the Family Court the Hon. John Fogarty A.M writing ex-judicially:
68. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
1 The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
…
71. We generally agree with Mr. Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).
I have summarised and commented upon the evidence presented by the mother in relation to the risks to the child that she asserts in her affidavit. In relation to those risks, and on the basis of the evidence before the Court, I find that any risk that there may be present in relation to [X] being abducted overseas and, specifically, to Country N by the father is not sufficiently substantiated on the evidence to be considered as a risk.
The Court would consider appropriately for the peace of mind of the mother in that regard and, incidentally, for the peace of mind of the father in relation to any taking of the child to Country E, which is not a Hague Convention country. Both parties request that the Court make a Watch List order relating to [X] on the interim basis. I do not consider that there is any evidence presented in this matter that gives rise to a risk that [X] would be abducted by the father and kept away contrary to Court orders within the Commonwealth of Australia.
In relation to the risk asserted by the mother that [X] will be left unattended and neglected by the father if he is distracted or sleeping, I do not find that the risk asserted is of such a nature as to be an unacceptable risk. I do not intend to make any orders that are based upon the existence of such a risk or any orders dealing with or ameliorating any such risk.
In relation to the risk asserted by the mother of [X] being seriously injured or killed, I have dealt with that fairly fully above. I repeat that on the whole of the evidence I do not find that there is any such risk.
In relation to the risk asserted by the mother that she will be verbally abused and that denigration of her will occur within the presence and hearing of [X], I find that the evidence presented to substantiate that fear, being of one incident of name-calling relating to “bitch” and “crazy” in November 2018, is not sufficient to raise an unacceptable risk. In making that finding I am conscious of all of the other evidence in the mother’s affidavit, including her generalised statements as to being yelled at and so forth in the course of their relationship.
I am careful to note, and I have quoted above, a paragraph where the mother deposed that she was scared as a consequence of actions of the father in hitting a table with his fists and of yelling and so forth. I consider that even that evidence is not sufficient to raise the risk asserted.
Finally, in relation to the mother asserting there is a risk to [X] in not being properly cared for by the father, I have summarised that evidence above and I find that that evidence, and the whole of the evidence presented by the mother, is not sufficient to raise a risk that [X] would not be properly cared for by the father.
Section 60B of the Act sets out the objects of Part 7 of the Act dealing with parenting issues, and also sets out the principles underlying those objects. The Court has very carefully kept in mind those objects and the principles underlying them in considering what parenting orders are best to be made in the interests of [X] in this interim hearing.
Section 60CA of the Act requires the Court to regard the best interests of [X] as the paramount consideration. As I have said earlier, it is not the only consideration, but it is and must always be the paramount consideration. In that manner it must take precedence over fears and concerns of the mother where the Court is able to find that those fears and concerns do not inhibit the Court from making orders in the best interests of the welfare of the child even where those orders may be contrary to and may further feed to fears and concerns.
Section 60CC of the Act sets out the matters that the Court must consider in making a parenting order in relation to a child. Before considering each of those factors I must turn to section 61DA of the Act, which provides that when making the parenting order in relation to a child, a 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 section provides that when the Court is making an interim order the presumption does apply unless the Court considers it is not appropriate in the circumstances for the presumption to be applied when making that order.
In this case there are assertions by the mother of family violence on the part of the father. Family violence is defined in the Act in section 4AB. I note that there are several of the categories of family violence referred to in that section which pair with evidence given by the mother going to family violence.
I refer to section 4AB(2)(c) which relates to stalking, s 4AB(2)(d) which relates to repeated derogatory taunts, and by some implications, though not explicitly, perhaps, 4AB(2)(i) prevention of a family member from making or keeping connections with her family, friends or culture. I repeat that there is no strong evidence at all, or no explicit evidence in that regard.
I do not find on the evidence before the Court that in the terms of section 61DA, I should do other in these proceedings than apply the presumption.
The section provides in subsection (2) that the presumption does not apply, as opposed to “is rebutted”, if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child who at the time was a member of the parent’s family or that other person’s family or family violence. I do not find that there is evidence of abuse.
I do not find that there is sufficient cogent and acceptable evidence of family violence to find that the presumption set out in section 61DA does not apply. Accordingly, I intend to apply the presumption and make an order that the parties have equal shared parental responsibility for [X].
In making that order I must follow the legislative pathway set out in the Act as confirmed by the Full Court of the Family Court in Goode & Goode and by the High Court of Australia in MRR v GR.[6] In that regard, the presumption applying, I must consider firstly whether the child spending equal time with each of the parents would be in the best interests of the child and, if so, be reasonably practicable and, if so, if it is in the best interests of [X] to make such an order.
[6]MRR v GR (2010) FLC 93-424
The Court must go through all three steps in considering the section as set out in section 65DAA. Neither party seeks an order that the parties have equal time with [X]. [X] is currently one year and eight months of age and is being breastfed. The evidence simply in that regard and the evidence as to necessarily the state of the attachment relationships at the present time dictates against an order for equal time being in [X]’s best interests.
I am unable to make a specific finding in relation to the practicality of an equal time order, because there is no evidence before the Court of precisely where the mother lives, though an estimate has been given that she can travel from where she lives to the Suburb A Public Library in about 20 to 25 minutes. It would possibly be practicable, but it not being in [X]’s best interests I need not go any further in that consideration.
Having found that it is not appropriate to make an order for equal time, I must then consider whether it is appropriate to make an order that the party with whom the child will not be living have substantial and significant time with [X]. Substantial and significant time is defined in the Act and may be paraphrased by saying it includes full weekend time and full week day time, such that, for instance, if the child was in attendance at school the parent would have an opportunity of taking to school and taking home from school on the same day. That must be considered in the same triple pattern manner.
Firstly, I must consider whether it is in [X]’s interests for there to be an order for substantial and significant time. Neither party seeks an order that the father have substantial and significant time and, once again, in consequence of [X] still being breastfed, the state of the relationship between the parties and, most particularly, her age at the present time, I find that it would not be in [X]’s best interests for there to be an order that the father have substantial and significant time with here.
I will find hereunder that it is important that the father have regular time with her. Having found it is not in [X]’s interests, I do not need to go on through the other two steps of whether it is reasonably practicable and whether I will make an order.
Having found that it is not in [X]’s interests to make an order for equal time or substantial and significant time, the Court must then go on to consider what orders for [X] living with a parent and spending time with the parent are best in the interests of [X].
In doing so I must consider all of the factors set out in section 60CC of the Act. Section 60CC(2) sets out what are referred to as the primary considerations. The first being:
a)the benefit to [X] of having a meaningful relationship with both of her parents.
The second being:
b)the need to protect [X] from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
Primary Considerations
Section 60CC(2A) directs the Court that in considering the primary considerations, the consideration in (b), being the need to protect the child from physical or psychological harm, must be given greater weight than the consideration of the benefit to the child of a meaningful relationship.
In this matter, having carefully considered the risks to [X] asserted by the mother, I find that other than making a Watch List order there is not a need to protect [X] from physical or psychological harm. However, I do intend on making some interim injunctive orders in relation to the parties mutually in relation to non-denigration and in relation to physical chastisement.
I have not been asked by the parties in particular to make orders relating to physical chastisement, but in addressing the mother’s concerns in relation to [X], I consider that it is in [X]’s best interests to have a specific order made by the Court to that effect.
What is meant by a meaningful relationship has been traversed by the Court in many cases, and I refer in particular to Godfrey & Sanders[7] in which Kay J, sitting as an appellate Court, alone, pursuant to the Full Court powers, considered the meaning of "meaningful relationship" and made the very well-known finding:
[7]Godfrey and Sanders (2007) FamCA 102
…what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
An optimal relationship for children ends when the child's parents separate, or ends when a child's parents' relationship deteriorates to such a state that it is beginning to have a detrimental effect on a child, even though the parties have not separated.
In this matter, [X] lives the greater part of the time, between the separation of the parties and this interim hearing, with her mother. There is no reason whatsoever to doubt that [X] has a meaningful relationship with her mother that is close and loving, and that her mother has provided all the necessities, both practical, emotional and financial, for [X] during that time. The mother self-evidently has a meaningful relationship and must and will continue to have.
The father's relationship with [X] has been truncated since the parties ceased living in the same residence in April of 2018. Since that time, on the father's evidence, he was only able to spend a total of 45 minutes with [X] for the long period between the mother and [X] leaving the residence and August of that year, and thereafter has been able to spend periods of a maximum of two hours with [X] by an ultimate arrangement made between the parties and evidenced in an undertaking referred to in the evidence.
[X], at one year and eight months, is very, very much still in the stage where she is forming her primary and other main attachments. [X]'s primary attachment will be to her mother. The Court is easily able to make that finding. [X]'s other principal attachment will be to her father. However, that attachment has been severely disrupted since April of 2018. That is not a judgmental comment on either party. That is a factual finding. It cannot be in any other way.
It is essential where the Court has found that there is not a risk to [X] from her father that orders are made that enable [X] to pursue developing her attachment with her father, the other principal person in her life.
To the current time, Mr Enright as father, and Ms Normands as mother, are the world authorities on [X]. Between them, they have all the knowledge and all the evidence. The Court has a tiny bit of evidence. People who have been consulted about [X] have a tiny bit of evidence. Between them, the mother and father know everything.
It is vitally important that [X]'s attachments with her father be able to develop and that these two good people go on and find a way, despite their personal differences, to parent [X] in her best interests. In saying that, I am acutely conscious of the mother's fears. In saying that, I am acutely conscious of the risks the mother asserts, but I must view this matter on the basis of [X]'s best interests being the paramount consideration, and I consider that it is in [X]'s very best interests if these parents are able to put aside their personal differences and fears and get on with co-parenting. In that regard, time will tell and these proceedings will go on.
Additional Considerations
The additional considerations in section 60CC must be considered, but pursuant to decisions of the Full Court of the Family Court of Australia, the Court does not have to consider each and every of the additional considerations, but only those which actually apply to the circumstances of the case before the Court.
The Full Court said in Banks v Banks[8] at paragraph 46 to 52:
[46] As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
[47] It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
[48] Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
[50] When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
[51] In our view, the undisputed facts here lead inexorably to the conclusion that it would not be in the child’s interests to be required to move to Australia pending the trial. In arriving at this conclusion we ought to record, without condescending to particulars, that it is arguable the primary judge was led into error in coming to a different conclusion by the way in which the case was presented to her.
[52] In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
[8] Banks v Banks (2015) FamCAFC 36
A consideration of any views expressed by the child is not relevant, given that [X] is one year and eight months of age, and though it is hoped that she is beginning to communicate with her parents and other important persons in some way, she is certainly not of an age to express any view.
The nature of the relationship of the child with: (i) each of the child’s parents and (ii) other persons (including any grandparent or other relative of the child)
It is not necessary for me to consider [X]'s relationship with grandparents at this stage, but I have already made a finding that [X]'s relationship with her mother must necessarily be her primary attachment and her very closest bond, and her mother is the person who has been providing for [X] since the parties separated. That is not to infer in any way that the father would not have done so or does not want to do so or would not have done so given any opportunity to do so. It is simply the circumstances that have occurred since April 2018.
The nature of the relationship between [X] and her father must be, as I have said above, affected by the limited periods of time they have been able to spend together since April of 2018.
The periods of time they will be able to spend together on an ongoing basis for some time will necessarily still be limited. That is caused by the parties being separated, by them living in different places and by their individual obligations, including the mother's obligation to provide financially for [X], in regard to which she has to make her best efforts to earn an income.
The consideration directs the Court to the nature of the relationship, and it is important that orders be made that enable the relationship between father and child to develop in the best way possible in the circumstances.
As referred to above, it is not the best and most optimal relationship, but it is the best relationship that we can organise in the circumstances.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child
In this interim hearing, I do not consider it necessary to direct criticisms at either party in relation to what has gone forth from April 2018 to the present time.
The mother in her evidence has given her fears and her reasons for asserting risk. It is not open to the Court on an interim hearing where there is disputed evidence to make findings in relation to the truth or otherwise of the asserted facts. That is a different thing to making findings on the basis of the evidence as to elements of risk for the child.
The father has only had limited opportunity to spend time with the child and communicate with the child, and there is some fairly nebulous evidence in relation to the subject of child support.
It would seem that initially the mother took steps to prevent child support being payable, but subsequently, and perhaps from January of this year, 2019, has taken steps to seek that child support be paid. Accordingly, no criticism is going to be levelled at either party in relation to that.
Up until now, the parties have each had parental responsibility for [X] under section 61C of the Act, which provides that from the moment of birth of [X], they each had parental responsibility, and that continues so until some contrary order is made, as will be made today.
The Full Court has determined that each parent having parental responsibility is a different thing from equal shared parental responsibility. Each having parental responsibility does not carry with it the statutory obligation to consult and make their best efforts to reach agreement. That may seem to be an anomalous situation when one compares the meaning of one to the other, but that is the current law. Accordingly, no criticism is directed toward the mother in relation to any decisions that may have been made to date about long-term matters, and that will be dealt with by the making of an order for equal shared parental responsibility.
I note that it is unnecessary to make any order in relation to decisions by either of the parents on day-to-day matters, as section 61DAE of the Act deals directly and completely with that concept.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
I have dealt with this consideration in my discussion above in relation to child support, and also in my comments that self-evidently the mother has financially maintained [X] to date. That is not to say that the father is not ready, willing and able to make his contribution to financial support for [X].
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
I do not have to consider any other child or other person.
In considering the likely effect on [X] of any separation from her parents, I note that in the evidence there is reference made to an occasion where the mother was not able to have [X] in her care throughout the day. The mother left [X] in the care of the father at a time when she was, as she still is, on what I am told, being breastfed, and that expressed breast milk was provided for her.
Accordingly, I consider that if, during periods of time when [X] is in the father's care, she is in need of a feed of breast milk, then that can be provided by the mother expressing for her benefit. I have no evidence, and I do not know anything about [X]'s other feeding habits at the present time. I am sure they are being properly attended to.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
I find that I do not have to spend time on this consideration, as it is a consent agreement between the parties that changeovers will occur either inside or outside the door of Suburb A Library. Inherent in that is an acceptance by both parents that they will be able to get [X] to that spot for the purpose of changeover at the start and finish of the father's time.
In relation to expense of the father spending time with [X], that time is going to be daytime time. Nothing is put before me to indicate that there is any burden of expense or any practical difficulty in spending that time.
I must refer, in fairness to the matter asserted from the bar table on behalf of the mother that she does not presently have her own car and she has to borrow a car if she is to drive to the changeover point for the father spending time, or to travel to that point by bus. That may be a practical difficulty, but it is a practical difficulty that must be faced and overcome in the interests of [X] spending sufficient time with her father in all the circumstances, and conscious of her current age, to enable her to pursue a meaningful relationship with her father in her best interests.
The capacity of: (i) each of the child’s parents and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
No doubt is cast upon the mother's capacity to provide for [X]'s needs, including emotional and intellectual needs. It is inherent in the father's application that the mother is not only perfectly capable of doing so, but is doing so.
In relation to the father's ability, certain risks have been asserted on [X]'s behalf by the mother, and I have dealt with those risks above.
There is nothing in the evidence that leads me to make any finding that the father is other than able to provide for the needs of [X], including her emotional and intellectual needs.
It would be seriously and damagingly contrary to [X]'s emotional needs and her psychological welfare, if there were any comments made within [X]'s hearing derogatory of her mother or any member of her mother's family, or, for that matter, made within her hearing derogatory of the father or any members of his family.
I will be making an order in relation to non-denigration, and I am sure that each party's well-experienced solicitor will point out that a non-denigration order is made in just about every matter that comes before the Court. It is not a reflection on them personally. It is a safeguard for [X].
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
It is within the evidence that [X] has the benefit, through her parents, of perhaps three cultures. There is Country E heritage, Country N heritage, and Australian heritage. Though there must be overlap in between those three cultures, they are nevertheless entitled to be regarded as distinct cultures, and the Court is prepared to say in relation to each of those three cultures, greatly to [X]’s benefit.
There is nothing to lead the Court to consider that each of these parents will do other than give [X] the benefit of their culture, of her Australian culture, and encourage her knowledge of, development and acceptance of, and depth of knowledge in each other parent's knowledge. That would be acting in a co-parenting manner and in [X]'s best interests.
[X] does not have Aboriginality or Torres Strait Islander culture, and I need not consider the additional considerations under those heads.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
It may be that in some minds, a criticism may be directed toward the mother in relation to the difficulties placed in the way of the father spending adequate time in all of the circumstances with [X] since the parties separated as to their places of residence in April 2018.
In considering this additional consideration, and considering it in light of what orders to make best in [X]'s interest, I am not directing specific criticisms at the mother. I am noting that it would have been in [X]'s greater interest if, right from April 2018, a regime could have been found between the parties where the father was able to spend regular time of an appropriate duration with [X], and any fears and concerns of the mother were able to be addressed so that she could feel comfortable on [X]'s behalf, and comfortable in herself. Perhaps that is too idealistic an approach, but nevertheless, I am directed to consider these things when deciding what orders to make in [X]'s best interests.
I do not think that there is anything to be served in light of the orders I am going to make by trammelling through who is to blame for what, especially in a matter where there are disputed facts between the parties.
Any family violence involving the child or a member of the child’s family
It cannot be left unsaid that in the mother's evidence, as I have referred to, the mother gives evidence of matters that, if accepted by the Court, would come within the definition of family violence in sections 4AB of the Act.
The mother gives evidence, which I have quoted above, in relation to being caused to be scared and in fear because of actions she describes on the part of the father. None of that has led to application for the issuing of an apprehended violence order or any similar on the application of the mother, or anyone on her behalf, and that is a fact to be grateful for.
The family violence referred to by the mother, if it is found to have occurred, is family violence. No family violence is acceptable. It is an opinion expressed by the authorities, the child psychologist, the child psychiatrist, and so forth, that family violence can have a detrimental effect on a child, even when that child is an infant, and even when that child is a baby in cradle.
Any family violence is to be deplored, and if family violence is found to have occurred, then that family violence has to be carefully considered as to whether that family violence presents risks, and as to whether specific orders must be made dealing with that family violence, even dealing with a child's exposure to family violence before a separation, even if there is to be no more exposure to family violence thereafter.
In this case, I am not able to make findings in relation to the family violence, for the reasons I have set out above. There is nothing in the evidence to lead me to find that there will be family violence between these parties such that it will affect [X] on an ongoing basis. I made comments above about these parties co-parenting [X].
Family violence perpetrated by one parent to the other, or family violence occurring between parties, in some degree by each of them, is destructive of a child.
As these proceedings are interim proceedings, I need not consider whether orders to be made are least likely to lead to the institution of any further proceedings, and I do not consider there is any other factor or circumstance that the Court need consider in making parenting orders that is relevant.
After making the considerations in section 60CC, both the primary considerations and additional considerations, and after analysing the evidence, I consider that it is appropriate to make orders specifying the time the father is to spend to [X]. It is more than that sought by the mother. It is less than that sought by the father. However, the very large difference between them is that the time the father is to spend with [X] will not be regulated by rule or order as to where it is to take place.
Accordingly, I make orders as set out at the start of this judgment.
I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of Judge Morley
Date: 30 May 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Injunction
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Remedies
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