FAULKNER & DANNEL

[2018] FamCA 824

FAMILY COURT OF AUSTRALIA

FAULKNER & DANNEL [2018] FamCA 824

FAMILY LAW – CHILDREN – Interim proceedings – Supervision – With whom a child spends time – Best interests of the child – Where the father seeks to increase the amount of supervised time the child spends with him and change the supervisor – Where interim orders made by the Federal Circuit Court provided for the child to spend time with the child for one hour each week at a contact centre – Where the contact centre ceased compliance with the orders in August 2018 and the child currently spends two hours fortnightly with the father – Where the mother seeks new orders implementing the current arrangements at the contact centre – Where the mother asserts the child is at risk of being subjected or exposed to sexual abuse by the father – Where no evidence establishes the risk – Where the child enjoys a meaningful relationship with the father and is liable to derive benefit from the relationship – Where the Independent Children’s Lawyer supports the father’s application for increased supervised time – Where the Court is satisfied the child could benefit from gradually spending more supervised time with the father – Where the Court is satisfied the paternal grandmother will be a satisfactory and diligent supervisor – Where the Court orders it is in the child’s best interest to spend time with the father in a graduating arrangement under the supervision of the paternal grandmother.

FAMILY LAW – CHILDREN – Parental responsibility – Where allegations of sexual abuse and past family violence are not tested in interim proceedings and no findings made – Where no determination of parental responsibility – Where matter is already listed for trial.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 64B, 65AA, 65D, 65DAA

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
Marriage of B & B (1993) FLC 92-357

APPLICANT: Mr Faulkner

RESPONDENT: Ms Dannel

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Newcastle

FILE NUMBER: NCC 2317 of 2017

DATE DELIVERED: 21 September 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 21 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Harris Kelly & Associates Lawyers

COUNSEL FOR THE RESPONDENT:                  Not Applicable

SOLICITOR FOR THE RESPONDENT: Burke & Mead Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Newcastle

Orders

1. Orders 1 and 2 made on 21 September 2017 are discharged.

2. The child X, born … 2017, shall live with the mother.

1. The parties shall take all reasonable steps to ensure the child spends time with the father as follows:

a.Up to and including Wednesday 31 October 2018, each Saturday, Monday and Wednesday from 10:00 am to 12:00 noon;

b.Up to and including Wednesday 12 December 2018, each Saturday, Monday and Wednesday from 10:00 am to 2:00pm; and

c.Thereafter, each Saturday and Wednesday from 10:00 am to 4:00 pm.

1. The father shall ensure that the time spent with him by the child pursuant to the preceding order occurs under the supervision of the paternal grandmother in accordance with the undertaking filed by the paternal grandmother on 16 July 2018.

2. For the purpose of implementing these orders the parties shall ensure the child is exchanged between them (or their nominees) at the McDonalds Restaurant, Suburb B, NSW.

1. Otherwise:

   a.The Application in a Case filed on 16 July 2018 is dismissed;

   b.The Response to an Application in a Case filed on 20 August 2018 is dismissed;

c.The application for orders set out in Exhibit M1 is dismissed; and

d.Any and all other outstanding applications for interim relief are dismissed.

NOTATIONS

A.The parties shall retain parental responsibility for the child pursuant to s 61C of the Family Law Act.

B.These proceedings remain listed for trial to commence on 18 February 2019 before Justice Cleary.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Faulkner & Dannel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2317 of 2017

Mr Faulkner

Applicant

And

Ms Dannel

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. My reasons for the orders just pronounced are as follows.

2. The applicant father and the respondent mother contest parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) for their only child, X, born in 2017. At the present time, the child is aged one year and eight months.

3. The parties separated sometime in early 2017, after which the child remained living with the mother. Private arrangements were made for the child to spend time with the father, though those arrangements ceased when the mother alleged the father sexually abused the child.

4. The proceedings were subsequently commenced by the father in August 2017, because he was dissatisfied with the mother’s decision to sever the child’s relationship with him. The proceedings were commenced in the Federal Circuit Court of Australia (“Federal Circuit Court”) and, in September 2017, that court made orders for the child to spend time with the father under professional supervision at a contact centre for one hour once each week on Wednesday. Those orders were made following a contested interim hearing. It was apparently the mother’s position that the child should spend no time at all with the father because of her concerns about the unacceptable risk of harm posed to him by the father. The orders made by the Federal Circuit Court were obviously an attempt to maintain the child’s relationship with the father, but to compatibly protect him from the risk of any harm. The proceedings were subsequently transferred from the Federal Circuit Court to this Court and, although the orders made by the Federal Circuit Court in September 2017 were implemented, it was not without disruption. The father complains in these proceedings that the mother’s adherence to those orders has not been sufficiently diligent. She alleges that her occasional non-compliance with the orders has been due to various innocent reasons and I do not intend to make any factual findings to resolve that particular dispute today. Suffice to acknowledge that the child has not constantly spent time with the father as the orders made in September 2017 envisaged. 

5. Apparently as a result of the contact centre’s own policy, in or about August 2018, the contact centre staff decided to cease compliance with the orders made by the Federal Circuit Court. Instead of allowing the father and child to spend one hour together each week, as the interim orders provide, the arrangements were changed so that the child spends time with the father for two hours each fortnight.

6. Since those orders were first made, the parties have attended upon the Family Consultant and a Family Report has been prepared, which has been released to the parties. The Family Consultant comments upon the meaningful nature of the relationship enjoyed by the child with the father and the benefit the child is liable to derive from that relationship. So much was not in contest. The real issue, at least from the mother’s perspective, is whether or not the orders should impose restrictions upon the child’s interaction with the father so as to preserve the child from exposure to the risk of harm. The only risk of harm asserted by the mother is that the child might be subjected or exposed to sexual molestation by the father.

7. The application currently before the Court requiring determination is the father’s Application in a Case filed on 16 July 2018. He seeks to change the orders made by the Federal Circuit Court in September 2017 in two respects; first, by expanding the amount of time the child spends with him; and second, by substituting the paternal grandmother as his supervisor in place of the contact centre staff. Both changes are opposed by the mother. However, she seeks that the orders made in September 2017 be amended to reflect the arrangements implemented by the contact centre staff in August 2018. 

8. In support of the father’s application, he relied upon:

   (a)his two affidavits filed on 16 July 2018 and 16 August 2018;

   (b)the affidavit of the paternal grandmother filed on 16 July 2018; and

   (c)the undertaking filed with the Court by the paternal grandmother on 16 July 2018. 

9. The mother relied upon her affidavit filed on 20 August 2018. 

Legal Principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents, though that presumption may either be rendered inapplicable or rebutted, depending upon the circumstances of the case (s 61DA).

4. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interest being of paramount consideration.

5. Those statutory considerations apply regardless of whether the orders being proposed in respect of the child are to be made on an interim or final basis. 

6. Here, I am dealing with an interim application and the procedure for conducting an interim hearing has been authoritatively established by the Full Court.  In Goode & Goode (2006) FLC 93-286 the Full Court said (at [68]):

   The procedure for making interim parenting orders will continue to be an abridged process where the scope of the inquiry is “significantly curtailed”.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and will have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

7. In Banks & Banks (2015) FLC 93-637 at [47]-[50], the Full Court noted how a paucity of uncontested evidence means that only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim proceedings should be confined to only those issues which, in the best interests of the child, require determination prior to proper determination of trial. Not every s 60CC factor need be discussed in that process.

Child’s Best Interests

1. As I have already indicated, it is not a matter of contest that the child enjoys meaningful relationships with both parents, from which he derives benefit. The gravamen of the dispute is the mother’s suggestion the child requires protection against the risk of harm he may suffer through exposure or subjection to sexual abuse by the father. Of course it is impossible to make a factual determination about that allegation on the evidence before the Court but, as has been submitted by the mother’s solicitor, the Court must be cognisant of this risk and therefore proceed cautiously. So much is not in dispute, because both the father and the Independent Children’s Lawyer accept that any orders made today will entail the imposition of supervision to ameliorate the risk the child will be sexually molested by the father.

2. The mother’s allegations in relation to the father’s sexual abuse of the child were apparently made in March 2017, April 2017 and, more recently, in August 2018. The father deposed the police have informed him he is not going to be charged with any offences at all. No evidence has been put before the Court to challenge the veracity of that evidence and so I impute the allegation most recently made against him will not result in any prosecution. Similarly, it seems unlikely the allegations made against him in early 2017 will now be pursued either, given the long period which has since elapsed without any prosecution being commenced.

3. Of course, the fact the father will not be prosecuted with any offence arising out of the allegations does not mean he did not sexually abuse the child. It remains possible, but the evidence pertinent to those allegations will be tested at the final trial, which is due to start before Cleary J in February 2019. For the time being, I only need be aware of the risk.

4. I am satisfied by the evidence put before the Court that the paternal grandmother will be a satisfactory and diligent supervisor. Although authority suggests family members are sometimes not ideal supervisors (see Marriage of B & B (1993) FLC 92-357), the evidence before the Court satisfied me that the paternal grandmother will be suitable for that task. She is on affidavit deposing to her willingness to provide diligent supervision and she has filed with the Court an undertaking indicating her knowledge of her obligations as a supervisor.

5. When challenging the selection of the paternal grandmother as a satisfactory supervisor, the only evidence adduced by the mother was her belief the paternal grandmother drinks alcohol to excess and, further, she does not trust her. Whilst I do not doubt the honesty of the mother’s subjective impressions, her genuine subjective impressions fall far short of objective and persuasive evidence. I am quite satisfied the paternal grandmother will discharge her supervisory functions satisfactorily and, for those reasons, I intend to make orders which provide for her to be the supervisor in lieu of the contact centre staff.

6. The other issue is the question of the expansion and frequency of the child’s visits with the father. In the past, the visits were supposed to be once per week. They are now once per fortnight. The child has not even yet attained two years of age. I am not satisfied visits of that frequency are enough to sustain the meaningfulness of the child’s relationship with the father. The sustenance of the relationship requires more time and greater frequency. I am, therefore, attracted to the father’s proposal for more time, more frequently, particularly given the endorsement of the Independent Children’s Lawyer that the visits should be two to three times per week. 

7. The frequency and the duration of the child’s visits with the father are somewhat arbitrary, because there is no evidence about what would be the optimal regime. No evidence to that effect was adduced by either party or by the Independent Children’s Lawyer and the Family Consultant did not directly comment upon the issue in the Family Report. However, I am prepared to accept and act on the proposition that children the age of the child would benefit from frequent visits of moderate duration with the father. The child’s visits with the father should graduate in the manner set out in the orders made.

8. I return to the issue of parental responsibility. As I earlier indicated, there is a presumption that the parents should have equal shared parental responsibility for the child. However, s 61DA(3) of the Act provides that when the Court is making an interim order, as I am presently, the presumption only applies if its application is considered appropriate. I intend to invoke s 61DA(3). I do not intend to apply the presumption of equal shared parental responsibility, since the live arguments between the parents about past family violence and the father’s alleged sexual abuse of the child remain to be determined at trial. If, once tested, there is credible evidence to vindicate those allegations, the presumption of equal shared parental responsibility would not then apply (s 61DA(2)). The present application of s 61DA(3) will mean each parent retains the parental responsibility for the child already vested in them pursuant to s 61C of the Act.

9. Given I do not make an order for equal shared parental responsibility, s 65DAA is not engaged and I do not have to consider the residential options posited by that section. There was no dispute the child should continue to live with the mother for the time being and the reasons I have already given explain why it is in the child’s best interests for his visits with the father to increase in frequency, expand in duration, and be supervised by the paternal grandmother. 

10. They are my reasons.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 21 September 2018.

Associate:

Date:  12 October 2018