FRONTERA & GIBBONS
[2015] FamCA 701
•26 August 2015
FAMILY COURT OF AUSTRALIA
FRONTERA & GIBBONS [2015] FamCA 701
FAMILY LAW – CHILDREN – Interim Parenting – Best interests of the child – Where there is one child who is four years of age – Where the applicant and respondent were in a same sex relationship – Where the respondent conceived the child through an IVF program – Where the applicant and respondent are listed on the child’s birth certificate – Where the respondent seeks that the applicant be declared not to be a parent of the child – Where the child currently spends one weekend a month with the applicant – Where the applicant seeks an increase in time spent with the child – Where there are allegations of family violence – Consideration of the presumptions in relation to parentage at s 69R of the Family Law Act – Where the Court found that parentage of the child could not be determined on an interim basis – Consideration of the best interests of the child – Where the Court found the current circumstances do not warrant another interim change to the living arrangements for the child.
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) ss 60CC, 60H, 69R, 69U, 69ZK
Re F (A Minor)(Child Abduction) [1992] 1 FLR
APPLICANT: Ms Frontera
RESPONDENT: Ms Gibbons
INDEPENDENT CHILDREN’S LAWYER: KD Holmes Solicitors
FILE NUMBER: SYC 948 of 2015
DATE DELIVERED: 26 August 2015
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Loughnan J
HEARING DATE: 3 August 2015 REPRESENTATION
SOLICITOR FOR THE APPLICANT: Hamish Cumming Family Lawers
COUNSEL FOR THE APPLICANT: Ms Giacomo COUNSEL FOR THE RESPONDENT: Ms Dart
SOLICITOR FOR THE RESPONDENT: Jennifer Weate and Associates SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Holmes Orders
(1)The parties’ applications for interim parenting orders including the amended Application in a Case filed 31 July 2015 and the amended Response to an Application in a Case filed 14 July 2015, are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Frontera & Gibbons has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
FAMILY COURT OF AUSTRALIA AT SYDNEY FILE NUMBER: SYC 948 of 2015
Ms Frontera Applicant
And
Ms Gibbons Respondent
REASONS FOR JUDGMENT
Introduction
1.These are interim parenting proceedings involving B who was born in 2010 and at the time of the hearing, was four years of age.
2.Ms Frontera (“the applicant”) and Ms Gibbons (“the respondent”) commenced a relationship in 2009 and separated in December 2014. The respondent conceived the child through an IVF programme. The applicant is named as a parent on the child’s birth certificate.
3.B currently lives with the respondent at C Town. Since 22 May 2015 the child has been living with the respondent and spending time with the applicant on one weekend per month, from Friday at 4.00 pm to Sunday at 4.00 pm. The applicant proposes to relocate from Melbourne to Sydney in late August and seeks additional time with the child. She seeks that time with the child be increased to every second weekend. The respondent seeks that the time between the child and the applicant continue to be for once a month from Friday 4.00 pm to Sunday 4.00 pm.
4.The respondent also seeks that the applicant be declared not to be a parent of the child. Ultimately, it was not submitted on behalf of the respondent that this issue needed to be resolved as a threshold matter but that the Court should proceed on the basis that the applicant is not a parent of the child.
Applications
5.The applicant sought certain orders in her Amended Application in a Case filed 31 July 2015. However, during submissions her counsel advised that the applicant did not press all of the orders sought in that application and that the applicant sought that:
·B live with the applicant each alternate weekend from 9.00 am Saturday to 6.00 pm Monday. She seeks that the times be changed from February 2016, to be 3.00 pm Friday to 6.00 pm Sunday.
·The applicant collect the child at the commencement of each occasion and that the respondent collect her at the conclusion of those occasions.
6.The respondent sought orders in accordance with her Amended Response to an Application in a Case filed 14 July 2015. She sought:
1.That Ms Frontera be declared to not be a parent of the child B (the child) born in 2010.
2.That pursuant to section 45 Births Deaths and Marriages Registration Act the Registrar correct the Register to substitute "an anonymous donor of genetic material" for the name of the applicant: Family Name: Frontera; Maiden Family Name: D; Christian or given name: Ms Frontera in the register of birth in the State of NSW as a parent of the child B (the child) born in 2010.
3.That the child spend time with the applicant Ms Frontera on the 1st weekend of each calendar month from 4pm Friday to 4pm the following Sunday provided that 7 days prior to this scheduled visit Ms Frontera provides Ms Gibbons notice in writing identifying the serviced apartment where the child will be sleeping during the time that she spends with Ms Frontera.
4.In order to facilitate the changeover Ms Gibbons will deliver the child to Ms Frontera to Suburb E Library, Suburb E at the commencement of the time with Ms Frontera and collect the child at the conclusion of the time.
5. Ms Frontera is restrained from removing the child from the Sydney Metropolitan area during the time that she spends without prior consent from Ms Gibbons.
6. That the child have phone time with Ms Frontera as follows:
(a)Via Skype at 9:00 a.m. on Sunday and;
(b)Telephone at 7:00 p.m. on Thursday or Friday each week.
7. For the purposes of communicating information the parties shall communicate by email, text message and telephone in the case of urgency.
8.Ms Gibbons shall ensure that Ms Frontera is informed of any medical problems or illnesses suffered by the child and any medication prescribed for her.
In the alternative in the event the court declines to make Order 1 above, then the respondent seeks the following:
9.That the child B (the child) born in 2010, live with the respondent Ms Gibbons.
10. That Ms Gibbons have sole parental responsibility for the child.
11.That the child spend time with the applicant Ms Frontera on the 1st weekend of each calendar month from 4pm Friday to 4pm the following Sunday provided that 7 days prior to this scheduled visit Ms Frontera provides Ms Gibbons notice in writing identifying the serviced apartment where the child will be sleeping during the time that she spends with Ms Frontera.
12.In order to facilitate the changeover Ms Gibbons will deliver the child to Ms Frontera to Suburb E Library, Suburb E at the commencement of the time with Ms Frontera and collect the child at the conclusion of the time.
13.Ms Frontera is restrained from removing the child from the Sydney Metropolitan area during the time that she spends without prior consent from Ms Gibbons.
14.That the child have phone time with Ms Frontera as follows:
(a)Via Skype at 9:00 a.m. on Sunday and;
(b)Telephone at 7:00 p.m. on Thursday or Friday each week.
15.For the purposes of communicating information the parties shall communicate by email, text message and telephone in the case of urgency.
16.Ms Gibbons shall ensure that Ms Frontera is informed of any medical problems or illnesses suffered by the child and any medication prescribed for her.
17. In the event that the child's passport requires renewal, then:
(a)Ms Gibbons shall, by either post or email, send to Ms Frontera a completed pdf passport application for her signature.
(b)Within 7 days of Ms Frontera receiving the passport application she shall return the executed application to Ms Gibbons, to facilitate her lodging the application with the government authority.
(c)In the event Ms Frontera fails to return to the mother, within seven days after posting, the passport applications signed by her, then a Registrar of this Court may sign the applications instead of Ms Frontera and her signature and consent be dispensed with.
(d) B's passport shall be kept by Ms Gibbons.
7.The Independent Children’s Lawyer (“ICL”) sought similar orders to those proposed by the applicant.
Written Evidence
8.The applicant relied on:
·Affidavit of Ms Frontera filed 13 February 2015;
·Affidavit of Ms Frontera filed 20 May 2015; and
·Affidavit of Ms Frontera filed 31 July 2015.
9.The respondent relied on:
·Affidavit of Ms F filed 18 March 2015;
·Affidavit of Ms G filed 18 March 2015;
·Notice of Child Abuse, Family Violence or Risk of Family Violence filed 23 March 2015;
·Affidavit of Ms Gibbons filed 23 March 2015;
·Affidavit of Ms H filed 25 March 2015;
·Affidavit of Ms I filed 25 March 2015; and
·Affidavit of Mr J filed 26 March 2015.
Expert Evidence
10.The following expert evidence was relied on:
Child Responsive Program Memorandum dated 20 April 2015.
Short History
11.The applicant was born in 1965. As at the date of the hearing she was 50 years of age. The respondent was born in 1970. As at the date of the hearing she was 44 years of age. The applicant and respondent met in March 2009. The proceedings relate to the child B who was born to the respondent in 2010 and is currently 4 years of age.
Background Facts
12.The applicant is 50 years of age. The respondent is 44 years of age.
13.The parties met in March 2009.
14.From September 2009 to May 2011 the applicant resided in Melbourne and the respondent in Sydney.
15.The applicant asserts that in September 2009 the respondent said she wanted to have a child and wanted the applicant to be part of the child’s life, including being the stay-at-home parent. The applicant said that they agreed she would live in Sydney for 12 months after the child is born and the parties will then relocate to Melbourne. In the affidavit filed in support of her Response the respondent does not dispute the evidence of the applicant. The respondent gives a different version of the events in 2009, suggesting that albeit in the context of the parties’ new relationship, rather than a joint plan, the conversations in 2009 were more to the effect of her saying that she wanted to have a child and the applicant supporting her in that decision.
16.In November 2009 the respondent commenced an IVF program.
17.In January 2010 the child was conceived via IVF.
18.B was born in 2010.
19.From 10 October 2010 – 11 April 2011 the respondent took maternity leave.
20.From May 2011 – May 2012 the applicant took 12 months leave without pay. In May 2011 the applicant moved to Sydney and moved in with the respondent and the child.
21.The applicant deposed that from May 2011 – 26 December 2014 she was the primary carer for the child and that during this time the respondent worked full time. Although emphasising the importance of her own role with the child, the respondent does not dispute that she worked Monday to Friday and that the applicant cared for the child while she was at work.
22.In February 2012 the respondent took a new position which involved significant overseas travel in 2012 and 2013.
23.In around February 2012 the applicant and respondent agreed to postpone their move to Melbourne.
24.In February 2013 the child commenced pre-school at Suburb K Preschool.
25.In April 2013 the applicant was registered as a parent on the child’s birth certificate.
26.In August 2013 the police were called to the home of the applicant and respondent to attend to a domestic dispute. The respondent said that during this incident the applicant smashed glass photograph frames, bashed on the bathroom door with a chair, kicked the shower screen in, pulled the respondent’s hair and pushed her into the toilet. The police attended and issued a provisional Apprehended Violence Order (“AVO”) for the protection of the respondent.
27.The respondent deposed that on three occasions between August and October 2013 the applicant damaged the security intercom by bashing the receiver against the wall.
28.The police were again called to the parties’ home in October 2013. The respondent alleged that the applicant pulled her hair so hard that she fell to the ground and kicked her repeatedly. A second application for an AVO was made for the protection of the respondent. The respondent deposed that she was pressured by the applicant into withdrawing the second AVO application.
29.The applicant deposed that on multiple occasions in 2013 and 2014, the respondent drank to excess, verbally assaulted and acted aggressively towards the applicant.
30.In July 2014 the respondent commenced working from home for two days each week.
31.In January 2014 the police attended the parties’ home. The respondent deposed that during an argument, the applicant opened the dining room window and screamed “there have been three generations of sexual abuse in this family and the child is at risk, she is being abused!”. No action was taken by the police.
32.In January 2014 the respondent commenced counselling with Dr L of Relationspace.
33.On 26 December 2014 the parties separated. The applicant was locked out of a property at C Town where the parties had been staying. The police were called and they asked the applicant to leave the property. The applicant returned to Suburb M to find that the respondent had caused the locks at the property to be changed. The applicant was forced to stay with friends for about two weeks before finding new accommodation.
34.From 26 December 2014 – 17 January 2015 the applicant had no contact or communication with the child.
35.On 16 February 2015 the applicant filed the Initiating Application that commenced these proceedings.
36.On each of 17, 24 January and 3 February 2015 the child spent time with the applicant for two to three hours.
37.On 6 February 2015 a further Provisional Apprehended Domestic Violence Order was made against the applicant, for the protection of the respondent and the child, at the Suburb N Local Court. The order was expressed to expire on 6 March 2015. The AVO proceedings were adjourned to 25 February 2015.
38.On 7 February 2015 contact between the applicant and the child was cancelled by the respondent.
39.On 9 February 2015 the applicant moved into accommodation close to the child’s school.
40.There is no evidence about the outcome of the AVO proceedings before the Suburb N Local Court on 25 February 2015. However, it was the evidence of the respondent as of 14 July 2015 that there is an interim AVO in place. She deposed that those proceedings were back before O Town Local Court on 17 July 2015.
41.On 28 March 2015 the respondent cancelled contact between the child and the applicant as none of the supervisors agreed by the parties, were available.
42.On 30 March 2015 orders were made by consent which included that:
(a)B have Skype contact with the applicant on Sundays;
(b)B have telephone contact with the applicant on Thursdays and Fridays; and
(c)An ICL be appointed.
43.On 25 April 2015 the respondent cancelled contact between the applicant and the child.
44.On 27 April 2015 the applicant relocated to Melbourne.
45.On 22 May 2015 further orders were made, by consent, providing for the child to live with the respondent and spend time with the applicant from 11.00 am to 2.00 pm on 23 May and thereafter from 4.00 pm Friday to 4.00 pm Sunday on one weekend each month. The changeover was to occur at the Suburb E Library in Sydney. Among other orders, the applicant was ordered to notify the respondent at least seven days in advance of the location of the child’s accommodation on those weekends, details of the other occupants of the accommodation and of the child’s sleeping arrangements. The matter was adjourned to 30 July 2015 for an interim hearing with respect to parenting issues.
46.The listing on 30 July 2015 was vacated and the matter placed in the judicial duty list for hearing on 3 August 2015. The competing interim parenting applications were heard on 3 August 2015 and judgment was reserved.
47.The applicant is due to return to live in Sydney on 22 August 2015.
The Legislation
48.The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
49.Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests.
50.The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of parents having equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.
51.For the purposes of these reasons, I will adopt the following approach:
(a)set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
(b)where possible and relevant, consider and make findings about matters set out in s 60CC;
(c)consider and make findings about parental responsibility, including considering the presumption in s 61DA;
(d)apply s 65DAA if relevant and assess the proposals in light of that provision;
(e)if 65DAA is not relevant, assess the proposals against the best interests criterion;
(f)consider and make findings about living arrangements; and
(g)make orders.
The Parties’ proposals
52.In summary, the applicant seeks that:
·B live with the applicant each alternate weekend from 9.00 am Saturday to 6.00 pm Monday. She seeks that the times be changed from February 2016, to be 3.00 pm Friday to 6.00 pm Sunday. The applicant seeks that she collect the child at the commencement of each occasion and that the respondent collects her at the conclusion.
·B otherwise live with the respondent
53.In summary, the respondent seeks that:
·The applicant be declared to be not the child’s parent and that the Registrar of Births Deaths and Marriages amend her birth certificate accordingly. In the alternative, that the respondent have sole parental responsibility and that the child live with her.
·That otherwise, the current interim living arrangements continue – with the child living with the applicant on one weekend each month.
Best Interests
54.In determining what is in a child's best interests, the court must consider the matters set out in ss 60CC(2) and (3). Section 60CC(2)(a); (3)(c), (ca), (e), (g) & (i) each makes special mention of parents. Therefore it is important to identify the parents of a child.
55.In the preponderance of cases there is no controversy about the identity of the parents. Here there is a dispute about the status of the applicant. The legislation provides mechanisms to resolve such disputes. Subdivision D of Division 12 of Part VII establishes presumptions in relation to parentage. Relevantly, s 69R provides:
Section 69R
Presumption of parentage arising from registration of birth
If a person’s name is entered as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child.
56.That is the situation that applies in relation to the child. At the end of April 2013 the applicant was registered as the ‘other parent’ on the child’s birth certificate. It is my understanding that the respondent seeks to rebut the presumption arising from s 69R. That is not entirely clear because her counsel’s submission was to the effect that the applicant was never entitled to be a parent, because in respect of children born as a result of IVF procedures, the parties must have been in a de facto relationship at the time of conception. That is a reference to the provisions of s 60H. I do not quite follow that proposition but if it was accurate then the assertion that the respondent did not freely consent to the endorsement of the applicant as a parent on the child’s birth certificate, would be irrelevant. Perhaps the respondent’s argument has alternate limbs.
57.There is provision for rebutting a presumption about parentage. Section 69U provides:
Section 69U
Rebuttal of presumptions etc.
(1)A presumption arising under this Subdivision is rebuttable by proof on a balance of probabilities.
(2) Where:
(a) 2 or more presumptions arising under this Subdivision are relevant in any proceedings; and
(b) those presumptions, or some of those presumptions, conflict with each other and are not rebutted in the proceedings;
the presumption that appears to the court to be the more or most likely to be correct prevails.
(3)This section does not apply to a presumption arising under subsection 69S(1).
58.Pursuant to s 69U, rebutting the presumptions in subdivision D of Division 12 does not require proof beyond reasonable doubt but only proof on the balance of probabilities.
59.It was argued on behalf of the applicant that s 69R is clear in its terms and that the respondent’s current allegations cannot displace or rebut the presumption under 69R without proper evidence before the Court.
60.The applicant submitted that the Court should make orders about the child on the basis that the applicant is a parent.
61.In relation to the presumption, the applicant says that she has had significant involvement in the life of the child, that she was involved in the IVF process, that the applicant and respondent chose the donor and name of the child together and that they went to prenatal check-ups together. The applicant said that she was present at the child’s birth and for almost the entirety of the child’s life, she was the primary carer. Some of those propositions are challenged.
62.The respondent submitted that the presumption that the applicant is a parent of the child as a consequence of her name being on the child’s birth certificate is rebutted. As I have mentioned, the respondent’s counsel said that the applicant is and has never been entitled to have her name registered on the birth certificate. The respondent argued that any consent to the inclusion of the applicant’s name on the birth certificate was not a valid consent as it was procured by duress and undue influence. It is the respondent’s evidence that the applicant was included on the child’s birth certificate in April 2013 at the insistence of the applicant in the context of a relationship characterised by family violence. The respondent therefore sought that the Court make a declaration that the applicant is not a parent of the child.
63.While conceding that the applicant is a person with significant interest in the welfare of the child (for the purposes of s 65C) the respondent disputes the assertion that the applicant was the primary carer of the child. She said that there was no agreement that the child would be a child of their relationship and that the applicant and respondent were not in a de facto relationship at the time of the conception and birth of the child.
64.Importantly, the respondent’s counsel argued that the purpose and nature of the relationship between the child and the applicant must be defined before the Court can make interim parenting orders. This submission was said to be underpinned by the fact that the legislative pathway is different for a parental relationship as opposed to a person who has played a significant role in the child’s life. However, arguing against that proposition, the respondent’s counsel also submitted that the respondent could not be heard against the Court taking the “cautious approach” advocated by the ICL, not ruling on the question of parentage but dealing with the s 60CC enquiries as if the applicant is not a parent.
65.The ICL handed up a hand written document containing his submissions. His submissions included the following:
…
6. It is submitted that, if one, for the moment, adopts a cautious approach – that is to say – if one says “the applicant is not a parent”, then, on an application of the residual section 60CC factors, time with the applicant is still in the best interests of the child.
7. It cannot be said that:
a)The applicant is not a person concerned with the child’s welfare; and
b)The applicant has not been involved in the life of the child.
8.So, it is not necessary to determine whether or not the applicant is a parent at this interim hearing.
…
66.The ICL submitted that notwithstanding the jurisdictional issue, the respondent still seeks orders for time between the child and the applicant. He submitted that the question is the amount of time that the child should spend with the applicant. The ICL noted that there has been a change in the circumstances of the case – being the applicant’s planned move to Sydney and submitted that “with both parties in Sydney” alternate weekends is consistent with a proper application of the residual s 60CC factors. As was pointed out on behalf of the respondent, in fact she lives at C Town (which is in the P region of the NSW South Coast).
Discussion
67.I was not directed to any relevant authorities dealing with the specific issue currently before the Court.
68.As I have set out above, there was some reference to the interim controversy involving a jurisdictional issue. Of course, there is no jurisdictional issue. Because of the successive referrals of State powers over children to the Commonwealth commencing in 1986, in broad terms the Family Court exercises power in relation to civil disputes as to all children. The Court has jurisdiction over the child because she is under 18 years of age and the Court’s jurisdiction is not excluded by a provision such as s 69ZK which relates to children in care. Proceedings in relation to the child may be commenced by someone who falls within a specified class of persons - one of her parents, one of her grandparents, the child herself or any other person concerned with her care, welfare or development[1]. Finally, there must be a specific connection with Australia[2]. None of those requirements is challenged here.
[1] section 65C
[2] section 69E
69.The Court is asked to make interim parenting orders. A hearing was conducted on the papers. There is a challenge to the applicant’s status as a parent. The resolution of that challenge will necessarily involve making findings of fact. I am not permitted to make findings of fact on disputed issues of fact in proceedings conducted on the papers unless there is clear evidence[3]. Due to the limits of an interim hearing, the evidence on which the respondent relies to rebut the presumption that the applicant is a parent, cannot be tested. Therefore, I cannot determine the application to rebut the presumption.
[3] In Re F (A Minor)(Child Abduction) [1992] 1 FLR 548 (“Re F”) at 553 Lady Justice Butler-Sloss dealt with the problem of there being irreconcilable issues exposed in the affidavits in Hague Convention cases
70.The applicant submits that notwithstanding the respondent’s challenge, I should rely on the presumption. The respondent and the ICL advocate a cautious approach whereby I treat the applicant as if she is not a parent of the child. I do not understand the sense in which that is a cautious approach. There is a presumption that the applicant is the child’s parent. Although there is a challenge to that presumption it has not been rebutted and may never by rebutted. The proposal of the ICL and the respondent would in effect, reverse the presumption. In my view the proper approach is to rely on the presumption and apply the s 60CC considerations on that basis.
71.The primary considerations are set out in s 60CC(2) of the Act. These are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents, and secondly, the need to protect the child from physical or psychological harm, from being subjected or exposed to abuse, neglect, or family violence. Section s 60CC(2A) requires the Court to give greater weight to the latter consideration.
72.There is no doubt that there is meaning in the relationship between the child and each of the parents and it would be of the benefit of the child to be able to continue this relationship. Before me, each of the parties seeks orders whereby there will be time spent between the applicant and the child, including overnight time and that the time be unsupervised. There is no evidence suggesting that either set of proposals would better support those relationships.
73.On the other hand, the Court has to consider the need to protect the child from physical or psychological harm and from being subjected to, or exposed to abuse, neglect or family violence. The respondent provides evidence in her affidavit of several instances of family violence. These allegations are summarised above and resulted in the attendance of the police at the house of the applicant and the respondent on at least three occasions. The applicant too gives evidence of family violence, including physical violence initiated by the respondent and on occasion, responding violence by the applicant. The family consultant’s memorandum is dated 12 May 2015 and was based on interviews on 1 & 13 April 2015. That memorandum records that there is a current AVO in place against the respondent for the protection of the applicant and the child. The respondent deposed in her affidavit sworn 14 July 2015 that an interim AVO protecting the child and her remained in place. However, I am not sure of the details of the current order as it was not put into evidence.
74.The respondent filed a Notice of Child Abuse, Family Violence, or Risk of Family Violence on 23 March 2015 alleging that she had experienced financial control, coercion and isolation from a family member, violent and threatening behaviour, coercive and controlling behaviour and financial control by the respondent.
75.The applicant says that she has experienced verbal abuse and aggression from the respondent. On the date of separation she was locked out of a property where she was staying and the police were called to resolve the situation. Immediately thereafter she was also locked out of the family home. She told the family consultant that the relationship was mutually volatile and that there was heightened conflict between her and the respondent in relation to the involvement of the respondent’s family. The applicant alleges that the respondent’s nephew has acted in an intimidating, coercive and inappropriate manner towards the child.
76.The family consultant opined that it is apparent that the child has been exposed to the volatility between the applicant and the respondent. She noted that the child appears to be aware of arguing between the parties and she recalled the police coming to her home. However, the child told the family consultant that she did not know why the parties were not living together anymore.
77.The proposals of the parties necessarily mean that each of them believes that the child will be safe in the care of the other party. They each argue for orders that would have the child in the care of the other party, overnight and unsupervised. The only identified connection between the allegations and the proposed orders comes in support of the respondent’s case for monthly handovers rather than fortnightly.
78.The first of the additional considerations as set out in ss 60CC(3) of the Act relates to 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. Each of the parties have referred to comments by the child in relation to the two recent weekends with the applicant. The child is four years of age. In my view the comments are entirely ambiguous and in any event this is not a relevant consideration.
79.As to the relationships of the child with each of the parents – it is clear that the child has a strong relationship with both the applicant and respondent. The child has been living full time with the respondent since the date of separation in late 2014 and evidently had a very significant relationship with the applicant for much of her life. The applicant says that she was the primary caregiver of the child during the relationship and gives evidence of taking time off from her employment to care for the child. The respondent challenges that conclusion but concedes that the applicant cared for the child in the daylight hours during the working week. The applicant also cared for the child when the respondent travelled for her work. As the family consultant noted, the applicant has been a significant person in the child’s life.
80.The next matter is the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child. There is no suggestion that the applicant has failed to take opportunities to participate in decision making or to spend time with the child. Clearly the applicant has made ongoing attempts to spend time with the child as frequently as possible both in person and via Skype/telephone contact since separation. Aside from the necessary separations caused by the need to earn a living, it is not asserted that the respondent has failed to take her opportunities.
81.The next matter is the extent to which each of the child’s parents has fulfilled or failed to fulfil the parents’ obligations to maintain the child. The parties’ arrangement had most of the financial support provided by the respondent. There is some reference to financial matters in the parties’ evidence but I am not aware of any relevant evidence about that issue in the limited context of these interim proceedings.
82.In the context of the narrow dispute before the Court – one weekend a month versus each alternate weekend, there is no evidence about the potential effect of increasing the child’s time with the applicant.
83.As to the practical difficulty and expense of arrangements – there is nothing raised in relation to that save for the obvious practical benefit of the parties living closer to each other. The applicant will move to Sydney and will continue to spend time with the child there. The respondent required that the applicant arrange a serviced apartment as the venue for spending time with the child. Even then the parties will not be living close to each other. The drive from C Town to Sydney is just under three hours, any increase in time between the applicant and the child will result in increased travel for the child. The respondent proposes that she will deliver the child to the applicant in Sydney. The applicant proposes that she collects the child at the commencement of each period and that the respondent collects the child for each return. This criterion argues against an increase in the frequency of time between the child and the applicant.
84.As to the capacity of the parents – the respondent alleges that the applicant has been aggressive to her and has made inappropriate comments to the child when spending time with her. At the time of the interviews with the family consultant in April 2015, the respondent sought that the applicant’s time with the child be supervised as she told the family consultant that the applicant had allegedly threatened to take the child away from her. Her current application does not seek that time between the child and the applicant is supervised. The reality must be that the respondent’s concerns do not bear on the controversy before me. If the child will be safe and well cared for with the applicant during one weekend a month then presumably she can be safe and well cared for each alternate weekend. The high point of the respondent’s case is that she is unsettled and destabilised by the need for contact with the applicant at handovers and that the child has displayed behaviour suggesting that she has been unsettled by her visits with the applicant or by her separation from the respondent.
85.The applicant alleges that the respondent had issues with alcohol and that she observed her to drink one to one and a half bottles of wine on several occasions in 2013 – 2014. The applicant said that when the respondent drank she would become aggressive and verbally abusive towards the applicant. The applicant told the family consultant that she does not have concerns for the child if she is cared for by the respondent, but does not feel that the respondent’s family can keep the child safe. She said this concern was due to the respondent’s family allegedly failing to act appropriately in relation to the respondent being sexually abused as a child by her brother, mother’s partner and her brother’s friend. The respondent told the family consultant she believes that her family acted in an appropriate and protective manner in regard to the abuse and that her family does not pose a risk of harm to the child. In the context of these proceedings the applicant’s concerns about the respondent are not relevant. The applicant seeks orders that the child live with the respondent, unsupervised for all but every second weekend. There applicant’s case is not argued on the basis that by increasing her time with the child, the child’s time in the unsafe hands of the respondent will thereby be reduced.
86.As to the maturity, lifestyle and background of the child – the child is four years of age. There is no other evidence as to the child’s background. The family consultant observed that the child presented as a bright and imaginative little girl who appears to be meeting her developmental milestones with ease. I note that those observations were made prior to the institution of unsupervised weekend visits with the applicant.
87.As to the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents – on their own evidence, the parents have exposed the child to conflict and other symptoms of the breakdown of their relationship. Each of the parents has indicated that they want to be able to parent their child to the best of their ability.
88.Family violence has been asserted by both parties in this matter and there have been sequential AVOs in place to protect the respondent and the child from the applicant. There have been physical confrontations between the parties and some damage to property.
89.An order that would be less likely to lead to further proceedings is not really a relevant consideration for interim matters.
90.Under the catchall provision I note that there is no probative evidence that assists with the key question before the Court – should the child’s time with the applicant be increased.
Discussion
91.The first thing to say is that neither party seeks to reduce the child’s time with the applicant. The issue is whether or not the time should increase from monthly to fortnightly visits.
92.There is little evidence about the weekend contact visits under the May 2015 orders. In her July 2015 affidavit the respondent gave evidence suggesting that she has been unsettled and destabilised by her contact with the applicant at handovers and that the child too, was unsettled by her weekends with the applicant. The child did not settle to sleep after the first weekend and on each weekend asked the respondent if they (she and the child) could go home. For her part, the applicant deposed that on the first two weekend visits the child asked if they could go home to their old house, if she could go with the applicant to Melbourne and if she could have “lots and lots” and “thousands of sleeps” with the applicant.
93.The family consultant saw the family in April and did not propose that the time between the child and the applicant be increased. However she did say “it is concerning that the child is spending limited and supervised time with Ms Frontera given that she was a significant person in the child’s life”. Since that time, the regime of unsupervised time for one weekend each month was instituted.
94.The thrust of the applicant’s case, indeed the entire justification for the case seems to be that when the applicant moves to Sydney it will be practicable to increase her time with the child to a more usual or satisfactory frequency.
95.It appears that the respondent’s opposition to an increase to fortnightly weekend time relates to her desire to avoid having more frequent contact with the applicant and some concern about the child being unsettled by the visits.
96.The parties have put an arrangement in place. I am not confident that increasing the frequency of the weekend visits will be in the child’s best interests. Just because something works in a satisfactory way, does not mean that something else will also be satisfactory. The agreed fact of physical violence between the parties is of great concern. There is ongoing evidence about spiteful communications between the parties. Each of them alleges intimidating and controlling behaviour one against the other. Those matters argue for keeping the parties apart as much as possible. The family consultant considers that the child is alive to the volatility of the parties’ relationship. The conversation reported at paragraph 4 of the respondent’s latest affidavit suggests that the child feels that she needs to support one of the parties by distancing herself from the other. That is of great concern.
97.The fact that a party makes an application for interim parenting orders does not require that changes be made. The fact, as I recall being raised in submissions, that there has not been a contested interim parenting determination, does not justify the making of interim parenting orders. Parties are entitled to bring parenting proceedings and if they cannot be compromised, are entitled to a judicial determination. It is difficult enough to make a judicial determination when there is expert evidence and where it and the lay evidence can be tested at trial. Even then, there is no right answer. There are obvious risks in an interim hearing, with a bare statement of issues from a family consultant and no opportunity to test any evidence, that an order will be made that does not meet the best interests of a child.
98.Although not taken up in submissions, there are issues raised in the amended application and response, such as issues about communication rules and passports. I do not recall any evidence about the prospect of overseas travel. However, if necessary, in that regard and in relation to communication, I would expect that with the living arrangements settled for the time being, the parties will be able to arrive at a sensible compromise.
Conclusion
99.The parties have put in place interim living arrangements for the child, whereby she spends one weekend a month with the applicant. The parties have a poor relationship that has involved physical violence and an AVO remains in place for the protection of the respondent and the child from the applicant. In my view the circumstances do not warrant an interim change to the current living arrangements for the child.
100.The interim applications will be dismissed.
I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 26 August 2015.
Associate:
Date: 26 August 2015
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