FURNESS & VINEY

[2017] FCCA 1011

FEDERAL CIRCUIT COURT OF AUSTRALIA

FURNESS & VINEY [2017] FCCA 1011

Catchwords:
FAMILY LAW – Interim parenting – child live with mother – spend time with father.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61C, 61DA, 65DAA

Crimes (Domestic and Personal Violence) Act 2007, ss.22, 26, 27

Cases cited:

Goode v Goode (2007) 36 FamLR 422
Keats & Keats [2016] FamCAFC 156
Mazorski & Albright [2007] FamCA 520
MRR & GR [2010] HCA 4
Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Applicant: MR FURNESS

Respondent: MS VINEY

File Number: PAC 535 of 2017

Judgment of: Judge Obradovic

Hearing date: 20 April 2017

Date of Last Submission: 20 April 2017

Delivered at: Parramatta

Delivered on: 22 May 2017

REPRESENTATION

Counsel for the Applicant: Ms Petrie

Solicitors for the Applicant: Photios Vouroudis & Co

Counsel for the Respondent: Mr Fermanis

Solicitors for the Respondent: Malouf Solicitors

PENDING FURTHER ORDER

1. That Order 2 of the Interim Consent Orders dated 4 April 2017 is discharged.

2. The father shall spend time with the child as follows:

   (a)Each Tuesday from 8am to 12 noon;

   (b)Each Friday from 8am to 12 noon;

   (c)Each Sunday from 9am to 5pm;

   (d)On the child’s birthday from 8am to 12 noon;

   (e)On Saturday 16 September 2017 from 9am to 6pm in Lieu of the father’s time on Sunday 17 September 2017; and

   (f)Such other times as agreed between the parties.

3. List the matter for directions at 11.30am on 9 August 2017.

IT IS NOTED that publication of this judgment under the pseudonym Furness & Viney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 535 of 2017

MR FURNESS

Applicant

And

MS VINEY

Respondent

REASONS FOR JUDGMENT

Introduction

1. X was born on (omitted) 2015. She is not yet two years of age. Her parents, the Applicant father and the Respondent mother, cannot reach agreement about the time she is to spend with her father. That decision has fallen upon the Court, to be decided in accordance with the best interest principles enunciated in the Family Law Act1975 (Cth).

2. The proceedings were commenced by the father on 8 February 2017. The matter was first before the Court on 4 April 2017, when the parties were directed to attend a Child Dispute Conference. The memorandum to the Court from that conference does not reveal any issue that has not been addressed in the parties’ evidence. Indeed, the issue for determination is a very limited one. On 4 April 2017, the parties entered into consent orders, pending the interim hearing. Those orders were:

   1. That the child X born (omitted) 2015 (“the child”) live with the mother.

   2. That the child spend time with the father as follows:

   a. Each Monday from 12.30pm to 4.30pm;

   b. Each Wednesday commencing 5 April 2017, from 12.30pm to 4.30pm;

   c. Each Saturday from 12.30pm to 4.30pm; and

   d. Such other times as agreed between the parties in writing.

   3. That the father shall care for the child at all times when he is to spend time with her and shall notify the mother in the event he is unavailable to do so.

   4. That for the purpose of changeovers, the father shall collect the child from outside Coles at (omitted) shopping centre at the commencement of his time and shall return the child to the mother’s care outside Coles at (omitted) Shopping Centre at the conclusion of his time.

   Notation:

   A. The Court Notes that the above orders do not preclude the parties from pursuing their respective application for interim parenting orders.

3. The father proposes for the child to spend time with him as follows:

   1. That Order 2 of the Interim Consent Orders dated 4 April 2017 be discharged and the father shall spend time with the child as follows:

   a. Each Tuesday from 8am to 12 noon;

   b. Each Friday from 8am to 12 noon;

   c. Each Sunday from 9am to 5pm;

   d. On the child’s birthday from 8am to 12 noon;

   e. On Saturday 16 September 2017 from 9am to 6pm in Lieu of the father’s time on Sunday 17 September 2017; and

   f. Such other times as agreed between the parties.

4. The mother proposes for the child to spend time with the father as follows:

   1. Order 2 made on 4 April 2017 be varied as follows:

   a. That the child spend time with the father as follows:

   i. For a period of three months from the date of the Orders:

   ·Each Tuesday, Friday and Saturday from 9am to 11am;

   ii. For a period of three months thereafter:

   ·Each Tuesday, Friday and Saturday from 8am to 11am;

   iii. For a period of three months thereafter:

   ·Each Tuesday, Friday and Saturday from 8am to 12 noon.

5. The mother says that since time commenced in accordance with the consent Orders made on 4 April 2017, the child has been unsettled. The mother describes a number of behaviours by the child which she attributes to be a negative consequence of the child spending time with the father. There are of course a number of other possible explanations for such behaviours, none of which appear to have been considered by the mother. These matters are referred to later in these Reasons.

Agreed Facts

1. The father was born on (omitted) 1971.

2. The mother was born on (omitted) 1980.

3. The parties commenced living together in about (omitted) 2014 and remained together until 27 September 2016, when the father moved out of the former family home where the mother and the child remain living. X is the only child of the parties. Since her parents separated, she has been living with the mother and spending very limited time with the father.

4. At the time of the parties’ separation, the child was only 14 months old. 

5. Prior to 4 April 2017, the child spent time with the father on the following occasions with all such periods of time being relatively short and being in the presence of the mother or other relative:

   a)Between 27 November 2016 to 21 December 2016 for up to an hour every second day and at times daily;

   b)26 December 2016;

   c)30 December 2016;

   d)8 January 2017;

   e)14 January 2017;

   f)28 January 2017;

   g)13 February 2017; and

   h)16 February 2017.

6. Since the interim consent orders of 4 April 2017, the child has been spending time with the father on:

   a)7 April 2017;

   b)10 April 2017;

   c)12 April 2017; and

   d)17 April 2017.

7. On 21 December 2016 a Provisional Apprehended Violence Order was made for the protection of the mother and naming the father as the Defendant. On 11 January 2017, an Interim Apprehended Violence Order was made. The father is defending the application which is listed for final hearing on 11 May 2017.

The Law

1. The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.

2. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

3. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

4. In determining what is in a child’s best interests, the Court must consider the matters set out in s60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child.

5. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]

   [1] see for example Slater & Light [2011] FamCAFC 1at [45]

6. In applying the primary considerations, the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the parents.

7. It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]

   [2] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court

   [3] Ibid at [122]

8. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[4] The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [4] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]

   [5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

9. Section 61DA of the Act provides that when making a parenting order, the 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 presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[6]

   [6] s61DA(3)

10. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests and reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7]

    [7] MRR v GR [2010] HCA 4 at [15]

11. The Full Court in Goode v Goode[8] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.

    [8] (2007) 36 Fam LR 422, (2006) FLC 93-286

12. As stated by the Full Court in Keats & Keats, in respect of the conduct of interim proceedings:[9]

    …the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may 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.

    [9] [2016] FamCAFC 156 at [9]

Issues in Dispute

1. The central issue for determination is what time the child is to spend with the father. Such assessment is to be made by the Court at this interim stage with much of the evidence being untested and in dispute; and with very few agreed facts.

Parental Responsibility

1. Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[10] Section 61DA provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order.

   [10] See note 1 s61C

2. As noted earlier, in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[11] The presumption is also rebutted where there are reasonable grounds to believe that a parent has engaged in family violence.

   [11] s61DA(3)

3. It is noted for the benefit of the parties that in making a final parenting order in relation to a child, the Court must disregard the allocation of parental responsibility made in the interim order.[12]

   [12] s61DB

4. The Court having heard from the parties, and taking into consideration all of the evidence, finds that the presumption of equal shared parental responsibility has not been rebutted. However, neither party sought an order allocating parental responsibility, thus none will be made, leaving the application of s61C intact.

Section 60CC Considerations

1. The protection of the child from harm is an important matter for the Court’s consideration when weighing up the primary considerations. Indeed, the Court must prioritise the need to protect the child from harm as against the benefit of the child having a meaningful relationship with the parents.

2. Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made. In doing so the Court must weigh up any risk of harm to the child, all the while considering what might be in the child’s best interest. It is the existence and magnitude of the risk of harm that is a fundamental matter to be taken into account in deciding what orders are to be made in respect of what time, if any, the child is to spend with the father.[13]

   [13] M & M (1988) 166 CLR 69 at 77

3. The mother has been the primary carer of the child since her birth. As previously mentioned, the child is not yet two years of age. The child’s view of course, are not only unknown, but given her age would not be given any weight (even were they able to be ascertained). The child’s interaction with her parents is not a matter which is the subject of any expert evidence.

4. The father’s relationship with the child is still somewhat untested. This does not mean that spending time with the father will impact negatively upon the child.

5. Annexed to the mother’s Affidavit is an exit form dated 10 February 2017 in relation to the child’s attendance at the (omitted) Child Care Centre.  The mother states that until March 2017 the child attended the day care centre, and that she showed resistance to remaining in childcare for up to four hours two or three days per week. The reason for exit from day care was described as “Too young, cries for mum won’t feed or sleep, has night terrors. But will come back when she’s ready!”  It is difficult to understand what the reference to ‘too young’ might mean if the child was of an age which was accepted at the child care centre.

6. In her Affidavit filed 20 April 2017, the mother states that she has observed since the making of the consent orders of 4 April 2017 that the child has become increasingly clingy towards her, that she has had night terrors and that she has become resistant to spending time with the father. All of these behaviours appear to be behaviours of a similar nature to the ones which the child exhibited in February 2017.

7. There is no evidence that the behaviours described in the exit form were non-existent between 10 February 2017[14] and 4 April 2017. Furthermore, there is no evidence that the child did not exhibit these behaviours between the times she stopped going to day care and the time she commenced spending with the father.  There might be all sorts of reasons as to why the child is exhibiting such behaviours, which have not been the subject of any expert evidence. The mother is attributing the child’s behaviours to spending time with her father. The Court does not accept that the mother has any relevant expertise and consequently holds that her opinion on the matter is of very limited weight.

   [14] Being the date of the notification that the child will cease attending the day care centre. The exit date is 3 March 2017.

8. In relation to the time that the child has been spending with the father since the 4 April 2017 interim orders, the Court accepts that the time provided for in those orders did not fit in very well with the child’s daily routine.  The Court accepts that time in the morning, namely before noon, will mean that the child’s afternoon nap will not be interrupted, and time over the course of the day will facilitate that afternoon nap occurring in the care of the parent with whom she is spending the day.

9. The mother submits that the father has failed to take the opportunity of spending time with the child. She says that he prioritises his work over his relationship with the child and that he prefers to play golf rather than spend time with the child. The father denies these allegations. 

10. Indeed the father says that it is the mother who has limited his relationship with the child and that she has made spending time with the child very difficult. What appears to be agreed is that the father has spent limited time with the child post separation and that such time has been supervised or in the presence of the mother or other family members.

11. On 21 December 2016 an incident occurred which resulted in the mother making a complaint to the Police and a Provisional Apprehended Domestic Violence Order (ADVO) being made.  Subsequently, an Interim Apprehended Violence Order was made. The father is defending the matter, and the Court was advised during the interim hearing that the application for final ADVO was listed for hearing on 11 May 2017. The interim ADVO was in the following terms:

    You must not do any of the following to Ms Viney, or anyone she has a domestic relationship with:

    A)     assault or threaten her,

    B)      stalk, harass or intimidate her, and

    C)    intentionally or recklessly destroy or damage any property that belongs to or is in the possession of Ms Viney.

12. The fact of the provisional ADVO being made, or of the interim ADVO being made, is not per se evidence of family violence. The provisional order is prima facie evidence that either section 26 or section 27 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) has been satisfied[15]. The interim order is prima facie evidence that it appeared to the Local Court that it was necessary or appropriate to make the order in the circumstances[16].

    [15] At most this might mean that an authorised officer was of the view that

    [16] See section 22 Crimes (Domestic and Personal Violence) Act 2007 (NSW)

13. It is however, the orders themselves are matters which the Court must take into consideration. The grounds for the application are attached to the mother’s Affidavit. They are based on the mother’s complaint to the Police. The father denies the allegations made by the mother, and sets out his version of events in his Affidavit filed 8 February 2017. These matters remain in dispute. 

14. The Court has carefully considered the allegations of family violence and formed the view that the likely impact of those matters, should they ultimately prove correct, is such that there is no unacceptable risk of harm to the child in spending unsupervised time with the father or indeed the time which the father submits is in the child’s best interest.

15. The father provides significant financial support to the mother, not only by way of child support but also by way of paying rent for the accommodation where the child and the mother remain living. The mother cares for the child on a day to day basis. In terms of her employment, she is a (occupation omitted) who is currently taking her parental leave.

16. The father works full-time, but he is a director and shareholder of the company which employs him. His work is flexible to a degree and allows him to work in a way which will cater for spending time with the child which is suitable to her daily routine.

17. The parents both live in suburban Sydney. There will be no practical difficulty with the child spending time with the father. There may be a period of adjustment for the child and for the parties when time between the child and the father commences in accordance with these orders. It is important for the parents to work cooperatively in ensuring that the impact of any change in the child’s routine is ameliorated as much as possible.

1. The Court finds that the mother has a demonstrated capacity to meet the child’s needs.

2. The Court finds that the father’s capacity to meet the child’s needs remains somewhat untested given the limited amount of time he has had in caring for the child himself. Objectively, the father is an intelligent and capable human being, who shows a great deal of love and care for his child through his evidence. 

3. These are only interim orders, and it is likely that if the matter proceeds to final hearing, there may be a time period of at least some twelve months before the matter is decided on a final basis, much depending on whether a Family Report is to be ordered.

4. The length of time that the matter will take to reach readiness for a final hearing is also something which the Court has considered in making these interim orders, particularly in trying to balance the child having a meaningful relationship with both of her parents while ensuring that her safety and well-being are ensured as much as possible.

5. The Court is of the view that to take a step backwards and reduce the time the child is currently spending with the father is not in the child’s best interest in the absence of any expert evidence on this point. While the interim orders were noted to have been ‘without prejudice to the parties’ interim applications’ the Court must accept that both parents considered at the time the orders were entered into that they were in the child’s best interest. The Court accepts that there has been a period of adjustment for the child spending time with her father. It may be that this adjustment period is continuing. However, this factor of itself does not lead to a conclusion that time should be reduced in accordance with the mother’s case.

6. The child is still relatively young and has not spent any overnight time with the father to date. During the hearing the father’s application changed from what was contained in his Initiating Application which included overnight time, to day time only in accordance with the Minute of Proposed Order handed up just before submissions. The change in position was a sensible one and occurred after there were some preliminary discussions between the parties’ Counsel and the Bench. That change in position shows that the father is willing to be flexible and consider what the mother has to say, in particular in terms of fitting in with the child’s routine.

Conclusion

1. In all of the circumstances and for all of the reasons set out above, it is in the child’s best for orders to be made as set out at the forefront of these Reasons.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  22 May 2017