Gong and Hing

[2016] FamCA 1177

FAMILY COURT OF AUSTRALIA

GONG & HING [2016] FamCA 1177

FAMILY LAW – CHILDREN – interim orders – best interests – scope of consideration and discussion of section 60CC factors – where the child has lived primarily with the mother – whether the time the child spends with the father should be increased prior to a further hearing and prior to completion of a 11F assessment

Banks & Banks [2015] FamCAFC 36 (2015) FLC 93-637
Goode & Goode [2006] FamCA 1346 (2006) FLC 93-286

Family Law Act 1975 (Cth)

APPLICANT: Mr Gong

RESPONDENT: Ms Hing

FILE NUMBER: MLC 4024 of 2016

DATE DELIVERED: 21 October 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 21 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Arnold

SOLICITOR FOR THE APPLICANT: Berry Family Law

COUNSEL FOR THE RESPONDENT: Mr Boden

SOLICITOR FOR THE RESPONDENT: Starnet Legal

Orders

1. Pursuant to s 11F of the Family Law Act 1975 (Cth) the parties to the proceedings attend upon a family consultant at the Melbourne Registry of the Family Court of Australia on 9 January 2017 at the following times:

   a)   the applicant father at 9.15 am; and

   b)     the respondent mother at 11.00 am;

   for the purposes of a Children’s and Parents Issues Assessment and such assessment once completed be released to the parties.

2. For the purpose of completing the s 11F assessment the family consultant:

   a)   is permitted to inspect the Court file and read all documents filed in and related to this matter; and

   b)     is permitted to read any document produced on subpoena once permission to inspect has been granted to a party.

3. Until further order the child B born … 2013 spend time with the father as follows:

   a)   from 9.00 am to 12 noon on 23 October 2016, 30 October 2016 and 6 November 2016;

   b)     each Wednesday from 2.00 pm to 5.00 pm, the child to be collected from and returned to C Childcare Centre; and

   c)     from 9.00 am to 3.00 pm each Sunday commencing 13 November 2016.

4. For the purposes of the child’s time with the father pursuant to paragraphs 2(a) and (c) of these orders, the father shall collect the child at the commencement of time from and return him and the conclusion of time to the mother’s residence.

5. All extant interim applications be otherwise adjourned to the Senior Registrar’s Duty List at 10.00 am on 25 January 2017.

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 Gong & Hing 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 MELBOURNE

FILE NUMBER: MLC 4024  of 2016

Mr Gong

Applicant

And

Ms Hing

Respondent

REASONS FOR JUDGMENT

1. The matter listed before me in the Senior Registrar’s Duty List is the father’s Application in a Case filed 31 August 2016.  The proceedings are in relation to the time the child of the marriage, B, born in 2013, who is now three years of age, should spend with his father, Mr Gong.  The father and the mother, who were married in 2013 separated finally in October 2014.  It is common ground that the father and the mother had previously separated for a period of approximately three months during which time the child lived and was cared for by the father with the assistance of his mother.  The child has lived with the mother and spent only limited time with the father since the final separation and is currently spending a few hours each alternate Sunday with the father in the presence of the mother.

2. The orders I am being asked to make are parenting orders and, in those circumstances, the framework within which the Court makes parenting orders, are those identified by the Full Court in Goode & Goode [2006] FamCA 1346 (‘Goode’). However, in the recent decision of Banks & Banks [2015] FamCAFC 36 (‘Banks’), the Full Court made a number of observations with respect to the legislative pathway identified in Goode in the context of interim proceedings, which, are on my view, pertinent to this case. The Full Court said at paragraph 47 as follows:

   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. 

   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.   

   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.

   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.

3. The parties have agreed that they should attend upon a family consultant for the purposes of a Section 11F Children and Parents Issues Assessment. An appointment is available on 9 January 2017. The issues in dispute are, in those circumstances, limited to the time the child should spend with the father until the further hearing of the matter on 25 January 2017, after the completion of that assessment.

4. The father and mother have also agreed that the child should spend time with the father from 2.00 pm to 5.00 pm each Wednesday, with the father to collect him from and return him to his child care centre at the commencement and conclusion of that time.  The father proposes as additional time  that the child spend from 9.00 am to 12.00 noon each Sunday with him for the next three weeks, that the child spend from 9.00 am to 3.00 pm with him for a further three weeks and that thereafter the child spend from 9.00 am to 5.00 pm each Sunday with the father.  The mother proposes that the father spend from 9.00 am to 12.00 pm each alternate Sunday on two occasions and that thereafter that time be extended to 3.00 pm until a further hearing of the matter.

5. In effect, the two issues I must determine are whether the child should spend time with the father each Sunday or each alternate Sunday and whether that time should be increased from 3.00 pm to 5.00 pm prior to the further hearing of the matter.  In circumstances where it is the mother’s case that the child needs to develop his relationship with the father, it is his case that it is in the child’s best interests for that time to be more frequent and if the Court were to accede to the mother’s application there would be a gap of a week between the child’s time with the father every second week.

6. The mother’s objection to the father’s proposal is that she is employed full-time and wants to have an uninterrupted weekend with the child every second weekend.  In my view, that submission would have more force if the proposed arrangement was being proposed on a longer-term basis.  However, in this case both parties, although they do not agree when it should commence, are ultimately proposing an alternate weekend regime.  It is common ground in this case that the child would benefit from having a meaningful relationship with the father and although the mother has been supervising the child’s time with the father, she is not proposing that supervision be ongoing. It follows that it is not her case that there is any need for supervision. 

7. Although the affidavit material is lengthy, it tends, in my view, to focus on the history of the parties’ relationship, rather than the needs of their son and certainly does not greatly assist me in terms of the decision I am required to make.  Doing the best I can on the evidence I do have, mindful of the fact that there is no independent evidence and weighing up the parties’ competing proposals, I am satisfied in circumstances where the mother’s case is that the child may experience some anxiety because of the limited nature of his relationship with the father, that it would be in his best interests for the time he spends with the father to be more frequent.

8. On that basis, I propose to accede to the father’s application that at least until the hearing of this matter, the child spend time with him each Wednesday and Sunday.  However, also mindful of the fact that the child has not been spending as much time with the father as the orders I propose to make provide for and in circumstances where the Court does not as yet have the benefit of any expert evidence, I do not propose to accede to his application that the time the child spends with the father be extended to 5.00 pm.  Whilst the extension of time might not cause any problems for the child and, in fact, may be in his best interests, that is a matter that can be addressed at the next hearing when the expert evidence is available as to the nature of the child’s relationship with the father.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 21 October 2016.

Associate: 

Date:  21 July 2017