GREAVES & GREAVES
[2020] FCCA 1937
•5 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GREAVES & GREAVES | [2020] FCCA 1937 |
| Catchwords: FAMILY LAW – Parenting – interim hearing – discrete issues – where equal shared parental responsibility by consent – where children reside with Mother in Brisbane and Father resides in Sydney – where children spend regular time with Father in Brisbane – where Court tasked with deciding when to increase the time the children spend with the Father – where Court tasked with deciding school enrolment for teenage child not currently attending school – where Court tasked with deciding orders in relation to communication between the children and the Father – where Court tasked with deciding whether to restrain the Father from providing teenage child with a SIM card in addition to that which the child has been provided by the Mother. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA, 65D, 65DAA, 68P, 69ZL |
| Cases cited: M & M (1988) FLC 91-973 |
| Applicant: | MS GREAVES |
| Respondent: | MR GREAVES |
| File Number: | SYC 1465 of 2018 |
| Judgment of: | Judge Morley |
| Hearing date: | 7 November 2019 |
| Date of Last Submission: | 7 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 5 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Kennedy |
| Solicitors for the Applicant: | Santone Lawyers |
| Counsel for the Respondent: | Mr Guterres |
| Solicitors for the Respondent: | Dorter Family Lawyers and Mediators |
| Solicitors for the Independent Children's Lawyer: | Ms Webber of the Legal Aid Commission of NSW |
ORDERS
THE COURT ORDERS, PENDING FURTHER ORDER:
That order 6.2 of the consent orders made on 7 November 2019, as amended by the slip rule on 18 November 2019, is discharged.
That during school term time the children X (‘X’) aged 9, Y (‘Y’) aged 16, and Z (‘Z’) aged 12, spend time with their Father on each alternate weekend from 5:30PM on Friday until before school on Tuesday, or 9:00AM on Tuesday if a non-school day.
That the parents attend upon Dr B for the purpose of an updated report to address the following:
(a)The improvement of the co-parenting relationship between the parents;
(b)The stability of the children and the parenting arrangements;
(c)Whether, in Dr B’s opinion, the time the children spend with the Father should increase to five nights each fortnight during school terms; and
(d)Any other matter considered to be relevant.
For the purpose of order 3 herein, the parents are to facilitate the attendance of Y, Z, and X upon Dr B for the preparation of the updated report.
That the Mother shall facilitate telephone communication for Y, Z, and X with their father on Tuesdays and Thursday at some time between 6:00PM and 6:30PM.
That the Father be restrained by injunction from providing the child Y with a SIM card,.
THE COURT NOTES THAT the Mother will provide a SIM card for the child and ensure he always has capacity to make and receive telephone calls from his mobile phone.
IT IS NOTED that publication of this judgment under the pseudonym Greaves & Greaves is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1465 of 2018
| MS GREAVES |
Applicant
And
| MR GREAVES |
Respondent
REASONS FOR JUDGMENT
Introduction
These are short form Reasons for Judgment, pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’), following an interim hearing on parenting issues on 7 November 2019.
The Applicant Ms Greaves (‘the Mother’) and the Respondent Mr Greaves (‘the Father’) have parenting issues and property settlement proceedings before the Court arising from the breakdown of their marriage.
The parenting proceedings relate to their children, Y born in 2004, Z born in 2008, and X born in 2010. At their inception, the proceedings also related to the parties’ eldest child, Mr C, born in 2002, but Mr C is now 18 years of age.
An interim hearing in relation to both parenting and property issues was listed on 7 November 2019. In the course of the day, the parties settled all of their interim property issues, and interim orders were made by consent. The parties also settled most of their interim parenting issues with orders being made by consent, leaving five matters for determination by the Court. These Reasons relate to those five issues.
The proceedings up to interim hearing
As these are short form Reasons, I will summarise the proceedings up to hearing briefly.
The proceedings were commenced by the Mother’s Initiating Application on 8 March 2018 and came before the Court for its first mention on 14 May 2018, at which time the parties entered into some interim parenting consent orders, of which the principle orders were:
a)That the parents have equal shared parental responsibility for all four children;
b)That Mr C spend time with his parents pursuant to his wishes;
c)That Y, Z, and X live with their Mother;
d)That Y, Z, and X spend time with their Father each week from after school Tuesday to start of school Wednesday, each alternate week from after school Friday to start of school Monday and each alternate week from 5:30PM until 7:00PM on Thursday; and
e)That Y, Z, and X spend about half the school holidays with each parent.
At the time the orders were made on 14 May 2018, both parents and the children were living in the Suburb D area in Sydney.
Towards the end of 2018, it was agreed between the parents that the Mother and the children would relocate to Brisbane. By this time, Mr C was already attending a boarding school in Brisbane on a sports scholarship. On 15 November 2018, interim orders were made by consent in anticipation of that move:
a)Enabling the Mother to relocate the children’s place of residence to Brisbane from 7 January 2019;
b)Providing that Y and Z would be enrolled at E School in Brisbane for 2019; and
c)Providing that following the move, the children would spend time with the Father:
i)Each alternate weekend from 5:30PM on Friday until the start of school on Monday;
ii)For seven nights in the school holidays at the end of terms 1, 2 and 3, in Sydney or Brisbane as the Father chose; and
iii)That the children would spend roughly half of the Christmas school holidays with the Father in Sydney or Brisbane, as the Father chose.
On 24 June 2019, orders were made, inter alia, that:
a)An Independent Children’s Lawyer (‘ICL’) be appointed to represent the interests of the children. The order was facilitated by Legal Aid and Ms Webber was appointed as the ICL.
b)By consent, an expert’s report be prepared by Dr B, a clinical psychologist; and
c)The matter be set down for an interim hearing in relation to further parenting and property issues
Dr B’s report was available on 18 October 2019 and was released by a Chambers order on 21 October 2019.
The interim hearing took place on 7 November 2019, ultimately in relation to the five specific issues that the parties were not able to settle on the day.
The orders sought
The Mother sought the following orders in relation to the issues in dispute:
a)That the Father be restrained by injunction from providing Y with a SIM card, noting that the Mother would provide him with a SIM card herself, and ensure he always has capacity to make and receive telephone calls on that SIM card;
b)That the parties attend upon Dr B for an updated report not less than six months from the date of these orders and facilitate the children Y, Z, and X attending, with leave to the ICL to file orders for the report in Chambers;
c)That the ICL prepare a joint letter of instructions to Dr B, specifically requesting that the expert recommend whether the Father’s time with Y, Z, and X should increase;
d)That the Mother facilitate telephone communication for Y, Z, and X with the Father on Tuesdays and Thursdays between 6:00PM and 6:30PM; and
e)That the balance of the parenting Application, being any increase in the children’s time with the Father, be adjourned to a date after 1 July 2020.
The Father sought the following orders relevant to the issues in dispute:
a)That in addition to the interim orders made by consent on 7 November 2019, the Father spend time with the children Y, Z, and X:
i)Commencing term 1 2020, on each alternate week from 5:30PM on Friday until before school (or 9:00AM if a non-school day) the following Tuesday;
ii)Commencing term 3 2020, on each alternate week from 5:30PM on Friday until before school (or 9:00AM if a non-school day) the following Wednesday;
b)That the parents do all acts and things and sign all documents necessary to enrol Y in F Online School to commence term 1 2020, with the Court noting that the enrolment would be on a trial basis in order to transition Y back into schooling;
c)That the Mother and Father be at liberty to attend all school and sporting events of each of the children; and
d)That the Mother and Father be permitted to communicate with the children via text, email, and telephone on the days the children are not in their care.
The ICL sought an order that on a date not before 31 March 2020, the parents attend upon Dr B for the purpose of an updated report to address the following:
a)Whether there has been an improvement in the co-parenting relationship between the parents;
b)The stability of the children and the parenting arrangements;
c)Whether, in Dr B’s opinion, the time the children spend with the Father should increase to four nights each fortnight during school terms; and
d)Any other matter considered to be relevant.
The ICL also sought an order that the parents facilitate the attendance of Y, Z, and X upon Dr B for the purpose of the report.
The Mother opposed the order sought by the Father to increase his alternate weekend time with the children through two further steps, and the Father opposed any order for an updating report by Dr B being obtained before further order was made for increasing his time with the children.
The Mother opposed the order sought by the Father in relation to attendance by both parents at school or sporting events, and opposed the orders sought by the Father in relation to Y being enrolled in the F Online School.
The Father opposed the orders sought by the Mother in relation to Y’s SIM card.
It is inherent in the cases presented by each parent that they are in conflict in relation to the appropriate orders to be made in relation to communication between the children and the parent not having care of them from time to time.
The issues
Accordingly, the issues for the Court’s determination are:
a)Whether an order should be made, as sought by the Father, increasing the amount of time he spends with the children on alternate weekends, or whether an order should be made for an updated report by Dr B for the assistance of the Court in deciding when an order for increasing the Father’s time should be made;
b)Whether both parents should be able to attend at the children’s school and sporting events;
c)Whether Y should be enrolled in F Online School;
d)What orders are appropriate for communication by any of telephone, text, or email between parents and children; and
e)Whether the Father should be restrained from providing a SIM card to Y.
The material relied upon
The Mother relied upon the following material:
a)Her Case Outline document;
b)A Minute of Order (handwritten);
c)Application in a Case filed 20 June 2019;
d)Affidavit of the Mother sworn or affirmed 19 June and filed 27 June 2019; and
e)Affidavit of the Mother sworn or affirmed and filed 13 September 2019.
The Mother relied upon a document admitted to evidence as exhibit A1 being two pages of prints of emails dated 30 October 2019 between the Mother and G School in relation to the Distance Education Board.
The Father relied upon the following material:
a)His Case Outline document prepared by his counsel, Mr Guterres;
b)Response to Application in a Case filed 30 July 2019; and
c)Affidavit of the Father sworn or affirmed and filed on 30 July 2019.
The Father also relied upon a document admitted into evidence as exhibit R1 being a copy of the temporary protection order made in the Magistrates Court of Brisbane, Queensland, on 14 March 2019 naming the Father as the Respondent and the Mother and each of the four children as persons protected.
I have read and carefully considered all of the material relied upon by the parties on interim hearing, even though much of the material contained therein did not relate to the matters that remained in issue between the parties in the interim hearing. I have read and carefully considered the whole of the expert report prepared by Dr B and immediately before preparation of these Reasons, I listened to the whole of the audio recording of the interim hearing which included the submissions made on behalf of the Mother, submissions for the Father, submissions by the ICL, and submissions in reply on behalf of the Mother.
At the time of the interim hearing, the Mother was 45 years of age and the Father was 50 years of age. Mr C was 17 years of age and he has now turned 18 years of age. Y was 15 (and is now 16), Z was 11 (and is now 12), and X was, and remains, nine years of age.
The parties commenced co-habitation in 2000, married in 2003, and separated on 1 March 2017, though they remained residing under the same roof in the former matrimonial home at Suburb D until June 2018 when the Father moved out and took up residence in a rented property nearby.
At some time prior to commencement of these proceedings, Mr C took up a sports scholarship at E School in Brisbane and moved to board at the school. In late 2018, the Mother proposed to the Father that she and the other children move to reside in Queensland so that Mr C could leave the boarding arrangement and live with his Mother and siblings, as he did not like the boarding experience. The Father agreed.
On 21 December 2018, the Mother moved to a rental property in Suburb H, a suburb of Brisbane, and Mr C joined her there. Y, Z, and X joined her there on 7 January 2019 after spending the first part of the Christmas school holidays with the Father.
After the move to Brisbane, Y entered year 9 at E School in Brisbane and during term 1 in 2019 he began to refuse to attend school. The Mother deposes that his attendance rate in term 1 was 22 per cent. He refused to attend school at all during the balance of 2019 up to the interim hearing.
Z was in year 6 at H State School during 2019 and, pursuant to a consent order made by the parties at the interim hearing, he is in year 7 at H High School this year.
X was in year 3, and is now in year 4, at H State School.
Mr C is now an adult.
During 2019, the Mother tried to make arrangements for Y to attend H High School, but Y refused to attend the interview that is a prerequisite to enrolment.
The Mother deposes, and the Father in his evidence agrees, that Y’s behaviour toward his Mother and on many occasions toward his siblings has been very poor, giving rise to serious concerns about his overall mental health. In this regard, I note the findings of Dr B in paragraph 15.2.2 of the expert’s report that after administering the Depression, Anxiety and Stress Scale (DASS) to Y, she indicated that he showed clinically significant symptoms of anxiety and stress and clinically significant depression symptoms.
Dr B noted that Y seemed quite obsessed with participating in a certain type of sport and that his participation had led him to connect with some “questionable peers”. She further noted Y’s wish that he wanted to complete his schooling online.
Following the Father obtaining his own accommodation and moving out of the matrimonial home in June 2018, and pursuant to the interim orders made by consent on 14 May 2018, he spent five nights per fortnight with the children – every Tuesday night and each alternate weekend from Friday until Monday, and each alternate Thursday from 5:30PM until 7:00PM.
When the Mother and the children moved to Queensland in December 2018/January 2019, the Father had some difficulties with spending time with the children each alternate weekend in relation to accommodation, initially solving the problem by arranging an ‘Airbnb’ for each occasion – which the boys did not like – and then by leasing a home at Suburb J, a suburb of Brisbane very close to Suburb H.
Relevant to the issues for decision, I note the following extracts from the expert’s report by Dr B:
16.56 – If Y remains in Brisbane, the immediate concern is how to manage his school refusal. Y has a strong desire to commence online education and has not been attending school. Extra assessment and therapeutic support are needed to ascertain how to support Y with his school moving forward.
16.57 – The Father is seeking an immediate increment in visitation time with the children. At this stage, I would hesitate to recommend any more structural changes to the current visitation arrangement. The children (and parents) have experienced too many changes in a short period of time since separation, at this time consistency and stability is required.
16.58 – It is of upmost importance that the parent’s [sic] energy and focus needs to now be on establishing an effective co-parenting relationship, maintaining stability with no further avoidable life changes and supporting Y to be assessed and engage in schooling again.
...
17.4 – The current visitation arrangements should continue with all children residing with their Mother and having time with their Father in Brisbane from Friday, 5:30PM to Monday before school. There should be a continuation of the holiday arrangement currently in place.
17.5 – With a committed effort by both parties to improve the co-parenting relationship, consideration can be given to an increment in time with the Father to one/two extra nights per fortnight in six to 12 months. If either party does not show a committed effort to improving the co-parenting relationship this will impact future visitation recommendations. In this circumstance I would recommend an updated family report in six to 12 months to assess the progress made and provide further recommendations.
17.6 – Y needs to be immediately assessed by a clinical neuropsychologist to ascertain in his current cognitive functioning, determine any underlying diagnosis and make specific recommendations regarding the most appropriate schooling environment for Y. I would recommend Dr K complete this assessment …
In relation to Dr B’s recommendation that Y be further assessed, I note the following in paragraph 16.41 of the expert’s report:
16.41 – … It is important to ascertain on what are the main factors contributing to Y’s psychological and behavioural issues. He could be experiencing (1) primary anxiety/depression post his parents [sic] separation, (2) oppositional defiance disorder (ODD) with secondary anxiety/mood disturbance, or (3) another contributing condition. During the current assessment there were indications of a potential diagnosis of Autism Spectrum Disorder (ASD) …
Dr B goes on to give examples of some indicator symptoms she observed, but notes that:
… I do not have enough information on Y’s pre-separation functioning to determine if these issues were pre-existing. Further assessment is needed to investigate these hypotheses and determine the appropriate treatment response.
Ms Kennedy made submissions to the Court in relation to the issue of Y being enrolled in online distance education. She submitted that, on the information tendered as exhibit A1, the Mother would need to be present at all relevant times to enable Y to engage in distance education. In circumstances where the Mother needed to return to paid employment, Ms Kennedy submitted that distance education for Y would not be practical in the circumstances.
On this issue, Mr Guterres submitted for the Father that the distance education was a transition device to get Y back into school attendance, and that the opportunity had presented when the Mother had not been in paid employment.
In relation to the orders sought by the Mother restraining the Father from providing a SIM card to Y, it was submitted by Ms Kennedy that on the Mother’s evidence, withdrawing Y’s ability to utilise his mobile phone for its internet connection was the main, if not the only, device available to her to discipline Y. She submitted that if Y was in possession of a SIM card provided to him by his Father, that the Mother would not be able to control his internet connection, as either:
a)She would not be able to take the SIM card away from Y, as, given his behaviour toward his Mother, he would refuse to turn it over to his Mother; and
b)If the SIM card account was in the Father’s name, the Mother would not be able to ‘turn off’ the data allowance to the SIM card with the data provider.[1]
[1] The Mother deposes that she has, historically, been able to turn the data allowance on Y’s SIM card on and off through her provider without having to deal with the physical possession of the SIM card with Y.
Ms Kennedy for the Mother referred to paragraph 16.55 of the expert’s report:
If the Father is indeed financially supporting Y behind the scenes and rewarding him for poor behaviour this will continue to undermine Mr Greaves’ role as his parent and further fracture their relationship.
This relates to the agreed evidence that the Father provided Y with a SIM card, over which the Mother, consequently, had no control.
Mr Guterres submitted that the Father opposed the SIM card injunction order on the basis of his evidence that he was not informed by the Mother what was happening in her household with the children and that “taking the SIM card can lead to Y putting himself at risk, for example, by precipitately leaving the Mother’s household”. This submission ignores the last part of the order sought by the Mother – that is, that the Mother must ensure that Y is able to make and receive telephone calls from his mobile phone with a SIM card supplied by the Mother in place.
I will turn now to the issue of texts, email and telephone contact between the Father and the children. The Father seeks, in general terms, an order that would enable him to contact any of the children at any time when they are not in his care by text, email or telephone. The Mother seeks an order that the telephone communication between the Father and the children be at defined times on defined nights so as to provide a structure.
Ms Kennedy pointed out that the telephone communication order was contrary to the provisions of the temporary protection order. The Court is not aware of the history of those protection order proceedings past the interim hearing in November 2019, other than that there was to be a hearing in March 2020. The protection order, if enforced, does not prevent an order being made under the Act in the best interests of the children, so long as any inconsistency between the orders is dealt with as required under section 68P of the Act.
In relation to the increases in the Father’s time from three nights per fortnight to four nights per fortnight, and then to five nights per fortnight as sought by the Father, and the order enabling the Father to attend any school or sporting events of each of the children, Ms Kennedy referred to paragraphs 16.57, 16.58, 17.3, 17.4, and 17.5 of the expert’s report, quoted above in these Reasons. She ultimately submitted that the issue of any increase in the time spent by the children with the Father should be considered by the Court only after an updated report had been prepared by Dr B.
For the Father, Mr Guterres submitted that in circumstances where consent orders from May 2018 had provided for the Father to spend five nights per fortnight (and an additional evening) with the children, and each set of interim orders had provided for the children to spend half the school holidays with the Father, there was no reason going to the best interests of the children why the time should not be increased by the steps proposed by the Father, now that he had arranged suitable accommodation in Brisbane.
On this issue, I note the Mother’s evidence of the occasions when she asserts Z and X were either resistant to spending time with the Father, or consistently returned early from spending that time. It is the Mother’s evidence that Y has always been eager to spend the time with his Father. In circumstances where the current interim orders made by consent provide for the Father to spend three nights per fortnight with the children and roughly half of each school holiday, I find that that evidence does not give rise to any concern that an increase to four nights per fortnight would not be in the best interests of the children.
In her submissions as ICL, Ms Webber largely adopted the submissions made on behalf of the Mother and supported the orders sought by the Mother with the addition of the specific order proposed by Ms Webber for preparation of an updating report. Ms Webber sought an order for an updating report on the basis that, as consistently pointed out by Dr B in her expert’s report, the principal problem in the matter, other than Y’s particular difficulties, seem to stem from the high level of conflict between the parents. Ms Webber accepted Dr B’s view that the state of the parties’ parental relationship needed to be further considered before further steps were taken in relation to the Father’s time or communication with the children.
Ms Webber further submitted that the open nature of the telephone, email and text communication sought by the Father had the potential to escalate conflict between the parents, as will the Father’s proposed order that he be able to attend all school and sporting events for the children.
The law
In parenting proceedings under the Act, the Court is required to follow the legislative pathway set down in the Act. That applies to interim hearings on parenting issues.[2]
[2] MRR & GR (2010) HCA 240; Goode & Goode (2006) FLC 93-286; Marvel & Marvel (2010) 240 FLR 367.
The Court must give attention to section 60B of the Act that sets out the objects of Part IV of the Act relating to children. Those objects inform the making of parenting orders.[3] That section also contains the principles behind those objects. In this matter I have considered those objects and the principles behind those objects.
[3] Family Law Act 1975 (Cth) s 60B.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration. The child’s interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter, but the child’s interests must always be the paramount consideration.
In parenting proceedings, pursuant to section 65D of the Act, the Court may, subject to the presumption of equal shared parental responsibility in section 61DA and consideration of parenting plans under section 65DAB, make such parenting order as it thinks proper.[4] The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[5]
[4] Family Law Act 1975 (Cth) s 65D(1).
[5] Family Law Act 1975 (Cth) s 65D(2).
In determining what is in a child’s best interest, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC and make findings. [6]
[6] Family Law Act 1975 (Cth) s 60CC.
Section 61DA provides that when making a parenting order in relation to a child 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 for the child.[7]T
[7] Family Law Act 1975 (Cth) s 61DA.
The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse. The presumption, when applying, may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[8]
[8] Family Law Act 1975 (Cth) s 60B.
When the Court is considering parenting matters on the interim basis the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making interim orders.
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then pursuant to section 65DAA, the Court must consider:
a)Whether the child spending equal time with each parent would be in the best interest of the child;[9] and
b)Whether the child spending equal time with each of the parents is reasonably practicable.[10]
If both questions are answered ‘yes’, the Court must consider making an order to provide for the child to spend equal time with each of the parents.[11]
[9] Family Law Act 1975 (Cth) s 65DAA(1)(a).
[10] Family Law Act 1975 (Cth) s 65DAA(1)(b).
[11] Family Law Act 1975 (Cth) s 65DAA(1)(c).
If the Court does not make an order for the child to spend equal time with each of the parents, then the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable and, if the answer to both is yes, the Court is to consider making an order to provide for the child to spend substantial and significant time with each of the parents.
What is meant by substantial and significant time is set out in section 65DAA(3) of the Act and includes days that fall on weekends and holidays and days that do not fall on weekends or holidays, and the child being able to be involved in occasions and events special to the parents and the parents being able to be involved in occasions and events of particular significance to the child and in the child’s daily routine.
If the Court does not make an order for the child to spend substantial and significant time with each of the child’s parents, the Court must then go on to determine what parenting orders are proper in the best interests of the child, per section 65D.
As to what is ‘proper’ and how the Court’s discretion is to be exercised I note the comments of the Full Court of the Family Court of Australia in the recent decision of Grella & Jamieson:[12]
A discretionary judgment concerning the parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.[13]
[12] Grella & Jamieson [2017] FamCAFC 21.
[13] Grella & Jamieson [2017] FamCAFC 21, [18].
There is much jurisprudence on the issue of risk in parenting proceedings. The jurisprudence may be simplified by saying that the task of the Court where risks are asserted is not necessarily to make a finding as to whether the actions and events asserted have actually happened or have definitely not happened, as such a finding is rarely open to the Court on the evidence and most particularly in interim parenting proceedings replete with contested evidence.
Rather, the task of the Court is to assess whether the evidence establishes that there is a risk to the best interests of the child. If the evidence establishes that there is such a risk, briefly expressed, the Court must:
a)Assess whether that risk is an acceptable risk or an unacceptable risk;
b)If it is assessed that it is an unacceptable risk, assess whether or not the risk can be mitigated by appropriate orders; and
c)Decide what orders are proper in all the circumstances in the best interests of the child.
Detailed exposition of the treatment of risk in parenting matters can be found in the decision of the High Court in M & M[14] and the decisions of the Full Court of the Family Court of Australia in A & A & The Child Representative,[15] Napier & Hepburn,[16] Johnson & Page,[17] Deiter & Deiter,[18] and Eaby & Speelman.[19]
[14] M & M (1988) FLC 91-973.
[15] A & A & The Child Representative (1998) 22 FamLR 756, [3.23] to [3.25].
[16] Napier & Hepburn (2006) FLC 93-303.
[17] Johnson & Page (2007) FLC 93-344.
[18] Deiter & Deiter [2011] FamCAFC 82, [61].
[19] Eaby & Speelman [2015] FamCAFC 104 (Thackray, Ryan, and Forrest JJ).
Where there is contested evidence in an interim hearing the Court is not always able to make a finding, but must do what can be done on the basis of agreed facts and any contested evidence where there is sufficient corroboration on one side to enable a finding. This is to enable the Court to perform the function of the Court and resolve any interim issues with the best interests of the child as the paramount consideration, and make whatever orders are then considered proper.
In SS & AH,[20] in the context of discussing the obligations of the Court whilst conducting interim children’s proceedings where the evidence available was contradictory in nature but nonetheless raised significant welfare concerns for the children concerned, the Court observed:
… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.[21]
[20] SS & AH [2010] FamCAFC 13 (Boland, Thackray, and O’Ryan JJ).
[21] SS & AH [2010] FamCAFC 13, [100].
As noted by the Full Court of the Family Court of Australia in Eaby & Speelman,[22] this approach “enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.”[23]
[22] Eaby & Speelman [2015] FamCAFC 104.
[23] Eaby & Speelman [2015] FamCAFC 104, [19].
Section 60CC – the primary considerations
Though the parenting issues remaining for decision from the interim hearing are limited, and these are short form Reasons, I must nevertheless follow the legislative pathway and consider such of the primary considerations and additional considerations set out in section 60CC as are relevant in the matter.
The primary considerations are the benefit to each of the children of having a meaningful relationship with both of their parents, and any need to protect any of the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence.
In any case where there is not an unacceptable risk to children in being in the care of one of their parents, it is to the benefit of children to have the input, influence, help, support, emotional connection, and love of each of their parents as they grow and develop through infancy, early childhood, pre-adolescence, and adolescence toward becoming adults.
In this matter, and particularly in these short form Reasons, I need not go into analysis in relation to risk to the children. This is because the consent orders proposed by the parents as early as 14 May 2018 providing for the children to live with their Mother and spend five nights per fortnight with their Father, rearranged on 15 November 2018 in view of the impending move to Brisbane by reduction to three nights per fortnight, make it plain that neither parent considers that the children are exposed to an unacceptable risk in the care of the other parent.
As the evidence of the parents in relation to the attitudes of Z and X to spending time with their Father is conflicting, I am guided more by the expert’s report in considering whether any increase in the time to be spent by the Father with the children is in each child’s best interest.
Though Dr B recommends a period of six to 12 months to allow things to stabilise for a family that has undergone many changes since the parents’ separation, a period of eight months has now elapsed since that expert’s report was prepared. On all of the evidence, I find that it is in each child’s best interests to proceed by making part of the order as sought by the Father by increasing the time he spends with the children to each alternate weekend from Friday to Monday to Friday to Tuesday.
I am not satisfied that it is in each child’s best interests to make any orders sought by the Father in relation to his attendance at school and sporting activities, until there is further evidence relating to the current level of conflict between the parents available to the Court so that the danger to the children’s best interests of a ‘blow-up’ between their parents at such events can be assessed.
I am satisfied that it is in each child’s best interests to make the order as sought by the Mother and the ICL for an updating report by Dr B, in order to further asses the current situation relating to the co-parenting relationship and the attitudes of each of the children to spending time with their Father.
Section 60CC – the additional considerations
Y wishes to spend more time with his Father. Though Z and X were initially somewhat resistant, their difficulties seem to have settled as the interim hearing approached, particularly once the Father obtained permanent accommodation in Brisbane for the visits.[24]
[24] See generally Family Law Act 1975 (Cth) s 60CC(3)(a).
Dr B reported that as of interviews with the children in August 2019:
Z reported that he was now enjoying the current visitation arrangement and wished for it to continue in the same manner.
She noted that:
X reported that he was content to continue the current arrangement and even suggested increasing the time with his Father by one night.[25]
[25] See generally Family Law Act 1975 (Cth) s 60CC(3)(a).
Though one would anticipate that there were considerable practical difficulties and expenses involved in the Father residing in Sydney and maintaining separate permanent accommodation in Brisbane for use when spending time with the children on alternate weekends, such difficulties and expense do not seem to have prevented time between the Father and the children taking place. I find on the available evidence that such difficulties and expense do not substantially affect the children’s right to maintain personal relations and direct contact with their Father on a regular basis.[26]
[26] See generally Family Law Act 1975 (Cth) s 60CC(3)(e).
I have not included in these Reasons any specific consideration of the additional considerations going to the nature of the parent/child relationships,[27] each parent’s obligation to maintain the child,[28] parenting capacity,[29]and attitude to the children in view of the interim consent orders made at the request of the parties and the limited scope of the issues in contest in the interim hearing.[30]
[27] Family Law Act 1975 (Cth) s 60CC(3)(b).
[28] Family Law Act 1975 (Cth) s 60CC(3)(ca).
[29] Family Law Act 1975 (Cth) s 60CC(3)(f).
[30] Family Law Act 1975 (Cth) s 60CC(3)(i).
The temporary protection order in evidence for the protection of the Mother and Mr C and each of the children from the Father is a family violence order within the meaning of that term of the Act.[31] Once again, I note the interim orders made by consent between the parties on 7 November 2019, and I do not consider that the existence of that order, or any subsequent order stemming from those same proceedings, should impact upon the orders to be made on the issues in contest, particularly in view of the basis upon which the order is sought and the temporary order made.
[31] Family Law Act 1975 (Cth) s 60CC(3)(k).
Section 65DAA – equal time, or substantial and significant time
An interim order was made by consent on 7 November 2019 that the parents have equal shared parental responsibility for the children. The same order had been made on the interim basis at the first return date of the matter on 14 May 2018.
As there is an order that provides that the children’s parents are to have equal shared parental responsibility for them, I must consider the matters set out in section 65DAA of the Act.
I turn firstly to whether the children spending equal time with each of their parents is in their best interests, and whether it would be reasonably practicable. If the answer to those questions is yes, I must consider making an order to provide for the children to spend equal time with each of their parents.
I find on the basis of the expert evidence in Dr B’s report and all of the evidence relied upon by each of the parties that it is not currently in the interests of any of the children to spend equal time with each of their parents.
I have no specific evidence on which to base a finding as to whether or not the children spending equal time with each of their parents is reasonably practicable, in view of their Father residing principally in Sydney and the children residing with their Mother in Brisbane, with the Father also having permanent accommodation available to him in Brisbane. I can only infer on the basis of the available evidence that such is not, currently, reasonably practicable.
Having made those findings, I need not consider making an order to provide for the children to spend equal time with each of their parents.
I turn now to whether it would be in each child’s best interests to spend substantial and significant time with each of their parents, and whether each child spending substantial and significant with each of their parents is reasonably practicable.
If I extend the time the children spend with their Father each alternate weekend from the current ‘Friday-to-Monday’ arrangement to a ‘Friday-to-Tuesday’ arrangement, and taking into account the interim orders made by consent relating to the time between the Father and children during school holidays, then the time the children spend with each parent would be substantial and significant time within the meaning of that phrase in section 65DAA(3).
As indicated already in these Reasons, I find that such would be in the best interests of each of the children. As an order increasing the Father’s time with the children to Monday to Tuesday each alternate weekend is sought by the Father, I must infer, as the children reside in Brisbane and he resides in Sydney, that he has made arrangements so that spending that time with the children is reasonably practicable.
Accordingly, in considering making such an order, I find that it is in the children’s best interest to make an order that they spend substantial and significant time with each of their parents by increasing the time the Father spends with the children each alternate weekend to end of school Friday until the start of school (or 9:00AM if not a school day) on Tuesday.
I note that the order sought by the Father in relation to each of the parents being able to attend school and sporting events for the children would be a component of what is described as substantial and significant time in the Act. However, I have found that it is not currently in the children’s best interests to make that order. Without that order, the children would still be spending substantial and significant time with each of their parents under the orders I intend to make.
The balance of the issues
I find on all of the evidence that it is in the best interests of the children that communication between the children and their Father at the present time, on the interim basis, be on a structured basis. I find that such should be telephone communication each Tuesday and Thursday at some time between 6:00PM and 6:30PM.
In the best interests of the children, I decline to make any specific order relating to text messages or emails between each of the children and each of the parents.
In relation to the orders sought by the Mother concerning the SIM card to be used in Y’s mobile telephone, I find for the reasons I have referred to above that such an order is in Y’s best interest, on the basis that it gives the Mother an element of control over Y’s access to the internet through its data allowance and prevents that element of the Mother’s parental authority being overridden by the Father. Crucially, it still leaves Y free to contact the Father from his mobile telephone.
Finally, on the issue of whether or not Y should be enrolled in F Online School, I decline to make any order at the present time. I may reconsider the matter after an updated expert report by Dr B is available, and after there is further evidence available in relation to any assessment of Y that may have been or will be undertaken as recommended by Dr B in paragraph 17.6 of the expert’s report.
If Y is still refusing to attend school, then it cannot be in his best interests at this stage of his secondary education, and he will have missed a year and a half of school. But for Y to engage in distance education, he will need the attendance of his Mother and I cannot be satisfied on the current evidence and the submissions made on behalf of the Mother that her attendance for that purpose is available.
Accordingly, I make the orders set out at the start of these Reasons.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 5 August 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Injunction
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Procedural Fairness
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Remedies
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