HADLOW & DAVIS

[2019] FamCA 516

FAMILY COURT OF AUSTRALIA

HADLOW & DAVIS [2019] FamCA 516

FAMILY LAW – CHILDREN – Interim – With whom child lives and spends time – Where following the production of s 69ZW documents the parties agree there is no need for the father’s time with the child to be supervised – Where the proposed time spending arrangement is in line with the recommendatons of the family consultant – Orders.

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

Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-643
Goode & Goode [2006] FamCAFC 1346
Marvel v Marvel [2010] FamCAFC 101
MRR v GR (2010) 240 CLR 461

APPLICANT: Mr Hadlow

RESPONDENT: Ms Davis

INDEPENDENT CHILDREN’S LAWYER: Denise M Rieniets & Associates Pty Ltd

FILE NUMBER: ADC 3076 of 2017

DATE DELIVERED: 2 August 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 23 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McQuade

SOLICITOR FOR THE APPLICANT: Janson Lawyers

COUNSEL FOR THE RESPONDENT: Ms Pyke QC

SOLICITOR FOR THE RESPONDENT: Andersons Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Fuda

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Denise M Rieniets & Associates Pty Ltd

Orders

1. All previous parenting orders are discharged.

2. That Z born … 2016 (“the child”) live with the mother.

3. That the child spend time with the father as follows:-

   (a)       On Thursday 8, 15 and 22 August 2019 from 10.30 am to 4.30 pm;

   (b)       On Saturday 3, 10, 17 and 24 August 2019 from 10.00 am to 4.30 pm;

   (c)Commencing 5 September 2019 and each alternate Thursday thereafter from 10.30 am to 4.30 pm;

   (d)Commencing 31 August 2019 and each alternate weekend thereafter from 5.00 pm Saturday to 5.00 pm Sunday.

4. That all handovers shall take place at the Subway Restaurant, L Street, Suburb N unless otherwise agreed.

5. That the parties are restrained and injunction is granted restraining each of them from discussing the proceedings in the presence of the child or allowing any other person to do so.

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 Hadlow & Davis 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 ADELAIDE

FILE NUMBER: ADC 3076 of 2017

Mr Hadlow

Applicant

And

Ms Davis

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court relate to the competing applications of Mr Hadlow (“the father”) and Ms Davis (“the mother”) with respect to the future parenting arrangements for Z born in 2016 (“the child”).

2. Whilst the proceedings were commenced by the father in 2017, he relies upon his Amended Initiating Application filed 29 March 2019 and seeks orders that the parties have equal shared parental responsibility, but that the child shall live with the father and spend significant and substantial time with the mother.

3. The mother seeks orders as set out in her Amended Response filed 7 November 2018 summarised as follows:-

   (1)That she have sole parental responsibility for the child.

   (2)That from 10 January 2021 she be permitted to relocate the child to the State of Queensland.

   (3)That the child live with her.

   (4)That until 1 October 2019 the father spend time with the child as follows:-

   a.Each alternate Thursday from 10.00 am until 4.30 pm; and

   b.Each Saturday from 10.00 am until 4.30 pm.

   (5)From 1 October 2019:-

   a.Each alternate weekend from 5.00 pm on Friday until 5.00 pm on Saturday with the father’s time commencing on 4 October 2019; and

   b.Each intervening Saturday from 10.00 am until 4.30 pm commencing 12 October 2019.

4. The mother concedes that subject to the provision of a written report from the father’s psychologist that he has “the capacity for emotional regulation and is child focused” then from 13 April 2020 the father shall spend time with the child each alternate weekend from 5.00 pm on Friday until 10.00 am on Sunday.

5. Upon relocation, the father’s time will be restricted to extended periods during school holidays. However, if relocation is not permitted then as and from 1 January 2021 the father shall spend time with the child each alternate weekend from Friday to Sunday and half school holidays.

6. The proceedings had been listed for trial to commence on 28 November 2018. In anticipation of a final hearing the mother filed her trial affidavit material. The father did not.

7. Following the mother’s allegation of inappropriate conduct by the father, orders were made which vacated the trial date and for the production of documents pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”).

8. On 17 December 2018 orders were made for the father to spend time with the child as follows:-

   (a)Each Saturday from 10:00 am to 4:30 pm commencing on 22 December 2018; and

   (b)Each Thursday from 10:30 am to 4:30 pm commencing on 27 December 2018.

9. On 16 April 2019 a further order was made pursuant to s 69ZW of the Act directed to the Department for Child Protection (“DCP”) seeking documents or information as to any notification, assessment, outcome of investigation or report received by DCP in respect of the child and her half sibling Y born in 2013.

10. The parties also agreed that the father’s time with the child pursuant to the orders of 17 December 2018 would be conditional upon time taking place under the supervision of the paternal grandfather.

11. On 7 May 2019 the applications of the parties seeking final orders were listed for hearing on 11 November 2019.

12. For reasons that relate to the preparation by the mother of trial affidavits in anticipation of the hearing in November 2018, by letter to the Registry dated 12 July 2019, the Court agreed that the mother would now be considered as the applicant in the proceedings.

13. On 11 July 2019 the Court granted leave for the parties, their legal representatives and the Independent Children’s Lawyer (“ICL”) to inspect and copy un-redacted documents received pursuant to s 69ZW of the Act.

14. The father filed an Amended Response on 4 July 2019 seeking that the child live with him and spend time with the mother, or in the alternative:-

    a.That order 1 of Orders made 16 April 2019 be amended by removing the words “provided all such time take place under supervision of the paternal grandfather”.

    b.That the parties be restrained from and an injunction granted restraining them from discussing the subject of the mother’s application in a case filed 28 March 2019 in [the child’s] presence and from permitting any other person to do so.

    c.That order 2 of Orders made 17 December 2018 be varied such that the father spend time with [the child] as follows:-

    (i)Each Saturday from 5.00 pm to 5.00 pm Sunday; and

    (ii)Each Thursday from 10.00 am to 10.00 am Friday.

15. At the commencement of the hearing the mother conceded that there was no longer any need for the father’s time with the child to be supervised and given the age of the child and other relevant factors, there was no opposition to an order restraining the parties from discussing the proceedings or allowing anyone else to do so in the presence of the child.

16. The focus of the interim hearing was the extent to which, if any, there should be an increase in the father’s time with the child pending the final hearing in November.

SECTION 69ZW DOCUMENTS

1. I had the opportunity to peruse the documents and given their content, I adjourned the proceedings to enable the parties and their legal representatives to inspect them. The parties and their legal representatives together with the ICL took the opportunity provided by the Court’s orders to inspect and copy the documents produced pursuant to s 69ZW.

2. I considered that the content was relevant to the issue raised by the mother that the father may present as a risk to the child.

3. Much was made of the contents by the father’s counsel.

4. He focused on certain documents, but in particular an assessment by DCP dated 15 April 2019 that there were no safety threats identified at the time and “based on currently available information there are no children likely to be in imminent danger of serious harm”. Whilst it is likely that the documents will loom large in the final hearing, for the purposes of the interim proceedings I am able to find that the s 69ZW documents indicate that all current allegations have been the subject of detailed consideration and investigation and that there is no conduct of the father that is considered to place the child at risk.

5. It appears that the content may have provided the mother with some comfort that her concerns were not substantiated and may have been the catalyst for the mother’s early concession that the father’s time no longer required supervision.

Interim parenting

1. In Marvel v Marvel [2010] FamCAFC 101 the Full Court considered the question of making findings on contested evidence and as highlighted by the following remarks, a cautious approach is desirable:

   120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   121. …

   122.In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

2. In Deiter & Deiter [2011] FamCAFC 82 the Court considered the situation where the contested facts related to an assessment of risk and the following appears at [61]:

   …Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

3. In Eaby & Speelman (2015) FLC 93-643 the Full Court further considered the issue at [18]:

   … that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

The law

1. The relevant principles in relation to parenting and interim proceedings are well settled. In Goode & Goode [2006] FamCAFC 1346 the Full Court considered the principles applicable to parenting and interim proceedings and the principles have been reaffirmed by the High Court in MRR v GR (2010) 240 CLR 461.

2. Section 60B of the Act outlines the principles underlying Part VII of the Act which provides for the best interests of the child to be met by ensuring that children have the benefit of both of their parents having a meaningful relationship in their lives and protecting children from physical or psychological harm, abuse, neglect or family violence.

3. Section 60CA provides that the court is to have regard to the best interests of the child as a paramount consideration and that is to be determined by consideration of the primary and additional considerations in s 60CC.

4. Section 61DA provides that 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 other than in circumstances of abuse or family violence, where the court considers that in interim proceedings it would not be appropriate for the presumption to apply, or if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

5. If the presumption in s 61DA is to apply, and the court makes orders for equal shared parental responsibility, s 65DAA operates to require the court to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

Best interests

1. The issues between the parties in respect of the interim proceedings are of narrow compass.

2. The father seeks two overnight periods in each week, whereas the mother resists any increase but concedes that in her Amended Response the father’s time should increase to include an overnight period as and from 1 October 2019.

3. The ICL supports that there should be one overnight period introduced pending final hearing.

Report of Ms P

1. Ms P published her report on 12 July 2018.

2. She found that “[the child] clearly has a close and secure relationship with her mother and a similarly positively developing relationship with her father”.

3. Ms P remained concerned as to the extent of the ongoing conflict between the parties and was troubled by her observation that the father was more focused on the ongoing conflict with the mother than the child’s needs, in particular the recognition that “she is young and needs to feel comfortable transitioning between the two sides of her family”.

4. Whilst urging a cautious approach, Ms P considered that if there were no safety concerns then a reasonable expectation was that the child’s time with the father would increase over time and progress to overnight time.

5. Handovers between the parties were problematic and remain so. The more recent litigation history confirms difficulties at handover and even extending to the place of handover.

6. For the present, the parties have agreed that handover will continue at the nominated Subway Restaurant. This may indicate that the parties are modifying their aggressive stance towards the other and may mean that some of the concerns of Ms P in respect of concerning behaviour by each of the parties at handover have now dissipated.

7. Ms P recommended a pathway that supported increasing time with the father. It was at the forefront of Ms P’s consideration that at the time of the assessment the child was not yet three years of age.

8. By way of general remarks, Ms P opined the relevance to a child reaching three years of age and its interrelationship with the child’s ability to cope with increased time:-

   ·From the age of three most children have the cognitive and language development to start spending overnight time with their other parent. However, the high-conflict nature of this matter lends itself to a more cautious approach, with the goal of long-term success. For overnight time to benefit [the child] the Court will need confidence in [the father’s] child focus and capacity for emotional regulation. Initially, from the age of about three and a half, one night a fortnight is recommended (e.g., 10a.m. Saturday to 10a.m. Sunday) with a day visit during the intervening week. A weekly overnight stay could be introduced by the time [the child] is four years of age (e.g., the intervening day visit could become an overnight).

9. The parties are agreed that there is no need for an update family report.

10. It is reasonable to conclude that the issues the parties consider to be relevant at trial in November 2019 will not be assisted by further assessment.

11. It appears that the orders sought by the mother are based upon the recommendation of Ms P, namely, that there should be an overnight introduced when the child is three and a half years of age in October 2019.

12. There is no overarching wisdom to the resolution of the interim proceedings.

13. The father will be advantaged by the mother’s position, namely, that his time with the child will no longer require supervision.

14. I am also satisfied that there has been some lessening of the hostility by the parties and the general acceptance by the mother that at the very least, the contents of the s 69ZW documents satisfy her that the father does not present as a risk to the child.

15. The ICL supports a compromise approach that would introduce one overnight a fortnight but not the two overnight periods as sought by the father.

16. It would seem that the recommendations of the family consultant would support that approach in circumstances where there has been an apparent lessening of conflict.

Conclusion

1. In all the circumstances, I consider that there is some good sense in the proposal of the ICL and consider that the interests of this child will be served by the introduction of one overnight period a fortnight to commence 31 August 2019.

2. I make orders as appear at the commencement of these reasons.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 2 August 2019.

Associate:  

Date: 2 August 2019