Herman & Norton

[2021] FedCFamC2F 676

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Herman & Norton [2021] FedCFamC2F 676

File number(s):	BRC 13011 of 2020
Judgment of:	JUDGE JARRETT
Date of judgment:	13 October 2021
Catchwords:	FAMILY LAW– The Family Law Act 1975 (Cth) and related legislation – best interests of the child – interim arrangements.
Legislation:	Family Law Act1975 (Cth)
Cases cited:	Goode & Goode [2006] FamCA 1346
Division:	Division 2 Family Law
Number of paragraphs:	11
Date of hearing:	13 October 2021
Place:	Brisbane
Counsel for the Applicant:	Ms Zande
Solicitor for the Applicant:	Beaudesert Legal
Solicitor for the First and Second Respondents:	Ms Brown
Solicitor for the First and Second Respondents:	Hall Payne Lawyers - Ipswich

ORDERS

BRC 13011 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS HERMAN Applicant
AND:	MS NORTON First Respondent
AND:	MR BELL Second Respondent

ORDER MADE BY:	JUDGE JARRETT
DATE OF ORDER:	13 OCTOBER 2021

THE COURT ORDERS THAT:

1.The application be adjourned to 3 March 2022 at 10:00am for final hearing (with an estimated hearing time of 1 day) in the Federal Circuit and Family Court of Australia (Division 2) sitting at Brisbane.

2.In the event of any applicable filing, setting down, hearing, mediation or enforcement fee or fees (“the fees”) not having been reduced on the basis of financial hardship, the party responsible for the payment of the fees or any of them, pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012.

3.Each party file and serve on each other party no later than 4:00pm on 10 February, 2022:

(a)one (1) consolidated affidavit setting all evidence in chief given by that party; and

(b)one (1) consolidated affidavit of each witness intended to be relied upon at trial setting out all evidence in chief of that witness.

4.Each party file and serve on each other party no later than 4:00pm on 24 February, 2022, a case outline setting out: a precise minute of the final orders sought;

(a)a relevant chronology;

(b)a list of affidavits intended to be relied upon at trial; and

(c)a list of the issues arising in the application (both factual and legal) by reference to s.60CC of the Family Law Act 1975 (Cth) and for each issue so identified a reference to the evidence (in each affidavit relied upon by that party) upon which that party intends to rely in respect of that issue.

5.No party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained.

6.In the event that either party wishes to cross examine any author of a report prepared pursuant to s.62G(2) of the Family Law Act 1975 (Cth) at the final hearing, that party shall provide written notice to the report writer of such intention no later than fourteen (14) days prior to the commencement of the hearing.

7.In the event that no such notice is given to the report writer in accordance with the previous order and the report writer is otherwise unavailable, the report authored by that person will be admitted into evidence without cross examination unless the trial judge otherwise orders.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Herman & Norton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE JARRETT:

1. This is an application for interim parenting orders in respect of one child, X, who is now six years of age.  The applicant describes herself as X’s stepmother.  She, of course, is not a parent of X for the purposes of the Family Law Act 1975 (Cth). X’s mother is the respondent. Her father is the second respondent. He has not participated in any meaningful way so far in these proceedings, although he has now filed some material.

2. X lives with her mother and spends no time with the applicant.  By this application, the applicant seeks orders for there to be some time between she and X on an interim basis.  There is affidavit material filed by both of the parties.  In addition to that, the applicant has filed an affidavit by Mr C; and the respondent, an affidavit by Ms D.  The affidavit material reveals that the parties are in heated dispute about the nature and extent of their relationship and the nature and extent of the relationship between the applicant and X. 

3. The applicant and the first respondent were in a same-sex relationship.  It seems tolerably clear from the evidence that they commenced their relationship when the respondent was six months pregnant with X.  That puts the commencement of the relationship in about April of 2015, although no party actually says that in their affidavit material.  They separated in 2019.  The relationship was about four years in length.  There is a significant dispute between the parties about the nature of that relationship.  There are significant disputes of fact between the parties about the involvement that the applicant had with X following her birth. 

4. The applicant’s first affidavit reads a little bit like a Mills & Boon novel.  It sets out a whole range of emotive material, none of which is particularly relevant to the resolution of the issues before the Court.  It would have been better if that affidavit had set out some facts, but as it is the facts are thin on the ground in that affidavit.  The second affidavit that she filed answers that of the first respondent’s and it gives rise to significant disputes of fact between the parties. 

5. The making of an interim parenting order is a function of the Court carrying out its responsibilities under Part VII of the Family Law Act 1975 (Cth). The Court can only make an order that it considers is in the best interests of a child or children concerned. In determining what is in the best interests of a child, the Court must take into account the matters set out in s 60CC of the Family Law Act 1975 (Cth). Many of those matters refer to “parents”: see, for example, s 60CC(2)(a), which deals with the benefit to be derived by a child from having a meaningful relationship with his or her “parents”. Such a consideration does not apply in a case where one of the protagonists is not a parent. Nonetheless, those considerations – what benefit a child might derive from a relationship with a person who is not their parent – can be considered under s 60CC and, in particular s 60CC(2)(m). There are decisions of the Full Court that deal with this issue and explain the way in which Part VII and in particular, s 60CC works when one or other of the parties to proceedings is not a parent.

6. In Goode & Goode, the Full Court points out that in interim applications like this, the evidence is often less then fulsome and is often replete with dispute.  This case is no different.  For that reason, the Full Court suggests that really the only way to deal with the case is to look to the uncontroversial facts. 

7. There are very few uncontroversial facts here.  There is no dispute, of course, that the first respondent is X’s mother.  There is no dispute that the parties had a relationship, but beyond that, it is a bit difficult to identify any uncontentious facts at all. 

8. I have the benefit of a child-inclusive conference memorandum prepared by a family consultant.  The family consultant interviewed the parties on 19 March this year and made some pertinent observations.  In particular, he spoke with X.  She told the family consultant that it was good living with her mother and that she likes it when her mother makes dinner.  She reported to the family consultant feeling safe and happy in her care.  X described the stepmother as “okay” and said that she used to enjoy going to the playground with her.  X indicated that she did not feel safe with the stepmother because she stole her money and sometimes said things that were not nice and X said that she would feel nervous about spending time with the stepmother.  The family consultant suggested that X should spend some time with the applicant stepmother in a family contact centre and the contact centre could provide independent information to the Court in relation to the nature of their interactions and how the time is supported by the mother.  Having regard to the mother’s material, I would be surprised if the mother supported the time at all. 

9. The family consultant opined that if X did not spend time with the applicant stepmother, she may become more negative or absolute in her views.  There were some other recommendations made, however, the opinion of the family consultant really begs the question, and that is whether X would benefit from a relationship at all with the applicant.  It is not at all clear that the nature and extent of the involvement between the applicant and X demonstrates that the applicant is an important person in X’s life.  It is apparent from the child-inclusive conference that whatever relationship might exist between X and the applicant, it is minimal. 

10. In my view, it is inappropriate at this stage to make any orders for this child to spend any time with the applicant.  The Court needs to be able to make some proper determinations of fact about the nature and extent of the involvement of the applicant in X’s life before it would come to the conclusion that it is appropriate for time to be spent between this child and the applicant. 

11. For that reason, I intend to set the matter down for a trial and make some trial directions so that appropriate findings of fact can be made.  For that purpose, I can indicate that a trial date is available on the 3 March at 10 am. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett.

Associate:  

Dated:       20 January 2022