HIBBERT & SEKI
[2020] FCCA 158
•31 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HIBBERT & SEKI | [2020] FCCA 158 |
| Catchwords: FAMILY LAW – Interim hearing – parenting – where the mother asserts a risk of harm to the child whilst she is in the father’s care – where the father asserts there is no risk of harm to the child in his care. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA |
| Cases cited: Rice v Asplund (1979) FLC 90-725 |
| Applicant: | MS HIBBERT |
| Respondent: | MR SEKI |
| File Number: | SYC 685 of 2016 |
| Judgment of: | Judge Morley |
| Hearing date: | 9 September 2019 |
| Date of Last Submission: | 9 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2020 |
REPRESENTATION
| The Applicant appeared in person |
| The Respondent appeared in person |
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
Order 2 made on 9 September 2019 is discharged.
Order 12 made on 9 September 2019 is discharged.
Order 5 made on 12 August 2019 is discharged.
Order 7 made on 12 August 2019 is discharged.
The father is restrained from:
(a)Allowing [X], born … 2010 (“[X]”), to be given any alcoholic drink by Ms A;
(b)Allowing [X] to engage in any rough horseplay with Ms A; and
(c)Allowing Ms A to strike [X] in any way, including by way of a playful smack.
In the event that the father is aware that Ms A has:
(a)Given [X] an alcoholic drink;
(b)Struck [X] in any way;
(c)Engaged in rough horseplay with [X]; or
(d)Has used abusive or derogatory language to [X] or about [X] within [X]’s hearing –
the father will immediately remove [X] from any premises where Ms A is and return [X] to the care of her mother at the earliest practicable opportunity.
The father is restrained from leaving [X] in the care of Ms A.
Order 8 of the orders made on 12 August 2019 is amended by deleting the word “paternal” and inserting in its place the word “maternal”.
THE COURT NOTES:
A.Orders 2 and 3 have the effect of removing the suspension of orders 3, 4, 22 and 24 made on 10 November 2017.
B.Pursuant to orders made on 9 September 2019, this matter is listed for mention and directions following the release of the Family Report at 9:30am on 9 October 2020.
IT IS NOTED that publication of this judgment under the pseudonym Hibbert & Seki is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 685 of 2016
| MS HIBBERT |
Applicant
And
| MR SEKI |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Hibbert (“the mother”) and Mr Seki (“the father”) are the loving parents of [X] who is nine years of age. [X], known as [X] to her parents, lives with the mother and spends time with her father.
Final orders setting out the parenting arrangements for [X] were made by consent, after the parents reached their own agreement in earlier proceedings, on 10 November 2017.
[X]'s parenting ran into trouble in early May 2019 when, the mother alleges, [X] made some statements to her about treatment she had received at the hands of her father's new girlfriend, Ms A. As a result, the mother filed an Initiating Application seeking to vary the orders made in November 2017 on an interim and final basis. The father filed a Response seeking that the mother's Application be dismissed, but also seeking extensive variations to the November 2017 orders.
The matter came on before me for an interim hearing on 9 September 2019. Each of the parents was self-represented. I heard the matter and reserved my judgment.
Procedural History
It is not necessary for the purposes of this interim hearing to go right back into the earlier proceedings that resolved by the consent orders of 10 November 2017.
The mother's Initiating Application, filed 31 July 2019, came before me for a first mention on 12 August 2019. I made orders suspending the earlier final orders relating to the time that [X] spends with her father and made an interim order that [X] spend time with her father each Monday and Wednesday from after school until 6.30 pm, and each Saturday from 9:00am until 5:00pm. This meant that the time that [X] had been spending with her father overnight would no longer take place, pending further order.
I also made an order restraining the father from allowing [X] to come into contact with Ms A, and an order restraining the mother from allowing [X] to come into contact with her maternal grandfather, Mr A Hibbert (erroneously referred to as the paternal grandfather in the text of the entered orders).
I restrained each of the parents from discussing the proceedings with [X] or allowing anyone else to discuss the proceedings with [X] other than the Court-appointed Family Consultant, and made non-denigration orders.
At the end of the interim hearing, as well as reserving judgment, I made certain orders that followed from discussions between myself and each of the parents at the end of the hearing:
a)I appointed an Independent Child's Lawyer to represent [X]'s interests in the proceedings;
b)I made an order for preparation of a Family Report by a Family Consultant for the assistance of the Court in a final hearing; and
c)I changed the order relating to the time [X] spends with her father, by consent of each of the parties, to each Wednesday from after school until 6:30pm.
The change to the time [X] spends with her father was not in consequence of any decision that I made relating to risk to [X], or inappropriateness of more extensive time as set out in the previous order. Rather, I made that order removing [X]'s time with her father on Mondays and Saturdays at the request of the father and with the agreement of the mother.
At the commencement of the interim hearing, I had dealt with an objection lodged by Ms A to a subpoena issued at the request of the mother to the Commissioner of Police, New South Wales Police Force, on 1 August 2019. An examination of the materials produced in response to the subpoena showed that the reason advanced by Ms A for objecting to the subpoena was no longer necessary, and accordingly, I dismissed that objection.
The reason advanced by Ms A went to matters relating to the safety of herself and her child in relation to a former partner and were in no way to the discredit of Ms A.
The Evidence
The parties started living together on 4 October 2004. They separated sometime in May or June 2009. The mother asserts in her Initiating Application that the parties separated on 7 June 2009, but gives evidence in her affidavit sworn or affirmed on 15 July 2019 that they separated in May 2009. It does not matter which is correct.
[X] was born on … 2010. Though the parties were separated at the time that [X] was born, they were living in the same house in Suburb B in Sydney, with another housemate, from about two weeks after [X]'s birth until September 2010 when the mother moved with [X] to live at Town C in Region D.
Three months later in January 2011, the mother and father again shared a house, not as a cohabiting couple, at Suburb E, and then in December 2011, they again moved into separate accommodation, still in the Suburb E area. The parents did not share the same house again after that time.
Since that time, [X] has lived with her mother and spent time with her father as agreed between her parents from time to time and later pursuant to final consent orders.
In February 2016, the father commenced proceedings in the Family Court of Australia in relation to parenting issues, those proceedings being transferred in due course to the Federal Circuit Court of Australia and culminating in the final orders being made by consent on the on 10 November 2017. Those orders provided:
a)That the parties to have equal shared parental responsibility for [X];
b)That [X] to live with her mother;
c)That [X] spend time with her father as defined in those orders on a graduating basis, such that from 1 July 2018 [X] was to spend time with her father during school term:
i)in Week 1 from the end of school or 5:30pm from OOSH on Friday until before school on Monday (or on Tuesday if Monday was a public holiday); and
ii)In Week 2 from Wednesday from the conclusion of school or OOSH until 6:30 pm;
d)Changeovers not occurring at school were to occur at the mother's residence.
Provision was made for [X] to spend time with her father during school holidays periods on an escalating basis, reaching an arrangement of basically equally divided time during school holidays at the end of Terms 1, 2 and 3, and for three individual weeks during the Christmas school holidays. Orders were made for [X] to spend time with her parents on Mother's Day, Father's Day, at Easter and for birthdays.
The orders also contain extensive orders regulating the parenting arrangements for [X], including the parents being able to travel overseas with [X] after giving two months written notice to the other parent containing required information and, specifically, allowing the mother to travel overseas with [X] from 20 May to 2 June 2019, and the father to travel overseas with [X] from 11 April to 25 April 2020.
At the interim hearing, the mother relied on the following evidence:
a)Her Initiating Application filed 31 July 2019;
b)A Minute of the orders sought by the mother, both interim and final;
c)A Notice of Risk filed 31 July 2019;
d)Her affidavit sworn or affirmed on 15 July 2019 and filed 31 July 2019;
e)Her affidavit affirmed 31 July 2019 and filed that day; and
f)Her affidavit sworn or affirmed on 3 September 2019, which was by way of an affidavit in reply to the father's affidavit.
The mother also filed an affidavit of Mr F sworn or affirmed 4 September 2019 and filed that day, but at the interim hearing I indicated to the mother that the whole of the contents of that affidavit would not assist me in any way in relation to the issues, and in consequence, the mother indicated that she did not rely on that affidavit.
The father relied on the following evidence:
a)A document he entitled ‘Amended (18/08/2009) Response’ filed 19 August 2019;
b)A Notice of Risk filed 11 August 2019;
c)His affidavit sworn 19 August 2019; and
d)An affidavit of Ms A sworn 19 August 2019 and filed 22 August 2019.
Though each of the parties made some reference to the material produced on subpoena by the New South Wales Police during the interim hearing, no documents were tendered from that material.
The affidavits that the parties relied on each contained quite a deal of material that was not relevant to the issues before me in the interim hearing, and each traversed in some detail the back history of their relationship and of their parenting of [X] prior to the orders made on 10 November 2017. I have taken note of that material as background information.
The mother gave some evidence in relation to assertions of family violence committed by the father toward the mother during their relationship, and after separation, in the period 22 July 2009 to 21 December 2015. The father denied that he had ever perpetrated any form of family violence toward the mother, and in turn asserted that the mother perpetrated family violence by assaults on him and damage to property.
Neither of the parents complied with Practice Direction 2 of 2017 in that they each sought to rely on affidavit material in excess of 10 pages, but I gave each leave.
Reference was also made by the mother to a current proceedings between the father and his marital partner from whom he is separated, Ms Seki, relating to a domestic violence matter between them that is currently before Court G and due for a final hearing in February 2020. The father asserts in relation to the incident giving rise to those Court proceedings that he at no time perpetrated any violence toward Ms Seki. The father and Ms Seki have a child, [H], born … 2018. They met in 2013, married in 2016 and separated 2019. I have no specific evidence in relation to the current state of the relationship or contact between the father and the child, [H].
The father and the mother were friends with Ms A in the early years of their relationship, and it seems on the evidence that the close friendship at that time was between the mother and Ms A. Both the mother and Ms A make allegations, one against the other, in relation to misuse of alcohol and illicit drugs during those days, and on the whole of their evidence, I find that whatever conduct each indulged in back in those times, it is not relevant to the issues before me relating to the current and future best interests of [X].
The father and Ms A met up by chance when both were in Town I over the weekend in April 2014. They renewed their friendship and within a month or so formed a relationship that they still pursue, though neither describes the other as a partner. It is evident that they spend a lot of time together and that Ms A was present during much of the time, if not all the time, that [X] spent with her father following the weekend in Town I in late April 2019, and up until the orders were made on 25 August 2019.
The genesis of these proceedings is in comments the mother asserts were made to her by [X] following her return from spending time with her father.
Those comments, each referring to Ms A, were:
Ms A was drunk
Ms A was drinking a lot of alcohol but she wasn't there when I woke up and her car wasn't there
She had more than five drinks before I went to bed
She has at least five drinks every night
When Ms A drinks she gets louder and calls me a little bitch
Ms A slapped me on the bum and it hurt. Daddy was there, and he went, 'Oh,' and pulled that face, but he didn't stop her. It hurt me, Mummy and it makes me feel sad
Ms A was at Daddy's again, we went for a bike ride during the day and in the afternoon, she was making cocktails and was drinking lots. She asked me if I wanted a sip and I said no, she asked me again and told me it was nice and to have some, she then gave me a sip of a cocktail called an Ovaltine
Daddy was there when Ms A gave me the alcohol and he told Ms A not to do this and she laughed. Ms A came over the next day and she stayed late. She was drinking more cocktails, this time one with apple, and she gave me a mocktail. She drove to Daddy's and her car wasn't there in the morning
On receiving this information, the mother became concerned that [X] was being abused by Ms A in the following manners:
a)By being slapped on the bum;
b)By being called a "bitch"; and
c)By being given alcoholic drinks.
The mother discussed her concerns with the father who, in response to the mother saying to him:
She gave [X] alcohol
Responded:
That didn't happen
On the mother's instructions, on 7 June 2019, her solicitors sent a letter to the father requesting that he provide an undertaking that he will ensure that Ms A not be present during his time with [X]. The father refused.
On 20 June 2019, the mother instructed her solicitors to send a letter to the father indicating that she required him to provide an undertaking from Ms A that she will not consume alcohol while [X] was in her father's care and that she will refrain from slapping [X], physically disciplining her, verbally abusing her or swearing in front of her. That undertaking was not provided.
The mother ceased compliance with the orders made on 10 November 2017 in that she did not make [X] available to spend time with the father between his occasion with [X] on 5 June 2019 and Wednesday, 31 July 2019, when he collected [X] from her school and spent time with her until 6:30pm in accordance with the final orders.
In paragraph 42 of her affidavit of 15 July 2019, the mother asserts that she has:
…serious concerns that Ms A…continues to have difficulty with abusing alcohol and illicit substances
The only relevant evidence presented in relation to Ms A and her use of alcohol is the statements asserted by the mother to have been made to her by [X], as detailed above.
There is no evidence in any of the material in relation to Ms A using "illicit substances" since the commencement of her relationship with the father, or at all since what the mother asserts she knew of Ms A during their friendship years before.
In the mother's affidavit affirmed 31 July 2019, she details an occurrence on 15 July 2019 when the father attended at her place of work. The parties give different versions in relation to that event and on this interim hearing I am not able to make a finding as to which version is correct, though the incident has very little bearing on the issues before the Court.
The mother also details events on Friday, 26 July 2019, when both parents attended at [X]'s school, the mother attending early to withdraw her from the school as she was aware that the father had indicated he intended to attend at the school to collect [X] and spend time with her in accordance with the orders, the father attending to collect [X] to spend that time.
Unfortunately, on that occasion the school authorities were involved in the matter for the protection of [X] from exposure to conflict. The police attended at the request of the school authorities and the matter resolved with [X] going home with her mother and not spending time with her father, largely by [X]'s own choice and election on the day.
The father did collect [X] from school on Wednesday, 31 July 2019, and spent time with her in accordance with the orders.
In the father's affidavit, he addresses the risks to which the mother asserts [X] is exposed in the presence and company of Ms A. He says that during the weekend of 17 to 19 May 2019, when the mother asserts [X] was given a sip of an alcoholic cocktail by Ms A, he was present at all times with [X] and Ms A and he asserts that at no time did Ms A give [X] a sip of an alcoholic drink, but, rather, [X] was given a mocktail (as [X] described in her comment to her mother) consisting of apple juice made in a juice blender. He says that he himself has no recollection of [X] being called a "bitch" at any time by Ms A, and that though he has witnessed Ms A and [X] engaging in "harmless horseplay" at his home at Suburb J, he did not witness any physical harm to [X] and asserted that [X] had never been physically hurt whilst in his care while Ms A was present, or otherwise.
The father details in his evidence conversations that he has had with [X], with the aim of normalising the time they spend together by encouraging her to come back to his home. During those conversations [X] has shown a disinclination to go to his home because she feels sure that Ms A will be there and including [X] making the statement to him:
Ms A has tapped me on the bum, and plays rough games.
The conversation continued:
Father: Yes, but you guys were mucking around on the couch and you put your bum in her face and Ms A tapped you to move
[X]: But that’s not appropriate for an adult to do to a child.
Father: Well, maybe, but you did stick your bum in her face!
[X]: It hurt.
Father: Okay. I’m sorry. Maybe no more rough play?
[X]: Okay.
The father says that he recalls an occasion that may be the occasion [X] was referring to, that occurred at his residence at Suburb J when Ms A and [X] were engaging in:
…nothing more than harmless horseplay.
Ms A says that on the afternoon of 19 May 2019, she and [X] were engaged in pillow play at the father’s home and that when [X] hit her hard on the head with a pillow, she believes she used the term “little bitch” toward [X] whilst tickling her. While she does not fully recall the events, she thinks that that is the only time she has used the word “bitch”. She asserts that on the afternoon of 19 May 2019, [X] had the mocktail in a cocktail glass, but that it was only apple juice made in a juice blender.
In relation to the “slap on the bum”, Ms A recalls an occasion at the father’s home at Suburb J when she and [X] were engaging in:
…harmless horseplay. [X] stuck her behind out at me on one occasion walking out the door of the father’s premise in what seemed to me as an invitation to give her a light tap on the bum as I have witnessed the father do many times.
As indicated in the introduction to these reasons, from the first mention of the proceedings on 12 August 2009, the time that the father has spent with [X] has been largely confined to Wednesdays, pending the outcome of the interim hearing.
The Law
In any parenting proceedings under the Family Law Act 1975 (“the Act”), the Court is required to follow the legislative pathway, and that applies to interim hearings on parenting issues.[1]
[1] Goode & Goode (2006) FLC 93–286; Marvel & Marvel (2010) 240 FLR 367; MRR & GR [2010] HCA 240.
The Court must give attention to section 60B that sets out the objects of Part VII of the Act relating to children as those objects inform the making of parenting orders and that section contains the principles behind those objects. In this matter, I have considered those objects and the principles behind those objects.
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 determining what is in the child’s best interest, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC of the Act and make findings.
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. 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.
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 the order.
Pursuant to section 65DAA of the Act, if a parenting order provides that the child’s parents are to have equal shared parental responsibility for the child, then the Court must consider whether the child spending equal time with each parent would be in the best interests of the child and consider whether the child spending equal time with each of the parents is reasonably practicable and, 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.
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[2] at paragraph 18:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
[2] Grella & Jamieson (2017) FamCAFC 21.
There is no requirement that the Court consider the question of the best interests of a child under section 60CC, the matters dealt with in sections 61DA as to parental responsibility, and 65DAA as to equal time or substantial or significant time in any particular order.
It is suggested by the Full Court in Starr & Duggan[3] at paragraph 38, that a useful approach is to first make findings in relation to the considerations set out in section 60CC, then to consider in the light of the findings made in relation to section 60CC how (or if and how) an order is to be made relating to parental responsibility, and then to consider the matters under section 61DAA relating to equal time or substantial and significant time and if neither is determined to be in the child’s best interest, to go on to determine what parenting orders are proper to be made in the child’s best interest.
[3] Starr & Duggan [2009] FamCAFC 115.
As the High Court of Australia said in Bondelmonte v Bondelmonte[4] at paragraph 32 of the joint judgment:
A parenting order made under section 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the Court to be relevant. The primary considerations in section 60CC(2) are matters to be borne in mind as consistent with the objects of Part VII. The additional considerations in section 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion [Norbis & Norbis (1986) 161 CLR 513 at 518], as does the overall assessment of what is in the best interests of the child.
[4] Bondelmonte v Bondelmonte (2017) 259 CLR 662.
I will consider the relevant section 60CC considerations, then give attention to the requirements of section 61DA in relation to parental responsibility and what may flow from that on the legislative pathway, then consider and discuss the issues in this interim hearing all in the light of my consideration of section 60CC.
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, 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.
The Issue
This interim hearing really comes down to a single issue. That issue is the assertion by the mother that there is a risk to [X] of being subjected or exposed to abuse by Ms A whilst [X] is in her father’s care, combined with the father’s failure to keep [X] safe in those circumstances.
The mother bases that assertion of risk on the statements made to her by [X] and, to an extent, on the assertions the mother makes about her previous acquaintanceship with Ms A and her asserted knowledge of Ms A’s conduct in relation to use of alcohol and illicit substances in the past.
The father denies that there is a risk and asserts that as a loving father, he would never allow [X] to be exposed to any conduct that exposes her to abuse.
In his Response, the father seeks not only the dismissal of the mother’s application for interim orders addressing what she asserts is the risk to [X] by ensuring that Ms A is not present at all while [X] is spending time with her father, but he also goes on to propose some fairly extensive changes to the final orders made in November 2017. I find that it is neither necessary nor appropriate to address those proposed changes in terms of the interim hearing. I made that plain on the interim hearing; any such change to the final orders are a matter for consideration in a final hearing and that application may have to first meet a contest under the principle in Rice & Asplund,[5] that principle being that the Court should not entertain applications for alterations of final parenting orders unless it is established that there is sufficient change of circumstance between the making of the final orders and the application to warrant the best interests of the children being re-examined.
[5] Rice v Asplund (1979) FLC 90-725.
There is much jurisprudence on risk in parenting proceedings. In this matter, the risks asserted are certainly not in the worst category. 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, such a finding rarely being open to the Court on the evidence, but rather to assess whether the evidence establishes that there is a risk to the best interests of the child. If there is such a risk, to assess whether that risk is an acceptable risk or an unacceptable risk and if it is assessed that it is an unacceptable risk, to assess whether or not the risk can be mitigated by appropriate orders, and to decide what orders are proper in all the circumstances in the best interests of the child.
Detailed exposition of the treatment of risk in family law parenting matters can be found in the High Court’s decision in M & M;[6] and the Full Court of the Family Court of Australia’s decisions in A & A and the Child Representative,[7] particularly at paragraphs 3.23 to 3.25; Napier & Hepburn;[8] Johnson & Page;[9] Deiter & Deiter[10] at paragraph 61 and Eaby & Speelman.[11]
[6] M & M (1988) FLC 91-973.
[7] A & A and the Child Representative (1998) 22 Fam LR 756.
[8] Napier & Hepburn (2006) FLC 93-303.
[9] Johnson & Page (2007) FLC 93-344.
[10] Deiter & Deiter [2011] FamCAFC 82.
[11] Eaby & Speelman (2015) FLC 93-654, at paragraph 19.
The risk to [X]’s welfare are asserted by the mother to be presented by Ms Ms A who, as the father’s girlfriend or partner, is present during much if not all of the time that [X] would spend with her father under the orders. That risk is said to be consequent upon Ms A’s abuse of use of alcohol leading to her calling [X] an unpleasant name, slapping her on the bottom and giving her alcoholic drink. The mother relies on the statements she asserts [X] has made to her as evidence that those things have occurred.
The father asserts that he has been present with [X] and Ms A on the relevant occasions, that he has not witnessed any slapping or hitting of [X] by Ms A other than “tap on the bum” in the course of some horseplay, that he is not aware of Ms A calling [X] a “bitch” or any abusive name, though he does not discount that it could have happened without his knowledge. The father denies that [X] has been given an alcoholic drink by Ms A and says that she was given a non-alcoholic “mocktail”, which is the same description [X] gave to her mother of a drink she was given, but in addition to the assertion that she was also given a sip of a cocktail called an “Ovaltine”.
The evidence of Ms A in relation to the asserted incidents going to risk are that on the afternoon of 19 May 2019, she and [X] were engaged in pillow play at the father’s home and that when [X] hit her hard on the head with a pillow, she believes she used the term “little bitch” toward [X] whilst tickling her. While she does not fully recall the events, she thinks that that is the only time she has used the word “bitch”. She asserts that on the afternoon of 19 May 2019, [X] had the mocktail in a cocktail glass but that it was only apple juice made in a juice blender.
In relation to the “slap on the bum”, Ms A recalls an occasion at the father’s home at Suburb J when she and [X] were engaging in harmless horseplay and:
[X] stuck her behind out at me on one occasion walking out the door of the father’s premise in what seemed to me as an invitation to give her a light tap on the bum as I have witnessed the father do many times.
This differs from the incident the father refers to in his affidavit of the incident perhaps occurring on an occasion when [X] was tapped on the bum by Ms A when they were:
…mucking around on the couch and you [X] put your bum in her face and Ms A tapped you to move.
Whichever event may have happened, or if they both or all happened in relation to Ms A slapping, tapping or smacking [X] on the backside, there is no evidence that [X] received marking or bruising of any kind or that she endured a lasting hurt.
The evidence of the mother taken at its height is not such that the father’s time with [X] should be confined to day time only as the mother proposes. It is also not, taken at its highest, such that the relationship between the father and Ms A should be inhibited or constrained by banning Ms A from being present on any occasion when the father is spending time with [X], which would, amongst other things, encompass the whole of every second weekend during school term and half of each school holiday period.
The asserted risks, taken once again for this purpose at their very height on the mother’s evidence, can be addressed by appropriate orders including injunctive orders binding the father in relation to [X] not being in the care of Ms A and the father being restrained from allowing [X] to engage in certain conduct with Ms A.
The considerations relevant to determining [X]’s best interests.
Primary Considerations
The primary matters to be considered under section 60CC(2) are the benefit to [X] of having a meaningful relationship with both of her parents and the need to protect [X] from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In considering those matters, the Court must give greater weight to the need to protect [X] over the benefit to [X] of having a meaningful relationship with both of her parents, per section 60CC(2A).
The benefit to the child of having a meaningful relationship with both of the child’s parents
There is nothing in the evidence to show that there is any part of the conduct or personality of either of the parents that would cause detriment to [X] in having a relationship with them and in being in their care. [X] has grown up through virtually her whole life in circumstances of having separated parents. She has lived principally with her mother and she has spent time with her father, since November 2017 on a basis regulated by the orders agreed between the parties and made by consent.
The evidence indicates that, whatever the differences, animosities and jealousies between the parents may be, there is a close and loving relationship between [X] and each of her parents. It is, therefore, of obvious benefit to [X] in many ways, including for her current happiness, her future happiness, her future personality development and her ability to form and maintain her own relationships in later life, for her to continue to have and to develop a meaningful relationship with both of her parents.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Is there a need to protect [X] from physical or psychological harm or from abuse, neglect or family violence that must be given some precedence over her unfettered ability (except in the context of having separated parents) to continue and to develop her meaningful relationship with each of her parents? Only so far as the risks to [X]’s welfare asserted to be represented by her interactions with Ms A.
As I have discussed, whilst the Court, on the interim basis, is not in a position to fully evaluate the evidence, caution, as always, dictates that, pending a final resolution, orders be put in place to address those risks. As already discussed, those risks are of such a nature, taken at their height, that appropriate orders can be made not only to mitigate, but, if obeyed, to fully address those risks and remove any possibility of them having a detrimental effect on [X]’s best interests.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court things are relevant to the weight it should give to the child’s views
In relation to any views expressed by [X], on the current state of the evidence, [X]’s views may only be inferred from the evidence of each of the parties of the conversations that each have engaged in with her. I find that the net effect of evaluating that evidence is that [X]’s current view seems to be that she still wishes to spend time with her father, but in circumstances where she can feel comfortable that she will not be the subject of any of the three behaviours by Ms A of which [X] is reported to have made her complaints: slapping on the bum, being called a bitch and being given alcoholic drink.
I find that [X]’s views, so far as they may be inferred, are in favour of continuing to spend time with her father, but with her complaints being addressed. I do not refer to alleged complaints because I note the father’s evidence of his conversation with [X] when she expresses her views and wishes relating to spending time with her father in circumstances where Ms A is also present.
The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
I have already discussed, as far as I consider is necessary, the nature of the relationship between [X] and each of her parents and with Ms A. I do not find that I need to examine that further.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
An additional consideration in section 60CC goes to the likely effect of any changes in [X]’s circumstances, including the likely effect on [X] of any separation from either of her parents or any other child or other person with whom she has been living.
There is no suggestion that [X] would be separated from her mother for any time more extensive than is provided for in the November 2017 orders. However, it is proposed by the mother that [X] be separated from her father to the extent that she spend time with him as provided in the final orders, but not on an overnight basis.
I find that, given the reasons advanced by the mother for that restriction on time and my evaluation of those reasons so far as they go to risk and the effect of that risk on [X], it is not in [X]’s best interest to so restrict her time with her father, but, rather, it is in [X]’s best interest to re-establish the normalcy of their relations in terms of the pattern of time that has developed since the November 2017 orders, so that their relationship can be normalised whilst putting in place appropriate orders to not only address the asserted risks on an interim basis, but to provide a comfort to [X] that something has been done about the matters she addressed in her conversations with her father and her mother.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
In relation to the maturity, sex, lifestyle and background of [X], I find that the only real relevant consideration here is [X]’s level of maturity in relation to her ability to safeguard her own interests and make report of any matters that are causing her concern or unhappiness.
The evidence from both parents indicates that [X] is eminently capable of making report on those matters and, according to her mother, she has done so and there is no reason to think that she will not continue to do so if there are any events occurring, or matters arising, that give her cause for concern whilst spending time with her father.
The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
In relation to considerations of parenting capacity and of the attitude to [X] and the responsibilities of parenthood demonstrated by each of her parents, I only find need to comment on the mother’s proposed orders that the father resume spending time with [X] pursuant to the November 2017 orders, in the total absence of Ms A, but not including overnight time.
The evidence presented by the mother does not indicate that there is some element present in relation to overnight time spent between father and daughter, that is not present in relation to daytime spent between father and daughter, that presents a detriment to [X]’s welfare such that the overnight time must be taken away from father and daughter. If the proceedings are prompted by the asserted risks presented by Ms A and the evidence in that regard is taken at its highest, then I do not see the difference between daytime between father and daughter and overnight time between father and daughter, whether in the presence or absence of Ms A. It may be that the mother’s proposal in relation to no overnight time is paired with her emotional reaction to the matters she asserts were revealed to her by [X] that were of sufficient concern to her to cease the time between the father and [X] between early June and late July 2019 and to commence these proceedings.
However, I do not consider it appropriate, on the basis of what is available to the Court in these interim proceedings, and without the assistance of some social science that may come to the Court through the Family Report already ordered, to making findings critical of the mother’s parenting capacity and critical of her attitude to the responsibilities of parenthood based upon the extent of her proposal.
Taking into account my consideration of those matters under section 60CC that I find to be relevant in this matter, I find that it is in [X]’s best interests that the time between [X] and her father provided for in the orders made on 10 November 2017 be reinstated pending any final hearing, but with appropriate injunctive orders being made to address the asserted risks and the mother’s concern about the asserted risks, pending a final hearing.
Parental Responsibility
Section 61DA mandates that, when making a parenting order in relation to a child, the Court must apply a presumption that it’s in the best interests of the child for the child’s parents to have equal shared parental responsibility. I have outlined the provisions of that section more fully above.
These are interim proceedings. A final order was made by consent on 10 November 2017 that the parties have equal shared parental responsibility for [X]. Neither party in their application for interim orders seeks to disturb that circumstance; the mother’s minute of interim orders being silent on that issue (though seeking a final order that she have sole parental responsibility) and the father’s Response repeats the equal shared parental responsibility order.
I find that, in the circumstances of this matter, there is no need to disturb the current order. That being the case, I will give my consideration to the matters going to equal time and substantial and significant time in section 65DAA.
Neither party makes application that [X] spend equal time with each of her parents. There is no evidence before the Court that the father is in a position to have [X] in his care on an equal time basis with the mother, whether that be week-about or some other equal time arrangement. The relationship between the parents at the moment is one of some animosity, particularly exacerbated by these proceedings. I consider that it would not be in [X]’s best interests to spend equal time with each of her parents.
I do not have sufficient evidence on which to make informed findings as to the reasonable practicability of [X] spending equal time with each of her parents, but as I have found that it is not in her best interests to do so, I do not need to go on to consider the reasonable practicability or to consider making an order providing for equal time.
Virtually the same arguments apply to consideration of [X] spending substantial and significant time with each of her parents.
The time that [X] spends with her father under the November 2017 orders during school term time involves collection from school on Friday afternoon and delivery to school on Monday morning. This is outside what is defined as substantial and significant time in section 65DAA(3), but it is the time the parents determined between themselves as most appropriate and proper for [X] in composing the consent orders they presented to the Court on 10 November 2017 and as those orders were made by Judge Henderson (as Her Honour then was) on that day, I will take it that on Her Honour’s knowledge and understanding of the circumstances then existing, they were at the time, in the Court’s view, proper to be made in [X]’s best interests.
Accordingly, and on the interim basis, I find that it is not in [X]’s best interest to consider making orders, not sought by the father and definitely to be opposed by the mother, extending the time that [X] would spend with her father to come within the definition of substantial and significant time. Once again, I do not have the evidence to address reasonable practicability and, in any case, having found it is not in [X]’s best interests, I do not need to go on and consider making an order that she have substantial and significant time with each of her parents.
What orders are proper?
On the basis of my consideration of the matters relevant under section 60CC and my findings in relation to the matters referred to in section 65DAA of the Act, I find that it is proper to make orders in [X]’s best interest that recommence her spending time with her father in accordance with order 3 of the final orders and, as a consequence, to remove the suspension on order 4 that relates to the time that [X] would return to the care of her mother for special occasions.
I also find that it is appropriate to remove the suspension on order 22 in the final orders relating to overseas travel with either of the parents and order 24 that relates to overseas travel by [X] with her father between 11 and 25 April 2020.
I find that such orders are proper on the basis that I will also make some injunctive orders pending final hearing addressing the risks to [X]’s welfare asserted by the mother and that have caused [X] to express some concern in conversation with her father.
It is for these reasons that I make the orders as set out above.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 31 January 2020
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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