HUNT & HUNT
[2015] FCCA 337
•2 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUNT & HUNT | [2015] FCCA 337 |
| Catchwords: PRACTICE & PROCEDURE – Applications by parties to re-open cases and tender evidence after Court reserves decision following interim hearing – whether in interests of justice to grant applications – applications refused. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC (2)& (3), 61DA, 61DA(3),65D, 65DAA (3) |
| Goode v Goode [2006] FamCA 1346 Banks v Banks [2015] FamCAFC 36 Marvel v Marvel [2010] FamCA 101 Mallard v Mallard [2011] FamCA 876 Zau v Uong (No.2) [2015] FamCA 56 Smith v Bar Association (No.2) (1992) 176 CLR 256 |
| Applicant: | MS HUNT |
| Respondent: | MR HUNT |
| File Number: | NCC 2897 of 2014 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 16 February 2015 |
| Date of Last Submission: | 4 March 2015 |
| Delivered at: | Parramatta |
| Delivered on: | 2 April 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Slater & Gordon Lawyers |
| Solicitors for the Respondent: | Haydon Fowler Corbitt Jessop |
ORDERS
Pending further order, the Applicant Mother and the Respondent Father shall have equal shared parental responsibility for the children of the marriage, namely X born (omitted) 2003 and Y born (omitted) 2008.
Pending further order, the children shall live with the mother.
Pending further order, the children shall spend time with the father as follows:
(a)During school terms:
A.From the conclusion of school on Thursday until the commencement of school on Tuesday, in each alternate week. To facilitate this time spent by the father with the children he shall be responsible for collection and delivery of the children from and to their school respectively.
(b)During school holidays as agreed but failing agreement then:
(i)With the father:
A.For the first half of each of the short school holiday periods in even numbered years and the second half of same in odd numbered years, subject to subparagraph 3(f); and
B.For the first week and each alternate week thereafter of each of the Christmas school holiday periods in even numbered years and the second week and each alternate week thereafter of same in odd numbered years, subject to subparagraph 3(e); and
(ii)With the mother:
A.For the second half of each of the short school holiday periods in even numbered years and the first half of same in odd numbered years, subject to subparagraph 3(f); and
B.For the second week and each alternate week thereafter of each of the Christmas school holiday periods in even numbered years and the first week and each alternate week thereafter of same in odd numbered years, subject to subparagraph 3(e); and
(c)With the father from 9.00am to 6.00pm on each Father’s Day should the children not already be in the father’s care.
(d)With the mother from 9.00am to 6.00pm on each Mother’s Day should the children not already be in the mother’s care.
(e)On Christmas Eve, Christmas Day and Boxing Day:
(i)With the father from 9.00 am Christmas Eve to 3.00 pm Christmas Day in odd numbered years and from 3.00 pm Christmas Day to 6.00 pm Boxing Day in even numbered years; and
(ii)With the mother from 9.00am Christmas Eve to 3.00 pm Christmas Day in even numbered years and from 3.00 pm Christmas Day to 6.00 pm Boxing Day in odd numbered years.
(f)On Easter Sunday:
(i)With the father from 9.00 am until 1.30 pm in even numbered years and from 1.30 pm to 6.00 pm in odd numbered years, if the children are not already in the father’s care.
(ii)With the mother from 1:30 pm to 6 pm in even numbered years and from 9 am to 1:30 pm in odd numbered years, if the children are not already in the mother’s care.
Pending further order, for the purpose of changeovers of the children, other than those school changeovers referred to in Order (3)(a):
(a)the party with whom the children have been staying immediately prior to the changeover shall be responsible for delivery of the children to the other at the other party’s home at the changeover time.
Pending further order, for the purposes of spending time with the children on their birthdays, the parent who does not have the children in his or her care shall have from after school until 6.00 pm on a school day and from 2.00 pm to 6.00 pm on a non school day.
Pending further order, for the purposes of the children spending time with the parents on their birthdays, if the children are not already in the care of the parent whose birthday it is, the children are to spend time with the parent on his or her birthday from after school until 7.30 pm on a school day and from 2.00 pm until 7.30 pm on a non school day.
Pending further order, neither party shall denigrate or permit any third person to denigrate the other parent or members of that parent’s family or household in the presence or hearing of the child.
Pending further order, each party shall notify the other of any medical appointments made for either of the children prior to such appointment except however in the event of an emergency in which event the parent with the care of the children at the time of such emergency shall notify the other parent as soon as practicable.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report. The Family Report to deal with the following matters:
(a)Any views expressed by the children the subject of parenting orders sought in this case, provided that the children shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the children with each of the children’s parents and with significant other persons.
(c)The willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
(d)The likely effect of any changes in the children’s circumstances, including the likely effect on the child of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the children has/have been living.
(e)The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)The capacity of each parent, or another person, to provide for the needs of the children, including emotional and intellectual needs.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other children and of either of the children’s parents and any other characteristics of the children that the reporter thinks are relevant.
(h)Each parent’s attitude to the children and to the responsibilities of parenthood.
(i)Any family violence involving the children or a member of the children’s family.
(j)Such other issues as the Family Consultant considers relevant.
The Family Consultant is requested to complete the report not less than 4 weeks before the directions hearing date, being 27 November 2015.
The parties shall attend all appointments with the Family Consultant and shall ensure the subject children attend all appointments with the Family Consultant, as requested by the Family Consultant
The Family Consultant may inspect the Court file and any documents produced on subpoena to which no objection has been lodged.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
This case is listed for further directions after the release of the Family Report at 9.30 am on 27 November 2015.
IT IS NOTED that publication of this judgment under the pseudonym Hunt & Hunt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
NCC 2897 of 2014
| MS HUNT |
Applicant
And
| MR HUNT |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Hunt, the mother, and Mr Hunt, the Father, are parents of the children, X, born (omitted) 2003, and Y, born (omitted) 2008. They both now seek interim orders relating to arrangements for the care of the children.
The Competing proposals of the parties
The mother filed an Initiating Application on 5 November 2014. The mother seeks interim parenting orders, inter-alia, as follows:
a)That the mother have sole parental responsibility of the children
b)That the children live with the mother
c)That the children spend time with the father as follows:
i)During school terms:
A.from the conclusion of school Friday (or otherwise 3.00pm) to 6.00pm Sunday on each alternate weekend; and
B.from the conclusion of school (or otherwise 3 pm) to 7:30 pm each Monday
ii)For one half of the school holiday periods as agreed but failing agreement then:
A.the first half of each of the short school holiday periods in even numbered years and the second half of same in odd numbered years; and
B.for the first week and each alternate week thereafter of each of the Christmas school holiday periods in even numbered years and the second week and each alternate week thereafter in odd numbered years
iii)(for various times on Father’s Day and on Christmas Eve on Christmas day)
d)Various other ancillary orders
The mother relies on her affidavits filed 5 November 2014 and
13 February 2015.
The mother filed a Notice of Family Violence on 5 November 2014. In that Notice the mother alleges the father was very controlling and manipulative, that she was subjected to emotional abuse, and he demonstrated volatile behaviour.
The father filed a Response on 9 December 2014. The father seeks interim parenting orders, inter-alia, as follows:
a)That the mother and the father have equal shared parental responsibility for the children
b)That the children live with, and spend time with, each parent as follows:
i)during school terms, with the father:
A.from the conclusion of school (or if it is a non school day 3.00 pm) Thursday until the commencement of school (or if it is a non school day 3.00 pm) on the following Tuesday, in each alternate week; and
B.from 6.00 pm Sunday until the commencement of school (or if it is a non school day 3.00 pm) on the following Tuesday, in each alternate week; and
c)during school terms with the mother:
A.from the conclusion of school (or if it is a non school day 3.00 pm) Tuesday until 6.00 pm on the following Sunday, in each alternate week; and
B.from the conclusion of school (or if it is a non school day 3.00 pm) Tuesday until the commencement of school (or if it is a non school day 3.00 pm) on the following Thursday, in each alternate week;
with the sequence of nights to be spent with each parent to be in the pattern shown in the following table:
Night
Sun
Mon
Tues
Wed
Thur
Fri
Sat
Week 1
F
F
M
M
M
M
M
Week 2
F
F
M
M
F
F
F
d)Various ancillary orders
The father relies on an affidavit of himself filed 9 December 2014, and affidavits of Mr G filed 4 February 2015 (the father’s brother), and Ms M filed 4 February 2015 (the father’s mother).
Issues in dispute in the interim hearing
The essential issues to be determined in this interim hearing are:
a)whether the parents should have equal shared parental responsibility for the children or, whether the mother should have sole parental responsibility for the children
b)during school terms, whether the children should live with the mother, with the father having time with the children from after school Friday to 6 pm Sunday on each alternate weekend, in addition to each Monday from after school to 7:30 pm (the mother’s proposal), or, whether the children should live with and spend time with each of their parents on an equal time shared basis (the father’s proposal, as set out in detail in his Response; the effect of the interim orders sought by the father is that the children would spend two 2-night periods and two 5-night periods with each of the mother and the father in each 2 week cycle). The court notes that the parties indicated to the court, at the commencement of the interim hearing, that otherwise they had reached agreement in relation to the children living with and spending time with each parent during school holidays, and other important days.
Chronology
(omitted) 1978 father born
(omitted) 1983 mother born
(omitted) 2002/(omitted) 2003 cohabitation commences
(omitted) 2003 X born
(omitted) 2006 marriage
(omitted) 2008 Y born
4 March 2013 final separation date
Agreed or undisputed relevant facts
The father is presently aged 36 years. The mother is presently aged 32 years.
The parties commenced their relationship in about 2001 and finally separated on or about 4 March 2013. The commencement of the relationship occurred when the mother was in year 12 at high school and the father was a teacher at the same school and had been a teacher of the mother. The parties had commenced a sexual relationship at this time.
The parties when they commenced cohabitation lived at the residence of the father’s parents. The child X was born on (omitted) 2003. After the child’s birth the parties continued to live with the father’s parents. The mother was primarily responsible for the child’s care and received some assistance from the father. At this time the mother was not working and continued part-time studies. The child was breastfed for six months and otherwise the mother attended to all the usual parental responsibilities. The father provided some assistance when he was not otherwise at work.
The parties lived at the father’s parent’ s residence for about two years after the birth of X. In 2005 they moved into a rental property in (omitted).
The mother worked several nights each week as a (occupation omitted). In 2007 the mother worked part-time as a (occupation omitted). Later the mother worked as a part-time (occupation omitted) and continued university studies. The paternal grandmother cared for X at this time one day each week and the mother’s mother would occasionally provide care for him.
Y was born on (omitted) 2008 and the mother was her primary carer. The mother had stopped working in the period leading up to Y’s birth and had 3 to 4 years where she did not work. The mother returned to part-time study in (course omitted).
The mother continued as a primary carer for the two children in their infancy. The father remained working as a school teacher and was the primary income earner for the household. The father’s work hours were such that he left home at 8 am and returned at 4:30 pm.
In 2011 the father and his mother purchased a property next door to the father’s parents’ residence. The parties began living in this new property. At this time, the father would spend considerable time next door at his parent’ s residence on most afternoons after he returned home from work. The mother would be looking after the children which generally involved getting them bathed, helping them do their homework and prepare dinner. The father would come inside once dinner had been served.
The mother was primarily responsible for taking the children to their medical appointments and other activities. These activities included playgroup and mothers group when the children were young. Later, the children were involved in a range of activities including gymnastics, dancing and swimming. The mother was also involved in taking the children to birthday parties on weekends.
The parties separated on 4 March 2013. In the months following the separation the arrangements for the children were very dysfunctional. At this stage the child Y was not of school age. She had been attending preschool 2 days a week and the mother cared for her during the days that she was not at preschool.
Following the separation the parties would have the children in their separate care for two nights each at a time but this was not a set routine and changed regularly depending on different circumstances that arose. This led to frequent arguments between the parties.
The parties then participated in Family Dispute Resolution on 5 June 2013. At that time they agreed that in week one the father would have time with the children on Sunday, Monday and Thursday nights; in week two the father would have time with the children on Sunday, Monday, Thursday and Friday nights; and otherwise the children were in the care of the mother. This arrangement involves some 8 changeovers for the children during each fortnight.
In paragraph 76 of the mother’s affidavit of 23 October 2014, the mother states that since implementing the above arrangement, she has encountered ongoing difficulties with the implementation of that arrangement. She states that the communication with the father has deteriorated considerably. She states that for the last 9 months the parties have not spoken face-to-face at all. She states that their only way of communicating with each other is via text message or email. They do not talk to each other over the telephone and, “this makes it extremely difficult to discuss matters concerning the children particularly in relation to their school, sporting activities and health.” The father’s affidavit does not specifically respond to paragraph 76.
In paragraph 78 of the mother’s affidavit of 23 October 2014, the mother states that, in relation to changeovers, the father and herself, “do not come into contact face to face but rather (the father) will wait at the end of the driveway and the children will either come from the cars to the house or vice versa. Because of our poor communication (the father) uses the children to convey messages to me, for example to collect items which have been left at my house.” The father, in his affidavit, responded to this paragraph 78 by stating, “I deny there is poor communication between (the mother) and I. We communicate well by text messages and email.”
Under the current shared care arrangement, the children have occasionally asked one or other of the parents where they would be staying on a particular night. The father has stated that the children are reasonably settled into the current arrangement however a slightly modified arrangement with fewer changeovers for the children would be preferred.
The mother states that she has found the father to be completely inflexible with the present arrangements for the care of the children and will not agree to alter from what has been put in place. She gives as an example a request made in September 2014 to the father asking to take the children away to Queensland from (omitted) January 2015. The mother offered make up time when she returned however the father refused to agree stating, “I do not agree with your proposal for the January holidays. I would prefer not to deviate from our current arrangement.”
The mother is heavily involved in the children’s school. She works as a (omitted) and will readily volunteer to assist in taking the children on school excursions and also helping out with group work and sporting activities at the school.
In March 2014 the mother lodged a formal complaint with the (omitted) about her relationship with the father during the time that she was a student at the (omitted) College. Thereafter an investigation by that Office was carried out in relation to the complaint.
The children spent time with the father in January 2015 for a period of 5 nights after the mother had taken the children to Queensland for a holiday the week prior.
The father’s parents, particularly the father’s mother, have assisted the parties with the care of the children since separation. The father’s parents continue to assist the father in relation to the care of the children when they are in his care. The father’s parents will often take the children to school after they have been in his care. The mother states that she has a strained relationship with them and she has stopped trying to communicate with them. The evidence indicates that there have been unpleasant confrontations between the mother and the father’s mother at about the time of separation. The father’s mother’s affidavit filed 4 February 2015 confirms the lack of communication between the father’s mother and the mother since separation to the present time, albeit stating, in paragraph 17, “(the mother) has not sought to communicate with Mr K or me since separation from (the father).”
The father’s affidavit refers to X stating to him, from time to time, that, “I’m over going from house to house all the time.”
Currently, the father remains residing at (omitted). The house has four bedrooms and extensive living areas. Again, it is next door to the father’s parent’s residence.
The mother recently commenced residing at (omitted) in a rental property comprising a three-bedroom freestanding house. The residence is situated close by to the children’s school and sporting activities. Each child has their own bedroom. The mother is in a relationship with Mr S, aged 41 years. They have recently decided to commence cohabitation together. The children enjoy spending time with Mr S. The mother is pregnant and she and Mr S are expecting a child in (omitted) 2015.
The mother is employed as a (occupation omitted). This is a casual position. She works 3 to 4 days a week, 5 to 6 hours each day. The mother works from 9 am to 3 pm. These work hours enable her to take the children to school in the morning and collect them in the afternoon. The mother expects that she will finish up work at the end of term 2 in (omitted) 2015 in view of her pregnancy. She plans to have at least six months off work after her new child is born and will return to work on a part-time basis.
The father’s new full-time employment position as the (occupation omitted) at (omitted), is such that he will leave home at about 7:30 am and return home at about 4:00 pm. The father is on stress-related sick leave while his school completes undertaking an internal investigation relating to information previously given by him to them regarding his relationship with the mother when the mother was a student and he was a teacher at the (omitted) College.
The children are in good health. They are performing satisfactorily at school and are in line with their peers; their school reports in evidence support this fact. They continue to be involved in a range of sporting activities; Y attends dancing, swimming, (omitted) and in winter she plays (omitted). X plays (omitted) and soccer, baseball and in winter he also play soccer.
Applications by the parties to reopen their cases
The interim hearing was held on 16 February 2015 and judgment was reserved. At that hearing a live issue that was argued, in relation to whether or not an equal time arrangement was in the best interests of the children on an interim basis, was alleged difficulties in the parties’ ability to communicate with each other; the mother asserted, inter alia, that there were significant communication difficulties whilst the father asserted that the parties communicated well by text messages and email.
On 4 March 2015, the court, to afford procedural fairness to the parties, relisted the matter to enable the parties to make submissions in relation to the court’s provisional view that something less than an equal time arrangement might be in the best interests of the children, on an interim basis, such as, for example, from Thursday after school to before school Tuesday mornings in each alternate week. Again, both parties addressed, inter alia, the issue of alleged communication difficulties between the parties.
Later, on 4 March 2015, the father’s legal representatives emailed the court (with copy to the mother’s legal representatives) stating, inter-alia, as follows:
“I am writing to request that this matter be again listed before His Honour on a date convenient to the court, and prior to His Honour finalising his decision on the interim applications of the parties, for directions in relation to the subpoena to produce documents issued to the (omitted), at the request of the applicant. The outstanding subpoena, I believe, has been overlooked by the parties and needs to be addressed before the evidence in the interim proceedings is concluded.
My client wishes to have the opportunity to inspect documents produced under subpoena and, if appropriate, to tender any of the documents produced in evidence in these interim proceedings.”
On 10 March 2015 the court heard and determined objections to the subpoena to produce documents issued by the mother’s solicitors to the (omitted). The court determined those objections by dismissing the objection by the (omitted) office and ordering it to produce documents in compliance with a subpoena within seven days; the father’s objection relating to there being no photocopy access to any documents produced under that subpoena was upheld; the parties were granted leave to inspect such documents; and the father’s legal representatives were granted leave to seek to relist the interim parenting proceedings before the court within 14 days, for the purpose of making an application seeking leave to reopen the father’s case. In due course an application was made by the father’s legal representatives seeking to relist the interim parenting proceedings.
On 31 March 2015 the court heard the father’s application seeking leave to reopen his case. Additionally, the mother sought leave to reopen her case and the court also heard that application.
The legal principles applicable to an application to reopen a case and admission of further evidence has been considered by the courts. This court refers to the decision of Macmillan J in Zau v Uong (No.2) [2015] FamCA 56 in which it was stated at paragraph 11 that the relevant legal principles pertaining to the court’s discretion to allow a party to reopen their case and admit further evidence are:
“a) the further evidence is so material that the interests of justice require its admission ;
b) the further evidence, if accepted, would most probably affect the result of the case ;
c) the further evidence could not by reasonable diligence have been discovered earlier ; and
d) no prejudice would ensue to the other party by reason of the late admission of the further evidence
The court in that case, at paragraph 12, also referred to Smith v Bar Association (No.2) (1992) 176 CLR 256 which this court has also considered. The father’s legal representative also referred this court to the decision in Mallard v Mallard [2011] FamCA 876, particularly at paragraphs 90, 91 and 92 and the court has considered that decision as well.
The father’s legal representative tendered, on the application for leave to reopen his client’s case, three documents from the documents produced under subpoena by the (omitted) and a further affidavit of the father of 27 March 2015.
Turning to the documents from the subpoenaed material, one document, which appears to relate to statements made by the mother to the (omitted) on 8 March 2014 states that, “They now communicate only via text message about the kids. (The mother) is in a new relationship and she thinks (the father) is angry about this. She has seen counsellors at some stages and has a mental health plan through her GP. She is managing depression with medication.”
It was submitted on behalf of the father that the above document was relevant to the interim proceedings in relation to the credit of the mother. It was alleged that there was an inconsistency between the mother’s assertion of her managing depression with medication as at 8 March 2014 and her affidavit of 23 October 2014, paragraph 106, in which she stated that she was in good health. In the view of the court, there is no necessary inconsistency, and it is not in the interests of justice that the document be admitted in the interim proceedings. If the document was admitted it would not affect the result of the interim proceedings. Furthermore, and in any event, this alleged credit issue is best resolved at a final hearing.
It was also submitted that the mother’ s admitted depression on
8 March 2014, when seen in conjunction with the father’s affidavit evidence that, at the time of separation, the mother made a threat to members of the father’s family, was somehow relevant to the mother’s present capacity to care for the children. The court is of the view that this submission is without foundation; the alleged threat made by the mother at the time of separation, if substantiated, appears to have been situational, and, the fact that the parents have been involved, for some time since separation in an elaborate equal time arrangement suggests that the father appreciates this fact and has no concerns for the safety of the children.
The court also notes that on 10 March 2015 the father’s legal representative, prior to inspecting the subpoenaed documents from the (omitted), appears to have been aware that the documents to be produced under subpoena indicated that the mother had been suffering depression and was taking medication. On 31 March 2015 the father’s legal representative did not address this issue.
Another document sought to be tendered in the interim proceedings from the subpoenaed documents, was a copy of a counsellor’s report dated 19 June 2001 signed by the counsellor and the mother. The document, on its face, suggests that the mother made a conscious and rational decision to terminate her pregnancy. The contents of this document is said to be inconsistent with paragraphs 11, 12 and 13 of her affidavit of 23 October 2014 which, on one view, suggests that the mother was under pressure from the father to undertake the procedure. Accordingly, it is submitted that this inconsistency affects the creditworthiness of the mother. In the view of the court, there is no necessary inconsistency, and it is not in the interests of justice that the document be admitted in the interim proceedings. If the document was admitted it would not affect the result of the interim proceedings. There could well be a rational explanation for the asserted inconsistencies between the two documents. Furthermore, and in any event this alleged credit issue is best resolved at a final hearing.
Another document sought to be tendered in the interim proceedings, from the subpoenaed documents, was a signed copy of a document from the mother’s brother dated 26 November 2014 in which he stated that he attended the (omitted) Hospital on 4 August 2001, being a date when the mother was admitted to that hospital overnight, and that the father and another person, Ms C, also attended the hospital with the mother. The contents of this document were said to be inconsistent with the mother’s affidavit of 23 October 2014, paragraph 16, in which it is stated, inter-alia, “I was admitted to hospital in (omitted) 2001 due to me not coping with the terminated pregnancy. I recall being severely depressed at the time and had little support.” It was submitted on behalf of the father that this alleged inconsistency affected the mother’s credit in the interim proceedings. In the view of the court, there is no necessary inconsistency, and it is not in the interests of justice that the document be admitted any interim proceedings. If the document was admitted it would not affect the result of the interim proceedings. Furthermore, and in any event this alleged credit issue is best resolved at a final hearing.
Further, and in any event, in relation to all the documents sought to be tendered in the interim proceedings by the father from the subpoenaed material produced by the (omitted), the court is generally of the view that they all relate to potential credit issues which are best and most appropriately dealt with in a final hearing. In this respect the court refers to the decision in Goode v Goode [2006] FamCA 1346, especially at paragraph 66, 68 and 79 of that decision. At paragraph 68, the court stated:
“In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed.” Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.”
In addition, the father’s legal representative also sought to tender a further affidavit from the father dated 27 March 2015; in that affidavit the father annexed a number of text message communications passing between the parties since 16 February 2015, being the date of the interim hearing. Specifically, there are text messages between the parties dating from 12 February 2015 to 6 March 2015, some 22 in number, and dating from 10 March 2015 to 26 March 2015, some 26 in number.
The affidavit of the father dated 27 March 2015 was first served on the mother and her legal representative on the morning of 31 March 2015.
The father’s legal representative submits that the contents of these text messages indicate that the parties are presently communicating effectively with each other as far as the day-to-day care of the children is concerned.
In the view of the court, it is not in the interests of justice that the affidavit be admitted in the interim proceedings. If the document was admitted it would not affect the result of the interim proceedings. Whilst, on one view, the text messages, which postdate the hearing of the interim hearing, constitute fresh evidence, the weight that could be attached to such messages between the parties, suggesting, on one view, effective communication and cooperation, must be seen as fairly slight considering the arguable self-serving nature of the husband’ s text message replies to the mother; the father was present at the hearing of the interim proceedings on 16 February 2015 and must have known that the issue of communication between the parties was a live one and could well have a significant impact on the result of the interim proceedings.
Further, and in any event, the content of the text message communications in the father’s further affidavit are not all uniformly suggestive of regular effective communication between the parties; for example, the text message of Friday 6 March 2015 at 3.3 0.5 6 pm is unhelpful.
Further, even if the affidavit was admitted into evidence in the interim proceedings, the text message communications, merely spanning a period of about one month, do not, in the opinion of the court, alter the court’s view (as discussed below in detail) that, on the uncontroversial evidence before the court at this interim stage, there is simply not the level of communication and cooperation available between the parties (including the father’s parents) that is required for an effective equal time shared care arrangement to work effectively in the best interests of the children.
Accordingly, the court does not accede to the father’s application to reopen his case at this interim hearing.
Again, the mother’s legal representative sought to reopen her case at this interim hearing. A document was sought to be tendered from the subpoenaed material from the (omitted) office. The document appears to relate to an investigation of a complaint made by the mother against the father to the (omitted) and dated January 2015. The document refers to certain admissions made by the father in relation to his intimate sexual relationship with the mother whilst the parties were at school together but, in the opinion of the court, it does not establish clearly an inconsistency with the father’s affidavit of 8 December 2014, paragraphs 18, 19 and 20.
Accordingly, the court does not accede to the mother’s application to reopen her case at this interim hearing.
Submissions of the parties
The court has considered all of the submissions of both parties. It does not propose to set out all those submissions in these reasons.
It was submitted on behalf of the mother, inter-alia, that the present communication difficulties between the parties has rendered the equal care arrangement unsatisfactory. The mother’s solicitor referred to the Child Dispute Conference Memorandum to Court dated 10 December 2014 (exhibit A) which stated, in part:
“(The mother) said that, with the current arrangements (equal time with 8 changeovers), the children did not know what house they would be staying in and they needed stability. She said that it was “too much back and forth” for the children and they had to take several belongings with them every changeover, which they often forgot, which made things difficult.”
The court notes the mother’ s evidence at paragraph 110 of her first affidavit which states:
“I find that the current arrangements are having an impact on the children since they do not spend more than two nights at a time with either parent. They have no consistency in their routine which is made more difficult by the fact that the (father) and I cannot communicate effectively.”
It was submitted on behalf of the mother that the parties’ communications via email and text messages are not totally satisfactory. The court notes the father’s contrary evidence that these forms of communication are essentially operating satisfactorily in respect to the children’s day-to-day lives.
On behalf of the father, it was submitted, inter-alia, that the mother’s proposal provides for a very significant variation to the arrangements which have been in place for the children since separation.
It was submitted by the father that it is in the best interests of the children to maintain the time they spend with each parent in equal proportion as has occurred for the period of almost 2 years since separation, pending final order. The father’s proposal allows this to be done and at the same time reduces fortnightly handovers from 8 to 4. It was submitted that continuation of an equal time arrangement was supported by the children’s positive school results.
Relevant legal principles
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode and Goode (supra).
In Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the problems associated with making findings on disputed evidence as follows:
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..In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [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.”
122. Later, at paragraph [100] their Honours amplified their comments and said:
“The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. 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.”
The court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks v Banks (2015) FamCAFC, especially at paragraph 46 to 52.
Section 60B of the Family Law Act 1975 (Cth), (the Act) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
When making a parenting order in relation to a child, the court must apply a presumption that that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60 CC, the court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60 CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the court may make such orders in the discretion of the court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
The best interests of the children
Section 60 CC considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The children have a meaningful relationship with each parent.
The parents, since not long after separation in March 2013, have had equal shared caring of the children, albeit that there have been changes from time to time to the structure of that equal shared caring of the children.
If the court acceded to the mother’s proposed interim orders for the children’s care, the effect of those orders would significantly reduce the number of nights that the children would spend with their father during school terms (from 7 nights out of 14 to 2 nights out of 14) and may adversely affect the meaningful relationship that the father presently enjoys with the children.
As discussed below, the court is of the view that an order that the children live with the mother and spend substantial and significant time with the father, from after school on Thursday to before school Tuesday in each alternate week, would be in the best interests of the children, as opposed to the separate proposals of the parties. The court is of the view that this time that the children would spend with the father, although representing something less than the equal time arrangement currently in place, will not detrimentally affect the meaningful relationship that the children presently enjoy with the father. The children will still spend quality time with the father both comprising school term weekends and school days, on a fortnightly basis, and will allow the father to be involved in the children’s daily routine.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is no evidence of the child needing protection from their abuse, neglect or family violence.
Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The court notes the father’s evidence that the child X, aged 11 years, has occasionally told him that he is “over going from house to house all of the time”. In the present factual context of there being some 8 changeovers on a fortnightly basis, this statement by the child is not surprising. The court notes that there is no independent evidence as to the children’s wishes, whether in respect of the mother’s proposed orders for care or the father’s proposed orders. In any event, the court notes that this case calls for the preparation of a Family Report which can deal, inter alia, with these issues.
The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The children enjoy a meaningful relationship with each parent. The mother describes the children enjoying spending time with Mr S, her new partner. The father refers the children enjoying a good relationship with his parents who have been significantly involved in the children’s lives since their births and remain significantly involved. It is noted that the father’s parents live next door to his residence. A Family Report could explore these matters in depth and be of assistance.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
to participate in making decisions about major long-term issues in relation to the child; and
to spend time with the child; and
to communicate with the child
The evidence to date indicates that the parents of the child have participated in decision-making in relation to the children, including their schooling. Both parents have spent time with the children and have communicated with the children.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’ s obligations to maintain the child
This consideration is not relevant.
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
A previously stated, the mother’s proposed orders would involve a significant change in the care arrangements for the children (the father would only spend 2 nights each fortnight with the children, compared to the current equal care arrangement), and may adversely affect the meaningful relationship that the father currently enjoys with the children, as discussed previously.
The court also refers to its comments below under the heading “Equal time”.
The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
These considerations are not relevant.
The capacity of:
each of the child’s parents; and
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
The evidence adduced by both parties to date indicate that they both can adequately provide for the needs of the children, including their emotional and intellectual needs. It is apparent that the father’s parents have been positively involved in the children’s lives to date although the court notes the strained relationship between the father’s parents and the mother. The mother has stated that the children enjoy a good relationship with her new partner. All these matters can be further explored in a comprehensive Family Report.
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
These considerations are not relevant in these proceedings.
If the child is an Aboriginal child or a Torres Strait Islander child:
the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
the likely impact any proposed parenting order under this Part will have on that right
These considerations are not relevant in these proceedings.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Each parent, at least on the evidence before the court that is not disputed, has shown a responsible attitude to the parenting of the children.
Any family violence involving the child or a member of the child’s family
The mother has raised allegations of family violence. The father disputes the mother’s allegations in this respect. The court is not in a position to resolve these matters at an interim hearing.
If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following:
the nature of the order;
the circumstances in which the order was made;
any evidence admitted in proceedings for the order;
any findings made by the court in, or in proceedings for, the order;
any other relevant matter
This consideration is not relevant.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In the view of the court, both proposals carry the risk of the institution of further proceedings.
The father’s proposal involving an equal time shared care arrangement, with some 4 changeovers each fortnight, in the context of the present circumstances pertaining to the parties, including their communication difficulties and the strained relationship between the mother and the father’s parents, carries the distinct risk of further proceedings in relation to the children.
The mother’s proposal involving a reduction of the time that the children spend with the father from 7 nights each fortnight to 2 nights each fortnight potentially might jeopardise their meaningful relationship with the father.
The court is of the view that interim orders providing for the children to live with the mother, with the children spending substantial and significant time with the father, from after school Thursday to before school Tuesday, would be least likely to lead to the institution of further proceedings in relation to the children, compared to the parents’ interim proposals. (The court refers to its discussion below relating to equal time and substantial and significant time).
Any other fact or circumstance that the court thinks is relevant
Equal shared parental responsibility: section 61DA(1) and (2)
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: section 61 DA (1)
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a)abuse of the child or another child who, at the time, was a member of the parents family (or that other person’s family); or
b)family violence.
“Family violence” is defined under the Family Law Act 1975 (Cth); it “means violent, threatening or other behaviour by a person that coerce is or control is a member of the person’s family (the family member), or causes the family member to be fearful”: section 4AB (1). Subsection (2) of section 4AB gives examples of behaviour that “may constitute family violence”.
The parties have not agreed to equal shared parental responsibility of the child at this interim hearing. Again, the mother seeks an interim order for sole parental responsibility of the children.
There is no evidence before the court of child abuse. There is no undisputed evidence before the court at this interim stage relating to family violence.
Section 61 DA (3) provides:
“When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.”
At this interim stage, the presumption of equal shared parental responsibility should be held to apply in relation to the children. The court does not consider that “it would not be appropriate in the circumstances for the presumption to be applied”: ss(3) of section 61DA. Having come to this view, the court nevertheless does have serious concerns about the present ability of the parties to effectively communicate and consistently cooperate in the context of an equal time shared care arrangement for the children.
Pending further order, the court will make an order for equal shared parental responsibility in respect to the children.
Equal time
At this interim stage, the court is of the view that it would not be in the best interests of the children that they spend equal time with their parents. The uncontroversial evidence indicates that:
a)communication between the parties has deteriorated considerably; in particular, there has been no face-to-face communication between the parties for at least the last 9 months
In this respect, it is not without relevance that in March 2014 the mother lodged a formal complaint with the (omitted) about her relationship with the father during the time that she was a student, and the father was a teacher, at the (omitted) College. An investigation by that Office ensued and the father is presently on stress related sick leave while his school completes undertaking an internal investigation
b)since implementing the equal time shared care arrangement after the separation, the mother has encountered ongoing difficulties with the implementation of that arrangement; the parties only way of communicating with each other is via text message or email. They do not talk to each other over the telephone and, at least as far as the mother is concerned, “this makes it extremely difficult to discuss matters concerning the children particularly in relation to their school, sporting activities and health”
c)the father occasionally uses the children to convey messages to the mother, for example to collect items which have been left at her house
d)there is some evidence of the father being inflexible in agreeing to occasional alterations to the current equal care arrangement, for example to accommodate the mother’s request to him to take the children to Queensland in January 2015
e)the mother’ s relationship with the father’s parents is also strained and they do not communicate. It is noted that the father’s mother in particular often has day-to-day involvement in the care of the children (for example, school drop offs and pick-ups) when they are with the father
f)at least one of the children, X, aged almost 12 years, has indicated to the father that he would prefer not to be going “house-to-house” all the time. There is also evidence that occasionally the children are confused as to which residence they are staying in.
The court is of the view that there is simply not the level of communication and cooperation available between the parties (including between the mother and the father’s parents) that is required for an equal time shared care arrangement to work effectively in the best interests of the children.
Further, an equal time arrangement, including the father’s proposal for equal time, risks the prospect of the children being exposed to potential parental conflict, noting that the current equal time arrangement is being maintained in the face of communication and other difficulties between the parties, and between the mother and the father’s parents, as referred above.
Substantial and significant time
The court is of the view that an arrangement whereby the children live with the mother and the father spends substantial and significant time with the children from Thursday after school to before school Tuesday, on an alternative week basis, will be in the best interests of the children. Such an arrangement will continue to allow the father to enjoy his meaningful relationship with the children and will provide a more stable, consistent and less confusing and disruptive parental care arrangement for the children. Further, it would reduce the prospect of the children being exposed to potential parental conflict in the context of an equal time arrangement (which is being maintained in the face of communication and other difficulties between the parties and between the mother and the father’s parents).
In terms of the children prospectively spending some 5 nights consecutively each fortnight with the father, whereas, since shortly after separation, they have been spending two nights on and off with each parent each week, they have spent a week at a time with each parent during the school holidays without apparently any adverse effect. The court is of the view there will likely be no adverse impact upon the children in living with the mother, and spending substantial and significant time with the father on a fortnightly basis.
In terms of that part of the court’s proposed order that the children live with the mother, the court notes that the undisputed evidence is that the mother has been the primary carer of the children since their birth, albeit that since shortly after the separation of the parties there has been an equal care arrangement in place.
In terms of the “reasonable practicality” considerations in section
65 DAA (5), the court notes:
a)again, the parties live reasonably close to each other
b)the parties will be able to implement an arrangement for the children spending substantial and significant time with the father, with the children living with the mother; in this context the number of fortnightly change overs will be significantly reduced from the present shared care arrangement and further reduced in comparison with the father’s proposal
c)the court is satisfied that the present level of communication between the parties, as limited as it is, will probably be sufficient to enable the parties to resolve any difficulties that might arise in implementing the court’s proposed substantial and significant time order.
Summary
The court is of the view that, at this interim stage, the presumption of equal shared parental responsibility should be held to apply in relation to the children.
The court is of the view that the respective proposals of the parties for school terms, relating to, on the father’s proposal, equal time, and on the mother’s proposal, the children merely spending two nights each fortnight with the father, would not be in the best interests of the children. The court is of the view, at this interim stage, that during school terms it would be in the best interests of the children, and reasonably practicable, that they live with the mother, and spend substantial and significant time with the father from after school Thursday to before school Tuesday each fortnight. The court is of the view that these arrangements will enable the children to continue to enjoy a meaningful relationship with both parents.
Orders will be made accordingly.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 2 April 2015
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