Inglis & Torres
[2023] FedCFamC1F 677
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Inglis & Torres [2023] FedCFamC1F 677
File number: SYC 2881 of 2020 Judgment of: AUSTIN J Date of judgment: 15 August 2023 Catchwords: FAMILY LAW – Practice and Procedure – Review of decision – Parenting – Where the mother seeks review of an interim order made by a Senior Judicial Registrar concerning the time and conditions under which the child spend with the father – Where the mother does not seek to disturb the arrangement of two hours unsupervised time between the child and the father each Thursday – Where the mother applies for the imposition of professional supervision during the time the child spends with the father each alternate Sunday – Where the mother did not explain the apparent illogicality of having the child spend unsupervised time with the father on Thursday, but professionally supervised time every alternate Sunday – Where the mother asserted she holds various concerns about the child’s safety while in the father’s care – Where the mother’s concerns could not be objectively premised on the available evidence – Where there is no dispute the child derives benefit from his meaningful relationship with both parents – Where the mother believes the father’s interest in the child wanes – Where the father will be keener to direct his attention to the child if their visits together are shorter – Ordered the child’s visits with the father on alternate Sundays be shortened from seven hours to three hours – Ordered the father be restrained from consuming alcohol whilst the child is spending time with him. Legislation: Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60B, 60CA, 60CC, 61C, 61D, 61DA, 62B, 64B, 65AA, 65D, 65DA, 65DAA, 69ZL, 102NA
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Banks v Banks (2015) FLC 93-637; [2015] FamCAFC 36
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Phillips & Hansford (No.2) (2019) FLC 93-917; [2019] FamCAFC 165
Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38
Division: Division 1 First Instance Number of paragraphs: 59 Date of hearing: 14 August 2023 Place: Sydney The Applicant: Litigant in person (did not participate) Counsel for the Respondent: Ms Murphy The Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Ark Law Lawyers ORDERS
SYC 2881 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR INGLIS
Applicant
AND: MS TORRES
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
15 AUGUST 2023
THE COURT ORDERS THAT:
1.All former interim parenting orders made in respect of the child X, born 2019, are discharged.
2.The child shall live with the mother.
3.The parties shall take all reasonable steps to ensure the child spends time with the father:
(a)Each Thursday from 1.00 pm to 3.00 pm; and
(b)Each alternate Sunday from 9.00 am until 12.00 noon, commencing on Sunday 20 August 2023.
4.For the purpose of implementing Orders 2 and 3, the parties shall ensure the child’s exchange at the McDonalds Restaurant at Suburb B, NSW.
5.The father is restrained from:
(a)consuming alcohol whilst the child is spending time with him; and
(b)having any person accompany him and the child, aside from any one or more of the father’s other children.
6.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
7.Otherwise:
(a)The Application in a Proceeding filed by the mother on 1 March 2023 is dismissed;
(b)The Application for Review filed by the mother on 21 July 2023 is dismissed; and
(c)Any and all other outstanding applications for interim orders is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Inglis & Torres has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
These proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) concern the parties’ only child, who is now four years old.
In the few years the proceedings have been pending, the parties have engaged in several interlocutory disputes over orders needed to regulate the child’s care. This is the latest.
For the reasons which follow, pending the trial, the child’s best interests are promoted by him living with the mother and him spending modest amounts of time with the father on a regular basis. The reasons are given in short form, as the Act permits (s 69ZL(1)).
Background
The parties separated in 2019. The child was born in 2019 and so was only a few months old at separation.
These proceedings were commenced by the father in May 2020.
In June 2020, when the child was less than one year old, a judge of the Federal Circuit Court (as it was then known) made interim orders for the child to live with the mother and spend time with the father for 1.5 hours each alternate Sunday, with the mother to be present.
In August 2020, more interim orders were made to expand the time the child spends with the father, both on alternate Sundays and by additional time each Thursday. Provision was still made for the mother to be present at each visit.
In September 2020, the interim orders were varied again. The child’s time with the father was expanded, under a graduating regime, culminating in seven hours on alternate Sundays and two hours each Thursday. The requirement for the mother to be present was discharged.
In December 2020, the September 2020 orders were varied slightly to make provision for the father to provide nappies and food for the child, but the mother’s application to vary the orders in other ways was dismissed.
The orders made in September 2020 (as amended under the slip rule in October 2020) have since been the operable orders.
On 23 February 2023, the mother again applied to vary the interim orders (though her application was not formally filed until 1 March 2023). Her new proposal was that the child should only spend two hours per week with the father under professional supervision at a contact centre.
The mother’s variation application was listed before the senior judicial registrar (“the registrar”) for hearing on 13 July 2023. The Independent Children’s Lawyer (“the ICL”) opposed the mother’s application. The father did not appear at the hearing and had not filed any Response or affidavit.
The registrar made orders on 13 July 2023 to vary the existing orders, but not in the manner sought by the mother. The times the child is to spend with the father remained intact, but the registrar made different orders about the manner in which the child was to be exchanged. The mother’s application was otherwise dismissed.
On 21 July 2023, the mother filed an Application for Review of some orders made by the registrar. In particular, she reviewed the order specifying the changeover venue (Order 2), the dismissal of her variation application (Order 4), and the order declaring the pre-existing interim orders otherwise remain in force (Order 5).
The review hearing was conducted before me on 14 August 2023. The orders sought in the review application mirrored those sought in the mother’s original variation application. Again, the ICL opposed the orders sought by the mother. Again, the father did not appear.
Adjournment application
An email sent by the father to the mother and the ICL on Sunday 13 August 2023 was admitted as an exhibit (Exhibit A). It confirmed his inability to attend the hearing due to a conflicting commitment, made gratuitous criticisms of the mother’s conduct of these proceedings, and claimed he has made an application for legal aid.
However, by reason of an order made by a judge pursuant to s 102NA of the Act in September 2022, the father is entitled to legal aid representation. The ICL helpfully advised that his grant of aid would be limited to representation at court events calling for cross-examination, but not at interim hearings when cross-examination ordinarily does not occur. Nonetheless, a solicitor filed a Notice of Address for Service for the father on 16 May 2023 and no Notice of Ceasing to Act has since been filed. On the face of the court record, there is no limitation to the solicitor’s appearance for the father in these proceedings.
Most importantly however, the father did not apply for any adjournment of the hearing in his email. An adjournment application was instead made by the ICL on the basis that the father should have the opportunity to be present. The application was dismissed. The father has had plenty of chances to meet the mother’s application. He failed to file any Response or affidavit to refute the variation application brought by the mother months ago. He failed to attend the interim hearing conducted by the registrar on 13 July 2023. He also failed to attend the hearing before me, for which the contents of his email sent late on the preceding evening was not a satisfactory explanation. The hearing proceeded in his absence. The court is not required to indefinitely delay the interim hearing merely because the father declines to file documents and participate in the hearing (Allesch v Maunz (2000) 203 CLR 172 at 182–186 and 189–191; Taylor v Taylor (1979) 143 CLR 1 at 4).
Proposals
The orders sought by the mother were as set out in her Application for Review filed on 21 July 2023. Fundamentally, she wanted the child to only spend professionally supervised time with the father for two hours each week.
However, the mother’s position changed during the hearing. She informed the court she did not seek to disturb the arrangement by which the child spends two hours each Thursday with the father at a particular location without any supervision, though she maintained her application for the imposition of professional supervision of the child’s visits with the father each alternate Sunday.
The mother did not deign to explain the apparent illogicality of having the child spend unsupervised time with the father for two hours every Thursday, but only professionally supervised time at a contact centre for two hours every alternate Sunday.
The ICL opposed any change to the orders made in September 2020 (as varied by the registrar’s orders in July 2023 in respect of only the changeover venue). In submissions, the ICL said she would not baulk at the containment of the time the child spends with the father each alternate Sunday so as to assuage some of the mother’s stated “concerns”.
Evidence
The mother relied upon:
(a)her affidavit filed on 23 February 2023;
(b)her affidavit filed on 1 August 2023, but confined to [10], [13], and two annexed documents (found at pages 38 and 40);
(c)the Family Report dated 2 March 2022;
(d)the Child Impact Report dated 23 January 2023 prepared in other proceedings relating to two other children of the father; and
(e)an email sent by the mother on 31 July 2023 proving service of her review application upon the father (Exhibit B).
Numerous other documents tendered by the mother were rejected. In summary, the documents comprised NSW police COPS event entries created in 2020 and 2021, a record of the NSW child welfare agency created in 2021, other records of the NSW child welfare agency created in 2022 and 2023 in relation to the father’s older son, and other school records pertaining to that older son.
The documents were rejected, mostly because the mother was unable to articulate the relevance of the documents to the narrow issues presently requiring determination. To the extent that she could articulate some tangential relevance, the probative value of the records was only slight because any allegations made within them were hearsay, the provenance of such allegations was unknown, and any problems experienced by the father’s older son cannot be automatically transposed to the subject child in these proceedings. It would have caused an undue waste of time in the interlocutory proceedings to consider the documents when much of the material was covered by the evidence within the mother’s affidavit and the Family Report (s 135(c) of the Evidence Act 1995 (Cth)).
The ICL did not adduce any evidence.
Legal principles
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). The presumption does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), may be disregarded in interim hearings (s 61DA(3)), and may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
This is a review hearing, which entails an original hearing of the mother’s application to vary the interim parenting orders made in September 2020 (as slightly amended but otherwise endorsed by the registrar in July 2023). The principles to which I have just adverted apply equally to interim parenting orders.
Being an interim hearing in respect of parenting orders, the procedure is that established by the Full Court in Goode & Goode (2006) FLC 93-286, where it was said (at [68]):
…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.
Although the mother was the only party to file affidavit evidence, the father’s rebuttal of many of the allegations she makes against him is evident from the contents of the Family Report. The trial is the time and place to settle factual controversies. Interim hearings ought not be used for that purpose unless circumstances are urgent and there is no alternative.
In Banks v Banks (2015) FLC 93-637 at [47]–[50], the Full Court noted how a paucity of uncontested evidence means only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim proceedings should be confined to only those issues which, in the best interests of the child, require determination prior to a proper determination at trial.
Child’s best interests – primary considerations
There was no dispute the child derives benefit from his meaningful relationship with the mother (s 60CC(2)(a)).
Nor was there any real dispute the child derives benefit from his meaningful relationship with the father (s 60CC(2)(a)). The mother told the Family Consultant she believed the child needed to have a relationship with the father.[1] She also told the Family Consultant she wanted to try and assist the child to have a relationship with the father and she was reluctant to seek the imposition of supervision upon the child’s relationship with him.[2]
[1] Family Report at [27]
[2] Family Report at [14] and [27]
The need for the imposition of professional supervision was asserted by the mother to be due to various “concerns” she held about the child’s safety while in the father’s care, which concerns she contended amounted to a risk of harm against which the child needed protection (s 60CC(2)(b)). However, the mother’s submission unravelled when scrutinised.
An articulation of the mother’s “concerns” is quite unhelpful because her concerns may not be objectively justified. Despite attempts to focus the mother’s counsel’s attention upon the findings which could be objectively drawn from the available evidence, the submissions repetitively strayed back to the mother’s subjective concerns. Courts cannot impulsively react to litigant’s subjective fears. The Court can only be motivated to make orders in reliance upon fact-based findings, even though factual findings in interlocutory hearings on untested evidence can only ever be circumspect.
At the outset, it should be observed the mother conceded to the Family Consultant that she was not fearful the father would cause the child any physical harm,[3] in which event she is not concerned about his “abuse” of the child. Her concerns are therefore narrowed to the child’s possible psychological harm due to “neglect” or exposure to “family violence”.
[3] Family Report at [33]
When isolated for the purpose of evaluation, the mother’s individual concerns were expressed to be these:
(a)the child’s exposure to family violence perpetrated between the father and any domestic partner he has;
(b)the child perhaps being neglected by the father following his excessive consumption of alcohol;
(c)the child resists leaving the mother and needs to be pacified; and
(d)the father only inconsistently availing himself of opportunities to spend time with the child.
The father was convicted of an offence against a former partner in 2016,[4] but that was some time ago. Aside from generic allegations of coercive or controlling behaviour by the mother, which the father refutes, the only episode of physical violence between the parties occurred in mid-2022, the circumstances of which incident are quite unclear. The father was charged with an offence, but he defended the charge and was later acquitted. Otherwise, the mother witnessed an argument between the father and his last partner in early 2022,[5] but an argument is not necessarily “family violence” (as defined in s 4AB) and, in any event, it is common ground the father and that woman have since separated.
[4] Family Report at [19]
[5] Family Report at [28]
The mother saw the father twice bring a bottle of wine to picnics he arranged for the child, which was perhaps unwise, but hardly probative of the father being prone to intoxication which deprives him of his supervisory capacity. That is particularly so when the child only spends a few hours at a time with the father during the day. The mother’s asserted concerns about the father’s past misuse of alcohol are not such as to objectively warrant the imposition of supervision.
Two of the father’s older children have expressed their reluctance to spend time with the father over full weekends and during school holidays due to his alcohol consumption,[6] but even if those reports are factually correct, it is unlikely the child in these proceedings will be at risk of harm by spending a couple of hours at a time with the father in the mornings or early afternoons.
[6] Child Impact Report at [11] and [12]
There could be no argument the child is primarily attached to the mother. He resists leaving the mother to spend time with the father and also when he goes to pre-school.[7] The Family Consultant witnessed it when she observed the child with the father, but she said it was an “appropriate attachment” for a child of his age and development.[8] She observed the child to settle quickly upon the mother’s departure.[9] The mother admitted she has filmed the child’s changeovers, which practice is liable to induce some anxiety in the child about his exchange between the parties. As the child matures, his anxiety upon separation from the mother will likely reduce.
[7] Family Report at [29]
[8] Family Report at [47], [52] and [68]
[9] Family Report at [52]
The evidence adduced by the mother is to the effect that the father has sometimes failed to attend scheduled visits to enable the child to spend time with him. The father did not meet that evidence with contradictory evidence, but he has sent the mother emails alleging her failure to comply with the existing orders and the need for him to prosecute contravention applications.[10] It is difficult, if not impossible, to know where the truth lies on that issue. Ultimately, if the father does sometimes miss visits (as the mother alleges) he will be responsible for any deterioration in his filial relationship with the child that thereby results. It is not a reason to impose supervision on the child’s physical interaction with him.
[10] Mother’s affidavit filed 1/8/23 at pages 38 and 40; Exhibit A
The mother also raised concern about the father’s focus being on his work or mobile telephone instead of the child during a number of the scheduled visits she attended. If the father’s interest in the child wanes for that or any other reason (as the mother seems to believe),[11] the best remedy is to shorten the duration of the child’s visits with him on Sundays. The father will be keener to direct his attention to the child if their visits together are shorter.
[11] Mother’s affidavit filed 23/2/23 at [7], [11], [17], [18] and [21]
Objectively discerned, no single incident or aggregation of incidents has occurred since orders were made in September 2020 to regulate the child’s interim care to now necessitate any fundamental revision of those orders. The ICL’s position was that “nothing has changed” to warrant any variation of the orders, which submission is largely accepted.
Child’s best interests – additional considerations
The individual factors within s 60CC of the Act need not be recited like a mantra in every case. Only those factors which are relevant need be addressed (Phillips & Hansford (No.2) (2019) FLC 93-917 at [43]).
No submission was directed to any factor prescribed by s 60CC(3) of the Act, so I do not intend to address them.
Conclusion
It would not be appropriate to apply the presumption of equal shared parental responsibility in this instance (s 61DA(3)). That is because no interim orders have so far been made allocating parental responsibility for the child, neither the parties nor the ICL sought an order allocating parental responsibility during this hearing, the issue was not even mentioned, and the parties make reciprocal allegations which would render the presumption either inapplicable or rebutted once firm factual findings are made at trial. The parties shall each retain parental responsibility for the child according to law (ss 61C and 61D(2)).
As no order is made conferring equal shared parental responsibility upon the parties, s 65DAA of the Act does not apply.
It is common ground the child should live with the mother.
The mother ultimately conceded the child should still spend unsupervised time with the father for two hours each Thursday afternoon.
As it eventually transpired, the only conflict concerned the duration of the child’s visits with the father each alternate Sunday and whether or not such visits should occur under professional supervision at a contact centre.
There is no need for professional supervision, which is to say nothing of the lack of evidence about whether or not there is a waiting list for the contact centre the mother would prefer to use, how long the registration process would take, the cost of the supervision, and the father’s financial capacity to meet the cost on an indefinite basis. The “concerns” raised by the mother, even when aggregated, are not sufficient to establish the child needs protection against the risk of harm posed by the father which can only be satisfactorily attenuated by the imposition of professional supervision.
The child’s visits with the father on alternate Sundays should be shortened from seven hours to three hours. The father’s interest in the child is less likely to wane if the visits are shorter. Moreover, such visits should occur in the mornings when the father is less likely to consume alcohol. He will be forbidden from consuming alcohol when the child is spending time with him.
There is no need for any restriction upon the venues where the child spends time with the father. Visits will only be for two hours on Thursdays and three hours on alternate Sundays.
The mother’s apprehension about dealing with the father can be managed by ensuring the child is exchanged at a public venue where CCTV footage is available as evidence if needed. The McDonalds Restaurant at Suburb B, NSW, close to the mother’s home, is a suitable location.
The mother expressed some concern about the father taking romantic partners with him when spending time with the child. The registrar made an injunction with regard to that issue (Order 3). While the mother did not review that particular order, this is an original hearing of her application which led to the suite of orders made on 21 July 2023. The injunction made by the registrar is discharged and re-made in altered terms to make it clearer.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 15 August 2023
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