Jagi and Gaba

[2020] FamCA 779

FAMILY COURT OF AUSTRALIA

JAGI & GABA [2020] FamCA 779

FAMILY LAW – CHILDREN – where orders are made for spend time and communicate with – where the matter was part heard and was adjourned previously to enable the family therapy to occur – where the family therapy is proving successful – where interim orders are made in order to progress the matter forward whilst awaiting final orders when judgment is delivered – where orders are made for the father to spend time with the child on a supervised basis before progressing to unsupervised time and then overnights – where in interim parenting proceedings the best interests of the child is the paramount consideration.

Family Law Act 1975 (Cth) s 60CC

Banks & Banks (2015) FLC 93-637

APPLICANT: Mr Jagi

RESPONDENT: Ms Gaba

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: PAC 1407 of 2017

DATE DELIVERED: 16 September 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 4 September 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Jones

SOLICITOR FOR THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mansfield

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. All previous spend time and communicate with Orders be discharged.

Until Further Order

1. That child X born … 2011 spend time and communicate with the father as follows:

   (a)By way of telephone or skype or such other electronic means each Tuesday and Thursday from 6:00pm to 6:30pm or as the father and mother may otherwise agree with the mother to initiate the call and the child be afforded the privacy to speak and interact with the father; and

   (b)Once a week for four hours for a period of four weeks supervised by a D Services or F Services commencing as soon as the family is accepted into one of those services;

   (c)       Thereafter on an unsupervised basis as follows:

   (i)For four hours once per week for a period of four weeks;

   (ii)From 10:00am to 5:00pm each Saturday for a period of four weeks;

   (iii)From 10:00am Saturday until 10:00am Sunday for a period of four weeks;

   (iv)From 10:00am Saturday until 5:00pm Sunday each alternate weekend.

   (v)During Christmas 2020 from 3:00pm Christmas Eve until 12:00pm on Christmas Day save that if overnight time has not commenced from 10.00am to 2.00pm on Christmas Day.

2. That the mother, father and the child continue to attend upon Ms B on a monthly basis or as otherwise directed by Ms B, for the purposes of reportable family therapy.

3. The parties be equally responsible for the costs of:

   (a)Supervision between the father and the child, including intake sessions, and a report, and

   (b)Ongoing family therapy sessions with Ms B, and any further report obtained from her.

4. The mother and father communicate via a smartphone App or email with respect to issues pertaining to the child, and do not pass messages or information through the child.

5. As soon as practicable the Independent Children’s Lawyer provide Ms B with a copy of these orders.

6. That there be liberty to apply at short notice to the chambers of Justice Macmillan for an urgent listing of the matter.

IT IS NOTED

(A)The mother and father are requested to provide the Independent Children’s Lawyer an update as to the attendance of the child upon Dr C or such other paediatrician for a developmental assessment soon as practicable, providing any report obtained.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: PAC 1407 of 2017

Mr Jagi

Applicant

And

Ms Gaba

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction    

1. This matter was listed for final hearing before me commencing on 17 February 2020. The matter was heard over 4 days and for reasons which I will discuss in more detail was adjourned part heard and listed for further hearing on 4 September 2020.

2. At the commencement of that hearing the child X born in 2011 (“the child”) had not spent any face to face time with the father since April 2018 and despite orders for Skype calls it was alleged by the father that the mother had not facilitated those calls.

3. The matter was in the Magellan list and the dispute at the commencement of the hearing was whether or not the father posed an unacceptable risk of sexual abuse to the child and whether if the Court were to be satisfied that the father did not pose an unacceptable risk to the child, whether the child has been coached or influenced by the mother such that the court was satisfied that the child is exposed to an unacceptable risk of psychological abuse in the mother’s care. There were also competing allegations of family violence.

4. As submitted by the father although the case is part heard the case before me now is not the case that I was hearing in February 2020. During that hearing the child’s therapist Ms B gave evidence that she could work with the parties and the child with a view to re-establishing the child’s relationship with the father and the father confirmed his intention to relocate to Melbourne and engage with Ms B. It was on this basis that the matter was adjourned for hearing before me on 4 September 2020. The father deposes to their having been some scheduling issues with the therapy but that notwithstanding those issues says his relationship with the child has blossomed. That being said whilst the child communicates with the father by Skype twice each week there have only been two face to face sessions.

5. It is the Independent Children’s Lawyers (“ICL”) submission that the Court should make interim not final orders to allow for a further assessment of the child’s relationship with the father once she has had more opportunity to spend time with the father. Whether or not I accept that submission or decide that the child’s best interests are best served by the court making final orders it will take some time for judgment to be delivered and further interim orders are required for the matter to progress.

6. The father and the ICL both submitted a minute of the orders they proposed pending judgment being delivered. The mother adopted the ICLs proposal subject to one variation in relation to the time frame for the introduction of overnight time.

7. To the credit of the parties they agree upon their being a move to overnight time albeit they are at odds as to how quickly that should occur. The father also proposes holiday time whereas the mother proposes a continuation of the overnight time proposed by the ICL. Although I did not hear any evidence from Ms B, the parties and the ICL agree that in order to preserve her therapeutic role it would be better if she was not called upon to give evidence, she was shown a copy of the orders proposed by the ICL. Counsel for the ICL reported that Ms B had described the proposal as “as good as any” way forward. Ms B was not shown a copy of the father’s minute of proposed orders or advised of the amendment to the ICL’s minute of orders proposed by the mother.

8. The other significant area of dispute is in relation to whether or not the Court should make interim orders for parental responsibility. The father proposing an interim order for equal shared parental responsibility and the mother and the ICL opposing any interim order for parental responsibility.

Legal Principles

1. The Court is being asked to make interim parenting orders and that being the case the child’s best interests are the paramount consideration. When determining what orders will be in the child’s best interests the court must have regard to the considerations in s 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”).

2. In Banks & Banks (2015) FLC 93-637 the Full Court referring to the court’s approach in interim proceedings said [at 93-637] as follows:

   When it is obvious that the findings made as to some of the s 60Cc factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as dispute or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

3. The Act also requires the court to apply the presumption of equal shared parental responsibility when making a parenting order. The presumption does not apply if there are reasonable grounds to believe that a parent or a person with whom the child lives has engaged in abuse of the child or family violence. The presumption may also be rebutted by evidence that satisfies the court that it would not be in the child’s best interests for the parents to share parental responsibility. When the court is making interim orders as I am doing in this case the presumption applies unless the court considers that in all of the circumstances of the case it would not be appropriate.

Discussion

1. Although I have heard all of the evidence in this case, the case has changed and much of that evidence is now not relevant for the purposes of the interim determination I must make. It is not really in this case a matter of making findings of fact as there is now at least with respect to the way forward little factual dispute, in particular with respect to the child’s current relationship with the father. Although I have had regard to the matters in s 60CC of the Act in circumstances where the parties now agree that the child would benefit from having a meaningful relationship with the father and that her time with him should be gradually increased none of the s 60CC factors otherwise stand out as being determinative.

2. The father’s solicitor submitted that having heard the evidence the Court could be satisfied that there are no reasonable grounds to believe that the child has been exposed to abuse or family violence and that in these circumstances the presumption of equal shared parental responsibility should apply and the Court should order accordingly. Although ultimately when making final orders that may be the outcome and the presumption may apply I do not consider that with respect to the interim decision I am making it is appropriate to apply that presumption or in the child’s best interests. 

3. Until the orders were made following the hearing in February 2020 the father had not spent face to face time with the child for almost 2 years and it follows that his experience of her life was limited. The father’s reintroduction to the child is relatively recent and still in its early stages. Whilst as submitted on behalf of the husband it may be unlikely that it will be necessary for the parties to make any major decisions in relation to the welfare of the child prior to judgment being delivered that possibility cannot be ruled out. In my view as the child’s relationship with the father develops he is likely to be better placed to make both short and long term decisions with respect to the child’s welfare.

4. This case is complex and I am not in a position to make detailed findings with respect to the various allegations of abuse and family violence in the context of these interim proceedings nor in my view would it be appropriate to do so. It is on that basis that I have taken the view that it is not appropriate to apply the presumption of equal shared parental responsibility. The presumption not having been applied and no orders made with respect to parental responsibility it is not necessary to consider on an interim basis whether the child should spend equal time and if not equal time substantial time with the father. 

5. The difference between the parties proposals is that the father proposes that the child spend 4 hours once a week for a period of 4 weeks supervised by D Services or F Services whereas it is the mother’s case based upon the proposal of the ICL there be two hours of supervised time once a week for 6 weeks. Thereafter the father proposed that the child spend unsupervised time with him from 10.00am until 4.00pm each Sunday for a period of 4 weeks, from 10.00am on Saturday to 9.00am on Sunday for a further period of 4 weeks and thereafter each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday and each other Wednesday from the conclusion of school or 3.30pm until the commencement of school or 9.00am on Friday. The father further proposed that the child spend time with him from 3.00pm on Christmas Eve until 12.00pm on Christmas Day and that if judgment has not been delivered by the commencement of the Term 1 school holidays in 2021 for a period of 3 consecutive days in each week of the school holidays.

6. The mother’s proposal, based upon the ICL’s proposal was that after spending two hours per week supervised for a period of 6 weeks there should be unsupervised time of 2 hours for a period of 2 weeks, 6 hours for a period of 4 weeks, from 9.00am to 5.00pm to 8 hours for a period of 4 weeks, from 10.00am Saturday to 10.00am Sunday for a period of 4 weeks and thereafter from 10.00am Saturday to 5.00pm each Sunday each alternate weekend and each Wednesday from 3.30pm to 6.30pm. Although the mother and the ICL proposed some time on Christmas time the mother said that the amount of time would depend upon whether or not the child was spending overnight time with the father by Christmas.

7. Significantly in my view both parties and the ICL agreed that the parties and the child should continue to attend upon Ms B and the father proposed that in the event that Ms B was concerned as to the child’s capacity to cope with spending increased time with the father and has expressed those concerns to the parties, the ICL could then seek an urgent listing of the matter.  Although I propose to grant the parties liberty to apply on short notice for an urgent listing I do not propose making the order in the exact terms sought by the father. In my view the question of how the child is coping with the increased time is not the only issue that might arise or in relation to which the matter might require a further listing. I also propose to make an order requiring the ICL to provide Ms B with a copy of the order.  

8. I was advised by the parties that it would be approximately three weeks before D Services would be able to facilitate the supervised time. Allowing for this three week period it would on the basis of the father’s proposal be 12 weeks before overnight time commences. On the mother’s proposal overnight time would not commence for some 19 weeks.

9. The evidence suggests that whilst the child has only spent face to face time with the father on two occasions they have been having regular skype communication and have made good progress towards their reunification. This is not disputed by the mother rather it is her case that the child should be given more time to consolidate her relationship with the father before moving to overnight time.

10. In my view both the proposal made by the mother and the ICL unnecessarily prolongs the process of the child’s reunification with the father and their opportunity to establish a more normal relationship particularly in circumstances where the parties and the child are to continue therapy with Ms B who can make recommendations with respect to any adjustments that might need to be made. However I am also satisfied that there are aspects of the father’s proposal that may be moving too quickly for the child. Doing the best I can on the evidence before me I am satisfied that for a period of 4 weeks the child should spend 4 hours per week supervised by either F Services or D Services before moving to unsupervised time once a week for four hours for a period of four weeks and from 10.00am until 5.00 pm each Saturday for a further four weeks. Thereafter moving to overnight time from 10.00am Saturday to 10.00 am Sunday and after a further four weeks each alternate weekend from 10.00 am Saturday to 5.00 pm Sunday. On this basis the child should be spending overnight time with the father by Christmas and I propose to make the order the father seeks from 3.00 pm on Christmas Eve until 12.00 pm on Christmas Day, however if there has been no overnight time, the orders will provide for the child to spend from 10.00 am until 2.00 pm with the father on Christmas Day. I am also satisfied that if judgment has not been delivered by the commencement of the Term 1 school holidays the child should spend three consecutive days of each week with the father.

11. As previously referred to the child has been communicating with the father by Skype on two occasions each week. The ICL and the mother proposed that this should continue whereas the father proposed that the child communicate with him by Skype or telephone on Monday, Wednesday and Friday. As the time the child spends with the father is to increase I am satisfied that the best option in the interim would be for the child to communicate with the father by Skype or telephone on Tuesdays and Thursdays of each week. This will reduce the length of time between the child communicating or spending face to face time with the father.

12. In my view these orders, albeit not exactly what each of the parties proposed, reflect their commitment to the child re-establishing her relationship with the father. I am satisfied that in circumstances where there is the safeguard of the parties ongoing therapy with Ms B that the orders that I propose to make will achieve that end. I am also hopeful given the progress the parties have made that with the child’s best interests in mind they may reach agreement as to the future arrangements for their daughter without needing the intervention of the court.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 16 September 2020.

Associate: 

Date:  16 September 2020