Janda and Fairburn

[2019] FamCA 593

FAMILY COURT OF AUSTRALIA

JANDA & FAIRBURN [2019] FamCA 593

FAMILY LAW – PARENTING – interim orders – best interests of the child – whether current parenting practice of the parties is within the best interests of the child – primary carer – that child live with the mother – time orders – that child spend time with the father – injunction – where previous allegations of child sexual abuse are unsubstituted, mother restrained and injuncted from perpetuating such belief with the child  – parties to communicate in relation to matters concerning the child

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 60CC(3), 61DB

Marvel v Marvel [2010] FamCAFC 101

APPLICANT: Ms Janda

RESPONDENT: Mr Fairburn

INDEPENDENT CHILDREN’S LAWYER: Storey & Associates

FILE NUMBER: DNC 408 of 2014

DATE DELIVERED: 23 August 2019

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Berman J

HEARING DATE: 14 - 20 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Farmer

SOLICITOR FOR THE APPLICANT: Withnalls Lawyers

COUNSEL FOR THE RESPONDENT: Mr Livingstone

SOLICITOR FOR THE RESPONDENT: Maleys Barristers & Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Holtham

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Story & Associates

Orders

As amended 26 August 2019

1. That until further order the child X born … 2013 (“the child”) live with the mother.

2. That the child spend time with the father as follows:-

   (a)From 9.00 am Saturday 24 August 2019 to 5.00 pm Sunday 25 August 2019 and each alternate weekend thereafter;

   (b)From the conclusion of school on Friday 30 August 2019 to the commencement of school on Monday 2 September 2019 and each alternate weekend thereafter;

   (c)From the conclusion of school on Friday 27 September 2019 until 10.00 am on Thursday 3 October 2019.

3. That the father’s time with the child pursuant to order (2)(a) and 2(b) herein is suspended during the September/October 2019 school holidays.

4. That all handovers that do not occur to and from the child’s school shall occur at L Group or such other public place as the parties may agree.

5. That the mother be restrained and an injunction granted restraining her from:-

   (a)       Speaking negatively to the child about the father;

   (b)Telling the child that she is not safe in her father’s care and from allowing another person to do so;

   (c)Allowing or permitting Ms B Janda to attend at the child’s school or at any other place of handover on any occasion that the father is present pursuant to these orders.

6. That in the absence of agreement, the parties are to communicate via email in relation to matters concerning the child.

* Pursuant to Regulation 17.02 of the Family Law Rules 2004 this order is amended on the 26 August 2019.

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 Janda & Fairburn 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 DARWIN

FILE NUMBER: DNC 408 of 2014

Ms Janda

Applicant

And

Mr Fairburn

Respondent

REASONS FOR JUDGMENT

INTRODUCTION 

1. By Amended Initiating Application filed 18 July 2018 and by reference to her case outline document, Ms Janda (“the mother”) seeks orders that the parties have shared parental responsibility for X (“the child”) born in 2013, that the child live with her and spend time with Mr Fairburn (“the father”).

2. As part of the mother’s orders she seeks that the child relocate from Darwin to Brisbane.

3. For his part, the father opposes the relocation of the child and pursuant to the orders sought in his Response filed 14 June 2019, he seeks sole parental responsibility for the child, that the child live with him and that thereafter there be a graduated reintroduction of the child spending time with the mother.

4. The final hearing of the competing applications of the parties commenced on 14 August 2019 and concluded with final submissions being made on 20 August 2019. Judgment was reserved.

5. On 21 May 2015 orders were made by consent that the parties have equal shared parental responsibility for the child, that the child live with the mother and spend limited but gradually increasing time with the father.

6. It is uncontroversial that the frequency of time as provided in the consent orders was onerous and in 2017 the parties agreed to a parenting plan which provided for a variation to the orders to improve their application and enable the parties, in particular the father, to undertake employment.

7. The parties resolved their property matters by orders made 14 September 2017.

8. For reasons that will be the subject of more detailed discussion in the judgment reserved in respect of the substantive proceedings, orders were made on 12 June 2018 which suspended the father’s time with the child.

9. The order also reflects the appointment of an Independent Children’s Lawyer (“ICL”).

10. The gravamen of the order suspending time was a Notice of Risk filed by the mother on 6 June 2018 which alleged that the father was the perpetrator of sexual, emotional and psychological abuse to the child. The particulars were expressed at [3] of the mother’s Affidavit filed 6 June 2018 in the following terms:-

    I have been in a DV extremely violent relationship with this man for the whole time I have been made to stay here and now is starting on his daughter. Please help keep us both safe for good legally from this man. A innocent child’s life is in your hands. Can we please get protection for my daughter who is under 5 who has gone through so much already [sic].

11. It was further alleged that the father was “grooming” the child for future sexual assault.

12. By order made 31 August 2018, the father’s time was reinstated subject to the supervision by the paternal grandfather.

13. Judge Young published reasons in support of the interim orders and in particular in support of the father’s time being supervised the following appears:-

    10.In summary there was no evidence or indication of sexual abuse of the child by the father. The investigators said that they would make a finding of substantiation of emotional abuse by the mother. In the recommendations, the investigators said that the family would receive continuing support and counselling and that counselling was necessary for both parents. Notwithstanding that assessment, the mother continues to oppose to reinstatement of any time. The independent children’s lawyer supported the reinstatement of time but told me from the bar table that there had been further allegations of sexual assault or sexual abuse of some kind, I understood it, made recently.

    11.She said in those circumstances that, in the interim, it would be in the child’s interests, to protect against baseless allegations, that the father’s time be supervised and the independent children’s lawyer suggested that the paternal grandfather would be a suitable supervisor subject to the independent children’s lawyer interviewing him and subject to him filing an affidavit acknowledging that he would comply with the usual requirements of a supervisor in this Court.

14. Notwithstanding that there may be misgivings as to the utility of an order requiring the father’s time to be supervised in circumstances where the purpose was not to protect the child from the father but to protect him from baseless allegations, the parties adhered to the orders until relatively recently when there was apparent agreement between the parties that the father’s time could occur without supervision and with the introduction of one overnight period per fortnight, with other occasions of the child spending time with the father from the conclusion of school to about 4.30 pm to 5.00 pm subject to the ability of L Group facilitating the handover between the parties.

ORDERS SOUGHT

1. The mother now concedes that the father does not now, nor did he ever present as a risk to the child. In those circumstances I did not consider that it was appropriate for the interim parenting arrangements to be the subject of informal agreement. The relationship between the parties can be described as one of high conflict. It is likely that some time will pass before final judgment is delivered and in any event, the parties are likely to be in dispute in respect of the interim parenting arrangements, in particular what is to occur over the upcoming September/October school holidays.

2. Each of the parties has set out their interim orders. The father’s proposed orders are similar to those of the ICL other than he seeks a block of four nights each alternate weekend, whereas the ICL seeks that the father have overnight time on three separate periods each fortnight.

3. The parties are agreed that the child should spend time with the father for an extended period during the first half of the September/October school holidays.

4. The ICL also makes provision for Father’s Day on 1 September 2019 and the child’s birthday on 21 October 2019.

5. The mother proposes that pending relocation (but in this instance, pending the delivery of judgment) the child should spend time with the father as follows:-

   (a)For Term 3 2019 from 9.00 am Saturday to 5.00 pm Sunday and each alternate weekend thereafter;

   (b)On each Thursday from 2.30 pm to 4.30 pm;

   (c)From after school Friday 27 September 2019 to 4.00 pm 29 September 2019 and from 9.00 am 12 October 2019 to before school on 14 October 2019;

   (d)Commencing Term 4 2019 from 9.00 am Saturday to before school Monday and each alternate weekend thereafter.

INTERIM PARENTING

• In Marvel & Marvel [2010] FamCAFC 101 the Full Court considered the approach to be adopted when presented with contested evidence on an interim hearing:-

  120As 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 (section 61DB).

1. I consider that a cautious approach should always be adopted in circumstances where the evidence has not been tested. That does not mean that the Court is not able to make an appropriate interim order and whilst a Court should generally be risk adverse and cautious, that does not mean that I am obliged to only make orders consistent with the current practice of the parties.

2. The competing applications of the parties must be considered pursuant to s 60B of the Family Law Act 1975 (Cth) (“the Act”) which outlines the objects and principles underlying Part VII of the Act.

3. Section 60CA of the Act requires that in deciding whether to make a particular parenting order the best interests of the child is the paramount consideration. In order to determine what is in the child’s best interests, the Court must consider the provisions of s 60CC as to the primary considerations contained in s 60CC(2) and the additional considerations in s 60CC(3).

4. It is obvious that I have the advantage of the evidence between the parties having been tested.

5. The mother concedes that the child is not at risk in the father’s care and the hesitation on her part is that the father has only had one overnight visit to this date. She concedes that it went well and was to the child’s benefit.

6. The ICL is highly supportive of a significant increase in the child spending time with the father pending final judgment, whereas the mother seeks a more cautious approach but also wanting to preserve the long-standing practice of the mother and child travelling to Brisbane for extended periods during the school holidays.

7. The mother’s case is that the parties should have equal shared parental responsibility and on that basis consideration must be given to whether the child should spend equal time with the parties or if not, then significant and substantial time.

8. I consider that the child’s interests would be best served by increasing the time that she spends with the father both in terms of time during the school term, and also during school holidays.

9. It is a matter of degree as to the extent to which the father’s time should be extended, however, the evidence of the family consultant was to observe a close relationship between the child and the father which should be reflected with an increase in time spent including overnight periods.

10. There is likely advantage to the child in reducing the frequency of handovers but extending the father’s overall time with the child. Handover arrangements at present rely upon the availability of a handover service. There is no good reason why that should now be necessary in circumstances where handover can take place to and from the child’s school.

11. Handover during the school holiday period or at such other times when the child is not at school can involve the services of L Group or such other public place as the parties may agree.

12. The father seeks an order that the child not be left alone with Ms B Janda (“the aunt”). Whilst I can understand the basis upon which the father seeks such an order, it is not supported by the ICL. There is sense in the submission of the ICL that for the present the aunt is a feature in the child’s life and the arrangements within the mother’s household for the child’s management involve her. At some point the aunt has indicated that she will disengage herself from the mother’s household, I accept that the mother may not be able to make immediate arrangements to replicate the aunt’s input and as such the joint position of the father and the ICL seeking that the mother be restrained from and allowing any other person to speak negatively to the child about the father or to express a view to the child that she is not safe in the father’s home is a practical interim measure.

13. I make orders as appear at the commencement of these reasons.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 23 August 2019.

Associate: 

Date: 23 August 2019