Johnson and Charles

[2017] FamCA 326

FAMILY COURT OF AUSTRALIA

JOHNSON & CHARLES [2017] FamCA 326

FAMILY LAW – CHILDREN – interim orders – where the father sought leave to withhold the child from the mother pending final hearing – where the mother sought the child live with her on an interim basis – orders made for the child to spend three weeks with the mother with no contact with the father and thereafter resumption of week-about arrangement

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC, 61DA, 65DAA

Banks & Banks [2015] FamCAFC 36
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286

APPLICANT: Mr Johnson

RESPONDENT: Ms Charles

INDEPENDENT CHILDREN’S LAWYER: Clark Family Lawyers

FILE NUMBER: MLC 10228 of 2012

DATE DELIVERED: 21 April 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 3 April 2017

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Monica Clark

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Clark Family Lawyers

Orders

1. That until further order paragraphs 1 to 4 inclusive of the orders dated 24 June 2016 be suspended.

2. That until further order paragraph 4 of the orders dated 17 December 2015 be suspended.

3. That until further order the child B (the child) born ... 2006 live with the mother as follows:-

   (a)From 4.00pm this day to after school on Monday 24 April 2017;

   (b)Each alternate week from after school Monday to the commencement of school the following Monday, commencing Monday 1 May 2017;

   (c)As may otherwise be agreed from time to time.

4. That until further order the child live with the father as follows:-

   (a)Each alternate week from after school Monday to the commencement of school the following Monday, commencing Monday 24 April 2017;

   (b)As may otherwise be agreed between the parties from time to time.

5. That until further order each party be and is hereby restrained from:

   (a)Denigrating the other in the presence or hearing of the child or permitting others to do so; and

   (b)Discussing these proceedings in the presence or hearing of the child or permitting others to do so

6. That the father, his servants and agents vacate the Commonwealth Law Courts by 4.30pm this day and not approach or communicate with the mother or child this day.

7. That the Independent Children's Lawyer accompany the mother to the Child Minding Service to explain these orders to the child following the hearing this day.

8. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Trial Orders

1. That all applications for final orders be adjourned for hearing before Justice Johns on 18 July 2017 at 10 am as a six-day matter and that the evidence in chief of all witnesses be given by affidavit.

2. That by 4.00 pm on 15 May 2017 the applicant file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought; and

   (b)the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

3. That the applicant pay all setting down and trial fees by 4.00pm on 15 May 2017.

4. That by 4.00pm on 13 June 2017 the respondent file and serve upon all other parties:

   (a)an amended response setting out with precision what orders are being sought; and

   (b)the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief);

5. That by 4.00pm on 27 June 2017 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.

6. That by 4.00 pm on 27 June 2017 the Independent Children’s Lawyer file and serve upon all other parties, any affidavit material relied upon.

7. That no party file any further material other than as provided by these orders without leave of the Court.

8. That prior to commencement of the trial, the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties’ outlines of case.

9. That pursuant to s 62G (2) of the Act, the parties and the child attend upon and at the direction of a family consultant nominated and appointed by the Director of Child Dispute Services of the Melbourne Registry for the purposes of the preparation of a family report to be completed and released by 4 July 2017.

10. That the Family Consultant be at liberty to inspect the court file and all documents produced under any subpoena to which objection to release has not been taken.

11. That all parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.

12. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

13. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar:

    (a)The Court may relist the case requiring the parties to justify why it should not be taken out of the list; and

    (b)The party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

14. That the practitioners for the parties file and serve electronically to ... by 4.00pm on 12 July 2017 the following:

    (a)a concise set of orders to be sought if different from those already filed;

    (b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)a list of assets and liabilities;

    (d)a list of objections to evidence upon which rulings are required; and

    (e)a bullet-point summary of argument in relation to the issues in dispute.

15. That each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

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 Johnson & Charles 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: MLC 10228 of 2012

Mr Johnson

Applicant

And

Ms Charles

Respondent

REASONS FOR JUDGMENT

1. Pursuant to orders made 14 February 2017 these proceedings were listed for a first day hearing before me on 3 April 2017.  Those orders required that the applicant father, Mr Johnson and the respondent mother, Ms Charles each file an amended application and response respectively as well as a summary of the issues both legal and factual that are in dispute.  The mother was to file her amended response by 21 March 2017 and prior to the hearing before me this had not been complied with. Neither party had filed their summary of issues.

2. On 28 March 2017, the father filed an Application in a Case together with an Affidavit sworn by him and one by his mother, Ms C.  That application was listed for hearing before me on 3 April 2017.  That application sought two orders, being:-

   ·For the matter to be heard undefended due to the mother’s non-compliance with the procedural orders made 14 February 2017;

   ·Permission for the father to withhold the child the subject of the proceedings, the child on an interim basis.

3. The father appeared in person before me on 3 April 2017.  He confirmed during oral submissions that what he actually sought was leave to withhold the child from spending time with her mother pursuant to the extant interim orders. 

4. The mother also appeared in person before me on 3 April 2017 and opposed the orders sought by the father.  In her Amended Response to Initiating Application filed 3 April 2017 the mother sought interim orders that:-

   ·The child the child live with her; and

   ·The child spend no time with the father for a period of six months.

5. In addition, the mother’s application sought orders with respect to child support, the obtaining of a passport for the child and the allocation of parental responsibility.  Those issues are more appropriately dealt with at the final hearing.  They were matters not pressed before me on 3 April 2017.

6. At the commencement of the hearing I informed the parties of my intention to list this matter for final hearing in either late June or July 2017 and I encouraged them to consider whether they needed to press their interim applications at this time, given the imminent trial date.  Notwithstanding that information, the father confirmed that he sought to press his application for leave to retain the child pending the final hearing.  Similarly, the mother confirmed that she sought an order on an interim basis that the child live with her.  These are my reasons for judgment with respect to those competing applications.

background

1. The father is the applicant in the proceedings.  He is aged 45 years and is employed in hospitality.  He resides in Suburb D. 

2. The mother is the respondent in the proceedings.  She is aged 43 years and is engaged in full-time employment as a public servant.  She resides in Suburb D.

3. The parties commenced cohabitation in 1999 and married in 2004.  Final separation occurred in 2012.  The parties were divorced in 2013.

4. There are two children of the marriage, E, aged 16 years and the child B, aged almost 11 years.  The child, the subject of this application, is in Year 6 at Suburb D Primary School.

5. The mother also has an adult child of a previous relationship, Ms F.  The father has two children with his former partner, Ms G, H aged three-and-a-half and J aged one-and-a-half. 

6. The parties have been engaged in litigation with respect to parenting arrangements since 2012.  Final orders were made by consent in the Federal Circuit Court on 8 November 2013 with respect to the parenting arrangements for E and the child.  Those orders provide that:-

   ·The parties have equal shared parental responsibility for the children;

   ·The children live with the mother; and

   ·The children spend time with the father for six nights per fortnight and during holidays and on special days.

7. On 12 August 2015 the father filed an Amended Initiating Application seeking “sole custody” of the children.  On 19 August 2015 Judge Riethmuller made procedural orders with respect to that application, including an order for the preparation of a Family Report.

8. On 17 December 2015 interim orders were made by Judge Riethmuller in the Federal Circuit Court of Australia which provide that the child spend time and communicate with the parties as follows:-

   3.1 With the father:-

   a.During school holidays from 6.00pm Monday until 6.00pm the following Monday;

   b.During school term from the conclusion of school Monday until the commencement of school the following Monday; and

   c.By telephone at all reasonable times;

   3.2 With the mother:-

   a.   During school holidays from 6.00pm Monday until 6.00pm the following Monday;

   b.   During school term from the conclusion of school Monday until the commencement of school the following Monday; and

   c.   By telephone at all reasonable times;

9. Although not stated in that order it would appear that the intention of the orders is that the child spend time with her parents on an alternating weekly basis.  Certainly it was the submission of both parties that that was the agreement at that time and those orders were implemented on that basis.

10. Those orders also provided that the child E live with the father and spend time and communicate with the mother in accordance with her wishes.

11. On 24 June 2016 orders were made by Judge Stewart of the Federal Circuit Court which had the effect of varying the orders made in December 2015.  That variation principally related to how time was to be spent by the child with her parents during the long summer vacation period.  Otherwise the orders confirmed that the alternate week arrangement whereby the child spends time with each parent on a week-about basis from Monday to Monday was to continue. 

12. That day Judge Stewart also made orders that the proceedings be transferred to the Melbourne Registry of this Court due to the high parental conflict, alleged alignment issues and influence and the family constellation whereby the child’s older siblings live with the father and spend no time with nor communicate with the mother.

13. Notwithstanding the proceedings in this Court, in or about November 2016 following a notification to the Department of Health and Human Services (“DHHS”), a protection application was made with respect to the child in the Children’s Court at Melbourne.  Upon the commencement of those proceedings, there was an interruption to the child’s time with the mother.  Those proceedings culminated in a hearing before Magistrate Fleming in February 2017 which proceeded over three days with oral evidence given by the mother and the father, and where the child was represented by an Independent Children's Lawyer.  The application by DHHS was dismissed by the Magistrate at the conclusion of the proceedings. 

14. The mother during the course of her submissions before me referred to the Reasons of the Magistrate and findings made by her at that hearing.  Those Reasons for Judgment and findings were not available to the Court during the hearing.  Accordingly I have made orders that the Registrar of the Family Court request the file of the Children’s Court with respect to those proceedings.  Nonetheless, it is common ground between the parties that DHHS’ application was dismissed at the conclusion of those proceedings.

15. Following that hearing, notwithstanding the orders of Magistrate Fleming, the father failed to make the child available to the mother to enable a resumption of her time pursuant to the orders made in the Federal Circuit Court in June 2016.  As a consequence, on 28 February 2017 the mother filed an Application in a Case seeking a recovery order in respect of the child.  The father filed a Response to an Application in a Case on 7 March 2017 seeking orders that the time between the child and the mother be supervised, that there be an assessment of the child, the parties and other relevant people and that there be an adjournment of the upcoming final hearing.  Those applications were listed before Senior Registrar Fitzgibbon on 9 March 2017. 

16. On 9 March 2017 the Senior Registrar made orders as follows:-

    1.…

    2.That the attendance and compliance with orders 24 June 2016 made in the Federal Circuit Court by Judge Stewart remain in full force and effect.

    3.That the child [B] (female) born ... 2006 (“the child”) recommence spending time with the wife from 4:00pm Monday 13 March 2017 with the husband to bring the child to the wife’s residence at the commencement of time.

    4.That the Application in a Case filed by the wife on 28 February 2017 and the Response to it by the husband filed 7 March 2017 be dismissed.

17. The Senior Registrar provided ex-tempore Reasons for Judgment.  At paragraph 6 of those Reasons the Senior Registrar stated as follows:-

    6.        What [the father] informed the Court of earlier was that the child was reluctant to go to her mother and said she would not go and would run away.  What I indicated to him is that at her age, with orders previously made, and including for sharing parental responsibility, then there is an obligation, positively, on any parent and him to take appropriate steps to not just tell her she has to go but do any other thing in an appropriate and age-appropriate way, to see that orders are complied with.  That may include assurances to her that nothing untoward will occur and the like.  This is particularly important in the context of the concerns he expressed today and what were the same ones subject of the hearing for three days in the Children’s Court.  That Court, exercising its jurisdiction under state legislation but still with the commonality of best interests of the child guiding, it did not conclude that there should be any strictures, changes to orders or any ongoing Children’s Court orders made by that Court.

18. Notwithstanding the orders made by the Senior Registrar on 9 March 2017 (and noting his Reasons for Judgment with respect to those orders), less than three weeks later, the father has filed a further application seeking to re-litigate the interim parenting issues. The father also chose to withhold the child from spending time with the mother on a second occasion in the space of two months.

19. Following the hearing before the Senior Registrar, the child spent time with the mother in the week commencing 13 March 2017.  The mother deposes at paragraphs 71 to 81 inclusive of her Affidavit filed 3 April 2017 (“the mother’s Affidavit") as to the time spent by the child with her that week.  In summary, it is her evidence that whilst the child was initially reluctant to spend time with the mother, that the child’s behaviour was “adult” and that she was hostile, the child’s behaviour settled in her mother’s care and she had a happy and enjoyable week with her mother. 

20. The mother deposed that the child had a sleep-over with her friend Genevieve and attended the school fair on 17 March 2017.  The mother relied upon photographs taken of the child during that week (Exhibit R1) in support of her submission that the child had a happy and positive experience during that week in her mother’s care.

21. The mother deposes in her Affidavit that there were difficulties due to a mobile telephone that had been secreted in the child’s belongings that had been provided to her by the father’s family.  That phone became a source of conflict and the mother deposes that she removed that phone from the child. The paternal grandmother in her affidavit filed 28 March 2017 deposed to providing a mobile phone to the child and complains that the mother confiscated the phone and refused to return it. 

22. In his Affidavit filed 28 March 2017, the father takes issue with the mother’s evidence as to the events of the week commencing 13 March 2017.  He deposes at paragraph 3 of that Affidavit as to the difficulties upon the commencement of that time.  Further, at paragraph 4 of his Affidavit the father deposes that the child reported to him that the mother used corporal punishment, hitting her and dragging her by the arm. That allegation is denied by the mother. 

23. The child was next due to spend time with the mother in the week commencing 27 March 2017.  However, rather than present the child for time with her mother in that week, the father elected to withhold her from school.  As a result the child missed five days of school in that week and spent no time with the mother.  That missed time from school is in addition to the four school days lost by her in the week of 1 March 2017, when the father again kept the child home from school rather than having her attend school and spend time with the mother.

24. It is against that backdrop that each of the parties seeks interim orders in the terms identified earlier in this judgment.

RELEVANT LEGAL PRINCIPLES

1. Section 60B(1) of the Family Law Act 1975 (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

2. Section 60B(2) sets out the principles underlying those objects.  They are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the court in determining what is in the child’s best interests. I will return to the detail below.

4. There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA).  The presumption relates to the allocation of parental responsibility.  It does not relate to the time the child spends with each parent.  Final orders were made that the parties have equal shared parental responsibility in November 2013.  Neither party sought interim orders with respect to the allocation of parental responsibility.  Accordingly, that order continues with full force and effect.     

5. If there is an order for equal shared parental responsibility, the court is then obliged to consider whether the child spending equal time with each parent would be in the child’s best interests (s 65DAA (1)(a)), and whether it is reasonably practicable (s 65DAA (1)(b)), and then consider an order for equal time (s 65DAA (1)(c)). 

6. If the court does not make an order for equal time, it must consider whether the child spending substantial and significant time with each parent would be in the child’s best interests (s 65DAA (2)(c)), and whether it is reasonably practicable (s 65DAA (2)(d) ), and then consider an order for substantial and significant time (s 65DAA (2)(e)).  “Substantial and significant time” is defined in s 65DAA(3), and s 65DAA(5) deals with “reasonable practicability,” providing that the court must have regard to:

   (a)how far apart the parents live from each other; and

   (b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)the impact that an arrangement of that kind would have on the child; and

   (e)such other matters as the court considers relevant.

7. In Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 (“Goode & Goode”) the Full Court set out the legislative pathway for the Court to follow in determining an application for interim parenting orders.   More recently the Full Court considered those matters in Banks & Banks [2015] FamCAFC 36 (“Banks & Banks”) and held:-

   47. As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.

   48. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   49. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

   50. 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 disputed 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.

8. In determining the parties competing applications, I have adopted the approach advocated by the Full Court in Banks & Banks and have considered the facts and issues in this matter within the umbrella of the s 60CC factors; not all of those factors are relevant to the determination of the interim issues.

Documents Relied Upon

1. The applicant father relied upon the following material:-

   ·Application in a Case filed 28 March 2017;

   ·Affidavit of the father filed 28 March 2017;

   ·Affidavit of Ms C filed 28 March 2017;

   ·Exhibit A1 being a Letter to the child from K Lawyers dated 24 March 2017.

2. The respondent mother relied upon the following material:-

   ·Amended Response to Initiating Application filed 3 April 2017;

   ·Amended Affidavit of the mother filed 3 April 2017;

   ·Notice of Child Abuse, Family Violence or Risk of Family Violence filed 3 April 2017;

   ·Exhibit R1 being bundle of photographs taken on 15 and 17 March 2017;

   ·Exhibit R2 being SMS text message from the father to the mother dated 22 March 2017;

   ·Exhibit R3 being Facebook post of the father dated 19 December 2016;

   ·Exhibit R4 being SMS text message from the father to the child;

   ·Exhibit R5 being SMS text message from the father to the child dated 28 November 2016.

3. The ICL referred to and relied upon:-

   ·Family Report dated 1 February 2016;

   ·Affidavit of the father filed 7 March 2017;

   ·Amended Affidavit of the mother filed 3 April 2017.

The Competing Proposals

1. I have already identified the competing proposals of the mother and the father.  The position of the ICL was one of support for the mother, save that she did not express a proposal as to if and when the father’s time with the child should resume. Nonetheless, the ICL was supportive of the proposal that the child live with the mother for an extended period of time pending the final hearing, and stated that the father’s time should be at least suspended during the school holiday period. 

The Issue in Dispute in the Interim Hearing

1. The principal matters in dispute at the interim hearing were:-

   ·Whether the mother poses a risk of harm to the child;

   ·Whether the child has expressed a view that she wishes to spend no time with the mother, and if so what weight should attach to those views;

   ·Whether the father has sought to influence the child’s views.

2. Those issues can most conveniently be discussed within the primary and additional considerations pursuant to s 60CC of the Act.

Primary Considerations under s 60CC(2)

(a)         the benefit to the child of having a meaningful relationship with both of the child’s parents;

1. It was common ground between the parties that the child needs a relationship with both of her parents.  Nonetheless, each party sought interim orders, the effect of which was to limit the opportunity of the child having such relationship with the other parent.

2. It was the father’s position that until the final hearing, the child should spend only supervised time with the mother due to the allegations made against her and the child’s alleged wish to spend no time with her mother.

3. The mother’s position was that in circumstances where she alleges the father has actively sought to influence and align the child with him, there should be a break in the relationship between the child and her father of six months duration and thereafter the relationship between father and daughter could resume. 

4. I am not in a position to make any determination about the allegations of the parents with respect to those matters at this interim hearing. 

5. However, in circumstances where the father’s allegations have been the subject of a three-day contested hearing in the Children’s Court in February 2017 which resulted in no orders being made, the impact of which was to enable the continuation of interim orders that provide for the child to spend time with each parent on a week-about basis, I do not propose to go behind those orders.

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

6. The father alleges that the child has been exposed to physical harm at the hands of the mother, alleging that she hit and dragged the child by the arm when in her care in the week of 13 March 2017.  These are matters the father alleges were reported to him by the child.  The mother categorically denies those allegations. 

7. The mother alleges that the child has been exposed to psychological harm in the father’s care, that harm being exposure to the hostile influences of him and her older siblings in their attitude and behaviour towards the mother and her family.

8. In support of that submission the mother relied upon Exhibit R3 being a Facebook post of the father posted on his Facebook page on 19 December 2016 entitled “Characteristics of Narcissistic Mothers” which states:-

   Everything she does is deniable.
   She violates your boundaries.
   She favoritizes.
   She undermines.
   She demeans, criticizes and denigrates.
   She makes you look crazy.
   She’s envious.
   She’s a liar in too many ways to count.
   She has to be the centre of attention all the time.
   She manipulates your emotions in order to feed on your pain.
   She’s selfish and willful [sic].
   She’s self-absorbed.
   She is insanely defensive and is extremely sensitive to any criticism.
   She terrorized.
   She’s infantile and petty.
   She’s aggressive and shameless.
   She “parentifies”.
   She’s exploitative.
   She projects.
   She is never wrong about anything.
   She seems to have no awareness that other people even have feelings.
   She blames.

   She destroys your relationships.

9. The criticism by the mother of the father with respect to that post is that it is an example of his attitude towards the mother and of his disregard of the impact the expression of such views may have on the children.  The father conceded during his submissions that the post was accessible to the public, including the children.   There is much force in the mother’s criticism, particularly in circumstances where the mother’s two older daughters are already estranged from her and it is alleged that the father is seeking to influence the child.

10. Ultimately, the determination of whether the father’s behaviour has influenced the child will be a matter for the trial.  However, on any view, I am satisfied that the Facebook post is a matter of concern and lends weight to the mother’s submission that the child must be protected from such influence.

11. The allegations by the father against the mother as to the child being exposed to physical and verbal abuse were matters raised in the Children’s Court proceedings and before the Senior Registrar.   Those allegations were tested in the three day hearing in the Children’s Court in February, 2017. 

12. Further, the allegations of the father appear to be in conflict with parts of the affidavit of his mother, Ms C, filed in support of his application.  Ms C deposed in that affidavit at paragraph 7 that she believed “the best resolution going forward, would be for the child to spend every second weekend with her mother”.  Based on that evidence it would appear that Ms C holds no concerns for the child’s welfare in her mother’s care.

13. During the course of his submissions the father agreed that the images of the child taken by the mother during her time with the child in the week of 13 March 2017 (Exhibit R 1) depict a smiling and happy child.

14. Having regard to the evidence of the father’s mother and the mother coupled with the outcome of the proceedings in the Children’s Court following a three day contested hearing, I am satisfied that there is no evidence to support the father’s contention that the child is at risk of harm in the mother’s care.  That view is bolstered in circumstances where these proceedings are listed for final hearing before me in approximately three months and the conduct of each of the parties during that period will be subject to the scrutiny of this court, such scrutiny to include interview and observation for the purposes of the preparation of a Family Report.

The additional considerations under s 60CC(3)

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

1. The father submits that the child has expressed to him in the strongest terms that she does not wish to spend time with the mother, that she has run away when in the mother’s care and that she will continue to do so if forced to spend time with the mother.  In support of that submission the father relied upon Exhibit A1 being the letter from the lawyer engaged to represent the child in the Children’s Court proceedings to the child dated 24 March 2017.  That lawyer noted in the fourth paragraph the extremely strong wishes expressed by the child to her about living with the father. 

2. The mother submits that little weight can attach to the views expressed by the child due to the pressure and influence she is exposed to in the father’s household.  In support of that submission, she relied upon SMS text messages from the father to the child when the child is in her care (Exhibits R4 and R5).  Exhibit R5 is a text message from the father to the child sent at 8.16 p.m. on 28 November 2016 which states:

   I’m here for you beautiful

   But I can’t just come and get you cause I’ll get in trouble.

   My phone is next to me and if anything was to happen to you I would come straight away.

   Is your mum angry about something

   I wish the same and one day I will be able to see you everyday

   But for now we have to do the best we can with what we have

   If I don’t see you I’m thinking of you and sending you love.

   …

3. That the child has expressed a desire to spend more time with the father is not in contention.  The issue is what weight the Court should attach to those views.  The mother raises serious concerns as to the influences to which the child is subjected in the father’s household.  Text messages such as those tendered by the mother have likely heightened her concern with respect to the impact of those influences. 

4. However, these are matters more appropriately considered when the evidence of all parties can be tested at the final hearing.

   (b)the nature of the relationship of the child with:

   (i)     each of the child’s parents; and

   (ii)   other persons (including any grandparent or other relative of the child);

5. The father’s evidence is that he has a strong and loving relationship with the child.  He contends that the child has a poor relationship with the mother, whom he alleges has been verbally and physically abusive to the child. 

6. The mother deposed in her Affidavit that the child spent a happy and enjoyable time with her in the week of 13 March 2017. 

7. At paragraph 42 of the Family Report prepared by the Family Consultant, Ms L and dated 1 February 2016 (“the Family Report”) the child was observed to be a child caught in the middle of parental conflict and loyalty.  She appeared to the Family Consultant at that time as having awareness of continuing parental conflict, legal proceedings and the views held by each parent.  Further, the Family Consultant noted that the child appeared cautious in her interactions with the mother on the day of the interviews. 

8. At paragraph 43 of the Family Report the Family Consultant notes the information provided to her by Dr M, a Consultant Clinical Psychologist who has provided the child with individual counselling.  In his report dated 15 December 2015, Dr M observed the child to have a positive and loving interaction with the mother but noted that the child has divided loyalties. 

9. The Family Report is over a year old and I have made orders for the preparation of an updated Family Report in anticipation of the final hearing in July.  Until receipt of that evidence, in the context of a final hearing, I am not in a position to make any findings with respect to the nature of the child’s relationship with her parents currently.

10. Nonetheless, the observations of the child in the Family Report lead the report writer to recommend at that time that the child continue to live in a shared care arrangement.  At paragraph 48 of the Family Report Ms L concluded that:-

    It is assessed that [the child] would benefit from having the opportunity of having a meaningful and positive relationship with each parent and not placed under any pressure or influence for this situation to change.  The paternal proposal for a change in [the child’s] living arrangements and to have sole parental responsibility is not supported at this time.  It is considered that if this situation occurred, there would be a danger in [the child’s] relationship with her mother to be substantially impacted in a negative manner.

11. Having regard to the mother’s allegations with respect to the influence and pressures in the father’s household, coupled with the concerns expressed and recommendations made in the Family Report, I am not satisfied that there should be any significant change in the child’s living arrangements pending the final hearing when the parties’ competing allegations can be tested.

    (c)the extent to which each of the child’s parent has taken, or failed to take, the opportunity:

    (i)To participate in making decisions about major long-term issues in relation to the child; and

    (ii)To spend time with the child; and

    (iii)To communicate with the child

12. I am satisfied that both the father and the mother have actively sought to spend time and communicate with the child.  Their desire to spend more time with the child is the centrepiece of this litigation which has been ongoing since 2015.

    (ca)the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligation to maintain the child

1. Neither the father nor the mother made submissions with respect to this matter.

   (d)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;

2. The orders I have made will enable the child to resume a relationship with the mother in circumstances where there has been a significant interruption to that relationship due to the Children’s Court litigation, and the actions of the father in the aftermath of those proceedings.  Prior to that time the child enjoyed a week-about arrangement whereby she had the opportunity of living with both parents.  I have made orders which will enable the child to spend three consecutive weeks in the mother’s household absent the influences of the father and her older sisters.  I am satisfied that orders in those terms are appropriate in circumstances where the father has withheld the child and deprived her of the opportunity of a relationship with the mother and in doing so has failed to comply with Court orders. 

3. I have no doubt that there is likely to be an initial period of upset when the child is informed of these arrangements but in circumstances where the child has had a week-about arrangement with the mother since December 2015 and the independent evidence of the Family Consultant is that such arrangement is appropriate I am satisfied that those orders are in the child’s best interests.

   (e)the practical difficulty and expense of a child spending time with and communicating with a 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;

4. The parties live in close proximity to each other and to the child’s school.

   (f)the capacity of:

   (i)     each of the child’s parents; and

   (ii)   any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs:

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

5. The mother contends that the father has failed the child in his decision to withhold her from school.  The child missed nine days of school in Term 1 due to the father’s decision to keep her at home rather than allow her to attend school and resume the week-about living arrangement with the mother.  It was submitted that that decision showed little regard for the child’s needs both in terms of her education and her social development.  It also demonstrates that the father has little regard for the orders of this Court.

6. On any view the father has been relentless in his desire to litigate these issues in order to have the child in his sole care.  I have no doubt that the pursuit of that litigation has come at a significant cost to the child. 

7. There is no doubt that the child has been aware of the Children’s Court proceedings; she has had a lawyer separately representing her in those proceedings who has taken instructions from her and communicated with her regarding the outcome of those proceedings (Exhibit A1).  Further, when those proceedings concluded the father elected to withhold the child from school and a resumption of time with the mother.  As observed by the Family Consultant in the Family Report, at the time of that report in February 2016 the child was already a child greatly affected by the conflict between her parents.  That conflict has heightened rather than abated over the last 12 months.  At the conclusion of these proceedings it is likely I will be invited to make findings as to the role each of the child’s parents has played in the conflict and as to how that reflects upon their attitudes to the child and their responsibilities as parents.

   (g)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;

8. I have addressed these matters earlier in this judgment.

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)     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

   (ii)   the likely impact any proposed parenting order under this Part will have on that right;

9. This consideration is not relevant to this matter.

   (j)any family violence involving the child or a member of the child’s family;

   (k)any family violence order that applies to the child or a member of the child’s family, if:

   (i)     the order is a final order; or

   (ii)   the making of the order was contested by a person;

10. I have addressed the allegations of family violence earlier in this judgment.

    (l)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;

11. This matter is listed for final hearing in July 2017.  The interim orders I have made will provide the child with the opportunity of a block period with her mother so as to regularise and restore that relationship pending the final hearing.  Thereafter there will be a resumption of the week-about arrangement which has been in place since December 2015.  That arrangement will continue until the final hearing.

    (m)any other fact or circumstance that the court thinks is relevant.

12. There is no other relevant fact or circumstance.

Conclusion

1. The manner in which this interim application came before the Court is a matter of great concern.  That an interim application was brought within three weeks of the Senior Registrar determining the interim parenting issues underlines the highly conflictual relationship between the parents.  The father saw fit to withhold the child from time with her mother in the face of decisions made by the Children’s Court in February and the Senior Registrar in March 2017. 

2. The orders of the Children’s Court were made at the conclusion of a three-day contested hearing where many of the allegations raised before me were ventilated and the evidence tested.  The allegations of physical and verbal abuse were matters raised by the father both before the Children’s Court and in the proceedings before the Senior Registrar.  The father acknowledges in his Affidavit filed 7 March 2017 at paragraph 7 that at the conclusion of the Children’s Court proceedings there was a finding that there were no concerns for the welfare of the child in the mother’s care.  It was in that context that the proceedings were dismissed, allowing the resumption of the week-about arrangement.  

3. Further, the father acknowledged at paragraph 8 of that Affidavit that the mother was to resume spending week-about time with the child on 27 February 2017. 

4. I am satisfied having regard to the child’s age, that the mother has a sound basis for her concerns as to the pressure and influence the child is subjected to in the father’s household, particularly having regard to the father’s Facebook posts and the text messages passing between the father and the child (Exhibits R4 and R5).  However, until the final hearing I am unable to make any findings with respect to those matters.

5. Given the current order that the parties have equal shared parental responsibility I am obliged by s 65DAA to consider whether it would be in the child’s best interests and reasonably practicable for her to spend equal time or substantial and significant time with each parent.

6. I am satisfied that pending the final hearing it is in the child’s best interests that there be a resumption of equal time with her parents.  Given the fact that the parties live in close proximity to each other and the child’s school and that this is the arrangement that has been in place since December 2015 I am also satisfied that such arrangement is reasonably practicable.

7. This matter is approximately 3 months from a final hearing where all of the allegations of the parties can be tested.  Pending that hearing there is no evidence before me that would support any change to the longstanding existing interim arrangements.  There has been an interruption to those arrangements due to the Children’s Court proceedings and the subsequent actions of the father in withholding the child from the mother’s care.  Given that circumstance, I am satisfied that it is appropriate and in the child’s best interests that she have a period of three weeks where she can resume living with the mother without the pressure of spending time with or communicating with her father.  Thereafter I am satisfied that it is in the child’s best interests that she resume her week-about living arrangement to ensure that she has the opportunity of spending time and communicating with both parents and enjoying a meaningful relationship with both of her parents.  Accordingly I have made orders which will enable that arrangement to continue until the conclusion of the final hearing.

THE ORDERS

1.That until further order paragraphs 1 to 4 inclusive of the orders dated 24 June 2016 be suspended.

2.That until further order paragraph 4 of the orders dated 17 December 2015 be suspended.

3.That until further order the child B (the child) born ... 2006 live with the mother as follows:-

(a)From 4.00pm this day to after school on Monday 24 April 2017;

(b)Each alternate week from after school Monday to the commencement of school the following Monday, commencing Monday 1 May 2017;

(c)As may otherwise be agreed from time to time.

4.That until further order the child live with the father as follows:-

(a)Each alternate week from after school Monday to the commencement of school the following Monday, commencing Monday 24 April 2017;

(b)As may otherwise be agreed between the parties from time to time.

5.That until further order each party be and is hereby restrained from:

(a)Denigrating the other in the presence or hearing of the child or permitting others to do so; and

(b)Discussing these proceedings in the presence or hearing of the child or permitting others to do so

6.That the father, his servants and agents vacate the Commonwealth Law Courts by 4.30pm this day and not approach or communicate with the mother or child this day.

7.That the Independent Children's Lawyer accompany the mother to the Child Minding Service to explain these orders to the child following the hearing this day.

8.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Trial Orders

9.That all applications for final orders be adjourned for hearing before Justice Johns on 18 July 2017 at 10 am as a six-day matter and that the evidence in chief of all witnesses be given by affidavit.

10.That by 4.00 pm on 15 May 2017 the applicant file and serve upon all other parties:

(a)an amended application setting out with precision the orders to be sought; and

(b)the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

11.That the applicant pay all setting down and trial fees by 4.00pm on 15 May 2017.

12.That by 4.00pm on 13 June 2017 the respondent file and serve upon all other parties:

(a)an amended response setting out with precision what orders are being sought; and

(b)the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief);

13.That by 4.00pm on 27 June 2017 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.

14.That by 4.00 pm on 27 June 2017 the Independent Children’s Lawyer file and serve upon all other parties, any affidavit material relied upon.

15.That no party file any further material other than as provided by these orders without leave of the Court.

16.That prior to commencement of the trial, the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties’ outlines of case.

17.That pursuant to s 62G (2) of the Act, the parties and the child attend upon and at the direction of a family consultant nominated and appointed by the Director of Child Dispute Services of the Melbourne Registry for the purposes of the preparation of a family report to be completed and released by 4 July 2017.

18.That the Family Consultant be at liberty to inspect the court file and all documents produced under any subpoena to which objection to release has not been taken.

19.That all parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.

20.That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

21.Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar:

(a)The Court may relist the case requiring the parties to justify why it should not be taken out of the list; and

(b)The party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

22.That the practitioners for the parties file and serve electronically to … by 4.00pm on 12 July 2017 the following:

(a)a concise set of orders to be sought if different from those already filed;

(b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

(c)a list of assets and liabilities;

(d)a list of objections to evidence upon which rulings are required; and

(e)a bullet-point summary of argument in relation to the issues in dispute.

23.That each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 21 April 2017

Associate: 

Date:  21 April 2017