Joslyne & Carrel (No 2)
[2023] FedCFamC1F 745
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Joslyne & Carrel (No 2) [2023] FedCFamC1F 745
File number(s): BRC 10297 of 2021 Judgment of: SCHONELL J Date of judgment: 30 August 2023 Catchwords: FAMILY LAW – PARENTING – Interim orders – Where the final hearing had been adjourned as a consequence of the father changing the final orders sought – Where the father sought interim orders for his time with the child to increase – Where both parties contended that the other parent poses a risk to the child – Where there are allegations of family violence – Where the mother’s cross‑examination had been completed but the father’s and Family Consultant’s evidence remains untested – Where the mother opposed an increase in time and the paternal grandfather being a supervisor – Where the Court is satisfied that time should increase and that, subject to an undertaking being provided, the paternal grandfather is a suitable supervisor. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 69ZL Cases cited: Adamson & Adamson [2018] FamCA 523
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Freeman and Freeman (1987) FLC 91-857; [1986] FamCA 23
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Marvel & Marvel (No. 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Division: Division 1 First Instance Number of paragraphs: 67 Date of hearing: 22 August 2023 Place: Heard in Brisbane, delivered in Sydney Counsel for the Applicant: Ms Eviston Solicitor for the Applicant: Freedom Law Counsel for the Respondent: Ms Jardine Solicitor for the Respondent: HCM Legal Counsel for the Independent Children's Lawyer: Ms Wardle Solicitor for the Independent Children's Lawyer: Gary Rolfe Solicitors ORDERS
BRC 10297 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CARREL
Applicant
AND: MS JOSLYNE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
30 AUGUST 2023
THE COURT ORDERS THAT:
1.Order 16 to 19 of the orders made 25 October 2022 be discharged.
2.Subject to the paternal grandfather Mr K (“the paternal grandfather”) providing a written undertaking in the form that is attached to these orders and its service on the mother’s solicitors and the Independent Children’s Lawyer, the father shall spend time with the child X born 2018 (“the child”) supervised by the paternal grandfather for a period of three hours commencing at 11.30 am on Tuesday 12 September 2023 and each alternate Tuesday thereafter.
3.The mother or her nominee shall cause the child to be delivered to the McDonalds at Suburb L at 11.30 am for the purposes of the child being delivered to the care of the paternal grandfather and the child shall be collected by the mother or her nominee from the same place at the end of the period of time provided for in these orders.
4.The father shall ensure that he is not to approach within 250 metres of the McDonalds at the time of collection and/or return.
5.The mother is restrained from permitting Mr C from attending on changeover.
6.In the event that the child is not made available for time in accordance with these orders, then the child’s time shall commence at 11.30 am on the next day until such time as the father has spent time with the child in accordance with these orders.
7.The father’s time with the child shall occur each alternate Tuesday and following three occasions, shall increase by an hour on each subsequent occasion.
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 Joslyne & Carrel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Part D Undertaking y I, Mr K, undertake to the Court that:
(1)I will supervise all time between X born 2018 and Mr Carrel.
(2)I will ensure that I am present on all occasions that X spends time with Mr Carrel.
(3)X will not be left alone with Mr Carrel.
(4)I will ensure that there are no discussions between X and Mr Carrel about the proceedings.
(5)I will ensure that Mr Carrel does not disparage or denigrate Ms Joslyne to X or in the presence of X.
(6)I will ensure that Mr Carrel does not physically chastise or discipline X.
(7)I will collect and return X to Ms Joslyne or her nominee at the commencement and conclusion of all scheduled visits.
(8)I will ensure that at no time will X be exposed to guns, hunting or shooting.
REASONS FOR JUDGMENT
SCHONELL J:
The parties to the applications that are currently before the Court are involved in contested financial and parenting proceedings. The parenting aspect of the proceedings relates to the parties’ child X who is five years of age. The proceedings were listed for final hearing commencing on 21 August 2023 but were adjourned consequent upon the father seeking to amend the final relief that he sought to include an order that the child live with him and spend time with the mother ultimately on an alternate weekend and half school holiday basis.
Following the adjournment, the father made an oral application to vary the existing supervised time orders such that he spend time on an unsupervised basis with the child, initially day time only then progressing to overnight time. The father’s application was in large measure supported by the Independent Children’s Lawyer (“the ICL”) and opposed by the mother.
As a consequence of subsequent directions, the hearing will resume part heard before me on 22 November 2023. Thus, the duration in which the current time arrangements with the father or any changes to them will operate will be relatively short.
BACKGROUND
The mother was born in 1977 and the father was born in 1979.
The parties are at issue as to when their relationship commenced and for the purposes of this application it is of no consequence.
There is one child of the parties’ relationship, X born 2018. The mother has two children of a former relationship who lived with the parties. Those children are currently aged 14 and 12. They have no relationship with the father and it is not intended by either party that they will.
The parties had a number of separations during the course of their relationship but there is no issue that they finally separated in June 2021.
There is no issue that the parties’ relationship was marked by episodes of family violence, albeit the parties are at significant issue about the extent of it and the relevant indicia.
The mother alleged that she suffered significant family violence at the hands of the father that included physical, verbal, emotional and psychological abuse as well as coercive and controlling conduct including seeking to exploit the mother’s experience of family violence at the hands of her former partner. The mother contended that since separation she and the children have continued to be exposed to acts of emotional harm, controlling and stalking behaviour, and intimidation by the father.
The father denied any physical violence but conceded that there was mutual name calling and verbal arguments. He contended that the mother intimidated him and put him down. The updated Family Report recorded as follows:
44. …[Mr Carrel] stated acceptance of previous family violence behaviours expressing ‘I know my behaviour was unacceptable ... the yelling and screaming. I was feeling down all the time’. The renewed insight for impact for the mother and children was related to be ‘into how [Ms Joslyne] was feeling ... upset, scared, and feeling unstable. The kids ... scared. DV is detrimental to his growth and development’.
By any measure, the parties’ relationship was dysfunctional.
The parties agree that the separation followed an event where the father attempted self-harm.
The father did not spend any time with the child for over twelve months following the parties’ separation. This is notwithstanding orders having been made in December 2021 for the father to spend supervised time.
The parties are at issue as to why time did not occur. The father contended that it was part of an attempt by the mother (which he said is ongoing) to prevent the child from having a relationship with him.
Notwithstanding the orders, supervised time did not commence until July 2022; it occurred on approximately three occasions and thereafter was suspended, not resuming again until November 2022.
Despite the orders providing that the father is to spend two hours each alternate Tuesday with the child, the evidence seems to be that he has spent only one hour. Remarkably, the mother’s counsel indicated during her submissions that there is no reason why the father could not spend two hours a fortnight pursuant to the current orders for time. The reasons why this has not occurred to date will no doubt be the subject of some debate at the resumed hearing.
As referred to earlier, the hearing continued for one day until it was adjourned. During the course of that one day, the mother was cross-examined extensively by the father’s counsel and the ICL’s counsel.
There has as yet been no cross-examination of the father nor any cross-examination of the Family Consultant.
The Family Consultant’s recommendations differ between her two reports. In the first Family Report, she recommended that the child spend time with his father for two hours a week at a contact centre for a six-week period; it then progressed to unsupervised time for four hours a week progressing ultimately to when he commences school from Saturday at 10.00 am to Sunday at 4.00 pm. In her updated Family Report, the Family Consultant changed her recommendations and contended that the father’s time should incrementally increase to ultimately become a pattern of alternate weekends and half school holidays.
It would appear that the change in recommendation arises largely as a consequence of the Family Consultant’s view that there has been a change in the father. In that respect, in her updated Family Report, the Family Consultant recorded as follows:
131. Recommendations were made to ensure that the father engaged with personal and parenting change programmes and supports to reduce risk from a family violence, mental health, and associated substance use perspective.
132. Despite the father's engagement with all such recommended support and testing processes as well as remaining committed to a pattern of time with the child, it is the narrative of the mother that this risk has continued and despite the stated engagement in interventions by the father, he perpetuates behaviours indicative of coercive control.
133. [Ms Joslyne] is also not accepting that the stated reduction in the father's alcohol consumption, with an increased risk of declining mental health, is sustainable, relapse probable and that as such the father should be restricted in his time further with [X].
134. The father asserts that he had been able to demonstrate the required change over a sustained period and that any prior behaviours indicative of family violence, personal and parental risk are now substantially reduced. The father considers the nature of his supervised time with [X] to be restrictive and that any future formation of a relationship with his child to be thwa11ed by the mother who he believes is alienating him, using her professional knowledge of the legal system to control, restrict and manipulate any progression of time.
135. In formulating her view of ongoing risk, the mother’s narrative at interview was largely retrospective and focussed on the prior behaviours of the father, [Ms Joslyne] unable (or unwilling) to assimilate any of the stated changes by the father into his more recent behaviour. Examples provided by [Ms Joslyne] to demonstrate the lack of acceptance and continued risk by the father were either ones deemed to be historical or accepted by the father. More recent examples to highlight ongoing violence behaviours, lacked content or were those considered to meet the definition of post separation conflict, not a distinct dynamic of family violence per se.
136. With due respect to the mother's prior experiences in her relationship with [Mr Carrel] it accepted that these caused her and her older children emotional harm, the writer would strongly disagree with the mother, an assessment that the father has been able to successfully manage the required stability of mental health, personal and parenting functioning that he should now be considered as offering a valuable role in his child's life.
137. As discussed, the father has engaged in the required behaviour change, with his learning being adopted into his parenting and in maintaining a respectful, albeit very limited coparenting relationship with the mother. There have been no breaches of the Protection Order, the mother’s examples of the father being deliberate in stalking behaviours and the use of social media to intimidate her are determined to be unfounded.
138. Comparatively the father presented as having made some solid progress in building post separation and parenting resilience, able to identify various useful strategies to manage any feelings of low mood, frustration, and distress, including the current matter before the Court and he is to be commended for doing so persistently and maintaining the focus as his child. It is determined that the father’s ongoing support via the ‘Reset’ programme with learnings from this and the men's behaviour change programme can now best be being assimilated within his ongoing therapy with [Ms M], psychologist.
139. It is therefore dete1mined that the father has made the necessary and sustained effort to position himself to be a safe and responsible parent and that his time with [X] should begin to increase incrementally. In support of such increases, it would be useful to have the father supported in this role by his father, [Mr K], who the writer assessed would be able to fulfil this role safely. The Court may wish to seek an undertaking from [Mr K] to ensure that he understands his role to ensure the father acts in a safe and responsible manner during the time for [X].
SUBMISSIONS OF THE FATHER
The father’s counsel submitted that as a consequence of the cross-examination of the mother, the Court was in a position where it could make findings in relation to the disputed allegations of family violence and risk. This submission was made notwithstanding there having been no cross-examination of the father or the Family Consultant. I do not accept this submission.
The father’s counsel submitted that consistent with the recommendations of the Family Consultant, time should progress in circumstances where the current relationship between the father and the child was at risk of disruption as a consequence of the mother’s attitude and, what I infer from the submission to be, her persistent failure to support or prioritise a relationship between the child and the father.
In that respect, counsel for the father identified what was said to be limitations in the mother’s insight, her failure to encourage a relationship, and her active attempts to thwart the relationship between the child and the father, which it is said are consistent with her final orders that the father spend time with the child supervised for two hours a month indefinitely, including a potential relocation to an undefined and undisclosed area which could potentially have the effect of permanently disrupting the relationship between the father and the child.
Counsel for the father submitted that it was imperative that the father’s time with the child increase in circumstances where such an increase was consistent with the recommendations of the Family Consultant.
SUBMISSIONS OF THE ICL
The ICL submitted that time between the father and the child needs to increase, that the father has taken steps to improve his parenting attitudes and behaviours and has made remarkable progress in addressing what had in the past been identified as risk factors. Counsel for the ICL submitted that there had been no significant incidents of concern in the supervision reports and that the child should commence spending time with his father in a more natural environment.
Both the ICL and the father were not opposed to an order for supervision being made for a period of time, with the time to be supervised by the paternal grandfather.
SUBMISSIONS OF THE MOTHER
The mother was opposed to any increase in time between the father and the child and any lifting of supervision.
The mother contended that the father posed a significant risk of harm to the child. There has been no ability to test the denials of the father or his assertions that he has made significant improvements in his life. There has also been no opportunity to cross-examine the Family Consultant on her various opinions or recommendations.
The mother’s counsel submitted that the child should continue to spend time with the father under the existing regime of time. Such regime has to date seen the mother and child spend an hour and a half in the car delivering the child to a contact centre in Brisbane for the child to spend an hour with the father and then another one and a half hour trip in return. As indicated earlier, the mother said that this could change and that her enquiries revealed that time could be spent for two hours consistent with the existing order.
The mother’s counsel identified that the risk factors included the father’s past attempt to harm himself, threats to harm the mother, threats to burn down the home in which the mother and children live, and what were regarded by the mother as numerous breaches of existing orders.
The mother’s counsel submitted that the paternal grandfather was not an appropriate supervisor of the father’s time with the child. The mother’s counsel specifically relied on the following from the mother’s affidavit as the reasons why the paternal grandfather should not be a supervisor:
181. [X] has had little contact with extended family from birth. All grandparents live at a distance. My family are in Victoria as is [Mr Carrel’s] mother and brother. [Mr Carrel’s] father moved to QLD from Tasmania approximately 5 years ago or so.
182. [X] did occasionally see [Mr Carrel’s] father when we stayed 2 or three times and out camping. One time we stayed at [Mr Carrel’s] fathers place [X] was alone in the lounge room with [Mr Carrel’s] father and came out to the veranda where [Mr Carrel] and I were. He was sobbing and wouldn’t talk. I was really concerned about this and trying to console [X] as I had not seen [X] like that. At the time [Mr Carrel] said words to the effect, I remember when that happened to me and when I felt like that. I asked what [Mr Carrel] meant but [Mr Carrel] did not respond.
183. Around the same time [Mr Carrel’s] father watched all three children to allow [Mr Carrel] and I to get out for an hour or two. We were out for an hour and returned. [N] informed me that upon us leaving [Mr Carrel’s] father started on him about wearing shoes, turning out lights amongst other things. [N] said it was not so much what was asked but the tone and way he was spoken to left him feeling extremely uncomfortable and he requested not to be left there again.
184. We did not return to [Mr Carrel’s] father after this time.
185. [Mr Carrel’s] father and family engage in […] hunting as a hobby. They have guns and hunting equipment. [Mr Carrel] also goes hunting and informed me during the relationship that he was taken as a young child. It involves stalking, hunting prey as well as cutting the animals up and gutting them. [Mr Carrel] informed he was exposed to this at a young age and I am concerned if [X] was exposed to this he would not handle it emotionally or mentally.
The mother’s counsel conceded that in the event that the Court determined that the paternal grandfather was an appropriate supervisor, then the mother would consider a changeover with either herself or her nominee and the paternal grandfather at a McDonalds at Suburb L, obviating the necessity for the child to spend so much time in the car.
The mother said that the father has failed to take responsibility for his prior conduct and the Court should adopt a cautious approach and leave the orders as they are.
APPLICABLE LAW
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”), I set out in short form my reasons.
This is an interim hearing and there has been no cross-examination. By virtue of that fact, I am unable to make findings in relation to the disputed facts. However, just because I am unable to determine or resolve a disputed fact and/or assertion does not mean that I ignore the allegations of risk.
In Marvel & Marvel (No. 2) (2010) 43 Fam LR 348 (which has been cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), the Court observed:
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at [100] their Honours amplified their comments and said:
[100] The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Adamson & Adamson [2018] FamCA 523, McClelland J (as he then was) observed:
50.It is to be observed that that reference in SS v AH to "probabilities" does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, "possibilities" are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those "possibilities".
Parenting proceedings are governed by Pt VII of the Act.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC of the Act. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
The Full Court in Goode & Goode (2006) FLC 93-286 (“Goode”) set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. Consistent with the guidelines outlined in Goode and to the extent relevant and necessary, I have in these reasons identified the competing proposals of the parties, the issues in dispute, and the contested facts.
It has been clearly articulated in numerous authorities that the Court should not “lightly entertain an application to reverse” an earlier order unless it is satisfied that there are changed circumstances (in the sense that a new factor has arisen or some material factor was not disclosed at the previous hearing) which would justify the reversal (see Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”) at 78,095). It is sometimes inelegantly described as the rule in Rice and Asplund.
While no such submission was made, I will consider whether there is a change in circumstances.
In Freeman and Freeman (1987) FLC 91-857, Strauss J said at 76-470–76-471:
… Once the court … has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. …
The Full Court of the Family Court of Australia considered the so called rule in Rice v Asplund in Miller & Harrington (2008) FLC 93-383. Relevant passages from the majority judgment are set out in full below.
72. It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
73. The application of the rule occurs within proceedings to which the provisions of Division VII of the Act apply. More specifically, the application of the rule occurs as part of “child related proceedings” within the meaning of s 69ZM. Accordingly, the court hearing argument as to the application of the rule at a preliminary stage is bound to apply the provisions of Division 12A of the Act.
74. Included among the mandatory requirements upon a court are: the obligations to (as seen) “decide which of the issues in the proceedings require full investigation and which may be disposed of summarily” (s 69ZQ(l)(a)) and to "deal with as many aspects of the matter as it can on a single occasion" ( s 69ZQ(l)(g)).
75. The provisions of s 69ZR(I ), empower the court to '”make a finding of fact in relation to the proceedings”, to "determine a matter arising out of the proceedings” and to "make an order in relation to an issue arising out of the proceedings” if the court considers that “it may assist in the determination of the proceedings”. The section goes on to provide (s 69ZR(2)) that the court may do any of the matters mentioned “. . . at the same time as making final orders'”.
76. The terms of s 69ZN of the Act, which set out the “principles for conducting child related proceedings” also apply to a hearing in which the rule in Rice and Asplund is applied at a preliminary stage. In particular, s 69ZN(3) and (5) provide:
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
…
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned against family violence, child abuse and child neglect; and
(b) the parties to the proceedings against family violence.
77. In SPS and PLS (2008) FLC 93-363, Warnick J held:
64..... in strict logic, if a judge is unable to determine on the papers if a change of circumstances, sufficient to embark on a fresh hearing of a parenting issue exists, then what the judge should embark upon is a hearing directed to that question, not one directed to "how the welfare of the children should best be served''
65. However, ellipsis in logic or not, subsequent authority has clearly reiterated that if the rule is not applied as a preliminary matter, then the hearing that follows is a full hearing of the “custody dispute”
78. Those statements can be seen to be supported by the earlier authorities referred to by his Honour. (See paras 66 - 68 of Warnick J’s judgment). Warnick J goes on to say:
69..... In reality, the facts that relate to the best interests of children per se and to the determination of such questions as whether there has been a change of circumstances of sufficient magnitude to justify a fresh consideration of parenting arrangements are likely to be identical or at least intertwined and to the extent that the facts are otherwise, they may well not be susceptible of identification or assessment for weight until all of the evidence bearing upon factors that relate to a child's best interests are before a court. The nature of the hearing that follows if the Rice v Asplund rule is not applied as a preliminary matter, as described by authority, may well be the wise and practical choice.
79. Later, Warnick J says:
81. Thus, in my view, when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of the party to appear or some lack of compliance with form and procedure, but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will, or ought be, about the interests of the child in not being subjected to further litigation, is more powerfully in the child's welfare, than to allow the application to continue.
80. In our view, that passage need not be taken as saying that the only way in which the rule in Rice and Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest.
81. Nor, as presently advised, do we think that the authorities cited by Warnick J in SPS preclude the possibility that, in a "preliminary" hearing for the purpose of ascertaining if an application for parenting orders should go no further because of the rule in Rice and Asplund, some resolution of factual disputes may occur, for example, whether a change of circumstances has or has not occurred.
82. However, the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.
83. This observation may be behind the approach that either the case of the applicant for parenting orders is, at a preliminary stage, taken at its highest, or the hearing embarked upon is an enquiry into all matters relating to the best interests of the child or children.
84. On the other hand, there is authority to suggest that these are not the only legitimate procedures. In Collivas & Cassimatis [2007] FMCAFam 293, Wilson FM, after noting that one party submitted that the other's application should be summarily dismissed as it did not overcome the threshold imposed by cases such as Rice and Asplund, said:
... questions arise as to the procedure to be adopted on this application. The first question is whether the threshold question should be decided as a preliminary issue, or whether there should be a full hearing of the evidence. The second question is, assuming that the threshold question is decided separately how the evidence adduced by the parties should be treated for the purpose of determining that issue. For example, if the Court looks only to the affidavit evidence adduced by the applicant and determines whether, on that material, the case should be allowed to go forward, then it seems to me that there is no point allowing the respondent to put on further affidavit evidence. On the other hand, if in determining the threshold issue the Court effectively conducts a mini-trial, then the respondent should be afforded the opportunity she seeks to adduce further evidence in reply to that served late by the applicant.
85. Among the authorities to which Wilson FM referred was King & Finneran (2001) FLC 93-079 at p 88,367 where Collier J said:
44. To apply the test in Rice and Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings ....
86. Wilson FM also said, of the decision in L & L (1992) FLC iJ92-274, that the Full Court of the Family Court approved of the judge at first instance dealing with a question of whether to permit a re-opening of parenting issues as a preliminary issue and to restrict cross-examination accordingly. He said that, in that case, evidence was adduced from a court counsellor who was cross-examined and that the Full Court endorsed the approach taken in that case.
87. However, the learned Federal Magistrate continued:
18. What the cases do not make clear is the process that the court should follow if it decides the threshold question in advance on a preliminary basis. That is, should the application be dealt with as on a demurrer or strike out application, and the court only look at the material of the applicant and decide, on that material alone, whether, assuming it is accepted, there is sufficient evidence to warrant the earlier orders being revisited. Or should the court treat the application similarly to a summary judgment application, and look at the material of both sides, and decide whether there is a serious issue raised which justifies the earlier orders being revisited. Or should the court effectively conduct a trial on the preliminary issue, with evidence and cross examination on the alleged change in circumstances.
19. There is some guidance as to the approach to be adopted. In R & B H, supra, the use of language that the court should be left in no doubt that it is necessary to revisit the parenting orders supports a critical analysis of the applicant's material. Although the passage from King & Finneran seems to suggest that court looks at all material then available to the court, which encompasses the material from both sides, it seems to me that the court should logically follow a three step process, sequentially dealing with the three questions articulated in paragraph 18 above. Each case will vary of course as to the stage at which the decision can be made that there is/is not sufficient evidence to warrant a re-opening of the parenting issues. As the learned authors of Australian Family Law & Practice, Brown (sic) & Fowler, observe at [ 16-360], the Full Court of the Family Court has made it clear that the question of whether there were circumstances which required a reconsideration of a parenting issue might, but need not, be determined as a preliminary issue. However, the court may consider that in light of the alleged changed circumstances, it was more appropriate to consider all the facts of the case before deciding whether the changes (sic) circumstances existed. An applicant's material might disclose no change in circumstance such that the application can be summarily dismissed without a respondent being required to put on evidence. An applicant's material might raise the suggestion that there is a changed circumstance which requires investigation but after reading the respondent's material the court might be satisfied that there is nothing in the point raised. The court may, as a matter of discretion determine the threshold issue without testing the evidence. Alternatively there maybe contested issues of fact as to whether there are changed circumstances in which case a court may need to hear from witnesses and allow cross-examination.
88. In the following paragraph, Wilson FM set out passages from the decision of the Full Court of the Family Court in Saad and Saad (1993) FLC i]92-332.
89. We refer to several of the paragraphs quoted, as they bear on the question under discussion:
(3) Although it may be inappropriate, and is often unhelpful, in proceedings in relation to the guardianship and custody of or access to a child, to treat either party as bearing an onus of proof in relation to the welfare of the child, where a party applies for the variation or discharge of an existing order of that kind that party bears at least a forensic onus of placing before the Court sufficient evidence of changed circumstances since the making of the existing order upon which the Court could be satisfied that it is in the interests of the welfare of the child to vary or discharge that order. (Rice and Asplund (1979) FLC J90- 725; Freeman and Freeman (1987) FLC 9 l-857.)
(Emphasis in original)
I recognise that the existing orders for supervised time were made when there was not a comprehensive Family Report of the type that is currently before me. That expert evidence, which I accept albeit is untested, clearly recommends that there needs to be an increase in the child’s time with his father. Of the current supervision regime, the Family Consultant recorded as follows:
119. There have been fortnightly scheduled sessions of time for the father and child held at [P Contact Centre]. These sessions last for one (1) hour. Subpoenaed records of seventeen ( 17) session notes have been provided to the writer, noting that of these, four ( 4) were cancelled due to illness by the child and a further one (1) occasion due to it being Anzac Day (although not rescheduled). The writer has also reviewed five (5) brief audio clips as well as the e-mail and text message correspondences.
In respect of those reports, the Family Consultant said:
120. Whilst the writer does not wish to be professionally disrespectful to this valuable service, the criticisms of the father and some of the restrictions placed upon him in this time are assessed to be unnecessarily punitive. For example, there are some references made by the father to his life at home such as […] equipment, prior experiences of time with the child including shared experiences when attending with the child at the previous contact centre, which the writer considers are natural interactions and conversations one might hold with a child under such circumstances, but which he is asked to cease. The father is not noted to be negative or critical of the other parent, he does not use coercive language or tactics designed to extrapolate information from the child about his or the mother's circumstances and he makes effort to quickly move the child onto other subjects if these are introduced by [X].
121. The writer also finds the restriction on the father from being able to provide Easter eggs (and other toys) highly restrictive and unnecessary. These are the limited occasions those who are in a supervisory relationship maximise with their child seek to make connection. In the transactional world of a child of this age, such provision of gifts and celebration of special occasions is a natural, and acceptable way to seek to maintain and strengthen their attachment and sharing of each other's world. This should be encouraged, albeit with some boundaries so that the child does not create expectations which cannot later be translated.
122. For any parent restricted in their time with a child, any and all opportunities for engagement and adopting an inclusive role in their day to day is often sought and can be understood in the context of a parent seeking to bond and form part of the child's life in any way possible. While the ‘over spoiling’ of any child can have negative consequences and the writer is not suggesting this should be encouraged on every visit, to deny this completely is considered to be unnecessarily restrictive.
123. These sessions are also noted to be extremely short, and if the father's suggestion of being told how to play, what toys and food had can present with, where to place his hands etc are to be accepted this appears to be an unnecessary level of restriction and supervision, noting the allegations of the father do not relate to neglect, sexual abuse or direct occasions of the father causing physical harm to the child.
Even within these limitations, I am satisfied that there has been established a change of circumstances that warrants a reconsideration of the child’s time with his father. That change of circumstances includes that the current supervision regime is seemingly unduly restrictive and involves a significantly disproportionate large amount of travel for a positive but short term benefit.
PRIMARY AND ADDITIONAL CONSIDERATIONS
In applying the primary considerations, the benefit to the child of having a meaningful relationship with both parents is subservient to the need to protect the child from the risks and harms identified in the subsection.
A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright (2007) 37 Fam LR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 Fam LR 439).
The parties are at issue as to what would constitute a meaningful relationship between the child and his father. In circumstances whereby I am only making interlocutory orders, I am satisfied that the orders I make for the short time in which they will operate are sufficient to ensure that the child is able to maintain, to the extent possible, a meaningful relationship with his father.
As stated, I am required when applying the primary considerations to give greater weight to the need to protect a child from harm than to the benefit to the child of a having a meaningful relationship with the child’s parents.
However, in circumstances where I am unable to make a clear finding about the allegations of risk, I recognise that I must proceed cautiously and conservatively.
A considerable focus for the purposes of interim proceedings is a consideration of the factors identified in the additional considerations. I place no regard on any view that might be expressed by the child given his age. The matters identified in s 60CC(3)(f) and (i) are relevant, addressing the insight and capacity of the parties to place the child’s needs above their own and the attitudes of the parties to the responsibilities of parenthood. In that respect, the Family Report is highly critical of aspects of each party’s historical care and raises concerns about the mother’s attitude currently. That said, I am unable to make any findings on this matter in circumstances where, albeit there has been cross-examination of the mother, there has been no cross-examination of the father.
I am satisfied on the material before me that the primary consideration of the need to protect the child from a risk of harm is the most pressing and prevailing consideration, and overwhelms any of the other matters that might otherwise be a relevant consideration within the terms of s 60CC(3).
This is a case about risk. There is a non-existent co-parenting relationship, a high level of distrust and allegations of risk. I am therefore not satisfied that an unsupervised regime of time is in the child’s best interests.
A continuation of the current regime as proposed by the mother within the confines of P Contact Centre for a period of one or even two hours carries with it the inevitable consequence that the child must travel in a car for an hour and a half each way and with the obvious limitations as identified by the Family Consultant in her report at paragraphs 120 to 123. This level of restriction as identified in those paragraphs is likely to impede rather than enhance the development of a relationship between the child and his father.
A regime that involves supervision outside of P Contact Centre on balance has the advantage of ensuring that the child spends time with his father that in all probability will be less restricting and therefore more likely to be more enriching than it might otherwise have been to date. I am also conscious of reducing the amount of travel that the mother must undertake to deliver the child to the contact centre as well as reducing the amount of time that the child must otherwise spend in a motor vehicle. Such a proposal would I find be in the best interests of the child.
The mother’s counsel indicated that the current supervision service does not have the capacity to offer more than two hours of supervision.
There was no alternative supervisor put forward that could meet these dual considerations other than the paternal grandfather. The mother raised concerns about the suitability of the grandfather to undertake supervision.
I note the paternal grandfather was interviewed by the Family Consultant. It was her view that supervision was unnecessary. I further note that the Family Consultant in relation to any ongoing role in relation to the paternal grandfather recorded the following:
139. It is therefore detemined that the father has made the necessary and sustained effort to position himself to be a safe and responsible parent and that his time with [X] should begin to increase incrementally. In support of such increases, it would be useful to have the father supported in this role by his father, [Mr K], who the writer assessed would be able to fulfil this role safely. The Court may wish to seek an undertaking from [Mr K] to ensure that he understands his role to ensure the father acts in a safe and responsible manner during the time for [X].
The mother’s objections to the paternal grandfather are enumerated in her affidavit. Her objections relate to the lack of engagement that the paternal grandfather has had with the child to date, what happened on one occasion which made the child cry, what was said by the mother’s child of an earlier relationship to be the tone and the way in which he was spoken to by the paternal grandfather, and that the paternal grandfather and the father had engaged in shooting and hunting as a hobby, making the mother concerned that the child would be exposed to this which he could not emotionally or mentally handle.
Taking into account both the mother’s objections and the observations of the Family Consultant, I am satisfied, subject to the paternal grandfather giving an undertaking, that he will be present at all times, has an appreciation of the obligations imposed upon him as a supervisor and, subject to him undertaking not to take the child hunting or shooting, that he is in all the circumstances an appropriate supervisor for the child.
I am satisfied that it is appropriate therefore that the father commence spending time with the child at a venue other than P Contact Centre and propose to adopt the proposal of the mother that the changeover take place at a McDonalds at Suburb L each alternate Tuesday, with the time to be supervised by the paternal grandfather.
There was no reason advanced to me as to why the time should be limited to two hours and I am satisfied that the time should incrementally increase albeit on a supervised basis.
The mother wished to avail herself of an opportunity for the delivery of the child by someone other than herself and agreed that it should not be her partner. I am satisfied that it is appropriate that some other person (if the mother so wishes) subject to it not being Mr C can deliver and collect the child at the changeover location.
I am concerned about the number of cancellations of the father’s time with the child. If the child is not made available for time in accordance with the orders, then the father’s time is to occur the next day.
I propose to make orders that give effect to the above.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 30 August 2023
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