JUKES & KEELING

[2016] FCCA 2137

FEDERAL CIRCUIT COURT OF AUSTRALIA

JUKES & KEELING [2016] FCCA 2137

Catchwords:
FAMILY LAW – Interim parenting – recovery order – young child – allegations of family violence by each of the parents – risk to child – presumption of equal shared parental responsibility rebutted – child to live with mother and spend time with father.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA, 67Q, 67T, 67U, 67V

Cases cited:

Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

Keats & Keats [2016] FamCAFC (delivered on 16 August 2016)
SS v AH [2010] FamCAFC 13
Mazorski & Albright [2007] FamCA 520 at [26]

McCall & Clark [2009] FamCAFC at [121]
Eaby & Speelman (2015) FLC 93-654 at [18]

Salah & Salah [2016] FamCAFC 100 at [35]

Applicant: MR JUKES

Respondent: MS KEELING

File Number: PAC 2767 of 2016

Judgment of: Judge Obradovic

Hearing date: 15 August 2016

Date of Last Submission: 15 August 2016

Delivered at: Parramatta

Delivered on: 24 August 2016

REPRESENTATION

For the Applicant: Mr Vasilli

Solicitors for the Applicant: Michael Vasilli Barristers & Solicitors

Counsel for the Respondent: Ms Christie

Solicitors for the Respondent: John R Quinn & Co

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The mother shall have sole parental responsibility for the child X born on (omitted) 2013.

2. The child shall live with the mother.

3. Commencing 28 August 2016 the child shall spend time with the father:

   (a)each week from 4pm Sunday to 10am (or before day care) on Wednesday;

   (b)commencing at 3pm on Christmas Day and concluding at 3pm on Boxing Day in the year 2016 and each alternate even ending year thereafter;

   (c)commending at 3pm Christmas Even and concluding at 3pm on Christmas Day in the year 2017 and each alternate uneven ending year thereafter;

   (d)On Father’s Day from 10am to 5pm; and

   (e)at all other times as agreed to between the parents in writing.

4. Pursuant to s68B of the Family Law Act1975 the mother is restrained by injunction from:

   (a)physically disciplining the child;

   (b)assaulting the child; and

   (c)permitting or allowing any member of her household or extended family to do so.

5. Pursuant to s68B of the Family Law Act1975 the parties are both restrained from denigrating any member of the other’s household in the presence or hearing of the child or permitting or allowing any member of their household to do so.

6. At the commencement of the time the child is to spend with the father, the father shall collect the child from the mother’s residence.

7. At the conclusion of time the chid is spending with the father, the mother shall collect the child from any child care centre which the child may from time to time attend or otherwise from the father’s residence.

8. The mother and father shall, as soon as reasonably practicable but no later than six months from the date of these orders, enrol in a parenting course such as Triple P with Parenting NSW or Keeping Kids in Mind with Catholic Care and complete such course at the first available opportunity.

9. The matter is listed for further directions at 11.30am on 30 November 2016.

IT IS NOTED that publication of this judgment under the pseudonym Jukes & Keeling is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2767 of 2016

MR JUKES

Applicant

And

MS KEELING

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are interim parenting proceedings in respect of X, who was born on (omitted) 2013. She is not yet three years old. Her parents are the Applicant father and the Respondent mother and they have been separated since X was 13 months old.

2. What precipitated the proceedings is that since 5 June 2016 X has been living with her father and spending supervised time with her mother, which is contrary to the arrangement the parties had in place.

3. The father relied upon the following documents and evidence:

   a)Initiating Application filed 17 June 2016, although the orders sought by the father were as contained in a Short Minute handed up at hearing;

   b)Affidavit of Mr Jukes filed 17 June 2016;

   c)Affidavit of Mr Jukes filed 15 August 2016;

   d)Affidavit of Ms V filed 15 August 2016; and

   e)Notice of Risk filed 17 June 2016.

4. The mother relied upon the following documents and evidence:

   a)Response filed 13 July 2016;

   b)Affidavit of Ms Keeling filed 13 July 2016;

   c)Affidavit of Ms Keeling filed 10 August 2016;

   d)Affidavit of Ms S filed 10 August 2016;

   e)Notice of Risk filed 13 July 2016;

   f)Exhibit 1 – being the entire bundle of documents produced under Subpoena by (omitted) Brighter Futures (Sleeve 3);

   g)Exhibit 2 – being three tabbed pages from the material produced under Subpoena by (omitted) Medical Centre (Sleeve 2); and

   h)Exhibit 3 – being the Exhibit to the Affidavit of the mother sworn 10 August 2016.

The Law

1. In proceedings for Recovery Order, the Court may, subject to section 67V of the Family Law Act1975 make such Recovery Order as it thinks proper (s67U). Pursuant to section 67V in deciding whether to make a Recovery Order in relation to a child a Court must have regard to the best interest of the child as the paramount consideration. Standing to apply for a Recovery Order is set out in s67T.

2. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.

3. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

5. In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. 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 the child.

6. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence: s60CG (1)(b)[1]. The Court may include[2] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [1] See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]

   [2] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

7. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.[3]

   [3] s61DA(3)

8. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents.  If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[4]

   [4] MRR v GR [2010] HCA 4 at [15]

9. The Full Court in Goode v Goode[5] mandated that this legislative approach must be followed in all parenting cases and in particular set out the procedural steps to be followed on an interim application, such as this one, namely:

   [5] (2007) 36 Fam LR 422, (2006) FLC 93-286

   (a)     Identifying the competing proposals of the parties;

   (b)     Identifying the issues in dispute;

   (c) Identifying any agreed or uncontested relevant facts;

   (d)     considering the matters in s.60CC that are relevant and, if      possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)     deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)     if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)     if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;

   (h)     if equal time is found not to be in the child’s best interests, considering  making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;

   (i)     if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of  consideration of one or more of the matters in s.60CC;

   (j)     if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and

   (k)     even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”

10. As stated by the Full Court in Keats & Keats [2016] FamCAFC (delivered on 16 August 2016) at [9]

    …the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may 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.

Competing Proposals

1. The father seeks orders that the child live with him and spend supervised time with the mother every alternate Saturday and every alternate Sunday from 10am to 4pm. The father seeks a number of mutual restraints. The father also seeks a number of other orders, the detail of which is set out in the father’s proposed Short Minute of Order.

2. The mother seeks a recovery order, that she have sole parental responsibility for the child, that the child live with her and that she spend time with her father in 2016 from 5pm Sunday to 5pm Tuesday every week, and in 2017/18 for the time to conclude before childcare on Tuesday.  There are also a number of other orders sought by the mother, the detail of which is set out in the mother’s Response.

Uncontested Relevant Facts

1. The parents were married on (omitted) 2006 and separated on 11 November 2014.

2. There is one child of the relationship, being the subject chid of these proceedings.

3. On 7 April 2016 the parents entered into a Parenting Plan, whereby X commenced living with each of her parents in what can fairly be described as an equal shared care arrangement (although there is dispute about the parties keeping to this arrangement).

4. From the age of one until 2 June 2016, X attended child care at the (omitted) Child Care . X attended child care three days per week.

5. The father has not sent X to child care since 2 June 2016.

6. X currently resides with her father and spends supervised time with her mother.

Section 60CC Factors

Views of the Child

1. X is too young for her views, which are in any event unknown, to be given any weight.

Nature of the child’s relationships with her parents and significant others

1. The mother asserts that she has been X’s primary carer.

2. The evidence in the mother’s case is that X has a close and loving relationship with her mother and the maternal grandmother.

3. The father asserts that both he and the mother cared for X both before and after separation, albeit at different rates at different times, but says that X has a strong attachment to both of her parents. 

4. The notes from Phoenix Rising, the organisation supervising the mother’s time with the child at the time of hearing, indicate that the child has a close and loving relationship with her mother and the maternal grandmother.

5. The notes from Phoenix Rising also indicate that the child has a close and loving relationship with her father and she was observed to be readily comforted by her father when she was distressed.

Parent’s involvement with decision making, spending time and communicating with the child and Maintenance of the child

1. There is conflicting evidence about what time the child was spending with each of her parents until early June 2016.

2. The mother says that the time the father has spent with the child has been inconsistent and varied. The father disagrees with such an assertion. However, the Court is able to infer from the evidence of both parties that after the father moved out of the former matrimonial home the child primarily lived with the mother and spent time with the father.

3. The father does not pay child support and has not paid for any day care fees, which the mother meets in their entirety.

Likely effect of change and practical difficulty of spending time

1. X has for most of her life lived with the mother, spending time including overnight time with the father post separation.

2. X has been attending day care since she was one.

3. The father says in his Affidavit filed 15 August 2016:

   I want X to attend child care two (2) days a week and not four (4) days as I would like X to spend more time with me. I believe it is important for X to spend more time with her parents than at child care… (paragraph 4)

   …

   I believe in parenting (sic) raising their children themselves as opposed to just leaving them at child care and at grandparent’s house. I also acknowledge the importance of X spending time wither her grandparents and with other children of her age, however, the priority is firstly for X to spend time with her mother and father. (paragraph 41)

4. The mother says in her Affidavit filed 13 July 2016:

   X loves going to day care. She likes her friends and her educators. She knows their names. It’s a familiar environment for her where she feels safe…Whenever I go and pick her up, she is always running around and playing with her friends and being adventurous.

5. On 3 June 2016, an early intervention worker from Brighter Futures (who were working with the mother at the time) telephoned the child’s day care and spoke with the Director, Mr A.  The notes of that telephone conversation records as follows:

   a)The father will sometimes drop X off and pick her up 20 minutes later, sometimes X won’t come in or the father will pick her up early. Sometimes X is at day care for only an hour.

   b)The Director could not confirm or deny whether the father’s inconsistency in taking X to day care has impacted on the child’s behaviour.

   c)X is usually an engaged, happy child.

   d)X does not have any friends as yet.

   e)Drop offs are usually difficult but there are more tears with dad.

   f)X talks a lot less than her peers and this was a little concerning to the Director but it was nothing of major concern.

   g)The centre had to move X from the toddler room as she was hitting and biting all of the younger children but since moving the biting and hitting has been less frequent.

6. The evidence from the subpoenaed material which was tendered in the mother’s case, is prima facie, contrary to the mother’s evidence about how much the child enjoys attending day care.

7. The independent evidence is that the child does not have any friends at day care, that she bites and hits other children (which behaviour is on the decrease) and that drop-offs are usually difficult, particularly with the father. Both parties propose for X to attend day care.

8. There is no practical difficulty with the child spending time with either of her parents even on a supervised basis.

9. Since separation the parents were able to manage the child spending time and living with both her parents and moving between households.

10. If a long term supervision order is made, that is likely to have an impact upon the child’s relationship with her mother in the long run.

11. An order for supervised time between the child and the mother for a short period is not going to cause any significant change to the present circumstances.

Capacity to provide for child’s needs and the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. Both parents are able to meet the child’s physical needs. There is no evidence which would indicate that either parent is unable to meet the child’s emotional needs.

2. It was submitted on behalf of the mother that the father’s actions in retaining the child and removing her from her usual routine was not child focused.

3. The reason the father gives for his retaining the child is that he was seeking to protect her from harm which he considered there was an unacceptable risk of. While on the one hand the father’s actions may be seen as lacking in child focus, they may also be seen as being protective of the child.

4. The mother alleges that the father has no routine, no schedule, no consistency and no stability or activities for the child. The father denies these allegations and gives evidence about such matters in his Affidavit, for example about activities in which he and the child engage. While the routine in his household may not be as regimented as that in some other households, the child appears to be well looked after by the father.

5. The father says that the child has been toilet trained since December 2015 and yet that the mother keeps putting her in nappies.

6. It appears to the Court that the mother and father have very different parenting styles which gives rise to significant parental conflict. The parents would both benefit from gaining an understanding of parenting in different ways and that their child may be enriched by experiencing the different parental approaches if such differences were handled appropriately by the parents.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents; if the child is an Aboriginal

1. The father works one day per fortnight and is available to care for the child on all other days.

2. The father identifies and is accepted as Aboriginal.

3. The mother works full-time and is available to care for the child during the times she is not at work.

4. The mother is of (nationality omitted) heritage. The mother disputes that the father is Aboriginal.  The father fears that the mother will not encourage the child to be proud of her paternal Aboriginality.

5. If the mother is non-accepting of the father’s heritage she will not promote the child’s right to enjoy her Aboriginal culture.

Family Violence

1. There are allegations of family violence, abuse and/or neglect of the child by both the mother and the father.

2. The mother alleges that:

   a)the father abused alcohol in the past;

   b)she has concerns for his mental health;

   c)on 24 April 2010 the father assaulted her when she returned home from a night out by grabbing her and putting a hand over her mouth;

   d)on 22 September 2013, while heavily pregnant and while the father was filming the parties’ dog who was cowering due to the parties’ argument, the mother tried to take the camera off the father, scratched him on the face and arm in the process and he pushed her backwards causing her to hit her head on the wall and fall down;

   e)on 22 January 2015, the mother alleges the father sexually assaulted her (the alleged assault was apparently reported by the father to the mother – she was not aware of it until he told her about it);

   f)in about late 2015 each of the parties had applied for a private Apprehended Violence Order against the other but then each of the parties withdrew their applications; and

   g)on 24 May 2016 the mother reports feeling frightened that the father would keep returning to the former matrimonial home.

3. Even if these allegations were not disputed by the father, which they are, the mother’s evidence (once properly tested) may well fall short of the definition of family violence in s4AB.

4. The mother alleges that the father is emotionally and psychologically damaging the child by withholding her from her mother. There is no expert or other probative evidence on the effect of the child the separation of mother and child has had since early June 2016. The objective evidence, being the notes from Phoenix Rising, is that the child appears to have a loving bond with her mother.

5. The mother makes a number of other blanket allegations about the effect of the father’s parenting on the child, and also raises concerns about a possible impact of the father’s alleged mental health on the child. There is no probative evidence about any of these matters.

6. The mother and the maternal grandmother allege that the father neglects the child by not looking after her physical needs properly, for example that the car in which he drives is unhygienic and that when dropped off at her grandmother’s in 2015 she was ‘always not fed, not dressed appropriate to the weather and looked messy’. The father denies these allegations. The assertion that the child was ‘always not fed’ when dropped off at the grandmothers for example is simply an opinion, the basis of which has not been stated. The evidence of these matters in the mother’s case is of very little weight.

7. The mother does not press for any orders for supervision of the father’s time with the child.

8. The father alleges that:

   a)The mother abused alcohol in the past and he has concerns that she continues to do so;

   b)During the parties’ relationship, the mother would scream and shout at the father in front of the child;

   c)In about mid-January 2014, the mother hit the father in the face while she was holding the child. The father was trying to go to work but the mother was insisting that he had to care for the child and that he had to take the child with him; and

   d)At times after separation, when he picked the child up from child-care and returned to the former matrimonial home with the child (where the mother and child were living and where the father was no longer living) the mother would be aggressive towards the father upon finding him in the home[6].

   [6] The father, it is alleged, did not have the mother’s permission to be in the home

9. On 3 May 2016, the father alleges that the mother tried to run him over in her car while the child was in the car. The mother denies this allegation. The parties’ version of events is not too dissimilar. Without testing the evidence, it is not possible to make any findings about this matter. However, at its highest, it is a concerning allegation.

10. The police have issued either an interim or a provisional Apprehended Violence Order after the father reported the incident to the police. The hearing in respect of a final order is yet to take place. There are no police records available at this interim stage.

11. The version of events recorded in the documents produced under subpoena from Brighter Futures, which was tendered, read:

    [the mother then] tried to run him down with their child in the back of the car, he said he wasn’t sure how deliberate it was so didn’t call the police. [the father said] that they did not sustain any injuries although the impact of the emergency stop was fierce and the seat belt may have been constrictive for X.

12. In November 2015, after spending time with the mother, the father observed red marks on the child’s neck and back.

13. The father telephoned the mother to ask her how the red marks happened, and she said “It wasn’t me.” The conversation was very limited.

14. The father says that he took the child to the doctor. The notes of the medical centre where the child was said to have been taken by the father on this occasion have no record of a visit at this time. The father says that the doctor told him “I can’t tell you exactly how she got the marks or where they were from.”

15. The father says that on 3 June 2016[7] after the child had spent time with the mother, when he bathed her he observed red marks on the right side of her neck and back. The child said “Mummy did it.” What the mother is alleged to have done is not stated. The father says he didn’t ask the mother about the marks because he knew she would deny it. The matter was not reported to the police nor did the father take the child to obtain any medical assistance. The marks disappeared the following day.

    [7] The father’s affidavit filed 17 June 2016 refers to this incident as having occurred on 3 June 2016. During submissions, it was said that the date should be amended to 5 June 2016. The child spent time with the mother after 3 June 2016. The child has not spent time with the mother since 5 June 2016.

16. The father submits that in the context of having observed red marks on the child in November 2015, the father’s evidence of having observed red marks on the child on 3 June 2016, is sufficient for the Court to make a finding that there is an unacceptable risk of harm to the child in the mother’s care. 

17. In circumstances where the father had sworn and filed an Affidavit on 17 June 2016, alleging that the red marks were observed on 3 June 2016 (a date which is referred to more than once in the father’s Affidavit), then seeking to ‘amend’ the date in the sworn evidence through submissions on the day of the interim hearing and where the child spent time with the father after 3 June 2016, the Court is very concerned about the probative value of the father’s evidence and the allegations made.

18. In any event, the red marks said to have been observed on the child on 3 June 2016 disappeared the next day. Their source is not known, except that ‘mummy did it’. How and what the mother is alleged to have done (both by the child and to the child) is simply not known.

19. There was no reported stress of the child or any concerning behaviour following the observations of the red marks either in November 2015 or June 2016.

20. I am urged by the father to make a finding that the mother poses an unacceptable risk of harm such that only supervised time between the mother and child would ameliorate such harm.

21. Having considered the parties’ evidence and submissions made on behalf of each of them, I am not satisfied that there is an unacceptable risk of harm to the child if she was to spend time with the mother unsupervised. 

Institution of further proceedings and other relevant matters

1. These are only interim orders and it is likely that if the matter proceeds to final hearing, there will be a time period of at some twelve months before the matter is decided on a final basis.

Primary Considerations

1. The Act does not mandate the discussion of considerations under s60CC in any particular order and it is well recognised that additional considerations may outweigh primary considerations.[8]

   [8] see for example Slater & Light [2011] FamCAFC 1at [45]

2. In applying the primary considerations set out in sub-s 60CC(2), the Court must give greater weight to the consideration set out in paragraph (2)(b), namely the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. It has been held that a meaningful relationship “is one which is important, significant and valuable to the child”:Mazorski & Albright[9] and cited with approval by the Full Court in McCall & Clark.[10] The focus is not on the relationship as such but on the benefit the relationship might have for the child.[11]

   [9] [2007] FamCA 520 at [26]

   [10] [2009] FamCAFC at  [121]

   [11] Ibid at [122]

4. Having regard to the matters set out above dealing with allegations of domestic violence, the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect and family violence is at the forefront of the Court’s deliberations.

5. There can be no doubt that the child benefits from having a meaningful relationship with both of their parents. However, that benefit needs to be weighed against the risk to the child.

6. It does not mean that merely because there are facts in dispute that the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts.[12] Recent Full Court authority suggest a cautious approach when dealing with allegations of family violence, particularly at the interim hearing level, when contested findings of fact cannot be resolved.[13]

   [12] Eaby & Speelman (20150 FLC 93-654 at [18] as cited by the Full Court in Salah & Salah [2016] FamCAFC 100 at [37]

   [13] Salah & Salah [2016] FamCAFC 100 at [35]

7. There are some risks of harm to the child, if the father’s evidence is taken at its highest. This is recognised and acknowledged in the orders which are made, in particular in relation to the restraints which I have made. The risks to the child do not warrant the supervision order sought by the father in his Amended Response.

8. The orders which are made provide safeguards for the child. They also provide for mutual restraints as sought by the father.

Parental Responsibility[14]

[14] S61DA

1. When making an interim order the presumption is rebutted where it would not be appropriate in the circumstances for the presumption to be applied when making a parenting order.

2. There is sufficient evidence of poor behaviour, lack of a child focus by both parents, poor communications and significant conflict between the parties that make the sharing of parental responsibility very difficult and not in the child’s best interest[15].

   [15] Having considered the s60CC factors earlier in these reasons

3. I am satisfied that in all of the circumstances the presumption of equal shared parental responsibility is rebutted.

Conclusion

1. In all of the circumstances and for all of the reasons set out above, it is in the children’s best for orders to be made as set out at the forefront of these reasons.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 24 August 2016