Kane & Bakker

Case [2022] FedCFamC1F 699

Federal Circuit and Family Court of Australia

(DIVISION 1)

Kane & Bakker [2022] FedCFamC1F 699

File number(s): SYC 8109 of 2018
Judgment of: AUSTIN J
Date of judgment: 30 August 2022
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Parenting – Where the father seeks review of an order made by a Senior Judicial Registrar dismissing his application to vary interim parenting orders – Parental responsibility – Where neither party sought an order for the allocation of parental responsibility and will retain the parental responsibility they have according to law – With whom the child shall live – Where there was no dispute the child should live with the mother – With whom the child shall spend time – Where the regime should remain unchanged, subject to the child spending some additional holiday time with the father – Injunction – Where the mother is restrained from arranging events or appointments for the child on the days she is due to spend with the father – Orders made – No order as to costs.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65AA, 65DAA
Cases cited:

Banks & Banks (2015) FLC 93-637

Goode & Goode (2006) FLC 93-286

Phillips & Hansford (2019) FLC 93-917
Division: Division 1 First Instance
Number of paragraphs: 41
Date of hearing: 30 August 2022
Place: Sydney
Counsel for the Applicant: Ms Spain
Solicitor for the Applicant: Fox & Staniland Lawyers
Counsel for the Respondent: Mr Sansom SC
Solicitor for the Respondent: ATW Family Law
Counsel for the Independent Children's Lawyer: Ms Carr
Solicitor for the Independent Children's Lawyer: Stidwell Lawyers

ORDERS

SYC 8109 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR KANE

Applicant
AND:

MS BAKKER

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

AUSTIN J

DATE OF ORDER:

30 AUGUST 2022

THE COURT ORDERS THAT:

1.All former orders relating to the child X, born in 2018, are discharged.

2.The child shall live with the mother.

3.The parties shall do all things reasonably necessary to ensure the child spends time with the father:

a.Until the commencement of the 2023 school year:

i.Each Wednesday from 9:30 am to 5:00 pm, confined to the local government areas of City RR, TT Region and City SS, commencing on Wednesday, 31 August 2022.

ii.Each alternate weekend from 9:30 am on Friday to 4:00 pm on Sunday, commencing on Friday, 9 September 2022.

iii.From 4:00 pm on Sunday, 25 September 2022, to 4:00 pm on Tuesday, 27 September 2022.

iv.From 9:30 am on 29 December 2022 to 4:00 pm on 1 January 2023.

v.From 9:30 am on 9 January 2023 to 4:00 pm on 13 January 2023.

b.From the commencement of the 2023 school year:

i.Each alternate weekend from 5:00 pm Friday until 5:00 pm Sunday, commencing on the first Friday of the school term.

ii.For the first five contiguous days of the Autumn, Winter and Spring school holidays, commencing at 9:30 am on the…

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AGLC
Kane & Bakker [2022] FedCFamC1F 699
Case
[2022] FedCFamC1F 699
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of Kane & Bakker involves a dispute between the parents regarding the care and parenting arrangements for their child. The Independent Children's Lawyer (ICL) sought specific orders related to the child's welfare, while the father and mother presented their respective affidavits and evidence to support their positions. The central legal issues before the court were to determine the appropriate allocation of parental responsibility and the best interests of the child concerning their care arrangements. The court had to consider the statutory criteria outlined in section 60CC of the Act, particularly in light of the interim nature of the hearing.

The court approached the case with the understanding that interim proceedings required a more streamlined process, focusing on the less contentious matters and the agreed facts. The primary consideration was the child's best interests, with the court mandated to regard this as the paramount consideration. The court noted that the evidence did not suggest that the child needed protection against abuse, neglect, or family violence, and neither parent was criticised for lacking parenting capacity. The court identified that the child's sensitivity and apprehension about changes in arrangements were relevant factors, but the lack of tested evidence meant no definitive findings could be made. The court decided that the existing fortnightly care arrangement should be maintained, with slight adjustments to the holiday schedule to accommodate the father's and ICL's proposals. The court found that the child could handle spending several consecutive nights with the father during the school holidays, which was a relatively minor change to the existing arrangements.

The court concluded that the presumption of equal shared parental responsibility applied, but it was not appropriate to apply this presumption in making the interim order due to the child's sensitivity and the need for stability in their care arrangements. The court ordered that the existing fortnightly care arrangement should be maintained, with slight adjustments for the Spring and Summer holidays. The court's decision aimed to balance the child's best interests with the need for minimal disruption to their care during the interim period.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Independent Children's Lawyer (“the ICL”) sought the orders in the minute of order she tendered (Exhibit ICL1).Evidence The father relied upon his affidavit filed on 26 August 2022, together with the unattached exhibits thereto (Exhibit F1). The mother relied upon her affidavit filed on 24 August 2022, together with the unattached exhibits thereto (Exhibit M1). The ICL adduced no evidence.Legal Principles Orders in respect of children are made under Pt VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B). When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC). The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration. Those principles to which I have just adverted apply just as much in interim contests as in final proceedings. In Goode & Goode (2006) FLC 93-286 the Full Court said:68.… [T]he procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future. Further, a paucity of uncontested evidence means that only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim proceedings should be confined to only those issues which, in the best interests of the child, require determination prior to proper determination at trial. Not every s 60CC factor need be discussed in that process (Banks & Banks (2015) FLC 93-637 at [47]–[50]). The individual factors within s 60CC of the Act need not be recited like a mantra in every case. Only those factors which are relevant need be addressed (Phillips & Hansford (2019) FLC 93-917 at [43]).Best Interests - primary considerations

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Neither party asserts the child needs protection against the risk of harm which might be sustained due to subjection or exposure to abuse, neglect or family violence while in the care of the other (s 60CC(2)(b)).Best Interests - additional considerations As I have already indicated, it is only necessary to address the factors under s 60CC(3) of the Act which are relevant. Few of them are, but none were expressly addressed by the parties or the ICL. The mother contended changes to arrangements might deleteriously affect the child because she is sensitive (s 60CC(3)(d)), but I only accept that submission to a point. Although the child was to begin spending overnight time with the father in or about July 2021, it did not actually start until about April 2022. The mother says the child is apprehensive about visiting the father, whereas the father contends the child is apprehensive about returning to the mother. No factual finding is possible on untested evidence in an interlocutory hearing. Neither party criticises the other as lacking parenting capacity, so that cannot be the reason for the child’s apprehension. She might be apprehensive about being caught in the middle of parental conflict over her future. No doubt that will be an issue explored at trial. In the meantime, the mother accepts the child loves the father, accepts the child must spend substantial and significant time with him, and accepts that she shoulders the responsibility to ensure it occurs and the child’s anxiety is controlled. However, the agreed fact about the child’s anxiety militates against any change to the existing fortnightly regime on an interlocutory basis, save in respect of holiday time. Some slight adjustments can be made in that regard for the Spring and Summer holidays, consonantly with the proposals of the father and the ICL. The child is now broaching five years of age and the mother admits she is resilient enough to begin school in January 2023. The mother proposed, in her most recent response filed in May 2022, that school holiday time should be spent by the child and the father together, once the child commences school in 2023. The child is likely capable of having several consecutive nights with the father in the upcoming school holidays, albeit several months earlier than the mother apparently wants. Although the mother and child live in City RR and the father lives in Sydney, there is no practical difficulty in the child being exchanged between them (s 60CC(3)(e)). They both envisage similar parental regimes with only relatively slight differences. None of the other factors prescribed by s 60CC(3) of the Act appear to be relevant.Parental Responsibility The law requires the Court to consider the allocation of parental responsibility whenever a parenting order is to be made (s 61DA; Goode & Goode). The presumption of equal shared parental responsibility is not rendered inapplicable by the evidence in this case (s 61DA(2)). However, I apply s 61DA(3) of the Act, which provides as follows:Presumption of equal shared parental responsibility when making parenting orders…(3)When the court is making an interim order, 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.