Kane & Bakker
[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 first Saturday of the holidays.
4.For the purpose of implementing Order 3(a)(i), the father shall collect the child from and return the child to the mother’s home.
5.For the purpose of implementing Order 3 (aside from Order 3(a)(i)):
a.The father shall collect the child from the mother’s home at the commencement of visits; and
b.The mother shall collect the child from the father’s home at the conclusion of visits.
6.The mother is restrained from organising activities or appointments for the child on days she is due to spend time with the father.
7.Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
8.Aside from costs:
a.The Amended Application in a Proceeding filed on 11 July 2022 is dismissed;
b.The Response to an Application in a Proceeding filed on 24 June 2022 is dismissed;
c.The Application for Review filed on 29 July 2022 is dismissed;
d.The application for orders in the father’s Case Outline Document filed on 29 August 2022 is dismissed;
e.The application for orders in the mother’s Case Outline Document filed on 29 August 2022 is dismissed;
f.The Independent Children’s Lawyer’s application for orders contained in Exhibit ICL1 is dismissed.
g.Any and all outstanding applications for interim relief under Part VII of the Family Law Act are dismissed.
BY CONSENT, IT IS FURTHER ORDERED THAT
9.No order as to costs in respect of today’s interim hearing.
NOTATION
A.Orders 1, 2, 3, 4 and 6 made by the Senior Judicial Registrar on 21 July 2022 remain operable.
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 Kane & Bakker has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
AUSTIN J:
The applicant father and respondent mother are engaged in litigation over their only child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
The proceedings were commenced by the father in December 2018 and have been fixed for trial in December 2022. Since institution of the proceedings, the parties have engaged in an inordinate number of interlocutory disputes. On my count, there have been no less than 14 sets of substantive interim orders made by a variety of judges and registrars.
The currently operable interim parenting orders were made in December 2020. They make provision for the child to spend substantial and significant time with the father, amounting to about 4.5 days per fortnight.
Puzzlingly, the father’s current application is for fresh orders which make provision for the child to spend at most five and at least four days per fortnight with him. Immediately, it is evident that the father effectively seeks what he already has. There is no need to urgently revise existing arrangements, which was the fallacious premise for his application. The child already sees the father one day each week and each alternate weekend. His proposal is to expand the weekly daytime visits to one, if not two, overnight visits. The premise for the application is that the child’s best interests will thereby be served, which proposition is rejected.
The lack of necessity for the application is only emphasised by the father’s acknowledgment that the proposed variation will only have a shelf-life of a few months and entail only a handful of visits, with the final trial fixed for December 2022. Even if judgment is not delivered promptly thereafter, midweek visits will need to stop when the child starts school in January 2023, because she lives with the mother in City RR and the father lives in Sydney.
The application comes about by way of review of orders made by the Senior Judicial Registrar on 21 July 2022. The Senior Judicial Registrar dismissed the application to vary the interim parenting orders. Another dispute over the child’s school enrolment was resolved by the parties consensually.
The father filed an Application for Review on 29 July 2022, seeking review of the decision to dismiss his interim parenting application. The father sought to review two other procedural orders (being Orders 3 and 4 made on 21 July 2022), but abandoned that aspect of the review application. Consequently, the review was confined to the dismissal order (Order 5), which entails a hearing de novo of their respective applications.
Proposals
The father abandoned the orders sought in his Response to an Application in a Proceeding filed on 24 June 2022 and in his Application for Review filed 29 July 2022. He instead sought the orders in his Case Outline filed on 29 August 2022.
The mother abandoned the orders sought in her Amended Application in a Proceeding filed on 11 July 2022. She instead sought the orders in her Case Outline filed on 29 August 2022.
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
The parties accept the child has and should retain the benefit she derives from meaningful relationships with both of them (s 60CC(2)(a)). I do not accept the father’s implied submission that it is presently necessary to slightly expand the time which the child spends with him to either enhance or maintain the meaningfulness of their relationship.
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.
I decline to make any order allocating parental responsibility because neither party has sought any order allocating parental responsibility since the proceedings were first commenced in December 2018. They must not need it. As an example, they compromised over the child’s school enrolment, making it unnecessary for the Senior Judicial Registrar to make orders in that regard in July 2021.
As a consequence, the parties will retain the parental responsibility they have according to law (ss 61B and 61C).
Residence
There is no dispute the child should live primarily with the mother, though no order to that effect has yet been made on an interim basis throughout the entirety of the proceedings.
An express order to that effect is now sought by the father and the ICL. It is best to make the order since that is what the mother also impliedly wants.
Time
For reasons already discussed, the fortnightly regime should remain unchanged until the start of the 2023 school year, though the child may spend some additional time with the father in the upcoming Spring and Summer holidays.
From the beginning of the 2023 school year, the child’s visits with the father should be confined to alternate weekends and school holiday periods. Those orders should soon be overtaken by the final orders which will result from the trial fixed to commence in December 2022.
The father and the ICL expressly sought orders enabling the child to spend time with the father next weekend on Father’s Day. I decline to make an order to that affect, in circumstances where the existing regime requires the child to spend alternating weekends with the father and the upcoming weekend does not fit that pattern. There was no other evidence given or submission made which would justify an order for a Father’s Day visit this year.
I will make an order making provision for the child to be exchanged at the homes of the parties. No specific order as to changeover venues was sought by either party or the ICL, but some practical order needs to be implemented to ensure that the child’s visits with the father properly ensue. As I understand it, the child has been exchanged between the parties at their homes in recent times.
Injunction
An injunction is made restraining the mother from arranging events or appointments for the child on days she is due to spend with the father, as both he and the ICL sought. The mother professed she would not ordinarily arrange events or appointments on such days, in which event she bears no prejudice in complying with an injunction.
Miscellaneous
The father abandoned his application for proposed Orders 6 and 7 set out in his Case Outline.
The ICL abandoned her application for proposed Order 7 in Exhibit ICL1.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 16 September 2022
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