LAVERICK & HARWOOD

[2017] FCCA 1335

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAVERICK & HARWOOD [2017] FCCA 1335

Catchwords:
FAMILY LAW – Interim Parenting – 5 year old girl – limited time with father post separation – mother unilaterally relocated with child – best interests considerations – risk of harm considerations.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61C, 61DA, 61DB, 65DAA

Cases cited:

Goode v Goode (2007) 36 FamLR 422
Keats & Keats [2016] FamCAFC 156
M & M (1988) 166 CLR 69
Mazorski & Albright [2007] FamCA 520
MRR & GR [2010] HCA 4
Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Applicant: MR LAVERICK

Respondent: MS HARWOOD

File Number: PAC 5103 of 2016

Judgment of: Judge Obradovic

Hearing date: 1 June 2017

Date of Last Submission: 1 June 2017

Delivered at: Parramatta

Delivered on: 23 June 2017

REPRESENTATION

Appearing for the Applicant: Mr Frank

Solicitors for the Applicant: Frank Legal

Appearing for the Respondent: Mr Russo

Solicitors for the Respondent: Dean Lawyers

PENDING FURTHER ORDER

1. That the parties have equal shared parental responsibility for the child X born (omitted) 2012.

2. That the child shall live with the mother.

3. That the child shall spend time with the father as follows:

   (a)Commencing on Saturday 24 June 2017 and each Saturday thereafter from 10am to 2pm with the father to collect the child from the mother’s residence at the commencement of such time and the father to deliver the child to the mother’s residence at the conclusion of such time;

   (b)Commencing on Saturday 15 July 2017 and each Saturday thereafter from 10am to 6pm with the father to collect the child from the mother’s residence at the commencement of such time and the mother or her nominee to collect the child from the father’s residence at the conclusion of such time;

   (c)Commencing on Saturday 19 August 2017 and each Saturday thereafter from 8am to 8pm with the father to collect the child from the mother’s residence at the commencement of such time and the mother or her nominee to collect the child from the father’s residence at the conclusion of such time;

   (d)Unless the child is already spending time with the father on Father’s Day, then from 4pm on the day before Father’s Day to 6pm on Father’s Day with the father to collect the child from the mother’s residence at the commencement of such time and the mother or her nominee to collect the child from the father’s residence at the conclusion of such time; and

   (e)At all other times as agreed to between the parties in writing.

4. That the child shall communicate with the father via video conference (such as FaceTime or Skype or otherwise as appropriate) or telephone each Monday, Wednesday and Friday between the hours of 6pm to 6.30pm.

5. The mother shall, within 7 days, do all act and things necessary to provide to the father all relevant details of the child’s:

   (a)treating medical or other health practitioners;

   (b)day-care/pre-school centres which the child may from time to time attend; and

   (c)extra-curricular and sporting activities which the child may from time to time attend.

6. List the matter for directions at 9.30am on 10 October 2017.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5103 of 2016

MR LAVERICK

Applicant

And

MS HARWOOD

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are interim parenting proceedings concerning the only child of the parties, X, born on (omitted) 2012.

2. The father commenced the substantive proceedings by way of Initiating Application filed on 26 October 2016, together with his Affidavit in support.

3. The mother filed her Response to Initiating Application on 20 December 2016, together with an Affidavit in support.

4. Both parties filed short Affidavit’s shortly prior to the interim hearing, which occurred on 1 June 2017. Each party relied on their Case Outline document at the interim hearing.

The Law

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

2. 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.

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

4. In determining what is in a child’s best interests, the Court must consider the matters set out in s60CC. 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.

5. 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.[1]

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

6. In applying the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the parents.

7. It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]

   [2] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court

   [3] Ibid at [122]

8. 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.[4] The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [4] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]

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

9. 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 an interim order.[6]

   [6] s61DA(3)

10. 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 provides 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 and reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7]

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

11. The Full Court in Goode v Goode[8] 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, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.

    [8] (2007) 36 Fam LR 422, (2006) FLC 93-286

Issues in Dispute

1. The central issue for determination is what time the child is to spend with the father and whether such time is to be supervised. Such assessment is to be made by the Court at this interim stage with much of the evidence being untested and in dispute; and with very few agreed facts.

2. The parties’ respective contested applications are as set out in their filed documents.

3. In summary, the father’s application is for the child to spend time with him each Saturday from 8am to 8pm. While his application also sought time each Tuesday and Thursday from 4.40pm to 8pm, the reality of the situation after the move by the mother to the (omitted) is that such time is not reasonably practicable and was therefore not pressed.

4. In summary, the mother pressed the Court for orders that she have sole parental responsibility for the child and that time between the child and the father be supervised through a contact service “at such reasonable times as are made available” by the centre, provided that the time does not occur on Mondays, Tuesdays and Wednesdays.

5. The Child Dispute Conference Memorandum records the parties’ proposals as being different to that contained in their filed documents.

Agreed Facts

1. The father was born on (omitted) 1974.

2. The mother was born on (omitted) 1978.

3. The parties commenced cohabitation in late June 2007. The only child of the relationship, X was born on (omitted) 2012.

4. The parties each have children from previous relationships. The mother has a daughter C born on (omitted) 2004. The father has a daughter, A born (omitted) 2002 and a son, B born on (omitted) 2003. During the parties’ relationship, C lived with the parties, while A and B were in an equal shared care arrangement with the father and his former partner.

5. After approximately seven years of cohabitation, the parties separated in about May/June 2014.

6. Both parties had re-partnered post separation, but the mother is no longer in that relationship.

7. For approximately one year after separation, the father was spending regular time with the child, by agreement between the parties. Those arrangements broke down, for what particular reason, it is not clear. It appears that there were many and varied reasons which may ultimately be the subject of appropriate findings, but are not so at this stage of the proceedings. In any event, the child did not spend any meaningful time with the father from about July 2015 until early 2017.

8. Each party blames the other for the father not spending appropriate time with the child post separation. The father alleges that the mother ignored his constant attempts to spend time with the child, while the mother alleges that he was not sufficient interested in the child and that she is now anxious regarding the child’s safety.

9. An incident occurred on 26 July 2015 between the parties which was investigated by the police.[9] The police interviewed the father, his partner, Ms M and the mother. The versions given to the police from each party were said to be “conflicting”. As such, no charges were laid by the police in respect of the mother’s allegation.

   [9] Exhibit 1

10. On 18 August 2015, a final Apprehended Violence Order was made in the standard terms 1 (a), (b) and (c) for a period of 12 months.

11. The current parenting proceedings were commenced in the Family Court of Australia on 1 November 2016.

12. On 20 December 2016, by Consent, orders were made by the Family Court of Australia for the child to live with the mother and for the father to spend time with the child supervised by Relationships Australia. The proceedings were also then transferred to the Federal Circuit Court with the matter being listed for directions at 11.30am on 6 March 2017.

13. In his Initiating Application, the father sought an order restraining the mother from moving away from the greater Sydney area. Since the commencement of proceedings, the mother has relocated with the child to the (omitted). It appears that this order restraining the mother from moving was not pressed before the Family Court on 20 December 2016.

14. On 6 March 2017, the parties were directed to attend a Child Dispute Conference at 2pm on 18 April 2017, and the interim applications were listed for hearing at 10am on 1 June 2017.

Other Relevant Evidence

1. The Child Dispute Conference Memorandum records that the mother stated that the father had never been violent towards the child, however, she harbours fears that the father might “snap” when caring for her.

2. Both parties reported that the child has enjoyed spending time with the father facilitated through the contract centre.

3. The notes[10] from the (omitted) Children's Contact Centre indicate a close and positive relationship between the child and the father, and a positive response from the child in respect of the father’s engagement with her. The child has also had positive interactions with her half-siblings who came to spend time with her father. The notes also record that the mother has raised some concerns about the presents which the father brought for the child and that she believes the father is manipulating the child and bribing her with these items to have her spend more time with him.

   [10] Exhibit 2

4. The father in his evidence recognises that he has made poor choices following separation with the mother which ultimately impacted upon his relationship with the child. 

Parental Responsibility

1. Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[11] Section 61DA provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order.

   [11] See note 1 s61C

2. As noted earlier, 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 an interim order.[12] The presumption is also rebutted where there are reasonable grounds to believe that a parent has engaged in family violence.

   [12] s61DA(3)

3. It is noted for the benefit of the parties that in making a final parenting order in relation to a child, the Court must disregard the allocation of parental responsibility made in the interim order.[13]

   [13] s61DB

4. The Court having heard from the parties, and taking into consideration all of the evidence, finds that the presumption of equal shared parental responsibility has not been rebutted.

5. Each party sought an order for parental responsibility. Given that the presumption has not been rebutted, the Court, in considering the child’s best interests comes to the conclusion that an order for equal shared parental responsibility is in all of the circumstances appropriate. The mother has already made the unilateral decision of changing the child’s residence and pre-school.  Any future long term decisions impacting upon the child ought to be made by the parties through the exercise of equal shared parental responsibility. 

Section 60CC Considerations

1. The protection of the child from harm is an important matter for the Court’s consideration when weighing up the primary considerations. Indeed, the Court must prioritise the need to protect the child from harm as against the benefit of the child having a meaningful relationship with the parents.

2. Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made. In doing so the Court must weigh up any risk of harm to the child, all the while considering what might be in the child’s best interest. It is the existence and magnitude of the risk of harm that is a fundamental matter to be taken into account in deciding what orders are to be made in respect of what time, if any, the child is to spend with the father.[14]

   [14] M & M (1988) 166 CLR 69 at 77

3. It was submitted on behalf of the mother that she cannot be satisfied that there is no unacceptable risk of harm to the child if the child was to spend time with the father on an unsupervised basis. This was quite an unusual submission given that there is no presumption at law that an unacceptable risk of harm exists which must then be rebutted. Unless there is a specific reversal of the onus of proof, the general position at law is that the onus is on the person who asserts, why it would be any different in parenting proceedings is not a matter upon which the Court was addressed.

4. The Court is mindful off what was said by the Full Court of the Family Court in Keats & Keats, in respect of the conduct of interim proceedings:[15]

   …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.

   [15] [2016] FamCAFC 156 at [9]

5. However, it is not a matter of simply making a submission - it must be supported by the evidence, even untested evidence. The highest that the mother’s evidence goes is that she has concerns and is not certain about what the father might do. Such evidence is not persuasive.

6. The child is five years old. Her views can at best be gauged through the contact centre notes, which indicate a positive reaction to spending time with the father. Likewise, it appears that both parties’ evidence is that the child’s time with the father has been a positive experience for her.

7. The mother is the child’s primary carer. Since separation there has been limited time between the child and the father particularly after July 2015. Given the child’s relative young age, this is a relevant consideration for the Court in terms of the child’s relationship with the father and is reflective of at least some need to gradually increase time between the child and the father.

8. The father has had limited input into the decisions concerning both long-term and short-term issues for the child. The father has had limited communication with the child and has spent limited time with the child post separation. The reasons for this may ultimately be subject to findings of fact, but at this stage, they are not so.

9. The mother’s evidence is that she has moved with the child to the (omitted). The date of such move is not disclosed in her evidence however, it must have been at some stage before 20 December 2016.[16] The move was the mother’s unilateral decision, and something which the father was against.

   [16] Which is the date of swearing of her Affidavit filed on 20 December 2016 which states at paragraph 41 “I moved to the (omitted) as rental accommodation is more affordable here. I originally moved in with my boyfriend, Mr D. However, we have since separation, and I am living alone with my daughters, X and C.”

10. There will be some practical difficulty and expense with the child spending time with the father due to the physical distance between the parties’ respective residences. However, it is not an insurmountable obstacle.

11. Both parties appear to be able to provide for the needs of the child. There may be some questions about each of the parties’ attitudes to the child and their responsibilities of parenthood as demonstrated by each of them. However, due to the limited nature of the evidence at the interim hearing, these are matters of limited weight at this stage of proceedings.

12. The Court has considered the allegations of violence made[17] and the Apprehended Violence Order which has now lapsed. Such matters are not supportive of limiting the child’s time with the father as submitted by the mother. No unacceptable risk of harm has been established on the evidence. 

    [17] In a very limited way given the contested facts about what occurred in the parties’ respective affidavits

1. Because of the way the parties’ applications were run and objections taken to the late filing of documents, the Court dealt with the father’s application as contained in his Initiating Application. This ultimately means that while the Court seems some benefit to the child moving into overnight time with the father sooner rather than later, no such orders will be made at this juncture due to the issue not being the subject of any submissions at the interim hearing.

2. These are only interim orders, and it is likely that if the matter proceeds to final hearing, there may be a time period of at least some twelve months before the matter is decided on a final basis, much depending on whether a Family Report is to be ordered.

3. The parties may benefit from further Family Dispute Resolution, at least now that regular and meaningful time between the child and the father is to be re-established.

Conclusion

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

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 23 June 2017