Lavigne & Gavin

Case [2021] FamCA 612

FAMILY COURT OF AUSTRALIA

Lavigne & Gavin [2021] FamCA 612

File number(s): SYC 3478 of 2021
Judgment of: MCCLELLAND DCJ
Date of judgment: 20 August 2021
Catchwords: FAMILY LAW – CHILDREN – Best interests – Interim application – Where the mother seeks orders maintaining current regime of supervised time between the children and the father – Where the father opposes continued supervision – Where the mother contends unacceptable risk of harm in father’s unsupervised care – Where the mother alleges the father has perpetrated family violence, and has a propensity to lose temper and excessively discipline children – Where the Court cannot make findings in respect to mother’s allegations – Where the Court is satisfied there is no real risk of harm to children in father’s unsupervised care – Orders made for the children to spend unsupervised time with father increasing to one overnight time per fortnight – Orders made for appointment of ICL and single expert  
Legislation: Family Law Act 1975 (Cth) Pt VII, ss. 4AB, 43(1)(c), 60B, 60CA, 60CC, 61DA and 65DAA
Cases cited:

Banks & Banks (2015) FLC 93-637

Cowling & Cowling (1998) FLC 92-801

Dieter & Dieter [2011] FamCAFC 82

Eaby & Speelman (2015) FLC 93-654

Goode and Goode (2006) FLC 93-286

Keane v Keane (2021) 62 Fam LR 190

Marvel v Marvel (2010) 43 Fam LR 348

Masson v Parsons (2019) 266 CLR 554

Mazorski & Albright (2007) 37 Fam LR 518

N and S (1996) FLC 92-655

Napier and Hepburn (2006) FLC 93-303

Nikolakis & Nikolakis [2010] FamCAFC 52

Sigley v Evor (2011) 44 Fam LR 439

SS & AH [2010] FamCAFC 13
Number of paragraphs: 222
Date of hearing: 23 July 2021
Place: Sydney by video web conference
Counsel for the Applicant: Ms Christie SC
Solicitor for the Applicant: Barkus Doolan
Counsel for the Respondent: Mr Schonell SC
Solicitor for the Respondent: Matthews Folbigg Pty Ltd

ORDERS

SYC 3478 of 2021
BETWEEN:

MS LAVIGNE

Applicant
AND:

MR GAVIN

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

20 AUGUST 2021

PENDING FURTHER ORDERS THE COURT ORDERS THAT:

1.The children, W born …2011 (‘W’), X born … 2013 (‘X’), Y born … 2015 (‘Y’), and Z born … 2017 (‘Z’) (‘the children’) shall live with the Mother.

2.As and from 23 August 2021, the Orders made on 13 May 2021 are discharged.

3.As and from 23 August 2021, the children shall spend time with the Father as agreed and arranged between the parties and, failing agreement, as follows:

(a)From 23 August 2021 until 1 October 2021, from 10 am to 4 pm on each Saturday;

(b)From 2 October 2021, each alternate week from 10 am on Saturday until 4 pm on Sunday;

(c)In addition to the time set out in Order 3(b), from 2 October 2021:

(i)Z and Y shall spend time with the Father each week from the conclusion of school or day care, or otherwise 3.30 pm on none school days, until 6.30 pm on Tuesday; and

(ii)W and X shall spend…

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Lavigne & Gavin [2021] FamCA 612
Case
[2021] FamCA 612
Decision Date

CaseChat Overview and Summary

This case involved an interim application concerning the parenting arrangements for four children. The mother sought to maintain the existing regime of supervised time between the children and the father, alleging an unacceptable risk of harm in unsupervised care due to family violence and a propensity for excessive discipline. The father opposed the continuation of supervision.

The court was required to determine the best interests of the children in the interim, considering the mother's allegations of family violence and the father's opposition to supervised contact. The court also had to consider the presumption of equal shared parental responsibility and the specific factors outlined in section 60CC of the *Family Law Act 1975* (Cth), including the need to protect the children from harm.

McClelland DCJ noted that while the mother's allegations were a live issue for final determination, the court could not make findings of fact at this interim stage. The court was satisfied that there was no real risk of harm to the children in the father's unsupervised care. The court applied the paramount consideration of the children's best interests, giving greater weight to the need to protect them from harm, as required by section 60CC(2A) of the Act.

The court ordered that the children live with the mother and discharged the previous supervised contact orders. From 23 August 2021, the children were to spend time with the father, initially on Saturdays from 10 am to 4 pm, increasing to alternate weekends with one overnight stay from 2 October 2021. Additionally, weekday evening time was ordered, with separate evenings for the elder and younger children. The court also made orders for communication by telephone, non-denigration, and the father's restraint from attending the former matrimonial home. An Independent Children's Lawyer was appointed, and the parties were ordered to engage a single expert to prepare a report addressing matters relevant to the children's best interests.

Orders

Orders of the court

SYC 3478 of 2021

BETWEEN:

MS LAVIGNE

Applicant

AND:

MR GAVIN

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

20 AUGUST 2021

PENDING FURTHER ORDERS THE COURT ORDERS THAT:

1. The children, W born …2011 (‘W’), X born … 2013 (‘X’), Y born … 2015 (‘Y’), and Z born … 2017 (‘Z’) (‘the children’) shall live with the Mother.

2. As and from 23 August 2021, the Orders made on 13 May 2021 are discharged.

3. As and from 23 August 2021, the children shall spend time with the Father as agreed and arranged between the parties and, failing agreement, as follows:

(a) From 23 August 2021 until 1 October 2021, from 10 am to 4 pm on each Saturday;

(b) From 2 October 2021, each alternate week from 10 am on Saturday until 4 pm on Sunday;

(c) In addition to the time set out in Order 3(b), from 2 October 2021:

(i) Z and Y shall spend time with the Father each week from the conclusion of school or day care, or otherwise 3.30 pm on none school days, until 6.30 pm on Tuesday; and

(ii) W and X shall spend time with the Father each week from the conclusion of school, or otherwise 3.30 pm on non-school days until 6.30 pm on Thursday; and

(d) On special days, including Christmas, Mother’s Day, Father’s Day and the children’s birthdays, as agreed between the parties, providing that, in the event of agreement not being reached, the resident parent shall facilitate the children communicating by telephone or video call between the children and the non-resident parent at 7 pm on the special day in question.

4. Changeover of the children’s time with each party shall occur at a location nominated in writing by the Mother, provided that location is within a radius of 5 km from the former matrimonial home, and may be facilitated by such person as nominated by the Mother.

5. The children shall communicate by telephone with the Father:

(a) At any child’s reasonable request; and

(b) In any event, each Tuesday and alternate Sunday at 7 pm.

6. Each parent is restrained from:

(a) Denigrating the other party or any member of the other party’s family or household, in the presence or hearing of any of the children;

(b) Physically chastising the children; and.

(c) Speaking about the family law matters or issues with the children or any person who is not a party to these proceedings.

7. To the extent that it has not already occurred, each party shall forthwith enrol in and complete an approved Parenting After Separation course.

8. The parties shall each attend upon their respective treating psychologist/psychiatrist, as recommended by their treating psychologist/psychiatrist.

9. The Father shall not attend at the former matrimonial home located at B Street, Suburb A, without the written permission of the Mother.

10. Pursuant to s 68L(2) of the Family Law Act 1975 (Cth), an Independent Children’s Lawyer be appointed for the children and the Legal Aid Commission of NSW is requested to provide such representation.

11. Forthwith upon notification of appointment, the Independent Children’s Lawyer file and serve a Notice of Address for Service.

12. Within 48 hours of notification of the Independent Children’s Lawyer’s address for service, the parties provide to the Legal Aid Commission of NSW forthwith all documents thus far filed in these proceedings by that party, together with all existing orders and copies of any relevant reports.

13. Each of the parties shall present the children to such places and at such times and dates as are requested and/or advised by the Independents Children’s Lawyer for the purpose of the Independents Children’s Lawyer meeting with the children.

14. Pursuant to rule 15.45 of the Family Law Rules 2004 (Cth) the Court appoints an appropriately qualify person, as agreed by the parties, as a Single Expert (“the Single Expert”) to prepare a report addressing the matters identified in s 60CC of the Family Law Act 1975 (Cth).

15. In the event that the parties are unable to agree upon a report writer within 21 days of this Order, then the Father shall forthwith nominate three (3) Report writers (by providing a copy of the CV for each nominated Report writer together with their nominated costs for undertaking the preparation of the Report and the time frame in which they are able to complete a Report) and, within 14 days of such nominations, the Applicant shall select one of the three nominated Report writers which Report writer shall then be retained and instructed by the parties.

16. The parties are to equally share the costs of the Single Expert Report, including the costs of the Single Expert.

17. The parties send copies of all of their Court documents to the Single Expert within seven (7) days of being requested to do so by the Single Expert.

18. The Independent Children’s lawyer is granted photocopy access to all documents produced pursuant to subpoenas for the purpose of providing a copy of those documents to the single expert.

19. The parties comply with all reasonable directions as to attendance upon the Single Expert.

20. The Single Expert’s Report deal with the following matters:

(a) any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

(b) the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);

(c) the likely effect on the children if the Court were to make orders in terms of the parties’ proposed orders; and

(d) any other matters that the Single Expert considers important to the welfare or best interests of the children.

21. I DIRECT that, upon completion, the Single Expert’s Report be forwarded to my Associate.

22. If either party proposes to have the Single Expert available for cross examination purposes at the final hearing, then such party is to notify the Single Expert of their need to attend Court no less than 14 days prior to the final hearing, and unless the Court otherwise orders, pay the remuneration/expenses for that attendance.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

I would expect the parties would cooperate in arranging for that report to be obtained as soon as possible, and that the parties will engage in good faith discussions, upon receipt of that report, to review parenting arrangements concerning the children. I have also made orders for the appointment of an Independent Children’s Lawyer, to assist the parties in that respect, including, if considered appropriate by the Independent Children’s Lawyer, to invite the parties to attend a Family Dispute Resolution Conference facilitated through Legal Aid NSW.BACKGROUND The parties commenced cohabitation in December 2009 and married in 2011. They separated on a final basis on 30 April 2021. There are four (4) children of the parties’ marriage, being:(1)W, born in 2011, and currently aged nine (9) years;(2)X, born in 2013, and currently aged eight (8) years;(3)Y, born in 2015, and currently aged six (6) years; and(4)Z, born in 2017, and currently aged four (4) years. On 30 April 2021, the police served the father with a Provisional ADVO, naming him as the defendant and the mother as a person in need of protection. Subsequently, on 29 June 2021, the ADVO Application was withdrawn by police and the Provisional ADVO was revoked. The mother currently resides with the children at the former matrimonial home located in Suburb A (“the former matrimonial home” or “the Suburb A property”). She describes her usual occupation as homemaker. The father currently resides in a rental apartment in Suburb Q, however, he anticipates moving into a three bedroom accommodation in the North Shore area of Sydney in the next month. He is currently self-employed as an owner and director of an incorporated business that provides IT services. As noted, the mother’s Application was initially listed for hearing before me on 13 May 2021. On that date, I made orders by consent of the parties, adjourning the hearing to 23 July 2021, and for interim parenting arrangements, pending the adjourned hearing, in respect to the children (“the interim consent orders”). Those interim parenting orders provided as follows:DEFINITIONS1.“children” refers to the children of the marriage, namely the following:1.1.W born on … 2011, currently aged 9.1.2.X born on … 2013, currently aged 8.1.3.Y born on … 2015, currently aged 5.1.4.Z born on … 2017, currently aged 4.2.“father” refers to Mr Gavin born on … 1970.3.“mother” refers to Ms Lavigne born on … 1980.PARENTING1.Except as otherwise set out herein that pursuant to s68B of the Family Law Act, the mother be granted exclusive occupation of the property situate at B Street Suburb A (“the Suburb A property”) to the exclusion of the father2.That the children live with the mother.3.That the father spend time with the children as follows:3.1.From 9:30am to 12:30pm on each Saturday with W and Z;3.2.From 1:30pm until 4:30pm on each Saturday with X and Y; and3.3.At such other times as agreed between the parties in writing. 4.On a without admission basis that the father’s time with the children be supervised by C Contact Centre or such other professional supervision agency as agreed between the parties in writing, with the father to meet the costs of any supervision.5.On a without admission basis that the father be and is hereby restrained from attending upon the school and pre-school attended by the children and any sporting and/or extra-curricular activities the children attend from time to time except as agreed between the parties in writing.6.Each party shall do all acts and things and sign all documents necessary to contact C Contact Centre or such other professional supervision agency as agreed between the parties in writing within 24 hours from the date of these Orders and make earliest possible appointment for intake.7.Each party shall do all acts and things and sign all documents necessary to facilitate the father’s supervised time at the earliest possible date.8.That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.NOTATIONA.It is noted that the father is permitted to attend the Suburb A property in accordance with the property recovery order made on 11 May 2021 at mutual agreed time in writing.

Evidence

Evidence Before The Court

The father, at paragraph 5a of his Response filed 11 June 2021, indicated his agreement with the order sought by the mother for the children to live with her, however, he otherwise seeks that they spend time with him, in accordance with the proposed orders sought in his case outline, set out above. EVIDENCE The mother relies on the following documents:(a)Initiating Application filed by the mother and sealed 12 May 2021;(b)Notice of Child Abuse, Family Violence or Risk filed by the mother on 12 May 2021;(c)Affidavit of the mother filed 12 May 2021 with annexures (“the mother’s first Affidavit”);(d)Further Affidavit of the mother filed 8 July 2021 with annexures (“the mother’s updating Affidavit”);(e)Affidavit of the maternal grandmother filed 8 July 2021 with annexures (“the maternal grandmother’s Affidavit”);(f)Affidavit of Ms G filed 8 July 2021 (“the nanny’s Affidavit”); (g)Affidavit of Dr H filed 22 July 2021 attaching a letter from Dr H dated 21 July 2021; and(h)The mother’s tender bundle of documents provided to the Court on 22 July 2021. The father relies on the following documents:(a)Response to an Initiating Application filed by the father on 11 June 2021;(b)Notice of Child Abuse, Family Violence or Risk filed by the father on 11 June 2021;(c)Case outline document of the father filed 21 July 2021 (“the father’s case outline”); (d)Affidavit of the father filed 11 June 2021 with annexures (“the father’s first Affidavit”);(e)Further Affidavit of the father filed 20 July 2021 with annexures (“the father’s updating Affidavit”); (f)Further Affidavit of the father filed 23 July 2021; and(g)Affidavit of Dr F filed 19 July 2021 attaching a report of Dr F dated 12 July 2021 (“Dr F’s Report”). The following exhibit was relied upon: (a)The mother’s tender bundle of documents provided to the Court on 22 July 2021 (‘Exhibit A’). In this matter, conveniently, both parties relied upon the mother’s tender bundle, which is marked ‘Exhibit A’ in the proceedings. Accordingly, in this decision, reference will be made to the “tender bundle” is a reference to the bundle of documents marked ‘Exhibit A’.APPROACH OF THE COURT IN INTERIM PROCEEDINGS AND THE PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY Pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), it is the responsibility of the Court to regard the best interests of the child as a paramount consideration even in interim parenting matters. It must do this in circumstances where the evidence of witnesses has not been tested through the process of cross examination and where there is limited expert evidence before the Court. In that context, in Cowling & Cowling (1998) FLC 92-801 at [18], the Full Court said: The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.

Decision

Reasons for decision

Further, when raised, neither party has spoken in opposition to the Court appointing an Independent Children’s Lawyer. Having regard to the fact that W, in particular, will likely be in the later stages of primary school, at the time this matter will be listed for hearing, it is appropriate for an order to be made appointing an Independent Children’s Lawyer.CONCLUSION For all these reasons, I am satisfied that orders should be made for the children to continue to spend a total of six hours each weekend with the father, on Saturday, until 1 October 2021, being a date which is approximately 10 weeks from the date of the hearing, and is the week subsequent to the date which the parties anticipated the father would complete a ‘Parenting After Separation’ course. From that date, the orders will provide for the children to spend overnight time for one night each alternate weekend with the father. The orders will also provide for the children to spend time for several hours one evening each week with the father, and that time occurring on separate evenings for the two elder children and the two younger children, with that differentiation to occur as proposed in the father’s case outline. The orders will also provide the opportunity for the children to communicate with the father by telephone, when they are in the mother’s care. In circumstances where the mother’s allegations that the father has engaged in coercive and controlling conduct are a live issue to be determined in the final hearing, I have made orders for the changeover of the children’s time to occur at a location nominated by the mother in writing, and for the mother to be represented at that changeover by such persons who she so chooses. I was not addressed by the parties, in respect to appropriate parenting arrangements to occur on special occasions such as Christmas, Father’s Day Mother’s Day and the children’s birthday, however, in the context where the father sought orders for that to occur, I have, instead, proposed that the time occur as agreed between the parties and, if agreement cannot be reached, that the resident parent facilitate the children having telephone communication with the non-resident parent on those days. In circumstances where there has clearly been tension between the parties, and between the father and the maternal family, I have not, in the absence of a single expert report, made orders for the father to attend school functions and the children’s extracurricular activities. There did not appear to be any dispute between the parties regarding the appropriateness of non-denigration orders. The father, himself, proposes an order that he not attend at the former matrimonial home. Neither party appeared to take issue with the father’s proposal that they continue seeking professional therapy, as recommended by their treating therapists. In the context where it appears that the parties are locked into a litigious trajectory, it would be of benefit for both parties to attend a post separation parenting course, so that they both become fully appraised of the impact that ongoing parental conflict has on the children.

Ratio Decidendi

Legal Principle Established

In balancing these considerations, s 60CC(2A) of the Act requires the Court to 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: see s 60CC(2)(b) of the Act.Additional considerations Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard. These considerations are as follows:·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living;·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs;·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant;·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander;·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents;·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family;·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters;·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant consideration.The matters under s 60CC in the context of the objects of Part VII