Lawrence & Lawrence (No 2)
[2022] FedCFamC1F 469
•20 June 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Lawrence & Lawrence (No 2) [2022] FedCFamC1F 469
File number(s): BRC 15801 of 2020 Judgment of: AUSTIN J Date of judgment: 20 June 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Parenting – Where the mother reviews orders made by a senior judicial registrar stipulating the time the children are to spend with the father – Risk of harm – Where the mother asserted her apprehension of risk of harm to the children but yet proposed the children should spend four nights a fortnight with the father – Where the children are not at risk of harm in the father’s care – Where the mother contended the parental conflict justified confinement of the children’s time with the father – Where contiguous days with the father and fewer changeovers will reduce the chance of parental conflict – Order of the senior judicial registrar discharged – Orders made. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61C, 61D, 61DA, 64B, 65AA, 65D, 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: 40 Date of hearing: 20 June 2022 Place: Newcastle Counsel for the Applicant: Ms Gillies SC Solicitor for the Applicant: Broun Abrahams Burreket Counsel for the Respondent: Mr Williams SC Solicitor for the Respondent: Naughton McCarthy Family Lawyers ORDERS
BRC 15801 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LAWRENCE
Applicant
AND: MR LAWRENCE
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
20 June 2022
THE COURT ORDERS THAT:
1.Orders 2 and 3 made by the Senior Judicial Registrar on 31 March 2022 are discharged and in lieu thereof the following order shall apply:
2.The parties shall take all reasonable steps to ensure the children Y, born in 2016, and X, born in 2019, spend time with the father (subject to Order 9 made on 31 March 2022) as follows:
(a)In school terms:
(i)From after school and/or daycare (or 3:00 pm) on Thursday until the commencement of school and/or daycare (or 9:00 am) on the following Monday, in each alternate week, commencing on Thursday, 30 June 2022.
(ii)From after school and/or daycare (or 3:00 pm) on Thursday until the commencement of school and/or daycare (or 9:00 am) on the following Tuesday, in each alternate week, commencing on Thursday, 26 January 2023.
(b)In school holidays:
(i)In the winter and spring school holidays of 2022 from after school and/or daycare (or 3:00 pm) on the last Thursday of school term until 5:00 pm on the following Thursday.
(ii)In the summer school holidays of 2022/2023 for seven consecutive days commencing at 5:00 pm on 26 December 2022 (immediately following the operation of Order 9(a)(ii)(B) made on 31 March 2022) and for three consecutive days commencing at 3:00 pm on Monday, 23 January 2023 (following which Order 2(a)(ii) hereof will apply).
(iii)In the autumn, winter and spring school holidays of 2023 from after school and/or daycare (or 3:00 pm) on the last Thursday of school term until 5:00 pm on the following Thursday.
2.Otherwise:
(a)The Application in a Proceeding filed on 18 February 2022 is dismissed;
(b)The Response to an Application in a Proceeding filed on 24 March 2022 is dismissed;
(c)The Application for Review filed on 20 April 2022 is dismissed; and
(d)Any and all other outstanding interim applications are dismissed.
NOTATION
A.Orders 1 and 4 to 16 inclusive made by the Senior Judicial Registrar on 31 March 2022 remain in force.
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 Lawrence & Lawrence is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
AUSTIN J:
Before the Court is the mother’s application to review two of many orders made by a senior judicial registrar on 31 March 2022 under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
The orders concern the parties’ two children, now aged five and three years respectively.
The parties are in dispute about the amount of time the children should spend with the father, though the dispute is relatively narrow. The mother thinks the children’s interaction with the father should be confined to four nights per fortnight, whereas the father contends for five nights per fortnight.
background
The parties separated in November 2020 shortly following which the mother commenced these proceedings.
On 25 November 2020, a registrar made interim orders between the parties with their consent. The orders provided for the children to live with the mother and for them to spend more than two days each week with the father. The youngest child spent less overnight time with the father because he was then only 18 months old.
In February 2022, the father applied to increase the amount of time the children spend with him to five nights per fortnight. The mother responded in March 2022. She acknowledged the time spent by the children with the father should be expanded, but confined to four nights per fortnight. The senior judicial registrar determined the interim dispute on 31 March 2022, making effective provision for the children to spend five nights per fortnight with the father.
The senior judicial registrar made 16 orders, but the mother has applied to review only two, being:
(a)Order 2, which stipulates the time spent by the children with the father during school terms, and
(b)Order 3, which stipulates the time spent by the children with the father during school holiday periods.
The mother seeks the orders set out (consistently) in her Response to an Application in a Proceeding filed on 24 March 2022 and her Application for Review filed on 20 April 2022. In effect, she wants:
(a)the children’s time with the father confined to four nights per fortnight, fragmented within fortnightly cycles;
(b)no separate provision made for school holiday periods; and
(c)the uncertainty of Order 2(c) made on 31 March 2022 eradicated.
The mother abandoned the Minute of Orders which comprised part of her Case Outline document dated 17 June 2022.
The father’s underlying application was contained within his Application in a Proceeding filed on 18 February 2022, but, as I understood the submissions made for him, he was content to hold the orders made by the senior judicial registrar.
As this is hearing de novo, the parties were impelled to acknowledge I am not bound to a selection between the orders proposed by the father, the orders proposed by the mother, or the orders made by the senior judicial registrar.
evidence
The mother relied upon:
(a)her affidavit filed on 11 June 2022, and
(b)a tender bundle of documents (Exhibit M1).
The father relied on his affidavit filed on 15 June 2022.
Both parties relied upon the Family Report dated 18 November 2021.
legal principles
Orders in respect of children are made under Part 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 section 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 section 60CC factor need be discussed in that process (Banks & Banks (2015) FLC 93-637 at [47]–[50]). The individual factors within section 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 intersts of the children – section 60CC(2)
There was no dispute the children will benefit from meaningful relationships with both parties, so s 60CC(2)(a) stimulated no controversy.
The mother’s position with respect to the engagement of s 60CC(2)(b), however, was curious. In her affidavit (at [61]–[72]) she addresses evidence about the children’s supposed exposure to “Risk of Abuse and/or neglect” when in the father’s care, but I give that evidence little credence in this hearing. Importantly, the mother expects the children will spend four nights of 14 with the father. No rational explanation was advanced for what mischief could befall the children on the fifth night which could not happen on the first four nights. Surely the mother would not propose the children spend four nights a fortnight with the father if she genuinely believes he does expose them to a material risk of harm.
The mother gave evidence of the youngest child suffering a burn injury on one occasion and the elder child complaining of a foot injury on another, but the father gave evidence of at least the burn being the result of misadventure. Perhaps the father is less fastidious than the mother about the children’s physical safety, but that does not necessarily mean he is reckless or negligent.
I am not satisfied the evidence proves the children are at risk of harm in the father’s care or that the children’s time with him ought be curtailed because of the mother’s apprehension of danger.
best interests of the children – section 60cc(3)
The only additional considerations emphasised by the mother were: first, the father’s parenting capacity, which she contended was less competent than her own; secondly, the need to ensure the orders are commensurate with the younger child’s developmental milestones; and thirdly, her contention of enhanced parental conflict.
As to the first point, the evidence does not support any inference of the father’s incapacity to adequately cater to the children’s physical, emotional or intellectual needs for four or five days per fortnight during school terms or during week-long blocks in school holiday periods.
As to the second point, the younger child is now three years of age. He attends day care four days per week and has a history of spending regular and frequent time with the father.
Uncontroversially, the family consultant recommended as follows in the Family Report:
174. It is recommended from this assessment that:
a.The children continue to live primarily with the mother and spend regular, frequent and broad-ranging time with the father, preferably in longer blocks, with the scope for holiday time with each parent.
b.A suggested arrangement of time with the father is as follows:
i.A fortnightly cycle, in week one from Friday afternoon until Monday morning, and week two from Wednesday afternoon until Friday morning.
c.The children spend two non-consecutive weeks with each parent during the December 2021-January 2022 school holiday period.
(Emphasis added)
The mother said that a regime of five contiguous days in the father’s care “might not” be developmentally appropriate for the younger child, but her bare doubts are not probative. I accept the evidence of the family consultant, who envisages a care regime for both children more closely aligned with that proposed by the father.
It should not be overlooked that the mother has, in the past, voluntarily left the children with the father for five continuous days, such as when she went on holidays in July 2021.
I am satisfied on the evidence that the younger child will cope with a regime under which he spends time with the father, in his older sibling’s company:
(a)for four nights per fortnight in school terms for the remainder of 2022;
(b)for five nights per fortnight in school terms from the beginning of 2023;
(c)for one week in each school holiday period except for the summer holidays; and
(d)for two non-consecutive weeks in the summer holidays.
In my view, such time should comprise contiguous days and not be fragmented as the parties proposed. That is partly because the evidence does not suggest either child will have trouble coping with such a regime, partly because it reflects the family consultant’s recommendations, and partly because it reduces the number of changeovers and thereby reduces the chance of parental conflict, which last point was a principal focus of the mother’s submissions.
The mother contended the parental conflict, of itself, militated in favour of confining the children’s time with the father. I reject the submission. The reduction of parental conflict will follow from the parties having fewer chances to meet and argue, which will in turn follow from fewer changeovers, particularly if they occur at school or day care. The orders made by the senior judicial registrar make such provision for changeovers and that order is not reviewed.
If the children spend time with the father once each fortnight and once each school holiday period (but twice at Christmas) the chance of conflict is reduced.
It should not escape attention that despite such asserted parental conflict:
(a)the mother sought an order for equal shared parental responsibility in her Initiating Application filed on 12 November 2020;
(b)the mother has not sought an order for sole parental responsibility, at any point, on an interlocutory basis; and
(c)she is apparently content to abide by the provisions of ss 61C and 61D of the Act, which presently leave parental responsibility vested in both parents.
Order 2(c) made by the senior judicial registrar will, however, be discharged and the substitute orders will attempt to introduce the clarity and prescription both parties wanted.
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). This issue was raised with the parties as a matter of procedural fairness, but neither chose to address it. Section 61DA(3) of the Act is applied, as it would not be presently appropriate in the circumstances for the presumption of equal shared parental responsibility to apply. Neither party sought an order about parental responsibility, the senior judicial registrar made no order allocating parental responsibility, and neither party challenged that situation in this hearing de novo. The parties will both retain parental responsibility in the interregnum by force of the provisions of the Act.
With no order made as to equal shared parental responsibility, s 65DAA of the Act is not engaged. Neither party sought orders for “equal time”. Both parties think the children should, however, spend substantial time with the father. They only disagreed over the configuration. I have already outlined and will not repeat the orders which I consider will best promote the children’s interests.
For those reasons I make the following orders.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 6 July 2022
0
0
1