Lazar and Hegney

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAZAR & HEGNEY

[2018] FCCA 1758

Catchwords:
FAMILY LAW – Interim parenting – whether risk of harm – Orders made for unsupervised time with Father.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Goode & Goode [2006] FamCA 1346

MRR v GR [2010] HCA 4

Applicant:

MS LAZAR

Respondent:

MS HEGNEY

File Number:

WOC 268 of 2018

Judgment of:

Judge Altobelli

Hearing date:

21 May 2018

Date of Last Submission:

21 May 2018

Delivered at:

Wollongong

Delivered on:

9 July 2018

REPRESENTATION

Solicitors for the Applicant:

MDV Family Lawyers

Solicitors for the Respondent:

Bevan & Co Lawyers and Conveyancers

Solicitors for the Independent Children's Lawyer:

Acorn Lawyers

ORDERS

Pending further order, that both parents have equal shared parental responsibility for the Child [X] born 2014 (‘the Child’).
Pending further order, the Child live with the Mother.
Pending further order and until the Child commences school, that the Child spend time with the Father each alternate weekend from 4:00pm on Friday until 10:00am on Monday.
Pending further order, the Child spend additional time with the Father as follows:
(a)On Christmas in odd years, from 2:30pm on 23 December until 2:30pm Boxing Day;
(b)On Christmas in even years, from 2:30pm Boxing Day until 2:30pm on 27 December;
(c)On Easter in even years, from 2:30pm Easter Sunday until 2:30pm Easter Monday;
(d)On Easter in even years, from 2:30pm Easter Friday until 2:30pm Easter Saturday;
(e)Any other times as agreed between the parties in writing.
Pending further order, if Mother’s Day falls on a weekend when the Child is not already spending time with the Mother, the Child’s time with the Father will suspend on this weekend to allow the Child to spend time with the Mother, and the Child will spent time with the Father on the weekend before Mother’s Day.
Pending further order, if Father’s Day falls on a weekend when the Child is not already spending time with the Father, the Child’s time with the Mother will suspend on this weekend to allow the Child to spend time with the Father, and the Child will spent time with the Mother on the weekend before Father’s Day.
Pending further order, for the purpose of changeover, the Father shall collect the Child from the Mother’s residence at the commencement of each period and the Father shall return the Child to the Mother’s residence at the conclusion of each period.
Pending further order, the Child have telephone, Skype or Facetime communication with the Father each Wednesday at 5.30pm or another time as agreed between the parents.
The matter be listed for a two day Final Hearing in 2019 on a date and time to be fixed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 268 of 2018

MR LAZAR

Applicant

And

MS HEGNEY

Respondent

REASONS FOR JUDGMENT

Introduction

This case is about [X], born 2014. [X] is four years old. These reasons for Judgment explain the Orders that the Court has made for [X] to live with her mother, and spend time with her father.

Background

This matter was heard on an Interim basis on 21 May 2018. The Father was represented by his Solicitor, Ms Oliver, with the Mother by her solicitor, Mr Vozella, and [X] by the Independent Children’s Lawyer, Ms Mowbray. After hearing submissions, I was conscious of the likely delay in considering the matter, formulating reasons, and delivering Judgment. I made Interim Orders for [X] to live with her Mother, but to spend time with her Father each alternate weekend from 4:00pm Friday until 4:00pm Sunday. I was most conscious of the fact that [X] was not spending time with her Father, and that, in the absence of any determination by the Court that was unlikely to occur. These Reasons for Judgment will explain both why I made the Interim Order on 21 May 2018, and why I have varied the said Order.
[X]’s Father is 30 years old. He lives in the Region K area of New South Wales. [X]’s Mother is also 30 years old. She lives in the Suburb A region of New South Wales. The Mother has two other children, [A] who is 12, and [B] who is 9. She has currently repartnered.
The parents met in 2013, appear to have commenced a relationship shortly thereafter, and [X] was born in 2014. The relationship appears to have been unstable, with separations, and reconciliations. Nonetheless, in August 2016, they appear to have become engaged. The relationship appears to have ended in late 2016, or early 2017. After separation, [X] appears to have lived with her Mother, but it is common ground that between February 2017 until about February 2018, [X] lived with the Father, originally with the Mother’s consent. In about February 2018, the Mother retained [X]. Proceedings were commenced thereafter.
The matter first came before me on 28 March 2018. It was allocated an Interim Hearing on 18 April 2018, orders under s.69ZW of the Family Law Act 1975 (Cth) were made, and an Independent Children’s Lawyer was urgently appointed. At this stage, [X] was not spending any time with her father.
On 18 April 2018, it was not possible to deal with the matter, but Interim Orders were put in place for [X] to live with her Mother, and spend time with the Father each alternate weekend on Sundays between 10:00am and 2:00pm, supervised. Both parents were required to provide drug tests, and restraints were imposed about discussing the proceedings with or in the presence of the Child, and other matters.
The Interim Hearing was heard on 21 May 2018. Other than making Interim Orders pending the determination of the application, the Court also ordered a Family Report.

Chronology

A very useful chronology of events, and assertions, is contained in the case outline document prepared by the Independent Children’s Lawyer. This is a very useful document, because it draws together assertions made by both parents, as well as information obtained from the voluminous documents that were tendered during the course of these proceedings. Whilst lengthy, the chronology is nonetheless useful and will be reproduced below:

DATE	EVENT	SOURCE
1987	The Applicant Father is born.	F1 paragraph 2
1987	The Respondent Mother is born.	M1 paragraph 3
1995	Mother diagnosed with depression	Dr D subpoena
2006	The Mother's child [A] is born.	M1 paragraph 4
2006	Father convicted of drive on road while licence suspended. Disqualified for a period of 12 months commencing 30 November 2006	S69ZW NSW Police
2007	Mother convicted with driving with low range PCA and received a Section 10 Bond for a period of 12 months	S69ZW NSW Police
2008	The Mother's child [B] is born.	M1 paragraph 4
2009	Mother convicted of drive with low range PCA disqualified for 6 months	S69ZW NSW Police
2009	[B] noted as overdue for immunisations. Immunisation declined by Mother.	Dr D subpoena
2009	[A] at doctors with rash over face, " slapped cheek appearance".	Dr D subpoena
2010	Father convicted of assault occasioning actual bodily harm. Section 9 bond for a period of 2 years. Conviction for destroy or damage property placed on Section 9 bond for a period of 6 months.	S69ZW NSW Police
2010	Father involved in assaulting and punching victim in the head
March 2010	Mother had a seizure during her sleep, witnessed by her partner Mr J at the time. Duration approximately 10 minutes. Whilst in the postictal state (altered state of consciousness immediately after a seizure), she was abusive and rude to her children and the ambulance staff but claimed to have no recollection of it. She was amnesiac for the following 2 hours after the event. After 1-2 weeks she had 2 more episodes of seizures. She showed difficulty talking or remembering people's names she knew well. She said to her doctors that she thinks her brain has been disturbed by using too much marijuana.	Dr D subpoena
31 May 2010	Mother diagnosed with epilepsy. Mother took herself off of all medication and moved back to her mother's place.	Dr D subpoena
26 October 2010	Mother calls her Doctor to say that she had more seizures but had not been taking her medication at allocated times, only when she remembers.	Dr D subpoena
17 September 2012	Triage nurse witnesses Mother's seizure	Dr D subpoena
5 October 2012	Mother suffers grand mal seizure	Dr D subpoena
8 October 2012	Mother suffers grand mal seizure WHILE DRIVING CHILDREN TO SCHOOL. She felt the seizure coming on and pulled over. She conceded to Doctor that she shouldn’t have been driving at all.	Dr D Subpoena
22 October 2012	Mother seeks Taxi subsidy scheme for "uncontrollable" epilepsy	Dr D subpoena
End of 2012	Mother miscarries	Dr D subpoena
5 November 2012	Mother walks out of Doctor's surgery saying that she thought " us doctors" were useless and that she might as well give up on the treatments.	Dr D subpoena
2013	The parties meet.	M1 paragraph 5
19 January 2013	The father convicted of drive when licence suspended. Fined $350.00.	S69ZW NSW Police
10 July 2013	Mother using marijuana	Dr D subpoena
Approx. 14 July 2013	Mother suffers seizure. Speech was jumbled for up to a week after event.	Dr D subpoena
4 October 2013	Mother presented with partial seizure while travelling on bus around 1pm.	Dr D subpoena
22 October 2013	Mother's depression reactivated	Dr D subpoena
3 February 2014	Mother had partial seizure. Experienced sensation of light-headed dizziness, palpitation, hot flush and "feeling out to it".	Dr D Subpoena
7 February 2014	Mother suffered grand mal seizure. Mother remembers being in the car being driven by someone else and at the time she was on the phone to the father at the time. Same symptoms as before however now started shaking. Her awareness was impaired and she does not remember recovering.	Dr D subpoena
2014	Mother presented herself to emergency following a seizure she had whilst she had taken herself off her epilepsy medication. Pregnant at the time	Dr D subpoena
2014	The father kicks a panel of the mother's car causing it to become profoundly dented.	M1 paragraph 34
2014	The child [X] is born.	M1 paragraph 2
23 November 2014	Mother attended to collect child from father. Father refused. Father barged past and hit her in the stomach with the metal legs of the child bouncer. After giving her the child and she had her back turned he punched her in the head.
27 November 2014	Mother suffers cervical spine dysfunction and seeks treatment for head trauma. Seeks immunisation for child.	Dr D subpoena
27 November 2014	Attends doctor, reports head trauma. Discloses domestic violence to Doctor Dr D.	Dr D subpoena
11 December 2014	Apprehended Violence Order is made for the protection of the mother and child. The father asserts he did not hit the mother in the head and that the mother bit him. The father further asserts police applied for an AVO for his protection which was later withdrawn.	M1 paragraph 8 F1 paragraph 29 F2 Annexure B
April 2015	The mother calls the father and states she cannot look after the child anymore and wants him to take over her care. The father quits his job to care for the child	F1 paragraph 26
4 June 2015	Child overdue for 12 month immunisations.	Dr D subpoena
17 July 2015	The child stays with the father for what the mother asserts was intended to be a weeklong stay.	M1 paragraphs 26 and 27
August 2015	The mother moves to Town 1 with her three children.	M1 paragraph 11
15 August 2015	Father convicted of contravene prohibition/restriction in domestic AVO. Fined $500.00.	S69ZW NSW Police
26 August 2015	Mother suffers adjustment disorder with depressed and anxious mood; anxiety disorder diagnosed. Mother suffers anxiety and panic attacks in relation to [X].	Dr D subpoena
3 September 2015	The mother asks the father for the child to be returned to her care. The father refuses.	M1 paragraph 40
10 September 2015	The parties attend mediation and agree that the child should live with the mother and spend time with the father each alternate weekend.	F1 paragraph 34
Late 2015	The mother agrees for the father to live with her temporarily in Town 1. While staying with the mother, she asserts that the father smoked marijuana on an almost daily basis and was often verbally abusive towards her and the children. On one occasion the father asked the mother's sons to clean their rooms. Having not cleaned their rooms to the father's satisfaction, the father emptied out the clothes cupboard and stationery drawers and made them start again. The father asserts this is untrue.	M1 paragraph 14 M1 paragraphs 15 – 17 F2 paragraph 15
14 January 2016	Child overdue for 18 month immunisations	Dr D subpoena
29 January 2016	Father appears to have been charged with behave in offensive manner in or near public place/school	S69ZW NSW Police
16 July 2016	Mother had seizure in bed and woke up with severe pain on left side of her head.	Dr D Subpoena
2016	The parties get engaged.	F2 paragraph 18
20 September 2016	Following an argument, the mother sends the father text messages telling him to take the child and "fuck off."	F2 paragraph 54
22 September 2016	Mother deemed unfit to work	Dr S subpoena
26 October 2016	Mother suffers grand mal epileptic fit. Unable to drive.	Dr S subpoena
28 October 2016 – 30 October 2016	Mother deemed unfit to work.	Dr S subpoena
2016	Mother and new de facto partner Mr M meet.	M2 paragraph 5
14 January 2017	An argument occurs between the parties and the mother asks the father to leave. The father refuses to leave and pushes the mother to the ground in front of the children. The father denies pushing the mother to the ground. The father asserts he had an injured ankle at the time and the mother was standing in the door day and wouldn’t let him through. The father tries to leave, and the mother pushes him causing him to lose his balance and fall on the bed.	M1 paragraph 19 F2 paragraph 19
15 January 2017	The mother and children relocate to the maternal grandmother's home. The father continues to live in the rental property at Town 1. The father asserts that after 14 January 2017 he stayed with a friend until he moved back to the Town 1 property on 28 January 2017.	M1 paragraph 20 F2 paragraph 21
February 2017	De facto partner Mr M made aware that mother had moved to Canberra and was staying with her mother in Town 3	M2 paragraph 6
16 February 2017	Apprehended Violence Order is made for the protection of the mother and child.	M1 paragraph 19
25 February 2017	The child commences living with the father. The mother asserts the arrangement was only temporary as the paternal uncle suffered from Asperger's and could not handle living with the child in the same household. The father asserts the mother refused to tell her what was going on at the time.	M1 paragraphs 22 and 23 F1 paragraph 22
March 2017	Mother and de facto partner agree to move out together as friends – not looking for relationship.	M2 Paragraph 8
13 April 2017	The mother moves to Suburb A with her 2 boys to live with de facto partner.	M1 paragraph 29; M2 paragraph 9
19 April 2017	The mother and her sons stay with the father for approximately a week after the mother has an argument with her partner.	F2 paragraph 39
April 2017	Mother spoke to Father about having the child for the long weekend when she had time off work. The Father refused this request allegedly because she had not complied with a request for more money. De facto partner alleges it was because the Mother would not send him nude pictures.	M2 paragraph 13
June-July 2017	Father withheld the child from going with the Mother because she had not brought a child safety restraint with her, and he was not willing to give her his seat. Police were called to the scene. Father ultimately complied with the request to hand over his safety seat.	M2 paragraph 15
October 2017	The mother asserts the child began exhibiting concerning behaviour and requests for the child to return to her care full time. Similar reporting from de facto partner. The child was hurting pet cats, becoming aggressive towards other children for no apparent reason etc. Before being collected by the Mother, the child said words to the effect of, "I don’t want long sleeps at Dad's house anymore." Child would cry when the Father would come to collect her from the Mother's house.	M1 paragraphs 27 and 28; M2 paragraph 17
October 2017	Mother told the Father that she wished the child to return to her full-time care. "This is enough, she needs to come home…it was never meant to be like this". Father allegedly responded saying words to the effect, "don’t fuck with me Ms Hegney just because you're not happy in your life".	M2 paragraph 11
November 2017	While staying with the mother the child says words to the effect "Did you know Dad showed me how to smoke." The father denies smoking marijuana in front of the child.	M1 paragraph 49 F2 paragraph 40
February 2018	Approximately two days before the child is to spend time with the mother, the father refuses to let the mother see child unless she pays arrears of day care fees. The father states he became aware the preschool fees were in arrears again. He told the mother if he had to pay the arrears again he wouldn’t have petrol to attend pick up.	M1 paragraph 50 F2 paragraph26
2 February 2018	Mother and de facto partner have established a romantic relationship by this stage. Child [X] moves in with mother and de facto partner.	M2 paragraph 9
5 February 2018	The Mother does not attend changeover with the child. The Father has not seen the child since and asserts he has contacted the mother on numerous occasions to see the child but has not received a response.	F1 paragraphs 9, 12, 16 and 19
11 February 2018	While on the phone to the father the child says words to the effect "Dad is saying he is going to pick me up I don’t want to go home mum."	M1 paragraph 53
February 2018	While going to the toilet the child says words to the effect "please don’t hurt her, sometimes Dad hurts my (omitted) when he's angry.' Mother reports the incident which was the subject of a JIRT investigation. The father denies ever hurting the child's genital area and outlines one occasion where the child had a rash and he had to apply cream, but nothing inappropriate occurred.	M1 paragraph 57 F2 paragraph 41
March 2018	Mother had not yet reported matter to JIRT as at date of court.	F2 Paragraph 44
12 April 2018	Referral to JIRT rejected as it appears Father was wiping the child too hard in toileting	FACS subpoena
17 April 2018	Detective Sergeant Mr B confirms the matter was assessed by Joint Investigation Response Unit and a determination was made that no further criminal investigation would be conducted. The matter has been referred to FACS Suburb A.	Email to be tendered.
18 April 2018	Father requested to undertake urinalysis testing. Results returned positive for Benzodiazepines	(omitted) urinalysis results dated 23.4.18
14 May 2018	Mother and Father requested to undertake a chain of custody urinalysis testing – no results available at Interim Hearing	Letter correspondence from Acorn dated 14 May 2018

A number of preliminary observations will be made which inform the Court’s consideration of the substantive matter.
The chronology indicates, for example, that both parents struggled with alcohol abuse when they were younger. The Father has a history of violence. The Mother has a history of illness relating to seizures which, on any possible interpretation of the material, presented potential risk of harm both to herself, and her older children. It is trite to say that both parents neglected to inform the Court of these matters.
Apart from the Mother’s health issues, the chronology indicates that she struggled to be compliant with the recommendations made by her doctors. She consumed marijuana. She suffered mental health issues, by way of depression. There are unresolved issues about delays in immunising [X]. An apprehended violence order (‘AVO’) was made for the Mother and [X]’s protection, against the Father, in 2014. Notwithstanding this, when the alleged violence that led to the Order, in April 2015, the Father assumed the primary responsibility for caring for [X]. In August 2015, and notwithstanding the fact that he was responsible for the care of [X] for at least a period of a month, he was convicted of contravening the AVO, and fined. In any event, eventually [X] returned to the Mother’s care, and the Father commenced alternating weekend contact.
Despite the Mother expressing concerns about the Father’s apparently problematic use of marijuana, and notwithstanding the fact that she herself was a user, the Father appears to have been substantially involved in [X]’s life.
After separation, there was a further AVO made for the protection of [X] and the Mother. Shortly thereafter, however, the Mother voluntarily allowed [X] to live with her Father, and this appears to have continued for a period of 12 months. [X] returned to the Mother’s care, but this appears to have been achieved without the Father’s consent.
After the proceedings commenced, and after [X] came into the Mother’s care, [X] apparently made a number of disclosures about the Father’s alleged inappropriate behaviour towards her. Indeed, the Mother was apparently well aware of the disclosures, but neither raised them in her initial material filed before the Court, or even reported it to the relevant authorities until after the matter came before the Court. There was a JIRT investigation, and the file was closed.
The level of parental dysfunction is plainly evident from this chronology. It is hard to differentiate between the parents. There is a real sense in which there would be concerns about [X]’s welfare whether she lives with her Father, or her Mother. There are glaring inconsistencies in the Mother’s case: on the one hand, serious allegations of family violence, but on the other hand, it would seem voluntarily placing [X] in the Father’s care.
The allegations of child sexual abuse have a distinct flavour of opportunism to them. At one stage, the Mother’s case was run as an unacceptable risk of abuse case. There is no evidence to support such a case. It will play no further role in the Court’s determination of this on an interim issue. One suspects, however, that at a Final Hearing of these allegations, the Mother’s knowledge of the underlying facts, and the manner in which she raised these issues during the course of the Interim proceeding will be the subject of some forensic inquiry. There is no evidence before the Court to suggest that there is any risk of harm arising from alleged sexual abuse perpetrated by the Father.
This is a case where the evidence needs to be carefully tested. The limitations of an Interim Hearing are palpably obvious in a case like this. The Court is left with a lingering doubt about the evidence that is led on behalf of both parents. Even though the Court has decided, in effect, not to make significant changes to the interim arrangement ordered on 21 May 2018, this case appears to have a long way to go in terms of the evidence, and the interim outcome could easily be very different to the final one.

The competing proposals

At the conclusion of the Interim Hearing, the Independent Children’s Lawyer proposed that [X] continue to live with her Mother, and spend time with her Father. The Mother’s proposal was that the Interim Hearing be adjourned until completion of the investigation by New South Wales Police, and the Department of Family and Community Services of the child sexual abuse allegations. In the meanwhile, the Father would have no contact with [X]. In the alternative, the Mother proposed that the Father have telephone contact with [X] only. The Mother proposed an order for sole parental responsibility.
The Father proposed that [X] live with him, and spend time with the Mother each alternate weekend.

The evidence

In the Father’s case, he relied on the following documents:
a)Initiating Application of Mr Lazar filed 13 March 2018;
b)Affidavit of Mr Lazar filed 13 March 2018;
c)Affidavit of Mr Lazar filed 6 April 2018;
d)Affidavit of Ms M filed 12 April 2018;
e)Notice of Risk filed 13 March 2018.
In the Mother’s case, she relied on the following documents:
a)Response of Ms Hegney filed 28 March 2018;
b)Affidavit of Ms Hegney filed 12 April 2018;
c)Affidavit of Ms Hegney filed 28 March 2018;
d)Affidavit of Mr M filed 17 April 2018;
e)Notice of Risk filed 28 March 2018;
f)Case summary/outline filed 13 April 2018.
In the Independent Children’s Lawyer’s case, she relied on the following documents:
a)The Father’s documents as set out above;
b)The Mother’s documents as set out above;
c)The tendered material as set out below.
A considerable volume of documents were tendered in evidence:
a)Documents produced by NSW Police;
b)Documents produced by Department of Family and Community Services;
c)Documents produced by Kindergarten;
d)Documents produced by Town 1 Early Learning Centre;
e)Documents produced by Dr D;
f)Documents produced by Dr S;
g)Documents produced by Dr D, Medical Town 2;
h)JRU Decision Report– [X].

The applicable law

The applicable law is, of course, Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1)     The objects of this Part are to ensure that the best interests of children are met by:
(a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)     parents should agree about the future parenting of their children; and
(e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)     to maintain a connection with that culture; and
(b)     to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)     to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)     When making a parenting order in relation to a child, 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 for the child.
(2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)     family violence.
(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.
(4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)     If:
(a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends or holidays; and
(b)     the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)     how far apart the parents live from each other; and
(b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)     the impact that an arrangement of that kind would have on the child; and
(e)     such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(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;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.

The case law

In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the 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.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Meaningful relationship

There can be no question that, even on the Mother’s evidence, as unreliable as it may be in certain respects, [X] has a good relationship with her Father. The Father’s proposal, and the Independent Children’s Lawyer proposal, would see that meaningful relationship continue. The Mother’s proposal does not. Her proposal seems to be based on the need to protect [X] from harm. This will be discussed below.
In the Father’s case, he proposes that [X] spend alternating weekends with her Mother. The Court is satisfied that this will preserve the meaningful relationship that exists between [X] and her Mother.

Protecting [X] from the risk of harm

This primary consideration was certainly the focus of most of the evidence, and much of the submissions made by both parents. It is also the area in respect of which the rank hypocrisy of both parents becomes evident. As foreshadowed earlier in these reasons, the preliminary impression of this Court, based on all the material available to it at the Interim Hearing, is that there is a measure of risk of harm to [X] whether she lives with her Mother, or her Father. Both parents exceeded in their ability to point to the risks of harm in the other’s household, whilst not referring to the risks in their own household.
Both parents raised some concerns about the other’s use of illicit substances. There is no evidence before the Court that enables it to differentiate between the risks that seem to exist in both households, based on historical matters. The current drug tests do not support the contentions that each parent makes.
The Mother’s allegations about child sexual abuse are unsubstantiated and seem opportunistic. As foreshadowed, the timing of the reports of the disclosures by the Child, and then the report by the Mother to the authorities after the commencement of proceedings, is highly suspect. There is no objective basis, on the evidence before the Court, for there to be any concern that the Father will physically or sexually abuse his daughter, whilst she is in his care.
The Mother makes serious allegations of family violence against the Father, which he denies. There is objective evidence to suggest that there was violence in the relationship, in the form of the various Apprehended Violence Orders. The Mother’s assertion of risk of harm is such that the Father should, apparently, have no contact with [X], at least inferentially based on this family violence. But this is quite inconsistent with the history of the matter where she voluntarily places [X] in the Father’s care.
The high level of parental conflict in this case is self-evident. To the extent that the Mother invokes family violence as a reason for there being no physical contact between Father and daughter is inappropriate, inconsistent, and again, smacks of opportunism on her part. The Court notes the Father’s allegation of the violence perpetrated against him by the Mother. All of these violence allegations are matters to be subjected to closer scrutiny at a final hearing, but the Court does not accept that what family violence appears to have occurred gives rise to the need to protect [X] from the risk of harm.
Nor is the Court satisfied that there is any risk of harm associated with alleged disclosures that [X] has made about what her Father has supposedly said, and what she has supposedly seen, whilst in his care.
Based on the totality of the evidence before the Court at this interim stage of the proceedings, the Court is satisfied that the risk of harm to [X] arises out of what appears to be intractable conflict between her parents. This is best managed by prescriptive orders about spending time with and communication, but it is certainly not a basis for otherwise restricting the Father’s time with [X], or imposing supervision.
In the Father’s case, of course, he raises concerns about [X]’s safety whilst in her Mother’s care. He raises concerns about the Mother’s historical parenting capacity, as manifested by her surrendering [X] into his care, at times. He raises concerns about the Mother’s mental health, and, indeed, it is quite possible that even he was not fully aware of the Mother’s history of health issues, particularly associated with her epilepsy. The Court has, at least inferentially, already expressed concern about the Mother’s lack of disclosure in relation to these issues. There is but a fleeting mention in the Mother’s affidavit to her epilepsy.
The Court takes all of this into account. It bears repeating that the Court is of the view that there is a risk of harm in both households. This is clearly one of the risks in the Mother’s household. The risks in the Father’s household include unresolved issues about violence and aggression.
For present purposes, however, the Court is satisfied that the risks in the Mother’s household can be managed. She appears to be well supported currently. The scrutiny of proceedings may well ensure that she properly engages with the services there to assist her. The Court is reassured by the Independent Children’s Lawyer’s vigilance in drawing the issue of the Mother’s health to the Court’s attention.

Any views of the Child

[X] is only four years old, and is far too young to express a view.

The nature of [X]’s relationships with her parents

Despite what both parents say against the other, a more independent impression is that [X], in fact, enjoys a good relationship with both of her parents, despite the bad relationship that the parents have with each other. The fact remains that on the cases presented by each parent, in [X]’s relatively short life she has spent time with both her Mother and Father, for substantial periods. It is hard to escape the conclusion, on any sensible objective interpretation of the totality of the evidence, that [X] has a good relationship with each of her parents.
The Father’s orders, and the Independent Children’s orders, would preserve that. The Mother’s orders do not.

The extent to which parents have participated, or failed to participate in decision-making

Unsurprisingly, each parent makes assertions against the other as regards this consideration. The impression formed from the evidence is that when [X] has been in the care of her Mother, or her Father, they have been less than diligent in affording to the other the opportunity to participate in decision-making. In any event, the Orders proposed by the Father, and the Independent Children’s Lawyer, provide the opportunity that is contemplated by this consideration. The Mother’s Orders do not. She even proposes an Order for sole parental responsibility which, the Court notes, is completely unsupported by the evidence. But, like so many aspects of the Mother’s case, is indicative of a willingness to marginalise the Father from involvement in [X]’s life.

The extent to which each of the parents has maintained the Child

The Court does not consider this to be an informative, or determinative, consideration in the context of this case.

The likely effect of change in the Children’s circumstances

This is possibly the most important consideration in this case. Once the Court has satisfied itself, as it has indeed done, that there are no risk of harm considerations, seeking to minimise further disruption to [X]’s life becomes a foremost consideration. She has lived with both parents; lived with her Mother, lived with her Father, and then is living again with her Mother. She has changed the physical location of where she lives. It is possible, though not clear, that she will start school next year. The changes in her routine that are brought about each time she moves from one parent’s care into the other are changes that appear to concern the Independent Children’s Lawyer, and certainly concern this Court.
The Court accepts the Independent Children’s Lawyer’s submission that, at least for the time being, [X] is settled in her Mother’s household, and into a routine. True it is that this routine was only established in February this year, but in this Court’s mind, the desirability of avoiding a further and unnecessary change is a priority. Risk of harm considerations having already been considered, the Father’s proposal for [X] to move back into his care is contraindicated having regard to this consideration. However, the Mother’s proposal for there to be no contact between [X] and her Father, or alternatively only telephone contact, is also strongly contraindicated.

Issues of practical difficulty and expense

The Father resides in the Region K area, and the Mother in the Suburb A area. It seems acknowledged that the distance between their respective houses is about a 2 hour 20 minute drive. The Father proposes that the Mother share in the travel. The Independent Children’s Lawyer proposed, as reflected in the Interim Order made on 21 May 2018, that the Father be responsible for collecting and returning the Child. As the Independent Children’s Lawyer points out, the Mother is unable to hold a driver’s license due to her epilepsy, and is reliant on her partner to facilitate changeover.
In the circumstances, there is little alternative but to impose on the Father the requirement to collect [X] at the commencement of his time, and return [X] to the Mother at the conclusion of the time. Given the very high level of conflict that exists between these parents, the serious allegations they make against each other, and the many unresolved issues in this litigation, the Court is loathe to make an Interim Order that potentially brings the parents into contact with each other at the Mother’s home.
Nonetheless, the evidence does not really enable the Court to develop a better option. If there is the slightest evidence at future Court events, that [X] is exposed to parental conflict at changeover, then the Court will give earnest consideration to alternatives. For the time being, however, the issues of practical difficulty and expense appear to be within the realms of management.

Issues of parental capacity, and attitudes

A reading of this Judgment so far should communicate to the reader the Court’s concerns about aspects of the parenting capacity of both parents, and also issues about their attitudes towards parenting, towards each other, and towards their responsibilities as parents. The opportunism that has been communicated through the Mother’s case at times is of concern. The issue of whether the Mother has an attitude that would seek to exclude the Father from [X]’s life, is an issue that will need to be explored more at a Final Hearing. The Court is concerned that, notwithstanding the evidence before the Court, her view should be that the Father spend no time with [X].
The Mother’s failure to disclose to the Court about her epilepsy, and its impact on her in the past, is of concern. If the Mother’s case about family violence is substantiated at a Final Hearing, then much can be said about the Father’s attitude, and parenting capacity. This is an important consideration that ultimately is one that is not determinative in the present Interim proceedings.

The Orders in the best interests of [X]

Firstly, it is certainly not in [X]’s best interests that an Order be made for sole parental responsibility. In fact, the Court is not satisfied that the presumption of equal shared parental responsibility has either been rebutted, or negated. An Order for equal shared parental responsibility should, therefore, be made, on an interim basis.
The Court’s reluctance to bring about further change in [X]’s life means that she should continue to live with her Mother. This is notwithstanding some of the concerns that the Court has already expressed about the Mother.
The Court can see no reason in principle why [X] should not, in fact, spend more time with her Father. Until she commences school, she should be able to see her Father from Friday afternoons, to Monday mornings. The Father will need to continue to be responsible for the changeovers. Given that [X] is not attending school, the order for alternating weekend time should continue throughout the year.
The Father did not make a proposal for spending time with [X] during special occasions. He did make a proposal about special occasions with the Mother, should [X] be ordered to live with him. In the circumstances, the Court will adopt his orders as a template for special time with him.
The Court cannot see any reason why there should not be a telephone, Skype or FaceTime communication, and indeed, Order 4 of the existing Interim Orders provides for this.
The Court notes that it has already ordered a Family Report, which, all going well, will be available by February next year. The Court will list the matter for Hearing in 2019, treating the case as a two day matter.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 9 July 2018

[2018] FCCA 1758

9 July 2018

Key Legal Topics

Areas of Law

Family Law