Little & Thornton

Case [2021] FCCA 1946

FEDERAL CIRCUIT COURT OF AUSTRALIA

Little & Thornton [2021] FCCA 1946

File number(s): MLC 6705 of 2019
Judgment of: JUDGE A KELLY
Date of judgment: 23 August 2021
Catchwords: FAMILY LAW – PARENTING – where parenting proceeding has been protracted – interim orders sought by applicant father for a change in residence of the parties’ child – where change of residence not be determined but deferred to trial – where allegations of mental illness have been directed by each of the parties – where respondent mother is resolutely opposed to progression of applicant father beginning to spend overnight time with child – where expert observed in the mother a disturbed and dysfunctional attachment to the child – absence of cogent evidence respecting respondent mother’s position – applicable principles – where order made allowing progression of overnight time arrangements with applicant father.  
Legislation: Family Law Act 1975 (Cth) ss 4, 4AB, 11F, 60B, 60CA, 60CC, 60I, 61DA, 62B , 62G, 65D, 65DAA, 65DA, 65M, 65N, 65Q, 67V, 67Z, 68P, 69ZT, 69ZW, 69ZX
Cases cited:

All Class Insurance Brokers Pty Ltd (In Liquidation) v Chubb Insurance Australia Ltd (No 2) [2021] FCA 782
Banks & Banks [2015] FamCAFC 36
Cowling & Cowling (1998) 22 Fam LR 776
Franklyn & Franklyn [2019] FamCAFC 256
Goode v Goode (2006) 36 Fam LR 422
Morgan & Miles (2007) FLC ¶93-343
MRR v GR (2010) 240 CLR 461

White v Overland [2001] FCA 1333

John D Heydon, Cross on Evidence (LexisNexis Butterworth, 12th ed, 2020)

Number of paragraphs: 126
Date of hearing: 19 August 2021
Place: Melbourne
Counsel for the Applicant: Mr S. Lethlean
Solicitor for the Applicant: Berry Family Law
Counsel for the Respondent: Dr R. Ingleby
Solicitor for the Respondent:  Kordos Lawyers

ORDERS

MLC 6705 of 2019
BETWEEN:

MR LITTLE

Applicant
AND:

MS THORNTON

Respondent

ORDER MADE BY:

JUDGE A KELLY

DATE OF ORDER:

20 AUGUST 2021

THE COURT ORDERS THAT:

Procedural orders

1.

Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth) and


ss 102D-102E of the Family Law Act 1975 (Cth), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.

2.The parties have leave to rely upon their affidavits made on 5 August and 17 August 2021 respectively notwithstanding each is in excess of 10 pages in length.

3.Paragraphs 11 – 16 of the Order made on 19 October 2020 be discharged.

4.The final hearing of this proceeding listed to commence this day be vacated.

5.The proceeding be set down for final hearing on Monday, 8 November 2021 (3 days).

6.By 4.00pm Monday 23 August 2021, the respondent file an Amended Response providing complete particulars of the Final Parenting Orders that are to be sought in this proceeding.

7.By 4.00pm on Friday, 27 August 2021, the respondent make, file and serve an affidavit of documents itemising any document recording any instructions given or advice sought or received from the date upon which she…

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AGLC
Little & Thornton [2021] FCCA 1946
Case
[2021] FCCA 1946
Decision Date

CaseChat Overview and Summary

This matter concerned an interim application in a protracted parenting proceeding between Mr Little (the applicant father) and Ms Thornton (the respondent mother) concerning their child, X. The applicant father sought interim orders for a change in the child's residence, which the court deferred to trial. The proceeding involved allegations of mental illness directed by each party towards the other, and the respondent mother was resolutely opposed to the applicant father commencing overnight time with the child. An expert had observed a disturbed and dysfunctional attachment between the mother and the child, and there was an absence of cogent evidence supporting the mother's position.

The court was required to determine the appropriate interim parenting arrangements for the child, particularly concerning the progression of overnight time with the father, given the allegations and expert observations. The court also had to consider the procedural steps necessary to ensure the matter progressed efficiently towards a final hearing, including the filing of further evidence and the scheduling of various steps. The overarching legal issue was to make orders that were in the child's best interests pending the final determination of the proceedings.

Justice A Kelly applied the principles governing interim parenting applications, focusing on the child's best interests. The court noted the expert observation of a disturbed and dysfunctional attachment between the mother and child, and the lack of cogent evidence supporting the mother's opposition to overnight time. The court found that the likely effect of allowing the child to begin spending some overnight time with her father was not detrimental and that nothing should stand in the way of the child developing her relationship with her father. The court made various procedural orders to facilitate the progression of the matter to trial, including vacating the current hearing date and setting a new date for final hearing, directing the filing of amended responses and affidavits, and requesting information from the Department of Families, Fairness and Housing. Crucially, the court ordered that the child spend increasing periods of time with the father, commencing immediately, and that the mother attend a psychological assessment.

The court made orders for the progression of the child's time with the father, commencing with day visits and progressing to overnight stays. These orders were designed to allow the child to develop her relationship with her father while the final hearing was pending. The court also made significant procedural orders to ensure the matter was prepared for trial, including the provision of expert reports and the scheduling of various steps. The court noted that these orders took precedence over any conflicting intervention orders.

Orders

Orders of the court

MLC 6705 of 2019

BETWEEN:

MR LITTLE

Applicant

AND:

MS THORNTON

Respondent

ORDER MADE BY:

JUDGE A KELLY

DATE OF ORDER:

20 AUGUST 2021

THE COURT ORDERS THAT:

Procedural orders

1.

Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth) and

ss 102D-102E of the Family Law Act 1975 (Cth), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.

2. The parties have leave to rely upon their affidavits made on 5 August and 17 August 2021 respectively notwithstanding each is in excess of 10 pages in length.

3. Paragraphs 11 – 16 of the Order made on 19 October 2020 be discharged.

4. The final hearing of this proceeding listed to commence this day be vacated.

5. The proceeding be set down for final hearing on Monday, 8 November 2021 (3 days).

6. By 4.00pm Monday 23 August 2021, the respondent file an Amended Response providing complete particulars of the Final Parenting Orders that are to be sought in this proceeding.

7. By 4.00pm on Friday, 27 August 2021, the respondent make, file and serve an affidavit of documents itemising any document recording any instructions given or advice sought or received from the date upon which she first consulted any lawyer in relation to parenting orders, parenting plans or parental responsibility upon the subject of relocation as more particularly referred to in paragraph 4 of the letter dated 14 May 2021 from Berger Kordos to Berry Family Law being exhibit -2 to the applicant’s affidavit made on 5 August 2021.

8. Pursuant to section 69ZW of the Family Law Act 1975 (Cth) (“Act”) it is requested the Department of Families, Fairness and Housing provide to the Court the following documents and information in relation to the child X born in 2019:

(a) any notifications to the Department of Families, Fairness and Housing of suspected abuse of the child to whom the proceedings relate or of suspected family violence affecting the child including but not limited to any intake reports;

(b) any assessments of the Department of Families, Fairness and Housing of investigations into notifications of that kind or the findings or outcomes of these investigations including but not limited to copies of investigation and assessment outcomes, any grounds of substantiations, case plans and case closure summaries;

(c) any reports commissioned by the Department of Families, Fairness and Housing in the course of investigating a notification, including but not limited to any reports prepared for proceedings in the Children’s Court; and

(d) in the event the Department of Families, Fairness and Housing have an ongoing investigation in relation to the child to whom the proceedings relate, any recommendations for the future arrangements of the child taking into account the orders sought by the parties in these proceedings.

9. Direct that the applicant provide the Department of Families, Fairness and Housing a copy of this Order as soon as is reasonably practicable.

10. Neither party shall cause any subpoena to be served upon the Department of Families, Fairness and Housing without leave of the Court.

11. Direct that the respondent mother attend, at her expense, upon Mr B for the purposes of a psychological assessment and report as soon as is reasonably practicable and upon its release, a copy of Mr B’s report be filed as an exhibit to an affidavit.

12. Direct that the applicant provide Mr B and Dr C as soon as is reasonably practicable with a copy of each of the following:

(a) this Order;

(b) the applicant’s affidavit made on 5 August 2021;

(c) the respondent’s affidavit made on 17 August 2021;

(d) in the case of Dr C, Mr B’s affidavit made on 25 June 2021 together with Mr B’s report concerning the respondent (upon its completion);

(e) in the case of Mr B, Dr C’s family report to be provided pursuant to paragraph 7 of the Order made on 15 March 2021 (upon its completion);

(f) any report received from the Department of Families, Fairness and Housing pursuant to paragraph 8 of this Order;

(g) the reasons for judgment to be delivered consequent upon the making of this Order;

(h) the parties’ trial affidavits, outlines of case and joint minute of proposed orders,

and for the avoidance of doubt, the supply or non-supply of any such document should not fetter or impede Mr B or Dr C in the completion of their reports at such time as they may decide but is intended to facilitate their further consideration of the matter so as to assist them in providing more efficiently their evidence at the final hearing of the proceeding.

13. Direct that upon its release, the applicant file a copy of Dr C’s family report as soon as is reasonably practicable.

14. Save with leave of the Court, no party may rely upon any affidavit filed less than 10 days before the final hearing.

15. By 4.00pm on Thursday, 9 September 2021, counsel file with his Honour’s Associate an amended draft order addressing the matters in paragraphs 12 – 16 of the Order made on 19 October 2020 and making provision for the identification and scheduling of:

(a) issues of agreement and disagreement in relation to the parties’ proposed final parenting orders;

(b) filing of trial affidavit material from parties and their respective witnesses;

(c) filing of filing of expert’s reports (to include as far as is reasonably practicable, the dates of appointments in relation to same);

(d) any arguments over privilege (which may be listed on short notice for determination in advance of the final hearing);

(e) outlines of case by the applicant (14 days prior) and respondent (7 days prior) to the commencement of final hearing, such outlines not to exceed 15 pages (1.5 spacing);

(f) a joint minute of proposed final parenting orders in Microsoft Word format, indicating which orders are agreed and which are disagreed (no later than 4.00pm on Friday, 5 November 2021),

all such steps to be taken with due consideration being given to s 69ZX of the Act, including the manner in which that provision may appropriately be applied at the final hearing.

Parenting orders

16. Forthwith, the parties attend upon Ms D, Dr E or such other bonding expert as may be approved and recommended by Dr C.

17. Paragraphs 3-5 of the Order made on 15 March 2021 be discharged.

18. Until further order, the child X born in 2019 spend time and communicate with her father:

(a) commencing Sunday, 22 August 2021, from 9.00am until 5.00pm and each Sunday thereafter;

(b) commencing Tuesday, 24 August 2021, from 9.00am until Wednesday, 25 August 2021 at 1.00pm and on each week thereafter, from 9.00am on Tuesday until 1.00pm on Wednesday;

(c) on Christmas Day, for no less than four hours by agreement between the parties and in default of agreement from 9.00am until 1.00pm;

(d) such further or other times as agreed between the parties in writing, including by SMS text message.

19. Changeover, for the purposes of paragraph 18 of this Order, shall take place in the foyer of the F Centre in Suburb G and each of the parties be permitted to bring a support person to changeover.

20. In default of compliance with this Order, the parties are at liberty to apply on short notice including in respect of the interim application for a change of residence pending trial.

21. Pursuant to section 68P of the Act, the applicant’s parents be permitted to be present during the child’s time with her father (to the extent that such presence may conflict in any way with the terms of any intervention order).

22. Each of the parties do all acts and things necessary to download the Our Family Wizard App and communicate with each other via that App in relation to X’s care, welfare and development, save in the event of an emergency.

Other matters

23. Pursuant to section 68P of the Act, to the extent the parenting arrangements specified in this Order are inconsistent with the Interim Intervention Order dated 9 June 2020 (case no. …) or the Interim Intervention Order dated 10 March 2021 (case no. …), this Order takes precedence over the terms of such Intervention Orders and, to that extent, each of those Intervention Orders are invalid.

24. Pursuant to paragraph 68P(2)(c) of the Act, direct that the solicitors for the applicant and respondent respectively provide a detailed explanation of the terms of this Order to their respective client.

25. The applicant’s costs of this day be fixed in the sum of $3,500 and reserved to trial.

26. The respondent’s costs of this day be fixed in the sum of $5,500 and reserved to trial.

27. Certify for Counsel.

28. Pursuant to sections 62B and 65DA(2) of the Act, the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order are set out in Attachment A and those particulars are included in this Order.

AND THE COURT NOTES THAT:

A. The parties’ lawyers are to consult with their respective client both as to the terms of this Order and to inform them of the operative effect of ss 65M, 65N and 65Q of the Family Law Act 1975 (Cth).

B. Enquires of Mr B indicate he will be able to complete his report in relation to the respondent in the reasonably foreseeable future.

C. The Court was informed on 19 August 2021 that each of the parties have produced a clean drug test pursuant to paragraphs 9 – 13 of the Order made on 15 March 2021.

D. The Court was further informed on 19 August 2021 that each of the parties have completed a Post Separation Parenting Course.

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.

Background

Background to the litigation

Although it is necessary to identify the applicable principles and venture upon the legislative pathway that is to be followed in all interim applications, in summary, this is an interim application where the appropriate solution in the child’s best interests was readily apparent.Background The applicant father, born in 1991, and respondent mother, born in 1994, commenced a relationship in mid-March 2018. It appears the parties met in about 2010. After commencing their relationship they never lived together but spent most nights together. Like many people in their mid-twenties, each of the parties lived with their respective parents. It appears the mother’s parents immigrated to Australia from the Country J in the early 1990s, shortly before the birth of the mother who is the third of four siblings (each of the others being brothers). The mother also has an extended maternal family in the Country J. Upon the father’s evidence, the maternal parents return to the Country J at reasonably frequent intervals and appear not to like living in Australia where they do not have many friends. So too, the father deposes that the mother is not particularly close with many friends. The mother became pregnant in 2018. The child was born in 2019. The mother contends that the father encouraged her to abort the pregnancy. By the father’s account, the parties were excited for the arrival of the child and he attended most medical and related appointments, save where work commitments intervened, including at the birth of the child after which the father stayed almost every night with the mother and child and assisted in the care of the infant. The father gave an account of conflictual relations both with the mother and her family including allegations that: during the mother’s pregnancy both she and her parents threatened to take the child to the Country J with the maternal grandmother stating that she could make both the mother and child “disappear”; the maternal father objecting to the father’s desire to be a part of the life of the child stating “you will get nothing”; the mother stating “If you ever do anything wrong, I’ll go to Country J and you will never see me or the baby again”, and; also on 5 June 2019, at the time when the father was cuddling the child and stated to her “We’ll have to visit your grandparents at your other home soon” which provoked an unexpected, eruptive response in the mother who yelled and screamed stating “This is X’s only home” and resulted in the father leaving the maternal home. Upon the father’s case the parties separated on around 5 June 2019 and then on a final basis in late May 2020. It is the mother’s case the parties separated on a final basis on 10 March 2019. Shortly after the birth of their child, the father filed his initiating application in this court and orders were made in August 2019 by consent for the child to live with her mother and spend time on three days each week with her father. This proceeding was commenced in the combined circumstances that the mother withheld the child from the father for a number of weeks and where the father was contacted on 18 June 2019 by police who advised him that an intervention order had been made against him ex parte.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Insofar as there was any reference to any additional consideration, Dr Ingleby referred only to par 60CC(3)(d)(i). Nothing was said to persuade me, contrary to Dr C’s opinions that the likely effect of any changes on the child was such as to undermine a conclusion in favour of the child beginning to spend some time overnight with her father one night per week. Upon my own consideration of those additional factors nothing should stand in the way of providing the child with an immediate opportunity to develop her relationship with her father.Conclusion Upon the father’s case, and while seeking an interim order for a change of residence in all of the circumstances, he adheres to a commitment to maintaining a successful co-parenting relationship with the mother but points to the extreme difficulty of doing so at present. After hearing submissions on 19 August 2021, the court adjourned to pronounce the orders that were made on 20 August 2021 and which addressed both the procedural and parenting orders that are required at this stage in order to secure that the matter progresses to a final hearing on 8 November 2021. As those orders confirm, the Court was assisted in large measure by the acceptance by counsel of the types of orders which were appropriate in all the circumstances. In addition, the parties’ counsel are agreed that they will confer and provide a more refined timetable of the events necessary to secure the party’s have a proper opportunity to prepare for trial. Should sticking points emerge on matters of practice and procedure they can be dealt with on short notice and in chambers. Further, if there is a want of compliance with the orders made for the conduct of the trial, either party will be at liberty to apply on notice to the other for the final hearing to proceed on an undefended basis. As I have emphasised to the parties and their representatives I am most concerned about the direction which this case has taken, particularly over the last six months. To that end, the orders provide expressly that due consideration should be given to s 69ZX of the Act, including that it will be applied as appropriate to confine the conduct of the hearing within reasonable limits. In this context, an issue of apparent concern to each of the parties is a failure by the other to respond to correspondence in a timely way. Having recognised the issue, I would not wish to be misunderstood as suggesting such failure by one or other of the parties is an issue which should occupy particular time at the final hearing. To the extent the complaint is of any substantive importance, the relevant communications can be identified in a single paragraph closing submission with appropriate references to pages of the court book. So too, if other issues of comparatively marginal significance emerge for consideration, it is to be expected they will also be managed appropriately. Time limits can and should be applied as appropriate. In short, there is an immediate imperative for the parties to now try to consider the final parenting orders which should be made in their daughter’s best interests. As matters stand, significant issues raised by the parties include whether the child’s residence should change such that it is in her best interests to live with her father or whether it is in her best interests, as has recently been said, to relocate to Queensland. The question posed by the mother of sole parental responsibility arises in the context where it is suggested there is a disturbed and dysfunctional attachment between the child and her mother, matters which should be the subject of evidence at trial. It seems to be common ground that there is very limited scope for functional joint parental responsibility and difficulty in envisaging a scenario in which the parties could ever co-parent in a functional manner or discuss arrangements for their daughter in a collaborative way. More fundamentally, there is some evidence, including perhaps from Child Protection that the child is regressing in her development. The mother has advanced a costly proposal for changeover to occur without the parties being present. Airport watch list orders remain in issue. Agreement on some issues is to be expected. Parties may advance proposals for appropriate parenting orders but their proposals are not binding. It is for the Court to determine what is in a child’s best interests. In this context, the issue of sole parental responsibility may assume a binary aspect. If the court is being asked to choose between one party or the other having sole parental responsibility that is a choice which might only have two outcomes. This must, of course, depend upon the totality of the evidence. The court will hopefully gain considerable assistance from Mr B and Dr C upon these matters.

Ratio Decidendi

Legal Principle Established

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