Little & Thornton
[2021] FCCA 1946
•23 August 2021
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 461White 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 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.
IT IS NOTED that publication of this judgment under the pseudonym Little & Thornton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE A KELLY
Introduction
These reasons for judgment explain why interim orders were made on 20 August 2021 in a protracted parenting proceeding which had been listed for hearing on 19 August 2021 and has now been relisted with priority on 8 November 2021.
In substance, for the reasons detailed in his most recent affidavit, the applicant father sought interim orders for a change in residence of the parties’ only child, X born in 2019 in circumstances where there is some evidence the respondent mother has developed a highly dysfunctional attachment to the child of a kind and seriousness that has not been observed over the course of the career of the family report writer, Dr C, whose observations and conclusions were verified by his colleague, Mr H. Those matters, coupled with the increasingly fractious nature of the parties’ parenting arrangements and the opinion of psychologist Mr B that there is no clinical basis for a conclusion that the father suffers any major mental illness or personality disorder, and the absence of cogent evidence respecting the mother’s position, favoured a conclusion for the making of interim orders to address the two issues in dispute as described below.
First, while the mother has now agreed to a regime for the child to spend time with her father on a Tuesday so as to make up for nearly 200 hours of lost time, she did not agree to extend time on a Wednesday from 9:00am to 4:00pm to a new regime of 9:00am to 5:00pm, however, Dr C, who participated in the interim hearing expressed the view that, clinically, the addition of one hour in a day was neither here nor there. Secondly, the mother was implacably opposed to the child spending overnight time until the issue had been examined fully at trial.
In light of the procedural history below, I acceded to the submission of Dr Ingleby, counsel for the respondent mother that the interim application for change of residence not be determined but be deferred to trial. The proceeding has been listed with priority on 8 November 2021.
The proceeding has had a most troubled recent history involving highly contested versions of events. As the principles below confirm, the Court generally proceeds on the basis that those contested versions will not be tested until trial and so, in the meantime, the Court must instead determine on an interim basis what orders should be made in a child’s best interests.
Procedural History
The regrettable history of this litigation is immediately confirmed by the raft of affidavits which have been made by the parties to date. The financial and emotional cost is readily apparent. For those reasons also, finality of litigation is an important consideration.
On 19 June 2019, the father filed an initiating application seeking interim and final parenting orders including orders for an Airport Watch list order, equal shared parental responsibility, for the child to live with her mother and spend time and communicate with him on three days in each week together with ancillary orders pursuant to ss 11F and 62G of the Family Law Act 1975 (Cth) (Act). An application for abridgment was refused by a registrar.
On 2 August 2019, a certificate was issued pursuant to s 60I of the Act.
On 7 August 2019, the mother filed a response indicating her agreement with the father’s proposal for equal shared parental responsibility (both on an interim and final basis) and for the child to spend time with her father three times per week but to do so at a child contact centre and on terms that “the mother be present for the duration of the time spent with X until such time as X no longer requires hourly and/or on demand breastfeeding.” Notably, one order sought by the mother was that each parent encourage X to have a meaningful and positive relationship with the other parent while in their respective care.
The proceeding was listed for mention on 14 August 2019 and on that date interim orders were made, by consent, for the child to spend time with her father for two hours, three days per week, and for the parties to undertake family counselling.
In September 2019, the parties reconciled and in November 2019 the proceeding was discontinued. Shortly afterward, on 8 December 2019, the first intervention order (IVO) was made against the father, on a final basis, by consent, and without admissions.
In May 2020, the parties separated on a final basis and on 9 June 2020 the mother made application to vary the 8 December 2019 IVO. A full IVO was made against the father, somewhat surprisingly, on an ex parte basis.
Thereafter, parenting arrangements deteriorated such that the mother unilaterally withheld the child from spending time with her father which endured for a period of five months until October 2020.
On 8 July 2020, the father filed a further initiating application in which he refined the relief being sought both on an interim and final basis. On 10 August 2020, the mother filed a further response addressing the further initiating application. While the father adhered to the stance he had adopted at the outset of the parties having equal shared parental responsibility, the mother’s position changed, to an application for sole parental responsibility.
It is the respondent’s case that in mid-July 2020, the father committed a breach of the IVO as varied, on an ex parte basis, for which charges were laid by Victoria Police. Upon the information provided by the mother to Dr C on 15 February 2021, the breach of the IVO occurred in circumstances where, although contact was allowed through mediation, the father had contacted her by email which constituted a breach of the order.
In a further escalation of the matter, allegations of drug use were raised by the mother. In an effort to address the issue, commendably, the father took the initiative in September 2020 of voluntarily undergoing hair follicle testing which produced a negative result.
By his outline of case filed for the purposes of the first directions hearing, the father addressed the mothers claim for sole parental responsibility and interim spend time arrangements including that the mother’s claim for time to be supervised was, he said, unwarranted.
By her outline of case, the mother sought sole parental responsibility doing so on the basis that there was, she said, “very limited scope for functional joint parental responsibility.” In addition the mother relied upon the child’s primary attachment to her as supporting a conclusion for the child to have primary residence with her. The mother also relied upon allegations respecting, it was said, the father’s erratic behaviour, history of drug use, family violence including such violence in the presence of the child, this being said to constitute exposure to psychological harm of a level which justified the child only spending time on a supervised basis with her father. Upon her case it was also necessary for changeovers to occur without contact between the parties. Those matters notwithstanding, the mother submitted her orders were necessary to ensure the parties’ child would have a meaningful, but safe, relationship with both parents.
On 19 October 2020, the proceeding was the subject of a first directions hearing and on that date it was set down for final hearing on 19 August 2021 with orders being made regulating the orderly preparation of the proceeding for trial including for the parties to undergo psychological assessment by Mr B and for a family report by Dr C.
Further orders made on 19 October 2020 provided for the child to live with her mother and spend time with her father, twice per week, at a family contact service. While the proceeding was adjourned for a mention on 15 March 2021, in the interim, orders were made for the parties to attend upon Dr C for the purposes of a child inclusive conference.
On 9 March 2021, lawyers presently acting for the mother filed a notice of address for service.
On 15 March 2021, the parties’ consent order for spend time was discharged and in its place orders were made for the child to spend time on three days each week and on other special occasions. Ancillary parenting orders were made including for a family report to be prepared before 1 July 2021 and for the psychological assessments by Mr B to be supplied to
Dr C. Orders were also made for each of the parties to undergo hair follicle testing. The mother opposed the father’s application to commence unsupervised time with the child.
On Friday, 14 May 2021, the lawyers now representing the mother wrote, notifying the father of instructions to seek orders to relocate from Melbourne to Queensland. The issue, which on the father’s case, had never been flagged at any earlier stage was grounded upon an assertion as stated in the letter that “Since our client engaged her initial legal representatives, she was of the mistaken understanding that she could not relocate interstate.” The advice contained in that letter was given to the father’s lawyers in the context that it was intended to provide the letter to Dr C on Monday, 17 May 2021 and so, it was said, to afford the father an opportunity to respond before they did so. The time at which that letter was transmitted on Friday, 14 May 2021 is not presently disclosed by the evidence. For present purposes, it is sufficient to recognise that the belated relocation proposal is opposed by the father.
As appears in greater detail below, on Tuesday, 18 May 2021, the parties attended with their child upon Dr C for the purposes of assessment and the completion of a family report.
On the father’s case, on 21 June 2021 Mr B wrote to his lawyers stating that there had been no contact from the mother for her psychological assessment and that this silence was to be seen in the context of her agreement as at 3 June 2021 to such an assessment. Regrettably, although the mother continues to depose to her willingness to attend on Mr B, still this has not yet occurred. The mother deposes to communications with Mr B and appears to suggest he has not had availability, or has cancelled particular appointments. Of more immediate significance is what evidence, if any, will be adduced as to the mother’s psychological presentation, particularly in light of the issues raised by the notice of risk.
Pursuant to the interim orders that have been made, such assessments were to have taken place by 1 June 2021. Instead, it appears the mother made arrangements to attend upon Mr B on 24 July 2021 some months after the date specified by the interim orders. While inquiries made on 19 August 2021 indicate Mr B will be able to consult with the mother shortly after 2 September 2021, I do not ignore that by the mother’s account she attributes any failure to attend for assessment as involving a cancellation by Mr B of one appointment. Again, since this issue has also been resolved by consent orders, it can be passed over.
Relatedly, the father gave an account of his attendance on Dr C on Tuesday, 22 June 2021 and that he did so in circumstances where on Friday, 18 June 2021, the mother’s lawyers wrote advising Dr C and the father’s lawyers that she would not attend upon Dr C on the appointed date and remarkably, “does not agree for it to proceed without her.”
By mid-July 2021, the parties flagged that “logistical issues” were being encountered which may render compliance with orders for trial preparation more difficult than had been anticipated. Of greater concern, the applicant solicitor stated that for a significant period the father’s time with the child had been suspended and that the mother had introduced, without any earlier notice, a suggestion of relocation being in issue. Despite the parties’ intimation that the matter could simply be “adjourned off” and re-fixed for another hearing, a direction was given requiring the parties to attend on 19 August 2021 to explain the lack of real progress.
On 5 August 2021, the father filed an amended initiating application seeking interim orders for a change of residence for the child so as to live with him and spend time with the mother. Further, a series of ancillary orders were sought to facilitate that the mother attend for assessment by Mr B and other matters including a report pursuant to s 69ZW of the Act.
Both the father and mother filed further affidavits which I have examined. By his affidavit made on 5 August 2021, the father telegraphed that Dr C had indicated a preference not to conclude his family report at that stage but instead to provide an oral report to the court and for the parties at the mention on 19 August 2021. Dr C’s proposal was consistent with his initial retainer as a joint expert to conduct a child inclusive conference and provide a memorandum. As Mr Lethlean of counsel for the applicant properly submitted, in the ordinary course where a child inclusive conference has been held and a memorandum provided, the author of the report will commonly provide an oral report to the court. The adoption of that course was then opposed by Dr Ingelby. Dr C reports have been of real and significant assistance.
On 19 August 2021, submissions were received from counsel as to the appropriate course to be adopted on that date in relation to the father’s interim application for a change of residence. With the assistance of counsel it was possible to identify a range of matters which collectively might promote the prospect that the real issues in dispute in the proceeding were identified and properly prepared for the purposes of the trial. As stated, the court was able to accommodate the child’s best interests by the orders made on 20 August 2021 including for the conduct of a final hearing at the earliest available date. Although counsel were directed to formulate a joint minute and to provide it after the luncheon adjournment, most regrettably, the direction became the vehicle for further disputation between the parties. The minute as drafted did not address a significant number of the issues that had been raised in the course of submissions.
At all events, Dr C gave an oral report to the court upon the two outstanding issues as detailed above. The court was particularly assisted by his observations. The submissions advanced on behalf of the mother identified any number of reasons why, it was said, the question of overnight time should be deferred until the final hearing. The court had the considerable benefit of robust exchange with each counsel upon relevant issues.
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.
While I have summarised the procedural history above, it may be noted that in August 2021 the father filed an amended initiating application, supported by affidavit, seeking interim relief for a change of residence arising from essentially three overlapping matters: ongoing lengthy suspensions of time which, on the father’s case, were wholly unjustified; ongoing failures by the mother which, on the father’s case, involved unjustified non-compliance with court orders, including by not following recommendations of jointly appointed professionals; observations made both by Dr C (and, again, on the father’s case, validated by his colleague Mr H), and the Victorian Child Protection Service which were of a concerning nature.
It is unnecessary for the purpose of these reasons for judgment to explore the extensive periods of time on which the child has been withheld from the father. It was common ground that the child has not spent nearly 200 hours of time with her father despite agreement being reached and recorded in earlier interim orders. Accepting Dr Ingleby’s submission that it cannot be said the mother is in breach of those orders in circumstances where no finding has been made whether or not a reasonable excuse existed for suspending the child’s time with her father, in any event, the issue has hopefully been rectified by her agreement on 19 August 2021 to allow for an increase in time to make up for the time which has been lost. Relatedly, it is unnecessary, in light of the evidence by Dr C that an extension, by one hour, is clinically neither here nor there in relation to spend time arrangements on a particular day, to resolve that question on an interim basis or as being a dispositive issue on an interim basis. The position of opposing the extension of time was taken by reference to a statement in Dr C’ February 2021 report that he generally supported an extension of time but felt the issue should be explored later in 2021. August 2021 is apparently not late enough despite the withholding that has occurred.
Of greater concern are allegations that changeover has become increasingly problematic with the process being dragged out by the mother and that this is occurring despite recommendations made by Dr C in his February 2021 memorandum. Commendably, this issue is also resolved, presently. Without delaying unnecessarily on the issue and as observed in the course of submissions, the evidence contains suggestions the mother’s lawyers are engaged in ongoing communications with Dr C seeking further recommendations including opinions as to “additional steps” and doing so undercover of the suggestion that this is necessary to assist the parties and the child at changeover so as “to assist her not to be distressed.” These matters were reiterated in the mother’s affidavit. Without having conducted a granular examination of this issue (or suggesting that it is warranted), there may be some basis for a conclusion that it is thought to be easier to abdicate parental responsibility by passing it over to independent experts rather than recognising the need to deal with the matter as a parent.
The spectre of increasingly problematic relations at a parental level is apparent from the father’s evidence that changeover is now taking over 40 minutes to effect and that after the child has spent time with her father, text messages are being sent by the mother which in seemingly and increasingly strident terms suggest, subjectively, the mother considers the child is not excited to spend time with her father or happy to do so and that it is for the father “to address the elephant in the room. The emotional and physical state you return X to me.” Objectively, the father has adduced the mother’s text messages reflecting her views.
Quite apart from the father’s case, it is beyond argument on the mother’s case that she regards changeover as being extremely difficult and involving the child in experiencing “ongoing, palpable distress” such that the child, on her case, clings to her and refuses to go to the father with changeovers taking some 30 – 40 minutes to occur. Her untested evidence is to portray a situation in which “the Father would forcibly grab X and leave the changeover location” with the child crying and screaming in his arms. Upon her case she responds to what she perceives to be criticism by the father about her conduct at changeover. In the same context, the mother’s affidavit made on 17 August 2021 at [8], describes a series of behaviours in the child which on her own case she considers to evidence her regression in development.
On the mother’s case, she contends that the child returns to her home after having spent time with the father exhausted. If it is of assistance, some insight to the problem and its nature may, upon a full testing of the evidence, emerge from the mother’s case that “I have many photos and videos of X returning to my care completely limp and exhausted after spending time with the Father.” That the mother perceives it to be necessary or appropriate to dedicate resources to taking many photos and videos to document those matters is notable.
It is not necessary to recount the ongoing difficulties which have occurred in securing the attendance of the parties with their child, including for urgent reportable consultations with Dr C since May 2021. Nor is it desirable to examine in particular detail the father’s version of events (or indeed, the hearsay evidence of a joint conference convened by Dr C with the parties’ lawyers). As observed in the course of submissions, and accepting the proceeding is to be conducted in the manner authorised by Div 12A of the Act, it will be a matter for the parties whether their evidence is in proper, sequential and cogent form.
Instead, for the purposes of the present interim application it is far preferable to note the observations Dr C provided to the court, the parties and their legal representatives that he observed in the mother what he considered to be a disturbed and dysfunctional attachment to the child of a kind which he had never seen over the course of his career and of a scale that prompted him to bring his colleague, Mr H, into his rooms so as to validate and confirm his observations. While Mr H has not given evidence (and it is not being suggested he should do so), within the parameters of a parenting proceeding, objectively, it is instructive that an experienced practitioner formed a view of this kind such as to initiate Dr C’ decision to request Mr H to come into his rooms and, as it were, to “see for yourself” the immediate and profound change in the child during transition in the changeover from the mother to the father. Dr C described the child as being fraught at the prospect of not being with her mother and “within less than 20 seconds” becoming settled and a completely different child in the care of her father (that is, once the mother had been physically removed from the room). Dr C was clear that some of the most useful data that could be available to him in his evaluation of the parents, the child and their relations and his opinions upon the matter, was being able to observe a child and the interaction of that child with each of his or her parents.
Before me, Dr C was unqualified in his support for an immediate transition to some overnight time and regarded that this too would be valuable data, both for the purposes of completing his report and for the evidence which could be given at the forthcoming trial.
While some of the evidence is in a less than satisfactory state, it is suggested that on 20 May 2021, a conference was held between Dr C and the lawyers acting for the father and mother respectively and at which discussion was held as to the mother having a disturbed attachment to the child of a kind the like of which Dr C had never seen before. Again, while the evidence is untested, it is to be hoped that the topics discussed by Dr C on that date may be addressed in his family report. I paid regard to the ‘evidence’ on the interim hearing. Dr C had convened the joint conference with the parties’ lawyers on 20 May 2021. Both lawyers being present, no question arose of being taken by surprise. Being child related proceedings the court was authorised to do so by par 69ZT(1)(c) of the Act. Most importantly, I considered that to do otherwise would be to ignore the requirement in deciding whether to make a particular order, to have regard to the child’s best interests at the interim hearing: Act, s 60CA. In any event, Dr C gave an oral report of his observations to the court.
Further, in light of the parties’ agreement upon particular parenting orders, it is unnecessary to examine, but only to record that upon the father’s case over many months the mother’s lawyers have not responded, whether in a timely way, or perhaps at all, to requests for agreement that the paternal grandmother may spend time with her granddaughter when she is with her father.
There is also some evidence of continuing behaviours by the mother including by way of communications from her lawyers stating their client’s intention to continue to suspend time and advising that Child Protection had been contacted to investigate stated concerns held by the mother in relation to the child while in the care of the father such that time would continue to be suspended until that investigation had been concluded. Whilst this issue was dealt with by the making of an order pursuant to s 69ZW of the Act, I note there is also some evidence of discussions held between Child Protection and the father in which he was told, amongst other things, that the child may be regressing in her development and that concerns were held by Child Protection arising from the child only spending time with her mother and, contrastingly, of no concerns being held for the child to recommence spending time with her father.
It may also be that despite advice on 11 June 2021 by Child Protection to the mother (both orally and in writing) that the spend time for the child with her father should not be suspended, this advice was disregarded until 16 June 2021 when Child Protection advised the mother that it’s investigation had been concluded and no protective actions would be taken.
Next was the introduction of a series of ‘conditions’ sought to be placed by the mother upon the child spending time with the father including that: changeovers for spend time would be professionally supervised; the cost of such supervision would be at the father’s expense; changeover was not to be effected if the father attempted to forcibly remove the child from the supervisor. These proposals were rejected by the father who, having made arrangements for an independent professional supervisor, K Family Supervision, to facilitate change overs, reiterated his preparedness for the parties to share such costs equally.
The recommencement of time continued to meander until 18 July 2021 which meant, in effect, that until then the child had not seen her father at any time for two months; that is, apart from on 18 May 2021 at Dr C’s rooms. In addition, the father’s evidence is that it was necessary for him to communicate on several occasions with K Family Supervision to find out “where things were at”, only to be told after the resumption of spend time that while he considered there had been no issues at changeover (and it had been completed in its entirety within two minutes without incident), the mother had contacted the supervising service to advise that the changeover had been very traumatic for the child who experienced great difficulty in separating from her mother. Upon the whole of the (untested) evidence, including that given by Dr C (below), an emerging picture may be that the mother is conflating the fact of the child being released by her, with the fact of the child being delivered at handover, the latter event apparently involving the professional supervisor rather than the mother.
On the father’s case, a further troubling aspect of the matter emerged on 30 July 2021. Although, by his account the child’s visits to that point had all gone very well, on this date he observed the child to be acting strangely and recounted her to appear lethargic and to make a series of statements, and on several occasions including “Daddy bad, Daddy bad” and “Sorry Daddy, sorry Papa” all of which the father considered to be remarkably out of character for the child and of a kind he had not seen at any earlier stage. On another issue, the father expressed concern that the mother continues to breastfeed the child who sleeps with her mother. One aspect of the concern over breastfeeding is that it seems to be deployed immediately after the child has spent time with her father once changeover has been completed.
The father’s affidavit made on 5 August 2021 provided a description of his present circumstances including that he remains in his relationship with a partner who shares equal care for her three children (aged 10, seven and five respectively) and enjoys an excellent co-parenting relationship with her former partner. The father who spends 10-11 nights per fortnight in his partner’s home described the care which he provides for those other children and the relationship he enjoys with them and which they enjoy with his daughter. The father’s evidence spoke of the lengthy and detailed discussions which he and his partner have had about the steps which they would take if his daughter was to come into his primary care and how he would adjust his work schedule, matters which it is not presently necessary to examine. From one perspective, the father was to become the subject of criticism for having given this evidence and yet, equally, he would have been criticised for a failure to have done so.
Before leaving those topics, something should be made of the trenchant criticism which was directed at the imprecision of the father’s evidence, including that the father and his partner are looking for a bigger home. It was, with respect, somewhat revealing that such insistent criticism was made of the father’s circumstances and proposals, particularly in light of the matters addressed by Dr C. More precisely, whilst afforded several opportunities to do so, it was difficult to elicit from counsel for the mother a cogent response to the recent, observed and validated independent opinion evidence of Dr C that the mother exhibited a disturbed and dysfunctional attachment to the child and why, in such circumstances, it would not be in the child’s best interests to increase the time that she would spend with her father. Stated in other terms, and to adopt the language employed by the mother, rather than confront the elephant in the room – dysfunction attachment – criticism was directed at other issues.
It is common ground the mother is pregnant and expecting to deliver a child in late October 2021, doing so in circumstances where she agrees the identity of the father is unknown.
Notices of risk
On 18 June 2019, the father filed a notice of risk stating, in effect, the child was not at risk save for the prospect of being removed from the Commonwealth by the mother or her family.
By a further notice of risk filed on 8 July 2020, the father alleged the mother exposed the child to family violence, which allegations had been reported. The particulars to the father’s notice bear repeating for the intensity of the language which, he alleges, is being directed at him:
The father alleges that the mother has verbally abused him in front of the child, including but not limited to screaming at the father words to the effect “you wanted to murder X”, “you’re the worst person I have ever met” and “fuck you”. The mother has sent the father abusive text messages, including swearing and name-calling such as “cunt”, “chicken shit”, “deadbeat dad”, “fucking lieing piece of scum and “fuckn moron”.
The father alleges that the maternal grandfather (who lives with the mother and child) has made threats to harm the father, including but not limited to threats to “shoot” and “fight” the father.
The father alleges that the maternal uncle has sent abusive text messages to the father, including but not limited to words to the effect “you are a fucking pig if you want to keep the child you wanted aborted and dig the mother who loves you and saved X’s life” and “fuck you cunt” and “you are a superstar in your own lunchbox. For the rest of the world, you are a broke addict that can’t get his shit together and lives with mummy and daddy” and “bogn wanker”
Particulars relied upon by the father as constituting circumstances which posed a risk to the child were that the mother had undiagnosed and untreated mental health issues. Otherwise, the father’s more recent notice made no other allegations of risk.
By her initial notice of risk filed on 7 August 2019, the mother made allegations that the child had been, and was at risk of being, abused by the father, basing those matters upon allegations the father had committed family violence by threatening and acting aggressively toward the mother in the presence of the child. Complaints were raised of the father having had sexual intercourse with the mother in February 2019 which had caused her pain and of having “frequently engaged in abuse of drugs and alcohol.”
By her further notice of risk filed on 10 August 2020, the mother reiterated these allegations. Further allegations were made that the father had attempted to run the mother over in his vehicle and that his constant family violence had variously been reported to her maternal health nurse, MABEL, police and its SOCIT unit since June 2019. Allegations were made that the father had untreated mental health issues and constantly abused alcohol and frequently used cocaine.
On 21 August 2020, the then Department of Health & Human Services provided to the court a response pursuant to s 67Z of the Act stating that it intended to take no further action. DHHS identified one report made on 21 June 2019 that had been closed at intake and which concerned issues in relation to the mother’s alleged mental health difficulties and history of drug use. DHHS also recorded the allegations of multiple family violence incidents said to have been perpetrated by the father in the period June – July 2020 involving verbal and emotional abuse.
Supervised contact
Although it was not the subject of any submissions, I note that an affidavit made by Ms L on 7 July 2021 exhibited the series of supervised contact visits undertaken at a family contact centre in the period 25 November 2020 to 11 March 2021.
Nothing in those reports ground any reason to consider risk factors have arisen in relation to the father’s conduct or parenting capacity. Observations include that from the outset the child demonstrated warm recognition and affection toward her father which was reciprocated.
Without rehearsing all of the detail in these observational records, the father was invariably seen to interact both physically and verbally and emotionally with the child in a positive and appropriate manner and to assist the child in her interactions with others. Moreover, the father was observed over several occasions to act protectively toward the safety of the child and to cater properly for her dress, nappy changes and feeding.
Notably, changeovers did not appear to be difficult.
More problematic however, was a post contact addendum recording an entirely regrettable exchange between the contact supervisor and the maternal grandfather who asked her whether she “knew how bad the guy was?” and upon being advised not to discuss the issues with her but instead to raise them with the mother’s lawyers was informed the mother had changed lawyers several times because they were not being treated properly because of their ‘origins’. Undeterred, the maternal grandfather kept speaking to the supervisor and then followed her to her car where he was told not to say anything further and that she left. Those matters, while untested, may speak loudly to the veracity of the matters addressed in the father’s more recent notice of risk as set out above. In this context, I note there is some evidence from the father of a history of deep antagonism being shown toward him by the maternal family including that the maternal grandfather has threatened to shoot him.
It may also be noted that in December 2020, the mother communicated by email with the supervisor, proffering an explanation why the child would not be attending for supervised time adding by way of closing statement “What can be done to ensure the report will be accurate.”
Child inclusive conference – Dr C
On 19 February 2021, Dr C, who had been retained as a single expert furnished a memorandum following a child inclusive conference that was held on 15 February 2021 during which a clinical interview was conducted with each of the parents and observations were made of changeover with the child. The report identified the documents then provided to the expert.
In the course of recounting the background to the matter, Dr C noted the parties’ differing accounts of the nature and quality of the relationship including allegations by the father that the mother was controlling and overbearing, forcing him to sever ties with his friends and family, while the mother contended the father to be prone to aggressive behaviours and included allegations of cocaine use in February 2019. Allegations of sexual abuse as articulated by the mother were denied by the father who expressed shock and dismay at the allegation. Further, the mother identified addictive tendencies in the father including of gambling and resulting in her being prevailed upon to lend him $6,000 for that purpose.
Mutual allegations of mental illness were directed by each of the parties.
Dr C observed there to be no co-parenting relationship between the parties and considered there to be no suggestion the father had ever been aggressive or hostile toward the respondent mother during changeovers.
At the time of preparing his child inclusive conference memorandum, Dr C identified three areas of immediate concern in terms of risk which may warrant consideration by the court being whether: the mother behaved in an erratic, unstable and controlling manner; the father had been verbally and/or physically abusive and physically aggressive toward the mother in the presence of the child (including the allegation that the father had attempted to run her over with a car); the father had sexually assaulted the mother.
I have considered the data obtained by Dr C upon interviewing each of the parties including the father’s emphatic denial of the allegations raised against him and the evidence he proffered of contemporaneous documentary exchanges in which the mother demonstrated affection toward the father immediately after the very time she claimed to have been sexually assaulted.
In terms of the mother’s erratic nature, the father recounted her difficulty with interpersonal relationships including at school and at work and identified that the mother had earlier obtained an IVO against a fellow student (and also against his mother). Dr C recorded the father’s account that while the child’s time with him was progressing well, he acknowledged there had been some instances in which the child had struggled to separate from her mother and that the process of separation had become complicated, including with instances where the mother would “immediately breastfeed the child after a visit seemingly to exaggerate the reunification process for the child.” This is an issue upon which Dr C may be asked to comment.
From the father’s perspective, in February 2021 he wanted a good relationship with his daughter and for the following “I just want all of the lies to stop. I want Ms Thornton to be able to work with me, but to be honest, it’s got to the point where I don’t think she can.”
At interview, the mother impressed Dr C as being nervous. She acknowledged a complete absence of communication between the parties. She expressed a distrust of the father and asserted his tendency to lie and to place the blame at her feet for anything that went wrong. When the allegation of sexual assault was raised by the mother, her affectionate text message of the following day was put to her for comment. Her response seemed not to deal with the question being posed in that she replied “at the time, I wasn’t aware of what it was.”
Dr C also noted another instance in which, while the mother had asserted the father being aggressive and threatening to take the child, “when pressed, conceded that she had actually snatched Mr Little’s phone as he was recording her mother, and it was actually Mr Little attempting to retrieve the handset from her.”
Whilst allowing for the importance of the child developing a relationship with her father, at the time of interview the mother’s stance was that the amount of time being spent “it’s enough.”
Insofar as the mother’s mental state was addressed it appears she acknowledged having struggled with her mood during her teen years and having used psychotropic medication that the mother said she had been prescribed after “having a bit of an eating disorder thing.”
Dr C observed the child to be weary and reserved, often gravitating toward the mother and of refusing to separate from, and clinging to, her, and to be crying. Attempts to separate the child from the mother were largely unsuccessful.
Dr C distilled the issues before the court and described the situation between the parents as having become entirely dysfunctional and as involving a substantial financial, emotional and social cost to each of them in which trust and goodwill had broken down entirely. Communication in any meaningful way was non-existent and predicted to be irrecoverable.
Dr C found it difficult to envisage a scenario in which these parties could ever co-parent in a functional manner or discuss arrangements for their daughter in a collaborative way. He made a number of recommendations to assist them with useful strategies.
Dr C emphasised (by the use of bold type), that he had not formed a clinical impression the child was at an unacceptable physical risk in the care of her father or that supervision was warranted. The mother’s allegations of aggressive behaviour impressed him as being cursory, disjointed and internally consistent. While he accepted there may have been heated exchanges between the parties, he observed, aptly, that this was entirely unsurprising in the dual context of a deteriorating romantic relationship and the stress, for new parents, of parenthood (potentially coupled with other, unhelpful, involvement by the parties’ respective families).
Dr C concluded that as concerned the parties interaction, save for basic communication, it should be minimised and for change over to occur by an indirect means either by a paid child contact service or an agreed third person. Emphasis was placed upon the need to minimise distress to the child including by the mother lingering less (not longer), in the process and of avoiding counter-productive conduct upon reunification as by immediate breastfeeding. Other solutions were proffered. Dr C considered each parent should complete a mental health assessment before the family report was finalised.
In conclusion, Dr C considered that in absolute terms he believed it important for the child to be spending longer periods with her father and for her to do so in a less structured environment including by being able to see her paternal, extended, family. Recommendations to this were made including for an increase in time toward the end of 2021.
Psychological assessments – Mr B
To this point, only the applicant father has been assessed by Mr B whose report dated
21 June 2021, I have considered. Mr B identified the documents that he had considered in the communications which he had held including his consultation with the father on 5 June 2021. Mr B’s report, arranged in seven sections, relevantly identified the following: personality assessment inventory (PAI) analyses; consideration of background facts and materials; forensic and clinical interview and conclusions and recommendations.
By way of overview, Mr B concluded the father did not suffer from any major mental illness or personality disorder but was experiencing significant stress as a result of the present litigation and matters being raised in it (which the father considered he was managing reasonably well but may be supported by professional assistance to build strategies to cope).
Mr B considered the father had completed the PAI analysis in a manner which contraindicated carelessness, reading difficulties, confusion, exaggeration, malingering or defensiveness. Having identified and reflected upon a tendency in the father to portray himself as being relatively free of common shortcomings, Mr B did not think the data collated from the PAI analysis underrepresented the extent or degree of any significant findings on account of the father’s tendency to avoid negative or unpleasant aspects of self. No evidence was found to suggest the father was motivated to portray himself in a more negative or pathological light than was warranted by the clinical picture which emerged.
Mr B found no marked elevations as might indicate the presence of a clinical psychopathology but allowed the father’s self-description might suggest a readiness to feelings of being treated inequitably or the subject of concerted efforts by others to undermine his interests. In addition, the report recognised the father is a person who experienced moderate degrees of stress, distress and anxiety including as arising from the death of a close friend and the current pressures the parenting proceedings were having upon him. Although the report did not refer to the matters quoted above from the father’s notice of risk respecting the manner in which the mother and her family members have spoken to him, this may be an issue which warrants some limited consideration at trial.
Mr B excluded other significant psychological or emotional factors as having an impact upon the father and excluded current problems with alcohol or drug abuse or dependence. In the view expressed by Mr B the father was considered to be generally stable and positive in his self-evaluation and reported the father was normally a confident and optimistic person who approached his life with a clear sense of purpose and distinct convictions. Mr B regarded those characteristics as being valuable for resilience and adaptiveness.
Mr B considered the father as having a strong need for acceptance which likely dominated his interactions with others including by attempting to avoid conflict, rendering him vulnerable to being taken advantage of and exploited. A favourable prognosis was given.
Issues of suicidal ideation or self-harm were excluded and as concerned anger management, the father described himself as being unassertive and as having difficulty in standing up for himself even when assertiveness was warranted.
As to background facts and materials, I have examined the matters considered by Mr B.
Upon his forensic and clinical assessment, Mr B examined a range of issues which included that: the father impressed as an honest informant who had good levels of personal insight even when discussing issues that were contentious or difficult for him; the father demonstrated focus and good concentration and accepting as generally accurate the PAI profile generated from the answers he had given including upon more difficult subjects; the father revealed no significant mental health or personality problems; the father had good relationships with his parents (who were still alive) and siblings despite the stress of the present proceedings; the father had enjoyed a happy and loving childhood, a similarly good and happy adolescence maintaining friendships with many schoolmates; the father obtained his apprenticeship after Year 12 “as a tradesman . . . I’m still a tradesman and I enjoy my work a lot.”
The father described his relationships and excluded any major physical health problems or having experienced any significant mental health problems or historical exposure to abuse.
The father candidly confronted issues in the allegations of alcohol and drug abuse which were examined by Mr B and to which the father readily acknowledged having a few tinnies on Friday or Saturday nights (“10 would be a lot . . . A special occasion . . .”), and that he would last have been drunk perhaps three months ago. As to cocaine use, Mr B stated “He seemed quite frank and open about his using cocaine recreationally in the past . . . She knows I only used it recreationally . . . she used it occasionally too . . . It really is in the past . . . I haven’t been near it for years.” The father has no criminal convictions.
As concerned parenting, Mr B recorded the father had adopted or modelled his role toward the child as being similar to that taken by his parents “fun and stern when I need to be . . . I want kids to have plenty of chance[s] to enjoy themselves and to learn . . . But I know how to set limits too.” Mr B considered the father had good insight in relation to the detrimental impact which parental conflict would have upon the child.
Parenting orders – applicable principles
Part VII of the Act, Children, is arranged in 16 Divisions and comprises ss 60 – 70Q. Section 65D provides that the Court may make such parenting order as it thinks ‘proper’.
The objects of Part VII are stated in s 60B(1). They include to ensure that the best interests of children are met by protecting them from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence: Act, s 60B(1)(b). Principles underlying those objects recognise the manifold rights of children with respect to their parents: s 60B(2). The principles in s 60B(2) are framed in terms which admit of an exception that: “where it is or would be contrary to the child’s best interests”, such rights may then be subordinated.
In determining the best interests of a child, two primary considerations must be taken into account. By s 60CC(2), the Court must consider:
(a)the benefit to the children of having a meaningful relationship with both of their parents;
(b)the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
Act, ss 4(1) (abuse); 4AB(1) (family violence); 60B(1)(c), 60CC(1) (determining child’s best interests); 60CC(2) (primary considerations).
Additional considerations to be addressed are prescribed by pars 60CC(3)(a)-(m).
The Court is required to give greater weight to protecting children from physical or psychological harm and from being subjected, or exposed, to abuse, neglect or family violence. Where the circumstances require, the need for protection from harm as addressed by par 60CC(2)(b) may well assume prominence over allowing for a meaningful relationship with both parents as addressed in par 60CC(2)(a). This conclusion is reinforced by the exception provided for in par 60B(2) above.
When deciding what parenting orders ought to be made in proceedings under Part VII of the Act, the best interests of the children are the paramount, but not sole, consideration: Act,
s 60CA; Morgan & Miles (2007) FLC 93-343, [59], [73], [79]-[80]; Franklyn & Franklyn [2019] FamCAFC 256, [28] and cases cited.
Interim orders
The applicable principles were assumed rather than addressed. The principles in Goode v Goode (2006) 36 Fam LR 422, apply to the determination of an interim application for parenting orders: (2006) 36 Fam LR 422, [66]-[82]. There, the Full Court drew attention to the amendments effected to Part VII of the Act, the objects of Part VII and the imperative requirement that the Court must have regard, as the paramount consideration, to the best interests of a child in deciding parenting orders: (2006) 36 Fam LR 422, [7]-[10].
The Full Court in Goode, confirmed some statements in Cowling & Cowling (1998) 22 Fam LR 776 as applying following certain important amendments to the Act. It accepted that the procedure in making interim parenting orders would continue to be an abridged process such that the scope of enquiry was, of necessity, to be significantly curtailed from that which will obtain at a trial. It recognised that the Court is nonetheless constrained by an imperative requirement to “have regard to the best interests of the child as paramount in deciding what interim orders to make” (2006) 36 Fam LR 422, [69]. The Full Court held at [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. (emphasis added)
While it is not necessary to examine the following matters for the purposes of the present application, the availability of the power to make a parenting order for a child to spend equal, or substantial and significant, time with a parent is conditioned upon the Court being satisfied that to do so would be in a child’s best interests and was reasonably practicable. If it is concluded as a fact not to be so, the power conferred by s 65DAA is not engaged: MRR v GR (2010) 240 CLR 461, [9], [13], [15]-[16]. As that decision confirms, the Court is concerned with evaluating the reality of the situation and for it to make a practical assessment of the feasibility of equal or substantial spend time in all of the circumstances of the particular case. Those matters may, however, require more detailed consideration at trial.
Upon an interim hearing, the following principles stated in Goode’s case (2006) 36 Fam LR 422, [82] are applicable when following the legislative pathway:
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.
In an application for interim parenting orders, the Court must have regard to the considerations in ss 60CC(2)-(3). Where the exception in s 60B(2) is engaged, the rights of a child in relation to his or her parents should yield to the paramount consideration of deciding what orders are properly to be made in a child’s best interests: Act, ss 60CA, 67V.
The matters considered above are to be applied consistently with s 61DA(3) of the Act which provides that when the Court is making an interim parenting order, the presumption of equal shared parental responsibility applies unless the Court considers that it would not be appropriate in the circumstances of the case for the presumption to be applied when making an interim order. This issue will also emerge at trial where sole parental responsibility is sought.
Resolution
As there will be little uncontested evidence at an interim hearing, limited consideration of the factors identified in s 60CC may occur. Such consideration as is required at an interim hearing is in large measure defined by the manner in which the parties join issue Banks & Banks [2015] FamCAFC 36, [47]-[50]. While they must be considered, an exhaustive discussion of those factors is not required. Indeed, to do so may risk that “sight is lost of the forest for the trees”, including where the available evidence leads inexorably to a particular conclusion.
At the risk of repetition, nothing in these reasons should be misunderstood as representing final or concluded views upon the evidence or the relative merits of the parties’ submissions upon any issue. It is inherently not open to do so on an interim application where the court has not had the benefit of observing witnesses give their evidence or to more fully reflect upon the substance, or otherwise, of submissions being put in light of that evidence being tested at trial.
However, as observed in the course of argument, an emerging and troublesome theme in the case is that a tendency may be discerned of an over willingness to raise allegations and to do so in a way which distorts historical and more recent events and to deploy them as a means to raise the spectre of risk in a way which may be unwarranted. Similarly, and perhaps more troubling, is a practice which is not uncommonly encountered in this jurisdiction of drafting affidavits in a manner where a deponent chooses not to address matters raised by an the other party’s affidavit but couches the omission under cover of a ‘save all’ qualification that their “silence should not necessarily be taken to admit or deny the content of that paragraph.” The adoption of this practice should not be encouraged. Parties should not assume that a forensic decision not to address specific and significant matters in a responsive affidavit will not be treated as grounding an entitlement for drawing a Jones v Dunkel inference against them, particularly in parenting proceedings and especially where the evidence is of a kind which ordinarily would be expected to be led by that party as part of his or her case.
Since the present application was for interim relief, it is unnecessary to pursue this issue in further detail at this stage. However, it has long been recognised that “the omission to ask questions of a friendly witness is more significant than the failure to call the witness, and the presumption that the testimony would not have been favourable to the party’s case is stronger than the presumption arising from the failure to call him”: see Cross on Evidence, 12th ed (2020), [1215] at p. 45 and cases cited. As the learned author also observed, the significance of the failure also applies to evidence in reply.
As Allsop CJ has observed, litigation is not to be conducted as sport: cf White v Overland [2001] FCA 1333, [4]; All Class Insurance Brokers Pty Ltd (In Liquidation) v Chubb Insurance Australia Ltd (No 2) [2021] FCA 782, [122]. While those decisions did not involve proceedings under the Act, the importance of identifying and only pursuing real issues in litigation is well-settled. To that end, and particularly in proceedings under Part VII of the Act, where a child’s best interests constitute the paramount consideration when making a parenting order, parties and those representing them are required to identify the real issues in dispute and not to advance reasons, limited only by their resources and imagination, why orders should not be made to promote the principles and objects underlying Pt VII of the Act as stated, for example, in s 60B. Indeed, it may fairly be said that a failure to do so is inimical to their paramount duty to the court. Submissions can, should and must be child focused.
In a similar vein, the practice of exploiting the filing of an affidavit as a vehicle for submissions is equally unhelpful, costly and productive of delay.
Insofar as Dr Ingleby opposed a transition to overnight time as little more than an “experiment” I found the submission to be divorced from whether it would be in the child’s best interests to promote the development of spending increasing time with her father. Despite the terms in which the mother’s initial response acknowledged the need for the child to have a meaningful relationship with both of her parents and the recommendation by Dr C that later in this year would be an appropriate time to consider a transition to overnight time, notwithstanding his report given on 19 August 2021, I became increasingly concerned whether a proper basis was being identified for the mother’s resolute opposition to a progression of some overnight time. For the avoidance of doubt, I regarded those matters as informing the instructions that were being provided, and not the adoption of an independent stance having been taken by counsel.
It was submitted that upon settled principles the court was required to proceed on the basis of agreed facts and that since the prospect of agreed facts was, in effect, zero, there should be no interim determination. While the submission was made in relation to the question of an interim change in residence, I understood it to be pressed with no less vigour in relation to the father’s application for a progression to overnight time notwithstanding Dr C report. While it was properly demonstrated that Dr C was not aware of the contents of the mother’s affidavit filed 17 August 2021, including of the extent to which (at [24] of that affidavit), a description was given of the child’s attendance at swimming lessons, play groups, interaction with other children and other activities, including with the Australian Country J community, to say as much serves to reinforce the need for the experts to be properly informed of matters upon which, although untested at this date, parties may rely at trial.
For the purposes of the interim application for an extension to overnight time, it was not suggested that issues of risk pursuant to par 60CC(2)(b) were engaged in relation to the father. Upon the evidence of Ms L, Mr B and Dr C, I am satisfied on an interim basis that the father does not present a risk or that such risk as may be suggested is of a kind which would prevail over the object of the child having the benefit of a meaningful relationship with her father. By contrast, on the available evidence, including the observations made by Dr C of a disturbing dysfunctional attachment between the mother and child, the issue of a risk in this part of the case, its scale, content and how it might be appropriately addressed, is one that is appropriately deferred until trial upon the totality of the evidence being tested. It would be wholly inappropriate to make any findings upon those matters before all of the evidence is in. Suffice to say as observed in the course of the interim hearing, there is a paucity of evidence at present in relation to the question of attachment (and primary attachment) or how those factors should inform the making of final orders that are in the best interests of this child.
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.
I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly. Associate:
Dated: 23 August 2021
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