Marceau and Marceau
[2011] FMCAfam 229
•27 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARCEAU & MARCEAU | [2011] FMCAfam 229 |
| FAMILY LAW – Parenting – evidence of violence – agreed times parents spend with children – admission of evidence – tender of evidence raised but not pressed. |
| Family Law Act 1975, ss.60B, 60CA, 60CC(1) & (2), 60CC(3)(a), (b), (c), (e), (f) & (i), 61DA(1) & (3), 65DAA(1), (2), (3) & (4) |
| Collu & Rinaldo [2010] FamCAFC 53 Goode v Goode (2007) 36 Fam LR 422 McCall v Clark (2009) 41 Fam LR 483 Mazorski v Albright (2007) 37 Fam LR 518 Moose & Moose (2008) FLC ¶93-375 National Employers’ Mutual General Insurance Association v Waind & Hill [1978] 1 NSWLR 372 National Employers’ Mutual General Insurance Association v Waind [1979] 141 CLR 648 Vasser v Taylor-Black (2007) 37 Fam LR 256 |
| Applicant: | MS MARCEAU |
| Respondent: | MR MARCEAU |
| File Number: | CAC 2034 of 2010 |
| Judgment of: | Neville FM |
| Hearing date: | 27 January 2011 |
| Date of Last Submission: | 27 January 2011 |
| Delivered at: | Canberra |
| Delivered on: | 27 January 2011 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Mr Moore |
| Solicitors for the Applicant: | Friedlieb Byrne Solicitors, Wagga Wagga |
| Counsel for the Respondent: | Mr Kenny |
| Solicitors for the Respondent: | Campbell Paton & Taylor, [O] |
ORDERS
Until 17 February 2011:
(a)The children [X] and [Y] live with the Father;
(b)The children spend time with the Mother:
(i)Each alternate weekend from 5:00pm Friday to 5:00pm Sunday commencing 28 January 2011;
(ii)Each alternate Tuesday from 10:00am to commencement of [M] Day-Care on Wednesday commencing Tuesday 8 February 2011.
After 17 February 2011 and pending further Orders:
(a)The children shall live with the Father;
(b)The children shall spend time with the Mother whilst the Father is undertaking his four day shift from 4:30pm on day one (1) to 10:00am on the fifth day (5).
For the purpose of changeover, the Father shall deliver the children to [C] McDonald’s at commencement of the children’s time with the Mother and the Mother shall return the children to the residence of the paternal grandparents at the conclusion of her time with the children unless the children are being returned on Mondays or Wednesdays in which case the children shall be returned to the children’s [M] Day-Care at the appointed time and place.
The parties are restrained from:
(a)Discussing the proceedings with the children;
(b)Denigrating the other parties in the presence and/or hearing of the children;
(c)Allowing any third party to denigrate the other party in the presence and/or hearing of the children;
(d)Posting any entry on Facebook about the proceedings or the children.
The Mother is hereby restrained from:
(a)Permitting the children to come into contact with Mr S unless the Mother is physically present during her time with the children;
(b)Allowing the children to come into contact with Mr S if he has consumed any alcohol twelve (12) hours prior to or during the period when the children spend time with the Mother pursuant to these Orders;
(c)Working whilst the children are in her care pursuant to these Orders.
Pursuant to s.11F of the Family Law Act 1975 the parties together with the children [X] born [in] 2006 and [Y] born [in] 2008 and/or other significant adults including Mr S and the child [Z] attend a child inclusive conference with a Family Consultant of the Federal Magistrates Court of Australia to endeavour to resolve the issues in this case. This will involve attending at the Federal Magistrates Court at Canberra on 28 February 2011 at 10:00am. The Family Consultant is requested to prepare a short form report.
Mr S file and serve an affidavit at least 14 days prior to the next Court event.
The matter be adjourned for further mention on 3 May 2011 at 10:00am.
AND IT IS NOTED THAT: The Court will consider the change of venue for the matter at a later date.
IT IS NOTED that publication of this judgment under the pseudonym Marceau & Marceau is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 2034 of 2010
| MS MARCEAU |
Applicant
And
| MR MARCEAU |
Respondent
REASONS FOR JUDGMENT
Introduction
To accommodate the parties and their young children, this matter was heard at the end of the Law Term vacation, and before the Court resumed formal sittings for the 2011 year.
By reference to both the Benchbook, and to the Transcript of the proceedings, it occupied, in total, the better part of half a day. This was so because, for a significant part of the time, the parties were negotiating to see if agreement could be reached between them. This occurred in a context where I had indicated what might be, and could only be, considered as ‘preliminary views’, if not simply suggestions, about possible outcomes and considerations that seemed to be relevant to the making of orders that were in the children’s best interest.
The time outside of the Court-room was used to inspect material produced on subpoena that was not due for release until later that day.
What follows are the formal reasons for the program and orders for a graduated increase in the time that the children ([X], who is aged 4½, and [Y], who is aged 2½) spend with their Mother, who is the Applicant in these proceedings and who had not seen the children since separation in October 2010.[1]
[1] Ms Marceau said that [X] has been diagnosed with a mild form of autism. She requires, and attends, weekly occupational and speech therapy in [C]. See the Mother’s affidavit, filed on 16th December 2010, para.13. She alleged that Mr Marceau considered the therapy for [X] to be a ‘waste of time.’ See para.30 of the same affidavit. For ease of reference, unless otherwise required, this affidavit will be referred to as “the December affidavit.”
In the light of the discussions with the parties, the regime ordered was intended to bridge the relatively short time (of approximately four weeks) between the Court hearing at the end of January and the parties being able to see a family consultant on 28th February. Indeed, in the course of the hearing, I indicated quite firmly that I was disinclined to conduct any interim hearing without the benefit of independent evidence in the form of a family report, even a brief one.[2] Other independent evidence is, of course, welcome and important, such as police records. Otherwise, as typically occurs, the Court in the present case was being asked to make orders in the context largely of a “he-said she-said” situation. Such a course is unsatisfactory and, in my view, where-ever possible should be avoided. Among other things, this is because the risk of prejudice in the ensuing determination is so great or untenably fraught.
[2] See the brief discussion at Transcript (27th January 2011) pp.9-10. See also the clear benefit recognised in obtaining such a report to ensure “the opportunity to have the best available evidence”, albeit in the context of an adjournment application: Vasser v Taylor-Black (2007) 37 Fam LR 256 at p.265 [49].
These reasons proceed as follows: (a) outline of the orders sought by each of the parties; (b) brief narrative of the facts; (c) summary of legal principle; and (d) discussion of issues for resolution.
Orders Sought
Applicant Mother’s Interim Orders Sought
That this application for interim orders be heard urgently and that all times for service be abridged.
That the Father forthwith return the children, [X] born [in] 2006 and aged 4 years and [Y] born [in] 2008 and aged 2 to the Mother.
That under Section 67Q of the Family Law Act 1975, the Marshal of the Family Court of Australia, the Australian Federal Police and all officers of the police forces of each State and Territory of the Commonwealth of Australia be authorised and directed to recover and deliver the children to the mother, namely Ms Marceau, and for that purpose to stop and search any vehicle, vessel or aircraft and search any premises or place in which there is, at any time, reasonable cause to believe that the children may be found.
That the father, his servants or agents, be and are hereby restrained from again removing or causing the removal of the children from the care of the mother, upon any breach of which by any person that person may be arrested without warrant.
That the father pay the mother’s costs of and incidental to this application fixed in the sum of $5,000.
That the father be served with a copy of the applicant’s application and affidavit filed herein and a copy of this order.
That this matter be adjourned for further hearing on a date convenient to the Court.
Such other orders as the Court considers appropriate.
Respondent Father’s Interim Orders
That the Respondent Husband have sole parental responsibility with respect to the long term and day to day care, development of the children of the relationship namely, [X] born [in] 2006 (aged 4) and [Y] born [in] 2008 (aged 2) “the children.”
That the children live with the Respondent Husband.
That the children spend time with the Applicant Wife as follows:-
a)Each alternate weekend from Friday 5:00pm to Sunday 5:00pm.
b)One half of New South Wales school holidays.
c)That the Respondent Husband and the paternal grandparents shall be given the first option to care for the children in the event that the Applicant Wife has work commitments when the children are in her care.
That the Applicant Wife be restrained from leaving the responsibility for the care of the child to the child, [Z].
That the Applicant Wife be restrained from bringing the children into any contact with Mr S.
Factual Narrative
Mother’s Summary of Evidence: Ms Marceau is aged 26, and the [former] respondent Husband, Mr Marceau is aged 34. Their co-habitation commenced in 2003, and they married in November 2007. As previously indicated, there are two children of the relationship. The parties separated in late July 2010, although Ms Marceau said that she continued to live in the marital residence until 20th September 2010.
Ms Marceau has a daughter from a previous relationship. That daughter ([Z]) will turn 10 in August this year.
Ms Marceau said that she works as an [omitted] in [C]. She does shift work for Tuesday, Wednesday, Thursday, and every second Sunday night. In the course of the hearing, she said that she would stop work (and would consent to an order requiring her to do so) so as to be able to provide unfettered care for the children while they are [formally] with her.[3]
[3] See Transcript (27th January 2011) p.12.
The Mother said that Mr Marceau works in [O], where his roster provides for him to work in a cycle of four days on/four days off.
Ms Marceau said that, after the parties separated, they agreed that the children “would live with both of us.” This is to say that the children would live with their Mother, and with their Father for the four days that he was not working. Alas, the Mother said, this agreed arrangement occurred only once.
Ms Marceau also said that Mr Marceau had refused to return the children to her, and that she had not seen them since 3rd October 2010.[4] Similarly, she contends that [X] has not been attending occupational therapy since early October 2010.[5]
[4] This circumstance accounts for Ms Marceau seeking a recovery order in the Application that was filed on 16th December 2010. It also accounts for hearing the matter during the ‘law vacation.’
[5] See the December affidavit, par.52.
Ms Marceau made a range of allegations of violence and verbal abuse against Mr Marceau that are said to have been suffered by her during the relationship. These included a contention that, on one occasion,
Mr Marceau had threatened her with an axe. At the same time,
Ms Marceau acknowledged that there were no allegations against
Mr Marceau in relation to the children, and that she ‘had no issue [with him] regarding the children’s safety or his capacity to care for them.’[6]
[6] See Ms Marceau’s December affidavit, par.34.
The Mother confirmed that the paternal Grandparents were actively, and regularly, involved in the care of the children.
Ms Marceau confirmed that, in or about March 2010, the local Department of Human Services had removed the children “from our care.” The children were returned to the parties’ care two days later. In my view, I do not, at this stage, need to deal with the circumstances of this incident. An outline is provided in the affidavit material.[7] It did not figure in any of the matters raised in the hearing before me.
[7] See, for example, pars.65 – 73 of Mr Marceau’s affidavit.
However, what was of some moment and discussion related to what might be described generally as ‘criminal matters.’ According to
Ms Marceau, they are as follows.[8]
[8] The following is taken from her December affidavit, pars.71-79.
Mr Marceau has made an application for an apprehended violence order (“AVO”) against Ms Marceau.
Ms Marceau confirmed that she has been charged with aggravated break and enter with intent. That matter, like the AVO proceedings, is before the Local Court at [G]. The ‘break and enter’ charge arose out of events, somewhat benignly described in her December affidavit (pars.71-78), that involved Ms Marceau returning to the former marital residence with the intention of speaking to Mr Marceau “about things” and to collect some of her belongings. She did so accompanied by two men, Mr J and Mr N.
Ms Marceau confirmed that “things got out of hand.” Little other detail was provided in the body of the affidavit. However, a “Facts Sheet” from New South Wales Police is attached to the affidavit as part of Annexure A. The facts speak for themselves. She confirmed that the children were not at the house where and when these events took place.
Father’s Summary of Evidence: While Mr Marceau addressed issues relating to the care and welfare of the children, a substantial part of the Father’s affidavit material was devoted to Ms Marceau’s relationship with Mr S.
Mr Marceau said that Ms Marceau commenced a relationship with
Mr S (the brother of one of the Mother’s co-accused referred to in [31] above) immediately after the parties separated. He said that he had evidence (set out in paras.28 & 29 of his affidavit filed on 25th January 2011) that Ms Marceau and Mr S had had an intimate relationship during the time of the parties’ marriage.
Mr Marceau said that he understands that Ms Marceau and Mr S were engaged on 23rd September 2010. He also said that he was informed by the police in [G] that Ms Marceau and Mr S had moved to [C], and that this move, without informing the police, was in breach of their bail conditions. Mr Marceau said that he does not know where Ms Marceau and Mr S currently live.
In relation to the children, Mr Marceau confirmed that he and his [former] wife discussed the arrangements in relation to the children, but also said that Ms Marceau did not request to see the children until late September.
He also confirmed that, following the incident in relation to which charges were subsequently laid against his former wife (and co-accused), when Ms Marceau requested to see the children throughout October 2010, Mr Marceau told her that she could see the children “anytime you want”; however, Mr S was not to be near the children at all.
Mr Marceau confirmed that on 26th September last, Mr S telephoned him and made various threats, following which the police sought, and on 5th October were granted, an AVO against Mr S.[9] He said also that an AVO was taken out against Ms Marceau on 2nd November.
[9] A copy of the twelve month AVO is annexure D to Mr Marceau’s affidavit.
Annexures F and G to Mr Marceau’s affidavit provide copies of “Facebook” entries posted by Mr S.[10] They are less than flattering, but otherwise not overly illuminating.
[10] Unfortunately, there is no pagination, or complete annexure details, to Mr Marceau’s affidavit.
Mr Marceau stated that his former wife had made no contact with him to see the children since 27th October 2010. He also said that (a) he has endeavoured to put proposals to Ms Marceau for the children to see their Mother, but which have been rejected, and (b) he had instructed his solicitors to commence proceedings in this Court, through the Parramatta Central West Circuit. As it happened, Ms Marceau had commenced proceedings in this Registry of the Court first.
Parenthetically, I note that during the hearing I inquired about transferring the matter to a venue that was closer to the parties. There was no opposition to this course. However, because it worked out that an appointment with a family consultant could be secured earlier in Canberra than in [O], the matter was considered by all best left in this Registry until at least after the Report of the family consultant emerged.
Summarily stated, Mr Marceau confirmed that his proposal was for the children to continue to live with him and for them to spend time with their Mother each alternate weekend and with one overnight stay in the ‘off-week’. He also confirmed that his parents were actively and regularly involved in the care of the children.
Mr Marceau confirmed that he has continued to take [X] to her speech therapist. There is an incompletely marked annexure to his affidavit from [C] Early Intervention Service, dated 9th November 2010, which confirms the degree of the child’s attendance.
Other Materials: There was also filed on behalf of Mr Marceau a supporting affidavit from his Mother, which attested to the paternal Grandparents’ involvement in the care of the children, as well as some observations about the relationship between the parties.
On behalf of Ms Marceau, her solicitor filed an affidavit on
27th January 2011, which annexed relevant correspondence with
Mr Marceau’s solicitors regarding (a) service of process, (b) proposals for the Mother to spend time with the children, and (c) a request for particulars regarding the Father’s opposition to the orders sought by Ms Marceau, and when his Response material would be filed.
Summary of Legal Principle
A convenient summary of principle is provided by Brown J in her oft-cited “twin pillars” statements in Mazorski v Albright. Respectfully and gratefully I adopt her Honour’s comments. Brown J said:[11]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[11] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” Beginning at [20], through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[12]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[12] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall v Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
To the above needs to be added and readily acknowledged the importance for the Court to consider properly any allegations of violence – which clearly have been raised in this case - as they may impact, or likely do so, on what orders should be made that are in the children’s best interests.
Against this jurisprudential framework, the brief outline of facts as alleged by both parties, and acknowledging readily the difficulties that attend interim hearings and the difficulty in making any findings of fact that are not supported by independent evidence, I note the following.
Discussion & Resolution
Shortly stated, it will be recalled that the Father’s position was that the children should live with him and spend time each alternate weekend with their Mother, from Friday 5pm until Sunday 5pm, one overnight in the off-week, as well as half of NSW school holidays. It will also be recalled that the Mother sought that she immediately re-commence spending time with the children, and for the four nights that
Mr Marceau is working.Put another way, notwithstanding the obvious and understandable strains between the parents – in part due to how recent the separation is, in part due to the allegations of infidelity against Ms Marceau, and in part because of the events that have given rise to the charges against Ms Marceau – the reality is that both parties acknowledge the importance of the other parent in the lives of the children. Both parties seek orders that provide for the children to spend time with the other parent. The only or primary question, at this time, is the duration of that time and the circumstances under which it should occur. In this latter respect, the prime concern for Mr Marceau relates to the presence of Ms Marceau’s partner and fiancé, Mr S.
In the course of submissions by, and discussion with, Counsel for
Mr Marceau, Mr Kenny contended that because it had been some months since the children had spent time with their Mother, it was best to proceed cautiously in the time that the children should spend with their Mother. Respectfully, this was a perfectly proper submission. Also respectfully, I agree.However, before detailing those orders, two matters need to be addressed. The first relates to the Court’s consideration of the matters prescribed in Part VII of the Act, in so far as it is possible to do so.[13] The second issue relates to whether there was any formal tender of documents on behalf of Mr Marceau by his Counsel, Mr Kenny.
[13] The significant evidentiary and other limitations inherent in interim proceedings have been recognised by the Full Court. See, for example, Goode v Goode (2007) 36 Fam LR 422 at pp.443 [74] & 445 [81] & [82(d)].
Part VII Considerations: I have already indicated that, for current purposes, the summary of relevant matters to be considered should be taken from Brown J’s comments in Mazorski v Albright. The terms of s.60CC(3) of the Family Law Act (“the Act”) provide the matters to which the Court (if possible) must have regard in framing orders that are (a) in the children’s best interests, and (b) which strike the most appropriate course in ensuring the children maintaining a meaningful relationship with their parents and at the same time protecting them from any of the harms to which s.60CC(2) refers.[14]
[14] In what follows, unless otherwise noted, I mention only those matters from s.60CC(3) that the limited evidence enables the Court to take into account. This is especially so where, as here, the evidence from the parties remains, in large measure, on the typical basis of “he-said, she-said”. Thus, any of the “additional considerations” not mentioned should be taken as being considered by the Court as either not relevant and or the Court is in no position to make any finding in relation thereto.
Given the age of the children, and in the absence of expert, and or independent, evidence the Court may assume that the children have a secure attachment with their Father. Their Mother (as previously noted) acknowledged that the Father gives rise to no concerns about the welfare of the children while in his care – or in the care of the paternal Grandparents. The fact that Mr Marceau proposes orders for the children to spend overnight time with their Mother would also suggest that there is sufficiency of both attachment and care between the children and their Mother as to allay any concerns in this regard.
Not dissimilar matters, in my view, are relevant to issues contemplated by sub-paragraphs (c) and (i) of s.60CC(3). This is also to say that the Court should be cautious, at this very early stage in the proceedings, about making too quick a judgment about things like parental attitudes, co-operation, communication and such things amidst the stresses and strains of a very recent separation and other post-separation turmoil, and without the benefit of some assessment by a family consultant.
Mr Kenny, for Mr Marceau, raised questions about the Mother’s current living situation and circumstances (e.g. her current address, her employment status and in turn her ability to provide for the children). In my view, such matters cannot be properly considered ‘on the run’, so to speak. The reality is that Mr Marceau is content, on his ‘orders sought’, for the children to spend overnight time with their Mother each alternate week-end, and for one ‘overnight’ in the ‘off-week.’
While Mr Kenny raised questions about the exact living and working circumstances of Ms Marceau, which matters are relevant to those things comprehended by s.60CC(3)(e) and (f), for similar reasons previously expressed, I am concerned to make too many orders in the current very early stage of the proceedings without the benefit of more fulsome evidence before the Court and (with no disrespect to either of the parties’ representation) more fulsome forensic examination, both of which are necessarily circumscribed in interim hearings.
Those parts of s.60CC that relate to violence are important and significant considerations here, fortunately not in relation to the children, but rather in relation to the parents. In my view, the detail in the annexures to Mr Marceau’s affidavit is plain and concerning. There are now formal restraints in place provided by another Court. The parties do not live together. To the degree appropriate, there should be minimal direct contact between the parents, again until (a) the Court has the benefit of a family report, and (b) the aggravated break and enter charges have been dealt with. I do not take into account the comments by Ms Marceau in open Court during the interim hearing, but unsworn and untested, to the effect that there was soon to be some form of ‘settlement conference’ with the Police and or the Director of Public Prosecutions in relation to the charges with a view to having them ‘dropped.’ However, I note that Mr Moore, the solicitor who appeared for Ms Marceau’s principals in Wagga Wagga, confirmed that the ‘break and enter’ matter had been adjourned for some weeks and that there is to be a ‘case conference’ to discuss “whether the charges will be pressed.”[15]
[15] See Transcript (27th January 2011) p.3.
I should also note - because in my view it is of some moment and may be reflective of the views of the parties - that there has not been filed any Form 4 giving formal notice of any risk of abuse or family violence.[16]
[16] Indeed, early in the course of the hearing, Mr Kenny (Counsel for Mr Marceau) said that the only restraints sought were that the children not be left in the care of their older sister, and that they not be brought into contact with Mr S. He also confirmed that there were “… no other supervisory orders sought.” See Transcript (27th January 2011) pp.5-6.
Again, until everyone has the benefit of a family report, for more abundant caution the children should not be left alone with Mr S; their Mother is always to be present while they are in her care.
In terms of the operation of the presumption of equal shared parental responsibility set out in s.61DA(3), there is clear evidence of violence involving Ms Marceau in concert with others. In such circumstances, in my view, the presumption should not apply. Although I do not propose making any formal order in relation to parental responsibility at this stage, and certainly not until after the Court (and the parties) has the benefit of a family report, given (a) the graduated program of time pursuant to which the children are to resume spending time with their Mother, and (b) the children will – initially at least – continue to live primarily with their Father, it is best that the day to day parenting decisions be left with Mr Marceau at this stage, as has been the case in any event since the separation of the parties. If an order for sole parental responsibility is ultimately made, subject to further evidence and submissions, it may be likely that there would be a requirement nonetheless to inform the other parent of relevant decisions about the children. At such an early stage in the proceedings, it seems to me premature to make any such orders.
In the absence of an order for equal shared parental responsibility, the requirements of s.65DAA have no application here.
Tender of Evidence: In National Employers’ Mutual General Insurance Association v Waind, the New South Wales Court of Appeal outlined the three steps involved in the production and use of documents produced under a subpoena.[17] The then President of that Court, Moffitt P said (at p.381 [internal citations omitted; emphasis added]):
As Jordan C.J. pointed out in Small's case and, as appears in Burchard's case there are at least two steps in the procedure of having a third party bring documents to court, and in their use thereafter. Indeed, on a correct view, there are three steps.The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs.
[17] National Employers’ Mutual General Insurance Association v Waind [1978] 1 NSWLR 372. On appeal to the High Court, the only issue ventilated there related to legal professional privilege. See National Mutual Employers’ Mutual General Association v Waind (1979) 141 CLR 648. This is also to confirm that the High Court did not address anything to do with the production of documents under subpoena and related matters that were considered by Moffitt P.
His Honour then outlined in more detail each of the steps involved, including matters of objection of various and varying kinds. His Honour noted, (at p.385) that it was at ‘stage three’ that questions of “relevance in fact and admissibility are ruled on.” It is in relation to stages two and three set out by Moffitt P in Waind that the following discussion seeks to attend.
The Court records confirm that three subpoenaæ were issued, two of which were directed to the “NSW Police Service.” Documents were produced pursuant to those subpoenaæ. Although not due for release until later in the day, as I have said, I released them early in the hearing for inspection by the parties’ lawyers only.
In the course of the hearing, Mr Kenny said that he intended, ‘if he needed to’, to tender certain material from the documents produced under subpoena. He mentioned this on a few occasions. Checking the Transcript, for ease of reference, those occasions are listed below (emphasis added):[18]
[18] There is only one mention by Mr Moore of material produced under subpoena: Transcript (27th January 2011) pp.16-17.
[Mr Kenny] It's my submission, your Honour, that we just, perhaps, ease the children back in – they're four and two – into the regime of seeing their mother. They need to see their mother, your Honour. My client was filing an application at the same time the mother was seeking orders that the children see their mother. And this is an alternate weekend and one night in the off is a good re-introduction though and retains the primary routine and stability that the children have always enjoyed. And, your Honour, there's a lack of confidence – I will tender the records if I need to – that Mr S will basically behave himself for 50 per cent of the time when he's around the children. (Transcript: p.13)
… it's really, in our submission, a situation where a family report will assist.
… So, your Honour, it's my submission, you just take things a little bit slowly. If the family report says that the four-four arrangement is appropriate in six weeks time, then my client will have his work cut out. But it is my submission that it would be a pretty drastic step to take today.
… So I guess I'm urging some caution. May be to tender the material I've put to your Honour. I've only scraped the surface, I submit, in relation to Mr S. (Transcript: p.14)
HIS HONOUR: Was there anything further on that side from your – Mr Kenny?
MR KENNY: Well, does your Honour want to have a look at some of these subpoenaed police material?
HIS HONOUR: No, no, sorry. This is just in relation to the [O] or Canberra location?
MR KENNY: No, sorry. No, your Honour, we were unable to contact the family consultant directly. The registry didn't think that we could do a report here quicker than the Canberra Registry could for the interim hearing. And I'm not aware of what sort of final dates your Honour will be offering, but, as I said earlier, I would be confident that [O] could offer a final hearing before the end of the year, but here as well.
HIS HONOUR: Well we can do that also.
MR KENNY: So, maybe it stays here, your Honour. (Transcript: p.16)
MR KENNY: Thank you, your Honour. And your Honour, can I just make this point without – your Honour, these undertakings have been proffered about conduct over the next six weeks. Mr S has been charged with breaching his AVO. Because he was an AVO from 2 October incident. He turned up at my client's premises on the 27th while subject to the AVO and the material in the subpoenas indicates that when he moved house at the end of December, it was a direct clear breach of his bail obligations there that he had in relation to residence. So - - -
HIS HONOUR: Well, that's in – would that – yes, that's in the affidavit material?
MR KENNY: It's all in there – yes, yes. So, I guess, I just ….. following that, but – so, again, promises made at the last minute wouldn't inspire confidence, in my submission, your Honour. (Transcript: p.17)
As the Transcript records, although raised, there was never any formal tender of any material by either party in the course of the interim hearing. While there was re-direction by the Court to Counsel for
Mr Marceau at one stage of the hearing, it will be readily seen that the re-direction was not opposition to tendering documents but rather a request to Counsel to address the matters that were then the subject of discussion. There clearly was no opposition by the Court to the tendering of any documents. The reality was simply that, although foreshadowed, there was no formal tender of any documents during the hearing. Moreover, at the conclusion of the hearing, both parties were asked if there was anything else required of the Court, to whichMr Kenny and Mr Moore confirmed that there was not.[19] In sum: no formal tender was ever made; no tender was ever pressed.[19] Transcript (27th January 2011) p.20.
Conclusion
In the light of the limited evidence before the Court, in my view, the best interests of the children are served by a gradual re-introduction to spending time with their Mother, before moving to an increase in that time. This re-introduction and graduated increase in time will, no doubt, be the subject of comment by the family consultant.
Indeed, Mr Kenny commented in relation to the time the children spend with their Mother (admittedly more in the context of the impact of Mr S’s relationship with Ms Marceau):[20] “… I would respectfully submit, your Honour should sit back, wait for the report and then think about going into the sort of arrangement that the mother is seeking.”
[20] Transcript (27th January 2011) p.18.
Appropriate restrictions in relation to Mr S should and will be made regarding the consumption of alcohol,[21] and the children not being left alone in his care.
[21] See, for example, Transcript (27th January 2011) p.14.
In my view, on the limited evidence available to the Court, the orders set out at the beginning of these reasons are in the children’s best interests at this time.[22]
[22] S.60CA.
Postscript
Since the orders were made, and in conformity with them, a Family Report was prepared and released to the parties on 3rd March 2011. I simply note that among the recommendations made by the family consultant, the following appears (at para.24): “The parties could continue with the four day arrangement, and arrange to avoid confronting each other unnecessarily.”
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 23 March 2011
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