Masters & Pedrosa
[2021] FCCA 1226
•4 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Masters & Pedrosa [2021] FCCA 1226
File number(s): SYC 2451 of 2020 Judgment of: JUDGE NEWBRUN Date of judgment: 4 June 2021 Catchwords: FAMILY LAW - parenting - previous final parenting orders - Rice and Asplund - Mother and ICL permitted to seek fresh parenting orders - best interests of child - interim orders made - proceedings transferred to Family Court of Australia Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC
Federal Circuit Court of Australia Act 1999 s 39
Federal Circuit Court Rules 2001 r 8.02
Cases cited: Swenson & Brantley (No 2) [2020] FamCAFC 205
Rice & Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363
Marsden & Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1
Olenghi & Salambo [2021] FamCA 9
Searson & Searson (2017) FLC 93-788
Goode & Goode (2006) FLC 93-286
Marvel & Marvel (No.2) [2010] FamCAFC 101
Eaby & Speelman [2015] FamCAFC 104
Banks & Banks [2015] FamCAFC 36
Morris & Rosetti [2017] FamCA 249
Re W: Publication Application (1997) 137 FLR 205
Number of paragraphs: 108 Date of last submission/s: 27 April 2021 Date of hearing: 27 April 2021 Place: Parramatta Solicitor for the Applicant: Ms Munk Solicitor for the Respondent: Ms Kristie Solicitor for the Independent Children's Lawyer: Mr Samuel ORDERS
SYC 2451 of 2020 BETWEEN: MS MASTERS
Applicant
AND: MR PEDROSA
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
4 JUNE 2021
THE COURT ORDERS PENDING FURTHER ORDER
1.That there has been a significant change in circumstances since the Court’s Final Orders of 24 September 2019 such that, acting in the best interests of the child, E born in 2018, the parties should be permitted to seek fresh parenting orders in relation to the child.
2.That Orders 6 and 7 of the Orders dated 24 September 2019 in Proceedings No. PAC 4209/2018 be and are hereby suspended.
3.That the child spend professionally supervised time with the Father, through the organisation P Contact Centre, on one weekend day each week, for up to 3 hours, as can be practically facilitated by P Contact Centre.
4.The parties shall share equally the cost of such professional supervision.
5.That the parties are to forthwith complete all intake procedures required by P Contact Centre.
6.In the event that the Father cannot afford to take up professionally supervised time with the child through P Contact Centre, then he shall spend supervised time with the child at a contact centre. In this event, the parties shall forthwith complete all intake procedures at the contact centre, and they shall share equally the cost of such supervision at the contact centre.
7.That within 28 days of the date of these Orders, the Father shall attend upon a suitably qualified psychologist or psychiatrist (the mental health professional) for the purpose of undergoing a mental health assessment and obtaining a diagnosis and treatment plan for any mental health issues and/or condition of the Father identified by the mental health professional.
8.That for the purpose of Order 7 above:
(a)the mental health professional appointed shall be such psychologist or psychiatrist agreed between the parties in writing and failing such agreement the Mother shall nominate three names and the Father shall select one within seven days of nomination by the Mother;
(b)the parties shall provide the mental health professional with all court documents filed by the parties in these proceedings prior to the Father’s first consultation with the mental health professional together with a copy of the Child Dispute Conference Memorandum dated 9 September 2020;
(c)the Father shall follow all recommendations and directions of the mental health professional;
(d)the mental health professional shall prepare a report in relation to his or her assessment, diagnosis and treatment plan for any mental health issues of the Father identified by the mental health professional and provide a copy of such report to the Mother’s legal practitioner and ICL within seven days of completion; and
(e)the Father shall pay the costs of and associated with the appointment of the mental health professional under these Orders.
9.These parenting proceedings are forthwith transferred to the Family Court of Australia at Parramatta, with a mention date to be held in that Court on 17 June 2021 at 10:15am.
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 Masters & Pedrosa is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
These proceedings relate to the child E born in 2018.
On 24 September 2019, the Court made final parenting Orders after a three day final hearing was held in June 2019. Inter alia, the Court had made orders that the Mother relocate the child’s residence back to Sydney from Town R; that the child live with the Mother; and that the child spend time with the Father on an increasing and graduated unsupervised basis.
The parties facilitated the Court’s above Orders until about April 2020, when the Mother declined to facilitate the child spending unsupervised time with the Father. However, the Mother did facilitate the child spending time with the Father at the child’s daycare centres, for several occasions each week, from about May 2020 until about February 2021.
The Mother commenced fresh parenting proceedings on 22 April 2020 seeking fresh parenting orders in relation to the child.
On 27 April 2021, the Court heard submissions from the parties and the ICL as to whether the threshold requirements in the so-called rule in Rice and Asplund had been overcome by the Mother. The Mother and ICL submitted that she had done so, whereas the Father submitted to the contrary.
After the Court heard the above submissions, the Court then heard submissions from the parties and ICL as to what interim parenting orders the Court should make if the Court was to determine that the threshold requirements in Rice and Asplund were overcome by the Mother.
Lastly, the Court heard submissions from the parties as to the proceedings being transferred to the Family Court of Australia, together with the matter of Pedrosa & Findon, proceeding No 4605/2020.
PROPOSALS
The Mother sought fresh interim parenting orders as set out in her Initiating Application filed 22 April 2020, including an interim order that Orders 6 and 7 of the Court’s final orders dated 24 September 2019 be suspended.
The Mother indicated that she would consent to orders for professional supervision of the child’s time with the Father; such professionally supervised time could occur on one weekend day each week, for up to 3 hours. The Mother proposed that the professional supervisory service be P Contact Centre, on dates and times as might be facilitated by such agency. The Mother submitted that because she was financially supporting the child and was now receiving only minimal child support (the Father asserts he pays child support of $19 per week), it was necessary for her to continue working in employment during the working week; accordingly weekend supervised time would be more practicable for her. The Mother indicated that she would not object to the parent’s names being placed on a contact centre wait list.
The Father’s proposed orders were set out in his Response filed 9 July 2020; inter alia, he sought an order that the Mother’s Initiating Application filed 22 April 2020 be dismissed. In the alternate, he sought orders set out in a hand written Minute of Order dated 27 April 2021, providing for the child to spend certain defined time with the Father and to be supervised, without admissions, by his partner.
The ICL sought interim parenting orders set out in his Case Outline filed 16 December 2020. Inter alia, he sought interim Orders that Orders 6 and 7 of the Court’s Orders dated 24 September 2019 be suspended; and that the child spend time with the Father from 3:30 PM until 5:30 PM each Monday and Wednesday supervised by either S Contact Centre or T Contact Centre, or such other commercial contact service or agency agreed to by the parties in writing, and in the absence of such agreement, as nominated by the ICL.
MATERIAL RELIED UPON
The Mother relied upon the following documents:
(a)The documents set out in her Case Outline filed 20 April 2021, the Case Outline, together with her Tender Bundle of documents, and the Child Dispute Conference Memorandum dated 9 September 2020.
The Father relied upon the following documents:
(a)the documents set out in his Case Outline, sent to the Court via email on 21 April 2021.
The following exhibits were relied upon:
(a)Exhibit A: Two pages of Department of Communities and Justice Report;
(b)Exhibit B: Child Dispute Conference dated 9 September 2020;
(c)Exhibit C: Mother’s Tender Bundle;
(d)Exhibit D: Father’s Tender Bundle.
RICE & ASPLUND
The Court will firstly determine the Rice & Asplund issue.
Relevant legal principles: Rice and Asplund
As to relevant legal principle in relation to the so called rule in Rice and Asplund, the Court refers to the below legal authorities.
In Swenson & Brantley(No 2) [2020] FamCAFC 205, the Full Court of the Family Court of Australia considered the rule in Rice and Asplund and the principles that apply to such applications as stated in paragraphs 20 to 25 of that decision, and the Court refers to such paragraphs in that decision.
In Rice & Asplund (1979) FLC 90-725 Evatt CJ said at 78,905-78,906:
The principles which, in my view, should apply in such cases are that the Court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the Court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the Court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the Court in reviewing a custody order will vary from case to case.
In SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363, Warnick J said:
81. Thus, in my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
...
83. Accordingly, the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes.
84. Although I do not suggest that, when judgments of the Court in which the rule is discussed are read in full, the rule is in any case inaccurately or even insufficiently expressed, sometimes “shorthand” descriptions of the rule are used and are then taken up by others in later cases. Some phrases used seem to better direct attention to the essential question than others. For example, the phrase used by Nygh J in McEnearney (supra), that a court should discourage a parent from coming back to court where there “is really no startling new circumstance” focuses attention on the character of the circumstance itself. Similarly, terms such as “a substantial change in circumstance since the making of an existing order”, as used by the Full Court in D and Y (supra), may tend to focus attention on the character of a particular event or events. The essential question however is as to the sufficiency of new events to provoke a new enquiry. The answer to this question involves putting events in the context of the broader circumstances pertaining to arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them.
In Marsden & Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1, the Full Court said:
50. Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The Court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
In Olenghi & Salambo [2021] FamCA 9, Berman J considered the principles of Rice and Asplund and referred to the decision of the Full Court in Searson & Searson (2017) FLC 93-788 (“Searson”) stating:
34. The Full Court in Searson & Searson (2017) FLC 93-788 (‘Searson’) considered the application of the rule in Rice & Asplund and referred at [9] to the remarks by Warnick J in SPS & PLS at [10] that:-
... At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
35. And by further reference to Warnick J’s remarks in SPS & PLS their Honours held:-
12. Yet, as his Honour was at pains to point out, the rule is not the application of some esoteric principle but rather, the practical application of a principle designed to avoid “endless litigation” to the detriment of the relevant children in circumstances where otherwise the principles of res judicata do not apply.
36. In Searson the following appears at 77,458:-
16. In Marsden & Winch the Full Court said:-
[57]. In Miller ... the Court posed the question:
[105] Adapting the language used by Warnick J in SPS & PLS ... the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
[58]. That question might be better formulated in another way in the following proposition, namely that there is a requirement:
(1) for a prima facie case of changed circumstances to have been established; and
(2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
DISCUSSION
At the outset of the interim hearing held on 27 April 2021, the Court heard submissions in relation to the above Rice and Asplund issue. The Court explored in some detail the contentions of each party and ICL in relation to this issue. The Court has considered all the material presently before it in relation to this issue, including the parties’ submissions.
The Court does not propose to set out all the material before the Court.
Again, the Court’s final Orders were made on 24 September 2019. The Court refers to its Reasons for Judgment relating to those Orders. Inter alia, the Court refers to its discussion in relation to the need to protect primary consideration at paragraphs 261 to 264 of the said reasons, and observes that the Court assessed “that presently there is no significant risk of the child being exposed to abuse, neglect or family violence.” In relation to the Father’s mental health, the Court had referred, in paragraph 205 of the said Reasons, to the Father’s mental health treatment as follows:
205.The Father told the family report writer that at about the time of his separation from the Mother was diagnosed with depression, saw his GP and was prescribed medication. He continues to take his medication. He saw a counsellor and also a trauma counsellor and he still consults the latter as required.
The Court would observe that in its said Reasons, as far as mental health of the parties was concerned, there was significantly more focus placed on the Mother’s mental health issues compared to the Father.
The Court further observes that a significant issue dealt with in the said Reasons was the relocation issue.
The Court has come to the conclusion, following established legal principle, referred to above, that there has been a material change in circumstances since the Court’s Final Orders of 24 September 2019 such that, acting in the best interests of the child, the Mother and the ICL should be permitted to seek fresh parenting orders. In the view of the Court, there is a likelihood of orders being varied in a significant way, as a result of a new hearing. The Court is of the view that such likelihood outweighs the potential detriment to the child caused by fresh litigation.
There is a significant suggestion, based on the material before the Court, that:
(a)Following the Court’s Final Orders, the parties facilitated those Orders for about 5 months;
(b)The Father’s behaviour, in relation to the child and the Mother, since the Court’s final orders, and in particular between about January 2020 and April 2020, is suggestive of adverse mental health in the Father.
For example, after the Court’s final orders, the Father made complaints to the police and DCJ in relation to the Mother’s care of the child, which included complaints that the child had incurred bruising, was displaying adverse behavioural changes including self harming, was psychologically unwell, and that the Mother might be making the child sick on purpose; there is a significant suggestion that these complaints were not proportionate to the circumstances.
There is a suggestion that the extent and nature of the Father’s text messaging to the Mother was unreasonable, and on occasion abusive.
The Court has a concern with the Father’s taking the child to doctors, including specialists, without sufficient cause.
There is a suggestion that the Father’s reactive behaviour to the Mother’s communications with him in relation to the child was unreasonable and disturbing; for example, the Father came to the Mother’s front door unsolicited and sent her a photo of the front door in circumstances where the Mother had told the Father that the child was unwell.
(c)The Father, after the Court’s final Orders, has experienced adverse mental health which, despite mental health treatment, may still not be adequately managed or indeed accurately diagnosed, and, in this context, the Court is concerned that he may pose a risk of psychological harm to the child.
The Father was voluntarily admitted to L psychiatric hospital on about 30 April 2020 where he was an inpatient until about 17 May 2020. The Court refers to the mental health risk assessment and management plan and the mental health multidisciplinary admission assessment from that hospital, both dated 30 April 2020, in relation to the Father, which are of concern.
The Court has had regard to the medical reports of treating psychiatrist’s Dr J and Dr H, filed and served on behalf of the Father, however, their reports suggest that their opinions are based significantly upon the Father’s self-reports and do not take into account a fulsome history of the Mother’s allegations against the Father and the documentary information obtained from third parties and presently before the Court. There is force to the submission of the Mother that an independent Court-appointed single expert would be best able to provide an opinion in relation to the Father’s conduct, and its possible implications in relation to his mental health, and in relation to the child and the Mother.
(d)On about 15 April 2020, the Mother had decided to cease the child’s time with the Father on the basis that she held increasing concerns for the child’s safety and well-being whilst in the Father’s care. In particular, the Mother held concerns in relation to her observations of the Father’s deteriorating mental health. Further, by this time, the Mother was herself experiencing significant stress and anxiety by reason of the Father’s above unreasonable behaviour, and was fearful of the Father both for her own position and the position of the child
(e)In terms of the Father’s behaviour post-discharge from hospital in May 2020, the Mother alleges that on about 8 June 2020 she collected the child from his daycare and the day care centre manager said to her that the Father had come to the centre today and mentioned something about the child doing play therapy. The Mother alleges that the manager told her that play therapy was like psychology for children.
Further, the Mother alleges that she was contacted by DCJ on about 12 June 2020 after a report of an alleged bruise and scratch on the child. She alleges that DCJ caseworkers attended her home and sighted the child, and that the case was closed with no further involvement from DCJ. The DCJ document at page 7 of the Mother’s tender bundle refers to reported concerns in relation to bruising to the child’s head and cuts to his eye, however, on attendance at the Mother’s premises, the child did not appear to have any injuries and was observed to be an energetic toddler, and it was asserted that there was no evidence to suggest that the child’s alleged injuries were the result of physical abuse by the Mother.
(f)The parties’ ability to coparent the child is particularly strained and there is a doubt that they could reach agreement in a timely fashion without conflict in relation to major decisions to be made for the child. The Court’s final orders had provided for equal shared parental responsibility.
There is force to the other submissions of the Mother in relation to this Rice and Asplund issue and the Court would accept those submissions. The ICL had agreed with the submissions of the Mother in this context. There is force to the submission of the ICL that, in the context of the Mother’s contentions in relation to the Father’s mental health, the Father’s extensive mental health treatment through Ms N, psychologist, would be relevant to the Court to consider.
The Court observes that the subject child is particularly young and in the context of the Mother’s contentions in relation to the Father, and the Court’s discussion above in relation thereto, the risk issues posed in relation to the child require careful attention and investigation by the Court.
The Court takes into account the contents of the Child Dispute Conference Memorandum to Court dated 9 September 2020, acknowledging that that Memorandum is untested. In particular the Court takes into account the comment of the family consultant that if the Mother’s account of the Father’s alleged abusive behaviour and her claims regarding the Father’s mental health issues are true, then it would seem that the child may be at risk of harm whilst in the Father’s care. The Court observes that the family consultant had stated that it may be beneficial for the Court to consider supervised time arrangements between the child and the Father in the interim. The Court observes that the family consultant had suggested that the Court may find a single expert report by a child and family psychiatrist to be beneficial. The Court observes that the family consultant had information available to her which was not available to the family report writer.
The Court has not overlooked that there were no AVO proceedings in relation to the Father arising out of the above discussed conduct of the Father. And the Court has not overlooked the proffered undertaking by the Father to the Mother in August 2020, through his solicitors. Nevertheless, the Court’s concerns in relation to the Father remain.
The Court is of the view that the threshold requirements in relation to the so called rule in Rice and Asplund, as explained by the above discussed case law, have been met, and again, acting in the best interests of the child, the Mother and ICL should be permitted to seek fresh parenting orders in relation to the child.
INTERIM PARENTING
The Court will now deal with the parties’ competing proposals, as referred to at the outset of these Reasons.
EVIDENCE
The child is very young, now aged 3 years.
The child spent time with the Father following the Court’s final Orders in September 2019 up until about mid-April 2020 when the Mother ceased to facilitate such time occurring.
The following organisations and third parties had involvement with the family, within a relatively short period of time after the Court’s final Orders: FACS/DCJ, Police, and the parties’ lawyers.
The Father voluntarily admitted himself to the L psychiatric hospital on about 30 April 2020 experiencing adverse mental health, and where he was an inpatient until about 17 May 2020.
After the Father’s discharge from the above hospital, the Mother facilitated the child spending time with the Father at a daycare centre(s).
The Mother is presently prepared to facilitate the child spending supervised time with the Father, with such time being professionally supervised.
The Father asserts that after the final hearing of the parenting proceedings in June 2019, on about 20 July 2019, he did take the child to a police station after he had observed bruises and scratches on his leg and face. He then took the child to hospital for examination.
The Court delivered judgement following the final hearing on 24 September 2019.
On 27 October 2019, the child came into the Father’s care. The Father asserts that at that time he observed the child’s nostril had been bleeding and he messaged the Mother that the bottom of the nostril seemed to have separated from his cheek.
There is a suggestion, on the material before the Court, that the Father, on 18 February 2020, reported to DCJ that the child had a rash on his body
The Father asserts that on 29 February 2020 the Mother did not permit him to spend time with the E as he was suffering from a mild case of hand foot-and-mouth disease. The Father asserts that because the Mother would not make the child available to him, he contacted police.
There is a suggestion, on the material before the Court, that on about 8 March 2020 the Father informed DCJ that he was concerned that the Mother might be making the child sick on purpose.
The Father asserts that on about 28 March 2020, when the child came into his care, he observed the child had an open lesion between his toes and texted the Mother a photo of same, to which the Mother asserted it appeared to indicate tinea.
The Father asserts that on 6 April 2020 there was conflict between the parties at changeovers. The Father asserts that there was conflict because the Mother had failed to comply with the Orders and he was trying to balance out the time that had been missed. He asserts that the child was exposed to this conflict and was screaming and distressed. The Father asserts that he made a complaint to the police, the police spoke with both parents and took no action.
There is a suggestion, on the material before the Court, that in about early April 2020, a DCJ officer spoke with the Father over the telephone and the Father’s verbal behaviour was manic in that, for example, the Father was very grandiose about his background; it was very difficult for the DCJ officer to interrupt the Father as he would continue to talk; the Father was rapid in his speech; and the Father would jump back and forth between topics.
In the report of Dr J, psychiatrist, dated 27 March 2021, he states that he has reviewed the Father on 9 December 2020 (first review) and on 17 February 2021. He asserts, inter alia, that following discharge from hospital, the Father had a fluctuating presentation up to the point of the first review, together with ongoing stress reported to be related to lack of access to the children, as well as his financial stressors. The doctor asserts that when he reviewed the Father for the second time in February 2021, the Father presented as under ongoing stress, but in an improved mental state compared to his first review with him. He referred to the Father having attended upon Ms N at the O Centre for 36 psychology sessions between July 2018 and February 2021.
In Dr J’s report of 7 April 2021, inter alia, he refers to the Father’s further improvement in his mental health, in spite of the ongoing stress that remains due to the upcoming Family Court hearing.
RELEVANT LEGAL PRINCIPLES: INTERIM PARENTING PROCEEDINGS
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel (No.2) [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects and principles of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In this context, the Court refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 50, “When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors”.
THE BEST INTERESTS OF THE CHILDREN
Section 60CC Considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The child has a meaningful relationship with the Mother and will benefit from a continuance of that relationship. The Mother has been the primary carer of the child from birth to date.
The child has a meaningful relationship with the Father and will benefit from a continuance of that relationship provided it is safe for him to do so.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court refers to the matters referred to above under the heading “Evidence”. The Court also refers to its discussions above, in relation to the Father in respect to the Rice and Asplund issue. The Court has a significant concern in relation to the Father’s behaviour, both alleged against him and as admitted by the Father, in relation to the child and towards the Mother since the final hearing of the parenting proceedings in June 2019.
One aspect of this concerning behaviour of the Father is the suggestion, on the material before the Court, that there exists a pattern of the Father accusing the Mother of neglecting and/or abusing the child without justification, and making complaints to third party bodies in this regard including the police and FACS/DCJ. A related concern of the Court is the suggestion that the Father unreasonably believes the child has been and/or remains significantly physically and/or psychologically unwell, and that the Father has or may unnecessarily seek to expose the child to medical and other treatment. The Court is concerned that the Father has abused the Mother in his communications to her.
The Court has concerns in relation to the Father’s alleged behaviour after release from hospital in May 2020 and as referred to previously by the Court in its discussion of the Rice and Asplund issue in relation to the Father. In this context, the Court observes that the Father’s treating psychiatrists have referred to the Father’s ongoing stress after being released from hospital.
There is a significant suggestion, on the material before the Court, that the child has at least been adversely exposed to conflict between the parties arising out of the Father’s alleged adverse behaviour.
There is a significant suggestion, on the material before the Court, that the Mother has reacted adversely to the Father’s above alleged behaviour and is fearful for herself and the child; the Court is concerned that the Mother’s parenting capacity for the child may be adversely affected should the child spend unsupervised time with the Father or even if spending non-professional supervised time with the Father as proposed by him in the alternate.
The Court has a significant concern as to whether the Father’s mental health has been properly diagnosed and/or is adequately managed. The Court is concerned that if it be the case that the Father’s mental health is not properly diagnosed and/or is inadequately managed he may continue to exhibit adverse behaviour, as discussed above, both towards the child and/or the Mother. Again, the Court has not overlooked the medical reports of Doctors H and J but has a concern as to the reliability of their opinions in relation to the Father’s mental health, as previously discussed above in relation to the Rice and Asplund issue; there is force to the submissions of the Mother and ICL in this context. There is force to the submission of the ICL that, in the context of the Mother’s contentions in relation to the Father’s mental health, the Father’s extensive mental health treatment through Ms N, psychologist, would be relevant to the Court to consider; this material is not before the Court at this interim hearing. In the view of the Court, there needs to be an independent expert appointed to comment upon the Father’s alleged and admitted behaviour, including in relation to his mental health.
Accordingly, on the material before the Court, the Court is of the view that there is an unacceptable risk of psychological harm posed to the child in spending unsupervised time with the Father. The Court would assess that the magnitude of such risk of harm posed to the child in not having professional supervision of his time with the Father is significant, particularly noting that this child is very young. In the view of the Court, such risk of harm can be minimised and addressed by the child spending professionally supervised time with the Father.
The statements and opinions of the family consultant in the Child Dispute Conference Memorandum to Court dated 9 September 2020 are consistent with the Court’s above views, and the Court takes into account the statements and opinions of the family consultant, whilst acknowledging that they are presently untested. In particular, the Court takes into account the comment of the family consultant that if the Mother’s account of the Father’s alleged abusive behaviour and her claims regarding the Father’s mental health issues are true, then it would seem that the child may be at risk of harm whilst in the Father’s care. The Court observes that the family consultant had stated that it may be beneficial for the Court to consider supervised time arrangements between the child and the Father in the interim.
The Court, acting cautiously and conservatively, is concerned that the Father’s proposal for supervision by his partner will not minimise the above risk of harm posed to the child, and again, is of the view that such supervision should be provided professionally. The Father’s proposed partner, by reference to her Affidavit, has not met the child and nor has she met the Mother. She works as a professional. There is a significant suggestion that she is in an intimate relationship with the Father; the Father asserts that they share a bedroom. She does not attest to having a fulsome understanding of the allegations and issues raised in relation to the Father’s mental health; for example, she does not state her awareness of the Mother’s allegations in this context, nor does she indicate that she has been appraised of the mental health and other material presently before the Court in relation to the Father.
The Court has not overlooked that there were no AVO proceedings in relation to the Father arising out of the above discussed concerning behaviour of the Father. The Court has not overlooked the proffered undertaking by the Father to the Mother in August 2020, through his solicitors; the Court observes from the content of that proffered undertaking that whilst the Father would be required by its terms to, inter alia, notify the Mother in writing of any proposed medical or psychological treatment for the child, the undertaking would not necessarily prevent the Father taking the child to the treatment consultation(s). (Even if the Court is incorrect as to this construction of the proffered undertaking, the Court’s concerns would still remain). The Court has not overlooked his apparent present employment. Nevertheless, and again, despite these above matters, the Court’s concerns in relation to the Father remain.
The Father contends that his financial position is unsatisfactory and the Court refers to his untested allegations in his Affidavit in this regard. He submits that he could not afford to pay for professional supervision. Under the Act, in applying the primary considerations, namely the need to protect primary consideration and the meaningful relationship primary consideration, the need to protect primary consideration is to be given greater weight. Again, the magnitude of the risk of harm posed to the child in not having professionally supervised supervision of his time with the Father is significant.
In this context, the Mother submitted that she would not object to the parent’s names being placed on a contact centre wait list; the Court proposes to make an Order for supervised time at a contact centre in the event that the Father cannot afford to take up professionally supervised time with the child through P Contact Centre.
Further in this context, the Mother submitted that the Father had referred to the Mother sending him an audiovisual recording of the child’s reaction to the Father sending him some Easter eggs recently; the Mother submitted that such audiovisual recordings would enable the child to communicate with the Father. It would be open to the Father to request the Mother to continue to provide such audiovisual recordings.
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The child is too young to express a relevant view.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers above to the meaningful relationship primary consideration.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
Both parties would appear to have taken up such opportunities.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The Mother has fulfilled such obligations. The Father has maintained the child when in his care although it would appear that his level of child support to the Mother is now quite modest.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Should the child spend supervised time with the Father, on a regular basis, with a professional supervisory body or at a contact centre, there is a reasonable prospect that the child’s meaningful relationship with the Father can be maintained.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not applicable.
(f) the capacity of:
i) each of the child’s parents; and
ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The Mother would appear to have such capacities. As to the Father, the Court refers to its discussions above under the need to protect primary consideration, whilst it would appear that he has in the past, for not insignificant periods, provided satisfactorily for the child’s needs.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
As to the Father, the Court refers to its discussions above under the need to protect primary consideration.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Mother would appear to have demonstrated appropriate attitudes towards the child and to her responsibilities of parenthood. As to the Father, the Court refers to its discussions above under the need to protect primary consideration. Nevertheless, it would appear that the Father has in the past, for not insignificant periods, also demonstrated appropriate attitudes towards the child and to his responsibilities of parenthood.
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussions above under the need to protect primary consideration, in relation to concerning behaviour of the Father towards the Mother and in relation to the child.
The Father alleges that the Mother has perpetrated physical violence against him since the final hearing, which is disputed by the Mother. The Court observes that the Father does not seek to disturb the Final Orders that the child live with the Mother.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter
Not applicable.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
These are interim proceedings.
m) Any other fact or circumstance that the Court thinks is relevant
The Court does not place any significant weight upon the contents of Exhibit A, bearing in mind, in particular, that the two pages forming Exhibit A are part of a larger document, it is not clear who the author of such document is, it does not address in a fulsome manner the risk issues discussed by the Court above under the need to protect primary consideration, all rendering a meaningful understanding of the contents of Exhibit A particularly difficult.
The Court refers to its discussions above in relation to the reports of Drs J and H, and to its discussions above under the need to protect primary consideration. It will be in the best interests of the child to make the Mother’s proposed interim Orders 3 and 4, in relation to the Father attending upon a suitably qualified psychologist or psychiatrist for the purpose of undergoing a mental health assessment.
PARENTAL RESPONSIBILITY
The Court’s Orders of 24 September 2019 provided for the parties to have equal shared parental responsibility for the child. Neither the parties or ICL sought to suspend this Order. The Court refers to its discussions above under the need to protect primary consideration. It will not be in the best interests of the child to be subject to an equal time parenting arrangement nor will it be in the child’s best interests to spend time with the Father on a substantial and significant time basis. Equal time and substantial and significant time would probably be reasonably practicable.
SUMMARY
Evaluating the above discussed considerations under section 60 CC of the Act, it will be in the best interests of the children to make the following interim Orders:
1.That there has been a significant change in circumstances since the Court’s Final Orders of 24 September 2019 such that, acting in the best interests of the child, E born in 2018, the parties should be permitted to seek fresh parenting orders in relation to the child.
2.That Orders 6 and 7 of the Orders dated 24 September 2019 in Proceedings No. PAC 4209/2018 be and are hereby suspended.
3.That the child spend professionally supervised time with the Father, through the organisation P Contact Centre, on one weekend day each week, for up to 3 hours, as can be practically facilitated by P Contact Centre.
4.The parties shall share equally the cost of such professional supervision.
5.That the parties are to forthwith complete all intake procedures required by P Contact Centre.
6.In the event that the Father cannot afford to take up professionally supervised time with the child through P Contact Centre, then he shall spend supervised time with the child at a contact centre. In this event, the parties shall forthwith complete all intake procedures at the contact centre, and they shall share equally the cost of such supervision at the contact centre.
7.That within 28 days of the date of these Orders, the Father shall attend upon a suitably qualified psychologist or psychiatrist (the mental health professional) for the purpose of undergoing a mental health assessment and obtaining a diagnosis and treatment plan for any mental health issues and/or condition of the Father identified by the mental health professional.
8.That for the purpose of Order 7 above:
(a)the mental health professional appointed shall be such psychologist or psychiatrist agreed between the parties in writing and failing such agreement the Mother shall nominate three names and the Father shall select one within seven days of nomination by the Mother;
(b)the parties shall provide the mental health professional with all court documents filed by the parties in these proceedings prior to the Father’s first consultation with the mental health professional together with a copy of the Child Dispute Conference Memorandum dated 9 September 2020;
(c)the Father shall follow all recommendations and directions of the mental health professional;
(d)the mental health professional shall prepare a report in relation to his or her assessment, diagnosis and treatment plan for any mental health issues of the Father identified by the mental health professional and provide a copy of such report to the Mother’s legal practitioner and ICL within seven days of completion; and
(e)the Father shall pay the costs of and associated with the appointment of the mental health professional under these Orders.
TRANSFER OF THE PROCEEDINGS TO THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA
There is a commonality of issues in relation to these proceedings and the proceedings in Pedrosa & Findon PAC 4605/2020 such that the 2 sets of proceedings should be at least heard together and possibly consolidated. In these circumstances both sets of proceedings should be forthwith transferred to the Family Court of Australia at Parramatta.
The commonality of issues in relation to these proceedings and the proceedings in Pedrosa & Findon PAC 4605/2020 include the Father’s mental health issues; the Father’s alleged harassing communications with each Mother relating to each child (X and E); and his communications with DCJ and Police in relation to each child.
The Court is of the view that this Court’s judicial resources are insufficient to adequately manage the parties’ parenting proceedings, assuming they are at least heard together.
Further, the Court is of the view that there is now a likelihood that any future final hearing of these parenting proceedings will take well in excess of four hearing days.
As to relevant statutory provisions and principles, in relation to transfer of proceedings from this Court to the Family Court of Australia, the Court refers to the decision of Tree J in Morris & Rosetti [2017] FamCA 249. His Honour sets out in that decision, in relation to transfers of proceedings between this Court and the Family Court of Australia, the relevant statutory provisions and principles, and refers to a Protocol, agreed to between the heads of jurisdiction of this Court and the Family Court of Australia, in relation to such transfers, as follows:
14. The heads of jurisdiction of both Family Court and the Federal Circuit Court have agreed upon, and published, a protocol for the guidance as the appropriate court in which parties should commence proceedings. It provides as follows:
If any one of the following criteria applies, then the application for final orders ordinarily should be filed and/or heard in the Family Court of Australia (“FCoA”), if judicial resources permit, otherwise the matter should be filed and/or heard in the Federal Magistrate Court (“FMC”).
1. International child abduction.
2. International relocation.
3. Disputes as to whether a case should be heard in Australia.
4. Special medical procedures (of the type such as gender reassignment and sterilisation).
5. Contravention and related applications in parenting cases relating to orders which have been made in FCoA proceedings; which have reached a final stage of hearing or a judicial determination and which have been made within 12 months prior to filing.
6. Serious allegations of sexual abuse of a child warranting transfer to the Magellan list or similar list where applicable, and serious allegations of physical abuse of a child or serious controlling family violence warranting the attention of a superior court.
7. Complex questions of jurisdiction or law.
8. If the matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time.
Note: The FCoA has exclusive jurisdiction in relation to adoption and the validity of marriages and divorces.
Transfers
1. Either Court on its own motion or on application of a party can transfer a matter to the other Court.
2. There is no right of appeal from a decision as to transfer.
15. It is pertinent to make the following observations in relation to the protocol:
•The protocol speaks about the appropriate court in which proceedings should be commenced. It does not speak, necessarily or directly, to the matters which might inform transfer by either court, although there may be an expectation that the matters enumerated in it would be relevant to the exercise of the discretion to transfer;
•The language of the protocol admits of exception: for instance the direction that certain matters “ordinarily” should be filed in the Family Court, and the reference to “if judicial resources permit;”
•Some of the criteria require a degree subjective interpretation, for instance, the reference to “serious” allegations of abuse, and “complex” questions of law. Necessarily, these are matters upon which reasonable minds may legitimately reach different conclusions;
•Notwithstanding those observations, the intent of the protocol is to effect a relatively clear division of work between the two Courts, with the Family Court undertaking work more suited to a superior court of record. Whilst terms such as “complex,” “difficult” or “complicated” might on occasion be used to try and describe that division, none are perfectly apt to describe the line of demarcation between the two Court’s work. That is because, particularly in children’s matters, there is almost always some degree of complexity, difficulty and complication involved in determining where the best interests of children lie.
The other point which should be made about the protocol is that it is an agreement between the heads of both jurisdictions. As such, it cannot lawfully fetter the discretion of either court to transfer proceedings to the other: see for instance, Re W: Publication Application (1997) 137 FLR 205 at 240 per Finn J. In fairness to those who drafted the protocol, it does not, on a plain reading of its contents, seek to do so in any event. To cast that proposition slightly differently, a judicial officer who regarded the exercise of their discretion to transfer as being required to be in conformity with the protocol would be imposing an unlawful fetter. At most, the protocol is a potentially relevant consideration.
Section 39 of the Federal Circuit Court of Australia Act 1999 relevantly provides:
(1) If a proceeding is pending in the Federal Circuit Court of Australia, the Federal Circuit Court of Australia may, by order, transfer the proceeding from the Federal Circuit Court of Australia to ... the Family Court.
...
(4) In deciding whether to transfer a proceeding to the Family under subsection (1), the Federal Circuit of Australia must have regard to:
(a) any Rules of court made for the purposes of subsection 40(4);
(b) whether proceedings in respect of an associated matter are pending in the Family Court;
(c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceedings; and
(d) the interests of the administration of justice.
...
Rule 8.02 of the Federal Circuit Court Rules 2001 provides as follows:
(1) The Court may, at the request of a party or of its own motion, transfer a proceeding to the Federal Court or the Family Court.
(2) Unless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceeding.
(3) Unless the Court otherwise orders, the request must be included in a response or made by application supported by an Affidavit.
(4) In addition to the factors required to be considered by the Court under subsections 39(3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:
(a) whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;
(b) whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;
(c) whether the proceeding will be heard earlier in the Court;
(d) the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties.
Presently, the parties each seek competing Orders in relation to parenting.
There is likely to be significant evidence, including cross-examination, in relation to the parties’ issues in dispute, including in relation to the Father’s alleged adverse mental health.
To date, the parties have filed Affidavits in the proceedings.
There have been subpoenae to produce documents filed in the proceedings.
There is likely to be extensive and significant cross-examination at the final hearing of:
·The Fathers;
·The Mothers;
·Lay witnesses;
·The family report writer;
·Health professional treatment experts in relation to the Father’s mental health;
·Single expert in relation to the Father’s mental health.
It will be necessary for the Court, at the final hearing of these proceedings, to hear the competing oral submissions of the parties, based upon the likely extensive evidence before the Court.
In the above circumstances, these proceedings will likely take more than four days of final hearing, and, in the view of the Court, having regard to the Protocol alone, the proceedings should be transferred.
Further, as to section 39(4) of the Federal Circuit Court of Australia Act 1999 and Rule 8.02 of the Federal Circuit Court Rules 2001:
(a)The proceedings are likely to be heard and determined at less cost and more convenience to the parties than if the proceedings are not transferred.
(b)The final hearing of these proceedings is likely to be heard earlier in the Family Court of Australia than in this Court.
(c)Again, having regard to the issues to be determined between the parties, and other matters referred to above, these proceedings are likely to take in excess of four final hearing days.
(d)The administration of justice is best served by transferring these proceedings, and the Court has regard to its discussions above.
The Court, in the exercise of its discretion, transfers these proceedings to the Family Court of Australia.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 4 June 2021
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