Maxfield & Eliot

[2023] FedCFamC2F 742

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Maxfield & Eliot [2023] FedCFamC2F 742   

File number(s):

BRC 9605 of 2021

Judgment of:

JUDGE PARKER

Date of judgment:

16 May 2023

Catchwords:

FAMILY LAW – PARENTING – interim parenting application – review of orders of a Senior Judicial Registrar – risk – supervised time  

Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 62G, 69ZL

Cases cited:

Banks & Banks [2015] FamCAFC 36; (2015) FLC ¶93-637

Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104; (2015) FLC ¶93-654

Goode & Goode [2006] FamCA 1346; (2006) FLC ¶93-286

M & M [1988] HCA 68; (1988) 166 CLR 69

Salah & Salah [2016] FamCAFC 100; (2016) FLC ¶93-713

Division:

Division 2 Family Law

Number of paragraphs:

32

Date of hearing:

16 May 2023

Place:

Adelaide via Microsoft Teams

Counsel for the Applicant:

Appeared in Person

Counsel for the Respondent:

Appeared in Person

Solicitor for the Independent Children's Lawyer:

Ms Hawdon

Solicitor for the Others:

Ms Lam

ORDERS

BRC 9605 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR MAXFIELD

Applicant

AND:

MS ELIOT

Respondent

AND:

AND:

INDEPENDENT CHILDREN’S LAWYER

DEPARTMENT OF CHILDREN, YOUTH JUSTICE AND MULTICULTURAL AFFAIRS

Intervenor

ORDER MADE BY:	JUDGE PARKER
DATE OF ORDER:	16 MAY 2023 AMENDED 16 JUNE 2023

UPON APPLICATION MADE TO THE COURT BY MICROSOFT TEAMS, THE APPLICANT IN PERSON, THE RESPONDENT IN PERSON, MS LAM FOR THE INTERVENOR AND MS HAWDON AS THE INDEPENDENT CHILDREN’S LAWYER

UPON NOTING THAT:

A.Pursuant to section 65DA(2) and Section 62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to an comply with an Order are set out in Annexure A and the Fact Sheet from the Federal Circuit and Family Court attached hereto and these particulars are included in and form part of these Orders.

THE COURT ORDERS THAT:

1.The orders of 19 December 2022 are discharged.

2.Until further order the Mother have sole parental responsibility for the children X born in 2016, Y born in 2017 and Z born in 2019 (“the children”).

3.Until further order, the children live with the Mother.

4.Until further order, the parties do all acts and things required to enrol at a supervised contact centre as nominated by the Independent Children’s Lawyer and thereafter the Father spend supervised time at the contact centre on such days and at such times as the centre may facilitate NOTING THAT the Father is at liberty to bring the paternal grandmother to every second visit.

5.The Mother and the Father each undertake a psychiatric assessment, such assessment to be undertaken by a psychiatrist nominated by the Independent Children’s Lawyer.

6.The Mother and the Father each undertake a post-separation parenting course as nominated by the Independent Children’s Lawyer.

7.That pursuant to s.62G(2) of the Family Law Act 1975, the parties and the children X born in 2016, Y born in 2017 and Z born in 2019 attend upon a Court Child Expert nominated by the Dispute Resolution Co-ordinator of the Federal Circuit and Family Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, with a request that such report be released by early September 2023.

8.The parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Court Children’s Service.

9.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

10.The parties communicate with each other using a parenting App as may be agreed between the parties or otherwise nominated by the Independent Children’s Lawyer, with communication to take place only in relation to matters pertaining to the children’s welfare and the parties each be restrained from using any abusive language in the course of those communications.

11.Until further order, the Mother be and is hereby restrained from leaving the children unsupervised in the care of her partner MR C.

12.Within 14 days, the Mother file and serve an affidavit setting out her partner’s full name and date of birth, the circumstances of their relationship, such details of his criminal history as are within her knowledge, and details of the time he has spent with the children.

13.The Intervenor is excused from further participation in the proceedings.

*Pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 this order is amended on 16 June 2023.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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 by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE PARKER

1. These reasons were delivered ex tempore and have been settled from the transcript. Grammatical errors have been corrected, citations have been added and amendments have been made to make the orally delivered reasons clear and easy to read.

2. The application before the Court is the Father’s review of an exercise of delegated judicial power by a Senior Judicial Registrar on 23 December 2022.  The orders made on that date were final orders which were within the power of the Senior Judicial Registrar to make because the Father was not present at the hearing.  It emerges that the Father’s reasons for absence at the hearing related to apparent misinformation provided to him about the time of the hearing resulting from a time difference between the place in which the hearing was held and the place where the Father resides.  In any event, the hearing proceeded before me this day as a hearing de novo. Because both parties were in attendance for this hearing it was no longer appropriate for final orders to be considered, and the hearing proceeded as an interim hearing.

3. The proceedings relate to the parties’ three children, X born in 2016, Y born in 2017 and Z born in 2019. 

4. The family has a very long and serious history of child protection involvement and Children’s Court proceedings. Orders were made which lasted for a period of two years in the Children’s Court of Queensland in early  2021. Those orders expired in early 2023, shortly after the orders were made by the Senior Judicial Registrar. 

5. Both parties have a history of having had children removed from their care by child protective services, and both parties make serious allegations of risk, including risk from family violence.  In particular, the Mother alleges violence on the part of the Father in the form of physical and emotional abuse, controlling conduct, threats, including threats to kill, intimidation, anger management issues, a serious assault of X. She also points to the Father’s serious criminal history, which includes a history of incarceration.

6. The Father says that the Mother’s allegations are untrue and that she is undermining his relationship with the children.  He also alleges that the children are at risk of being exposed and subjected to violence in the care of the Mother.  Police and child protection records suggest that there are potential risks in both households, and reveal that those organisations hold particular concerns in relation to the Father. 

7. The orders that were made by the Senior Judicial Registrar provided for the children to spend supervised time with the Father at a supervised contact centre.  The Father says that prior to those orders being made he was having time supervised by his mother every weekend for a period of eight hours.  That is an issue that is in dispute, and as this is an interim hearing I am unable to make findings in that regard.

8. The Father has recently filed an updated Notice of Child Abuse, Family Violence or Risk in which he alleges that there is a risk to the children associated with a new partner of the Mother, who the Father says has a history of having been incarcerated for serious crimes. Beyond the bare assertion in the Notice filed by the Father, there is no evidence before the Court providing any detail in relation to the Mother’s partner or his history. The Mother does not dispute that he has a serious criminal history but indicates that he has got his life together and bettered himself, having undertaken many courses, and does not pose a risk to the children.  The Department of Children, Youth Justice and Multicultural Affairs (‘the Department’) has provided a response to the Notice of Child Abuse, Family Violence or Risk filed by the Father, which indicates that no investigation and assessment of the allegations raised in the notice will be undertaken as the information provided did not meet the departmental threshold of significant risk for intervention and no further action will be taken.

9. A representative for the Department appeared before the Court at the commencement of this hearing, informed the Court that the Department have no ongoing intervention in relation to the family now that the Children’s Court orders have expired and proceedings are on foot in this jurisdiction. The representative for the Department indicated that the Department maintained its position that the children should remain in the care of the Mother and be supervised when spending time with the Father and otherwise sought to withdraw from the proceedings.  Leave to withdraw was granted.

10. The Father seeks that he continue to spend time with the children in accordance with what he says was the arrangement prior to the orders being made by the Senior Judicial Registrar, that is, for a period of eight hours each week.  In submissions he indicated that his proposal is that the time could be supervised initially by his mother, if supervision were considered necessary, and progress slowly to unsupervised and ultimately overnight time.  In his Application for Review the Father also sought a suite of additional orders. As I explained to the Father during the hearing, many of the orders he sought were beyond the power of the Court to make, but the orders sought by him that are within the Court’s power will be considered in these reasons. 

11. The Mother and the Independent Children’s Lawyer both seek that the Father’s time with the children continue to be professionally supervised as was ordered by the Senior Judicial Registrar.  The Independent Children’s Lawyer submitted that the parties have a very long history of concerns regarding the welfare of their children and family violence, that the Father has been supervised for a very long time, and that there is no evidence to suggest that the concerns that led to that supervision have been alleviated.

12. One of the orders sought by the Father was for the “discharge” of an earlier family report, in relation to which he did not attend the scheduled interview. The Father indicated that he had not received an invitation to attend, but the Independent Children’s Lawyer informed the Court that the Father had, in fact, replied to the email he denied having received. In any event, the family report was prepared without the benefit of the Father’s involvement. The Independent Children’s Lawyer did not oppose an order for a further family report but indicated that there was no further funding available for such a report to be prepared outside the Court context, and so a section 62G report would need to be ordered if the Court were minded to order a further family report. The Mother opposed the preparation of a further family report.

13. I am satisfied that the preparation of a further family report would assist the Court to ascertain the children’s best interests, and, as such, I will make the order for a 62G report as proposed by the Father.  The Father also sought that there be a psychiatric assessment of the Mother.  The Mother indicated that she had no difficulty with that proposed course.  The Independent Children’s Lawyer indicated that any psychiatric assessment should be of both parties, and the Father indicated no objection to that course.  As such, I will make orders that both parties undertake psychiatric assessments. 

14. The Independent Children’s Lawyer sought orders providing that the Mother be restrained either from bringing her partner into contact with the children or from leaving them unsupervised in his presence.  The Mother opposed the making of either of those orders and asserted that her partner interacts positively with the children, but did not oppose an order requiring her to file an affidavit providing details of her partner’s full name and date of birth, and details of the circumstances of their relationship, his criminal history and the amount of time that he has spent with the children.  The Father sought an order that the Mother not bring the children into contact with the partner at all.  No formal application is before the Court in relation to this issue but as a holding pattern and to protect the children from risk of harm until further information is able to obtained and evidence put before the Court, I propose to order that the Mother be restrained from leaving the children unsupervised in the care of her partner.

15. I will also make the foreshadowed order with respect to the Mother filing an affidavit providing the Court, the Father and the Independent Children’s Lawyer with details about him.  Once that information is available I anticipate that the Independent Children’s Lawyer will be in a position to make further inquiries which will lead to any or all of the parties being able to make further application in relation to that issue should they consider it to be necessary. 

16. The Father submitted that what he described as the “fishbowl environment” of professional supervision, which he said the children had been out of for a considerable period of time, was not in their best interests. He further submitted that a reduction in their time with him to a small number of hours per month was insufficient to promote the children’s best interests. Restrictions on the amount of time spent under professional supervision is unfortunately a function of the availability of resources and if professionally supervised time is ordered, limitations as to quantum of time will be a necessary consequence.

17. The Father alleged that the Mother has committed perjury and has made unfounded allegations.  He emphasised the children’s need for a meaningful relationship with both their parents and their need to spend significant time with their father. 

18. The Independent Children’s Lawyer flagged during the course of the hearing that the parties have already undertaken post‑separation parenting courses but that there might be other courses available which would assist both of them with their parenting and their focus on the children’s interests, and I intend to order that the parties both undertake such parenting courses as are nominated by the Independent Children’s Lawyer. 

19. The Father sought an order that the Mother be restrained from bringing the children into contact with Ms F, who is the mother of his eldest son. He alleges that the Mother and Ms F have been colluding against him. I accept the submission of the Independent Children’s Lawyer that there is no evidence before the Court to suggest that Ms F poses a risk to the children. I accept that submission and will not make the order as sought by the Father in that regard.

20. The Mother submitted that the paternal grandmother was not a suitable supervisor and alleged that in the past when she had supervised time between the Father and the children she had left the children unsupervised in the care of the Father. 

21. I am required by section 60CA of the Family Law Act1975 (Cth) (‘the Act’) to have regard to the children’s best interests as the paramount consideration. I am guided in my determination by the objects and principles in section 60B of the Act. It is well established that at an interim hearing where the evidence is untested findings of fact cannot be made, and the process of inquiry is limited;[1]  however, as emphasised by the Full Court in a number of authorities, the fact that the evidence has not been tested does not mean that it can be ignored, and the likely impact on the children of each available course of action, if the evidence is ultimately accepted, must be taken into account. [2]

    [1] Goode & Goode [2006] FamCA 1346; (2006) FLC ¶93-286.

    [2] Such as Eaby & Speelman [2015] FamCAFC 104; (2015) FLC ¶93-654 and Salah & Salah [2016] FamCAFC 100; (2016) FLC ¶93-713.

22. This is especially true in relation to evidence of risk from family violence.  Even where a determinative finding cannot be made in relation to allegations of violence at the interim stage sufficient weight must be given to allegations of violence, and an interim assessment must be made of the likelihood of violence and the severity of its likely impact.[3]  Where risk is alleged in interim parenting proceedings a conservative approach is warranted that is likely to avoid harm to children.  The Court will not make an order for a child to spend time with a parent if that would expose the child to an unacceptable risk of harm.[4]  The task I must undertake is to have regard to any uncontested facts in the state of the evidence before the Court and balance any risks apparent on the evidence in determining the arrangements that will best meet the children’s interests pending a property hearing. 

    [3] Deiter & Deiter [2011] FamCAFC 82; Salah & Salah [2016] FamCAFC 100; (2016) FLC ¶93-713.

    [4] M & M [1988] HCA 68; (1988) 166 CLR 69.

23. The Full Court in Goode & Goode (‘Goode’)[5] set out the pathway to be followed in interim parenting decisions, but section 69ZL of the Act, which was enacted after Goode, makes provision for the delivery of short form reasons in interim parenting matters, and I give these reasons in short form.  It should not, however, be taken that I have not had regard to all of the evidence and submissions before the Court or all of the relevant legislative provisions. 

    [5] [2006] FamCA 1346; (2006) FLC ¶93-286.

24. Section 61DA of the Act provides that, subject to certain exceptions, when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. One of the exceptions that applies is family violence. Subsection (3) provides that when the Court is making an interim order, the presumption applies unless the Court considers that it would be inappropriate in the circumstances for the presumption to be applied.

25. In the circumstances of this case I do not consider it appropriate to apply the presumption.  I accept the submissions of the Independent Children’s Lawyer in relation to parental responsibility on an interim basis and propose to order that the Mother have sole parental responsibility in the interim.  I emphasise that these are interim orders only and that this does not predetermine what will happen at a final hearing. 

1. In determining the children’s best interests I am to have regard to the factors in section 60CC of the Act, though as the Full Court held in Banks & Banks,[6] it is not necessary at an interim hearing to expressly consider each and every factor.  As such, I will limit my consideration to those I consider to be the most important in the circumstances of this particular case. 

   [6] [2015] FamCAFC 36; (2015) FLC ¶93-637.

2. There are two primary considerations set out in section 60CC(2). Firstly, I must consider the benefit to the children of having a meaningful relationship with both of their parents. That is the factor that is relied upon heavily by the Father. Secondly, I am to consider the need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence. That is the factor that is relied upon by the Mother and the Independent Children’s Lawyer.

3. Subsection (2A) of section 60CC provides that when a court is applying the considerations set out in subsection (2) it must give greater weight to the consideration set out in paragraph (2)(b). In other words, the Court must give more weight to the need to protect the child from harm than to the benefit to the child of a meaningful relationship with each parent.

4. In the circumstances of the present case, where there are extremely serious allegations of risk and family violence, there is reason for considerable caution. I have regard to the additional factors set out in section 60CC(3) of the Act but consider the need to protect the children from harm to be of paramount importance in assessing their best interests at this interim stage where there is limited evidence before the Court and such evidence as there is remains untested. As such, I am not satisfied that it is in the children’s best interests at this stage for the time they spend with the Father to progress to unsupervised time.

5. In light of the allegations made by the Mother, nothing that I am not in a position to make findings or to assess which of the evidence is accurate, there also appears to be some cause for concern about supervision being undertaken by the paternal grandmother.  As such, I will accede to the application of the Independent Children’s Lawyer and the Mother that the Father spend time with the children in a supervised contact centre.

6. The Mother sought that the Father undertake an anger management course.  It would appear from the evidence before the Court that the Father has already undertaken a considerable number of courses.  I do not propose to order that he undertake an anger management course, but the Father is, of course, on notice that that order has been sought, and it is a matter for him whether he considers it likely to be of assistance to his case to be in a position to put before the Court evidence of having completed the course before the matter comes before the Court for a final hearing. 

7. The Father sought an order that the parties communicate using a parenting app.  The Mother did not oppose this but sought that there be restrictions on the method and form of communication to be undertaken using that app. I will make the order for this method of communication to be utilised on the basis that communication take place only in relation to matters pertaining to the children’s welfare and the parties each be restrained from using any abusive language in the course of those communications.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Parker.

Associate:  

Dated:       16 May 2023