MCMAHON & BELLWOOD
[2017] FCCA 556
•27 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCMAHON & BELLWOOD | [2017] FCCA 556 |
| Catchwords: FAMILY LAW – Interim parenting – children to remain living with father and spend time with the mother. |
| Legislation: Family Law Act 1975, ss.60CA, 60B, 60CC, 61DA, 65DAA, 60CG, 69ZT, 61C, 61DB Evidence Act 1995, ss.75, 135 |
| Cases cited: Banks & Banks (2015) FLC 93-637 Slater & Light [2011] FamCAFC 1 |
| Applicant: | MR MCMAHON |
| Respondent: | MS BELLWOOD |
| File Number: | DUC 310 of 2015 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 14 March 2017 |
| Date of Last Submission: | 14 March 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 27 March 2017 |
REPRESENTATION
| Appearing for the Applicant: | Ms Otrebski |
| Solicitors for the Applicant: | Longman Hill Solicitors |
| Appearing for the Respondent: | Mr Hill |
| Solicitors for the Respondent: | Blackwell Short Lawyers |
PENDING FURTHER ORDER:
The parents have equal shared parental responsibility for X born on (omitted) 2013 and Y born on (omitted) 2014.
The children shall live with the father.
The children shall spend time with the mother:
(a)Commencing on the first Saturday after the making of these orders and each alternate Saturday thereafter from 10am to 5pm;
(b)Each Sunday from 10am to 5pm;
(c)Each Thursday from 4pm to 6pm; and
(d)At all other times as agreed.
Changeover shall occur at (omitted) Police Station.
IT IS NOTED that publication of this judgment under the pseudonym McMahon & Bellwood is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DUBBO |
DUC 310 of 2015
| MR MCMAHON |
Applicant
And
| MS BELLWOOD |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings in relation to the two children of the parties, X born on (omitted) 2013 and Y born on (omitted) 2014.
The parents, who commenced living together in July 2013 separated in February 2015. Since then the father has re-partnered.
After proceedings were commenced at the Orange Local Court by the father, interim parenting orders were made by consent on 31 July 2015, in essence for the children to live with the father and spend each Thursday afternoon and each alternate Sunday afternoon with the mother. Those orders also provided for:
The matter to be adjourned pending return of subpoena issued by the mother for Interim Hearing or further directions at Orange Local Court.
The matter was subsequently transferred to the Federal Circuit Court at Dubbo, and a number of procedural orders were made over a period of time. In February 2016, orders were made by the Court for the preparation of a Family Report, with those interviews due to take place in May 2017 with the Report to be released prior to 9 June 2017.
On 19 September 2016 the mother filed an Application in a Case in respect of increasing the time the children spend with her pending final orders, including overnight time. It was in essence an application for the children to spend significant and substantial time with the mother akin to a shared care arrangement but falling slightly short of that.
The father’s case was that the Application in a Case should be dismissed and that the children should continue to spend time with the mother in accordance with the July 2015 orders, particularly in light of the impending Family Report interviews and ultimate release of the Family Report.
It was this interim application that the Court heard on 14 March 2017.
The Law
The central enquiry for the Court is to determine the outcome that will be best for the children the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in the children’s best interests, the Court must consider the matters set out in s60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children.
The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations the Court must give greater weight to the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the children of having a meaningful relationship with both of the parents.
It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the children.[3]
[2] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court in
[3] Ibid at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the children’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[4] The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[4] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]
[5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[6]
[6] s61DA(3)
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the children’s best interests and reasonably practicable, then the Court must consider the children spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7]
[7] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[8] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.
[8] (2007) 36 Fam LR 422, (2006) FLC 93-286
As stated by the Full Court in Keats & Keats, in respect of the conduct of interim proceedings:[9]
…the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may 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.
[9] [2016] FamCAFC 156 at [9]
Documents Relied Upon at Interim Hearing
The mother relied upon the following documents:
a)Application in a Case filed 19 September 2016;
b)Affidavit of Ms Bellwood affirmed 12 September 2016 and filed 19 September 2016;
c)Affidavit of Ms Bellwood affirmed and filed 1 February 2017; and
d)Affidavit of Ms S affirmed and filed 1 February 2017.
The father relied upon the following documents:
a)Response to an Application in a Case filed 9 December 2016;
b)Affidavit of Mr McMahon sworn and filed 9 December 2016;
c)Affidavit of Ms M affirmed 6 December 2016 and filed 9 December 2016;
d)Affidavit of Ms D sworn 10 February 2017 and filed 15 February 2017.
A number of documents were tendered, these being a discharge summary for the mother from the Emergency Department of (omitted) Hospital dated 15 April 2015; the father’s pay slips and the enrolment records for the child X from her day care.
Competing Proposals
The mother seeks the following interim orders:
1. That orders 2 and 4 made in the Orange Local Court on 31 July 2016 be discharged.
2. That the parents have equal shared parental responsibility for the children.
3. WITHOUT PREJUDICE to any further live with application, that the children spend time with the mother by agreement but failing agreement as follows:
a. From the commencement of these orders and for a period of two [2] months, in one week, from 9.00am Friday until 9.00am Monday and in each alternate week, from 9.00am Thursday until 9.00am Friday; thereafter
b. For a further period of two [2] months, each alternate week from 9.00am Thursday until 9.00am Tuesday; thereafter
c. Week about, from 9.00am Tuesday until 9.00am the following Tuesday.
4. That the father shall do all acts and things and sign all documents to ensure that the mother is listed on all documents relating to the children, including but not limited to all enrolment and medical forms.
5. That each parent shall notify the other as soon as practicable and in any event within 2 hours of either child or the children collectively attending upon a medical practitioner, the reason for the visit and the particulars of the treating doctor and furnish the other parent with any medical report or certificate within 2 days of receipt of such a medical report or certificate.
6. That these orders are sufficient authority for each parent to contact and speak to the children’s treating health care professional and obtain medical information, reports and the like regarding the children.
7. That these orders are sufficient authority for each parent to be provided with copies of all day care or school reports, photograph order forms, notices and advices concerning the children and any activities involving the children.
The father seeks the following interim orders:
1. Interim Orders dated 7 July 2015 continue.
2. Matter be adjourned to next call-over pending receipt of Family Report.
Issues in Dispute
The issues in dispute at this interim stage are what spend time with arrangements for the children are in their best interest and whether the children are at risk in the mother’s care such that there needs to be safeguards put in place in respect of any time they are to spend with the mother.
Like most of the interim matters which come before this Court there is significant dispute about many facts. The facts which are uncontested have been referred to at the beginning of these reasons.
In Banks & Banks (2015) FLC 93-637 the Full Court stated:
[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. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
The absence of discussion of any particular s 60CC factor below does not reflect any failure to consider it. Rather, it is reflective of the Court’s assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors which were specifically addressed: Banks & Banks at [52].
Primary Considerations
The protection of the child from harm is an important matter for the Court’s consideration when weighing up the primary considerations.
Unacceptable Risk of Harm
At this stage of the proceedings, particularly noting that much of the evidence is in dispute and that there has been no testing of the evidence in cross-examination, the Court is not able to make any findings in relation to the following matters which are asserted by the father:
a)That the mother is in a relationship with Mr C;
b)That Mr C has a history of violence against his former partners;
c)That the mother has been untruthful to the Court in her evidence in relation to her relationship with Mr C;
d)That the mother has breached her undertakings to the Court in relation to Mr C;
e)That the mother suffers from mental health issues;
f)That the mental health issues which the mother suffers from place the children at an unacceptable risk of harm if they are to spend time with the mother where such time is not supervised;
g)That the mother is a user of illicit substances;
h)That the mother’s use of illicit substances places the children at an unacceptable risk of harm if they are to spend time with the mother where such time is not supervised; and
i)That the mother is not able to meet the children’s physical needs such that the children would be neglected if they were to spend time with the mother other than in accordance with the July 2015 orders until such time as the Family Report becomes available and makes appropriate recommendations.
The Court has before it sworn evidence from the mother.
The Court has before it sworn evidence from the father.
Much of the father’s evidence though appears to be hearsay, and as such must be carefully considered. The difficulty with the reliability of hearsay evidence does not diminish due to the operation of s69ZT(1)(c) of the Act, and such evidence may be given such weight (if any) as the Court thinks fit: s69ZT(2).[10]
[10] See also s75 Evidence Act 1995 (Cth) in respect of the exception of the hearsay rule to interlocutory proceedings, however such evidence is always be subject to discretionary exclusion under s135 Evidence Act
It was submitted on behalf of the father that the mother is prepared to expose the children to Mr C, who has exposed his previous partners to domestic violence. It was further submitted that the mother is misleading the Court and everybody else, and that the Court cannot be sure what the mother’s true situation domestically is. Such submissions are based on factual assertions, which at this stage of the proceedings, remain in dispute.
The issue is not simply about the risk of harm, it is about the nature of the risk, the degree of risk, what might be done about the risk and the balancing of assessed risks against the benefit of the child having a relationship with the parent against whom the risk of harm is alleged to be unacceptable.[11] The issue is the extent of the risk and the things that might be done reasonably to alleviate (not eliminate, but alleviate) the risk.[12]
Mother’s Alleged Relationship with Mr C
[11] Jopson & Lilwall (No.2) [2016] FamCAFC 262 at [58]
[12] Jopson & Lilwall (No.2) [2016] FamCAFC 262 at [56]
On 29 June 2016 the mother provided an undertaking that she would ensure that the children do not come into contact with Mr C whilst the children are in her care.
The father places before the Court an Affidavit of a witness who deposes that she is a former partner of Mr C and that during their ten month relationship there was ongoing domestic violence. Some particulars of the alleged violence are given. The witness also deposes that there is a domestic violence order against Mr C. The order itself is not annexed to the Affidavit. No dates are provided whether in respect of the order or in respect of when the incidents of violence are said to have occurred. There is no other evidence before the Court, for example, by way of documents produced under Subpoena from New South Wales Police which might shed some light on these allegations. Such lack of evidence might properly be the subject of a Jones & Dunkel[13] inference, however, at this stage of the proceedings no such inference is drawn.
[13] (1959) 101 CLR 298
Despite what the father says are breaches by the mother of her undertakings[14], he has continued to facilitate time between the mother and the children. Such continued facilitation of time might be viewed as being reflective of the level of concern the father has in that respect.
Mother’s Mental Health
[14] And perhaps the interim order for time to be supervised
There is no evidence before the Court that the mother suffers from any mental health issues.
There is evidence of an admission to hospital on 13 April 2015. The mother was discharged on 15 April 2015. Exhibit 1 shows that the diagnosis was “grief reaction” with the additional diagnosis being “situational crisis” and “self-harm”. Annexed to the mother’s Affidavit is a short letter from the mother’s treating general practitioner, which indicates that the mother had been prescribed anti-depressants in the past, but this has been discontinued. She was also referred to ‘Headspace’ and has attended once and will continue to attend. Dr R does “not hold any concerns in relation to Ms Bellwood being a risk to herself or to others.”
The Court is not satisfied that the mother’s hospitalisation in April 2015 and subsequent treatment translates to an unacceptable risk of harm to the children in March 2017, noting that there were no further reported incidents of alleged self-harm.
Mother’s alleged drug use
Annexed to the mother’s Affidavit are the results of two drug urine analysis. Both show negative results for the presence of the tested substances.
The mother denies use of any illicit substances.
In conclusion
The children have been spending time with the mother since July 2015, it appears largely in accordance with the interim consent orders made on 30 July 2015.
There is no evidence before the Court that the children have been harmed whether physically or psychologically by virtue of being subjected to or exposed to abuse, neglect or family violence while spending time with the mother, or that they have come in harm’s way.
This is so despite the assertions that the mother is in breach of her undertakings, that she is in a relationship with Mr C or otherwise as a result of the alleged neglect, alleged drug use or mental health issues which are asserted. This is not to suggest that evidence of actual harm is what is required. The risk alleged must have a foundation in the evidence which is incompatible with the welfare of the child.[15]
[15] See for example the discussion commencing at [64] in Johnson & Page (2007) FLC 93-344
When examining the issue of unacceptable risk of harm to the child, the Court finds that the father’s evidence, even at its highest and noting that it remains untested, does not support the requisite standard for a finding that there is an unacceptable risk of harm to the children if they were to spend unsupervised time with the mother and/or more time than the July 2015 orders provide for.
Benefit of a Meaningful Relationship
Both parents have something to offer the children. They both, on their own evidence, appear to be loving, caring parents, who seek to be involved in the children’s future. For those reasons, the Court finds that there is a benefit to the children having a meaningful relationship with both parents.
There are a number of protective factors for the children in any event which are provided for in the orders. The children will, at present, remain living with the father in an environment they know and they will be spending regular and limited day time with the mother only.
Other Relevant Section 60CC Factors
The children have been spending limited time with the mother since the interim orders in July 2015.
It is in the children’s best interest for them to have a relationship with the mother and for time with the mother to progress to time which will facilitate a relationship between the children and the mother.
The children at present appear to be primarily cared for by the father’s partner – as the father often works in excess of 40 and sometimes 50 hours per week.
The orders proposed by the father would see no change in the children’s routines.
The orders proposed by the mother would see a significant change in the children’s routine. The Court is not persuaded that at present such orders are in the children’s best interest.
These are only interim orders. A Family Report has already been ordered. However, it is likely that if the matter proceeds to final hearing, there may be a time period of at least eight to twelve months before the matter is determined on a final basis.
The length of time that the matter will take to reach readiness for a final hearing is also something which the Court has considered in making these interim orders, particularly in trying to balance the children having a meaningful relationship with both of their parents given the limited time that the children have spent with the mother since the July 2015 orders, risk of harm issues aside.
Many of the facts alleged by each of the parents are disputed. Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made. In doing so the Court must weigh up any risk of harm to the child, all the while considering what might be in the child’s best interest.
Parental Responsibility
Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[16] Section 61DA provides for a presumption of equal shared parental responsibility that the Court does apply when making a parenting order.
[16] See note 1 s61C
As noted earlier, in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[17]
[17] s61DA(3)
The Court is mindful of what the Full Court said in Salah & Salah[18] in respect of applying a cautious approach in the context of disputed allegations of family violence, the rebuttal of the presumption of equal shared parental responsibility contained in s61DA(3) and having regard to the Court’s obligations under s60CG.
[18] [2016] FamCAFC 100
The parents do not have a good working relationship at present. There appears to be very little trust between them, but the evidence is not such that it would lead the Court to conclude that any long term decisions in relation to the child would not be capable of being made jointly by the parents.
At this stage of the proceedings the Court is not minded to make an order for sole parental responsibility and the Court does not find that on the evidence the presumption of equal shared parental responsibility has been rebutted. As such, an order for equal shared parental responsibility is made.
It is noted for the benefit of the parties that in making a final parenting order in relation to a child, the Court must disregard the allocation of parental responsibility made in the interim order.[19]
[19] s61DB
Section 65DAA was discussed earlier in these reasons, noting that this section is enlivened due to the order for equal shared parental responsibility. Relevantly, s65DAA states:
(3) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Having regard to the above criteria and the various considerations discussed throughout these Reasons, at this interim stage equal time is not supported by the facts in this matter, and neither is significant and substantial time[20].
[20] within the meaning of s65DAA(3)
Conclusion
In all of the circumstances and for all of the reasons set out above, it is in the child’s best for orders to be made as set out at the forefront of these Reasons.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 27 March 2017
Key Legal Topics
Areas of Law
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Civil Procedure
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Standing
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Procedural Fairness
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Natural Justice
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Abuse of Process
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