Merritt & Hurst

[2020] FCCA 3358

FEDERAL CIRCUIT COURT OF AUSTRALIA

Merritt & Hurst [2020] FCCA 3358

File number:

MLC 7094 of 2020

Judgment of:

HER HONOUR JUDGE C. E. KIRTON QC

Date of judgment:

4 December 2020

Catchwords:

FAMILY LAW – Children – interim proceedings – father’s application for parenting orders – where the father seeks a gradual increase in the spend time arrangements – children are of a young age – where overnight time is in dispute – where communication via electronic means is in dispute – where changeover is in dispute – presence of the father’s partner during spend time arrangements – where the Court needs to determine whether an increase in time is appropriate – whether overnight time is appropriate due to the young ages of the children – where the Court adopts recommendations of family consultant pursuant to a s.11F report – gradual increase in time – where the Court needs to determine if and when the children see the father’s partner – cautious approach adopted – children’s best interests as the paramount consideration – orders made by consent and by order of the Court – parties ordered to attend a Family Dispute Resolution Conference.

Legislation:

Evidence Act 1995 (Cth), s 131

Family Law Act1975 (Cth), ss 10H, 10J, 11F, 13C(1), 60CA, 60CC, 62B, 65DA(2), 102NA

Federal Circuit Court Rules 2001 (Cth), r 23.02

Number of paragraphs:

30

Date of last submission/s:

4 December 2020

Date of hearing:

4 December 2020

Place:

Melbourne

Counsel for the Applicant:

Ms Metherell

Solicitor for the Applicant:

Harwood Andrews

Counsel for the Respondent:

Mr Lovering

Solicitor for the Respondent:

Ballarat Lawyers

ORDERS

MLC 7094 of 2020
BETWEEN:	MR MERRITT Applicant
AND:	MS HURST Respondent

ORDER MADE BY:	HER HONOUR JUDGE C. E. KIRTON QC
DATE OF ORDER:	4 DECEMBER 2020

THE COURT ORDERS THAT:

1.The matter be adjourned to the Federal Circuit Court of Australia on 23 February 2021 at 9:30 am for Mention.

2.Pursuant to s.13C(1)(b) of the Family Law Act1975 (Cth), the parties and their legal representatives (if any) shall attend a confidential Family Dispute Resolution Conference on 15 February 2021 at 9:00 am with a Registrar (Family Dispute Resolution Practitioner) and Family Counsellor of the Federal Circuit Court of Australia.

3.Pursuant to r.23.02(a) of the Federal Circuit Court Rules 2001 (Cth) (Rules) the parties and their legal representatives (if any) shall attend Part 1 of the confidential Family Dispute Resolution Conference with a Registrar (Family Dispute Resolution Practitioner) or Family Counsellor on 11 February 2021 at the following times:

(a)The Applicant at 9:00 am; and

(b)The Respondent at 9:45 am.

4.Part 1 of the confidential Family Dispute Resolution Conference shall proceed by telephone and each party must, within 7 days of today’s date, notify the Court of their best contact telephone number by email to [email protected] .

5.Pursuant to r.23.02(c) of the Rules the parties shall:

(a)Complete and forward to the Registrar and each other party a completed Parenting Questionnaire by no later than 4:00 pm on 4 February 2021 via email to [email protected]; and

(b)Comply with any other order or direction made by the Registrar necessary to facilitate the Family Dispute Resolution Conference.

6.Not later than 4:00 pm on 8 February 2021 the lawyer for each party must give the party for whom they act a written notice of:

(a)The party's actual costs, both paid and owing, up to and including the Family Dispute Resolution Conference;

(b)The estimated future costs of the party up to and including each future court event, including trial; and

(c)Any expenses paid or payable to an expert witness or, if those expenses are not known, an estimate of the expenses.

7.In the event of non-attendance by either of the Parties at Part 1 of the Conference (on 11 February 2021 in accordance with Order 3 herein), the Registrar may exercise their discretion to make orders vacating the Family Dispute Resolution Conference scheduled for 15 February 2021.

AND THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:

8.There be interim orders, by Order of the Court and by consent, in terms of the Minute of Orders dated 4 December 2020 (Minute) and further:

(a)The Minute be placed upon the Court file and marked Exhibit “A”.

AND THE COURT NOTES THAT:

A.For the purposes of the confidential Family Dispute Resolution Conference, the parties are referred to s.131 of the Evidence Act 1995 (Cth) and ss. 10J and 10H of the Family Law Act1975 (Cth).

B.The Parenting Questionnaire referred to in these Orders is confidential and prepared for the purpose of the Family Dispute Resolution Conference only. The Parenting Questionnaire is not to be filed nor kept with the Court file after the conclusion of the conference.

C.Part 1 of the Family Dispute Resolution Conference referred to in Orders 3(a) and 3(b) is confidential. The other party will not be in attendance.

D.The Family Dispute Resolution Conference is an opportunity for the parties to make a genuine effort to resolve their parenting dispute in a confidential, child focussed setting with the assistance of a Registrar (Family Dispute Resolution Practitioner) and Family Counsellor of the Court. The parties are to be resolution focussed and respectful during negotiations, and to be mindful of the financial and emotional costs associated with prolonged litigation.

E.In the event the parties reach agreement, either on an interim or final basis, the Registrar may make orders and the next listing before Her Honour Judge C. E. Kirton QC on 23 February 2021 may be vacated.

F.Pursuant to ss. 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.

G.If in any proceedings there are allegations of family violence and the provisions of s.102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

H.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (Scheme) for representation but any such application must be made at least 12 weeks prior to the final hearing.

I.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

J.If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

EXHIBIT “A”

MINUTE OF ORDERS

THE COURT ORDERS BY CONSENT, UNTIL FURTHER ORDER, THAT:

1.Orders 14 and 15 of the Interim Orders dated 16 September 2020 be discharged.

2.The children, namely W born 2006 (W), X born 2012 (X), Y born 2016 (Y) and Z born on 2016 (Z) (collectively, Children) shall spend time with the Applicant Father (Father) as follows:

2.1.For W, in accordance with her wishes;

2.2.For X, Z and Y as follows:

2.2.1From the conclusion of school or 3:30 pm until 8:00 pm Friday 4 December and each alternate Friday thereafter with the time to be extended from 9:30 am until 8:00 pm during the long summer school holidays, when the Children are not otherwise in the Father’s care;

2.2.2On Saturday 12 December 2020, from 9:30 am Saturday until 7:00 pm Sunday; 

BY ORDER OF THE COURT:

2.2.3From 3:00 pm on 25 December 2020 until 7:00 pm on 26 December 2020 (Boxing Day);

BY CONSENT:

2.2.4From 9:30 am on Friday 8 January 2021 until 8:00 pm 10 January 2021;

BY ORDER OF THE COURT:

2.2.5From 9:30 am on Friday 22 January 2021 until 7:00 pm on Sunday 24 January 2021;

BY CONSENT:

2.2.6From the conclusion of school or 3:30 pm Friday 5 February 2021 until   7:00 pm Sunday 7 February 2021;

BY ORDER OF THE COURT:

2.3.For all of the Children, by telephone or FaceTime each Tuesday evening between 5:30 pm and 6:00 pm with the Children to be afforded privacy for the call.

3.Unless otherwise agreed in writing, where changeover does not take place at school or kindergarten, the Father or his agent will collect the Children from out the front of the Respondent Mother’s (Mother) residence and the Mother or her agent will collect the Children from out the front of the Father’s residence at the conclusion of time.

4.For the Children’s overnight time with the Father, the Father shall ensure that his partner, Ms A, is:

4.1.Not present at any time during the time with him in accordance with Order 2.2.2 and 2.2.4; and

4.2.Not present for the overnight only on 25 December 2020 when the Children are in attendance in accordance with Order 2.2.3.

BY CONSENT:

5.In relation to W’s attendance on medical practitioners or psychologists:

5.1.The parties do all such acts and things to ensure that W continues to attend upon her psychologist and dietician to address her mental health needs;

5.2.The Mother shall forthwith inform the Father of the details of W’s current treating medical and psychological practitioners including their name and practice details, and in the event of any change, noting that the Father will not seek details of the contents of the appointments other than to be aware of the dates and times; and

5.3.The Father shall not seek information from W directly about her medical appointments.

6.Y and Z attend 4 year old kindergarten in 2021.

7.The parties access parenting support from a community agency such as Child and Family Services B City or Relationships Australia B City to:

7.1.Assist the Mother to transition X, Y and Z to sleep independently and implement age appropriate boundaries and discipline for all the Children in a sensitive and child focussed way;

7.2.Support the parties to address their co-parenting issues, step-family dynamics and separating their adult issues from the Children’s needs; and

7.3.Assist the Mother with her individual wellbeing needs via counselling.

8.A copy of the Child Inclusive Conference Memorandum provided to the Court and dated 25 November 2020 be permitted to be provided to medical and family services professionals involved with the family.

AND THE COURT NOTES THAT:

A.The Father will ensure the Children are fed dinner on the occasions that they are in his care until 7:00 pm.

B.The parties are participating in a Family Dispute Resolution Conference with a Registrar and Family Counsellor on 11 February 2021 and 15 February 2021 to discuss a further increase in the Children’s time with the Father.

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 Merritt & Hurst is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

Revised from Transcript

HER HONOUR JUDGE C. E. KIRTON QC:

1. This matter comes before the Court by way of the Applicant Father’s (Father) Initiating Application filed on 3 July 2020, for interim and final parenting and property orders. The parties commenced co-habitation in September 1999, and final separation took place in February 2019. The parties have five children of the relationship, four of whom are minors. The children are W, born 2006 (W), now aged 14; X, born 2012 (X), now aged eight; and twins Y (Y) and Z (Z), born 2016, now aged four (collectively, Children). On 3 July 2020, the Father filed an Affidavit in support of his Initiating Application, a s.60I Certificate and a Notice of Risk. 

2. On 11 September 2020, the Respondent Mother (Mother) filed a Response, an Affidavit in support of her Response, a Financial Statement, and a Notice of Risk. This matter first came before the Court on 16 September 2020, when orders were made by the Court. The Court ordered that the parties attend a Conciliation Conference on 5 November 2020. It also ordered that the parties and the Children participate in a Child Inclusive Conference, pursuant to s.11F of the Family Law Act 1975 (Cth) (Act), with such conference to be held on 24 November 2020. A further Mention was ordered for today’s date, being 4 December 2020. 

3. The parties also entered into consent parenting orders. Paragraph 12 of the Orders provided that the parties have equal shared parental responsibility for the Children. Paragraph 13 ordered, by consent, that the Children live with the Mother; paragraphs 14.1.1 and 14.1.2 provided for X, Z, and Y to spend time with the Father. Paragraph 14.1.3 made provision for X to spend time with the Father on X’s birthday, being 17 September. Paragraph 14.2 made provision for W to spend time with the Father according to her wishes. Paragraph 14.3 provided for all the Children to spend time with the Father by FaceTime once a week; and paragraph 15 made provision for the changeover arrangements, by consent between the parties. 

4. On 4 November 2020, final property orders were made by a Registrar of the Court, by consent between the parties. On 24 November 2020, the parties and the Children participated in the Child-Inclusive Conference with Family Consultant C. Family Consultant C subsequently prepared a Child Inclusive Conference Memorandum to the Court, which I shall refer to as the s.11F Report.

5. Before me today, the parties appear for a Mention. The parties have agreed to participate in a Family Dispute Resolution Conference with a Registrar and a Family Counsellor on 11 February 2021 and 15 February 2021, to discuss the Children further increasing their time with the Father. 

6. The parties have today substantially arrived at agreement in relation to further interim orders. There are, however, four areas of dispute remaining between the parties, which I have been requested to determine today. I have before me a Minute of the Father’s Proposed Interim Consent Orders (Father’s Proposal), which was emailed to my Associates by Counsel for the Father at 10:11 am this morning. Counsel for the Father also emailed this morning a Summary of Argument on behalf of the Father. I also have before me Minutes of the Mother’s Proposed Interim Consent Orders (Mother’s Proposal), which was emailed to my Associates this morning by Counsel for the Mother at 9:19 am. 

7. Before considering the discreet issues in dispute, I turn first to the relevant legislation under the Act, which this decision must be decided. Section 60CA of the Act provides:

   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. 

8. Section 60CC of the Act sets out how the Court is to determine what is in the child’s best interests. Section 60CC(1) of the Act provides that:

   Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3). 

9. The matters set out in subsection (2) are the primary considerations, and the matters set out in subsection (3) are the additional considerations. The primary considerations that I must take into account in section 60CC(2) are:

   (a)The benefit of the child having a meaningful relationship with both of the child’s parents; and,

   (b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence. 

   Subsection 60CC(2A) requires that I give  greater weight, to subsection 60CC(2)(b). 

   FIRST ISSUE

10. I will turn now to the first issue for consideration, and that is overnight time for X, Z, and Y with the Father. I will refer to paragraph 2.2 of the Father’s Proposal, and I will note that paragraph 2.2.1 is agreed to by the Mother, and that paragraph states: 

    From the conclusion of school or 3:30 pm until 8:00 pm Friday 4 December, and each alternate Friday thereafter, with the time to be extended from 9:30 am until 8:00 pm during the long summer school holidays, when the Children are not otherwise in the Father’s care. 

    I note that this paragraph represents a continuation of the current orders, for the Father to have Friday night dinner with the Children. 

11. I turn now to paragraph 2.2.2, and that paragraph says: 

    On Saturday 12 December 2020, from 9.30 am Saturday until 7:00 pm Sunday. 

    The Mother also agrees with this Order, as this represents one overnight stay for the Children in December.

12. I turn now to paragraph 2.2.3 of the Father’s Proposal, which states: 

    From 3:00 pm on 25 December 2020 until 8:00 pm 27 December 2020. 

    The Mother’s Proposal for paragraph 2.2.3 states: 

    From 3:00 pm 25 December 2020 until 7:00 pm 26 December 2020 (Boxing Day). 

    We therefore have the Father wanting to have two nights over the Christmas period, and the Mother contending for one night.

13. I will move now to the next paragraph, 2.2.4. The Father’s Proposal says:

    From 9.30 am on Friday 8 January 2021 until 8:00 pm 10 January 2021.

    The Mother agrees with that proposal. That proposal represents two nights, but two nights commencing from January 2021.

14. Then we move to paragraph 2.2.5 and the Father’s Proposal is:

    From 9.30 am on Friday 22 January 2021 until 8:00 pm on Tuesday 26 January 2021.

    The Mother does not agree with that proposal, and her proposal for paragraph 2.2.5 is:

    From 9.30 am on Friday 22 January 2021 until 7:00 pm on Sunday 24 January 2021.

    The Father’s Proposal over the Australia Day weekend is that he has the Children for four nights, and the Mother persists for two nights in that January period. 

15. I turn now to paragraph 2.2.6. The Father’s Proposal is:

    From the conclusion of school or 3.30 pm Friday 5 February 2021 until 7:00 pm Sunday 7 February 2021.

    This being two nights; and the Mother agrees with that proposal because it is two nights.

16. Ultimately, two overnight times are in dispute; that is, paragraphs 2.2.3 and 2.2.5. In arriving at my decision in relation to the overnight time for X, Z and Y, I rely on ss.60CC(2)(a), 60CC(3)(a), and 60CC(3)(b) and (d) of the Act. In considering my reasons for decision, I am persuaded by the following.

17. Paragraph 39 of the s.11F Report emphasises a graduated increase in time for the Children with the Father. In paragraphs 10 and 28, X has apparently only recently commenced sleeping independently from the Mother. Paragraph 28 of the report indicates that Z and Y apparently do not sleep independently of the Mother. Paragraph 15 of the s.11F Report indicates that Z and Y have not spent any overnight time with the Father. In this regard, I specifically note that Z and Y are only aged four and it will be quite a big event for them to start spending overnight time with the Father.

18. I also note, in paragraph 15, the observations of the report writer where it is reported: 

    Mr Merritt proposed that there be a progression to overnight time, specifically each alternate Friday to Monday.  He demonstrated limited insight into the children’s ability to adjust to this routine, in light of there being disrupted and limited time for some time now, and that Y and Z have not spent overnight time with him before. 

19. I prefer a cautious approach and one which is unlikely to damage the re-establishment of the relationship of the Children with the Father. These are early days, and all being well, a cautious approach will bear fruit, and will establish a meaningful relationship between X, Z, and Y, and the Father.

    SECOND ISSUE

1. I turn now to the presence of Ms A, the Father’s partner. The Father’s Proposal, as amended in discussions with Counsel for the Father, is that for the Children’s overnight time with the Father, in accordance with paragraphs 2.2.2 and 2.2.4, he shall ensure that his partner is not present during the Children’s time with him. The Mother’s Proposal at paragraph 4, is:

   That during the father’s overnight time, the father shall ensure that his current partner, Ms A, will not be present during the children’s time with him.

2. In the s.11F Report, it is noted that X dislikes Ms A. There is an issue about the extent to which the Mother has exposed the Children to her negative views of the Father’s partner and how this may have negatively influenced X’s perception of Ms A.

3. The Father has been in a relationship since April 2019, and Counsel for the Father has today submitted that it is an ongoing and committed relationship. As I read the s.11F Report, the recommendations in the s.11F Report do not, however, recommend full prohibition on Ms A’s presence when the Children are with the Father. In paragraph 40, under the heading Future Directions, the s.11F Report states:

   It may be of benefit for Mr Merritt’s partner to not be present for overnight stays initially. 

   What is proposed in the Father’s Proposal, is that Ms A not be there for two of those stays, but for Christmas the Father was hoping to have Ms A present during that stay. 

4. What I’m proposing – and going to be ordering – is that Ms A have the opportunity during the day over Christmas to participate in a happy family event with the Children, and be present during the day on 25 December 2020, and possibly 26 December 2020, but not stay overnight during that time. Which is how I think you could read that recommendation. I propose to order – and that is the intention of what I’m going to be ordering now – is that just over Christmas, Ms A have the opportunity to participate in a happy family event – or what should hopefully be a happy family event at Christmas. The intention is that Ms A simply not be there overnight at Christmas time, but be there during the day. 

   THIRD ISSUE

5. I turn now to the third issue, the Children’s FaceTime calls with the Father. Paragraph 2.3 of the Father’s Proposal states: 

   For all of the children by telephone or FaceTime each Tuesday evening between       5.30 pm and 6:00 pm with the children to be afforded privacy for the call. 

   The Mother’s Proposal is: 

   For all the children, by telephone or FaceTime each Tuesday evening between 5.30 pm and 6:00 pm. 

   Obviously, the difference between those proposals is the final words, “with the Children to be afforded privacy for the call”. 

6. In making my decision in relation to this matter, I note the comments of the report writer in the s.11F Report, in paragraphs 10 to 12, of the Mother’s difficult mental health state. I also note the report writer’s comments in paragraph 13 of the s.11F Report; the comments about the Mother continuing to have exposed the Children to her negative views about the Father’s partner. The Children will clearly be aware of the tension between the parents. In my view, I see no reason why they should not be afforded privacy when speaking to the Father on FaceTime.

   FOURTH ISSUE

7. I turn now to the last of the issues, being changeover. The Father’s Proposal is in paragraph 3, which states: 

   That where changeover does not take place at school or kindergarten, the Father or his agent will collect the children from out the front of the Mother’s residence and the Mother or her agent will collect the children from out the front of the Father’s residence at the conclusion of time. 

   I note that the Father’s Proposal is substantially in accordance with Order 15 of the Consent Orders, which were made on 16 September 2020. A little less than two months ago. 

8. Counsel for the Father argues in support that the parent who is going to have the Children should collect the Children, and that this would limit disputes about being late. And that is, therefore, in the best interests of the Children. The Mother’s Proposal for paragraph 3, and I quote is: 

   That where changeovers do not take place at school or kindergarten, the Mother will deliver the children to the Father’s residence at the commencement of time and the Father shall deliver the Children to the Mother’s residence at the conclusion of time. Except for the alternate Friday nights where the Father will pick up the children, and the Mother shall collect the children. 

9. Counsel for the Mother argues that the Mother has to collect the Children, and by the time she gets the Children home and into bed it’s very late, and this is especially difficult in wintertime. I have determined to leave the orders substantially in accordance with the Consent Orders that were made on 16 September 2020, which I have already noted was less than some two months ago. I have already raised, during the course of submissions with the parties, my view that the return of Children at 8:00 pm, particularly young Children, is quite late for them. As the parties will be attending a Family Dispute Resolution Conference in February, it will be open to them to resolve either an earlier time for the return of the Children, or a change in the overall arrangements for changeover. 

10. I do, however, intend to change the Father’s Proposal to simply say unless otherwise agreed by the parties in writing, at the beginning, which is what the previous Consent Orders say. That gives the parties flexibility if they want to change that order there.

11. Orders will be made accordingly. That concludes the formal part of my Reasons for Decision.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C. E. Kirton QC .

Associate:

Dated:       10 December 2020