Messina & Obelink

[2020] FamCA 1142

FAMILY COURT OF AUSTRALIA

Messina & Obelink [2020] FamCA 1142

File number(s):	DGC 944 of 2015
Judgment of:	WILLIAMS J
Date of judgment:	21 July 2020
Catchwords:	FAMILY LAW – PARENTING – Interlocutory Application – unilateral suspension of time by mother –Victorian COVID-19 lockdown – mother failed to establish that the child would be placed at risk in the father's care – resumption of father’s time.
Legislation:	Family Law Act 1975 ss 60B, 60CA, 60CC
Number of paragraphs:	26
Date of hearing:	21 July 2020
Place:	Melbourne
Counsel for the Applicant:	In person
Counsel for the Respondent:	In person

ORDERS

DGC 944 of 2015

BETWEEN:

MR MESSINA

Applicant

AND:

MS OBELINK

Respondent

ORDER MADE BY:	WILLIAMS J
DATE OF ORDER:	21 JULY 2020

THE COURT ORDERS THAT:

1.The child B born … 2014 resume time with his father pursuant to the Orders of the Honourable Justice McEvoy made 4 October 2019 on Friday 24 July 2020.

2.All extant applications be dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Messina & Obelink has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Williams J

1. This matter comes before the Court today in the judicial duty list, pursuant to an application made by the father.  The sole issue for determination today is whether B, who is aged five, should continue to spend time with his father pursuant to final orders which were made by McEvoy J on 4 October 2019, after the parties had been engaged in a trial for a number of days.

2. The background, briefly, is that the father is aged 44 and he lives on a 20 acre semi-rural property in Town K.  The mother is aged 38 and she is a student and she lives in Town J.  Town K is outside the current lockdown area which was imposed by the State Government a couple of weeks ago.  Town J falls well within that lockdown area.

3. The relevant final orders which were made by His Honour on 4 October 2019, provide as follows:

   (a)Firstly, pursuant to paragraph 5, that the parents have equal shared parental responsibility for B, save that decisions pertaining to B's education and health be made solely by his mother.  In other words, she had sole parental responsibility in the exercise of matters pertaining to those two areas of parental responsibility.

   (b)Paragraph 10 regulates the time that B is to spend with his father during school terms from 2020 onwards, and effectively provides for a regime of each alternate weekend with his father from Friday, 3.30 pm, or conclusion of school, until 5.00 pm Sunday, and for a period during the school holidays including one-half of the school term holidays.

4. The current application before me was issued by the father in an application in a case which was filed in the Melbourne registry on 14 May 2020.  In support of that application, there was an affidavit filed, which was dated as having been sworn or affirmed by the father on 12 May 2020, although, as the mother points out, the filed copy was not actually signed by the father.  In addition, the father has filed a further affidavit on 20 July 2020, which was purportedly affirmed or sworn on 18 July 2020, and that suffers from the same defects.

5. In response to that application, the mother filed her application in a case on 15 June 2020, supported by an affidavit affirmed by her on 15 June 2020, and a further affidavit which was filed by her on 20 July 2020.

6. Notwithstanding the affidavits were not sworn by the father, I have relied on the contents of the affidavits, and indeed, I granted the mother considerable latitude in her submissions when, effectively, she sought to respond to the assertions in the affidavits, and to provide additional evidence over and above what she had sworn to in her two affidavits.

7. The orders sought by the father in the application in a case was for a recovery order of the child, B, born in 2014, and secondly, any further orders the Court deemed appropriate.  The orders sought by the mother were that the father's application in a case, filed 14 May 2020, be dismissed.

8. What the position is now is, as I understand it, the father seeks a resumption of his time, pursuant to the orders made by McEvoy J of October 2019, and he seeks that the time commence this weekend, being 24 July 2020, whereas the mother seeks a suspension of the time for an indeterminate period because of the COVID-19 situation.

9. At the commencement of submissions, I asked each of the parties whether they had any particular preference as to which would be the appropriate date for resumption of time, in the event I decided that it was appropriate that time should continue in accordance with the orders.  Unremarkably, both the parties had a different view.  The father sought that time would resume on 24 July 2020, and the mother sought that time would resume on 31 July 2020.

10. The rationale propounded by each of the parties was that the orders provide for the alternate weekend time to resume on the week after the conclusion of the school holidays, the mother's case being that the school holidays were extended by an extra week until 17 July 2020 and therefore the appropriate weekend should be 31 July 2020, and the father's rationale was that he had not seen his son and he wants to see his son as quickly as possible, notwithstanding that if I made orders that time resume on 24 July 2020, that would have the effect of B not being available to spend time with his father on his father's birthday.

11. In support of each of their applications, the assertions proffered by each of the parties may be summarised as follows:

    (a)The father asserts that his time, pursuant to the orders of McEvoy J, was unilaterally suspended by the mother at the time of the first COVID-19 lockdown in March 2020, which necessitated the filing of the application.  He does, however, concede that the time resumed.

    (b)However, his other complaint is that he did not receive the additional time of the school holiday period and the school holidays were extended by an additional week in July.  According to the orders, he is supposed to have one-half of the school holidays and that did not take place, although he concedes that he had time with his son in the first week of the July 2020 school holidays.

    (c)He further argues that the mother was not entitled to unilaterally suspend his time with the child, and he seeks the resumption of time in accordance with those orders.

    (d)The father asserts that he actually lives outside the lockdown area, on a 20 acre farm in Town K with his partner.  He and his partner are acutely aware of hygiene practices and social distancing and that they rigorously adhere to what is required.  The child was with him as recently as 4 July 2020 and there were no health implications which arose from the child spending time with his father.  Additionally, he submits that there have been no COVID-19 cases in his area for three months, and there have been no cases whatsoever of community transmission, and, in fact, any COVID-19 cases have arisen as a result of returning travellers.

    (e)The mother asserts that because there is an order for her to have the sole parental responsibility in relation to health and education, she is entitled to unilaterally suspend the time between B and his father because of her concerns for the health implications of the COVID-19 pandemic.

    (f)She submits that the time which was initially suspended had recommenced by the time the father's application in a case was actually filed and that there was no need for him to do that.

    (g)She also agrees that the father spent time with B in the July school holidays and I think it is her position that the time continued until 4 July 2020.

    (h)She now seeks to suspend time because of her concerns about the latest COVID-19 lockdown which happened the week before last, including the latest restrictions upon children who are of school age attending school.  B attends prep in F Primary School in Town J, and so he is therefore affected by the restrictions on children attending school.

    (i)In addition to the adverse health implications in relation to B, she is also concerned that she and B live at her parents' home and they are in their sixties, and that her mother is required to render assistance to her grandparents who are in their eighties, and by allowing B to travel during the COVID-19 pandemic restrictions, that would place not only the child, but his extended family at risk.

    (j)She asserts that she has attempted to arrange additional forms of the father and B connecting, and she has encouraged and facilitated extended electronic time between the child and his father, which she details in her affidavit.  She also asserts that she will continue to facilitate that time.

    (k)Both of the parties refer to various statements made by the Premier of the State, Daniel Andrews, and to comments made by the Chief Justice of this Court, Alstergren CJ, in the context of parents complying with orders of the Courts in the COVID-19 pandemic.

12. The law which I am required to apply in terms of ascertaining parenting disputes is set out in Part 8 of the Family Law Act 1975 which sets out the provisions relating to children. Section 60B of the Act sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders.

13. Section 60CC of the Act sets out how the Court is to determine what is in a child's best interests. I do note, however, that s 60CC(2) of the Act sets out the primary considerations, which are often referred to as the twin pillars of the Act, and s 60CC(3) sets out the additional considerations.

14. The primary considerations of the Act are, effectively, the right of the child to have a meaningful relationship with a parent, and secondly, the requirements to protect a child from harm.  When weighing up the primary considerations, the Court is required to place greater weight on the issue of protecting a child from harm.

15. The section 60CC(3) considerations are not particularly pertinent to this dispute as it is a very limited dispute which has arisen from the COVID-19 situation, and although I do not intend to address it specifically, I have had regard and consideration to any of the relevant appropriate s 60CC(3) considerations.

16. In my view, the mother has failed to establish that the child would be placed at risk in the father's care, if I were not to agree with her position, and to implement the orders of McEvoy J.  And in particular, I have had regard, as I have discussed with the parties prior to giving these reasons, that the mother lives in the lockdown area, and the father lives outside it.  In my view, the child is at less risk travelling outside the lockdown zone to regional Victoria, than the other way.

17. There was no expert evidence placed before me, which I would not have anticipated in a matter where two parties are self-represented, and the limited dispute, and reference has been made to the external statements, as I said before, made by the Premier of the State and the Chief Justice of this Court.  Obviously, everybody has had regard to media reports and the news and everybody assiduously follows the latest developments of the COVID-19 crisis in this State, and the mother in fact referred to the increasing numbers today in the high three hundreds.

18. However, notwithstanding that there is a generalised concern and anxiety in the community, the only objective evidence that can be taken is that where the father lives is less ridden with COVID-19 cases, than where the child actually lives.  It is not a situation where orders have been made which would place the child in the middle of a hotspot for COVID-19 crisis.  In fact, it is quite the contrary.

19. The mother also raised the issue of the father and his partner attending the Town K produce market, and I did remark to her, prior to these reasons, that it would be highly unlikely that anybody from the lockdown areas would be granted permission by the many police that we all hear about, day in and day out, enforcing the lockdown zone, to be able to attend such markets.

20. She also expressed her concern about neighbours and the child of a neighbour and elderly people in the vicinity of the father, but, again, I can only stress that they are the ones who are living in the areas with normal COVID-19, cases as opposed to the mother living within the lockdown zone.

21. In the circumstances, I am not persuaded that B would be of any greater significant risk in complying with the orders, than what the mother proposes.

22. In terms of the child's relationship, the orders of September 2019 are fairly recent.  B has become used to routine and stability in his life since September, and in my view, the best way for him to cope with all of the upheaval and uncertainty of the COVID-19 situation, which he is obviously going to be exposed to and that would be inevitable, would be for that routine and stability for time with his father to continue, if I have determined that he is not at risk, which is my position.

23. Despite the mother's very eloquent submissions, there is no evidence to suggest that going from an area with less COVID-19 is going to place a child at more risk than a child living in an area with more COVID-19 cases and to the extent that that area is included to be in lockdown.

24. For those reasons, I intend to order that the child's time with his father continue, or resume, in accordance with the orders of McEvoy J on 4 October 2019, and that that time resume on Friday, 24 July 2020, and in the fortnightly cycle thereafter.

25. Prior to giving my reasons, I asked the mother whether she was going to comply with the orders that I made and she gave me that assurance that she would, and in the circumstances I will refrain from making a recovery order even though I would have stayed the operation of that order pending compliance with the orders.

26. Obviously, in the event that the orders are not complied with, she and I will both expect a further application by the father seeking a recovery order in that situation.  In response to that, the mother sought an assurance from the father that he would return the child in accordance with the orders if he is prepared to give that assurance.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.

Associate:

Dated:       21 July 2020