NAMVAR & PALES (No.2)
[2020] FCCA 1914
•4 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAMVAR & PALES (No.2) | [2020] FCCA 1914 |
| Catchwords: FAMILY LAW – Parenting – interim hearing – whether any risk to child – where no risk established – where time with father needs to increase – where parents have poor communication – where equal shared parental responsibility not suitable – where section 61C parental responsibility maintained – where overnight time with father ordered. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 62G, 65D, 65DAB, 65X, 65Y |
| Cases cited: M & M (1988) FLC 91-973 |
| Applicant: | MR NAMVAR |
| Respondent: | MS PALES |
| File Number: | SYC 3550 of 2017 |
| Judgment of: | Judge Morley |
| Hearing date: | 23 August 2019 |
| Date of Last Submission: | 23 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Kennedy of Counsel |
| Solicitors for the Applicant: | Mark Griffiths & Bova Solicitors |
| The Respondent appeared in person |
| Solicitors for the Independent Children’s Lawyer: | Ms Smith of Katie Smith Solicitor |
ORDERS
That X live with her Mother.
That X spend time with her Father in a fortnightly cycle as follows:
(a)For four fortnight occasions:
(i)On each alternate weekend, from 9:00AM on Saturday to 9:00AM on Sunday;
(ii)Each Tuesday from 8:30AM until 5:30PM;
(iii)Each Thursday from 8:30AM until 5:30PM;
(b)Thereafter, for four more fortnight occasions:
(i)On each alternate weekend, from 9:00AM on Saturday until 6:00PM on Sunday;
(ii)Each Tuesday from 8:30AM until 5:30PM;
(iii)Each Thursday from 8:30AM until 5:30PM;
(c)Thereafter, until the first due fortnightly occasion in December 2020:
(i)On each alternate weekend, from 9:00AM on Saturday until 6:00PM on Sunday;
(ii)From 8:45AM on each Tuesday until 8:45AM on Wednesday.
(d)Thereafter, from the first due fortnightly occasion in December 2020 until X commences school:
(i)On each alternate weekend, from 5:30PM on Friday until 6:00PM on Sunday;
(ii)From 8:45AM on each Tuesday until 8:45AM on Wednesday.
(e)Thereafter, once X commences school:
(i)On each alternate weekend, from 5:30PM on Friday until 4:00PM on Sunday;
(ii)Each week from after school on Tuesday until the start of school on Wednesday.
That all changeovers that do not occur by the collection of X by her Father from Q Early Learning Centre at Suburb C or her school or delivery of X by her Father to Q Early Learning Centre at Suburb C or her school, occur at the Suburb R Ferry Wharf, AND THE COURT NOTES THAT the precise start and finish times are dependent upon the realities of the Suburb R /Suburb F ferry timetable.
That X spend time with the Mother and Father at Christmas each year as agreed between the parties and failing agreement as follows:
(a)From 1:00PM on Christmas Eve until 1:00PM on Christmas Day, with the Mother in even numbered years and with the Father in odd numbered years; and
(b)From 1:00PM on Christmas Day until 1:00PM on Boxing Day, with the Mother in odd numbered years and with the Father in even numbered years
That X spend time with the Mother and Father at Easter time each year as agreed between the parties and failing agreement as follows:
(a)From 11:00AM on Good Friday until 11:00AM on Easter Sunday, with the Mother in even numbered years and with the Father in odd numbered years; and
(b)From 11:00AM on Easter Sunday until 11:00AM on the first Tuesday after Easter or the commencement of school on that day, with the Mother in odd numbered years and with the Father in even numbered years.
That if X is not ordinarily spending time with the Mother on the Mother’s birthday, that X spend time with the Mother on the Mother’s birthday from 2:00PM until 6:00PM if that day is a non-school day or X is not yet attending school, or from after school until 6:00PM if that day is a school day and X is attending school.
That if X is not ordinarily spending time with the Father on the Father’s birthday, that X spend time with the Father on the Father’s birthday from 2:00PM until 6:00PM if that day is a non-school day or X is not yet attending school, or from after school until 6:00PM if that day is a school day and X is attending school.
That X spend time on her birthday with the parent with whom she is not ordinarily living on that day from 2:00PM until 6:00PM if a non-school day or if X is not yet attending school, or from after school until 6:00PM if that day is a school day and X is attending school.
That on Mother’s Day, if X would not ordinarily be spending time with her Mother, that X spend time with her Mother from 9:00AM until 6:00PM.
That on Father’s Day, if X would not ordinarily be spending time with her Father, that X spend time with her Father from 9:00AM until 6:00PM.
That both parents are permitted to liaise directly with the child’s school, sporting, co-curricular and extra-curricular bodies to receive notices, information, newsletters, reports, photographs and any other necessary information about the child’s progress and these Orders are sufficient authority for that purpose.
That the Mother and the Father will inform the other of any medical treatment the child receives and the treating doctor/dentist within 24 hours after the child has received the treatment and advise of any medication prescribed for the child from time to time and provide the medication and appropriate instructions for its administration at the time of any changeover.
That each parent shall as soon as practicable contact the other parent to advise in the event that the child:
(a)Becomes seriously ill;
(b)Is hospitalised; or
(c)Is involved in an accident, in circumstances requiring the attention of a medical practitioner or admission to hospital/medical clinic.
That each party is at liberty to obtain all relevant medical records and consult the child’s medical and dental practitioners to obtain any information they require and these Orders are sufficient authority for that purpose.
That the Mother and the Father shall keep each other informed at all times of their residential address, personal email address and personal contact telephone number and advise the other of any change within 48 hours.
That communication between the parties in relation to X’s welfare, including in relation to arrangements and attempts to reach agreements consequent upon these orders, shall be by email.
IT IS NOTED that publication of this judgment under the pseudonym Namvar & Pales (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3550 of 2017
| MR NAMVAR |
Applicant
And
| MS PALES |
Respondent
REASONS FOR JUDGMENT
Introduction
These are interim parenting proceedings under the Family Law Act 1975 (Cth) (‘the Act’) between the Applicant Father, Mr Namvar (‘the Father’) and the Respondent Mother, Ms Pales (‘the Mother’) concerning their child, X born in 2016.
X is the only child of a non-cohabitive relationship between the Father and the Mother. The Father has three other children from a previous relationship, and the Mother has three other children from a previous relationship.
I conducted an interim hearing between the parties on 23 August 2019 on the Application of the Father. The Father seeks to increase the amount of time he spends with X and to have that time include overnight time for the first time in X’s life. The Mother, in response, seeks to reduce the amount of time the Father spends with X, and to have orders made providing that there be no overnight time between the Father and X until X has completed her first term of school in 2021.
A previous interim hearing on the issue of the amount of time to be spent between the Father and X, and on what conditions, if any, was heard on 6 April 2018 by his Honour Judge Harper (as his Honour then was) and orders were made on 6 September 2018. Those orders were subsequently varied by orders made by consent between the parties on 21 November 2018.
I apologise to the parties and to X for the amount of time that has elapsed between the interim hearing and the making of orders.
The issues
The issues for determination at the interim hearing were as follows:
a)Whether the amount of time the Father spends with X should be increased over that provided for in the interim orders made by consent between the parties on 21 November 2018 to include overnight time as sought by the Father, or whether that time should be decreased to less than provided in the consent interim orders of 21 November 2018 as sought by the Mother;
b)The location for changeovers at the start and finish of the Father’s time with X;
c)Whether each of the parents should be permitted to remove X from the Commonwealth of Australia for overseas travel for up to 28 days per year on the giving of notice; and
d)Whether a passport should be obtained or renewed for X and who should retain such passport and X’s birth certificate.
The Father sought various orders commonly made in contested parenting proceedings and often made by consent between parties relating to information exchanged between the parents, and for information to be available to the parents in relation to medical issues affecting X.
The proceedings up to the interim hearing
The Father filed an Initiating Application commencing the proceedings on 8 June 2017. The Mother filed her Response on 13 September 2017. In his Initiating Application, the Father sought final orders that:
a)The parties have equal shared parental responsibility for X;
b)X live with him;
c)X spend five nights per fortnight with her Mother and half of each school holiday with each parent; and
d)Changeovers not occur at X’s school and, instead, occur at the Father’s home.
The Mother in her Response sought orders that:
a)She have sole parental responsibility for X;
b)X live with her; and
c)X spend time with her Father supervised, on all occasions, each alternate Sunday between 3:00PM and 4:00PM, and not otherwise.
Accordingly, the Mother’s proposal for final orders provide for a relationship between Father and child based on one hour per fortnight and for that one hour to be supervised by a commercial supervision agency indefinitely.
The matter was before the Court for its first return date on 3 October 2017. On that occasion, the Court made orders for the parties to attend a Child Dispute Conference. The Court also made orders, by consent, that:
a)X live with her Mother and spend time with her Father:
i)Each Sunday from 3:00PM until 5:00PM until 31 December; and thereafter
ii)Each Sunday from 2:00PM until 5:00PM;
b)For all time with the Father to be supervised by a commercial supervision agency at the cost of the Father;
c)For both parties to participate in a post-separation parenting course; and
d)For the parties to use a communication book.
The Court adjourned the matter to 6 April 2018 for possible interim hearing.
The parties attended the Child Dispute Conference on 3 October 2017 and a Child Dispute Memorandum to Court was provided by the family consultant.
On 6 March 2018, the Father filed an Amended Initiating Application, making amendments to the parenting orders he sought on an interim basis.
On 6 April 2018, Judge Harper conducted an interim hearing and his Honour made orders on 6 September 2018 and delivered judgment. The orders provided that, in summary:
a)The Father spend time with X as follows:
i)For a period of four weeks, each Sunday from 9:00PM until 1:00PM;
ii)Then, for a further period of four weeks, each Sunday from 9:00AM until 1:00PM and each Tuesday from 8:30AM until 5:30PM; and
iii)Thereafter, from 9:00AM until 6:00PM each Sunday, Tuesday, and Thursday;
b)Changeovers to occur at the playground at B Playground, Suburb C, with those changeovers supervised by the D Families commercial supervision agency; and
c)X spend time with the Father on Christmas Day from 1:00PM until 6:00PM and on the child’s and the Father’s birthdays from 2:00PM until 6:00PM.
His Honour made an order appointing an Independent Child’s Lawyer to represent the interests of X in the proceedings and the matter was adjourned to 8 February 2019 for further mention.
On 6 November 2018 the Father filed an Application – Contravention and that Application came before her Honour Judge Henderson (as her Honour then was) on 21 November 2018. On this date, and by consent, that Application was dismissed. Further consent orders were made in relation to the Father spending time with X as follows:
a)That from 22 November 2018 until 7 January 2019, X spend time with her Father:
i)Each Tuesday from 8.45AM until 5:00PM with changeover at Q Early Learning Centre North Sydney;
ii)Each Thursday from 8:30AM until 5:30PM with changeover at Q Early Learning Centre Suburb C;
iii)Each Sunday from 9:00AM until 6:00PM with changeovers at the B Playground, Suburb C; and
iv)On Christmas Day from 1:00PM till 6:00PM and New Years Day from 9:00AM till 6:00PM with changeover on both occasions at the B Playground at Suburb C.
b)From 7 January 2019, that X spend time with her Father:
i)Each Tuesday from 8:30AM until 5:30PM with changeover at the Q Early Learning Centre at Suburb C; and
ii)Each Sunday from 9:00AM until 6:00PM with changeover at the playground at the B Playground, Suburb C;
c)That all changeovers be supervised by D Families, a commercial supervision agency.
The matter was further adjourned to 27 February 2019.
On 27 February 2019, when the matter was next before the Court, the Father filed in the Registry an Application in a Case. His Honour Judge Harper ordered the Mother to file her Response to that Application in a Case and affidavit evidence by 29 April 2019. His Honour adjourned the matter for mention to 24 May 2019.
On 24 May 2019, the matter came before me and I made an order under section 62G of the Act for preparation of a family report and set the matter down for interim hearing on 23 August 2019. The interim hearing proceeded on the day and judgment was reserved.
Material relied upon
The Father relied on the following material:
a)Outline of Case document prepared by his counsel, Ms Kennedy;
b)Application in a Case filed 27 February 2019;
c)Affidavit of the Father sworn and filed 24 June 2019;
d)The documents exhibited to the Father’s affidavit of 24 June 2019, consisting of 311 pages; and
e)Affidavit of Mr S, a friend of the Father, sworn 21 June and filed 24 June 2019.
The Mother relied on the following material:
a)Case Outline document prepared by the Mother;
b)Response to an Application in a Case filed 23 May 2019;
c)The Mother’s affidavit affirmed and filed 23 May 2019;
d)The Mother’s affidavit affirmed and filed 16 August 2019;
e)Affidavit of Ms T affirmed and filed 23 April 2019. Ms T is the Assistant Director of Q Early Learning Centre;
f)Affidavit of Ms U affirmed 20 November 2018 and filed 23 May 2019. Ms U is Mr Namvar’s ex-wife; and
g)Affidavit of Ms J sworn 4 April and filed 5 April 2018. Ms J is the Mother’s sister.
At the interim hearing, I also read and took into account the Notice of Risk filed by the Father on 8 June 2017 and the Notice of Risk filed by the Mother on 13 September 2017. I have read and taken into account the Child Dispute Conference Memorandum to the Court dated 3 October 2017, and the Reasons for Judgment published in these proceedings by Judge Harper on 6 September 2018
The orders sought
The Father sought the following interim orders:
a)That for a period of four weeks, he spend time with X in week one:
i)From 8:30AM on Tuesday until 8:30AM on Wednesday;
ii)From 8:30AM to 5:30PM on Thursday; and
iii)From 5:30PM on Friday until 5:30PM on Saturday;
b)In week two:
i)From 8:30AM on Tuesday until 8:30AM on Wednesday;
ii)From 8:30AM till 5:30PM on Thursday; and
iii)From 9:00AM until 6:00PM on Sunday.
c)That thereafter, for four weeks, the Father spend time with X in week one:
i)From 8:30AM on Tuesday until 8:30AM on Wednesday;
ii)From 8:30AM until 5:30PM on Thursday; and
iii)From 5:30PM on Friday until 5:30PM on Sunday;
d)In week two:
i)From 8:30AM on Tuesday until 8:30AM on Wednesday; and
ii)From 8:30AM on Thursday until 8:30AM on Friday.
e)That thereafter, during New South Wales school term time, the Father spend time with X in week one:
i)From 8:30AM on Tuesday until 8:30AM on Wednesday;
ii)From 8:30AM until 5:30PM on Thursday; and
iii)From 5:30PM on Friday until 8:30AM on Monday;
f)In week two:
i)From 8:30AM on Tuesday until 8:30AM on Friday.
g)That during the school holidays at the end of terms 1, 2, and 3 the Father spend time with X for half of the school holidays at times agreed between the parties and failing agreement for the first half of the holidays in even‑numbered years and the second half of the holidays in odd-numbered years.
h)That X spend time with her Father at Christmas:
i)From 1:00PM 24 December until 1:00PM 25 December in odd‑numbered years; and
ii)From 1:00PM 25 December and 1:00PM in even numbered years;
i)That X be with her Mother at Christmas:
i)From 1:00PM 24 December until 1:00PM 25 December in even-numbered years; and
ii)From 1:00PM 25 December until 1:00PM 26 December in odd-numbered years;
j)That until X turns six years of age in 2022 she spend a maximum of seven nights with her Father during the Christmas school holidays; and
k)That after X turns six, she spend half of the Christmas holidays with her Father at times agreed between the parties and failing agreement for the first half of Christmas school holidays commencing in even‑numbered years and for the second half of Christmas school holidays commencing in odd-numbered years;
l)That at Easter, X spend time with her Father:
i)From 11:00AM on Good Friday until 11:00AM on Easter Sunday in odd-numbered years; and
ii)From 11:00AM on Easter Sunday until 11:00AM (or start of school if applicable) on the following Tuesday in even numbered years;
m)That X be with her Mother at Easter:
i)From 11:00AM on Good Friday until 11:00AM on Easter Sunday in even-numbered years; and
ii)From 11:00AM on Easter Sunday until 11:00AM (or commencement of school if applicable) on the following Tuesday in odd-numbered years;
n)That on X’s birthday, her siblings’ birthdays and her parents’ birthdays, the parent other than “whosoever care the child is in [sic]” on that day spend time with X from 2:00PM until 6:00PM;
o)That all changeovers occur at Q Early Learning Centre at Suburb V, and if that centre is not open changeover occur at Suburb V McDonalds car park;
p)That the Father and Mother advise each other of any extracurricular, sporting/recreational activities, birthday parties, and school functions in which X is to be involved with at least seven days prior notice;
q)That the parent with whom X is living ensure that X attends any extracurricular school sport and school functions;
r)That the parties are not precluded from attending any school function or activity or extracurricular activity involving X in the event that such function or activity occurs at a time when the child is with the other parent;
s)That both parents are permitted to liaise directly with X’s school, sporting, co-curricular, and extracurricular bodies to receive notices, information, newsletters, reports, photographs, and any other necessary information about X’s progress and these orders are sufficient authority for that purpose;
t)That the Mother and Father inform each other of any medical treatment X receives and the treating doctor/dentist within 24 hours after X has received the treatment and advise each other of any medication prescribed for X from time to time and provide the medication and appropriate instructions for its administration at the time of any changeover;
u)That each parent shall as soon as practicable contact the other parent to advise that in the event that X becomes seriously ill, is hospitalised, or is involved in an accident, in circumstances requiring the attention of a medical practitioner or admission to hospital/medical clinic;
v)That each party is at liberty to obtain all relevant medical records and consult X’s medical and dental practitioners to obtain any information they require and these orders are sufficient authority for that purpose;
w)That the Mother and Father keep each other informed at all times of their residential address, personal email address and personal contact number and advise the other of any change within 48 hours;
x)That within 14 days of being requested to do so in writing by the Father, the Mother sign an application for an Australian passport for X and return the application to the Father.
At the interim hearing, oral submissions were made by Ms Kennedy of counsel on behalf of the Father in amplification of and in addition to the written submissions set out in her Case Outline document. Oral submissions were also made by the Mother in amplification of and in addition to the detailed submissions set out in her Case Outline document. Oral submissions were made by Ms Smith as the Independent Child’s Lawyer, and some submissions were made in reply by Ms Kennedy for the Father. I have listened to the whole of the submissions made at the interim hearing on the audio transcript immediately before preparation of these Reasons for Judgment.
In Ms Kennedy’s Case Outline for the Father, she sets out objections to the Mother’s affidavit of 16 August 2019, and to the whole of the affidavit of Ms T. At the interim hearing, I was asked by Ms Kennedy not to consider each of those objections from an admissibility of evidence standpoint, but to consider them as submissions going to weight. In that regard, I note that the Mother provided a response to those objections, in quite some detail, in her Case Outline. I have carefully considered both those sets of written submissions as to weight.
The law – parenting proceedings
In parenting proceedings under the Act, the Court is required to follow the legislative pathway set down in the Act. That applies to interim hearings on parenting issues.[1]
[1] MRR & GR [2010] HCA 240; Goode & Goode (2006) FLC 93-286; Marvel & Marvel (2010) 240 FLR 367.
The Court must give attention to section 60B of the Act that sets out the objects of Part IV of the Act relating to children. Those objects inform the making of parenting orders.[2] That section also contains the principles behind those objects. In this matter I have considered those objects and the principles behind those objects.
[2] Family Law Act 1975 (Cth) s 60B.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration. The child’s interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter, but the child’s interests must always be the paramount consideration.
In parenting proceedings, pursuant to section 65D of the Act, the Court may, subject to the presumption of equal shared parental responsibility in section 61DA and consideration of parenting plans under section 65DAB, make such parenting order as it thinks proper.[3] The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[4]
[3] Family Law Act 1975 (Cth) s 65D(1).
[4] Family Law Act 1975 (Cth) s 65D(2).
In determining what is in a child’s best interest, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC and make findings. [5]
[5] Family Law Act 1975 (Cth) s 60CC.
Section 61DA provides that when making a parenting order in relation to a child 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 for the child.[6]
[6] Family Law Act 1975 (Cth) s 61DA.
The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse. The presumption, when applying, may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[7]
[7] Family Law Act 1975 (Cth) s 60B.
When the Court is considering parenting matters on the interim basis the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making interim orders.
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then pursuant to section 65DAA, the Court must consider:
a)Whether the child spending equal time with each parent would be in the best interest of the child;[8] and
b)Whether the child spending equal time with each of the parents is reasonably practicable.[9]
If both questions are answered ‘yes’, the Court must consider making an order to provide for the child to spend equal time with each of the parents.[10]
[8] Family Law Act 1975 (Cth) s 65DAA(1)(a).
[9] Family Law Act 1975 (Cth) s 65DAA(1)(b).
[10] Family Law Act 1975 (Cth) s 65DAA(1)(c).
If the Court does not make an order for the child to spend equal time with each of the parents, then the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable and, if the answer to both is yes, the Court is to consider making an order to provide for the child to spend substantial and significant time with each of the parents.
What is meant by substantial and significant time is set out in section 65DAA(3) of the Act and includes days that fall on weekends and holidays, days that do not fall on weekends or holidays, the child being able to be involved in occasions and events special to the parents, the parents being able to be involved in occasions and events of particular significance to the child, and the parents being able to be included in the child’s daily routine.
If the Court does not make an order for the child to spend substantial and significant time with each of the child’s parents, the Court must then go on to determine what parenting orders are proper in the best interests of the child, per section 65D.
As to what is ‘proper’ and how the Court’s discretion is to be exercised I note the comments of the Full Court of the Family Court of Australia in the recent decision of Grella & Jamieson:[11]
A discretionary judgment concerning the parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.[12]
[11] Grella & Jamieson [2017] FamCAFC 21.
[12] Grella & Jamieson [2017] FamCAFC 21, [18].
There is much jurisprudence on the issue of risk in parenting proceedings. The jurisprudence may be simplified by saying that the task of the Court where risks are asserted is not necessarily to make a finding as to whether the actions and events asserted have actually happened or have definitely not happened, as such a finding is rarely open to the Court on the evidence and most particularly in interim parenting proceedings replete with contested evidence.
Rather, the task of the Court is to assess whether the evidence establishes that there is a risk to the best interests of the child. If the evidence establishes that there is such a risk, briefly expressed, the Court must:
a)Assess whether that risk is an acceptable risk or an unacceptable risk;
b)If it is assessed that it is an unacceptable risk, assess whether or not the risk can be mitigated by appropriate orders; and
c)Decide what orders are proper in all the circumstances in the best interests of the child.
Detailed exposition of the treatment of risk in parenting matters can be found in the decision of the High Court in M & M[13] and the decisions of the Full Court of the Family Court of Australia in A & A & The Child Representative,[14] Napier & Hepburn,[15] Johnson & Page,[16] Deiter & Deiter,[17] and Eaby & Speelman.[18]
[13] M & M (1988) FLC 91-973.
[14] A & A & The Child Representative (1998) 22 FamLR 756, [3.23] to [3.25].
[15] Napier & Hepburn (2006) FLC 93-303.
[16] Johnson & Page (2007) FLC 93-344.
[17] Deiter & Deiter [2011] FamCAFC 82, [61].
[18] Eaby & Speelman [2015] FamCAFC 104 (Thackray, Ryan, and Forrest JJ).
Where there is contested evidence in an interim hearing the Court is not always able to make a finding, but must do what can be done on the basis of agreed facts and any contested evidence where there is sufficient corroboration on one side to enable a finding. This is to enable the Court to perform its function, and resolve any interim issues with the best interests of the child as the paramount consideration, and make whatever orders are then considered proper.
In SS & AH,[19] in the context of discussing the obligations of the Court whilst conducting interim children’s proceedings where the evidence available was contradictory in nature but nonetheless raised significant welfare concerns for the children concerned, the Court observed:
… 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.[20]
[19] SS & AH [2010] FamCAFC 13 (Boland, Thackray, and O’Ryan JJ).
[20] SS & AH [2010] FamCAFC 13, [100].
As noted by the Full Court of the Family Court of Australia in Eaby & Speelman,[21] 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.”[22]
[21] Eaby & Speelman [2015] FamCAFC 104.
[22] Eaby & Speelman [2015] FamCAFC 104, [19].
Section 60CC – the primary considerations
The primary considerations in section 60CC of the Act are the benefit to X of having a meaningful relationship with both of her parents and any need to protect X from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.[23] Subsection (2A) mandates that I must give greater weight to the consideration of any need to protect X over the benefit to X of having a meaningful relationship with both of her parents.
[23] Family Law Act 1975 (Cth) s 60CC(2).
It is not in dispute that X has a meaningful relationship, a close and loving relationship, with her Mother, and certainly with her half-siblings on her Mother’s side.[24] Her Mother has been her primary carer all her life. Her Mother is her primary attachment figure.
[24] Family Law Act 1975 (Cth) s 60CC(2)(a).
I also find on the whole of the evidence that X has a meaningful relationship with her Father and I find on the basis of the evidence that she has a loving relationship with her Father.
However, I find, as Judge Harper found in the earlier judgment in this matter, the meaningful relationship between X and her Father is still in a nascent stage for what it should be between child and parent for a child at X’s age. She has never spent any overnight time with her Father or with her half-siblings on her Father’s side. She has never seen her parents interact with each other in any way.
Although the parlous state of the relationship between those parents will not have been communicated to X, as it unfortunately so often is in parenting cases, through regrettable interactions between parents in the presence of X, X may nevertheless have detected a difference in her circumstances from that which she may observe with other children of her acquaintance outside of her half-siblings.
Ultimately, she is probably only too well aware that her parents are never together in the same place at the same time. What she may deduce from this, if anything, at her early stage of development and being under the cognitive age, cannot be known.
However, if X is to have a continuing meaningful relationship with her Father and to have opportunity for that meaningful relationship to develop so as to be of maximum advantage to her in the circumstances as she advances through her years, it would be necessary for the time between Father and child to be increased, not decreased as the Mother advocates, and for that time to expand to include overnight time, introduced in stages on an age-appropriate basis. That said, I must consider the second of the primary considerations, and the one to which, if it applies, greater weight must be given, which is the need to protect X from any physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[25]
[25] Family Law Act 1975 (Cth) s 60CC(2)(b).
I have traversed the evidence presented by the Mother about the family violence incident between the Father and his former wife, occurring in November 2011. I have carefully considered all of the evidence presented by the Mother in her affidavits and the affidavits of her witnesses, and I find that there is no risk of X being exposed to physical harm from being subjected to or exposed to abuse, neglect or family violence whilst in the Father’s care.
I find that there is no risk of X suffering psychological harm from being subjected to or exposed to abuse, neglect or family violence in the Father’s care. I find that there are no such risks to X in the Father’s care on an overnight basis, unless the orders made for progression of X’s time with her Father to overnight were so accelerated as to be not age-appropriate.
The orders sought by the Father, in relation to time to be spent between himself and X, provide for that time to move to shared care on a seven nights with each parent per fortnight basis during school term time within two months of interim orders being made. His orders also propose that from the time orders are made, his overnight time with X during school holidays at the end of terms 1, 2 and 3, and during the Christmas school holidays (bearing in mind that she is not yet at school) leap immediately from no overnights to seven consecutive overnights on each occasion.
The orders sought by the Father, for a progression to shared care, I find to be beyond what would be appropriate at this interim stage and to be more appropriate for the final hearing in this matter, in which the Father seeks that X live with him and spend five nights per fortnight with her Mother. That proposal of a leap to shared care after two months, if granted, does present a risk to X. I can find nothing other than that the proposal of such acceleration in the time between the Father and X is not child-focused, and that the risk presented if such orders are made is an unacceptable risk to X of psychological harm – even if not in relation to “abuse, neglect or family violence”.
In summary, I find that there is benefit to X in having a meaningful relationship with both of her parents and that to maintain and develop a meaningful relationship with her Father, the time X spends with him needs to be increased to include overnight time. I find that the introduction of overnight time should be on a staged basis in an age-appropriate manner, and that other than the speed of the orders proposed by the Father on the interim basis, there is no risk to X presented by her Father that gives rise to a need to protect her.
Section 60CC - the additional considerations
X is too young for any views she may express to be of any weight in the matter.[26]
[26] Family Law Act 1975 (Cth) s 60CC(3)(a).
I have discussed and made findings in relation to the nature of the relationship between X and each of her parents above when considering the primary considerations.[27] Neither parent asserts that there is no relationship between X and her Father. I find that the nature of the relationship between X and her Father is less than it could be in circumstances of separated parents, given the limited time they have been able to spend together and the lack of overnight time between Father and child.
[27] Family Law Act 1975 (Cth) s 60CC(3)(b).
I am not presented with evidence that enables me to make any finding in relation to the extent to which each of X’s parents have fulfilled or failed to fulfil their obligation to maintain X.[28] The evidence, once again self-evidently, is that X is maintained by her Mother, because she lives with her, except for the three occasions of nine hours each during each week when she is with her Father.
[28] Family Law Act 1975 (Cth) s 60CC(3)(c), (ca).
In considering the likely effect of any change in X’s circumstances, including the likely effect on X of any separation from either of her parents and from her half-siblings on her Mother’s side with whom she lives, I am not presented with evidence in the Mother’s case that can ground any finding that increasing the time that X spends with her Father would have such a detrimental effect on the Mother that it would decrease her ability to effectively parent X.[29] To the contrary, the Mother’s case is directed towards assertions that the Father lacks the appropriate parenting capacity, presents a risk to X due to a propensity to family violence, and that X is not coping with the current spend-time regime.
[29] Family Law Act 1975 (Cth) s 60CC(3)(d).
In increasing the time that X will spend with her Father, it will be decreasing the time that she spends with W, Y and Z. However, if, following the making of orders, a cooperative arrangement is able to be made between the Mother and the Father in these proceedings, on the one hand, and the Mother and the Father of W, Y and Z on the other hand, so as to coordinate their weekends, it can be so arranged that X spends more time with her Father and her half-siblings on her Father’s side whilst W, Y and Z are spending time with their Father on a weekend.
X could also then spend time with W, Y and Z, in her Mother’s care, when O, BB and CC (the Father’s children from a previous relationship) are spending time with their Mother. However, that would require some common sense and good will by all three parents, as this Court does not currently have the power to make such a parenting plan.
I find that the likely effect on X of spending less time with her Mother and with her half-siblings on her Mother’s side, and more time with her Father and her half-siblings on her Father’s side, will not be to the detriment of X’s best interests or affect her relationship with her Mother and half-siblings in any detrimental way.
Consideration of the practical difficulties and expense of X spending time with her Father is particularly relevant in this case.[30] The Mother lives on Suburb F, and travel to and from the island is only by boat. In the case of these parties, this is by the ferry service from Suburb R Wharf. The Mother gives evidence of the financial burden that this imposes on her.[31] Unfortunately, in consequence of the Mother’s decision to buy her home on Suburb F, that circumstance cannot be avoided.
[30] Family Law Act 1975 (Cth) s 60CC(3)(e).
[31] Affidavit of the Mother filed 23 May 2019, [42].
The Father lives at Suburb M and seeks to have the changeovers occur at Suburb V, a suburb adjacent to where he lives. The Mother seeks to have the changeovers occur at Suburb R Wharf on weekends – instead of in the park at Suburb C as under the current orders – and at the Q Early Learning Centre in Suburb C on weekdays, as they are occurring under the current interim orders.
Under the current interim orders, there is an additional expense relating to the engagement of D Families, a commercial supervision agency, to supervise the changeovers at the start and end of the Father’s time with X on Sundays. That is an expense which, pursuant to the interim orders, is to be shared between the parties, but on the Father’s evidence has been borne by him solely, as the Mother has refused to contribute.
The reason for supervision of the changeovers on weekends was to avoid the Mother and the Father having to be in each other’s presence. This was to address the Mother’s assertion in her evidence considered by Judge Harper, at the interim hearing in 2018, that the Mother suffers distress about having any face-to-face contact with the Father.[32]
[32] Namvar & Pales [2018] FCCA 2470, [122].
I find that it is in the best interests of X that she begin to have the opportunity to see that her parents know each other and that they can be in the same place at the same time without unpleasantness. In this regard, I find that it is in her best interests that changeovers occurring on weekends when X is not at the Q Early Learning Centre at Suburb C, or even on weekdays if she is not at that centre, should occur by the parents (or someone on their behalf if they so choose) passing X from the care of one to the other directly and without supervision.
This has the added effect of saving some of the expense associated with the Father spending time with X, though that is incidental as it is not a matter that goes in any direct way toward orders being made that are in X’s best interests.
The Mother, in her evidence, puts in question the Father’s parenting capacity.[33] I have carefully considered all of that evidence. I have also considered the evidence that the Father has had shared care of his other three children, by a consent arrangement with their Mother, since 2013. No evidence is presented of a lack of parenting capacity by the Father in that regard, such that I would find that it is a consideration that tends against increasing his time with X, including overnight.
[33] Family Law Act 1975 (Cth) s 60CC(3)(f).
In her submissions, the Mother stressed her concern that the Father may not react appropriately or with appropriate empathy to any distress that X may suffer in being away from her Mother overnight and in the care of her Father. If X’s time with her Father is increased in an age-appropriate manner, then it is a matter of leaving the parenting of X, including comforting her, during the time she is in her Father’s care to her Father. I find that the whole of the evidence does not ground any finding that the Father lacks sufficient parenting capacity for that role.
X is a little girl who was three years and four months of age at the time of the interim hearing and who is now four years and two months of age. It is likely that X will begin her school attendance in 2021, although it is not necessarily so, as at the start of that school year she will still be four years of age until her birthday in 2021.
The Mother attaches to her affidavit of 23 May 2019 two articles that she asserts relate to “negative effects of overnights on toddlers”.[34] She also asserts in that paragraph that “many experts agree that overnights are detrimental to children under the age of four and five”. That last assertion is not found upon any evidence presented in the interim hearing.
[34] Affidavit of the Mother filed 23 May 2019, [45].
I have carefully read both of the articles annexed to the Mother’s affidavit. Contrary to the Mother’s assertion, the articles do not go to any detrimental effects on children under the age of four and five spending overnight time with their non-primary carer parent.
The first article concentrates on children up to the age of three years, and the second article, being a paper that was delivered at a conference by then Federal Magistrate Sexton (now retired) whose reputation as a former Judge of this Court demands, as I am personally aware, the maximum respect, also does not posit that a child of X’s age must suffer detriment by spending overnight time with her non-primary carer parent, if that time is begun and increased in an age-appropriate manner.
The Mother annexes to her affidavit of 16 August 2019 a letter dated 8 July 2019 from Dr DD, consultant paediatrician, who had a consultation with X and the Mother, and a letter dated 12 August 2019 from Ms EE, who holds a Bachelors degree in Social Work. I have considered the whole of the contents of those letters and I find that, rather than tending against an increase in the time that X should spend with her Father, they advocate that the whole of the consideration of the time that X is to spend with her Father be approached in a child-focused and age-appropriate manner. I highlight that Dr DD notes, presumably from the Mother, that the Mother “works from home as a professional”, whilst Ms EE notes, once again presumably from the Mother, that the Mother is “working in the city”, a curious inconsistency given the dates of the letters.
I find that the Mother has the appropriate parenting capacity to provide for the needs of X, including her emotional and intellectual needs, with the reservation that she demonstrates a distinct unwillingness to foster to an appropriate level the relationship between X and her Father.[35]
[35] Family Law Act 1975 (Cth) s 60CC(3)(f).
I find that the Father has the capacity to provide for X’s needs including her emotional and intellectual needs.[36]
[36] Family Law Act 1975 (Cth) s 60CC(3)(f).
My comments in relation to my one reservation about the Mother’s parenting capacity applies also to her attitude to her responsibilities as a parent of X.[37] She herself says it is important for X to have a meaningful relationship with her Father. It is up to the Mother to take positive steps to encourage that relationship and to reinforce with X her enjoyment of and the benefits of that relationship.
[37] Family Law Act 1975 (Cth) s 60CC(3)(i).
I find that there has not been any family violence that has involved X or a member of X’s family.[38] There was family violence perpetrated by the Father against his former wife, Ms U, but I do not have evidence that that family violence involved any of their children, who constitute members of X’s family.
[38] Family Law Act 1975 (Cth) s 60CC(3)(j).
There are no family violence orders involving the Mother or X in relation to this matter.[39] It must be said that there has been a family violence order that applied as between the Father and members of X’s family, being her half-siblings on the Father’s side, as they were named as protected persons on the AVO arising from the incident in November 2011. However, I find that this consideration does not bear upon the matter in hand.
[39] Family Law Act 1975 (Cth) s 60CC(3)(k).
After my discussion of the primary considerations and the additional considerations, I find that it is in the best interests of X to increase the time that she spends with her Father, and that such increase should include overnight time, but such increases should be on a gradual and age-appropriate basis, in X’s best interests.
Section 61DA - parental responsibility
As I will be making parenting orders in relation to X, I must consider section 61DA of the Act and the presumption that it is in the best interests of X for her parents to have equal shared parental responsibility for her. The presumption does not apply if there are reasonable grounds to believe that a parent of X has engaged in abuse of X or another child who was at such time a member of that parent’s family or has engaged in or perpetrated family violence.
If the presumption does apply, it may be rebutted by evidence that satisfies the Court that it would not be in the best interests of X for her parents to have equal shared parental responsibility for her. In these interim proceedings, the presumption applies unless I consider that it would not be appropriate in the circumstances for the presumption to be applied when making parenting orders.
There is no relationship between X’s parents. They have not been meeting in person during the period of time from October 2017 to now when the Father has been spending time with X under interim orders. Changeover has been effected either by collection from and/or delivery to X’s preschool by the Father, or a changeover supervised by D Families, in the course of which the parents do not meet.
I have no evidence of communication between the parents.
During the oral submissions of the Mother at the interim hearing, I asked her what she considered to be the best method of communication between herself and the Father. Her response avoided answering the question, and she said words to the effect of “So far it has not gone so well. There are lots of accusations come towards me.”
As Judge Harper commented at paragraph 120 of his Reasons for Judgment:
An order for equal shared parental responsibility would enliven the statutory obligations in section 65DAC of the Act for the parties to make decisions jointly about major long-term issues in relation to [X], consult and make a genuine effort to come to a joint decision. There is little current evidence that the parties could discharge this obligation effectively. The parties have not shown much capacity for cooperative co-parenting so far in the short life of [X].[40]
[40] Namvar & Pales [2018] FCCA 2470, [120].
His Honour went on to find that he was satisfied that it was not appropriate to apply the presumption of equal shared parental responsibility at that stage. Following this interim hearing, I make the same finding on the basis that I consider that it would not be appropriate in the circumstances for this presumption to be applied when making interim orders, given the state of the co-parenting relationship between the Mother and the Father. I find that the presumption in favour of equal shared parental responsibility is rebutted.
Accordingly, parental responsibility will be left as it is under section 61C of the Act, with each parent having parental responsibility for X.
As I will not be making an order that the parents have equal shared parental responsibility for X, I am not required to consider the matters relating to equal time or substantial and significant time for X with each of her parents under section 65DAA.
Conclusions – what orders are proper to be made in X’s best interests, with her interests being the paramount consideration
The orders sought by the Father for the progression of his time with X are not child-focused and are age-inappropriate, most particularly given the history to date of the amount of time between Father and child.
I find that the orders sought by the Mother, that the time between X and her Father be decreased by shortening his time:
a)On Tuesday each week from 8.45AM to 5:00PM down to 9:00AM to 3:00PM;
b)On Thursdays each week from 8:30AM to 5:30PM down to 9:00AM to 3:00PM; and
c)On Sunday each week from 9:00AM till 6:00PM down till alternate Sundays from 9:00AM to 3:00PM,
are also not in X’s best interests as it will decrease her opportunity to enjoy and further develop her meaningful relationship with her Father. There is no basis – a risk or lack of parenting capacity or otherwise – so affecting X’s best interests to her detriment that it justifies that brake on their relationship.
I find that it is in X’s best interests to make orders that she spend time with her Father overnight each alternate weekend. The time should run as follows:
a)Starting with a 24-hour period from 9:00AM on Saturday to 9:00AM on Sunday for four occasions;
b)Then, increasing to 9:00AM on Saturday until 6:00PM on Sunday, until the first occasion in December 2020; and
c)Then increasing that time to alternate weekends from 5:30PM Friday until 6:00PM on Sunday, or, in the event that X commences school attendance in 2021, until 4:00PM on Sunday once she starts school.
I find that it is in X’s best interests that she maintain her time with her Father on Tuesdays and Thursdays as it is under the current interim orders made 21 November 2018 for a period of two months. Thereafter, she should spend time with her Father each week from Tuesday at 8:45AM until Wednesday at 8:45AM, until she starts school attendance. Once she does start school attendance, X should spend time with her Father each week from Tuesday at the end of school until Wednesday at the start of school.
I find it is appropriate that any changeovers that do not occur by collection of X by her Father from Q Early Learning Centre at Suburb C or school, or delivery of X by her Father to Q Early Learning Centre at Suburb C or school, occur at Suburb R Ferry Wharf, without supervision. In that regard, I find that it is inherent in the orders that the start and finish times are dependent upon the realities of the timetable of the Suburb R to Suburb F (and vice versa) ferry.
I find that it is appropriate to make orders that provide for the time that X is to spend with each of her Mother and her Father over the Christmas period, at Easter, on X’s birthday, and on each of her parents’ birthdays (but not on each of her six half-siblings’ birthdays), and for time with her relevant parent on Mother’s Day and Father’s Day.
I find that it is in X’s best interests that I make orders for exchange of information between X’s parents in terms of the orders sought by the Father in his Application in a Case and as recommended by the Independent Child’s Lawyer, and that communication between the parents be by emails, and be confined to conveying information relevant to exchange of information in compliance with orders or relevant to arrangements for X’s timetable of being in the care of each of her parents.
I find that it is not appropriate at this time to make interim orders dealing with international travel, given X’s age and the state of her relationship with her Father, in that it is not in her best interests to spend any protracted time with either parent overseas due to consequent absence from the other parent. I find that it is not in X’s best interests and not necessary to make an order as sought by the Father that deals with interstate travel for X.
In relation to the orders sought by the Father relating to X’s birth certificate, I note that for a person born in New South Wales, their birth details are entered via a statutory form of notification of birth into the records of the Registrar of the Registry of Births, Deaths and Marriages. Under applicable legislation a parent may obtain upon application a certified copy of that record, referred to as a child’s ‘birth certificate’. As such to make orders dealing with some form of ‘property’ in X’s birth certificate is not necessarily in her best interests. Each parent may obtain a certified copy of her birth certificate by application and payment of fee to the Registry of Births, Deaths and Marriages.
As any movement by X outside Australia is affected by the requirements of and penalties set by section 65Y of the Act, in consequence of both parties being parties to these proceedings and there being parenting orders of the type referred to in section 65X of the Act, I will not make orders in relation to the obtaining of or renewal of a passport for X on the interim basis.
Accordingly, I make the orders set out at the start of these reasons.
I certify that the preceding one hundred and three paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 4 August 2020
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
-
Procedural Fairness
-
Remedies
0
6
2