Needham & Shao (No 3)

Case [2023] FedCFamC1F 388

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Needham & Shao (No 3) [2023] FedCFamC1F 388

File number(s): SYC 5643 of 2020
Judgment of: ALTOBELLI J
Date of judgment: 19 May 2023
Catchwords:

FAMILY LAW – PARENTING – Where the mother seeks for the child to spend less time with the father – Where the mother seeks for the child’s time with the father to be supervised – Where the mother alleges physical abuse by the father – Where father seeks more time with the child for a special occasion – Finding that the facts do not justify varying current parenting orders.

FAMILY LAW – SPOUSAL MAINTENANCE – Where the mother seeks increased spousal maintenance – Where the mother has a need for spousal maintenance and the father has capacity to pay – The amount of spousal maintenance is increased.   
Legislation: Family Law Act 1975 (Cth) ss 72, 74, 75
Cases cited:

Hall v Hall (2016) 257 CLR 490; [2016] HCA 23

Huffman & Gorman [2015] FamCA 317

Jelbart & Ganzer [2018] FCCA 1771

Needham & Shao (No 2) [2023] FedCFamC1F 326

Needham & Shao [2021] FamCA 576

Needham & Shao [2022] FedcFamC1F 914

Orwell & Watson [2008] FamCAFC 62

Pilot & Silver [2022] FedCFamC1A 191

Redmond & Redmond [2014] FamCAFC 155

MS & PS (2006) FLC 93-268; [2006] FamCA 588

W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; [2005] FamCA 892
Division: Division 1 First Instance
Number of paragraphs: 56
Date of hearing: 8 May 2023
Place: Sydney
Solicitor for the Applicant: Swifte Law
Solicitor for the Respondent: Litigant in person
Solicitor for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

SYC 5643 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS SHAO

Applicant
AND:

MR NEEDHAM

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

ALTOBELLI J

DATE OF ORDER:

19 MAY 2023

THE COURT ORDERS THAT:

1.The parenting orders sought by the Applicant mother (“the mother”) in her Amended Application in a Proceeding filed 5 May 2023 are dismissed.

2.The parenting orders sought by the Respondent father (“the father”) in his Response to an Application in a Proceeding filed 17 April 2023 are dismissed.

3.Pending further order, the father shall pay to the mother the sum of $956 net per week by way of spousal maintenance into a bank account nominated by the mother on Monday 22 May 2023 and thereafter the payments shall be made to the mother each Thursday.

Trial directions

4.By no later than 4pm on 22 July 2023, each party file and serve a single consolidated updating affidavit.

5.By no later than 4pm on 22 July, each party file and serve an updated Financial Statement.

6.By no later than 4pm on 25 July 2023, the parties shall have conferred, settled and forwarded to my Associate in electronic form a joint trial plan which allows for the trial to be completed within four days.

7.By no later than 4pm on 25 July 2023, the mother and the father…

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AGLC
Needham & Shao (No 3) [2023] FedCFamC1F 388
Case
[2023] FedCFamC1F 388
Decision Date

CaseChat Overview and Summary

The court was called upon to decide a complex matter involving both parenting orders and spousal maintenance, with the mother seeking variations to the existing parenting orders and the father opposing these changes. The primary legal issue was whether the existing parenting arrangements were in the best interest of the child, considering the high-conflict nature of the parents' relationship and the potential risk of harm to the child. The court had to evaluate the evidence presented by both parties, including expert reports and affidavits, to determine the suitability of the current arrangements. Additionally, the court needed to assess the mother's application for spousal maintenance, requiring an examination of her financial situation and the father's capacity to provide support.

In its reasoning, the court placed significant weight on the expert evidence provided by Mr. S, a clinical psychologist, whose report dated 7 April 2021 was the only objective and independent expert evidence available. Despite the incomplete cross-examination of Mr. S, the court found his observations on the cyclic nature of the parents' conflict and its impact on the child to be highly pertinent. The court acknowledged the high-conflict dynamics between the parents and their potential to escalate, which was reflected in the evidence and had implications for the child's welfare. The court also considered the mother's application for spousal maintenance under section 72 of the Family Law Act 1975 (Cth), determining whether she satisfied the gateway requirements for such an application.

Ultimately, the court decided that the existing parenting orders, which provided for the child to live with the father on weekends and otherwise with the mother, should remain unchanged. The court found that the mother had not demonstrated that a change in the parenting arrangements was necessary to protect the child from harm, given the high-conflict nature of the parents' relationship. The court also concluded that the mother had not met the threshold for spousal maintenance, as she had not established that she was unable to support herself adequately due to the factors outlined in section 72(1) of the Act. Consequently, the court dismissed the mother's application for spousal maintenance.

Orders

Orders of the court

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Background

Background to the litigation

These reasons for judgment explain the Court’s decision in relation to the Application in Proceeding filed 10 March 2023 and Amended Application in a Proceeding filed on 5 May 2023 by the respondent mother (in the substantive proceedings) (“the mother”) and the Response to an Application in a Proceeding filed on 17 April 2023 by the applicant father (in the substantive proceedings) (“the father”). The first set of interim orders in relation to this application and response are dated 24 April 2023. This matter continues to be about the parties’ child, X, who is three years old (“the child”). The present application involves parenting orders as well as spousal maintenance.BACKGROUND Matters of the background are adequately set out in my previous reasons for judgment dated 6 August 2021 (Needham & Shao [2021] FamCA 576), 11 November 2022 (Needham & Shao [2022] FedCFamC1F 914) and 24 April 2023 (Needham & Shao(No 2) [2023] FedCFamC1F 326). The final hearing of this matter remains part heard. The adjourned part-heard hearing will resume 31 July 2023 and is listed for four days. Further trial directions will be made. Mr S, clinical psychologist, will prepare an updated single joint expert report and is expected to meet the mother, the father and the child again in June. The current parenting orders relating to the child, dated 6 August 2021, provide that he lives with the father, currently, from 8.00 am on Saturday to 4.00 pm Sunday each week, and also on special occasions. He otherwise lives with the mother. On 11 November 2022 I discharged the order for FaceTime communication three times per week and replaced it with an order for FaceTime communication on Wednesdays between 5.00 pm and 5.30 pm. The present application before the Court represents the second attempt to vary these orders. The only objective and independent expert evidence is that of Mr S dated 7 April 2021. Cross‑examination of Mr S has commenced but not concluded. His evidence remains the only objective and independent expert evidence before the Court. Even though his cross‑examination is not completed, the Court places significant weight on his evidence: Pilot & Silver [2022] FedCFamC1A 191 at [36]; Redmond & Redmond [2014] FamCAFC 155 at [22]; Jelbart & Ganzer [2018] FCCA 1771 at [53]. In my reasons for judgment dated 6 August 2021 I discussed the report of Mr S at [25]–[41]. In my reasons for judgment made 11 November 2022 I made a number of further observations about this evidence including at [13], [16] and [19]. I continue to hold the preliminary views expressed in my earlier reasons including about the expert evidence of Mr S, noting of course, that neither his cross-examination nor the totality of the evidence has been completed. In particular, the Court observes the prescient statement of Mr S at paragraph 78 of his report:78.High conflict individuals tend to perceive threat and danger in their interactions with others, react aggressively or defensively, that inevitably invites a similarly negative and hostile response back, that further heightens their sense of vulnerability and the attack that in turn justify their aggressive reaction. The cyclic nature of this interaction is evident in the actions and reactions of both [Mr Needham] and [Ms Shao], and so the cyclic nature of the conflict not only continues but escalates. This type of interaction is common place in Family Law disputes, but amplified substantially in matters entailing relocation.

Evidence

Evidence Before The Court

The father represented himself, the mother was represented by her s102NA solicitor, Ms Swifte, acting on a pro bono basis, and the Independent Children’s Lawyer, Ms Smith, appeared for the child.EVIDENCE The evidence relied upon by the mother is referred to in her case outline document, including: (a)Response to Final Orders filed 1 September 2020;(b)Application in a Proceeding filed 10 March 2023;(c)Notice of Child Abuse, Family Violence or Risk filed 10 March 2023;(d)Financial Statement filed 10 March 2023;(e)Her affidavit filed 10 March 2023 (“M1”) – Disqualification of Counsel, Spouse Maintenance and Y Health Insurance issues;(f)Her affidavit filed 10 March 2023 (“M2”) – Parenting issues; and(g)Expert Report of Dr S dated 7 April 2021. The evidence relied upon by the father was outlined in an email received on 21 April 2023, including:(a)His affidavit filed 17 April 2023;(b)Written submissions filed 17 April 2023; and(c)Response to an Application in a Proceeding filed 17 April 2023. The evidence relied upon by the Independent Children’s Lawyer is referred to in her case outline document, including:(a)Affidavit of Ms Shao filed 10 March 2023.(b)Affidavit of Mr Needham filed 17 April 2023.APPLICABLE LAW The applicable law in relation to parenting proceedings has been set out in previous judgments and thus will not be reproduced again save for the issue of unacceptable risk of harm to the child, which was raised as the central element of the mother’s parenting case. A comprehensive statement of the applicable law in unacceptable risk of abuse cases is contained in the Full Court's decision in W and W (Abuse allegations: unacceptable risk) [2005] FamCA 892, at [93]–[115]. It was a case that involved allegations of sexual abuse, but the same principles apply to other forms of abuse, such as physical, emotional, and psychological: see, for example, Orwell & Watson [2008] FamCAFC 62; Huffman & Gorman [2015] FamCA 317. Spousal maintenance is governed by s 72 of the Family Law Act 1975 (Cth) (“the Act”). In Hall v Hall (2016) 257 CLR 490 at [3], the High Court described the “gateway” requirement for the consideration of a spousal maintenance application pursuant to s 74 of the Act. The gateway requirement is set out in s 72(1) of the Act, which provides:72 Right of spouse to maintenance(1)A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or(c)for any other adequate reason.having regard to any relevant matter referred to in subsection 75(2). As noted by the High Court in Hall v Hall, the Applicant carries the onus of satisfying the Court on the balance of probabilities that she has satisfied the gateway requirement of s 72(1) of the Act.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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