Nisbett & Nisbett
[2022] FedCFamC2F 1461
Federal Circuit and Family Court of Australia
(DIVISION 2)
Nisbett & Nisbett [2022] FedCFamC2F 1461
File number: MLC 8732 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 9 September 2022 Catchwords: FAMILY LAW – INTERIM PARENTING ORDERS – Town B circuit – week about parenting orders – allegations of inappropriate discipline. Legislation: Family Law Act 1975 (Cth) ss 60CC, 69ZL Cases cited: Goode & Goode [2006] FamCA 1346, (2006) FLC 93-286, (2007) 36 Fam LR 422 Division: Division 2 Family Law Number of paragraphs: 34 Date of hearing: 9 September 2022 Place: Melbourne Counsel for the Applicant: Mr Puckey SC Solicitor for the Applicant: Faram Ritchie Davies Counsel for the Respondent: Mr Carne Solicitor for the Respondent: Sayer Jones ORDERS
MLC 8732 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NISBETT
Applicant
AND: MS NISBETT
Respondent
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
9 SEPTEMBER 2022
THE COURT ORDERS BY CONSENT THAT:
1.The Mother and Father have equal shared parental responsibility for the children:
(a)X born in 2012;
(b)Y born in 2015; and
(c)Z born in 2015
(collectively referred to herein as “the children”).
AND THE COURT ORDERS THAT:
Live with and spend time arrangements
2.The children live with the Mother and Father on a week about basis as follows:
(a)Each alternate week commencing 12 September 2022 with the Father from the conclusion of school on Monday (or 9:00am if Monday is a non-school day) until the following Monday at the commencement of school (or 9:00am. if that day is a non-school day).
(b)Each other alternate week commencing 19 September 2022 with the Mother from the conclusion of school on Monday (or 9:00am if Monday is a non-school day) until the commencement of school the following Monday (or 9:00am. if that day is a non-school day).
(c)As otherwise agreed between the parents in writing.
AND THE COURT ORDERS BY CONSENT THAT:
3.For special occasions the children spend time with each of the parents as follows:
(a)With the Mother for Mother's Day each year from 4:00 p.m. on the day prior to Mother's Day until 4:00 p.m. on Mother's Day.
(b)With the Father for Father's Day each year from 4:00 p.m. on the day prior to Father's Day until 4:00 p.m. on Father's Day.
(c)For Christmas in all odd numbered years the children spend time with the Mother from 4:00 p.m. Christmas Eve until 4:00 p.m. Christmas Day and with the Father from 4:00 p.m. on Christmas Day until 4:00 p.m. Boxing Day.
(d)For Christmas in all even numbered years the children spend time with the Father from 4:00 p.m. Christmas Eve until 4:00 p.m. Christmas Day and with the Mother from 4:00 p.m. Christmas Day until 4:00 p.m. Boxing Day.
4.Each of the parents have liberty to communicate with the children via telephone
(a)Each Wednesday the children are in the care of the other parent between 5.30pm and 6pm, with the parent with whom the children are living to make the call and the other parent to facilitate the call; and
(b)At any other reasonable time requested by the children and with each party to do all things to facilitate such communication taking place.
5.Changeovers take place unless otherwise agreed in writing at the children's school when such changeovers coincide with school pickup/drop off times and all other changeovers take place at the residence of the parent who is commencing their time with the children.
Communication
6.The Mother and Father:
(a)Keep the other advised at all times of their respective residential and email addresses and mobile telephone numbers.
(b)Advise the other immediately in the event that the children, or any of them suffers any serious illness or injury.
(c)Keep the other advised of any specialist medical appointment in relation to the children and authorise the other to attend the same.
(d)Ensure that all medications as may have been prescribed for the children shall be administered in accordance with the directions from the children's medical practitioner whilst in their care, and each party shall provide the other with the medication and information regarding such medication or treatment.
(e)Authorise any medical practitioner upon whom the children may attend from time to time to communicate with the other with respect to the children's medical conditions and/or requirements.
(f)Advise the other of all sporting and extracurricular activities which the children are participating in and permit the other to attend the same.
(g)Be at liberty to provide a copy of these Orders to the children’s school.
(h)Authorise all schools at which the children may attend from time to time to:
(i)Provide the other, at the expense of the other, copies of all reports, notices and photographs in relation to the children.
(ii)Communicate with the other, either by telephone, in writing or by personal attendance in respect to the children's progress at such institutions.
(iii)Permit the other to participate in all activities and attend all functions to which parents are normally invited including but not limited to sports days/carnivals, parent teacher interviews, concerts, or any other similar occasion.
7.The parents communicate with each other with respect to issues concerning the children via text message as may be agreed between them from time to time, and should a dispute arise in relation to how the parents communicate about parenting issues:
(a)Such communication be in writing for non-urgent matters and via phone call for urgent matters only; and
(b)The communication be child focussed.
X
8.The parties do all things and sign all documents necessarily to facilitate X’s attendance at ‘C Therapy Centre’ in City D for the purposes of hobby therapy classes.
9.The parties do all acts and things and sign all documents necessary to facilitate X’s attendance upon Ms E, Psychologist, or such other psychologist as may be agreed between the parties upon the recommendation of X’s treating GP or paediatrician noting that it is agreed that such psychologist shall not be Ms F.
10.The parties shall do all acts and things and sign all necessary documents to facilitate the child X’s attendance on Dr G or such other Paediatrician for which a referral is obtained and follow any and all recommendations as to future assessments and treatment.
Restraints
11.Without agreement as to necessity, both parties personally and by their servants and agents be and is hereby restrained by injunction from:
(a)Doing or saying anything to the children in the presence or hearing of the children which may be derogatory of the other party or detrimental to the relationship each party has with the children;
(b)Denigrating or speaking negatively about the other party or the other party’s family or household members in the presence or within hearing of the children;
(c)Discussing these proceedings with or in the presence and/or hearing of the children; and
(d)Using physical force to discipline the children.
12.Each parent be restrained from relocating the children's primary residence whilst in their respective care to any place that is more than 35 kilometres from the Town H Police Station unless otherwise agreed between the parties in writing.
Family Report
13.The parties and the children attend upon Ms J, Psychologist, for the purpose of a short form private report on or around 5 October 2022 and for that purpose:
(a)Ms J be provided with the following:
(i)Any report received from the Department of Families, Fairness and Housing;
(ii)All Court documents filed in these proceedings; and
(iii)If requested, a copy of any documents produced pursuant to subpoenas filed on behalf of the parties and released for inspection.
(b)Ms J shall be at liberty, in her discretion, to liaise with any school, medical practitioner and/or allied health practitioner upon whom the children or any of them currently attend and the parties shall provide all authorisations necessary to facilitate that contact if required;
(c)It is requested that Ms J’s report address the following matters:
(i)Any agreement reached between the parties;
(ii)Identification of key issues requiring resolution;
(iii)Any views expressed by children;
(iv)The impact of the issues and dispute before the Court on the children;
(v)Any factors concerning the psychological functioning of the parties and how those factors impact upon the best interests of the children (if at all); and
(vi)Any other matters that Ms J considers important to the welfare and best interests of the children.
AND THE COURT ORDERS THAT:
(d)The cost of Ms J’s report (indicated to be $3,500 plus GST) be borne by the Father at first instance.
AND THE COURT ORDERS BY CONSENT THAT:
Future Directions
14.The proceedings be otherwise adjourned for interim defended hearing in the November 2022 sittings of the Town B circuit on Monday 14 November 2022 at 10.00am.
15.Any further material to be relied upon is to be filed no less than 7 days before the interim defended hearing (Monday 7 November 2022).
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 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 Annexure A and these particulars are included in these orders.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under a pseudonym Nisbett & Nisbett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’).
The decision I must make on this emergency interim hearing is the living arrangements for the twin children of these proceedings, aged 7 years old, and the older child, age 9 years old (collectively, ‘the children’).
BACKGROUND
The Mother and Father are both 41. The Father is a manager and the Mother is a health care worker. The parties are highly educated and highly successful in the professional aspects of their lives but there have been spectacularly unsuccessful in managing their parental relationship before separation and following. The parties live in close proximity to one another.
The Father proposes that the children return to live in week about in the circumstances where it is common ground that the children had lived week about with their parents since the start of the school year of 2020.
The parents commenced living together in 2009. They were married in 2012 and they separated in April of 2019. From April 2019 until the start of the school year in 2020 the children lived in either an equal shared parental arrangement or a shared care arrangement that was not equal.
The parents reached agreement that the children should live week about when the twin children commenced school at the start of the 2020 school year. In 2022 the Mother became unhappy with those arrangements, and if not intending to relocate from the country town where she lived to a larger nearby city that would coincide with convenience for employment, she contemplated such a move.
Each party complains of having experienced family violence from the other. On the state of the material before me it appears uncontested in these proceedings that at the time of separation there was family violence by the Father to the Mother. It is also uncontested in the proceedings before me that during the relationship, including the latter parts of the relationship, there was family violence by the Mother to the Father. In 2022, that family violence consisted of abusive text messages at times of emotional dysregulation. The Father alleges that the Mother may be impacted by a deterioration in her mental health. It is common ground that there had been a deterioration of her mental health in the distant past.
The Mother proposes that the current arrangements change and that those arrangements should be for the children to live with her and spent each alternate weekend from Friday until Sunday evening and each alternate Thursday overnight until school on the Friday morning with the Father.
The arrangements of the equal time was interrupted on or about 29 July 2022 when the Mother applied for an Intervention Order against the Father to protect the children and herself. The application alleged that on or about 9 July 2022 the Father had inappropriately struck the child, X, that at the time of separation in April 2019 he had made threats to kill, and that at that time she was significantly in fear from him.
The current arrangement at the moment is that the Mother has dictated to the Father what time he will spend with the children. Since 10 August 2022, that being when the Mother asserts she learned the terms of the Intervention Order did not prohibit time with the children, there has been some minimal time. The Father has seen the children on 13 August, 14 August, 18 August, 24 August, 26 August and 30 September 2022 but for periods of hours rather than any significant time. The parties both seek that there be an order for equal shared parental responsibility. The parties have sensibly agreed to a whole suite of injunctions and arrangements for the care of the children including the preparation of a short form or urgent Family Report to be undertaken privately.
Matters in dispute
The first matter is whether the matter should be listed for Interim Defended Hearing or Final Hearing in the November 2022 Circuit Court, in particular whether the matter will be ready and the Court's ability to accommodate it. In the circumstances, I will list the matter for further Interim Hearing for the November Circuit.
Turning to the issue of who is going to pay for Ms J’s short form report. The cost of the report is $3,500 which I might add is money very well spent. The Mother seeks that the Father pay this at first instance which is implicit within it an acknowledgement that in the long run she may well be required to contribute one half of the expense. The Father seeks that the parents contribute in equal shares as is the effect of the ordinary rules of Court with the retention of an expert. The Father has told me this morning that the total cash resources available to him at this moment are in the order of about $30,000 and the Mother has told me this morning that her cash resources available to her as at this morning are in the order of about $3,000.
The Father seeks, but only if consented to by the Mother, an order that if either parent were unable to care for the children during their time the other parents should be afforded the first right of refusal. It does not appear to be in dispute that at times that arrangement has been in place between the parties. The Mother does not consent to that order and I am sceptical about the benefit of the order even if the Mother did consent, given the state of the parental relationship and tragically the extent to which it has recently deteriorated. Hence, I will not be making that order. Each parent needs the freedom to make arrangements for the children's care in their own time without having to account to the other.
Notwithstanding, if the parents had a better parental relationship the children may very well benefit from such an arrangement. I will not be making that order, but I do note that the Father presses or would press for that order but only with the consent of the Mother.
The inference that the Father’s counsel seeks that I draw is that the Mother intends to limit the Father's time to what is contained in any orders, and that the Father is more likely to promote the children's relationship with their Mother.
I refer to the Full Court decision of Goode & Goode [2006] FamCA 1346, (2006) FLC 93-286, (2007) 36 Fam LR 422 (“Goode & Goode”):
72.In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children's lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
The Father's Counsel pressed me that this is one of those cases where a well settled arrangement, as it was up until 29 July 2022, would be in the children's interests. I cannot determine that matter as Parliament has decreed in Part VII of the Family Law Act1975 (Cth) (“the Act”) that I must follow what is known colloquially as the pathway of Goode & Goode. It is the direction of Parliament that I apply that “pathway” and I do.
I take into account the children's best interests as the paramount consideration. I take into account the primary considerations pursuant to section 60CC of the Act which is the benefit of the children having a relationship with their parents. It is common ground that the children will benefit from significant relationship with each parent. Section 60CC(2A) of the Act provides that the second primary consideration (protection of the children from abuse, neglect or family violence) should be given greater weight than the importance of the children having a meaningful relationship with their parents because the circumstances dictate.
As I discussed with the parties on the matters that have not been contested, it is apparent that at different points in different circumstances each parent has been responsible for family violence to the other. I make no ruling, judgment or finding as to which is more culpable, which is worse or ultimate responsibility. However, I am satisfied and it is also implicit in both parties' positions that there is no risk to the children such as would contend against significant overnight time with the children.
I am to consider any views expressed. The Father's material recites text messages from the older child on what is common ground would be that child's own phone or at least available to the child for use. Early in the morning the child pleads with his Father for contact with him. The Mother is more circumspect about the Father's relationship with the children, whilst acknowledging it is important.
The views expressed by the child in the text messages are of only little weight to me. I am not going to determine this case upon what the 9 year old and 7 year olds say they want, but they do indicate the nature of the relationship with each parent. It is implicit in each parents' application that there is a ‘good’ or ‘good enough for the time being’ relationship between the children with each parent.
The most significant matter that I must consider on an interim hearing is the likely effect of any changes in the current circumstances. The current circumstances are that one parent is dictating the time to the other parent and that time has turned out to be most limited since the obtaining of the Intervention Order on 29 July 2022. The change that the Mother advances is significantly better than the current circumstances since 29 July 2022. The change that the Father seeks to the current circumstances is to revert to the longstanding arrangement that was in place from about February of 2020.
I must consider is the practical difficulty and expense. The parties have demonstrated that there is no practical difficulty or expense in the children spending time with either parent.
I must consider the capacity of each of the parents to provide for the needs including the emotional intellectual needs. At a Final Hearing something may turn on that. At the moment, it is implicit in each parties' application that the other parent is a good enough parent to be able to provide for the children's emotional and intellectual needs by their respective applications. The Mother's case is that she is much better able to provide for the children's emotional needs, but that is a contested fact and I am unable to make a finding in regard to it.
I must take into account the attitude to the children and the responsibilities of parenthood demonstrated by each of the parties. The Mother made a unilateral determination in what appeared to be emotionally dysregulated circumstances, demonstrated by the text message following the Intervention Order application. It is common ground the text message was sent. The text message reads:
“I’m going to drop a lawsuit on your ass – your fucked”.
In circumstances where the Mother believed that the ex parte Intervention Order (that protected the children and the Mother) prohibited time between the Father and his children), the Mother prohibited time up until 10 August 2022. After 10 August 2022, in contra distinction to the previous number of years, the Father was able to spend very little time with the children compared to what they had experienced previously. Hence, the unilateral determination and the dictation to the other parent is a very significant matter in regard to the attitude to the child and the responsibilities of parenthood that Parliament says I must apply.
A very important matter in regard to the responsibility of parenthood is the extent, degree and manner in which the parent supports the other parent's relationship with the children. That matter contends strongly in favour of the Father's proposal and against the Mother's proposal. I do take into account the courage that the Mother has had to, frankly, acknowledge that her actions of ceasing the children's time with their Father has been an overreaction and unwarranted in the circumstances. That goes very much to her credit and also to her attitude to the responsibilities of parenthood. Such frank concessions are rare. However, the concession only goes so far.
I am to take into account family violence and I do. I note what I have stated about family violence beforehand. In the circumstances of the longstanding week about arrangement that was in place, and that each parent alleges the other has inappropriately handled or disciplined a child who can be, and frequently is, a difficult child to discipline or parent, the allegations that each makes to the other in regard to inappropriate discipline to the child is of little weigh to me. Each has deposed to me that it has been necessary to use physical force in a minimal and modest account to discipline the child. The child in both cases has complained to the other parent. The other parent has then, notwithstanding their own experience of the child, put the worst possible interpretation on that and then regarded that as an appropriate discipline.
In this interim hearing I am not convinced that either parent has used inappropriate discipline on the children. However, at a Final Hearing I would have an open mind on that if the parents choose to make that an issue in dispute.
I must take into account an Intervention Order. This Intervention Order was made ex parte where only a fraction of the circumstances of the relationship and the dynamics of that relationship were made available to the Court that had the burden and responsibility of making decisions in an urgent and emergency situation in the face of very serious allegations. I can therefore only place very little weight on that and I note that each now seeks an intervention order against the other for the protection of the children. That will be before the relevant court in October 2022.
It is common ground that I should make an Interim Order and I am also required to take into account any other fact or circumstance that the court thinks is relevant. Indeed, the pathway of Goode & Goode commands me to do so. The other fact and circumstance is that from February until the Intervention Order application, upon what is now acknowledged to be partly incorrect information and what is clearly only part of the full story of the relationship, is that the parents had by agreement had a week about arrangement. Whether or not that arrangement should continue after a Final Hearing is another matter. However, the circumstances of the case and the application of Part VII of the Act strongly indicate, in my view, that that arrangement should continue until the matter can be further looked at and I will be looking at it in November 2022 with the benefit of the short form Family Report.
I also note that I do not need to consider the presumption because the parents themselves agree that there should be equal shared parental responsibility. That commands me to consider whether there should be equal time provided it is practical. I do consider it and for the reasons that I have recited by application of the principals in section 60CC of the Act I find that until further order on this interim hearing it is in the children's best interests to live in the week about arrangement. I will be making the orders as they are in yellow as sought by the Father.
I want to thank the solicitors and counsel involved for conducting what could be a matter that with less efficient or experienced lawyers could take a number of hearings and days of time and cripple the parties with the expense. The parties are fortunate to have the benefit of lawyers of the calibre that they have who have the capacity to provide an efficient service within the cost outlines that I have before me. The reality is if I am able to determine the matter with some confidence on an interim hearing where the matter is brought on with some urgency and I am grateful to all of the lawyers for the manner in which they've conducted the proceedings.
I do not want it forgotten the extent to which I acknowledge the Mother's acknowledgment in her affidavit of overreacting and I want to acknowledge in my reasons how infrequently that occurs even when it's obvious that someone has overreacted.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 3 November 2022
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