Paintal & Paintal (No. 2)

[2020] FamCA 1031

FAMILY COURT OF AUSTRALIA

Paintal & Paintal (No. 2) [2020] FamCA 1031

File number(s):	CAC 273 of 2014
Judgment of:	GILL J
Date of judgment:	8 December 2020
Catchwords:	FAMILY LAW – application to consolidate holiday time with father – orders for partial consolidation –– need to balance child’s distress and opportunity to enjoy relationship with the father – consequential orders for telephone contact
Legislation:	Family Law Act 1975 (Cth) s 60CC
Cases cited:	SS & AH [2010] FamCAFC 13
Number of paragraphs:	24
Date of hearing:	19 November 2020
Place:	Canberra
Solicitor for the Applicant:	Self-representing
Solicitor for the Respondent:	Jeanine Lloyd & Associates
Solicitor for the Independent Children's Lawyer:	Legal Aid, ACT

ORDERS

CAC 273 of 2014

BETWEEN:

MR PAINTAL

Applicant

AND:

MS PAINTAL

Respondent

LEGAL AID ACT
Independent Children's Lawyer

ORDER MADE BY:	GILL J
DATE OF ORDER:	8 DECEMBER 2020

THE COURT ORDERS THAT:

1.Order 3(d) of the orders of 18 March 2019 is discharged.

2.During the end of 2020 long school holidays:

(a)X’s time with the father, except as otherwise provided for in this order, is suspended;

(b)Unless otherwise agreed by the parties in writing, X shall spend time with the father:

(i)from the conclusion of school on 18 December 2020 until 12 pm on 28 December 2020;

(ii)From 12 pm Saturday 23 January 2021 to the commencement of school on 2 February 2021.

(c)The orders for school holiday telephone time with the mother, except as otherwise provided in this order, are suspended and the father shall facilitate and cause X to have telephone time with the mother at times as agreed in writing and, absent agreement in writing, at 6 pm on 20, 22, 24 and 26 December 2020 and on 25, 27, 29 and 30 January 2021 for a period of no less than ten minutes on each occasion.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

GILL J:

Introduction

1. This matter concerns Mr Paintal, the Applicant father and Ms Paintal, the Respondent mother and the interim parenting arrangements for their child, X born in 2012, across the end of 2020 school holidays.

2. The father seeks to change the current arrangement that sees X spend four block periods of five days with the father across the holiday period, consolidating that into a single period of three weeks and two days from 18 December 2020 until 10 January 2021.  The mother resists the change.

   Material relied upon

3. The father’s Application in a Case filed 21 October 2020.

4. The father’s Affidavits filed 21 October 2020, and 16 November 2020.

5. Affidavit of Mr U filed 22 October 2020.

6. Affidavit of Ms AA filed 21 October 2020.

7. Affidavit of Mr BB filed 22 October 2020.

8. The mother’s Response to an Application in a Case filed 6 November 2020.

9. The mother’s Affidavit filed 6 November 2020.

10. Family Report filed 31 May 2018.

    The cases

11. The structure for the end of year school holiday period was most recently dealt with on 18 March 2019.

12. That judgment identified the balance to be struck between the competing claims by the parties about X’s distress and the need to provide her with time to have and enjoy her relationship with her father.  This was done by consolidating time for X with her father across four periods of five days, with the proviso that X could speak to her mother on two short occasions by telephone during this period of time. 

13. In support of his case the father raised as prominent the degree of conflict between the parties.  It is an understatement to describe this matter as a high conflict case, particularly where contested litigation is taking place in the ACT Magistrates Court in relation to an application by the mother for a family violence order.  The father observes that maintaining the current regime will result in seven sets of handovers occurring outside a shopping centre which has been the scene of a previously alleged assault by the mother upon the father but, where school is unavailable for handover, presented a workable, if not desirable option for handover.  A reduction in handovers reduces the scope for conflict between the parties and, the father submits, reduces the sequelae of such being, he alleges, the mother’s taking X to a doctor for COVID testing due to the father’s family currently staying with him.  The father points to the advantage of avoiding the stress of handovers as providing a peaceful environment for X to enjoy relationship with the father and his family before they return to India, in circumstances where, he says, X is unlikely to enjoy time with her paternal grandfather again.

14. The mother resists the change, relying on X coping poorly with time with the father, X making claims that the father has hit her and forced her to swim when she was ill, and that she is scared of the father.  The mother says, and relies upon evidence from a general practitioner, that X claims to have been struck by the father on a number of occasions.

15. The mother says that X coped poorly with five day periods with the father on the last holiday period.

16. The mother also points to the father’s conduct, as evidenced in the affidavits that he relied upon, in recruiting third parties to assist in the arrangements with the mother, conduct which included a third party conducting what the third party described as a welfare check by attending at the mother’s home.  This emphasises further the need to minimise interactions between the parties pending final hearing.

17. The Independent Children’s Lawyer (“the ICL”) neatly summed up the pivotal considerations in this aspect of the litigation between these parties, noting that the matter is set for final hearing in March 2021.  The ICL observed that if the Court was satisfied that a longer block time is not in X’s best interests, then the application should be refused.  Against this, she suggested that if the Court was concerned by the number of changeovers, the Court might consider two longer blocks of time, reducing the number of changeovers, but not extending the time to a duration with which X may struggle to cope.

    Considerations

18. In interim proceedings the Court is to regard the child’s best interests as the paramount consideration, having regard to the considerations contained at s 60CC of the Family Law Act 1975 (Cth).

19. In interim proceedings the Court is limited, by the nature of the proceedings themselves, in the manner of consideration of the factual matters that underpin a decision as to what is in a child’s best interests.  As stated in SS & AH [2010] FamCAFC 13 at [81] it is necessary to:

    keep in mind the statements in Goode and Goode that at an interim hearing it is important to identify the agreed/uncontested facts and that consideration of the s 60CC factors is likely to be limited, given that there may be little uncontested evidence on which findings can be made

20. Despite this limitation, it is said at [100] that:

    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.

21. Here there is a fundamental conflict between the parties as to how X copes with, and is treated at the father’s home.  These are matters apt to be resolved at the final hearing in March 2021, but which are unable to be resolved here.  An order, in such uncertain circumstances, to extend X’s time runs the risk of placing greater stress upon X.  The longer the period of time, the longer the period of stress to be endured (if such is the case) before X returns to her mother.  This may be ameliorated, in part, by the position advocated by the ICL in shortening the periods.

22. What is uncontroversial is the high conflict between the parties, a matter that points away from repeated handovers between the parties outside a supermarket, as a circumstance likely to breed conflict and to expose X both to such conflict and the aftermath of such.  This is a matter that X should be protected from, in circumstances where, across the holiday period there is a high likelihood that she will be exposed to such.

23. The suggestion of the ICL reaches a good balance between these risks, reducing the number of handovers, whilst shortening the duration from what is sought by the father in a single block.  The ICL’s suggestion should be adopted as in X’s best interests in managing the various risks facing her across the holiday period.  Orders will be made accordingly.

24. It will be necessary to make consequential orders that extend the occasions for telephone contact between X and the mother during the school holiday period when X is with the father.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       8 December 2020