Paisley & Eccleston
[2023] FedCFamC1F 559
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Paisley & Eccleston [2023] FedCFamC1F 559
File number(s): ADC 4535 of 2016 Judgment of: BERMAN J Date of judgment: 7 July 2023 Catchwords: FAMILY LAW – CHILDREN – With whom a child spends time with – where the father seeks an increase of time with the children – where the mother seeks that the father’s time with the children be consolidated – Consideration of interim proceedings – where each party seek interim orders that mirror final orders – Where the Court is to act cautiously – where until evidence can be tested, it is not in the children’s best interest to make the orders sought – No orders.
FAMILY LAW – COUNSELLING – Power of the Court to order – where the mother seeks for the children to attend upon a psychologist – Consideration of whether the proposed therapeutic intervention is likely to assist the children – where no evidence has been presented – No orders.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC Cases cited: Marvel & Marvel [2010] 240 FLR 367
Mazorski & Albright [2007] FamCA 520
Division: Division 1 First Instance Number of paragraphs: 61 Date of hearing: 3 July 2023 Place: Adelaide Counsel for the Applicant: Ms Miller Solicitor for the Applicant: Sykes Bidstrup Counsel for the Respondent: Mr McQuade Solicitor for the Respondent: Eastern Legal ORDERS
ADC 4535 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PAISLEY
Applicant
AND: MS ECCLESTON
Respondent
order made by:
BERMAN J
DATE OF ORDER:
7 july 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 6 June 2023 and the Response to an Application in a Proceeding filed 28 June 2023 are dismissed.
2.Paragraph 13 of Orders dated 4 August 2022 be suspended.
3.Until further order X born 2014 and Y born 2015 (collectively “the children”) spend time with the father as follows:
3.1During the short 2023 July and September/October school holiday periods:
3.1.1If the children have not lived with the father in the last weekend of the preceding school term, from the end of school on the last Friday of the school term to 5.00pm on the middle Saturday of the school holiday period; and
3.2.2If the children have lived with the father in the last weekend of the preceding school term, from 5.00pm on the middle Saturday of the school holiday period to the commencement of school on the first day of the new school term.
3.2 During the 2023 Christmas school holiday period:
3.2.1If the children have not lived with the father in the last weekend of the last school term, from the end of school on the last Friday of the last school term to 5.00pm on the following Friday and alternate weeks thereafter with changeovers to be on Fridays at 5.00pm; and
3.2.2If the children have lived with the father in the last weekend of the last school term, from 5.00pm on the first Friday of the school holiday period to 5.00pm on the second Friday of the school holiday period and alternate weeks thereafter with changeovers to be on Fridays at 5.00pm.
4.Term time spending be suspended during school holiday periods as provided for in paragraph 3.
5.All applications for final orders be adjourned for hearing before Justice Berman on 29 January 2024 at 10.00am as a 4-5 day matter and that the evidence in chief of all witnesses be given by affidavit.
6.By 4.00pm on 15 September 2023 the applicant file and serve upon all other parties:-
6.1an amended application setting out with precision the orders to be sought; and
6.2the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting the affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).
7.The applicant and the respondent do each pay one half of all setting down and trial fees by 4.00pm on 12 January 2024.
8.By 4.00pm on 8 December 2023 the respondent file and serve upon all other parties:-
8.1an amended response setting out with precision what orders are being sought; and
8.2the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).
9.By 4.00pm on 12 January 2024 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.
10.All parties have liberty to approach the Judicial Registrar docketed with the management of the file to vary the obligations under these orders to ensure readiness for trial.
11.Liberty is granted to each party to relist the matter at short notice in relation to trial directions or any application for leave for subpoena to issue.
12.The practitioners for the parties file and serve electronically to …@... by 4.00pm on 24 January 2024 the following:
12.1a concise set of orders to be sought if different from those already filed;
12.2a list of the applications and affidavits to be read out and if not the whole affidavit, the relevant paragraphs relied upon;
12.3a list of objections to evidence upon which rulings are required; and
12.4a bullet-point summary of argument in relation to the issues in dispute.
13.The parties are relieved of the obligation to comply with the provision of the Family Law Case Management Central Practice Direction.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Mr Paisley (“the father”) and Ms Eccleston (“the mother”) are unable to agree the future parenting arrangements for X born 2014 and Y born 2015 (collectively “the children”).
The parties separated in July 2016 with the father commencing proceedings on 23 November 2016. The parties were able to reach agreement as to the arrangements for the children which were set out in a Consent Order made 22 May 2017. The Orders provided for the parties to have equal shared parental responsibility and it was a feature that the parties should engage about all major long term issues to include the following:
(a)Education (both current and future);
(b)Religious and cultural upbringing;
(c)Health;
(d)Names; and
(e)A change in the permanent residence of each of the parties.
The Orders provided for the children to live in the mother’s primary care with the father’s time to gradually increase such that commencing 5 February 2014, the children would spend four nights with the father as follows:
(a) In week one:
(i) On Tuesday from the conclusion of childcare until 7.00 pm;
(ii) On Wednesday from 5.00 pm until 5.00 pm on Friday.
(b) In week two:
(i) On Tuesday from the conclusion of childcare until 7.00 pm;
(ii) On Friday from 5.00 pm until 5.00 pm on Sunday;
(c) Such other times as agreed between the parties.
It was anticipated that the parties may need some assistance in order to agree the further future arrangements and as such, the orders reflect that the parties were to attend mediation on or after September 2018.
The orders also provided “liberty to either party to apply in the event that no agreement is reached at mediation” with the notation that neither party would rely on the principles set out in Rice v Asplund. The Orders provided for special periods but did not contemplate any provision for the children to spend time with the father over school holidays other than a continuation of the time the children spend with the father each fortnight.
The father enlivened the proceedings by filing an Initiating Application on 19 January 2022. The orders now sought by the father would extend the father’s time from two nights to three nights in each week, one half of the short school holiday periods and a week about arrangement during the long school holiday period.
The mother opposes the extension of the father’s time but rather seeks that the current period of two nights in each week be consolidated to block time.
The mother initially was opposed to any extension of time during the school holidays however, for reasons that will be discussed, there now appears to be broad agreement between the parties as to the arrangements for the children to spend time with each of the parties during the short and long school holidays.
The mother also seeks that she be able to travel internationally with the children which is opposed by the father.
The proceedings were judge managed in Division 2 of the Federal and Family Court of Australia. Trial direction Orders were made on 13 December 2022 listing the proceedings for a trial on 5 June 2023.
To assist the parties in a resolution of the outstanding issues, the proceedings were listed for a Judicial Settlement Conference on 15 March 2023.
The Judicial Settlement Conference was unsuccessful however, agreement was reached as to the arrangements for the children to spend time with the father during the April 2023 school holidays. The following orders were made:
1. For the April 2023 school holiday period:
(a)The father spend time with [the children] from 12 noon on 22 April 2023 until the commencement of school on 1 May 2023; and
(b)The regular time spent between the father and the children is suspended for the balance of the school holiday period.
2.For the purposes of time spent by the children with the father pursuant to the orders of 22 May 2017 (as varied by paragraph 3 of the orders of 4 August 2022), times scheduled to conclude at 3pm on Sundays shall be extended to conclude at 5pm on Sundays.
On 9 May 2023, Orders were made transferring the proceedings to Division 1 of the Federal Circuit and Family Court of Australia on the grounds that the trial length was likely to exceed four days. It is apparent, upon further enquiry, that the number of witnesses proposed to be called by the parties suggested that the evidence would not be dealt with in the time allowed.
The trial direction orders made were stayed.
The parties apprehended that there may be a lengthy delay before the proceedings would be listed for final hearing and as a result, the father filed an Application in a Proceeding on 6 June 2023 which seeks interim orders that, in broad terms, mirror the final orders that he seeks in his Initiating Application.
The father does not seek to interfere with paragraphs 9 to 20 of Orders made 22 May 2022 relating to special periods.
The mother filed a Response to the Application in a Proceeding on 28 June 2023. Effectively, she seeks that paragraphs 1, 2, 3 and 6 of the father’s Application in a Proceeding be dismissed but in the alternative, she seeks that the children spend time with the father as follows:-
During school term:
a.Each alternate week from after school on Thursday to the end of school on Monday (or 3.00pm if a non-school day or pupil free day);
b.Each intervening week from the conclusion of school on Monday until 7.00pm;
During school holidays:
a.In the second week of the short school holidays from Thursday 9.00am to Monday at 5.00pm; and
b. At other times as agreed.
The orders sought by the mother are broadly consistent with the final orders that she seeks namely, that the children spend four nights a fortnight with the father as a block rather than spread across the two weeks comprising the fortnight.
A separate issue is that the mother seeks that the parties facilitate obtaining a mental health care plan for the children so that they can be referred to Ms B or such other psychologist as may be agreed between the parties. It is anticipated by the mother that Ms B would receive copies of the Child Impact Report dated 28 July 2022 and the Family Assessment report dated 28 October 2022.
The interim orders sought by the mother are opposed.
THE PROCEEDINGS
The interim proceedings came before me on 3 July 2023. The parties had a trial date which was then vacated. I considered that the conflict between the parties, the unfortunate circumstances of the parties’ expectations of a trial in June having been thwarted and the likelihood that ongoing conflict would not ultimately be in the best interests of the children, that expedition should be considered favourably.
On closer consideration of the issues in dispute, I formed the view that whilst the parties would seek to rely upon an expanded list of witnesses, the issues as between the parties were of narrow compass and easily defined.
The parties are not in disagreement about parental responsibility. Whilst the extension of time sought by the father to what would in effect be shared care is opposed by the mother, she concedes that at the very least, the current arrangements or some restructuring of same, would result in the children’s interests being served.
In short, the orders sought by each of the parties reflect appropriately on the capacity of the parties to parent the children. It is not suggested by either party that the current orders do not support or enable the children to have a meaningful relationship with each of them.
DISCUSSION
The consideration of what is intended by a “meaningful relationship” or “meaningful involvement” is one which is “important, significant and valuable to the child” (see Mazorski & Albright [2007] FamCA 520).
The Court is entitled to assume that there is a benefit to all children in having a meaningful relationship with both of the parents but that must always be considered from the aspect of the advantage to the child of having a meaningful relationship with one or other or both of the parties rather than what outcome will promote a relationship with a child.
The relationship does not have to be “optimal” to be “meaningful”. Given the long history to this matter it could not be said that the current arrangements do not enable the father to have a meaningful relationship with the children.
He contends that there is positive advantage to the children by an extension of his time.
What is at least initially apparent is that at present, there is a level of contest and conflict between the parties.
Simply put, for the Court to order any extension of time by the father on an interim basis there would need to be evidence which supports the further benefit to the children and that there should be some certainty that if an extension of time is granted on an interim basis, there will not likely be a reduction of time or a further change arising out of the final hearing.
A similar consideration arises in respect of the orders that the mother seeks. A consolidation of the time that the children spend with the father in each week of a fortnightly period would represent a significant change in the current arrangements. The father’s contention is that he is better able to engage with the children both in terms of their curricular and extra-curricular activities by the current arrangement. He contends that it would not be to the interests of the children if his time was to be had in one extended block. The children would see the father for four nights in a block but then would have no time with him for ten consecutive nights.
A further difficulty arises when parties seek interim orders that mirror the final orders. That does not mean that it is automatically a barrier to a party seeking extended orders but it requires the Court to act cautiously so that the arrangements for the children are not the subject of unnecessary change and alteration consequent upon further evidence being heard at trial.
The parties were able to reach agreement as to the time spending arrangements during the short and long end of term holidays.
The remaining issues for determination are now of narrow scope and affectively confined to the following:-
·The time spent with the father during school terms;
·The extent to which the children should engage in further therapy with Ms B or other nominated counsellor or therapist;
·Whether there should be any change to ancillary orders including handover; and
·The ability of the mother (or potentially the father) taking the children out of the jurisdiction of Australia.
Counsel for each of the parties conceded that given the issues had significantly narrowed, it was likely that the evidence could be completed within four to five days. Whilst unfortunate that the trial direction orders were suspended which prevented the Court from having the advantage of trial material, taking into account the circumstances of each of the parties and the availability of counsel, I propose that all applications for final orders be listed for final hearing in the week commencing 29 January 2024.
THE FATHER’S APPLICATION
The father relies upon his Application in a Proceeding filed 6 June 2023 and his affidavits of 6 and 29 June 2023.
The father relies upon what he considers are the consistent recommendations in a report prepared by Ms C dated 28 October 2022 which contain the following recommendations:
In light of the above discussion it was recommended that:
•The children spend equal school holiday time with each party.
•The mother’s proposal for overseas travel be supported.
•The father engage in a meaningful and sustained manner with [Mr D] for reportable therapy. Upon provision of a positive report by [Mr D], the father’s time with the children gradually increase until equal time was reached.
•The mother maintain engagement with her counsellor.
The father annexes Mr D’s report dated 14 April 2023. Giving careful consideration to the report and whilst it indicates that there has been significant engagement between the father and Mr D, as noted by counsel for the mother, the report reads more as a document supporting the father’s application rather than detailing the extent to which the father’s engagement with Mr D has resulted in enhanced insight into the manner in which behaviour can adversely impact on children.
I do not consider that the recommendation of an expert undertaking a family assessment should necessarily be determinative of the issues. It may well support the father’s application but there is a challenge to the issues relied upon by the father and it may well be that the report in any event is directed to a final hearing rather than an interim arrangement.
By his affidavit of 29 June 2023, the father seems to focus on the purported conduct of the mother and the extent to which she has made unilateral arrangements for the children.
I do not suggest that those matters may not be important consideration in the determination of the separate proposals of the parties but at this stage, the affidavit material is not directed to the orders the father seeks on an interim basis.
In circumstances where the parties have reached agreement as to school holidays and it is not suggested that the current orders do not enable the children to maintain a meaningful relationship with the father, I do not propose to make orders as sought by him.
THE MOTHER’S APPLICATION
In a manner not dissimilar to the focus of the father’s affidavit material, the mother highlights the inability of the parties to reach agreement as to the arrangements for the children.
Whilst the mother sets out areas of conflict since the making of the 2017 Orders, the objective outcome is that broadly speaking, the Orders have regulated the parenting arrangements for the children over an extended period of time.
Each party now considers that different orders should be put in place. Again, there is nothing in affidavit material of the mother which supports the order that she seeks namely, that the children’s time with the father should be taken as a block rather than as currently provided for in the 2017 Orders, as amended.
I do not discount the possibility that the evidence may require the Court to consider whether the number of transitions between the children and each of the parties may be a factor that needs to be given weight. At this stage, and in the absence of any direct evidence, the issue is one for trial.
The mother seeks that the children attend upon a psychologist to assist in managing what she considers is to be escalating anxiety arising from the litigation.
I do not discount the distinct possibility that litigation that involves high conflict is likely to adversely impact upon a child or children.
It is not an unusual circumstance that one party will complain of behaviour in his or her household which the other contends is not exhibited in their household. There are a number of explanations that might well be supported by evidence that the anxiety is real but that there are factors that bring it to the fore in one household and not the other.
A significant issue that arises in an application that seeks that children engage in ongoing therapy, is to assess that the proposed therapeutic intervention is likely to assist a child or children and not place them at further risk.
Before an order should be made, there needs to be evidence that enables the Court to determine that it is in the best interests of a child to make such an order.
No evidence has been presented from the proposed therapist, Ms B, that the therapy will produce the result and outcome that the mother seeks. Furthermore, no evidence has been presented as to the duration of the proposed therapeutic intervention, the extent to which the parties will both be involved and the manner in which it will be paid for.
I do not propose to make the order as sought by the mother but acknowledge that at a final hearing there may well be evidence that suggests some ongoing therapeutic involvement with a child or children is warranted. That circumstance has not yet been reached or established.
INTERIM PARENTING
In Marvel & Marvel [2010] 240 FLR 367, the Full Court considered the manner in which interim parenting proceedings should be considered where there is contested evidence as follows:
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
Application of parenting principles
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Pt VII of the Act.
Section 60CA of the Act provides that the Court must have the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out the primary and additional considerations that the Court must take in to account in determining what is in the child’s best interests of a child.
CONCLUSION
I am satisfied that whilst any delay is likely to cause anxiety and distress for the parties and possibly the children, the current orders which regulate the parenting arrangements, promote and ensure that the children maintain a meaningful relationship with each of the parties.
It may be that the current orders are not ideal or optimal given that they have been in place now for approximately five years but nonetheless, until the Court is able to properly assess the evidence to be presented by each of the parties, it would not be in the children’s best interests for the orders to be significantly altered.
The parties have agreed a significant aspect namely, that the arrangements during the school holidays, and whilst January 2024 is five months away, be extended and the time that the children will spend with the father during school holidays will be a significant adjustment to enable him to engage with the children over a longer period of time.
I make orders as appear at the commencement of these reasons.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 7 July 2023
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