Pallone and Pallone

[2019] FCCA 3696

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALLONE & PALLONE [2019] FCCA 3696

Catchwords:
FAMILY LAW – Parenting – one child aged 12 – interim hearing – whether child should spend equal time with both parents or live primarily with the Father - section 60CC factors – best interests – child to remain with Father and spend regular school holiday time with the Mother – Father restrained from moving the child outside 50km radius of current residence.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60CC(2)(a), 60CC(2)(b), 60CC(2)(A), 60CC(3), 60CC(3)(b), 60CC(3)(d), 60CC(3)(f), 60CC(3)(i), 60CC(3)(j), 60CC(3)(k), 61DA and 65DAA

Cases cited:

Cowling & Cowling (1998) FLC 92-801

Goode v Goode (2001) FLC 93-286
MRR & GR (2010) FLC 93-424

Applicant: MS PALLONE

Respondent: MR PALLONE

File Number: NCC 2670 of 2019

Judgment of: Judge Betts

Hearing date: 29 November 2019

Date of Last Submission: 29 November 2019

Delivered at: Newcastle

Delivered on: 29 November 2019

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: Roberts Legal

Counsel for the Respondent: Mr Wilkinson

Solicitors for the Respondent: McAllister Legal Services

ORDERS

1. By consent, orders be made in accordance with the Terms of Settlement handed up in Court today and marked with the letter “A” and attached hereto.

2. By consent, the Solicitor for the Applicant is to email a clean certified typescript of the Terms of Settlement to be placed on the court file within two (2) days of today.

3. Pursuant to Section 65DA(2) 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 B and these particulars are included in these orders.

UNTIL FURTHER ORDER:

1. The orders of 14 October 2019 are discharged.

2. Until further order the child X born … 2007 (“the child”) live with the Father.

3. During school terms, the child spend time with the Mother from after school Tuesday until 7.30pm Sunday commencing in the first week of each school term and continuing in alternate weeks thereafter.

4. Each of the parents be restrained and injunction issue restraining each parent from:

   (a)Denigrating the other parent, members of the other parents family, or household, within the hearing or presence of the child, or permitting the child from remaining in the hearing of any other person doing so;

   (b)Showing the child any Court documents, discussing the Court proceeding with the child, or seeking to elicit from him any views about the parenting arrangements NOTING THAT this order is not intended to prohibit the parent from telling the child what the current orders provide.

5. In addition to order 4 of exhibit “A” being the consent orders entered into today, these orders expressly authorise the child psychologist to consult with the Mother and to give her any and all information requested in relation to X and his treatment, including consulting with the Mother if the Mother requests (with the Mother to be responsible for any associated expenses).

6. By consent, each of the parties is to enrol in and complete as soon as possible a Parenting after Separation Course and provide a copy of the certificate of completion to the other party as soon as it is available.

7. A copy of the Child Inclusive Conference Memorandum of 5 November 2019 marked as Exhibit “C1” be provided by the Mother to the child’s treating psychologist together with a copy of these orders, with that to occur within seven (7) days.

8. Upon the release of the written reason for judgment, the parties are at liberty to provide a copy of them to the child’s psychologist.

9. The Father be restrained by injunction from causing the residence of the child to be moved outside of a 50km radius of the child’s school, School A, Town D.

10. Pursuant to s.62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Senior Family Consultant, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:

    (a)To consider the factors in S60CC & S65DAA of the Family Law Act1975.

    (b)To assess the parents (and other significant adults).

    (c)To assess the parents interactions (and those of other significant adults).

    (d)To assess the children’s developmental and emotional state.

    (e)To assess the relationship of the children to the parents (and other significant persons) and the wishes of the children.

    (f)To assess the proposed and actual home environments.

    (g)To assess the proposals of each party as to the children’s future.

    (h)To consider any other matter which the family consultant considers relevant to the Court’s determination.

11. The Court requests the said report be released by 5 June 2020.

12. Pursuant to Rule 1.06 of the Federal Circuit Court Rules 2001 the court dispenses with the requirement of Division 15A.2 of the said Rules and the family consultant is granted leave to inspect all documents produced in response to subpoena whether such documents have or have not been released for inspection.

13. If the Family Consultant is unable to inspect documents produced in response to subpoena at the Newcastle Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the Family Consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.

14. The matter is adjourned to 9.30am on 21 July 2020 for Hearing Directions and possible trial directions.

NOTATION:

A.In relation to the Child Inclusive Conference Memorandum, it should be NOTED that the Father does not have any current plan to relocate to Queensland with X.

IT IS NOTED that publication of this judgment under the pseudonym Pallone & Pallone is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2670 of 2019

MS PALLONE

Applicant

And

MR PALLONE

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript so as to make them more readable.

Consent order:

1. I will make an interim parenting order in terms of the document handed to me and marked as exhibit “A”. 

Contested interim issues:

1. This is an interim application relating to the parenting of a child, X, born … 2007 – who is presently twelve (12) years and two (2) months old.  X is the son of the applicant mother, Ms Pallone (“the mother”) and Mr Pallone (“the father”).

2. The parties were in a relationship from around 2004, marrying in 2005 and separating in January 2016.  X lived with the mother after the parties separated.  It is common ground that he spent weekend and holiday time with the father who lives nearby. 

3. There was a difficulty which arose in April of 2018 when X told the mother that he wanted to move away to Queensland with the father, following which she - seemingly in an emotional outburst - told him to pack his bags and go.  He did pack his bags, but some four (4) hours later, he came back and the situation settled down again.  Life continued on.

4. However, it seems sufficiently clear to me that X wanted to spend more time with his father than he was spending.  Indeed the mother concedes as much by implication.  The reality is that X’s time with his father increased after that time, and, eventually, X was spending time with his parents on a week-about basis.

5. The situation between the parents nonetheless remained strained and difficult.  The mother gives evidence that at Christmas, the father took X away to Queensland with him, effectively, without notice to her and in contravention of their agreement that it was her time to spend with X.  The mother’s case, generally, is that the father was enabling or otherwise encouraging or permitting X to, in a sense, reject her household and embrace his. 

6. Whether the father was doing so is a matter that cannot be determined by the court at an interim hearing, but it suffices to say that in July of 2019, the co-parenting arrangements broke down completely following a text message sent by the mother to X of a firm, but I would not say inappropriate nature, following which the child apparently became upset and said he did not want to return to the mother’s home at all.  He has, thereafter, been living with the father.  This prompted the mother to bring proceedings on 26 August 2019. 

Litigation history:

1. On the first return date, 14 October 2019, Ms Wilson solicitor appeared for the mother; Mr Wilkinson of counsel appeared for the father.  The court made orders for a section 11F Child-Inclusive Conference and a Memorandum of same was prepared by Ms B of E Services.  The court ordered on an interim basis that the child live with the father and put in place a fairly limited time order with the mother on the basis that the court wanted to see the child spend some time with the mother. 

2. But the court did not want to unduly rock the boat, noting the father’s case that the child’s relationship with the mother had significantly broken down. The court otherwise put in place various injunctions prohibiting denigration and discussion of the court proceedings with X, and the matter was adjourned to today for interim hearing. 

3. The matter has come back before me today.  Again Ms Wilson appears for the mother and Mr Wilkinson appears for the father.

4. At the outset of the hearing, I raised with Mr Wilkinson that the father’s formal position, as set out in his Response, was that the mother spend time with X “as ordered by the court”.  I pointed out that, in my view, this was grossly deficient and had the potential impact of casting a pall over the father’s credibility in terms of his genuineness and desire to facilitate and foster a meaningful relationship between X and his mother.  Mr Wilkinson took instructions and was subsequently able to tender a more concrete proposal, and the matter was otherwise stood down while the court dealt with other business before it. 

5. The matter proceeded to interim hearing before me later in the afternoon.

6. In the course of the matter being stood down, there has been real progress made.  The parties have entered into an interim order, which is marked as exhibit “A”, pursuant to which they will equally share parental responsibility for X, and the parties agree that the school holidays will, for all intents and purposes, be shared equally as well.  Notably, this includes X spending up to two (2) week blocks with the mother over the Christmas period, which is a significant advance from the current interim orders and which bodes well for the future in terms of, at least, the father’s expectation that X will be happy to spend that quality time with his mother.

The key issue to be determined:

1. The issue then that I have to determine today is whether I ought to revert back to a week-about arrangement during the school term, which is what Ms Wilson urges upon me, or whether I should put in place a lesser arrangement but one whereby the mother spends substantial and significant time with X, which is what Mr Wilkinson contends for.

The material relied upon by the court:

1. In arriving at a decision, I have had regard to the Child-Inclusive Conference Memorandum.  I have had regard to exhibit “F2”, which is the father’s proposed order.  I have had regard to the Amended Initiating Application of the mother which sets out her proposed orders.  I have had regard to the previous orders in the proceeding, and Mr Wilkinson took me briefly to some of the earlier affidavit material as well. 

2. Each party has filed an updated affidavit; the mother’s was filed on 27 November 2019 and the father’s on 28 November 2019, and I have had regard to that material as well. 

The nature of the hearing:

1. This is an interim hearing.  It is not possible for the court to make findings as to disputed facts.  The law about interim hearings is well-known and has been set out in decisions such as Cowling & Cowling in terms of the Court’s incapacity to make findings as to disputed facts.[1]  The relevant statutory pathway was identified by the Full Court of the Family Court in Goode & Goode.  [2]

   [1] (1998) FLC 92-801

   [2] (2006) FLC 93-286

2. I am well familiar with the relevant provisions of Part VII, notably section 60CC, section 61DA and section 65DAA, which Ms Wilson properly points to.

3. In this case there are no matters which would displace the application of the presumption that an order for equal shared parental responsibility would be in X’s best interest. Indeed, in exhibit “A”, the parties agree to an order for equal shared parental responsibility. It follows that I must consider equal time as the first option, having regard to section 65DAA, as the Full Court made clear in Goode & Goode.  Questions of reasonable practicability also have to be considered, as made clear by the High Court in MRR & GR. [3]

   [3] (2010) FLC 93-424

Analysis:

1. The case is an interesting one.  In many ways, the court is dealing with parents who have, with respect, done a pretty good job of parenting X insofar as the court can discern.  X seems to be a fairly spirited young man, seemingly quite mature and doing reasonably well, although he is under some stress at the moment because of the current circumstances that he finds himself in. 

2. What the court has to do is contemplate, in the short term, what is the best interim order for X.  On either party’s orders, there will be a meaningful relationship between the child and both parents.  The order proposed by the mother would be, in a sense, an order which creates the most meaningful relationship with her as distinct from the father’s order, but promoting the most meaningful relationship with each parent is not the relevant test in section 60CC(2)(a), and I am certainly satisfied that a meaningful relationship is attained on both parties’ proposed orders.

3. Happily, there is no issue of psychological harm in relation to abuse, neglect or family violence here,[4] save that the Family Consultant expresses a concern that the father may have overly enabled the child to be the master of his own destiny at a relatively young age.  This is a concern that I share.  But also, I am mindful of the reality, as Mr Wilkinson submitted, that the child living with the mother, primarily, was an arrangement that did eventually break down of its own accord because X wanted to spend more time with his father.  This is the “pack the bags and go to Queensland” incident, to which I referred earlier in April of 2018.

   [4] Section 60CC(2)(b); s 60CC(2A)

4. Certainly, the Family Consultant expressed concerns about the father’s attitude, but it seems to me that a large part of those concerns spring from the Family Consultant’s apprehension that the father was in fact intending to apply to relocate to Queensland with X.  The Family Consultant records a discussion with the father in which he did talk about relocating, saying that he had not discussed the matter with the mother, nor is it set out a formal order sought in his Response.  X also talked about possible relocation with the Family Consultant when he was interviewed.

5. But Mr Wilkinson assures me today that the father has been misconstrued or misinterpreted, as he himself says in his affidavit.  He says that there is no current plan to move, and that it is just something that has been in his mind as a longer-term possibility.  But that issue has in my view cast a pall over the report.  I say this because clearly, on the face of the Memorandum, the Family Consultant was legitimately concerned about the prospect of a relocation - particularly by stealth, as appears to be the necessary implication from the content of the interviews.

6. The Family Consultant was concerned that the father said that he was merely doing what the child wanted, and that he wanted to support whatever X wants, and that he thought the mother should follow suit. I am somewhat concerned about that aspect of the memorandum. It gives rise to questions of parental capacity. It gives rise to questions of parental attitude in section 60CC(3), because one might say that if X told his father that he did not want to spend time with him or wanted to limit his time with his father to a significant extent, that the father may be much less enthusiastic about doing “whatever X wants”.

7. In a sense, it suits the father to say that he wants to support X’s views, particularly where X seemingly wants to spend more time with him than with his mother.  But the father needs to be careful that he does not inadvertently or advertently put onto X significant pressures that he should not have to deal with.  He is still at school.  He is still a child, and his childhood needs to be protected because once it is gone, it is gone forever, and he may not thank his father or even his mother for putting him into the middle of this situation in years to come.

8. The father also organised for some counselling with C Associates without reference to the mother and in circumstances where the child has apparently been expressing a wish to stay with his father and spend more time with him.  Again, I express the court’s reservation about this, because such actions pay mere lip service to the concept of both parents having parental responsibility.   If one parent goes ahead and organises what can be seen as - and in fact have the practical effect of being - a partisan process in evidence-gathering rather than a genuine, independent, objective, child-focused attempt to treat whatever difficulties X is experiencing then this is hardly compatible with equal shared parental responsibility.

9. Nonetheless, having expressed all of those reservations it does seem that on the material before me, that X is very much expressing the view that he wants to live with his father and that he seems to have had this view for quite some time, including when he was living primarily with the mother. 

10. The mother herself concedes that there are some issues in her relationship with X, albeit not at the level that the father might like to suggest.  In the text messages annexed to the father’s affidavit, the mother states that she intends to make an appointment for X to see a psychologist.  She says there that she wants to fix the problem, observing: “Apparently, his issue is with me, so I will take him.”

11. Ironically, it was only in response to the mother including the father in that discussion that the father then disclosed that he had already organised the counselling with C Associates which he had excluded her from.  This set of circumstances does the father no credit whatsoever.  Whether he was intending to be acting in X’s best interests or whether he was, in fact, pursuing his own agenda are matters I cannot decide today.  But I express the court’s concern.  This boy has two (2) parents, and both of them need to be involved in major matters such as this.

12. In terms of section 60CC(3), X as I have indicated, is seemingly expressing a view to live primarily with his father. It is a view that may have been contributed to by his father’s actions or, indeed, may have been enabled by his father’s actions. But I am not in a position to decide that today.

13. To the extent that the Family Consultant says that I cannot place much weight on X’s views, I certainly agree that they are not determinative.  However the Family Consultant’s reservation about the court placing any real weight on such views was, I think, when read in proper context, a reference to the proposed relocation.  If I am right about that, then certainly I would respectfully agree with the experienced Family Consultant who has written the Memorandum. 

14. But I cannot ignore X’s wishes either.  The boy is 12, and for some time, he has been agitating to spend more time with his father.  That seems to be an unavoidable conclusion. 

1. In relation to section 60CC(3)(b), X has a close relationship with his father. He seems to have a close relationship with his mother as well, although there have been some difficulties in recent times.

2. It is probably unlikely that the father is the sole cause of the problems between mother and son, as she might like to think.  It is likely that some of the difficulties between the mother and X relate to the dynamics of their own relationship, and I do not say that to be critical of the mother.  Ultimately, this is probably more likely than a finding that it is all the father’s doing.  I say this because X is not a mere toy, pawn or chattel who can simply be manoeuvred whichever direction that a parent might want.  I think he is a little too old to be seen in that way.

3. So the next issue then is the likely effect of any change in circumstances within 60CC(3)(d).  On Ms Wilson’s case, if I return to a week-about arrangement, I nullify whatever negative influence, if any, the father has on X in terms of de-stabilising or undermining his relationship with the mother.  On Mr Wilkinson’s proposed order, I give effect to what he says are X’s expressed wishes over a period of time that he live primarily with his father.

4. This is a difficult matter, because section 65DAA does provide that I ought to start my consideration from the viewpoint of equal time, and I am weighing up the two (2) scenarios in my mind in the course of making this decision. The reality is that if I restore week-about time, I am concerned that there is a real risk, which is relevantly unacceptable, that the arrangement will backfire on the mother and on her relationship with X, given the past history and given his seeming wish, for what it is worth.

5. Whereas if I put in place an order for substantial and significant time with the mother instead, I am much more confident that this will be able to be a workable arrangement for the child that is less likely to break down and, ultimately, more likely to restore, to the maximum extent, the boy’s relationship with his mother. 

6. I make the point this is an interim order only.  Nobody should see today’s result as foreclosing future debate about the best interests of this child which will inevitably change over time.

7. What I want to see most of all, and I see evidence of it in exhibit “A”, is X returning to have a proper relationship with his mother.  He needs that.  The question is what is the best way to go about that?  Sometimes, it is better to hasten slowly.  This, in my view, is one such case. 

8. I have expressed my views in relation to the attitudes to parenting and capacity issues: s 60CC(3)(f); s 60CC(3)(i). I do not question that the mother, as X’s primary carer for the bulk of his life – has the capacity and the attitude to provide for him. These are not really the issue at this time.

9. In relation to s 60CC(3)(j) & (k), happily this is a case that does not involve questions of family violence. But it is a case where this child is caught in the middle of a very awkward and difficult situation.

Conclusion:

1. It may be that a week-about arrangement will ultimately be the final order of the court.  It may be that one or other parent will end up as X’s primary carer. 

2. In the interim, the court is doing the best I can on the limited evidence I have and being unable to make findings to the extent there are conflicting facts. When I weigh up all of the considerations in section 60CC, the safest course is to put in place an order for X to live with the father and spend substantial and significant time with the mother during school terms. I consider such an order to be in X’s best interests and consistent with section 65DAA given that I do not consider equal time to be in X’s best interests because of the risk of his relationship with the mother breaking down in that event.

3. It follows, then, that as the mother wants the time with X to end on a Sunday, that I should make the orders set out at the commencement of these reasons.

4. In relation to the injunction restraining the father from moving away with the child, his current position is that he has no intention of moving, but this may change in the future.  For now, as he does not propose to move, such an injunction seems unnecessary.  But in order to keep the peace between these parties and to avoid any difficulties with trust and people becoming anxious about what may or may not happen or “jumping at shadows”, the court considers that it does no harm to make such an order, and it may, potentially, do some good.  Although my inclination is that it is not strictly necessary, I will make that order as well.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Betts

Date:  17 December 2019