Philips & Erling

[2021] FamCA 640

FAMILY COURT OF AUSTRALIA

Philips & Erling [2021] FamCA 640

File number(s):

BRC 6640 of 2021

Judgment of:

HOGAN J

Date of judgment:

13 August 2021

Catchwords:

FAMILY LAW – PARENTING – Interim orders – Expedited trial.   

Legislation:

Family Law Act 1975 (Cth) s 60CC

Cases cited:

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Donnell & Dovey (2010) FLC 93-428; [2010] FamCAFC 15

Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346

Number of paragraphs:

27

Date of hearing:

13 August 2021

Place:

Brisbane

Counsel for the Applicants:

Ms Firth

Solicitor for the Applicants:

Daykin Family Law

Counsel for the First Respondent:

Ms Chesterman

Solicitor for the First Respondent:

Lander & Rogers

The Second Respondent:

No appearance

ORDERS

BRC 6640 of 2021

BETWEEN:

MS PHILIPS

First Applicant

MR PHILIPS

Second Applicant

AND:

MR ERLING

First Respondent

MS ERLING

Second Respondent

ORDER MADE BY:	HOGAN J
DATE OF ORDER:	13 AUGUST 2021

THE COURT ORDERS THAT:

1.The Child Inclusive Conference Memorandum to Court dated 12 August 2021 be marked as Exhibit 2 and provided to the legal representatives for the parties by email.

AND IT IS FURTHER ORDERED THAT

2.The matter is listed for final hearing for two (2) days before Justice Hogan commencing at 10.00 am on 13 October 2021, at the Family Court of Australia at Brisbane.

3.All parties attend the hearing in person.

4.The matter is listed for a Directions Hearings at 3.45 pm on 20 August 2021 before a Registrar for the making of Trial Directions and the legal representatives have leave to appear by telephone at the Directions Hearing.

5.The parties have leave of the Court to rely upon any affidavit material already filed in the proceedings.

APPOINTMENT OF INDEPENDENT CHILDREN’S LAWYER

6.Pursuant to s 68L(2), the interests of the child, X, born … 2009, be independently represented by a lawyer and it is requested that Legal Aid Queensland make arrangements as a matter of significant priority so as to secure that independent representation of the child’s interests.

7.Forthwith upon appointment, the person arranged by Legal Aid Queensland to be the Independent Children’s Lawyer file a Notice of Address for Service.

8.Within 48 hours of being notified of the details of the Independent Children’s Lawyer, each party provide to the independent children’s lawyer a copy of all documents relied upon by that party in the proceedings at that time.

9.Upon filing a Notice of Address for Service, the Independent Children’s Lawyer has leave to inspect and copy any and all material subpoenaed by the parties and released by the Court up to that date.

PREPARATION OF FAMILY REPORT

10.Pursuant to s11F of the Family Law Act 1975 (Cth) the Applicants attend at Court for an appointment with a Family Consultant as nominated by the Manager, Child Dispute Services, Brisbane Registry on a date and time to be advised for the purposes of the preparation of a family report pursuant to section 62G of the Family Law Act 1975 (Cth).

11.Pursuant to s11F of the Family Law Act 1975 (Cth) the Respondent father attend at Court for an appointment with a Family Consultant as nominated by the Manager, Child Dispute Services, Brisbane Registry on a date and time to be advised for the purposes of the preparation of a family report pursuant to section 62G of the Family Law Act 1975 (Cth).

12.Pursuant to s11F of the Family Law Act 1975 (Cth) the parties arrange for the child, X, born in 2009 to attend at Court for an appointment with a Family Consultant nominated by the Manager, Child Dispute Services, Brisbane Registry on a date and time to be advised for the purposes of the preparation of a family report pursuant to section 62G of the Family Law Act 1975 (Cth).

13.In order to facilitate the preparation of the report, the Family Consultant be provided with a copy of the following:

a.the Applicants’ Case Outline filed 30 July 2021; and

b.the First Respondent’s Case Outline filed 30 July 2021; and

c.the Applicants’ additional Outline of Submissions dated 6 August 2021 and 13 August 2021; and

d.the First Respondent’s additional outline of submissions dated 6 August 2021; and

e.a copy of Exhibits 1, 2 and 3.

14.The Family Consultant has leave to inspect all subpoenaed documents produced to the court.

REQUEST FOR DEPARTMENT INTERVENTION

15.Pursuant to s 91B of the Family Law Act 1975 (Cth) the Director-General, Department of Youth Justice and Multicultural Affairs is requested to intervene in the proceedings.

AND IT IS ORDERED BY WAY OF FURTHER INTERIM PARENTING ORDERS

16.Clauses 9, 10, 11 and 12 of the Orders made on 6 August 2021 are discharged.

17.The child, X born … 2009, shall live with the Respondent father as follows:

a.from 10.00 am to 3.00 pm each Saturday;  and

b.from 6.30 am until 4.00 pm on each Sunday, with the Respondent father to be responsible for the collection of the child from the Applicants at the start of this time and the return of the child to the Applicants at the conclusion of this time; and

c.from 3.00 pm until 6.30 pm each Monday, Tuesday, Wednesday and Friday.

18.The child, X born in 2009, shall live with the Applicants at all times other than when he is living with the Respondent father.

19.Save on Sundays:

a.where the child’s time with the Respondent father commences at 3.00 pm on a school day: the Respondent father shall be responsible for collecting the child from school at the commencement of the time together; and

b.the Applicants shall otherwise be responsible for delivering the child to the Respondent father at the commencement of their time together and collecting him from the Respondent father at the end of their time together.

20.The Applicants have responsibility for the child’s day to day care, welfare and development whilst he is living with them.

21.The Respondent father has responsibility for the child’s day to day care, welfare and development whilst he is living with him.

22.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

NOTATION

A.The Court respectfully requests that Legal Aid Queensland allocate an Independent Children’s Lawyer to the matter with priority given that the trial is listed for 13 and 14 October 2021 as a consequence of the Court’s determination that it requires significant expedition.

B.The Court respectfully requests that Legal Aid Queensland give urgent consideration to any application made by the Respondent father for the grant of Legal Aid to him in these proceedings noting: 

a.that he is the parent with whom the child the subject of the proceedings lived before he suffered a stroke in June 2020; and

b.the Respondent father was hospitalised as a consequence of that catastrophic health event until about January 2021; and

c.that the Respondent father has as a consequence of the stroke he suffered a number of functional and potentially a number of cognitive impairments which include complex visual deficits; and

d.that the consequences of the stroke that the Respondent father suffered in June 2020 makes it highly unlikely that he would be able to represent himself in the proceedings.

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 Philips & Erling has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

HOGAN J:

Oral application made on behalf of the Respondent father not to expedite the matter for final hearing

1. Noting those submissions, I still intend to afford the matter significant priority and expedite it.  I still intend to list it for final hearing, at this stage, for two days commencing on 13 October 2021 before myself. I do so cognisant of the legitimate concerns raised on behalf of the Respondent father, in particular, about how tight that timeframe is, and the difficulties that may well be associated with the timeframe in terms of the presentation of evidence. However, I have balanced those concerns – which, as I say, I regard as legitimate and reasonable – with my greater concerns about the potential impact on the child of being embroiled in, and the subject of, litigation about his future parenting arrangements that, absent an expedited hearing being afforded to this matter, would go on longer than October.

2. I am also cognisant of where he is in his educational pathway. My concern is that, to the best of my ability, it would be appropriate and in his best interests to afford this matter priority – very significant priority – so that he can end this year knowing, with some certainty, what his future care arrangements will be, taking into account that for him, on any assessment of the evidence, the last 18 months have been attended by very significant disruption; no doubt, worry as a consequence of his father suffering a stroke and being admitted to hospital for a not-insignificant period of time; being in the care during that period of the Applicants and then returning to his father’s care.

3. All of these things, clearly, can only have caused significant disruption for him and, I infer, some anxiety and upset, through the fault of no adult in these proceedings.

4. For those very short reasons, then, I decline to accept the submissions made on behalf of the Respondent father that I should not be persuaded to expedite the hearing – as I have said, it will, at this stage, be listed before me for those days in October.

   Competing applications for interim parenting orders

5. The competing applications for interim parenting orders in this proceeding fall to be determined in circumstances where I have today ordered that the matter be listed for final hearing on an expedited basis before myself, commencing on 13 October 2021. Consequently, by virtue of that listing, these parenting orders, then, in whatever form they are made, are intended to deal with only the time between today and the matter having its final hearing on the days of 13 and 14 October 2021.

6. In proceeding to determine the competing applications for the interim parenting orders, I must apply the principles outlined in Goode and Goode,[1] and Banks & Banks[2] (both decisions of the Full Court of this Court) – see them for their respective explanations of the manner in which a trial judge should approach and determine interim parenting applications.

   [1] (2006) FLC 93-286.

   [2] (2015) FLC 93-637.

7. In particular, whilst, of course, all of the legislative provisions that are enlivened by the interim parenting application are to be taken into account and applied, the primary considerations set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) are of particular importance. Of those two primary considerations, the second – namely, the imperative of protecting a child from harm – is to be accorded greater weight than the first of the primary considerations.

8. My consideration of the interim parenting orders to be made today also occurs in circumstances where the statutory framework imposed by the relevant sections of the Act is to be implemented in the way authority requires when one of the parties to the proceedings for parenting orders is not a parent of the child the subject of the proceedings: see, for example, the discussion in Donnell & Dovey.[3]

   [3] (2010) FLC 93-428.

9. I have specifically noted this so that there can be no doubt that I am fully cognisant of the manner in which the relevant matters prescribed by the Act must be considered in determining the interim parenting orders which in the circumstances established on the evidence before me at this stage and noting the nature of an interim hearing, are ultimately found to be in X’s best interests.

10. Reference to the relevant authorities is intended to demonstrate that I am in no doubt as to the manner in which, by virtue of those authorities which bind me, I am to approach my determination of those orders which are in X’s best interests on an interim basis.

11. I have been assisted in my determination by the thorough and helpful submissions provided on behalf of each of the parties by Counsel and the solicitors who appear on their behalf. I have had regard to the contents of each of those documents in arriving at my conclusions about the parenting orders which, on an interim basis, are in this particular child’s best interests. I have also, of course, taken into account the contents of the affidavits but, because of the interim nature of the proceeding at this stage, am unable – where there is difference as to factual assertions – to reach any firm conclusion about those.

12. I have taken into account the contents of the Respondent father’s most recent affidavit, filed this morning; and, in particular, those paragraphs where he sets out the assistance he receives and the contact he has made most recently with D Services. I have also taken into account the actions he has undertaken in having a safety switch inserted or applied in relation to the oven or hotplate in his premises so that those features, on his evidence, automatically turn off after no longer than 40 minutes. Each of those things and the steps that the Respondent father has taken in the week since the matter was last before me are certainly suggestive of an appreciation by him of the necessity of ensuring that his son receives the care that he requires.

13. Whilst those matters are, I think, very indicative of that complete appreciation by the Respondent father, the contents of Exhibit 1 remain of significant concern to the Court on an interim basis. The Respondent father’s steps seem to me to show the start of a process of addressing some of those issues reported in the document which I have marked as Exhibit 1 – but, even with those steps, I remain concerned about X’s safety and care with his father, particularly overnight.

14. I am not, on an interim basis, persuaded to make a finding that X will be at an unacceptable risk of harm in his father’s care. Rather, I prefer to approach my consideration of, and determination of, those orders which are in his best interests on an interim basis by attempting to appreciate the circumstances in which he finds himself and to ensure, as I am required as a matter of law to do, that I prioritise his safety and ensure that he is protected from harm.

15. It is for those reasons – and not because I have reached any particular finding adverse to the Respondent father – that I am not persuaded to make interim orders that would see X spend overnight time in the care of his father.

16. Whilst that may be a cautious approach, I consider that, in the circumstances and based on the evidence before me – in particular the contents of Exhibit 1 and Exhibit 3 – that this is the appropriate and proper course to take: it is the course which, on an interim basis for the next eight weeks, is the course which is in X’s best interests.

17. I do not intend, given that the matter will be back before me for final hearing in eight weeks’ time, to descend further into a discussion of the evidence before me.

18. Simply, I have deliberately recorded that, in assessing all of the relevant s 60CC considerations (as I am required to do), I have emphasised (as I am also required to do) the importance of protecting X from harm – I have approached my determination on that basis.

19. As I have said, the Respondent father’s evidence in his most recent affidavit certainly provides the basis for a conclusion that he has started to address those matters that were of concern and remain of concern as set out in Exhibit 1.

20. On an interim basis, then, having regard to the competing submissions made in writing and orally on behalf of the parties, and taking into account, as I have said, in particular, the contents of Exhibit 1 and Exhibit 3 before me, I consider that those parenting orders, on an interim basis, which are in X’s best interests will be orders that will see him live with his father at varying times during the week and live with the Applicants at all other times. 

21. In a moment I will outline the orders that I have in mind. 

22. These orders should also, of course, be regarded as having been made in circumstances where I also intend to appoint an Independent Children’s Lawyer; to order, pursuant to s 62G, a more thorough Family Report be prepared; and to have the matter back before me in eight weeks.

23. Whilst the contents of Exhibit 2 (the Child Inclusive Conference Memorandum to Court prepared under significant pressure) do not identify any immediate risks to X in his father’s care that would preclude X from spending substantial or overnight time with him – see paragraph 15 of the report – it is clear, I think, that, despite my order, the author of the same read only the Application, Response and supporting affidavits. There is nothing in the report to suggest that Mr C had regard to the contents of Exhibit 1 in arriving at the opinions he expressed in his report; I consider that the contents of Exhibit 1, supplementing in a sense chronologically the contents of Exhibit 3, to be of particular relevance to the decisions I have arrived at and the orders I will make on an interim basis.

24. In making these orders, I am cognisant of the transitions that X will be asked to make between the care of his father and the care of the Applicants. I have ultimately determined that it is in his best interests that he be required to undertake those transitions during the next eight week period because I have concluded that the benefit he is likely to gain from being able to spend time on an almost-daily basis with his father outweighs the imposition on him of being required to undertake those transitions.

25. I have also taken into account that, as I understand it, he has engaged in extracurricular activities on Monday and Tuesday afternoon and that his father has been involved in, and would seek to continue to be involved in, his participation in those. I have deliberately made no orders for him to spend time with his father on Thursday so as, simply, to give him a little respite from the requirement to transition between the care of his father and the Applicants.

26. There was no dispute as between the parties that it is in X’s best interests that he spend time with his father each Sunday starting at 6.30 am so as to facilitate his continued attendance at the B Church, where he has attended for some time. It is certainly completely in his best interests that he be afforded that opportunity to continue his engagement with that religious organisation – for the benefits not only of religious instruction but, as the Respondent father says in his affidavit material, for the cultural and social contacts that he is afforded through such engagement.

27. Those, then, are the orders I intend to make on an interim basis to deal with X’s care arrangements between now and 13 October 2021 when the matter will come before me for final hearing.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan.

Associate: 

Dated:       2 September 2021