Pinto & Beringer
[2020] FCCA 1347
•29 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PINTO & BERINGER & ANOR | [2020] FCCA 1347 |
| Catchwords: FAMILY LAW – Interim parenting – orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA (3), 65D, 67U, 67V |
| Cases cited: Goode & Goode (2006) FLC 93-286 |
| Applicant: | MS PINTO |
| First Respondent: | MR BERINGER |
| Second Respondent: | MS RAVENNA |
| File Number: | PAC 5106 of 2019 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 15 May 2020 |
| Date of Last Submission: | 15 May 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 29 May 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Matter - Rafton Family Lawyers |
| Solicitors for the First Respondent: | Ms Lam - Gonzalez & Co |
| Second Respondent | There was no appearance by the Second Respondent |
| Solicitors for the Independent Children’s Lawyer | Mr Holmes - Holmes Donnelly & Co Solicitors |
ORDERS PENDING FURTHER ORDER
The Mother’s Application in a Case filed 9 March 2020 is dismissed.
The Father and the Mother are restrained from discussing these proceedings with the Child.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by Mach 2021.
The Family Report shall deal with the following matters:
(a)Any views expressed by the child and any factors relevant to the weight to be attached to those views, provided that the child shall not be required to express a view in relation to any matter.
(b)The nature of the child’s relationships with each of the child’s parents and other persons (including any grandparent or other relative of the child);
(c)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of the parents: or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom the child has been living.
(d)The capacity of each parent, or another person (including any grandparent or other relative of the child), to provide for the child’s needs, including emotional and intellectual needs.
(e)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the report writer thinks are relevant to opinions expressed in the report.
(f)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
The parties shall attend all appointments with the Family Consultant and shall ensure the subject child attend all appointments with the Family Consultant, as requested by the Family Consultant.
The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.
The proceedings are adjourned to a date to be advised in March 2021 following release of the family report.
IT IS NOTED that publication of this judgment under the pseudonym Pinto & Beringer & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5106 of 2019
| MS PINTO |
Applicant
And
| MR BERINGER |
First Respondent
And
MS RAVENNA
Second Respondent
REASONS FOR JUDGMENT
This interim hearing related to the child X born 2013. She is now aged seven years.
On 12 August 2016, final parenting orders were made in this court, inter alia, that the father have sole parental responsibility for the child; the child live with the father; that the child spend certain time with the maternal grandmother; the child spend time with the mother at times agreed between the mother and the maternal grandmother and failing agreement during the daytime on a certain basis (initially on Saturdays and then alternate Saturdays).
There is no order within the above final parenting orders relating to relocation of the child’s residence, nor any order that the child attend a particular school.
On 18 December 2019, the mother having commenced fresh parenting proceedings on 17 October 2019, by consent, interim parenting orders were made suspending certain orders of the above final parenting orders (in particular the time-with orders between the child and the maternal grandmother and mother, but not the father’s sole parental responsibility order); that the child spend time with the mother each alternate weekend from Friday 3 PM until Sunday at 3 PM, together with half school holidays, telephone contact, and on other special occasions; and that the maternal grandmother spent time with the child during times of the mother is spending time with the child.
The maternal grandmother has not participated in these proceedings to date.
Proposals
The mother, in her Application a Case filed 9 March 2020 sought interim parenting orders as follows:
a)that the father be injuncted and restrained from relocating out of the Sydney Metropolitan area with the child
b)In the event the father relocates or has relocated with the child, a recovery order be issued for the father to return to the Sydney Metropolitan area and to comply with interim orders made until such time the further interim orders or final orders are made.
The father, sought dismissal of the above proposed orders of the mother.
The ICL sought dismissal of the mother’s proposed orders in her Application in a Case. He submitted that the focus ought be on preserving the time between the parties, pending the ultimate determination of the mother’s application for reversal of the final parenting orders of 2016 which placed the child into the care of the father, with sole parental responsibility. At the interim hearing, the ICL made an oral application for an interim order that both parents be restrained from discussing the proceedings with the child.
Material relied upon
The mother relied upon the following documents:
a)her Case Outline
b)her Application in a Case filed 9 March 2020
c)her affidavit filed 9 March 2020
d)the Child Inclusive Conference memorandum dated 14 May 2020
The father relied upon the following documents:
a)his Case Outline
b)his Response to Application in a Case filed 16 March 2020
c)his affidavits filed 16 March 2020 and 16 December 2019
The ICL relied upon his case outline.
Agreed facts unless otherwise stated
The mother is 28 years of age. The father is aged 27 years.
In the mothers affidavit she describes her usual occupation as home duties.
In about mid-February 2020 the mother asserts that the father informed her that he would be locating the child’s residence to Area B.
The father asserts that 1 March 2020 he moved with the child to the Suburb C area. He asserts that his lease in that area commenced on 2 March 2020, and he had signed a six month lease. He asserts he pay $340 per week rent, and that he has paid a bond of $1400 and two weeks in advance for the rent. He asserts that he has enrolled the child at the Suburb C public school.
Prior to the father’s move to Area B with the child, he was residing with the child at Town D. The mother resides in Suburb E. The drive from the mother’s residence at Suburb E to the father’s residence at Town D was about 20 minutes. The mother asserts that the drive from her residence at Suburb E to the father’s new residence at Suburb C is about one hour 43 minutes.
The mother asserts that since the interim orders of 18 December 2019, and up until the father’s relocation with the child, the time with orders have been facilitated by the parties.
The mother asserts that she has not agreed with the father’s relocation with the child to Area B.
The paternal grandmother resides in Suburb C and has for many years.
The mother asserts of the father’s rent when he was living at Town D was $350 per week.
The mother asserts her “understanding” that it is more difficult to obtain work in Suburb C, especially in labour, which is the field of work that the father has worked in previously.
The mother asserts that the child was enrolled in Town D Public School since kindergarten.
The mother asserts that when the child came to spend time with the mother just before the father’s move, the child had told her that she did not want to move.
The mother asserts that she does not wish for the child to relocate to Suburb C because she believes it will significantly limit and disrupt time she will be able to spend with the child and it will make it difficult for her to maintain a meaningful relationship with her.
The mother asserts that the father has suggested that the mother drive to Suburb F or Suburb G for changeover, both of which the mother asserts are 10 – 15 minutes above the usual 15 – 20 minute drive the mother has made to the father’s house once a fortnight. The mother asserts that what is most concerning to her is that the child will have to be sat in a car for 1.5 hours longer than she previously had to be, and the mother believes that this will begin to take a toll on her and tire her out and affect her ability to have a good time with the mother.
The mother has a child from another relationship being Z aged four years.
The parties separated, according to the father’s assertion, in April 2013.
After the separation, the father asserts there was a ADV oh made against him for the protection of the mother, for 12 months. The father asserts that the mother commenced living with the maternal grandmother after the separation.
As at 16 December 2019 there was a current ADVO in place listing the mother as the protected person and the father as the defendant. The father asserts that this came about after he was drinking one night in April 2019 when the child was in the care of the mother. He asserts that he sent the mother a series of text messages, video and photos were inappropriate. He asserts that he deeply regrets his actions from this night. He asserts the ADVO was made on 30 April 2019 for a period of two years. He asserts that the ADVO does not prevent him having contact with the mother.
In the father’s affidavit filed 16 December 2019, he asserts that he is currently not working. He asserts he does not receive any child support from the mother. He asserts that in the last three years he has worked for about 1.5 of those years as he did not have a license for the first year. He asserts he is currently actively looking for work. The father asserts that an arrangement that the child spend time with the mother every second weekend and half the school holiday periods has been occurring for at least the last year.
In the father’s affidavit filed 16 March 2020, he asserts that since moving to Suburb C he has ensure that the child has spent time with the mother as per the current orders dated 18 December 2019. He asserts that he will continue to ensure that the child spends time with the mother as per those orders. He asserts that he does not want the move to affect the child’s time with the mother.
The father asserts that he made the decision to move to the Suburb C area for a few reasons including issues in the Town D area, having family and friends support in Suburb C and work opportunities in the area.
The father asserts that the paternal grandmother has lived in the Suburb C area for at least 10 years and since about March 2018 he has attended almost every second weekend to spend time with his family. He asserts that during these visits he stayed at the paternal mother’s home with the child. The mother asserts her understanding to the contrary.
The father asserts the child is very close with his family members. He asserts that the paternal grandmother has two of his siblings living with her, being a young man aged 18 years and H aged 11 years. The father asserts that the child and H are very close and they attend the same school.
The father asserts that since frequently attending Suburb C in the last two years the child has made a lot of friends with his family member’s neighbour’s children.
The father asserts that he has received an offer of work for casual work but for full-time hours. He asserts that during the times he will be working, the paternal grandmother and other family members are all able to assist with dropping the child off and collecting her in the afternoons if required. He asserts that the public school where the child attends now is about a minute drive from the father’s home.
The father asserts that he attempted to gain employment in the Town D area but was unable to find any suitable work. The father asserts that he has commenced a course to assist in gaining employment.
The father asserts that since relocating, he has had discussions with the mother about meeting at Suburb I which would make the mother’s drive about half an hour each way.
The father asserts that the travel time between his current residence and the mother’s home is about one hour and 35 minutes.
The father asserts in his last affidavit that he will ensure that he makes the child available to spend time with the mother as per the court orders in place. He asserts that he will ensure that whenever the child wants to speak with the mother the father will call her and allow them to talk without his interference. He asserts that some calls go for up to an hour.
A child inclusive conference was held on 14 May 2020.
Relevant legal principles
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed 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).
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. 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.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (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 section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
Section 67U of the Act provides that in proceedings for a recovery order, the court may, subject to section 67V, make such recovery order as it thinks proper.
Section 67V of the Act provides that in deciding whether to make a recovery order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
The Best Interests of the Children
Section 60CC Considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The child has a meaningful relationship with both parents and would benefit from a continuance of those relationships.
The father asserts that since moving to Suburb C he has ensured that the child has spent time with the mother as per the current orders dated 18 December 2019. He asserts that he will continue to ensure that the child spends such time with the mother. He asserts that he is prepared to conduct a changeover at Suburb I being a drive of about 30 minutes one way for the mother from Suburb E to Suburb I.
The mother asserts her significant concern that the child is spending about one hour 43 minutes (the father asserts the drivetime is about one hour and 35 minutes) travelling between the father’s residence and the mother’s residence each fortnightly Friday and Sunday. It is not without relevance that the child made no statements to the family consultant on 14 May 2020 in relation to the extent of car travel from the father’s residence on Area B to the mother’s residence, on a fortnightly basis.
Should the child continue to live with the father and reside with him in Suburb C, with the father facilitating the child’s time with the mother pursuant to the court’s interim orders of 18 December 2019, there is a significant prospect that the child’s meaningful relationship with the mother can be maintained.
Whilst the court recognises the family consultant’s comment (supported by the mother), in the context of the father’s relocation with the child to Area B, that the child being able to spend increased time with the mother and her stepsibling Z may provide her with the opportunity to maintain more meaningful relationships with them, on the material before the court, it is presently speculative as to whether prospectively it will be in the best interests of the child to spend increased time with the mother and thereby her stepsibling.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother’s allegations against the father relating to historical family violence (the father denies allegations that he was physically violent towards the mother), verbal abuse, drugs and alcohol, the father’s mental health, the current ADVO, emotional manipulation, and physical abuse and neglect (food) of the child, should be set against:
a)the mother commencing proceedings on 17 October 2019,
b)the consent interim parenting orders of 18 December 2019, and
c)the mother’s belated recovery order application filed 9 March 2020 (“for the father to return to the Sydney Metropolitan area and comply with the interim orders made until such time that further interim orders or final orders are made”).
d)the father’s assertions to the family consultant that he has been diagnosed with depression, anxiety and suffers from panic attacks and that he has received medical treatment for his mental health related difficulties (whilst the court acknowledges the significant concerns of the family consultant in relation to the father’s mental health).
It is not without significance, in the context of the above allegations of the mother, that the mother does not seek a recovery order such that the child is returned to live with the mother. Further, in this context of the above allegations of the mother, the court refers to the interim consent protective orders made on 18 December 2019 including orders 7, 8, 11, and 13.
On the material before the court, there will be no unacceptable risk of harm posed to the child in remaining living with the father at the father’s new residence at Suburb C.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The Court refers to the child’s statements to the family consultant. The court takes into account the child’s views, including wishing to live with the mother because she misses the mother and her stepsibling Z, but observes that the child is only seven years of age. At this interim stage, the court would not place significant weight upon the child’s views. In this context, the court observes importantly that the father asserts that he is facilitating, whilst living on Area B, the present interim orders that the child spend time with the mother. And again, it is speculative at this interim stage as to whether prospectively this court will order that the child spend increased time with the mother (in this context, for example, both parties, not just the mother, raise significant risk allegations against the other).
The court has not overlooked the child’s comments to the family consultant that since moving to Area B it has made her kind of sad that she had to leave neighbours, her grandfather and that the family she has in Area B are older and do not really play with her. Set against these comments of the child, are the father’s assertions that there are positive aspects of the child’s recent move to Area B.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The court refers to its discussion above under the meaningful relationship primary consideration. The father asserts the child has positive relationships with his extended family.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The father has had sole parental responsibility for the child since the 2016 parenting orders. Since those orders, it would appear that the parents have taken such opportunities.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The father asserts that he doesn’t receive any child support from the mother.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The court refers to its discussion above under the meaningful relationship primary consideration.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The court refers to its discussions above under the meaningful relationship primary consideration. Again the father asserts that he is facilitating the child spending time with the mother, since his move to Area B with the child, pursuant to the courts orders of 18 December 2019.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Not applicable
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Each parent would appear to have demonstrated appropriate responsibilities of parenthood in relation to the child.
(j) Any family violence involving the child or a member of the child's family
The court refers to its discussion above under the need to protect primary consideration
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter
The court refers to its discussion above under the need to protect primary consideration
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
These are interim proceedings. And the court refers to its discussion above under the meaningful relationship primary consideration
m) Any other fact or circumstance that the Court thinks is relevant
The father has had sole parental responsibly for the child since the court’s orders of August 2016. He was not required to seek agreement with the mother to move to Area B with the child, although he probably was required to consider whether the consent interim order of 18 December 2019 relating to the child spending time with the mother could be facilitated having moved to Area B with the child.
Again, the father asserts that since his move to Area B he has been facilitating the child spending time with the mother pursuant to the orders of 18 December 2019. This is on one view unsurprising as the apparent drive-time between the father’s new residence on Area B and the mother’s residence at Suburb E is some one hour 35 minutes to 1 hour 43 minutes. Accordingly, the mother’s submissions pointing to the father’s lack of evidentiary material indicating that his move to Area B had substance should be seen in this light. In any event, the father does assert that he has been offered employment on Area B and that he will be assisted in caring for the child (for example, drop-offs at school) by his extended family.
As discussed above under the need to protect primary consideration, there is no unacceptable risk of harm, at this interim stage, in the child remaining living with the father on Area B. The court refers to its discussion above under the need to protect primary consideration.
Further, it should be observed that the mother’s proposed recovery order, if made, would require the father to return to, not the south Town D area or nearby surrounding area, but to the Sydney Metropolitan area, which as the ICL submits, could be to a suburb a significant distance from Suburb E.
At the interim hearing the ICL made an oral application for an interim order that both parents be restrained from discussing the proceedings with the child. It will be in the best interests of the child to make such interim order proposed by the ICL particularly taking into account the child’s statements to the family consultant about being confused by the parents, with each party telling the child with which party she should live with.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the child to dismiss the mother’s Application in a Case filed 9 March 2020.
I certify that the preceding eighty one (81) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 29 May 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Procedural Fairness
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