Radclyffe & Rae
[2021] FedCFamC1F 175
•11 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Radclyffe & Rae [2021] FedCFamC1F 175
File number(s): SYC 4661 of 2021 Judgment of: MCGUIRE J Date of judgment: 11 November 2021 Catchwords: FAMILY LAW – CHLDREN – Interim Parenting – Where father sought a Review of a Judicial Senior Registrar’s Decision – Orders that father’s time with the children on Tuesdays and Thursdays made by Judicial Senior Registrar generally be maintained – Orders made that the father spend time with the children each alternate weekend Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC and 60CA Cases cited: Goode & Goode (2006) FLC 93-286.
Eaby & Speelman (2015) FLC 93-645
SS v AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 58 Date of hearing: 29 October 2021 Place: Hobart Counsel for the Applicant: Ms Lawson Solicitor for the Applicant: Tiyce & Lawyers Counsel for the Respondent: Ms Vohra Solicitor for the Respondent: Pearson Emerson Family Law ORDERS
SYC 4661 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RADCLYFFE
Applicant
AND: MS RAE
Respondent
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
11 NOVEMBER 2021
THE COURT ORDERS THAT UNTIL FURTHER ORDER:
1.The children X born … 2013 (aged eight years) and Y born … 2019 (aged two years) (‘the children') live with the mother, Ms Rae.
2.The children spend time with the father, Mr Radclyffe:
(a)each Tuesday and each Thursday from 9.00am until 3:30pm, but if a school day then with X from the conclusion of school until 8.00pm with the father to collect the children from the mother or X from her school as appropriate and return the children to the mother’s home at the appropriate times.
(b)each alternate weekend:
(i)for X from the conclusion of school with the father to collect her from school (or 4:30pm if not a school day) until Monday at the commencement of school with the father to deliver X to her school or 9.00am if not a school day with the father to collect X from and return X to the Mother’s home; and
(ii)for Y from 4:30pm on Friday until 9.00am on Monday with the father to collect Y from and return Y to the mother's home.
3.Such variations of the above or further time as agreed between the parties from time to time.
4.Otherwise Orders 4–16 of the Orders of Senior Judicial Registrar McGrath made 6 September 2021 are restored.
5.That pursuant to s 62B of the Family Law Act 1975 (Cth) information about counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
6.That pursuant to section 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
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 of Radclyffe & Rae has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGuire J
APPLICATION
This is an Application for interim parenting orders by way of a Review from orders made on 6 September 2021, amended pursuant to the slip rules on 13 September 2021, by Senior Judicial Registrar McGrath in respect of two children namely X born in 2013 (aged eight years) and Y born in 2019 (aged two years).
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provide that the hearing before me proceed as a hearing de novo.
There appear to be substantive parenting and financial issues between the parties but I have before me consideration only of the children's interim time with the father.
SJR McGrath’s orders of 6 September 2021 provide inter-alia for the children to live with the mother and address issues of changeover and communication for the children with the parents. An order was made for exclusive occupation of the former matrimonial home together with the appointment of a Chapter 15 Expert. The orders did not, however, apparently address time for X and Y with the father and hence the slip rule order made 13 September 2021. Perversely that later order provides at [1] ‘All prior parenting orders be discharged'. This, however, is a hearing de novo and I am able to address this anomaly.
SJR McGrath’s orders of 13 September 2021 provide:
2. The child, Y born … 2019 (‘Y') spend time with the Father each Tuesday and Thursday from 9.00am until 3.30pm.
3.The child, X born … 2013 (‘X’) spend time with the Father each Tuesday and Thursday from after school, or 3.00pm if not a school day or X is remote learning, until 8.00pm.
4. Both children spend time with the Father on Saturday from 8.00am until 6.00pm Sunday, each alternate weekend.
The father now proposes orders for the children to live with him as follows:
(i)From 8.00am on Wednesday to 9:30am Friday in each alternate week commencing 3 November 2021;
(ii)From 8.00am Wednesday to 6.00pm Thursday in each alternative week commencing 10 November 2021; and
(iii)From 8.00am on Friday till 9:30am on Monday in each alternate week commencing 12 November 2021.
I calculate the father's proposal to involve the children spending six nights per fortnight with him and eight nights with the mother.
The father further proposes that the children spend alternating periods of four nights between he and the mother from the 1 January 2021 for the duration of the forthcoming summer school holidays together with alternating periods of six nights in the term school holidays.
The mother effectively seeks dismissal of the Review Application and confirmation of SJR McGrath’s orders although, I expect, with a confirmation of the children living in the interim with her.
RELEVANT BACKGROUND
The father is 59 years of age and the mother is 50 years.
The father says that the parties commenced cohabitation in 1998 whereas the mother says cohabitation commenced in late 1996. The father says that they were married on … 2003 whereas the mother says that the marriage was on … 2003. They are able to agree the dates of birth of the X and Y.
The parties separated under the one roof in April 2021 but not surprisingly they do not agree the exact date.
The father says that on 18 May 2021 the mother informed X of her parents’ separation.
From about 18 June 2021 and during the Covid-19 lockdown the mother and the children effectively took up residence in City B only recently returning. The evidence is that the father was, however, a frequent visitor to City B during this period and his affidavit material catalogues frequent time for the children with him.
The father commenced proceedings on 24 June 2021.
Interim parenting issues came before Senior Judicial Registrar McGrath for hearing on 5 August 2021 with Orders and Reasons being handed down on 6 September 2021 and then amended under the slip rule by order of 13 September 2021.
The mother and the children have returned to the former matrimonial home at Suburb C for which she has the benefit of an interim order for exclusive occupation. The father has taken a six month lease on a furnished property at Suburb D.
The father is a former employee of E Company but was made redundant from that role in April 2019. He has since taken on less permanent consulting roles with G Company. In the mother's financial statement she describes herself as “homemaker/retired salesperson”. The father's material describes the mother as a “marketer”.
X is of the primary school age whereas Y is just two years of age.
THE EVIDENCE
Both parties have filed affidavits and sworn financial statements.
The father relies on two affidavits deposed by Mr F on 25 October and 28 October 2021. Mr F is a long-term friend of each of the parents and is married to the mother's cousin. He is a legal practitioner. His affidavits are generally supportive of the father's claims of being an active and competent parent.
The father also relies on the affidavit or Mr H. He is a digital forensic expert certified in computer and mobile phone forensics. His affidavit was sworn on 29 July 2021. He deposes to having inspected the father's telephones and other devices and deposes to finding no pornographic content in circumstances where the mother argues (and the father makes some admissions) of an ongoing interest in pornography.
The mother relies on affidavit by her own mother, Ms J. Her affidavit is sworn 19 October 2021 and is generally supportive of her daughter’s material. Specifically she references X’s anxiety.
The father's case
The father argues that he has been active in the parenting of the children both before and after separation. He deposes to frequent direct contact with the children even during their sabbatical in City B and specifically spending time on at least three or four days in each week including often from 9.00am until 6.00pm.
The father deposes that the mother has previously delegated block and overnight times for him to care for the children and hence any argument as to his capacity is impeached.
The father says that the parties live geographically proximate such that his proposed orders would allow involvement by both parents in X’s schooling.
The father says at [97] of his affidavit filed 22 October 2021 that, despite the tenor of the mothers material, they have, in fact, been able to engage, cooperate and be flexible in respect of the children’s living and parenting arrangements.
The father denies that his electronic communications with X have been excessive as alleged by the mother but notes, in any event, that a large majority of those communications have been initiated by X with the inference available to the Court that X’s anxieties (which are admitted) may be caused, at least in part, by the separation of her parents and the removal of her father's immediate proximity.
The father denies that he has any interest in pornography places the children at any risk in his care and argues that this is not a “risk” case and, as such, his proposed orders provide a return to the high level of frequency in relation to the time enjoyed by the children with him prior to separation and following separation including the children's time in City B.
The father argues that his proposal might provide less disruption for the children by reason of the changeovers than does the mother’s proposal.
In summary, the father argues that his proposed orders can give the children the benefit contemplated at s 60CC (2)(a) of the Act of continuing the pre-existing close relationship with the each of the parents thereby establishing meaningful relationships where the children are still young and such a consideration is a primary one. He says that the parents have a demonstrated history of cooperative parenting and despite their personal animosities are not hindered in their parenting by logistical issues such as geographical distance or employment.
The mother's case
The mother argues that her proposals essentially continue the status quo of she being the delegated primary parent of these two young children in circumstances where the father, without criticism, worked long hours as a manager.
The mother says that her proposal maintains a high level of frequency for X and Y in their relationship with the father whilst giving them the stability of a home base in their familiar environment of the former matrimonial home.
The mother says that X suffers anxieties manifested in the numerous reported statements in the mother's affidavit from X and in respect of her relationship with her father. By agreement between the parents, X has been receiving counselling assistance but these issues are not yet resolved. The mother argues that the children have endured the separation of their parents and other disruptions and should be allowed to resettle in their home as a primary place of residence.
Further, the mother argues that the Court should have concern in respect of the father's manipulation of X and involvement of her in their adult dispute including overuse of communication devices thereby causing X “emotional and psychological harm around the parties’ separation”.
The mother argues that the father's excessive use of pornography and gambling habits are not indicative of a stable personal lifestyle conducive to the equal care of such young children.
In summary, the mother argues that the father's proposal does not, as he claims, “replicate the situation prior to separation” but would give further disruption to the lives of these young children. She also says that the party's own relationship is conflictual as evidenced by the affidavits of each of them and therefore not conducive to an ‘equal time' or 'substantial and significant time' relationship for the children with the father.
THE RELEVANT LAW
The orders that I am asked to make are parenting orders and I am therefore to the have the best interests of X and Y as my paramount consideration pursuant to s 60CA of the Family Law Act 1975 (Cth) (‘the Act'). In determining those best interests I am obliged to reference the proposals of the parties and the probative evidence, such as it is at an interim hearing, to the many mandatory considerations set out in s 60CC(2) and (3) of the Act against the background of the Objects and Principles of the legislation at s 60B which provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The primary s 60CC factors at subsection (2) are twofold being, firstly, where the Court is to make orders which benefit children having meaningful relationships with both of their parents and, secondly, at (b) where necessary, to make orders which protect children from the family violence or abuse within the broad meanings of those terms in the Act including psychological or emotional risk of abuse.
Not unusually in interim matters such as this, the Court is required to balance those primary considerations where here the father emphasises s 60CC (2)(a) in arguing to maximise the quantity of the children's time with him where they are young and to do so will benefit the establishment and maintenance of their relationship with him. The mother, however, emphasises s 60CC (2)(b) where she says that the children are at risk of emotional or psychological harm from the father and most prominently manifested in X's anxieties and where the mother says that the father's propensity for viewing pornography and gambling add to those risks.
It should be emphasised that an interim hearing is a significantly different creature to the final trial. Interim applications are brought on quickly and usually without the benefit of the full forensic investigation and the assistance that this Court provides parents to assist them resolve their disputes. Parents provide affidavits and make assertions of fact and allegations which are often met with blanket denials. Importantly, the evidence is not tested by cross-examination and the process is very much a truncated one. As a consequence, it is generally acknowledged that Courts at this stage have difficulty in making findings of disputed fact and credit where the hearing is conducted on the face of the affidavits and by the submissions but without the valuable testing by cross-examination. Nevertheless, and despite these limitations, the Court remains obliged to follow an intellectual and statutory course of consideration as confirmed in the often cited decision of the Full Court of the Family Court in Goode & Goode[1] where their Honours observed:
[68]… the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
[1] (2006) FLC 93-286.
However, another Full Court in the Eaby & Speelman[2] elaborated on the statement in Goode:
[18]… that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
[2] (2015) FLC 93-654.
Similarly, the majority in SS v AH[3] had noted:
[100]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.
[3] [2010] FamCAFC 13.
CONSIDERATION AND FINDINGS
Not unusually at this early stage in their separation, these parents are mutually antagonistic, suspicious and accusatory where they are each are attempting to establish and consolidate themselves tactically in proceedings in these courts involving parenting matters for their young children and also financial settlement.
The evidence, albeit untested, satisfies me on the balance of probabilities that these young children have had high frequency of contact with each of their parents both prior to and since separation and where notably the father both consented to the temporary move of the mother and the children to City B, but also made considerable effort himself to maintain direct contact with his children.
The father therefore argues that both children have established and close relationships with him but that given their ages it is important to maintain that high frequency of contact. I agree. However, in my view the proposals of each of the parties serve to maintain that high-frequency and contribute to the meaningful relationship that these children currently enjoy with each of the parents.
The mother argues that the children are at emotional risk from the father. She says that he has a propensity for gambling and viewing pornography and that this poses a risk to the children. Whilst making some admissions, the father claims that there is no manifest risk to his children. I am unable to make any findings in this regard until the evidence is tested but note that the mother has previously left the children in care of the father which gives some weight to the father's argument.
The children are both young at eight and two years of age and hence they are unlikely to be able to objectively rationalise their own views and preferences as to their living and parenting arrangements. Both parents, do however, reference statements made by X. The mother says that X shows a reluctance at times to go to the father. The father says the fact of X’s significant SMS contact with him, initiated by the child herself, is evidence of her preferences to maintain a high frequency of contact with him. What is known is that these children are enduring the disruptions caused to them by the separation of their parents and each of these parents is likely to selectively and opportunistically take any statement made by the child as supportive of their case.
Whilst broadly challenging the capacity of the father, the mother's case is based on providing routine and a stable home base in the former matrimonial home for the children. I am unable to find that the father is other than a capable parent where there is evidence that he has, despite his career, been an involved parent. It is equally clear, however, that there was an evolution of roles in the family unit prior to separation where the mother assumed a greater day-to-day responsibility for the care of the children. She remains in the former matrimonial home and this provides a form of stability and routine for X and Y.
By reason of the orders sought by the father, he does not impeach the capacity of the mother to care for the children although he argues that her objective insight into their need to have a relationship with him is compromised by the order she seeks.
It is clear that X is manifesting some negative emotional or psychological response to her parents’ separation. To their credit, the parents have arranged some therapeutic assistance for X. I have no evidence as to the success or likely duration of that counselling. On the face of the documents, however, the mother claims that X is manifesting a negative emotional reaction to the father and to spending time with him. The father says that X (and Y) is comfortable and happy in his care and suggests the source of X's difficulties rest with the mother. This remains to be resolved.
These young children have recently endured substantial disruption and change in their lives. Their parents have separated. They have endured Covid-19 and the ramifications on X's early years of schooling. They have moved for a period from Sydney to City B and returned. The father has left the family home and unit. As such, it is generally accepted by the experts assisting these Courts that children enduring such difficulties benefit from whatever stability and routine can be provided for them but, at the same time, also benefiting from a high frequency of direct contact with both their parents. This is a delicate balancing exercise.
The father proposes orders which would have the children living with him six nights per fortnight albeit not in one block. The mother's proposal has the children spending time with the father on six separate days per fortnight but only overnight on one Saturday each fortnight. Not unusually in such matters where the proceedings are in their early days, there is a high level of animosity, and the parties are keen to place themselves tactically, the mother here takes a more conservative approach in respect of the children's relationship with their father whereas the father takes a more adventurous position.
It is reasonable to expect that X, at least, is understanding of and suffering the separation of her parents. Some form of routine and stability is important for the children dealing with the obvious stressors. Where they have an established relationship with both of their parents, the ambition should be to maintain those relationships and assist them to flourish despite the changes in the nature of the relationships.
It is generally accepted that regimes of children involving equal time or 'substantial and significant time' with each parent requires a relatively high degree of parental communication, cooperation, trust and respect. In the early throes of their separation, these parents have not yet achieved those traits. Consequently, I am of the view, particularly given their young ages, that these children will benefit from having one stable home base and in circumstances, both recently and prior to separation, that should be with their mother in what is the former matrimonial home and an environment familiar to the children.
X is in the earlier years of her schooling and this is an important time for her development both academically and socially. Again, a stable home base is therefore important and particularly so where this child is already manifesting emotional reactions to her parents’ separation. Consequently, the changes proposed by the father in mid-week will likely present some difficulties for X but where I make this finding without negative comment as to the father's skills and commitment.
Since separation the mother has on occasion left the children in the care of the father for up to three consecutive nights. There are no geographical limitations and, as mentioned above, the father has demonstrated a commitment to the children. He has established himself in accommodation. The evidence is that his employment allows some flexibility. Consequently, I am of the view that the children's best interests are served by both providing the stability of a home base with the mother but giving the children the opportunity to settle into the father's home in circumstances where he can also have some involvement with X's education. This most appropriately occurs over a weekend and again noting that the father has previously cared for the children for three consecutive nights. I will order that the children live with the mother but spend time with the father each second weekend from Friday after school until Monday at the commencement of school or 9.00am in the case of the Y. I will generally maintain the orders for Tuesday and Thursday time with made by the Senior Judicial Registrar, but see no reason why X should not spend time from 9.00am, as does Y, with the Father should she not be at school but if so then the time on those days should finish at an earlier time to accommodate Y’s bed time at just two years old. Should the parents themselves wish to vary these orders to accommodate any discrete differences in the arrangements for each child then these orders will allow them to do so.
I note that the parties are to attend interviews for a family report with the Court. I will order that the matter be listed before a judicial registrar in Sydney for further directions.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 11 November 2021
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