Rhine and Malak

[2018] FamCA 406

FAMILY COURT OF AUSTRALIA

RHINE & MALAK [2018] FamCA 406

FAMILY LAW – CHILDREN – PARENTING – REVIEW OF REGISTRAR’S DECISION – effect of substantial delay upon proceedings – whether Mother’s partner poses a risk to the child – where limited evidence as to secondary considerations.

Family Law Act 1975 (Cth) ss 60CC, 60DA

Morgan & Miles (2007) FLC 93-343

APPLICANT: Ms Rhine

RESPONDENT: Mr Malak

FILE NUMBER: SYC 4560 of 2015

DATE DELIVERED: 1 June 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 17 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Othen

SOLICITOR FOR THE APPLICANT: Barry Nilsson Lawyers

COUNSEL FOR THE RESPONDENT: Mr Campton

SOLICITOR FOR THE RESPONDENT: Armstrong Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stidwill Solicitors

Orders

1. That all previous parenting orders be discharged.

Parental Responsibility

1. That Mr Malak (“the Father”) and Ms Rhine (“the Mother”) have equal shared parental responsibility for X (“the child”) born … 2011.

2. That each of the Mother and Father have the day to day parental responsibility for the child during such periods that he lives with or spends time with either of them.

Living Arrangements (during school term)

1. That the child shall live with the Mother from after school each alternate Thursday, until the beginning of school at 9.00am on the following Monday, and with the Father at all other times during school term.

2. That for the purpose of Order 4:

   (a)the Mother is to collect the child directly from school at 3pm on Thursday afternoon, and deliver the child directly to school on the following Monday morning.

   (b)If the child does not attend school for any reason (including illness) on the Thursday that the Mother is to collect the child in accordance with these Orders, the Father is to deliver the child to the Mother’s residence at 9am on Thursday morning (and provide the Mother with notice that the child is not attending school at the earliest opportunity and no later than 7am on Thursday).

   (c)If the child does not attend school for any reason (including illness but subject to order 5(d)) on the Monday that the Mother is to deliver the child to school in accordance with these Orders, the Mother will notify the Father by 7am on Monday that the child is not attending school, and will make the child available for collection from her residence between 3pm and 6pm on that day.

3. If there is a public holiday on any Monday that the child is living with the Mother, the Mother’s time with the child is to continue until 9am on Tuesday morning with Order 5(c) to apply to Tuesday instead of Monday.

4. That the Mother’s time with the child in accordance with Order 4 is to commence from the first Thursday following the commencement of each school term during odd numbered years, and from the second Thursday following the commencement of each school term in even numbered years.

Special Occasions

1. Notwithstanding any other order the child shall live with the Father as follows:

   (a)On Father’s Day in each year should that day fall on the Mother’s time with the child, with the Mother to deliver the child to the Father’s residence at 9.00am, and collect the child again at 4.30pm on Father’s Day;

   (b)From 3pm on Christmas Eve until 3pm on Christmas Day in the 2017 year and for that period in each alternate odd numbered year thereafter;

   (c)On Orthodox Easter Sunday, should the date fall during the Mother’s time with the child, the child shall spend time with the Father from 9am (with the Mother to deliver the child to the Father’s residence at 9am) and conclude at 9am on the next day (Monday) with the Father to deliver the child to school and the usual arrangements in accordance with Orders 4 and 5 of these Orders, noting that:

   (i)Should the Monday after Orthodox Easter Sunday be a public holiday, the Father is to deliver the child to the Mother’s residence at 9am, and order 5(d) shall apply with the Mother to deliver the child to school at 9am on the next day being Tuesday.

   (ii)Should Orthodox Easter Sunday fall on the same day as Australian Easter Sunday (non-Orthodox), the parent who spent time with the child on the morning of Easter Sunday will deliver the child to his other parent at 3pm on Easter Sunday and the child will spend time with that parent until 9am on Easter Monday (at which point the usual arrangements in accordance with these Orders shall apply).

2. Notwithstanding any other order, the child shall spend time with the Mother as follows:

   (a)On Mother’s Day in each year, should that day fall during the Father’s time with the child, with the Father to deliver the child to the Mothers residence at 9.00am, and collect the child again at 4.30pm on Mother’s Day;

   (b)From 3pm on Christmas Eve until 3pm on Christmas Day in the 2018 year and for that period in each alternate even numbered year thereafter; and

   (c)On Australian (non-Orthodox) Easter Sunday, should the date fall during the Father’s time with the child, the child shall spend time with the Mother from 9am (with the Father to deliver the child to the Mother’s residence at 9am) and conclude at 9am on the next day being Easter Monday, with the Mother to deliver the child to the Father’s residence at 9am on Easter Monday morning, and for that period in each year that Australian (non-Orthodox) Easter falls during the Father’s time.

3. In respect of the child’s birthday on 12 February, the child shall spend time with each of his parents as follows:

   (a)If it is a day that the child is attending school, the parent who did not spend time with the child on the morning of his birthday shall collect the child after school at 3pm and spend time with him on the night of his birthday, and return the child to school the following morning (whereupon the usual arrangements in accordance with these orders shall apply);

   (b)If it is a day that the child is not attending school, the parent who did not spend time with the child on the morning of his birthday shall collect the child from the other parent’s residence at 3pm and spend time with the child on the night of his birthday until 9am the following morning (whereupon the usual arrangements in accordance with these orders shall apply).

Mid Term School Holidays (Autumn, Winter and Spring Holidays)

1. During even numbered years, the child will spend time with the Father for the first half of all mid-term school holiday periods, and with the Mother for the second half of all mid-term school holiday periods during even numbered years.

2. During odd numbered years, the child will spend time with the Father for the second half of all school holiday periods, and with the Mother for the first half of all mid-term school holiday periods during odd numbered years.

3. That for the purposes of Orders 11 and 12:

   (a)the first half of the school holidays will begin from the conclusion of school, at 3pm (Friday) on the last day of the term, and conclude on the second Sunday of the school holidays at 9am, and the parent who is spending time with the child during the first half of the school holidays, will deliver the child to the other parent’s residence at 9am on the second Sunday.

   (b)the second half of the school holidays is to begin from 9am on the second Sunday of the school holidays, and will continue through to the beginning of the new school term at 9am, usually being on either a Monday or a Tuesday morning, with the parent the child was spending time with, to deliver the child to school that morning.

End of Year School Holidays (Summer)

1. During odd numbered years commencing in December 2017, the child is to live with the Father for the first ten (10) days of the school holidays, and each alternate ten (10) days thereafter through to the end of school holidays in January the following year, and with the Mother at all other times during the summer holiday period with the exception of orders 8(b) and 9(b) in relation to Christmas.

2. During even numbered years commencing in December 2018, the child is to live with the Mother for the first ten (10) days of the school holidays, and each alternate ten (10) days thereafter through to the end of school holidays in January the following year, and with the Father at all other times during the holiday period with the exception of orders 8(b) and 9(b) in relation to Christmas.

3. For the purposes of Orders 14 and 15:

   (a)the first ten (10) days of school holidays commences from the conclusion of school at 3pm on the last day of Term 4 at the school attended by the child and each 24 hour period thereafter will be counted as one (1) day. For example: Commencing at 3pm on 15 December, ten (10) days would conclude at 3pm on 25 December.

Education and Medical

1. That each party is hereby authorised to obtain from the child’s school all notices, letters, school reports and invitations, and to attend parent/teacher interviews or other activities to which parents are invited.

2. That each party is to provide the other party with a copy of any letters and invitations to events that have been delivered personally via the child, including any invitations for parties that fall on the other parties’ time with the child.

3. That each party is to provide the other party with the details of any medical appointment attended by the child, within 24 hours of the child attending the appointment.

4. That each party is to provide the other party with the details of any future medical appointments that have been made for the child at the time that the appointment is made, and to provide to the other parent copies of any correspondence or medical documents relating to those appointments.

5. That the parties notify each other of any medical emergencies relating to the child as soon as they occur, such as any visits to hospital for emergency treatment, or urgent medical attendances.

Communication

1. That the parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.

2. Except in the case of an emergency involving hospital or doctor visits, that the parties communicate via email in relation to subjects relating to the child, such as schooling, major health concerns, and extracurricular activities.

3. That each of the parties are hereby restrained from denigrating:

   (a)       The other party;

   (b)       Any member of their respective extended family; and

   (c)       Any partner of the other party.

4. That each of the parties are hereby restrained from:

   (a)Discussing any issues in dispute between the parties and any aspect of these proceedings to and/or in the presence of and/or within the hearing of the child;

   (b)Showing any documents relevant to these proceedings to the child.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rhine & Malak has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 4560  of 2015

Ms Rhine

Applicant

And

Mr Malak

Respondent

REASONS FOR JUDGMENT

Background

1. The parties to these proceedings are Ms Rhine, the Applicant Mother (“the Mother”), and Mr Malak, the Respondent Father (“the Father”). The proceedings relate to the parenting arrangements for the parties’ child, X (“the child”), born in 2011.

2. The proceedings came before the Court by means of an application for the review of a decision by the Registrar in relation to interim orders regarding the child.  Those Orders were made on 25 October 2017 and were significantly different to the previous arrangements by interim Orders.

3. The review was not reached on its first listing day (13 December 2017) and was adjourned, with the next available date being before me on 17 May 2018.  This has meant an unacceptable delay in bringing a review on the exercise of a delegated power which is delegable on the basis that it is subject to review by a judge.

4. This is one of those cases where the delay has the potential to alter the outcome and further, where despite the issue of supervision being the subject of review, the time has now been unsupervised for an extended period.

5. Orders were made in March 2016 that provided for the child to live with the Father, and to spend time with the Mother after school each Wednesday and, eventually, from Saturday morning until Sunday afternoon each alternate weekend. Provision was made for school holiday time.

6. The Mother was restrained from leaving the child unsupervised in the care of her partner, Ms B.

7. The 5 December 2016 Orders dealt with the appointment of, and provision of material to, a Single Expert, but did not significantly alter arrangements for time with the child.

8. The Single Expert’s report became available in August 2017.

9. The Orders made by the Registrar on 25 October 2017 in large part adopted the Mother’s application.  They meant that there was no longer a requirement for the Mother’s partner to be supervised, and that the Mother’s time was extended to being Thursday to Monday each alternate weekend.

10. By way of his Amended Application in a Case filed 15 May 2018, the Father seeks, in the interim, sole parental responsibility for the child, that the child should live with him and spend time with the mother during school terms on an alternate weekend from 3pm Friday until 5pm Sunday along with each Thursday after school until 6:30pm.  In general terms he proposes that the school holidays should be equally shared, that there should be telephone and FaceTime communication, a number of specific issues orders and injunctive orders.  Those injunctive orders are directed towards a number of matters, but in particular that he would not be left unsupervised in the care of the mother's partner Ms B or with another third-party.  The orders also provide for family therapy to take place and for orders in respect of the disclosure of material provided to the Single Expert. 

11. The mother seeks orders in accordance with her application in a case filed 17 October 2017, which are largely in accordance with the Orders made by the Registrar that provide generally for equal shared parental responsibility and for the child to spend time with the mother from each alternate Thursday until the commencement of school on Monday and with the father for the balance of the time.  Like the father she seeks an equal sharing of school holiday time for the term school holidays although a different arrangement for the Christmas holidays.  She too seeks some injunctive relief and for the child to attend play therapy.

Material relied upon:

1. The Applicant relied upon:

   a)Her affidavit filed on 17 October 2017; and

   b)Her affidavit filed 12 December 2017

2. The Respondent relied upon:

   a)His affidavit of 12 December 2017;

   b)Exhibit F1 – being the 5 December 2016 Orders

   c)Exhibit F2 – being a letter of 22 September 2017 of Armstrong Legal

3. The Independent Children’s Lawyer relied upon:

   a)ICL 1 - Material produced on subpoena from Quirky Kids (counselling for the child);

4. Also before the Court was exhibit C1, being the report from Dr C prepared as a Single Expert.

5. In relation to the arrangements for the child, the Court is faced with material that was current as at the time of the first listing of the review, and an absence of material since then.

6. The Father raises a number of issues in support of the orders that he seeks.  He pointed to the fact that he was the primary carer both before and after the date of separation.  It may be observed that on an interim basis there is no challenge to him continuing in a role with the primary care of the child.

7. He points to a number of other matters.  One is events surrounding a Halloween event at the school conducted two days after the interim proceedings before the Registrar.  This was a time that the child was due to spend with the Mother, yet the Father attended the school.  He produced some material to show that there was some consent for him to attend at one of the events at the school.  However, at an event earlier that day there was conflict between he and the Mother's partner.  I am not able to resolve who was the cause of the conflict on that particular occasion, nor who was at fault in the interchange.

8. He also gives evidence of information given to him by his neighbours in relation to the Mother and her partner on 31 October 2017.  That information concerns allegations relating to a previous relationship involving the Mother's partner which appears to have ended in an acrimonious matter.  The allegation was that the Mother's partner has had an adverse impact on the children in that relationship. 

9. Further allegation was made that the Mother's partner is a drug user and that the Mother and her partner are associating with other drug users and were observed at a party at some stage to be high on cocaine.  It is alleged that the people that they associate with attend at their home.  It is alleged that the Mother's partner participates not only in drug use but also in orgies.  The neighbours were not willing, it is said, to put these matters on affidavit.

10. The Father also points to the child being involved in the dispute by the Mother and her partner.  He says that the child has said to him a number of things since the interim orders were put in place by the Registrar indicating that he has been spoken to about the proceedings and that negative things have been said about the Father to him by the Mother and her partner.

11. The Father also says that the child has been tired and distressed following the commencement of the regime put in place by the Registrar.

12. His affidavit speaks to there being a high level of conflict between him and the Mother.

13. The Mother relies heavily upon the report released as prepared by the Single Expert.  She asserts that the child is showing anxiety and some developmental issues.  She alleges that the Father has breached the Orders (prior to the Orders made by the Registrar) in particular, by withholding the child from the Mother for the first day of school in 2017 and for portions of the school holidays at the end of terms one, two and three in 2017.  She also says that he was withheld on 22 July 2017 in order to attend a social function.

14. She too covers interactions between the parties so as to make it plain that there is severe conflict between them.

15. The nature of the proceedings before me are as a fresh consideration as to the appropriate orders to put in place in respect of the child.  In examining the material it is appropriate that it be approached in a circumspect manner, with the recognition that interim proceedings do not afford the proper testing of evidence so as to be able to resolve contentious matters.  The character of the proceedings means that where possible, the Court should look to factual matters that are not the subject of contest in order to found a decision, but that the inability to make factual findings does not mean that the Court should disregard the raising of matters concerning risk, despite the fact that the underlying facts supportive of such claims cannot be resolved.  Risks must be weighed in any event. 

Discussion

1. It may be observed that what is not contentious is that the child should live, at least during the interim period, primarily with his Father.  There is also no contest between the parties but that there should be overnight time with the Mother, although the conditions surrounding that overnight time are in dispute.  While the Mother relies heavily on the report by the Single Expert, that report forms a part of the contentious aspects of the proceedings.  In particular, the Father complains that the Single Expert discloses that she had contact with the Mother and was provided with information outside the bounds of what was provided for in the orders of Justice Loughnan.  He also asserts that the factual matters that she relied upon are also contentious, raising significant questions about the reliability of her conclusions.

1. It may be observed that the Single Expert’s recommendations do little to advance the matter on an interim basis, given the position of the parties.  Her recommendations include that the child should live with his Father (subject to conditions) and spend time with his mother four nights a fortnight and half the school holidays.  She recommends parental responsibility, play therapy and the parties working with a counsellor, Mr D.  She also recommends therapy for the Mother “to assist her to gain a healthy neutral stance toward her ex-husband." 

2. The question of parental responsibility is the subject of dispute. There is some contentious material on the question of whether or not there was family violence during the relationship. The material before me at present does not provide me with reasonable grounds to believe that, in accordance with s 61DA(2) of the Family Law Act 1975 (Cth) (“the Act”) to believe that a parent of the child or a person who lives with a parent of the child is engaged in abuse of the child or another child who at the time was a member of the parents family (or that other person's family) or has engaged in family violence. This means that the presumption of equal shared parental responsibility pursuant to s 61DA(1) is applicable. The presumption may of course be displaced on the basis that such an order is not in the child's best interests. It may be noted that there is a high degree of conflict between the parents which is often a matter that tells against the sharing of parental responsibility. It is also to be noted that the matters where shared responsibility in relation to parental responsibility requires the cooperation of the parties are reasonably limited. It must also be remembered that whatever order is made for parental responsibility, it is an order in the context of ongoing interim proceedings.

3. It may be expected that there will be a contest between the parties as to who the child lives with in the final proceedings.

4. Under those circumstances, despite the difficulties for the child in having parents with such communication difficulties and potential problems in reaching a common view as to long-term issues for the child, it is not appropriate that one parent or the other exercise sole parental responsibility given their divergent views.  The current Orders are in place temporarily, with potentially divergent results at the end of the proceedings, meaning that the child's best interests will be served if the parties are constrained in making long-term decisions by the need to have some form of cooperation.  An order will be made for equally shared parental responsibility pending resolution of the proceedings. 

5. This conclusion then leads to the application of a structured consideration[1] of what orders are to be in place for the child.  On either party's case equal time is not sought, but substantial and significant time for each parent is sought.  It may be inferred from that that substantial and significant time is reasonably practicable and provided that it is in the child's best interests such an order should be made.

   [1]Morgan & Miles (2007) FLC 93-343 per Boland J.

6. On the limited material before me the key of the s 60CC considerations the key matters involve the benefits of meaningful relationship and the questions of risk as posed by the primary considerations.  The material is not sufficient to identify views that should have weight placed upon them in a child as young as the child nor to deal with the other secondary considerations in anything but a cursory manner as they relate to the parties relative capacities to provide emotionally for the child, as they identify the nature of the relationship between the child and his parents and other important persons in his life, and as they demonstrate the parties compliance with the responsibilities of parenthood. 

7. One further factor does have significant sway and that is the practical difficulties caused by the various forms of orders insofar as they may call upon some degree of cooperation between the parties.  Cooperation does not seem to be practicable at present.

8. Given the positions of the parties each tacitly concedes the benefits of meaningful relationship with the other parent.  Each seeks orders that will support the enjoyment of that meaningful relationship. 

9. The key matter concerns one of risk and in particular whether or not the Mother's partner presents as a risk to the child.  The height of the material going to that risk relates to a conversation alleged to have occurred between the Father and his neighbours about the partner.  There are two aspects of this evidence.  One is the neighbours say that they have observed the Mother and her partner to be high on cocaine.  Clearly, if they were high on cocaine at the time that the child was in their care this would be a matter of concern in respect of risk.  Further, if they had been observed by the neighbours to be repeatedly using drugs, then that too would be a matter for concern as to the risk that they might pose the child.  Neither of those circumstances arose on the description given by the neighbours. 

10. The second matter is more remote and that is a generalised description of conduct on the part of the Mother's partner and of a previous relationship of the Mother's partner.  While they describe themselves as knowing the Mother's partner it is by no means clear the source of information relied upon to come to the conclusions that they have drawn.  That absence of identification of the source of the material means that it is material that should not be relied upon to assess that the Mother's partner poses such a risk.  It may of course be the case that further material is presented at trial which causes a different conclusion but the particular qualities of the material that are brought before the Court mean that, even on a conservative approach, it must be acknowledged that the evidence lacks sufficient cogency by which a risk can be identified. 

11. This deals with the question of whether or not there should be an injunction preventing the Mother from bringing the child into contact with her partner unless under supervision. 

12. The remaining question is one as to the degree of time that the child spends with his Mother.  The Father notes some transport difficulties, although at its height, the material seems to indicate a 45 minute period of travel for the child.  This does not seem to be a significant matter impacting upon the child's well-being.  Of considerable significance is having arrangements that mean that the parents will not need to cooperate with each other, or that such cooperation will be at the minimum.  This means that the arrangements for the child's time should be such that they do not need to come into contact with each other which points to handovers occurring to and from school.

13. A further significant matter is that while the Father outlined problems that the child suffered at the commencement of the regime imposed by the Registrar, that regime has been in place now for approximately seven months.  In the last five months there is no criticism levelled at that arrangement in terms of how it is that the child is coping with it.  Absent such criticism, and therefore in aid of consistency and stability in the care arrangements for the child, it is appropriate that the arrangements continue in general terms as provided for by the Registrar being from after school Thursday until the commencement of school Monday (or Tuesday if the Monday is a public holiday).  The parties are in large part in agreement about what should happen on school holidays. 

14. While the Father seeks a suite of other orders relating to, for example, injunctive relief, there is a minimal call for such relief to be given at this interim stage of the proceedings, despite the fact that these orders may be in place for some period of time. 

15. It will be appropriate to restrain the parties from denigrating each other, or from discussing or exposing the child to the proceedings.

16. I have largely adopted the form of orders used by the Registrar. The parties have operated in accordance with these Orders (it being conceded by the Mother that the Father has complied with the Orders) since they were made. This, in the history of alleged non-compliance, is a significant benefit of the current form of orders. The parties should not be required to come to grips with another set of mechanisms where the mechanisms cover in large part the matters necessary to deal with the pending hearing. A particular exception is as to therapeutic action as provided for in the Registrar’s Orders. The evidence in interim proceedings is not sufficient to allow the conclusion that such is appropriate.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 1 June 2018.

Associate:

Date:  1 June 2018