Richards & Scott - [2011] FMCAfam 861

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RICHARDS & SCOTT & ANOR

[2011] FMCAfam 861

FAMILY LAW – Dispute between extended family – criticisms and allegations of neglect and untidiness – objection to and setting aside of subpoena material – notice of objection not filed in proceedings.

Family Law Act 1975, ss.4, 65E, 68F, 60CA, 60CC, 69ZT, 60B, 65C, 65DAC, 61DA, Division 12A
Evidence Act 1995, Division 1, ss.133, 55
Federal Magistrates Court Rules 2001, rr.15A.09, 15A.14

Kingley & Arndale (2008) FMCAfam 600
Barham & Packer [2001] FamCA 899
Hatton & The Attorney General of the Commonwealth (2000) FLC 93-038
Waind & Hill [1978] 1 NSWLR 372
Baker & Canada (Minister of Citizenship & Immigration) (1999) 2 S.C.R 817
S v Baloyi 2000(2) SA 425 (CC)
Glaser & The UK (2000) ECHR
Rice & Mille r(1993) FLC 92-415
Griffiths (1981) FLC 91-064
Cilentro (1980) FLC 90-847
Rainer & Rainer (1982) FLC 91-239
Cowling [1998] FamCA 19
Goode & Goode (2006) FLC 93-286
Marvel & Marvel [2010] FamCAFC 101
Minister of Immigration & Teoh (1995)183 CLR 273
Mabo v Queensland [1988] HCA 69
B & B and Minister of Immigration & Multicultural & Indigenous Affairs [2003] FamCA 621
Dylan & Dylan [2007] FamCA 842
Pitken & Hendry [2008] FamCA 186

Applicant:

MS RICHARDS

First Respondent:

MR SCOTT

Second Respondent:

MS SCOTT

File Number:

PAC 1955 of 2011

Judgment of:

Harman FM

Hearing date:

26 July 2011

Date of Last Submission:

26 July 2011

Delivered at:

Parramatta

Delivered on:

26 July 2011

ORDERS

Dismiss the interim application filed 12 May 2011.
Adjourn the matter to 7 November 2011 at 9.30am for further mention and directions
Discharge order 2 of the orders made 5 July 2011.
Set aside subpoenas addressed to Dr K, [B] Hospital and [N] Clinic and direct that the Exhibit Clerk return such documents as have been produced by each of those agencies together with covering letter indicating that the subpoena in response to which material was produced has been set aside
Reasons for this decision to be published.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 1955 of 2011

MS RICHARDS

Applicant

And

MR SCOTT

First Respondent

MS SCOTT

Second Respondent

REASONS FOR JUDGMENT

These proceedings, as with all applications that come before the Court involving disputes between extended family, represent a most sad and unhappy circumstance.
The proceedings are commenced by the paternal grandmother of a young child [X] born [in] 2007 and, accordingly, not yet four years of age.
The proceedings were commenced by application filed 4 May 2011 and naming as respondents each of [X]’s parents, Mr Scott and Ms Scott, who are married and continue to live together.
A Response has been filed to that application and the proceedings have, on one prior occasion, come before the Court and been adjourned.
A volume of material has been produced by the parties by way of affidavit and a limited number of tenders have occurred. I note at this point that the affidavit material filed in these proceedings is voluminous and exceeds well over 200 pages of text. Accordingly, the matter, whilst an interim application, has occupied the best part of a day being dealt with purely on the papers and submissions.

Background Facts

[X]’s parents are 47 and 33 years of age respectively. They had been together in a relationship for some little time and were married [in] 2004.
As I have indicated, both Ms Scott and Mr Scott continue to live together. They have had stresses in their relationship and more than many in the last few years, but they have, to date, managed to navigate those stresses and remain together.
After [X]’s birth, [X]’s mother Ms Scott had a period of maternity leave. There is some dispute between the parties whether that was 10 months or 12 months but in all probability it was 12 months from shortly prior to [X]’s birth to about the time or shortly before the time of his first birthday.
After returning to work on a part-time basis, working Monday to Wednesday and also working Thursdays but from home, Ms Scott had the assistance of Ms Richards, [X]’s paternal grandmother, to care for him on Mondays and Tuesdays. The evidence between the parties in that regard being that what occurred in [X]’s care and spending each Monday and Tuesday with his grandmother from about the age of one and until 13 December 2010 is one of the few agreed facts in the matter. However, the parties disagree as to how that commenced, how long the days initially were and there was some real dispute as to the circumstances in which that time came to a conclusion.
Certainly since 13 December 2010, [X] has not spent any time with or communicated with his grandmother other than for a brief period shortly before Christmas that year when a meeting occurred between Ms Richards and Ms Scott and [X] at a nursery so that he could see his grandmother and receive a Christmas gift.
The evidence of the parties focuses on a broad range of issues. Indeed, this is a case in which matters of relevance are perhaps to the fore.
When the proceedings were commenced an affidavit was filed by

Ms Richards which was somewhat substantial, being an affidavit of only some 10 pages of text, but voluminous annexures. All of those annexures depict a very attractive and apparently healthy young boy whom, over the period of the photographs, as is perhaps the nature of such photographs, is seen happy and smiling and interacting with many people including cousins and the various grown-ups in these proceedings.
However, following the filing of affidavit material in response by

Mr and Mrs Scott, together with an Affidavit by Ms Scott’s mother and an affidavit by a consulting psychiatrist, Dr K, who was the treating psychiatrist for Mr Scott, the affidavit material has grown exponentially.
Two affidavits in reply were filed by Ms Richards on 15 July 2011. The longest of those affidavits is some 40 pages of text and assemble a number of pages of annexures. I will return to those in due course. Suffice to say that:
a)these are interim proceedings which for a very lengthy time and are, as prescribed by the Full Court, largely conducted, as an effective use of the Courts resources, on the papers and submissions;
b)are generally to be contained, including reading time, submissions and judgment, within a two hour timeframe and it is with the luxury of time today, due to a number of other matters listed for hearing having settled, that this matter has been able to proceed at all, and;
c)the Federal Magistrates Court Rules 2001 do not provide any mechanism or any leave or entitlement for the filing of affidavit material in reply without the Court’s leave or prior order.
Notwithstanding that, no objection is raised to any of the material and I have read and had regard to all of it.
A volume of subpoena have also been issued in these proceedings and a number of tenders have been accepted and a number of tenders rejected from material, and I will deal with those matters shortly.
The parties are largely at odds regarding the nature of their relationship with each other leading up to events which occurred on 13 December 2010. It is suggested by Mr Scott that the relationship has always been somewhat strained but that there have been a number of attempts, in the circumstances as described in their material, stoic attempts, to ensure that [X] has had the benefit of being minded by extended family care rather than day care whilst Ms Scott has, without criticism of her whatsoever, returned to paid employment.
But it is suggested in the evidence of both Ms Scott and Mr Scott that the relationship has been strained from the beginning and has ultimately culminated in a most unfortunate event on 13 December 2010, following which the relationship between [X] and his grandmother has effectively terminated.
Ms Richards’s evidence is somewhat different and suggests that, indeed, whilst there have been some tensions and difficulties with the relationship, it has generally been good and certainly has never been plagued with the difficulties either between Ms Richards and her son or between Ms Richards and each of her son and Ms Scott that they describe.
The matters that are raised by Ms Scott can perhaps be categorised in two ways.
The first set of criticisms that are raised by Ms Scott are that she has been lectured, berated and generally had her parenting and particularly her house proudness questioned. That has been suggested to be on the basis that a number of issues with respect to her home have caused the home to have some degree of risk or lack of safety for [X] as a small, initially crawling but then toddler, child. This has included general complaints about untidiness, opened tins being left in rubbish bags hanging in a way that is accessible to [X], small objects being left about which might be picked up by [X] and put in his mouth and cause choking, pans being left on stoves with handles pointing outwards and general uncleanliness.
Indeed, the larger of the affidavits in reply to which I have already referred annexes some pages of photographs, about a dozen of them, depicting matters such as the plastic catch from the top of a bread bag being on the ground in the kitchen; a five-cent piece being on the floor; a handle protruding from the top of the stovetop; a Panadol packet, whether full or empty, it cannot be discerned from the photograph, on carpeted stairs; a button and another plastic item on what appears to be a bathroom and/or laundry floor; a number of items in an open kitchen drawer; scissors on a window sill in the bathroom and the like.
What is perhaps most extraordinary about those is that the evidence relating to those matters predates, by some 12 months, the event which occurred on 13 December 2010, which is suggested in Ms Richards’s case to be the only event that has caused the present standoff so that [X] is denied and refused a relationship with his grandmother.
What is extraordinary, however, is that somebody over that period of time would take photographs of another person’s house unless there was some purpose or intention in mind to record, document and perhaps, at some stage in the future, to prove the allegations made therein. Certainly what is depicted in the photographs, save for one room which would appear to be a computer room in a state of relative untidiness, is a functioning household with a small child. Some matters within the household may not be ideal but it is a small household with two working parents and a small child within it to be cared for and perhaps the time, attention and diligence that might otherwise be directed towards house cleanliness and house proudness is otherwise devoted dealing with [X].
The second category of complaints relate to allegations that there have been beratings and then, by 13 December, verbal and physical altercations between at least Ms Scott and Ms Richards that are suggested to relate to events predating 13 December, at least on

Ms Scott’s case. She suggests a meeting sometime shortly prior to that at a shopping centre when it is suggested she left after a verbal altercation and was chased and further berated and harangued. That is denied.
Certainly what is not possible of denial is that on 13 December 2010 a most unfortunate incident occurred between Ms Scott and Ms Richards at Mr and Ms Scott’s home. That incident would appear to have been precipitated by modifications undertaken to [X]’s bike which had been purchased for him by his grandmother.
The bike initially had a drink holder or small basket on its front into which this little boy innocently placed one of his favourite toys. Apparently that created some delight for him. A request was made for Mr Scott to fit a stand to the bike and at the same time as doing that the drink holder or small basket was removed and a larger white basket placed on the front of the bike, reportedly at the request of [X] and so that he could carry more than one toy.
What transpired is on 13 December, the bike, having been modified, at least in part as requested, was left outside to be collected and it was anticipated on that day that [X] would also be collected by his grandmother.
Exhibit P1 has been footage from a security camera at Mr and Ms Scott’s home which would suggest that a standoff of some time, at least 10 to 20 minutes, occurred during which time Ms Richards remained on the front verandah of their home, having been denied entry and banged on the door with the wire basket which she had removed from the bike. Whilst the video had no sound, apparently, Ms Richards was yelling. It is impossible to determine whether there was yelling back or, as was suggested, goading and provoking coming from within the home by Ms Scott or anyone else. There were also attempts to open the door with a set of keys which attempts were precluded by Ms Richards holding herself against the door.
The police were called and during the time that this was occurring

Ms Scott also spoke to her husband and to her mother on the telephone. When the police arrived, they spoke with all parties concerned. A statement was ultimately given by Ms Scott. No further action was taken by the police and the police caused the return to Ms Scott of keys for the home held by Ms Richards.
As I have indicated, since that time and an incident which was blown out of proportion to the dispute that has arisen and perhaps giving some degree of inferential support to a current of underlying problems prior to that event, there has been no time between [X] and his grandmother, with whom there does not appear to be any real dispute he has previously enjoyed a good relationship, subject to a number of small caveats raised by Mr and Ms Scott regarding [X] having raised concerns about fighting and berating that had occurred in the past.
The application now before the Court is for [X] to spend time with his paternal grandmother on the basis as had previously occurred, being each Monday and Tuesday.
Since the incident in December, 2010 (and, indeed, Mr and Ms Scott’s evidence is that since October-November they had intended to change arrangements and had enrolled [X] at a pre-school at [omitted]), this little boy has started pre-school and is now attending three days a week. A report from the pre-school is annexed to Mr Scott’s material which suggests that [X] has settled in well and is doing well at the pre-school.
The application is resisted by [X]’s parents.
Also in the proceedings a number of additional matters of concern have arisen.
I have referred to the relationship and the deteriorating nature of same between Ms Scott and Ms Richards, but also as consequence of the evidence now before the Court, there is a suggestion by Mr Scott that his relationship with his mother, and pre-dating his relationship with his wife Ms Scott, is and has been poor. That is again denied. What is abundantly clear, however, from Mr Scott’s evidence is that over the period of time since the arrangement went into place, shortly before [X]’s first birthday, that Mr Scott had initially been the person who was involved in caring for [X] for a few hours each Monday and Tuesday morning before delivering him to his mother’s.
Whether on the basis as described by Mr Scott or otherwise, that arrangement ultimately ceased after some months and [X] began to be collected by Ms Richards from Ms Scott. Ultimately, the collection time grew earlier and earlier, until an arrangement was in place whereby [X] was collected or delivered at about 6:40am and returned in the evening and with the effect that Mr Scott and his mother had no contact with each other.
It is asserted, in denial of the allegation regarding the poor relationship between Mr Scott and his mother, although I accept Mr Scott’s perception as to how his own relationship with his own mother is and was, that it is a recent invention which in fact is being raised
a)opportunistically, and
b)falsely.
Dr K, Mr Scott’s treating psychiatrist has been dealing with Mr Scott over some years. Indeed, he became a patient of Dr K in October 2008 following, at that point in time, a self harm incident. That self harm incident itself would appear to have arisen as a consequence of difficulties and fractures between himself and his wife Ms Scott and particularly surrounding criminal charges which were then in the process of being investigated or brought. In any event, there was a hospital admission from 31 October until 12 November, and that followed an overdose of medication. There was then a further admission during 2010.
That was, no doubt, a very stressful period of time for all of the adults and, not that anyone has mentioned it in their material, I am certain [X] as well, although he would appear to have been shielded from the worst of the impact that might have followed by the actions of at least his mother and in all probability also Ms Richards and to some extent in cooperation with each other.
Mr Scott’s history, as he has given it to Dr K since 2008, is consistent. Dr K indicates at page 3 of the report:
“Mr Scott is not close to his mother and describes her as very domineering.”
Mr Scott is also reported as suggesting to Dr K, at a number of other points in the report, that the relationship is poor. Tellingly, in the third last paragraph of the report on page 6, Dr K reports as follows:
“I met with Mr Scott’s mother on 12 July 2010 [being some five months prior to the event that led to the termination of
Ms Richards’s relationship with [X]] and she was in an anxious and distressed state. Given the very difficult relationship that

Mr Scott has had with the mother, he did not wish for me to meet with his mother.”
That statement and reportage, of itself, would appear to corroborate, at least as at 12 July 2010 that Mr Scott had reported a poor relationship and, accordingly, I cannot accept that until 13 December there was never any perception or feeling or holding out that the relationship was other than excellent.
In any event, what falls to me in this case is not to make findings as to past history between these parties and I have ample evidence - as I have indicated, several hundreds of pages of it - dealing with events dating back to the 1970s. The relevance of the majority of that material, bearing in mind this child is not yet four years of age, is difficult to ascertain.

Subpoena and Tender

During the course of these proceedings a number of subpoena have been issued. From the folio of the file it would appear not less than eight subpoena.
During the course of the morning material was produced in response to the last subpoena filed being a subpoena addressed to the [N] Clinic, being the hospital at which each of the above admissions that Mr Scott has experienced in 2008 and 2010 respectively have occurred.
That material arrived at a time when I had just finished reading the report of Dr K annexed to his affidavit and which appeared raise an objection to the release or inspection of material. One can only infer that from the final paragraph of his report commencing:
“I do not wish for Mr Scott’s mother to be informed of the information I have provided in this report or in my notes, or the hospital file.”
That objection has not previously been raised. To the extent that it is raised with respect of the contents of the report the contents have clearly already been disclosed as the report has been annexed to a filed and served affidavit and, accordingly, one can only assume knowingly disclosed by Dr K, notwithstanding the caution or objection raised in his report. But as regards to the balance of the material, I propose to deal with same separately and have independently sought submissions from counsel from each of the parties regarding that issue.

The Federal Magistrates Court Rules at Rule 15A..09 give the Court a discretion to set aside all or part of a subpoena. Rule 15A.14 allows the Court, upon any objection being raised to the production or inspection of a document, to determine what arrangements should be made. Subsection (3) of Rule 15A.14 deals with a process wherein a person may be entitled to inspect records and notify the Registrar in writing of any objection within seven days. Unless otherwise ordered, no other person may inspect those records until either the latter of seven days having passed or the hearing in determination of the objection.
No objection was raised at an earlier time when material was produced by both [B] Hospital and Dr K. However, as I have indicated, I can only now take the final paragraph of Dr K’s report as an objection.
The notes that are produced, both by [B] hospital, Dr K and today the [N] Clinic, would all be covered by the objection. That objection would arise on a number of grounds which I will deal with separately. The material produced by [B] Hospital and Dr K individually has already been the subject of an order for leave made by me in terms envisaged by the Rules on 5 July 2011.
Tender of material produced and inspected from each of those individuals or agencies has been rejected on the grounds of relevance. I propose to otherwise revoke the leave granted with respect to the material produced by each of those persons and will direct its return to those who have produced it.
The material produced by the [N] Clinic has not been released for inspection nor do I propose to release it. In relation to objection to and the setting aside of subpoena, my colleague Purdon-Sully FM had dealt with same and provides an excellent summary of legal principles applicable to the setting aside of a subpoena in Kingley & Arndale (2008) FMCAfam 600.
Commencing at paragraph 22, her Honour refers to a lengthy history of case law regarding same. Her Honour commences by acknowledging that the Court has the power to set aside a properly constituted subpoena. There is no issue in this case that the three subpoenas the subject of these reasons are properly constituted and appropriately issued. Perhaps what the issue of the subpoena highlights is less the veracity or the legitimacy of their issue, but a shortcoming in the present Federal Magistrates Court Rules that do not, to any large extent, envisage any judicial review of the release of subpoenaed documents once produced to the Court.
An administrative process has been put into place by the Rules which is attended by a number of difficulties including:
a)the entire absence of judicial observation of the release and inspection of material unless a clear and specific objection is raised in and by lodging with the Court the appropriate form. In this case, clearly, there is and has always been an objection but the appropriate form has not been provided to alert administrative officers of the Court;
b)the release of the material through simply filing a request to inspect enables inspection to occur without anybody ever turning their mind to or considering whether the material has any sensitivity or should be released. That is particularly problematic as this Court’s Rules allow the photocopying of certain records without leave;
c)the responsibility of determining whether an objection is or could properly be raised is left to administrative staff of the Court. That is not to criticise them. It is not their job nor are they delegated or could they be delegated judicial authority to make such determinations. It is simply unfair to them and they already have a sufficiently high workload and a sufficiently high and enormous level of responsibility; and
d)in circumstances such as this case, material is produced which is highly sensitive, has the potential to be highly damaging, not only to the party whose privacy is invaded, as it were, by inspection of material being released to any number of strangers, let alone other persons with whom they are in dispute without any consideration of relevance of that material, but it also allows that material to come into the public domain and in a case such as this, where inter-family relationships are already significantly damaged if not destroyed, it can do no good but has the potential to do substantial further harm.
That is to some extent, in fact, envisaged in the material that was filed in these proceedings by Mr and Ms Scott. Ms Scott had indicated at paragraph 72 of her affidavit that she, in a conversation with

Ms Richards on or about 22 January 2011, had been told:
“I have taken legal advice. I can force you to let me have my days with [X] back. If you don’t give in, I intend to let the whole world know about Mr Scott’s ongoing psychiatric treatment and other things.”
The reference to “other things” at that point in time was not clear but has subsequently become apparent from the material filed. The concerns in that regard are manifest.
Purdon-Sully FM otherwise referred to the relevant provisions of Division 1, Paragraph 3.10 of the Evidence Act 1995 dealing with a number of privileges as well as the dominant purpose test. Her Honour was alive to the potential for material that comes before the Court being inappropriate for release. This is particularly so in light of the administrative provisions that the Rules now contain and which are not, as an administrative function, the subject of any appeal or judicial review in the event the material is inappropriately released. There are potentially a myriad of difficulties which might arise from that administrative process but which do not, thankfully, in this case arise, such as material being produced which offends s.133 of the Evidence Act.
Rose J had also dealt with the Court’s power to deal with and strike out or read down a subpoena in a 2001 decision of Barham & Packer [2001] FamCA 899. In that case, objection was taken to a subpoena on the basis that it was an abuse of process as the documents called for did not have any apparent relevance to issues in the proceedings. His Honour referred to and emphasised the Full Court’s decision in Hatton & The Attorney-General of Commonwealth (2000) FLC 93-038 as well as the Full Court’s earlier decision in Waind & Hill [1978] 1 NSWLR 372.
His Honour quite correctly observed and accepted submissions put by counsel involved in that case that in dealing with any objection to a subpoena in parenting proceedings, one would have regard to the principles set out in then s.65E and s.68F, which would now equate to ss.60CA and 60CC. However, it was observed by his Honour that release of documents must also be bound by rules of evidence and, in particular, relevance.
Whilst Division 12A removes the application, at least potentially, of certain provisions of the Evidence Act, not all provisions are removed by s.69ZT. Principle amongst those not removed is relevance.
Section 55 of the Evidence Act provides that evidence that is relevant is admissible, evidence that is not relevant is not.
In this case, there is no factual dispute that Mr Scott suffers from a depressive illness to which Dr K speaks in his report and that he has had periods of hospitalisation, three in total, including those in 2008 and 2010 to which I have referred. The only thing that is potentially an issue with respect to any of that material is whether the underlying psychology and morbidity of the major depressive disorder diagnosed by Dr K has, at its root, the experiences of Mr Scott as a child in the household of or at the hands of his mother. That is not, as far as I can see in the context of these proceedings, a relevant consideration.
What is relevant and what is not a judiciable issue, as it is conceded, is that Mr Scott suffers from a major depressive disorder and that is spoken to by Dr K in his report filed in evidence in the proceedings. Accordingly, I propose, in due course, to make orders which
a)revoke the leave previously granted by me to inspect material produced by [B] Hospital and Dr K and
b)to strike out the subpoenas to each of those agencies and to the [N] Clinic.

Interim Proceedings and Procedure

The Full Court, commencing with Griffiths (1981) FLC 91-064, Cilento (1980) FLC 90-847, Rainer& Rainer (1982) FLC 91-239 and Cowling [1998] FamCA 19 (decided prior to the 2006 amendments and to extent that portions of those cases dealing with procedure remain relevant) and subsequently in Goode & Goode (2006) FLCA 93-286 and Marvel & Marvel [2010] FamCAFC 101 have made clear that interim proceedings, (being a prescribed exercise, largely dealt with in a limited timeframe and with the pressing demands and constraints of time with which this Court is faced as a first instance trial Court on a daily basis), should be conducted on a reading of the papers and submissions and that it is accepted and acknowledged that there will rarely, if ever, be time available for cross-examination. What that case law does not suggest is that the Court cannot or should not make findings of fact.
Serious caution is urged against findings being made, but all of those decisions, (and to the extent that Griffith, Cilento, Rainer and Cowling predate the 2006 amendments, not all portions of those decisions found disfavour with the Full Court commencing with Goode), indicate that extreme caution should be exercised before coming to any conclusion based on untested and unchallenged evidence.
In this case, one important issue that arises from Exhibit P1 is that it corroborates, at least as regards physical action because the DVD had no sound, that which is alleged by Ms Scott and entirely contradicts that which is alleged by Ms Richards.
What is abundantly clear is whatever occurred on 13 December, there was a long period of time that these parties stood on either side of a door and an altercation of some description occurred between them. Only Mrs Richards is visible in the video, but she is clearly speaking, whether with a raised voice or otherwise, and gesticulating until the police arrive.
How distressing that would have been for both adults and for the people on the other end of the telephone hearing it and, most importantly, to [X], who was present, cannot be underestimated. That is the final event in a series of events, it would appear, between the parties, and there is some tacit acceptance that some criticisms which have occurred and been levelled by Ms Richards towards either of her son or daughter-in-law, perhaps with hindsight were ill advised.
What also causes me some concern, notwithstanding that as I have referred to the Federal Magistrates Court Rules provide no liberty to file affidavits in reply without the Court’s leave or specific order, is the lengthy and prolix material filed in response by Ms Scott which, as it were and in the vernacular, “upped the ante”. Certainly, Ms Richards’s first affidavit is far more balanced and focused on relevant issues and considerations. The material that has come in in reply is not so. It takes the Court back to events as early as 1963 prior to Mr Scott’s birth, he now being 47 years of age, and it gives 40 pages of detail, the majority of which deal with the most personal aspects of Mr Scott’s childhood, including suggestions that as a child, he underwent some appalling behaviour, no matter who it may have been from.
How it was perceived as relevant or appropriate that I be informed of those matters or how it is suggested that it is relevant or appropriate to this child’s wellbeing rather than an attempt to explain a position as between adult disagreements I cannot fathom. But be that as it may, it is material that is before the Court.
The interim hearing has otherwise been conducted on the basis of the material filed and submissions and with limited tenders to which I have referred.

Legislative background

As Part VII proceedings, I am required to deal with the legislative pathway that Part VII sets out. That commences with a consideration of the objects and principles in s.60B.
The legislative pathway is often discussed and referred to as an eight-step process. The process is indeed an organic and fluid process that involves a consideration of a number of elements, all of which are supported or at least potentially supported by the same evidence and all of which are interconnected. None of the items and elements that I am required to consider under Part VII exist in isolation. They all speak to and inform the others.
The other important aspects of the starting point of that process, being a consideration of the objects and principles in s.60B, flows from the source of many of the statements of object and principle.
Australia is a signatory to a significant number of international agreements. They do not, by and large, have effect as part of our domestic law unless and until specifically enacted in legislation.
Section 60B and the objects and principles reflect a number of portions of the International Convention on the Rights of the Child to which Australia is a signatory. There is presently a Bill before Federal Parliament to expand the objects and principles to include the totality of the convention as objects and principles of the Act. However, there is also a body of case law, both Australian and overseas, which clearly accepts the proposition that all portions of all international agreements to which a nation is a signatory are, in fact, important in informing and guiding the interpretation and implementation of Australian domestic legislation whether specifically domestically enacted or not.
That was recognised within the Australian context in decisions such as Minister of Immigration & Teoh (1995) 183 CLR 273, Mabo v Queensland [1988] HCA 69 and B & B and Minister of Immigration & Multicultural & Indigenous Affairs [2003] FamCA 621. I refer, and in particular am assisted, in a consideration of that jurisprudential body by the article “B & B and Minister for Immigration and Indigenous Affairs: Can International Treaties Release Children from Immigration Detention Centres?” (2004) Melbourne Institute of Law Journal authored by Lara Ruddle and Sally Nicholes.
It is also instructive to consider overseas expressions on the same issue particularly from Court’s operating within Commonwealth nations with a similar Westminster system as our own. L'Heureux-Dubé J in Baker & Canada (Minister of Citizenship and Immigration) (1999) 2 S.C.R 817 opined that another indicator of the importance of considering the rights of children when making a compassionate and humanitarian decision as to the interests of children is the ratification by Canada, (like Australia), of the Convention on the Rights of the Child which leads to a recognition of the importance of children’s rights in and to an understanding of the best interests of children based on the contents of International instruments ratified by Canada (or in this case Australia) even when those International Treaties and Conventions are not implemented by statute as part of Canadian domestic law and stating:
“The convention, being the International Convention on the Rights of the Child, has not been implemented by Parliament. Its provisions, therefore, have no direct application within Canadian law. Nevertheless, the values reflected in International Human Rights Law help inform the contextual approach to statutory interpretation and judicial review. The principles at the convention and other international instruments place special importance on protections for children and childhood and on particular consideration of their interests, needs and right. They help show the values that are essential in determining whether decision was a reasonable exercise”
Similarly, Sachs J in the South African Constitutional Court in S v Baloyi 2000 (2) SA 425 (CC) discussed the issue in the following terms:
“The weighting of the respective interests at stake does not place on weightless scales of pure logic pivoted on a friction-free fulcrum of abstract rationality. The balancing has to be done in the context of a lived and experienced historical, sociological and imaginative reality.
Even if for the purpose of making its judgment, the Court is obliged to classify issues in conceptual terms and abstract itself from such reality, it functions with materials drawn from that reality and has to take account of the impact of its judgment on persons living within that reality.”
The International Convention on the Rights of Child, like other international agreements to which Australia is a signatory, enshrines and prioritises the importance of the family and parents. Article 12 of the Universal Declaration of Human Rights states:
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence.”
This has been taken up in a number of European Court of Human Rights decisions commencing with Glaser & The United Kingdom 2000 ECHR application 32346/96, which upheld the validity of sovereign states passing legislation which delegates power to Courts (such as this Court) to make orders which determine the interests of children when parents and others are unable to do so. However, since 1948 and the passage of the declaration, Australia, being one of its first signatories, the recognition and the importance of the primacy of privacy within the family and home, without interference or obstruction from outside agencies including State agencies, was recognised.
The Universal Declaration also contains the statement:
“The family is the natural and fundamental group unit of society and is entitled to protection by society and by the State.”
There is no definition within International Law or, indeed within the Family Law Act 1975, of “family”, but one can, in the sociological sense, generally accept it as a nuclear unit comprising parents, however they may be configured, and children.
The International Covenant on Civil and Political Rights 1966 similarly recognises that:
“The family [in article 23]is the natural and fundamental group unit of society and is entitled to protection by both society and the State.”
Similarly, the International Convention on Civil and Political Rights contains the same statement.
The above statements are reflected, in large part, by s.60B of the Family Law Act 1975 setting out the objects and principles as they are focused upon
a)children’s rights and
b)parents.
The objects and principles of the legislation are:
a)ensuring the children have the benefit of both of their parents having a meaningful involvement in their lives to a maximum extent consistent with their best interests:
b)protecting children from physical or psychological harm;
c)ensuring the children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring the parents fulfil their duties and meet their responsibilities.
The principles underlying those objects provide that, except where it is contrary to a child’s best interests, that:
a)children have a right to know and be cared for by both of their parents,
b)children have the 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
c)parents jointly share duties and responsibilities concerning care, welfare and development of children
d)parents should agree about future parenting; and,
e)children have a right to enjoy their culture.
Thankfully, notwithstanding the myriad of issues extant in these proceedings, there is no real issue about the children’s participation in culture.
The role, importance and predominance of parents within the legislation is reflected throughout the legislation.
Within s.60CC, dealing with how a Court will determine what is in a child’s best interests, persons other than parents are mentioned on three occasions being ss.60CC(3)(b), (d) and (f).

Whilst s.65C(ba) makes clear that grandparents specifically can apply for a parenting order, there are a number of other provisions which distinguish them from parents.
Section 65G requires that if the Court is to make an order by consent which allocated parental responsibility or provides or a child to spend time with or live with a person other than a parent, then in those circumstances a report must be prepared for the Court and considered prior to making the order or, alternatively, the Court must be satisfied that there are circumstances which warrant the order being made, notwithstanding the non provision of such a report.
Section 65DAC and s.61DA, dealing with parental responsibility, both make clear that those factors and the presumption of equal shared parental responsibility relate to parents only and not others.
Other provisions of the Act such as Division 4 of Part VII provide that only parents can enter into a parenting plan.
Accordingly, throughout the legislation, there are littered references and distinctions between the status under the legislation of a parent and other non parents.
Having said that, I am certain that it is not the intention of the legislators to exclude persons who are not biological parents. To do so would, indeed, be contrary to the express provisions of the Act. But it is clear that different considerations apply.
That is also not to suggest that case law such as Rice & Miller (1993) FLC 92-415 which whilst an old and settled authority, is still good law, no longer apply. All things being equal, one would generally prefer a parent over a non-parent placement and whilst that had applied prior to the 2006 amendments I am confident that position remains and is perhaps strengthened.
As the presumption under s.61DA does not and cannot apply in this case, other than as between Ms Scott and Mr Scott, I need not make any determination on an interim level as to its application. It simply cannot apply as the presumption relates only to parents.
That being the case, I am not mandated to consider s.65DAA as to this child spending equal or substantial and significant time with any person prior to proceeding to make any other consideration of time. Indeed, s.65DAA by its terms, deals specifically with parenting orders as between child’s parents and, similarly to s.61DA, would have no application in the present case.
I am then left to determine what orders or arrangements should be made having regard to s.65DAA(5) and s.60CC. Again, s.65DAA(5) dealing with reasonable practicality focuses upon parents. It provides that the Court must consider:
a)how far apart the parents live from each other;
b)the parents' current and future capacity to implement an arrangement;
c)the parents' current and future capacity to communicate with each other and resolve difficulties;
d)the impact that an arrangement of that kind would have on the child; and
e)such other matters as the Court considers relevant.
Section 60CC, and it is often remarked both by single instance and Full Court decisions, that s.65DAA(5) considerations can best and most helpfully be dealt with as part of the s.60CC consideration – see Dylan & Dylan [2007] FamCA 842, Pitken & Hendry [2008] FamCA 186 - provides two primary considerations being:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being exposed to, abuse, neglect or family violence.
Whilst there is a volume of material in these proceedings, albeit untested, regarding the disputation and acrimony between the various grown-ups involved, there would not appear to be any suggestion of abuse or family violence as defined within s.4 of the legislation. There is no definition of neglect.
That leaves only the primary consideration of the benefit to [X] of having a meaningful relationship with both of his parents.
The additional considerations set out in sub.s(3) both inform the primary considerations but they can also stand as considerations in their own right and can assume more importance than the primary considerations in some circumstances – see again Dylan & Dylan.
In relation to those additional considerations:

Views

There is no real evidence regarding this child’s views and as the child is not yet four it would be difficult to envisage the circumstance in which significant weight would be attached to any views.
Each party suggests that [X] has expressed to them what might be described as at least a comfort and enjoyment of his relationship with each of them and I have no doubt that this is so. The issue in this case is not whether this little boy loves and is loved by the various grown-ups but whether those different relationships and those expressions of love can co-exist.

The nature of the relationship of the child with each of the child’s parents and other persons including a grandparent

Again, there is very little doubt on the evidence that [X] has derived some real joy from the relationship that he has with all of the adults involved in his care in the past.

The willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent

This factor cannot be relevant in the context of this application as it specifically directs attention to parents.

The likely effect of any change in the child's circumstances including separation from either his or her parents or any other child or person including a grandparent with whom he or she has been living

This factor could not be relevant as there is no suggestion that this child has ever lived other than with his parents.
Lest I am wrong in that regard and lest it should be interpreted that the Monday, Tuesday arrangement that has been in place constitutes a period of time that, at least for the duration of those periods, this little boy has been living with his grandmother, I note again that the real issue in this case is whether the benefits that are or could be derived and have clearly been derived in the past from that relationship can be preserved or continue and whether they can co-exist with the relationship he has with his parents and, indeed, as a consequence of those considerations whether the benefits outweigh the potential detriments.

Practical difficulty and expense of a child spending time with and communicating with a parent

This factor is, again, specifically directed to parents and cannot be relevant.

The capacity of each of the child’s parents and any other person to provide for the child’s needs including emotional and intellectual needs

It is suggested by each of Ms Scott and Mr Scott that there have been comments and actions by Ms Richards which have been critical of them and including by these things occurring in front of [X] or within his hearing. That is denied. Whether it is so or not, again this is a case in which perception and consequence perhaps have more weight, importance and significance than whether the parties can or cannot agree on a factual matrix for the past.

The maturity, sex, lifestyle and background of the child and of either of the child's parents:

This child is very little. He is not yet four years of age. He has two parents with whom he lives and who present a united front to this Court.
By reference to the international agreements and statements and principles to which I have referred and the objects and principles of this Act set out in s.60B the Court has, holds and owes a special degree of protection to this child’s parents and their family unit. Any attack upon that family unit, and I accept that that would not consciously come from this child’s grandmother, must be approached with some real caution particularly on an interim basis.

The child is not of Aboriginal or Torres Strait Islander descent.

The consideration is not relevant.

The attitude to the child and to the responsibilities of parenthood, demonstrated by each parent.

Ms Richards is critical of both Ms Scott and Mr Scott for the attitude they have demonstrated towards [X] in failing to recognise and appreciate the importance and significance of his relationship with his grandmother and in taking actions to terminate that relationship in a fashion that is asserted would be clearly distressing and emotionally detrimental to the child. That must be balanced against the other evidence that exists in this case and without dispute.
Principle amongst matters that would be relevant to the above consideration are:
a)These parents remain together.
b)Their relationship has, in the last few years and since [X]’s birth, had a number of difficulties. Indeed, these parents have, as a consequence of a number of actions, talked about and considered separation and it is suggested for a period of time have slept in separate rooms in some degree referable to a separation under the one roof, whether that was the intention or not at the time;
c)Both parents are clear in their objection to this child spending time with Mr Scott’s mother at this point in his life. It is submitted that the relationship between the adults is not beyond repair and may well be repairable. One would only hope for this little boy’s sake that this might be so. However, I have a concern at this point in time that the relationship is as clearly broken down as it presents.
d)Section 65DAC, which deals with the effect of a parenting order which provides for equal shared parental responsibility, makes clear that a parenting order that provides for same invests all of those who have the benefit of the order with all of the rights and duties and responsibilities of parenthood. Those persons have an obligation to consult with each other about major issues decisions (again defined in s.4). The persons who have equal shared parental responsibility by operation of the presumption and at law are Mr and Ms Scott.
Accordingly, I must be and am persuaded by reference to comments such as those of Murphy J in Pitken & Hendry, that I should not take the extreme, severe and extraordinary step of limiting or interfering with that right without due reason. Whilst certainly his Honour was not referring to a circumstance such as this but was dealing with an application for sole parental responsibility as between parents, I am not blind to the fact that the legislation proposes and invests and as is informed by the International Convention, that parents are, and the family comprised by parents and their children, are the natural, fundamental and indivisible unit of society and as a consequence of my reference to the Universal Declaration of Human Rights that family unit is entitled to be free of interference by the state, in this instance through the Court, without good reason.
On that basis and whilst the 2006 amendments should have dispelled any lingering notion that a parent must demonstrate the positive benefit to their child of having a relationship with them before they will receive the benefit of the Court’s intervention, that consideration must, in my mind, remain when the dispute is between two parents as a united front as a family unit worthy of protection under international and domestic law against an outsider to that family unit.
The potential benefits to this child when he has a grandmother who dearly wants to have a relationship with him and whom I accept he holds great love and affection for are obvious. However, the various adults involved in this little boy’s life have no love or affection for each other at this point in time and I am conscious, particularly by reference to Dr K’s material, that there would be such an interference and potential deficit in this little boy’s parenting by his parents (including their possible psychological impairment or even the separation of his parents) that to sanction that relationship through court order would have the potential to undermine all which the legislation requires this Court to do from the objects and principles through to the considerations in s.60CC.
Dr K has been clear that whilst Mr Scott has a major depression, it is in remission and there are no significant current symptoms. The main factor that is causing him difficulty at the moment is the continuing Court process. However, this does not seem to be impairing his ability to care for his child. If the situation were to deteriorate then I expect either Mr Scott or his wife to contact their such impairment might arise.
Dr K also indicates in the penultimate paragraph of his report:
“Mr Scott’s past depressive episodes have been reactive to stressors in his life. Hence, ameliorating the stressors in his life is likely to result in best outcomes in terms of his mental health and his ability to parent.”
Whilst the focus of this consideration would appear to have been upon Mr Scott, I wish to make clear that the relevance of Mr Scott’s depressive illness is somewhat tangential to these proceedings. He is clearly in remission; he is clearly insightful into his condition; receiving treatment; complying with that treatment; and he is functioning perfectly well as evidenced by his continuing in employment, maintaining his home, his relationship with his wife and in parenting his child. Dr K is clear on those things.
Mr Scott need be left under no illusion that this Court is approaching the allegation and, indeed, the reality of his depressive disorder on any basis other than searching to find how it could possibly be relevant to this consideration. Its relevancy is that Mr Scott has had a bad three years. The stressors that have existed in his life from not only these proceedings but others have brought great difficulty upon his happiness and I accept as a consequence of that, the happiness of Ms Scott, their household and their son.
He is fragile but in remission as regards experiencing significant symptomology from his condition. It is entirely to his credit that during the stresses of these proceedings and others that he has managed, as it were, to keep it together and to move forward. That suggests a great inner strength of emotional wellbeing upon which he can build. He has nothing but the Court’s congratulations for that.
A mental health condition is nothing more than a health condition, albeit that it deals with the mind and thought process rather than physiological condition. But Mr Scott is no more judged before this Court for having a diagnosis of a mental health condition than he would be if he had a physiological health diagnosis such as asthma, diabetes or anything else.
It is the symptomology, his insight, his ability to live and manage the condition that is important. If he was untreated with severe diabetes or severe epilepsy and rejected the need for any intervention, assistance or treatment I would have more concern than I do with the fact that he has a mental health condition that is well managed, maintained and treated.
Similarly, Ms Scott may well feel that she has been left out of these considerations and that the Court is focusing entirely upon her husband. That is not so.
Ms Scott has not had cause to attend upon a psychiatrist. That again is perhaps a testament to her inner emotional strength and functioning. But clearly this has been distressing, it has been something that has driven, whether as a consequence of these proceedings or other recent events, a wedge in her relationship with her husband and one would hate to think that these proceedings might ultimately become the ice in the crack that splits the rock of their relationship apart.
One would genuinely hope that before this matter is concluded that their relationship would remain cemented in the bedrock that it presently finds itself. One would hope that these proceedings do not become either the precipitator of them maintaining a relationship or that which drives them apart.
What is incredibly and profoundly sad from that which is presented by Dr K is that this little boy, having been born in 2007, has had his parents experiencing a number of traumas and dilemmas in their lives since shortly after his birth. That means that each of his parents has been deprived of the opportunity that they should have had and hopefully one might imagine will now have, to focus upon enjoying the delightful period of their little boy’s life.
It is regrettable that because of the irreconcilable differences that exist between the various adults in this little boy’s life that both [X] and his grandmother may well, at least in the short term, be deprived of the further opportunity of a relationship. However, I am concerned that the stressors that the issues underlying these proceedings, rather than the proceedings themselves bring, are such that they have the potential to vitiate against not only the objects but the clear and specific provisions of s.60CC as meeting this little boy’s rights and interests and it is this Court’s duty and responsibility to ensure that they are met.
This little boy has the right under s.60B(1)(a) to have the benefit of both of his parents having a meaningful involvement in his life. If his parents are distracted by litigation, distracted by disputes, clinically diagnosably depressed or otherwise simply in a malaise of unhappiness as a consequence of events surrounding them that will impact upon their capacity to have a meaningful involvement with and meaningful relationship with [X]. I cannot countenance that occurring. The evidence makes clear that it has already begun to impact upon them.
I am required to ensure that this little boy receives adequate and proper parenting. For that he needs his parents to be happy, healthy, functioning and cooperating with each other. These proceedings and the issues giving rise to them impact that ability.
I am required to ensure that this little boy’s right to have both of his parents fulfil their duties and meet their responsibilities to him as parents in meeting his care, welfare and development occur. I cannot do that whilst countenancing anything that has the potential, let alone the real possibility, of undermining their capacity to do so and to do so together.
Whilst this little boy clearly has a good, close, warm and loving relationship with his grandmother, I am conscious that the warmth that flows from that relationship is extinguished by the cold winds of the relationship between the various grown-ups who surround him. That now may or may not be their intention but, regrettably, it is the inevitable consequence.
Any order that has the potential to either drive these parents apart, drive either of them to greater unhappiness or to less than perfect mental health is not something which could possibly meet the objects and principles of the legislation. Similarly by reference to the primary consideration in s.60CC(2)(a), the benefit to this child of having a meaningful relationship with both of his parents must be my primary consideration.
Accordingly, anything in the context of this matter where both parents are a united front and an intact family which would undermine, distract or detract from the reality or potential of that meaningful relationship between [X] and his parents and each of them cannot be considered as appropriate or acceptable by reference to s.60CA and cannot be in this little boy’s best interests.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Harman FM

Date: 6 September 2011