Ritchie and Coleman

[2015] FCCA 3619

FEDERAL CIRCUIT COURT OF AUSTRALIA

RITCHIE & COLEMAN [2015] FCCA 3619

Catchwords:
FAMILY LAW – Parenting – Father seeking to spend additional time with children beyond parties’ parenting agreements – In best interests of children that they spend such additional time with father.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61BA, 61DA(3), 65D, 65DAA(3)

Cases cited:

Banks & Banks [2015] FamCAFC 36

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348

Applicant: MR RITCHIE

Respondent: MS COLEMAN

File Number: CAC 1976 of 2009

Judgment of: Judge Newbrun

Hearing date: 5 November 2015

Date of Last Submission: 5 November 2015

Delivered at: Parramatta

Delivered on: 6 November 2015

REPRESENTATION

Counsel for the Applicant: Ms Coulton

Solicitors for the Applicant: Evans Family Lawyers

Solicitors for the Respondent: Ms Wade

ORDERS

1. Orders are made in accordance with Exhibit B and attached hereto.

2. Pursuant to s.62G of the Family Law Act 1975; a report be prepared for the Court by a Family Consultant nominated by the Manager Child Dispute Services about (subparagraph numbers correspond to paragraphs of s.60CC(3)):

   (a)any views expressed by the child/ren and any factors relevant to the weight to be attached to those views, provided that the child/ren shall not be required to express a view in relation to any matter.

   (b)the nature of the child/ren’s relationships with each of the child/ren’s parents and other persons (including any grandparent or other relative of the child/ren);

   (c)The likely effect of any changes in the child/ren’s circumstances, including the likely effect on the child/ren of any separation from:

   (i)either of the parents: or

   (ii)any other child, or other person (including any grandparent or other relative of the child/ren), with whom the child/ren has/have been living.

   (d)The capacity of each parent, or another person (including any grandparent or other relative of the child/ren), to provide for the child/ren’s needs, including emotional and intellectual needs.

   (e)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child/ren and of either of the child/ren’s parents, and any other characteristics of the child/ren that the report writer thinks are relevant to opinions expressed in the report.

   (f)The attitude to the child/ren and to the responsibilities of parenthood, demonstrated by each of the child/ren’s parents.

3. The Family Consultant is requested to complete the report if possible not less than 4 weeks before the adjourned date.

4. The parties shall attend all appointments with the Family Consultant and shall ensure the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.

5. The Family Consultant may inspect the Court file and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.

6. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

7. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

   (a)a Children’s Court;

   (b)a child protection authority;

   (c)a State or Territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference.

8. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

9. The proceedings are listed for mention at 9.30am on 2 September 2016 following the release of the Family Report.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

CAC 1976 of 2009

MR RITCHIE

Applicant

And

MS COLEMAN

Respondent

REASONS FOR JUDGMENT

1. This is the interim reserved judgment in the matter of Ritchie & Coleman. Yesterday, there was before the Court the father’s application for interim parenting orders. At the outset of the interim hearing, the parties indicated to the Court that they had reached certain interim parenting agreements. They handed up a document which was marked Exhibit A and which provided, inter alia, that the parties have equal shared parenting responsibility, the child live with the mother, and that the father spend time with the child, who was a boy named X, aged nine (9) years, during the school term, in each alternate week, from the conclusion of school on the first Wednesday of the school term until 6:00pm Sunday and each alternate week thereafter, commencing Wednesday, 11 November 2015.

2. Other “time with” orders, on an interim basis, were agreed to between the parties, as set out in Exhibit A. They also agreed to other interim orders, also set out in Exhibit A. The parties then informed the Court that there was one discrete parenting issue that they wanted the Court to determine on an interim basis and that was the father’s proposal to spend additional time with the child, that is, additional to the time that was to be spent by the father with the child as set out in Exhibit A, such additional time being referred to in Exhibit B, being a proposed short Minute of Order which provided as follows:

   a)That the Applicant spend time with the child after school each alternate Monday until 6:00pm commencing the 9 November 2015.

   b)The Applicant, for the purposes of Order 1(a) herein, to collect and return the child as provided in Order 5 of the Orders made 5 November 2015.

Agreed or Undisputed Relevant Facts

1. The father is aged 32 years. The mother is aged 30 years. The marriage was of some five years duration. As stated earlier, a child, X, was born (omitted) 2006. He is now aged nine years. On 12 May 2010, Family Court orders were made in Canberra between the parties and which provided, inter alia, that the child live with the mother, the child spend time with the father each fortnight from 6:00pm Friday to 6:00pm Sunday. Thereafter, the mother left the ACT to live in Sydney with the child.

2. From about mid-June 2014 to the end of March 2015, the father spent time with the child in accordance with an agreed parenting plan which provided, inter alia, the child live with the mother and the father spend time with the child from Wednesday after school to 4:00pm Sunday in each alternate weekend. In about February 2015, the mother having previously moved from (omitted) to (omitted), the child commenced to attend a public primary school in (omitted). In about the end of March 2015, the parties reverted to a parenting regime for the child such that the father spent time with the child fortnightly on weekends.

3. In about October 2014, the mother had started paid employment in a job in (omitted). In June 2014, the father had commenced to reside in his own rented premises at (omitted). At the same time, the father was also residing in Canberra with his parents and sister. The father had been studying at the (omitted) School. He was also employed on a full-time basis in Canberra in a (employer omitted) there. He had flexible working arrangements with that (employer omitted) such that he was able to live in Sydney on a week-about basis.

4. The child has told the mother previously that the father is usually late when collecting him or taking him to school. However, the school has only contacted the mother on two (2) occasions between June and December 2014 to inform her that the father had not arrived at the school to collect the child. The child’s maternal grandmother lives close to the child’s present school at (omitted) and is able to assist in pickups of the child from that school.

Submissions of the Parties

1. The mother is concerned about the ability of the father to reliably comply with his proposed order that the child spend three hours on a Monday afternoon in alternate weeks with him when the new interim orders (set out in Exhibit A) alone represent a significant change in the child’s circumstances: since 31 March 2015, the child has been spending time with the father on fortnightly weekends with a changeover at (omitted). Yet, the fresh interim orders (Exhibit A) provide that the father spend time with the child from Wednesdays after school to 6:00pm Sunday in alternate weekends.

2. The mother submits that the proposed additional order (Exhibit B) providing for an extra three (3) hours on an alternate Monday afternoon and evening is too much for the child on top of the new interim orders (Exhibit A). The husband submits that the further proposed order (Exhibit B) to spend time with the child on alternate weeks on a Monday afternoon and evening for three (3) hours will not be disruptive to the child and will be beneficial for the further development of the child’s meaningful relationship with the father.  The Court notes that no submission was made by the mother that she would find it onerous to pick up the child at 6:00pm on the alternate Mondays at (omitted), which would be the relevant pickup time on the father’s extra time proposal.

Relevant Legal Principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled:  see Goode& Goode (2006) FLC 93-286.

2. In Marvel& Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows: and the Court refers to paragraphs 120, 122 and 123 of the decision in Marvel:

   [120]. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122]. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123]. Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

3. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks& Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52:

   Consideration of the s 60CC factors that are relevant

   [46]. In order to determine whether it is in the child’s best interests to remain in Thailand pending trial, we must consider matters arising under s 60CC.

   [47]. As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.

   [48]. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   [49]. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

   [50.] When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

   [51]. In our view, the undisputed facts here lead inexorably to the conclusion that it would not be in the child’s interests to be required to move to Australia pending the trial. In arriving at this conclusion we ought to record, without condescending to particulars, that it is arguable the primary judge was led into error in coming to a different conclusion by the way in which the case was presented to her.

   [52]. In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.

4. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

5. In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

6. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

7. When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61BA of the Act. When the Court is making an interim order, the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA(3).

8. If the presumption of equal shared parental responsibility in relation to the child applies and is not rebutted, the Court must firstly consider whether the child spending equal times with each of the parents would be in the best interests of the child and reasonably practicable.

9. If equal time is found not to be in the child’s best interests or impracticable as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spend substantial and significant time (as defined in section 65DAA(3)) with the parents unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC or impracticable.

10. If neither equal time nor substantial and significant time is considered to be in the best interests of the child or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper being orders that are in the best interests of the child as a result of consideration of one or more of the matters in sections 60CC: sections 60CA, 60CC, 65D.

THE BEST INTERESTS OF THE CHILDREN

Section 60CC considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration.

1. The child presently enjoys a meaningful relationship with each parent and he would benefit from the continuance of those meaningful relationships.

2. The Court is of the view that the child’s relationship with the mother would not be detrimentally affected by the making of the father’s proposed order (Exhibit B).

3. Further, the Court is of the view that the child’s meaningful relationship with the father would probably be enhanced by acceding to the father’s proposed further order (Exhibit B). The Court gives significant weight to this primary consideration.

The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence

1. There is some historical evidence relating to family violence in the parties’ past relationship. The mother refers to an incident in 2006 when the father made a verbal threat to her. Since that time, the mother alleges that there has been controlling and manipulative behaviour by the father. The Court notes that in more recent times, there has been an absence of any physical violence between the parties and no such violence directed towards the child.

2. The mother refers to the father having taken the child in July 2014 to a political rally for a (omitted) cause. She alleges that the father took the child on a Sunday at that time to which the mother later objected.  The view of the Court is that this type of occurrence is unlikely to occur in the future, particularly in the context of the additional order that the father seeks (Exhibit B).

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The child is aged 9 years. Whilst the child has apparently informed the mother in recent times that the father is usually late to pick him up from school and take him to school, this would appear to have only resulted in two (2) discrete occasions when the school authorities contacted the mother during a six (6) month period. The Court attaches little weight to this remark by the child to the mother in the factual circumstances just outlined.

The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The Court notes that the child has a meaningful relationship with each parent.

The extent to which each of the child’s parents has taken or failed to take the opportunity;  to participate in making decisions about major long-term issues in relation to the child;  and to spend time with the child;  and to communicate with the child.

1. The Court refers to its discussion above under the additional consideration “the views of the children”. Otherwise, both parents have sought to take opportunities to so participate, spend time with the child and to communicate with him.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parents’ obligations to maintain the child.

1. The parties are in dispute at this interim stage, as to the extent to which each parent has financially supported the child. The Court is not in a position at this interim hearing to resolve such dispute.

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his/ her parents or (ii) any other child, or other person (including any grandparent) or other relative of the child (with whom he/she has been living

1. Whilst the Court accepts the mother is concerned with the father’s proposal to spend an extra three (3) hours on alternate Mondays with the child (Exhibit B) the Court, at least at this interim stage cannot discern from the evidence before it any compelling evidence to suggest that the child will be detrimentally affected by spending time with the father on alternate Monday afternoon and evenings for some three (3) hours. The Court is mindful that the fresh interim orders agreed to (Exhibit A) will remove the burden to the parties and the child of travelling on a fortnightly basis to and from (omitted) to effect a changeover.

2. Regarding the mother’s concern in the above respect, the Court also notes the past period between about June 2014 and 31 March 2015 when the father spent time with the child from Wednesday after school to 5:00pm Sunday in each alternate weekend.

The practical difficulty and expense of a child spending with time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

1. There is no persuasive evidence of any such practical difficulty or expense regarding the father’s proposed further order as set out in Exhibit B.

The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child);  to provide for the needs of the child including emotional and intellectual needs.

1. On the evidence before the Court, both parents are capable of providing for the needs of the child including his emotional and intellectual needs.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the court thinks are relevant.

1. This additional consideration is not relevant.

The attitude to the child, and to the responsibilities of parenthood demonstrated by each of the child’s parents.

1. On the evidence before the Court both parents have demonstrated a positive attitude to the child, including the responsibility of parenthood.

Any family violence involving the child or a member of the child’s family

1. The Court refers to its discussion above under the “need to protect the child’s primary consideration.”

Any family violence involving the child or an infant child’s family

1. The Court has noted the Notice of Risk filed by the mother on 15 June 2015 referring to two (2) incidents as set out on page 3 of that document. The Court has considered that allegation and notes it is largely historical relating to an incident in mid-2009 and a prior incident some years before. 

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. At this interim stage, the Court is of the view that the making of the proposed order that the father seeks (Exhibit B) will not lead to further proceedings being instituted between the parties in relation to the child. 

Any other fact or circumstance that the court thinks is relevant

1. The Court refers to the new interim orders agreed between the parties (Exhibit A) with the assistance of their lawyers which agreements auger well for the future. 

Equal shared parental responsibility

1. The parties have agreed, through Exhibit A, to an order that the parties have equal shared parental responsibility in respect of the child. 

2. The parties have agreed through the interim parenting orders in Exhibit A to “time with” orders providing for the father to effectively spend substantial and significant time with the child. The Court notes that the father’s Initiating Application sought interim orders for only five (5) out of 14 fortnightly nights and did not seek, expressly, equal time parenting orders. Again, the parties through their interim agreements (Exhibit A) have not agreed to an equal time arrangement. 

3. The parties, it can be inferred, by their own agreement (Exhibit A) are both of the view that it would not be in the best interests of the child that an equal time arrangement be imposed. 

4. On the evidence before the Court at this interim stage, noting the father’s present living arrangements involving living in Canberra and working for a (employer omitted) there while spending a significant part of the alternating week in Sydney, it would probably not be in the best interests of the child in any event that an equal time arrangement occur nor would it be reasonably practicable. 

5. Again, the interim orders agreed to in Exhibit A do provide for the father spending substantial and significant time with the child. The father’s proposed order (Exhibit B) is practicable. The father will either travel from (omitted) or from Canberra to (omitted) to pick up the child after school on the fortnightly Mondays. It is noted that on the Wednesday after such Mondays he will spend time with the child from Wednesday after school until Sunday 6:00pm. 

6. The Court is of the view that the parties’ interim agreement (Exhibit A) that the father spend substantial and significant time with the child is in the best interests of the child. The Court is also of the view, evaluating the primary and additional considerations under section 60CC of the Act, that the father’s proposed order (Exhibit B) is in the best interests of the child. The Court will make orders in accordance with Exhibit B accordingly.

7. Accordingly the Court makes the following orders and directions:

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:         20 July 2016