ROSEN & MORRISON

[2020] FamCA 986

FAMILY COURT OF AUSTRALIA

ROSEN & MORRISON [2020] FamCA 986

FAMILY LAW – CHILDREN – Interim parenting orders – Where the parties previously abided by a parenting plan under which they exercised equal shared parental responsibility, the children lived with the mother, and spent substantial time with the father – Where the father alleges the children are exposed to the risk of harm by subjection or exposure to family violence, physical abuse and sexual abuse in the mother’s care – Where the father withheld the children from the mother – Where the mother sought to restore the regime that existed under the parenting plan – Where the father sought to reverse the regime under the parenting plan – Where the mother denied the children are at any risk in her household but agreed to an injunction restraining her from bringing the children into contact with her partner or his children – Where the risks of harm alleged by the father are capably cured by the injunction – Where the parties are equally capable of catering for the children’s needs – Ordered the children live with the mother and spend substantial time with the father – Mother restrained from allowing the children to be brought into contact with her partner or his children.

Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61C, 61DA, 64B, 65AA, 65D, 65DAA

Family Law Rules 2004 (Cth) r 5.09

Banks & Banks (2015) FLC 93-637
Eaby & Speelman (2015) FLC 93-654
Goode & Goode (2006) FLC 93-286
Salah & Salah (2016) FLC 93-713
SCVG & KLD [2014] FLC 93-582

APPLICANT: Mr Rosen

RESPONDENT: Ms Morrison

FILE NUMBER: NCC 581 of 2020

DATE DELIVERED: 12 June 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 12 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Mr Makaritis (via telephone)

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Mr Ferry (via telephone)

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT

1.The children X, born … 2014, and Y, born … 2015, shall live with the mother, subject to:

a.The mother not cohabitating with Mr B; and

b.The mother ensuring that the children have no physical contact or communication with Mr B or his children.

2.The mother is restrained from allowing the children to be brought into contact with or to communicate with Mr B or his children.

3.The parties shall each take reasonable steps to ensure the children spend time with the father as follows:

a.During school terms, each alternate weekend from 6:00 pm on Friday until 6:00 pm on Sunday, commencing on Friday, 26 June 2020 (excluding between 9:00 am and 6:00 pm on Mother’s Day);

b.For the first week of the autumn, winter and spring school holidays commencing at 9:00 am on the first Saturday and concluding at 5:00 pm on the following Saturday;

c.From 5:00 pm on Christmas Day until 5:00 pm on 9 January each year; and

d.From 9:00 am to 5:00 pm each Father’s Day.

4.For the purpose of implementing these Orders, the parties shall ensure the children’s exchange at the Service Station, Suburb D, NSW.

5.The parties shall take all reasonable steps to ensure that the children communicate privately by telephone with the father each Tuesday and Thursday at 6:00 pm, for which purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time.

6.Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

7.Otherwise:

a.The Application in a Case filed on 18 May 2020 by the father is dismissed;

b.The Response to an Application in a Case filed on 22 May 2020 by the mother is dismissed;

c.The application for interim relief contained within the Response filed on 22 May 2020 by the mother is dismissed;

d.The Application in a Case filed on 3 June 2020 by the mother is dismissed;

e.The Response to an Application in a Case filed on 9 June 2020 by the father is dismissed; and

f.Any and all other outstanding applications for interim relief are dismissed.

BY CONSENT, IT IS FURTHER ORDERED THAT

8.Pursuant to s 68L of the Family Law Act, the children shall be independently represented, and the Legal Aid Commission of NSW is requested to arrange such representation.

9.The parties shall within seven days hereof provide to the Solicitor in Charge of the Family Law Section, Legal Aid Commission of NSW, copies of any documents they have filed in these proceedings.

10.The Registrar of the Family Court of Australia at Newcastle shall forthwith forward a sealed copy of these orders to the Solicitor in Charge of the Family Law Section, Legal Aid Commission of NSW. 

11.The listing of these interim proceedings in the judicial duty list on 13 July 2020 is vacated.

12.No order as to costs in respect of the interim proceedings.

NOTATIONS

A.No order is made allocating parental responsibility for the children to the parties pursuant to s 61DA(3) of the Family Law Act. In that event, both parties retain parental responsibility for the children pursuant to s 61C of the Family Law Act.

B.The parties acknowledge that these orders are consistent with the Apprehended Violence Order made by the Local Court of New South Wales in 2019.

C.These proceedings remain listed before the Registrar for further procedural directions on 24 June 2020.

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 Rosen & Morrison 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 NEWCASTLE

FILE NUMBER: NCC 581 of 2020

Mr Rosen

Applicant

And

Ms Morrison

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1.These proceedings were commenced by the father against the mother in February 2020 under Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2.The parties seek parenting orders in respect of their two children, now aged six and five years respectively. 

3.The parties separated in June 2017 and then made consensual arrangements for the children’s care, including by way of a non-binding parenting plan, which they signed but did not register in September 2019. Until May 2020, the parties voluntarily abided by an arrangement under which they exercised equal shared parental responsibility for the children, the children lived primarily with the mother, and they spent substantial time with the father.

4.Things changed when the children made allegations to the father, during a weekend visit in early May 2020, of their subjection and exposure to family violence, physical abuse and sexual abuse when in the mother’s care. 

5.The mother is in a relationship with a man (Mr B) who has the part-time care of his four children (three sons and one daughter), all of whom are older than the subject children.

6.It is uncontroversial that the children were exposed to a physical fight between Mr B and one of his sons, which left the son injured and bleeding. An ambulance needed to be summoned and Mr B has apparently been charged with a criminal offence in relation to the incident. The children also alleged they have been struck, or at least intimidated, by Mr B’s sons and they are frightened of them. The mother told the Family Consultant she does not believe those allegations are true; nor does Mr B.

7.The youngest child also told the father she was sexually abused by one of Mr B’s sons, although the precise form of the alleged abuse is not revealed by the evidence. The father reported that complaint to the police for formal investigation. Apparently, the complaint is unsubstantiated and the alleged perpetrator will not be charged. Of course, that does not mean something improper did not occur, but the police feel there is insufficient evidence to mount a prosecution. The father is still alive to the risk of harm posed to the children by the alleged perpetrator but the mother’s rather dismissive attitude, as she expressed it to the Family Consultant, was that she was prepared to give the youngest child “the benefit of the doubt”.

8.In any event, the father was understandably alarmed by what he was told and so he withheld the children from the mother and promptly filed an Application in a Case on 18 May 2020, seeking interim parenting orders. His application was listed in a duty list in July 2020. The mother joined issue and filed her Response to an Application in a Case on 22 May 2020 and it too was listed in the same duty list.

9.The mother then filed an Application in a Case on 3 June 2020, seeking to review the registrar’s administrative decision to list the dispute for hearing in July 2020. The review application was listed before me today. The registrar certainly made no error about the listing on the material before her, but today both parties agreed the dispute needed urgent attention.

10.The review is a hearing de novo, so I determined to hear the interim dispute today with the parties’ consent. The mother wants to restore the regime which existed under the parenting plan. Conversely, the father effectively wants to reverse the regime under the parenting plan. Either way, the parties agreed the mother should be restrained from allowing the children to have any form of contact at all with Mr B or any of his children, regardless of whether the children live or merely spend time with her.

Evidence

11.The father relied on his most recent affidavit, filed on 9 June 2020. 

12.His application for permission to rely upon his two prior affidavits, filed on 18 and 26 May 2020, was refused in reliance upon r 5.09 of the Family Law Rules 2004 (Cth).

13.The mother only sought to rely upon her affidavit filed on 11 June 2020. 

14.Neither party objected to the lateness of the other party’s material.

15.The parties also relied upon the Family Consultant’s memorandum dated 29 May 2020.

Legal Principles

16.The procedure for conducting an interim hearing has been authoritatively established by the Full Court. In Goode & Goode (2006) FLC 93-286, the Full Court said (at [68]):

…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future. 

17.Of course, that does not mean contentious evidence must be disregarded.  Particularly in parenting proceedings, the Court must remain alive to controversies, the ultimate resolution of which may have a significant bearing upon the determination of orders that meet a child’s best interests. Serious allegations cannot be ignored at interlocutory events simply because they have been put in issue (Salah & Salah (2016) FLC 93-713 at [33]-[45]; Eaby & Speelman (2015) FLC 93-654 at [18]-[19]).

18.In the course of conducting an interim hearing, the substantive legal principles embedded within the Act apply just as they do at final trial.

19.Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

20.When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

21.The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

22.In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

23.I turn, therefore, to consider the evidence pertinent to the children’s best interests.

Children’s Best Interests: s 60CC(2)(a)

24.It was not in controversy that the children enjoy meaningful relationships with both parties, from which they derive benefit. 

25.In consultation with the Family Consultant, the father referred to the mother as “a good mother”. He accepts the children love the mother and she loves them, and further, they need to maintain their regular relationships, subject to it being safe to do so.

26.As for the mother, she does not allege the father neglects or abuses the children in any way. Her only criticism of the father to the Family Consultant was her perception that he prioritised his work commitments over his responsibilities towards them. She accepts, by the proposals she now makes for the children to continue spending substantial time with him, that they do and will continue to derive benefit from their relationships with him.

Children’s Best Interests: s 60CC(2)(b)

27.The Family Consultant reports that the mother denied the children are at any risk at all in her household. She also denied the children are at any risk in Mr B’s household, as only one of his three sons now lives permanently with him. In conversation between the Family Consultant and the mother concerning the allegations made to the father by the children about their physical and sexual abuse, the mother said she did not believe the allegations, and in respect of the alleged sexual abuse of the youngest child she said she would “give the youngest child the benefit of the doubt”.

28.The mother also reported to the Family Consultant that her partner, Mr B, does not believe his son sexually abused the youngest child. The mother confirmed to the Family Consultant her view that Mr B and his sons do not pose an unacceptable risk of harm to the children, though the mother did say she would abide by an injunction preventing her from bringing the children into contact with Mr B and his children. 

29.Significantly, the mother indicated to the Family Consultant that she had no intention of ending her relationship with Mr B.

30.Based on the information then known to the Family Consultant, she reported as follows (at [47]):

Regardless of the mother having been the children’s primary carer and despite her being “a good mum”, the children’s safety is much more important and at this point in time, the Family Consultant is of the view that until safety in the mother’s care can be established, the children should remain with the father; they spend limited time with the mother; they spend no time with Mr B and/or his children; and the father enrol the children in school as soon as possible.

31.Self-evidently, that recommendation was premised upon what the Family Consultant perceived to be the mother’s desultory attitude to the children’s safety at that point in time. 

32.In his affidavit, the father said this (at [7]):

I have attempted numerous times to reason with the Mother and put proposals of consent orders to her, that should she agree to keep the Children away from her partner [Mr B] and his children that I would be willing to return to Children to her to resume their schooling and ordinary lives (sic).

33.In response, the mother said in her affidavit that she would submit to an injunction in these precise terms:

That the Respondent Mother be restrained by injunction from bringing or allowing the children to be brought into contact with [Mr B] or his children (sic).

34.Not without some hesitation, ultimately, I am not prepared to reject out of hand as being inherently unreliable the mother’s sworn evidence to abide by such an injunction. 

35.In that event, the father acknowledges the risks of harm which he perceives are posed to the children in the mother’s care are alleviated and he accepts the family should revert to the arrangements that applied until only a month ago. It stands to reason that, if the father expected the mother to abide by an injunction in those terms if the children spend time with her on alternate weekends, he can expect her to abide by the same injunction if the children instead return to live with her.

36.The mother should realise, however, that any breach of the injunction, which will now be made in those terms, will likely have serious repercussions. The mother and Mr B no longer live in the same household so it will mean, if the children live with her, she will be unable to see him for 12 days of each fortnight. 

37.It was accepted that the non-residential parent would have contact with the children every second weekend for two nights.

38.As added insurance, the orders will require the mother not to cohabit with Mr B as a pre-condition to the children’s residence with her.

Children’s Best Interests: s 60CC(3)

39.Very few of the factors stipulated as additional considerations under s 60CC(3) of the Act were the subject of any evidence or submission by either party.

40.The Full Court has previously noted that a paucity of uncontested evidence means that only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim proceedings should be confined to only those issues which, in the best interests of the children, require determination prior to a proper determination at final trial. Not every s 60CC factor need be discussed in that process. As a consequence, judgments in interim hearings need only address the contentious factual and legal matters which are joined between the parties (SCVG & KLD [2014] FLC 93-582; Banks & Banks (2015) FLC 93-637 at [47]-[50]).

41.Two factors mentioned in s 60CC(3) do require some attention.

42.Section 60CC(3)(d) requires the court to take into account the likely effect of any changes in the children’s circumstances, including the likely effect on children of any separation from their parents. As I have already mentioned, until approximately a week ago, the children have always lived primarily with the mother. Indeed, the Family Consultant noted in the memorandum that it was not in dispute the mother was the children’s primary carer and their time with the father was limited, largely due to his work commitments. It was not in dispute that the children have close and loving relationships with the father and although I accept the children will likely be settled in his care, it is likely, at least by inference, they have been somewhat unsettled by their removal from the primary care of the mother.

43.Section 60CC(3)(f) requires the Court’s consideration of the parties’ capacity to provide for the needs of the children. As I have already mentioned in passing, the mother implied to the Family Consultant that the father has always prioritised his work commitments over his expenditure of time with the children, and she entertains some doubt about his capacity to care for them on a full-time basis. That concern was addressed by the father in his affidavit, where he deposed (at [40]) to him having the support of his employer, who is prepared to offer him flexible working arrangements whilst he cares for the children. In any event, he also referred (at [41]) to him having ready access to support from the paternal grandparents and other members of the extended paternal family. He also has the support of his partner, with whom he cohabits.

44.Turning then to the mother’s capacity to provide for all of the children’s needs, the Family Consultant reported that she appeared to be unable to understand what was happening for the children and lacked the ability to “separate her own issues from those of her children, as evidenced by her minimising the allegations of sexual and physical assault and the violence between Mr B and his son”. The Family Consultant was of the view (at [39] and [44]) that the mother lacked some insight, the implication being there was some impairment to her parenting capacity. Whilst I accept that evidence must be broadly correct, the mother’s belated willingness to accede to an injunction restraining her from allowing the children any contact of any sort with Mr B or his children represents some acknowledgement that there is some risk posed to the children, at least on the untested evidence.

Conclusion

45.I return, then, to the issue of parental responsibility. The Act imports a rebuttable presumption that children’s best interests are served by an order allocating equal shared parental responsibility to the children’s parents. Pursuant to s 61DA(2) of the Act, that presumption does not apply in certain circumstances, and evidence of the type which would render the presumption inapplicable has been adduced. In particular, the mother has adduced evidence of the father’s past perpetration of family violence. Such allegations are largely denied by the father, but there is an active apprehended violence order in existence, binding his behaviour for the protection of the mother.

46.By the same token, the mother conceded during this hearing that historical allegations of family violence have no material bearing upon the outcome of the dispute because, as she has ably demonstrated since the time of the parties’ separation some three years ago, she is content to share parental responsibility for the children with the father and she has been content for the children to spend substantial time with him.

47.At this interlocutory stage, I make no finding in relation to the occurrence of family violence or any other form of abuse which might render the presumption of equal shared parental responsibility inapplicable.

48.Section 61DA(3) provides that when a Court is making an interim order, as is now occurring, the presumption of equal shared parental responsibility applies unless the court considers that it would not be appropriate for the presumption to be applied. I invoke that sub-section. I think it is inappropriate for the presumption to apply at this interlocutory stage. In that event, in the absence of an order allocating parental responsibility, each party will retain their parental responsibility for the children pursuant to the provisions of the Act (s 61C).

49.Since I have declined to make an order for equal shared parental responsibility, the provisions of s 65DAA of the Act are not engaged.

50.There is agreement between the parties that the regime which formerly applied under the parenting plan should be restored. The only dispute is over which party should be the primary carer of the children. In my view, the children should be restored to the mother’s primary care. The risks of harm adverted to by the father are capably cured by the injunction to which the mother is now prepared to willingly submit. She is as equally well placed to cater to the children’s needs and, in those circumstances, the longitudinal history of her provision of primary care for the children and their attendance at school in a locality close to the mother’s residence is of pre-eminent importance.

51.The children should spend substantial time with the father and they should be able to communicate with him by telephone regularly. 

52.Exchanges of the children should be effected at the Service Station at Suburb D, NSW, which is approximately equidistant between the parties’ respective households. It is the changeover venue they agreed to adopt in the parenting plan they executed some nine months ago. 

53.The parties agree that an Independent Children’s Lawyer should now be appointed to represent the interests of the children in these proceedings. 

54.For those reasons, I make the following orders on an interlocutory basis pending further order.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 12 June 2020.

Associate:

Date:  26 November 2020