SARRAND and SARRAND

[2020] FCWA 93

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: SARRAND and SARRAND [2020] FCWA 93

CORAM: SUTHERLAND CJ

HEARD: 14 APRIL 2020

DELIVERED : Ex tempore

FILE NO/S: PTW 1329 of 2015

BETWEEN: MR SARRAND

Applicant

AND

MS SARRAND

Respondent

Catchwords:

CHILDREN - Interim - Ex tempore - Application by father to spend time with children in circumstances where mother alleges inter alia, that children are at increased risk of COVID-19 in father's care - No cogent evidence led by mother - Interim spend time with orders made

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Rynne
Respondent	:	Mr Hedges SC

Solicitors:

Applicant	:	Hearty & Tam Family Lawyers
Respondent	:	Keegan & Co. Family Lawyers

Case(s) referred to in decision(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

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

1I propose to deliver reasons in short form only. It is unnecessary for me to set out the relevant legal principles other than to note four matters. Firstly, in determining what parenting orders are to be made, the best interests of the children are the paramount consideration. Secondly, the legislation sets out various primary and additional considerations to be taken into account in determining what is in a child’s best interests. Thirdly, the issues, as joined by the parties, will determine which of those considerations are relevant to the determination of the particular dispute and considerations which are not relevant to that determination need not be expressly discussed. Fourthly, the circumspection with which findings on an interim hearing can be made is well established. Nevertheless, in interim proceedings the court is frequently required to weigh the probabilities of the competing claims and the likely impact on the child in the event that a controversial assertion was acted upon or rejected. Evidence may not simply be disregarded merely because facts are in dispute, leaving the interim determination to be made solely by reference to the agreed facts.

2The father and the mother have been involved in protracted parenting and financial proceedings since 2015. The parenting proceedings involve the parties' two young children, [Child A] and [Child B].

3Pursuant to existing interim orders the children live with the mother and spend time with the father. Given her slightly older age, Child A spends more time with the father each fortnight than does Child B.

4A defended trial is currently listed before Justice Moncrieff [in mid] 2020. The father commenced the current interim proceedings on 3 March 2020 after the mother failed to make the children available to spend time with the father in accordance with the existing interim orders.

5The father’s application sought orders that he spend time with the children for three nights in week one, and for one night in week two. The orders sought by the father provided, effectively, for him to spend less time with the children than he was entitled to enjoy under the existing orders. Nevertheless, he couched his application in terms of orders that he understood reflected the mother’s position in relation to his ongoing time with the children. However, when the mother filed her responding documents on 13 March 2020 she effectively proposed that the father’s time with the children be wholly suspended.

6At the hearing on 9 April 2020 the father handed up an amended minute of orders sought. The parties were able to reach agreement about a number of issues and effectively elected not to proceed with a number of other issues. However, they were unable to reach agreement and required the court to make a determination about the following issues: Firstly, the father’s ongoing time with the children; and secondly, if the father’s time resumed then the arrangements for handovers.

7The mother’s reasons for not facilitating the father’s time with the children appear to have changed over time. Initially, the mother’s allegations revolved around her fears that: (1) The paternal grandmother was subjecting the children to physical discipline; (2) The father was increasingly subjecting the child, Child A, to family violence including specifically arguing with the child, yelling at her, swearing at her, and throwing her things in the bin. This was in the context that the mother alleged that the father had also subjected her to similar behaviours during their relationship; and (3) The father was breaching court orders including by firstly, sending his mother to collect Child A instead of personally attending himself at handovers, and secondly, attending at the mother’s home attempting to collect Child A. This second alleged breach was in the context that the mother may have also breached court orders by removing the child from school to prevent the father being able to collect her for the purpose of handover and spending time with the child.

8Subsequently, the mother’s allegations revolved around her fears that the children were at increased risk from COVID-19 if they were to spend time with the father.

9The father has denied all of the mother’s allegations that he or his mother pose a risk to the children.

10In terms of the timeline of the mother’s allegations, as from 12 February 2020 the mother ceased acquiescing to a longstanding arrangement that the paternal grandmother collect the child, Child A, from school on behalf of the father and instead, on 12 February 2020, the mother removed the child from school herself.

11Nevertheless, the mother facilitated the father being able to later collect Child A directly. The mother then alleged that on 17 February 2020 Child A reported that when she was alone with the father who was spending time with Child A without Child B, the father was "very mean" to her including allegedly behaving in the manner set out previously by me in these reasons. The mother urgently arranged to take Child A to her GP and to a counsellor. On 21 February 2020 the mother received a letter signed by Dr [G] in which the doctor set out basic details of the current family law proceedings, the current spend time with arrangements, and details of what Child A had reported about her father’s behaviour towards her. Dr [G] opined that Child A would be caused significant stress if made to return to her father’s house at this time.

12I have significant concerns about being able to place any reliance at all upon Dr [G]’s letter for the following reasons. Firstly, the doctor did not swear an affidavit in support of the mother. The letter, itself, is not evidence of the matters asserted in it. Secondly, there are significant question marks around the reliability of the matters asserted in the letter given the lack of any evidence as to whether Child A’s alleged disclosures were made directly by the child to the GP or instead relayed to the GP by the mother. If the disclosures were made directly by Child A then there was also no evidence as to the interview methodology adopted by the doctor, including whether any disclosures were effectively tainted by either the doctor and/or by the mother during the process. Thirdly, the doctor purported to reach the recommendation that Child A should not spend further time with the father without giving herself the opportunity to reality check the information, for example, by seeking information from the father directly.

13It appears that thereafter the mother declined to make either Child A or Child B available to spend time with the father including removing the children from school to stop the father from being able to collect one or both of them in accordance with the existing orders. After the father attended at the mother’s home to attempt to collect Child A, the mother then obtained an ex parte interim family violence restraining order protecting herself and the children from the father. The father disputes the evidence relied upon by the mother in support of her ex parte application and has evinced an intention to contest that order.

14In March 2020 the mother’s allegations then took a completely different path when she effectively alleged that the children were at increased risk of COVID-19 if they were to spend time with the father. In particular, the mother alleged that on or about 16 March the children were suffering from croup and were unable to attend school. The mother then made the decision to remove the children from school until the COVID-19 pandemic was no longer a life threatening risk. The mother annexed medical certificates for both children dated 16 March 2020 to her affidavit.

15The two medical certificates, which were signed by a Dr [S] were remarkably brief and uninformative in their terms, merely certifying that both children were unwell recently with an illness and required medical review and close observation. On 24 March both children attended on another doctor. The mother’s evidence was that this doctor recommended that both children remain in isolation as Child B has an increased risk of COVID-19 and that both children should not spend time with the father.

16The mother annexed medical certificates for both children dated 24 March 2020. The two medical certificates, which were signed by Dr [W], were equally brief and uninformative. The certificate for Child B certified that he has a medical condition which puts him at increased risk of COVID-19 and will be unfit for school from 9 March 2020 until further notice. The doctor also recommended that Child B remains in his mother’s home and does not attend access with his father in order to reduce his risk of exposure to the virus. The certificate for Child A referred to her having a family member at higher risk of COVID-19 but otherwise was in the same terms.

17Again, I have significant concerns about being able to place any reliance at all upon the medical certificates for the following reasons. Again, the doctors concerned did not swear affidavits in support of the mother. Given the importance placed by the mother upon the medical advice, I consider that this was a major omission by her. This was particularly the case in the circumstance where the medical certificates were so sparse in detail that it was effectively impossible to understand the basis for the doctors' conclusions, including what information they were provided by the mother in the first place and what assessments of the children they undertook in reaching their conclusions or whether, in fact, they simply provided the medical certificates in the terms sought by the mother with little or no independent assessments being done.

18Dr [W] also purported to reach the conclusion that the children spending time with the father placed them at increased risk of COVID‑19 without reality checking the information, for example, by speaking directly to the father.

19The mother also alleged that both children were at increased risk from COVID-19 if they were to spend time with the father as the parties have difficulties in the past reaching agreement in relation to medical issues concerning the children. However, I am not persuaded that even if the mother’s allegations are correct, that is a sufficient reason to totally suspend the father’s time with the children.

20The mother also alleged that the children may be at increased risk because the paternal grandmother works at a hospital and is, “on the frontline of exposure to COVID-19.” I am not persuaded on the available evidence that this is the case. The paternal grandmother’s most recent evidence was that she works part time as [an administration] assistant at [Suburb A] Hospital. She does not live with the father but she has assisted him in the past in the children’s care. In my view, there was no evidence to suggest that the paternal grandmother was on the front line or posed a greater risk to the children as alleged by the mother.

21The mother also appeared to maintain that the children may educationally at risk if they were to spend time with the father because he works full time and is not in a position to assist in the home schooling of the children. I am not persuaded on the available evidence that this is the case but in any event the father’s position was that he was prepared, on an interim basis, to spend time with the children only on weekends so as not to interfere with the arrangements the mother has made for the home schooling.

22In conclusion, none of the children’s treating medical professionals have sworn an affidavit in support of the mother’s case. I am not prepared to place any weight on the letter and medical certificates that have been provided by the mother by way of hearsay evidence in her affidavits. The thrust of the mother’s case now appears to be that the children are at increased risk from spending with the father in the light of the COVID-19 pandemic. In my view, there is simply no cogent evidence to support the mother’s contention including no evidence that the father is unable to properly see to the children’s health, safety, and welfare during the time they are spending with him (such as their medical, hygienic, social distancing and other needs).

23On the other hand, as matters stand, the mother’s failure to facilitate time between the father and the children may well be having a deleterious impact on their ability to have a meaningful relationship with each other. I am satisfied that on an interim basis orders should be made in the terms spend time with arrangements as set out in the father’s amended minute and as further amended by him at the interim hearing so that his time during week two also occurs on the weekend rather than during the week.

24In relation to handovers, both parties originally appeared to agree that all handovers should take place at the father’s residence. Subsequently, the mother’s position changed and she sought that all handovers take place at her residence. In my view and on the basis of the available evidence the parties should equally share in the travel to facilitate handovers. Accordingly, I propose to make orders that the father collect the children from the mother’s residence at the commencement of his time and the mother collect the children from the father’s residence at the conclusion of his time.

25Subject to parties having liberty to make further submissions, I also propose to make orders that the parent collecting the children park in the other parent’s driveway and remain in close proximity to their motor vehicle during handover and that the parent from whom the children are being collected either remain inside their home and or in close proximity to their front door during the handover.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KV
Associate

8 JUNE 2020