SAVILLE & SAVILLE

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAVILLE & SAVILLE

[2013] FCCA 256

Catchwords:
FAMILY LAW – Interim parenting – child with special needs – high level of conflict between parents.

Legislation:

Family Law Act 1975, Part VII.

Cases cited:
Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant:

MR SAVILLE

Respondent:

MS SAVILLE

File Number:

SYC 2963 of 2008

Judgment of:

Judge Altobelli

Hearing date:

19 April 2013

Date of Last Submission:

19 April 2013

Delivered at:

Sydney

Delivered on:

19 April 2013

REPRESENTATION

Solicitors for the Applicant:

E H Tebbutt & Sons

Solicitors for the Respondent:

Marks Griffiths & Bova Solicitors

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Sydney Central Family Law

THE COURT ORDERS PENDING FURTHER ORDER THAT:

Interim orders be made in relation to the child [X] born [in] 2005:
That all orders of 24 May 2010 be suspended, save for; orders 15, 16, & 17
That parental responsibility for the child be shared equally.
That [X] shall live with his Mother in the Sydney Metropolitan area.

Spend time with orders:

That [X] shall spend time with his father as follows:
(a)Each alternate weekend from after school (or after school care) on Friday to before school (or before school care) on Monday morning.

Holidays and special events

Any live with and spend time with periods as set out in orders: above are suspended so that the child may spend holidays and special events with both parents as provided for below:
(a)for the second half of the April 2013 school holidays, commencing at 9:00am on Sunday 21 April 2013 to commencement on school on 29 April 2013 and otherwise
(b)for half of the shorter school holidays as agreed between the parties and failing agreement the first half in odd numbered years and the second half in even numbered years.
(c)in the 2013 / 2014 Christmas holidays
(i) from 9:00am on 20 December 2013 to 9:00am on 3 January 2014; and
(ii) from 9:00am on 17 January 2014 to commencement of school day in first term 2014.
(d)from Good Friday to Easter Monday in even years;
(e)from 6pm on 25 April to 9:00am or before school on 26 April of each year.
(f)on [X]'s birthday in the event that [X] is spending time with his mother, on a school day for 2 hours commencing from 5:30pm, not including travelling time; and in the event that it is a non-school day, then for four hours as agreed, and failing agreement from 10am until 2pm.
(g)on Father's Day from 9:00am to 5:00pm.
(h)on Australia Day from 9:00am until 9:00am on 27 January.

Medical needs

Both parents are to ensure that they have the following with them when the child is in their respective care:
(a)an Epi Pen
(b)a sports puffer
(c)ventolin
(d)phenergan liquid & tablet
(e)laminated allergy & asthma action plan
Such items are to be contained in a pouch which is to travel with the child to each parent’s respective homes.
Each parent is to replace these items at their own cost if these items are lost or significantly depleted whilst the child is in their care.

Babysitting / Child Care:

That each parent shall be at liberty to arrange for babysitting or child care for the child during their time provided that:
(a)the babysitter/carer is made aware of the child's allergies & asthma.
(b)the babysitter/carer is made aware of what to do in the event of an allergic reaction or asthma attack & provided with a copy of the Action Plans.
(c)the babysitter/carer is provided with an Epi pen and the child's Pouch containing:
(i)     a sports puffer
(ii)    ventolin
(iii)     phenergan liquid & tablet
and each parent is to bear their own cost of any baby sitting or child care that they have organised in their respective spend time or live with period.

Change-overs:

In the event that a changeover falls on a non school day, such a changeover is to occur at Woolworths at [omitted].

Telephone Communication:

The father shall ensure that the child telephones his mother as follows:
(a)on the Sunday night during his alternating weekend spend time with periods between 6pm and 6:30pm.
(b)on the Monday, Wednesday and Sunday night during any block spend time with periods between 6pm and 6:30pm.
The mother shall ensure that the child telephones his father as follows:
(a)each Wednesday night between 6pm and 6:30pm during her mid-term live with periods.
(b)on the Monday, Wednesday and Sunday night during any block spend time with periods between 6pm and 6:30pm.

Restraints

Both parents are restrained from attempting to communicate with the child or using a third person to communicate with the child outside of the times provided for these orders except in a medical emergency.
Both parents are restrained from making video or sound recordings of the following;
(a)contact changeover events;
(b)the other parent without their express knowledge or consent
(c)the residence of the other parent without their express knowledge or consent
(d)the child, unless such a recording is made for 'sentimental' reasons as opposed to evidence gathering.
Both parents are restrained from denigrating the other parent in the presence of the child and must use their best endeavours to ensure that the other persons do not do so.
Both parents are restrained from the following:
(a)discussing the issues in dispute in the proceeding with the child or within his hearing.
(b)placing any undue pressure on the child in respect of his views and wishes about who he should live with or spend time with.
Both parents are restrained from communicating with the other parent unless such communication is civil and is directly referrable to the child's care.
The father is restrained from taking the child to his place of work during any block holiday periods.

School and Education:

That the child shall not be removed from [O] School without the prior written approval of both parents or further order of the Court.
Notations:
For abundant clarity, the Court notes that nothing in these orders requires either parent to:
A. – Seek permission of the other parent or confirm with the other parent in relation to child care or babysitting arrangements.
B. – Inform the other parent in relation to any activities they intend for the child to participate in during their time.

BY CONSENT, THE COURT FURTHER ORDERS:

That the father spend time with [X] from 9.00 am on Sunday 21 April 2013 to commencement of school on 29 April 2013.
Changeover on Sunday 21 April 2013 at 9.00 am outside Woolworths at [omitted].
That the mother or her nominee attend upon changeover.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 2963 of 2008

MR SAVILLE

Applicant

And

MS SAVILLE

Respondent

ORAL REASONS FOR JUDGMENT

The case before me relates to [X] born [in] 2005, who is seven (7) years old, who currently lives with his mother and spends time and communicates with his father. I am part-heard in proceedings between the parents which relate to how much time he should spend with each parents, as well as the father’s contravention applications against the mother. Indeed, I have heard evidence in the contravention applications and indicated to the parents the orders I intend to make, but have reserved judgment. As a result of the matter becoming part-heard, the parents and the Independent Children’s Lawyer have invited me to make interim orders which vary, to different extents, the current arrangements for [X] to spend time with his father.
The matter stands over to 18 December 2013 for hearing, and the interim orders will therefore cover this period. The Independent Children’s Lawyer proposes orders in accordance with the handwritten document that I will incorporate into these reasons as Schedule A. For all practical purposes, the mother consents to the orders proposed by the Independent Children’s Lawyer. The father opposes orders 5, 8, 9 and 19. The parents reached agreement about school holidays and special days; the orders I made by consent in that regard are reproduced in Schedule B to these reasons.
I think it’s important to record that even though the orders that I am making are interim orders, the Court has available to it a considerable volume of evidence, including the father’s affidavits and those filed in his case, the mother’s affidavits and those filed in her case, the family report of Family Consultant S, the cross-examination of Family Consultant S, the cross-examination of the father and several exhibits.
There was no dispute between the parties and their legal representatives that all of this evidence would inform the interim orders, even though, for example, some of the evidence was adduced in the context of the contravention applications. Indeed, the only party I have not had an opportunity to see in the witness box is the mother. I have not had the benefit of cross-examination of her and nonetheless the point needs to be made that unlike many interim proceedings in this Court, there is a considerable volume of evidence before the Court.
The applicable law is, of course, Part VII of the Family Law Act. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of that section and the way to proceed and I will incorporate into these reasons a number of paragraphs from the Full Court’s judgment.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, 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.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 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 s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
The High Court’s decision in MRR v GR [2010] HCA 4 also contains a very useful discussion of what is reasonably practicable, an issue that arises even in these interim proceedings, so again I will incorporate a number of passages from the High Court’s decision:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
…
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
By way of overview, it is possible to establish, firstly, some common ground and otherwise set out some very strong impressions that are available from the evidence but which might, of necessity, fall short of being findings. The first thing is that [X] suffers from autism and has special needs, the nature and extent of which is set out in the medical and allied reports which are in evidence.
Nextly, the Court has a strong impression that the parents have different perspectives on the nature and extent of [X]’s special needs and the practical implications of this in his day-to-day care and life.
Nextly, the strong, almost inescapable impression formed from the evidence to date is that there is high, unmanageable conflict between the parents, and extremely high levels of acrimony. The litigation is being conducted in an intense fashion and the toxicity between the parents is extreme. There is poor to non-existent communication. In particular, the evidence suggests the changeovers are fraught with difficulty and in this regard, I have the benefit of evidence of a recording of one particular changeover. There is no doubt, on the evidence that the Court has seen so far, that [X] is exposed to all of this and the above overview provides a context in which the Court then needs to examine the issues that are raised on an interim basis.
I will deal with the issues in reverse order. Order 19 that is proposed by the Independent Children’s Lawyer and the mother, restrains the father from taking [X] to work during school holiday contact. In short, the father’s case is that there is no need for this as he has done it before and it has worked satisfactorily in the past. In any event, he submits that the parents have agreed that they will remove a previous restriction in the parenting orders, the effect of which was to limit the carers to the father and mother personally and in these circumstances, he says the requirement or the limitation on where he takes [X] is difficult to understand. [X] is not an ordinary child and this is not an ordinary case, nor should children ordinarily spend their school holidays at their father’s place of work. Given that the parents have agreed to lift the restriction on carers, there is just no reason for the father to need to bring him to work, which was the motivation for him doing so in the past. In the circumstances of this case it is not appropriate for [X] to be spending extended time with his father at his father’s work.
Order 9 obliges the parents to replace the items that are listed at order 7, which is by consent. Order 7 deals with [X]’s health needs. The father does not disagree but feels that the order is unnecessary. I disagree. This is a high conflict family where orders must be prescriptive and order 7 is precisely such an order and is necessitated on the facts of this case.
Order 8 obliges the parents to ensure that the order 7 items are carried in a pouch which travels with [X] to each parent’s home and presumably, wherever he goes with each parent. The Independent Children’s Lawyer and the mother say this is necessitated by [X]’s special needs. The father says it is unnecessary so long as both the parents and the school, independently, have these items. Again, I disagree. Despite his health issues it is pleasing to note that [X] engages in a range of activities that are not necessarily limited to home and school. In these circumstances I cannot understand the father’s opposition to this requirement, given the acknowledged health issues that [X] faces.
Order 5 is the main issue in dispute in these interim proceedings. The mother and Independent Children’s Lawyer propose that [X] spend time with his father each alternate weekend from after school on Fridays to before school on Mondays, whereas the father proposes it be each alternate weekend, Fridays to Tuesday mornings. The father’s case, he says, is supported by the Family Report and the oral evidence that the Family Consultant gave.
Both counsel for the Independent Children’s Lawyer and the mother urge the Court to be cautious in the circumstances of this case. Whilst it is submitted at one level that the difference between three (3) nights per fortnight and four (4) nights per fortnight is minimal, in the context of this case they submit there are multiple vulnerabilities to change for both [X] and the mother. What might be minimal change for any other child becomes potentially unmanageable change for [X]. The context of this case must be appreciated. The orders that the parents are entering into, in effect by consent, already bring about major change, in that there is a significant relaxation of the orders in relation to who can provide care for [X] and I note in this regard, this was a major source of the conflict between the parents.

This change is likely, I accept, to be a big one for [X] for whom familiarity and routine is important. It is also likely to be a big change for the mother. I have not yet seen her in the witness box but one can, however, form an impression based on her conduct in the case so far and in the evidence that I have seen about her and her own evidence, of course, as well as the Family Report, I accept that she is anxious. Whether her anxiety is unreasonable is yet to be seen but I accept that her anxiety is “a reality of the situation” I must deal with in this application, especially where she is the one who provides most of the parenting for [X].
The Independent Children’s Lawyer submitted that the issue of the mother’s anxiety was a significant one. However, it was equally significant that the mother could consent to the change in arrangements in caregivers. Indeed it is and thus it will be a big adjustment for her so far as her anxiety is concerned. For [X]’s time with his father to be extended at the same time as the other change is a further stressor for her, in respect of which there is a risk that there is an impact on [X] if not properly managed. Even if the father does have the capacity to implement this change, the mother does not. As for Ms S’s evidence, my greatest concern is that she has not seen the father give evidence as I have seen the father give evidence and has perhaps under-estimated generally the extent of the issue in this case about lack of parental insight and irresponsibility manifested in attitudes, actions and omissions. These are factors that apply to both parents.
In these situations, the Court is necessarily risk-averse. Where is the least risk of harm to [X] in the context of this case? If the Court extends the amount of time he spends with his father and then [X] struggles to cope in a context where his mother is vulnerable and his father may well lack insight, then there is no safety net for him. He potentially suffers harm that cannot necessarily or easily be remedied. However, if the Court declines to extend time with his father and, indeed, postpones this issue to the final hearing, what he misses out on in terms of extra time with his father can easily be made up at a later time.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate:

Date: 28 May 2013

SCHEDULE A

FAMILY LAW ACT 1975

MINUTE OF ORDER PROPOSED BY INDEPENDENT CHILDREN'S LAWYER

IN THE FEDERAL CIRCUIT COURT
OF AUSTRALIA File No: (P)SYC 2963/2008

BETWEEN: MR SAVILLE

(Applicant)

AND: MS SAVILLE

(Respondent)

Interim orders in relation to the child [X] born [in] 2005:
That all orders of 24 May 2010 be suspended, save for; orders 15, 16, & 17
That parental responsibility for the child be shared equally.
That [X] shall live with his Mother in the Sydney Metropolitan area.
Spend time with orders:
That [X] shall spend time with his father as follows:
a) Each alternate weekend from after school (or after school care) on Friday to before school (or before school care) on Monday morning.
Holidays and special events
Any live with and spend time with periods as set out in orders: above are suspended so that the child may spend holidays and special events with both parents as provided for below:
6a – for the second half of the April 2013 school holidays, commencing at 9:00am on Sunday 21 April 2013 to commencement on school on 29 April 2013 and otherwise
6b – for half of the shorter school holidays as agreed between the parties and failing agreement the first half in odd numbered years and the second half in even numbered years.
6c – in the 2013 / 2014 Christmas holidays
6.c.i – from 9:00am on 20 December 2013 to 9:00am on 3 January 2014; and
6.c.ii – from 9:00am on 17 January 2014 to commencement of school day in first term 2014.
6d – from Good Friday to Easter Monday in even years;
6e – from 6pm on 25 April to 9:00am or before school on 26 April of each year.
6f – on [X]'s birthday in the event that [X] is spending time with his mother, on a school day for 2 hours commencing from 5:30pm, not including travelling time; and in the event that it is a non-school day, then for four hours as agreed, and failing agreement from 10am until 2pm.
6g – on Father's Day from 9:00am to 5:00pm.
6h – on Australia Day from 9:00am until 9:00am on 27 January.
Medical needs
Both parents are to ensure that they have the following with them when the child is in their respective care:
7a - an Epi Pen
7b – a sports puffer
7c – ventolin
7d – phenergan liquid & tablet
7e – laminated allergy & asthma action plan
Such items are to be contained in a pouch which is to travel with the child to each parent’s respective homes.
Each parent is to replace these items at their own cost if these items are lost or significantly depleted whilst the child is in their care.
Babysitting / Child Care:
That each parent shall be at liberty to arrange for babysitting or child care for the child during their time provided that:
10a – the babysitter/carer is made aware of the child's allergies & asthma.
10b – the babysitter/carer is made aware of what to do in the event of an allergic reaction or asthma attack & provided with a copy of the Action Plans.
10c – the babysitter/carer is provided with an Epi pen and the child's Pouch containing:
       10.c.i – a sports puffer
       10.c.ii - ventolin
       10.c.iii – phenergan liquid & tablet
and each parent is to bear their own cost of any baby sitting or child care that they have organised in their respective spend time or live with period.
Change-overs:
In the event that a changeover falls on a non school day, such a changeover is to occur at Woolworths at [omitted].
Telephone Communication:
The father shall ensure that the child telephones his mother as follows:

12a – on the Sunday night during his alternating weekend spend time with periods between 6pm and 6:30pm.

12b – on the Monday, Wednesday and Sunday night during any block spend time with periods between 6pm and 6:30pm.
The mother shall ensure that the child telephones his father as follows:

13a – each Wednesday night between 6pm and 6:30pm during her mid-term live with periods.

13b – on the Monday, Wednesday and Sunday night during any block spend time with periods between 6pm and 6:30pm.
Restraints
Both parents are restrained from attempting to communicate with the child or using a third person to communicate with the child outside of the times provided for these orders except in a medical emergency.
Both parents are restrained from making video or sound recordings of the following;

15a – contact changeover events;

15b – the other parent without their express knowledge or consent

15c – the residence of the other parent without their express knowledge or consent

15d – the child, unless such a recording is made for 'sentimental' reasons as opposed to evidence gathering.
Both parents are restrained from denigrating the other parent in the presence of the child and must use their best endeavours to ensure that the other persons do not do so.
Both parents are restrained from the following:

17a – discussing the issues in dispute in the proceeding with the child or within his hearing.

17b – placing any undue pressure on the child in respect of his views and wishes about who he should live with or spend time with.
Both parents are restrained from communicating with the other parent unless such communication is civil and is directly referrable to the child's care.
The father is restrained from taking the child to his place of work during any block holiday periods.
School and Education:
That the child shall not be removed from [O] School without the prior written approval of both parents or further order of the Court.
Notations
:

For abundant clarity, the Court notes that nothing in these orders requires either parent to:

A. – Seek permission of the other parent or confirm with the other parent in relation to child care or babysitting arrangements.

B. – Inform the other parent in relation to any activities they intend for the child to participate in during their time.

SCHEDULE B

FAMILY LAW ACT 1975

IN THE FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY NO. SYC 2963 of 2008

BETWEEN: MR SAVILLE (Applicant)

AND: MS SAVILLE (Respondent)

AND: INDEPENDENT CHILDREN’S LAWYER

CONSENT ORDERS

BY CONSENT:

That the father spend time with [X] from 9.00 am on Sunday 21 April 2013 to commencement of school on 29 April 2013.

Changeover on Sunday 21 April 2013 at 9.00 am outside Woolworths at [omitted].
That the mother or her nominee attend upon changeover.

Dated: 12 April 2013

........(sgd)....................................... .......(sgd)...................................
Applicant father Respondent mother

[2013] FCCA 256

19 April 2013

Key Legal Topics

Areas of Law

Civil Procedure

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Standing

Procedural Fairness

Natural Justice

Abuse of Process