Sharpe and Sheraton
[2020] FamCA 250
•17 April 2020
FAMILY COURT OF AUSTRALIA
| SHARPE & SHERATON | [2020] FamCA 250 |
| FAMILY LAW – CHILDREN – Interim parenting – Discrete issues as to extent of alternate weekend and school holiday time – Consideration of applicable principles – Best interests of children. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, s 65DAA, 69ZL |
| Bondelmonte v Bondelmonte (2016) 259 CLR 662 Cimorelli & Wenlack [2020] FamCAFC 58 Dundas & Blake [2013] FamCAFC 133 Eaby & Speelman (2015) FamCA 104 Godfrey & Sanders [2007] FamCA 102 Goode & Goode [2006] FamCA 1346 Lim & Zong [2020] FamCAFC 20 Marvel & Marvel [2010] FamCAFC 101 Mazorski v Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 MRR v GR [2010] HCA 4 Sigley & Evor (2011) 44 Fam LR 439 Vallans & Vallans [2019] FamCAFC 260 |
| APPLICANT: | Mr Sharpe |
| RESPONDENT: | Ms Sheraton |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Bevan |
| FILE NUMBER: | PAC | 2197 | of | 2019 |
| DATE DELIVERED: | 17 April 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 11 February 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gardiner |
| SOLICITOR FOR THE APPLICANT: | Coleman Greig Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Fowler |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray (NSW) Pty Ltd |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Sarah Bevan Family Lawyers |
Orders
By Consent And Pending Further Order
That the children X born … 2008, Y born … 2010 and Z born … 2011 live with the mother.
That the children shall spend time with the father on the following occasions, and on these occasions the mother's time is to be suspended:
(a)On each of the children's birthdays from the conclusion of school to 5.30 pm if such birthday falls on a school day, or alternatively from 9.00 am to 1.00 pm if such birthday falls on a non–school day, should the children not already be in the father's care.
(b)On the father's birthday from the conclusion of school (or 9.00 am if a non-school day) to the commencement of school (or 9.00 am if a non‑school day) on the following day, should the children not already be in the father's care.
(c)On Father's Day from 5.00 pm on the Saturday prior to Father's Day to 5.00 pm Father's Day, should the children not already be in the father's care.
(d)From 9.00 am Christmas Eve to 1.00 pm Christmas day in each odd numbered year and from 1.00 pm Christmas Day to 6.00 pm Boxing Day in each even numbered year.
(e)Any such other time as agreed in writing between the parties from time to time.
That the children shall spend time with the mother on the following occasions, and on these occasions the father's time is to be suspended.
(a)On each of the children's birthdays from the conclusion of school to 5.30 pm if such birthday falls on a school day, or alternatively from 9.00 am to 1.00 pm if such birthday falls on a non-school day, should the children not already be in the mother's care.
(b)On Mother's Day from 5.00 pm on the Saturday prior to Mother's Day to 5.00 pm Mother's Day, should the children not already be in the mother's care.
(c)On the Mother's birthday from the conclusion of school (or 9.00 am if a non-school day) to the commencement of school (or 9.00 am if a non‑school day) on the following day, should the children not already be in the mother's care.
(d)From 9.00 am Christmas Eve to 1.00 pm Christmas day in each even numbered year and from 1.00 pm Christmas Day to 6.00 pm Boxing Day in each odd numbered year.
(e)Any such other time as agreed in writing between the parties from time to time.
That each party is hereby authorised to obtain from the children's schools all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.
That each party is hereby authorised to attend each of the children's sporting activities.
That in the event of any of the children being hospitalised, suffering illnesses/injury and/or visiting a general practitioner (GP) during any period referred to in these orders, the parent caring for the children shall notify the other parent as soon as practicable after the first contact with the D Medical Centre or hospital, and in any event within two hours and both parties shall be at liberty to visit the children if hospitalised.
That in the event of a party making an appointment for any of the children with a specialist or allied health professional apart from a general practitioner, that parent shall ensure the other parent is promptly notified of the appointment so as to enable the other parent to attend the appointment, should he/she wish.
That the parties advise the other of any change of mobile number, home telephone number, his/her residential address and his/her email address within 24 hours of such change occurring.
That each party is restrained from criticising or denigrating the other party, or his/her partner and/or family members, in the presence of, or within hearing of the children or on any social medial or other public forums.
That the parties be restrained from discussing these court proceedings with the children or allowing the children to see or have access to any documents filed or created for the purposes of these proceedings.
That for the purposes of changeovers if not at school, that changeover be facilitated by the mother by delivering the children to the father’s residence at the commencement of time and the father returning the children to the mother’s residence at the conclusion of time.
That both parties be and are hereby restrained from:
(a)Leaving the children unsupervised at any time they are spending time with them;
(b)Drinking alcohol whilst the children are spending time with them and for a period of 12 hours beforehand;
(c) Allowing the children to access any pornographic images or content;
(d)Allowing the children to play or access games which are classified as not being suitable for children under the age of 15 years and for allowing the child Z to play or watch others playing the game “Fortnite”;
(e)Allowing the children to participate on any online, voice over internet protocol or mobile telephone network communication with any other person other than members of the children’s direct and extended family or actual school friends;
(f) Allowing the child Z to sleep in the father’s bedroom; and
(g)Permitting the children to access mobile telephones and/or internet enabled devices after 8.00 pm.
It Is Further Ordered Pending Further Order
That the children, otherwise, spend time with the father as follows:
(a)During school term each alternate weekend from after school Friday (or 3.00 pm if not a school day) to before school (or 5.00 pm if not a school day) Monday commencing on the first weekend after the resumption of school term and each Wednesday from after school (or 3.00 pm if not a school day) until 7.00 pm.
(b)During NSW school holidays as follows:
(i)During the Term One 2020 mid-year school holiday period for a period of five consecutive nights commencing on the first Saturday of such holidays at 9.00 am and concluding on the following Thursday at 5.00 pm and thereafter during the mid-year school holiday periods for a period of seven consecutive nights commencing on the first Saturday of such holidays at 9.00 am and concluding on the following Saturday at 5.00 pm; and
(ii)During the Christmas school holidays for two non-consecutive periods of seven nights as agreed by the parties in writing and in default of agreement from 2 January at 9.00 am to 9 January at 5.00 pm and then from 17 January at 9.00 am to 24 January at 5.00 pm.
(c)At such other times as the parties may agree in writing.
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 Sharpe & Sheraton 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 PARRAMATTA |
FILE NUMBER:
| Mr Sharpe |
Applicant
And
| Ms Sheraton |
Respondent
REASONS FOR JUDGMENT
On 14 May 2019 the applicant father commenced proceedings in this Court seeking orders as to parenting and property adjustment.
In summary, the father sought parenting orders in relation to the parties’ three children X born in 2008, Y born in 2010 and Z born in 2011 (“the children”) that provided for the father and the mother to have equal shared parental responsibility for the children and for the children to reside substantially in a week about arrangement with each parent and specific orders as to special occasions including birthdays and Christmas.
The mother in her Response filed 12 June 2019 sought orders that she and the father have equal shared parental responsibility for the children, that the children live with her and that the children spend time with the father defined as from Friday afternoon to Saturday afternoon each week and each Tuesday afternoon until 7.00 pm and at such other times as the parties may agree. The mother sought a restraining order prohibiting the father from consuming alcohol 24 hours prior to and during time that the children would spend with him.
On 12 June 2019 a Registrar noted that the father had recently moved out of the matrimonial home, that there were apprehended violence proceedings pending at the Local Court in relation to an incident between the father and one of the children and that the father had been spending no time with the children. The Registrar further noted that the parties had recently reached an agreement for the father to spend Tuesday after school and overnight on a Friday with the children. The Registrar ordered the parties to attend upon a family consultant on 8 July 2019 for the preparation of a Children and Parenting Intake Assessment Report.
Subsequently, on 1 October 2019 an order was made by the Court for the appointment of Dr C as a single expert for the purposes of the parenting proceedings. Otherwise, certain interim orders were made as to property requiring the sale of a property owned by the parties at Suburb F.
Interim parenting proceedings were before the Registrar on 17 October 2019 and those proceedings were adjourned for hearing before a Senior Registrar on 14 November 2019. On the same day further financial orders were made by consent.
On 14 November 2019 the Senior Registrar made certain interim orders by consent and further orders after submissions. In summary, the relevant orders provided:
a)that the children live with the mother;
b)that the children spend time with the father as agreed between the parties in writing and in default of agreement from after school Friday or 3.00 pm if not a school day to 4.30 pm Saturday each week, from after school Tuesday or 3.00 pm if not a school day to 7.00 pm each week and at such other times as the parties may agree;
c)that the children spend time with the father on special occasions including the children’s birthdays, the father’s birthday, Father’s Day and the Christmas festive period and at such other times as the parties may agree;
d)that the parties be restrained from:
i)leaving the children unsupervised;
ii)drinking alcohol whilst the children are spending time with them or for a period of 12 hours beforehand;
iii)allowing the children access to any pornographic images or content;
iv)administering physical punishment to the children;
v)allowing the children to play or access any games which are classified as not being suitable for children under the age of 15 years and from allowing the child Z to play or watch others playing the game “Fortnite”;
vi)allowing the children to participate in any online, voice over internet protocol, or mobile telephone network communication with any person other than members of the children’s direct or extended family or actual school friends;
vii)allowing the child Z to sleep in the father’s bedroom; and
viii)permitting the children to access mobile telephones and internet enabled devices after 8.00 pm.
On 19 November 2019 the father filed an application seeking review of the Senior Registrar’s orders. On 18 December 2019 the father’s application for review was before the Court and certain orders and directions were made as follows:
(1)The application for review filed by the father pursuant to Application in a Case filed 19 November 2019 be adjourned for hearing to 10.00 am on Tuesday, 11 February 2020.
(2)The father file and serve an Amended Application in a Case setting out with particularity parenting orders sought by him by way of review by no later than Friday, 24 January 2020 together with any affidavit material to be relied upon by him.
(3)The mother file and serve a Response to the Amended Application in a Case together with any affidavit material to be relied upon by her by no later than 7 February 2020.
(4)The parties are granted leave to issue such subpoena as they consider relevant to the issues before the Court with such subpoena to be returnable by no later than Friday, 7 February 2020.
(5)Pursuant to s 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children Y born in 2010, X born in 2008 and Z born in 2011 and the Legal Aid Commission of New South Wales is requested to provide such representation.
(6)The parties are to provide to the Sydney Central Office of the Legal Aid Commission of NSW at 323 Castlereagh Street Sydney NSW 2000, PO Box K847 Sydney NSW 2000 or DX 5 Sydney forthwith copies of all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.
(7)Leave is granted to the Independent Children’s Lawyer to issue such subpoena as they consider relevant to the issues before the Court.
(8)Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.
(9)Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.
THE COURT NOTES THAT
(10)Consequence upon the appointment of an Independent Children’s Lawyer today, it is the expectation that the Independent Children’s Lawyer will facilitate a meeting with the subject children prior to the adjourned hearing date.
On 11 February 2020 the application for review was heard and on that day judgment was reserved. Pending judgment orders were made by consent as follows:
PENDING DELIVERY OF JUDGMENT, IT IS ORDERED THAT
(1)The children X born in 2008, Y born in 2010 and Z born in 2011 live with the mother.
The children spend time with the father as provided for in Order 1.1 made by the Senior Registrar on 14 November 2019 and that the children spend specified time with the mother as provided for in Order 1.2 of the orders made by the Senior Registrar on 14 November 2019 as follows:
(2)That the children shall spend additional time with the father on the following occasions, and on these occasions the mother's time are to be suspended:
(a)On each of the children's birthdays from the conclusion of school to 5.30 pm if such birthday falls on a school day, or alternatively from 9.00 am to 1.00 pm if such birthday falls on a non–school day, should the children not already be in the father's care.
(b)On the father's birthday from the conclusion of school (or 9.00 am if a non-school day) to the commencement of school (or 9.00 am if a non-school day) on the following day, should the children not already be in the father's care.
(c)On Father's Day from 5.00 pm on the Saturday prior to Father's Day to 5.00 pm Father's Day, should the children not already be in the father's care.
(d)From 9.00 am Christmas Eve to 1.00 pm Christmas day in each odd numbered years and from 1.00 pm Christmas Day to 6.00 pm Boxing Day in each even numbered year.
(e)Any such other time as agreed in writing between the parties from time to time.
(3)That the children shall spend additional time with the mother on the following occasions, and on these occasions the father's time is to be suspended.
(a)On each of the children's birthday from the conclusion of school to 5.30 pm if such birthday falls on a school day, or alternatively from 9.00 am to 1.00 pm if such birthday falls on a non-school day, should the children not already be in the mother's care.
(b)On Mother's Day from 5.00 pm on Saturday prior to Mother's Day to 5.00 pm Mother's Day, should the children not already be in the mother's care.
(c)On the mother's birthday from the conclusion of school (or 9.00 am if a non-school day) to the commencement of school (or 9.00 am if a non-school day) on the following day, should the children not already be in the mother's care.
(d)From 9.00 am Christmas Eve to 1.00 pm Christmas day in each even numbered years and from 1.00 pm Christmas Day to 6.00 pm Boxing Day in each odd numbered year.
(e)Any such other time as agreed in writing between the parties from time to time.
(4)During school term the children spend time with the father each alternate weekend commencing Friday, 21 February 2020 from after school or if a non-school day from 3.00 pm Friday until 5.00 pm Sunday and on each Tuesday from after school or if a non-school day 3.00 pm until 7.00 pm.
Orders in terms of paragraph 2, 3, 4, 5, 6 and 7 of the orders made by Senior Registrar on 14 November 2019.
(5)That each party is hereby authorised to obtain from the children's schools all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.
(6)That each party is hereby authorised to attend each of the children's sporting activities.
(7)That in the event of any of the children being hospitalised, suffering illnesses/injury and/or visiting general practitioner (GP) during any period referred to in these orders, the parent caring for the children shall notify the other parent as soon as practicable after the first contact with the D Medical Centre or hospital, and in any event within two hours and both parties shall be at liberty to visit the children if hospitalised.
(8)That in the event of a party making an appointment for any of the children with a specialist or allied health professional apart from a general practitioner, that parent shall ensure the other parent is promptly notified of the appointment so as to enable the other parent to attend the appointment, should he/she wish.
(9)That the parties advise the other of any change of mobile number, home telephone number, his/her residential address and his/her email address within 24 hours of such change occurring.
(10)That each party is restrained from criticising or denigrating the other party, or his/her partner and/or family members, in the presence of, or within hearing of the children or on any social media or other public forums.
(11)The parties be restrained from discussing these court proceedings with the children or allowing the children to see or have access to any documents filed or created for the purposes of these proceedings.
(12)For the purposes of changeovers if not at school, that changeover be facilitated by the mother by delivering the children to the father’s residence at the commencement of time and the father returning the children to the mother’s residence at the conclusion of time.
(13)Both parties be restrained from:
(a)Leaving the children unsupervised at any time they are spending time with them;
(b)Drinking alcohol whilst the children are spending time with them and for a period of 12 hours beforehand;
(c)Allowing the children to access any pornographic images or content;
(d)Allowing the children to play or access games which are classified as not being suitable for children under the age of 15 years and for allowing the child Z to play or watch others playing the game “Fortnite”;
(e)Allowing the children to participate on any online, voice over internet protocol or mobile telephone network communication with any other person other than members of the children’s direct and extended family or actual school friends;
(f)Allowing the child Z to sleep in the father’s bedroom; and
(g)Permitting the children to access mobile telephones and/or internet enabled devices after 8.00 pm.
The parties’ documents
The father relied on:
a)His amended Application in a Case filed 23 January 2020;
b)His Affidavit filed 14 May 2019;
c)His Affidavit filed 12 December 2019.
The mother relied on:
a)Her Response to the father’s Application in a Case filed 7 February 2020;
b)Her Affidavit filed 7 February 2020.
Many of the issues traversed by the affidavit evidence falls away by reason of the limited issues for determination but a consideration of the parties’ relationship throws some light on the discrete issues for determination.
Context
The father is presently aged 48 and the mother 46.
The mother is a self-employed allied health professional and the father a administrator.
The parties commenced cohabitation in early 1998 and married in 2004.
The children referred to above are the children of the parties’ relationship.
The father alleges that the parties separated in 2011 and that he shared a bedroom with the children thereafter. Regardless, the parties remained in occupation of the matrimonial home until 2019 as referred to above.
The mother makes a complaint as to a number of incidents relating to the children. In November 2013 a notification was made to the Department of Family and Community Services (as they then were) (“the Department”) in relation to the child X exhibiting sexualised behaviour. In September 2014 the father struck the child X leaving a small bruise subsequent to which the father saw a family counsellor as to his physical discipline of the children. In 2014 and 2015 the mother observed bruises and marks on the children’s backs, legs and upper arms. In 2015 the father raised a closed fist to the mother and lost his temper with the children chasing them and yelling “I’ll fucking kill you”.
The mother further complains that the father makes derogatory remarks to the child X. By March 2017 the mother, concerned about the father’s behaviour, forwarded him an email about the issue. In late 2018 the father said to the mother “what’s the point, I might as well kill myself”. The mother urged the father to seek mental health help. On various occasions the father has said words to the mother to the effect “you will never see the kids again”.
In November 2018 it is alleged the father assaulted the child Y on his upper legs and bottom and dragged the child on his back by his outstretched arms to the bathroom. The mother took the child to the child’s doctor who recorded the injuries noting that he had made a report to the “Child Wellbeing Unit”. The Department notes reveal: “father has been unable to control his emotions, is a former prison guard and has applied force towards 8 year old child causing several bruises and injury to finger. Father has been abusive in relationships before”. This last comment appears to refer to the father being the subject of police attention for violence related incidents with his former partner in November 1994 and January 1995 (Exh “H”). As to the later incident the father was charged with assault. The offence was found proved but without conviction and the father was placed on a good behaviour bond for 12 months.
The mother further asserts that the child Z complained of being cut by the father in January 2019 and that the father struck the child Y in the face causing a bleeding nose.
In March 2019 the mother dialled 000 and called the Police as a consequence of the father’s behaviour that she says was unpredictable, intimidating and aggressive. The police attended the home. No action was taken.
In April 2019 the mother alleges that the father assaulted the child Z leaving a red mark on the child’s throat. The Police attended and a provisional Apprehended Violence Order (“AVO”) was issued. The AVO was later discharged in July 2019 after a hearing at which the child was not called to give evidence (Exh “J”).
The parties thereafter separated with the father leaving the home. Informal arrangements were made as to the children’s time with the father as referred to above.
The father subsequently inappropriately engaged the child X in the issue of “equal time”. In June 2019 the child Z was reported by his teacher as saying he “wanted to kill himself” and “that the father would come back and kill them when they were 18.”
The father in his affidavit evidence denies the perpetration of family violence by him and much of the mother’s assertions. This is notwithstanding the objective indicia referred to above. His affidavit evidence is self-serving and excusatory.
However, and importantly, the mother makes no further complaint as to the father thereafter.
The CAPIA Report
The Children and Parents Intake Report (“the CAPIA Report”) is dated 19 July 2019, shortly after separation.
The mother expresses to the consultant that the children’s time with the father should be “safe”. The mother expressed concerns that the father was “just so impulsive, explosive, and aggressive in that more time with the children might expose them to risk”.
The children X and Y are clearly enmeshed in the parenting dispute as to time with their father with the father having involved the children inappropriately. The child Z reported that the separation occurred because “dad was fighting and swearing” but also reflected his inappropriate engagement in the parenting issues.
Both parties repeated their allegations against each other as to conflict and aberrant behaviour to the consultant. The children in a circumstance where both parents were present denied family violence by the father.
The father reports to the consultant that he sought help from a psychologist after separation but adduced no report or notes for consideration.
The consultant reported that the children have well established relationships with both parents but notwithstanding that, the children may have been influenced by the father in expressing their wishes.
Perhaps, opines the consultant, the parental relationship is the result of poorly managed conflict. The unresolved issue of family violence within the household is a significant issue.
However, the presence of various objective indicia are clearly indicative of violence being perpetrated by the father. Such issue will need to be resolved at a final hearing. However, the existence of family violence can have “significant psychological impact on children leading to a range of internalising and externalising difficulties”.
Parenting
In Goode & Goode [2006] FamCA 1346, the Full Court set out the pathway to be followed in saying that 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 must 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.
Since Goode (supra), s 69ZL of the Family Law Act 1975 (Cth) (“the Act”) has been enacted which provides that a court may give reasons in short form for a decision it makes in relation to an interim parenting order. It is to be presumed that the legislative intent of the new s 69ZL was to relieve judicial officers of the task of journeying in their reasons for judgment through the legislative maze that now leads a court to a conclusion as to the best interests of children.
Notwithstanding the presumed intent of s 69ZL, a judicial officer has obligations to give proper and adequate reasons no matter how truncated.
Notwithstanding the legislative invitation to deliver short reasons for judgment, it is still necessary to refer to the applicable legislative provisions and the statutory considerations that guide the Court’s determination. Such approach will reveal the weight attached to same and how they have guided the Court’s determination for the benefit of the parties.
Regrettably, in being obligated to do so the invitation to deliver short reasons is mostly illusory.
Interim hearings
In Marvel & Marvel [2010] FamCAFC 101 the Full Court discussed the difficulties in interim hearings associated with making findings on contested evidence in the following terms:
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).
121.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.”
122.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.
In Eaby & Speelman (2015) FamCA 104 the Full Court (Thackray, Ryan and Forrest JJ) observed about Goode (supra) in disputed facts in interim hearings:
18.... [T]hat does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
In Cimorelli & Wenlack [2020] FamCAFC 58 the Full Court again emphasised at [80]-[81]:
In interim hearings, where the evidence remains untested, disputed facts cannot be the subject of definitive findings, but simply because material facts have been put in issue does not mean the contested evidence must or should be ignored, since such evidence may have a significant bearing upon the determination of orders which promote the children’s best interests (Salah & Salah (2016) FLC 93-713 at [35]-[45]; Eaby & Speelman (2015) FLC 93-654 at [18]-[19]). Despite the limitations which constrain findings at interim hearings, aside from those “couched with great circumspection”, certain provisions within Part VII of the Act direct judges to consider risks which are pertinent to the welfare of children and their carers (for example: ss 60B(1)(b), 60CC(2)(b), 60CC(3)(j), 60CC(3)(k) and 60CG). It would constitute an error of law to ignore the statutory mandate and, correctly, the primary judge did not ignore it.
Naturally, the concept of risk encompasses the possibility of harm, not just the probability of harm (M v M (1988) 166 CLR 69). The primary judge was conscious of the need to evaluate the available evidence to determine whether or not it capably vindicated the submissions made by both the father and the ICL that the mother poses a tangible risk of psychological harm to the children.
The relevant principles in relation to parenting and interim proceedings are well settled in Goode (supra). The High Court in MRR v GR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (s 60CC(2)) and additional (s 60CC(3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where:
a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence (s 61DA(2));
b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (s 61DA(3)).
The presumption may also be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests (s 61DA(4)). Such a rebuttal requires proof or evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: Dundas & Blake [2013] FamCAFC 133, Vallans & Vallans [2019] FamCAFC 260.
In the event that the Court makes an order that the parties have equal shared parental responsibility, the Court must:
a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents: s 65DAA(1).
If no order is made for equal time then the Court must:
a)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
b)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents: s 65DAA(2).
Equal or substantial and significant time is not sought by either party. The issues for determination are discrete. It is common ground that the children will live primarily with the mother. Thus, the question of time with the non-resident parent is to be determined by the children’s best interest considerations.
Best Interests
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Full Court recently confirmed in Lim & Zong [2020] FamCAFC 20 at [33] that:
…[W]hilst the limitations of an interim hearing preclude a judge from making concluded findings of fact on disputed issues and untested evidence, s60CG of the Act – the requirement to consider the risk of family violence – is not constrained in its operation despite that inability.
The parties’ allegations against the other are reported by the family consultant. Some of the mother’s assertions are supported by the Police documents evidencing her complaints and the father being the subject of a provisional AVO. Otherwise, there is further objective material discussed above that supports and is corroborative of the mother’s contentions.
In this matter, by reason of the discussion above, there are reasonable grounds to believe that the father has perpetrated family violence. The parties are in significant conflict. The presumption as to equal shared parental responsibility shall not apply. However, it is not necessary to allocate sole parental responsibility to either. The statutory position will remain in place until final hearing.
The remaining primary consideration focuses upon what orders can be made to maintain a meaningful relationship between the children and each parent.
There is no present issue that the children are to remain in the primary care of the mother. The mother provides proper secure accommodation and arrangements for her children.
The reality is, in the context of this interim hearing, that the Court is obliged to have regard to the maintenance and promotion of the children’s relationships with both parents. A relationship may be less than optimal but nonetheless meaningful: Godfrey & Sanders [2007] FamCA 102 at [33]-[36]; Sigley & Evor (2011) 44 Fam LR 439 at [182].
In Mazorski v Albright[2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
26. What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The children have a strong established relationship with the mother who presents as the children’s primary carer. The children, it appears, by reason of her primary role have a settled attachment with the mother. The children’s relationship with the father is settled and they have been in the same arrangement as to time with him for the last nine months. His limited time with the children was reflective only of the mother’s concerns.
Additional Considerations: s 60CC(3)
Section 60CC(3) sets out the additional considerations. Regard has been had to all. More relevantly:
a)The views expressed by the children are at best, it appears, reflective of the father’s input and enmeshment of them in parenting issues. They represent the views of young children conflicted by the separation of parents that they both love. The High Court said recently in Bondelmonte v Bondelmonte (2016) 259 CLR 662 at [34] – [35]:
…In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child [something approaching a decisive status], but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child’s best interests.
The terms of s 60CC(3)(a) itself may be taken to recognise that, whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed. Children may not, for example, appreciate the long term implications of separation from one parent or the child’s siblings. Section 60CC requires that attention be given by the court to these matters.
It is thus difficult to ascribe any significance to the views expressed by the children as set out above in the CAPIA Report or unilaterally to the father. Clearly, orders are to be made that are in the children’s best interests notwithstanding.
b)The children’s relationships with the parents are considered above. This consideration favours the children remaining with the mother pending final hearing as agreed.
c)There is no difficulty and expense of the father seeing the children under orders proposed by all parties.
d)The mother presents as having the capacity to meet the disparate needs of these children. Otherwise, there is issue as to the father’s ability to self-regulate that awaits determination at final trial. In the interim, the children’s time with him should be cautiously expressed. His capacity in this regard is untested and subject to adverse allegations by the mother as to family violence and perhaps mental health issues. Yet the mother makes no complaint substantially since separation.
e)There are allegations of family violence detailed above, as there were in the father’s earlier relationship. The single expert report is awaited. Such issues will be determined at final hearing. The allegations arise out of the parties’ relationship. They are no longer in one.
f)These are interim proceedings and clearly the Court is unable to make orders in this context that would lead to the institution of further proceedings.
As to the issues in dispute, the father contends (Exh “A”) that the children’s time with him should be:
a)During school term each alternate weekend from Friday after school to Monday before school and in each other week from after school Wednesday to before school Friday; and
b)For one half of all school holidays.
The mother proposed (Exh “K”) that the children’s time with the father should be:
a)During school term each alternate weekend from after school Friday to 5.00 pm Sunday;
b)Each Tuesday from after school to 7.00 pm; and
c)For time in school holidays, each alternate weekend from 9.00 am Sunday to 5.00 pm Sunday and each Tuesday from 9.00 am to 5.00 pm Wednesday.
The ICL proposed the children’s time be:
a)During school term each alternate weekend from Friday after school to Monday before school and in each week from after school Wednesday to 7.00 pm; and
b)In school holidays substantially for one half of the mid-year holidays and two periods of nine days in the Christmas holidays.
As contended by the ICL and the father notwithstanding the mother’s assertions as to risk, she has facilitated weekly overnight time with the father and proposed that the overnight periods be extended. That order was made pending judgment.
The children all expressed a desire to have more time with the father.
However, there are concerns raised by the material before the Court that impacts on an assessment of the father’s emotional regulation. The single expert report is imminent with interviews scheduled several months away. That report may throw some light on the issues for resolution.
In the interim, it is appropriate that orders be made with some caution and reservation but with a view to progressing the children’s time with the father.
By reason of the discussion above, it is in the best interests of the children that they spend alternate weekend time with the father and an off week afternoon with a slightly more truncated holiday period than that proposed by the ICL.
Otherwise, the parties are in agreement as to the substance of the remaining orders as were put in place at hearing.
Orders will be made accordingly.
I certify that the preceding seventy three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 17 April 2020.
Associate:
Date: 17 April 2020
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