Skerrett & Kryvenko (No 3)
[2024] FedCFamC1F 267
•24 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Skerrett & Kryvenko (No 3) [2024] FedCFamC1F 267
File number: BRC 12656 of 2022 Judgment of: CAREW J Date of judgment: 24 April 2024 Catchwords: FAMILY LAW – CHILDREN – Whether the final parenting order should be varied or discharged – Where neither parent complied with the terms of the final parenting order and sought to vary or discharge it – Where the mother represented herself with the assistance of an interpreter and McKenzie friend – Where the matter proceeded as if it were undefended although the mother was granted leave to cross-examine the family report writer and make submissions – Where the child has settled well into life with the father and his family – Where there have been significant changes to the parents’ circumstances to warrant substantial variation of the final parenting order – Where the final parenting order is discharged to limit confusion arising from substantially amending the final parenting order – Where the father will have sole parental responsibility and the child will live with the father – Where the child will spend time with the mother if the child expresses a wish to do so, and in any event, will have video calls each alternate Wednesday. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61DA, 64B, 65D, 65DAA, 65DAC, 69ZQ, 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.33, 1.04, 10.26, 10.27
Cases cited: Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93–637
Bennett & Bennett (1991) FLC 92–191
Carriel & Lendrum (2015) FLC 93–640
Doherty & Doherty [2016] FamCAFC 182
Eastley & Eastley (2022) FLC 94–094
Isles and Nelissen (2022) FLC 94–092
Johnson & Page (2007) FLC 93–344
M v M (1988) 166 CLR 69
Morgan & Valverde (2022) FLC 94–100
N and S and the Separate Representative (1996) FLC 92–655
Poisat & Poisat(2014) FLC 93–597
RCB v The Honourable Justice Forrest (2012) 247 CLR 304
Rice & Asplund (1979) FLC 90–725
Skerrett & Kryvenko [2022] FedCFamC1F 400
Skerrett & Kryvenko (No 2) [2023] FedCFamC1F 500
SPS & PLS (2008) FLC 93–363
Zane & Allan (2008) FLC 93–378
Number of paragraphs: 88 Date of hearing: 25 March 2024 Place: Brisbane Counsel for the Applicant: Mr O’Meara Solicitor for the Applicant: Hodgson Lawyers For the Respondent: Litigant in person Counsel for the Independent Children’s Lawyer: Ms Oakley Solicitor for the Independent Children’s Lawyer: Forest Glen Lawyers ORDER
BRC 12656 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SKERRETT
Applicant
AND: MS KRYVENKO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
24 APRIL 2024
THE COURT ORDERS THAT:
1.The parenting order made on 31 May 2022 is discharged.
Parental Responsibility
2.The father shall have sole parental responsibility for major long-term issues (as defined in s 4(1) of the Family Law Act 1975 (Cth)) concerning X born 2011 (“the child”).
3.In the exercise of the father's sole parental responsibility:
(a)The father is to advise the mother by email not less than 14 days prior to any decision about a major long-term issue intended to be made, save in the event of an emergency;
(b)The mother has 7 days to respond to the father’s email;
(c)The father is to consider the mother’s response prior to making the decision;
(d)The father is to advise the mother by email as soon as practicable of his decision; and
(e)The father is to provide an update about the child’s health, education, and welfare by sending the mother an email on four occasions each year being on or before 31 March, 30 June, 30 September, and 31 December and attaching to the email any written reports.
Lives with
4.The child shall live with the father.
Time with
5.In the event the child expresses a wish to the father to spend time with the mother, the father shall take all reasonable steps to facilitate the child doing so.
Communication
6.The father shall facilitate the child communicating with the mother at all such reasonable times as may be requested by the child but in any event:
(a)Each alternate Wednesday commencing on the first Wednesday after the date of this Order, with the father to initiate a Facetime/video call to the mother’s phone between 6.30pm and 7.00pm and facilitate the child speaking to the mother; and
(b)On the child’s birthday and on Christmas Day in each year the father is to initiate a Facetime/video call to the mother’s phone between 6.30pm and 7.00pm and facilitate the child speaking to the mother.
7.The mother is at liberty to send gifts and cards to the child on the child's birthday, Christmas, and Easter by sending them to the father’s residential address at S Street, Town T.
8.Each party is to keep the other party advised at all times of any change to their residential address, email, and/or mobile telephone number.
NOTATION
A.The mother’s email address at the date of this Order is …@...
B.The mother’s mobile phone number is ….
C.The mother’s postal address is PO Box …, Town R.
D.The father's email address at the date of this Order is …@...
E.The father’s mobile phone number is ….
F.The father’s residential address is S Street, Town T.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
On 31 May 2022, Mr Skerrett (“the father”) and Ms Kryvenko (“the mother”) agreed on a final parenting order for their son, X, who will turn 13 years of age. Neither parent complied with the terms of that order, and both sought to vary or discharge it.
The child has been living with his father since 2 June 2022, pursuant to the 31 May 2022 order, and has barely had any contact with his mother since then. Prior to that, the child lived with his mother in City B, where the mother had unilaterally moved in early 2019 from Brisbane. The father barely had any contact with the child from that time until the child moved to live with him in June 2022.
By the time the matter came before me for final hearing, the mother had failed to comply with orders that she file any amended response and an affidavit of her evidence in chief. The mother also failed to appear at several interim/procedural hearings. On the first day of the hearing, the mother’s legal representatives were granted leave to withdraw. The mother represented herself with the assistance of a Country L interpreter and a friend who was granted leave to sit next to her and provide administrative assistance, a person commonly referred to as a ‘McKenzie friend’.[1]
[1] McKenzie v McKenzie [1970] 3 All ER 1034.
The matter proceeded as if it were undefended although the mother was granted leave to cross-examine the family report writer and to make submissions. The father was cross-examined by counsel for the independent children’s lawyer (“ICL”). The mandatory prohibition on personal cross-examination of a party applied in this case given the existence of a protection order between the parties (see s 102NA Family Law Act 1975 (Cth) (“the Act”)).
The child has been exposed to significant conflict since his parents separated in 2018 (and no doubt before they separated). There have been significant periods when the child has not had contact with one or other of his parents.
The 31 May 2022 order included a provision requiring the mother to undergo counselling “to bring home to her the damage that can be caused by involving a child directly in a dispute between the parents as she has done in the past”. There is no evidence the mother has undertaken the counselling. The order also made provision for the mother to spend some supervised time with the child before commencing an equal time arrangement. The supervised time did not occur.
An interim order made on 21 June 2023 made further provision for the mother to spend supervised time with the child at her election. There evidence, such as it is, does not persuade me that the mother took steps to spend time with the child pursuant to that or the previous order.
By all accounts, including from information provided by the child to the family report writer, Ms C, the child has settled well into life with his father and new family (the father has remarried, and he and his wife have a child together) and the child is performing well at school. The child is involved in numerous extracurricular activities. The family report writer opined that the child is “thriving” in the care of the father.
For the reasons which follow, the child is to spend time with the mother at all such reasonable times as may be requested by him and communicate with the mother at least each alternate Wednesday. The father will continue to have sole parental responsibility and will continue to be required to offer the mother an opportunity for input in relation to major long-term parenting issues.
ISSUES
The major issues identified for my determination when this matter was set down for trial were as follows:
(1)Whether the order made 31 May 2022 should be discharged either in part or in full?
(2)Should the child remain living with the father in Brisbane (the father has since moved to Region U) or move to live with the mother in City B (the mother has since moved to Region V)?
(3)Wherever the child is living, what time, if any, should be spent with the other parent?
(4)Whether either parent poses a risk of harm to the child by inappropriately involving him in the dispute between the parents?
WHY PROCEED UNDEFENDED AND WHAT DOES THAT MEAN?
At trial, after discussion with the parties, I determined to proceed as if the matter were undefended but to permit (without objection) the mother to cross-examine the family report writer and to make submissions. I indicated that my formal reasons for the ruling would be provided at a later time and my reasons are set out below.
Pursuant to r 1.33(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), if a party to a proceeding does not comply with, among other things, a procedural order to file material in preparation for a final hearing, the Court may do any of the following:
(a)dismiss all or part of the proceeding;
(b)set aside a step taken or an order made;
(c)determine the proceeding as if it were undefended;
(d)order costs;
(e)prohibit the party from taking a further step in the proceeding until the occurrence of a specified event; and
(f)make any other order the court considers necessary, having regard to the overarching purpose of the Rules.
The overarching purpose is set out in r 1.04 of the Rules and requires the Court and the parties “to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”.
Additionally, r 10.27 of the Rules provides that if a respondent is in ‘default’ (which is defined in r 10.26(2) and includes a failure to comply with an order), the Court may, among other things, “give judgment or make any other order against the respondent”.
On 20 October 2023, I made trial directions which required, among other things, the mother to file any amended Response and one affidavit of evidence in chief of herself and of any witness she intended to rely upon by 4 March 2024. The mother was further required to file a case outline by 20 March 2024 to identify, among other things, the material to be relied upon at trial. That order specifically provided:
23. In the event that either party fails to comply with these trial directions or fails to appear at the final hearing the matter may proceed as an undefended matter and final orders made.
The mother did not appear on 20 October 2023, but it was apparent during the trial that the mother had access to the Commonwealth Courts Portal which provides a party access to all documents filed and all orders.
A notation to the 20 October 2023 order, set out that the mandatory provisions of s 102NA of the Act applied which prohibited the personal cross-examination of the parties other than by a lawyer. Details of the process to be followed if applying for legal representation from Legal Aid Queensland pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme were set out therein.
The mother did not comply with the trial directions in any respect.
On 1 March 2024, a registrar made an order with the consent of both parents and the ICL, which, among other things, extended the time by which the mother was to file her material to 14 March 2024.
The mother did not file her material within the extended period or at all.
On 14 March 2024, the registrar made a further order which included the following:
3. In the event the [mother] fails to comply with Order 4 of the orders made on 20 October 2023 (to file and serve her amended response (if any) and her affidavits of evidence-in-chief) or fails to attend at the trial the [father] may seek orders on a default basis in terms of his amended Initiating Application filed on 11 March 2024.
As the mother did not appear at the directions hearing on 14 March 2024, the registrar also required the father to serve a copy of the order on the mother, which occurred by it being sent to her at her email address on 14 March 2024.
The registrar included the following notations to the 14 March 2024 order:
A. The respondent failed to appear today. She has not filed any material in preparation for the trial. She did not participate in the interviews for the family report.
B. Despite the application of s102NA of the [Act] to this matter and the [mother] being advised of the provisions of the Cross Examination Scheme no application for funding appears to have been made by the mother. No Notice of Address for Service has been filed on her behalf. Neither the [father] nor the Independent Children’s Lawyer is aware of any solicitor acting for the mother.
As earlier noted, the mother did have lawyers representing her at trial, but they withdrew.
The mother made no application to adjourn the trial.
As already noted, r 1.33(2) of the Rules provides several options if a party has failed to comply with procedural orders including to determine the proceeding as if it were undefended. However, as noted by the Full Court in Zane & Allan,[2] there is no definition of ‘undefended’ in the Family Law Rules 2004 (Cth) (since repealed) although the explanatory memorandum to those Rules stated that in such circumstances “the [C]ourt may make orders set out in the application on being satisfied by evidence that the orders should be made”. The explanatory memorandum to the current Rules contains no such statement but does include the following:
Subrule (2) sets out a non-exhaustive list of the court’s powers of case management where a party has not complied with the 2021 Rules, the Family Law Regulations or a procedural order. The powers must be exercised in the way that best promotes the overarching purpose of the 2021 Rules. Consequences must be relevant and proportionate to the breach, appropriate to the seriousness of the breach, and responsive to the particular breach.
[2] (2008) FLC 93-378 at 82,734.
The Honourable Justice Austin, sitting as a single judge in the appellate jurisdiction of this Court in Morgan & Valverde[3], stated in obiter that “[t]he hearing did not proceed on an ‘undefended basis’, … since the appellant participated in the trial and resisted the respondent’s application, though he was deprived of the opportunity to cross-examine”. If his Honour’s intention was to express a view that a party in default cannot take any part in proceedings if they are “undefended”, then I respectfully do not share that view and note that no authority was cited for that proposition. While his Honour’s view may be the position in other jurisdictions, parenting proceedings are not strictly inter partes.[4]
[3] (2022) FLC 94-100 at 81,574.
[4] RCB v The Honourable Justice Forrest (2012) 247 CLR 304 at [42].
In deciding whether to make a particular parenting order, this Court must regard the best interests of the child as the paramount consideration. When a party fails to file any material, the Court has no evidence before it from that party. The matter then proceeds only on the material that is before it whether that be in affidavits, documents tendered into evidence, and/or any oral evidence given by a party or witness during the hearing. In that sense, it seems to me that even where a party is given leave to cross-examine and to make submissions, the proceeding is undefended. No alternative evidence can be put before the Court unless a person cross-examined makes a concession.
As the best interests of the child is the paramount consideration for the Court in parenting proceedings, it seems entirely appropriate for a party who does not comply with a procedural order to file trial material, and who had ample notice of the prospect of the matter proceeding on an undefended or default basis if she did not file material, to nevertheless be granted leave to cross-examine to a limited extent and to make submissions as part of the undefended hearing.
PROPOSALS OF EACH PARTY
The father proposes that 31 May 2022 order be discharged, and the child continue to live with him and spend no time with the mother other than when the child decides to do so. The precise terms of the order sought by the father are set out in his further amended Initiating Application filed on 11 March 2024.
There is no material before me from the mother. The mother nevertheless submitted that the 31 May 2022 order should be discharged but conceded that the child will continue to live with the father. The mother submitted that the child should be free to see both parents and to contact them as he wishes.
The ICL recommended the following:
(a)Variation to the 31 May 2022 order as follows:
(i)By discharging paragraphs 3 (save for the words “That the child live with the father”;
(ii)By discharging paragraph 11 (spending time with the parents on special days);
(iii)By varying paragraph 22 to reduce the frequency of telephone communication between the mother and the child to fortnightly but to automatically cease after three months if the mother does not call;
(iv)By discharging paragraph 24 which is no longer applicable as the father has not moved to City B.
(b)For the mother to spend time with the child as agreed between the parents;
(c)The ICL opposed the personal injunctions sought by the father against the mother on the basis that the evidence did not justify such restrictions.
BACKGROUND
My ex tempore reasons delivered on 31 May 2022,[5] and further ex tempore reasons delivered on 21 June 2023,[6] should be read in conjunction with these reasons to provide some context to the current circumstances.
[5] Skerrett & Kryvenko [2022] FedCFamC1F 400.
[6] Skerrett & Kryvenko (No 2) [2023] FedCFamC1F 500.
The father is a New Zealand citizen but resident in Australia and was due to undertake an Australian citizenship test in 2024, which the father contends, “upon passing, I will be an Australian citizen”.
The mother was born in Country W but is resident in Australia.
The parents met ‘online’ in or about 2008 while the father was living in the United Kingdom and the mother was living in Country W. They travelled extensively on holiday together during 2008 – 2010 and the father frequently sent money to the mother.
In 2010, the mother informed the father that she was pregnant, and they undertook a marriage ceremony in Country W in 2010.
The child was born in Country W in 2011. The father contends that unbeknown to him, at the time, the mother named another man as the child’s father on the child’s birth certificate. The father contends that the mother “blamed [Country W’s] corrupt and chaotic administration system” for naming another man as the child’s father.
In late 2011, the father undertook a paternity test and the report dated 22 November 2011 confirms that the father is the child’s biological father. The child’s name was changed to X as evidenced in the Name Change Certificate registered in New Zealand in late 2011.
The father contends that the mother had married Mr Z in Country W in late 2009 which was unbeknown to him until 2020. Mr Z was the person named on the child’s original birth certificate as the child’s father.
The father, the mother and the child emigrated to Australia in early 2013. The father and the mother separated on a final basis on or about 18 March 2018 however they remained living under the same roof until on or about 7 March 2019, when the father returned home to find a note from the mother informing him that she and the child had left and would not be returning.
Towards the end of March 2019, the father discovered that the mother had withdrawn the child from E School and moved to City B.
In early 2019, the father was served with an application for a protection order naming himself as the respondent and the mother as the aggrieved. The father consented to a protection order without admission. The father contends that the mother was in fact the perpetrator of family violence including both physical assaults and verbal abuse towards himself and the child during their relationship.
Following an order made by consent on 31 May 2022, the child lived with the father in Brisbane before moving to Region U. The father is silent in his trial affidavit about the circumstances of his move from Suburb J in Brisbane to Town T in Region U. The father initially resisted disclosing his residential address but willingly provided it when asked to do so by his counsel. The child’s commencement this year at Y School was disclosed in the father’s trial affidavit. The child had previously attended primary school at E School.
The father re-partnered in mid-2019 and lives with his now wife, Ms CC. The father and Ms CC married in 2022 and have a child together, namely, DD. Ms CC also has a child from a previous relationship, namely, AA, aged ten, who also lives in the household. According to Ms CC, her son, AA, and the child have formed a strong bond. I have no reason to doubt her evidence. I also accept her evidence that DD and the child have a strong bond. Ms CC is employed as an educator and she has a tertiary qualification.
The father did not relocate to City B, as required by 31 May 2022 order because in 2022 Ms CC suffered a full term still birth of their daughter. Understandably, their world descended into grief and Ms CC required significant support from her extended family in Brisbane. Additionally, despite significant attempts to find accommodation in City B for his family, the father was unable to secure suitable accommodation.
In any event, at some point after the 31 May 2022 order, the mother moved from City B to Region V.
Whilst provisions for the child to spend supervised time with the mother were provided in the 31 May 2022 order and in the 21 June 2023 order, that opportunity was not taken up by the mother.
APPLICABLE LEGAL PRINCIPLES
While the existence of a ‘final’ parenting order does not prevent the court discharging, varying, suspending, or reviving some or all of a parenting order in an appropriate case,[7] it has long been the practice for the Court to apply a degree of caution when considering whether to re‑open a final parenting order, particularly one made recently.
[7] Poisat & Poisat(2014) FLC 93-597 (“Poisat”) at [37] - [38] and s 65D(2) of the Family Law Act 1975 (Cth) therein referred.
The Full Court in Rice & Asplund (per Evatt CJ) said:[8]
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
[8] (1979) FLC 90-725 at [7].
The above statement represents what is referred to as the ‘rule’ in Rice & Asplund. Whether or not the principles identified in Rice & Asplund are more properly called a ‘guiding principle’ rather than a ‘binding rule’, it is apparent that the principles have been universally applied for decades.[9]
[9] Poisat (fn 7) at [8].
Whether the ‘rule’ in Rice&Asplund is applied at a preliminary stage or after a full hearing, the best interests of the child remains paramount,[10] although “the hearing by which those best interests is determined may have characteristics which differ with the circumstances of the case”.[11] While the Court is not relieved of its obligation to consider the legislative provisions set out in Part VII of the Act, so far as relevant,[12] “the nature and extent of the consideration of the mandatory statutory considerations must, of course, depend upon the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings”.[13]
[10] Ibid at [42].
[11] Ibid.
[12] Ibid at [32] and [34].
[13] Carriel & Lendrum (2015) FLC 93-640 at [55].
The stage of the proceedings at which the rule is applied is a matter within the discretion of the presiding judicial officer,[14] although its significance is likely to be greater when applied at a preliminary stage.[15]
[14] Bennett & Bennett (1991) FLC 92-191 at [63].
[15] SPS & PLS (2008) FLC 93-363 at [48] (“SPS & PLS”).
The significance of the variation sought will have an impact on the application of the rule. As Warnick J held in SPS & PLS:[16]
The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
[16] Ibid.
That said, any variation of a parenting order pursuant to s 65D(2) of the Act will necessarily invoke the paramountcy of the best interests of the child and the consideration of such provisions in s 60CC as are relevant to the determination.[17]
[17] Doherty & Doherty [2016] FamCAFC 182 per Kent J at [64] – [65].
Even when the rule is applied after a full hearing, two particular public policy matters remain of some significance: firstly, to guard against one judicial officer simply substituting her or his view for that of the original judge; and secondly, to have a rule that can be relied upon to discourage endless litigation even if applied in that particular case at the conclusion of the full hearing.[18]
[18] SPS & PLS (fn 15) at [56] – [58].
Irrespective of the application of the Rice & Asplund principles, the Court has power to limit the issues that require investigation at trial as set out in s 69ZQ(1)(a) which provides:
(1)In giving effect to the principles in section 69ZN, the court must:
…
(a) decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily;
…
In parenting proceedings under the Act, s 43 of the Act requires the Court to have regard to several matters including:
(a)The need to protect the rights of children and to promote their welfare; and
(b)The need to ensure protection from family violence.
Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[19]
[19] Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in s 60B(1) and s 60B(2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations: the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child, and any other fact or circumstance considered relevant (s 60CC).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples of such behaviour include assault, stalking, repeated derogatory taunts, intentional damage, or destruction of property etc.
In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities,[20] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[21] and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[22] Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[23]
[20] Evidence Act 1995 (Cth) s 140.
[21] M v M (1988) 166 CLR 69 (“M & M”).
[22] Ibid.
[23] M v M (fn 21); N and S and the Separate Representative (1996) FLC 92–655.
When assessing the nature and magnitude of a risk posed by a parent, all relevant evidence must be considered as part of the “matrix of evidence”[24] to determine whether or not the risk of possible future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities on each piece of relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.[25] When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.[26] Whether a risk is found to be unacceptable is not determined according to the civil standard of proof i.e. on the balance of probabilities.[27]
[24] Eastley & Eastley (2022) FLC 94–094 at [31] (“Eastley”).
[25] Johnson & Page (2007) FLC 93–344 at 81,890–81,891, [68]–[71] (adopting the extra curial commentary by the Hon. John Fogarty AM) NB. Johnson & Page was overturned by Isles and Nelissen (2022) FLC 94-092 (“Isles”) but not on this point which was subsequently confirmed by Eastley.
[26] Isles (fn 25) at [7].
[27] Ibid at [81].
When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[28] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[29] on each and every factual dispute.
[28] Baghti & Baghti [2015] FamCAFC 71.
[29] M v M (fn 21) at 76.
Each parent has parental responsibility (i.e., all the powers, responsibilities, and authority which, by law, parents have in relation to a child) for a child subject to any order made by the Court (s 61C).
Section 61DA 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 there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes it clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act, I have considered all sections as required when making my determination.[30]
[30] Banks & Banks (2015) FLC 93–637.
WHETHER THE ORDER MADE 31 MAY 2022 SHOULD BE DISCHARGED EITHER IN PART OR IN FULL?
In my view, the changes to each party’s circumstances since the 31 May 2022 order are significant and warrant (at least) substantial variation to the 31 May 2022 order.
As explained in the background, the father did not relocate to City B and the mother no longer lives in City B. On a date unknown, the mother moved to Town R in Region V. The child’s contact with his mother since June 2022 has been minimal. The child is now well settled with the father and his family in Region U.
To limit the confusion that may arise by an order substantially amending the 31 May 2022 order, I consider it preferable to adopt the submissions of the father and supported by the mother, to discharge the 31 May 2022 order in full and make a new parenting order, although the father will continue to have sole parental responsibility for major long term issues and the child will continue to live with him.
SHOULD THE CHILD REMAIN LIVING WITH THE FATHER IN REGION U OR MOVE TO LIVE WITH THE MOTHER IN REGION V?
The mother conceded that the child will continue to live with the father. He now lives in Region U with his family.
WHEREVER THE CHILD IS LIVING, WHAT TIME, IF ANY, SHOULD BE SPENT WITH THE OTHER PARENT?
The father contends that he would support the child if he expressed a desire to spend time with the mother, even though he considers the mother poses some risks to the child. No doubt the father’s position is informed by the father’s confidence that the child will talk to him about his thoughts and desires. Given the strength of the relationship between the father and the child, the father’s confidence appears to be reasonably based.
The mother also submitted that whether the child spends time with her should be left up to the child.
The ICL did not support such an order and recommended that the order be expressed in such a way that the child is not burdened with the decision but rather the child spend time with the mother if the parents agree for that to occur.
While I appreciate the concerns raised by the ICL, the child will be 13 years of age and his wishes should inform the decision as to what, if any, time he spends with the mother. The father has ensured the child’s continued access to a psychologist. The child has been communicating with the mother by video call for some time now, although, there was some anger and upset expressed by him to the family report writer over the mother failing to call him in the four weeks prior to the family report interviews late last year. It appears to me that the child does want to maintain a connection with the mother and given his age and the fact that both parents advocate for an order that he spend time with the mother in accordance with his wishes, I propose to adopt that proposal.
In coming to that conclusion, I also take into account that the parents had agreed by the 31 May 2022 order for the child to spend unsupervised time with the mother after a period of time, and that the child is now considerably older and well settled with his father. The influence that the mother was previously able to exert over the child in relation to his relationship with his father is likely to be diminished by those factors.
WHETHER EITHER PARENT POSES A RISK OF HARM TO THE CHILD BY INAPPROPRIATELY INVOLVING HIM IN THE DISPUTE BETWEEN THE PARENTS?
Historically, the evidence was overwhelming that the mother involved the child in the parenting dispute. However, as already noted, the child has a close and loving bond with the father capable of withstanding, in my view, any attempt to undermine that relationship in future. If there remains a risk from the mother, it is not of such magnitude that would cause me to find it to be an unacceptable risk of future harm. I note that despite the father contending the mother posed a risk to the child, he agreed by the 31 May 2022 order for the child to spend alternate weeks with the mother after a short period of supervision.
The evidence does not support a finding that the father poses a risk to the child by inappropriately involving him in the dispute.
WHAT PARENTING ORDER IS PROPER?
In my view, it is in the child’s best interests for the child to continue to live with the father and for the father to continue to have sole parental responsibility for major long-term issues. Despite the father’s contention that he should only be required to inform the mother of his decisions about major long term parenting issues, I consider it to be in the child’s best interests for the father to be obligated to inform the mother prior to any major long-term parenting decisions and to take into account any views expressed by her, but the ultimate decision will be his alone.
Given the child’s age and the parents’ joint support for the child to spend time with the mother in accordance with his wishes, I propose to make such an order. I had considered making a further order for the mother to spend supervised time with the child and if she substantially complied with such an order to move to unsupervised time (as recommended by the family report writer), but as the mother has failed to take up the previous opportunities to spend supervised time with the child, I see no utility in making such an order. Further, the mother did not seek an order to spend specific time with the child.
Further, I consider it to be in the child’s best interests for the father to continue to be obligated to facilitate video calls between the mother and the child but not as frequently as previously required. In order to address the child’s frustration of waiting for calls from his mother that do not occur, I propose to order that the father facilitate the child calling the mother each alternate Wednesday evening, and on the child’s birthday and Christmas Day.
The father seeks to restrain the mother from contacting the child or the father or attending the child’s school or residence. The ICL does not support that order in the absence of evidence to justify those restrictions. I was not taken to any evidence the mother has attended at the father’s home or made attempts to contact the child or the father other than as permitted by the previous order. There is evidence that on one occasion since June 2022 the mother attended the child’s school. The father contends that when the mother attended the child’s primary school at the end of last year, she was unpleasant and upset the child. The principal of the school was requested to intervene. Nevertheless, I am not satisfied that the personal injunctions as sought by the father are warranted.
Finally, I also consider it to be in the child’s best interests for the mother to be at liberty to send the child gifts and cards on special occasions as proposed by the father.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 24 April 2024
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