Spalding & Barbaro (No 3)

[2022] FedCFamC1F 1017

Federal Circuit and Family Court of Australia

(DIVISION 1)

Spalding & Barbaro (No 3) [2022] FedCFamC1F 1017

File number(s):

BRC 6176 of 2021

Judgment of:

HOGAN J

Date of judgment:

9 December 2022

Catchwords:

FAMILY LAW – INTERIM – Where the applicant father seeks interim parenting orders pending the conclusion of the trial and pending the delivery of judgment – where the application is dismissed.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Division:

First Instance

Number of paragraphs:

16

Date of hearing:

9 December 2022

Place:

Brisbane

Counsel for the Applicant:

Mr Bunning

Solicitor for the Applicant:

Simonidis Steel Lawyers

Counsel for the Respondent:

Mr Dodd

Solicitor for the Respondent:

Mills Oakley Lawyers

Counsel for the Independent Children's Lawyer:

Mr Pollock

Solicitor for the Independent Children's Lawyer:

Barbara Fox Solicitor

ORDERS

BRC 6176 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR SPALDING

Applicant

AND:

MS BARBARO

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	HOGAN J
DATE OF ORDER:	9 DECEMBER 2022

IT IS ORDERED THAT

1.The Application in a Proceeding filed by leave on 7 December 2022 is dismissed.

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 Spalding & Barbaro has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

HOGAN J:

1. By Application in a Proceeding filed on behalf of the father by leave on 7 December 2022, the father seeks that the Court make interim parenting orders in relation to the child E pending the conclusion of the trial by the receipt of oral submissions in reply on 27 January 2023 and pending the delivery of Judgment following that.

2. The orders sought by the father on an interim basis are opposed by the mother and the Independent Children’s Lawyer.

3. Submissions have been made on behalf of the father by Mr Bunning in support of the application, and by Mr Dodd and Mr Pollock in opposition to the application on behalf of their respective clients, the mother and the Independent Children’s Lawyer.

4. The manner in which a court is required to deal with interim applications, or applications for interim parenting orders, is well known and needs no further elucidation, other than to refer to the decision of the Full Court of this Court in cases such as Goode & Goode[1] and Banks & Banks[2].

   [1] (2006) FLC 93-286.

   [2] (2015) FLC 93-637.

5. However, in this case I consider myself to be further constrained in the delivery of these reasons orally this afternoon because of the stage the trial has reached. The application is made by the father at the conclusion or closing of the evidence on day 10 of the proceeding. The evidence before me comprises not only substantial affidavit material from each of the parents, but also a large number of documentary exhibits, numbering more than about 2000 pages.

6. As I have already informed the parties, whilst I have been working through those documents during the course of the hearing in the out-of-Court time available to me, I am yet to conclude my reading of all of the evidence: noting in particular that, for example, Volume 4 alone contains a little over 1000 pages. I am also conscious and, in my view, consider it inappropriate that I make any particular comments or assessments of the evidence or express any conclusions reached, even though, at this stage, the evidence itself has closed.

7. I arrive at that decision because, as I have said, I am yet to have the benefit of submissions made on behalf of each of the parents and the Independent Children’s Lawyer; thus, I am yet to have the opportunity to consider and assess, from such submissions, how I should weigh the evidence or whether I should arrive at particular conclusions.

8. I am, therefore, very conscious to ensure that comments I make in disposing of this interim application for interim parenting orders in relation to E go no further than is absolutely necessary to dispose of the application – because of the circumstances in which I find myself.

9. Whilst Mr Bunning submitted on behalf of the father that the father’s evidence in relation to E’s reported comments to him was not the subject of challenge via cross-examination, other aspects of the way in which the case has been conducted on behalf of the mother and the Independent Children’s Lawyer suggests to me that it is highly likely that the submissions I will receive in assisting me towards the finalisation of the matter may well contain submissions about the manner in which I should assess his veracity. In the same way, I fully expect and anticipate that the submissions I will receive on behalf of the father are highly likely to seek to advance that I should arrive at particular conclusions in relation to the veracity of both the mother and the maternal grandmother, and perhaps other witnesses called in her case.

10. I note, also, that whilst one of the considerations set out in section 60CC of the Family Law Act 1975 (Cth) to which the Court is required to have regard in determining those parenting orders which are in any child’s best interests, be they on an interim or final basis, are the views of the child, the views of any child in any case are but one of the considerations. They cannot, in my view, ever be regarded in isolation. They may – or may not – be accorded a determinative weight at the stage of arriving at a final conclusion about orders which are in the best interests of children.

11. But I am not persuaded, on an interim basis, in the circumstances in which I find myself, that it is appropriate or in E’s best interests, or the best interests of his siblings, that I accord to his expressed wishes determinative weight in terms of the determination of this application. The reality for these children, and particularly for E and his sisters, is that they have been living in an equal-time arrangement since orders were made by Carew J in May 2018. They have already had to deal with one differentiation as between their sibship group: that is, the differentiation that has occurred which has resulted in D not spending time with his father in the week-about arrangement and so they have been separated from their brother in that week-about arrangement for the last 18 months or so.

12. I am not, at this stage of the proceedings and at this stage of my consideration of the evidence before me, persuaded that it is in E’s best interests or the best interests of his siblings to cause a further differentiation between the sibship group via the imposition of parenting orders in the manner sought on behalf of the father.

13. I arrive at this conclusion predominantly because to do so, in my view, would upset a routine that has been in place since May 2018.

14. In addition, it is clear, given the competing applications of the parents and the Independent Children’s Lawyer, that the possibility of a further change to the parenting arrangement for the children remains one that is open and the subject of dispute between the parents.

15. In determining to make no change at this stage to the current interim parenting orders insofar as they relate to E, I, in my view, remove the possibility of causing him disruption by way of such order only to then have the potentiality of causing him further disruption if orders other than orders in the terms sought by the father are ultimately determined by me to be in his best interests.

16. Given the comments I have made about the constraints I consider appropriate in this case, they are the reasons I intend to deliver for the determination to decline to accede to the Application in the Proceeding filed by leave on 7 December 2022.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan.

Associate:       

Dated:       19 December 2022