Spellmann & Mallett
[2022] FedCFamC2F 1051
Federal Circuit and Family Courtof Australia
(DIVISION 2)
Spellmann & Mallett [2022] FedCFamC2F 1051
File number(s): SYC 4246 of 2022 Judgment of: JUDGE JENKINS Date of judgment: 29 July 2022 Catchwords: FAMILY LAW – interim parenting – where one party lives in United States of America – consent orders made prior to Covid-19 border closures – no face-to-face time spending since 2019 – parenting orders pending determination of Rice v Asplund Legislation: Family Law Act 1975 (Cth) ss. 60CC, 60CC(3)(d), 69ZL
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Goode & Goode [2006] FLC 93-286 Phillips & Hansford (No. 2) [2019] FamCAFC 165
Rice & Asplund (1979) FLC 90-215
Division: Division 2 Family Law Number of paragraphs: 28 Date of last submission/s: 28 July 2022 Date of hearing: heard in Sydney on 28 July 2022 and delivered in Adelaide on 29 July 2022 Place: Sydney and Adelaide Counsel for the Applicant: Mr Ahmad on 28 July 2022 and Ms Ali on 29 July 2022 Solicitor for the Applicant: Mills Oakley Lawyers Counsel for the Respondent: Mr Watkins on 28 July 2022 and no appearance on 29 July 2022 Solicitor for the Respondent: Petkovic & Todd ORDERS
SYC 4246 of 2022 FEDERAL CIRCUIT AND FAMILY COURTOF AUSTRALIA (DIVISION 2)
BETWEEN: MS SPELLMANN
Applicant
AND: MR MALLETT
Respondent
order made by:
JUDGE JENKINS
DATE OF ORDER:
29 JULY 2022
THE COURT ORDERS THAT:
1.Orders 6 to 8 of the orders of 12 February 2020 be suspended.
2.The father spend time and communicate with the child X born in 2013 in Australia as follows:
September 2022 school holidays
(a)In week one for five (5) nights as agreed and failing agreement from 5.00pm on the first Monday until 5.00pm Saturday;
(b)In week two for six (6) nights as agreed and failing agreement from 5.00pm on the second Monday until 5.00pm on the last Sunday.
December 2022/January 2023 school holidays:
(a)For seven (7) nights as agreed and failing agreement from 5.00pm on 23 December until 5.00pm on 30 December 2022 and for a further seven (7) nights as agreed and failing agreement from 5.00pm on 4 January until 5.00pm on 11 January 2023.
3.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and the child X born in 2013 are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
Part 1 of the event will occur by video, using Microsoft Teams, on a date to be advised in late January/early February with:
(a)the Applicant to attend at 9.00am; and
(b)the Respondent to attend at 10.30am.
Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
Part 2 of the event will occur on a date and time to be advised in the Sydney Registry. Specific details regarding the attendance of the parties and the child on this date will be provided to the parties in Part 1 of the event.4.Each party will do all things necessary to ensure the child attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
5.The parties and the child shall continue to attend at such times, dates and places as the Court Child Expert may advise.
6.Not later than seven (7) days from the date of these orders the parties must provide their contact telephone numbers and email addresses to [email protected].
7.Pursuant to orders herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those views;
(d)the impact of the issues/dispute before the Court;
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the child.
8.Upon completion, the Child Impact Report shall be provided to the Court for release to the parties, including by way of order made in Chambers.
9.The Court Child Expert will be at liberty to inspect any material filed by the parties, and otherwise the following:
(a)Registrar to list any relevant material presently before the Court in admissible form (may require consideration of status of material from child welfare department or police).
10.Further consideration of the proceedings is adjourned on a date to be advised on the Rice & Asplund issue.
11.Each party file and serve any further affidavits on which they intend to rely no later than 14 days prior to the adjourned hearing date.
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 Spellmann & Mallett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX TEMPORE
Judge Jenkins
These reasons were delivered orally and have been edited and corrected from transcript. I have endeavoured to correct grammatical errors, clarify any citations and generally make my oral reasons easier to read.
This matter came before me on 28 July 2022. The hearing was conducted by Microsoft Teams.
Orders were made by Judicial Registrar B on 11 July this year providing for the parties to file case outlines by 25 July 2022. However, neither party complied with that order and the Court was only provided with those outlines on the morning of the hearing. Consequently, the Court did not have advance notice of the orders sought or the documents relied upon. As such, at the conclusion of the hearing, I reserved my judgment in order to consider all of the evidence in the context of the submissions made.
This is a parenting matter concerning the child, X, born in 2013. She is now aged nine. Final parenting orders were made in this matter on 12 February 2020. Those orders provided for X to live with the mother and spend time with the father, who lives in the United States of America. Time spending was to occur in school holidays commencing with periods in Australia in 2020 and 2021 and then progressing to time in the United States once per calendar year commencing June/July this year. Those orders were made by consent.
Before the father could spend time pursuant to those orders, the international borders were closed due to COVID-19. Upon borders reopening to all travellers this year, the father sought to implement the final orders. According to the timeline in the orders, the child X would now be due to travel to the United States to spend time with the father, albeit she had not spent time with the father since 2019 in Australia. The mother resisted this occurring and filed her application in this Court on 21 June 2022.
For the purposes of this hearing, the mother relies upon an Amended Initiating Application filed on 29 June 2022, in which she seeks for the time in the final orders to be suspended and a Family Report to be prepared. The mother’s Counsel informed the Court in this hearing that, in addition to this, she seeks that an Independent Children’s Lawyer to be appointed to speak with the child and ascertain her wishes.
In addition, the mother’s Counsel made an oral application for the father to spend time with the child in the forthcoming December holidays (or September if he could accommodate it), in Australia over a three-week period. It was proposed that the time occur as follows;
· in week 1, on Monday from 9 am to 5 pm, on Tuesday from 9 am to 5 pm and from 9 am Thursday to 5 pm Friday;
· in week 2, on Monday from 9 am to 5 pm, on Tuesday from 9 am to 5 pm and from 9 am Thursday to 5 pm Saturday; and
· in week 3, from 9 am Monday to 5 pm Tuesday and from 9 am Thursday to 5 pm Saturday.
The father relied upon his Response to Final Orders filed on 15 July 2022. In that response, he sought for the mother’s Initiating Application to be dismissed. In the alternative, he proposed that he spend time with X in the forthcoming September holidays for the entirety of those holidays in Australia and for one half of the December/January holidays, with the father being at liberty to take X to the United States.
In submissions, Counsel for the father put an ameliorated proposal to the Court, that the father spend time with the child as follows:
· In the forthcoming September holidays – in week 1, for five nights and in week 2 for six nights (in Australia);
· In the December/January holidays, for a block of two weeks (in Australia); and
· From the mid-year term holidays in 2023 he be able to take X to the United States, by which time she will be 10 years of age.
I heard the oral submissions on behalf of each party. The mother’s case is that the final orders should be suspended and a more limited regime be put in place. This was based on a number of factors. The first being that the mother alleges the child has been distressed and that her wishes need to be ascertained. The second was that since the final orders were made, the mother has become increasingly concerned about the father’s state of mind, which she says shows a lack of insight into X’s best interests; and, thirdly, because the child has not spent any face-to-face time with the father for three years.
In regard to the first issue, I questioned the mother’s Counsel about where in the evidence I would find reference to the child being distressed. He conceded that there was, in fact, no evidence of this. Indeed, the father’s Counsel pointed out that in the mother’s own evidence at paragraph 51 of her affidavit filed 21 June 2022, the mother says that X accommodates FaceTime calls with the father with good nature and she gets excited when she talks about the father taking her to Location C, which seems to be in direct contradiction to the alleged distress. There is no evidence, not even an allegation, in the mother’s affidavit that the child has been distressed.
On the second issue, Counsel for the mother referred the Court to emails annexed to the mother’s affidavit, which were sent by the father to the mother’s solicitor and to the mother. Counsel read out various paragraphs in those emails, and asserted that this should cause the Court to have concern for the father’s state of mind.
In particular, it is asserted that the father has threatened to involve X in the proceedings and to tell her what has been going on. Counsel referred to a paragraph in an email on page 31 of the mother’s affidavit in which the father writes to X:
When you read this, know that I did everything that I could…
It is plain from those emails, that the father is frustrated, and, indeed, appears to threaten that he will ensure that at some point X has an understanding of how, according to him, he has tried to see her and that this has been thwarted by the mother.
Giving the father the benefit of the doubt, it is not actually apparent that he intends to tell the child now, if he had the opportunity, what in fact has been going on. Indeed, I asked the mother’s Counsel whether there was any suggestion he had done so directly, as he had presumably had the opportunity during FaceTime calls. Counsel conceded there was no evidence of this. Counsel, however, argued that there was a greater risk of this occurring during any time spent in person. Nevertheless, the mother proposes such time occur, so the risk is there on either proposal.
It appears to me that the third issue goes to the heart of the matter, and that is that the child has not spent face-to-face time with the father for three years, albeit she appears to have had regular FaceTime calls. What is unknown, therefore, is how X, three years later, will cope with spending time with the father away from her mother. She may be absolutely fine, but it is simply not known. Before determining whether it is in X best interests to reconsider the final orders, it is my view the Court needs this information.
Pursuant to the Full Court case of Phillips & Hansford (No. 2) [2019] FamCAFC 165 it is open to the Court to make interim orders in the best interests of the child prior to determining whether final orders should ultimately be revisited pursuant to the principles in Rice & Asplund (1979) FLC 90-215 (“Rice & Asplund”). This is the course that I intend to take.
In determining what interim parenting orders to make for the child in this matter, I must follow the pathway in Goode & Goode [2006] FLC 93-286 (“Goode & Goode”). Accordingly, I must identify the parties’ competing proposals, identify any agreed facts and issues in dispute and work my way through the relevant legislative pathway. Pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“The Act”) I am permitted to provide short-form reasons.
I have already identified the proposals of the parties. In terms of agreed facts, orders were made on 24 May 2019 for the father to spend time with X as follows:
· In July 2019 for two periods of daytime and two periods of two overnights;
· From 25 September 2019 to 1 October 2019, being six nights; and
· From 4 October 2019 to 11 October 2019, being seven nights.
It is common ground the father exercised that time, and that in February 2020 the parties agreed to the final orders in this matter. It is not in dispute that this time did not occur because of the global pandemic. I have also identified that the parties’ evidence shows that X seems to be enjoying her interactions with her father on FaceTime and is looking forward to going to the United States.
Continuing the pathway in Goode & Goode, neither party seeks orders for equal time or even substantial and significant time as defined in the Act. Accordingly, I am at large to make orders that are in the best interests of the child.
Although I may not refer to each one, I have considered each of the matters under section 60CC of the Act. Section 60CC sets out the two primary considerations, the first of which is I need to consider the benefit to the child of having a meaningful relationship with each of her parents. Secondly, I must consider the need to protect the child from harm. If there is a conflict between these two, then greater weight must be given to the need to protect a child from harm.
The mother’s Counsel referred to the Child Dispute Conference Memorandum prepared on 18 April 2019 for the previous proceedings and pointed out that the father said he had ADHD and might have PTSD, and that he says the mother had bipolar. I note also in that report that the mother accuses the father of being controlling and verbally abusive towards her, that he had not been physically violent but had threatened to harm her. He had also thrown an object, but X was not present. The mother also accuses the father of pushing over her elderly father. She further alleges that the father bombards her with long text messages and emails, and I note the correspondence she annexes from the father gives some credence to the latter.
In spite of this, I note the mother consented to the final orders. With respect to current risks, the mother’s Counsel made a submission from the bar table that the mother alleges the child is in distress. I find that there is no evidence on which to base such a statement. The mother alleges the father has threatened to denigrate her to the child, and whilst there is evidence he has made threats, there is no evidence he has taken the opportunity to do so. In any event, any such risk would exist even on the mother’s proposal.
The primary risk to X, in my view, and a matter I also factor in under section 60CC(3)(d), is that X may have some anxiety as a result of being separated from her mother, being her primary carer. Although X seemed to cope well with block time in 2019, there had been a gradual build-up to that time, which seemed sensible. All signs are that X may have no difficulty in coping with block time with the father and, indeed, may have no problem travelling to the US, but this is an unknown. The risk is that if she does not cope, that she would be a long distance away and could not easily be returned to her mother.
To his credit, the father has conceded that time should, indeed, commence in Australia for two blocks and that X not travel to the US until the middle of 2023. In assessing all of the evidence before me and doing my best on an interim basis, it is my view that to ameliorate any risk of X suffering from separation anxiety, that a shorter period of time with her father should be implemented to begin with. However, the time proposed by the mother appears, in my view, to be too short and unnecessary, given X’s apparent connection to her father and her age.
If the time is in Australia, there seems no reason why she ought not spend time with the father in accordance with his proposal for the September school holidays. It would appear that the time in the long summer holidays, however, may be too long, and I would propose, if the father can accommodate it, that X spend two periods of one week with five days in between. I do propose to order a Child Impact Report to determine how X has managed those periods and bring the matter back before me on the question of Rice & Asplund.
I am not going to make an order for an Independent Children’s Lawyer at this stage.
For these reasons, and having considered all of the evidence, I make the orders set out at the beginning of these reasons.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 29 July 2022
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