SPENCER & MILLWARD

[2019] FCCA 722

FEDERAL CIRCUIT COURT OF AUSTRALIA

SPENCER & MILLWARD [2019] FCCA 722

Catchwords:
FAMILY LAW– Interim parenting orders –best interests of a child – application in a case filed by father to seek mother’s spend time be supervised – parents will seek to re-engage in their parenting responsibilities in a way which will put the interests of their child above all else and with the benefit that child may achieve a meaningful relationship with his parents.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 60, 60B, 60CA 60CC, 65D, 62G, 70Q

Cases cited:

Bondelmonte v Bondelmonte [2017] HCA 8

Cowling & Cowling (1998) 22 Fam LR 776

Goode v Goode (2006) 36 Fam LR 422

Applicant: MR SPENCER

First Respondent: MS MILLWARD

File Number: MLC 6994 of 2018

Judgment of: Judge A Kelly

Hearing date: 18 March 2019

Date of Last Submission: 18 March 2019

Orders pronounced 18 March 2019

Delivered at: Melbourne

Delivered on: 26 March 2019

REPRESENTATION

Solicitor advocate for the Applicant:	Mr Kirt
Solicitors for the Applicant:	Hartley’s Lawyers

Counsel for the Respondent: Ms Blair

Solicitors for the Respondent:	VM Family Lawyers
Counsel for the Independent Children’s Lawyer	Ms Bastik
Solicitors for the Independent Children’s Lawyer	Creative Family Law Solutions

ORDERS

1. The matter be adjourned for Mention at 10.00am on 27 June 2019 in the Federal Circuit Court of Australia at Melbourne.

2. The Mention date at 10.00am on 5 April 2019 be vacated.

3. The Respndent’s spend time with the child, [X] born 2015 (the Child), recommence on Thursday 21 March 2019 pursuant to paragraph 3 of the order made 15 November 2018.

4. In addition to the time specified in paragraph (3) of the Order 15 November 2018, the child spend time and communicate with the Respondent from after kindergarten on Friday until 9.00am on Saturday morning.

5. The Mother be at liberty to take the child to his appointment at the Hospital B at 11.15am on Thursday 21 March 2019 and return the child to kindergarten at the completion of the appointment.

6. The Respondent is to authorise the child’s medical specialists to communicate with Independent Children’s Lawyer and the Applicant.

7. The Applicant ensure that the Respondent is authorised to collect the child at all relevant times from the child’s kindergarten.

8. The Respondent be permitted to provide a copy of this Order to the Kindergarten C in Suburb D.

AND THE COURT NOTES THAT:

A.Pursuant to ss 65DA(2) and 62B of the Family Law Act1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

B.The Respondent has made an appointment with Ms E, Psychologist on 26 April 2019 at 9.00am and she is first on the shortlist for a cancellation appointment.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 913 of 2017

MR SPENCER

Applicant

And

MS MILLWARD

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment explain parenting orders that were made on 18 March 2019.

2. On 22 June 2018, the father filed an initiating application seeking parenting orders in relation to a child, [X], born 2015.  The father sought orders that the child live with him and orders regulating the time that the child would spend with the mother.  He initiated the proceeding in circumstances where the mother had unilaterally failed to return the child to him, having also taken out an intervention order.  The father sought a recovery order and an order for the mother to be psychiatrically assessed.

3. On 23 July 2018, orders were made that the matter be set down for an interim hearing on 21 November 2018 and for the appointment of an Independent Children’s Lawyer (ICL).  Consent orders were made that the child live with the father and for the child to spend time with the mother on Tuesdays each week, on alternate Thursdays and on alternate weekends from noon on Sundays until Monday mornings.  The child’s spend time with the mother was subject to the maternal grandmother providing substantial supervision of that time.  Other ancillary orders were made, including for the mother to undertake a psychiatric assessment.  A notation was made recording the mother’s view that the father should address anger management issues.  The parties were to attend post-separation parenting programs.

4. On that date also, the mother filed a Response, Answering Affidavit and Notice of Risk.  By her Response, the mother sought orders that the child live with her and spend time with the father.

5. Each party sought shared parental responsibility.

6. The parties’ Notices of Risk made claims and counterclaims of neglect, abuse and incapacity for parenting.  On 22 October 2018, orders were made permitting the parties and the ICL to inspect documents held by the Department of Health and Human Services (DHHS).

7. When the interim application was heard on 15 November 2018, the parties and ICL agreed in consent orders that adjourned their applications to 5 April 2019 on the basis that a family report be obtained pursuant to s 62G(2) of the Family Law Act 1975 (Cth). The matter was set down for trial on 28 October 2019 and directions given for that trial. Consent orders were also made for the child to continue to live with the father and spend time with the mother on Thursdays overnight and each weekend from 9:00am on Sundays until Monday mornings. Orders were agreed that the maternal grandmother be in substantial attendance. Further orders were made in relation to post-separation parenting. A notation made to that order was that the child would be collected by the mother or maternal grandmother when he commenced kindergarten.

8. These matters notwithstanding, on 4 February 2019, the father filed an Application in a Case seeking orders for the suspension of the child’s spend time with the mother and suspension of the order that such spend time be supervised by the maternal grandmother.  The mother’s Response sought dismissal of that application and orders for make-up time in the circumstances described below.

Evidence

1. The parties’ initial affidavits recounted the circumstances of their relationship, its failure and the reasons why the orders proposed by them were said to be appropriate.  They filed further affidavits in November 2018 and then February and March 2019 respectively.  Their evidence has not been tested by cross-examination.  My summary of the evidence below is drawn from that untested evidence.

2. The father is now aged 19 years and works as a tradesman. 

3. The mother is aged 22 years and is or was a registered sex worker.  She was described in the initiating application as unemployed and in receipt of a disability pension.

4. The parties met as early adolescents.  They commenced their relationship in February 2014.  They conceived the child in 2014 and moved in together, living with the father’s parents in December 2014.  The parties then lived with the maternal grandmother for a brief period following the birth of the child in 2015 but then returned to live with the father’s parents until the mother moved out in November 2016 following the cessation of their relationship and the mother re-partnering.  The child continued to live with the father and his parents.

5. Although the mother returned to live with her mother she was forced to move out by reason of her obtaining an intervention order against her mother’s partner.

6. The parties have had a variety of parenting arrangements respecting the child however, those arrangements were complicated by the fact that the mother became homeless, or was living with relatives and then in a refuge for some six months.  The mother then moved in with her maternal grandmother. Spend time arrangements with the child resumed from about June 2017 until June 2018 when she failed to return the child to the father. 

7. The failure to return the child placed his day care arrangements in jeopardy in that he was at risk of losing his place at that facility.

8. The mother replied to the father’s application deposing to her mental health issues, including the medication which she is taking. 

9. The mother also deposed to the circumstances in which she had not returned the child explaining this on the basis of the attendance of DHHS officers who consulted her for a period of some 3-4 hours.

10. The mother also contested the father’s account of the child’s living arrangements stating that the spend time arrangements from separation were: (a) Tuesday evening to Friday morning – with the mother; (b) Friday morning to Tuesday evening – with the father.  She further explained her version of events as related to the father’s requirement that the child’s spend time should be supervised including overnights.

11. The mother deposed as to the child being on a wait list for assessment on whether he has developmental issues.  The father contests that the child has any such issues and seeks to be involved in any consultations.

12. While acknowledging her mental health concerns, the mother deposes that she is observant of her medication requirements and maintains her appointments with psychologists and doctors. 

13. The mother criticised the father’s behaviour including his outbursts of anger, family violence and alcohol consumption.  She deposed to her now former partner having taken out an intervention order against the father which he had breached resulting in him being fined and placed on a good behaviour bond.  The mother also deposed to the father’s violence directed at his own father.

14. A DHHS report dated 18 October 2018, recorded that there had been seven reports to the DHHS in the period February 2015 – May 2018 and two consultations with Community Based Protection including:

    a)the father had reportedly sexually abused a female cousin;

    b)the father had reportedly entered a sexual relationship with the mother at a time when he was a minor;

    c)the mother was in a bisexual relationship with a 14 year old paternal aunt;

    d)both parents advised of mental health issues;

    e)the child had been exposed to domestic violence by the maternal grandmother’s partner who had forcibly ejected the mother from the home at a time when he was intoxicated;

    f)allegations, which were not pursued by police, were made of the mother being raped by the father during a contact visit; and

    g)allegations, which were not pursued by the DHHS, were also made of the child being exposed to sexual violence by both parties.

15. The DHHS report also recorded the mothers and fathers allegations and their mental health issues.  The report included that the mother struggled to cope with the child in her full time care, the making of an intervention order and that the child appeared to be relaxed in the environment provided by the father.

16. In mid-October 2018, the mother commenced work as a sex worker at a brothel.  She is registered as a sex worker and has detailed the shifts when she works. The mother has enrolled in various courses of study and has completed a post-separation parenting course.  While the father, relying upon an unnamed source, deposed that the mother had posted on a FaceBook page to which she advertised her work availability.  The mother’s evidence is that she has closed that FaceBook account. The father raises concerns that the child should not see explicit images of his mother. Why the child would access FaceBook was not explained.

17. The child is currently enrolled at the Day Care Centre F.  The parties are in disagreement about whether he presents with nappy rash, scratches, bruising and other conditions.

18. The mother deposes that the parties have no contact but that they are in contest over the necessity for continuing supervision.  They are also squabbling in relation to changeover arrangements and express concern at the level of care that the child receives while in the care of the other.  They pursue contested applications in relation to intervention orders.

19. On 22 January 2019, the father received information, again from an unnamed source, which, as he deposed was suggestive of the child being neglected and not adequately supervised while in the mother’s care.  He also raised allegations that the mother brought sex toys into her home, leaving them on the bathroom floor and engaged in sex while the child was asleep in her bed.  He alleged that the mother was practising as a sex worker from her home.  The parties’ lawyers exchanged correspondence which the other claimed, either to having not received, or having received no response. 

20. As a consequence, the father withheld the child from the mother notwithstanding the orders which have been in place since October 2018.  Each alleges that the other is breaching those Orders.

21. The mother categorically denied the father’s recent allegations, noting that a letter from her solicitor sent on 4 February 2019 had gone unanswered to at least 4 March 2019.  The mother specifically denied that she brought her sex-work clients home or to leaving sex toys around.

22. As a result of the father’s unilateral termination of the spend arrangements, the mother lost the opportunity to participate in the child’s orientation day at his kindergarten.  She also missed the child’s birthday.

23. The mother deposed that her mother continued to be in substantial attendance at her home.  She further deposed to having made arrangements for the child to attend a paediatric assessment on 21 March 2019. 

24. The mother continued to contest the necessity for ongoing supervision while the father contested the adequacy of that supervision.  Although the matter was in a Duty List, I called the maternal grandmother to give evidence as to her level of supervision.  This evidence was clarified in some respects by counsel for the ICL.  Notably, the witness was not cross-examined by counsel for the father.  I accept her evidence.

25. Counsel for the father tendered a psychiatric assessment by Dr G dated 20 February 2019 which detailed the results of his examination of the mother and his opinion in relation to the matter.  I was assisted by consideration of this detailed report.  In furnishing his opinion, Dr G identified the concerns raised by the father and DHHS.  He identified reports of inappropriate sexual behaviour of both parties, but considered the concerns expressed to be somewhat vague and lacking in detail.  Dr G considered that ongoing supervision was appropriate. As a post-script, he noted the father’s recent anonymised allegations had been supplied to him and that they did not change his opinion.

Applicable principles

1. Part VII of the Act concerns the subject, Children. It is arranged in 16 Divisions comprising ss 60 – 70Q. Section 65D provides that the court may make such parenting order as it thinks proper. In Bondelmonte v Bondelmonte [2017] HCA 8, the Court said of s 65D at [8]:

   A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.

2. The objects of Part VII are stated in s 60B(1). They include to ensure that the best interests of children are met by protecting them from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence: s 60B(1)(b). The principles underlying those objects recognise the manifold rights of children with respect to their parents: s 60B(2). It must also be recognised that the principles in s 60B(2) are expressed as being subject to an exception: “except where it is or would be contrary to the child’s best interests”. 

3. In determining the best interests of the children there are two primary considerations which must be taken into account.  Those primary considerations are as set out in s 60CC(2).  The court must consider:

   (a)the benefit to the children of having a meaningful relationship with both of their parents; and

   (b)the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

   See ss 4(1) (abuse); 4AB(1) (family violence); 60B(1)(c), 60CC(1) (determining child’s best interests); 60CC(2) (primary considerations).  Additional considerations are prescribed by sub-s.60CC(3)(a)-(m).

4. In addition, amendments to the Act effected by sub-s 60CC(2A) require that, in respect of proceedings instituted after 7 June 2012, the Court is required to give greater weight to the need to protect the children from physical or psychological harm, from being subjected, or exposed, to abuse, neglect or family violence. Where the circumstances require, the need for protection from harm as addressed by sub-s 60CC(2)(b) may well assume prominence over allowing for a meaningful relationship with both parents as addressed in sub-s 60CC(2)(a).  Such a conclusion is reinforced by the exception provided for in sub-s 60B(2).

5. When deciding what parenting orders ought to be made in proceedings under Part VII of the Act, the best interests of the children are the paramount consideration: s 60CA. Accordingly, the principles contained in s 60B(2), which express rights of children in relation to their parents, may yield to the paramount consideration expressed in s 60CA that in deciding whether to make a particular parenting order, a court must have regard to the best interests of the child. Approached another way, where it would be contrary to the child’s best interests to make orders which accorded priority to the principles in s 60B(2) (as by facilitating the child’s right to spend time on a particular basis with both of their parents or other people significant to their care), the mandate, which is expressed as the paramount consideration to pay regard to the best interests of the child, may support orders appropriate to promoting and protecting the child’s best interests including, orders that will operate so as to protect a child from harm.

Interim orders

1. The principles in Goode v Goode (2006) 36 Fam LR 422 apply to the determination of an interim application for parenting orders. There, the Full Court drew attention to the amendments to Part VII of the Act which took effect from 1 July 2006, the objects of Part VII and the mandatory requirement expressed in s 60CC that the Court must have regard – as the paramount consideration – to the best interests of the child in deciding parenting orders: (2006) 36 Fam LR 422, [7]-[10].

2. Against this background, consideration was then given to the principles applicable to interim parenting proceedings: (2006) 36 Fam LR 422, [66]-[82]. The Full Court, recognising that interim proceedings were interlocutory in nature, confirmed some of the statements in Cowling & Cowling (1998) 22 Fam LR 776 as apposite, and accepted that the procedure in making interim parenting orders would continue to be an abridged process such that the scope of enquiry was, of necessity, to be significantly curtailed from that which obtained at a trial. Yet the Full Court recognised that that principle was constrained by the requirement “that the court must have regard to the best interests of the child as paramount in deciding what interim orders to make” (2006) 36 Fam LR 422, [69]. In holding that Cowling’s case must be reconsidered in light of the amendments to the Act, the Full Court held:

   In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child. (2006) 36 Fam LR 422, [72]. (emphasis added)

1. Goode’s case holds that the Act evinces a legislative intent that generally favours the substantial involvement of both parents in the lives of children, both as to parental responsibility and as to time spent with children. The Full Court’s holding was, however, expressed as being subject to: (1) the need to protect children from harm, from abuse and family violence; (2) the proviso, whether the substantial involvement of both parents would be in the child’s best interests and reasonably practicable. This reasoning echoes the text of ss 60B(2) and 60CA. The general legislative intention in favour of substantial parental involvement cannot then be read as being divorced from the mandate to observe the paramount consideration of the child’s best interests, the prescription to give greater weight to the need to protect children from harm, from abuse and family violence, or the exception to s 60B(2) that the child’s rights to parental involvement may yield as to what would otherwise be in their best interests or reasonably practicable.

2. The following principles stated in Goode’s case (2006) 36 Fam LR 422, [82] a applicable when following the legislative pathway:

   In an interim case that would involve the following:

   (a)     identifying the competing proposals of the parties;

   (b)     identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d)     considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)-(j)     . . . ;

   (k)    even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child.

3. Relevantly, for the purposes of the present application, Goode’s case confirms that the abridged conduct of interim applications for parenting orders remains qualified by the need to protect children from physical or psychological harm, from being subjected to or exposed to abuse or family violence.

4. In the context of the present application for interim parenting orders, the court must have regard to the considerations in s 60CC(2)-(3), and, where the exception in s 60B(2) is engaged, that the rights of the child in relation to their parents should yield to the paramount consideration of what orders are in the child’s best interests: s 60CA.

Consideration

1. The present application came before me in a Duty List.  Goode’s case holds that in making interim decisions, the legislative pathway must be followed notwithstanding that the court will often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child (2006) Fam LR 422, [81]. The issues arising in the application involved the question of whether the child could resume spend time with the mother and the adequacy of supervision. As noted, the supervisor was not cross-examined.

2. The brevity of the father’s affidavit seeking suspension of the existing orders was of real concern.  Of great concern was that the father’s Application in a Case was grounded substantially upon the evidence of an unnamed source or in some cases hearsay upon hearsay.  The allegations being raised were not in my opinion sufficient to support a conclusion that the father should have unilaterally ceased the child’s spend time with his mother or that any such suspension should occur.

3. While Div 12A of Pt VII of the Act confers significant latitude on the court in the reception of evidence which would otherwise be inadmissible under the Evidence Act 1995 (Cth) or at common law, I express grave reservation as to whether it is appropriate to act upon the hearsay evidence of unnamed persons of the kind being relied upon at this hearing as justifying the suspension of consent parenting orders. Cogent evidence would ordinarily be appropriate on an application of this kind. However, there were other, more fundamental, reasons why the orders sought by the father were not made.

4. Despite the relief sought in his application in a case, the father proposed orders that the mother ‘comply with’ the order, that she was continuing with her treatment by medical and other practitioners.  An order of that kind would have been entirely inappropriate.  Parties are required to obey orders.  It is inherently circular to make an order that a party comply with an order. 

5. Critically, the order referred to at [48] above was not supported by any evidence in the father’s affidavit filed in relation to his Application in a Case. Nor was it supported in any part of the father’s affidavit sworn on 9 November 2018. In that affidavit under the heading, Current Issues, no mention was made expressing any concern about whether the mother was continuing with her treatment by medical or other practitioners.  The father’s original affidavit was not relevant to the question.  The Order made on 18 October 2018 had not yet been made.  No submission was made relying on that affidavit.  In short, the evidence did not provide any support for making of the order which was being sought.

6. The further orders proposed by the father were all conditioned in terms requiring that the mother had furnished proof that she had complied with the order respecting the continuation of her medical treatment.  Again, the father’s affidavit filed in support of his application in a case furnished no evidence in support of a conclusion that such relief was appropriate.

7. Another aspect of the matter was that while the ICL originally supported orders as proposed by the father, the ICL later decided to support the orders proposed by the mother.  The change of position occurred in circumstances where the matter was the subject of discussion with counsel. The matter was then stood down in order that the parties themselves could further consider the issues.  Upon being recalled for hearing, counsel for the ICL announced that support was now given for the orders being sought by the mother, being, in substance, for the resumption of the child’s spend time and certain ancillary orders.  It was entirely appropriate for the ICL to reserve to itself whether to support the orders sought by one party or the other.  The best interests of the child are at issue and the court will not infrequently decide upon parenting orders which do not accord with the wishes of either party.  No submissions were made as to the primary or additional considerations arising under s 60CC(2)-(3). Having considered the matter, I was not satisfied that the child may be exposed to an unacceptable risk of harm by spending time with the mother with the supervision being provided. 

8. The matter is becoming of concern.  It is to be hoped that these two quite young parents will seek to re-engage in their parenting responsibilities in a way which will put the interests of their child above all else.  It is to be hoped that the ICL and their own lawyers will assist the parties in doing so in a more constructive manner than has occurred recently.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date: 26 March 2019