SPITERI & WALKER

[2016] FamCA 425

FAMILY COURT OF AUSTRALIA

SPITERI & WALKER [2016] FamCA 425

FAMILY LAW – CHILDREN – Interim proceedings – Where final orders made by consent in 2013 – Where proceedings recommenced by the mother in 2014 –Where both parties seek sole parental responsibility and mother seeks changes to the younger child’s time with the father – Where no significant risk of harm – Where appropriate that parties retain equal shared parental responsibility pending final hearing – Where appropriate that there be no change to the younger child’s time with the father pending final hearing – Where interim orders made in the Federal Circuit Court of Australia restraining the children from engaging in SCUBA diving or other waterborne activities – Where father seeks the restraint to be lifted – Where mother has concerns about the children’s physical fitness for such activity by reason of a history of asthma – Where further medical testing has been recommended to determine the children’s suitability to participate in SCUBA diving and other waterborne activities – Where appropriate that the children undertake such testing.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Banks & Banks [2015] FamCAFC 36
Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode[2006] FamCA 1346
Marvel & Marvel (No. 2)[2010] FamCAFC 101
Mazorski & Albright[2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4

APPLICANT: Ms Spiteri

RESPONDENT: Mr Walker

FILE NUMBER: PAC 5808 of 2008

DATE DELIVERED: 2 June 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 19 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in Person

SOLICITOR FOR THE RESPONDENT: G & D Lawyers

Orders

1. That all interim applications before the Court be dismissed.

2. That the father be at liberty to make arrangements for each of the children to undertake bronchial provocation testing (mannitol testing) as to their fitness or otherwise to undertake SCUBA diving or other breathing assisted waterborne activities.

3. That the father provide to the mother not less than 14 days notice of appointments made by him for the purposes of such testing and the mother be at liberty to attend such testing should she so wish.

4. That for the purposes of testing the children and on the day of such testing previous orders as to the children’s time with either the mother or father be suspended on such day with the children to be in the care of the father from 8.00 am until 6.00 pm on such a day if the children are not otherwise with the father.

5. That the father be at liberty to remove the children from school on the day of testing for the purposes of such testing provided that he provides to each of the children’s schools written confirmation of the date and time of the children’s testing.

6. That the mother be restrained from doing any act or thing that may unreasonably hinder or prevent the said children undertaking such testing.

7. That the father provide the children’s test results to Dr B as soon as practicable for Dr B’s consideration.

8. That upon Dr B providing to both the mother and father, by ordinary pre-paid post, written confirmation as to the results of such testing and his written confirmation that as a consequence either or both children are in his opinion not precluded from SCUBA diving or any other breathing assisted waterborne activity the father shall be at liberty to engage either or both of the children as applicable in SCUBA diving and/or breathing assisted waterborne activities.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Spiteri & Walker has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5808  of 2008

Ms Spiteri

Applicant

And

Mr Walker

Respondent

REASONS FOR JUDGMENT

1. The mother and father in these proceedings have been in litigation over the children since December 2008.

2. The mother and father commenced cohabitation in 2000 and married in 2004. Less than four years later they separated in September 2008 and finally separated in December 2008.

3. The subject children are C born in 2000 and D born in 2006. At the time of their parents’ separation the children were aged eight and two respectively. They have been the subject of litigation ever since.

4. The first tranche of litigation ended on 12 April 2013 when orders were made by consent that relevantly in summary provided as follows:

   a)That the mother and father have equal shared parental responsibility for the children;

   b)That the child C live in a shared care arrangement between the mother and father from after school Friday until the commencement of school the following Friday with that arrangement to continue during school holidays;

   c)That the child D live with the mother and spend time with the father during school term from after school Friday to the commencement of school Tuesday in each alternative week coinciding with the week in which C lives with the father and during school holidays for the periods that C is with the father.

5. Less than one year later, on 2 April 2014 the mother filed an application in the Federal Circuit Court of Australia seeking further parenting orders in relation to the children. The mother sought final orders that restrained the children:

   a)From being exposed to unacceptable risk of physical and psychological harm whilst in the care of the father;

   b)From participating in any dangerous activities while in the care of the father; and

   c)That the child D be restrained from participating in the activity of SCUBA diving and snorkelling whilst in the care of the father and that she be further restrained from accompanying the father or others on any water vessel whilst in the father’s care.

6. The mother did not seek to disturb otherwise the final orders made on 12 April 2013.

7. The father filed a response to the mother’s application that relevantly sought that the mother’s application be dismissed but sought orders that the child D be appropriately tested by a paediatric respiratory physician and subject to the outcome of tests be able to participate in SCUBA diving, snorkelling and other water activities.

8. The issues changed substantially on 23 June 2015 when the mother filed an amended application initiating proceedings relevantly seeking a significant change in the parenting arrangements for the children in that:

   a)She have sole parental responsibility for the children;

   b)The children reside with her;

   c)That the child D have supervised visits only with the father;

   d)That the child C spend time with the father during school holidays on an alternate week basis; and

   e)The mother otherwise sought a raft of 24 specific issues orders.

9. On 19 May 2014 it was ordered pending further order:

   a)That the father be restrained from causing or permitting the child D to participate in the activity of SCUBA diving or snorkelling whilst in his care;

   b)That the father file and serve a response within 21 days; and

   c)That proceedings be adjourned to 5 August 2014 for interim hearing as to the restraining orders sought by the mother.

10. On 5 August 2014 it was further ordered:

    a)That the restraining order made on 19 May 2014 continue pending further order;

    b)That an Independent Children’s Lawyer (“ICL”) be appointed for the child D; and

    c)That the interim application be adjourned for directions to 3 October 2014.

11. On 3 October 2014 it was further ordered:

    a)That the ICL be discharged;

    b)That there be a Child Inclusive Conference with a Family Consultant on 11 December 2014; and

    c)That proceedings be adjourned for interim hearing to 24 February 2015.

12. On 24 February 2015 the proceedings were once again before the court and Judge Donald in summary made further interim orders as follows:

    a)That both children be restrained from participating in the activity of SCUBA diving whilst in the care of the father unless otherwise agreed in writing;

    b)That the children be restrained from participating in the activity of snorkelling or supplied aid snorkelling whilst in the care of the father unless otherwise agreed in writing;

    c)That the child D not be subjected to any involvement in M+ (sic) rates video/computer games whilst in the care of the father;

    d)That the child D not be subjected to communication with unidentified adult persons via video games/computer games whilst in the care of the father.

13. Leave was granted to the parties to apply on seven days’ notice for further hearing restricted to the issue of SCUBA diving and snorkelling.

Transfer to the Family Court of Australia

1. Subsequently for reasons that remain unclear the proceedings were on 21 April 2015 transferred to this Court after more than a year in the Federal Circuit Court of Australia.

2. The transferred proceedings were listed before a Registrar of this Court on 16 June 2015. On that day a further order was made for the appointment of an ICL to represent both children. It appears that the appointment was made on the basis of intractable conflict between the parents, that the applicant mother was not legally represented and that there were previous proceedings where the children were independently represented. The relevant issues were noted as to “whether children have asthma and how that impacts on their sports”.

3. On 25 June 2015 Legal Aid NSW informed the Court that it would not be funding the appointment of an ICL noting that:

   The parents have engaged in protracted litigation to date and the appointment of an independent children’s lawyer has not to date been of benefit in resolving seemingly intractable disputes.

4. On 25 August 2015 the father filed an amended response that relevantly sought orders in effect:

   a)That the father have sole parental responsibility for the children;

   b)That the children live with the father;

   c)That the children spend time with the mother during school term from after school Friday to before school Wednesday in alternate weeks and otherwise half the school holidays; and

   d)That the father be restrained from removing the children from the Commonwealth of Australia and that the children be placed on the airport watch list.

5. Otherwise the father sought interim orders in his amended response that orders made by Judge Donald on 24 February 2015 be discharged thus facilitating the children being permitted to engage in the activity of snorkelling, supplied air snorkelling and SCUBA diving and that the father have sole parental responsibility in relation to the children as to the activity of SCUBA diving.

6. The mother thereafter on 27 October 2015 filed an application in a case seeking a raft of orders that substantially replicated orders already sought by her in the proceedings plus additional orders as to payment of school fees, the children’s religion, non-denigration, the children not coming into the presence of Ms E, payment of child support arrears, restraining the father from attending at the mother’s residence and the repayment by the father of an alleged loan from the child C to the mother.

7. The Child Responsive Memorandum dated 1 March 2016 was released to the parties and on 14 March 2016 interim proceedings were adjourned for hearing to 19 May 2016. On that day it was noted:

   A.       During the period of the adjournment it is proposed that the children will attend upon their treating practitioner Dr [F] for the purposes of discussing with the children’s GP the parties’ respective views as to the children or either of them suffering from asthma such as would prevent them or either of them from undertaking recreational scuba diving.

   B.        The parties will request the children’s GP to provide a referral to Dr [B] paediatric respiratory physician for further assessment and if necessary testing of the children as to whether they suffer from asthma such as would disentitle them from participating in recreational scuba diving.

The Interim Hearing

1. The interim hearing proceeded on 19 May 2016 and judgment was reserved.

2. At the commencement of the hearing the mother identified the issues as:

   a)Parental responsibility, she seeking an order for sole parental responsibility for the children;

   b)A change in arrangements for the child D to spend time with the father; and

   c)Whether the children should be excluded from SCUBA diving and like activities.

3. The solicitor for the father identified the issues as:

   a)Parental responsibility, the father seeking an order for sole parental responsibility;

   b)Whether current orders for his time with the child D should continue;

   c)The discharge of orders made by Judge Donald restraining the children from participating in SCUBA diving and like activities.

4. The mother relied upon her affidavit filed on 27 October 2015.

5. The father relied upon his affidavit filed on 30 October 2015 and his further affidavit filed on 16 May 2016.

The Mother’s Case

1. The mother’s affidavit comprised of two volumes with the body of the affidavit excluding attachments being some 134 pages and 777 paragraphs. The mother sought in a most detailed fashion to traverse much of the history between herself and the father and various specific issues in respect of which they were in conflict in particular the issue of SCUBA diving and other water related activities.

2. The underlying nature of the conflictual relationship between the mother and father is readily apparent from the carping and critical nature of her affidavit in relation to the father.

3. In essence it appears that the mother’s objection to both children participating in SCUBA diving and other water related activities is their “medical history of asthma”.

4. The mother asserts that in March 2014 Dr F expressed concerns to her in relation to the children’s participation in SCUBA diving and other associated water sports by reason of their medical history. The mother procured a medical certificate from the doctor that asserts:

   [D] has an asthma inherited tendency. She’s had several documented episodes, and continues “preventer” Therapy with ‘FLIXOTIDE’ (Junior) PUFFER from time to time.

C and Asthma

1. The mother refers to the child C attending the G Hospital on 8 April 2014 following a fall. The child’s discharge notes primarily concluded that the child had suffered a soft tissue injury. However the mother makes reference to the entry in those notes that discloses “initially a subtle decreased AE on the right side of chest was noted”.

2. The note does not support the mother’s contention that the treatment of the child’s injury was “significantly impaired as physicians found [C] had reduced lung function of the left lung”.

3. The child C was reviewed by Dr B, paediatric respiratory physician on 18 August 2014. The report from Dr B provides:

   …(In referring to the [G Hospital] notes) He was noted at the time to have some decreased air entry on the right hand side, although a scan ruled out any pneumothorax. He did not have any breathing difficulties noted and all of his observations were normal. All of this took place on 8^th April. Because of the findings on the respiratory exam, [C] has not been taking (sic) scuba diving since then and dad wants to make sure this is completely safe. I also have several letters from previous GPs and a paediatrician concerning [C’s] diagnosis of asthma. He has previously been on some Serotide and Ventolin. [C] and dad both maintain today he has had no asthma symptoms or asthma medications for many years. Certainly most of the correspondence that I have in front of me with regards to asthma is from five or six years ago. On history today there are certainly no symptoms of asthma. I believe [C] has done over 80 dives and has had no difficulty.

   On examination today, [C] looked really well. He had no increased work of breathing. He had equal chest expansion bilaterally. His chest was completely clear to auscultation. He had equal air entry bilaterally. There was no finger clubbing. The result of his examination was normal.

   There is certainly no physical evidence of any respiratory disease on examination or history. Since the consultation [C] performed some lung function test which showed a positive 14% response to salbutamol indicating current asthma. There was no air trapping on plethysmography and his chest x-ray was normal. I have discussed these results with both parents on 20/8/2014. I have advised that [C] should not dive until we can normalise his spirometry. I am going to start him on an ICS. I think at this stage it would also be sensible to refer [C] to a specialist Dive doctor.

4. Dr B provided a referral to Professor H, Diving and Hyperbaric Medicine at I Hospital. The referral was in the following terms:

   I would appreciate you review of a 14-year-old boy whom I have seen in clinic recently. In short [C] is an avid SCUBA diver (over 100 dives) but has a history of asthma. His Dad came to ask my opinion of whether [C] is fit to dive after another doctor documented unequal air entry on chest exam. He has not had asthma symptoms or medication for years according to his dad and himself. His respiratory exam is normal. His baseline spirometry is within normal range (although his loop is concave) but he does have a 14% BDR. Pleth is normal (report attached). He has previously passed a saline challenge elsewhere. My plan is to start an ICS and repeat spirometry in 6 weeks. I have advised strongly no diving until then. That is very keen to get his son diving again. [C’s] parents are divorced and they communicate through lawyers. Mum allows him to dive but is not happy about it. Both parents are aware I am referring [C] to a diving medical expert. Once again I would appreciate any advice or review of [C]…

5. The father through his solicitor on 25 August 2015 informed the mother that the child C would not dive until he has been given the all clear as part of his check-up. It is the mother’s suspicion that notwithstanding the father’s assurances he permitted the child to dive on 13 and 14 September and early December 2014.

6. Subsequently the father it appears presented the child C for a “pre-dive medical for prospective entry-level scuba divers” with Professor H. The information on the examination form appears to have been completed by the father. As to whether the child ever had or presently had asthma or wheezing or used a puffer the father answered “no”. The form completed by the father asserted that the child was trained in 2011 (at the age of 10 or 11) and had completed about 120 dives.

7. Professor H’s notes on the examination include the following:

   …mother raised question of asthma. Dad wants reassurance that there is no medical problem…

8. Professor H concluded:

   …have today reviewed [C] following the question of asthma after he had a fall. Reviewed by respiratory physician... No abnormalities. I am happy there is no contra indication to diving from respiratory disease. He is not at increased risk from asthma.

   Professor H’s certificate was dated 2 September 2014.

9. Professor H replied to the referral from Dr B  in the following terms:

   Many thanks for your enquiry. The situation is somewhat complicated by the fact that I would not normally sign off a diver under the age of 16 without the written consent of both parents when available – and only then after satisfying myself of the physical and psychological fitness for a boy of that age to dive. This involves added considerations about the ability of a young diver to assist his “buddy” in a crisis. I suspect that after 100 dives this is rather moot.

   From the asthma point of view, I am assuming you do not concur with the observation that air entry is poorer in one lung compared to the other. As you say, his spirometry does show some BDR, but just inside at usual cut-off figure of 15% – and from a base of large volumes for size. I do not consider that the spirometry would exclude him from diving, particularly in bronchial provocation testing has previously be (sic) normal.

   I would be very keen to avoid a situation where mum felt coerced into accepting the diving…

1. The father’s solicitor wrote to the mother on 5 December 2014 informing her:

   On the issue of [C’s] diving there is no medical evidence that I have seen that says [C] should not dive. The evidence I have seen from suitably qualified doctors states that they do not hold concerns for [C] going diving. This material has been shared with you.

2. On 24 February 2015 as referred to above the child C was added to the restraining orders in relation to SCUBA diving and other water activities.

3. On 10 March 2015 the child C was ill with a respiratory infection and after a general practitioner consultation the child was prescribed antibiotics and Ventolin.

4. On 18 March 2015, in response to a query from the father’s solicitors, Dr B confirmed that he was happy to agree with the conclusion reached by Professor H.

5. On 16 April 2015 Professor H confirmed his previous conclusions in relation to C’s suitability for diving.

D and Asthma

1. On 18 September 2015 the mother received communication that the father had arranged for the child D to attend upon Dr B for assessment as to whether or not she had asthma. The mother objected to the child attending as a consequence of the issues that arose subsequent to examinations of the child C.

2. The mother had previously attended upon the child’s general practitioner on 10 September 2015. The child presented with a persistent cough. It was noted that the child had previously been on Flixotide for asthma. On examination it was noted that the child was “not in respiratory distress, chest-air entry equal, occasional rhonchi”. The child was prescribed Ventolin inhaler four times a day with the child to be reviewed in two days if the problem worsens.

3. The mother asserts that both children have proven medical histories of asthma and that the father continues to disregard the significant risk to their health in their involvement in water activities

The Father’s Case

1. The father’s evidence is that the child C is a competent and enthusiastic diver.

2. For his part the father says that “the mother believes C suffered from asthma when he was younger”. Yet the father concedes that when the child was younger he had to use an inhaler when the child was about six years of age. He says that he has not had to use such medication since.

3. The father makes references to the child’s attendances upon Dr B and Professor H that are referred to above.

4. The child expresses his disappointment to the father that he cannot dive.

5. The father describes the child D as a competent swimmer who has regularly attended swimming lessons. The child enjoyed snorkelling with the father.

6. In December 2013 D child completed a PADI Sasy supplied air snorkelling program.

7. To the father’s observation the child had a few episodes of mild asthma when she was younger but to his knowledge had not been required to use a puffer for over three years and she receives no medication for asthma. Yet attached to his affidavit is a medical certificate from Dr F dated 26 March 2014 stating:

   [D] has an inherited asthma tendency. She’s had several documented episodes, and continues “preventer” therapy with Flixotide (Junior) puffer from time to time.

   The father also annexes a medical certificate from the same doctor dated 22 May 2014 stating:

   …she has unambiguously suffered with asthma.

8. In June 2014 the father proposed that D attend J Hospital to undertake a bronchial provocation test. The mother refused to provide her consent and the test was not undertaken.

9. The father subsequently sought medical advice in relation to D’s fitness to dive. On 23 June 2014 the father it appears attended upon Dr B with the child. The doctor was aware of the parents’ separation and the then current court proceedings. It appears that the history in relation to the child was provided to the doctor by the father. The father clearly omits to tell Dr B of the matters disclosed in the medical certificates dated only the month or two before. In fact the father told Dr B that “the only evidence of asthma in her history was that she was placed on Serotide for a week or two back in 2009”.

10. The report from Dr B includes the following:

    …she has one brother who was diagnosed with asthma a few years ago but dad insists that he did not actually have asthma at all.

11. Dr B concludes:

    Obviously it is impossible to completely rule out asthma 100%, however, there is certainly no evidence on either history or examination of any current asthma for [D] today. For completeness, I would have liked to have done some lung function testing, however due to legal proceedings currently ongoing, it has been my advice from our hospital legal department team not to go ahead with this testing just now.

12. The father continued to seek medical advice in relation to the child’s fitness to dive. He was advised by general practitioner in September 2015 that the child should be referred to a paediatrician for further evaluation. The father was provided with a referral to again attend upon Dr B.

Dr B: April 2016

1. Both children further consulted Dr B on 11 April 2016. The children were accompanied by the father but not the mother.

2. In his report to the referring practitioner as to the child C, Dr B says:

   [C] is actually an active diver and has reached the master diver stage. He has done over 240 dives. He has never had any respiratory symptoms that he describes. I understand he is now going to the depth of 40 m breathing compressed helium. He also plays soccer actively and has no symptoms of asthma while doing that…

   … I can find no current evidence that [C] is symptomatic from asthma… Although no one can ever be 100 percent safe, I see no reason why [C] is at any increased risk than any other child of his age. To confirm this I have requested a mannitol challenge for [C] at the [K Hospital] and if this is normal then I would be happy to say that [C] is apparently asthma free.

3. As to the child D the doctor says:

   [Mr Walker] himself today denies that [D] has wheezed in the past and [D] herself was not sure. She was prescribed Seretide, I believe, for a very short period of time in the past and I did not get any history of her being on any regular inhalers, either a preventer or reliever or otherwise. Currently she has no asthma symptoms such as coughing or wheezing with exercise or with viruses… I note that I also saw [D] back on the 23^rd June 2014 for the same question of asthma and at that time my impression was that she had no evidence of active asthma. At that time I also said I would like to do some lung function testing but due to a court order preventing this we did not go ahead. I would like to stress that my wish to do lung function at that time was not driven by any clinical suspicion but rather by the circumstances of the court case and also that [Mr Walker] wanted her to be clear for diving….

   …there is no evidence that [D] has active asthma. In regards to her history of wheeze in the past, this may have been viral induced wheeze which is not necessarily the same thing as asthma or may indeed have been asthma but I am afraid I will not be able to distinguish between those two entities at this stage. … In terms of fitness to dive, the general recommendations are to do a salt water challenge which is not generally done in children in Australia as we tend to use a sugar called mannitol instead. This is widely more known as the bronchial provocation test. I think given everything that is going on, would be a good idea to have this done with [D] although I would expected to be absolutely normal… What I can say is that there is no evidence of asthma in [D] and if her mannitol challenge is negative, then I can’t see why she would be at more increased risk than any other child of her age.

4. Subsequent to the doctor’s report the father attended to making appointments for the children to be appropriately tested on 9 May 2016. By reason of school commitments it appears the children could not be tested on 9 May and the father made further appointments for testing on 10 May 2016.

5. The father asserts that the mother did all in her power to avoid the children being subjected to testing and at this stage the children have not been tested as recommended by their paediatric respiratory physician.

6. It is appropriate that orders be made to facilitate the children undertaking the tests are recommended by Dr B and subject to the tests being satisfactory both children be at liberty to undertake SCUBA diving and other waterborne activities.

The Child Responsive Memorandum (Exh E)

1. The mother and father and the children were seen for the purposes of the preparation of a Child Responsive Program memorandum on 1 March 2016.

2. In an atmosphere of mutual conflict, distrust and conflictual factual allegations the memorandum provides an independent insight into the issues that confront this family.

3. Importantly the children were interviewed by the Family Consultant and the memorandum provides a very useful insight into issues as seen by the children.

4. The child C said he wanted the week about arrangements to continue with each parent. As to the question of asthma the child reported to the Family Consultant that he could only recall using a puffer on one occasion to treat a chest infection. He said that he understood that the mother thought that he suffered asthma but the father did not. The child said he had been SCUBA diving about 200 times since 2011 and he would like to continue that activity. Regrettably it appears that both parents have enmeshed the child in the litigation, he being aware of the various contravention applications filed by the mother and informed the Family Consultant “that both of his parents informed him about court”.

5. The child D reported to the Family Consultant that her arrangements were different to that of her brother. She said that she was “okay” with the arrangements being different and the amount of time she spent with her brother was “okay”. D reflected on the issues that had arisen in relation to her playing football and that those issues had now been resolved with her father.

6. The child was asked about her experiences of asthma by the Family Consultant. The child said that she could not recall any experiences of it but that she knew that her mother thought that she had asthma. The child did not think that she had been to a doctor for her asthma.

7. It is clear that both the mother and father also engage D in the issues before the Court, she reporting to the Family Consultant that “both of her parents spoke to her about court”.

8. In the course of interviews with the Family Consultant both the mother and father continued to make carping criticism one against the other. Both parents indicated to the Family Consultant that they were unable to communicate and had effectively no co-parenting relationship.

9. It is clear from the Family Consultant’s memorandum that aspects of the parental conflict and the allegations one against the other will not be resolved in the context of this interim hearing but at a fully contested hearing where their respective evidence can be tested.

Interim Parenting

1. In Marvel & Marvel (No. 2)[2010] FamCAFC 101 the Full Court, discussed the difficulties associated with making findings on contested evidence as follows:

   120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   …

   122. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   Later, at paragraph [100] their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

2. In George & George [2013] FamCAFC 182 the Full Court cited Deiter & Deiter [2011] FamCAFC 82 in confirming that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.

3. In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   … Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

4. In Banks & Banks [2015] FamCAFC 36 the Full Court said:

   47. As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.

   48. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   49. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD(2014) FLC 93-582.

   50. When it is obvious that the findings made as to some of the s.60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CCfactor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

   …

   52. In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.

5. The relevant principles in relation to parenting and interim proceedings are well settled Goode & Goode[2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.

6. Section 60B of Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

7. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

8. Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

9. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)In interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

10. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time [s 65DAA(6)].

Best Interests of the Children

The Primary Considerations: s 60CC(2)

1. The primary considerations are:

   a)The benefit to the child of having a meaningful relationship with both of the child's parents; and

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

2. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

3. In Mazorski & Albright[2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

4. In McCall & Clark [2009] FamCAFC 92 the Full Court at 118 accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:

   … the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…

5. Both children at present have well established relationships with each of their parents. Although in the context of this interim application and the allegations made one against the other in particular the mother’s continually carping complaints about the father and his conduct it must be said that the present parental-child relationships are certainly not meaningful in the context of being important and valuable to the children. This aspect will require the resolution of factual conflict at final hearing.

6. The mother’s present concern in relation to the protection of the children focuses upon the issue of SCUBA diving and other water related activities. The evidence in this regard has been discussed in detail above. Overall it is apparent that subject to the children being cleared by the testing proposed by Dr B there is no reason why they should be precluded from an activity in which they participate with the father.

The Additional Considerations: s 60CC(3)

1. Section 60CC(3) sets out the additional considerations:

   a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views;

   b)The nature of the relationship of the child with:

   i)Each of the child's parents; and

   ii)Other persons (including any grandparent or other relative of the child);

   c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:

   i)To participate in making decisions about major long-term issues in relation to the child; and

   ii)To spend time with the child; and

   iii)To communicate with the child;

   ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   i)Either of his or her parents; or

   ii)Any other child, or other person (including any grandparent or other relative of the child);

   with whom he or she has been living;

   e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   f)The capacity of:

   i)Each of the child's parents; and

   ii)Any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   h)If the child is an Aboriginal child or a Torres Strait Islander child:

   i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   ii)The likely impact any proposed parenting order under this Part will have on that right;

   i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   j)Any family violence involving the child or a member of the child's family;

   k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   i)The nature of the order;

   ii)The circumstances in which the order was made;

   iii)Any evidence admitted in proceedings for the order;

   iv)Any findings made by the court in, or in proceedings for, the order;

   v)Any other relevant matter;

   l)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

   m)Any other fact or circumstance that the court thinks is relevant.

2. Both children expressed to the Family Consultant their apparent satisfaction with the current time with arrangements with each of their parents. Having regard to the ages of the children that expression should be accorded significant weight particularly in the context of significant disputed areas of fact between the mother and father as they impact upon the mother’s application for the father’s time with the youngest child to be restricted.

3. It is apparent that the children have well established relationships with both the mother and father. Regrettably those relationships are overshadowed by the engagement of the children in the litigation by both parents and the exposure of the children to the ongoing parental conflict and lack of communication. It can only be said that both parents are demonstrating to their children a most inappropriate parenting circumstance.

4. There is significant conflict in the evidence between both the mother and father as to each other making unilateral decisions in relation to the children, their day-to-day issues and indeed long-term issues. This will be a matter for resolution at a final hearing.

5. The mother makes complaint that the father has not fulfilled his obligation to provide support for the children in accordance with previous orders. In the context of the present interim application such issue does not arise but will be no doubt a significant issue at final hearing.

6. The mother seeks a significant change in the father’s time with the youngest child. The child herself has indicated to the Family Consultant that she is comfortable with the current time with arrangements and there is no evidence that the current time arrangements are inappropriate for the child. Whether the mother presses this aspect of her application at final hearing will be a matter for her but the resolution of the issue will be determined by the resolution of outstanding factual matters at final hearing.

7. The capacity of both parents to provide for the needs of the children including their emotional and intellectual needs is subject to great reservation. There is no co-parenting relationship between the parents and their ongoing relationship over many years has been without regard to the welfare of their own children and the need to regulate the mother/father relationship in the best interests of the children. An assessment of appropriate capacity in the context of final orders will await a final hearing. Similarly both parents have demonstrated an inappropriate attitude to the children and their responsibilities of parenthood. It is clear they have put their own interests ahead of those of the children.

8. There is no family violence order presently applicable.

9. The current application being an interim application, the Court need not have regard to whether it is preferable to make orders that would least likely lead to the institution of further proceedings.

Discussion

1. The mother and father have equal shared parental responsibility by reason of the previous consent orders. The question of the ultimate fate of that equal shared parental responsibility will depend upon the resolution of significant factual conflict at final hearing and whether the allocation of parental responsibility to one or other of the parents for one or other of the children is in the best interests of the children or either of them.

2. In that circumstances there will be no order disturbing the current position as to equal shared parental responsibility.

3. Otherwise it is not necessary to consider the question of equal or substantial and significant time as the arrangements in relation to the child C are well settled and not sought to be disturbed by the mother and father. The father seeks to continue the current time arrangements in relation to the youngest child and the mother for her part seeks such time to be more constrained. As a consequence arrangements for the youngest child’s time with the father fall to be determined by the child’s best interests.

4. The consideration of the children’s best interests set out above are clearly indicative of orders being made to facilitate final testing of the children so they can participate or otherwise in SCUBA diving or other waterborne activities. Once the test results are known then either they will be prohibited from such activities or at liberty to participate in such activities with the father.

5. As to the final issue for determination being the father’s time with the youngest child D there is nothing in the evidence that indicates any significant risk of harm in the present arrangements. Indeed the child herself seeks to maintain those arrangements subject to her father facilitating her engagement in sport.

6. The necessity for any change to the arrangements for time in respect of both children will need to await the determination of outstanding factual conflict at a final hearing.

7. Thus the mother’s application for a change to D’s time with the father will be dismissed, the parties will continue to hold equal shared parental responsibility pursuant to the current consent orders and the father will be empowered to undertake final testing of the children so as to determine their fitness otherwise for SCUBA diving or other waterborne activities.

8. Orders will be made accordingly.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 2 June 2016.

Associate: 

Date:  2 June 2016