STOREY & MARTEL
[2016] FamCA 833
•30 September 2016
FAMILY COURT OF AUSTRALIA
| STOREY & MARTEL | [2016] FamCA 833 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – where father’s oral application for an adjournment is dismissed – where father seeks an adjournment until his criminal proceedings conclude – where the effect of determining the mothers application rather than adjourning it does not deprive the father any real opportunity to litigate his rights – where it is in the interests of justice to determine the application rather than adjourn FAMILY LAW – PARENTING – Interim Proceedings – where mother has sole parental responsibility of the child – where father seeks equal shared parental responsibility – where father seeks interim orders requiring the mother to relocate to an area close to him – where mother alleges father has sexually abused the child – where father was charged with a number of sexual assaults of the mother and one other person – where father is remanded in custody – where father has a criminal history – where mother currently exercises de facto sole parental responsibility – where the presumption of equal shared parental responsibility does not apply FAMILY LAW – PRACTICE AND PROCEDURE – where service of documents upon the C Correctional Centre is deemed good service upon the father |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 79ZN |
| Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175 Banks & Banks [2015] FamCAFC 36 Bloch v Bloch (1981) 180 CLR 390 Elgin & Elgin [2015] FamCAFC 155 Forster & Forster [2014] FamCAFC 88 Goode & Goode (2006) FLC 93-286 Salah & Salah [2016] FamCAFC 100 Sali v SPC Ltd (1993) 67 ALJR 841 |
| APPLICANT: | Ms Martel |
| RESPONDENT: | Mr Storey |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Wallace |
| FILE NUMBER: | BRC | 5091 | of | 2015 |
| DATE DELIVERED: | 30 September 2016 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 27 September 2016 |
REPRESENTATION
| SOLICITORS FOR THE APPLICANT: | Gun Lawyers - Townsville |
| THE RESPONDENT: | In person |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER : | McDonald & Leong |
Orders
The father’s oral application for a six month adjournment of the hearing of the mother’s Application in a Care filed 7 July 2016 is dismissed.
The mother Ms Martel, have sole parental responsibility of the child B born … 2015.
The service of documents in these proceedings upon the C Correctional Centre is deemed good service upon the father.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Storey & Martel 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 CAIRNS |
FILE NUMBER: BRC5091/2015
| Ms Martel |
Applicant
And
| Mr Storey |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings relate to the parties’ only child, B (born in 2015, and hence presently 18 months of age) (“the child”). Although they had been in a relationship since March 2012, the parties separated on 20 February 2015, just under a month after the child was born. The father commenced these proceedings by Initiating Application filed 5 June 2015, seeking final orders for equal shared parental responsibility in relation to the child, who would live with the mother but spend three nights per week with the father. He also sought interim orders requiring the mother to relocate with the child to an area close by him, and that although the child would live with the mother, she would commence to spend time with the father on gradually increasing basis.
By her Response filed 30 July 2015, the mother sought sole parental responsibility for the child, who would live her. She did not seek orders, whether on an interim or final basis, for the father to spend time with the child. That is likely because in her Notice of Risk filed simultaneously, she alleged that the father had sexually assaulted the child and posed a risk of sexual abuse and psychological harm to the child. Further, in her affidavit filed simultaneously with her Application and Notice of Risk, she outlined an extensive history of alleged sexual assault of herself by the father.
On a date which is unclear on the evidence, the father was charged with a number of sexual assaults of the mother, and at least one other person (it seems). For reasons which were also unclear on the evidence, he has not obtained bail in relation to those charges, but has been remanded in custody.
By her Application in a Case filed 7 July 2016, the mother seeks an interim order that she have sole parental responsibility for the child. When that application first came on for hearing before me on 26 July 2016, the father did not appear. However I adjourned it until Tuesday 20 September, and afforded the father an opportunity to file material and participate in the proceedings on that day, by way of telephone link from jail. Although he filed no material, he did in fact appear by telephone on 20 September, and sought an adjournment of the mother’s application for a period of six months. In the event that application was not successful, he opposed the mother’s application, and sought that the present situation, where by operation of law, the parties enjoyed equal shared parental responsibility for the child, continue.
On 20 September 2016 I refused the father’s application for an adjournment and made orders in the terms of the mother’s application, for reasons to be published in due course. These are those reasons.
BACKGROUND FACTS
The father was born in Brisbane in 1977 and hence is presently 38 years of age. The mother was born in 1981, and hence is presently 35 years of age.
Although it appears as though the father has for most, if not all, of his life lived in the D Town district, and the mother in E Town, after they met online in 2011 they visited each other and formed a relationship. During that relationship they lived in the D Town district.
The child was born in 2015, and the maternal grandmother travelled from E Town to assist the mother with her initial care of the child after they returned from hospital. However after she left, the father says the mother was having some difficulty coping with the child’s needs, and she travelled with the child to E Town for some days. She returned to the D Town district on 11 February 2015 and the parties resumed cohabitation. However on 16 February 2015 the parties had an argument, in consequence of which the mother and child left the home and have not returned. On that evening the police attended the father’s home and advised him that the mother had made rape allegations against him.
Some time shortly after the parties’ relationship ceased, the mother again travelled to E Town with the child, and has remained living there since.
As I have earlier indicated, the father was ultimately charged with a number of criminal offences of a sexual nature against the mother and at least one other person. It appears he has never obtained bail in relation to those charges, and has been in custody now for some considerable time. At the hearing before me he told me that he anticipated that he would be indicted on 6 October 2016, and that a trial would shortly follow. He anticipated that he would be acquitted of all charges.
Part of the reason why the father apparently has not been able to obtain bail may relate to his criminal history. In 2008 he pleaded guilty to two charges of sodomy and two charges of dealing with a minor. He spent three months on remand in relation to those charges, and upon sentencing in 2009 was placed on a two year good behaviour bond. However during that period he was charged and pleaded guilty to robbery after the fact, and spent a further one year on remand. Upon sentencing he received a three year good behaviour bond.
At the time of the hearing before me the mother and child remained living in E Town, whereas the father was on remand at the C Correctional Centre in Brisbane.
THE ADJOURNMENT APPLICATION
Relevant statutory provisions and legal principles
Section 79ZN of the Family Law Act mandates the court to give effect to principles there enumerated not only in performing duties and exercising powers in relation to child related proceedings, but importantly, by sub-paragraph (b), also in making other decisions about the conduct of child related proceedings.
The principles relevant to these proceedings are principles 2 and 5, contained respectfully in sub-sections (3) and (7). They provide:
The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
…
The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality and legal technicality inform as possible.
The following principles emerge from relevant case law:
·The decision to grant or refuse an adjournment is a matter of practice and procedure within the discretion of the trial judge;[1]
·Generally speaking, if there is no injustice to any other party, and a refusal to grant the adjournment would result in a denial of natural justice to the parties so applying, the application should be granted;[2]
·However the effect of an adjournment on court resources, including the displacement of claims by other litigants are relevant, as there is a public interest in the most efficient uses of court resources;[3]
·The lack of legal representation may, in an appropriate case, compel an adjournment.[4]
[1]Bloch v Bloch (1981) 180 CLR 390 at 395; Elgin & Elgin [2015] FamCAFC 155.
[2]Sali v SPC Ltd (1993) 67 ALJR 841 at 843.
[3]Sali v SPC Ltd (supra); AON Risk Services Australia Ltd v ANU (2009) 239 CLR 175 at [94].
[4]See for example Forster & Forster [2014] FamCAFC 88 at 8ff, accepting that they are unusual facts in that case.
Evaluation
The father wants the mother’s application adjourned for six months so that he can conclude his criminal proceedings. The effect of that would be to maintain the present position where, by operation of law, both he and the mother have equal shared parental responsibility for the child. However it is not in contest that the mother and father do not presently communicate, and have not since the father’s charges, and further, that in fact since separation the mother has in fact exercise sole parental responsibility for the child, and the father has not exercised any parental responsibility at all.
The reason why the mother brings her application was to regularise by way of an order for sole parental responsibility the de facto exercise of such a power by her since separation. The effect of granting an adjournment of the application would be to maintain the practical status quo, which would be at odds with the legal position.
Plainly the issue in relation to parental responsibility should be determined on an interim basis. Particularly, the merits of the father’s position, whereby he seeks equal shared parental responsibility, should be evaluated, as should the mother’s claim for sole parental responsibility.
Whilst as a matter of practical reality the mother would, if her application were adjourned, in all likelihood continue to exercise de facto sole parental responsibility, there may well be situations that could arise where the absence of any legal right to that effect could create problems. For instance if the child were to become ill in circumstances where major decisions were required, it might be that hospitals would require both parents with the legal right to make decisions in relation to the child to give the requisite consent. Plainly that is a matter as to which both parties should be aware of their respective rights, rather than leaving the parties in some sort of muddle at the time.
Further, there is no reason why, upon his release from prison (if that be the result of the father’s trial) the father could not again seek to agitate questions of interim parental responsibility. Therefore the effect of determining the mother’s application, rather than adjourning it, is not to deprive of any real opportunity to litigate his rights.
Accordingly I concluded that the interests of justice required the application to be determined, rather than adjourned, and hence I refused the father’s application.
THE MOTHER’S APPLICATION
Relevant statutory provisions and legal principles
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(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).
Section 61DA(1) of the Family Law Act provides that 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 for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].
Interim parenting proceedings
In Goode & Goode (2006) FLC 93-286 at 80,903 the Full Court set out the way in which an interim parenting application should be determined as follows:
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. 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)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(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.
Recently in Salah & Salah [2016] FamCAFC 100 the Full Court at [36]-[40] said this in relation to the task of a judge conducting an interim hearing where disputed facts are unable to be resolved:
[36] It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to "the usual pathway as highlighted in Goode & Goode(2006) FLC 93-286". A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):
... the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is "significantly curtailed". Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future.
[37] In Eaby & Speelman (2015) FLC 93-654 the Full Court (Thackray, Ryan & Forrest JJ) observed about Goode in disputed facts in interim hearings:
... that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
[38] The Full Court in Eaby & Speelman went on to say (citing Marvel v Marvel (2010) 43 Fam LR 348) that findings (in disputed interim proceedings) should be couched with great circumspection.
[39] In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:
... 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.
[40] The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or "conjecture") and not to "simply ignore an assertion because its accuracy has been put in issue" (see SS v AH).
Finally I should advert to s 61DA(3) which provides:
When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
In Salah (supra) at [34]-[35] the court said as follows:
[34] Section 61DA and in particular, subsection (3), was discussed in Treloar & Nepean (2009) FLC 93-417 (Coleman, May & Dawe JJ) where the Full Court stressed its importance, and gave particular emphasis to what was said in Goode and Goode (2006) FLC 93-286 (at 83,750). The following paragraph from Goode (above) was emphasised in the decision of Treloar:
The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult ...
[35] Section 60CG requires a court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. Had the trial judge referred to s 61DA(3), the interim orders provision, his Honour would have applied a cautious approach, absent any need for findings as to family violence, and applied s 60CG.
Later at [46] the Full Court continued:
[46] In view of the allegations made by the mother and as this was an interim hearing, the trial judge should have applied s 61DA(3) and given reasons for not applying the presumption (such as he was unable to make any findings and could therefore neither apply nor rebut the presumption) but his Honour said that the presumption applied. In part, it was the application of the presumption which triggered well known obligations within the Act, and that led to his discretion being exercised in error.
The parties’ proposals
The mother proposes that she should have sole parental responsibility on an interim basis. The father contends that the current regime of equal shared parental responsibility should continue.
Agreed or uncontested facts
The following appear to be the agreed or uncontested facts:
·The child is presently only about 18 months of age;
·The father has not seen the child since 16 February 2015, when she was less than one month old;
·Since about 16 February 2015, the mother has been residing in E Town, whereas the father has either been residing in the D Town district, or incarcerated;
·The father is presently incarcerated;
·The father is likely to remain incarcerated for at least something in the order of the next six months, until his criminal proceedings come on for trial;
·Since 16 February 2015 the father has neither seen nor communicated with the child;
·The father is presently charged with serious sexual offences in relation to the mother and one other person;
·The father has a criminal history, and has spent considerable periods on remand in relation to charges he was then facing.
Section 60CC considerations
By reference to the primary considerations, I note as follows.
Whilst it may be that the child would benefit from having a meaningful relationship with both of her parents, the issue for my decision here is restricted to parental responsibility. It is not suggested or reasonably arguable that a grant of equal shared parental responsibility would enable the child to have a meaningful relationship with the father. That is because she lives in E Town and the father is presently incarcerated and likely to remain so for, it would seem, at least something in the order of six months.
The mother asserts that the father sexually abused the child. I cannot make a determination in relation to that in interim proceedings such as this.
I have considered all of the additional considerations. Whilst it is unnecessary to comment in relation to each of them, I do make the following further observations.
The child has no effective relationship with the father. Her only parental relationship is with her mother.
No doubt largely because he has been incarcerated, the father in fact has made no decisions in relation to the child, or spent time nor communicated with her, since 16 February 2015.
The mother asserts that the father has an intellectual impairment which would preclude him from properly providing for the child’s emotional and intellectual needs. I cannot determine that in this interim proceeding.
The mother asserts extensive family violence visited upon her by the father during the course of the relationship. I cannot make findings in relation to that in these proceedings, but I note that the father remains on charges of sexual assault of the mother. In those circumstances, any exercise of equal shared parental responsibility would require the alleged victim of that sexual assault to negotiate with her alleged perpetrator. Further, if the father had been granted bail, it is quite likely that a condition of that would have been to preclude him from having any contact with any witnesses in the proceedings, including the mother.
Family violence orders have applied between these parties since separation. The father told me without objection that the parties are precluded from communicating with each other save in relation to the child. There are only limited relevant inferences that I can draw from the fact of those orders.
Parental responsibility
Given the fact that the father is presently facing charges of raping the mother, I am satisfied that there reasonable grounds to believe that a parent of the child has engaged in family violence. The presumption of equal shared parental responsibility therefore does not apply. Even if there were not reasonable grounds to so believe, in my view it would not be appropriate in the circumstances of this case for the presumption to be applied in making interim orders in this case, because of the fact that the father is presently charged with raping the mother. That is because if an order were made in accordance with the presumption, it would require the parents to communicate. Given that the mother would be the principal witness in any proceedings against the father, and given that she is the alleged victim of his sexual assault, in my view until the criminal proceedings are resolved either way, it would be inappropriate to require the parents to communicate.
Finally if I am wrong as to the appropriateness of the presumption applying in this case, I would nonetheless be satisfied that if the presumption has been rebutted here, and that it would not be in the best interests of the child for her parents to have equal shared parental responsibility. That is because the parties could not, on the material before, possibly discharge their responsibilities imposed upon them by s 65DAC to consult with each other and make a genuine effort to come to a joint decision about issues pertaining to the child. In large part that is because of their current conflict in relation to whether or not the father raped the mother, but also because the parties have in fact not spoken now for in excess of 17 months, during which time the father has had nothing to do with the child.
It follows that there must be an order in favour of the mother for sole parental responsibility on an interim basis.
CONCLUSION
For these reasons I made the orders which I did on 20 September 2016.
I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 30 September 2016.
Associate:
Date: 30 September 2016
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