TILLEY & DENTON

[2014] FCCA 561

FEDERAL CIRCUIT COURT OF AUSTRALIA

TILLEY & DENTON [2014] FCCA 561

Catchwords:
FAMILY LAW – Interim parenting – whether existing Orders should be varied following release of a Family Report which has not been tested – where the final hearing is only a few months away – where best interest of the child is the prevailing consideration.

Legislation:  

Family Law Act 1975 (Cth) – ss.60CC, 65DAA, Part VII

Goode & Goode [2006] FamCA 1346

Applicant: MR TILLEY

Respondent: MS DENTON

File Number: WOC 129 of 2013

Judgment of: Judge Altobelli

Hearing date: 13 March 2014

Date of Last Submission: 13 March 2014

Delivered at: Sydney

Delivered on: 18 March 2014

REPRESENTATION

Counsel for the Applicant: Mr Harper

Solicitors for the Applicant: Oliver Campbell Heslop Lawyers

Solicitors for the Respondent: Bailey Mullard Lawyers

PENDING FURTHER ORDERS

1. That the Mother and the Father shall have the equal shared parental responsibility for the child, X born (omitted) 2010 ("the child").

2. That each parent shall have the sole responsibility for making decisions about the day to day care, welfare and development of the child whilst the child is living with or spending time with them respectively.

3. That the child shall live with the Mother at all times that he is not otherwise spending time with the Father in accordance with these Orders.

4. That the child spend time with the Father at such times as agreed between the parties and as follows:

   (a)From the date of these Orders and in a four weekly cycle with Week 1 to commence on the first Saturday following the making of these Orders;

   (i)Week 1 – From 10.00am to 4.00pm on Saturday with changeover to take place at the residence of the Paternal Grandmother

   (ii)Week 2 – From 12 noon to 4.00pm on Sunday with changeover to take place at the Mother's residence.

   (iii)Week 4 –

   A.From 10.00am to 4.00pm on Sunday with changeover to take place at the Mother's residence.

   B.From after playgroup to 4.00pm on Monday with the Father to collect the child from playgroup at the commencement of such time and return the child to the Mother's residence at the conclusion of such time.  

   (b)For the sake of these Orders it is noted that the Paternal Grandmother resides in (omitted) while the Mother resides in (omitted).

   (c)In the event that the Paternal Grandmother is unable or unwilling to facilitate contact changeover at her residence in (omitted) then changeover on such occasions shall occur at (omitted).

5. That the child spend time with the Father (when not already spending time with the Father pursuant to Order 4) as follows:

   (a)Upon such occasions as the parents agree from time to time;

   (b)Father's Day – The child shall spend time with the Father on the weekend that includes Father's Day from 10.00am to 4.00pm Sunday with changeover to take place at the Mother's residence.

6. That the child spend time with the Mother (when not already living with the Mother pursuant to Order 3) as follows:

   (a)Upon such occasions as the parents agree from time to time;

   (b)Mother's Day – Order 4.1 shall be suspended on the weekend that includes Mother's Day.

7. That each parent be entitled to attend all events involving the child including, but not limited to:-

   (a)sporting functions;

   (b)extra-curricular activities that allow for parental attendance or participation;

   (c)school functions and events that allow for parental attendance or participation;

   AND the parent who has the child in their care on the day of such activity will be responsible for the day to day care of the child at such event including the child's transportation to and from the event unless otherwise agreed on between the parents.

8. That for the purposes of facilitating the changeover of the child on special occasions such arrangements will be as agreed between the parents but failing agreement the parties shall meet at the home of the Mother.

9. That each parent shall ensure the other parent is kept informed as soon as is reasonably practicable of:-

   (a)any medical problems or illness suffered by the child whilst in the care of either parent;

   (b)any medication that has been prescribed for the child;

   (c)any specialist medical appointments with any doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;

   (d)any significant social, school or religious functions which the child is to attend;

   (e)their residential address and telephone contact number;

   (f)any other matter relevant to the welfare of the child.

10. Each of the parents are to be permitted to liaise directly with the child’s school, sporting bodies and/or extra-curricular organisations to obtain any necessary information about the child’s progress and that both parents are to authorise the school, sporting bodies and/or other organisations to facilitate this.

11. Both parents are hereby authorised to receive any information from the child’s school including but not limited to: copies of the child’s school reports as they fall due along with copies of all school circulars, newsletters, requests for school photographs and invitations to any school activities which parents are invited to attend.  If authorisation is otherwise required then each parent shall sign any such document necessary and forward this to the Principal of each school attended by the child to ensure that the school forwards these items to both parents.

12. That each parent is restrained from physically disciplining or shouting at the child, or allowing any other person from physically disciplining or shouting at the child.

13. That each parent refrain from making or communicating any critical or derogatory remarks about the other parent or members of the other parent's family in the presence or within hearing or eyesight of the child and that each parent shall do all things reasonably necessary to ensure that no other person makes or communicates any critical or derogatory remarks about the other parent or members of other parent's family in the presence or within hearing or eyesight of the child.

14. That for the purpose of communicating information between the parents the Father and Mother shall communicate by communication book, sms text message or email and shall be restrained from using the child as a messenger.

THE COURT NOTES THAT:

1. This matter has been allocated final hearing dates.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

WOC 129 of 2013

MR TILLEY

Applicant

And

MS DENTON

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. The application before me relates to X, born (omitted) 2010. X is three years old. The applicant is his father. He is 42 years old. The respondent is his mother who is 35 years old. The father is profoundly deaf; the mother significantly hearing impaired and X apparently has a cochlear implant. The father lives in the former matrimonial home in (omitted). The mother lives with X in (omitted).  The current contact arrangement involves essentially alternate weekends with the father and this means that X experiences on a very frequent basis a substantial period of time in the car.

2. In the substantive application before the Court, the father is seeking to increase his time with X whereas the mother wishes to either reduce the time or to have no change to the current arrangement.  The matter comes before the Court in circumstances where a hearing date has been allocated for July, following the release of a Family Report that Family Consultant Ms L prepared and which is dated 2 February 2013. 

3. The Report is in a fairly familiar and common format.  Some of the significant features of the Report include the observations of X’s interaction with his father together with the conclusion that X seems to be struggling with the existing contact arrangements especially at the travel times.  The recommendation in the Report is for equal shared parental responsibility, that X lives with his mother and that X has time with his father, week 1 in Sydney 10 to 4 on Saturday, week 2 in (omitted) 12 to 4 on Sunday, week 4 in (omitted) 12 to 4 on Sunday, with the amount of time increasing as time goes by.

4. Following the release of the Report, the orders that were sought by the mother on an interim basis were contained in a document entitled minute of interim orders sought by the respondent mother.  In practical terms, these interim orders seek to implement the recommendations contained in the Family Report.  In support of the mother's case, she relied on her affidavit of 5 March 2014 though I have also had regard to her earlier affidavit of 6 May 2013. 

5. The father opposed the making of any orders and relied on his affidavit already filed in the proceedings.  There was one filed 14 February 2013, one 15 July 2013 and I have also had regard to the affidavit of the paternal grandmother, Ms A filed 15 July 2013.  In terms of the other evidence that was available before the Court, there was of course the Report of Family Consultant Ms L and in addition, there was an earlier Family Consultant memorandum to the Court of 17 June 2013. 

6. The applicable law is, of course, Part VII of the Family Law Act.  The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of that section and the way to proceed and I will incorporate into these reasons a number of paragraphs from the Full Court’s judgment.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, 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.

   …

   72. 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.

   …

   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.

7. This, of course, is an interim hearing, albeit slightly different to many other interim hearings in the sense that there is a Family Report before the Court.  The Report is independent and expert evidence but it has not been tested by cross-examination and indeed the Court recognises that a final hearing the evidence of both the mother and the father and their respective witnesses may also have a bearing on the weight that would be given to the Family Report. 

8. Indeed, one of the main arguments advanced on behalf of the father at the interim hearing was that these limitations of the Report that I have just identified as well as the proximity of this matter to the final hearing in fact represents reasons why there should be no changes to the orders.  The matter as well as the submissions capably made on behalf of the father by his counsel, Mr Harper, caused me to go back and re-read the Full Court’s decision in Goode & Goode and I will do is incorporate the following into my judgment.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, 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. 
   
   69. It remains the case that the Court must regard the best interests of the child as paramount in deciding what interim parenting order to make. However, there are passages in Cowling that do not sit comfortably with the Act as amended. It is the following passage in particular which calls into question the applicability of Cowling to the Act as presently drafted:

   22. Thirdly, where the evidence clearly establishes that, at the date of hearing, the child is living in an environment in which he or she is well settled, the child’s stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child’s welfare to the contrary. Such indications would include but are not limited to convincing proof that the child’s welfare would be really endangered by his/her remaining in that environment.

70. There are many elements in the Act as amended that would militate against the continued application of the principles in Cowling, and in particular the passage cited above. While the ultimate goal in the legislation is to provide for an outcome in the best interests of the child, if the presumption in s 61DA applies, then the Court is obliged by s 65DAA to consider the outcomes previously discussed. First, whether the child spending equal time would be in the best interests of the child and whether that is reasonably practicable. Second, if an order to that effect is not made, there is an obligation to consider whether an order that the child spend substantial and significant time would be in the best interests of the child and whether that is reasonably practicable. Section 61DA must be applied in any case, including interim proceedings, where a court is considering making a parenting order. 

71. The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time. 

72. 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.

73. That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).

74. We also acknowledge that, because of the circumscribed nature of the proceedings, the reasons given at an interim hearing may be brief. So too, the filing of lengthy affidavits is unlikely to be helpful where the Court is unable to make findings about disputed facts.

…

1. Let me see if I can summarise the arguments advanced on behalf of the father by counsel, at least as I have interpreted, and I accept I am probably not doing them justice.  Firstly, it was submitted on behalf of the father that the existing arrangement in relation to X is a well settled one that ought not to be disturbed in the circumstances of this case, particularly in view of the untested Family Report and also in view of the proximity of this matter to the final hearing.  There is some merit to that argument, however, the submission cannot be construed as a reason not to make an order that is in the best interests of the child if that is what the application of the Family Law Act dictates. 

2. In other words, it has never been the case and indeed this was confirmed by the Full Court in Goode & Goode that just because an arrangement is a well settled one that that is a reason not to make orders that would otherwise be made as a result of the application of the Act. In other words, section 60CC as well as, for example, section 65DAA still needs to be applied to this case in any event.

1. The second submission was, in effect, that to change the orders as proposed by the mother now binds the Court’s hands at the final hearing.  The Court does not accept this.  The best interests’ principle is applied to all of the evidence available at the time of a hearing whether that be interim or final.  To the extent that the submission really was that change being unnecessary change ought to be minimised in X’s life pending the final hearing, that is so but the question is whether the changes proposed fall into the category of unacceptable change or whether those changes are in fact changes that are in his best interests. 

2. The other limb in the father’s case and perhaps the limb that was advanced with the most emphasis is that to accept the proposal of the mother would be to unequivocally accept the Family Report, notwithstanding the fact that it is untested evidence.  This is a point that might have had far more weight but for the father’s admissions in the Report about the very behaviour that the Family Consultant relies on to justify making recommendations that change the existing arrangement. 

3. For example, at paragraph 19 of the Family Report, Mr Tilley himself says:

   Mr Tilley expressed the belief that X’s behaviour – being clingy, anxious and not wanting to leave Mr Tilley – means that X would benefit from spending more time with him. 

   In other words, putting aside Mr Tilley’s belief that spending more time would actually address the issues, he himself concedes that X has demonstrated behaviour that is clingy and anxious and not wanting to leave him. 

4. The mother’s evidence, particularly her affidavit of 5 March 2014 which in the Court’s opinion graphically depicts the adverse impacts on X of travel to (omitted) each alternate weekend, is evidence that the father really is not in a position to cavil with anyway, a fact that was all but conceded by counsel for the father in, for example, explaining why there was no further evidence from the father.  In other words, the disturbing behaviour that the mother describes in her affidavit and that the Family Consultant warns of in quite clear terms are matters that are well established in the evidence of both the mother and the father.  For example, in the Family Report at paragraph 40, she describes the impact on X after contact.  At paragraph 41 she describes him as being high spirited and cheeky.

5. The focus, I think, turns on the evidence that is before the Court.  As I indicated before, the Family Report, albeit untested, is both independent evidence and expert evidence.  The limitations of the report is a matter that the Family Consultant quite clearly indicates herself.  For example, in the last two sentences of the paragraph 3 of the report, the observations are matters in respect of which one would have thought would be very difficult to challenge, the observation at paragraph 12, for example, that X seemed quite insecure at times when he is with his father is relevant as indicative of or as consistent with the concerns expressed by the mother.

6. At that same paragraph, for example, Mr Tilley is recorded as having said that,

   X is prone to be unsettled at night, and so he allows X to sleep in the same bed with him. 

7. At paragraph 21, the Family Consultant records the essence of the problem and that is that the burden of travel seems to fall on X.  The father’s response to this is recorded at paragraph 21:

   He acknowledged that the distance is a considerable one, and X is a person who has to do all of the travelling.  But Mr Tilley believes that X is now used to the travelling, and he loves being in the car and looking around.  Mr Tilley said he has not noticed any negative effects of the travel on X, except that it occurs over a very short period of time, and does not seem to tire him out, which would, of course, be mitigated if X was to have longer weekends with him.

8. It’s interesting to observe that, from the father’s perspective, it would seem that which he does not observe is something that ought not to be taken into account. 

9. At paragraph 27 of the Report, the Family Consultant again records some of the mother’s observations in relation to what X is like at the end of the weekend.  For example, she says at paragraph 27:

   Ms Denton said that X looks forward to spending time with his father – appearing happy and excited at the prospect – but at the end of the weekend, he is really restless and tired and cranky.  Ms Denton said it usually takes her about three days to settle X back down into a routine and calm his behaviour, which can be quite agitated.

10. At paragraph 31, there is another relevant piece of information which, based on all the evidence before the Court, would seem to be an uncontested fact.  At paragraph 31, in the second sentence, the mother describes X’s weekly commitments:

    …which are significant.  The high level of specialist intervention will continue at least until X goes to primary school.

11. I think that is a significant matter to take into account in this case.  We are not talking about any child who has to confront the rigors of geographical distance of his parents and travel.  We’re dealing with a child in the context of a family which has a special needs son. 

12. At paragraph 40 and 41, there’s further evidence of the mother’s concerns.  I incorporate the below paragraphs into these reasons.

    48. X’s emotional response to his father was somewhat ambivalent. While he seemed quite happy to play with his father, and to show him things of interest, there was no physical affection between the two of them. X made no effort to kiss or cuddle his father and he did not sit on his lap or try to get close to him physically. In fact, X at times seemed to choose to stand or sit quite separately to his father, and he would move away if his father got too close, as if he was creating a safe distance between them.

49. At the end of the session, in a mixture of speech and signing, X was told that his father would be leaving. He barely acknowledged this information and went on playing. Mr Tilley approached him and picked him up for a cuddle. X was noted to hold himself quite rigidly in his father’s arms and he turned his head away from being kissed. X struggled to get down and when his father put him down, he ran away to play with another toy. Mr Tilley then left the room quickly.

1. This indicates a number of possible issues into the nature of X’s relationship with his father.  The evaluation is contained at paragraphs 52 to 56 inclusive.  Further relevant paragraphs are paragraphs 58 to 63 inclusive.  The recommendations are set out at paragraph 65.

2. There is no question between the parties about equal shared parental responsibility, and that X live with his mother. The focus is what is the spends time with arrangement that is in X’s best interests. When one looks at section 65DAA, as one must, even in the present context, the issue includes the reasonable practicality of the arrangement. The Act, of course, requires the Court to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable. The definition of reasonable practicality in subsection (5) of section 65DAA includes as its first consideration how far the parents live from each other. And then paragraph (d), the fourth requirement, the impact that an arrangement of that kind has on the child.

3. Based on the evidence that is available before the Court, it could not possibly be asserted that the current arrangement, which puts the emphasis and the pressure on X to travel for very substantial periods of time each alternate weekend, could not possibly be in his best interests or reasonably practicable in the circumstances, and notwithstanding having had due regard to the arguments capably advanced on behalf of the father, the orders proposed by the mother are in his best interests and reasonably practicable.

4. Accordingly, pending further order, I make orders in terms of the document entitled Minute of Interim Orders proposed by the respondent mother that I have marked A, initialled and dated today’s date. 

5. I note that this matter has been allocated a final hearing date.  I make the following observations for the benefit of the parents.  I ask them to consider whether, having regard to the orders that I’ve made and, more particularly, having regard to the Family Report, whether it wouldn’t be best to reschedule the hearing to a later time in the year when more time can pass to see whether the issues raised by the Family Consultant have been ameliorated by a different contact regime.

6. There is benefit, certainly to X, but there is also potential benefit to the father if such a course were adopted, on the basis that if the Family Consultant has got it right, X’s relationship with him will actually be strengthened by a reconfiguration of the spends time with arrangement as the orders that I have made contemplate.  I acknowledge that the father may feel disappointed, frustrated and, indeed, inconvenienced by the orders that I have made. 

7. The Act requires me to make a decision that is in the best interests of X, and not one that is necessarily in the best interests of the father. X’s needs will always prevail against matters of inconvenience involving the father. I urge the parents to have a discussion with their legal representative about the orders that have been made.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Altobelli.

Date:  31 March 2014