TOWERS & ATKINS

[2015] FCCA 1742

FEDERAL CIRCUIT COURT OF AUSTRALIA

TOWERS & ATKINS [2015] FCCA 1742

Catchwords:
FAMILY LAW – Children – parenting orders – times with child – whether father’s time with child should be supervised – whether risk of harm – relocation – whether mother should be permitted to relocate child’s residence from the Sydney metropolitan area to the (omitted)– parental responsibility – equal shared parental responsibility – whether mother should have sole parental responsibility for the parties’ child – boy aged 3 years and 5 months.

FAMILY LAW – Travel – overseas travel – whether mother should be permitted to remove child from Australia – passport – whether mother should deliver the child’s passport to the Court Registry – Family Law Watchlist.

Legislation:
Evidence Act 1995 (Cth), ss.55, 56, 131
Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65Y, 67ZD, 69ZT

Cases cited:
Jaeger & Jaeger (1994) 18 Fam LR 126; FLC 92-492
Vedder & Colliss [2014] FCCA 2682

Applicant: MR TOWERS

Respondent: MS ATKINS

File Number: SYC 2775 of 2014

Judgment of: Judge Scarlett

Hearing date: 10 June 2015

Date of Last Submission: 10 June 2015

Delivered at: Sydney

Delivered on: 17 June 2015

REPRESENTATION

Counsel for the Applicant: Mr Levy

Solicitors for the Applicant: Clinch Long Letherbarrow Pty Ltd

Counsel for the Respondent: Ms Gillies

Solicitors for the Respondent: Blanchfield Nicholls Partners

ORDERS

1. The Applicant father and the Respondent mother are to have equal shared parental responsibility for the child X born (omitted) 2012.

2. The child X is to live with the mother.

3. The child X is to spend time with the father as follows:

   (a)From 8:00 am to 4:00 pm each Friday;

   (b)From 10:00am to 6:00 pm each Sunday;

   (c)From 10:00 am to 2:00 pm on the child’s birthday in each year;

   (d)From 10:00 am to 2:00 pm on the father’s birthday in each year; and

   (e)From 3:00 pm on Christmas Day to 3:00 pm on Boxing Day in 2015 and odd numbered years thereafter and from 3:00 pm on Christmas Eve to 3:00 pm on Christmas Day in 2016 and even numbered years thereafter; and

   (f)At such other times as the parties shall agree.

4. The immediately preceding Orders are suspended on:

   (a)Mothers’ Day; and

   (b)The mother’s birthday.

5. The mother is restrained from relocating the residence of the child X from the Sydney Metropolitan Area prior to 31 July 2015.

6. From and after 1 August 2015 the mother is permitted to relocate the residence of the child X to a place on the (omitted) no further North than the (omitted) local government area.

7. UNTIL FURTHER ORDER the Applicant MR TOWERS born (omitted) 1971 and the Respondent MS ATKINS born (omitted) 1971 their servants and/or agents are hereby restrained from removing the child X (a male) born (omitted) 2012 from the Commonwealth of Australia AND IT IS REQUESTED THAT the Australian Federal Police give effect to this Order by placing the name of the child X on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until 16 June 2017 or such earlier date as the Court orders its removal. 

8. The parties are restrained by injunction from using any form of physical chastisement or physical discipline on the child X.

9. The parties are restrained by injunction from using any abusive or critical language towards each other in the presence or hearing of the child X.  

10. The Application is listed for Interim Hearing on financial issues at 7 July 2015 at 2:15pm before Judge Scarlett in (omitted), (omitted), Sydney NSW 2000.

11. Each party is to file no more than one affidavit from each witness.

12. No affidavit is to exceed more than ten (10) pages of text.

13. All affidavits must be filed and served no later than 30 June 2015 without leave of the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 2775 of 2014

MR TOWERS

Applicant

And

MS ATKINS

Respondent

REASONS FOR JUDGMENT

1. This is an application for interim parenting orders.  There are, however, orders sought by the Respondent mother in respect of financial matters, including spousal maintenance, and a departure from an assessment of child support.  The mother’s orders in respect of the financial matters are contained in an Amended Response, which was filed on the date of the hearing. 

2. There was a degree of opposition expressed by Counsel for the father, Mr Levy, to the late filing of this document, and I took the view that, whilst there was a degree of urgency about the parenting orders that are sought, the financial matters should be adjourned to another date to allow further time for the parties to consider those matters.  That turned out to be an appropriate decision, because the submissions by Counsel for the applicant and Counsel for the respondent on the parenting issues occupied a significant part of the afternoon.

3. I did, however, make some critical comments about the way in which the parties’ solicitors had prepared the application for interim hearing.  I have for some time been critical of the way directions for hearing have been flouted or ignored and, indeed, I said on 10 June:

   On 29 April 2015 I listed this application for interim hearing at 10 am and I made certain directions, as is the practice in the Sydney Registry of this Court, four of which, numbers 2 to 5 inclusive, are relevant to what is before me, and I will quote them:

   2.  Each party is to file no more than one affidavit from each witness.

   3.  No affidavit is to exceed more than 10 pages of text.

   4.  All affidavits must be filed and served no later than 2 June 2015.

   5. The parties are to comply with rule 24.03 and 24.04 of the Federal Circuit Court Rules 2001 within 14 days.

   What, however, has transpired has been a series of actions which constitute, in my view, a blatant and cynical disregard for the Court’s directions for interim hearings.  The Court makes directions for a reason.  I have had the opportunity to comment on this very subject in a decision late last year called Vedder & Colliss[1]. 

   It appears not to have reached the attention of a number of practitioners, because I spoke then on people’s disregard to the Court’s directions, and I think, from memory, I even referred back to the words of the Full Court of the Family Court in the matter of Jaeger & Jaeger[2] as long ago as 1994.  I should make it clear that an affidavit that is not to exceed 10 pages of text, excluding annexures, does not constitute an affidavit of 11 pages of text.  I am not concerned about the jurat which, in each of the parties’ affidavits, appears on page 12.

   The time limit for filing and serving affidavits, that being 2 June, has been disregarded.  The Respondent got two affidavits in on 2 June.  The Applicant’s affidavit appears to have been filed the next morning.  I do not know when it was served.  What has happened this morning is that, at 9.42 am, an updated Financial Statement was filed on behalf of the Respondent, and at 9.46am an Amended Response was filed which significantly changes the Respondent’s case.  Filing a further Financial Statement at a point 18 minutes before the scheduled time for the hearing to start cannot in any way comply with order 5, which required compliance with Rules 24.03 and 24.04 within 14 days from 29 April.

   Whilst I did not specifically make an order restraining parties from filing an Amended Response to an Application in a Case, drastically altering that party’s case some 14 minutes before the scheduled time of commencement, and serving the document shortly thereafter, it would, I thought, have been apparent to anyone who has practised law in this country, certainly for at least the last five or six months, that this was totally unacceptable, and it is. 

   I go back to saying the Court makes directions for a reason, and if practitioners blatantly thumb their nose at the Court and file documents whenever they like, it will delay, slow down and hinder the Court dealing with its very heavy workload.  The Court is not assisted by the fact that there have been, and are in the process of being, a number of retirements, placing a great workload on the Court.  Procedural fairness requires documents to be filed and served a reasonable time beforehand.  Hence, the reasons for the direction.

   Dropping material into people’s lap on the morning of the hearing is quite inappropriate and quite wrong.  I will make this clear.  I will hear the application about parenting because the affidavit material, albeit on the Applicant’s part a day out of time, but the affidavit material from the respondent is within time, and there should be no surprise about the evidence to be relied on as far as parenting orders are concerned. 

   The fact that the consequential orders sought by the Respondent have been drastically changed at the last moment is a matter that can be dealt with by experienced Counsel and an experienced solicitor, who, of course, as Ms Gillies of Counsel put, the Court is not constrained by parenting orders sought by either party.  The Court’s discretion to make orders in the best interest of a child is at large, subject, of course, to the requirements of procedural fairness. 

   I have heard what is probably one of the best examples of making, or attempting to make, a silk purse out of the sow’s ear of failure to comply with directions, that I have heard for a while, but then I have heard a number of such submissions in my time, and they have not become any more persuasive than they used to be.  The Financial Statement is out of time.  If it is going to be relied on, my view is that the financial proceedings will go over.  I will hear submissions on parenting, and I will make orders.  I note that there are some documents that are sought to be tendered.  I will allow a little bit of time for people to do that.  I will then hear counsel giving me submissions on parenting orders, and I will consider those. 

   [1] [2014] FCCA 2682

   [2] (1994) 18 Fam LR 126; FLC 92-492

4. That is what I said on the day of the hearing, and I do not resile from any of it.  Indeed, noting as I do that the parties’ primary affidavits exceed the length specified by the Court, I have considered the explanation that I get from time to time, that there is so much material that it is not possible to keep the affidavit down to the time required by the Court.  I do not accept that explanation at all.  One only has to read the contents of the affidavits to see that they are full of excess material which is irrelevant or otherwise inadmissible.  If such material were excised from the affidavits, they would not exceed the 10 pages of text.

5. There are, indeed, examples here of practices that are to be deprecated, including musings by the parties about the mental state or the motivation of the other party, which appears to be a common practice these days, or statements which are more in the nature of a submission than an affidavit, which is meant to be a recital of facts to be relied upon.  Looking at the affidavit of the father, there are found such clearly inadmissible pieces of material, which are more in the nature of a submission, such as:

   Ms Atkins’ move was clearly planned in advance.  Amongst other things, she had removalists conduct the move.

6. Further, at paragraph 19, the father said:

   I was extremely concerned about the impact on X of this sudden relocation prior to any arrangements being made for X. 

   I might comment that it is reasonably common these days for parties to indicate concern, shock, horror, distress, or other emotions which are really very difficult to test by way of cross-examination.  Further, at paragraph 21, there appears to be a paragraph which can only be regarded as a submission or a commentary on the state of affairs, and I quote it in full:

   Ms Atkins’ dictated proposal provided for X to spend a total of approximately 10 hours with me per week, and most of it was to do drop-offs and pick-ups as her transport officer, not for X to spend quality time with me at all.  Her model is entirely for her convenience, not for X and I to bond/maintain our close relationship, and was put, in my opinion, with little regard to his best interests. 

7. Now, it may be argued, under the provisions of section 69ZT of the Family Law Act, that such material is permissible in affidavits relating to parenting proceedings. Unfortunately, it seems that some practitioners do not read section 69ZT with the attention that is required. True it is, in my copy of the Australian Family Law Act, section 69 comes with the heading Rules and Evidence Not to Apply Unless Court Decides. That does not mean that the rules of evidence do not apply at all, or that the operation of the Evidence Act is entirely removed.  One does not read a newspaper only by looking at the headlines in order to understand the subject of the news reports. 

8. Sub-section (1) of section 69ZT says:

   These provisions of the Evidence Act 1995 do not apply to child-related proceedings:

   (a)  divisions 3, 4 and 5 of part 2.1 (which deal with general rules about giving evidence, examination-in-chief, re-examination, and cross-examination) other than sections 26, 30, 36 and 41. 

   (b) parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);

   (c) parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).

9. Now, it may be thought that subsection (1) provides a virtual open slather, but that is a misconception. It is significant that sections 55 and 56 of the Evidence Act are specifically not included, which relate to relevance and admissibility. Section 131, of course, relating to contents of settlement negotiations, is excluded, but even if one were to allow evidence of opinion, one needs to read subsection (2) of section 69ZT, which says:

   The Court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).

10. I think that is fairly clear, that subsection (2) allows the Court to give such weight, if any, as the Court thinks fit in respect of paragraphs to which I have referred, which contain nothing more than submissions by the Applicant.  The fact is that statements like that are useless and will be given no weight whatsoever.  This is why, in my view, if affidavits were drafted with greater precision, there would not be this plethora of paperwork and the need felt by parties to disregard the Court’s directions relating to the preparation of material. 

Parenting Issues

1. What, then, are the issues that concern the parties in respect of parenting matters?  They are these:  (1) the amount of time that the father spends with the child;  (2) whether or not the father’s time with the child should be supervised;  (3) whether the mother should be permitted to relocate from her current residential in the (omitted) area of Sydney to (omitted), which is in the local government area of the (omitted);  and (4) whether the mother should be permitted to take the child out of Australia for holidays in her country of origin, which is (country omitted). 

2. The father complains that the mother has been miserly in allowing the father time to be spent with the parties’ child, X, who was born on (omitted) 2012.  His Counsel, Mr Levy, put that the only time that the father would be able to have with the child would be that prescribed by the Court because the mother’s actions were such that she would not allow a moment more.  The mother has sought orders that the father’s time should be supervised because of what she considers to be a risk of harm, relying on comments reportedly made by the child indicating that the father had at times struck him.  Her view is that that justifies supervised time between the father and the child.

3. The father is concerned that the mother is planning to move to the (omitted) area because it is less expensive there than in the (omitted) of Sydney, and he is concerned that this would involve relocating the child’s home away from Sydney.  He has made arrangements, including arrangements to take every Friday off work so that he can spend time with his young son.  He seeks overnight time.  He does not want supervised time and does not believe that that is necessary.  The father has a concern that the mother, who was born in (country omitted) and whose family members reside there, may well leave Australia with the child and not return. 

4. Those, then, are the issues.  I have considered the proposals of the parties as set out in their Application, the Amended Response and the case outlines provided by their respective Counsel.  I am mindful of the fact that this child is still only young, and I am of the view that the time proposed by the father is significantly greater than I would consider appropriate at this stage, noting that the mother has been the child’s primary caregiver, although the father claims in his material that he has spent considerably more time with the care of the child than the mother has given him credit for, and he sets out examples of it. 

5. Certainly, it should be the case that the father’s time with the child should be frequent and should be consistent, and it does seem to me that it can be of greater length than is currently the case and than the mother is proposing.  In that regard, I have considered the Child Dispute Conference Memorandum to the Court from the Family Consultant from 23 April 2015, where it was regrettably noted that no agreements had been reached between the parties. 

6. The Family Consultant noted the issues for the child as (1) the child’s age and stage of development;  (2) the nature of the child’s relationship with each of the parents;  (3) the parenting capacity of each of the parents, their strengths and weaknesses;  (4) the possible impact on the child of the problematic nature of the parental relationship, including in the event that he witnessed family violence;  (5) whether X told the mother that his father hit him, whether the father did, in fact, hit him and, if the father did hit X, the context of his having done so and the intensity with which he did so;  (6) what the alleged conversation between X and his mother, if it occurred, might signify if the father did not, in fact, behave in the ways that have been alleged.  Those are the issues identified by the family consultant.

7. It does seem to me that, as the father has taken steps to have Fridays off from his work, this is an ideal time for him to spend time with his son.  It also seems to me that his father should have Sundays with his son as he is available to do so.  I am not of the view at this stage that, noting the child’s relatively young age, overnight time should commence at this stage, but as this little boy gets older, then that certainly should be the case.  There is a need for graduated time with the child. 

8. I turn to the vexed question of whether there is a risk of harm to the child in the care of his father that requires supervision of the child’s time with the father.  In my view, the evidence of the risk of harm in the mother’s affidavit is flimsy and insufficient to warrant an order requiring supervision of the child’s time with the father. 

9. I look, too, at the question of relocation.  The relocation proposed by the mother is not particularly far.  She is not proposing to move to another state, for example, or even to the further reaches of this particular state.  She is planning to move out of the (omitted) of Sydney, but that is not a particularly drastic step, and even with her preferred venue of (omitted), that is not a great distance from Sydney.  The Court can take notice, as a matter of general knowledge, that people regularly commute to and from Sydney from the (omitted) by train or by car.  It is not a great distance. 

1. Clearly, the father does not want the mother to take X away and suggests that if the mother does go, X should remain.  I am not satisfied that that is a workable solution.  The mother’s current lease runs out at about the end of July, and it would seem to me that once the parenting orders that I propose to make are in force, whilst the mother should remain in Sydney until the end of July, as from the beginning of August, a move to (omitted) or somewhere in that area, which, on her evidence, would be significantly less expensive for her, is not something that the Court should regard with disfavour.  As I said, it is not a great distance away for the child to be living in what is, effectively, a suburb of (omitted).

2. Should the mother be restrained from taking the child overseas or interstate for the purpose of a holiday?  I see that there is no reason to place a restraint on parties taking the child to another state of Australia.  They will remain in the jurisdiction of the Court.  I do not see why there should be a restriction placed on that.  I do, however, have a concern about the mother at this stage taking the child out of Australia.  I consider that on an interim basis, the mother should not be permitted to do so.  There was an application made for the mother to actually surrender the child’s passport to the Court Registry.  I am not persuaded that that is necessary.  I am not persuaded that there is an imminent threat of the mother leaving the country with the child.  In my view, surrendering a passport to the Court is a serious step and unless there is evidence to justify it, it should not be done. 

3. I do consider, however, that the child’s name and particulars should be placed on the Family Law Watchlist maintained by the Australian Federal Police and that should be for a limited period of time.  Watchlist orders can be overlooked or forgotten about and if they remain in force for years can come back and cause great difficulty for the parties or for the children many years in the future.  My view is that watchlist orders should only remain in force for a period of two years unless there is some reason to extend them and, indeed, there may well be reason for those orders to be revoked prior to that time.

4. I am of a view that parties should be restrained from using physical chastisement, corporal punishment on the child and they should be restrained from abusing or denigrating or criticising each other and I propose to make these orders.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  24 June 2015