Trejo and Avalos
[2011] FMCAfam 1348
•8 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TREJO & AVALOS | [2011] FMCAfam 1348 |
| FAMILY LAW – Interim parenting application – issues and allegations of family violence. |
| Family Law Act 1975, ss.4, 13C, 60B, 60CA, 60CG, 60K, 61DA, 65DAA, 65F, 69ZT, 69ZX, 69ZN, 90RD Evidence Act 1995, ss.55, 76, 79, 144, Part 3.1 Federal Magistrates Court Rules 2001, Regulations 15.06A, 15.07 Family Law Rules 2004, Regulation 15.41, Part 15.5 |
| Symes & Glover [2011] FMCAfam 735 Makita & Sprowls [2001] NSWCA 305 Goode & Goode(2006) FLC 93 - 286 Cowling & Cowling [1998] FamCA 19 Mabo v Queensland [1992] HCA 23 Minister of Ethnic Affairs v Teoh [1995] HCA20 B & B & Minister for Immigration & Multicultural and Indigenous Affairs [2003] FamCA 621 AMS & AIF (1999) 199 CLR 160 U & U (2002) 211 CLR 238 Pitken & Hendry [2008] FamCA 186 Johnson & Page [2007] FamCA 1235 Jones & Dunkel (1959) 101 CLR 293 |
| Applicant: | MR TREJO |
| Respondent: | MS AVALOS |
| File Number: | PAC 3535 of 2011 |
| Judgment of: | Harman FM |
| Hearing date: | 22 November 2011 |
| Date of Last Submission: | 22 November 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 8 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stenhouse |
| Solicitors for the Applicant: | John Hall Lawyers |
| Counsel for the Respondent: | Mr Greenaway |
| Solicitors for the Respondent: | A R Walmsley & Co |
ORDERS
All prior parenting orders with respect to [X] born [in] 2006 are discharged.
Subject only to order two hereof that the parents Mr Trejo (the applicant) and Ms Avalos (the respondent) of [X] shall have equal shared parental responsibility for him.
Notwithstanding the above [X] shall, commencing Term One 2012, be enrolled at and attend such school as may be selected and nominated by Ms Avalos and provided further:
(a)
At the time that [X] is enrolled at the school selected by
Ms Avalos the details and contact details of both parents shall be included as both parents as emergency contact persons;
(b)Ms Avalos shall be at liberty to provide to the school selected by her a copy of these orders and the school is requested to ensure that any file or record for [X] clearly notes these orders as well as a request that the address and contact details of Ms Avalos not be disclosed to Mr Trejo save with Ms Avalos’ fully informed consent in writing.
PENDING FURTHER ORDER
[X] shall live with his mother.
[X] shall spend time with his father as follows:
(a)Until the conclusion of Term 4 2011 from 9am until 4pm each alternate Saturday commencing 10 December, 2011 and from 9am until 4pm each alternate Sunday commencing 11 December 2011
(b)From the conclusion of Term 4 2011 and until the commencement of Term 1 2012;
(i)Each weekend (save the weekend of 24 – 25 December 2011) from 9am Saturday until 11am Sunday;
(ii)From 3pm 25 December 2011 and until 6.30pm 26 December 2011.
(c)From Term 1 2012 and until Term 2 2012:
(i)Each alternate weekend from the conclusion of school Friday until 6pm Sunday first period to occur the first weekend following [X]’s commencement of school.
(ii)Each intervening Friday from the conclusion of school until 7pm.
(d)From the commencement of Term 2 2012 and continuing pending further order:
(i)Each alternate weekend from the conclusion of school (or 3pm) Friday until the commencement of school (9am) the following Monday first such period to commence the first weekend of Term 2 2012 and to continue throughout school holiday without interruption and in the same pattern;
(ii)From the conclusion of school Friday until 7pm Friday in each intervening week (being the week when [X] is spending time with his Mother).
For the purpose of [X] passing into his father’s care that Mr Trejo shall collect [X] from [X]’s school if a school attendance day and commencing at the conclusion of school and, in all other circumstances, from [R] Police Station.
For the purpose of [X] passing into his Mother’s care Ms Avalos shall collect [X] from his school (if Mr Trejo’s time has concluded with a delivery to school) or otherwise from [R] Police Station.
Pursuant to s.13C of the Family Law Act 1975 each of the parties shall forthwith and within 7 days contact CentaCare on 1800 55 46 46 and for the purpose of arranging and attending the first available appointment with that agency for intake, assessment as to suitability to participate in the Keeping Kids in Mind program and to thereafter attend on such dates, times and places and to follow all reasonable directions and instructions of that agency to enable them to participate in and complete the Keeping Kids in Mind program.
Each parent shall be entitled to telephone and communicate with [X] between 6pm and 6.30pm on Tuesday, Thursday and Saturday (whilst [X] is in the care of the other parent) and with respect to same:
(a)Each parent shall ensure that they have provided to the other parent a contact number upon which [X] can be telephoned whilst in their care;
(b)Each parent shall provide to [X] such assistance as he may require in accepting calls or operating the telephone but shall otherwise ensure that [X] is allowed and able to speak with the other parent with privacy and without interruption or distraction.
Each parent shall advise the other immediately of any significant illness or hospitalisation relating to [X] such notice to be given contemporaneous with the event and to include sufficient information and authority to enable both parents to be fully consulted, advised and involved in any treatment decisions and to visit and stay with [X] if hospitalised.
Each parent will authorise and do all things, sign all documents and give all consents necessary to enable any relevant health or educational professional and any school attended by [X] to provide to each parent copies of reports and any other reports, information or documentation relevant to [X]’s health and education.
This matter is adjourned for further mention, case management and if necessary the ordering of preparation of a family report and/or trial directions before Federal Magistrate Henderson at 9.30am on 3 February 2012.
IT IS NOTED that publication of this judgment under the pseudonym Trejo & Avalos is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3535 of 2011
| MR TREJO |
Applicant
And
| MS AVALOS |
Respondent
REASONS FOR JUDGMENT
These proceedings involve competing applications for parenting orders on an interim basis.
The applicant in the proceedings is Mr Trejo who is the father of the child the subject of the proceedings, namely [X] born [in] 2006.
The respondent to the proceedings is [X]’s mother, Ms Avalos.
Material Read
I will, in these reasons, have cause to comment upon the material filed and relied upon by the parties. However at this time I wish to delineate the material that I have been invited to read and have in fact read and considered.
In the case of the applicant father, Mr Trejo I have been asked to read portions of a substantial affidavit filed by him on 3 November 2011. At the outset it was indicated that the affidavit of some 181 paragraphs was not read in its entirety but only portions of the affidavit as best outlined in a case outline document. Ultimately I have read the paragraphs identified in the case outline document and a number of others and comprising the following paragraphs:
a)25 – 33 inclusive
b)46, 47
c)51, 54, 55 and 67
d)84 – 86 inclusive
e)93
f)101 – 105 inclusive
In addition to the above material I have also considered a specific email entry contained within a volume of emails annexed to an earlier affidavit filed by Mr Trejo on 31 August 2011 and comprising an email purporting to have been sent by him to Ms Avalos on 28 April 2011.
In addition to the affidavit material referred to above I have also received into evidence without objection five exhibits in Mr Trejo’s case being:
a)F1 – 9 photographs of Mr Trejo’s present accommodation.
b)F2 – Certificate of Attendance by Mr Trejo at a New Families Program conducted by Unifam.
c)F3 – material from a psychologist Mr P.
d)F4 – material produced on subpoena by Dr S.
e)F5 – a letter of instruction from Mr Trejo’s lawyers to a consultant psychiatrist who has prepared a report following consultation with Mr Trejo.
In Ms Avalos’ case I have read each of the documents requested of me and comprising:
a)Affidavit of Ms Avalos filed 30 August 2011. The majority of that affidavit related to financial issues between the parties and the balance, to the extent that it related to parenting arrangements, largely responded to material that had been raised by Mr Trejo in an earlier affidavit.
b)I have read specific paragraphs of an earlier Affidavit of Mr Trejo filed 2 August 2011 and comprising paragraphs 23 – 27 inclusive and 30.
c)A number of emails which have been treated as tendered and an exhibit in the proceedings and being further emails attached to the earlier affidavit of Mr Trejo sworn 31 August 2011.
d)In addition to the three tagged emails referred to above, being dated 28 April 2011, 6 May 2011 and 6 May 2011 and marked Exhibit M3. I have also received two exhibits being portions of the records of Mr P psychologist and Dr S respectively and marked as exhibits M1 and M2.
Also in the proceedings a Child Dispute Conference memo has been produced by an experienced Family Consultant, Ms C. That memo followed a Child Dispute Conference on 6 September 2011. The memo on its face suggests that the Family Consultant perceived that an interim agreement had been reached between the parents. The details of the alleged agreement are then set out in the memo.
It is clear that upon the matter coming back before the Court on 8 September 2011 that orders where, on that date, made by consent and pending this interim hearing. Those orders provided for a substantially different arrangement to that reported by Ms C.
I have not had any greater regard to the Child Dispute Conference memo than to acknowledge its existence as the memo, in light of the perceived agreement between the parties, does not make any other comment or recommendation regarding case management of the dispute or otherwise.
Orders Proposed by the Parties
A significant difficulty has arisen in this matter from the state of each party’s respective application and response. These matters where raised with Counsel for each of the applicant and respondent on a number of occasions during the proceedings.
Mr Trejo is the applicant and had commenced the proceedings by way of Initiating Application filed 4 August 2011 and returnable 31 August 2011.
Prior to the first return date and on 23 August 2011 Mr Trejo filed an Amended Initiating Application. The Amended Initiating Application joined, as an issue, a number of interim financial issues which have now been addressed on an earlier occasion by FM Henderson. The interim parenting relief sought (comprising some 17 paragraphs of proposed relief) was not varied between the two applications.
Ms Avalos has filed a Response in the proceedings same having been filed 31 August 2011 being the first return date of the proceedings.
It is instructive to consider the relief proposed by each of the parties in their respective applications and responses.
Mr Trejo for his part had proposed in his Application and as indicated above, some 17 paragraphs of relief. To the extent that such relief is relevant to the substantive issue of time arrangements for the child [X] orders are sought as follows:
“7. That pending further order the child [X] lives with the mother.
8. That the parties shall have equal shared parental responsibility for the child.
9. That the child shall spend time with the Father as follows:
a. until the child is at school:
from 12pm until 3pm each Saturday and Sunday;
ii: such further or alternate time as the parties may from time to time
agree in writing.
b. from when the child is in school:
each alternate weekend from 5pm Friday until 5pm Sunday;
ii. such further time as the parties may from time to time agree.”
Detailed the above relief both as represents the substance of time arrangements proposed by Mr Trejo and as the above paragraphs are the only portions of the relief sought by Mr Trejo which the orders proposed by Ms Avalos do not seek to dismiss.
The response filed by Ms Avalos under the heading “Parenting – Interim Orders” proposes as follows:
“1. Orders 2, 3, 4, 5, 6, 10, 11, 12, 13 and 14 of the interim application be dismissed.”
Ms Avalos’ Response is otherwise silent as to interim parenting orders.
Orders 7 – 9 (inclusive) are not sought to be dismissed. Similarly orders 1 and 15 – 17 inclusive are not sought to be dismissed although the latter paragraphs (1 and 15 – 17 inclusive) seek only procedural orders.
On any reading of the documents that have been filed by the parties it would appear clear that Ms Avalos has not sought to put into issue, oppose or dispute or seek dismissal of the orders proposed by Mr Trejo in paragraphs 7 – 9 of his application. But for raising with Counsel for each of the parties whether the relief proposed by them (being in the case of Mr Trejo the orders set out in paragraph 7 – 9 of his Application and in the case of Ms Avalos her apparent consent to those orders) the Court would have been entitled to assume that the relief sought by
Mr Trejo in relation to time and live with arrangements could be ordered by consent.
The above creates a number of conundrums of a practical nature not the least of which arises from the making of orders of FM Henderson on 8 September 2011. On that date her Honour made an order pending further order and with the consent of the parties:
a)“That the parties have joint parental responsibility for the child [X] born [in] 2006.
b)That [X] live with the mother.
c)That [X] spend time with the father each alternate weekend from 9am until 4pm each alternate Saturday commencing on 10 September 2011 and from 9am until 4pm each alternate Sunday commencing 18 September 2011.
d)That [X]’s time with the father be facilitated by the mother delivering the child to the father at the [R] Police Station at the commencement of time with the father and the father return the child to the mother at the [R] Police Station at the conclusion of time with the father.”
On 8 September 2011 further procedural orders where also made of some relevance to the balance of these reasons and including the following:
“ The matter is listed for Interim Hearing on 22 November 2011 at 10am.
The father is to file and serve the affidavit of any treating health professional on which he intends to rely by 4 November 2011.”
For reasons that will later become apparent the above directions have some significance.
Upon a reading of the application and response of each parent it is difficult to comprehend the judiciable issue before the Court 22 November 2011 as it would appear that:
a)Interim orders are already in force which provide for the present and until this child starts school (being one of the few agreed facts that [X] will commence school in 2012).
b)
The interim orders in place provide for [X] to spend a more extensive period of time with his father than is sought in
Mr Trejo’s application.
c)Ms Avalos would not on the face of her response oppose the continuation of the interim orders made by FM Henderson or, indeed, the commencement of alternate weekend time spent by [X] with his father from 5pm Friday until 5pm Sunday from the commencement of the 2012 school year.
At the outset of the case a case outline document was provided to me by Counsel for the father. This minute proposed relief substantially different contained within the Application and Amended Application and, indeed, proposed that alternate weekend time from 6.30pm Friday until 6.30pm Sunday commence forthwith together with further periods of time including a block period of time during the forthcoming Christmas school holidays.
I was advised for Counsel for the mother that her position was that time arrangements would remain as they are pending further order and pending the final determination of the proceedings (or preparation and release of a Family Report although at the completion of the report and absence consent of the parties it is difficult to envisage how interim orders would not otherwise continue, lest a change of circumstances could be demonstrated of a compelling nature until final hearing) or and only if the Court was satisfied that there was no risk established to the child from spending overnight time with his father that overnight time would then commence upon [X]’s commencing school and for one night only (i.e. Saturday to Sunday).
Clearly the relief that each party seeks from the Court at interim hearing is entirely different to that which is set out in their respective Application and Response. This gives rise to a number of matters in relation to due process and general issues of practice and procedure that have developed generally which shall be the subject of comment in these reasons.
Background and History
Due to the limited material that has been read in the father’s case and at the request of his Counsel there is no real material by Mr Trejo which addresses the essential history of the relationship between these parties.
The proceedings comprise both parenting and property adjustment applications. The property adjustment application or any aspect other than interim parenting do not fall to be determined by me today and will be returned to FM Henderson from whom this matter has been received by me and who remains the docketed FM for the case.
The property aspect of the proceedings in complicated by the parties being at odds and at issue not only as to when they “separated” (and I hesitate to use that term for reasons that will become apparent) but whether they have ever engaged and lived in a defacto relationship within the definition of the Family Law Act1975 as set out in s.4AA.
It is urged by Mr Trejo that the parties had lived together for a significant period of time commencing in September 2002 and separated only in April of 2011.
For her part Ms Avalos disputes the existence of a relationship as defined by s.4AA for the entirety of this period and asserts, instead, that the parties had been in a house share or boarder/landlord arrangement for a short period of time but otherwise have never lived together in a defacto relationship.
As indicated it does not fall with me to determine today the veracity or otherwise of each parties assertion. Indeed based on the evidence that is available and without it being tested it would be difficult if not impossible to envisage how that would occur and, it is likely the matter will require some days of final hearing to address all of the issues extant between them.
Both parties would appear to agree that the matter should proceed to final hearing with the threshold issue as to the existence of a relationship or not between them being determined as part of that hearing. There is some attraction to that proposal particularly as it is clear that evidence with respect to financial transactions may well be required and go to assist the Court in determining the threshold issue as well as determining any ultimate exercise in discretion in substantive proceedings. It is also clear that the parties will continue to litigate issues with respect to parenting although all hope need not be abandoned in that regard.
There would appear to be some difficulty with the above course, however, as the Court is devoid of jurisdiction to entertain property adjustment proceedings between these parties unless it can be established that a defacto relationship existed between them and came to an end by separation occurring on or after 1 March 2009.
On Ms Avalos’ version of events the parties have not resided with each other in a defacto relationship which would, accordingly, not be capable of supporting a finding of separation after 1 March 2009 and thus suggesting no jurisdiction in this Court to entertain any financial application.
It is not a matter, as indicated, that need be determined by me today, and will, indeed, return to FM Henderson for both case management and ultimate determination. However to the extent that my view may be of some assistance to the parties feel that the threshold issue can and must be separated and determined as a pre condition to any financial proceedings between the parties being fixed for hearing. This would be an efficient use of the parties’ resources as well as the Courts. In the event that Mr Trejo was not able to establish the existence of a defacto relationship of requisite duration as required by s.4AA and such as to ground a declaration as to the existence of the relationship under s.90RD then the Court’s jurisdiction to entertain an application under Division VIII AB is not enlivened and indeed the Court is devoid of all jurisdiction with respect to same.
Factually the parties do not agree on a great deal (as would be apparent in evidence outlined above). The evidence as interim proceedings is less than satisfactory and perhaps less so than what might ordinarily be desirable or expected. This arises through a variety of circumstances not the least of which is the manner in which each of the parties has chosen to conduct their case.
In Mr Trejo’s case I have been directed to specific paragraphs of a most lengthy affidavit. That affidavit as I have indicated comprises some 181 paragraphs together with voluminous annexures. Many of those annexures are not in proper form.
It was indicated at the outset that the practice of the applicant’s solicitors is to file an amended and consolidating affidavit on each occasion that further material is to be placed before the Court. On this basis some three affidavits have been filed to date by the Applicant. This would appear to be an entirely unnecessary and unwarranted process.
My brother FM Halligan has recently had cause in Symes & Glover [2011] FMCAfam 735 to comment upon the filing of unduly lengthy and prolix material. Certainly in the context of this case I am conscious that Counsel have sought to avoid similar criticism by limiting the paragraphs of the 181 paragraph affidavit that I am invited to read (and so is inviting me to ultimately read and consider some 24 paragraphs of the document). That has resulted in Mr Trejo’s evidence being somewhat fragmented, at times difficult to follow and in any event begs the question as to what the remaining 157 paragraphs intended to achieve.
The affidavit material filed by Ms Avalos is plagued by similar difficulties not the least of which is that:
a)The majority of the material in the affidavit that I was invited to read and which was relied upon by Ms Avalos contains extraneous material not relevant in any fashion to the interim parenting dispute that falls to be determined by me. Indeed the majority of that affidavit (certainly commencing at paragraph 47 if not earlier) deals with financial issues.
b)The affidavit is drafted in the nature of a pleading and so that rather than providing a narrative of Ms Avalos’ case and evidence relied upon therein it purports to address and answer specific paragraphs of Mr Trejo’s earlier affidavit which is no longer relied upon.
There are also a number of significant difficulties with respect to form arising from each of the affidavits by Mr Trejo and Ms Avalos which I have been asked to read. Specific objections are not taken by Counsel to those matters notwithstanding the provisions of the Evidence Act 1995 which would permit such objections on grounds of relevance, opinion and hearsay.
Division 12A of Part VII and in particular s.69ZT provides that certain aspects of the Evidence Act 1995 do not apply to child related proceedings. Those aspects of the Evidence Act 1995 that do not apply, subject to the reservations contained within s.69ZT (3) and (4), relate only to rules regarding the giving of evidence, examination in chief, re examination and cross examination together with some documents and matters relating to hearsay, opinion and the like being those aspects of the Evidence Act 1995 set out in Divisions III, IV, V together with parts 2.1, 2.2, 2.3, 3.2 to 3.8.
Division 12A would appear to have developed in practice, to have encouraged unnecessarily and falsely so, and abandonment by practitioners of due consideration of the rules of evidence. Such abandonment is misplaced.
Section 69ZT(2) provides that such “evidence” (that term being used loosely as the material admitted in that circumstance is admitted notwithstanding that it would otherwise constitute evidence) is admitted subject to weight. Section 69ZT(2) provides:
“The Court may give such weight (if any) as it thinks fit as to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection 1”.
Importantly the issue of weight is addressed on the basis of “the Court [giving] such weight (if any)…” (Emphasis added).
Material that is otherwise contrary to the Evidence Act 1995 and but for s.69ZT(1) be excluded cannot attract probative value purely through its admission in those circumstances.
Sub-s.3 of s.69ZT allows the Court to decide to apply one or more of the otherwise excluded provisions if:
a. “the Court is satisfied that the circumstances are exceptional; and
b. the Court has taken into account (in addition to any other matters the Court thinks is relevant):
i.the importance of the evidence in the proceedings; and
ii.the nature of the subject matter in the proceedings; and
iii.the probative value of the evidence; and
iv.the powers of the Court (if any) to adjourn the hearing to make another order or to give direction in relation to the evidence”.
Section 69ZT(4) then provides a similar statement as sub-s.(2) regarding the weight to be attached to evidence which is admitted as a consequence of a decision being made to apply a provision of a division or part of the Evidence Act 1995 otherwise stated to not apply by sub-s.(1). In contradistinction to the natural consequence of
sub-s.(4) would appear to be that weight would, almost of necessity if not of necessity, be more readily and amply attached to evidence admitted after an examination of the proposed evidence by reference to relevant provisions of the Evidence Act 1995.
It is otherwise important to note at this point and which I shall discuss in more detail shortly, that Division 12A does not in any fashion exclude all provisions of the Evidence Act 1995. Importantly Part 3.1 of the Evidence Act 1995 dealing with relevance remains in force and extant in all proceedings before the Court of principle importance in this regard under s.55 which provides that:
“The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in any issue in the proceedings.”
Accordingly all evidence to be admitted, must be relevant and relevant to an issue to be determined in the proceedings this is made clear by section 56(2) of the Act which provides “evidence that is not relevant in the proceedings is not admissible”.
Agreed Facts
Whilst the parties are at odds with respect to a number of matters there are aspects of the evidence that are agreed or not contested. As I have indicated Mr Trejo has sought to ready only limited portions of his material and accordingly has not placed material before the Court regarding the past history of his relationship with Ms Avalos. One would ordinarily, in that circumstance, be entitled to accept without challenge the evidence led by Ms Avalos in this regard. However, for present purposes I am not satisfied that this should apply particularly as the prejudice that would flow to Mr Trejo if findings were made by me on a unchallenged basis regarding those issues would be profound. Further I am satisfied that Mr Trejo has not placed his version of events regarding the relationship between the parties and its past history squarely before the Court in an attempt by him to ensure that the matter can be heard and determined on an interim basis (clearly if the entirety of his affidavit were read the matter could not be contained within a reasonable timeframe and would not proceed).
There is no dispute, however, as to the following:
a)Mr Trejo was born [in] 1976 and is, accordingly, now aged 35 years.
b)Ms Avalos was born [in] 1976 and is, accordingly, now aged 35 years.
c)A significant change in the relationship (however it may be typified) between the parties occurred in or about April of 2011. I need not determine for present purposes whether the parties cease to cohabit on a full time basis at that time or at any time. It is sufficient to note that the parties have agreed that from March/April 2011 their relationship with each other as parents became strained.
d)
There is no dispute in the proceedings that [X] will, on an interim basis, live primarily with his mother. It is not proposed by
Mr Trejo, in the interim relief sought by him, that [X] would spend more than alternate weekend time (and possibly brief periods of non overnight time in off weeks) in his care.
e)There is significant controversy between the parties as to the nature of “volatility and violence” in their relationship. This controversy extends to the cause and nature of same, whether it was mutual and/or whether physical violence has ever occurred.
f)There is no issue between the parties that there has ever been cause for the police to intervene nor any apprehended domestic violence proceedings between these parties in a State Court. However, that is not to suggest that Ms Avalos does not raise significant issues with respect to violence or that Mr Trejo concedes matters and behaviours by him which would clearly fall within the statutory definition of family violence within s.4 of the Family Law Act.
Mr Trejo concedes a number of matters in his affidavit material and a careful and helpful examination of that material was undertaken by Counsel for Ms Avalos during closing submissions.
Portions of Mr Trejo’s earlier affidavit filed 4 August 2011 were relied upon by Ms Avalos although not read in his case by Mr Trejo. This included a paragraph (paragraph 27) as follows:
“I accept that the relationship is over. I accept that my part in the relationship ending as it did and my subsequent conduct immediately after separation does not reflect well on me. In particular I acknowledge that:
I lied to [Ms Avalos] about losing my job in order to manipulate her feelings.
I said I didn’t want to see my son again.
I obsessively emailed [Ms Avalos] trying to satisfy my own needs for contact with her as opposed to listening and respecting [Ms Avalos]’s needs.
I threatened [Ms Avalos] with suicide.
I acknowledged immediately after separation my focus was not (sic) on my sons needs but rather my own.
I am deeply ashamed of my actions, acknowledge responsibility for them and am confident with counselling and the appropriate medication, if indicated, I will be in a position to be a much better and consistent father to [X] and capable of treating my ex partner [Ms Avalos] with respect to a child focused parenting arrangement.
At not time have [Ms Avalos] and I ever physically hurt [X]. I acknowledge that [X] was often able to hear the arguments that [Ms Avalos] and I had and this is very unhealthy for my child. I agree that it is far better for him that he does not witness this and indeed that it never happens.”
The version of violence and similar behaviour given by Ms Avalos both increases the duration of the period during which such behaviours are alleged to have occurred and the nature and severity of matters complained of. Ms Avalos refers in her affidavit material to matters such as:
“17. …there was an argument about where I put the towels. [Mr Trejo] got physically angry. ….[Mr Trejo] always insisted that I go with [X] when he spends time with him, he was always overbearing about this and always made me feel guilty as a mother if I said I did not want to go”.
“25. …during the time that I have known Mr Trejo he has criticised me for everything I do or say including my weight. His actions have almost destroyed my belief in my own self. He has always been overbearing and physically abusive and threatening.”
“27. …I deny that volatility and violence in our relationship was mutual as alleged [by Mr Trejo]. On the contrary he suffers from significant mood swings. His mother is well aware of this and has apologised to me for it. I suggested he see a doctor and he said “there is nothing wrong with me. If you weren’t such a stupid bitch we wouldn’t have a problem. Everything is your fault.” His behaviour towards me was threatening and hostile. He said consistently “do as you’re told” and “if you just did as you were told you wouldn’t get hurt.” On many occasions Mr Trejo has put his hands around my throat, pushed me to the floor, punched my arms and chest, has gripped my arms, whacked his knuckles against my head and shoved his fingers down my throat to prevent me from making any noise. I could tell when he was going to do these things as he would shut windows and pull down blinds before he started. I then got into a corner curled up and protected my face as well as I could. I would not move for a considerable time after he finished. I do not know exactly what [X] saw of this behaviour. On one occasion I went to the hairdresser [X] said to her “my dad is a very mean man and he pushed my mum into a wall.” I went to call the police on a number of occasions and he said to me “if charges are laid against me I will lose my [occupation omitted] and it will all be your fault”. I knew what he did to me about silly things and I was not about to find out what he would do if I went to the police”.
“29. By April 2011 I can no longer put up with the behaviour of Mr Trejo and felt continually threatened”.
“32. …[X] has often witnessed Mr Trejo inflicting violence upon me, he has seen him push me into a wall causing it to cave inwards, he has seen Mr Trejo backing into a corner with his fists raised at me, he has heard Mr Trejo yelling and screaming at me on many occasions. I have had to take [X] to counselling to help him try and get over Mr Trejo’s conduct in the past”.
Since orders where made on 8 September 2011 there is no complaint that time has not occurred between [X] and his father in accordance with those orders (being for a period of seven hours each weekend). There is a paucity of evidence before the Court regarding the operation (successfully or otherwise) of those periods of time for [X]’s benefit.
It is submitted in Mr Trejo’s case that the time periods are progressing well, that [X] is enjoying the periods of time with his father and that no complaint, concern or criticism is raised by Ms Avalos and that this should be accepted by the Court as providing some comfort and confidence that time arrangements are progressing well and that a relationship is developing between this boy and his father.
Ms Avalos for her part continues to assert that there is a risk of harm to [X] in his father’s care which one can discern as arising from the matters set out above and in particular the concerns raised by
Ms Avalos and conceded (as will become apparent) by Mr Trejo in mood swings and anger management issues.
In his affidavit material Mr Trejo has made, consistently, a number of frank admissions and it is submitted in his case that these should be taken as demonstrating significant insight and contrition on the part of Mr Trejo.
Mr Trejo’s evidence commencing at paragraph 25 of his affidavit is as follows:
“25. For some time [Ms Avalos] and I had been having problems in our relationship. The relationship was mutually destructive and characterised by volatility and violence that was mutual. I pushed [Ms Avalos] and she hit and pushed me [I hasten to make clear that such mutuality is expressly denied in the passages quoted above from Ms Avalos’ material].
26. I acknowledge that I have mood swings, suffer depression and am prone to anger rages. I acknowledge I have an anger management issue and I have sough help with it. I have also gone to my GP to enquire about referral for psychiatric help and psychological counselling specifically as it relates to anger management.”
A significant issue has arisen in the proceedings and was the subject of lengthy and skilful submissions by Counsel for both parties regarding the actions taken by Mr Trejo since separation to address (in Mr Trejo’s case) or to create the impression of addressing without accepting the need to or having any insight into same in Ms Avalos’ case.
Counsel for Ms Avalos drew the Courts attention to the two previous affidavits that had been sworn and filed by Mr Trejo. Mr Trejo’s first affidavit was sworn 2 August 2011 and in that affidavit, perhaps consistent with the practice of his attorney’s referred to above, he had made statements of similar if not identical fashion to those contained in his latter affidavit sworn 2 November 2011 some three months later.
The Court was also taken to a number of additional tenders made in
Ms Avalos’ case and one additional portion read in Mr Trejo’s case from an affidavit filed 31 August 2011. That affidavit was brief and only some four paragraphs. The affidavit annexed some 60 pages of emails between Mr Trejo and Ms Avalos.
It was submitted in Mr Trejo’s case that Mr Trejo has made a full and frank disclosure of those emails through their annexure to the affidavit. On face value this is so. However, from an examination of the four paragraphs of the affidavit through which the emails are annexed it becomes apparent that the sole issue addressed by the affidavit was to seek to establish that separation between these parties occurred on or about 20 April 2011. This is clear from paragraphs 2 and 3 of the affidavit which read as follows:
“2. Annexed and marked with the letter A is a bundle of emails exchanged between [Ms Avalos] and me dated 16 April to 16 May 2011 sent between us after our separation in or about 20 April 2011. The emails are highlighted where [Ms Avalos] makes admissions as to the nature of our relationship.
Annexed and marked with the letter B is a true copy of an email sent by [Ms Avalos] to my mother [name omitted] on 6 May 2011”.
To the extent that the emails represent a full and frank disclosure by
Mr Trejo of the content of same (which is conceded by him as being inappropriate) this is perhaps either coincidental, incidental or accidental.
The three emails which are tendered in Ms Avalos’ case provide as follows:
28 April 2011 at 9.54am
“I do have an anger problem and I am contacting those people today to get help. I am sorry that I scared you. I never should have ever hurt you in any way shape or form. It not right and eligale (sic) to do so. You should have called the police on me. I won’t blame you if you. You can now. I should never have blamed you for my problems [Ms Avalos]. I was wrong for what I did to you and you never deserved it. I was not good to you and I’m sorry. I have problems and I’m just asking for forgiveness from you? I do snap too quickly and I think it’s my temper again. I love you [Ms Avalos] and I never deserved to have a person in my life like you, you are the most beautiful person that I have ever met in my life (????) you gave me a son that’s the most beautiful thing I’ve ever seen (you’re a very good mum) and I never looked after you the way that I should have. I never gave you the respect that you deserve. I demanded everything and never gave back to you. I treated you badly and I never realised what I was doing, I’m sorry [Ms Avalos]”.
6 May 2011 at 9.53am
“That email that you called a fack suiced (sic) was not a fake [Ms Avalos], I did and still do want to kill myself, I just haven’t got up the guts to do it, you both wear (sic) my life and the drive that I had to get money and get a nice place with a nice car and try and do family things, I’m indebted for you both and it didn’t make you happy, I love you [Ms Avalos] and I don’t think that I can get over the fact that you left me, you the most special person in my life and I can’t see myself living without you and [X]. I am sorry.”
6 May 2011 at 5.12pm
“I have to reply one last time, I have not been driving up and down that fucking street, I have not been sitting outside their fucking home and I sure as fuck don’t give a rats ass to where you are living, I only went there once and dropped off some fucking eggs and that’s a one off, I had to ring up for the address cause I had no idea where the fuck she lived and I’ll never be back there ever again so don’t accuse me of stuff that I have not fucking done, don’t flatter yourself in thinking I would stalk you… do you under fucking stand that. I don’t want anything from you. I don’t want my stuff back so fuck you you’re holding me to ransom like you did with the house and the lease. I don’t want to see you or my son ever again. I have no son anymore, that’s what you fucking wanted and that’s what you’re getting from me…find him a new father that does not have the problems and let him raise him the way you want, send me the bill for child support or whatever you want through to my way, I have no money anyway…take it out of my doll (sic) payments, I’m not sitting up the fucking street looking for you…I’m about an hour away…I don’t care where you are living and I don’t want your fucking phone number to talk to you…why would you think that I care anymore, you destroyed me and my life with you and your bullshit…hope you’re fucking happy now as I sure as fuck am not”.
The one email that is read in Mr Trejo’s case and which is purported to give some context to the above three emails is an email of 28 April 2011 at 5.24pm which reads:
“ I’m going to go to the Lifeline in [location omitted] as the other place was too far away for the help I’m looking at they have an anger management program there for me. [Ms Avalos] I want to give you my car while you don’t have one so you can get around with [X]. I’ll keep paying it off and get another bike for a while what do you think?”
Counsel for Ms Avalos has suggested that rather than having been proactive in seeking assistance for his anger management issues (as was submitted by Mr Trejo’s Counsel) that Mr Trejo has engaged in a sceptical deceit of the Court and has sought to use attendance at a number of courses, programs and with practitioners to suggest action on his part but that such actions are, in fact disingenuous and arise purely as a consequence of Mr Trejo being advised and desiring to project a positive image to the Court.
In support of the above submissions it is suggested that material tendered from material produced on subpoena by Dr S is supportive of same. A note is tendered with respect to the first consultation recorded with Dr S 1 August 2011. It is germane to note that on 28 April 2011 Mr Trejo had indicated that he was intending to obtain assistance.
The entry 1 August 2011 reads as follows:
“been feeling down for four months. Started when separated from spouse. She was seeing someone else. Suicidal thoughts at time. Wanting to see 5 year old son. Has only seen him four times since. His solicitor was concerned about patient and advised him to seek help. Mood much better now. Not suicidal anymore. Advise to come back if wants? Counselling”.
The above portion of the record is suggested to indicate that the only basis upon which Mr Trejo sought assistance from Dr S was on the advice of his legal representatives. However, the record read as a whole would not appear to support such a limited submission. That is not a criticism of Counsel but a reflection of the entry.
It is unclear from the entry whether assistance is being sought from other agencies by Mr Trejo prior to his consultation with Dr S. However, it would appear clear from his evidence and including the email quoted above that other agencies had been contacted although the extent or reality of their involvement is not apparent.
It is otherwise suggested that Dr S was approached by Mr Trejo purely as his solicitor had advised him to do so. There is some force to that submission. However, the entry as it is recorded (it is important to note that has not been further tested at this time) indicates “his solicitor was concerned about patient and advised him to seek help” (emphasis added). Indeed the entry is recorded would suggest that the attorney for Mr Trejo has done nothing more than to discharge their obligations as a family advisor and through being aware of and making appropriate referrals to services that might be of assistance to Mr Trejo.
It would also suggest a sensible course of action by a professional in dealing with a client (patient) when concerns are held as to their functioning or coping.
Substantial criticism is otherwise raised of Mr Trejo as regards referrals to therapeutic services as:
a)Such referrals are not sought or requested (at least from Dr S) in April 2011 when separation was alleged to have occurred and when the above emails made clear that Mr Trejo has acknowledged the existence of difficulties) but rather some four months later and in August 2011. This is certainly clear as regards consultation with Dr S. However, it is less clear from the evidence what actions where taken between them in April and August 2011 if any and whilst this remains unclear there can be some force to the submission.
b)That Mr Trejo has sought specific referrals to particular counsellors and the psychologist Mr P.
c)That Mr Trejo has attended on 29 September 2011 and indicated to Dr S “needs referral letter to psychiatrist. Requested by Court”.
d)That consistent, clear, full and proper instructions and history have not been provided by Mr Trejo to Dr S or any other treating or consultant professional. I would propose to deal with these matters under the heading of Expert Evidence.
Expert Evidence
As set out at the outset of these reasons directions were made by FM Henderson on 8 September 2011 requiring the filing of an affidavit of any treating health professional. No such affidavit has been filed.
By reference to paragraphs 103 – 105 of Mr Trejo’s affidavit 2 November 2011 reports of each of Dr S, Mr P and a consultant psychiatrist Dr B are annexed. There would be a valid objection as to form regarding the manner in which it has been sought to introduce these reports (comprising respectively annexures J, K and M.) This objection is not taken although objection is clearly raised and is set out in the outline of argument filed on behalf of Ms Avalos that:
“it is submitted that the reports of Mr P and Dr B should not be read on the basis that they are prepared at the request of the solicitors for the father and that they are by nature “adversarial” continuing the reports”.
It is alternatively submitted that if they are accepted into evidence that the reports:
“…are so biased and unreliable that the conclusions reached should not be accepted by the Court. Submitted that on the face of the report the history provided by the father is not in accord with that which is deposed in his affidavits”.
I propose to consider hereunder the various legislative provisions which would deal with the proper introduction of expert evidence and the proper weight to be attached to it.
Evidence Act and Rules
Section 76 of the Evidence Act 1995 provides:
“Evidence of an opinion is not admissible to prove the existence for fact about the existence of which the opinion was expressed”.
Section 79 of the Evidence Act 1995 creates a specific exception and in the following terms.
“Specialised knowledge based on the persons training, study or experience the opinion rule does not apply to evidence of an opinion of that person who is wholly or substantially based on that knowledge”.
The Evidence Act 1995 by reference to the above two sections clearly would allow and permit the introduction of expert opinion notwithstanding the deficiency as to form which arise.
Regulation 15.06A of the Federal Magistrates Court Rules 2001 provides a definition of the term “expert” as:
“expert in relation to a question means a person (other than the family or child counsellor or welfare officer) who has specialised knowledge about matters relevant to the question based on that persons training, study or experience”.
Regulation 15.07 of the Federal Magistrates Court Rules 2001 otherwise provides some guidance as to the duty of an expert and form of evidence to be provided by them. No criticism is raised beyond the generalised criticism that the experts (comprising a treating GP in the form of Dr S, a treating psychologist in the form of Mr P and a consultant psychiatrist for the purpose of a medico legal report in the case of Dr B) have done other than to objectively and professionally stated their views.
Regulation 15.41 of the Family Law Rules 2004 specifically excludes treating medical practitioners (or other persons) who have provided treatment (which for present purposes would include the psychologist Mr P) from the application of Part 15.5 of the Family Law Rules 2004 which deal with expert evidence. Thus the provisions of both the Federal Magistrates Court Rules 2001 and Family Law Rules 2004 would suggest that expert evidence is intended to apply to that in the nature of medico legal reporting and thus Dr B only. Both Dr S and
Mr P are clearly “treaters” rather than consultants.
I am satisfied that each of the deponents of the three reports referred to above is sufficiently qualified by reference to the above provisions to be treated as an “expert” whether in the context of the generalised meaning of that term in accordance with the Evidence Act 1995 or the more specific medico legal basis, as regards Dr B as referred to in the Rules.
Division 12A
I have previously referred to and touched upon s.69ZT dealing with the non application of certain rules of evidence. Section 69ZT(1)(c) includes a provision that Part 3.3 of the Evidence Act 1995 (dealing with opinion) is one of those provisions of the Evidence Act which does not apply. Notwithstanding this, Division 12A, would not of itself overcome the defects as to form and intended method of introduction of the reports referred to nor garner great weight to be attached to that evidence were it found that any portion of Division 3.3 of the Evidence Act might operate to exclude some or all of that evidence.
I am satisfied that the evidence that is provided by each of the report writers is evidence of opinion based on specialised knowledge and as such would form an exception to the hearsay rule.
Division 12A contains, in s.69ZN five principles for the conduct of child related proceedings being:
“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 second principle is that the Court to actively direct and control the management of the conduct of the proceedings.
The third principle is that the proceedings are to be conducted in way that will safeguard a) the child concerned against family violence, child abuse and child neglect and b) the parties of the proceedings against family violence.
The fourth principle is that the proceedings are to as far as possible, be conducted in a way that will make co operative and child focused parenting by the parties.
The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form (emphasis added) as possible”.
I do not wish to join that group of judicial officers (should such a group exist) who see Division 12A as the cure to all evidential difficulties whether as to form or otherwise.
I am satisfied however, particularly as these are interim proceedings that the technicality and objection as to form in relation to the introduction of the medical reports should not stand to exclude them. I wish to make clear that this determination is made in the specific context of this case and is not and should not be seen as a precedent to allow attempts to be made improperly place material before the Court other than by reference to well established principles and practices, orders of the Court (having a specific order being made for the filing of an affidavit of the medical practitioner) and the rules of evidence.
Section 69ZX provides general duties and powers to the Court relating to evidence and to the extent that the deficiencies deform to which I have referred would otherwise operate to exclude the reports I am satisfied that I should, in this case, utilise the powers given and/or inferred in s.69ZX(1)(d) which provides:
“if the Court considers that expert evidence is required – give directions or make orders about i) the matters in relation to which an expert is to provide evidence and ii) the number of experts who may provide evidence in relation to a matter and iii) how an expert is to provide an experts evidence…”
and to use that power to omit, if necessary in combination with s.69ZT(1) the reports refer to. This must and will remain, however, subject to the weight to be attached to that evidence.
Issues Arising from Instruction of the Expert’s and History Given
Issue was raised by Counsel for Ms Avalos from the outset, as to the lack of disclosure regarding any letter of instruction provided to the authors of the three reports referred to above.
Each of the reports provided by Dr Band Dr S and by Mr P are addressed to Mr Trejo’s attorneys. This would, on its face suggest that the reports had been requested if not commissioned by those attorneys.
A call for production of the letters of instruction was made at an early stage and ultimately letters of instruction have been tendered through either material produced on subpoena or the direct production of such letters.
It is clear from any cursory viewing of letters of instruction that no history or background was given in same but simply questions posed and which had been answered by the reports.
What is otherwise clear and apparent and forcefully highlighted in submissions in Ms Avalos’ case is that the history given by Mr Trejo to each of the three treaters or consultants is markedly different to that given by him to the Court.
The portions of Mr Trejo’s affidavit which I have quoted above which Mr Trejo has made concessions as to particular actions (such as communicating threats of suicide, and the like) are matters which are simply not reported by Mr Trejo to any of the three report writers. In this regard one is drawn to the words of Justice Heydon in Makita & Sprowls [2001] NSWCA 305 in which his Honour said (at paragraph 59):
“if [the report writer] report were to be useful it was necessary for her to comply with the prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the experts conclusions”.
His Honour then went on to quote the decision of Lord Carmont in Davie v The Lord Provost, Magistrate and Councillors of the City of Edinborough 1953SC 34 as follows:
“The opinion expressed by an expert witness in any branch of technical science depends for its affects on, inter alia, disqualifications, skill and experience in that science. If it appears to be based on a sufficiency of research directed accurately and relevantly to a particular issue and to be so supported as to convince a Court of its fundamental soundness and applicability to the particular issue the Court is entitled, although not obliged, to accept it even if unsupported by any corroborative expert opinion.”
His Honour later returned and at paragraph 64 stated:
“The basil principle is that what an expert gives is an opinion based on facts. Because of that the expert must either prove by admissible means the facts on which the opinion is based or state explicitly the assumptions to fact to which the opinion is based. If other admissible evidence establishes that the matters are “sufficiently alike” the matters establish “to render the opinion of the expert of any value” even though they may not correspond “with complete precision” the opinion will be admissible and material…one of the reasons why the facts proved must correlate with some degree with those assumed is that the experts conclusion must have some rational relationship with the facts proved.”
His Honour then took an extensive and helpful review of relevant case law formulating the same principle i.e. that expert opinion must, of necessity, be based on fact or factual assumption and, accordingly, such facts as are known to and before the expert should and must also be known to and proved to the satisfaction of the Court.
Counsel for Ms Avalos has submitted with some force that little weight and little probative value would flow from any of the three reports particularly as Mr Trejo would appear, on the face of those reports and the history recited therein, to have been less than frank in conceding significant matters relating to his behaviour including the extensive emails, threats of suicide and his acknowledged engagement in angry outbursts and mood swings.
Whilst there is substantial force to those arguments there are portions of the expert opinion expressed which are less capable of acceptance within that general proposition and particularly, at this interim stage, the inability to test any opinions expressed and the qualified diagnosis offered by each of Dr B and Mr P as to the absence, at this time (emphasis added) of any diagnosable mental health condition.
As to the weight of opinions expressed generally I am satisfied that this must, of necessity, be eroded by the propensity of Mr Trejo, as it would appear from the evidence, to minimise the behaviours for which he has sought treatment. Whether this arises consciously or as a consequence of time having passed from April to August 2011 is unclear. However, this could have been cured through action as simple the relevant portions of Mr Trejo’s material being provided to the expert (or, indeed, Mr Trejo disclosing same). I am satisfied however that Mr Trejo has sought out assistances and supports and with respect to same:
a)He remains in contact with his treating GP.
b)
The consultant psychiatrist with whom he has consulted has opined (in his conclusions, paragraph 6, page 2 of his report)
“Mr Trejo does not appear to be suffering from a diagnosable psychiatric condition at the present time”.
c)
Mr Trejo has completed anger management counselling with
Mr P who has suggested that he sees no utility in further appointments and that in his view also, “Mr Trejo did not appear to be suffering any diagnosable mental disorder” (page 2) and that Mr Trejo “participated well” in the sessions. He undertook with Mr P including home based tasks (page 3).
d)As expressed by Dr B in the final conclusion of his report (page 3) “it would be helpful for Mr Trejo’s mental state if he were able to have more regular contact with his son in the future”.
That represents a convenient point at which one might observe and remark that the Court must be conscious to protect and observe the functioning and mental health of both parents so as to ensure that they are as available to their child or children as possible. It also presents a convenient point to turn to and begin an examination of the legislative pathway and the application and relevant legislative provisions to the facts of this case as they can be found. Before passing to do so, however, I note I have not, at this point, sought to make any findings of fact. This arises from both:
a)Difficulties as set out by the Full Court (paragraph 68) of Goode & Goode (2006) FLC 93 - 286as to the making of findings of fact at an interim level. I hasten to add, however, that the Full Court did not in that passage suggest that it is not open at all to a trial Court to make findings of fact at an interim level. Their Honours had, indeed, stated at that passage as follows:
“In our view some of the components of the Full Court in paragraph 18 (referring to previous case law as to interim parenting decisions) are still apposite. For example, the procedure for the making of 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 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”.
b)Thus it is clear that the Full Court has accepted that which applied under previous case law (such as Cowling & Cowling [1998] FamCA 19 specifically referred to above) that findings of fact, on an interim level, should be made with some caution and trepidation and should generally only where there is concession, corroboration or inescapable conclusion based on probative evidence before the Court. Certain portions of the evidence are led in the case to which I will turn in considering relevant legislative provisions, to enable findings of fact to be made and generally by concession. Secondly I have not sought to make findings of fact above as it will in all probability, be more convenient to address them by reference to specific provisions of the legislation to which I now turn.
The Legislative Pathway
As the Full Court has made clear in authorities commencing with Goode & Goode the Court is required in any determination of parenting proceedings, whether on an interim or on a final basis, to follow the specific legislative pathway set out in Part VII.
I am required to commence by considering the objects and principles of the legislation set out in section 60B which state as follows:
(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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
The objects provisions largely domestically enact portions of the International Convention on the Rights of the Child. The remainder provisions of the convention, although not domestically enacted, may still have some application in forming and guiding the application of the substantive provisions of the Family Law Act (see Mabo v Queensland [1992] HCA 23, Minister of Ethnic Affairs v Teoh [1995] HCA 20 and B & B and Minister for Immigration & Multicultural and Indigenous Affairs [2003] FamCA 621).
In any event the objects provide an interpretive tool rather than a substantive provision to be applied to the facts and circumstances of the case. The objects and principles largely reflect and are stated by reference to the children’s rights and best interests.
I am required to turn to s.60CA which reminds the Court that the children’s best interests remain the paramount consideration at all times. That is not to suggest, as it was acknowledged by Kirby J in AMS & AIF (1999) 199 CLR, that other matters including the legitimate interest of parents are not relevant but that they must be subservient to the children’s best interests whenever in conflict. That distinction is in itself, somewhat artificial as it is difficult to envisage circumstances in which a child’s best interests, at least in their practical application, would not be interwoven with the interests of parents at least as regards their involvement in implementing, supporting and encouraging the operation of orders.
I am then required to consider whether the presumption of equal shared parental responsibility as set out in s.61DA applies, and if it does apply, whether it is rebutted.
Section 61DA is in the following terms:
“(1) When making a parenting order in relation to a child, 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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) 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:
(a) 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
(b) family violence.
(3) 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.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
As the High Court made clear in U & U (2002) 211 CLR 238 the Court is also required to consider as a starting point the proposals of each party and to specifically raise with the parties any alternate proposal which may be formulated by the Court or any departure from the position each of the parties advance. In this case and somewhat unusually in regard to the evidence that is led by the parties, and in particular, Ms Avalos, each parent proposes that there should be an order for equal shared parental responsibility.
I have raised with Counsel for each of the parties the availability of evidence to the Court, particularly in the nature of material produced with respect to family violence, to find that the presumption does not apply. However, notwithstanding these matters being raised with Counsel for both parties and, in particular, Counsel for Ms Avalos, I am not requested to depart from the presumption nor to find that the presumption does not apply either pursuant to sub-ss.2 or 3 or that the presumption is rebutted pursuant to sub-s.4. Accordingly and in due course I propose to make an order for equal shared parental responsibility.
The above is not intended to suggest that the Court’s discretion should be entirely guided, or indeed, bound by the position advanced by the parties. However, I note that in circumstances wherein the contention and suggestion of family violence is raised by Ms Avalos and she, as the alleged victim of such behaviours, consents to and indeed actively urges the Court to make an order for equal shared parental responsibility that to do otherwise may well be seen as either disrespectful to Ms Avalos’ position as a parent and victim of violence (alleged) and contrary to the objects and principles of the Act which acknowledge and recognise the importance of parents making joint decisions. As one of the few examples in this case and on the evidence led where both parties have been able to make a consensual decision, I do not propose to interfere with same.
If I were to depart from the position advanced by each party and to find that the presumption did not apply I note that this would not, in any event, preclude the Court from making an order for equal shared parental responsibility as each parent urges and, accordingly, I have some comfort in accepting the position advanced by the parties and do so.
Having determined that the presumption of equal shared parental responsibility applies I am then required to turn to s.65DAA and to consider in order equal time and substantial and significant time before making any other order for time.
The only acceptation to the above rule relates to [X]’s commencement of school at the beginning of the 2012 school year. There are significant issues in these proceedings as to:
a)the inability of these parents to presently communicate (although it is submitted in support of an order for equal shared parental responsibility by Counsel for Ms Avalos that it is hoped and accepted that this will improve as time goes on):
b)a desire by Ms Avalos to not have here present place of residence disclosed
c)evidence by Ms Avalos in her material that she is in the process of or has already made arrangements for [X] to be enrolled at and attend a primary school within relative proximity of her place of residence.
Bearing in mind the limited time between now and [X] commencing school at the end of January 2012/February 2011 and the fact that these proceedings will be adjourned for further mention and cannot be accommodated earlier than that time period it is necessary and important to ensure that there is some certainty as to [X]’s school commencement. Accordingly, I intend to make an order, by way of exception to equal shared parental responsibility, allowing Ms Avalos to enrol [X] in such school of her choice for the 2012 school year. That issue may or may not be live at final hearing but will be addressed in any event should same be necessary. It would be more prejudicial for [X] and his parents to be embroiled in further litigation on short notice with respect to that issue and/or placed in some uncertainty in commencing his school career.
Section 65DAA is in the following terms:
Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
In considering equal and substantial and significant time I am required to turn my mind to the dual test of whether such arrangements are reasonably practical as defined in s.65DAA(5) in the following terms:
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
as well as the test of whether such arrangement is in the child’s best interests by specific reference to section 60CC.
Both the Full Court and eminent Judges of the Family Court of First Instance (see Murphy J in Pitkin & Hendry [2008] FamCA 186) have been clear that it may and in most circumstances probably will be more convenient to consider reasonable practicality as part of the s.60CC considerations.
Reasonable practicality as defined in s.65DAA(5) represents, in my mind, a codification of the present state of social science research as to the factors which one might expect to see to support or predict the likely success of a “shared care” arrangement as referred to in social science literature (being the child spending 5 nights a fortnight or more with a parent). Shared care arrangements in this sense would incorporate both equal time and substantial and significant time as set out in s.65DAA.
The matters addressed in s.65DAA(5) do not deal solely with the issue of physical practicality or logistics. Sub-s (a) does so in addressing the distance the parents live apart. The Court is also required, however, to have regard to the remaining matters which touch upon the “distance” between the parents in other fashions such as their ability to communicate, cooperate and problem solve.
In this case and on the evidence of both parents it would appear clear that there is not presently a significant level of trust, cooperation, communication, or ability to resolve differences. One would hope that this will improve overtime and I propose, as invited by Counsel for the father, to make an order referring these parents to such thearaputic intervention with a view to their engaging with those services and obtaining assistance.
Counsel for the father has submitted that such a Post Separation Parenting orders should be directed specifically to Ms Avalos. However, the nature and purpose of such programs is not entirely to develop individual insight (without intending to suggest that Ms Avalos lacks same at this time) but to work upon the dynamic of the relationship between two parents, and accordingly, each and both of them must and need be involved in that process so that they receive the same information, the same guidance and, subject to it being acceptable and appropriate within the discretion of the agency conducting such a process, together.
The Court has a broad power to make orders for parties to participate in such programs and under s.13C of the legislation. Indeed s.65F of the Act which is in the following terms:
General requirements for counselling before parenting order made
(2) Subject to subsection (3), a court must not make a parenting order in relation to a child unless:
(a) the parties to the proceedings have attended family counselling to discuss the matter to which the proceedings relate; or
(b) the court is satisfied that there is an urgent need for the parenting order, or there is some other special circumstance (such as family violence), that makes it appropriate to make the order even though the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or
(c) the court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a).
(3) Subsection (2) does not apply to the making of a parenting order if:
(a) it is made with the consent of all the parties to the proceedings; or
(b) it is an order until further order
would require the Court, absent one of the exceptions being established (which it may well be in this case), directing attendance upon counselling. Absent any definition of counselling within the legislation I am satisfied that this must, of necessity, refer to and require attendance at family counselling before final parenting orders are made.
This matter will be adjourned following my determination and returned to the docketed Federal Magistrate for further mention. Accordingly, there will be some little time to enable the parties to attend intake and commence such processes as may be suggested as relevant and beneficial to them prior to the matter then advancing to a final hearing.
With respect to reasonable practicality and again by reference to U & U I note that neither parent, in this instance, proposes that there be an equal or substantial and significant time arrangement.
The Full Court has made clear in Goode & Goode and other authorities that the absence of application by a party for equal or substantial and significant time does not, if one is correctly following the legislative pathway, derogate from the requirement for the Court to turn its mind, as s.65DAA mandates, to equal and significant and substantial time. However, I am satisfied in circumstances whereby neither party proposes that such an arrangement apply that this can be taken as a tasset or inferential acceptance by one or both that such arrangements are either not in the child’s best interests and, in the case of Mr Trejo and by reference to his work hours, are simply not practical as he is not available to take that time or make satisfactory or appropriate arrangements for the child’s care during such time if ordered.
Lest I am wrong in the above regard and in accepting and relying upon the parties inferential position of conceding an absence of practicality I note that, in any event, I would not be satisfied for reasons that will become apparent, that it would be either reasonable or practical nor in the child’s best interest, at this point in time, for an equal or substantial and significant time arrangement to apply. This is particularly so having regard to the nearly complete absence of effective communication between these parents and by reference to the child’s age, lack of recent significant time with his father and the impact that a substantial shift (as equal and substantial and significant time must represent) would have upon the child and, indeed, the child’s relationship with his mother.
There would appear no dispute on the evidence that [X] is closely attached with and has a strong and meaningful relationship with his mother. It would appear, inferentially if nothing else, that it is accepted by Mr Trejo that his relationship with [X] is not as strongly developed at this point in time (and without accepting that it may not have been so at some past point in time). In those circumstances there is a real difficulty that if time arrangements are advanced too quickly or too substantially that there may be some diminution in the quality of the relationship between [X] and his mother but without a corresponding benefit. It is well accepted in social science literature that attachment is not transferrable and that the advancement of time arrangement for [X], who will commence school next year and who will, accordingly, experience yet another type of separation from his mother which may be beneficial to his becoming adjusted to greater separation to his mother for the purpose of spending time with his father, is appropriate.
In then being satisfied that neither equal or substantial and significant time arrangements are appropriate I am then left to consider what time arrangement would be the most appropriate. In this regard I note that the determination of time arrangements is utilitarian only. The legislation, does not at any time, presume any particular time arrangement (s.65DAA is not a presumption of time arrangements but merely a mandatory requirement to consider time arrangements).
Any order for time, no matter what order that may be, must be focused upon achieving the objects of the legislation and the primary considerations set out in s.60CC(2) and particularly the desirability, subject to it being determined to be in a child’s best interest, of a child having the benefit of a meaningful relationship (emphasis added) with both (emphasis added) parents.
In turning to s.60CC I am required to commence by considering the primary considerations set out in subsection 2 as follows:
Primary considerations
(2) 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
There certainly evidence before raising issues regarding [X]’s need for protection from physical or psychological harm as a consequence of being exposed to family violence. There are no real allegations of abuse or neglect raised in the proceedings.
Violence is fundamental to all of which the Court does in a parenting case. In this regard several specific provisions apply such as s.60CG which reads as follows:
(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order
And s.60K which reads as follows:
Court to take prompt action in relation to allegations of child abuse or family violence
(1) This section applies if:
(a) an application is made to a court for a Part VII order in relation to a child; and
(b) a document is filed in the court, on or after the commencement of this section, in relation to the proceedings for the order; and
(c) the document alleges, as a consideration that is relevant to whether the court should grant or refuse the application, that:
(i) there has been abuse of the child by one of the parties to the proceedings; or
(ii) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
(iii) there has been family violence by one of the parties to the proceedings; or
(iv) there is a risk of family violence by one of the parties to the proceedings; and
(d) the document is a document of the kind prescribed by the applicable Rules of Court for the purposes of this paragraph.
(2) The court must:
(a) consider what interim or procedural orders (if any) should be made:
(i) to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and
(ii) to protect the child or any of the parties to the proceedings; and
(b) make such orders of that kind as the court considers appropriate; and
(c) deal with the issues raised by the allegation as expeditiously as possible.
(2A) The court must take the action required by paragraphs (2)(a) and (b):
(a) as soon as practicable after the document is filed; and
(b) if it is appropriate having regard to the circumstances of the case--within 8 weeks after the document is filed
I am satisfied, without accepting that the absence of an allegation of physical violence towards a child or towards a parent of a child in the child’s presence or hearing does not constitute exposure to family violence, that I can safely make orders for either daytime periods between [X] and his father or overnight periods of time between [X] and his father without being significantly concerned that there is an unacceptable risk of [X] being so exposed. In coming to that determination I have had reference to the Full Court’s decision in Johnson & Page [2007] FamCA 1235and particular paragraph 62 – 72 thereof discussing the relevant principles to be applied by the Court.
It would appear accepted on the proposals of Ms Avalos that risk of family violence can be sufficiently addressed through a combination of changeover mechanisms which will obviate the need for the parties direct contact in a non supervised environment and/or details for
Ms Avalos and her place of residence remaining unknown to Mr Trejo.
There is some desirability of ultimately moving arrangements forward such that [X] might be collected by his father from and returned by his father to school. This would achieve both a changeover whereby the parents need not come into contact with each other (which is not accepted as ideal but is perhaps the best that can be achieved in the context of this case and on the evidence as it presently stands) but would also allow and facilitate some “meaningful involvement” by
Mr Trejo in his son’s school attendance. It would afford an opportunity for Mr Trejo to meet with [X]’s class room teacher, [X]’s peers and their parents and to otherwise have some involvement in [X]’s schooling. This may also bring some particular joy to [X].
I am anxious in any case where parents are in high conflict and significant allegations of poor communication and/or violence are raised to ensure that a child’s school remains a safe haven for him. It would be counter productive to simply move conflict from another location to the school gate or the class room door. It would also be disadvantageous to [X] both as to his social interactions, his academic progress (being distracted by such behaviours) and unfair to [X]’s school who, as a third party, may well have some desire to be heard against such a proposal.
I am satisfied, however, that changeover were ultimately to move to occur at [X]’s school that it will achieve the above purposes and if each parent remains away at the others’ times this should obviate the need for any conflict occurring.
With respect to [X]’s meaningful relationship with both of his parents I note the party’s proposals are somewhat disparate. Ms Avalos puts her position fairly and appropriately as being that unless the Court can be satisfied that there is not an unacceptable risk to [X] as a consequence of his father’s behaviours as referred to in discussion of expert evidence above, that time arrangements should remain on a day only basis. It is put in the alternative by Counsel for Ms Avalos that if the Court was satisfied that there was no significant risk in that regard then, upon [X] commencing school, time would progress to one overnight (such that periods would become Saturday – Sunday).
Mr Trejo proposes that time would move immediately to each alternate weekend from Friday to Sunday as well as for a period each alternate Wednesday from afternoon until evening but not overnight.
In light of the antagonism and distrust that has been generated between these parents as a consequence of the deterioration of their relationship and, no doubt, tensions created by these proceedings and the orders proposed therein, (it has to be remembered that Mr Trejo’s ultimate application is for an equal shared care arrangement) I am satisfied that there is some utility in advancing slowly irrespective of the issues raised by Ms Avalos as to a proposed finding of unacceptable risk.
As would be apparent from the above matters and whilst I have some concern as to the state of the expert evidence I am satisfied that
Mr Trejo is taking full and active steps towards addressing the difficulties that have been exhibited through his behaviour in the recent past and that change has commenced to occur and one would hope will continue to occur.
In dealing with the additional considerations as set out in s.60CC(3) and noting that the additional considerations are not subservient to the primary considerations but both inform and speak to the primary considerations and stand alone as considerations of their own I note the following with respect to each:
Views Expressed by the Child
There is no clear evidence before the Court in this regard. In the event that there were clear evidence of an expressed view of [X] I would be reluctant to place any significant weight upon his views having regard to his age and apparent maturity and, more importantly, the level of conflict that has existed between these parents which has no doubt created some degree of anxiety for [X].
Nature of the Child’s Relationship with Each Parent and Other Persons
There is and can be no doubt on the evidence that [X] presently enjoys an excellent and primary relationship with his mother.
[X]’s relationship with his father has been fractured following the events around the deterioration of the relationship between these parents. However, that relationship has been rebuilding through time being spent in accordance with the interim orders presently in place.
Issue is raised by Ms Avalos as to the absence of material in Mr Trejo’s case regarding his “flat mate” whom, it is suggested, is in fact,
Mr Trejo’s partner. I am not substantially concerned in that regard although it is an appropriate submission to put having regard to cases such as Jones & Dunkel (1959) 101 CLR 293. However, I do not propose to infer, absent any evidence that would suggest to me that it would be an appropriate inference, that the person with whom Mr Trejo shares accommodation, whether as a boarder or intimate partner, represents any fundamental deficit in his case or inherent risk or concern as regards [X].
I am satisfied that it would be in [X]’s best interest to continue to develop his relationship with his father and so that it can begin to move towards and approximate a meaningful relationship. I am satisfied that this should begin to occur relatively soon.
Balanced against the above I note that the application formerly before the Court by Mr Trejo does not seek, on an interim basis, overnight time until [X] commences school which will be Term One 2012.
It has been generously and appropriately conceded by Counsel for
Ms Avalos that they have been on notice for some time, of the proposed minute of orders tendered in the father’s case and which seeks an immediate move to overnight time Friday to Sunday.
I am satisfied that there should be steps taken towards introducing overnight time for [X] before he commences school but on a far more limited basis that proposed by Mr Trejo. I am satisfied this would have a number of advantages for [X] including allowing him to become familiarised with his father’s accommodation and household arrangements before commencing to spend more significant periods of time with his father. It would also allow some comfort and settling to occur with respect to those arrangements before [X] commences school and experiences a far more significant separation, on a day to day basis, from his mother.
Willingness and Ability of Each Parent to Facilitate and Encourage a Close Relationship
Inherent in the case of Mr Trejo is some tacit criticism of Ms Avalos’ attitude towards his relationship with [X] and a suggestion that she has, in her reluctance to extend or increase time, demonstrated a negative attitude.
Subsection (c) is often referred to, somewhat misleadingly and erroneously, as the “friendly parent provision”. This is to suggest that if a parent is not seen to be wholeheartedly supporting a relationship that they must, accordingly, be unfriendly and should be negatively judged under this provision.
I am not satisfied that sub-s (c) is intended to achieve the above at all nor does it. The willingness and ability of a parent to facilitate and encourage a close and continuing relationship between a child and the other parent must be viewed within the context of their relationship and its dynamic, organic development.
There are concessions made, appropriately so, by Mr Trejo as to his past behaviour towards Ms Avalos which he concedes has been hostile and inappropriate and for which he purports to apologise. The material tendered in Ms Avalos’ case, comprising emails sent by Mr Trejo to her, could not be seen as founding other than a valid concern as to
Mr Trejo’s behaviour, likely future behaviour and capacity to contain his emotions and isolate [X] from them if they where to bubble to the surface whilst [X] is in his care. Mr Trejo is on the path towards addressing those matters but clearly needs to continue to seek out and accept advice and guidance.
In the above circumstances I could not be and am not critical of
Ms Avalos for the attitude she has demonstrated towards Mr Trejo’s relationship with [X]. Indeed it is to her credit that she has supported and encouraged it at all and has continued to do so through compliance with orders made by the Court without substantial criticism. It is also to her credit that she has acted protectively.
Conversely, matters arise from the material that is before the Court (and particularly the emails tendered) as to Mr Trejo’s capacity to parent [X] (which will be dealt with separately) and his attitude towards [X]’s mother and, as a necessary consequence thereof, her relationship with [X].
The Likely Affect of Change Including Separation from Either Parent
The proposals put by Mr Trejo do not, on their face, represent a substantial change in circumstances and certainly not a substantial change that would result in a significant separation of [X] from his mother.
It has been accepted through case law of this Court and the Full Court and precedent from other English speaking common law jurisdictions since the introduction of ‘no fault jurisdictions’ that the separation of a child from a parent or primary parent is a necessary consequence of parents ceasing to live together (subject to it being determined that it is in the child’s best interest for same to occur). Accordingly, I am not satisfied that [X]’s separation from his mother for more extended periods and for the purpose of spending time with his father is, of itself, detrimental.
There is a potential for there to be real benefit to [X] of spending more time with his father and particularly by spending more time with his father within his father’s household and as part of it. Research that was raised by me with Counsel for Mr Trejo regarding the benefit and value of different types of time being spent by a parent with a child in developing a meaningful relationship is foremost in my mind. Such material is admissible pursuant to s.144 of the Evidence Act 1995 and subject to it being raised and put to Counsel for the parties. In this regard research such as Bruce Smyth’s “The difference is night and day” would suggest that a child spending different types of time and particularly overnight time with a parent has far greater benefit in building and determining the meaningfulness of that relationship than spending one fixed type of time. Perhaps such research was fundamental in influencing the definition contained within s.65DAA of substantial and significant time and so as to include different types and qualities of time and involvement.
I am satisfied that a move to arrangements which enable [X] to be collected by or returned to school by his father and to spend a period of overnight time with his father so that he is part of his father’s household would be appropriate and beneficial.
Practical Difficulty and Expense
I have addressed the practical difficulty and expense issues separately and pursuant to s.65DAA(5). However suffice to say that neither party has raised any significant issue that would suggest any time arrangement, whether day only or overnight, would be impractical or unaffordable. Indeed, there would potentially be greater practicality in overnight periods as this would minimise the amount of disruptive travel, impacting upon [X]’s time with his father and/or tiredness or being unsettled by frequent changes.
Capacity
There can be no real or valid challenge to Ms Avalos capacity to parent [X]. She has had the full time role of doing so and, on her evidence (being that no de-facto relationship of a residential nature has ever occurred between [X]’s parents) has done so since birth.
There have been significant challenges to Mr Trejo’s capacity to care for [X] without assistance or supervision and certainly so on an overnight basis. However, I am not satisfied that at this point in time (as opposed to past periods of time when the orders presently in place where entirely appropriate) that this is or will continue to be a difficulty such as to obviate against modest increases to time and to include [X] sleeping over with his father commencing with one night at a time.
Maturity, Sex Lifestyle and Background
This factor is relevant only to the extent that [X] is a young child and accordingly vulnerable and entirely dependent upon adults (principally his parents) to meet his needs both physically and emotionally.
There has been a clear demonstration of impediment to Mr Trejo’s capacity as a consequence of his actions since the deterioration of the parental relationship. However, as remarked above, active steps have been taken by Mr Trejo to address this and whilst there is still some distance to go Mr Trejo is making progress and complaints regarding his inappropriate and unacceptable behaviours are becoming increasingly historical.
Aboriginality of the Child
No evidence has led to suggest that this is relevant.
The Attitude to the Child and the Responsibilities of Parenthood Demonstrated by Each Parent
Again, Ms Avalos could not be criticised for the attitude she has demonstrated as regards the responsibilities of a parent. She has continued to care for [X] since birth, continued to comply with orders as to [X]’s provision for time to develop a relationship with his father and has done so in somewhat trying circumstances having regard to the above evidence.
Mr Trejo can be criticised for his past actions and his lack of insight as to the impact of these actions upon both [X] (whether exposed directly or indirectly to same) and upon Ms Avalos, who is after all, the mother of this child and whom Mr Trejo seeks to engage as an active cooperative co parent.
Family Violence
There are clear issues raised, having regard only to the non contested evidence, regarding family violence both within its broader context and within the definition of family violence contained within the Act. The definition of family violence within s.4 of the Act reads as follows:
"family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety
Clearly the words and actions of Mr Trejo directed towards Ms Avalos both in person and by email (and without then being required to turn to and seek to make determinations as to the veracity of Ms Avalos evidence with respect to physical matters) would support a finding of family violence.
In the above circumstances the Court has clear and specific obligations pursuant to, inter alia, ss.60CG and 60K to ensure that these matters are appropriately addressed and so as to minimise exposure of both
Ms Avalos and [X] to a repetition of same. I am satisfied that by making orders which continues a somewhat supervised changeover or a changeover where both parties need not come into contact with each other, is the best that one can do in this regard.
I am satisfied that Mr Trejo’s behaviour is and has been such during periods of time that he has spent with [X] to date, and to which there is no significant complaint or criticism, that [X] has not been and accordingly I can have some confidence of predicting will not be, exposed to family violence whilst in his father’s care.
It is submitted in the case of Ms Avalos that the greater the period of time, particularly including overnight time when either the father and/or [X] are likely to be tired and accordingly conflict more likely to erupt and escalate, would increase the likelihood of family violence. However, I am not satisfied that this proposition automatically flows from that which is put or can be accepted.
Family Violence Orders
There would not appear to be any present family violence orders in force between these parties. Indeed the evidence of Ms Avalos is that she has been reluctant to go to the police and seek assistance and has preferred to deal with matters by either extricating herself from the circumstances or, as is presently the case, by keeping information regarding her residence and the like private and confidential.
Lest it be interpreted that these reasons are intended to suggest that the absence of a family violence order casts any doubt upon the credibility of Ms Avalos as regards the allegations raised by her with respect to same I wish to disabuse all of that view. It is common knowledge (again by reference to s.144 of the Evidence Act 1995) that there is a significant underreporting of crime by female victims both as to sexual assaults and intimate partner violence. The level of reporting is increasing but, readily available research from organisations such as the Institute of Criminology, makes very clear that there are a number of complex issues relating to the reporting or non reporting of violence and abuse within the intimate relationships and no criticism is raised by me of Ms Avalos in this regard.
I would also add, lest it be suggested that extraneous material has been relied upon in arriving at any determination in this case, that I have not, in arriving at the orders that I have, placed any reliance on the above comments which are included purely as a point of clarity for any future reader rather than as a basis for the decision.
Whether it would be Preferable to Make an Order that would be Least Likely to Lead to the Institution of Future Proceedings
As interim proceedings it is often contended that this factor has no relevance. However, the factor remains relevant in interim proceedings and to the extent that the Court must be satisfied that the interim orders to be made will tide the parties over until the matter can be heard and determined on a final basis. This would mean that the orders made can be complied with (on a practical and emotional level) by both parents, will not overstretch the emotional or coping resources of the parents or [X] and will, in all other respects, be sustainable and workable.
I am satisfied that the orders I propose to make, which provide for a slow and gradual increase of time, would have the potential to produce the best and most sustainable order I can without creating undue anxiety on the part of Ms Avalos or undue frustration on the part of
Mr Trejo.
As an overriding consideration, however, I am satisfied that the orders will also allow and permit [X] to adjust in a fashion that will accommodate his present needs including the stability and security of his relationship with his mother, the stability and security of ensuring that his mother is at her best to emotionally cope and function in attending to his primary care and [X]’s inevitable and relatively imminent transition to school.
For all of the above reasons I am satisfied that the following orders are appropriate and accordingly pronounce them:
I certify that the preceding one hundred and eighty-seven (187) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 8 December 2011
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