Trent and Barrington

[2020] FCCA 1073

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRENT & BARRINGTON [2020] FCCA 1073

Catchwords:
FAMILY LAW – Application to vary orders – Rice v Asplund – information provided by the Department of Health and Human Services after orders were made – impact of COVID-19 on supervised time at contact centre – application granted.

Legislation:

Family Law Act 1975 (Cth) ss.60CA, 60CC.

Cases cited:

In the marriage of Rice & Asplund (1979) FLC 90-725

Applicant: MR TRENT

Respondent: MS BARRINGTON

File Number: MLC 1607 of 2018

Judgment of: Judge Mercuri

Hearing dates: 24 and 26 March 2020

Date of Last Submission: 26 March 2020

Delivered at: Melbourne

Delivered on: 26 March 2020

REPRESENTATION

Counsel for the applicant: Ms Southey

Solicitors for the applicant: Toner & May Legal

Counsel for the respondent: Ms Johnson

Solicitors for the respondent: Nancy V Battiato

Counsel for the Independent Children’s Lawyer: Ms Parker

Solicitors for the Independent

Children’s Lawyer:

Joliman Lawyers

ORDERS

1. Orders 3, 4, 5 and 6 of the orders made on 26 February 2020 be discharged.

2. Within 14 days, the parties do all acts and sign all documents necessary to engage with the Town B Children’s Contact Service or such other supervisor as agreed for the purpose of the father spending time with the children X born in 2017 and Y born in 2019 (“the children”).

3. The parties follow all lawful directions given by Town B Children’s Contact Service including but not limited to in respect of attending intake at Town B Children’s Contact Service and presenting the children for sessions as and when directed by Town B Children’s Contact Service or the supervisor.

4. Upon a place becoming available, the father spend time with the children on such days and times as nominated by Town B Children’s Contact Service or the supervisor.

5. All extant interim applications otherwise be dismissed.

6. Pursuant to section 69ZW of the Family Law Act 1975 (Cth) it is requested the Department of Health and Human Services provide to the Court the following documents and information:

   (a)any notifications to the Department of Health and Human Services of suspected abuse of the children to whom the proceedings relate or of suspected family violence affecting the children including but not limited to any intake reports;

   (b)any assessments of the Department of Health and Human Service of investigations into notifications of that kind or the findings or outcomes of these investigations including but not limited to copies of investigation and assessment outcomes, any grounds of substantiations, case plans and case closure summaries;

   (c)any reports commissioned by the Department of Health and Human Services in the course of investigating a notification, including but not limited to any reports prepared for proceedings in the Children’s Court; and

   (d)in the event the Department of Health and Human Services have an ongoing investigation in relation to the children to whom the proceedings relate, any recommendations for the future arrangements of the children taking into account the orders sought by the parties in these proceedings. 

7. Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

(A)The matter remains listed for directions on 13 May 2020 at 9:30am in the Albury registry.

(B)Pursuant to section 62B of the Family Law Act 1975 (Cth), information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(C)Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

(D)If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

(E)Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

(F)Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

(G)If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1607 of 2018

MR TRENT

Applicant

and

MS BARRINGTON

Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application in a case made by the mother in respect of the children of the relationship, X born in 2017 and Y  born in 2019 (“the children”).

3. The mother seeks that:

   a)orders 2 to 8 inclusive of the orders made on 26 February 2020 be discharged and for the father’s time to be reserved; or alternatively

   b)there to be no time between the father and the children.

4. The application is opposed by the father.  

5. The Independent Children’s Lawyer supports the father in opposing the mother’s application.

Background

1. This matter came before me on 26 February 2020 in the Albury circuit.  At that time submissions were made by the parties as to what, if any, time ought to occur between the two children and the father.  At that time, the father had not yet met the younger child, Y and had not been spending time with the older child, X.

2. On 26 February 2020, there had not yet been a response from the Department of Health and Human Services (“DHHS”) to the notice of risk filed and therefore the orders were made without the benefit of any input from DHHS.  The mother made various allegations of family violence in her material filed in the proceedings which were the subject of consideration by the court when the matter was last before me.

Issues

1. It was conceded by all parties that before varying any orders made on an interim basis, the principles in In the marriage of Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) ought to apply.  In essence, the court needs to be satisfied that:

   a)there has been a sufficient change in circumstances which warrants a revisiting of the orders made; and

   b)even where there has been a change in circumstances, it is in the children’s best interests to make alternative orders.

2. Counsel for the mother pointed to the further information provided by DHHS.  This information is contained in:

   a)a letter to the mother which was exhibited to her affidavit filed in support of her application in a case; and

   b)the section 67Z response provided by DHHS to the notice of risk, which was circulated to the parties on 25 March 2020.

3. It was submitted on behalf of the mother that:

   a)DHHS’ conclusions in those reports ought to be given weight by this court; and

   b)the matters contained in that report represent a change in circumstances which warrants discharging the original orders and providing for either:

   i)no time; or

   ii)for the father to have supervised time in a contact centre, pending further determination of these matters.

4. The father’s counsel argued that there had been no change in circumstances.  It was submitted by counsel for the father that:

   a)the allegations to which DHHS referred to in its report were largely the same allegations that were before the court on the last occasion, and therefore there has been no changed circumstances which would warrant the court revisiting the interim orders made;

   b)to the extent that DHHS referred to discussions had with the Men’s Behaviour Change program (“the program”) undertaken by the father, those comments need to be considered cautiously;

   c)the father has been penalised for engaging in the program three times, notwithstanding that he is seeking to improve his understanding of issues relating to family violence;

   d)he is being penalised for his honesty; and

   e)in light of the current circumstances as a result of the COVID-19 virus and the limitations imposed on people’s movement, if an order were made by this court for supervised time at a contact centre, that would inevitably result in no time between the father and the children.

5. On behalf of the Independent Children’s Lawyer, it was submitted that:

   a)the father’s position is to be supported;

   b)the major concern for the Independent Children’s Lawyer is that if professional supervision is required, that would effectively sever the relationship between the children and the father;

   c)the mother was aware of the father’s conduct before they reconciled; and

   d)reference was made to the mother’s comments to the contact centre in previous proceedings, where the mother spoke very highly of the father and was glowing of his parental capacity.

6. In reply, counsel for the mother submitted that there are changed circumstances.  In particular, reference was made to the admissions made by the father, which were not before the court on the last occasion.  Moreover, it was said that the opinion of DHHS as an expert in these matters ought to be granted some weight.  

7. Counsel for the mother submitted that no weight ought to be given to the fact that the mother reconciled with the father, notwithstanding her knowing of his previous conduct.  That sort of behaviour is not unusual in situations where family violence has been prevalent in a relationship.  I agree with that submission and do not take that matter any further.

Consideration of Rice v Asplund

1. Ultimately, in considering an application such as this, the court must have regard to the section 60CC factors and the requirements contained in the Family Law Act 1975 (Cth) generally. The best interests of the children are paramount.[1]

   [1] Family Law Act 1975 (Cth), s.60CA.

2. In considering those factors, the court must balance the two primary considerations; namely, the need to facilitate a relationship between a child and their parents on the one hand, and protecting the child from physical or psychological harm on the other.[2]  In weighing those two primary considerations, the court is required to give greater weight to the second consideration; namely, the need to protect the child from harm.[3]

   [2] Family Law Act 1975 (Cth), s.60CC(2).

   [3] Family Law Act 1975 (Cth), s.60CC(2A).

Change in circumstances

1. Turning to the first question as to whether there has been a sufficient change in circumstances since this matter was before me on 26 February 2020, I am satisfied that there has been a change in circumstance, evidenced by:

   a)the response from DHHS in its entirety; and

   b)the correspondence from DHHS to the mother, which was annexed to her affidavit in support of her application in a case.

2. Information obtained by DHHS from the Men’s Behaviour Change program was of concern to the facilitators of the program and, in turn, to DHHS.

3. In addition, the DHHS report indicates that interviews were conducted both with the mother and with the father following the making of the February 2020 orders being made.  A summary of the outcome of those matters is contained in the report from DHHS.  In addition, the report concludes that on the basis of all of the information available to it, the father should not have unsupervised contact with the children, and it is strongly recommended that any contact occur at a contact centre, supervised by an impartial person.

4. In relation to supervision, the orders made on 26 February 2020 provided for the initial sessions between the father and the children to be supervised by the maternal grandmother.[4]

   [4] Order 5 of the interim parenting orders made on 26 February 2020.

5. DHHS stated that it holds concerns for the maternal grandmother or any member of the mother’s family supervising contact because of the father’s conduct.  It is in that context that supervised contact was recommended to occur at a contact centre.

6. Accordingly, I am satisfied that there has been a change in circumstances. 

Best interests of the children

1. I now turn to whether or not it is in the best interests for these children for the orders made on 26 February 2020 to be varied, either in the terms sought by the mother or in the terms sought or recommended by DHHS.  On balance, I am satisfied that it is appropriate to vary the orders that I made on 26 February 2020 and direct that any contact between the father and the children occur at a supervised contact centre.

2. It has been submitted that in the current circumstances where the country is dealing with an international health emergency, the effect of those orders will be that the children will not spend any time with the father.  I accept that that is a practical consequence in the immediate term of the orders which I make.

3. However, having said that, these are very young children and they do not have the capacity to protect themselves or act protectively.  The obligation on the court is therefore to act protectively on their behalf. 

4. It is not a decision that is made lightly and I understand the consequences of that decision in the immediate term for the father and the children.  However, the current situation will undoubtedly resolve and supervised time will then be able to recommence between the father and the children.

Conclusion

1. I therefore make the orders as sought by the mother in her application in a case.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Mercuri.

Date:         6 May 2020