Viduka and Viduka
[2018] FamCA 1064
•13 December 2018
FAMILY COURT OF AUSTRALIA
| VIDUKA & VIDUKA | [2018] FamCA 1064 |
| FAMILY LAW – CHILDREN – Interim – With whom a child lives – With whom a child spends time – Where the mother seeks to extend her time with the child – Proposal for a shared care arrangement – Where the father opposes the orders sought by the mother – Whether to extend the time that the mother spends with the child. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC |
| Marvel & Marvel [2010] FamCAFC 101 |
| APPLICANT: | Ms Viduka |
| RESPONDENT: | Mr Viduka |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
| FILE NUMBER: | ADC | 1114 | of | 2016 |
| DATE DELIVERED: | 13 December 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 26 November 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms O'Connor SC |
| SOLICITOR FOR THE APPLICANT: | Johnston Withers |
| COUNSEL FOR THE RESPONDENT: | Mr Wabnitz |
| SOLICITOR FOR THE RESPONDENT: | Daniel John Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Hemsley |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
Orders
That orders made 6 December 2017 be discharged.
That the parties shall have equal shared parental responsibility for B born … 2014 (“the child”).
That until further order the child shall live with the father.
That the child shall spend time with the mother as follows:-
(a)From 10.00 am to 5.00 pm on Friday 14 December 2018 and each alternate week thereafter;
(b)From 3.30 pm Friday to 10.00 am Tuesday (or the commencement of kindergarten or pre-school whichever is the earlier) commencing 21 December 2018 and each alternate weekend thereafter;
(c)From 10.00 am to 5.00 pm on Mother’s Day (if not already in the care of the mother) PROVIDED the child will spend time with the father on Father’s Day from 10.00 am to 5.00 pm (if not already in the care of the father);
(d)From 10.00 am Christmas Eve to 12.00 noon on Christmas Day and with the father from 12.00 noon Christmas Day to 5.00 pm Boxing Day.
That handover arrangements that do not take place at the child’s kindergarten or pre-school shall take place at the Suburb D Police Station with the parties to be at liberty to nominate a family member to facilitate the handover subject to any other agreement between the parties.
That the father do provide to the mother details as to the child’s kindergarten or pre-school and do authorise such kindergarten or pre-school to provide directly to the mother all information normally provided to parents including but not limited to notices, newsletters and reports in relation to the child.
That the father do all such things such that the mother be listed as an emergency contact at the child’s kindergarten or pre-school.
Both parties be at liberty to attend at the child’s kindergarten or pre-school for such events to which parents are ordinarily invited to attend including the child’s first day at kindergarten PROVIDED that the parties shall be restrained and an injunction granted restraining each of them from approaching, assaulting, harassing or denigrating the other whilst on the pre-school or kindergarten grounds.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Viduka & Viduka has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 1114 of 2016
| Ms Viduka |
Applicant
And
| Mr Viduka |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Ms Viduka (“the mother”) and Mr Viduka (“the father”) remain in dispute as to the future parenting arrangements for B born in 2014 (“the child”).
I rely upon my reasons delivered 10 May 2017 for the relevant background to the proceedings.
Following separation the parties entered into a consent order that they have equal shared parental responsibility for the child, that the child lives with the father and spends regular time with the mother.
Each of the parties sought to resile from the consent arrangements.
They each allege that the other presents as a significant risk to the child. The allegations of family violence and sexual abuse are serious. On 19 July 2016 the mother was charged with aggravated assault against the father and the child and an interim intervention order was put in place on 28 July 2016 listing the father and the child as protected persons.
The father was arrested in late 2016 and charged with offences including unlawful sexual intercourse involving the mother.
As at 10 May 2017 the child lived with the father and had not spent any time with the mother since 19 July 2016.
The Independent Children’s Lawyer (“ICL”) supported a resumption of the mother’s time with the child and I found that it would be in the child’s best interests that his relationship with the mother should resume.
Orders were made that the child spend time with the mother each alternate weekend from Friday to Sunday.
Those orders were further considered on 6 December 2017 and the child’s time with the mother was extended from 3.30 pm Friday to 10.00 am Monday and each alternate weekend thereafter and on the intervening Friday from 10.00 am to 5.00 pm.
Provision was also made for Mother’s Day and Father’s Day.
The proceedings were adjourned to 4 April 2018 in anticipation of a family report being available pursuant to s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”).
On 25 September 2018 the mother filed an Application in a Case seeking a further extension of the child’s time with her. That application was the subject of an Amended Application filed 26 October 2018. The mother sought orders that there be a change in the primary care of the child and that the child live with her and spend time with the father from 3.30 pm Friday until 10.00 am Monday each alternate weekend and from 10.00 am until 5.00 pm on the intervening Friday.
Provision was also made for the Christmas period, Mother’s Day and Father’s Day, the child’s birthday and the Easter period.
On 27 September 2018 orders were made for the proceedings to be listed for hearing on 1 April 2019.
By his Response filed 21 November 2018 the father opposes the mother’s Amended Application and further sought that the trial direction orders be set aside and the trial date vacated.
The application to vacate the trial appears to have been based on a misreading of the trial direction orders which provided for the father to file and serve his trial material by 4.00 pm on 15 March 2019 and not by 20 December 2018.
MOTHER’S APPLICATION
The mother supports her Amended Application for increased time with the child upon the premise that the Court took a cautious approach when making orders on 6 December 2017 given that the mother was still charged with serious criminal offences. On 16 July 2018 the mother was advised that all of the criminal charges would not be pursued and she received a formal advice from the Director of Public Prosecutions that no information would be filed against the mother in respect of the charges of an aggravated act likely to cause harm and aggravated indecent assault.
The criminal charges against the father have not been withdrawn and are now unlikely to be heard before August 2019.
A further consideration by the mother is her contention that the letters and documents annexed to the father’s Affidavit of 6 March 2018 are concocted, presumably by the father. The documents were provided by the father to the police. The documents allege that the mother had threatened to poison the child and the father, that she felt no love for the child and had assaulted and drugged him.
The whereabouts of the original documents has become a relevant issue. The mother has called for the original documents, however the father asserts that he does not have them and as such they cannot be produced. The mother contends that she is not the author of the documents and without the originals being provided it is not possible to establish their provenance.
For his part, the father contends that the mother is the author of the documents and he seeks to establish the connection by employing the services of a graphologist.
The mother’s application for primary care, or in the alternative shared care pending trial assumes that the Court can find there is no credible evidence to support the explicit allegations made by the father and accordingly it is reasonable to assume that they have been fabricated by the father as a strategy to retain the primary care of the child. Absent any allegations of substance the child should live with the mother.
FATHER’S REPONSE
The father opposes the mother’s application. He does not resile from the serious allegations of abuse made by him against the mother and argues that it is only at a trial that the evidence can be properly tested.
He states that the child often returns from the mother’s home distressed, unsettled and anxious. The father says that the mother denigrates him in the presence of the child.
FAMILY REPORT
Following an order made 6 December 2017, Ms E, (“family consultant”), prepared a family report pursuant to s 62G(2) of the Act. It recommended that the parties have equal shared parental responsibility and that where possible handovers be effected between the maternal and paternal grandparents. In terms of primary care, should the father’s allegations against the mother be substantiated, then the child should live with him and spend supervised time only with the mother. If however the father’s allegations against the mother are not substantiated, then the child should live with the mother and spend time with the father supervised by the paternal grandparents over a period of about six months.
The family consultant did not support the mother’s application for equal time and shared care given the poor quality of the relationship between the parties.
In the absence of any substantiated allegations, the family consultant was concerned that if the child remained in the father’s primary care he was unlikely to support the child’s relationship with the mother.
The relationship between the parties is redolent with mistrust and open dislike.
Notwithstanding the evident hostility, the observations of the family consultant were that the child “appeared to share warm positive relationships with both parties”. The child had also been in regular contact with the maternal and paternal families of the parties.
The observed interaction of the child with each of the parties did not support any assertion that the child was fearful, upset or in any way anxious about spending time with the father or the mother.
PARENTING CONSIDERATIONS
In Marvel & Marvel [2010] FamCAFC 101 the Full Court considered the approach to be adopted when presented with contested evidence on an interim hearing:-
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
I consider that a cautious approach should always be adopted in circumstances where the evidence has not yet been tested. That does not mean that the Court is not able to make an appropriate interim order until and unless the evidence has been tested. At an interim hearing the Court should generally be risk-averse and cautious.
The mother’s application must be considered pursuant to s 60B of the Act which outlines the objects and principles underlying Part VII of the Act.
Section 60CA requires that in deciding whether to make a particular parenting order the best interests of the children are the paramount consideration. In order to determine what is in the children’s best interests the Court must consider the provisions of s 60CC as to the primary considerations contained in s 60CC(2) and the additional considerations in s 60CC(3).
Taking into account the recommendations of the family consultant, I propose to specifically order that the parties have equal shared parental responsibility for the child. Such an order will need to be re-evaluated at the final hearing.
There is some merit in the mother’s application for an extension of the time that the child spends with her, but I do not consider that it would be appropriate for the child to transition to the mother’s primary care until the evidence has been heard and tested.
It is not of benefit to the child to alter the primary care arrangements that have been in place for an extended period where there is a risk that a further subsequent change may be warranted.
The mother seeks an order that the child attend upon a psychologist for counselling. The father opposes the application. The mother presents no evidence that would support such an order being made. To order that a child should undertake therapeutic intervention is a serious consideration that should only be given effect if the Court is satisfied that there is a proper basis to so order. The mother has not presented evidence to support the child aged 4 years and 7 months engaging in a therapeutic process that does not have a clear focus nor the consent of both parties.
I propose to extend the child’s time with the mother to Tuesday at 10.00 am on each alternate weekend.
Given the child’s age and the close and affectionate relationship that he has with each of the parties, there is likely to be significant benefit to him of extending the time he spends with the mother but remaining in the primary care of the father.
Each of the parties seek orders for the child to spend time with them over the Christmas period. I propose to make orders as sought by the mother namely, that the child will spend time with her from 10.00 am on 24 December 2018 to 12.00 pm on Christmas Day 2018 and with the father from Christmas Day at 12.00 pm until 26 December 2018 at 5.00 pm.
I propose to make orders with respect to arrangements for Mother’s Day and Father’s Day.
I do not propose to make any order in respect of the time that the parties spend with the child on his birthday.
I do not propose to make any order in respect of the Easter period.
The parties are agreed that they should both be at liberty to attend the child’s school or kindergarten for such events as the parents would ordinarily attend subject to the concern of the father that the parties not approach each other whilst they are both present at the child’s kindergarten.
CONCLUSION
I make orders as appear at the commencement of these reason.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 13 December 2018.
Associate:
Date: 13 December 2018