WALEYS & WALEYS

Case [2020] FCCA 841


FEDERAL CIRCUIT COURT OF AUSTRALIA

WALEYS & WALEYS [2020] FCCA 841
Catchwords:
FAMILY LAW – Parenting – interim hearing – consent orders in place – risk asserted – whether time to be supervised.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61C, 61DA, 65D, 65DAA, 69ZT
Federal Circuit Court Rules 2004 (Cth), r.15.09

Cases cited:

Re K (1994) 117 FLR 63
A & A & The Child Representative [1998] FamCA 25
M & M (1998) 166 CLR 69
Napier & Hepburn [2006] FamCA 1316
Goode & Goode [2006] FamCA 1346
Johnson & Page [2007] FamCA 1235
Taylor & Barker [2007] FamCA 1246
Sealey & Archer [2008] FamCAFC 142
Starr & Duggan [2009] FamCAFC 115
SS & AH [2010] FamCAFC 13
Marvel & Marvel [2010] FamCAFC 101
MRR & GR (2010) 240 CLR 461
Dieter & Dieter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
Keats & Keats [2016] FamCAFC 156
Grella & Jamieson [2017] FamCAFC 21
Bondelmonte & Bondelmonte (2017) 259 CLR 662

Applicant: MS WALEYS
Respondent: MR WALEYS
File Number: SYC 5841 of 2017
Judgment of: Judge Morley
Hearing date: 26 November 2019
Date of Last Submission: 26 November 2019
Delivered at: Sydney
Delivered on: 27 April 2020

REPRESENTATION

Counsel for the Applicant: Mr Roberts
Solicitors for the Applicant: Ms Reid
Counsel for the Respondent: Gordon & Barry Lawyers Pty Ltd
Solicitors for the Respondent: Bondi Beach Solicitors Pty Ltd

ORDERS

THE COURT ORDERS THAT PENDING FURTHER ORDER:

  1. The orders made on 25 September 2017 by Judge Henderson are suspended.

  2. That the Mother have sole parental responsibility for the child X born in 2008 (‘X’).

  3. That X live with his Mother.

  4. That X spend time with his Father on each alternate weekend for such period of time between 9:00am and 5:00pm on Saturday and for such period of time between 9:00am and 5:00pm on Sunday as can be arranged, and that such time to be supervised by such of Mr A, Mr B, or a commercial supervision agency agreed upon between the parents in writing, and failing such agreement, by C Family Services.

  5. That the costs of any commercial supervision in accordance with order (4) herein be paid for as follows:

    (a)Where there are no arrears of child support owing by the Father for the child, by the parents equally; or

    (b)Where there are arrears of child support owing by the Father for the child, at the Father’s sole expense.

  6. That the Father be restrained from allowing Ms D from being present during the time that X spends with his Father.

  7. That the Father be at liberty to contact X by telephone, Skype, or WhatsApp every Monday and Thursday at sometime between 6:00pm and 7:00pm, with the call to be initiated by the Father.

  8. Each of MS WALEYS born in 1964 and MR WALEYS born in 1974 and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X, a male, born in 2008, from…

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AGLC
WALEYS & WALEYS [2020] FCCA 841
Case
[2020] FCCA 841
Decision Date

CaseChat Overview and Summary

In *Waley's & Waley's*, heard by Judge Morley, the court was required to determine interim parenting orders concerning the child X. Consent orders were already in place, but a dispute arose regarding an asserted risk, necessitating a decision on whether X's time with his father should be supervised.

The central legal issues before the court were to assess the evidence presented to determine if there was an unacceptable risk to the child X if he had unsupervised contact with his father. This involved considering the potential for future harm, whether physical or emotional, and the connection between any alleged past conduct of the father and the safety of the child. The court also had to consider the appropriate interim arrangements for X's living arrangements, time spent with each parent, and communication, taking into account the best interests of the child.

Judge Morley applied the principle of "unacceptable risk" as the touchstone for the inquiry, drawing on established Family Court jurisprudence. The court acknowledged that at an interim hearing, with contested evidence, it may not be possible to make definitive findings of fact. Instead, the court considered whether the evidence, on the balance of probabilities, indicated a potential jeopardy to the child in the father's care. The court suspended the existing consent orders and made new interim orders. These included the mother having sole parental responsibility and X living with her. Time with the father was to be supervised, with specific arrangements for the cost of supervision depending on child support arrears. The father was also restrained from allowing a particular individual to be present during his time with X, and both parents were restrained from denigrating each other or discussing the proceedings in X's presence. Furthermore, the court made extensive orders regarding the appointment of an Independent Child's Lawyer, the preparation of a Single Court Expert's Report concerning the parents' mental health and X's welfare, and prohibitions on X leaving the Commonwealth of Australia.

Orders

Orders of the court

THE COURT ORDERS THAT PENDING FURTHER ORDER:

1.

The orders made on 25 September 2017 by Judge Henderson are suspended.

2.

That the Mother have sole parental responsibility for the child X born in 2008 (‘X’).

3.

That X live with his Mother.

4.

That X spend time with his Father on each alternate weekend for such period of time between 9:00am and 5:00pm on Saturday and for such period of time between 9:00am and 5:00pm on Sunday as can be arranged, and that such time to be supervised by such of Mr A, Mr B, or a commercial supervision agency agreed upon between the parents in writing, and failing such agreement, by C Family Services.

5.

That the costs of any commercial supervision in accordance with order (4) herein be paid for as follows:

(a) Where there are no arrears of child support owing by the Father for the child, by the parents equally; or

(b) Where there are arrears of child support owing by the Father for the child, at the Father’s sole expense.

6.

That the Father be restrained from allowing Ms D from being present during the time that X spends with his Father.

7.

That the Father be at liberty to contact X by telephone, Skype, or WhatsApp every Monday and Thursday at sometime between 6:00pm and 7:00pm, with the call to be initiated by the Father.

8.

Each of MS WALEYS born in 1964 and MR WALEYS born in 1974 and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X, a male, born in 2008, from the Commonwealth of Australia.

9.

X be and is hereby restrained from leaving the Commonwealth of Australia.

10.

It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for a period of two years.

11.

Upon expiration of the period referred to in Order (10) and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s names from the Watch List.

12.

Pursuant to section 68L of the Family Law Act 1975 (Cth), the interests of the child X are to be independently represented by an Independent Child’s Lawyer in these proceedings.

13.

The Legal Aid Commission of NSW is requested to make arrangements as soon as practicable to facilitate the above order.

14.

Each of the parties shall, within seven days of any request by the Independent Child’s Lawyer:

(a) Complete and provide to the Independent Child’s Lawyer a parenting questionnaire and/or such other information as may be requested.

(b) Provide to the Independent Child’s Lawyer copies of all any documents filed by them in these proceedings together with:

(i) Any medical reports they hold relating to the child;

(ii) Any psychological or school counsellor or pre-school intervention reports they hold relating to the child;

(iii) Any school reports they hold for the child;

(iv) Any other documents they hold and wish the Independent Child’s Lawyer to see and/or that they intend to seek to tender to the Court or rely upon in these proceedings.

15.

Each of the parties shall present X to such places and at such times and dates as are requested and/or advised by the Independent Child’s Lawyer for the purpose of the Independent Child’s Lawyer meeting with the child.

16.

Leave is granted to the Independent Children’s Lawyer to inspect the Court file and any material produced to the Court pursuant to section 69ZW and/or in response to subpoena.

17.

Leave is granted to the Independent Child’s Lawyer to issue such further subpoena as they may consider relevant, appropriate, or useful, and such leave expressly authorises and allows the issue of more than five subpoenas by the Independent Child’s Lawyer.

18.

The appointment of the Independent Child’s Lawyer is made on the following bases:

(a) As per the Child Dispute Conference Memorandum;

(b) There is manifest continuing hostility between the parties to the proceedings;

(c) There are issues of anti-social tendencies on the part of a parent or parents or other persons with whom X comes regularly into contact;

(d) There are allegations of significant mental illness or personality disorder in relation to either party or X, or to other persons having significant contact with the child, the symptomology of which condition is alleged to impact negatively upon that parent’s capacity to care or otherwise negatively affect X;

(e) There are issues of drug and/or alcohol abuse in relation to either party or other persons having significant contact with X which are alleged to impact negatively upon that parent’s capacity to care or otherwise negatively affect X;

(f) X is of an age and apparent maturity whereby the International Convention on the Rights of the Child would require that he have a voice in the proceedings and with respect to decisions that will affect his future; and

(g) There are allegations of Family Violence and/or abuse suggested to impact upon X’s best interests.

19.

Within 28 days of the appointment of the Independent Child’s Lawyer, the Mother is to nominate in writing three psychiatrists for the purpose of the appointment of a Single Court Expert, to prepare a Single Court Expert’s Report addressing matters relevant to:

(a) The Mother and Father’s mental health, and other aspects of her/his character, personality, and presentation;

(b) The welfare of X; and

(c) The matters relevant under section 60CC of the Family Law Act 1975 (Cth).

20.

Within 14 days of the Mother’s compliance with order (19) herein, the Father is to elect one of the nominated psychiatrists and pursuant to Division 15.2 of the Federal Circuit Court Rules 2004 (Cth), that nominated psychiatrist to be appointed as the Single Court Expert to prepare the Single Court Expert’s Report addressing the issues set out in orders (19)(a) to (19)(c) herein.

21.

Within 56 days of the Independent Child’s Lawyer being appointed, the Independent Child’s Lawyer shall do all acts and things to prepare a letter of instruction to the Single Court Expert seeking the preparation of the Single Court Expert’s Report.

22.

The letter of instruction to the Single Court Expert to be prepared pursuant to order (21) herein shall include:

(a) The affidavits filed by the Parties in these proceedings; and

(b) Such other material as the Independent Child’s Lawyer considers relevant including from any subpoenaed material.

23.

The Mother and Father are directed to:

(a) Attend all appointments made with the Single Court Expert;

(b) Ensure the attendance of X upon the Single Court Expert at all times nominated by the Single Court Expert when X is in that parent's care;

(c) Comply with all reasonable directions and requests made by the Single Court Expert to assist her/him in the preparation of his/her Single Court Expert’s Report including arranging for the attendance of any other person as requested.

24.

The Mother and the Father shall each pay one half of the cost of the Single Court Expert as and when the payment falls due.

25.

Leave be granted to the Independent Child’s Lawyer to have photocopy access to all material produced under subpoena for the purpose of providing the same to the Single Court Expert and that the fees in respect of such photocopying be waived.

26.

Leave be granted to the parties and the Independent Child’s Lawyer to provide copies of all Applications, Responses, and affidavits filed by the parties to the Single Court Expert as well as all orders made with respect to parenting matters and the Child Dispute Conference Memorandum.

27.

The Father attend a Parenting Order Program course offered by Relationships Australia called ‘Taking Responsibility’, or such other parenting program offered by E Counsellors, in Sydney or Brisbane as soon possible and upon completion of the course provide to the Mother and the Independent Child’s Lawyer the certificate confirming his attendance.

28.

That each of the parents is restrained from denigrating the other parent, any member of the other parent’s family, or any member of the other parent’s household in the presence or hearing of X.

29.

That each of the parents is restrained from allowing X to remain in the presence of or within his hearing of any other person who is denigrating the other parent, any member of the other parent’s family, or any member of the other’s parent’s household.

30.

That each of the parents are restrained from discussing these proceedings with X, from discussing these proceedings within his hearing, or allowing X to remain within the hearing of any other person who is discussing these proceedings.

31.

That the Father is restrained from using marijuana in any of its forms for a period of seven days before he spends time with X, or at any time whilst X is in his care.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I further note the comments made by the Full Court of the Family Court of Australia in the case A & A:[41][3.23] The task which his Honour was required to perform was to determine whether the evidence was such as to establish that there would be an unacceptable risk to the children if they were to have contact or supervised contact with the husband. The basis of that is that if there were an apprehension that the husband was the perpetrator of this violent assault that, together with the profile of such an assailant referred to in Dr Waters' evidence, to which we will refer later, may cause the Court to conclude that future contact by the father to these young children, at least unless strictly supervised, will carry with it a risk that he may act in a similarly irrational and violent way towards them. This is aside altogether from the question of its effect upon the wife. The concentration here is upon the welfare and safety of the children. In reaching a conclusion on that issue, it is necessary for the Court to form some opinion about the connection between the assault and the husband. It would not be necessary in this exercise to reach a positive conclusion that he was the assailant. On the other hand, if the Court reached a comfortable conclusion that the husband was not the assailant, that would be likely to have a profound effect upon the approach to the question of contact.[3.24] In cases of this sort often it is not possible for the Court to form a positive view at one end or the other end of this scale of persuasion and it is not necessary for it to do so: see the discussion in N and S (1996) FLC 92-655. The term identified by the High Court in M and M of "unacceptable risk" provides the touchstone for such an enquiry. Usually they are sexual abuse or similar cases, but this approach includes cases of the type identified here which involve the assessment of the risk of future physical and/or emotional harm: see M and M, supra, CLR at 77 referred to above.[3.25] Here the primary question which his Honour should have addressed was, looking at the whole of the evidence, whether contact (or at least contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantify in any precise way, it may place those children in circumstances of potential jeopardy in the future in their father's care.[42][41] A & A & The Child Representative [1998] FamCA 25 (Fogarty, Kay, and Brown JJ).[42] A & A & The Child Representative [1998] FamCA 25, [3.23]-[3.25] (emphasis added). Where there is contested evidence in an interim Hearing, the Court is not always able to make a finding. In cases of contested evidence, the Court is mindful to consider whether the evidence is sufficiently corroborated, and whether this corroboration is existent on the balance of the evidence before the Court, or on the balance of one party’s evidence in support of their case. Either case may enable the Court to make a finding.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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