Weekes and Pitcher

[2016] FCCA 1435

FEDERAL CIRCUIT COURT OF AUSTRALIA

WEEKES & PITCHER [2016] FCCA 1435

Catchwords:
FAMILY LAW – Parenting – application to change interim parenting arrangements prior to a final hearing – application dismissed but matter given a priority hearing date.

Legislation:
Family Law Act 1975 (Cth), s.60CC

Cases cited:

Goode & Goode (2006) FLC 92-755

Applicant: MR WEEKES

Respondent: MS PITCHER

File Number: PAC 5871 of 2014

Judgment of: Judge Terry

Hearing date: 4 April 2016

Date of Last Submission: 4 April 2016

Delivered at: Newcastle

Delivered on: 14 June 2016

REPRESENTATION

Solicitor Advocate for the Applicant: Ms Kassab

Solicitors for the Applicant: GenLaw Pty Ltd

Solicitor Advocate for the Respondent: Ms Blackman

Solicitors for the Respondent: Legal Aid NSW

ORDERS

1. The application in a case filed on 11 February 2016 is dismissed.

2. This matter is adjourned to 10.00am on 7 & 8 July 2016 for final hearing.

3. Both parties are to file and serve one trial affidavit of themselves and one trial affidavit of any witnesses they intend to call at the hearing by 4.00 pm on 23 June 2016 NOTING THAT the parties and their witnesses may only rely on one affidavit each and the Court will strike out any paragraph in those trial affidavits which seeks to incorporate into that affidavit by reference to paragraph numbers, annexing a copy of previous affidavits or any other means any material contained in earlier affidavits of that deponent.

4. Unless eligible for an exemption, the applicant is to pay to the Family Law Courts at Newcastle the setting down for hearing fee of $590.00 by 1 July 2016.

5. The applicant is also required to pay not less than four (4) working days prior to the hearing date the daily hearing fee of $590.00 for each additional hearing day after the first day of hearing.

6. Each party file and serve an outline of case document by 4.00pm on 4 July 2016 setting out:

   (a)a precise minute of order sought;

   (b)a list of documents to be read in their case;

   (c)a chronology;

   (d)a list of issues for determination; and

   (e)a brief summary of argument.

7. The mother’s solicitor is to promptly notify the family consultant of the hearing dates and that they will be required to give evidence on the second day of hearing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

PAC 5871 of 2014

MR WEEKES

Applicant

And

MS PITCHER

Respondent

REASONS FOR JUDGMENT

Introduction

1. The respondent mother Ms Pitcher has filed an application in a case seeking to vary interim parenting orders made on 15 December 2014, the first return date of the matter in the Federal Circuit Court at Parramatta.

2. The orders provide for Z born on (omitted) 2012 to live with her father from 5pm Thursday until 5pm Saturday each week and with her mother from 5pm Saturday to 5pm Thursday each week.

3. After these orders were made the matter was transferred to the Federal Circuit Court at Newcastle.

4. In due course a Family Report was prepared and it was released to the parties on 13 November 2015. The report writer recommended that the child live with the mother and spend time with the father as age appropriate and mindful of the risk of her being exposed to further family violence. 

5. The report writer said that if the court determined that the child was at risk of being exposed to family violence in the father’s care it might decide that the mother’s proposal that child spend time with the father from 9.00am to 5.00pm each Saturday and from 3.00pm to 6.00pm each alternate Wednesday until she was four years old and that upon the child commencing school overnight time be introduced,[1] was appropriate.

   [1] There is a problem with this recommendation because the child has a (omitted) birthday and will not    commence school until she is 5 ½.

6. She said if the court did not consider that the father posed a risk of harm to Z it might decide that she should spend time with him in accordance with the current interim orders. 

7. On 11 February 2016 the mother filed an application in a case seeking to decrease Z’s time with the father to day time only, being from 9.00am to 5.00pm each Saturday and from 3.00pm to 6.00pm each alternate Tuesday.

8. The father filed a response on 31 March 2016. He proposed that the existing interim orders remain in place until a final hearing, save that he proposed some additional orders about special days and an alteration to the changeover arrangements.

9. The matter was listed for interim hearing on 4 April 2016. I indicated to the parties that as an alternative to determining the interim application I could give the matter a priority hearing date on 7 & 8 July 2016. The mother’s solicitor said that the mother still wished to press her interim application and the issue of whether the father’s time with Z should be reduced was argued.

Background

1. The mother and father are 25 and 26 respectively. They commenced a relationship in December 2009 and separated in July 2014.

2. Z, born on (omitted) 2012, is their only child but the mother has a daughter Y born on (omitted) 2009 who lives with her.

3. The parties have consistently given very different accounts of what happened during their relationship.

4. It is the father’s case that during the relationship the mother drank too much and drank every day and that this led to the relationship breakdown.

5. It is the mother’s case that during the relationship the father was prone to temper outbursts and yelling and that as time passed he became more controlling and tried to stop her seeing her friends. She also alleged that the father sexually assaulted her shortly before the relationship ended.

6. On the day the parties separated the mother left with Y and Z remained with the father. The father said that this was by agreement. The mother said that it was because she was too frightened to try and take Z in the face of the father’s opposition. She said that although she left Z with the father she went around after work every evening to see her.

7. On 20 November 2014 there was a dreadful incident between the parties. The mother tried to leave with Z in a car. The father tried to stop her and the mother bit his hand. The father managed to wrestle Z away from the mother and the mother left his property.

8. After this incident the father would not allow the mother to see Z and on 5 December 2014 she filed an application in the Federal Circuit Court in Parramatta.

9. The application was made returnable on 15 December 2014 and on that day the Judge made the orders referred to earlier. He was in a very difficult position as is often the case at an early stage due to his inability to make findings about the allegations.

10. The mother did not apply to change the orders immediately after the report was released but she did so on 11 February 2016. In the affidavit she filed in support of her application she alleged that certain evidence produced by the police had come [her] way” which established that Z might be at risk of harm if she spent overnight time with the father. She alleged that the police records contained some admissions by the father of having been violent to her.

11. The mother also said that in early 2016 she had discovered a video on the Facebook page of a (omitted) group to which the father and her current partner both belonged which showed the father sitting on the gutter on New Year’s Eve 2015 with Z on his lap watching a car doing a burnout.

12. The mother also alleged that the father was not properly attending to Z’s toileting needs and that from things Z was saying when in her home it appeared that the father was trying to undermine her relationship and that of her partner Mr S with Z. She also alleged that sometimes Z did not want to go to the father at changeovers.

13. The father alleged that there was mutual violence between him and the mother during their relationship.  He vehemently denied ever sexually assaulting the mother and said that the Judge who made the orders on 15 December 2014 was aware of the allegations of family violence and that the mother had not brought forward anything new.

14. The father said that the incident where the car did a burnout unfolded unexpectedly and that he left the area with Z immediately the car pulled up (and the filming stopped).

15. The father denied that he did not attend to Z’s toileting needs appropriately or denigrated the mother and said that Z sometimes did not want to return to her mother. He alleged that the mother was denigrating him on Facebook.

The pathway in Goode & Goode

1. In Goode & Goode the Full Court set out a pathway which it recommended that the court follow in determining interim applications.[2] The pathway requires the court to identify the competing proposals, which I have done, and then to identify matters which are in dispute and matters which are not in dispute.

   [2] Goode & Goode (2006) FLC 92-755

2. The matters in dispute are significant.

3. There is a dispute about the extent of family violence in the relationship and about whether it was mutual partner violence or controlling and coercive violence perpetrated by the father. There is a dispute about the whether the mother drank excessively, and about whether Z is unsettled in the current arrangement or is being inappropriately parented by the father in terms of toileting, taking her to an illegal drag race at night or for any other reason. There is also a dispute about whether either party is denigrating the other to Z.

4. I cannot determine where the truth lies about these allegations.

5. In the family report there is reference to the fact that although the father denied the mother’s allegations of violence and the allegation that he sexually assaulted her, in a police interview close to the date of separation he made some admissions about an act of violence, and it was to this that the mother referred me during the interim hearing.

6. However while this casts into doubt the father’s general denials of violence I cannot at this time make finding about the nature and extent of violence in the relationship nor can I make findings about more wide ranging issues such as whether there is a risk of Z being exposed to family violence or any violence in the father’s care in the future, or of her being subjected to violence, or about whether the father’s denials (if false) and attitude to violence make him a poor role model for the child and if so how that impacts on the issue of the amount of time Z should spend with him in the future.

7. The father’s presence with Z during the incident captured on video could demonstrate at the very least some immaturity and lack of judgment by the father but the father put a version of events which will need to be tested and without further inquiry into the matter I cannot make a finding that this incident is sufficient to justify removal of the child’s overnight time with the father.

8. I cannot make a finding about the allegations that the current arrangements are interfering with Z’s sleep nor about the allegations and cross-allegations about Z being reluctant to go to a parent and about denigration.

9. The matters not in dispute include the fact that between separation and December 2014 the child lived predominantly with the father and spent time with the mother and that from December 2014 to the current time the child has lived in a 5 night/2 night arrangement with her parents.

The child’s best interests

1. In Goode & Goode[3] the Full Court said that the Court in considering interim parenting applications should have regard to the matters in s. 60CC(2) & (3) of the Family Law Act which assist the court to determine the child’s best interests but it is noted that making findings about many of the s. 60CC (2) and (3) matters may be difficult given the limited evidence which is available and the inability of the court to make findings about issues in dispute.

   [3] Goode & Goode (supra)

2. At this interim stage it is impossible for me to make findings about matters such as whether and to what extent the child has been exposed to or subjected to abuse, neglect or family violence, whether there is a risk of this occurring in the future, the relevance of the fact that the child has a close in age sibling in the mother’s household, the likely effect of any change in the child’s circumstances, the respective parenting capacities of the parties, the way in which any findings about family violence will impact on the decision about parenting arrangements for the child and whether denigration of the other parent is occurring in either parents household.

3. In my view the most important piece of evidence at this stage is that the family report writer did not see any sign that the child was being adversely impacted upon by the current arrangements and did not see any difference in her reaction to each of her parents. She said as follows:

   Overall Z impressed as a happy and well-adjusted child who is developing within normal parameters.

   Z freely offered that sometimes she lives with her mother and sometimes with her father. She did not express any anxiety regarding periods of separation from either parent.

4. I am not satisfied that there is sufficient in the mother’s material to justify me disturbing an arrangement which has been in place for eighteen months when the issues can all very shortly be tested and findings made.

5. I am not satisfied that the violence allegations or the incident depicted in the video raises such concern that I should immediately remove the father’s overnight time with the child when there is no objective evidence to suggest that the current arrangement is causing problems for the child and when the matter can proceed to final hearing in the near future.

6. I indicated at the interim hearing on 4 April 2016 that I would make trial directions so that this matter could be heard on 7 & 8 July 2016 and these directions will now be made.

I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 14 June 2016