WEISS & BEATTY
[2019] FCCA 1786
•28 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WEISS & BEATTY | [2019] FCCA 1786 |
| Catchwords: FAMILY LAW – Interim parenting – allegations of family violence – parental responsibility – children’s best interest – children to live with mother and spend time with father. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60B, 60CC, 61DA, 60CG, 65DAA |
| Cases cited: Banks & Banks [2015] FamCAFC 36 Goode v Goode (2007) 36 Fam LR 422 Howard & Howard [2016] FamCA 455 Keats & Keats [2016] FamCAFC 156 Mazorski & Albright [2007] FamCA 520 Salah & Salah [2016] FamCAFC 100 Slater & Light [2011] FamCAFC 1 |
| Applicant: | MS WEISS |
| Respondent: | MR BEATTY |
| File Number: | PAC 4533 of 2018 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 22 February 2019 |
| Date of Last Submission: | 22 February 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 28 June 2019 |
REPRESENTATION
| Appearing for the Applicant: | Ms Morrison |
| Solicitors for the Applicant: | Mahony Family Lawyers |
| Appearing for the Respondent: | Ms Bromley |
| Solicitors for the Respondent: | Legal Aid New South Wales |
ORDERS
The parents shall have equal shared parental responsibility for the children [X] born … 2012 and [Y] born … 2014.
The children shall live with the mother.
Commencing on the first Friday following the making of these orders, the children shall spend time with the father:
(a)from after school or 3pm on Friday to before school or 9am on Wednesday and each alternate week thereafter;
(b)On Father’s Day from 10am until 5pm; and
(c)On Christmas Day from 1pm until 6pm.
Changeover shall occur at the children’s school/day care or otherwise by the parents meeting at the taxi rank behind Location B in Suburb G.
The father is restrained by injunction from physically disciplining or chastising the children or causing, permitting or allowing any other person to do so.
The parents are restrained by injunction from denigrating the other parent or members of the other parent’s family to or in the presence or hearing of the children and shall immediately remove the children from the vicinity of any other person doing so.
The parents shall communicate in relation to all matters concerning the children by text message, save for in an emergency, where they shall communicate via telephone call.
The parents shall at all times keep one another informed of their current contact telephone number and advise the other parent of a change in such details within 24 hours of such change occurring.
In the event of either child suffering a medical emergency requiring medical attention whilst in the care of either parent:
(a)The other parent is to be notified as soon as practicable;
(b)The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable; and
(c)The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and information retained by them upon request.
Each of Ms Weiss and Mr Beatty and their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of [X] born … 2012 and/or [Y] born … 2014 from the Commonwealth of Australia.
[X] born … 2012 and [Y] born … 2014 be and are hereby restrained from leaving the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List for a period of two years or pending further order.
Upon expiration of the period referred to in Order 12 and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the children’s names from the Watch List.
List the matter for directions at 2.15pm on 20 September 2019.
IT IS NOTED that publication of this judgment under the pseudonym Weiss & Beatty is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4533 of 2018
| MS WEISS |
Applicant
And
| MR BEATTY |
Respondent
REASONS FOR JUDGMENT
Introduction
These are Reasons for Judgment with respect to interim parenting orders sought by the applicant mother, Ms Weiss relating to the children [X] born … 2012 and [Y] born … 2014. The father of the children is the respondent, Mr Weiss.
The issue to be determined by the Court at the interim hearing is with whom the children are to live, noting that both parties seek that the children live with them, and parental responsibility with the father seeking equal shared parental responsibility and the mother seeking sole parental responsibility.
The Law
The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in s60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child.
The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the parents.
It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.
[2] Mazorski & Albright[2007] FamCA 520 at [26]
In addition, 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 interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[3] The Court may include[4] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[3] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]
[4] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[5]
[5] s61DA(3)
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests and reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[6]
[6] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[7] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.
[7] (2007) 36 Fam LR 422, (2006) FLC 93-286
As stated by the Full Court in Keats & Keats, in respect of the conduct of interim proceedings:[8]
…the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.
[8] [2016] FamCAFC 156 at [9]
A cautious or conservative approach is at times appropriate. Ultimately, any order must be one which the Court holds is in the children’s best interest.
Documents relied on
The applicant mother relies on the following documents at interim hearing:
a)Initiating Application filed 24 September 2018;
b)Notice of Risk filed 24 September 2018;
c)Affidavit of the mother filed 31 January 2019;
d)Affidavit of the maternal grandmother, Ms D filed 31 January 2019;
e)Affidavit of the mother sworn and filed in Court on 22 February 2019; and
f)Child Inclusive Conference Memorandum dated 31 January 2019.
The respondent father relies on the following documents at interim hearing:
a)Response filed 26 October 2018;
b)Notice of Risk filed 26 October 2018;
c)Affidavit of the father filed 26 October 2018;
d)Child Inclusive Conference Memorandum dated 31 January 2019.
Both parties also relied on their filed case outlines and a number of documents tendered in their respective cases being:
a)Exhibit 1 – Tab M5.1, M5.4 – Sleeve 5 – material produced under subpoena from School E;
b)Exhibit 2 – Tabs M10 and M10.1 – Sleeve 10 - material produced by Court F;
c)Exhibit 3 – Tabs M3.1, F1, F2 and F3 – material produced under subpoena from New South Wales Police Force; and
d)Exhibit 4 – collection of photographs posted on Facebook in February 2019.
Agreed Facts
There are few agreed facts between the parties[9]. Indeed the majority of the facts are in dispute, including periods of cohabitation, the care of the children, parental involvement and capacity and the level of family violence which existed during the parties’ relationship and to which the parents might have been exposed as children themselves.
[9] And indeed there appear to be certain inconsistencies in the evidence the mother relies upon in her case
The father was born … 1994.
The mother was born … 1995.
The parties commenced a relationship on 2009 when the mother was 13 years of age and the father was 15 years of age.
The parties’ relationship involved several periods of separation. One of the periods of separation was in 2012.
The child [X] was born … 2012. The parties reconciled sometime in 2013.
The child [Y] was born … 2014.
On 24 June 2016 a final Apprehended Domestic Violence Order was made for the protection of the mother from the father with the standard conditions.
The parties separated on a final basis in December 2017.
The children have remained in the father’s care since final separation with the children spending time with the mother initially during day time only which progressed to overnight time in accordance with a verbal agreement between the parties once the mother found suitable accommodation.
The parties attended Family Dispute Resolution on 30 April 2018.
Evidence of the Mother
The mother maintains that she was the primary carer for the children during the parties’ relationship albeit with significant assistance provided by the maternal grandmother.
The mother alleges that the father is a violent man who has perpetrated significant family violence towards her and the children and that he is also violent towards the paternal family. Such allegations include:
a)Physical and verbal violence by the father towards the mother including choking her in front of the children, punching, slapping, dragging her across the floor by her arm and her hair, holding her to the wall[10];
b)Smacking and children across the face and the back of the head and being verbally abusive towards them including telling [X] that “I’m going to fucking flog you, you bitch”;
c)The mother and children witnessing the father perpetrate physical violence on the paternal family including punching his brothers, chasing the paternal grandfather’s ex-partner with a machete, pushing his brother’s partner and threatening to kill her, kicking the paternal grandmother’s glass window and punching holes in walls and doors[11];
d)The mother waking to the father strangling her in bed;
e)Threats to kill the mother; and
f)The children disclosing to the mother post separation that the father is physically abusive towards them. The mother has observed different scratches and bruises on the children after they return to her care from the father. [12]
[10] Paragraph 14 of the mother’s affidavit filed 31 January 2019
[11] Paragraphs 24 – 28 of the mother’s Affidavit filed 31 January 2019
[12] Paragraphs 31 – 44 of the mother’s Affidavit filed 31 January 2019
The mother says that she left the family home to escape the father’s violence claiming that he became so controlling of her leading up to the separation that he would hide her bank card and identification and take her phone from her. The mother alleges that the father would yell at her constantly and accuse her of cheating and called her a “slut” on many occasions in the presence of the children.
Following separation the mother says the father’s control over her continued as he would not allow her to spend time with the children unless it was in the presence of the father.
From 1 March 2018 the children have spent time with the mother from Thursday afternoon until Sunday morning each week with changeover occurring by the mother collecting the children from school on Thursday and the father collecting the children from the mother’s home at the conclusion of time.
On 19 July 2018 the mother says that the father reduced her time with the children with time commencing on Friday instead of Thursday. The mother says this was another attempt by the father to control her.
The mother asserts that the father interrogates the children when he collects them from her home at the conclusion of her time by asking them questions such as “What did you do at mummy’s, who was there, don’t lie to me”.
The mother alleges that the father did not allow her to speak with [X] on her birthday in 2018.
Evidence of the Father
The father says that he provided a significant amount of care to the children during the parties’ relationship.
The father says that the mother would slap him and punch him.
The father maintains that the children remained living with him despite the mother finding suitable accommodation because the parties agreed that this was best for the children as the mother worked Monday to Friday and the father was able to drive [X] to and from school each day.
The father’s evidence is that the children have an established routine when living with him. They wake up at approximately 6.30am, they have breakfast, the father packs their lunches and he drives [X] to school and [Y] to day care. During the day when the children are at school and day care the father cleans the home, does the shopping and attends to other household chores such as washing. The father collects the children from school/day care, cooks the children dinner, bathes the children and readies them for bed by approximately 7.30pm.
The father says he is concerned with the company that the mother keeps around the children. He says that [X] has reported that one of the mother’s friends was “lying on the floor with bubbles coming out of her mouth”. The father confronted the mother about this who initially said that the friend was diabetic but then reported that it was a drug overdose.
The father maintains that the children are developing well in his care and that he has not had any departmental involvement in the care of the children.
Child Inclusive Conference Memorandum
The parties and the children attended upon a Family Consultant for a Child Inclusive Conference Memorandum on 29 January 2019. The Memorandum was released to the parties on 31 January 2019.
The parties did not reach any agreement at the conference with respect to the interim parenting arrangements for the children.
Each of the parties reported issues of family violence to the Family Consultant.
Each of the parties reported being concerned about the others’ care and wellbeing of the children. The mother raised concerns about the father’s physical chastisement of the children saying that the father would “drag the kids by the arms or smack them on the back of the head”. She was concerned with the scratches and bruises that were on the children’s bodies when they came into her care.
The father on the other hand raised concerns about the mother’s behaviour having been raised in a family where violence occurred frequently and that the mother had been violent towards her family members in the presence of the children. He also raised that the mother pressures the children about what to say and that the mother’s current partner had hit both the children.
The mother does not raise any concerns about the father’s use of illicit substances or alcohol but says that she does not know if he does drink or take drugs.
The father raised some concern about the mothers drinking stating that “she goes out clubbing and drinking”. He reported that family members had reported that the mother takes drugs but that he was unsure what drugs she takes.
The Family Consultant reported [X] as being a happy and talkative child. She reported the mother as being “a happy mum”. She reported having a loving relationship with both of her parents and said that she would like to live with her mum and see her dad “maybe every Friday” but that she would like to see her dad every day.
[Y] is only four years of age. He was initially upset to leave his father to be observed by the Family Consultant however he did so with his sister’s encouragement. He drew a picture of his family including both the mother and father, his sister and himself. He said that he lives with both his mum and his dad.
The mother engaged well with both the children in the observation session and answered their questions appropriately. [Y] was reluctant for the mother to leave the observation room however he did settle with the father after the mother left. The father commented to the mother in the observation room that she was babying [Y] and told her to put him down when [Y] was visibly upset at being separated from the mother.
The Family Consultant says that should the Court determine that the children are not at risk spending time with the father then Mr Beatty’s proposal that the children spend equal time with the parents appears to be sensible.
Relevant Considerations
Consideration of relevant matters does not mean discussion. [13] Interim proceedings by their very nature, entail a curtailed examination of the evidence, often without any ability by the Court to make findings of fact. It is a matter of weighing up the various allegations and assertions, and making a decision based on the untested evidence as to what is in the children’s best interest.
[13] Banks & Banks [2015] FamCAFC 36 at [39]; Howard & Howard [2016] FamCA 455 at [45] not disturbed on appeal
The protection of the children from harm is an important matter for the Court’s consideration when weighing up the primary considerations. Indeed, the Court must prioritise the need to protect the children from harm[14] as against the benefit of the children having a meaningful relationship with the parents.
[14] from being subjected to, or exposed to, abuse, neglect or family violence
Allegations of Family Violence
The parties each allege domestic violence against the other and to varying degrees against the children. The allegations in part are set out earlier in these Reasons.
On 24 June 2016, the father was found guilty but without proceeding to conviction, was directed to enter into a good behaviour bond for a period of 12 months, in respect of an offence of common assault. The facts sheet in respect of the offence reads as follows[15]:
The Victim became very upset and angry and began to yell at the Accused, saying “Your (sic) a liar and a slut. I have been to New Zealand for my dad and you have the indecency to lie to my face.” The Accused and Victim then began to yell over the top of each other and were about 1 meter apart. The argument became more and more heated with both parties yelling at each other. The Victim felt very upset and betrayed by what the Accused had done and became very frustrated as she believed he was lying to her. The Accused was getting up in the face of the victim while he was yelling and using quick hand gestures. The accused got face to face with the Victim several times as he was yelling and each time he got close to her the Victim thought more and more that he was going to hit her. As a result of this the Victim used her right hand and slapped the left side of the Accused’s face. The accused retaliated by pushing the victim in the collarbone area with one hand. This lasted for about 1 second.
[15] Exhibit 2
Present during this altercation was the mother’s sister, and it appears [Y]. There was then a further argument between the father, the mother, the maternal grandmother and the mother’s sister. The father left the premises where he and the mother lived, together with the children. Also living at those premises at the time was the maternal grandmother and the mother’s sister. The parties reconciled after this incident.
As noted earlier in these Reasons, the parties separated in December 2017. The date of separation was either the 19th or the 20th of December, the parties are in disagreement about that. The mother alleges that she awoke to the father strangling her. Later that day, the mother alleges that the father pushed her out the door and that he stopped her from taking the children.
On 21 December 2017, the mother attended at Suburb G Police Station. The notes obtained under subpoena from New South Wales Police read as follows:
One (sic) the 21st December 2017, the VIC entered Suburb G Police Station to ask if he AVO against the POI was still current. Police conducted a search of Court notices and found that on the 23rd June 2017, the AVO expired. The VIC stated to police that she was advised rom the department of housing that in order for her to be eligible for department of housing emergency housing she needed to have a current AVO. Police asked the VIC if she held any fears for herself and her children and she stated that their (sic) were no fears or intimidation, but she needed a current AVO for Department of Housing so she could be pushed up the list for housing. Police went and sort (sic) advice from Station supervisor who advised that there was insufficient evidence to apply for an AVO as there was no concerns. Police ushered the VIC into the front interview room to gather more evidence and explain the situation of not applying for an AVO and the VIC changed her story and stated that the POI yells at her. Police asked where there any fears and the VIC stated no, “but he yells”. Police explained that this does not cover the requirements for an AVO and the VIC changed her story again. The VIC stated that the POI abuses her via text message and Police asked to see the messages. The VIC showed police the messages and it showed that both the VIC and POI were abusing each other. After police looked more deeply into the messages it showed that the POI is attempting to fix the relationship by wanted to seek counselling. When the POI asked about going to counselling the VIC replied “fuck off” in a message on the 21s December 2017, the VIC stated to the POI that she would be seeing the department of housing to move out and the VIC asked her to move out. There were no concerns for the welfare of the VIC or POI or the children.
It is of note that there is no evidence of the mother making a complaint to the police about the father strangling her or pushing her out the door in the manner she alleges in her affidavit as having occurred at separation, in circumstances where there is evidence of a different complaint and of the mother reportedly stating that she held no fears or that there was intimidation as at 21 December 2017. There may of course, be a perfectly plausible explanation for this, but at present there is none offered by the mother. It may also be that the police records are not an accurate account of what occurred, but there is at present no evidence to that effect.
There is further evidence of a complaint made by the mother to the police on 10 April 2018. The complaint was that the mother had received a number of text messages on 24 March 2018 from the father and that he has driven past her place of work on a number of occasions in an attempt to harass her. The police records indicate that:
The victim informed the Police that she was advised by mediators that if she wishes to have custody of her children she must obtain a (sic) Apprehended Domestic Violence Order from Police against POI. The victim did not wish to provide Police with any statements and did not wish to attend Court in relation to this matter. The victim did not disclose any assaults, threats, intimidations to Police. Police did not sight any injuries upon the victim and the victim did not disclose any injuries to Police. It appeared to Police that the victim was not genuinely fearful for her safety and was attempting to obtain a (sic) Apprehended Domestic Violence Order to further her Custody issues with the Family Law Courts proceedings.
Once again, it may be that the Police records are inaccurate, and the Court notes that they contain a number of opinions which are completely untested.
Before the Court are case notes from the school counsellor at [X]’s school, dated 27 June 2018 and 3 July 2018 respectively[16]. The earlier notes relate to a conversation between the counsellor and [X]’s class teacher, where the mother’s child protection concerns were discussed. The notes further read:
Class Teacher reported that yesterday [X] had what looked to be a bruise on the side of her face. Teacher was concerned and brought [X] to principals (sic) office. Teacher talked to dad & dad confirmed it was face paint from State of Origin the night before. The teacher was able to wipe off the paint with a wipe.
[16] Exhibit 1
Furthermore, according to the notes dated 27 June 2018[17], [X] has reportedly told her class that her dad hits her across the face, and that he used to hit her mum. This was then apparently confirmed by [X]’s cousin, who is the daughter of the mother’s sister[18]. It is entirely unclear from the notes as to when these things were said to have happened. Given that the parents had been separated since December 2017, it is further entirely unclear how and why another child who does not live with the father and the children might be saying such things. To speculate about such matters is entirely unacceptable. [X] also apparently reported that her mum had smashed her dad’s car windows, that the police came and that her mum was taken away. This is likely a reference to an event which occurred on 7 June 2018, which resulted in a Provisional Apprehended Domestic Violence Order being taken out by the police for the protection of the father against the mother and the mother being charged with malicious damage.[19]
[17] Exhibit 1
[18] Exhibit 1 notes from 3 July 2018 refer to the cousin as [H], the daughter of mum’s sister Ms J
[19] Exhibit 3
The further counselling case note dated 3 July 2018[20] reads as follows:
[20] Exhibit 1
…
[X] reported that she lives with her mum & dad in different houses. She said that dad gets angry with mum when boys stay over. [X] reports that dad has girls stay over so it’s not fair that he gets angry at mum.
…
[X] recalled when she was younger that dad would slap mum. She reported once when mum was looking dad hit her, mum had a knife & dad took the knife away from her & cut his hand. [X] reports that she was afraid her dad would die but she didn’t cry.
[X] reports that she sometimes goes outside to check there if her mum is safe. She reports that she likes to protect her mum.
…
The mother’s case raises concerns about the father’s alleged inappropriate and excessive discipline of the children, his violent conduct towards the mother prior to separation and the stability of care to the children in the father’s household. It was submitted on behalf of the mother that the orders she seeks ameliorate those risks while still providing for the children to have a significant and meaningful relationship with both parents.
The father’s case raises concerns about the mother’s capacity and willingness to foster a relationship between the father and the children. It was submitted that the Court could not be satisfied that the father poses an unacceptable risk of harm to the children. It was further submitted on behalf of the father that the orders he seeks will see the children spending significant and substantial time with the mother and that they will limit conflict between the parents. It was submitted on behalf of the father that the Court should draw an adverse inference from the fact that the mother did not commence these proceedings until nine months after separation, and that such inference should be that she did not consider the children to be at risk of harm in the father’s care. Such an inference is simply not open to the Court[21].
[21] It is an inference that would invite the Court to speculate as to why an alleged victim of serious family violence is (on the face of it) acting in a particular manner. These are matters which can be explored in cross-examination if appropriate.
Other Relevant Matters
At the time of the delivery of these Reasons for Judgment, the children were only six and four years old respectively. They have been living primarily with the father and spending significant and substantial time with the mother for over a year. The children’s stated views, given their young ages, are of very limited weight. [X]’s apparent preference to live with the mother and see the father on Fridays has to be looked at in the context of her wanting to spend time with her father each day. [Y]’s behaviour might indicate that he is not spending sufficient time with the mother for his age and stage of development. What can be gleaned from the stated views and observations of the children with the parents is that the children have meaningful relationships with both of the parents.
On both parties’ evidence, the children were likely exposed to family violence while the parties were together. There are allegations that the children continue to not only be exposed to family violence, but also that the children are subjected to family violence. However, there are inconsistencies or discrepancies arising out of the evidence which place a question mark in respect of the veracity of at least some of the allegations made by the mother.
In any event the evidence does not lead the Court to find that the children are at an unacceptable risk of harm in the father’s household[22] but in weighing the probabilities of competing claims and the likely impact on the children in the event that the controversial assertions are acted upon, there is still a significant risk to the children in the father’s household. This is primarily born out of what [X] is said to have said to her teacher and the school counsellor, together with the detailed allegations contained in the mother’s affidavit and supported by the maternal grandmother’s evidence. The Court also notes that there were no similar concerns raised by the children to the family consultant.
[22] Nor does the Court make a finding that they are not
The Court holds some concern about the father’s capacity to meet the children’s emotional needs, particularly noting his comment to the mother at the Child Inclusive Conference that she was “babying” [Y].
The children are in a settled routine in respect of school and day-care. The Court is of the view that such routine should continue and that the children remain enrolled where they are currently. This will continue to provide stability for the children. The parents live in relative proximity to each other and there is no practical difficulty or expense which has been foreshadowed by the parents in respect of any of the orders sought.
It was submitted on behalf of the father that the Court cannot be satisfied that the mother will support a relationship between the children and the father. While there is some evidence which might ultimately lead the Court to find that the mother does not support a relationship between the children and the father, this is not a finding that the Court can make without a proper testing of all of the evidence, particularly the evidence in respect of family violence.
Parental Responsibility
Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[23]
[23] See note 1 s61C
Section 61DA provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order. As noted earlier, in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[24] The presumption is also rebutted where there are reasonable grounds to believe that a parent has engaged in family violence.
[24] s61DA(3)
Given the various allegations of family violence which each of the parties makes against the other, and the denials of such allegations by the party against whom they are made, without the evidence being tested the Court is simply not able to make any findings of fact in respect of those matters. In respect of the charge of common assault in 2016, there was no conviction entered against the father. While the presumption may be rebutted if there are reasonable grounds to believe that a party has engaged in family violence, once again, given the evidence of both parties, including the significant differences in the parties’ evidence about the same event, the Court is not able to make that finding either. The making of an apprehended domestic violence order is not of itself sufficient to ground a finding that there has been family violence or that there are reasonable grounds to believe that a party has engaged in family violence.
The Court having heard the parties’ submissions, and taking into consideration all of the evidence, finds that the presumption of equal shared parental responsibility has not been rebutted.
The father seeks an order for equal shared parental responsibility, while the mother seeks an order for sole parental responsibility. The evidence is such that the Court finds that the parties have been able to effectively communicate to date about the major long term decisions concerning the children, and that it is in the children’s best interests at present for both parents to have an equal say in the children’s long term care, welfare and development. For that reason an order for equal shared parental responsibility is appropriate.
It is noted for the benefit of the parties that in making a final parenting order in relation to a child, the Court must disregard the allocation of parental responsibility made in the interim order.[25]
[25] s61DB
The making of such an order “triggers” the operation of s65DAA. For reasons explained elsewhere, it is in the children’s best interests to spend significant and substantial time with the parent with whom they are not living. The parents’ relationship is not sufficiently cohesive such that an order for equal time would be practical or effective and is likely to lead to further conflict between the parents, despite what the family consultant has opined.
Conclusion
The absence of discussion of any particular s.60CC factor above does not reflect any failure to consider it. Rather, it is reflective of the Court’s assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors which were specifically addressed[26].
[26] Banks & Banks (2015) FLC 93-637 at [52]
This is a finely balanced case.
Ultimately, the Court finds that the children’s best interests are served by living with the mother and spending significant and substantial time with the father. Given the significant length of time the children have lived with the father, the orders which the mother proposes in the Court’s view, do not sufficiently promote the children’s relationship with the father. As such, an order for the children to spend time with the father for five nights each fortnight will see them living with the mother, and being able to maintain that meaningful relationship with the father.
The Court also finds that there is sufficient evidence for the children’s name to be placed on the Airport Watch List. The mother has connections to New Zealand and the father has placed before the Court evidence that might lead to a finding that she is a flight risk (which the Court does not currently make). It is of course at present only a safeguard.
For all of the above reasons, orders are made as set out in the forefront of these Reasons for Judgment.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 28 June 2019
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