Whitehill & Talaska
[2024] FedCFamC2F 768
•5 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Whitehill & Talaska [2024] FedCFamC2F 768
File number(s): MLC 3002 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 5 July 2024 Catchwords: FAMILY LAW – interim hearing – whether rules or practice attached or consequent to rule in Rice & Asplund apply to section 65DAAA – whether Goode and Goode applies to amended section 60CC – whether final orders can be suspended on interim basis without section 65DAAA being satisfied – change of circumstances not required but whether there is must be considered- section 65DAAA “governing” provision of section 65DAAA- attached rules of body of law of Rice & Asplund applied – principles of Goode and Goode with necessary changes applied-Not satisfied section 65DAAA(1)(b) satisfied – one parent’s opinion of mental health of other parent not accepted – parent’s concern not dismissed – final orders not discharged or suspended – single expert psychiatric examination ordered Legislation: Family Law Act 1975 (Cth) ss 60CC and 65DAAA
The Acts Interpretation Act (1901) (Cth)
Cases cited: Eaby & Speelman (2015) FLC 93-654
Goode & Goode (2006) FLC 93-286
Rice & Asplund (1978) 6 FamLR 570, (1979) FLC 90-725
SS & AH [2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 105 Date of last submission/s: 27 May 2024 Date of hearing: 22 May 2024 Place: Melbourne Counsel for the Applicant: Mr Kelly Solicitor for the Applicant: Schembri & Co Lawyers Counsel for the Respondent: Mr Willee Solicitor for the Respondent: M C Lawyers & Associates
Table of Corrections 19 July 2024 In paragraph 105, the word “not” has been inserted between the words “do” and “regard”. ORDERS
MLC 3002 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WHITEHILL
Applicant
AND: MR TALASKA
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
27 MAY 2024
THE COURT ORDERS THAT:
1.The parties do all acts and things to cause and ensure that the orders of 11 April 2023 be and are complied with, and for the purpose of:
(a)Order 6(a) such time commence as and from Wednesday, 29 May 2024; and
(b)Order 6(b) such time commence as and from Saturday, 1 June 2024; and
(c)Order 6(c) such time commence as and from Friday, 7 June 2024.
2.The parties do all acts and things to appoint a single expert witness in accordance with the rules of the Court, for the purpose of undertaking a psychiatric assessment of the Father as soon as practical (‘the single expert’), and the parties are to each pay one half of the cost of that assessment at the time and in the manner as requested by the single expert witness.
3.There be liberty to apply as to any difficulty with the appointment of the single expert witness.
4.The reasons for these orders are otherwise reserved.
AND THE COURT NOTES THAT:
A.The matter is listed on 21 August 2023 in regard to the Father’s application that the Mother’s application be dismissed because of the provisions of section 65DAAA of the Family Law Act 1975 (Cth).
B.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.
C.Affected unrepresented parties may apply to the court and then 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.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 19 July 2024.
JUDGE O’SHANNESSY:
INTRODUCTION
In this matter I heard the case on 22 May 2024 and on 27 May 2024 I made orders but reserved my reasons. These are my reasons.
BACKGROUND
This is the second wave of litigation in the life of X, now 3 years old. The first wave started when proceedings were issued seeking parenting orders when X was one year old (‘the original proceedings’). The original proceedings were resolved by final orders, made by consent, on 11 April 2023 (‘the final orders’). At that time X was one year old. Those orders provided for equal shared parental responsibility, for X to live with her mother and spend time with her father, gradually increasing as X got older. The current and second wave of litigation came before me for urgent interim hearing on 22 May 2024. A “threshold” hearing to consider section 65DAAA of the Family Law Act 1975 (Cth) (‘the Act’) had also been listed for the following August 2024[1] (‘the August 2024 hearing’). Following trouble in early 2024, X continued to live with her mother but no time was taking place with her father.
[1] The listing of that hearing is recited later. Neither party sought to vary that order or listing.
WHAT IS EACH PARTY SEEKING?
The applicant Mother (‘the Mother’) sought that I change the final orders and make interim orders, pending the August 2024 hearing, for sole parental responsibility to her, that there be no time between X and her father and that he undertake a psychiatric assessment.
The Mother’s application, on the interim hearing listed as a matter of urgency before me, pressed for the wholesale changes to the final orders as set out in her application.
1. That until further Order:
1.1Orders 5 to 15 inclusive of the Final Parenting Orders made on 11 April 2023 be suspended.
1.2 The child live with the Mother.
1.3 The Father’s time with the child be reserved.
2.The child and parties attend upon a Child Court Expert for the purposes of a Child Impact Report.
3.That within 7 days of these Orders, the Father shall provide medical documentation to the Mother’s legal representative in relation to his recent hospitalisation, including treatment notes and medications administered.
4.That the Father undertake a Psychiatric Assessment at the Father’s sole expense.
5. That the Father pay the Mother’s costs of and incidental to this Application.
The case of X’s father (‘the Father’) was that the section 65DAAA of the Act hearing was listed in August 2024 and hence his interim application to enforce the existing orders should be determined by the application of section 60CC of the Act, that his account of controversial events should be accepted and that his Intervention Order application[2] (partly recited below) did not indicate that his mental health had deteriorated like the Mother said it did.
“NEW” SECTION 65DAAA & “OLD” RULE IN RICE & ASPLUND
[2] Made against the Mother on 7 February 2024 and served on the Mother on 19 February 2024.
Final orders are meant to be final. From 6 May 2024, Parliament replaced the previously applicable body of law known as the rule in Rice & Asplund (1978) 6 FamLR 570, (1979) FLC 90-725 (‘Rice v Asplund’) with section 65DAAA of the Act. The rule in Rice & Asplund was a body of Judge made law to the effect that once final parenting orders were made further litigation about parenting orders would not be heard unless there had been a sufficient change in circumstances that warranted reopening litigation about children’s arrangements. The settled rationale of the rule was that repeated litigation about children was usually not in the best interests of the children involved and should be avoided. That body of law was refined, elaborated and explained over and over again in various decisions of the Family Law Act courts. This body of law developed consequential or attached rules as to evidence and procedure, but always retained flexibility to deal with the multitude of factual matters that arose, in the best interests of the children. The inquiry to ascertain whether further litigation would be permitted was often described as a “threshold hearing”.
In the Lexis Nexis (or ‘Lexis Advance’) electronic commentary on the Family Law Act 1975, under the heading:
‘[s 65DAAA.10] Court not to reconsider a final parenting order unless it has considered whether there has been a significant change in circumstances: s 65DAAA(1)’,[3]
Professor Richard Chisholm sets out his understanding of what I now describe as the “old” rule in Rice & Asplund. With respect it is convenient to, and I do, adopt his description of the rule. Professor Chisholm opined as follows:
A pre-2024 Full Court summary of the principle is Stern & Colli [2022] FedCFamC1A 95 at [22], in which the Full Court said:
The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the [applicant] has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.
(emphasis added)
[3] This can be found at < >.
Expressions of the rule included the following:
·…the court would need to be satisfied that there was some changed circumstance which would justify such a serious step [as entertaining an application to reverse an earlier …order], Rice & Asplund at 78,905-6.
·…it cannot logically be in the best interests of the child/ren to embark on further litigation…unless it is first demonstrated that a sufficient change in circumstances has occurred…, Carriel & Lendrum (2015) FLC 93-640.
·…Where an application is dismissed at a preliminary stage [it is dismissed]… because…there is an insufficient change of circumstances shown to justify embarking on a hearing…Searson & Searson (2017) FLC 93-788, Murphy J at [11].
The “new” section 65DAAA has been in operation since 6 May 2024 and provides as follows:
65DAAA Reconsideration of final parenting orders
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(b)whether there is any material available that was not available to the court that made the final parenting order;
(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3)Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
(emphasis added and the matters at (2)(a) to (2)(d) are referred to hereafter as ‘the four matters’)
Although always considered through the prism of the best interests of the children, the frequently accepted or orthodox recitation of the rule in Rice & Asplund, required that there must be a prima facie change of circumstances sufficient to justify embarking upon a further inquiry as to what parenting orders were in the best interests of the children with all the trouble, grief and strife for all involved that often entailed.
Section 65DAAA(1)(b) governs section 65DAAA
On my understanding of section 65DAAA the governing, or central, provision is section 65DAAA(1)(b). I repeat section 65DAAA(1)(b):
65DAAA Reconsideration of final parenting orders
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a) …
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(emphasis added)
The starting point is that the Court “must not reconsider the final parenting order unless…”, and those words must be given meaning.[4] But on its face, section 65DAAA does not require a change of circumstances or provide that there must be a prima facie change of circumstances, rather, whether there is or is not a change of circumstances must be “considered” and all of the circumstances must be taken into account including section 60CC and whether there has been a change of circumstances. This is, on the face of the new section, a difference of substance not merely of emphasis when compared to the orthodox recitation of the rule.
[4] Project Blue Sky v ABA (1998) 194 CLR 355 at [71].
Section 15AB of the Acts Interpretation Act 1901 (Cth) provides I may have regard to extrinsic materials such as documents, not included in the Act or section itself, known as an explanatory memorandum or the record of Parliamentary speeches or debates:
Section 15AB Use of extrinsic material in the interpretation of an Act
(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
…
The explanatory memorandum
The explanatory memorandum to the amending Act that inserted section 65DAAA includes the following:
97.New section 65DAAA codifies the common law rule established by Rice and Asplund (1979) FLC 90-725 and elaborated on in subsequent cases, that is, where final parenting orders are in place the applicant must establish that there has been a significant change of circumstance since the making of the orders before those orders can be reconsidered. The rule is founded on the notion that continuous litigation over a child or children is generally not in their best interests.[5]
(emphasis added and footnote as in the original, see footnote 6 below that reproduces footnote 3 of [97])
[5] Marsden v Winch (2013) 50 Fam LR 409 at [36]; Marsden v Winch (2009) 42 Fam LR 1 at [49].
Those authorities referred to at [97] of the explanatory memorandum could be described as the seminal authorities, or the usual suspects, of the jurisprudence of the rule in Rice & Asplund. It is significant that the explanatory memorandum refers to a “codification” of the rule in Rice & Asplund and those seminal authorities with apparent approval. Hence, I am satisfied the context to section 65DAAA or the “mischief” Parliament intended the new provision to remedy is that continual or repeated litigation about children’s living arrangements is usually contrary to the best interests of the children involved, as was the premise of the rule in Rice & Asplund.
The second reading speech
I also take into account the second reading speech on 29 March 2023 where, inter alia, it was observed that the insertion of section 65DAAA:
[…] codifies existing case law about the reconsideration of parenting orders, making it clear that it must be in the best interests of the child, and a significant change in circumstances must have occurred, for an existing parenting order to be reconsidered.
(emphasis added)
However, the clear text of the new provision must prevail. Whether or not significant change or a prima facie significant change of circumstances was always a fundamental requirement, or a “must” for reconsideration of final orders, it is clear enough that it is not an absolute requirement for the “reconsideration” of final orders under section 65DAAA. Rather the absolute requirement continues to be the best interests of the child/ren. Clearly, if after considering the issue it is determined that there has been a “significant change in circumstances”, the circumstances would more powerfully contend for the final orders to be “reconsidered”. But the absolute or mandatory requirement remains the Court’s consideration of the best interests of the children.
So, in determining whether it is in the best interests of the child for the “final” order to be reconsidered, the engine room provision of section 60CC must be had regard to, and the court should consider any matter relevant to that test and the court may consider the four matters described at section 65DAAA(2)(a), (b), (c) & (d). But the context is the same underlying premise of the rule in Rice & Asplund.
Taken as a whole, I understand the provision to mean those four matters should be had “regard to” unless the circumstances of the case meant a provision did not or could not apply.
DO THE “ATTACHED” RULES OF RICE & ASPLUND APPLY?
For the purpose of this interim hearing on the papers, subject to the issue of whether there is any difference of substance between the section 65DAAA “has considered” whether there is a change or circumstances and the previously frequently expressed “must have” a prima facie significant change of circumstances in the rule in Rice & Asplund, section 65DAAA, more or less, replicates the basic or foundational aspects of the rule in Rice & Asplund.
However, the section 65DAAA provisions do not replicate, or expressly provide, for what can be described as the consequent or attached rules developed and applied over the years. Those attached rules or procedures or practice, always adaptable to the circumstances at hand, included the following.
·New or consequent applications would usually, but not always, be dealt with as a preliminary hearing on the papers; [6] and
·The required significant change of circumstances needed to be something not contemplated by the final orders or reasons or decision[7].
·At a hearing on the papers, unless contradicted by incontrovertible evidence or the applicant’s evidence was implausible or contradictory, the evidence of the party seeking to reopen or re-litigate was accepted for the purpose of that hearing, [8] including evidence of controversial matters; and
·Further expert evidence such as a family report maybe, but would usually not be, undertaken before determination that sufficiently changed circumstances now existed that justified the further litigation; and
·A minor change to existing orders may be appropriate without the Rice & Asplund threshold being crossed. [9]
[6] See SPS and PLS (2008) FLC 93-363 (‘SPS and PLS’) at [48], [69] & [81].
[7] CDW & LVE (2015) FLC 93-683, Martin CJ at [88].
[8] Marsden & Winch (2009) 42 Fam LR 1 at [16] & [60] and SPS and PLS at [81], Searson & Searson (2017) FLC 93-788 at [11]
[9] SPS and PLS at [83]
The consequent or attached rules made the principal rule workable. They could be described as the nuts and bolts that held the principle together or gave it a practical functionality as a working body of law as well as guidance to litigants. These rules or practice avoided an un‑charted sea of single instances or multiple disparate decisions that would exist without principles of universal application.
Rules or practice attached to the rule in Rice & Asplund apply
Hence the question arises whether those consequent or attached principles or rules still apply after the introduction of section 65DAAA? It is difficult to discern an intention that those previously applicable attached rules or principles should not apply from the text of section 65DAAA.
Although the amending Act and section 65DAAA did not expressly include or exclude those consequents or attached rules, I am satisfied that Parliament did not intend to discard the existing body of attached or consequent rules or practice of the jurisprudence of the rule in Rice & Asplund.
The explanatory memorandum reference to “codifying” Rice & Asplund and the references to some of the seminal authorities of the body of law of Rice & Asplund, as it does, and the absence of reference to the consequent or attached rules or practice, satisfies me that Parliament intended that those attached or consequent rules of the body of law known as the rule in Rice & Asplund should continue to apply. I am so satisfied because of the statements in [97] of the Explanatory Memorandum and the reference to “codifies existing case law” in the second reading speech and the absence of other necessary provisions and the absence of facilitative or nuts and bolts type provisions in section 65DAAA. Those flexible attached or consequent rules can be discerned from the many authorities dealing with Rice & Asplund, and some are recited above.
I must look for a way to promote the purpose of the new provisions. I am cautious of applying a gloss of pre-existing law to a new and specific statutory provision, and of either limiting or expanding the new statutory provision. However, those attached rules neither limit nor extend the statutory provisions of section 65DAAA. I will apply those rules unless they limit or extend the operation of the scheme of section 65DAAA.
Alternatively
Alternatively, if I am wrong about Parliament’s intention, and it is necessary to re-invent the wheel and the nuts and bolts to make section 65DAAA actually work, I am satisfied the wisdom contained in the previously applicable consequent or attached rules or previously existing case law should guide me and I will apply those rules or guidance unless they limit or extent the operation of the scheme of section 65DAAA.
APPLICATION OF SECTION 65DAAA TO THIS CASE
I turn to the application of the law to the facts.
The orders made on 13 May 2024 listing this matter before me including the following:
…
3.The matter is listed for an Interim Defended Hearing before Judge O’Shannessy on 22 May 2024 at 10.00 am with attendances to be in person unless otherwise advised by the Chambers of the presiding Judge.
…
Next court event (S 65DAAA threshold hearing)
8.The matter is set down for the discrete hearing of the s 65DAAA issue for not more than one day commencing at 9.30am on 21 August 2024 in the Federal Circuit and Family Court of Australia.
…
Cross Examination
14.In the event that any party wishes to cross-examine at the hearing, that party shall provide written notice to the expert of such intention as soon as reasonably practicable but no later than fourteen days prior to the commencement of the hearing.
…
AND THE COURT NOTES, THAT:
Section 65DAAA hearing
A.The Court is required to determine whether the final parenting orders made by [a Judicial Registrar] on 11 April 2023 (MLC12008/2022) should be varied. The Respondent opposes the application filed by the Applicant on 15 March 2024.
Interim Defended Hearing
B. The issues for determination at the Interim Defended Hearing are:
(a)Interim spend time arrangements between the child and the Respondent Father, pending the hearing in relation to section 65DAAA on 21 August 2024.
(b)Final orders were made on 11 April 2023. The child has not spent time with the Respondent Father since [early] 2024.
(c)The Respondent Father requested an urgent interim defended hearing. Provision has been made for the Respondent Father to file amended material to particularise interim orders sought in circumstances where the Response filed on 12 April 2024 was silent on same. In the event the Respondent Father does not file same in accordance with order 2 herein, the Interim Defended Hearing will be vacated.
…
Change of circumstances?
No one pressed any change to the orders fixing a section 65DAAA hearing for the following August. The wholesale change to the final orders was pressed notwithstanding the section 65DAAA or threshold hearing listed on 21 August 2024. After discussion of section 65DAAA, counsel conceded that I could not make the orders pressed by the Mother on this hearing unless there was a consideration of a change of circumstances as contemplated by section 65DAAA. The primary prima facie change of circumstance alleged was said to be the deterioration in the Father’s mental health AND said to be demonstrated by:
·His aggressive behaviour in the presence of the child at the early 2024 changeover incident; and
·His aggressive behaviour to a police officer at Suburb B Police Station in early 2024; and
·His own account of his mental health or emotional equilibrium in his own application for an Intervention Order against the Mother dated early 2024.
Those alleged events, all controversial, were said to demonstrate the deterioration in the Father’s mental health that would demonstrate the significant change of circumstances contemplated by section 65DAAA for further orders or litigation. It was put by counsel for the Mother that an expert witness psychiatric examination and report of the Father would likely determine the Mother’s section 65DAAA case to be heard in August. It was also pressed that in the meantime the unilateral cessation of the existing orders imposed by the Mother should be put in orders suspending the Father’s time and giving the Mother sole parental responsibility.
I am satisfied that even on an urgent hearing, the discharge or even suspension of existing orders is a reconsideration of the final parenting order. I cannot make such orders unless the provisions of section 65DAAA are engaged even if the order is sought for only a short time or on an interim basis.
I do take into account the context of the amending Act which omits the previously applicable objects and principles underlying the parenting provisions of Part VII and the significant amendments to section 60CC. Section 60B has been substantially amended and previously applicable provisions including section 60B(1)(a) have been omitted: Section 60B(1)(a) previously provided:
Section 60B Objects of Part and Principles underlying it
(1) The objects of this Part are to ensure that the best interests of the children are met by:
(a) ensuring that children have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
…
From 6 May 2024 the “new” section 60B provides:
Section 60B Objects of Part
The objects of this Part are:
(a)to ensure that the best interests of children are met, including by ensuring their safety; and
…
Does Goode and Goode still apply?
Neither counsel addressed the test or provisions of Goode & Goode (2006) FLC 93-286 (‘Goode & Goode’). On an interim hearing the law is clear enough notwithstanding the different provisions of Part VII of the Act that apply from 6 May 2024. That Part VII, including section 60CC, has been amended and section 65DAA repealed (from 6 May 2024) does not change the law applicable to how an interim or emergency hearing is to proceed.
With necessary amendments to accommodate the changes to Part VII of the Act to operate from 6 May 2024, the procedure on an interim hearing should still be in accordance with Goode & Goode as follows:
74.That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child's best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC…
…
82.In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)-(j)(Theses refer to the presumption of the now repealed section 65DAA and so no longer apply.
The general guidance of SS & AH [2010] FamCAFC 13 as approved in Eaby & Speelman (2015) FLC 93-654 at [18] & [19] should still apply:
88.…In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
…
100.The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes 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. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Consistent with those authorities in Newett & Newett [2019] FamCAFC 102, Kent J, observed as follows and I am satisfied those observations still apply:
21.The limitations and constraints of an interim hearing, as to allowing for concluded findings of fact to be made, including findings as to relevant s 60CC considerations, are well known and obvious. Without the testing of disputed allegations of fact by cross-examination of relevant witnesses, such disputes simply cannot be satisfactorily concluded by the making of findings by the Court. Likewise, without the similar means of testing expert opinions, the Court is left unable to assume the degree of accuracy, or otherwise, or substance of such opinions, on more than a provisional basis…
22.Given the nature of the disputed issues of fact in this case (of which there were many and of which some were very serious) the primary judge was bound to take the approach of formulating interim orders in the children’s best interests, allowing for the reasonable possibility that serious allegations, which could not be discarded, might be established at the forthcoming trial…
23.There is a vast gulf between a judge allowing for the possibility of allegations being established at a subsequent trial, and the making of concluded findings of fact…
Original proceedings and final orders
The final orders provided for equal shared parental responsibility, a graduated regime of time, over 6 stages, that steadily increased from twice weekly, but not overnight, to one night over night then then two nights and gradually increasing up to a regime of alternate weekends over two nights plus each Wednesday and Friday, with time adjusted to accommodate school hours when X commenced school. The parties agreed, and the final orders provided, that when X commenced primary school the school holidays would be shared equally between the parents. So far so good.
Allegations of family violence, and of the Father’s struggles with mental health, and of the Mother’s need for counselling to be able to accommodate the Father in X’s life were alive in the original proceedings and re agitation of those allegations does not advance the case for reconsideration of final orders.
Apart from the parental responsibility, live with and spend time orders, the final orders included the following specific orders set out below. I presume these orders were tethered to the parental responsibility, live with and spend time orders by being part and parcel of the scheme of the orders both parties had pressed on 11 April 2023 as being in the best interests of X and necessary to assist those orders actually work over X’s childhood. Those specific orders included the following:
11. The child spend additional time with the Father as follows:
…
c.For Christmas, from 4.00pm on Christmas Eve until 4.00pm on Christmas Day in odd years and from 4.00pm on Christmas Day until 4.00pm on Boxing Day in even years.
…
13.The Father forthwith enrol in and complete a Men’s Behaviour Change Program and provide a certificate of completion to the Mother as soon as practicable upon completion of the program.
14.Without admitting the necessity of the same, until completion of the Men’s Behaviour Change Program, the Father ensure that a member of the paternal family be in substantial attendance at his contact with [X] noting that a family member will be present at all times [X] is with the Father other than the travel to/from changeover provided that such travel time is no greater than forty (40) minutes each way.
15.Unless otherwise agreed by the parties in writing, all changeovers occur at school where appropriate and otherwise at McDonald’s in [Suburb C] or, where the Father will be spending time at his parents’ [property] in [Suburb D], at the McDonald’s in [Suburb E] provided that Father provides the Mother with at least twenty-four (24) hours’ notice in writing via the WeParent Application.
…
28.The parties communicate via the WeParent phone application.
29.The parents will not criticise or denigrate the other parent or any member of the other parent’s family in the presence or hearing of [X].
30.The Mother continue to attend and engage with personal counselling as recommended by the short-form Family Report dated 22 December 2022 and the Mother provide a copy of the Family Report to the counsellor.
31.The Father must continue to follow the reasonable directions of his treating mental health professional in relation to his mental health and take all medications as prescribed. The Father must keep the Mother informed of his treating mental health professional details.
32.Each party forthwith enrol in and complete a Circle of Security course and provide a certificate of completion to the other.
I have no evidence or allegations as to the parents’ compliance with those specific or additional orders.
The short form family report in the original proceedings
Sensibly, in the original proceedings the parents had retained a single expert witness, a family consultant, to assess them and prepare a “short form” family report.[10] I was referred to that report and regard it as relatively recent. I infer that the observations and recommendations of that independent report assisted the parents to stop spending buckets of money on lawyers[11] and reach agreement about orders for X’s parenting. That report was in evidence before me. Relevant parts include the following:
[10] Dated late 2022 when X was one year old.
[11] There is no suggestion the lawyer’s charges were other than usual and justified, but from a lay person’s perspective the mountain of work required to advance or defend a parenting case, which are usually driven by factually dense disputes about many events and attitudes of the parties, often means legal costs are very significant.
8.During his interview, [Mr Talaska] sought to spend regular time with [X], more than once per week for two (2) hours. He denied the necessity for supervision, however, indicated that he would be content for a family member to be present if so Ordered, citing that her extended paternal family also miss her.
…
12.During her interview, [Ms Whitehill] sought for [X] to remain living with her. She suggested that, upon the Court determining that it safe to do so, for [X] to spend unsupervised time, and only daytime, with [Mr Talaska]. She suggested that she had received advice indicating that two (2) hours twice per week was sufficient to maintain their relationship at this age.
…
14.[Mr Talaska] raised concerns regarding [Ms Whitehill]’s controlling behaviours over him, particularly in relation to her controlling his time and relationship with [X] both during the relationship and post separation. He cited that [Ms Whitehill] sought to control aspects of [X]’s life and remove her from the home most days which inhibited his ability to spend meaningful time with her.
15.[Ms Whitehill] claimed that [X] had been subject to emotional, psychological, and physical abuse by [Mr Talaska], and exposed to family violence. [Ms Whitehill] claimed that she had been exposed to emotional, psychological, financial abuse and threats by [Mr Talaska].
16.[Ms Whitehill] claimed that she was expected to work, care for [X], complete household chores and cook meals for [Mr Talaska], and he did not believe it was appropriate for her to visit friends if he considered there were chores to complete, including preparing meals. She claimed that she had been subject to controlling behaviours, criticism, and denigration by [Mr Talaska].
…
24.[Ms Whitehill] claimed that [Mr Talaska] experiences serious depression, for which he receives a [government benefit]. She reported that he experiences difficulties controlling his temper, coping with [X] crying, the sounds and sights of [X] eating and spilling food and other basic care routines, such as applying cream to her skin after her bath.
…
42.[Mr Talaska] described [Ms Whitehill] as “a kind and caring Mother,” however, he suggested that she can be “overanxious” regarding [X], providing examples of [Ms Whitehill] dictating that he could not take [X] out of the home on his own, even in her stroller down the park. He expressed a wish to be an actively involved parent and for [X] to enjoy positive and loving relationships with both of her parents.
43.During his interview, [Mr Talaska] reported that he has engaged with a counsellor, [Ms F], via phone, which had been organised by his General Practitioner (GP), in addition to resuming taking some medication since [X] has been removed from the home. While [Mr Talaska] readily admitting that both were helpful, he expressed concern for [Ms Whitehill] potentially “using this against me.” He asserted, “I’m distraught, my daughter is gone,” “my house is empty,” and “I hadn’t missed a night since my daughter was born” until [Ms Whitehill] removed her from the home [in late] 2022.
…
51.… [Ms Whitehill] expressed significant concern for [Mr Talaska]’s capacity to independently care for [X], claiming that she had only ever left her alone with him on three (3) occasions since her birth, and only for a few hours on each occasion.
52.Given the above concerns, rather than seeking independent accommodation nearby as previously planned, [Ms Whitehill] decided to move to [distant] suburbs with a friend as this is where she had always wished to live and sought an Intervention Order against [Mr Talaska].
53.[Ms Whitehill] expressed her firm belief that [Mr Talaska]’s depression and OCD (while admitting that this was not formally diagnosed, however, how he referred to his behaviours) significantly negatively impacted his parenting capacity and tolerance for normal infant behaviours, such as messy eating and crying.
…
60.…Overall, [Ms Whitehill]’s (potentially raciest) views and attitudes towards [Mr Talaska]’s (and [X]’s) [Country G] culture raised concerns regarding her capacity to actively promote [X]’s relationship with her extended paternal family.
…
76.Notwithstanding [Ms Whitehill]’s general concerns for [Mr Talaska]’s threats, and lack of parenting capacity, she identified that “he can be a really nice guy,” “that he’s not evil, he’s sick,” and suggested “wouldn’t it be lovely if he could do this [parenting] better.” She asserted that “I will never use her [X] as a pawn,” that she did not intend to inhibit or sever [X]’s relationship with [Mr Talaska]. Further, she acknowledged that [X] transfers readily and happily to [Mr Talaska]’s care.
…
85.This brief assessment identified no safety concerns for [X] in the care of either of her parents but, rather, found that both parents were more attentive and emotionally attuned to their infant daughter than the average parent. [X] was observed to enjoy a loving and affectionate relationship with both her parents.
…
92.Additionally, [Ms Whitehill] holds concerns regarding [Mr Talaska]’s mental health, which according to his treating doctor appears to be managed well and that [Mr Talaska] is compliant with his treatment at this time.
…
95.…Unfortunately, this prevailing negative attitude towards [Mr Talaska] and his extended family and culture does not bode well regarding [Ms Whitehill]’s future capacity to promote [X]’s relationship with her Father. [Ms Whitehill] may benefit from engaging in some personal counselling to assist her in managing this issue for the benefit of [X]. [Mr Talaska] has reported that [Ms Whitehill] has historically exhibited controlling behaviours towards him and inhibited his ability to be fully involved in [X]’s care. It is hopeful that [Ms Whitehill] engaging in personal counselling may address some of her anxiety regarding [X] being cared for in a manner which is contrary to her views, wishes or parenting style while [X] is not in her care.
…
102.At this age, [X] would benefit from significant involvement from both parents in all aspects of life. In the event there has been no significant safety concerns raised for [X] in the care of her Father, is suggested that from the beginning of 2024 that [X]’s weekend time with her Father is amended for her to spend both Saturday and Sunday with her Father each alternate weekend, that [Mr Talaska]’s restriction of a family member being in ‘substantive attendance’ is lifted and [X] commences transitioning into overnight time with her Father for a night each alternate Saturday.
(emphasis added and spelling and grammar as in original)
Those observations in the family report were not tested or contested. But soon thereafter detailed consent orders were entered into, and I am satisfied the untested observations of the family report assisted the parties resolve their dispute and those observations and the competing allegations of the report were part of the context or circumstances surrounding the final orders.
Time proceeds in 2023 with many McDonald’s changeovers
Neither party complains about how the orders and X’s life with each parent worked from the time of the final orders until early in 2024. Hence it is common ground that the regime of each Wednesday and each Sunday time with the Father over most of the day with McDonald’s Restaurant changeovers as provided at the first stage of the final orders, proceeded through April, May, June, July, August, September, October, November and December of 2023. The first overnight time was the special occasion of overnight Christmas Eve 2023 for one night. Hence it is common ground that assuming about 8 sessions of time each month[12], that was about 72 sessions of time with about 140 or so McDonald’s changeovers between the final orders and the disruption following the controversial events of early 2024.
[12] Obviously there are more than four weeks or 28 days each month so time with her Father would occur, on average, more than 8 times each month.
THE SECOND WAVE OF LITIGATION
The Mother commenced this wave of litigation on 15 March 2024 seeking orders as recited above. As set out below, the competing positions before me cover two different evidentiary tests or standards on this interim hearing. I will follow those tests as set out, but I firstly set out the events of common ground, or as set out in contemporaneous or incontrovertible records. The age of text message communication over mobile telephones adds a lot of reliable evidence of contemporaneous communication between the parties even on an interim hearing.
The first alternate weekend overnight time
The final orders provided for the daytime only regime of each Sunday and each Wednesday time with the Father to change to the weekend with one overnight from 1 January 2024. From the absence of evidence and the provisions of the final orders, I infer that after the first overnight time on Christmas Eve to Christmas day,[13] the time provided for in the final orders occurred. I infer that the usual Wednesday time on Wednesday 27th December, the usual Sunday time on Sunday 31 December 2023 and the usual Wednesday time on Wednesday 3 January 2024, all occurred. The next stage of the final orders was to commence from 1 January 2024 when every Sunday was replaced by each alternate weekend from Saturday to Sunday morning but with each alternate Friday afternoon and each Wednesday (daytime only) time continuing. Saturday early 2024 was the first alternate weekend of the second stage of the final orders.
[13] A Monday.
The early 2024 confrontation
In early 2024 the Mother’s Father, a resident of Country H (‘the Grandfather’), travelled to Australia to spend time with the Mother and X. He was here for about two weeks. It is common ground that he attended the changeover at McDonald’s in early 2024 when an incident or confrontation occurred between the two men while the Grandfather was handing X over to the Father. Apparently, this occurred while the Mother got X’s nappy bag from her car. I infer, from the absence of evidence of notice to the Father, that the Father had not been informed that the Grandfather was in the country and would undertake the changeover.
The Mother, and in a very recently filed affidavit, the Grandfather, allege the Father became unreasonably and inexplicably angry, shaking and confrontational and abusive to the Grandfather in X’s presence and that the Grandfather tried to calm the situation.
The Mother deposes as follows:
11.Given [Mr Talaska]’s historic mental health issues and previous behaviours, I find these statements and this hospitalisation to be a very concerning development and say that this places [X] at significant risk if she were to return to [Mr Talaska]’s care on an unsupervised basis.
23.When [Mr Talaska] arrived at the changeover location, he got out of his car and saw my father from a distance. Immediately, [Mr Talaska]’s demeanour changed. [Mr Talaska] started sweating, notably began gritting his teeth and his eyes bulged. but he continued walking towards us. When [Mr Talaska] reached our car, I notice he was shaking. My father was holding [X]’s hand when [Mr Talaska] grabbed [X]’s hand, threw a bag of [X]’s used clothes into my father's face and turned to leave. My father saw how aggressively he had picked up [X], and he asked [Mr Talaska] why he was behaving that way. [Mr Talaska] then turned to my father, exchanged further words then told him to get away from him or he would "bust him". My father then backed away and Mr Talaska] drove off with [X] in his car. I could see [X] was notably scared by her father's reaction.
It is alleged the words “bust him” mean “assault him” rather than report him to police.
The Father alleges that the Grandfather, unprovoked, with a hostile demeanour, confronted him and told him, “this isn’t over”, and then abused and swore at him while he was attempting to put X in her car seat and he otherwise denies the allegations.
No blows were alleged to have been struck. The Father left the McDonald’s with X and alleges he reported the incident to the Victoria Police. The Mother left the McDonald’s with the Grandfather but soon after reported the incident to the Police. The Court is presented with diametrically opposed versions of an ugly incident between two men, both important people in her life, in X’s presence.
After the incident and on that day the parents exchanged text messages as follows:
[Mr Talaska] Hi [Ms Whitehill], this morning’s incident was complete unacceptable. I have every right to pick up my daughter without being ambushed by a member of your family. The incident has been reported to police. If you father is present tomorrow morning at drop off [X] and I will not be getting out of the care without police assistance. I will not allow any member of your family to put in danger. I will not be threatened or intimidated by your father again.
[Ms Whitehill] [Mr Talaska]. I agree that this morning’s incident was highly unacceptable. My dad merely greeted you during handover but you ignored him then subsequently raised your voice and threatened to burst him if he didn’t move away whilst he was trying to say goodbye to his granddaughter. This was really upsetting as you were holding [X] in your arms whilst this was happening.
Following these events, a police officer to whom one version of the event was reported suggested to the parents, or at least the Father, that as the Grandfather was only to be in Australia for two weeks, until he leaves the country changeover should be at a police station. The Mother characterises the text message above as the Father’s proposal, and her acceptance of it, that all changeovers would now take place at a local police station. Whether by agreement (now disputed) or the policemen’s suggestion, the Father’s time with X continued with changeovers at a police station for about two weeks.
When two weeks had elapsed and, I infer, the Grandfather had returned to Country H, the Mother insisted that changeovers continue at a police station. The Father insisted on compliance with the orders, that is a changeover at McDonald’s.
Suburb B police station incident
At what would be after about two weeks from the incident in early 2024, the Mother alleges that in early 2024, at a changeover at Suburb B Police Station, an incident occurred between the Father and a police officer in her presence. The Mother alleges that she gave the Father’s telephone number to a police officer who contacted the Father and spoke with him about changeover. The Mother alleges that when the Father arrived at the Police Station for a changeover, he took the child from the Mother’s arms and in a threatening manner said to the police officer “I’ll be back for you later”.[14]
[14] Within paragraph 15 of the Mother’s 20 May 2024 affidavit
The Mother said she was seriously concerned about this alleged behaviour of the Father. The Mother relied on her allegation as a basis to insist that changeovers continue to be at a police station. The Father denied this allegation and continued to insist that changeover be in accordance with the final orders.
The Father’s time did not occur.
Spend time arrangements cease
Following the alleged Suburb B Police Station incident, the Mother advised the Father of her intention to not allow the child to spend time with him unless “a safer handover [could] be arranged”:[15]
Hi [Mr Talaska],
I’m feeling extremely unsafe due to your recent behaviour, especially when you threatened a police office in front of [X] and I.
I know that our lawyers have been speaking yesterday and until this issue is resolved and a safer handover can be arranged, spend time with [X] cannot occur.
[15] Text message attached to the Father’s affidavit of 12 April 2024
The Father replied that he had “spoken to the authorities and been advised to stick to the original court orders.”[16] The Father said he then attend Suburb C McDonald’s that day (as per the final orders) at 12pm to collect the child. But the Mother sent a text to the Father again stating:
As previously messaged this morning, it’s too unsafe for us to attend given your recent behaviour. My Lawyer has advised not attending unless it’s agreed in writing that handovers will occur at a police station from now on.
(emphasis added)
[16] Annexed to the Father’s affidavit of 12 April 2024
The Mother’s request or demand was not met. The Father attended the McDonald’s to collect the child, and the Mother did not attend. Time did not occur.
Following text messages from the Mother and the Suburb B police station allegation, the Mother sent a text to the Father in early 2024 advising:
Hi [Mr Talaska].
As I’ve still not received written confirmation that the handovers can occur safely at a police station, I’ve been advised by my lawyer not to attend today. Can we agree to a handover at [Suburb J] police station this weekend?
In early 2024, the Father attended Suburb J Police Station for changeover.
Hi [Ms Whitehill] I’m at [Suburb J] police station as your requested. Are you far away?
But the Father had not agreed all changeovers would be at a police station. The Mother refused changeover this day. Further time did not occur.
Father attends hospital in early 2024
Soon after the Father had sent the above text message he attended an emergency ward of a hospital. The Mother later learned of this when the Father sought an Intervention Order against her and that application was served on her in early 2024.[17] In the Father’s application for an Intervention Order against the Mother, the Father said he was admitted to hospital. The Father stated within the intervention order:
I was admitted to hospital [in early] 2024 and doctors advised that one of the primary reasons was due to stress which I attribute to her withholding my daughter from me. This is literally killing me. She has used her Father as an intimidation tool to get me either in further trouble or assaulted. I am scared she will get anyone else to try and do the above things. I have already filed a police report and statement against her family member for doing this.
I have reported the family violence to police at [Suburb J] police and [Suburb B] station.
A child/children has seen, heard, been exposed to or been present at incidents of family violence.
Incidents of family violence have increased.
I am seeking an interim order for immediate protection.
(emphasis added[18], grammar and sentencing are unchanged)
[17] Mother’s 20 May 2024 affidavit at [8].
[18] This passage was emphasised in submissions to me.
Further text messages passed between the parties regarding changeover throughout the period of early 2024. The Father continued to insist on McDonald’s changeovers in accordance with the orders and the Mother insisted that unless it was agreed all changeovers occurred at a police station she would not make X available for time with the Father. On one occasion the father collected X from a police station but insisted she be returned a a McDonalds. Time did not occur thereafter.
Proceedings issued and Father agrees to changeover at Police Station.
I am satisfied that many texts between the Mother and the Father occurred over the period of early 2024 regarding changeover, where the Father received, in substance, the same response. That is, he was required to agree that all changeovers to be at a police station for his time to occur.
On 15 March 2024 these proceedings were issued by the Mother and, I infer, were served on the Father. She sought the orders recited above. These are considerably different to her position where time would occur but only with a police station changeover.
In early 2024, the Father sent the Mother a text message purporting to agree to her earlier request for all changeovers to occur at a police station.
Hi [Ms Whitehill], I’ve spoken to my lawyers and I feel that for [X]’s best interests I will see you at a police station for handover until this matter is resolved in court.
I am satisfied that once the Father sent this text message, he hoped that his spend time arrangement with the child would re commence. That didn’t happen. The Mother refused to provide X for the Father to spend time with her. She said:
Hi [Mr Talaska].
Thank you for your message but, given your recent hospitalisation and behaviour, I hold significant concerns as to whether or not it is safe for [X] to return to your care at this time.
Please direct all future correspondence directly through the lawyers until the matter is resolved in Court.
It is clear that for some time after the early 2024 incident, after the Police Station incident and after learning of the Husband’s Intervention Order application in early 2024, and with legal advice, the Mother insisted on police station changeover for X’s time with the Father. Then, in proceedings issued on 15 March 2024 she pressed for the complete suspension of the Father’s time. Then, when the Father acquiesced in her previous insistence of police station changeover, the Mother insisted on a complete suspension of the Father’s time.
Early 2024: Suburb B Police Officer asserts not threatened
The Father relies upon a written statement by the police officer involved dated early 2024.[19]
Afternoon,
Thank you for your patience in waiting for my reply. Upon reviewing the date where [Ms Whitehill] and [Mr Talaska] attended [Suburb B] Police Station for the purpose of the child handover, I can confirm that there was no actual threat made towards me and that I did not in any way feel threatened. As a result of reviewing this, I can confirm that there is no police investigation int the matter and satisfied that no offence occurred.
Regards,
[Police Officer’s Name]
(emphasis added)
[19] Attached to paragraph 25 of the Father’s affidavit of 12 April 2024.
The police officer stating his understanding of the incident did not alter the Mother’s position. X was not made available for time with her Father.
CONCLUSION
Section 65DAAA hearing
I am satisfied that the law requires me, for a section 65DAAA hearing, to accept the applicant’s evidence of controversial events unless contradicted by incontrovertible evidence or it is implausible or internally inconsistent. That does not require me to accept the applicant’s opinion of controversial events or opinions about matters requiring expertise that an applicant does not have or require me to accept inferences that the applicant draws from events.
Hence for the purpose of this exercise I must accept the Mother’s evidence of the early 2024 incident. I do not accept the Mother’s opinion that “bust him”[20] or “burst him” only means “assault him”. I am not satisfied that incident (on the Mother’s evidence) means the Father’s mental health has deteriorated and I so observe without in any way excusing the Father’s (Mother’s evidence accepted on this s. 65DAAA exercise) assumed behaviour.
[20] Submissions referred to “bust him”.
The most significant aspect of the evidence that would corroborate the Mother’s opinion of the Father’s deterioration of his mental health is his own account in the Intervention Order application (recited above). Before me the Father asserted that he was not admitted regarding his mental health or emotional stress but rather his ongoing back problems. Neither party put before me any proper or accurate record from the Hospital of just what it was the Father attended for or was treated for. In early 2024, in the Intervention Order application, he expressed an opinion of what the doctor said a few days earlier.
On his account, if at least partly correct, the stress to the Father of the recently obtained final orders (necessary to spend time with his daughter) being thwarted after substantial litigation can be readily understood. Such stress may, but would not necessarily, cause or contribute to a deterioration in a person’s mental health.
The Mother’s account of the Father threatening the police officer at the Suburb B Police Station is unequivocally contradicted by the police officer’s email. Hence on this point the Mother’s evidence is contradicted by incontrovertible evidence: the email from the police officer. That is incontrovertible as to what the police officer says about the event, not as to what happened or how the Mother felt.
A central pillar of the Mother’s case and her justification at the time was the Father’s behaviour at the Police Station in early 2024. That is directly contradicted or at least substantially qualified by the email from the police officer. That police officer was the police officer that applied for an intervention order on the Mother’s behalf almost a year previously[21] and hence, I infer, was familiar with at least part of the history and the matter between the parties.
[21] I was told of this from the Bar Table and this was not disputed.
Accepting the Mother’s evidence, as I must, as to how she felt about the incident in early 2024, I am not satisfied that perception of the Mother demonstrates a deterioration in the Father’s mental health.
For the purpose of section 65DAAA I must accept the Mother’s evidence and that of the Grandfather as to the early 2024 incident at this hearing on the papers. Assuming that the Father has behaved as is alleged by the Mother and the Grandfather, I am not satisfied that this means there this is a deterioration of his mental health. If true, it is appalling behaviour.
For the purpose of this hearing on the section 65DAAA point, I am not satisfied that the evidence, accepting the Mother’s evidence of the early 2024 incident and how she felt about the early 2024 Police Station incident and the Father’s own statements in his Intervention Order application, demonstrates that the Father’s mental health has, prima facie, deteriorated. Hence having consider whether there has been a significant change of circumstances, I am not satisfied that prima facie the Father’s mental health has deteriorated. Hence I am not satisfied that, prima facie, there has been a significant change of circumstances.
Whether or not there has been a significant change of circumstances, I am satisfied it is proper in this case to consider the four matters of section 65DAAA(2)(a)-(d).
(a) the reasons for the final parenting order and the material on which it was based
The final parenting orders are consent orders and there are no recorded reasons available. I acknowledge the observations in the family report, including those recited above, were not tested, nor were they sought to be tested. However, I take those observations, particularly at [85],[22] into account as part of the context of the final orders. The orders were made because the parents satisfied the judicial officer by their joint position that the orders were then and in the future by the gradually increasing regime, in X’s best interests.
[22] Recited and emphasised earlier.
(b) …material available that was not available to the court (at) the final parenting order
There are two bundles of further information available. The first is that without any incident the parents felt should be raised in the hearing before me, X spent many periods of time with her Father, with public place changeovers. The second is the bundle of events on and after early 2024 recited and analysed above, including the assumed evidence of the Mother’s account of the early 2024 incident.
(c) the likelihood that…the court will make a new parenting order…
Depending on the conclusions of the psychiatric examination (discussed later) it is possible a further parenting order would be made, but taking all of the evidence into account including the (untested) observations of the report writer and the lack of evidence of other changeovers or the Father’s care of X being unsatisfactory, on the evidence available, including the assumed (not found or proven) poor behaviour of the Father in early 2024, I do not regard the likelihood of a new parenting order as very high.
(d) …potential benefit, or detriment,…from reconsidering…final parenting order.
If the Father’s mental health has deteriorated to such an extent that the welfare of X is influenced or impacted there would likely be potential benefit to X from a reconsideration of the final order. If the Father’s mental health has not deteriorated, the stress, grief, expense and further deterioration in the parental relationship that further litigation would cause to both parents would likely impact adversely on X.
Section 60CC matters[23]
[23] In both senses of the word.
At the Section 65DAAA exercise I must consider the matters described in section 60CC.
Section 60CC How a court determines what is in a child’s best interest.
Determining a child’s best interests
(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including the safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child)
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
…
(emphasis added)
At this point, and for the purpose of this hearing, consider the matters of section 60CC of the Act. I consider what arrangements would promote the safety of X and the Mother (section 60CC(1)(a)). I am, prima facie, satisfied changeovers should be at a public place. I am, prima facie, satisfied the needs of the child (section 60CC(1)(c)) include having a relationship with both her parents. I am satisfied, prima facie, of the capacity of each of X’s parents to provide for her physical, emotional and psychological needs (section 60CC(1)(d)). I consider and take into account the fact of recent final orders that have been implemented with many McDonald’s Restaurant (a public place) changeovers (section 60CC(1)(f)).
S.65DAA(1)(b) …whether there has been a significant change…best interests
Having considered the matters of section 65DAAA(1) and the four matters and how the provisions of section 60CC apply to this case, I am not satisfied, in all the circumstances, including that there has not been a significant change of circumstances since the final orders were made, that it is in the best interests of the child for the final parenting order to be reconsidered on this interim hearing pending the August hearing.
Interim hearing decision: different test applies
On one view, having not been satisfied that the final orders should be reconsidered, that is the end of the matter. However, there is a further hearing in August of 2024 intended to be a more thorough examination of the circumstances. In the event that I am wrong about my conclusion that to change final orders on an interim or urgent application pending a more thorough section 65DAAA hearing is a reconsideration of the final orders, I will deal with what would otherwise be an interim application. That is, an interim application pending the more thorough examination in August, the application to suspend the Father’s time arrangements in place from April 2023 to about January 2024. Whether or not the Rubicon of section 65DAAA has been crossed, I will deal with the crisis that this family is in.
For the purpose of this interim hearing decision, in accordance with Goode & Goode, I make no finding about which man is most responsible for the early 2024 confrontation. A different legal test must be applied.
On this interim hearing, as to controversial events, in contra distinction to the s 65DAAA exercise, I cannot make a finding about the early 2024 confrontation or dismiss the Mother’s concern that the Father’s mental health has deteriorated. It is necessary that I look at the paramount interest of the child and what arrangements promote the safety of the child and the Mother.
I am satisfied that it is in the best’s interests of the child in all the circumstances, and in particular because of the Father’s own account of his mental health or emotional stress in the intervention order application, that his mental health be formally assessed by an independent single expert witness. That evidence may assist the determination of the August 2024 section 65DAAA hearing and any other necessary application.
I weigh the many changeovers at McDonald’s that occurred without apparent incident against the Mother’s opinion that the Father’s mental health has deteriorated and her opinion of the events that partly corroborate her concern. I take into account that one of the principal matters that the Mother relied upon was her allegation of the Father’s aggressive demeanour to the police officer attempting to assist the family. The police officer’s account, at least in the email, contradicts the Mothers account. I do not accept the Mother’s opinion of the words alleged on that day on this urgent and interim determination applying Goode and Goode.
On this interim hearing, I place significant weight on that police officer’s assessment of the early 2024 incident. I also take into account the report writer’s opinion of the parenting capacity of both of X’s parents, and the agreement of the parents about that capacity implicit in the scheme of the recent April 2023 final orders. I take into account the benefit to X of her relationship with each of her parents that underpinned the scheme of the April 2023 final orders.
I place only a little weight on the allegations in the Father’s application for an Intervention Order. The Mother alleged that before the final orders were made she “experienced frequent and ongoing domestic violence”[24]. Each of the parties has alleged the other to be coercive and controlling and I do not make any findings about that. A history of alleged coercive and controlling behaviour prior to the final orders, although alleged in the Mother’s affidavit, was not advanced by the applicant Mother in submissions to me.
[24] At [6] of her affidavit of 20 may 2024.
The extant orders require changeover in a public place.
Notwithstanding the Father’s application for an Intervention Order, I am not satisfied there is an applicable Family Violence Order. The Intervention Order against the Father, protecting the Mother and X, expired in mid-2024, that is after proceedings were issued but before the hearing before me.
In all of the circumstances, and considering what arrangements would promote the safety of X and the Mother (section 60CC(1)(a)), the needs of the child (section 60CC(1)(c)), the capacity of each of X’s parents to provide for her (section 60CC(1)(d)) and the fact of recent final orders that have been implemented with many McDonald’s Restaurant (a public place) changeovers (section 60CC(1)(f)), I am satisfied that the original orders, including the McDonald’s restaurant public place changeover, should remain in place pending the more thorough section 65DAAA hearing in August 2024.
Single expert examination not a reconsideration of final orders
After the hearing I raised with the parties by email that if an order for psychiatric examination was to occur, whether it should be by an independent single expert and whether it should be at the parties’ joint expense. The parties accepted that if there was to be a psychiatric examination that it should be by a single expert and at the parties’ joint expense.
I accept the force of counsel for the Mother’s submission that a psychiatric examination will likely determine, or at least assist, the section 65DAAA application one way or the other. Such an order does not itself constitute a “reconsideration” of the final orders. Although I am not satisfied I can accept the Mother’s opinion that the Father’s mental health has deteriorated on the section 65DAAA question or in this urgent interim hearing, I do not dismiss the Mother’s opinion and anxiety about the Father’s mental health deterioration. I am satisfied that the Father’s current mental health should be considered by an independent expert at the joint expense of the parties for the purpose of the pending section 65DAAA hearing. I also take into account that for one party to unilaterally impose a drastic change to the recently made final orders would of itself likely impose considerable emotional distress on the other parent. I am satisfied it would be deeply emotionally distressing to the Mother were the Father to impose on her a drastic change to the final orders, like retention of X after a spend time visit.
I also take into account the opaque explanation and submissions from the Father’s counsel as to just what the Father meant or intended to convey about his emotional state by his assertion in his Intervention Order application and the opaque nature of the evidence of just what the Father attended Hospital for in early 2024, noting this was after the Mother had ceased to make the child available as provided by the orders.
I am satisfied I have power to do so as I do regard such an order as being a “reconsideration” of the final orders, but a necessary procedural order to facilitate the section 65DAAA inquiry.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 5 July 2024
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