YANCY & YANCY

[2019] FCCA 3141

FEDERAL CIRCUIT COURT OF AUSTRALIA

YANCY & YANCY [2019] FCCA 3141

Catchwords:
FAMILY LAW – Interim parenting – best interests of child – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60CA, 65D.

Cases cited:

Goode & Goode (2006) FLC 93-286
Marvel & Marvel [2010] FamCA 240
Eaby & Speelman [2015] FamCAFC 104
Banks & Banks [2015] FamCAFC 36

Applicant: MR YANCY

Respondent: MS YANCY

File Number: PAC 3536 of 2018

Judgment of: Judge Newbrun

Hearing date: 1 October 2019

Date of Last Submission: 1 October 2019

Delivered at: Parramatta

Delivered on: 8 November 2019

REPRESENTATION

Solicitors for the Applicant: Mr Marhinin

Counsel for the Respondent: Mr Campton

Solicitors for the Respondent: Mr Williams

ORDERS PENDING FURTHER ORDER

1. That [X] born … 2016 (“Child”) live with the Mother.

2. That the Child spend time with the Father as follows

2.1.From the Date of these Orders for a period of 6 weeks:

2.1.1.Each Tuesday from 7:00am until 4:30pm, on condition that the Father is not working that day; and

2.1.2.from 12:30pm until 6:30pm each alternating Saturday or Sunday.

2.2.From 6 weeks from the date of these Orders:

2.2.1.Each Tuesday from 7:00am until 4:30pm, on condition that the Father is not working that day; and

2.2.2.from 9:00am until 6:00pm each alternating Saturday or Sunday.

2.3.From the date [X] is 3 years and 6 months of age on … 2020 in the following fortnightly cycle of time:

2.3.1.Each Tuesday from 7:00am until 4:30pm, on condition that the Father is not working that day;

2.3.2.Week 1 from 6:00pm Friday until 10:00am Saturday;

2.3.3.Week 2 from 9:00am until 6:00pm Sunday;

2.4.From the date [X] is 4 years of age on … 2020 in the following fortnightly cycle of time pending further order of the court:

2.4.1.Each Tuesday from 7:00am until 4:30pm, on condition that the Father is not working that day;

2.4.2.Week 1 from 6:00pm Friday until 10:00am Saturday; and

2.4.3.Week 2 from 9:00am Saturday until 10:00am Sunday.

1. That for the purposes of change over for spending time, the father collect the child from, at the commencement of time spent, and return the child to, at the conclusion of time spent, the usual place of residence of the mother.

2. That each party shall keep the other party informed in writing as to their current residential address including within 7 days of either party changing their current residential address.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3536 of 2018

MR YANCY

Applicant

And

MS YANCY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This interim hearing related to the child [X] born … 2016. 

Proposals

1. The father’s proposals were set out in his Minute of Proposed interim orders sent to the Court after the interim hearing.

2. The mother sought interim parenting orders in accordance with Exhibit C.

Material relied upon

1. The mother relied upon the following documents:

   a)Orders sought – incorporated in her Case Outline dated 7 March 2019;

   b)Affidavit of Ms Yancy, sworn 29 August 2018;

   c)Affidavit of Maternal Grandmother, Ms A, sworn 30 August 2018;

   d)Affidavit of Mother, Ms Yancy, filed 7 March 2019;

2. The father relied upon the following documents:

   a)Affidavit of Mr Yancy filed 31 July 2018;

   b)Affidavit of Mr Yancy e-filed December 2018;

   c)Affidavit of Mr Yancy e-filed 25 March 2019;

   d)Financial Statement of Mr Yancy e-filed 5 December 2018;

   e)Notice of Risk filed 31 July 2018;

   f)Child Inclusive Memorandum.

3. The following exhibits were relied upon:

   a)Child Dispute Conference Memorandum dated 4 December 2018 and Child Inclusive Conference Memorandum dated 15 April 2019;

   b)Family Report;

   c)Mother’s Minute of Orders.

Agreed facts unless otherwise stated

1. The mother is aged 36, and the father is aged 32 years.

2. The parties commenced cohabitation in September 2013 and separated in November 2017. 

3. The mother asserts that she has been the child’s primary carer since birth to date.

4. The child lives with the mother in the former matrimonial home at Suburb B.

5. The mother is employed part-time as a teacher and her working hours are on Tuesdays and Thursdays from 8:30 AM until 4 PM.  The maternal grandmother looks after the child while the mother is working.

6. The father lives in a two-bedroom rental apartment at Suburb C.  He works as a self-employed tradesman.

7. The family report writer observed that the child was currently spending time with the father on Tuesdays (the Father told the Court it was on the Wednesday) between 12:30 PM and 4:30 PM and on one day each weekend from 12:30 PM to 6:30 PM.  The family report interviews were held on 24 June 2019.

8. The mother asserts that prior to the party separation, she had the child in a routine, and that in the mornings the father usually left for work at 5 AM and was not part of the child’s morning routine.  She asserts that the father usually came home when the child had already been fed while she was preparing the child for his night routine, and on some nights the father arrived home when the child was already in bed.  The mother asserts that during the relationship the father was usually not at home on Friday nights during the child’s evening routine.

9. The mother asserts (in her Affidavit filed 30 August 2018) that when the child routine is disrupted, she observed the child come unsettled.

10. The mother asserts (in her Affidavit filed 30 August 2018) that currently the father spend time with the child from 12:30 PM to 6:30 PM one day each weekend.

11. The mother asserts that in about mid February 2018 the father commenced spending time with the child on Tuesdays and Thursdays each week from 4:30 PM to 6:30 PM and which time occurred up to about April 2018.  (The father asserts that he also during this period spent time with the child either on a Saturday or Sunday each week (alternating weekly) from about 12:30 PM until 3:30 PM, and that since about May 18 he continued to spend such time with the child).

12. The mother asserts that from August 2018 the father spend time with the child from 12:30 PM to 6:30 PM on Saturday or Sunday each week.

13. She asserts that from late November/early December 2018, the child’s time with the father has consistently been 12:30 PM to 4:30 PM on Tuesdays, and alternating on a Saturday or Sunday each weekend from 12:30 PM to 6:30 PM.

14. The mother asserts (in her Affidavit filed 7 March 2019) that the parties continue not to communicate by phone or text message.  She asserts that the only form of communication between the parties, other than at changeover and through solicitors, is via email.  The mother asserts that she finds the way the father speaks to her aggressive or dismissive, or not at all at changeover, she has attempted to maintain positive communication with the father and kept him informed of matters relating to the child.  The father asserts that the mother has not provided to him the mother’s mobile telephone number and accordingly he cannot communicate with the mother by telephone.  He would like to communicate by telephone.  The father denies that he speaks to the mother in an aggressive or dismissive manner.

15. The mother asserts (in her Affidavit filed 7 March 2019) that since December 2018 the child has become reluctant to spend time with the father.  She asserts the child has continued to require encouragement to go with the father at changeover.  The father asserts that there was no real consistency in the child’s demeanour, meaning that on some occasions the child transitioned into his care with ease, and other occasions the child seems slightly upset and/or reluctant to leave with him.

16. The mother asserts that there were three occasions (in January and February 2019) when the child refused to go to spend time with the father. 

17. The mother asserts (in her Affidavit filed 7 March 2019) that the child has continued to be reluctant to leave with the father requiring encouragement on each occasion since December 2018 and is clinging to the mother upon his return to the point where the child cries when the mother leaves the room.  The father denies these assertions and states that the child has not continued to be reluctant to leave with him when he attends changeover.  He states that on many occasions the child has transitioned into his care with ease.  The father asserts that the child easily settles when he is in the father’s car, usually as soon as they drive away from the mother’s home.

18. The father asserts that he has assisted the mother with the care of the child during the relationship.  He asserts that he tried to be a hands-on father for the child during the relationship.

19. The father asserts that from about April 2017 and continuing to about separation, the child readily spend overnight time at the maternal grandmother’s home one or two nights per week.  He asserts that more often than not the child was left alone in the care of the maternal grandmother overnight when he slept over.

20. The father asserts that he spent regular daytime time with the child post separation.  He asserts that since about December 2017 the mother began to limit his time with the child.

21. The father asserts that from about January 2018 and continuing to the date of his Affidavit filed 31 July 2018, the time the child has been able to spend with the father has been determined by the mother.

22. The father asserts that the mother is disinclined to communicate with him about the child or any other matter. 

23. The mother told the family consultant at the Child Inclusive Conference on 12 April 2019 that the child still wakes two or three times during the night and calls for her.  She stated that she has noticed that the child does not want to leave her side when he is “vulnerable” such as when he is sick.

24. The mother told the family consultant at the Child Inclusive Conference that the child starts following her around the house when she mentions that the father will be coming, and that he tries to run away when the father comes to the door.  She stated that there have been times when the father has brought the child back because he was unsettled, and described this as a “credit” to the father, that he has not tried to force the child.

25. At the family report interviews, held on 24 June 2019, in relation to the report writer’s observation of the child with the father, inter alia, the father entered the room and the child smiled broadly at him.  The child ran over to the father to pick him up to give him a cuddle.  The father urge the child to say “goodbye” to the mother, which he did, without exhibiting any distress.

26. The mother told the family consultant at the Child Inclusive Conference that the child woke up five times during the night when they trialled a full day with the father, and requested his dummy which he had not used for some months.

27. The family consultant at the Child Inclusive Conference conducted an observation of the child with the father; the child appeared contented and happy when playing with the father, and there was no evidence of fearfulness or wariness on the child’s part.

28. The mother told the family report writer that in about November 2018 she did not feel the child was ready for overnight visits because he had just turned two years of age, and she was concerned because the child was having a meltdown each time the father picked up.

29. The mother told the family report writer that when the parties were in a relationship, the father would rarely get up for the night feeds or change the child’s diaper.

30. The family report writer stated that the child has not yet spent an entire day with the father.

31. The Affidavit of the maternal grandmother (filed 30 August 2018) states, inter alia, that she currently spends time with the child each Tuesday and Thursday while the mother attends work.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel & Marvel [2010] FamCA 240, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   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.

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   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.

3. Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:

   As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

4. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.

5. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

6. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

7. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

8. When making a parenting Order in relation to a child, 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 for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).

9. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

10. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.

11. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration

1. The child has a meaningful relationship with both parents and would benefit from a continuance of those relationships.

2. The mother’s interim parenting proposals in exhibit C, are consistent, and reflect to a significant extent, the recommendations of the family report writer. The father’s interim parenting proposals, on the other hand, seek to accelerate the progression of the child’s time with the father.

3. The mother asserts that the child since December 2018 has become reluctant to spend time with the father.  She asserts the child has continued to require encouragement to go with the father at changeover, with the father asserting, inter alia, that on some occasions the child transitioned into his care with ease.  The mother asserts that there were 3 occasions (in January in February 2019) when the child refused to go to spend time with the father. 

4. The court refers to the mother’s assertions to the family consultant at the Child inclusive conference and the family report writer that, inter alia, the child still wakes two or three times during the night and calls for her; she has noticed that the child is not want to leave her side when he is vulnerable such as when he is sick; that the child starts following her around the house when she mentions that the father will be coming and that he tries to run away when the father comes to the door; that the child wakes several times each night and would “freak out” were she not there.  The father, in response, asserts, inter alia, that the child usually transitions into his care with ease, and moreover he points to the child’s meaningful relationship with him.

5. Nevertheless, the above assertions of the mother are taken into account by the court, particularly in the context of the evidence of the family report writer, and the court in particular refers to paragraphs 62, 65 and 68 of the family report.  That evidence of the family report writer states, inter alia, the progression for a young child to commence spending overnight time (with the parent who may do not live with) should always be based on the child’s readiness to do so-this is assessed with regard to the child’s capacity to cope with the separation from the parent with whom they live, and their ability to use the parent with whom they will spend time as a source of comfort; any parenting arrangement must aim to minimise stress on the developing brain of the child.  In this context, the family report writer sets out a progression of time to be spent by the child with the father, referring, inter alia, to the child’s routines being established with the father; overnight times commencing when the child is accustomed to spending the entire day with the father; and overnight times progressing in a certain manner, by reference, inter alia, to the age of the child.

1. Acting cautiously and conservatively, and taking into account the evidence of the family report writer, whilst acknowledging that the family report remains untested at this interim stage, the Court is of the view that should it make the mother’s proposed interim parenting orders in Exhibit C, again which significantly reflect the recommendations of the family report writer, there is a significant prospect that the child’s meaningful relationship with the father can be maintained and enhanced. 

2. The court is of the view, again taking into account the evidence of the family report writer, that there is a not insignificant risk that the proposed orders of the father, which again seek to accelerate the child’s time with the father by comparison with the recommendations of the family report writer (eg the father seeks to spend an overnight stay each week from age 3 ½, as opposed to fortnightly) may militate against the maintenance and timely enhancement of the child’s meaningful relationship with the father, as opposed to the mother’s proposed orders in Exhibit C.

3. The Court observes that the father’s proposed order 3 would have the child spending each Saturday and Sunday with the father until the child turns 3 1/2; this proposed order carries a risk that the child’s meaningful relationship with the mother may be detrimentally affected in circumstances where the mother works part-time as a teacher and would not be able to spend any meaningful daytime time with the child during each weekend.

4. The Court notes the family report writer’s recommendation that when the child turns 4 years, consideration could be given to the child spending a night each week with the father with the possibility of extended time on the following day. The court notes the parties’ respective proposals for the child’s time with the father when the child turns 4 years. The mother’s proposals in this context provide for the child spending a night each week with the father, whereas the father’s proposals provide for the child spending two consecutive overnight stays in week one, with one overnight stay in week two. Further, the father’s proposals in this context would effectively mean that the child would not spend a substantial part of the weekends with the mother (noting the mother works part-time mid-week); such proposals also carry the risk referred to in the paragraph immediately above.  Again, acting cautiously and conservatively, in this context of the child’s time with the father after the child turns 4 years, the Court views the mother’s proposals as best reflecting the recommendations of the family report writer, whilst affording the mother substantially one full weekend (Saturday and Sunday) with the child each fortnight.

5. The Court gives significant weight to this meaningful relationship primary consideration.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. Not applicable.

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. Not applicable

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The child also has a positive relationship with the maternal grandmother and it would appear the father’s extended family.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. Both parties have taken such opportunities.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. It would appear that each party has sought to fulfil such obligations when the child has been in their respective care.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The Court refers to its discussion above under the meaningful relationship primary consideration.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. Not applicable.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. Not applicable.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

1. Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. Both parties have demonstrated appropriate attitudes towards the child and to their responsibilities of parenthood.  There is a significant suggestion on the material before the court that the mother has acted conservatively in relation to the progression of the child’s time with the father post separation.

(j) Any family violence involving the child or a member of the child's family

1. This is not a significant issue at this interim hearing.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter

1. Not applicable.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. Not applicable.

m) Any other fact or circumstance that the Court thinks is relevant

1. Not applicable.

Parental responsibility

1. This child has just turned three years of age.  There is no major decision looming for this child. In this context, the court notes the mother’s assertions in relation to the nature of communication between the parties and difficulties in relation thereto, whilst acknowledging the father’s responses in this context.  The court notes the evidence of the family report writer that communication between the parents as a matter of concern. It will not be in the best interests of the child to make an order at this interim stage in relation to parental responsibility.

2. It will not be in the best interests of the child to order equal time, with no party seeking such an order. Such an order may well be reasonably practicable.

3. As to substantial and significant time, the father’s but not the mother’s proposed interim orders probably would constitute such time (at least from when the child turns 3 1/2 years). Taking into account the matters discussed above under the meaningful relationship primary consideration, again acting cautiously and conservatively, it will not be in the best interests of the child to spend substantial and significant time with the father, as proposed by the father. Again, the Court takes into account the recommendations of the family report writer as to time to be spent by the child with the father, which the Court observes did not recommend orders constituting substantial and significant time, with the family report writer having been briefed, inter alia, with the father’s Initiating Application seeking such time. Such time would probably be reasonably practicable.

Summary

1. Evaluating the above discussed considerations under section 60 CC of the Act, it will be in the best interests of the children to make the following interim Orders:

2. That [X] born … 2016 (“Child”) live with the Mother.

3. That the Child spend time with the Father as follows

2.1.From the Date of these Orders for a period of 6 weeks:

2.1.1.Each Tuesday from 7:00am until 4:30pm, on condition that the Father is not working that day; and

2.1.2.from 12:30pm until 6:30pm each alternating Saturday or Sunday.

2.2.From 6 weeks from the date of these Orders:

2.2.1.Each Tuesday from 7:00am until 4:30pm, on condition that the Father is not working that day; and

2.2.2.from 9:00am until 6:00pm each alternating Saturday or Sunday.

2.3.From the date [X] is 3 years and 6 months of age on … 2020 in the following fortnightly cycle of time:

2.3.1.Each Tuesday from 7:00am until 4:30pm, on condition that the Father is not working that day;

2.3.2.Week 1 from 6:00pm Friday until 10:00am Saturday;

2.3.3.Week 2 from 9:00am until 6:00pm Sunday;

2.4.From the date [X] is 4 years of age on … 2020 in the following fortnightly cycle of time pending further order of the court:

2.4.1.Each Tuesday from 7:00am until 4:30pm, on condition that the Father is not working that day;

2.4.2.Week 1 from 6:00pm Friday until 10:00am Saturday; and

2.4.3.Week 2 from 9:00am Saturday until 10:00am Sunday.

1. That for the purposes of change over for spending time, the father collect the child from, at the commencement of time spent, and return the child to, at the conclusion of time spent, the usual place of residence of the mother.

2. That each party shall keep the other party informed in writing as to their current residential address including within 7 days of either party changing their current residential address.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate:

Date: 8 November 2019