Yeats & Radclyffe
[2022] FedCFamC1F 7
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Yeats & Radclyffe [2022] FedCFamC1F 7
File number(s): PAC 3562 of 2017 Judgment of: ALTOBELLI J Date of judgment: 11 January 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Where the applicant paternal grandparents seek a review of interim orders made by a Senior Judicial Registrar which in effect suspended spend time with arrangements between the children and the applicants – Single expert report available – Concerns about the attitudes of the paternal grandparents and the risk of these attitudes being passed to the children – Consideration of supervised contact at a supervised contact centre – Application dismissed – Final hearing of matter expedited. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.07
Cases cited: Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346 Division: Division 1 First Instance Number of paragraphs: 26 Date of hearing: 11 January 2022 Place: Sydney via videoconference Counsel for the Applicants: Ms Tabbernor Solicitor for the Applicants: Godden Lawyers Solicitor for the First Respondent: Ms Taylor of Prime Lawyers Solicitor for the Second Respondent: Mr Ulbrick of G & D Lawyers Solicitor for the Independent Children's Lawyer: Ms Beach of Legal Aid NSW ORDERS
PAC 3562 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS YEATS
First Applicant
MR YEATS
Second Applicant
AND: MS RADCLYFFE
First Respondent
MR RADCLYFFE
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
11 JANUARY 2022
THE COURT ORDERS THAT:
1.The Application for Review filed on 16 November 2021 is dismissed.
2.The costs of the First Respondent and the Independent Children’s Lawyer are reserved.
3.The final hearing of this matter is expedited.
4.The matter is to be placed in the docket of a judge of Division 1 of this Court.
5.The matter is listed for case management hearing before a judge of Division 1 of this Court on a date to be fixed.
6.The Independent Children’s Lawyer notify the solicitor for the Second Respondent of the outcome of today’s proceedings.
THE COURT NOTES THAT:
A.The solicitor for the Second Respondent was excused from today’s proceedings.
B.The matter will be listed in the docket of a judge of Division 1 of this Court and the parties will be notified in due course.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Yeats & Radclyffe has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
This case is about two children, X and Y, who are six years old. The litigation between the applicant paternal grandparents (“the paternal grandparents”) and the respondent mother and father has been quite lengthy. The matter comes before me on an application by the paternal grandparents to review a decision that was made by a learned Senior Judicial Registrar of this Court on 12 November 2021, which discharged previous consent orders made on 30 April 2021. In those consent orders, the paternal grandparents had the opportunity to spend time with the children. The effect of the learned Senior Judicial Registrar’s order was to suspend that order, meaning that for practical purposes, unless something is done about it today, the paternal grandparents are not spending time with the children.
I have made orders expediting this matter to a final hearing and placed it into the notional docket of a judge yet to be appointed. Whilst there is always uncertainty about judicial appointments, assuming the anticipated appointment comes through, I expect that this matter should have a hearing date in the first half of this year. I was assisted by very helpful written submissions and case outlines prepared by the paternal grandparents, by the mother, and by the Independent Children’s Lawyer.
The father played a minimalist role in this case. His solicitor, Mr Ulbrick, appeared shortly, but sought (and was granted) leave to not participate this morning. The father relies on his affidavit of 12 November 2021. He makes it clear that he does support his children spending time with the paternal grandparents, as sought by them. The case outlines and written submissions refer to the affidavits and other material relied on by each of the parties and I have regard to those materials. In addition, I have disclosed that I also looked at the previous case outlines that were filed before the learned Senior Judicial Registrar, to assist me in understanding the context of this case.
APPLICABLE LAW
The issue in this case is whether the children should spend time with the paternal grandparents. It is a hearing de novo. By no means is this an appeal from the learned Senior Judicial Registrar’s decision.
Rule 14.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) “the Rules”) sets out how a review of a Registrar’s decision should be conducted:
(1)A court must hear an application for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar as an original hearing.
There is a helpful note that reads:
In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.
Subrule 2 details what evidence may be received by the Court:
(2) The court may receive as evidence:
(a)any affidavit or exhibit tendered in the first hearing; or
(b)any further affidavit or exhibit; or
(c)the transcript (if any) of the first hearing; or
(d)if a transcript is not available—an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
The applicable law for interim parenting matters is set out in Pt VII of the Family Law Act1975 (Cth) (“the Act”). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)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.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)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.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(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;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a 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;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(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;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)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
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(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:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
The case law
The Full Court’s decision in Goode & Goode (2006) FLC 93-286 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
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) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(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 s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In addition, there are risk of harm considerations in this case.
DISCUSSION
I think the most important evidence in this case is that of Dr B, the single joint expert. Dr B’s report dated 25 October 2021 is extensive and I will refer to a number of paragraphs that are significant. Firstly, Dr B opines, for example, at [554]–[558] that the family violence that took place in this case between the father and the mother (and to which the children were exposed directly or indirectly) was “at the severe end of the spectrum”.
That is a background fact that was not put in contention. The significance of the father’s non-participation today, in my view, reflects that he was not seeking to cavil with any previous orders about him not having time with the children. We are talking about serious family violence in this case. Of course, the present focus is on the paternal grandparents, who Dr B discusses at [349]–[351] of his report. Specifically, the issue of their attitudes, which I consider a significant issue in this case, is discussed at [358], [364]–[366], [369], [374], [376], and [378]. Paragraph 389 deals with their perception of the outcome of the proceedings.
It is clear from Dr B’s report, for example from [661] onwards (particularly [668], [676], [682], [683] and [710]), that he was well aware of the history of the relationship between the children and the paternal grandparents and the time that they have spent both on and off. Dr B discusses the issue of the children’s exposure to family violence at [712]. The question of the mother’s resilience is discussed at [586]–[587]. He makes recommendations in relation to the children spending time with the paternal grandparents at [728.5] and [740].
In effect, the thrust of it is that there should not be any time, though Dr B does, perhaps with less clarity than one is used to seeing in his reports, refer to the possibility of video contact.
Some attention was quite properly focused on [544]–[545], which, to use the words of Ms Tabbernor, identified the risks to the children of having contact with their paternal grandparents. Ms Tabbernor, again, quite correctly points out that Dr B’s evidence is untested. Indeed, it is untested, but Dr B’s evidence is also the only independent expert evidence in this case. From this Court’s perspective, it would be unwise to not place appropriate weight on the recommendations that he makes in his report.
What becomes clear when Dr B’s report is considered is that there are concerns about the attitudes of the paternal grandparents, particularly in regard to the violence that was perpetrated by their son and to which the children appear to have been exposed. This was acknowledged in the submissions, including in the submissions on behalf of the paternal grandparents. The difficulty for the Court and the great challenge that is raised in a case like this is how does one protect the children from the transmission of attitudes?
Certainly, Dr B seems to think that the best way is to not have any contact between the paternal grandparents and the children. Counsel for the paternal grandparents makes a strong case for supervised contact as an alternative to there being no relationship, and one would have thought that generally at a professional supervised contact service even this nebulous concept of attitudes can be closely monitored and controlled. Attitudes, of course, are generally manifested in words that are said as well as things that are done. However, the harsh reality in this case is that even if I had considered supervised contact – and I must say I did consider it seriously – making that order would have meant that in all likelihood supervised contact would not have started before a final hearing could be held.
In any event, I think that there are reasons against making an order for supervised contact at a supervised contact centre. I accept the submissions from both the solicitor for the mother and the Independent Children’s Lawyer in this regard. The concerns are the potential impact on the mother. I am particularly cognisant of Dr B’s recognition that whilst the mother presents as being somewhat resilient, there are limits on that. That is one reason why making an order for supervised contact is contraindicated.
I am concerned about the impact of frequently changing orders on these children. The mere fact that they are used to changes in their spend time with arrangements with the paternal grandparents is not license to expose them to it once again. In any event, there is the uncertainty about when supervised contact would start, vis a vis the date of the hearing. All of these matters cumulatively, and perhaps in the limited circumstances of this case, contraindicate making an order for supervised contact. In circumstances where Dr B’s independent expert evidence is expressed in a very cautionary way, as I say, I think the Court would be most unwise to ignore those recommendations.
Of course, at a final hearing, the evidence will be tested, but that is not to say that after testing the recommendations will have any less weight. We just do not know. Having regard to these matters, I think it is clear that risk of harm considerations prevail over other considerations in this case. Though I want to recognise that on the evidence before me, for the most part, the children generally seem to have enjoyed a good, though not extensive, relationship with the paternal grandparents in the past.
I accept that the relationship between the children and the paternal grandparents is an important one. This consideration would have weighed more significantly were there not the risk of harm considerations identified in Dr B’s report. I accept the submission made on behalf of the Independent Children’s Lawyer that such is the relationship between the children and the paternal grandparents that the relationship can probably cope with an interruption that I hope will be measured in terms no longer than months. I am conscious of the likely effect of changes in the children’s circumstances and that is part of the reason for not introducing a different type of contact for them.
The children have not had supervised contact in a supervised contact centre before. There are issues of practical difficulty, in the sense of delays in accessing the services. In the circumstances, I do not think there is any need for me to further elaborate on my reasons. Ultimately, the risk of harm considerations prevail. Dr B’s report, even in its untested form, is something that must be taken very seriously by the Court. Accordingly, I formally dismiss the Application for Review that was filed on 16 November 2021.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli delivered on 11 January 2022. Associate:
Dated: 11 January 2022
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