Yoder & Zamora
[2023] FedCFamC1F 1034
•30 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Yoder & Zamora [2023] FedCFamC1F 1034
File number(s): SYC 6620 of 2021 Judgment of: ALTOBELLI J Date of judgment: 30 November 2023 Catchwords: FAMILY LAW – PARENTING – Where multiple family members were joined as parties – Where the mother did not attend on the final day of the hearing – Where the mother’s counsel and solicitor withdrew – Where the matter proceeded on an undefended basis against the mother – Where the remaining parties provided the Court with joint consent orders – Where the Court agreed that the consent orders are in the best interests of the child. Legislation:
Family Law Act 1975 (Cth), ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA
Cases cited: MRR v GR (2010) 240 CLR 461; [2010] HCA 4 Division: Division 1 First Instance Number of paragraphs: 26 Date of hearing: 27–30 November 2023 Place: Sydney Counsel for the Applicant: Ms Tovey Solicitor for the Applicant: P Williams & Company Lawyers Counsel for the First Respondent: Ms Tovey Solicitor for the First Respondent: P Williams & Company Lawyers Counsel for the Second Respondent: Ms Jones Solicitor for the Second Respondent: Christina Lam & Associates Counsel for the Third and Fourth Respondents: Mr Watkins Solicitor for the Third and Fourth Respondents: Trevillions Solicitors Counsel for the Independent Children's Lawyer: Mr Braine Solicitor for the Independent Children's Lawyer: S P Nasti & Co Solicitors ORDERS
SYC 6620 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS YODER
Applicant
AND: MR ZAMORA
First Respondent
MS B CROKER
Second Respondent
MS DEMPSEY
Third Respondent
MS C CROKER
Fourth RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
30 NOVEMBER 2023
THE COURT ORDERS THAT:
1.Counsel and solicitor for the Second Respondent mother ("the mother") are granted leave to withdraw from the proceedings.
2.Pursuant to Part 10.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, orders are made by consent as between the Applicant paternal grandmother, the First Respondent father, the Third Respondent maternal grandmother, the Fourth Respondent maternal aunt and the Independent Children's Lawyer, in accordance with the document marked "A" dated this day and attached hereto, on an undefended basis as against the mother.
3.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
4.Within seven days of the date of these orders, the Independent Children's Lawyer is to provide a copy of these orders to the mother at her last known postal and email address.
5.All outstanding applications otherwise are dismissed and the matter removed from the list of cases awaiting finalisation.
THE COURT NOTES THAT:
A.There was no appearance by the mother via Microsoft Teams today on the fourth day of the hearing, 30 November 2023.
B.Multiple attempts were made to communicate with the mother by her solicitor, all without success.
C.The mother was advised by her solicitor that if she did not attend the matter could proceed in her absence on an undefended basis.
D.Order 19 of the attached consent orders has been amended in chambers with the consent of the parties.
“A”
IN THE FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIAAT SYDNEY No. (P) SYC6620/2021
IN THE MATTER OF
MS YODER
Applicant (paternal grandmother)
and
MR ZAMORA
First Respondent (father)
and
MS B CROKER
Second Respondent (mother)
and
MS DEMPSEY
Third Respondent (maternal grandmother)
and
MS C CROKER
Fourth Respondent (maternal aunt)
andINDEPENDENT CHILDREN’S LAWYER
CONSENT ORDER AS AGREED BETWEEN THE APPLICANT, FIRST RESPONDENT, THIRD AND FOURTH RESPONDENTS
1.The father have sole parental responsibility of X DOB 2021 (the Child).
2.For the purpose of Order 1 and except in the event of an emergency, before making any major long-term decision the father will notify the mother as follows:
a.Advise the mother in writing not less than twenty-eight (28) days in advance of any decision on major long-term issues in relation to the child proposed to be made by the father;
b.Provide the mother with all relevant information which is in the possession of father relating to the long-term issue;
c.Provide any necessary authorities to enable the mother to obtain any additional information from any relevant health or education institution;
d.Give consideration to any response from the mother before making a decision; and
e.Inform the mother of any decision made as soon as reasonably practicable and no later than seven (7) days after the making of the decision.
3.That the Child continue living with Ms Dempsey and spend time, as agreed in writing but failing agreement:
a.For a period of 4 weeks alternating:
i. With the father at the paternal grandmother’s home from 2.00pm Thursday (pick up from day-care) to 9.00am Monday (drop off to day-care).
4.Thereafter for a period of 8 weeks alternating, as agreed in writing but failing agreement:
a.With the father from 2.00pm Wednesday (pick up from day-care) to 9.00am Monday (drop off to day-care) (this time should be spent at a mixture of Ms Yoder’s residence and Mr Zamora’s residence).
5.Thereafter, the Child live full-time with her father and spend time with the MGM, as agreed in writing but failing agreement:
a.Each alternate weekend from collection at 3pm Friday (or school pick up) from either the father’s residence or the paternal grandmother’s residence or daycare as the case may be, until 8.30am drop off on Monday (or commencement of school) to either the father’s residence or the paternal grandmother’s residence or daycare as the case may be.
6.The Child shall spend time with the MGM as above, save as for the following:
a.For Christmas in odd numbered years:
i. From 2pm on Christmas eve until 11am on Christmas day;
b.For even numbered years:
ii. From 11am on Christmas day until 11am on boxing day.
7.The maternal grandmother shall spend one week of the NSW Christmas school holidays with the Child, as agreed in writing with the father, on 30 days notice.
8.The maternal grandmother shall spend time with the Child on the Child’s birthday for 2 hours at a time as agreed in writing between the maternal grandmother and the father.
9.Subject to the mother being supervised on the basis of these orders and notwithstanding any other order to the contrary, the mother spend supervised time with the child as follows:
a.On the child’s birthday, 2 hours if on a week day and 3 hours if on a weekend;
b.On mother’s day, 3 hours;
c.On Christmas eve, 3 hours.
10.The mother shall have supervised time with the Child for up to three hours weekly at a contact centre or agency (as paid for by the mother) or supervised by the paternal grandmother, maternal grandmother or maternal aunt, as agreed or other supervisor as may be agreed in writing by the father.
11.The father shall review the mother’s time with the Child subject to her complying with the following:
a.Within 14 days of the date of these orders the mother is to re-engage with a psychiatrist for ongoing care and provide their name to the father.
b.The mother shall participate in 6 monthly reviews by her psychiatrist.
c.Within 14 days of the date of these orders the mother is to provide a copy of these orders, the Family Report and the reports of Dr D dated 18 November 2021 and 20 November 2023 to her general practitioner, psychiatrist and psychologist.
d.The mother is to continue to attend upon her general practitioner as recommended by her general practitioner.
e.The mother is to attend upon her psychologist:
i. weekly for 12 months from the date of these orders;
ii. thereafter, fortnightly for 6 months; and
iii. thereafter, at a frequency determined by her psychologist.
f.The mother is to attend upon her psychiatrist at least every 6 months on an ongoing basis.
g.The mother is to advise the father of any changes to her treating practitioners within 14 days.
h.The mother irrevocably authorises and directs, and this Order acts as such authority and direction to her general practitioner, psychiatrist and psychologist to contact the father (by email at …@...) and inform him in the event that:
i. The mother has failed to comply with the recommendations of treatment;
ii. The mother has failed to attend upon the treating practitioner as per these orders;
iii. The mother has not complied with the recommended usage of prescribed medications;
iv. The mother has been admitted as an involuntary psychiatric patient to hospital; or
v. The mother has self-harmed.
12.In the event that any of the criteria above is not met, the mother’s time is suspended.
13.That the father continue to attend upon Ms E for counselling.
14.That the father, paternal grandmother, maternal grandmother and maternal aunt complete the Circle of Security course within 6 months of the date of these orders.
15.The father is authorised and permitted to apply for and receive an Australian passport for the Child without first obtaining the written consent of the mother.
16.Each party is restrained by injunction from:
a.Making critical or derogatory remarks in relation to the other party in the presence or hearing of the children and each party shall do all things necessary to ensure that no third party makes critical or derogatory remarks about the other party in the presence or hearing of the children; and
b.Discussing any matter related to any dispute between the parties and these parenting proceedings in the presence or hearing of the children, and each party shall do all things necessary to ensure that no third party discusses or exposes the children to materials relating to the dispute or these proceedings.
17.If maternal grandmother or maternal aunt wishes to travel interstate with the child, then they shall be permitted to do so subject to compliance with the following:
a.That the party intending to travel with the Child provide the father with no less than seven days’ notice of the intended destination and the proposed dates of travel;
b.The time of travel shall be limited to when the Child is in the care of the travelling party unless otherwise agreed in writing by the father.
18.If maternal grandmother or maternal aunt wishes to travel overseas with the child, then they shall be permitted to do so subject to the maternal grandmother or maternal aunt who intends to travel providing to the father no later than 60 days prior to the proposed travel:
i. A full itinerary of proposed travel;
ii. Copies of return airline tickets;
iii. Notify the other party of the proposed address and contact details; and
iv. Arrange such travel so that it does not coincide with time that the child would ordinarily spend with the father unless agreed by the father in writing
19.1The mother shall within 14 days of being sent any forms by the Father relating to the insertion of the Father’s name on the child’s birth certificate, sign and return to the Father those forms and in the absence of compliance, a Registrar of this Court is appointed pursuant to Section 106A of the Family Law Act 1975 to sign those forms on the Mother’s behalf.
19.2 The Father shall be responsible for the lodgement of those forms with the Registry of
Births Deaths and Marriages NSW and the payment of any fee associated with the lodgement of those forms and should provide to the mother a copy of any birth certificate issued within seven days of receiving that birth certificate.
20.The parties pay the costs of the independent children’s lawyer in equal shares.
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 Yoder & Zamora has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)ALTOBELLI J:
I provide the following short ex tempore reasons for judgment. This case is about X, who is two years old. The orders that I have made are largely by consent, except in relation to the mother (“the mother”). The orders provide, in effect, to adopt the words of Mr Braine, counsel for the Independent Children’s Lawyer, a family solution which maintains in X’s life the people who have historically cared for and loved her. There is no doubt that X is a much-loved daughter to the mother and the father (“the father”), and niece to her aunt (“the maternal aunt”), and granddaughter to both her paternal and maternal grandparents (“the grandparents”).
X has probably not experienced the adversity in her life that the mother and the father and, arguably, even the grandparents, have experienced in their lives. It is a tribute to the grandparents especially, but also the maternal aunt, that despite the adversity that they have experienced, they have been able to focus on what is best for X at times when the mother and the father were not able to do so.
With the passage of time, it is clear on the evidence before the Court that the father, with the assistance of an extended family network including the paternal grandmother (“the paternal grandmother”), has largely overcome the difficulties that he has previously experienced with his mental health. All of the parties who have consented to this order, and the Court, are satisfied that X is going to be well looked after in his care, especially with the support network that he has.
X is going to be able to continue to have the good relationship that she has with the maternal grandparents (“the maternal grandparents”), especially the maternal grandmother (“the maternal grandmother”) and the maternal aunt. In a Court, especially this courtroom, that is so used to experiencing the intense conflict of families over children, it is refreshing, indeed uplifting, to know that families can put aside the differences that they have had, and let go of the impact of experiences that they have had in the past, so that the focus can be solely on making sure that the next generation, because that is what X is, has the best possible opportunity to live a happy, healthy and productive life. I am satisfied that these orders actually achieve that, and I congratulate everybody.
The orders are made on an undefended basis in relation to the mother who, for reasons that are completely unknown to the Court, has chosen not to participate on this, the fourth day of the hearing, notwithstanding her participation and giving evidence through Microsoft Teams audiovisual technology, during the first three days of the case. The mother’s counsel and her solicitor who, in the opinion of this Court, well-represented her during this Court case, were put in the invidious position where they had to seek leave to withdraw. Having made numerous attempts to communicate with her this morning by phone, I apprehend by text message and by email, they have indicated to the Court through counsel, and the Court accepts, that the mother was notified that if she did not participate in the proceedings, that the Court could and, in fact, has proceeded to deal with the case to finality in her absence.
It is necessary for me to provide some brief reasons as to why the Court has made the orders that it has made and concluded that these orders are in X’s best interests, even though they are not the orders that the mother contended for. In so doing, it is important for the Court to recognise, acknowledge and incorporate, even in ex tempore reasons, the significant quantity of evidence that was before it, namely, the documents that were filed and relied on by the parties, the expert evidence, and the documents that have been tendered into evidence, as well as the applicable law that applies in this case.
THE EVIDENCE
In support of their case, the paternal grandmother and the father relied upon the following material:
(1)Case Outline filed 24 November 2023;
(2)Amended Initiating Application filed 26 October 2023;
(3)Further Amended Response filed 26 October 2023;
(4)Affidavit of Ms Yoder filed 30 October 2023;
(5)Affidavit of Mr Zamora filed 27 October 2023;
(6)Affidavit of Mr Zamora filed 23 November 2023; and
(7)A document tendered during the proceedings and marked as Exhibit APGM1.
In support of her case, the mother relied upon the following material:
(1)Case Outline filed 23 November 2023;
(2)Amended Response filed 14 November 2023;
(3)Her Affidavit filed 31 October 2023;
(4)Affidavit of Mr F filed 24 November 2023; and
(5)Various documents tendered during the proceedings and marked as Exhibits RM1‑RM3.
In support of their case, the maternal grandmother and maternal aunt relied upon the following material:
(1)Case Outline filed 23 November 2023;
(2)Amended Response filed 12 October 2023;
(3)Affidavit of Ms Dempsey filed 13 October 2023;
(4)Affidavit of Ms C Croker filed 12 October 2023;
(5)Affidavit of Mr G filed 12 October 2023;
(6)A document tendered during the proceedings and marked as Exhibit MGM1.
In support of his case, the Independent Children’s Lawyer relied upon the following material:
(1)Case Outline filed 24 November 2023;
(2)Family Report of Ms H dated 1 December 2022;
(3)Single Expert Report of Dr D dated 18 November 2021;
(4)Updating Single Expert Report of Dr D dated 20 November 2023;
(5)Various documents tendered during the proceedings and marked as Exhibits ICL1‑ICL4.
THE APPLICABLE LAW
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as “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.
(Emphasis in original)
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.
(Emphasis in original)
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.
…
(Emphasis in original)
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.
60CC How a court determines 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.
(Emphasis in original)
The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n 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".
A little later in the judgment the High Court said:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
DISCUSSION
For all practical purposes, there were two substantive issues that needed to be determined, even if the mother had participated. The first issue was whether there should be the order for sole parental responsibility to the father as contended for by those who have signed the consent orders, or whether the order should be for equal shared parental responsibility as contended for by the mother. The Court has no hesitation in finding that it is in the best interests of X that the father have sole parental responsibility. The presumption of equal shared parental responsibility does not apply in this case for numerous reasons. It is clear on the evidence that the mother and the father cannot communicate and, indeed, have not communicated for quite some time. That would make the implementation of equal shared parental responsibility highly problematic, and it would, indeed, be creative of conflict between them.
It is also clear that not only can they not communicate, but they cannot trust each other, without which joint decision making becomes highly problematic. There are also consequential concerns about the mother’s mental health that would make equal shared parental responsibility totally impractical and not in the best interests of X. These issues of the mother’s mental health, which are well documented before the Court, suggest that decisions that the mother may put forward would potentially be adversely affected by her inability to see things in relation to X clearly. I had the benefit of hearing evidence from the mother earlier this week. I form the strong impression, both from that evidence and her affidavit, that she has minimised the mental health issues that she has experienced.
The second issue relates to whether the mother’s time with X should be supervised and, if so, by whom. The orders proposed in the consent orders represent, in my opinion, a comprehensive attempt to be as inclusive and as practicable as can be in the circumstances of this case. The persons put forward are those who have the history and track record of being able to look after X. One of the difficulties associated with the mother’s mental health is her inability to maintain consistent relationships, even with those who clearly love and care for her. I think this is manifested in, for example, the mother’s clear evidence to me that she would not accept under any circumstances that either the maternal grandmother, the maternal aunt or the paternal grandmother would be suitable supervisors of her time.
The mother advanced her partner as a possible supervisor. I am not satisfied that he is suitable. After hearing his evidence combined with that of the evidence of the mother, I form the distinct impression that both had sought to overstate or exaggerate the nature of their relationship, which the mother presented in evidence as one of being engaged. If they are truly engaged, it is a recent event, but my distinct impression from the manner in which both of them gave evidence about this topic is that it had an element of opportunism and that it was advanced on the basis that it would strengthen the mother’s case, particularly as regards the suitability of her fiancée as supervisor.
The Court’s reluctance about her fiancée goes beyond that. He was not able to demonstrate a sufficient level of maturity about parenting matters that would reassure the Court. He was not able to demonstrate that he knew, let alone understood, the mental health issues and history of the mother, let alone how that might impact on his responsibility as a supervisor for X’s time with the mother. He failed to disclose his own mental health history. In the circumstances, and particularly taking into account the mother’s own difficulties with maintaining relationships, the contention that he should be a suitable supervisor is one that the Court does not accept. Moreover, these matters simply confirm the Court’s belief that equal shared parental responsibility is simply not something that could be in the best interests of X.
Hence, in relation to the major points of difference, I find against the mother. I note that she had given her evidence, as had her fiancée. I note the clear terms of the expert evidence of both Ms H and Dr D that the mother’s time with X needs to be supervised. I appreciate that there is a risk that, from the mother’s perspective, she could walk away from X, despite the highly inclusive nature of the orders for supervised contact that I have made. I am satisfied that, in fact, all of the people in this case want X to have a relationship with the mother and that at a point when the mother herself decides that she wants this relationship on terms that are protective of X, that they, together as a family, can find a way forward.
I am satisfied, therefore, that these orders are in the best interests of X, and I make these orders.
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. Associate:
Dated: 30 November 2023
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