Family law 101- parenting

Wednesday, July 04, 2018

In June I presented for the Queensland Law Society to junior practitioners about family law 101- parenting cases. Here is my paper:

QUEENSLAND LAW SOCIETY

INTRODUCTION TO FAMILY LAW 101

PARENTING MATTERS

Brisbane – 6 June 2018

by Stephen Page[1]

1. Getting instructions

Aside from the usual processes of trying to get clear instructions from a client, and the need to proof a client (a skill which is unfortunately so often lacking), as lawyers our job is to think analytically and hopefully to think several steps ahead. Negotiating or litigation concerning children is to think as though you are playing a game of chess and therefore always think several moves ahead, with the exception of course that as lawyers in parenting matters, whether acting for a party or as the Independent Children’s Lawyer, the outcome of negotiations in litigation is much more significant than that from a board game. We have a duty to the child, as well as our clients.

Any mistakes we make, it is likely that the child will wear those. These may have a lifelong impact. Nothing is more sobering when having practised family law for a long time as I have done to reflect back and wonder what impact the litigation I engaged in has had on children, knowing that these children have now grown up and likely had education, jobs, relationships and children of their own.

My teacher in grade 2C, Mrs Bray, made a note on my report card along the lines of “Stephen is always looking out the window daydreaming”. I cannot emphasise enough that to reflect about a matter, particularly involving children is essential. Too often solicitors act as spear chuckers for their clients without reflecting about what ought to be in the material, what they are writing in correspondence, what positions they are taking in negotiations and what outcomes they are urging upon a court or a mediator.

We are not our clients’ runners. Whilst we are the advocates for our clients, and owe a duty to our clients, we also owe a duty to the Court, to the law and to the children who are impacted by our actions.

A reminder about rule 17.1 of the Australian Solicitors Conduct Rules:

“A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable.”

Or to use the words of Mr Robert Grant: “It is better to represent the interests of your client rather than their anger.”

At the first attendance on every client in a parenting matter, I ask to see a photo or photos of the children. These days it is pretty easy – everyone has a photo on their mobile phone. The reason that we do family law is because we want to help people. These people and especially their children are not numbers. Too often I have seen affidavit material that refers to “the child” instead of their son “Fred”.

I encourage you, if you have the time available, to do volunteer work at a community legal centre advising about family law and to do duty lawyer work in family law or domestic violence. Aside from the feel good factor and know that you are helping others, doing volunteer work at a community legal centre in family law means you have to sharpen your skills. Typically you will be given a sheet setting out the client’s problem. You have to be able to identify that problem precisely (even when the person filling out the intake sheet has misidentified it) and give practical succinct advice to deal with the problem – all in 20 minutes.

If you are a duty lawyer you will soon experience both the gratitude of judges or magistrates for your assistance and in turn experience all the challenges of advocacy:

· Getting instructions quickly;

· Analysing those instructions;

· Giving succinct practical advice;

· Putting propositions to the Court;

· Finding out what it’s like when you are underprepared in dealing with the judge;

· Learning quickly how to properly advocate before a judge so you can get to the nub of the issue in the short time that you have before them.

2. Have a case plan

I can’t emphasise enough the need to have a strategy based on a case plan. Reflect and think through as to the state of the evidence. What ultimately is your client seeking? Does the evidence support those propositions? Test your client as part of the proofing process. Does your client come up to proof? Give your client realistic advice.

Above all, think and reflect about where you want this case to end up. You are not painting by numbers.

It is essential in preparing the case plan in my view from the very beginning of any parenting matter to produce a timeline, or as we lawyers call it a chronology. You need to revise this document on the way through and it should capture everything. It should have three columns:

· Date;

· Event or Allegation;

· Source.

In the last column you set out where the source of the information is – such as from correspondence or from a particular paragraph of a particular affidavit, for example. It might be from subpoenaed material. It might be from bank documents, for example. When you put a chronology together carefully, it is extraordinary at times the mosaic that appears before your eyes.

In a trial a couple of weeks ago in which I and an associate prepared a lengthy chronology summarising 7 lever arch folders of court documents, Senior Counsel told me that it was a blessing to receive, making his job particularly with cross-examination, considerable easier – and could I teach other solicitors to do the same, as it is so rarely done.

As an example of what could be in a chronology:

Date	Event/Allegation	Source
12/6/14	Child Fred Aloysius Lucius Smith born (4)	2 Aff M 3/7/17, 3 Aff F 4/8/17, 2 Aff F 9/4/18
	Father present at birth	29 Aff M 3/7/17, 41 Aff F 4/8/17
26/6/14	Mother registers the birth but father unknown	44 Aff F 4/8/17, subpoena docs from BDM
14/7/14	Child’s passport obtained by mother, but without father’s consent	45, “A” Aff F 4/8/17
21/7/14	Mother signs stat dec that father is unknown	Stat dec 21/7/14 BDM subpoenaed docs
1/2/15	Father registered on the birth register	Email from BDM 3/9/17

Similarly a well prepared chronology will also reveal, hopefully, to you the gaps in the evidence for your client’s case.

3. KISS

If we are fortunate enough to have a client who has unlimited funds and wants to spend that on litigation, we could possibly make that litigation as complex as possible. Aside from any issue of overcharging and making the lives of all concerned miserable (especially that of the children), you should at all times consider what you do proportionately. The KISS principle has much going for it.

Remember Judge Harman’s triangle of dispute resolution:

· Most cases (about 70%) are resolved without any third party intervention (for example, no action taken, self-help, direct discussions)

· Then in a series of smaller groups (each of which requires more and more resources), we see:

o Resolved with third party intervention (e.g. lawyer negotiation, mediation)

o Proceedings commenced, but resolved without hearing)

o And the smallest group, in the past 1-3% of cases, currently I understand about 5%- proceedings heard and determined by a court.

4. Learn to negotiate

It is fundamental to the practice of being a solicitor or barrister to being able to negotiate. Whether you settle a matter without going anywhere near a court, or attend mediation or even have a trial- at all stages sooner or latter you will be negotiating on behalf of a client.

Don’t make ambit claims. Put forward reasonable positions. Particularly in parenting disputes, generate other options. What other ways can work for this family and child? Engage in brainstorming if necessary. I suggest in writing letters or emails when you are putting forward offers to set out succinctly why your client is putting an offer as well as what the offer is. That way even if the other side doesn’t agree with the specifics of the offer, you have left the door open, increasing the chances of negotiating a deal.

Last week I was surprised at the last minute while negotiating at court by the other side putting an offer on one issue. No explanation was given as to what was sought. We didn’t have time to ask why. Once we were in court, an explanation was given as to the drafting What looked on paper to be highly objectionable was in fact- when recast- quite a reasonable proposal.

While emails are extremely useful, as a means of negotiating, they are not particularly good. A letter, after all, is a monologue. To have a dialogue is very difficult with an email. Much better to pick up the phone. Before you do, find out about your opponent, so you have some idea of who you are speaking with. Look at the QLS website, and Google their firm website at the least. Ask colleagues about them.

If you know nothing about negotiation, get taught! Do a course.

And remember this rule about negotiation (and of being a practising lawyer): reputation is everything. Your reputation, once you are known, comes before you- for good or bad. A bad reputation can take a long time to shake off.

Example: how not to negotiate

My client saw me about a parenting matter for the first time, brandishing a letter from her ex’s solicitors. The letter then listed 5 pages of conditions of an offer. On and on it went, including on about page 3 a requirement for the children to attend a particular child psychiatrist for the purposes of psychotherapy. The children had never been for psychotherapy. On the last page came the clincher. It was along the lines of – accept our client’s offer or our client will institute proceedings and obtain an indemnity costs order against my client!

There was next to no chance that a parent, faced with 5 pages of conditions, including a condition that the children attend a particular child psychiatrist, would agree to the offer. Not surprisingly, my client rejected the offer.

The matter ran all the way to trial. My client was wholly successful, and obtained a substantial costs order against her former partner.

5. Be courteous

It is much easier to catch flies with honey, they say, than with vinegar.

It is very easy when clients tell you about horrific things that have occurred to be extremely angry when dealing with the other side. To do so is a mistake. Whilst it is necessary to be assertive for your client, you have professional responsibilities. If in doubt don’t send that email straightaway or make that angry phone call but think about it overnight. Alternatively talk to colleagues to make sure that anything you draft along those lines is checked. Don’t engage in a slanging match with the other side in correspondence. It is easy to do but really avoidable.

If possible, think about other ways that you may be able to tackle the issue without inflaming the dispute. Or other ways to get the evidence without turning into a wild goose chase.

6. Think laterally

Whilst the focus today is about the Family Law Act, remember that there is other legislation that might be on point and that you may need to read and know well. If you are in the Federal Circuit Court, read the Federal Circuit Court Rules. If you are in the Family Court, read the Family Law Rules. These may sound basic and obvious, but you would be surprised how often practitioners don’t do them.

Other legislation that might pop up in your case could be the:

· Adoption Act 2009 (Qld)

· Child Protection Act 1999 (Qld)

· Child Support (Assessment) Act 1989 (Cth)

· Domestic and Family Violence Protection Act 2012 (Qld)

· Status of Children Act 1978 (Qld)

· Surrogacy Act 2010 (Qld)

· Trans-Tasman (Proceedings)Act 2010 (Cth).

Be aware that this legislation exists. You may need to use it.

7. ADR and section 60I

You may have a client who is keen to get into court straightaway. Alternatively, you may have a client who wishes to settle but is fearful that the other side is angling to get into court. When considering whether ADR should occur, is it appropriate? Do you have a matter that falls within one of the exceptions to section 60I:

· Allegations of abuse or family violence;

· The party is unlikely to attend because for example they are overseas;

· The matter might be deemed by the mediator to be too complex under regulation 25 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008(Cth).

· Is the matter truly urgent?

A purist would say that if there has been family violence there should not be ADR. Unfortunately, family violence is pervasive. When acting for a victim of family violence, often the process of ADR – if properly handled – is much more respectful to a client who is the victim of family violence than an interim hearing, followed by a family report and then a final hearing. With some clients who are the victims of family violence, ADR will never be an option. You have to make an assessment in each case. If in doubt, call a colleague or a counsellor who is familiar with the dynamics of domestic violence and ADR, and ask. The point of asking will usually give you the clue. If you are in doubt about your client’s ability to attend ADR due to domestic violence issues and therefore you have to phone a friend- will normally tell you of itself that in all probability you’re your client should not attend ADR. Err on the side of caution and safety at all times.

However, clients rarely like the prospect that they are going to court, if they had the ability to settle a matter first.

The items under Regulation 25(2) of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) are a good checklist:

· A history of family violence, if any, among the parties;

· The likely safety of the parties;

· The equality of bargaining power among the parties;

· The risk that a child may suffer abuse;

· The emotional, psychological and physical health of the parties;

· Any other matter that the family dispute resolution practitioner considers relevant to the proposed family dispute resolution.

You may have a client who is poor and therefore has to wait for a Family Relationships Centre or a conference through Legal Aid Queensland. Your job as far as you can (depending on your funding) is to try and push that matter as quickly as you can (unless of course it may be to your client’s advantage to be as slow as possible!). Unless you are in a regional or remote area, you may find that the length of queue at each Family Relationships Centre or branch of Relationships Australia is different. Get your client to ring around. If the delay in one centre is two months and somewhere else is four months, go to the place that’s two months. I know it sounds basic, but too often people forget to do so.

Too often clients or practitioners don’t think of making enquiries, and when they make enquiries it’s on the web. The telephone at times can be a remarkable device for getting information!

Is it to your client’s advantage to go through a Family Relationships Centre? If your client wants to get into court quickly, it is often preferable to have a private mediator. These can be expensive. Who is going to pay? How is agreement going to be reached on who is engaged? If necessary come up with a list of three and present it to the other side. Put a proposal about payment, for example, half each or your client pays for the cost. Your client may be reluctant to pay the cost, but it might be a lot cheaper to them to settle it at mediation rather than to spend tens of thousands of dollars in litigation.

In your opening letter to the other side, put an offer. That offer should say in there somewhere that part of the reason that your client is putting forward the offer is because your client wants to avoid the delay, stress, including impact on the children of going to trial at a cost estimated by our client to be up to $100,000. Work out what the figure is likely to be. Don’t say that it is your estimate and that you have advised your client. You don’t want to be waiving privilege, but you do want your client to say through you as to what the cost is to the other side. Of course only 5% of matters go to trial, but it is important to focus on costs from the beginning.

Rest assured that those who talk to each other after the litigation is over compare notes about how much their lawyer has charged them. Clients will always be able to tell you how much they have spent with you even if you’re not entirely sure how much they have paid. By putting a dollar figure in that first letter, it is extraordinary how often that helps resolve a matter. Invariably the party on the other side sees that figure, even if they don’t absorb anything else.

8. Focus on safety

It is imperative that if you are practising in family law that you know about domestic violence. Regrettably, domestic violence is pervasive in family law. My first family law cases- back in 1985- had domestic violence at their core. Regrettably I am still getting cases in 2018 that have domestic violence as a feature. According to the Bryce Taskforce report, Not Now, Not Ever, domestic violence rates have gone up, not down.

It is good to ensure that your client undertake a risk assessment about family violence- and then does a safety plan. You may need to consider your safety too. Just because you act for a party does not make you immune. It may make you a target. Familydoors.com contains good, albeit cumbersome, screening tools.

It is essential to focus on safety for your client, your client’s children, and you. A safe client is better than a dead one.

9. Off to Court

You act for the applicant and it is the type of matter that ordinarily would be dealt with in the Family Court or the Federal Circuit Court. If you had an international child abduction matter of course, unless you are the respondent you won’t be going there but likely taking the matter elsewhere through International Social Services in Sydney.

It’s your client’s choice as to which court the matter is filed. Of course if you choose the Family Court and the matter should be in the Federal Circuit Court (or vice versa) the matter will likely be transferred later.

Ordinarily you would pick the Family Court for more complex matters such as:

· You expect the matter will take greater than 4 days at trial;

· There are allegations of child sexual abuse, meaning that the matter will likely end up on the Magellan List;

· You have an international relocation case.

A likelihood with the current ALRC review of the system is that we will end up with one court- one part to do trials and the other to do appeals- but we not there yet.

All other matters will ordinarily be dealt with in the Federal Circuit Court. If you are filing in the Family Court, following changes earlier this year, you won’t be filing annexures and exhibits. You will have a brief description of the document and you will have a separate tender bundle, a “paper” version of which has to be served at the same time as the affidavit being served. Electronic service is not sufficient. I understand if you then try and seek to tender that tender bundle, one judge, Carew J, will require you to tender each item separately, and to be able to justify why that item is able to be tendered.

If you are commencing in the Federal Circuit Court, then on an interim basis your client’s affidavit must be no longer than 10 pages. It must have no more than 5 annexures. It is tricky about how to properly particularise domestic violence in those circumstances. This will be our continuing challenge. Be very sparse about how you plead your client’s affidavit. Avoiding flowery language helps. Cut your material to the bone. It will probably mean that you engage in numerous drafts of your client’s affidavit until you get it right.

If your client has the benefit of a protection order and you are the applicant, then attach a copy of that order to the initiating application. Voila! You have one less annexure!

For those in the Brisbane Registry, change is about to be visited upon us. Other than the docket system as we have had it, interim applications will be dealt with by their Honours Judges Jarrett, Spelleken and Coates. When drafting the orders sought and the affidavit material, bear in mind who the judicial audience might be.

Judge Jarrett, for example, seeks great particularity as to the precise orders that your client is seeking both on an interim and final basis. Knowing the level of the dispute between the parties, think carefully about the length of the orders that your client is seeking. I have seen draft orders in parenting matters go for 13 pages with umpteen clauses. While one might imagine that in a highly complex matter, is it needed in this case? Think of the KISS principle. Don’t just copy and paste from a precedent. These are real people who seek our assistance- and for whom you are sending a bill for your services.

The old rule was the fewer matters in dispute/the better behaved the parties – the shorter the orders. Conversely, the more matters in dispute/the worst behaviour of the parties – the longer the orders.

Think carefully about whether or not your client is seeking equal shared parental responsibility. If you act for the mother, for example, who asserts that the father is a violent misogynist, drinks all day and night and leaves the children unattended whilst he falls asleep in a coma, should you be seeking on behalf of your client an order for equal shared parental responsibility?

By contrast, if you act for the mother and she asserts that the father is a good carer, but they have minor disputes about a series of items, such as the school that the child might attend, is it appropriate to say that your client has sole parental responsibility? What kind of case are you trying to put before the Court?

If your client asserts that the parties should have equal care for the children on say a week about basis, does that theory fit with the evidence that your client puts in material that shows that these parties could not agree whether it is night or day and are simply unable to cooperate on anything? What must life be like for that child moving between those households?

Reflect on the orders that your client is seeking. Don’t do it by the numbers but think about this particular case and about how these particular children will be provided for in the making of these orders.

10. Is your client a parent?

A parenting order under section 65C in relation to a child may be applied for by:

(a) either or both of the child’s parents;

(b) the child;

(ba) a grandparent of the child; or

As to the last phrase, the Full Court has said that there must be an existing relationship between that person and the child before they satisfy section 65C(c)[2]. Furthermore, the Court must be satisfied – as a threshold issue – that the person meets the criteria, before any consideration is given to any application that might be before the Court. If they don’t have standing, that’s the end of the matter.

You should always ask your clients about how their children were conceived. This is useful to know whether a child was planned or unplanned (and for that matter I always ask why they separated). It may not be directly relevant to the evidence but it will give you a good dynamic of what might be in store. For example, the parties may have grown apart – a low key separation; the husband may have had an affair with the wife’s sister – bombshell separation and likely to lead to litigation, similarly for severe domestic violence, for example.

Why it is important to ask about how the child was conceived was if the parties engaged in assisted reproductive treatment or surrogacy. If the former, for example there is a lesbian couple, was the sperm donor a known donor and active in the child’s life or an anonymous donor through a clinic? If the latter, both parties, or one of them, may not be parents under the Family Law Act, meaning that section 65C(c) has to be traversed as a threshold issue first.

Packer and Irwin [2013] FCCA 658

Ms Packer and Ms Irwin were a couple who wanted to have children. A good friend of theirs donated his sperm. They entered into a sperm donor agreement in effect saying that they were the parents and he was not.

Ms Irwin gave birth to both children using their friend’s sperm.

Ms Packer and Ms Irwin separated. After several years of separation, Ms Packer instituted proceedings in the Federal Circuit Court for parenting orders.

The donor played an active role in the children’s lives. In fact he spent more time with the children than did Ms Packer. He took them to extracurricular activities, for example. In every sense, he was the dad of the children save that no-one referred to him as dad.

A family report was prepared which said that the children in effect had three parents. The donor intervened in the proceedings, powerfully supporting Ms Irwin’s case. Ms Packer was unsuccessful in her application.

Bernieres and Dhopal [2017] FamCAFC 180

Mr and Mrs Bernieres wanted to have a child. They lived in Victoria. They travelled to India and underwent surrogacy there. To do so was lawful under Victorian law, but non-compliant. Victorian law concerning surrogacy required that the IVF be undertaken at a Victorian IVF clinic.

All went according to plan. The child was born, handed over by the surrogate and her husband. A birth certificate issued in India naming Mr and Mrs Bernieres as the parents. The child obtained Australian citizenship. Mr and Mrs Bernieres returned to Victoria with their baby.

They then applied to the Family Court for three orders:

1. That they had equal shared parental responsibility;

2. That the child live with them;

3. That they be declared to be the parents.

They had no difficulty with the first two orders. At first instance Berman J declined the declaration because they were outside the scope of section 60HB of the Family Law Act (which recognises someone as a parent if a State or Territory surrogacy order has been made.

Mr and Mrs Bernieres appealed. The Full Court found that they were not parents under the Family Law Act because they had not complied with Victorian law and the Lacuna in Victorian law under its Status of Children Act was not able to be cured by judicial action.

There are likely hundreds or thousands of children throughout Australia who have been conceived and born through overseas surrogacy. It should not be assumed that the intended parents are the parents under the Family Law Act of those children.

11. The family law pathway

There are two cases amongst all the others that really stand out to illuminate the pathway:

· Goode & Goode [2006] FamCA 1346; and

· MRR v. GR [2010] HCA 4.

Goode & Goodesets out an excellent summary of the 2006 amendments, which form the basis of the various presumptions and pathway that we are still dealing with twelve years later.

Commencing at [11] their Honours note the framework for determining parenting orders:

(1) Under section 61DA(1) when making a parenting order in relation to a child [including an order for parental responsibility] the court must apply the 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 the 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. [Note the wide definition of family violence in s.4AB.]

(3) When the court is making an interim order the presumption applies unless the court considers that it 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.

Section 61DB provides that if there is an interim parenting order in relation to the child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.

The court noted that the relevance of the presumption of shared parental responsibility, where it applies, is that it triggers the application of section 65DAA, which provides for the court to consider whether the child spend equal time with each of the parents would be in the best interests of the child, and consider whether the child spending equal time with each of the parents is reasonably practicable and if it is, consider making an order to provide (or including provision of the order) for the child to spend equal time to each of the parents.

If a parenting order is to provide the child’s parents are to have equal shared parental responsibility for the child and the court does not make an order for the child to spend equal time with each of the parents, then the court must:

· Consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

· Consider whether the child spending substantial and significant time each of the parents is reasonably practicable; and

· If it is, considering 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.

Under section 65DA(3) substantial and significant time is considered to be both:

(1) Days that fall on weekends and holidays;

(2) Days that do not all on weekends or holidays and 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 for the child to be involved in occasions and events that are of special significance to the parent.

The court can have regard to other matters in determining whether the time a child spends with a parent will be substantial and significant: section 65DAA(4).

Under section 65DAA(5) in determining for the purposes of subsections of (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 the implementing and 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.

The Full Court answered a number of questions:

(1) Is there a difference between parental responsibility and equal shared parental responsibility?

The Full Court noted that parental responsibility is defined in section 61B and its effect is explained in sections 61C and 61D. Section 61B provides that parental responsibility for a child means all the duties, powers and responsibilities and authority which by law, parents have in relation to children. Section 61C provides that each parent has parental responsibility for a child who is not 18 years, despite any changes in the nature of the relationship with the child’s parents and in particular it is not affected, for example, by the parties becoming separated or by either or both of them marrying or remarrying. This section provides that it has effect, by operation of law, subject to any order of a Court.

Section 61D provides that a parenting order confers parental responsibility for a child on a person, but only to the extent to which the Court confers on the person duties, powers, responsibilities or authority in relation to the child. Section 61D(2) provides that a parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent, if any, expressly provided for in the order or necessary to give effect to the order.

The Court stated at [37]:

“Where no contrary order has been made, parents may exercise this responsibility independently or jointly. This would be so whether the parties were married, living together, never lived together or separated as long as there was no contrary order in force.”

The Court noted that section 65DAC sets out the effect of a parenting order that provides for shared parental responsibility. The section requires decisions about major long-term issues about children to be made jointly by those persons who are to share parental responsibility and that they are required:

(a) To consult the other person in relation to the decisions to be made about that issue;

(b) To make a genuine effort to come to a joint decision about that issue.

Section 65DAE provides that if a child is spending time with a person under a parenting order, then that person is not required to consult with a parent or other person who shares the parental responsibility about decisions that are not major long-term issues, unless the Court has made a contrary order.

Major long-term issues is defined in section 4:

“In relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but it not limited to) issues of that nature about:

(a) the child’s education (both current and future); and

(b) the child’s religious and cultural upbringing; and

(c) the child’s health; and

(d) the child’s name; and

(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the parent.”

The Court said at [39]:

“We therefore consider it clear that there is a difference between parental responsibility which exists as a result of section 61C and an order for shared parental responsibility, which has the effect set out in section 65DAC. In the former, the parties may still be together or may be separated. There will be no Court order in effect and the parties will exercise the responsibility either independently or jointly. Once the Court has made an order allocating parental responsibility between two or more people, and including an order for equal shared parental responsibility, the major decisions for the long-term care and welfare of children must be made jointly, unless the Court otherwise provides.”

(2) Does the presumption that equal shared parental responsibility is in the best interests of the child carry with it any presumption about time?

The Court stated at [40] – [41]:

“Neither counsel submitted to us that there was any presumption about time arising from the application of section 61DA, namely the application of a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. So much is clear from the note to section 61DA(1) itself, which provides:

40. The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

41. We do not consider, nor was it submitted to us by either counsel, that there was any doubt about the meaning of the note or the section.”

(3) Can one make an order for equal shared parental responsibility or equal time, other than by application of the presumption?

The Court stated at [43] – [48]:

“When making a parenting order in relation to a child, the Court must apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. The presumption however does not apply where there are reasonable grounds to believe there has been abuse of the child or family violence (section 61DA(2)) or, when making an interim order, the Court does not consider application of the presumption appropriate (section 61DA(3)). The presumption may be rebutted if the Court is satisfied that it would conflict with the child’s best interests (section 61DA(4)).

The importance of section 61DA is that if the Court applies the presumption of equal shared parental responsibility when making parenting orders, then that presumption is the starting point for a consideration of the practicality of the child spending equal time with each of the parents and, if it is consistent with the best interests of the child and not impracticable, the Court must consider making an order that the child spend equal time with each of the parents. If the Court does not make such an order, it must consider whether making an order that the child spend substantial and significant time with each of the parents would be in the best interests of the child and not reasonably impracticable and, if so, must consider making such an order (see section 65DAA). Section 65DAA(3) explains the meaning of “substantial and significant time”.

Section 65DAA(5) provides some guidance to determining whether it would be reasonably practicable for a child to spend equal time or substantial and significant time with both parents and includes, but is not limited to, proximity, capacity to implement the arrangements under consideration, current and future capacity to communicate and resolve difficulties, the impact such an arrangement would have on the child and other relevant matters. It is clear that if the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility is applied, then the path described in section 65DAA needs to be followed, starting with an order for a child spending equal time with both parents would be appropriate.

However, this is not the only way in which the Court could consider equal time. Even if the presumption is rebutted or is not to apply in the interests of the child, if one or both of the parties is seeking such an order, the Court would normally consider, in the making of an order, what each party was seeking when considering the child’s best interests in accordance with the objects in section 60B and the primary and additional considerations in section 60CC.

Similarly, even if the presumption of equal shared parental responsibility is not applied and neither party seeks an order for equal time (or by implication substantial and significant time), the Court is nonetheless required to consider, in determining what is in the best interests of the child, the arrangements that will promote the child’s best interests. Subject to according procedural fairness to the parties, this could include a proposal that neither party had advanced, if it was in the Court’s view ultimately in the child’s best interests for such an order to be made…

Therefore, whilst the application of the presumption of equal shared parental responsibility may be the trigger for the operation of section 65DAA, it is not the only basis upon which the Court may make an order for equal or substantial and significant time to be spent by the parents with the child. However, in our view where the presumption of equal shared parental responsibility is to apply, the starting point is the consideration of whether it would be in the child’s best interests to spend equal time with both parents and the practicability of such an arrangement. Where neither an outcome providing for equal time or substantial and significant time promotes the child’s best interests, the Court determines the parenting applications and the best interests of the child having regard to the matters found in the objects (section 60B) and section CC.”

(4) What is the significance of the specific references to parental responsibility and interim proceedings in the Act?

The Court stated at [51]:

“It is not necessary to seek an order for equal shared parental responsibility to trigger the presumption in section 61DA. All that is required is that the Court be making a parenting order. Thus, it does not matter whether the issue of equal shared parental responsibility was put in issue by the parties, or either of them, as the Court is required to apply section 61DA in any case in which a parenting order is to be made.”

The Court stated at [56]:

“In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in section 61DA, subject to the qualifications in subsections (2), (3) and (4).”

(5) What does “consider” mean?

The Court stated at [57]:

“When any parenting order is made for equal shared parental responsibility then the Court must apply section 65DAA. This requires the Court to consider the child spending equal time or substantial and significant time with each parent in certain circumstances. The question therefore arises, what does “consider” mean?”

The Court stated at [64]:

“The juxtaposition of sections 65DAA(1)(a), 65DAA(1)(b) and 65DAA(1)(c) suggests a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in section 65DAA(1)(a), being the best interests of the child, and section 65DAA(1)(b), reasonable practicability, are met. The same considerations apply to section 65DAA(2).”

The Court then set out what the effect of the 2006 amendments to Part VII at [65]:

“(1) Unless the Court makes an order changing the statutory conferral of joint parental responsibility, section 61C (1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

(2) The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. The presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with the parent has engaged in abuse to the child or family violence (section 61DA(1) and section 61DA(2)).

(3) If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply (section 61DA(1) and section 61DA(3)).

(4) The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (section 61DA(4)).

(5) When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (sections 65DAA(1) and (2)).

(6) The Act provides guidance as to the meaning of “substantial and significant time” (sections 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (section 65DAA(5)).

(7) The concept of “substantial and significant time” is defined in section 65DAA.

(8) Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

(9) The child’s best interests are ascertained by a consideration of the objects and principles in section 60B and the primary and additional considerations in sections 60CC.

(10) When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

(11) The child’s best interests remain the overriding consideration.”

(6) What process should apply in interim parenting proceedings?

The Court stated at [68]:

“The procedure for making interim parenting orders will continue to be on a bridge 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.”

Furthermore, at [72] to [74]:

“In our view, it can be fairly said that 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 the 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 interest 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.

That is not to say that stability derived from a well settled arrangement may not ultimately be what the Court finds as being the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in section 60CC, particularly section 60CC(3)(d) and section 60CC(3)(m) and, if appropriate, section 60CC(4) and section 60CC(4A).

We also acknowledge that, because of the circumscribed nature of the proceedings, the reasons given at an interim hearing may be brief. So too, the filing of lengthy affidavits is unlikely to be helpful where the Court is unable to make findings about disputed facts.”

(7) In what circumstances will section 61DA(3) of the Act be properly invoked?

Section 61DA(3) says:

“When the Court is making an interim order, the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order.”

The Court said at [78]:

“The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that section 61DA(3) provides a discretion not be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult.”

12. How should interim proceedings be conducted?

Somewhat acerbically, the Court stated at [81]:

“When making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parties as to what constitutes the best interests of the child. However, the legislative pathway must be followed.”

The Court said at [82] 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 section 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 section 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable ground 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 factors in section 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 section 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 section 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 section 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 section 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 at all, if neither has sought it, if the Court considers after affording procedure fairness to the parties it is to be in the best interests of the child.

When preparing a matter for interim hearing, I strongly urge you to follow that pathway. It will focus your mind, focus the evidence and submissions and hopefully focus the mind of the judicial officer and will less likely lead the judicial officer to error, resulting in an avoidable appeal.

MRR v. GR [2010] HCA 4

The parties lived in Mt Isa. Orders were made that the parties have equal shared responsibility for the child and that she spend equal time with each of them. The orders were made on the basis that (contrary to the mother’s expressed wish) both parties would live in Mt Isa. The parties had lived in Sydney from 1993 until January 2007, when they moved to Mt Isa in order that the father could gain work experience as a graduate mechanical engineer. He was initially to be there for two years. By the time of the hearing in the Federal Magistrates Court, the indications were that his contract would be extended.

The parties separated in August 2007 shortly after they travelled to Sydney to attend an awards ceremony connected with the father’s graduation. The father returned to Mt Isa and advised the mother that it would be necessary for her to find alternative accommodation there. The mother returned only to collect her belonging and remained living with the child at her father’s residence in Sydney. Interim orders were made for the mother and child to return to Mt Isa, which then happened. At the time of hearing, the child was living with each parent in Mt Isa on a week about basis. The mother’s initial proposal involved her living in Sydney with the child. The father would not consider living in Sydney and was determined to remain employed in Mt Isa. The mother amended her proposal to add two further alternatives – that she remain in Mt Isa or the parties both live in Sydney.

In considering section 65DAA, French CJ, Gummow, Hayne, Kiefel and Bell JJ stated at [9]:

“Each of subsections (1)(b) and (2)(d) of section 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. Subsection (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 this 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”.”

Coker FM said that he applied the presumption of equal shared parental responsibility. His Honour noted that he was obliged, pursuant to section 65DAA, to consider:

“Whether equal time with each parent would be in the child’s best interests and is reasonably practicable, and if equal time is not appropriate then whether substantial and significant [time] would be in the best interests and reasonably practicable”.

Their Honours stated at [11]:

“Because the father had said he would not move from Mt Isa, the only possibility for equal time parenting would arise if the parties both remained in Mt Isa.”

In what follows his Honour was clearly of the view that they should do so. His Honour said:

“If [the] parties remain in Mt Isa as the father suggests, then they are in the same locality. They are proximate to each other and there can be the opportunity for equal time which would be, in my assessment, in the best interests of this child.”

His Honour noted that the Family Consultant had recommended a continuation of the existing arrangements. His Honour said that he too did not consider it would be beneficial to the child if the parents lived “thousands of kilometres apart”; it was in the child’s interest that there be equal time spent with each parent.”

Their Honours upheld the mother’s appeal[3]:

“Sections 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. The words with which par (c) commences (“if it is”) refer back to the two preceding questions that make plain that the making of an order can only be considered if the findings mentioned are made. A determination is a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist If such a finding cannot be made, sub-ss(ii)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent could then be considered. That sub-section follows the same structure as sub-s(i) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

His Honour treated the answer to the first mentioned question, whether it was in the best interests of the child to have equal time with each parent, as determinative of whether an order should be made. His Honour did not consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances. The Full Court acknowledged that his Honour “…did not expressly address the issue of whether an equal time arrangement would be ‘reasonably practicable’”. However, the Court observed, his Honour went on to consider, at length, the matters to be considered under section 60CC in determining what arrangements are in the child’s best interests. But those matters could be relevant only to the question posed by par (a) of section 65DAA(1), not the question in par (b), which required consideration with other, different matters.

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 section 61DA(1) is not determinative of the questions arising under section 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mt Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.

Had consideration been given to the question only one conclusion could have been reached, one which did not permit the making of the order. From the time that she returned to Mt Isa to the date of the hearing the mother had been required to live in a caravan park, and live there with the child on alternate weeks. Apart from the facilities being limited, it could not be said that such an environment is usually ideal for a child. The availability of alternative accommodation did not seem likely. Rental accommodation is scarce in Mt Isa and the waiting lists are long. The mother said that she could not afford good quality accommodation in any event and the cheaper rental properties were in “rough” areas.

The mother had limited opportunities for employment in Mt Isa. When the parties lived in Sydney she had worked part-time. She had full-time opportunities available to her with her previous employer in Sydney which provided her with flexibility of hours. In Mt Isa the mother supported herself on social services payments and income from casual employment. The disparity between her income and that of the father had not been addressed by the time of the hearing. She said there was no employment in Mt Isa for someone of her experience and there were limited opportunities for flexible hours.

The evidence of the family consultant was that the mother was “definitely despondent” about being in Mt Isa, as the living conditions were not good and she was isolated from her family. The family consultant said that the mother was depressed and recommended that she attend counselling. The finding of Coker FM that “the mother’s anguish and depression in being in Mt Isa…can, to a significant degree if not in their entirety, be dealt with by…counselling” is not supported by this evidence.

The evidence before his Honour did not permit an affirmative answer to the question in section 65DAA(1)(b). It follows that there was no power to make the orders for equal time parenting. It was necessary for his Honour to proceed to consider whether substantial and significant time spent by the child with each parent was in the child’s best interests (given that equal time was not possible) and whether that was reasonably practicable. That would require consideration of the mother being resident in Sydney. But without a finding as to practicability no conclusion could be reached. At the re-hearing of this matter afresh, the necessary determinations were made on the evidence as to the practicability of such orders, given the circumstances pertaining to the parties as they then stand.

The orders made by his Honour did include one to the effect that if the mother did not live in Mt Isa, then the child should live with the father and the mother spend time with and communicate with the child at reasonable times to be agreed. No reasons were given concerning the order. It may have been intended as an interim order, to cover the contingency that the mother did not remain in Mt Isa and make provision for what was to occur until further consideration could be given by the Court, having regard to the changed circumstances of the parties. There could not be an order under section 65D, the statutory criteria not having been addressed.”(emphasis added)

BEST INTERESTS

Of course we are often bandy about the term best interests of a child on a daily basis, but it is good to remember where it comes from. Section 60CA of the Family Law Act merely says:

“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.”

The term best interests is a variant of several terms used over the years, but ultimately the current form comes from the International Convention on the Rights of the Child.

Given that it is a particular difficult convention to find on the web, I have put the Austlii reference in the footnote[4].

The language of best interests is taken from Article 3 of the Convention:

“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall confirm with the standards established by competent authorities, particularly in the areas of safety, health, and the number of suitability of their staff, as well as competent supervision.”

Section 60B, which I am sure that you are well familiar with, sets out the objects of Part VII of the Act. Much of the language of section 60B comes directly from the Convention.

The provisions with which you should be all too familiar are section 60B(2)(a) and (b):

“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).”

Article 7.1 provides:

“The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.”

Article 8.1 provides:

“States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.”

Article 9.1 provides:

“States Parties shall ensure that the child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.”

Article 9.3 provides:

“States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both contacts on a regular basis, except if it is contrary to the child’s best interests.”

Article 10.2 provides, relevantly:

“A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under Article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country…”

Often we forget about the Convention but one of the additional objects of Part VII, by virtue of section 60B, is to give effect to the Convention.

The Convention is not part of our domestic law, as the High Court made plain in Teoh’s case (1995)[5]. Mason CJ and Deane J stated at [25] – [29] as to the status of the Convention in Australian law:

“25. It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, and not the executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. In this case, it is common ground that the provisions of the Convention have not been incorporated in this way…

26. But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law.

27. It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law. The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia’s international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations.

28. Apart from influencing the construction of a statute or subordinate legislation, an international convention may play a part in the development by the courts of the common law. The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law. But the court should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law. A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials. Much will depend upon the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose to which it is intended to serve and its relationship to the existing principles of our domestic law.

29. In the present case, however, we are not concerned with the resolution of an ambiguity in a statute. Nor are we concerned with the development of some existing principle of the common law. The critical questions to be resolved are whether the provisions of the convention are relevant to the exercise of the statutory discretion and, if so, whether Australia’s ratification of the Convention can give rise to a legitimate expectation that the decision-maker will exercise that discretion in conformity with the terms of the Convention. The foregoing discussion of the status of the Convention in Australian law reveals no intrinsic reason for excluding its provisions from consideration by the decision-maker simply because it has not been incorporated into our municipal law.” (Emphasis added)

Their Honours then go on to say at [31]:

“The concluding words of Art.3.1 are “the best interests of the child shall be a primary consideration” (our emphasis). The article is careful to avoid putting the best interests of the child as the primary consideration, it does no more than give those interests first importance along with such other considerations as may, in the circumstances of a given case, require equal, but not paramount, weight.”

An example of where legitimate expectation was the recent decision of Forrest Jin Sigley and Sigley [2018] FamCA 3. This concerned the registration of a US surrogacy order under section 70G of the Act. The machinery provision to enable registration is under reg.23 of the Family Law Regulations. In considering whether to exercise his discretion to allow the order to be registered, Forrest J stated at [33]:

“The two children are both Australian citizens now as well, with legitimate expectations that the legal nature of their parent-child relationship with both of their loving parents is appropriately recognised in this country of theirs.”

A provision of the Convention which I believe has attracted too little attention in Australia is Article 8.1:

We often talk about the identity of a child and how they fit in to their family constellation, and the identity of the child may be more relevant in adoption, child protection and surrogacy proceedings than those under the Family Law Act. Nevertheless, it is worth remembering Article 8. A useful discussion of Article 8 is contained in the English case of Re X (a child) (surrogacy: time limit) [2014] EWHC 3135 (Fam), which was a surrogacy case. The Court was being asked to make a parentage order under English surrogacy law, under the equivalent of section 22 of the Surrogacy Act 2010 (Qld). Mumby P said at [54]:

“Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are. It is central to his being, whether as an individual or as a member of his family. As Ms Isaacs correctly puts it, this case is fundamentally about X’s identity and his relationship with the commissioning parent. Fundamental as these matters must be to commissioning parents they are, if anything, even more fundamental to the child. A parental order has, to adopt Theis J’s powerful expression, a transformative effect, not just in its effect on the child’s legal relationships with the surrogate and commissioning parents but also, to adopt the guardian’s words in the present case, in relation to the practical and psychological realities of X’s identity. A parental order, like an adoption order, has in effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious consequences. It creates what Thorpe LJ in Re J (Adoption: non-patrial) [1998] INLR 424, 429, referred to as “the psychological relationship of a parent and child with all its far-reaching manifestations and consequences.” Moreover, these consequences are lifelong and, for all practical purposes, irreversible…”

The point I make about identity is that often the child’s identity is relied upon by decision-makers (typically Child Safety officials) to say that the child’s identity is with its parents and family of origin. The difficulty with this argument, I would suggest, is that the child’s lived experience and their sense of who they are and their identity may in fact be with someone else, for example, the foster carers who have cared for the child since he was a baby and who he considers for all intents and purposes to be his parents.

A matter that may not necessarily often arise under the Family Law Act, at least in a direct sense – except maybe when considering whether to grant leave to adopt under section 60G or making parenting orders in favour of a non-parent by consent under section 65G.

A rights based approach

Of course who you appear before will weigh up the factors in their own particular manner, but it is important to remember that there is a rights based approach under Part 7. I remember when the changes to the Act occurred in 1996. I then disagreed with what Warnick J said at the time. He said that because there was a specific reference to rights, such as a right of a child to spend time on a regular basis and communicate on a regular basis with both parents and other significant to them that this would change the thinking of the Courts. I thought that not much would change. Of course he was right and I was wrong. How frequently do we hear Judges say that a child has the right to have a meaningful relationship with both parents?

Are best interests the only consideration?

Of course not. Section 60CA makes plain that the best interests of a child are the paramount consideration, but as the Full Court has told us repeatedly, every case is different and needs to be decided on its own facts. Best interests while the paramount consideration is not the only consideration. Of course section 60CC makes things more complicated for everyone because it talks about both primary considerations and additional considerations.

Balancing of the primary considerations

The current version under the continued gender wars as to primary consideration represents a win for the women’s lobby: section 60CC(2):

“(a) The benefits of 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 subject to, exposed to, abuse, neglect or family violence.”

The criticism of the women’s lobby had was that not putting a preference on the latter meant that the impact of violence upon women and children was being minimised. Now of course the latter prevail because in the weighing up exercise it is given greater weight: section 60CC(2A).

Allegations of abuse, neglect and family violence

Each party must file a Notice of Risk at the beginning of the matter. I note that the Family Court has new Notice of Risk forms. The temptation with these notices is to fill them out quickly and lodge them. This would be a grave error. They need to be given particularly careful treatment. Aside from being sent to the State welfare authority and all concerned, judges read them very carefully. Time and time again I am seeing judges who when considering making consent orders for children reach into the file, drag out the Notice of Risk of each of the parties and then quiz the parties about how the proposed orders reconcile with the Notice of Risk. If it doesn’t, the judges then require the parties to file an Affidavit explaining why.

Of course, the Family Court requires an explanation in the making of consent orders about how allegations of abuse, neglect or family violence are dealt with. I note rule 13.04A of the Federal Circuit Court Rules and Rule 10.15A of the Family Law Rules.

Example

The parties were New Zealand citizens living in Australia. There were no orders in place regarding the children, although there was a parenting plan for equal shared care.

The mother decided to return home to New Zealand. The children stayed in the father’s care as he did not consent to the children living in New Zealand.

The mother communicated both directly and through solicitors that she understood her obligations under the Hague Convention. The children then travelled to New Zealand and spent time with their mother during the Easter and June/July school holidays. At the conclusion of the June/July school holidays, the mother swore her material to commence proceedings in the Federal Circuit Court. In her Notice of Risk, she said there was no risk for the children to be in the father’s care. She did not then file proceedings, as there had not been compliance with sections 60I.

The children went to New Zealand for the September/October school holidays. At the conclusion of those school holidays, the mother held them over. The mother sought that the father undertake mediation. He refused. A section 60I certificate issues and the mother then instituted proceedings in the Federal Circuit Court.

The father responded to those proceedings in the Federal Circuit Court and at the same time put in place steps for the New Zealand Central Authority to commence Hague proceedings in New Zealand to ensure the return of the children.

As luck would have it, the Australian proceedings were first returnable one day before the first return date of the New Zealand proceedings. The mother was not present in the Australian Court on the first day. The Judge insisted that the mother return with the children the following week (without making an order to that effect). The mother through her solicitor agreed to that course.

The following day the mother’s Australian solicitor sought for the mother to return to Australia. The mother’s New Zealand counsel resisted that approach. The mother’s case under the Hague Convention in New Zealand was to rely on a grave risk if the children were to return to Australia.

A copy of the Australian Court documents was provided to counsel for the New Zealand Central Authority. This included the Notice of Risk that said there was no risk to the children in the father’s care. Faced with that damning document, the mother consented to the return of the children to Australia and then returned with them the following week to face the stinging words from the Judge that she was “gaming the system”.

Many months later the mother consented to final orders that the children reside with the father in Australia (and have time with her in New Zealand) which orders were ultimately registered in New Zealand.

Allegations of domestic violence in interim hearings

This is always tricky. On the one hand is the desire to fully particularise all the allegations of violence and the other is the desire to ensure that the affidavit is not prolix. The problem is highlighted by the Chief Judge’s practice note that the affidavit of a party on an interim application in the Federal Circuit Court is to be limited to 10 pages and no more than 5 exhibits. Not surprisingly the Family Law Practitioners Association of Queensland has reported that the Registry in Brisbane has noted that since the change, practitioners have been lodging affidavits with smaller font and fewer gaps – with the inevitable outcome that sooner or later they will be rejected.

Younger practitioners will for the first time have to engage in pleading and precision in drafting.

Gong and Wei [2017] FamCAFC 55

The mother appealed against interim parenting orders which provide for equal shared parental responsibility. The mother submitted that the trial judge had erred by not properly considering her allegations of family violence. The mother asserted that the family violence included:

· 2010 – She heard the father threaten to hit N and then say to the mother “If you stand in the way, I’ll hit you too”. N was then 1 year old.

· In 2012 the father threw a pot of boiling water at the mother and the children resulting in O suffering a burn on her shoulder which left a scar. O was 1 year old.

· In about 2013 the father physically disciplined N by smacking him on the bottom multiple times with force after which the child urinated in his own clothing. N was 4 years old.

· In August 2014 the mother observed the father to kick P in her back and heard her cry out in pain. P was 2 years old.

· In early 2015 the mother saw the father hit P with a plastic pole from a golf club set on her legs and thighs, after which the mother observed bruising and heard the child cry uncontrollably. P was 3 years old.

· In February 2015 the mother observed the father attempt to kick P in her back, but when the child moved he inadvertently kicked the maternal grandmother in the shin, for which she suffered bruising. P was 3 years old.

· On at least three occasions over 2 years the father forced P to stand up straight in her bed when she refused to go to bed and told her that she was not permitted to go to sleep.

· When O was 2 years old the mother saw the father slap her across the face.

· The mother observe the father verbally abusing the children shouting at them in an aggressive fashion no less regularly than weekly and heard him say demeaning and offensive things to them. The mother said that she had been the subject of regular verbal abuse from the father throughout the marriage no less than once a week and to have been subjected to controlling behaviour by him.

· The father speaks to the children in a disparaging way including having told O that her mother is dead.

· The father regularly slammed doors and threw objects around the house in anger.

The father made a general denial of the allegations of violence and abuse made against him by the wife, asserting that they were made up.

At the trial counsel for the mother made no submissions about parental responsibility.

On appeal the mother contended that the Trial Judge had failed to have regard to the provisions of section 61DA(3) namely that the presumption of equal shared parental responsibility applies when the Court is making an interim order unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

Senior counsel for the mother further contended that the Trial Judge erred in at least considering section 61DA(3) particularly having regard to the mandatory terms of sections 60CG(1)(b).

Section 60CG provides:

1. In considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order:

(a) is consistent with any family violence orders; and

(b) does not expose a person to an unacceptable risk of family violence.

2. For the purposes of paragraph (1)(b), the Court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.

The Court noted that in Salah and Salah (2016) FLC 93-713 at [37] the Full Court observed that it very common in interim parenting proceedings that factual disputes “cannot be determined without the evidence being tested in the context of a trial”.

These words follow the approach in Goode and Goode which I have set out above at length.

The Court said at [37]:

“That said though, such an approach does not mean that issues of disputed fact must be disregarded in interim proceedings or the case determined solely by reference to the agreed facts: Eaby v. Speelman (2015) FLC 93-654 at [18].”

However, the need for findings in disputed interim proceedings to be “couched with great circumspection” was stressed inEaby v. Speelman.

It appears that the trial judge made a simple error as to the child’s complaint about the father, which the Full Court thought was most likely directed to the time that the child was spending with the father under supervision.

The court said at [43]:

“Considering that both parents conceded the children would benefit from a meaningful relationship with each parent and the fact that the mother was not urging that the children should spend no time with the father, her Honour clearly also balanced and weighed the factual matters alleged by the mother with the observations that the independent, professional supervisors reporting upon the “comfortable and loving interaction” between the children and their father when deciding on the proper interim parenting orders to make.”

The court went on to say at [44] to [48]:

“We also consider it is quite clear that her Honour had regard to the obligation imposed by section 60G(1)(b) of the Act, although she did not expressly refer to the section, by her expression of a lack of satisfaction that there was actually a need for a continuation of supervision of the children’s time with their father, notwithstanding the disputed allegations of violence. Similarly, we do not accept the submission that her Honour did not consider whether in the circumstances she would find the presumption of equal shared parental responsibility not to apply in accordance with section 61DA(3) of the Act. Although her Honour did not expressly refer to that subsection, or any of the subsections of section 61DA, that in itself is not sufficient to establish a failure to consider the matters contained therein. Her reasons clearly demonstrate that her Honour took all of the matters contained in the relevant statutory provisions into account.

45. Her Honour acknowledged and discussed the mother’s allegations and the father’s denials, as well as the other independent evidence of observations of the children’s relationships and interactions with their father. Her Honour then expressed observed that she was not satisfied that the evidence led her to a conclusion that the presumption of equal shared parental responsibility was rebutted (section 61DA(4)) or that the presumption should not apply because of a belief that the father had engaged in family violence (section 61DA(2)). Clearly then, she considered section 61DA, albeit without direct reference to it. Consequently, her Honour went on to determine that she would order that the parents share equally the parental responsibility for the children.

46. Clearly also implicit in those reasons, is a consideration of section 61DA(3) of the Act. As her Honour has:

(i) determined the presumption provided for in section 61DA(1) has not been rebutted (section 61DA(4)) or shown not to apply (section 61DA(2));

(ii) not express the view that she considers it would not be appropriate in the circumstances surrounding the making of the interim parenting order for the presumption to be applied (section 61DA(3));

(iii) gone on to order equal shared parental responsibility; and

(iv) expressed a lack of satisfaction that supervision of the children’s time with the father is necessary to ameliorate unacceptable risk,

then the obligation to properly consider the legislative provisions of section 60CG and section 61DA, including section 61DA(3), has been met.

47. There is no obligation on a Trial Judge in determining an interim parenting order to find that the presumption provided for in section 61DA(1) of the Act has been rebutted or shown not to apply, or defined that it would not be appropriate to apply, simply because allegations of family violence have been raised by one parent against the other and are not able to be determined definitively one way or the other. Of course, such allegations must be considered carefully, particularly having regard to all of the provisions of section 60CG and section 61DA, but such allegations are but part of the evidence that must be evaluated in determining the proper order to make in the children’s best interests and the fact they play in the determination is a matter within the discretion of the Trial Judge.

48. As was submitted by senior counsel for the father on this appeal, it was perhaps unsurprising that her Honour’s determination on parental responsibility ultimately evince satisfaction that it was in the children’s best interests for an equal shared parental responsibility order to be made given that counsel for the mother at the hearing made no submission to the contrary or at all on the issue of parental responsibility.”

Section 60CC(3)(j) and (k)

Section 60CC(3)(j) and (k) provide:

“(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.”

If you haven’t read it, I strongly suggest that you read the decision of Chisholm J in JG and BG (1994) FLC 92-515. His Honour stated that domestic violence was not only relevant with the violence directed at the children themselves, or when committed in their presence, but even when they do not witness it. He set out the following principles at p.81, 318:

“1. In proceedings relating to custody, guardianship and access evidence of family violence is relevant insofar as it assists the court in determining what orders will best promote the welfare of the children.

2. The court will have regard to the fact that family violence may be directly or indirectly relevant to the children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children.

3. So far as the evidence allows, the court will attempt to understand the nature of any family violence that has occurred and the potential effect on the children.

4. Where the evidence permits the court to make findings of contested allegations of family violence, and where such findings are necessary in order to determine what orders will promote the child’s welfare, that a court will make the findings.

5. Where the court is in a position to make findings on allegations of family violence which are relevant to the children’s welfare, but does not need to do so in order to determine what orders will promote the welfare of the children, it may be open to the court to refrain from making the findings. If such a discretion exists, the court will exercise that on the basis of a consideration of whether the children’s welfare is not likely to be promoted by making or declining to make such findings.”

In McCawley and Stewart (2005) FLC 93-250 the Trial Judge ordered that the child live with the father because if the child were to live with the mother there would be “an unacceptable risk that she would be exposes to scenes of violence”.

Amongst the bases for the mother’s appeal were that the Trial Judge erred:

· in failing to apply the high degree of certainty required under Briginshaw;

· in failing to place any or sufficient weight on the evidence of the father’s violence towards the mother;

· in finding that a “possibility of exposure to violence”constitutes an unacceptable risk;

· in finding that there was an unacceptable risk to the child being exposes to violence if she resided with her mother.

In the case, there was no allegation that the child was abused in any way and accordingly the test in Briginshaw did not apply. The finding in the first instance was that there was an unacceptable risk that the child would be exposed to scenes of violence, not to violence towards the child. A finding that there was an unacceptable risk was not necessary to justify the Trial Judge’s decision.

The evidence included a statement given by the mother to police where she said:

“I think I threw the cordial from the glass I was holding towards (her partner’s) face, which hit him. I did not throw the glass though.

I then walked quickly into the kitchen as I didn’t know what to expect…our verbal argument continued and I think I was yelling and crying.

To get his attention I pushed [him] as he was making me angry. At this time we were facing each other.

I saw [him] put his right arm back behind his shoulders. Then I felt a sharp pain in my left ear and side of my face.

He then pushed me with both hands out of the hallway before slamming the bedroom door. I looked at the door and saw that the door had broken near the bottom.

I then went into the lounge room and rang the police…After I hung up the phone I noticed that [he] had destroyed the bedroom door and ripped it off its hinges. The door was in my daughter’s room in pieces…I remember trying to hurt [him], maybe by pushing him but I didn’t end up hurting him in any way.

At this time [he] had grabbed me from behind to stop me hurting him. We then pushed each other a number of times while we continued to argue.

I remember picking up a dolls house that was in the lounge room and throwing it onto the ground towards [him]. I don’t think this landed on or struck [him]…[He] and I have been partners since March 2003 and I am currently 15 weeks pregnant with a child to him.

During the time we have been together there has been a number of incidents of domestic violence. [He] is a much larger person than I am. [He] is about 6’1 and weighs about 90kgs. I am 5’11 and weigh about 75kgs.”

Finn J noted the Trial Judge’s finding was:

“If the child was to live full-time with her mother, there would have been an unacceptable risk “that she would be exposed to scenes of violence”. His Honour’s reference to “the possibility of exposure to violence” was made in the context of his interpretation of the various provisions of the Act which are concerned with the protection of children from violence or from exposure to violence including section 68F(2)(g) which contemplates “the need to protect the child from psychological harm that may be caused by …being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person.”

The Trial Judge had noted that the mother had now adopted her new partner’s version of a second incident of violence and that she had resiled from her statement to the police that there had been a number of instances of domestic violence. The mother also challenged the Trial Judge’s rejection of her explanation that the police had pressured her into making the allegations to them which she had made, with it being submitted that it was not open to the Trial Judge to attach the weight which he did to her alleged statement to the police, given that she had not been cross-examined specifically in relation to that statement or any retraction of it.

Finn J sets out at length the cross-examination of the mother on these matters for the reason that it established that notwithstanding the somewhat confused or even equivocal quality of her evidence, a finding that the child could well be exposed to scenes of violence in her household was open to the Trial Judge. It also showed that, at least so far as the Trial Judge was concerned, the issue of violence was very much a live issue from an early stage in the trial.

Her Honour found that it would have been open to the Trial Judge on the basis of the evidence before him to conclude that there would be a risk of the child being exposed to scenes of violence if she resided with the mother. It was open to the Trial Judge to describe that risk is unacceptable, however he could have reached the conclusion that the child live with her father on the evidence concerning the violence which had occurred in the mother’s home without using the expression unacceptable risk as that was a phrase that did not appear in section 68F(2) and the case was not conducted on the basis of the need for a finding of unacceptable risk of some form of abuse or exposure to some form of abuse.

Putting your eggs in one basket

The mistake that is sometimes made when there has been a catastrophic event of violence is to focus just on that incident. As Judge A Kelly said in Germain and Germain [2017] FCCA 1980 at [76]:

“Applied to the present case, a single and historical notification of domestic violence may, viewed in isolation, be insufficient to support a conclusion of a real or immediate risk of physical or psychological harm to a child. By contrast, a documentary record that discloses the repeated or systemic pattern of such behaviour might do so more persuasively.”

In A v A [1998] FamCA 25; (1998) FLC 92-800, when the children were on contact with their father, the wife was violently assaulted in the home in what appeared to be an attempt to kill her. She suffered serious injuries and was hospitalised for over a month. The evidence suggested that the injuries included a sexual assault. During the period of hospitalisation, the children lived with the maternal grandparents and the husband had supervised contact.

After a discharge from hospital, the wife lived with her parents for about two months and then returned with the children to her home.

The wife had no recollection of those events. She however believed the assailant was the husband and there were a number of objective facts which supported that belief. The husband was interviewed by the police immediately after the assault. He denied involvement. No charges were laid. The wife gave evidence of a number of assaults upon her by the husband during the course of the marriage. At trial the Trial Judge concluded that it was not the role of the Court to “investigate criminal activity, even though such activity may have a direct bearing upon the issues which the court is called upon to decide”. It approached the matter on the basis of determining whether the wife believed that the husband was the assailant and whether there were reasonable grounds for that belief. He concluded in the wife’s favour on both issues. The evidence given by the court appointed psychiatrist indicated that the children, who were at that time unaware of the belief of the wife that the husband may have been responsible for the assault upon her, had a good relationship with their father and a strong desire to spend time with him. The psychiatrist attached significance to the probable sexual nature of the assault and concluded that if the husband were the assailant, there was a risk that he would reoffend primarily against her but that there was a possibility that the children themselves could be assaulted.

The Trial Judge ordered contact at weekends and school holidays to be supervised for nine months and thereafter not to be supervised. The Judge also ordered that the psychiatrist and the child representative explain to the children the orders of the Court and that the wife and the family believe that the husband is the assailant and that the husband and his family believe the husband is not the assailant. He restrained the parties and the maternal grandparents from discussing the events of the night in question with the children.

The wife appealed, contending there should be no contact and that she should have the right to inform the children of the assault. The appeal was opposed by the husband. The child representative supported the husband, submitting that the assault was a one-off affair, there was no evidence of previous assaults by the husband directed to the children and there was no unacceptable risk to them. The Full Court held:

“In cases of this sort often it is not possible for the court to form a positive view at one end or the other end of the sale of persuasion and it is not necessary for it to do so…the term identified by the High Court in M and M of “unacceptable risk” provides the touchstone for such an enquiry. Usually they are sexual abuse or similar cases, but this approach includes cases of the type identified here which involved the assessment of the risk of future physical and/or emotional harm…” [3.25]

Here the primary question which his Honour should have addressed was, looking at the whole of the evidence, where the contact (or at least contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantify in any precise way, may place those children in circumstances of potential jeopardy in the future in their father’s care.

His Honour said (quoted by the Full Court at [3.32]:

“Although there have been allegations made by the wife of violence perpetrated upon her by the husband, culminating in the vicious assault…there is no evidence to suggest that the husband has behaved inappropriately towards the children, or exhibited any violence towards them. The wife admitted in cross-examination that the children had never been caused any harm by the husband, except what she described as “emotional harm” which appeared to relate to allegations that the husband grabbed and yelled at the children on occasion. The case mounted by the wife is that it was the husband who perpetrated the assault upon her and that any parent who would behave in such a manner towards the mother, or indeed the father, of his or her children, represents a poor role model for the children, thereby calling into question his or her suitability as a contact parent…”

The Full Court, criticising this approach said at [3.33]:

“It appears to us that the opening sentences undervalue the concerns for which the court must have assessing the role of a parent as a contact parent where there has been domestic violence over a period of time. Similarly the reference to the circumstance if the husband perpetrated the December assault that “represents a poor role model for the children, thereby calling into question (his) suitability as a contact parent” also undervalues what this case is about.” [Emphasis added]

Particularisation

The difficulty about raising violence is properly particularising. A case, albeit in a property context, where this was front and centre was that of Britt and Britt [2017] FamCAFC 27. The wife contended that her contributions towards the property of the parties and the welfare of the family were made more onerous by the coercive and controlling behaviour of the husband and the physical violence he inflicted upon her, consistent with the principles set out in Kennon [1997] FamCA 27; (1997) FLC 92-757.

That contention was not accepted by the primary judge for essentially two reasons. First, much of the evidence relied upon by Mrs Britt was successfully objected to by Mr Britt and rejected by the Trial Judge. Secondly, ultimately the Trial Judge did not accept the evidence that Mrs Britt had been admitted saying:

“I cannot be satisfied on the balance of probabilities that any of the evidence the wife gave about the husband’s aggression or violence is true. The wife was not a witness of credit and the evidence of Mr [K] is only as good as the truth of the things the wife told him. The wife clearly has aggressive tendencies herself which leads open to question whether she would have meekly put up with her husband assaulting her. The first ground of appeal was whether the evidence of family violence had been properly rejected by the primary judge.”

The Full Court said at [25] to [27]:

“25. The primary judge, on the application of counsel for the respondent, rejected parts of the appellant’s evidence as to family violence essentially on the basis that the evidence was not in “proper form”. The primary judge considered that the evidence consisted of conclusions, was “just too general” and lacked particularity. In particular, her Honour was critical of adjectives such as “regularly”, “routinely”, “repeatedly” and “often”. This was because these words lacked specificity and were too general. Her Honour was of the view that such evidence gave no indication as to “whether [the family violence] happened once a week or once a decade”. Further, scattered throughout the transcript are statements made by the primary judge to the effect that the evidence was not relevant to the issues before the court.

26. The primary judge rejected the following evidence from the appellant’s affidavit:

“I have been having a sexual relationship with [the respondent] since I was 11 years old.”

“Our first sexual acts were not consensual on my part”.

“[The respondent] dominated me throughout our relationship. He has been violent and aggressive towards me prior to the time I commenced cohabitation with him. He regularly forced me to have vaginal and anal sex with him without my consent, often causing me considerable pain and discomfort, throughout our relationship. Our first sexual interactions were without my consent. He routinely punched and beat me and was verbally rude and aggressive throughout our relationship. He also routinely denigrated me in public, called me a “slut” and “scum” and regularly told people, including our children, that I was having affairs with other people. He regularly drank heavily. He would drink until he was extremely intoxicated. He was always violent, aggressive and abusive after drinking, particularly towards me. On numerous occasions during the marriage he said:

‘Why don’t you pack your shit and fuck off’ and

‘You are a bloody [dodo] ([a reference to] my maiden name). Without me you would be back in the gutter where you started from. That’s where you really belong’.”

“For a long time while living at [property D] we only had one motor vehicle. If [the respondent] left the farm he left in the vehicle and took the phone with him so I could not contact anybody”.

“[The respondent] regularly left me alone on the property for days at a time while he went away socialising and drinking. Sometimes he left in the afternoons saying he was going to the local hotel for a drink and would not return for a day or more. He regularly came home extremely intoxicated. When he was in this condition he was always aggressive and violent. On these occasions he would punch me, hit me, try to choke me and grab me and dragged me around by my hair. It usually took him more than a day of sleeping to recover. Usually he had no recollection of what he had done to me when he awoke”.

“I had no close family and few close friends. My only contact with the outside world was on monthly and sometimes fortnightly shopping visits to [F town] when we went to one of the local hotels on the odd social occasion involving local people”.

“I am aware that [the respondent] has been charged with drink driving offences on at least three occasions and he has wrecked at least two motor vehicles through crashing them whilst intoxicated. In both cases the vehicle was uninsured and we suffered financial loss as a consequence. In one of these cases he wrecked our [vehicle] the day we made the last payment on it. [The respondent] developed an aversion to driving after these incidents and thereafter I always drove when we went anywhere”.

“Whenever he was unhappy with me [the respondent] would hit and punch me, throw me to the ground, choke me or drag me somewhere by the hair to make his point”.

“I lived my life in fear of him and often intervened when he attempted to hurt the children physically usually with the result that I was assaulted physically myself. I was always anxious when he was drinking or when he returned to the farm after drinking. If we socialised in the local area be (sic) would not stop drinking until he was extremely intoxicated and he would never leave the hotel until closing time. On numerous occasions the children and I waited outside a hotel in the car until it closed and he was required to leave”.

“Prior to the final separation in in November 2011 I had left [the respondent] for short periods of many occasions. Every time my responsibility to my children and financial necessity caused me to return. On many of these occasions [the respondent] came and found me and forced me to return to the farm. On other occasions he prevented me from leaving the farm by depriving me of the car keys and…”

“I complained to [G town] police who spoke to [the respondent] about [his behaviour toward me on one occasion]. Thereupon [the respondent] started acting in a very caring way towards me. He repeatedly said to me words to the effect:

‘If you drop the complaint I will never hurt you again. I promise. I am very, very sorry. I was pissed when I did it. I will give up drinking. I didn’t know what I was doing. I didn’t mean to hurt you. I will never call you “a slut” again. I promise.’

“This behaviour continued for a couple of days until I relented and contacted the police and withdrew the complaint. I did so partly because my self-esteem was so low after years of [the respondent]’s treatment that I did not consider anyone would believe my story against his. I was at the point where I believed I deserved his treatment of me. I still experience those feelings today”.

“[The respondent] was not violent to me when other people were around although he still regularly denigrated me in front of other people. I still feel guilty about the sexual acts he has forced me to perform although they are against my will”.

“[The respondent] was never satisfied with the standard of my cooking, housekeeping or parenting. He regularly criticised the meals I cooked to the standard of my housekeeping. I had to wash up immediately after every meal. If he was not satisfied with something he would make me do it again. He sometimes made me repeat vacuuming several times a day. He required me to clean the house and wash up the dishes from the family’s evening meal when I came home from the second or third jobs after midnight. He was usually in bed asleep when I got home but if I didn’t do the cleaning I was abused and assaulted in the morning. At the same time he required me to rise before him and do my morning chores and jobs before breakfast. He remained in bed while I did this. He usually got up about 8:10am when I had returned home from the 40 minute round trip to the bus stop. In winter I had to get up at 5:30am to light the fire so the house would be warm when he got up. He repeatedly said about my cooking:

‘What is this shit, can’t you cook something better than this? I’m sick of eating the same shit all the time’.

Then he would throw his food out the door to the dogs and say:

‘Now get your arse in there and cook something decent.’

I would then have to prepare another meal. I had never had any cooking training but learnt how to cook meat and vegetables. We rarely ate meat other than lamb because we killed our own sheep and struggled to afford other food stuff. At one time he agreed I could go to cooking classes. After 4 classes he stopped me attending because he thought I was having an affair with someone there.

He repeatedly made me re-iron clothes. If he took a freshly ironed pair of trousers from a coat hanger and there was a slight mark where they had been hanging over the hanger he would throw the trousers at me and say:

‘Have a fucking look at me. I look like a fucking ragman. I’m not going out looking like a fucking ragman. Go and iron the fucking thing again and do it properly this time and don’t let it happen again. Can’t you do anything properly’.”

“Often whilst he was abusing me he would punch and hit me, push me to the floor or pull my hair and drag me. I used heavy makeup and frequently wore long sleeve shirts, jeans and large dark glasses to conceal my bruising and black eyes. I was sensitive and embarrassed about it in public especially when I had to turn up to work with bruises, black eyes and still emotionally upset…I even lied to a doctor when I had ear trouble and he asked me about the cause of it. A hearing defect I have had for some years has since been diagnosed as being due to the beatings I received from [the respondent]”.

“[The respondent] regularly administered corporal punishment to the children when they were young. I often had to intervene to protect them and was punched and beat in the process”.

“I eventually left [the respondent] because I could no longer tolerate the violent and abusive way in which he treated me throughout our relationship”.

27. The appellant had also adduced evidence which, if accepted, was the third party had, on three occasions, observed bruising and been told that it had been caused by the respondent.”

The Full Court quoted the High Court decision in IMM v. The Queen (2016) 330 ALR 382 which explained sections 55 (relevant evidence) and 56 (relevant evidence to be admissible) of the Evidence Act and in particular at [40]:

“Because evidence which is relevant has the capability to affect the assessment of the probability of the existence of a fact in issue, it is “probative”. Therefore, evidence which is relevant according to section 55 and admissible under section 56 is, by definition “probative”. But neither section 55 nor section 56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some, even slight, probative value will be prima facie admissible, just as it is at common law.”

The Full Court stated at [32] – [35]:

“32. As the above passage makes clear, section 55 of the Evidence Act proceeds on the basis that a trial judge cannot take the credibility, or lack thereof, of a witness into account when determining the admissibility of evidence. Any issue of credit is taken into account later, when considering the weight or importance the evidence should be given.

33. Therefore, in determining the admissibility of the proposed evidence set out above, the primary judge was obliged to consider whether the evidence could rationally affect the assessment of the existence of family violence, which led to the appellant’s contributions becoming more onerous. If the evidence could do so – that is, if it was not “inherently incredible, fanciful or preposterous” – it should have been admitted.

34. In this regard it is important to note that the probative value of a particular piece of evidence should not be considered in isolation from the rest of the evidence, including the proposed evidence. This is particularly so where the court is asked to draw an inference from all of the evidence, that is to say, all of the circumstances of the matter. This is because one piece of evidence may affect the probative value of another and a number of pieces of evidence when considered together may have a probative value greater than if each is considered individually.

35. Evidence is capable of being relevant to an issue if it puts other evidence into context, such as explaining the nature of the relationship in which other events occurred.”

The Full Court stated at [38] to [41]:

“38. The proposed evidence went to the relationship between the parties. In proceedings of the Family Law Act, evidence of relationships and the parties’ contributions to their property is commonly given in general terms and in terms which are redolent of being a conclusion. Affidavits would be excessively long otherwise. For example, parties often describe “relationship commencing” or starting “to live together” and this evidence is routinely and unremarkably admitted. Judges use their experience and, importantly, all of the evidence in a case to understand such statements.

39. It is true, of course, that complaints of family violence raise serious issues. Even so, there is not a higher standard for the admissibility of evidence of family violence compared to evidence on other issues. In determining whether or not allegations of a serious nature have been proven, the Court will apply section 140 of the Evidence Act, but such a task is undertaken after issues of admissibility have been decided.

40. The issue of whether or not the particular passages set out above were impermissible conclusions is more difficult. There is nothing in the Evidence Act that prevents evidence being given as a conclusion (save for expert opinion expressed as conclusions which can only be given by expert witnesses). The test remains that posed by section 55 and section 56. Thus a trial judge is required to consider whether the proposed evidence has sufficient, even if slight, probative value to make it admissible. If the nature of the conclusion is such that it has no probative value, the evidence should be rejected.

41. It was not entirely clear what evidence was rejected by the trial judge solely on the ground that it was a conclusion. We are, however, of the view that none of the evidence which was excluded should have been excluded on the basis that it had no probative value at all, simply because it was expressed as a conclusion.”

The issue then became whether the excluded evidence would have made no difference to the outcome if it had been admitted. The Court said at [76]:

“The evidence is capable of suggesting, at least, that the appellant was often left alone at the property with the children, made to repeat tasks, work long hours and remained in the relationship because of her responsibility for the children and out of economic necessity. The evidence is capable of establishing that the respondent was violent, to the extent of leaving bruises that were noticed by a third party.”

As to credit issues, the Full Court stated at [80] to [83]:

“80. Further, we are concerned about the primary judge’s credit finding. The primary judge rejected the appellant’s evidence for two reasons. They were that:

The appellant gave “a number of demonstrably false pieces of evidence during the proceedings” and

Since separation the appellant “has behaved in an aggressive and confrontational way” towards the respondent and members of his family. This conduct led to Apprehended Violence Orders (“AVO”) and to the appellant pleading guilty to assault and was placed on a good behaviour bond for breaching the AVO, intimidation and damage to property. This led the primary judge to find that “the wife clearly has aggressive tendencies herself which leaves open to question whether she would have meekly put up with the husband assaulting her”.

81. As to the first, this finding is, of course, based on the evidence that was before the primary judge. We have, however, concluded that the primary judge did not have before her all of the available evidence. If all the rejected evidence had been before her Honour it is impossible to be sure that the same credit finding would have been made.

82. As to the second, the conduct of a person after separation may not be a reliable guide to their behaviour during the relationship. Further, it does not following assuming that one party was aggressive and violent at times during the relationship, that the other party was not also violent.”

Not surprisingly, the Full Court remitted the matter for a re-hearing.

Some tips

As illustrated above, the usual test is whether there is an unacceptable risk. Even if there is not an unacceptable risk, has there been an exposure of the child to family violence or abuse. When you draft material, is the evidence relevant? Where is the risk? Too often I have heard judges say to solicitors or counsel: “But where is the evidence of risk?”

If there are mental health issues, how are they relevant? Be careful not to put a diagnosis of the other party in the material. There is nothing quite like reading: “My wife has Munchausen syndrome by proxy” to set the mind racing to ask the Court to draw inferences about propensity to throw mud at the other side. Put the symptoms in the material instead.

A boss of an old friend used to say to her: “Come to me with solutions, not problems”. Work the matter up. Come to the court with your proposals about how to deal with the problem. Make the enquiries. Don’t leave it to the court. It might mean supervised time with a specific contact centre, which is available next week for 2 hours every fortnight on a Saturday, at a cost to each of the parties of $***. Intakes can be had tomorrow.

Draft your proposed orders (either in the application or for the court on the day) accordingly. It might be, for example, that QML is able to undertake urine drug screen tests at a cheap cost when there has been marijuana usage alleged – and they have a collection facility around the corner from the husband’s home that is open 12 hours Monday to Friday.

The more work you do in finding solutions for the court and your client will mean that not only will the court be grateful, but there is a high chance that some or all of your solutions will be accepted – either by the other side or by the courts. Get your subpoenae out. Don’t forget to count the number of subpoenae your client causes to issue. Your judge may be insistent on a limit of 5: rule 15A.05 in the FCCR. Get the court to get the file of the Magistrates Court if needed. Comply with rule 15A.03 of the Federal Circuit Court Rules. Have a look at the rule as to what should be in your letter to the Federal Circuit Court as to what you are seeking from the Magistrates Court. Some judges prefer you write to their associate when seeking this information, others to the Registrar. I suggest the latter- who can then send it to the judge’s associate if needed.

An often overlooked tool is a Notice to Admit. Try and get admissions from the other side. If they don’t provide you with the Notice Disputing Facts or the authenticity of documents within 14 days of having been served, they are deemed to have admitted it. If they do dispute the matters and your client has to go to the cost of proving the matter, a costs order may be warranted in favour of your client. A Notice to Admit can often save a lot of time, effort, anguish and cost. FCC Rule 15.31.

What’s your case plan? At all times during the case from the moment the client first sat in your office to the end of the matter, focus on that case plan and your theory of the case. How does the evidence stack up?

Changes of mind

What if someone changes their mind – so in the heat of the moment they mention what they think was abuse in the Notice of Risk, but by the time of the trial, are happy for the other parent to have unsupervised time?

A person as they say can be hoist on their own petard. A Notice of Risk can do that. Recently I had a client in that category. The other party and the Independent Children’s Lawyer were quite rightly pointing out the inconsistencies of my client’s position. A word to the wise is to be careful what you allege. Your client’s words could come back and haunt them. As happens sometimes, a party is hell bent on throwing muck at the other, may find themselves have very little time with their child or the care of the child being given to the other.

Don’t gild the lily. Always ensure that your client is reality tested. Test the evidence. Always better to be tested in your office than for the first time in court. There is an art in obtaining a statement from your client. It is not getting written instructions from your client, nor even from one meeting. An extreme example was some years ago when I had a trial where my client alleged that she had been raped by her ex, resulting in the conception of their second child. The judge didn’t believe her. The trial was going badly. The trial was adjourned part heard.

Out of the blue a mystery witness parachuted in, corroborating much of what my client said. I was highly suspicious, as was my client’s counsel. After a brief chat by her with my client’s dad, all communication with her was by me and then by counsel and me. I spoke to her at length on the phone. I interviewed her in my office and then at counsel’s chambers. That witness was proofed! When the trial resumed, we relied on the evidence. The judge was highly cynical about the witness – but when he heard her give evidence he had no doubt she was telling the truth. She was a witness of truth. Her evidence changed the outcome of the trial. If she hadn’t been so highly proofed, who knows what could have happened – but it could have had a disastrous outcome for my client.

Practice issue with family violence orders

Section 30CC(3)(k) notes that when a family violence order is made, the circumstances in which it was made, any admitted evidence and any findings can be relevant.

Do not make the mistake that merely because an order is made then certain inferences can be drawn from that. Check your State legislation. Check the form of the order. Often orders are made by consent without admission. I give you by way of example section 51 of the Domestic and Family Violence Protection Act 2012 (Qld) which provides relevantly:

“(1) If the parties to a proceeding for a domestic violence order…consent to the making of the order, or do not oppose the making of the order, the Court may make the order –

(a) if the Court is satisfied that a relevant relationship exists between the aggrieved and the respondent;

(b) without being satisfied as to any other matter mentioned in:

(i) for a proceeding for a protection order – section 37(1)(b) or (c);

(ii) proceeding for a temporary protection order – section 45(1)(b); and

(c) whether or not the respondent admits to any or all of the particulars of the application.”

Section 37(1)(b) is “the respondent has committed domestic violence against the aggrieved”. Section 37(1)(c) is “the protection order is necessary or desirable to protect the aggrieved from domestic violence”. Section 45(1)(b) is “the respondent has committed domestic violence against the aggrieved”. In other words, the Court does not need to be satisfied that any domestic violence has occurred at all or that an order is necessary for desirable.

Careful inquiry needs to be undertaken by you as to how the order was made. For example, was it made after a 2 day trial when there was extensive cross-examination of each of the parties? Has a transcript been obtained? Or was it made by consent without admission? For the sake of completeness I have set out below the additional considerations under section 60CC(3):

“(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.”

One that is often overlooked but one that I ask that you consider carefully is item (i) the attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents.

This is a useful catchall that is often forgotten. As the authors of the CCH Family Law Service state:

“From a practitioner’s point of view this is a particularly important section dealing with the issues that go to the core of their client’s case.

It is the one that the court places a lot of reliance upon in making orders regarding children as it demonstrates such things as:

· whether a parent is child focused;

· the majority of a parent;

· the long term parenting issues such as attitudes to schooling, childcare, television, diet and all the other parenting issues.”

Drafting issues

Before you draft anything, I suggest that you look carefully at section 60CC. Keep the material relevant. Try and keep hearsay and opinion out. While section 69ZX gives great latitude as to what material may be admitted, what weight should it have? Time and again poorly drafted affidavits full of hearsay and opinion are filed, with very little weight. Sooner or later a practitioner engaging in this practice will have a costs order made against them. If you have time, go over your affidavit again and again until it is right. Use headings. Paginate long annexures or numerous annexures. Now in the Family Court you will be paginating a tender bundle. Have a scheme about how the affidavit is set out. Imagine you have a lazy judge and put the knockout bits right at the beginning, the dull stuff at the end. Draft consistently with your case plan.

Again, it helps if you know who your judge is and what their likes and dislikes are.

Try and keep it as short as possible. No-one, not even judges, wants to read War and Peace. Your version is unlikely to be as entertaining as Tolstoy’s.

Stephen Page
27 April 2018

[1] Stephen Page is a partner of Harrington Family Lawyers, Brisbane. Stephen was admitted in 1987 and has been an accredited family law specialist since 1996. He is a Fellow of the International Academy of Family Lawyers and of the American Academy of Adoption and Assisted Reproduction Attorneys. Stephen is an international representative on the ART Committee of the American Bar Association and he is the founder of the LGBT Family Law Institute Australia. He has written and presented around the world concerning family law and surrogacy matters.

[2] Mankiewicz and Swallow [2016] FamCAFC 153.

[3] [13] – [20]

[4] http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/dfat/treaties/ATS/1991/4.html

[5] [1995] HCA 20; (1995) 183 CLR 273.

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