Fourier and Anand

[2017] FamCA 9

FAMILY COURT OF AUSTRALIA

FOURIER & ANAND [2017] FamCA 9

FAMILY LAW – PARENTING – Interim orders – where allegations of violence to children and each parent by the other – where evidence needs testing but some inferences can be drawn – where shared care orders made pending expert investigation and reporting.

Family Law Act 1975 (Cth)

Adult Guardian and Mother's Parents and B and Child's Representative (2002) FLC 93-116
Chapman and Chapman (1979) FLC 90-671
Goode & Goode (2006) FLC 93-286
Jones and Jones (2001) FLC 93-080
Luadaka v Luadaka (1998) FLC 92-830
Williamson and Williamson (1978) FLC 90-575

APPLICANT: Mr Fourier

RESPONDENT: Ms Anand

FILE NUMBER: MLC 12541 of 2016

DATE DELIVERED: 18 January 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 10 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Glass

SOLICITOR FOR THE APPLICANT: Nicholas Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Chalmers

SOLICITOR FOR THE RESPONDENT: Chris Woods & Associates

Orders

1. That UNTIL FURTHER ORDER, the children B born … 2011 and C born … 2013 live with the husband and the wife respectively as follows:

   (a)For 3 days with the husband followed by 3 days with the wife and continuing thereafter at a commencing time and on a commencing date as agreed and failing agreement, commencing on 20 January 2017 at 5 pm; and

   (b)      At such other times as the parties may agree.

2. For the purposes of any changeover of the children, the parties meet at a mutually agreed venue and failing agreement, outside of the Suburb D Town Hall in E Street, Suburb D.

3. That paragraphs 4, 5, 6 and 7 of the husband’s application for interim orders and paragraphs 2, 3, 4, 9 and 10 of the wife’s response seeking interim orders are adjourned for determination by the Senior Registrar at 10 am on 22 March 2017.

4. That all other applications for interim orders are dismissed.

5. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fourier & Anand has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12541  of 2016

Mr Fourier

Applicant

And

Ms Anand

Respondent

REASONS FOR JUDGMENT

1. The parenting dispute between Mr Fourier (the husband) and Ms Anand (the wife) has been brought on very quickly and with unusual urgency. The determination arising from these reasons has been undertaken with limited evidence and submissions.

2. Sensibly, the parties have agreed among themselves to obtain expert evidence from a psychiatrist and a forensic psychologist. Currently, the court is without the benefit of any such evidence in circumstances where there are allegations each makes against the other. For this determination, none of those can be objectively tested.

3. There is an additional problem. For the reasons canvassed below, the husband has filed a “Notice of Child Abuse, Family Violence or Risk of Family Violence” which, of itself, triggers intervention in the parties’ lives by the State welfare authorities. That assessment has yet to be undertaken and the court does not have the benefit of assistance from independent social workers.

The parties

1. The most unusual aspect of the proceeding is that the parties are professionals who seem to have engaged in their profession everywhere except Australia. The husband was born in Europe but commenced living in Australia when he was 1 year old. He holds dual citizenship in his country of birth and also Australia. His parents live here. The wife was born in Asia. The parties are married having met pursuing their profession and have two children B aged 5 and C aged 3. B was born in Asia because at that time, the parents were employed there. C was born in the Middle East because at that time, the parties’ professions took them there. Until December 2016, the children had not lived in Australia.

2. On 17 December 2016, the family came to Australia for a family wedding carrying return air tickets that would have had them leave on 5 January 2017.

Christmas and the urgent action

1. Immediately upon his arrival (and the wife accuses him of not just unilateral action but specific planning), the husband filed parenting proceedings in this Court and retained the children in his care and limited the contact of the wife. The application was filed on 21 December and because the husband’s lawyers convinced the registrar to list it for urgent parenting orders, a date was given of 10 January.  That was in the first judicial duty list of the year where there were other controversial and time-consuming cases.

2. Despite the speed with which the application was brought on and with the seasonal problems of the closure of lawyers’ offices, the wife was able to consult a lawyer even before Christmas and obtain advice. She did so with the assistance of the husband who provided some funds.

3. In the days prior to Christmas, the parties continued to communicate but it was apparent that the husband had made clear his intention to end the relationship. After consulting her lawyer (and presumably on advice), the wife went off to obtain an intervention order and the husband went too. They spoke to a registrar who told them of that court’s limited availability. The events thereafter border on comedy with each scheduling appointments to seek such orders. The respective lawyers apparently communicated about what arrangements were to follow as to sharing the children. The written proposal did not seem to indicate any form of supervision of the wife was required.

4. The lawyers appointed for the wife filed a notice of address for service on 23 December 2016. Her documents were prepared (her practitioner observed that there was insufficient time to do comprehensive responses) and an affidavit was sworn on 9 January 2017.

5. In the intervening period, albeit under strained circumstances, the parties communicated including with the husband organising money for the wife and her attendance upon a hospital clinic where he also attended to assist and the diagnosis seemed to be stress. During this time, despite the complaints that intervention orders were needed, the parties were speaking to one another and remaining in each other’s presence.

Intervention orders

1. On 6 January 2017, the parties met outside the Melbourne Magistrates Court for the purpose of obtaining a date for an intervention order hearing.  They discussed matters and agreed to cancel their appointments. That period of time and those events, makes it perplexing to understand why many of the things between these parents cannot be sorted out. The orders sought by the husband to require the wife to be supervised are a serious invasion into the rights of a parent to have normal time and relationships with a child. In my view and for the reasons that follow, there is not sufficient evidence for the court to be concerned about these children being in danger from the wife.

A second affidavit

1. It is of concern that the husband’s second affidavit details intricate discussion with the 5 year old child about living in Australia. That evidence may be quite innocuous but it indicates at least at a prima facie level that these children are well aware of the parental conflict.

Financial issues

1. In addition to where the children should live, the wife sought urgent spousal maintenance orders and a claim for $20,000 towards her legal costs which her solicitor ultimately defined as an order for security for costs.

Where the children stay

1. It was agreed that pending this determination, the children would remain living with the husband who is currently residing in the home of his parents and there seemed to be an acceptance from the wife’s solicitor that if the decision was provided quickly, the wife would be able to make arrangements with the husband’s parents with whom, it was said, she has a reasonable (albeit now strained) relationship.

2. To endeavour to achieve the expected urgent outcome, these reasons will not be as expansive as they might otherwise have been. The main dispute will have to await the expert advice and the assessment of the relevant State welfare department.

3. Despite the unusual urgency and the inability of the court to make findings of fact, there appears, at least on the surface, to be some goodwill between the parties as is evidenced by the period earlier mentioned. That said, the wife is living in expensive short term accommodation and something needs to be sorted out pending the outcome.

Next hearing

1. Albeit the court was urged by the solicitor for the wife to make the two financial orders I have mentioned, there is insufficient evidence (and inadequate submissions) to enable any such orders to be made. But, rather than dismiss those, I propose to adjourn them to the Senior Registrar on the return date when all of the parenting expert evidence should be available. That will enable the wife to file material if she so desires about financial issues. In so doing, I am not leaving the wife in an entirely parlous position. The evidence shows that the husband has voluntarily contributed money not just for her support but also towards her legal costs. In disputing the basis for any such orders, counsel for the husband submitted that there are financial assets and resources not properly disclosed relating to money either held by the wife or in an account to which she can access if the husband provides her with the relevant codes. His counsel said that assistance would be provided by the husband. For completeness sake, I shall turn later to the reasons why there is insufficient basis for me to make the financial orders sought.

Wife’s work and residence

1. The other dilemma contributing to the urgency is where the wife is going to live in the future. Australia is not her home. Whilst of Asian nationality, she and the husband were contracted professionals until December 2016, in West Asia. As I have earlier observed, their trip to Australia for the family wedding was to be a “flying visit” because they had return air tickets for January 5. Absent returning, I am unclear what the wife will do but it is the evidence of the husband that she has not renewed her contract in West Asia for 2017. It was the husband’s undisputed evidence that he too had not renewed his contract in West Asia. Here again, the parties have a factual dispute that is presumably, objectively assessable. The wife’s evidence is that she has spoken to her employer in West Asia:

   and advised that I will not be able to return to work as expected.

2. How can the two versions be so diametrically different? The dilemma is that the source of livelihood for the wife remains uncertain but so too is her capacity to remain in Australia practically. As I understand her evidence, she has residency status by virtue of her marriage but no indication has been given as to what she will do other than:

   At the moment I will still be able to resume work when I return to [West Asia.]..

Relationship background

1. The parties were engaged in employment in Asia when they commenced living together in 2010. They had what the husband described as a “civil ceremony” in 2010 in Asia but then married later that year in Australia. They then remained in Asia and in 2011, B was born. For much of 2011, the wife did not work and cared for B but she did resume working at the end of 2011. When teaching, the parties were assisted by an employed maid but the wife continued to breastfeed. In August 2012, they moved to the Middle East and remained there until June 2015. There, C was born. In the Middle East, the wife did not work and remained at home initially caring for B and then C.

2. In 2015, the family moved to West Asia where they had lived in City F until December. There, both worked as professionals. In the case of the husband, his employment was for five days per week and the wife two days.

Primary carer

1. Through her solicitor, the wife asserted that she was the “primary carer” of the children and that they were “attached” to her. The bald statements were not much help as those statements have different meanings to different people and can minimise, if not ignore, the role of the other parent. I am not entirely sure what the wife’s view was of the role of the husband. For example, she said that:

   When the husband is not at work, I would allow him the time to spend with the children and develop a relationship with him. I would also take the opportunity to do any housework without having to worry about [C].

2. Whilst the use of language may have been the choice of the lawyer, I could not ascertain whether it was being asserted that the husband had no role in the lives of the children and had to be encouraged to undertake such a role or whether this statement was simply a reference to the practicalities of sharing the care of the children as both parents worked. When the wife was working, she had the assistance of a day-care arrangement. It is simply an impression but it would seem both parents had professional lives and that each managed the children in different roles. Obviously, the wife had a greater time role than did the husband during the days when the husband was at work but little was said about what happened out of those hours.

3. To the extent that the wife’s evidence minimised the husband’s role by her reference to his working duties, there is a difficulty because he provided a long list of complaints and allegations about the wife as a parent which indicated that he was involved in the lives of the children. These matters require investigation and accordingly, what I am required to decide here is a holding position for these children.

Risk of harm and applications for orders

1. The basis of the proposal of the husband to which I next turn is that there is a risk of harm to the children if they remain in the wife’s care or are in her company unsupervised. The basis of the wife’s proposal was a little less clear but her solicitor argued that the children were very young, attached to the wife and she had been their primary carer. In cases such as this, the court must assess the proposals based on the uncontroversial evidence and in the case of controversy, make findings where appropriate inferences can be drawn.

2. The husband’s written application sought orders that:

   ·He have sole parental responsibility;

   ·The children live with him;

   ·The wife have supervised time with the children on Sundays from 11 am to 1 pm, Wednesdays from 3.30 pm to 5.30 pm and otherwise as the parties might agree; and

   ·The wife communicate with the children by telephone once a week.

3. The initial application sought that the supervision be undertaken by a professional organisation but that was altered at the hearing to that role being fulfilled by the husband’s parents. As I have already indicated, this requirement was perplexing.

4. At the hearing, counsel for the husband did not pursue the application for sole parental responsibility. As such, each of the parents would have responsibility for the children.

5. The parties also agreed upon limited “airport watch” orders.

6. The wife’s written application sought orders:

   ·The wife have sole parental responsibility;

   ·The children live with her;

   ·The children spend time with the husband each weekend from 1 pm on Saturday until 1 pm on Sunday and each Tuesday from 1 pm until 1 pm on Wednesday and otherwise as agreed.

7. A variety of other orders about passports, restriction on physical punishment and non-denigration were not matters to which the court’s attention was otherwise directed.

8. The wife’s substantive application sought final orders for the activation of the Hague Convention but the solicitor for the wife said that was not proceeding. He did not press the application for sole parental responsibility either.

The issue

1. It follows therefore that the issue is how these children are to live for the next few weeks and whether, if in the care of the wife, they need to be supervised.

The allegations by the husband and wife

1. All of the allegations of violence against the wife to which I now turn are generally denied. She said:

   [17]I cannot and do not intend at this time to respond to each and every allegation contained in the husband’s voluminous affidavit sworn 20 December as I have not had sufficient time to seek detailed legal advice and prepare a detailed response.

   [22]I deny that the children are at any risk of harm when in my care. The husband has not taken any previous legal action to remove the children from my primary care and has been satisfied to leave them in my care whilst he has been at work until we came to Australia. He has taken the opportunity to retain the children now he has the support of his family and financial support when I have neither financial or emotional support…

   [23]The children see me as their primary carer and are protective of me. If the husband argues with me, the children will tell him to stop.

   [26]I deny the husband’s allegations that I made threats against him …

   [27]I deny that I have been diagnosed with obsessive compulsive disorder. I have no mental health problems which impact on my ability to care for the children…

   [28]There have been times when the husband has been violent to me….

   [29]There have been occasions when the children have come to me and told me that their Father has kicked or pinched them…..

   [30]I deny that I hit the children. I will sometimes tap them on the back of the hand or give them a light smack as a form of discipline only.

2. Those paragraphs respond to the many allegations that the husband has made and I accept that time for the preparation of the wife’s affidavit material was limited but she had obviously consulted her solicitor and had the days thereafter to cogitate about his allegations. The paucity of detail is concerning but not fatal.

3. The allegations of the husband form three categories. They are:

   (a)      Violence towards the children;

   (b)      Violence towards the husband; and

   (c)Violence arising out of or indicating impaired mental functioning of the wife.

4. It is unnecessary for me to detail all of the allegations but they can be described as the wife hitting C including the child complaining about it. The precise allegations were said to have predominantly arisen in 2016 and as late as November.

5. The husband deposed to the wife threatening to “kill” both herself and the children as well as threats of violence towards them such as “breaking” a hand. When this conduct was observed by the husband, he said he intervened. Some of this is said to have arisen during domestic activities such as bathing the children.

The physical violence allegations towards the children

1. Dealing with these first, there is the general denial of the wife but there are two concerning factors. First, the parties agreed and requested orders that there be no physical discipline by either parent. Whilst that obviously affects and restrains both parents, it is at least indicative that there was such a problem to require the parents to request the court to intervene and regulate their respective parenting roles. The second factor is the wife’s admission in paragraph [30] of her affidavit mentioned in paragraph 34 above. No doubt that would have founded the injunctive order anyway but it is at least indicative of a problem. The extent of the problem needs investigation.

1. The husband too is not immune from the problem. The wife (paragraph [29]) alleges the husband kicks and pinches the children. There are no particulars and one would have expected some detail even allowing for the restricted timing of the proceedings.  It seems that unlike the wife, the husband had time to digest and respond to the wife’s affidavit because he prepared a second affidavit by way of reply. He responded to the wife’s paragraph [29] denying the allegations and referring to an incident that was innocuous. But he too agreed to at least a no physical discipline policy.

2. What can therefore be seen is that there are allegations and counter allegations all of which are concerning but, apart from the allegations of serious harm, they are matters that might be seen in many a household when frustration arises in a parent. I am concerned that this has gone on for a long time and that neither parent has seemed to have sought professional help until very recently. So too, there is some substance to the wife’s assertion that the husband allowed the children to remain in her care whilst he went off to work. Whilst that is not entirely helpful, it must also mean that the husband, who was around the children after work hours, was at least able to monitor whether any specific harm had come to them or might come to them.

Finding about violence

1. I shall turn to the legal issues below as to how far the court can take these matters on a limited hearing but in my view, I can find that there has been some sort of violence towards the children and it has been limited. It has also been monitored by the husband to such a degree that it would be inappropriate to find there was an unacceptable risk of harm to the children in the care of the wife. I make that finding bearing in mind the asserted [paragraph 33 of the husband], and denied allegation, of the wife threatening to kill the children and herself. The husband’s inactivity in respect of that (as it happened in 2014) and the lack of context in which he described it, make me doubt that he was so concerned to remove the risk at that time.

Inter-partes violence

1. However, there are other allegations of family violence as between the parties. In the husband’s case, the assertions are detailed and precise. The wife makes general and vague allegations.

2. The husband’s evidence, again generally denied by the wife, is that from the end of 2015, and at various quite precise times, the wife kicked him [34], scratched him and attempted to strangle him [35], abused him [36], hit him with C’s “feeding tray” and a bag of toy cars [37] and between December 2015 and April 2016, slapped him [128(i)], punched him under the eye [128(ii)], threw a shoe at him [128(iii)] and the list goes on. The husband deposed to the fact that in April 2016, the wife took out a knife and hacked off the top of a plant. Whilst all of these allegations require testing, the noticeable thing is that they were some time ago. That will no doubt be relevant to s 61DA and s 65DAA of the Act if they are ultimately proved but at the moment when urgency is the consideration, they do not impress as being critical to my determination.

3. It is also important to observe that with all of that dysfunction, the parties still seemed to muddle along in their personal relationship. That conclusion can be drawn from the following evidence of the husband:

   [17]We had booked a return trip to Australia with the intention of attending my brother[’s] wedding in Melbourne and also for (the wife) and I to attend a Trade Fair for [our profession] in January 2017.

4. I have emboldened the words of the husband because in my view, if the situation was as bad and dysfunctional as he so describes throughout the period in 2016, why would there be a continuation of the relationship and one in which the children were witnessing such horrible conflict? It seems more probable than not that this pattern of the relationship had to be addressed and indeed, in my view, there is some indication that that was occurring. I turn to that issue now.

Mental health issues

1. The third category of complaint by the husband relates to the mental health of the wife. There is no objective, let alone expert, opinion about that. The husband asserts that the wife exhibits behaviour which he considers meets the designation of obsessive compulsive disorder. The parties have agreed to attend upon a psychiatrist outside of the orders that I am asked to make here. But even so, there is a dispute as to their involvement with a Dr G.

2. The husband asserts that the wife is compulsive about not just cleaning and washing herself but also the children. For my purposes, it is unnecessary to give precise details. The husband asserts that contact was made via Skype to Dr G in America as she specialises in Obsessive Compulsive Disorders. For the wife’s part, she asserts that the reason for the contact was to engage in counselling about the parties’ relationship. There is some strength to the wife’s position. The husband at [128(ii)] said that on 21 October 2016:

   (the wife) and I had a counselling session with [Dr G] during which we agreed to walk away from one another before our conversations escalate especially in front of the children.

3. The wife’s evidence [13] was that the attendances were to discuss the relationship not specifically to discuss any mental health problems. Emphasis was on the word I have emboldened so an inference can be drawn that even from the wife’s point of view, these attendances were more than just relationship counselling.

4. The husband’s own evidence would suggest that the attendances on Dr G were not just to assist an assessment of, or help for, some form of mental health problem for the wife. There is no objective evidence from Dr G.

5. Even if the wife has some problem in the form of compulsion, there will need to be an assessment as to its impact upon her parenting capacity and responsibility as well as how any risk to the children might impact upon them. At this time, I am unable to make any such findings.

6. Drawing those together, I am able to find:

   (a)With competing and denied allegations of violence both towards each other and the children, the evidence does not permit any conclusion of risk at the moment because of the time that has elapsed since the more recent allegations and the fact that the parents were prepared to continue their relationship even beyond this Australian trip;

   (b)There is no evidence of mental health problems such that I would make a finding that the children would be at risk of physical harm in the care of the wife and the agreed orders for non-disciplining of the children should prevent any repetition of the husband’s complaints ;

   (c)There is ample evidence of a dysfunctional relationship between the parents which has resulted in at least arguments but for which they were getting counselling; and

   (d)The parents, but particularly the wife, have had a significant role in the care of both children such that other practical issues such as daily care of the children has not been a problem.

7. The approach to any determination here is governed by Part VII of the Family Law Act 1975 (Cth) (“the Act”).

8. As was said in Goode & Goode (2006) FLC 93-286:

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

   In an interim case that would involve the following:

   (a)      identifying the competing proposals of the parties;

   .          (b)      identifying the issues in dispute in the interim hearing;

   (c)      identifying any agreed or uncontested relevant facts;

   (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e).deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

9. Further, arising from Goode, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. As to findings of fact, the Full Court said a court 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.

10. It is also clear that disputed facts do not give rise to a situation in which the topic is simply disregarded  (Eaby & Speelman (2015) FLC 93-654) but any findings should be couched with great circumspection . I consider here that the allegations are serious and cannot be ignored but they have been put in issue by both parties and an objective analysis of the evidence requires testing. Even so, I am not satisfied that the situation of the children in the care of the wife is as dire as the husband portrays it. As the evidence on both sides cannot be tested, great circumspection should follow.

11. The competing proposals and the issues are as I have earlier described them. The husband says the wife should have restricted and supervised time and the wife says the children should live with her and for the husband to enjoy both significant overnight and day periods.

12. The agreed and disputed facts have been identified but it is obvious that even if the specific acts and facts are not controversial, the importance of them is. That can be seen in the absence of action by both parties to resolve their crises save for their approaches to Dr G.

13. The Court is obliged to examine the s 60CC factors. They do not require seriatum description. Of the primary considerations, I am satisfied there is no unacceptable risk of physical harm to the children in the care of either party for the reasons set out. I am very concerned about the psychological health of the children but that relates to both parents. If the husband is correct, these children are exposed to the violence and abuse of their mother towards him but also her undisciplined treatment to control their behaviour as very young children. I would add to that some concern about the expression that the wife used in her para [23] as described in paragraph 34 above. How a 3 year old could be protective of his mother and how these two children would see her as their primary carer, is unclear. It may be that there are specific facts that might justify such a conclusion but at this time, that statement must be viewed as a rhetorical flourish.

14. So too, there is concern about the husband. If the facts as elaborated by him are embellished or exaggerated and he has taken advantage of the situation as alleged by the wife to wrest control of the children from her, then his unilateral behaviour will be the subject of criticism in so far as s 60CC requires consideration of parental responsibility.

15. Each child is entitled to benefit from having a meaningful relationship with their parents and the agreement about some contact indicates that is recognised. That must give way to the protection of the children if it is an issue. For the reasons set out above, I am satisfied there is no immediate risk to the children to warrant protection with the injunctive orders in place and the impending investigation by the State authorities and the two proposed experts.

16. I am also unable to make any findings about parental responsibility because the very contentious issues underpin those responsibilities. It is irresponsible for a parent to strike a child in anger or threaten a child but so too, it is irresponsible to allow conflict in the presence of children. It is also irresponsible to unilaterally remove children from another parent unnecessarily. Absent findings, that factor does not assist me.

17. Section 60CG requires a court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. There is no indication in the evidence that the changeover of the children is exposing them to family violence and to the extent that there was any uncertainty about that, it was indicated that the husband’s parents would assist as much as they can. Indicative of the state of the relationship is the way the parties conducted themselves largely uneventfully over the Christmas period.

18. The other factors in s 60CC are of no assistance in this interim determination.

19. Section 61DA requires the Court to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. I am unable to make findings about family violence or what might be in the longer term best interests of these children such as to justify a rebuttal, removal or non-application of the presumption. More importantly, s 61DA(3) provides that a court does not have to make such a determination in an interim matter where it would not be appropriate in the circumstances for the presumption to be applied. The absence of evidence of a significant import, the disputed facts and the unknown nature of the relationships of the children with each of the parents means that it is not appropriate to apply the presumption. It is also of significance that there is little trust between the parties as is evident by their accusations against each other but also the wife’s views about the husband’s motivations. That can to some extent be ameliorated by the consent orders concerning restricting movement but also by permitting short term stays for the children with each parent. Whilst something will need to be sorted out soon because of school, it was not suggested that there was any dispute requiring orders to alter the joint responsibility. I have concluded that the parties will resolve that themselves.

20. Without the presumption to consider, the issue of best interests falls to be determined according to the s 60CC considerations. Having examined those and found they do not assist such as for example the nature of the relationship of the children with persons other than the parents, I am very much at large to balance what evidence I can rely upon to decide what should happen in the short term.

21. I am able to find:

    ·Both parents have been involved significantly with these children even if for different time periods and in different roles;

    ·The children (according to the wife’s evidence) desire to see her but also seem to enjoy being with the husband;

    ·The wife has accommodation albeit of a temporary nature and which seems suitable for the children and the husband is currently living with his parents who are supportive;

    ·Neither party has indicated any specific plans for the foreseeable future affecting the children such that B can be put in a local school at least until the matter can be looked again; and

    ·The husband will be co-operative about financing of the children’s immediate needs.

22. I can find no good reason why these children should not be shared on a rolling three day basis. There is no scientific approach involved in saying three days but each seemed to want the children not to be away from the other for very long periods.  Should the State welfare authorities be concerned about the children being cared for either parent, they can take such action as they consider appropriate but to assist them, they should have access to these reasons. To the extent that a sharing arrangement affects schooling, the matter can come back to court and if so, the parties will need to explain why the court should contemplate equal sharing of parental responsibility if they cannot work out such an important issue in their children’s lives.  Orders should be made accordingly.

23. The other issues concern security for costs and urgent spousal maintenance. I deal with the first of those.

24. The power to make an order for security for costs is to be found in s 117(2) of the Act which provides that if the court decides there are circumstances that justify it in doing so, it may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just. The provisions of s 117(2A) are well known and do not need repeating here but on what little information I have, I am satisfied that neither party has any income, each has financial resources but their extent is unclear and neither party is currently a legal aid recipient. None of the other matters in s 117(2A) is currently relevant.

25. The discretion to order security for costs may require the Court to consider in addition to the financial circumstances of the parties and the following matters:

    (a)      the prospect of success of the litigation;

    (b)      whether the claim for security is made bona fide;

    (c)      whether or not an order for security would stifle the litigation;

    (d)whether or not the litigation may involve a matter of public importance;

    (e) whether or not there has been a delay in bringing the application for security;

    (f)       whether there would be difficulty in enforcing an order for costs,

    (Luadaka v Luadaka (1998) FLC 92-830; Jones and Jones (2001) FLC 93-080; Adult Guardian and Mother's Parents and B and Child's Representative (2002) FLC 93-116.)

26. No-one could doubt that there are many issues yet to be canvassed and each party has a genuine belief in their case. The difficulty is that there are no obvious funds from which satisfaction of such an order could be made. The uncertainty surrounding the financial circumstances of both parties means that I could not be satisfied there are circumstances to justify a departure from the principle in s117(1) of the Act.

27. The second issue concerns urgent spousal maintenance. In Williamson and Williamson (1978) FLC 90-575, the Full Court described the urgent procedure as a “rather pragmatic basis without any real hearing on the merits”. In Chapman and Chapman (1979) FLC 90-671, the procedure was further described as “somewhat ad hoc” which provided a court with a wide discretion not otherwise fettered by the evidentiary requirements of a normal spousal maintenance application. Whilst the discretion might be wider and the demand for evidence less so, there is still a need to establish the fundamentals of Act. There could be little doubt that even if the wife has resources overseas as asserted by the husband, she is in difficult financial circumstances. That would justify a finding of immediate need but I see that the husband is in no different a situation such as would enable me to find he could afford to pay $2000 per week as sought by the wife. There is no doubt her temporary accommodation creates such a problem for her but there is insufficient evidence to enable me to say what, if any, sum the husband could pay at this time.  The application must fail.

I certify that the preceding Seventy Three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 18 January 2017.

Associate: 

Date:  18 January 2017