MOTHER APPEALS INTERIM PARENTING ORDERS

This case revolved mainly around whether interim parenting orders should include supervision when the child visited the father. Although the mother succeeded in her appeal based on a legal error, the Court on re-determination upheld the interim orders made by the judicial registrar that no supervision was needed.

Background to the appeal

After the breakdown of the marriage, the mother filed for both interim and final parenting orders. The parties agreed to the appointment of an Independent Children’s Lawyer to represent the children. The father responded with his request for interim and final orders. One child suffers from a developmental disability, and it was agreed that this child would remain in the mother’s care. The appeal mainly concerns this child.

The mother asked for an order specifying the times this child spends with the father and further asked that this time must be supervised by one of the other children, or the father must take the child to a public place outside the home.

Interim orders were made but the judicial registrar did not impose the conditions the mother asked for regarding supervision when the child spends time with the father. The interim orders provided that the child lives with the mother, and spends time with the father each Sunday from 9:30am to 1:30pm..

The mother then applied to review these parenting orders in respect of the child. By consent, the judicial registrar’s order was stayed (postponed).

The focus of the review before the “trial judge” was the time the child would spend with the father and whether it should be supervised. The mother said that there was an unacceptable risk of sexual or psychological harm to the child on the interim orders. She again asked for orders that the time spends with the father should be supervised.

Again no orders for supervision were included. The trial judge did not find the evidence to suggest that the child should not have a meaningful relationship with her father. He was further not satisfied that she would be exposed to an unacceptable risk of sexual abuse.

The mother now appeals these orders by the trial judge

The Appellant’s (the mother) legal arguments

• The primary judge failed first to determine if the s 61DA(1) presumption that it is in the best interest of the child for the parents to have equal shared parental responsibility applied to this case before he exercised his jurisdiction to make parenting orders. He failed to consider s 61DA(1) and therefore failed to consider s 65DAA (equal or substantial time).

• The judge erred in making many factual findings on disputed and controversial matters, for example regarding the mother and the father’s past behavior in the presence of the children, the ability of the child to take care of herself at her age level, or the father’s ability to provide for the child’s needs compared to the mother’s and the bad language and behavior between the other children.  He found the father to demonstrate a greater level of parental responsibility than the mother, and he held that certain incidents constituted “low-level violence”. He erred in finding that the child would not be exposed to an unacceptable risk of sexual abuse by the father if she had unsupervised contact with him.

• The judge erred in not giving proper consideration and weight to the evidence of the Independent Children’s Lawyer, and not taking into account the father’s failure to deal with the inappropriate conduct of one of the children and his failure to properly supervise the children. The judge should not have determined the application without the benefit of a psychiatric report.

If the appeal is successful, the mother asks the Court to re-determine the matter based on the evidence before the trial judge and to make no order until an expert report is available.

The Respondents’ (the father) arguments

The father and the Independent Children’s Lawyer resist the appeal, but if it is allowed, he also asked this Court to re-determine the matter. He did not ask to put any further evidence before the court for re-determination. The ICL submitted that the re-determination should make orders identical to those made by the judicial registrar.

The Court’s findings

• S 61DA provides that when making a parenting order, the court must apply the presumption that it is in the best interest of the child for the parents to have equal shared parental responsibility. The Court must presume that the parents will have equal shared responsibility, unless there is child abuse or family violence, or the presumption is rebutted, by evidence that it would not be in the best interest of the child if the parents have equal shared parental responsibility.

• The trial judge was asked to make interim orders about the child. He was required to consider the best interest of the child as paramount. He was not asked on an interim basis to make an order for equal shared parental responsibility.

• S 61DA(3) provides that the presumption applies when the court is making interim orders unless the court considers that it would not be appropriate in the circumstances of the case for the presumption to be applied when making the order.

• It seems that the starting point is that the presumption applies, whether it is an interim or final order. It is not necessary for the parties to seek an order for equal shared responsibility to trigger the presumption. All that is needed is that the Court must be making parenting orders.

• The trial judge had to turn his mind to whether or not the presumption in s 61DA(1) applied, or whether under s 61DA(3) it would not be appropriate for the presumption to apply in this case. He did not do so.  He did not consider at all the requirements of s 61DA when he made the parenting orders. This failure constitutes an appealable error of law.

• Regarding factual findings made by the judge.

Interim parenting orders are necessary but temporary until all the evidence can be tested, evaluated and weighed at a final hearing. Judicial officers at interim proceedings often have to make difficult decisions and often follow a conservative approach or an approach that is likely to avoid harm to the child. When dealing with the immediate welfare of a child during interim proceedings, it is not always an option to simply ignore untested claims and evidence.

The trial judge did make some errors in his findings on controversial issues, but those matters did not affect the exercise of discretion or form part of the essence of his judgment. It was not an appealable error. Based on all the evidence the trial judge was entitled to find that there was no unacceptable risk of sexual abuse to the child if she stayed overnight without supervision. The mother’s allegation was based on an incident many years ago where she said the father masturbated in bed where the child, then 3 years old, was asleep in the same bed. The father gave a different version of the event.

• Regarding failing to consider certain evidence, the ICL evidence and determination without a psychiatric report. No appealable error was established.  

Although the trial judge did not accept the recommendations of the ICL, the ICL was given an opportunity to make submissions. The judge gave good reasons why he couldn’t wait for the psychiatric report, the interviews were only taking place later and he couldn’t leave the matter pending till then. It was in the best interest of the child to determine the matter. The judge also did not err in the weight given to the father’s evidence regarding inappropriate conduct by one of the children.

Based on the error in the law regarding section 61DA the Court re-determined the review application as follows:

• This Court accepts that the evidence of incidents involving the elder children falls within the definition of “family violence”. There is undisputed evidence that the police were called in when a fight broke out between 2 of the siblings involving knives. This means the presumption of equal shared parental responsibility in s 61DA does not apply. There are many areas of dispute in the evidence of each of the parties. It would be appropriate to rely on s 61DA(3). The Court then considered s 60CC(3) matters, including the nature of the child’s relationship with each parent and siblings; each parent’s willingness to encourage a close relationship between the child and the other parent; and each parent’s capacity to provide for the child’s needs.

• At this point in proceedings, the mothers want no time spent by the child with the father until the report is available. At first she asked for supervised time, but there was no evidence that a suitable supervisor was available. This would also mean the child would spend no time with her siblings who lived with the father.

• The ICL suggested that the child sees the father and her siblings on a weekly basis each Sunday until final orders are made. This would maintain her relationship with her father and the siblings, but avoid the concerns for her safety and wellbeing during extended overnight stays. It will balance the unacceptable risk to the child and the benefit of her maintaining a meaningful relationship with the father.

The Court held: It is in the child’s best interest to re-establish her relationship with her father and siblings by spending regular time with them. The nature of the uncontested evidence is such that the structure of time suggested by the Independent Children’s Lawyer is least likely to expose the child to the risk of inappropriate conduct by her siblings without adequate supervision.  Regular, but not overnight time, will maintain a meaningful relationship with her father, without any concern about her supervision needs until these matters can be appropriately investigated.

The interim orders made by the Judicial Registrar addresses all the above considerations and is in the best interest of the child.

The mother’s application to review the orders is dismissed.

Court’s determinations

• The Appeal is allowed.

• Orders made by the trial judge is set aside.
• The stay of the judicial registrar’s order is discharged.

• The mother’s application to review the judicial registrar’s order is dismissed.

• Those orders will be the operative ones until further orders are made.

This article provides basic information only and is not a substitute for a professional opinion or legal advice. It is prudent to obtain legal advice from a Family Lawyer when contemplating a separation or soon after a relationship comes to an end. It is noted that publication of this judgment by this Court under the pseudonym Marvel & Marvel has been approved by the Chief Justice under s 121(9)(g) of the Family Law Act 1975(Cth.)