By Craig Nicol and Keleigh Robinson
Children – Father with “astonishing history of traffic-related offences” successfully appealed order for supervised overnight time – No cogent reason for finding welfare risk different at night than during the day
In Chiles & Petrenko [2024] FedCFamC1A 112 (12 July 2024) Tree J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia allowed in part a father’s appeal from a final parenting order in respect of the parties’ nine-year-old son (“X”).
The orders granted the mother sole decision-making and that X live with her and spend time with the father for four nights per fortnight and extended school holidays, save that the father’s time was to be supervised by the paternal grandparents between 8.30 pm and 9 am ([2] & [16]). The father appealed the supervision requirement for overnight time.
Tree J said (from [26]):
“The father contends that … there is no finding, and … no sufficient evidentiary base for any finding, that he poses any greater risk of breaching [the restraint] … at night rather than during the day. ( … )
[27] … [A]n analysis of the evidence of the times when the father has been detected breaching traffic rules … does not suggest that his offending is restricted to the hours between 7:30pm and 9:00am.
[28] … [T]here would need to be a cogent reason for finding that the risk was different at night rather than the day, so as to impose supervision at that time. ( … )
[33] The purpose of ameliorative conditions is to mitigate a risk of harm from unacceptable to acceptable, such that when the risk analysis is repeated with the ameliorative condition in place, the relevant risk is assessed as acceptable.
[34] Absent that process being undertaken here, one is left simply guessing as to why the prospect of the father breaching [the restraint] … by driving with the child was acceptable between 9:00am and 7:30pm, but otherwise unacceptable without supervision … ”.
The issue of what conditions were to be imposed on the father’s time was remitted for rehearing.
Costs – Order for indemnity costs in property and parenting case set aside – Mother did not do better than her offer as father obtained two more nights per fortnight
In Roydon [2024] FedCFamC1A 105 (5 July 2024) Riethmuller J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, allowed an appeal from an order that the father pay the mother indemnity costs.
The parties engaged in property and parenting litigation which concluded by way of consent orders. The mother filed an application in a case seeking costs and then amended that application to seek indemnity costs ([27]).
The trial judge had found that the father did not do better than the mother’s offer to resolve the matter and ordered him to pay the mother indemnity costs, fixed at $100,000. The father appealed.
Riethmuller J said (from [66]):
“Whilst consideration of offers is often loosely described as deciding whether a party obtained a ‘better outcome than their offer’, the principle requires consideration of whether declining to accept an offer was unreasonable. The first step … is to compare the terms of the offer with the outcome, the second step is to determine whether it was unreasonable to decline the offer … ( … )
[68] The appellant obtained orders that led to four nights per fortnight with the two younger children, double the time proposed in the offer … It cannot be accepted that a change which doubled the appellant’s time … was not significant. ( … )
[70] The offer made by the respondent did not include resolution of the spousal maintenance issues. Spousal maintenance … would have remained a live issue even if the offer with respect to property settlement had been accepted … ( … )
[86] As it cannot be concluded that the respondent achieved a better result than the overall terms of her offer, and that the offer, if accepted, would have resolved the entire proceedings, the primary judge has erred in making these finding and has … taken into account an irrelevant factor … ”
Children – Variation of parenting order – An application under s 65DAAA must be sourced in fact not a party’s belief
In Carlyon & Graham [2024] FedCFamC1F 443 (27 June 2024) Schonell J dismissed a mother’s application for variation under s 65DAAA of a final parenting order. She contended ‘a significant change in circumstances’, comprised by the parties’ child witnessing (as a passenger) the father hitting with his motor vehicle a car being driven by the mother and the child’s subsequent behaviour demonstrating that the child is suffering anxiety and distress as a consequence of the father’s conduct ([28]).
Schonell J said (from [44]):
” … [W]here there is in place a final parenting order the operative provisions of s 65DAAA must be considered.
[45] The … section is conjunctive and mandates that the Court must not reconsider a final parenting order unless it has considered whether there has been a significant change of circumstances since the final parenting order was made and the Court is satisfied that in all of the circumstances taking into account whether there has been a significant change of circumstances that it is in the best interests of the child for the parenting order to be reconsidered. Section 65DAAA(2) provides a non-exhaustive list of matters that the Court may consider in determining whether or not it is in the best interests of the child for the final parenting orders to be reconsidered.
[46] There is nothing new in the provisions contained in s 65DAAA rather it is a codification of well-established jurisprudence. ( … )
[50] Much of the mother’s affidavit and that of her sister constitutes assertions based on belief rather than fact. Their respective belief … is not evidence sufficient to engage the determination required under s 65DAAA. The mother bears the onus of establishing that there has been a significant change of circumstances and that it is in the child’s best interests to reconsider varying the final parenting orders. That must be sourced in fact not belief.
[51] The car incident that led to the father’s conviction and subsequent appeal occurred in early 2023. … [I]t is unexplained, if she really believed that the child was at a risk of harm … why she waited over one year to bring an application to vary the … orders.”
Procedure – Mother granted release from Harman implied undertaking to use documents in criminal litigation – Release included subpoenaed documents, but not medical records
In Tauber & Farrens [2024] FedCFamC2F 792 (24 June 2024) Judge Harland heard an application by a mother facing serious criminal charges in which the complainant was her 14 year old daughter (“X”). The mother sought the court’s permission to use affidavits, family reports, Department of Families, Fairness and Housing records and subpoenaed material as part of her criminal defence.
After noting rule 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, Judge Harland said (from [11]):
“This rule reflects the implied undertaking from Harman v Secretary of State for Home Department [1983] 1 AC 280 that is often referred to as the ‘Harman’ undertaking or ‘Harman obligation’ to not use documents produced or filed in one Court for any other Court proceedings. ( … )
[18] … The mother contends that … [she] will be prejudiced in her defence if she is not granted leave to rely on the documents … ( … )
[21] The Court must balance X’s rights to privacy against the mother’s rights to mount the best defence she can in the criminal proceedings. I do not accept … that X had an expectation of privacy when speaking to the Court Child Expert and the Family Report Writer … Given that the father, and his wife and the mother are likely to be called as witnesses … I am comfortably satisfied that it is in the interests of justice for the parties to be able to use the affidavits filed in these proceedings … I am also satisfied that the parties should be released from their Harman undertaking with respect to the expert reports and the documents produced by the Department of Families, Fairness and Housing … ( … )
[26] The medical records are a different category. ( … )
[27] The records produced by X’s GP and the medical practice include references to X disclosing abuse and the referral for a mental health care plan. The ICL’s Counsel argued that … X was entitled to an expectation of privacy when consulting with medical practitioners. … [I] am not satisfied that the administration of justice requires the medical records to be released …”
The Court released the parties from their obligation pursuant to the implied undertaking in respect of their affidavit material, the family report, the DFFH and the subpoenaed police records, limited to the use of such documents in the criminal proceedings.
