Dobbyn & Dobbyn [2021] FedCFamC2F 582 (16 December 2021)

Last Updated: 25 March 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Dobbyn & Dobbyn [2021] FedCFamC2F 582

File number(s):	PAC 3974 of 2019
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	16 December 2021
Catchwords:	FAMILY LAW – Interim parenting – short form reasons – Rice & Asplund threshold argument – significant and substantial time – best interest of child – interim orders varied.
Legislation:	Family Law Act 1975 (Cth) s.69ZL
Cases cited:	Goode v Goode [2006] FamCA 1346 Hedley & Hedley [2019] FamCA 946 King & Finneran [2001] FamCA 344 Judd & Pryor (No.2) [2020] FamCA 934 Rice & Asplund [1979] FamCA 84 Marsden & Winch [2009] FamCAFC 152
Division:	Division 2 Family Law
Number of paragraphs:	38
Date of hearing:	22 November 2021
Place:	Parramatta
Counsel for the Applicant:	Dr Barnett
Solicitors for the Applicant:	Monardo Legal
Counsel for the Respondent:	Mr O’Reilly
Solicitors for the Respondent:	Solari & Stock Lawyers

ORDERS

		PAC3974 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR DOBBYN Applicant
AND:	MS DOBBYN Respondent

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	16 DECEMBER 2021

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1. Orders 7 and 9 made by consent on 23 October 2019 are discharged.

2. Order 3.d. made on 23 October 2019 is discharged.

3. The child X born in 2018 (“the child”) shall spend time with the father in a 2 week cycle as follows:

(a) In week 1, from 3pm on Tuesday to 9am on Wednesday;
(b) In week 2, from 3pm to 6.30 pm on Tuesday and from 3pm on Friday to 3pm on Sunday; and
(c) At all other times as agreed to between the parents in writing.

4. For the purposes of changeover and transportation, unless as otherwise agreed:

(a) The father will collect the child from the mother’s residence at the commencement of his time with the child, and the mother will collect the child from the father’s residence at the conclusion of the father’s time with the child (save for if the child is attending day-care in which case the parents will collect and deliver the child to day-care).

5. By consent and notwithstanding any other order:

(a) The child shall spend time with the father on the child’s birthday from 3:30pm to 7pm;
(b) The child shall spend time with the mother from 9am on Christmas Eve until 2.30pm on Christmas Day and with the father from 2.30pm on Christmas Day until 7pm on Boxing Day; and
(c) The child shall spend time with the father from 9am on Good Friday until 9am on Easter Sunday and with the mother from 9am on Easter Sunday until 9am Tuesday.

THE COURT FURTHER ORDERS THAT:

6. Fourteen days prior to the compliance check the parties are to file and serve:

(a) Any Amended Application;
(b) Any Amended Response;
(c) Any Amended Financial Statement;
(d) A single, consolidated trial Affidavit relevant to their case; and
(e) Any Affidavits by supporting witnesses upon which they rely.

7. No party shall be entitled to rely on any Affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained.

8. Twenty-one days prior to the Final Hearing the parties are to notify the Family Report or Child Dispute Conference Memorandum writer (“writer”) of the dates for Final Hearing and advise them that they are required for the purposes of cross examination.

9. In the event that no such notice is given to the writer or the writer is not available, the Family Report or Memorandum will be admitted into evidence without cross examination, subject to any objection.

10. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

11. The matter is listed for compliance check and possible allocation of a hearing date at 9.30am on 18 February 2022.

12. Seven days prior to the compliance check, each solicitor with the carriage of the matter (or if a party is not legally represented that party himself/herself) is to file and serve an affidavit of compliance setting out the following:

(a) Confirming the matter is ready to take trial dates;
(b) Confirming the trial directions have been complied with;
(c) Confirming that all other directions readying the matter for trial have been complied with;
(d) If there is non-compliance the reasons for the non-compliance;
(e) Why a costs order should not be made against the party who has failed to comply with the Court’s directions; and
(f) Annexing the jointly completed Call-Over sheet (“Annexure A”).

The parties should note that unless the trial directions have been complied with the matter will either not be listed for final hearing or may be listed for final hearing on an undefended basis.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE OBRADOVIC:

1 These are short form reasons pursuant to s.69ZL of the Family Law Act 1975 (Cth) (“the Act”) in respect of an interim parenting application.

2 The principles in respect of interim hearings are well known, including that the legislative pathway must at all times be followed (Goode v Goode [2006] FamCA 1346). Interim hearings are curtailed by the absence of cross-examination and testing of evidence in general, and the Court is often in a position where it is unable to make findings of fact. Even in such constrained circumstances, the Court is still required to determine the applications before it.

3 The proceedings concern 3 year old X, who was born in 2018.

4 Interim orders were made by the Court on 23 October 2019, being the first return date of the father’s Initiating Application. X has been living with the mother and spending time with the father in accordance with those interim orders. She spends time with her father each Tuesday and Thursday from 3.15pm to 6.15pm and each Friday from 3.30pm to 4.30pm on Saturday.

5 By way of an Application in a Case filed 17 June 2021, the applicant father moves the Court for orders that X spend time with him which is significant and substantial, namely:

1.1 From the date of these orders with the Father as follows:

1.1.1. in week 1 and each alternate week thereafter
1.1.1.1. each Tuesday from 3.00pm to 7.00pm and each Thursday from 3pm until 9.00am Friday; and
1.1.2. in week 2 and each alternate week thereafter

1.1.2.1. each Tuesday and Thursday from 3.00pm to 7.00pm and each Friday from 3pm until Sunday 6pm.

1.1.3. Any other time as may be agreed between the parents in writing.

1.2 From X turning 4 years of age with the Father as follows:

1.2.1. in week 1 and each alternate week thereafter 1.2.1.1. each Tuesday from 3.00pm to 7.00pm and each Thursday from 3pm until 9.00am Friday; and
1.2.2. in week 2 and each alternate week thereafter 1.2.2.1. each Tuesday from 3.00pm to 7.00pm and each Thursday from 3pm until Sunday 6pm.
1.2.3. Any other time as may be agreed between the parents in writing.

(Father’s case outline filed 19 November 2021).

6 The mother submits to the Court that the father’s application for interim orders should be dismissed on the basis that the Rice & Asplund [1979] FamCA 84 (“Rice & Asplund”) threshold has not been met.

7 The Family Report was released on 20 October 2021.

8 The mother’s application for final orders changed after the release of the Family Report, which noted that in September 2020, the mother proposed that between April 2021 and when the child commences school in 2023, that she spend time with the father from Friday afternoon to Sunday evening in week one and from Tuesday afternoon to Wednesday evening in week 2. The mother now seeks orders on a final basis in line with the Family Report recommendations.

Agreed/Non-Contentious Facts

9 X is in good health and is reaching all of her age appropriate milestones.

10 Since May 2020, X has been spending two afternoons and one overnight per week with the father.

11 X attends pre-school on Mondays, Tuesdays and Wednesdays.

12 X has not been away from the mother’s care for more than one night at a time.

Rice & Asplund

13 The rule in Rice & Asplund rule is one that is concerned with the best interests of the child. The purpose of the rule is to protect children from exposure and involvement in further unnecessary litigation (King & Finneran [2001] FamCA 344 at [44] and [64]). The matters to which consideration should be given in order to determine the materiality of the asserted change in circumstances, are well known, namely:

1. The past circumstances, including the reasons for the decision and the evidence upon which it was based;
2. Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing; and
3. If there is such a likelihood, the nature of the changes must be weighed against the potential detriment to the child caused by the litigation itself.

(Marsden & Winch [2009] FamCAFC 152 at [50], cited in Judd & Pryor (No.2) [2020] FamCA 934 at [18]).

14 The principle has also been held to apply to applications to vary interim parenting orders made in the course of ongoing proceedings (Hedley & Hedley [2019] FamCA 946).

15 Having regard to the limited nature of the hearing which occurred on 23 October 2019 when the interim orders were made, the length of time which has passed since then and particularly noting the age of the child and the significant changes to her maturity and developmental needs, that she is now attending pre-school and that she has been spending time with the father in accordance with those interim orders, the Court is satisfied that it is in her best interest to hear and determine the father’s application for further and different interim orders, rather than dismissing it on the basis of Rice & Asplund.

16 The circumstances for X have significantly changed in the last two years, and the orders which were made in October 2019 did not provide for any further extended blocks past 1 May 2020. The orders made in October 2019 were clearly intended to be interim orders only and contemplated by their nature, further orders being subsequently made.

Determination

17 The mother relies heavily on the recommendations made in the Family Report, as to what time may be appropriate for X to spend with the father, but does not go so far as to move the Court for orders that time between X and the father on an interim basis, be in accordance with those recommendations.

18 The Family Report is not yet tested, and the interviews were conducted via videoconference. The child was not observed with either of her parents. In the Court’s view, this is a potentially significant deficit in the report, notwithstanding that the Family Report writer does not consider this to be a substantial limitation. According to the Family Report writer, this represents “some limitations to the in-depth assessment of X’s relationship with each parent...”. As noted, the report and the opinions of the Family Report writer are yet to be tested.

19 Counsel for the father carefully took the Court through the Family Report and submissions were made as to the weight which should be placed on the recommendations, particularly noting that there were a number of inferences made in the report which are not supported by the evidence and consequently to which no weight should be given.

20 The Family Report in fact recommends that the child spend less time with the father than she is presently spending in accordance with Court orders. There is no explanation in the report as to why this would be in her best interest, nor does it appear that any consideration has been given to the impact on the child of such a change.

21 Ultimately, the Family Report is but one piece of the evidence, and the Court is not bound by opinions and recommendations made in a family report. The Court’s task is to independently determine the application before it having regard to all of the evidence and taking into account the submissions made by each of the parties.

22 X, while spending regular time with the father, has not had the benefit of spending more than one overnight with him in a week.

23 The father makes complaint about the mother not agreeing to the child spending block time with the father for holidays and for his birthday. In fact, the mother had agreed to the child spending time with the father on his birthday, but for reasons which are not explained in the father’s material, he did not take X with him. Rather the child spent time with the father’s sister on that occasion. In respect of the family holiday, it is unclear on the evidence what year that request was made by the father, namely whether it was in 2020 when X had commenced spending overnight time with him or whether it was a request in respect of a holiday in November 2021. In any event, the parties could not come to an agreement about that matter.

24 The child, on all accounts, appears to have a meaningful relationship with both of her parents and she benefits from such relationships. She is too young to be expressing views and wishes which would be given any weight.

25 The Family Report reads:

Noting X’s age and stage of development, it is likely that transitioning from one activity to another is challenging, albeit developmentally normative, particularly when she is enjoying herself, and may then contribute to X’s requests to extend her time with either parent.

26 The orders which the father presses the Court for will result in a change for X, however, life is full of changes. Her attendance at pre-school was also a change, and one that she was able to meet and adapt to. There is no objective reason to suspect that the impact of change occasioned by spending more or different time with the father than she presently does would have a negative impact on the child.

27 The mother raises allegations of family violence which are mostly historical. This is said not to deny their force, but to put them into context. The child appears to have safely been spending time with the father for the past two years, despite these serious allegations. However, the mother reports the child being unsettled after spending time with the father and that the child has apparently reported that she was “pushed” by the father, a matter which is noted as being denied by the father’s partner in the Family Report.

28 The mother maintains that the father behaves in a way which is hostile towards her at changeover and she deposes to feeling frightened and worried for X due to her experiences of the father, including after the interim orders were made. The Family Report writer is of the opinion that the mother’s account of family violence appears consistent with coercive and controlling violence. The report recognises that violence of this type can also be associated with parenting deficits and deteriorating mental health of the victim parent. Neither parents report any concerns about the mother’s capacity to parent X or about her mental health.

29 The mother raises concerns about the father potentially having ADHD. There is no evidence of any such diagnosis, and at present this appears to be speculation. The mother also raises concerns about the father using (and abusing) alcohol and illicit substances. The father denies such allegations. Before the Court is a hair follicle drug and alcohol test result in respect of a sample collected on 1 November 2021. The test is negative for all substances tested.

30 The mother further raises concerns about changeovers yet maintains that the child should remain subject to 10 face to face changeovers per week. The mother raises concerns about the father’s presentation at changeovers, and speaks of the way he apparently looks at her. Clearly, the mother does not feel comfortable at these face to face changeovers.

31 The orders which the father proposes would see there being less face to face changeovers for X, and they would see X’s time with the father increasing in a way which would allow her to spend more overnight time with the father. However, the Court is concerned that the time proposed by the father will not have the desired result of being in the child’s best interest, in that there are proposed significant changes of care for the child on a regular basis. She already attends day-care three days a week, she has regular activities on Thursday and likely Friday mornings.

32 The October 2019 orders were made at a time when X was much younger and they were made in circumstances where very young children are usually better off spending shorter periods of time more often with the parent with whom they do not live. This is no longer necessarily the case. X is still young, she is only 3.5 years old, but she is no longer a baby.

33 X is now of an age and developmental stage where she is able to spend longer periods of time away from her primary carer, as is evident from her attendance at day-care/pre-school and also with the time she has been spending with the father. However, she is still a little girl who needs down time with the mother, and to be settled in her home and in the father’s home. The Court accepts the mother’s evidence that the current interim orders are restrictive for her and X, and that at times her daily established routine is disrupted.

34 X is accustomed to spending regular time with the father and the paternal family, as well as regular weekly overnight time. Having her spend an overnight period with the father during the week and on the weekend, in a two week cycle, would see her in a more settled and hopefully less busy routine.

35 The orders which the Court herein make will see X spending time with the father in a pattern which is in part what she is used to, but otherwise will provide for her to spend regular weekend time with the mother, regular weekend time with the father and more settled time with each of her parents. The orders will also see X increase her overnight time with the father by one overnight period per fortnight. X will also get to experience an uninterrupted period of some 5 days at a time with only her mother, but she will go no longer than 5 days without seeing her father.

36 X has been spending time with her father each Tuesday and Thursday for two years now. She will continue to spend time with the father each Tuesday, and with one overnight per fortnight during the week thus affording her the opportunity of not being too busy of an afternoon after a busy day at day-care/pre-school, and also giving the father the opportunity of having a busy morning with the child during the week and ensuring that she gets to day-care/pre-school on time.

37 X is not yet of school age and as such, does not have school holidays. She is still very young and the orders which will be made offer sufficient time for each of the parents to go away with the child for short periods of time at a distance which is not too far away from the parents’ homes. The parents have agreed on arrangements for Christmas, Easter and the child’s birthday. The father has indicated that he would “not ever refuse” a request by the mother “unless there was some extraordinary circumstances” that X spend time with the maternal family for the regular family holiday, and in this regard previous orders with respect to such holiday are noted.

38 For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.

39 I certify that the preceding 38 (thirty-eight) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:

Dated: 16 December 2021

Annexure ‘A’

CALL OVER SHEET – TO BE COMPLETED JOINTLY

Matter Name:

File Number:

Matter type: Property / Children

Hearing type: Defended / Undefended

Estimate of hearing time (days)
Date Application first filed
Has the matter been not reached previously? If so, what date/s or is the matter part heard?
Number of witnesses
Issues for Determination
Have the parties attended FDR/Mediation? If so when?	Yes / No When?
Has Counsel been briefed?	Yes / No Who?
Counsel’s available dates? (Please note that Court dates are limited and it is unlikely that dates can be accommodated).

COMPLIANCE

Have trial directions been STRICTLY complied with? If no – please answer the following questions.	Yes / No
Has all evidence now been filed?	Yes / No
If No, what is outstanding?