Mother Opposes Father's Application for Increased Time with Children

Fitzroy & Oliversen [2021] FedCFamC1F 4 (2 September 2021)

The father applied to increase time with children after interim care arrangements provided for the parties to have an equally shared parental responsibility over their children.  The mother opposes the father's application to provide stability for the COVID-19 crisis. The Court, in adjudicating this dispute relied upon the benefits of a meaningful relationship as well as the evidence sought to be tendered by the father. 

Facts:

Interim care arrangements for the parties' children provided for equally shared parental responsibility, and that the children live with the mother, spending each Wednesday overnight with the father, along with each alternate weekend from 9:00 am Saturday until 6:00 pm on Sunday.  As such, the father seeks orders for increasing time with the children, retaining each Wednesday overnight, but extending the alternate weekends firstly to be from Friday until Monday and, from term 2 of 2022, from Wednesday until Monday in week 1 and Wednesday to Thursday in week 2.  The father also seeks greater blocks of time during the school holiday periods.  The mother opposes any change, particularly to provide for stability in the current COVID-19 crisis.  The key factual matters to shape the orders on the mother’s case relate to Y’s current reaction to Wednesdays, Y’s struggles with anxiety, the current COVID-19 crisis and the desirability for stability, the limitations in the father’s capacity and the difficulties between the parents.

The father sought to tender a sequence of purported emails between the parties to answer a contention raised by the mother in her affidavit material.  The mother resisted the tender of the emails on the basis that the provenance or authenticity of the emails had not been established.  The mother seeks interim orders to change the names of the children.

Issues:

I. Whether or not orders to increase time are in the children’s best interests. 

I. Whether absent other authenticating evidence, the content of the purported emails themselves may be used to establish their relevance by means of inferences drawn from the documents themselves as opposed to some external source identifying what the documents might be. 

Applicable law:

Family Law Act 1975 (Cth) ss 60CC, 65DAA - sets out the manner in which the court is to consider the arrangements for the children.

Evidence Act 1995(Cth) s 55 - a suite of provisions designed to facilitate the proof of matters, in this case by means of a rebuttable presumption.

Evidence Act 1995(Cth) s  161 - when drawing inferences pursuant to s 183 or pursuant to s 58, the presumptions contained herein are operative.

Evidence Act 1995(Cth) s 58 - provides that if a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.

Evidence Act 1995(Cth) s 183 - provides that if a question arises about the application of a provision of this Act in relation to a document or thing, the court may—

(a) examine the document or thing, and

(b) draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn.

Australian Securities and Investment Commission v Rich[2005] NSWSC 417; (2005) 216 ALR 320 - observed that if there is a reasonable inference that the receipt of the document will rationally affect the probability of a finding of fact, then the matter may to go to the tribunal of fact which will then determine at the end of the trial whether the document is authentic and whether the fact is proved.

Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26 -  observed the operation of the Evidence Act as permitting inferences to be drawn as to the authenticity of the document.

National Australia Bank Limited v Rusu[1999] NSWSC 539; (1999) 47 NSWLR 309 - doubted the capacity of s 58 to allow for self-authentication of documents.

Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463; (2000) 120 FCR 146 - the Full Court of the Federal Circuit considered the operation of s 183, confirming (at [20]) that it “enables the document to be examined and reasonable inferences to be drawn from such parts of it as are admissible or to which no objection has been taken”.

Analysis:

The father’s evidence speaks to the benefits of meaningful relationships in the interaction and activities with the children, indicating that the father has sufficient parenting capacity.  The benefits to Y and X of further time with the father, of further experience of the care that he has described in his affidavit, outweigh the matters that tell against that.  While Y is reportedly suffering an increase in anxiety, Y is being given support regarding her need for the intervention of a psychologist.  Furthermore, a change in time with the children appears likely to also come from minimising both parents being involved in the handovers, which Y is reported to have found stressful.  

The evidence does not, however, point to the second jump proposed by the father to occur in term 2 2022, which would see a block period of Wednesday to Monday each second week, with Wednesday overnight in the off week.  This constitutes a sharp and major change which it is unclear would then benefit the children.  The relevant inferences to be drawn which support admission of the documents are that the documents appear to be an email string between the parents as to the care arrangements for the children in the context of a contention made by the mother that the father had failed to take up offered time.  The email string sets out the father's representations explaining the position taken.

As to the sought orders of the mother regarding the names of the children, such matter should be properly dealt with at final hearing.

Conclusion:

The Court dismissed the interim application as to name change.  Orders will be made to change the current regime generally as proposed by the father, including as to school holiday time.  However, orders will not be made for the transition proposed by the father to occur following term 2 of 2022.  The Court ordered the documents contained at the applicant father’s Tender Bundle Part 2 to be admitted into evidence in the proceedings as Exhibit F3.  The Orders 32 September 2021, 4 and 7 made on 25 March 2020 in this matter are discharged.  The children (Y Fitzroy and X Fitzroy) spend time with the father each fortnight as agreed between the parties in writing.