Why can’t the judge make the orders I want at the first court date?
When a parenting dispute is before the family law court, until a trial, a judge is not permitted to make findings of fact in relation to the issues in dispute between the parties. At a trial, the parties are subject to cross-examination. it is at this time that the Judge can listen to the evidence and decide who is telling the truth and who is not, in order to make findings about the issues in dispute between the parties and determine the orders that are in the children’s best interests.
Therefore, at an interim hearing and until a trial, the judge will have regard only to the agreed facts, the issues not in dispute and the independent evidence in assessing the orders he/she should make. This puts the judge at an extreme disadvantage in determining the interim orders that are in the children’s best interests. This is why at an interim hearing where there is an allegation of a serious nature against another party and there are facts in dispute, the Judge will make orders which are conservative.
Only 3% of matters reach a trial stage. This process can take 3 years, sometimes longer. This means that if serious allegations are made by one party against the other, it can be difficult to combat those allegations at an interim hearing stage, where there are facts in dispute. As a result, you may find the Judge making conservative orders until there is more independent evidence available by way of a Family Report.
Examples of interim orders made by the Family Law Courts where allegations are raised
Lets look at some examples of how some allegations might play out in terms of the orders made at an Interim Hearing.
Note: these accounts are fictional and in no way depict actual real life events but have been made up to evidence the approach normally taken by a court where allegations are raised.
Example 1: Smith & Smith
Mr Smith applies for parenting orders to spend regular time with his three year old daughter. Ms Smith files response documents seeking orders for supervised time due to family violence and alleges that the child has witnessed the domestic violence. There is a Temporary Protection Order in place. No suggestion is made that the child has ever been harmed by Mr Smith or that the child is at risk of harm by Mr Smith.
Interim Parenting Order Result: Court makes interim orders for Mr Smith to spend time with the child each alternate weekend and an overnight in the off week, with changeover to occur in a public place to minimise any risk of the Mother and the child being exposed to domestic violence at changeover. Mr Smith consents to an order that he do an anger management program to alleviate Ms Smith’s concerns about him getting angry in front of the child. The Court then orders that a family report be prepared by a psychologist to further investigate the past and present care arrangements of the child, the family dynamics, the issues in dispute, the capacity of the parents to meet the needs of the child, the relationship of the child to each of the parents and whether there are any risks to the children’s safety, which would affect a court’s assessment of what orders are in the child’s best interests.
Example 2: Stone & Spanner
Ms Stone applies for parenting orders seeking that the children (12 and 8) live with her and spend no time with Mr Spanner due to allegations that Mr Spanner is an amphetamines user and that his capacity to act in the children’s best interests is compromised because of his drug use. The children have not spent time with Mr Spanner in three years and since separation. Mr Spanner responds to the application seeking regular time with the children each alternate weekend.
Interim Parenting Order Result: Court makes no orders for the Father to spend time with the children and orders preparation of a section 11F Report by a Family Consultant (Mini Family Report) to further investigate the past and present care arrangements of the children, the capacity of the parents to meet the needs of the children, the family dynamics, the children’s views (particularly the older child), the issues in dispute and the orders that are in the children’s best interests including whether a reintroduction of the children to their Father is in their best interests and if so, how that is to occur.
Example 3: Brown & Green
Mr Brown applies for parenting orders seeking that the children (3 and 5) spend time with him for five nights every fortnight asserting that Ms Green has stopped providing the children to him pursuant to a parenting plan agreed six months prior. Mr Brown asserts that the time arrangement has been going really well and that Ms Green suspended the arrangement for no good reason. Ms Green files response documents seeking orders that the children spend time with Mr Brown each alternate weekend, asserting that the current care arrangement is not working as the children are experiencing separation anxiety. No evidence is produced of the children’s anxiety to the Court or any other evidence supporting that the arrangement is not working.
Interim Parenting Order Result: The Court makes interim orders for the children to spend time with Mr Green pursuant to the parenting plan, for five nights a fortnight. The Court then orders that a family report be prepared by a psychologist to further investigate the past and present care arrangements of the children, the family dynamics, the issues in dispute, the capacity of the parents to meet the needs of the children and the relationship of the children to each of the parents in order to determine whether there is any separation anxiety and if so, how that can be managed.
Example 4: Gaskin & Steel
Mr Gaskin applies for parenting orders seeking that the child (1) spends time with him three times each week for day visits. He alleges that he was having regular time with the child at Ms Steel’s house but that Ms Steel suspended those arrangements one month prior. Ms Steel files response documents alleging that Mr Gaskin needs to improve his parenting skills in order for her to feel confident he can meet the child’s needs as she has always been present to supervise time between Mr Gaskin and the child. Ms Steel seeks orders that the child spend time with him in her presence or in the presence of an agreed third party, until Mr Gaskin has undertaken a parenting program and that time increase in a slow increasing regime with visits to occur twice each week.
Interim Parenting Order result: The Court makes interim orders that the child spend time with Mr Gaskin twice a week supervised by Ms Steel and an order is made for preparation of a section 11F Report by a Family Consultant (Mini Family Report) to further investigate the capacity of the parents to meet the needs of the child, the family dynamics and what orders are in the best interests of the child to enable the relationship between the child and Mr Gaskin to improve and progress.
Example 5: Carter & Winter
Mr Carter applies for parenting orders to spend regular time with his son (6). Mr Carter alleges Ms Winter has stopped allowing him to see the child and he wants time to recommence. Ms Winter files response documents alleging that Mr Carter has mental health issues, that he threatened suicide and he threatened that he would take the child away from her in any way possible, even if it meant she never saw the child again. Mr Carter acknowledges that he has a history of depression and that he attempted suicide one year prior but he says he is better now and that he is not a risk to the child. Ms Winter is very concerned about Mr Carter’s threat and that he might follow through with the threat and hurt himself and the child. Ms Winter seeks orders for supervised time and a psychiatric assessment.
Interim Parenting Order result: The Court makes interim orders that Mr Carter spend supervised time with the child and orders are made for appointment of an Independent Children’s Lawyer (ICL) and the ICL is directed to arrange a psychiatric assessment of Mr Carter so the court has some evidence about his mental health and whether his mental health issues affect his capacity to care for the child and make decisions in the child’s best interests.
Example 6: Swan & Loot
Ms Swan has parenting orders dated 10.6.15 in place for the children (10 and 15) to live with the parties on a week about basis. Ms Swan applies for new parenting orders that the children live with her and spend no time with Mr Loot and that she have sole parental responsibility for long term decisions concerning their health and welfare. She alleges that Mr Loot has sexually abused the children just three (3) months prior and that she stopped allowing the children to see him at that time. She alleges that there is an ongoing investigation with the police. She files a subpoena to the Qld Police which proves that an ongoing investigation is taking place.
Interim Parenting Order result: The Court makes interim orders that the orders of 10.6.15 be suspended and that the children spend no time with the Father. The court then orders that an ICL be appointed, that the ICL be directed to issue subpoenas to the children’s school, the police and the department of child safety and that after the subpoenas have been complied with the Court directs the ICL to arrange for a Family Report to be prepared to review and assess the subpoena documents, investigate the past and present care arrangements of the children, the capacity of the parents to meet the needs of the children, any risks of harm to the children, in particular, by Mr Loot, the family dynamics, the children’s views (in particular, in relation to the sexual abuse) the issues in dispute and the orders that are in the children’s best interests.
Real Case Study: Lim & Zong
In the case of Lim & Zong [2020] FamCAFC 20 the appellate court found that the Interim Hearing Judge erred in accepting as fact that the Father had committed family violence towards the mother just because the family consultant had accepted these allegations. Justice Kent who conducted the Appeal took the opportunity to make clear that a Judge conducting an interim hearing is not permitted to make findings of fact about what is true and what is not true. This case provides a timely reminder that Judges needs to determine what interim orders are in the children’s best interests based only on the agreed facts, the issues not in dispute and the independent evidence.
The facts were as follows: Judge T made an interim parenting order that the Father spend no time and not communicate with the child (an order not sought by the mother or the ICL) and that he consult with a clinical psychologist for preparation of a report as to “whether there was a risk to the mother and child of being exposed to further family violence by the father.”
The Mother alleged violence by the father which he denied saying the mother had historically alleged violence in order to disrupt his relationship with the child. A report from a family consultant who accepted the mother’s allegations stated that the father was likely to continue to perpetrate family violence towards the mother. The father complained that he had not had an opportunity to cross-examine the report writer.
Citing a decision called Salah [2016] FamCA 100 (A judge at an interim hearing must for the purpose of s60CG consider the risk of family violence) and SS & AH [2010] FamCAFC 13 (findings made at an interim hearing should be couched with great circumspection), Justice Kent said:
“Here the inescapable conclusion is that the primary judges decision rested upon concluded findings of fact..so much is clear from the …order for no time or communication despite not being sought by either parent or, importantly by the ICL…..The Judge was in error in failing to articular to the parties, the father in particular, and afford him the opportunity to be heard on, the prospect of..an interim order for no time or communication. Moreover, review of the transcript does not reveal the ..judge having foreshadowed to the father, or calling for his submissions upon, questions about his attendance upon a clinical psychologist for the purpose of further reports. importantly, in the manner in which those orders are framed, the determinations made by the ..judge about family violence were to be taken as a given by the ..psychologist..the orders speak of ‘further’ family violence being perpetrated by the father and the orders make provision for the expert to be provided with the ..judges reasons for judgement and the family reports, all of which express, unequivocal conclusions about the disputed issues..concerning family violence.”
What have we learned?
Judges have a really tough job making interim parenting orders in circumstances where they are not permitted to determine who is telling the truth and who is not and they can only rely upon the agreed facts, issues not in dispute and the independent evidence.
You can expect that if a party makes serious allegations the Judge is therefore going to be conservative until you have the benefit of a family report, which investigates the allegations made, the issues in dispute and the Judge has the benefit of some independent evidence by way of recommendations by an expert, about the orders that are in the children’s best interests.
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