Adair & Penney
[2008] FMCAfam 1249
•21 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ADAIR & PENNEY | [2008] FMCAfam 1249 |
| FAMILY LAW – Parenting – interim hearing – application for recovery order – parental responsibility – best interests of the child – allegations of neglect – allegations of substance abuse – family violence. FAMILY LAW – Practice & Procedure – conduct of hearings. |
| Family Law Act 1975, Part VII, ss.60B (1) & (2), 60CC (2), 60CC (3), 60CC (3)(f), (i), 61DA (3), 65DAA |
| Goode & Goode (2007) 36 Fam LR 422 Keach & Keach (2007) FLC ¶93-353 Mazorski v Albright (2008) 37 Fam LR 518 |
| Applicant: | MS ADAIR |
| Respondent: | MR PENNEY |
| File Number: | CAC 1709 of 2008 |
| Judgment of: | Neville FM |
| Hearing date: | 28 October 2008 |
| Date of Last Submission: | 30 October 2008 |
| Delivered at: | Canberra |
| Delivered on: | 21 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Kiss as agent |
| Solicitors for the Applicant: | Patrick Black & Associates |
| Counsel for the Respondent: | Mr Finch |
| Solicitors for the Respondent: | Creaghe Lisle Solicitors |
ORDERS
Until further order, the Father has sole parental responsibility for the child [X] born in 2002.
The child is to live with the father.
The Mother is to spend time and communicate with the child as agreed between the parties.
Pursuant to section 68L of the Family Law Act an Independent Children’s Lawyer be appointed for the child [X] born in 2002.
The Legal Aid Office, New South Wales is requested to make arrangements as soon as practicable for appropriate representation for the child.
Each party is to make available to the Legal Aid NSW within 7 days copies of all applications and affidavits filed in these proceedings together with all existing orders and copies of relevant reports
Upon receiving the documents filed by each party in these proceedings, the Independent Children’s Lawyer is requested to assess whether the child [Y] is at risk in the mother’s care, and if that assessment is made in the affirmative, the Independent Children’s Lawyer is to request the Department of Community Services complete a welfare check on the child.
The parties together with the child attend a family conference with a Family Consultant of the Federal Magistrates Court of Australia to endeavour to resolve the issues in this case. This will involve the parties together with the child attending at the Federal Magistrates Court at Albury on 5 February 2009 at 9:15am. This conference will be reportable and if the matter does not resolve the Family Consultant is requested to prepare a family report.
The matter be adjourned for further mention on 11 February 2009 at 9:30am in Wagga Wagga.
IT IS NOTED that publication of this judgment under the pseudonym Adair & Penney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1709 of 2008
| MS ADAIR |
Applicant
And
| MR PENNEY |
Respondent
REASONS FOR JUDGMENT
Introduction
There are 3 applications before the Court. There are 2 brief affidavits, each of which provides evidence for the respective and totally divergent accounts of events upon the basis of which relief is sought. Two procedural observations should be made at the outset.
First, two of the applications were filed the same day and purport to arise out of the same facts. Those two applications are a contravention and an application for a recovery order. On their face they are mutually exclusive or one of them – the contravention – is superfluous and would presumably be subsumed by the more expansive reach of the orders sought under the recovery order.
A third alternative explanation for the two original applications may be that if the recovery order was not granted, a `fall back’ position may be as per the contravention.
These alternative explanations for the divergent and somewhat contradictory and or overlapping applications were not traversed or commented on by either of the legal representatives who appeared in Court before me. It would have been helpful, from a procedural perspective at least, had that occurred.
The second procedural matter to note relates to the conduct of the interim hearing.
The conduct of hearings – interim and final – has been the subject of very detailed, and repeated, comment by the Full Court of the Family Court. The observations of the Full Court in Goode v Goode (2007) 36 Fam LR 422, particularly at pars.81 & 82, and repeated in Keach & Keach (2007) FLC ¶93-353, are not intended for some obscure, academic audience. They are intended for the orderly conduct of proceedings, and for the instruction, correction and guidance of courts that deal with family law matters, and for the instruction, correction and guidance of those who conduct matters in those courts. In large measure, “the legislative pathway” prescribed by the Full Court was not even adverted to, let alone followed. While some understanding between the Bench and legal representatives in certain cases may narrow the number of steps to be taken on that pathway, the wholesale side-stepping of it is not an option. When that occurs, the Court is placed in an even more difficult and problematic situation than normal. In effect, the Court is required, to varying degrees, to run the case as well as to decide it.
All of that said, in their defence the lawyers involved in this matter may have been able to obtain only the most limited of instructions. That certainly seems to have been the case. And in the case of the Applicant’s legal representative, she was acting as agent and therefore did not have the formal carriage of the matter, thereby hampering her further.
Orders Sought
The applicant seeks interim orders for the return/recovery of her son [X], who is 6 years old. She has an older daughter, [Y] aged 9, from another relationship but who is not the subject of these proceedings. She does so, among other things, pursuant to Consent Orders that were entered into on 19th September 2006. Those Orders provide that [X] live with his Mother and spend defined time with his Father.
Somewhat curiously, the only final order sought by the applicant is that [X] live with his Mother. Given that there are existing orders that provide for this, such an order is superfluous.
The respondent Father seeks final orders whereby the orders of September 2006 are discharged and that [X] live with him and spend defined time with his Mother. On an interim basis, the Father seeks that [X] live with him and spend defined time with his Mother. It was not explained, and certainly was not evident from the material before the Court, why no interim order was sought to discharge or otherwise vary the existing orders, which provide for [X] to live with his Mother. As a matter of procedure, it seems that an interim order to this effect should have been sought in the light of the existing consent orders. These orders were set out in the Response filed in Court on 27th October 2008. No orders of any kind, by either party, are sought in relation to parental responsibility.
By email dated 30th October, addressed to my Associate and copied to the Applicant’s solicitor, the Respondent’s solicitor set out slightly expanded interim orders sought. As per that email, the orders sought are as follows:
(1)That the child [X] born in 2002 live with the Father;[1]
(2)The Mother spend time and communicate with the Child as agreed between the parties;
(3)Pursuant to section 68L of the Family Law Act 1975 the Child be separately represented and it is requested that the NSW Legal Aid Office arrange such representation;
(4)Forthwith upon the appointment of the Independent Children’s Lawyer, that Lawyer file with the Court a Notice of Address for Service;
(5)Within 48 hours of notification of such appointment the solicitors for the respective parties are to provide to the Independent Children’s Lawyer copies of all relevant documents relied upon;
(6)The parties, together with the Child attend a reportable family conference on a date to be advised by the Court and that a family report be prepared.
[1] The child’s name was consistently spelt differently by each party, the father spelling it “X1”, the Mother spelling it “X2.” One would hope that X1/X2’s parents could at least agree on the correct spelling of his name.
The objects and principles set out in s.60B(1) & (2), to which the Court must have regard, are neatly and helpfully summarised by Brown J in Mazorski v Albright (2008) 37 Fam LR 518. In that case her Honour said, at [3] – [6]:
The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
Here, the issues seem to me to oscillate around (a) protection of both children and (b) their parents, especially their Mother, ensuring that their parental duties and responsibilities are properly exercised. From the limited and untested evidence available to the Court I confess to having some concerns about how diligently the applicant Mother has attended to her parental responsibilities. And this comes primarily from material that has been filed in her own case.
In her affidavit of 17th October 2008, Ms Adair annexed the application by the police for an Apprehended Domestic Violence Order against her, which came before the Local Court at Wagga Wagga on 14th October 2008. A detailed statement from the police is attached to that application. In it, Ms Adair’s daughter [Y] is said to have told the police that Ms Adair “often leaves them [the children] alone with no food at times and doesn’t come home for hours after drinking.”
The AVO application arose out of a situation that is set out, in conflicting accounts, in the parties’ affidavits. On the Mother’s version of events, on 5th October this year she went across the road to obtain a cigarette from a neighbour around 8.30am. She says that she left the children asleep, and that she would be able to hear them “from where [she] would be.” Either it was a very narrow street and or Ms Adair has almost supernatural hearing. In any event, she says that after a short while – the actual duration is not specified – she returned home to find the children missing. She then tried to contact the respondent.
She further deposed to Mr Penney coming to her house that same day around 9 or 9.30am. She asked him if he had seen the children, if he had taken them, or did he know where they were? Clearly, these are all serious questions. According to the Mother’s evidence, and not surprisingly, Mr Penney spoke strongly to the effect that he had no idea where they were and that he wanted, quite desperately, to find his son.
After then alleging that Mr Penney’s uncle (Mr C) arrived at her residence, Ms Adair says that Mr C and Mr Penney went off drinking. She had earlier stated that when she and the respondent were together he used to drink and take speed (by injection), smoke marijuana and take other drugs.
She says that she then phoned the police on the emergency number. She said that Constable Nolan attended at her house and she advised him that both children were missing. She also advised the police constable that there had been an earlier assault on a date in October, presumably on the 2nd, because the affidavit swears to the “at” symbol (“@”), which appears above the number “2.” But of course that date is inconsistent with her earlier version of events that are said to have taken place on 5th October. This is at least an instance where a person has sworn an affidavit without checking the details of it, albeit small as those details are. The same appears to be the case in relation to the person responsible for preparing the affidavit. Attention to detail is important.[2]
[2] Although presumably prepared with some haste, further errors are contained in the Mother’s documents. This includes the child’s birth date, which would have meant the child was a little over a week old at the time of the hearing. Additionally, in the competing applications filed on behalf of each of the parties, and as noted earlier, two different spellings of the child’s first name is used.
The police returned [Y]. They left [X] with his Father. In substance, Ms Adair has not seen her son since these events. She deposed to hearing the respondent’s Mother say to her attorney that she had been advised not to return [X] to her.
For his part, Mr Penney deposes to various instances where Ms Adair has left the children unattended as well as living in inappropriate circumstances.
In relation to the incident to which Ms Adair deposed in early October, Mr Penney said that he was fishing on the Murrumbidgee River, where he had been since the previous night. He received a call from a friend who told him not to go home but instead to go to his sister’s place because that was where the children were. He arrived there about 11.30am and was told by his sister that the children woke up to find their Mother not around and did not know where to find her. They went to someone else’s place and then ultimately to their Aunt’s house (Ms N).
Mr Penney stayed with the children for lunch and then, around 2pm, went to see the applicant Mother, Ms Adair. He said that she did not know the whereabouts of the children.
He deposed to being of the view that Ms Adair had resumed prescription drug-taking, and the consumption of alcohol with them.
In relation to various matters deposed to by Ms Adair, Mr Penney denied ever taking speed but admits taking a small amount of “E” which was given to him by the applicant. This was, he says, about three years ago. He admits to smoking marijuana in the past but never in front of [X]. He denies the allegations of violence.
In addition to Mr Penney’s affidavit, his Mother, Mrs P, also swore an affidavit in which she deposes to receiving a telephone call from her daughter around 9.40am on 5th October 2008. She goes on to say that her daughter advised her that she had the children in question who had turned up on “[name omitted]’s doorstep”, that they were “very distressed”, that they “could not find their Mother”, and that she (Ms N) had the children with her.
Mrs P goes on to say that she then went to her daughter’s place, that she contacted a friend of Mr Penney to tell him what happened, and that Mr Penney arrived at her daughter’s house about 11.30 or 12 noon. She then deposes to speaking with the police later that day. She was advised by an unnamed police officer that the police would be recommending to the Department of Community Services (“DOCS”) that the children be removed from their Mother’s care immediately. She also says that the police recommended that [X] stay with his Father, the respondent Mr Penney.
The Legislative Pathway
As already indicated, the Full Court in Goode v Goode (2007) 36 Fam LR 422 detailed the requisite path to be followed in interim proceedings (its application in final proceedings of course also being critical). At pars.81 & 82, the Full Court said:
In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
The directions just enunciated from the Full Court’s judgment are predicated on earlier observations in the same judgment where their Honours said, at [72]:
In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
Applying these principles, and in accordance with the prescriptions of the legislation itself, the following should be noted in the light of the disputed factual matters before the Court.
Among the objects of the Act in s.60B(1), and the primary considerations in s.60CC(2), in my view the matters most immediately relevant are those aspects of the Court’s responsibility to protect children from being subject, or exposed, to abuse or neglect. In this case, it is the evidence, albeit limited but nonetheless significant, of
Ms Adair leaving the children either unattended and or inappropriately supervised, which raises the spectre at least of neglect. As well, I am concerned also about the allegations about the use of prescription drugs and alcohol together.
Claiming on the one hand that she left the children asleep and going to a place across the road where she could still hear them, but on the other hand obviously not being able to hear them rising from their slumber and departing the house, also raises (without definitively deciding), concerns about the applicant Mother’s capacity to provide for the needs of the children (as detailed in s.60CC(3)(f)) and her attitude to the responsibilities of parenthood (as required in s.60CC(3)(i)).
There is insufficient evidence for me to make any findings in relation to any of the other “additional considerations” of s.60CC(3). I move to the presumption of equal shared parental responsibility and matters that flow from its operation – if appropriate.
I have already indicated that equal shared parental responsibility was not addressed at the interim hearing, or in any of the documents filed. In part this was understandable. However, given that the respondent Father sought specific parenting orders, as opposed to the applicant Mother’s alternative claims for relief pursuant to either a contravention application and or a recovery order, the presumption should have been addressed in some shape or form.
Section 61DA(3) provides that in making an interim order, the presumption applies unless the court considers that it would not be appropriate for it to apply in the circumstances.
On the limited and untested evidence available to the Court, and because the matter will come back before me in the next Wagga Wagga sittings of the Court in February 2009, I consider that the presumption should not apply. The Court of course is not bound in the future determination of the matter by the orders made today. In making an order that sole parental responsibility should repose in the Father, the operation of s.65DAA does not come into play.
In all of the circumstances of the matter, limited and circumscribed as they are, and for the reasons set out above, I make orders as sought by the respondent Father.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: J. Curtis
Date: 21 November 2008
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