Atkins and Atkins and Ors
[2008] FMCAfam 1346
•24 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ATKINS & ATKINS & ORS | [2008] FMCAfam 1346 |
| FAMILY LAW – Interim parenting orders – father wishing to spend time with the child for one occasion – child’s best interests. |
| Family Law Act1975 (Cth) |
| Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS ATKINS |
| First Respondent: | MR ATKINS |
| 2nd Respondent | MR STOW |
| 3rd Respondent | MS STOW |
| File Number: | BRC 7955 of 2008 |
| Judgment of: | Burnett FM |
| Hearing date: | 24 October 2008 |
| Date of Last Submission: | 24 October 2008 |
| Delivered at: | Southport |
| Delivered on: | 24 October 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Small Myers Hughes |
| Solicitors for the Respondent: | Charles Cooper Lawyers |
ORDERS
That the father spend time with the child [T] born in 1995 between
12 midday and 2.00pm Saturday 25 October 2008 at the [B] Mall, such time to be supervised by the paternal grandfather and the maternal grandfather with the mother to deliver the child to the McDonald's store at [B] Mall at 12 midday and to collect her from the McDonald's store at 2.00pm.
That an Independent Children’s Lawyer be appointed.
That the matter be adjourned to 9.30am on 20 February 2009.
IT IS NOTED that publication of this judgment under the pseudonym Atkins & Atkins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SOUTHPORT |
BRC 7955 of 2008
| MS ATKINS |
Applicant
And
| MR ATKINS |
First Respondent
| MR STOW |
Second Respondent
| MS STOW |
Third Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
This is an application brought by the father for interim parenting orders in a very confined manner. He seeks an order that the father spend time with the child, [T], born in 1995 between 12 midday and 2.00pm tomorrow, Saturday 25 October; the time to be spent at [B] Mall and to be supervised by both the paternal grandfather and the maternal grandfather. The mother to deliver to and collect the child from the McDonalds store at the mall at 12 midday for collection at 2.00pm.
From my review of the material there are some pretty serious issues to be addressed in the overall scheme of the application and for reasons that will become apparent in the course of my reasons on this application, I think it is appropriate to appoint an independent children's lawyer. There is, in my view, a need for there to be a psychiatric examination particularly in this instance of the mother by reason of allegations that are made; Whether it is simply to dispose of the allegations that are made or, indeed, to deal with the allegations in the context of parenting orders in the longer term.
Likewise, there is a need for the child to be subject to psychiatric assessment in relation to those matters. The material suggests to date that she has already been to have the psychiatric assessment in respect of her claim for agoraphobia.
It seems, from a layman's view of the material, that any difficulties that the child is presently suffering have their origin in the toxic relationship between her parents. An independent children’s lawyer, of course, will advance the investigations needed to be undertaken independently to enable the Court to make an assessment of those opposing positions.
As with any parenting application, even though it is confined in its terms, the purpose, object and principles underlying the disposal of the application are provided for in PartVII, particularly s.60B of the Family Law Act1975 (“the Act”) which, so far as are relevant to this application, are to ensure as an object that the best interests of the child are met to ensure she has the benefit of a relationship and a meaningful involvement in the lives of both her parents to the maximum extent consistent with her best interests and to ensure she is protected from physical or psychological harm.
Obviously the principles are met in part by ensuring the children, or the child in this instance, has a right to know and be cared for by both parents as well as a right to spend time on a regular basis to then communicate with both parents.
As has been noted, the manner in which these applications are approached has been discussed in the Full Court decision of Goode & Goode [2006] FamCA 1346 (“Goode”) which perhaps identifies three salient principles so far as this application is concerned. First, that is that the Court does not, on the conduct of an interim application, dispose of contested issues of fact, and in this case there are many issues of fact that are in contest between these parties. Indeed, it is almost impossible to reconcile anything that has been said by either party about the other. There are serious allegations made by the father against the mother and her psychiatric stability and suggestions that she may not, indeed, on the basis of his material, be fit to be unsupervised as a parent.
Likewise there are complaints made by the mother against the father in relation to his involvement in the life of the child. Those matters will not be resolved today and, it seems to me, that can only best be resolved by the conduct of a trial.
Now, the second perhaps significant point arising from Goode of course is that there is no paramountcy in the notion of status quo. In other words, I do not view this application on the premise of what has necessarily been or what is necessarily the position at the moment, but rather assess the application ab initio, and the third matter is of course that one has to proceed then and examine each of the matters provided for in s.60CC of the Act in order to assess best interest considerations.
Having regard to the confined nature of the dispute between the parties, there is no need for me to conduct an examination of issues such as equal shared parental responsibility and whether or not there should be orders for substantial time or equal time. The father only seeks to spend time with the child on one occasion. The ultimate question for me to be resolved is a matter of paramountcy for the child's best interests, is whether or not the order proposed by the father is a best interests order.
The primary considerations as provided for in s.60CC of the Act require me to consider first, the benefit to the child of having a meaningful relationship with both the child's parents. I note for the mother the allegations are that the father has been a disinterested parent. The father, of course, challenges that and says he has great difficulty being involved in the child's life due to his relationship with the mother. Again, for reasons I have earlier identified, I have not examined that point but make the observation that any time is better than no time and, obviously, there must be some benefit to the child, or the prospect of the child developing a meaningful relationship with her father by her spending time with the father and, to that end, it seems to me the proposal advanced by the father is to be preferred to that which is advanced by the mother which is, of course, that there be no such time, at least on tomorrow's occasion.
Next is the question of needing to protect the child from physical or psychological harm. I take note of the complaints made by the mother that the child does suffer from agoraphobia, however, notwithstanding that matter, there is no formal evidence put before me which assists me in determining the extent of agoraphobia, whether it is a chronic case or whether it is simply an isolated instance, whether indeed it is a case that is occasioned by the mother's behaviour towards the child or whether it is aggravated by exposure to the father. None of that material is before me and, of course, I am not able to make a determination in the absence of material.
I am, however, satisfied that the time spent being supervised by both grandparents, that is the paternal and maternal grandfathers, that there should be sufficient, in terms of independent and familial care, to ensure that the child is adequately protected from physical and psychological harm, at least for the very short period of time which is envisaged for the purpose of this exercise. I take note of the fact that what is intended is simply a meeting over lunch for two hours tomorrow at the [B] Mall. It is a lovely sunny day outside and I expect the weather for the weekend is going to be more of the same.
One would expect that a granddaughter having lunch in a convivial environment with her two grandfathers should prove to be a very satisfactory experience and not unnecessarily expose her to any psychological harm. So, again, to that end it seems to me that that particular consideration favours the father's application.
In terms of additional considerations I must consider the views expressed by the child. The mother contends that the child's view is that she does not want to spend time with her father. The principal premise on which the view is advanced is that the father has been a dislocated father. I take note of the fact that the father is a [occupation omitted]. He has spent a lot of time through the course of the marriage in China and other places and he, by reason of that matter, has probably been to some extent dislocated. I note, for instance, the complaint by the mother of the father is that the mother left China because she was unhappy and she was concerned about issues of hiding and so forth.
They are all matters, of course, that have to be investigated further and, as I have indicated earlier, I suggest perhaps that there might be some issues with the mother that need to be further examined. But, in any event, it does seem to me to be apparent that whatever views are expressed by the child as advanced through the mouth of the mother in the present context they cannot be accepted at face value. The views of the child, as they are expressed by the mother, are clearly embroiled in the toxicity that exists in the present relationship between the parties and to that end I am not inclined, in the present context, to afford the child's view any particular weight. So again it seems to me I proceed on the premise that the father's proposal in view of that consideration is the preferred proposal.
Next is the question of the nature of the relationship of the child with each of the child's parents including, in this case, the grandparents.
I have already noted the dislocated nature of the child's relationship with her father without, at this time, affording any assessment of the cause of the difficulties between the father and the child. It is self evident that the father has not had time with the child but in the context of that circumstance, and having acknowledged that the father of course has lived with the child before separation, has seen the child during the course of the separation and of course will be present with the two grandfathers, it seems to me that that relationship should be advanced and that a two hour period tomorrow would advance that relationship and to that end again it seems that consideration favours the father's proposal.
Next is the question of the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent. That requires the Court to consider the matters identified in s.60CC(4) of the Act which includes, in particular, the Court's need to consider whether or not each parent has fulfilled or failed to fulfil his or her responsibilities as a parent and, in particular, the extent to which the child's parents have taken or failed to have taken the opportunity to participate in making decisions about major long term issues in relation to the child, spend time with the child and communicate with the child and facilitate the other parent to do likewise.
In this instance, of course, it is difficult to form any view about those matters because of the difficulties which are apparent on the face of the material. I have earlier identified the conflict between the evidence of the parties in relation to the way in which the father has been permitted, he says, to be involved in the child's life in terms of participating and making long term decisions, in terms of spending time and in terms of communicating with the child. It is of course, in the absence of me resolving those factual issues, it will be difficult and in fact impossible on an interim application such as this to make any ruling in view of that matter and, accordingly, that consideration is neutral so far as the two proposals are concerned.
Next is the question of the likely effect of any changes in the child's circumstances, the likely effect of any separation of the child from the parent. In this instance we are talking about a two hour period of separation from the mother. Having regard to the material placed before me, I do not regard the context of the separation involving, for instance, the child spending two hours with the father and her two grandfathers as necessarily constituting a significant burden upon the child. I note the mother's evidence, for instance, that the child is agoraphobic. The child apparently, it would seem, is one who has been withdrawn by the mother from mainstream society, at least in part, because the child is home schooled in part. They are matters, of course, which will be the subject of comment by those experts who will examine this case but, in any event, having regard to with whom the child will spend time, I am not satisfied that the instance of separation for two hours is such as to have a significant effect upon the child's circumstances. Accordingly, the father's proposal again is to be preferred to that of the mother's.
There are no questions of practical difficulty and expense involved in the orders that are proposed by either party. Again, that consideration is neutral. There are no questions of the capacity of each of the child's parents to provide for the needs of the child in the context of the present application so that consideration is neutral.
I take into account the age, maturity, sex, lifestyle and background of the child. I am conscious of the fact that the mother advances in particular the issue of agoraphobia, however, as I have already indicated, the evidence is not sufficiently detailed to enable me to form any view about how significant that condition is and the bearing it might have upon the proposal advanced by the father and so, to that end, that consideration is neutral.
There are no questions of Aboriginality in so far as this child is concerned so that consideration is neutral. I am required to address issues of the attitude to the child and the responsibility as a parent demonstrated to each of the child's parents that again requires me to consider s.60CC(4) issues. I have earlier tapped upon those matters. I have nothing further to add to those matters and it seems to me, as I have already noted, that I am not able to form a view about those matters or objections with respect between the parties. I am required to consider questions of family violence involving the children and the children's family. Again, in the context of the present dispute, although I note that there is suggestion of psychological violence. I am not making a finding in relation to that matter. One could hear upon the proposal advanced by the father in this instance.
Next the Court is required to consider an order that is least likely to lead to the institution of further proceedings in relation to the child. This is an interim application. It seems to me that given the limited extend of the orders sought, that that particular consideration is neutral.
Having regard to each of the matters I am required to consider under s.60CC of the Act the overwhelming preponderant favours the orders sought by the father. I consider that is an order that is in the best interests of the child and I will make an order in those terms.
I am going to appoint an independent children’s lawyer. The independent children’s lawyer will arrange for a family report.
There will be standard directions for discovery, property pool, a quantum of experts, superannuation and the standard mediation direction, commencing Monday, 21 December.
I will direct that the parties agree on a mediator within 14 days of today's date and failing agreement, a mediator appointed by the President of the Queensland Bar Association and I will then bring the matter back on for mention on 20 February 2009.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: Beverley Schmidt
Date: 15 December 2008
0