Backland and Seville

[2013] FCCA 924

FEDERAL CIRCUIT COURT OF AUSTRALIA

BACKLAND & SEVILLE [2013] FCCA 924

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the child – parental responsibility – substantial and significant time – whether an interim change of residence is in the child’s best interests – whether child’s time with mother should be reduced – supervision – whether child’s time with mother should be supervised – whether unacceptable risk of harm.

Legislation:
Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CD, 61DA, 61DB, 62G, 65DAA

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant: MS BACKLAND

Respondent: MR SEVILLE

File Number: SYC 1218 of 2013

Judgment of: Judge Scarlett

Hearing date: 15 July 2013

Date of Last Submission: 15 July 2013

Delivered at: Sydney

Delivered on: 31 July 2013

REPRESENTATION

Solicitor for the Applicant: Mr Mokhtar

Solicitors for the Applicant: Marsdens Law Group

Counsel for the Respondent: Ms Graves

Solicitors for the Respondent: V.L. Macri Lawyers

ORDERS

UNTIL FURTHER ORDER:

1. The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the child X born (omitted) 2009.

2. The child X is to live with the Father.

3. The child X is to spend time with the Mother as follows:

   (a)From 5:00pm on Friday until 5:00pm on Monday in each week;

   (b)From 9:00am to 5:00pm on the mother’s birthday being 14 November 2013; and

   (c)From 9:00am to 5:00pm on Christmas Eve 24 December 2013;

4. Notwithstanding the provisions of Order (3) above, the child X is to spend time with the Father:

   (a)From 9:00am to 5:00pm on Father’s Day being Sunday 1 September 2013; and

   (b)From 1:00pm to 5:00pm on the child’s birthday being Saturday 7 September 2013.

5. The parties are restrained by injunction from consuming alcohol or administering to themselves any illicit drug at any time when the child is in their care according to these Orders or for twelve (12) hours beforehand.

6. The parties are restrained from criticising or denigrating each other in the presence or hearing of the child.

7. The parties are to attend upon a Family Consultant for interviews for the preparation of a Family Report under the provisions of section 62G of the Family Law Act 1975 at such times as the Family Consultant shall appoint.

IT IS NOTED that publication of this judgment under the pseudonym Backland & Seville is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 1218 of 2013

MS BACKLAND

Applicant

And

MR SEVILLE

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for interim parenting Orders. It concerns the parties’ son X who was born on (omitted) 2009 and is therefore three years and ten months old. X has been living with his father, the Respondent, since March 2012 and spending time with his mother.

2. Although the Family Consultant Memorandum recording the Child Dispute Conference attended by the parties on Wednesday 5^th June suggests that the parties had agreed to “maintain the current arrangements whereby X lives with his father and spends time with his mother each weekend and to add some time (not overnight at this stage) during the week”, nothing could be further from the truth. Each party has proposed a radically different arrangement.

3. The Mother, who is the Applicant, wishes to change the arrangements completely by:

   a)removing the child from the care of the Father and having him live with her instead; and

   b)reducing the time that the child spends with his father from five days a week to three nights and two days each fortnight, from 5:00pm on Friday until 9:00am on Monday, extending to 6:00pm if the Monday is a public holiday.

4. The Father’s proposal is almost as drastic, as he seeks that the Mother’s time with the child should be reduced from the current two days a week, from 5:00pm on Friday until 5:00pm on Sunday, down to a grand total of seven hours a week under supervision, with an additional four hours on the child’s birthday. 

5. The evidence tendered by the parties does not show that the child’s best interests will be served by adopting either proposal.

Background

1. The parties are still quite young. The Mother was born on (omitted) 1992, so she is still 20 years old. The Father is slightly older. He was born on (omitted) 1991, so he is 21 years old.

2. The parties met in (omitted) 2007, when the Mother was 15 years of age and the Father was 16. According to the Mother’s affidavit, they both “ran away from home in or around (omitted) 2008”.[1] The Mother goes on to state:

   At the time I was fifteen (15) and Mr Seville[2] was sixteen (16).[3]

   [1] Affidavit of Ms Backland 10.7.2013 at paragraph [8]

   [2] Mr Seville is the Respondent

   [3] Ibid

3. Since the Mother deposes that she was born on (omitted) 1992, simple arithmetic would suggest that she was sixteen years old “in or around November 2008” and the father was about a month short of the age of seventeen.

4. By all accounts the relationship was tempestuous. According to the Father, he did not leave home as he and the Mother lived in his parents’ home at (omitted) for a short while until they moved in to stay with the Father’s brother in (omitted). The Mother deposes that they did not have proper accommodation so they stayed with friends and relatives until she moved in with her godmother in December 2008.

5. The child X was born on (omitted) 2009.

6. It is the Mother’s evidence that whilst she was pregnant the Father was violent towards her. On one occasion, after an assault by the Father, the police arrived and she was taken to hospital by ambulance. The Mother went back to the Father after she was released from hospital.

7. The Mother deposed that she and the Father then stayed at the home of his parents until the child was about three months old. The Mother states that she left in December 2009 after an argument when the Father locked her out of the house. She walked to (omitted) where she contacted the police. The police managed to collect the baby X from the Father and the Mother returned home to live with her mother. The Mother deposed that she remained living with her mother until April 2010 but remained in contact with the Father as they were trying to improve their relationship.

8. The Mother deposed that she again became pregnant but terminated the pregnancy as she did not want another child. The Father opposed this move and this precipitated their final separation in April 2010.

9. The Mother continued as the child’s primary carer and the Father would see the child on various occasions. The Mother deposed that the Father did not see the child for about six or seven months until his solicitors contacted her in December 2010. A mediation conference was arranged. The Mother deposes at paragraph 50 of her affidavit:

   At mediation we reached an agreement and I, with my solicitors signed the Application for Consent Orders and Terms of Settlement on 15 April 2013 (sic). However, my solicitors did not receive the signed copies from Mr Seville’s lawyers until 26 May 2013 (sic), and by this time my Legal Aid funding was terminated. I herewith annex and mark with the letter “A” a copy of these documents signed by me on 15 April 2013(sic).[4]

   [4] Affidavit of Ms Backland 10.7.2013 at [50]

10. It is clear both from the context and from the documents that form Annexure “A” to the Mother’s affidavit that the events referred to took place in 2011 and not 2013, as the Mother states in her affidavit. The annexed documents consist of an Application for Consent Orders signed by the Mother and bearing a statement of independent legal advice bearing the date 15^th April 2011, not 2013. There is also a draft of some Consent Orders, again signed by the Mother and her solicitor intended to be filed at the Local Court of NSW at Liverpool.

11. Clearly, no orders were ever made by the Local Court at Liverpool.

12. The Mother deposed that she continued to live with her mother until December 2011, when she and the child moved out and started living with friends in (omitted). However, the Mother discovered that the friends with whom she was living were using drugs, so she arranged with the Father to look after the child “on a temporary basis” until she could find other accommodation.[5]

    [5] Affidavit of Ms Backland 10.7.2013 at [54]

13. The child began living with the Father in about March or April 2012 and the Mother would see the child “on a weekly basis” every time that she was not at TAFE or every weekend, when she would go to her sister’s home and the Father would bring the child to spend time with her.[6]

    [6] Ibid at [55]

14. The Mother moved back to live with her mother in or around mid June 2012. She deposed that she then asked the Father to return the child to her care but he refused. The Mother then applied for a grant of legal aid for a Recovery Order but this was refused. Instead, she was recommended to attend mediation.

15. The Mother deposed that she and the Father attended mediation in or around August 2012 but the Father refused to return the child to her care. The Mother stated that she then agreed to a parenting agreement which provided for the child to remain living with the Father until Court Orders were made.[7] 

    [7] Ibid at [58]

16. A copy of the Parenting Plan dated September 2012 forms Annexure “B” to the Mother’s affidavit. That agreement provides that:

    a)pending court orders the child X is to live with the Father;

    b)the Mother is to spend time with the child every week from 5:00pm Friday to 5:00pm Sunday commencing 28^th September 2012;

    c)the Mother is to collect the child from the Father’s residence at the commencement of the time and the Father is to collect the child from the Mother’s residence at the conclusion of the time;

    d)the parties will inform each other of any injury or illness sustained by the child;

    e)the Mother shall ensure the child sleeps in a proper bed; and

    f)the Father will provide the Mother with medical reports about the child within 7 days.

17. The Mother deposes that she agreed to the arrangement because:

    my hands were tied, my legal aid extension to go to Court was refused, and I had no option but to sign the parenting plan. Mr Seville had threatened that if (I) did not sign the parenting plan, I would not be able to see X at all.[8]

    [8] Affidavit of Ms Backland 10.7.2013 at [83]

18. The Mother deposed that she picks up X each Friday and takes him home to the house where she lives with her mother. It is a four bedroom house and the child has his own room. She has been attending TAFE but her course is due to finish this month.

19. The Mother’s solicitor told the Court that the Mother is seeking part-time employment that would enable her to work in the morning, during which time the child would be in child care.

20. The Father deposed in his affidavit of 13^th June 2013 that it was the Mother who was erratic and violent. However, he conceded that an Apprehended Violence Order was made against him in the Children’s Court at Campbelltown 6^th July 2009 for a period of 12 months. The Mother was named as the protected person. A copy of the Apprehended Violence Order is annexed to his affidavit and marked “A”.

21. The Father deposed that he signed the Consent Orders intended for the Liverpool Local Court on 25^th May 2011. A copy of the Consent Orders signed by both parties forms Annexure “C” to his affidavit. He went on to depose that:

    I am informed by my solicitors and do verily believe that in or around June 2011 my solicitors received a telephone message from Ms Backland’s solicitors that they were no longer acting for Ms Backland as they did not have a grant of legal aid.[9]

    [9] Affidavit of  Mr Seville 13.6.2013 at paragraph [28]

22. In paragraphs [29] to [33] of his affidavit the Father deposed that the Mother contacted him in January 2011 asking him look after X temporarily. He then deposed that the Mother did not seek to spend any time with the child between February and April 2011.

23. On reading the affidavit, I have serious doubts that those dates are correct. The context of the affidavit suggests that the Father is in fact referring to 2012, because annexed to his affidavit is a copy of an agreement entitled “Child Parenting Agreement” signed by the parties on 2^nd May 2012 whereby the Father stated and the Mother agreed that the Father would take “temporary full time custody of our son X aged 2, effective 1^st March 2012.”[10]

    [10] Ibid Annexure “D”

24. The Mother does not mention this agreement in her affidavit but the signature on the document appears to be hers. The Father does not say who prepared this document. It may not have been prepared by a solicitor at all, despite the fact that it contains some rather unusual legalese with a somewhat American flavour to it. If the document was prepared by a solicitor it appears not to have been a lawyer with any knowledge of family law.

25. This rather curious document also states:

    We understand that we will revisit this child custody issue once your living conditions and or arrangements have been finalised and we agree that in three months determine further custody arrangements then or which ever comes first. Thank you for taking the time to discuss this highly important issue with me and for being reasonable in the process.[11]

    [11] Ibid

26. The Father went on to depose that in or around May 2012 he notified Centrelink that he was the child’s primary carer. However, on 7^th June 2012 he received a telephone call from one Ms C, presumably meaning the Mother’s sister, asking why the Mother was not receiving payments from Centrelink any more. The Mother then came on the phone and stated that she was going to take the child back. At 9:00pm that evening the Mother arrived at the house, demanding to take the child. He refused, saying that the child was asleep. The Police arrived a short time later, checked on the child and left.

27. The Father’s case for reducing the Mother’s time with the child and requiring supervision is based on his allegations of the child having sustained injuries on 3^rd July, 8^th September and 28^th October 2012 and 6^th January and 12^th May 2013. The injuries appear to have been relatively minor.

28. The injury of 28^th October 2012 is an alleged fracture to the child’s elbow said to have been sustained the previous Saturday. He deposed that on 29^th October he took the child to a Dr S who said:

    “I need you to do an x-ray as there might be a possible fracture because he’s still leaning on it. It’s definitely not broken, but a possible fracture”.[12]

    [12] Affidavit of Mr Seville 13.6.2013 at paragraph [40]

29. The Father deposed that he arranged for an x-ray to be taken and the Doctor diagnosed a minor fracture. A further x-ray was taken and on 6^th November 2013 the Father’s family doctor examined him and said:

    “There’s no fracture. It has healed. They should have put a cast on him immediately”.[13]

    [13] Ibid

30. This evidence is unsatisfactory, to say the least. If nothing else, it appears that this child must have remarkable powers of healing to recover from a fractured elbow in a little over a week.

Submissions

1. The Mother seeks that the child should live with her on an interim basis. She complains that the Father is involved in drug abuse but prescribed scant evidence. She also complains that during the week when she telephones the Father’s residence to speak to the child he is never available.

2. The Mother’s reasons for having the child return to her full time care appear to be based more on her wants than a consideration of the child’s needs or best interests.

3. Similarly, the Father states that the child is happy and well settled living at the home where he lives with his parents and his sister. He deposes:

   My parents and sister are very close to X. X refers to my mother as “Mum”.[14]

   [14] Affidavit of Mr Seville 13.6.2013

4. It is the Father’s case that the child’s time with his mother should be reduced to seven hours one day a week under supervision because of the danger of harm to the child in his mother’s care. The evidence is unconvincing.

The law to be applied in parenting applications

1. When a Court is considering making a particular parenting order, it is required by s.60CA of the Family Law Act 1975 (Cth) to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) in s.60CC of the Act.

2. When making a parenting order, the Court is required by s.61DA(1) of the Act to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in cases of abuse or family violence (s.61DA(2)) and may be rebutted by evidence that satisfies the Court that equal shared parental responsibility would not be in the child’s best interests (s.61DA(4)).

3. When the Court is making an interim order, as in the present case, the presumption of equal shared parental responsibility applies unless the Court considers that it would not be appropriate.

4. Subsection 65DAA(1) of the Act requires the Court, where a parenting order provides for the child’s parents to have equal shared parental responsibility, to consider whether the child spending equal time with each parent would be both:

   a)in the child’s best interests; and

   b)reasonably practicable.

5. If the Court does not make an order for the child to spend equal time with each parent, the Court is then required by s.65DAA(2) to consider whether the child spending substantial and significant time with each parent would be both:

   a)In the child’s best interests; and

   b)Reasonably practicable.

6. All of these matters have been considered.

Conclusions

1. At the outset, Counsel for the Father told the Court that the application for an order that the Father should have sole parental responsibility for the child would not be pressed. The Mother in her Application for Interim Orders is seeking an order that the parties should have equal shared parental responsibility.

2. In my view, noting those matters and noting the provisions of subsection 61DA(3), I am of the view that an Order should be made until further order that the parties should have equal shared parental responsibility for the child. This is not to say that the parties have a good communication relationship, far from it, but they should be able to maintain a reasonable degree of communication between them to make long-term decisions for the benefit of their son.

3. I am mindful of the provisions of s.61DB of the Act that when making a final parenting order the Court should disregard the allocation of parental responsibility made in the interim order.

4. That said, I am not persuaded that the relationship between the parties is of sufficient quality as to make an order under s.65DAA(1) for the child to spend equal time with each parent at all feasible. Such an order would not be in the child’s best interests, even if it were reasonably practicable.

5. It should be reasonably practicable for there to be an arrangement where this child spends substantial and significant time with each parent. In my view it is clearly in his best interests for this to occur, at least on an interim basis until final orders are made.

6. The best interests of this child remain the paramount consideration, although the parties’ proposals do not seem to have given a great deal of importance to this requirement.

7. The solicitor for the Applicant refers the Court in general terms to the decision of the Full Court of the Family Court in Goode & Goode[15]. In that decision, referred at paragraph [68] to the fact that:

   …the procedure for making interim parenting orders will continue to be an abridged process, where the scope of the enquiry is “significantly curtailed”. Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[16]

   [15] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

   [16] Per Bryant CJ, Finn and Boland JJ at [68]

1. The affidavit material contains a number of discrepancies in dates and by definition remains untested by cross-examination. However, it appears to be common ground that the child lived with the parents for a short while, then lived with the Mother and then with the Father. There is no issue that the Mother gave the child into the care of the Father in about March 2012 for what, according to the documentary evidence, was intended to be a temporary arrangement.

2. It is an allowable inference that the child has not had a stable period of residence for any lengthy period in his short life of less than four years to date.

3. Despite the poor relationship between the parents and the allegations of violence and illicit drug use, there is surely a benefit to the child in having a meaningful relationship with each of his parents. Accordingly, each party’s proposal, involving a substantial reduction in the amount of time that this child would spend with each parent, would appear to have a negative effect on the development or the maintenance of a meaningful relationship with the other parent.

4. It is also a primary consideration that the Court must have regard to the need to protect the child from harm from being subjected to, or exposed to, abuse, neglect or family violence. The conflicting evidence of the parties would suggest that each parent may have engaged in family violence. The Father’s allegations of the child suffering injuries in some way caused by the abuse or neglect of the Mother are unconvincing and do not to my mind establish an such an unacceptable risk as to warrant supervision of the Mother’s time with the child.

5. The Father’s proposals for supervision are ill-conceived and entirely lacking in detail.

6. The additional considerations have been taken into account insofar as they are relevant. The consideration in paragraph 60CC(3)(h) does not apply.

7. The child is too young for his views to be taken into consideration. He is three years and ten months old. However, the Court may, under subsection 60CD(2) of the Act, inform itself of views expressed by the child, so far as that is possible, by having regard to anything contained in a report given to the Court under subsection 62G(2). This is a proper case for a Family Report to be ordered.

8. There have been allegations of family violence in the past and a previous Apprehended Violence Order. There is no current order.

9. One consideration that appears to be highly relevant is that under paragraph (d) of s.60CC(3):

   The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)   either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

10. The Mother’s proposal would significantly reduce the amount of time the child spends with his father, his paternal grandparents and his aunt. It hardly seems to be in his best interests in the interim when he is in a regular routine, bearing in mind that there is a final hearing yet to come.

11. The Mother’s proposal appears to be poorly thought out and based more on her wish to have the child spend more time with her rather than a consideration of an upset to the child’s stability in what is a temporary situation until the final hearing takes place. Whilst a mother should not be criticised for wanting to spend more time with her child, the best interests of the child must take precedence. It may not necessarily be in a child’s best interests to make a significant change in his or her living arrangements on an interim basis, and it certainly does not appear to be so in this case.

12. Similarly, the Father’s proposal for a drastic reduction in the Mother’s time with the child would also have a detrimental effect on the child’s ability to develop a meaningful relationship with his mother. The proposal would also reduce the child’s time with his maternal grandmother, with whom the Mother lives, and may also reduce the amount of time he spends with his maternal aunt.

13. I am not satisfied that the Father’s proposed orders are any more consistent with the best interests of the child than the Mother’s proposed orders are.

14. It does appear, however, that the best interests of this young boy may well be served by a slight increase in the amount of time that he spends with his mother, although his primary residence should at this stage remain in the home of his father, who lives with his own parents and sister, all of whom appear to play a role in this little boy’s life.

15. An increase in the number of changeovers each fortnight would be undesirable, because of the instability that changeovers can generate and the possibility of friction between the parents at changeover time.

16. The Mother no longer attends TAFE and does not yet have employment. Accordingly, it would appear that her Mondays will be free for the immediate future.

17. The current arrangement provides for the child to spend time with his Mother from 5:00pm on Friday to 5:00pm on Sunday each week. In my view, this block of time can be extended each weekend from 5:00pm on Sunday to expire at 5:00pm on Monday, whether or not the Monday is a public holiday. As neither party appears to be in paid employment (the Father gives his occupation as “homemaker” in his affidavit of 13^th June 2013), public holidays appear to be irrelevant.

18. Accordingly, I propose to order that the child is to spend two blocks of time with the Mother each week, from 5:00pm Friday to 5:00pm Monday. The rest of the time he is to continue to live with his father. There will be an order that the parties should have equal shared parental responsibility.

19. Orders will cover Father’s Day, Mother’s Day, the child’s birthday, the parents’ birthdays and the (omitted) celebration, whenever that is.

20. Each party will be restrained from consuming alcohol or administering to themselves any illicit drug during or for 12 hours before the time that the child is in their care. The parties will also be restrained from abusing or denigrating each other in the child’s presence or hearing.

21. The situation will be reviewed once a Family Report has been completed.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  25 July 2013