BANNISTER & JEFFS

[2015] FCCA 3474

FEDERAL CIRCUIT COURT OF AUSTRALIA

BANNISTER & JEFFS [2015] FCCA 3474

Catchwords:
FAMILY LAW – Interim property – father seeks to change child’s primary residence.

Applicant: MS BANNISTER

Respondent: MR JEFFS

File Number: MLC 8980 of 2015

Judgment of: Judge Harland

Hearing date: 7 December 2015

Date of Last Submission: 7 December 2015

Delivered at: Melbourne

Delivered on: 7 December 2015

REPRESENTATION

Counsel for the Applicant: Mr A. Combes

Solicitors for the Applicant: Nancy V Battiato

Counsel for the Respondent: Ms Paterson

Solicitors for the Respondent: Trapski Family Law
Ms Jenkinson

Counsel for the Independent Children's Lawyer: Ms Weldon

Solicitors for the Independent Children's Lawyer: Septimus Jones & Lee

ORDERS

1. That the matter be listed 16 February 2017 at 10.00am for final hearing (with an estimated hearing time of 2 days). X born (omitted) 2009 (‘the child’) live with the mother.

2. That the child live with the mother.

3. That the child spend time with the father as follows:

   (a)For one half of the March/April and June/July each of the midterm school holidays at times as is agreed between the parties and in default of agreement from after kindergarten/school on a Friday until 6.00pm on the middle Sunday.

   (b)For half of the September school term holidays at times as agreed between the parties and in each alternate year commencing 2017 the father’s time will incorporate the child’s birthday and his time will not exceed more than half of the September school holiday.

   (c)During the summer school holiday period from the 23 December until 10 January 2015/2017.

   (d)During the school holidays the arrangements in Order 3(a) will be suspended and will recommence as and from the first weekend of the new school term or year.

   (e)On Father’s Day weekend from after school on Friday until 6.00pm Sunday.

   (f)At all other times as agreed between the parties.

4. The father’s time with the child be suspended as follows:

   (a)On Mother’s Day weekend from after school until 6.00pm Sunday.

   (b)Commencing in 2016 and each alternate year thereafter from Good Friday until Easter Monday.

   (c)Commencing in 2016 and each alternate year thereafter on the child’s birthday which will incorporate half the mid-September school holiday period.

5. Changeover occurs at 7.00pm at (omitted).

6. The mother purchases the fully paid version of the speech pathology program ‘Articulation Pro’.

7. The parties forthwith do all acts and things to engage a speech therapist for the child.

8. The father is prohibited from making medical/specialist appointments for the child (except if the child is ill) unless it is with the consent of the mother and recommended by child’s treating paediatrician.

9. The parties will notify each other within 48 hours of a change of telephone number and address and such notification will occur by text or email.

10. The parties advise each other immediately in the event that any of the children suffers any serious illness or injury.

11. The father be at liberty to obtain a copy of all school reports, newsletters, photograph order forms and any other documents or materials ordinarily provided to parents by the child’s schools.

12. The father be at liberty to attend any school functions or events or extra-curricular activities that parents are ordinarily invited to attend.

13. The parties forthwith enrol in and complete a post separation parenting course and provide a certification to the Independent Children’s Lawyer.

14. The Independent Children’s Lawyer be hereby authorised to contact and liaise with the representatives of the services the mother is engaged with in accordance with the recommendations of the Department of Health and Human Services, including (omitted) and (omitted) Family Care with respect to the mother’s compliance with the recommendations made by those services.

15. The independent children’s lawyer be at liberty to provide a copy of these orders to the services referred to in paragraph 10 hereof.

16. Orders 1, 8, 9, 10, 11, 12 and 13 of the consent orders made on 7 October 2015 remain in full force and effect.

17. Pursuant to section 62G(2) of the Family Law Act 1975 (Cth), the mother and the father and the child attend upon a family consultant nominated by the Regional Coordinator of Child Dispute Services in the Melbourne Registry of the Federal Circuit Court of Australia for the preparation of a family report to be given to the court on or before 12 January 2017.

18. The family report deal with the following matters:

    (a)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;

    (b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

    (c)any other matters that the family consultant considers important to the welfare or best interests of the child.

19. The mother and the father comply with all reasonable directions as to attendance upon the family consultant as and when required by the consultant.

20. Within seven (7) days of being notified of the identity of the family consultant, the solicitor for each of the parents (or, if unrepresented, then the parent himself or herself) deliver or cause to be delivered to the family consultant copies of the following documents:

    (a)all relevant applications, responses and affidavits filed by that parent in these proceedings; and

    (b)any intervention or restraining orders currently in force.

21. The family consultant have leave to inspect any documents produced under subpoena in this matter provided that they have been released for inspection by at least one parent or the independent children’s lawyer.

22. If either parent or the independent children’s lawyer requires the relevant family consultant to attend for cross examination at the final hearing then that parent or the independent children’s lawyer give the relevant family consultant seven (7) days’ notice in writing.

23. Upon the family report being provided to the court, the court will provide a copy to each party (or if represented the party’s lawyer) and to any independent children’s lawyer in the proceedings.

24. Unless a party objects, in writing, within 14 days of the date of releasing the family report, the court may provide copies of the family report to the following, if the court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:

    (a)a children’s court;

    (b)a child protection authority;

    (c)a state or territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

25. Unless otherwise ordered, no person release the family report, or provide access to the family report, to any other person.

26. The parties file and serve one affidavit of evidence in chief and one affidavit of each witness including expert witnesses, complying with r.15.28 of the Federal Circuit Court Rules 2001 upon which they intend to rely at trial on or before 28 days before the final hearing.

27. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Circuit Court Regulations 2012.

28. At least 72 hours prior to the trial each party provide to the other party and to the Associate to the Judge an Case Outline document as follows:

    (a)a list of the documents to be relied upon;

    (b)a brief chronology;

    (c)an outline of contentions with respect to:

    (i)whether the presumption of equal shared parental responsibility applies (s.61DA),

    (ii)the considerations relevant to equal time and substantial and significant time (s.65DAA);

    (iii)each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);

    (iv)other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and

    (v)any other matters  relevant to the decision; and

    (d)a statement of the precise orders sought

29. That the applicant’s solicitors notify the expert of the trial listing and arrange the expert to be available to give evidence at the beginning of trial and confirm with my chambers accordingly.

30. Each party provide a copy of their trial Affidavits to the expert witness at least seven (7) days prior to trial.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8980 of 2015

MS BANNISTER

Applicant

And

MR JEFFS

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application by the father for an interim change of residence for a six year old little girl named X. It is not in dispute that X has some developmental delays due to a chromosomal deficiency. Both parties have relied on portions of subpoenaed material and I will refer to that in due course.  It is also not in dispute that the child has lived with her mother since she was born. The parties never lived together.  The child spends alternate weekends with the father.  On the last occasion the matter was in Court an interim order was made for equal shared parental responsibility and no one suggests that that should be changed.

3. It is also clear that there is a high level of distrust and conflict between these parties and the issue with respect to downloading a program on to the child’s iPad is illustrative of that point. It is a speech program that would help with the child’s speech delay. It seems to me that it makes perfect sense for both parents to have the same version of that program on their iPad for this child’s benefit.  It is clear and agreed that this child is going to need speech therapy, which the father has said he will pay the gap for regardless of whether he is successful in his interim application.

4. Particularly if there are any delays in being able to secure speech therapy for this child, I cannot see anything other than a benefit to her using whatever tools are available with the assistance of both her parents so that there is consistency in both homes.  It is also clear from the evidence that child protection authorities have had a lengthy involvement with the mother and that there have been concerns raised previously about the suitability of living conditions in her home, which has been referred to as environmental neglect. 

5. The mother has mental health issues and has had problems with hoarding and there have been issues about her having electricity connected to her home and using unauthorised gas devices and not having hot water.  The mother says that these concerns are historical and that she has been working with various support services to address these issues.  The mother relies on exhibit A, which is a case note from a child protection worker dated 8 October 2015.  That note notes that there were no substantiated concerns about the unsatisfactory condition of the mother’s home and noted the level of acrimony between the parents mean that the issue of child’s primary care should take place in the family law arena.

6. The mother also relied on an electricity bill to show that she has electricity connected to her home.  That bill shows that she has had electricity certainly as at mid-2015.  The father points out this does not prove whether or not she has hot water.  She also relies on an immunisation history statement showing that the child has received her appropriate immunisation shots.  Exhibit D is the section 69ZW report which also notes historical concerns, particularly regarding the mother’s home environment and hoarding but also noted that the mother had previously engaged very well with the Child FIRST services. 

7. One way of addressing the concerns is reflected in the orders proposed by the Independent Children's Lawyer which are not opposed by the parties which require the mother to remain engaged in the support services and authorises the Independent Children's Lawyer to contact those support services and liaise with them.  This will provide a level of monitoring.  The Independent Children's Lawyer also proposes that she be able to give a copy of these orders to those services and I certainly think that is appropriate.

8. It is clear to some extent the previous investigations by authorities were hampered by the mother not allowing people into her home and there is some reference to her also not allowing tradespeople into her house because of being embarrassed about the hoarding.  However, the section 69ZW report also goes on to note that the mother had engaged with them with respect to a hazard management plan that was put in place and that her psychologist went to the home and was able to achieve a more holistic approach. 

9. It also goes on to note that the child’s kindergarten was not concerned about neglect and was somewhat surprised that that was raised as a concern and noted that the mother and child have a close and loving relationship.  The kindergarten did express some concerns about the mother wanting to baby the child.  Exhibit E was relied on by the father which comes from the (omitted) services and again reports hoarding issues in 2013 and environmental concerns about the mother’s home.  It also went on to note that the child has been monitored by the kindergarten and that they have not raised significant concerns and that the mother has followed through with the child’s paediatrician. 

10. Exhibit F is further notes from (omitted), which notes that the kindergarten was somewhat concerned about the child coming to kindergarten in nappies. It was noted that the staff would take the nappy off the child straightaway and that the child did not have any accidents and the independent children's lawyer expressed some concern about this issue as well and certainly it seems to me that that is something that the mother is going to need to address because if the child starts school and is sent to school in nappies, that is likely to cause her some significant embarrassment, and so that is something that the mother has not addressed;  she is going to need to do so.

11. That same report also noted that the child was participating better this year than last year in kindergarten and this is her second year of kinder.  The father relied on a file note dated 15 September 2015 that rather than supporting his case actually raises some concerns about his actions.  He was contacting the service to try and relocate the services closer to him and there was a note that the child had said during a phone call to the mother several things, including, “Is your house still messy?”, “I’m trying not to cry” and “Will I be home in one day or eight days?”

12. The concerns I have are these: it seems to me that the father acted somewhat opportunistically and took drastic action by withholding this child from the mother’s care rather than bringing proceeds to court and raising his concerns because what it indicates is a lack of appreciation of the bond that this child has with her mother. On that note in particular it is concerning both with respect to trying to switch arrangements so soon but also in terms of the things that the child was saying. Whilst the father says that the child made vast improvement while in his care in various respects and he refers to her regressing since she has been back with the mother, that could also be because this child no doubt would have been incredibly distressed and confused by the sudden change in residential arrangements.

13. (omitted) early intervention transition summary also noted that it has been beneficial for the child to complete her second year at kinder and that she has made large developmental gains.  It also notes that X loves familiarity and responds well when in an environment she feels comfortable in and that she plays alongside other children and is beginning to interact with them.  Now, given that this child has been in the mother’s primary care, some credit needs to be given by the father to the mother for the fact that this child is doing well at kindy and has shown some developmental gains.

14. It also raises another important issue, which is that she is due to commence school next year and the mother has made arrangements for her to attend a kindergarten that is a feeder to a particular primary school and some of the children that she is familiar with will be going to that school.  If the father was successful in his application, then the child would be going to an unfamiliar school in an unfamiliar area and given that there is evidence here that she does well with familiarity that would be of concern.

15. Whilst the father raises legitimate concerns – and certainly it is clear that if the mother did not have support services in place, there would be real concerns about her ability to care for X. The fact is that some of the concerns that the father seeks to rely on are historical. There is certainly evidence from the documents supporting that the mother has been addressing issues and engaging with services, and the father did not take any action himself until he took the unilateral action to withhold X from her mother.  One of the other issues that add to the difficulty for the parties is the distance between the two homes which is a little under three hours.

16. This means that it is not possible to make orders that would provide for the father to have substantial and significant time during the week.  That is really only down to the tyranny of distance.  The father would seek to essentially reverse the current arrangements that are in place.  The Independent Children's Lawyer’s position is that it is too soon to consider such a reversal and it would be necessary to have a family assessment and testing of the evidence because one of the issues will be the impact on X of such a change.

17. The father’s counsel did seek an 11F report but in my view, that would not have assisted on an interim basis because such a report is preliminary and short and I do not think that the family consultant with those kind of limited constraints would have been able to address the issues of concern here. This is particularly given the difficulties that X has with speech and other development issues.  I accept the independent children's lawyer’s submissions in this regard.  I think it would be too radical a change to make and would not be in X’s best interests.

18. There is evidence that X is progressing well and that the mother has been engaging in services and engaging in services before these proceedings were brought.  That is not to say that the father has not had legitimate concerns to raise.  I am not suggesting that he does not.  But I think the actions he took were not the best way of going about it.  It is going to be necessary to investigate the issues further and it is certainly going to be in the mother’s interests to be as cooperative as she can with services and to show that she can engage in those consistently because whether or not a change is made on a final basis is a completely different issue.

19. To the parties’ credit, they have agreed on several orders including orders with respect to school holidays and special days and I am going to make those orders.  I am not going to change the living and spend time with arrangements that are in place currently during school terms. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 7 December 2015