Bingham and Montgomery

[2014] FCCA 1197

FEDERAL CIRCUIT COURT OF AUSTRALIA

BINGHAM & MONTGOMERY [2014] FCCA 1197

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – parental responsibility – best interests of the child – whether there is an intractable conflict between the child’s parents – sole parental responsibility – child dispute conference – appointment of Independent Children’s Lawyer.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA, 68L

Cases cited:
Re K (1994) 17 Fam LR 537; FLC 92-461
Rice & Asplund (1979) FLC 90-725

Applicant: MR BINGHAM

Respondent: MS MONTGOMERY

File Number: CRC 64 of 2014

Judgment of: Judge Scarlett

Hearing date: 23 May 2014

Date of Last Submission: 23 May 2014

Delivered at: Sydney

Delivered on: 29 May 2014

REPRESENTATION

Solicitor for the Applicant: Mrs Tanner

Solicitors for the Applicant: Coffs Coast Family Law

Solicitor for the Respondent: Mr Wynn

Solicitors for the Respondent: Wynn Lawyers

ORDERS

UNTIL FURTHER ORDER

1. All earlier parenting Orders are suspended.

2. The Respondent Mother is to have sole parental responsibility for the child X born (omitted) 2004.

3. The child X is to live with the Respondent Mother.

4. In accordance with the provisions of section 11F of the Family Law Act 1975 the Father and Mother are directed to attend a Child Dispute Conference with a Family Consultant at a time and date to be arranged and as provided by section 11C of the Family Law Act the Conference is to be reportable.

5. In accordance with the provisions of section 68L of the Family Law Act the interests of the child X born (omitted) 2004 are to be independently represented by a lawyer and for this purpose Legal Aid New South Wales at Coffs Harbour is requested to arrange this representation.

6. Within fourteen (14) days of the date of this Order the parties are to forward to the Coffs Harbour Legal Aid Office for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits and other relevant documents.

7. The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas without charge or further leave of the Court.

8. The Application is adjourned to Tuesday 30 September 2014 for mention at 11:30 am before Judge Kemp.  

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT COFFS HARBOUR

CRC 64 of 2014

MR BINGHAM

Applicant

And

MS MONTGOMERY

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for parenting orders by the Father of a girl called X, who is nearly 10 years old.  She was born on (omitted) 2004, and has lived with her mother all of her life. 

2. The Father seeks parenting orders not that the child would live with him, but that the parties should have equal shared parental responsibility for X, that X would continue to live with her mother, that X would spend weekend during the school term with her father, being the third and the seventh weekend, and the first of school holidays, and on various other special occasions.

3. The Mother, by her response, does not agree with the orders sought by the Father.  She seeks an order for sole parental responsibility.  She seeks an order that the child should live with her.  She goes on to seek a costs application which is not relevant to today’s proceedings, at least at this stage, and an order which should be on a final basis relating to change of the child’s surname so that the child’s surname should be Bingham-Montgomery, incorporating the surnames of both parties.  The question of a change of name is, of course, a matter for a final hearing, by definition.

4. The circumstances of the background, insofar as they are relevant, are that the parties commenced living together in October 2001.  They were married in (omitted) 2002.  X was born on (omitted) 2004, but approximately six weeks later, on 31^st August, the parties separated.  There were proceedings in the Local Court of New South Wales, at Tamworth, in October 2005.  The Court made orders by consent, in accordance with terms of settlement, which largely dealt with the disposition of property between the parties, but did provide that the child, X, referred to in the orders as, in the terms of settlement, as X, should reside with the Respondent.

5. What has happened since then is that the parties were divorced on 15^th November 2005, and for some period of time the child did not spend time with the Father at all.  There were, of course, no contact or spend time orders in force, but it appears that from 2008 there was some communication between the parties, and in 2009 the Father commenced what has been described as “sporadic and intermittent” time with the child.  This continued on what appears to me a sporadic and intermittent basis until late last year, when there was an incident where the Mother says that the Father removed the child from the school, towards the end of the year, but not at the end of the term and, on the Mother’s evidence, did so without her express agreement, by taking her away, in fact, prior to the end of term, and retaining her in his care for a period of time, against the Mother’s wishes. 

6. The Father’s account, however, differs greatly.  The Father’s affidavit in support is relatively succinct. 

7. The Mother has filed a lengthy affidavit, an affidavit which in my view is prolix, and contains more information than the Court would reasonably consider to be relevant in the circumstances.

8. However, it is clear, from the affidavit material and from the submissions of the parties’ solicitors, that the parties are a long way apart.  Indeed, the Mother claims that this child has a poor relationship with the Father.  She makes allegations of physical and emotional abuse, and claims this child has suffered psychological harm, and she annexes to her affidavit a copy of a letter from the child, addressed to the Father, which begins politely enough with “Dear dad” but goes downhill from there, containing the allegations in block capitals with exclamation marks:

   YOU STOLE ME FROM SCHOOL!

9. And goes on to say:

   OKAY I JUST DO NOT WANT TO SEE YOU AGAIN!

10. I offered the opinion, at the hearing on Friday, which was not dissented to, at least by the Mother’s solicitor Mr Wynn, that there appeared to be an intractable conflict between the parents.  On having considered the material over the last few days, and considered the submissions, I am more than ever of the view that this is a high conflict situation marked by a correspondingly low degree of communication between the parents.  It is indeed a matter that would cause the Court a considerable degree of concern.

11. The words “intractable conflict” are used in the decision of the Full Court of the Family Court of Australia in the well known decision of Re K[1], which is a decision that dates from 1994, and sets out a number of circumstances where a Court would consider the interests of a child should be separately represented, in the terminology of those days, or independently represented in the terminology as applies under section 68L of the Family Law Act. It appears to me this matter well and truly meets the criteria set out by the Full Court of the Family Court in Re K.

    [1] (1994) 17 Fam LR 537; FLC 92-461

12. It would seem to me to be in this child’s best interests if her interests were to be independently represented by a lawyer.  I intend to make that order.  It also would appear to me that, noting the fact that the parties are at more than arm’s length in a high conflict situation, indeed the parties between the parties and their views is greater than their geographical separation, which is of some 300 kilometres, that the appointment of an Independent Children’s Lawyer may not only be of benefit to X, but also of some assistance to the parties and their legal advisors themselves in attempting to ascertain what is in the best interests of this child.

13. I think I made it clear to the parties on the morning of the hearing that the best interests of the child would be the paramount consideration. This is set out in section 60CA of the Family Law Act, and section 60CC, at paragraphs (2) and (3), sets out the primary and the additional considerations which assist the Court in determining what is in a child’s best interests. The primary considerations, of course, include balancing the benefit to the child of having a meaningful relationship with both her parents, on the one hand, and protecting the child from physical or psychological harm caused by being subjected to, or exposed to, abuse, neglect or family violence.

14. There is certainly an allegation of psychological harm, although I am not of a view that there is evidence before the Court that would support my making such a finding.

15. The Court must also consider the requirements of section 61DA of the Family Law Act, including the presumption set out in subsection (1) that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. That presumption does not apply in cases of abuse, neglect or family violence, and may be rebutted by evidence which would satisfy the Court that such an order would not be in the child’s best interests.

16. Subsection (3) of course provides that in an interim hearing the Court would make an order for equal shared parental responsibility, unless the Court were of the view that that would not be appropriate. If the Court makes an order for equal shared parental responsibility, the Court is required by section 65DAA to consider first of all whether it is in the child’s best interests and reasonably practicable for the child to spend equal time with each parent. If the Court is not of the view that both of those criteria have been met, the Court is required by subsection (3) of section 65DAA to consider whether it is in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.

17. I would have to say at this stage that the geographical distance between the parties, let alone the emotional and communication distance between them, would render equal time, I should say, or even substantial and significant time, not reasonably practicable in the circumstances. 

18. Mrs Tanner, who appears for the Father, has submitted that what the Father is seeking at this stage is somewhat less than substantial and significant time.  And it appears to me, from looking at the orders sought, that her characterisation of her client’s case is an accurate description of the circumstances. 

19. The Court has had the benefit of a case outline document prepared by the Mother’s solicitors in a memorandum of submissions.  Mr Wynn refers the Court to the well known decision of Rice & Asplund[2], which is a decision that dates from 1979.  It is, however, a decision which is still in force and it deals with the need for a court not to entertain lightly an application to reverse an earlier custody order. 

    [2] (1979) FLC 90-725

20. I am not of the view that what the Father is proposing is, in fact, a reversal of an earlier custody order.  There certainly was an order made by the Local Court of New South Wales at Tamworth by consent some nine years ago that the child would live with her mother.  The Father does not propose to vary that situation.  What is the current situation is that there is this standalone live with order from the local court and there are no other parenting orders in force. 

21. It is certainly put by the Respondent Mother that the Father specifically did not seek any other parenting orders in 2005, although it has been the case, as I set out earlier, than from 2009, certainly until the end of this year or, in fact, early this year, that the Father had been seeing the child sporadically and intermittently maybe, but with the consent and, indeed, in some circumstances, the encouragement of the Mother. 

22. That arrangement, though, has certainly broken down, which indeed has no doubt precipitated the Father’s application.  I am of the view that the fact that the Father did not, in 2005, seek any specific parenting orders by way of contact orders or spend time with orders, to use the current terminology, does not act as any form of a bar or an estoppel against his seeking such orders at this stage. 

23. Indeed, it is the policy of the Act, certainly as set out in subsection 60CC(2) at paragraph (a), for the Court to consider the benefit to the child of a meaningful relationship with each parent.  And if it is the case, as the Father deposes in his affidavit, that that is what he seeks, it may well be said to be better late than never.  It would be an unfortunate situation if the Court were to take the view that because of a decision made by the Father in 2005, that this child would not have any contact at all with him for the next eight years, until she reached the age of 18.

24. That said, the degree of conflict between the parties and the wide divergence in the evidence about the arrangements to date and the views of the child lead me to the view that not only should the Court order that her interests be independently represented by a lawyer, which is, amongst other things, one way for the court to ascertain the views of the child, which is a matter in subsection 60CC(3), but it also leads me strongly to the view that it would be beneficial, not only to the child but to the child’s parents, for the parties to attend a child dispute conference with a family consultant. 

25. That can be done under the provisions of section 11F of the Family Law Act. And I would like that to be reportable under section 11C. I am not disposed at this stage to order such conference to be child inclusive, but I am of the view that the parties should attend a child dispute conference with a family consultant.

26. Where then does that leave us.  I do not propose to shy away from the question of parental responsibility.  The poor degree of communication between the parents and the high degree of conflict between them, let alone the geographical distance between them, makes it, in my view, inappropriate and not at all in this child’s best interests for the parties to have equal shared parental responsibility.

27. I propose to order until further order that the Mother should have sole parental responsibility for the child. Now, the fact that the Court makes an interim order in that respect does not preclude the court, on a final basis, from making a different order. Indeed, section 61DB of the Family Law Act makes it mandatory for the Court to consider the situation afresh, because when making a final parenting order the Court should not have regard to the allocation of parental responsibility made in an interim order.

28. It does seem to me that there is little benefit in the residence order of the child, which was made by the local court at Tamworth, to remain as an order of the Tamworth Local Court.  Certainly, it can be argued that by annexing the orders of the Local Court to the Mother’s affidavit, the Mother has registered the orders in this Court.  I am of a view that for clarity I should suspend, at least on an interim basis, the interim order of that court relating to the child’s residence and make an order of this court that she resides with the mother. 

29. What then should the Court do about the parenting orders that the Father seeks?  In my view, it is premature to make those orders, noting the wide gulf between the case of the Father and the case of the Mother.

30. In my view, it would not be appropriate or in this child’s best interests to make any specific order for the Father to spend time with the child, until after the parties have attended a child dispute conference with a family consultant and after the appointment of an Independent Children’s Lawyer, who can then provide the Court and the parties and their lawyers with valuable assistance as to what is in this child’s best interests.  I end, as I began, by emphasising that the best interests of the child remain the paramount consideration.  And therefore I propose to make the following orders until further order:

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 29 May 2014