BROWN & ORTEGA
[2012] FMCAfam 1455
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BROWN & ORTEGA | [2012] FMCAfam 1455 |
| FAMILY LAW – Children – parenting – interim orders – variation of earlier consent orders – child aged 8 years – whether child should spend any overnight time with father – best interests of the child – consideration of Court Expert Report. FAMILY LAW – Children – parenting – application of Family Law Act 1975 (Cth) s.65H – parenting order not to be made in relation to a child who is 18 or over – where child under the age of 18 years when proceeding commenced – where child attains the age of 18 during the proceeding – parenting order stops being in force once child turns 18. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CD, 61DA, 61DB, 62G, 68L, 65DAA, 65H, 69ZT |
| Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MR BROWN |
| Respondent: | MS ORTEGA |
| File Number: | SYC 1704 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 December 2012 |
| Date of Last Submission: | 10 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Gillies |
| Solicitors for the Applicant: | Paltos Briggs Family Lawyers |
| Counsel for the Respondent: | In person |
| Solicitors for the Respondent: | No solicitor |
| Independent Children’s Lawyer: | Mr Christaki |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
UNTIL FURTHER ORDER
Order 4 made on 12 August 2011 is discharged.
The child [Z] born [in] 2004 is to spend time with the Applicant Father as follows:
(a)From 10:00am on Saturday 15 December to 5:00pm on Sunday 16 December 2012;
(b)From 10:00 am on Saturday 22 December to 5:00pm on Christmas Eve 24 December 2012;
(c)From 10:00am on Saturday 29 December 2012 until 5:00pm on Tuesday 1 January 2013;
(d)From 10:00am on Saturday 12 January until 5:00pm on Sunday 13 January 2013; and
(e)From immediately after school on Friday 1 February until the commencement of school on Monday 4 February 2013 and each alternate weekend thereafter.
For the purposes of Orders (2)(a) to (d) inclusive changeover is to take place on the overbridge of [H] Railway Station at the commencement and conclusion of each period of time.
For the purposes of Order (2)(e) the father is to collect the child from the child’s school on the Friday afternoon and return the child to the child’s school in time for the commencement of school on the Monday morning.
The parties are restrained by injunction from removing the child [Z] from his present school at [C] School or from enrolling him at any other school.
The Respondent Mother is to file and serve a Notice of Change of Address for Service by 28 December 2012.
THE COURT NOTES that [X] born [in] 1994 has attained the age of eighteen (18) years and the Orders of 12 August 2011 are no longer in force in relation to him as provided by s.65H of the Family Law Act 1975.
IT IS NOTED that publication of this judgment under the pseudonym Brown & Ortega is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1704 of 2011
| MR BROWN |
Applicant
And
| MS ORTEGA |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Father for variation of interim parenting Orders relating to the parties’ youngest child [Z], who is eight years old. [Z] was born [in] 2004. He has three older brothers:
a)[W] born [in] 1992;
b)[X] born [in] 1994; and
c)[Y] born [in] 1997.
There are Consent Orders in place which were made on 12th August 2011. It is these Orders that the Applicant wishes to vary, but only in respect of the youngest child, [Z].
[W] is an adult, aged 20 years. It can also be seen that [X] has now attained the age of 18 years. Accordingly, by the operation of s.65H of the Family Law Act, the parenting Orders made by consent on 12th August 2011 no longer apply to him.
Background
The parenting proceedings between the parties are listed for final hearing commencing on Wednesday 13th March 2013. They are scheduled to run for three days, until Friday 15th March 2013.
The Father was born [in] 1944. He is therefore 68 years of age.
The Mother was born [in] 1958, so she has only recently attained the age of 54 years.
The parties commenced living together in May 1991. They separated, initially under the one roof, on 13th May 2007. The Father vacated the parties’ home in [M] in October.
The Father has formed a new relationship.
The children [X], [Y] and [Z] remain living with the Mother.
The Father commenced proceedings in this Court by filing an Application for parenting orders on 21st March 2011. The Application related to the three boys, [X], [Y] and [Z].
In the Application the Father sought orders that the children should continue to live with the Mother but spend defined time with him on weekends and during school holidays.
The Father’s Application was returnable on 20th June 2011. On that date the parties were directed to attend a Child Dispute Conference with a Family Consultant.
The parties attended the Child Dispute Conference on 12th July 2011 but no agreement was reached. The Family Consultant recommended that the children’s interests be represented by an Independent Children’s Lawyer and that a report be prepared by a Child and Family Psychiatrist.
On 19th July 2011 an order was made under s.68L of the Family Law Act 1975 that the interests of the children should be represented by a lawyer.
On 12th August 2011 interim Orders were made by consent providing that (in summary):
a)The parties would have equal shared parental responsibility for the three children;
b)The children would live with the Mother;
c)[Z] would spend time with the Father from 10:00am to 4:00pm each Saturday commencing 13th August 2011;
d)[X] and [Y] would spend time with and communicate with the Father as they agreed;
e)The Mother was to encourage the children to spend time with their father and communicate with him; and
f)The Mother was to encourage and foster the children’s relationship with their father; and
g)Other ancillary orders.
There were proceedings between the parties in the Supreme Court of New South Wales for adjustment of their property interests. The Court made orders on 7th December 2011 that the parties’ former home at [M] was to be sold and the proceeds divided between the parties.
On 26th March 2012 Dr R was appointed as court expert witness to enquire into and report upon matters relating to the welfare of the children.
Dr R’s Report dated 25th July 2012 was released by the Court on 31st July 2012.
Orders Sought
The Father seeks orders as set out in his Amended Application in a Case filed on 3rd December 2012.
He seeks to discharge Order 4 that was made by consent on 12th August 2011. That Order provides that the child [Z] spends time with the Father from 10:00am to 4:00pm each Saturday commencing 13th August 2011.
The Applicant asks the Court to order that [Z] should commence overnight time with him on weekends and for a period of time at Christmas. He also wants to spend time with the child during the school term from the conclusion of school on Friday until the commencement of school on the Monday, as well as half of each school holiday period.
The Father seeks that changeovers should be at the Mother’s residence on the first weekend, 15th and 16th December 2012, and afterwards at [H] Railway Station when changeovers are not at the conclusion or the commencement of school.
The Father seeks an order that the Mother disclose her current residential address.
The Mother opposes these orders in her Response, particularly any order for overnight time. She does not agree to the Father’s proposals for changeover, whether changeover is to be at school or at [H] Railway Station.
The Mother does not wish to disclose her residential address to the Father.
Submissions and Evidence
The Independent Children’s Lawyer supported the Father’s application for some overnight time with the child but not for half the school holidays. The question of school holiday time with the Father should wait until the final hearing, which is to take place in mid-March.
Mr Christaki submitted that [Z] is now eight years old. In his Report, Dr R stated that [Z] was developing well and was the least affected by the parental discord.
The Mother should also keep the Court and the other parties informed of her address.
The Independent Children’s Lawyer said that the Mother is the primary carer for [Z]. The child likes his father and his father’s partner, Ms E. However, he feels stress and pressure from both parents, especially from his mother.
It was submitted that the Court should follow the recommendations of Dr R in his expert report.
Mr Christaki noted that, despite her move, the Mother had sought to maintain [Z]’s attendance and ties at his current school. He supported the idea of [Z] remaining at that school.
The Independent Children’s Lawyer supported the idea of [Z] spending alternate weekends with his father on an interim basis, from Friday after school to Monday before school. This would minimise the child’s distress at changeover. It is the right time to commence overnight time between [Z] and his father.
The Father relied on:
a)his affidavit of 3rd December 2011;
b)parts of his affidavits of 21st March and 30th November 2011;
c)the affidavit of Ms E of 1st December 2011;
d)the Family Consultant Memorandum of 12th July 2011; and
e)the expert report by Dr R.
Ms Gillies of counsel, who appeared for the Father, told the Court that her client adopted the submissions of the Independent Children’s Lawyer. The Father had spent over 60 daytime occasions with [Z]. There was little hope that there would be any agreement between the parties.
It was noteworthy that the Family Consultant Memorandum to Court of 12th July 2011 stated that the Mother refused to countenance any time for [Z] with his father.
Further, it was submitted that whilst the Independent Children’s Lawyer had submitted that [Z]’s wishes should be given appropriate weight, the child’s wishes should be given little weight.
Ms Gillies noted that the child’s older brothers [X] and [Y] have no relationship with their father.
The Father’s daughter [name omitted] is back in Australia from 21st December until 7th January 2013. The eldest son, [W], is now back living with the Father.
The Father was not seeking to press the claim for half of the school holidays for the Christmas school holiday period and was happy to leave this issue until the final hearing in March.
Ms Gillies also submitted that the changeover point during the school holidays should be at [H] Railway Station.
The Father does not wish the child to change school in 2013.
The Mother relied on her affidavit of 4th December 2012, which is at least as much a submission as it is an affidavit. Nevertheless, s.69ZT of the Family Law Act provides that various provisions of the Evidence Act 1995 do not apply in child-related proceedings, such as this, unless the court decides otherwise. Subsection 69ZT(2) provides that the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act not applying.
The Mother’s affidavit contains a number of passages critical of Dr R’s report. She makes it clear in her affidavit that she opposes any change to the current interim orders:
I would like the interim orders to remain until the Hearing in March when the psychiatrist will be present.[1]
[1] Affidavit of Ms Ortega 4.12.2012 at paragraph [5]
She goes on to state at paragraph [9]:
It was Mr Brown’s choice to relocate to [omitted] thereby putting the needs of his three children as secondary to his new relationship, and he has created his own difficulty in keeping up contact with them due to the distance from where he lives. He maintained to his children and to myself that his then wife-to-be Ms E was agreeable to moving to the coast, however that never happened. Ms E to date has not been willing to share parenting through co-operative communication and I would therefore feel anxious every time [Z] is out of my care for any length of time. He has never slept away, out of my care.[2]
[2] Affidavit of Ms Ortega 4.12.2012 at [9]
Much of the Mother’s affidavit contains matters that are not relevant to the limited scope of this Application for variation of interim parenting orders.
The Mother states in her affidavit the reason why she does not wish to disclose her current address:
I do not wish to have my address given to Mr Brown due to past incidents and confrontation and my knowledge that I was being spied upon; due to Mr Brown knowing that my niece lived with us.[3]
[3] Ibid at [[32]
In her submission to the Court, the Mother said that she opposed everything that had been said by the other parties. She said that [Z] often says to her that he does not wish to go and stay with his father. She does not believe that he is close to his father.
The Mother states that, as a result of the Father’s actions, she and the children had been forced out of their home and [Z] had been forced out of his school.
The Mother further said that she had advised the Independent Children’s Lawyer of her current address (which was confirmed by Mr Christaki). She also said that [Z] was still going to [C] School and would stay there in 2013.
The Mother opposes the child being picked up from school and delivered back to school, because she said that he needs to see her before goes back to school. Instead, she proposes the McDonald’s Restaurant at [G], because she lives a suburb away from [G].
In reply, Ms Gillies referred the Court to the report by Dr R. She submitted that [Z] needed to be protected from the conflict within his family.
The Court Expert Report
The Court Expert Report was prepared by Dr R at the direction of the Court. It is dated 25th July 2012 and was released to the parties on 31st July.
The Report is untested and it is clear that some of the parties will wish to have Dr R give oral evidence at the final hearing in March. Accordingly, the Court will take note of the contents of the report but will remain mindful of its untested status.
Bearing those limitations in mind and taking the Report at face value, it is clear that there are matters in the Report that should cause each parent a great deal of concern. Dr R interviewed both parents as well as the four children of the relationship, [W], [X], [Y] and [Z].
The Report refers to the animosity between the parents, which has affected the children. Dr R discussed possible outcomes in the Report and concluded gloomily:
In short it would appear that there’s no satisfactory outcome. I formed the view that the parents are both equally responsible for the terrible situation that is facing these children. The best outcome would be for at least the four boys to reconnect with each other and to rebuild their relationship and repair old wounds. However this would require both parents putting the needs of the children before their own needs.[4]
[4] Court Expert Report page 26
The Report states that [Z] appears to be developing “surprisingly well” despite the problems between his parents and appears to be the least affected by those problems. He is functioning well at school. He appears to have a “reasonable” relationship with his mother and a “reasonably good” relationship with his father and his father’s new partner. The Report goes on to state:
Whereas [X] and [Y] don’t want to see the father [Z] clearly does want to see the father.[5]
[5] Court Expert Report page 25
Dr R recommended that there should be monthly weekend contact between [Z] and his father to reduce the Father’s travelling and the possible exposure to conflict between the parents. He stated:
It would be better if the contact was a direct pick up from school and return to school from Friday until Monday. Failing the possibility of returning on a Monday because of the logistics it would be better if [Z] were returned through a third party and so there was no direct contact between the parents.[6]
[6] Ibid page 27
The Law to be Applied
Section 60CA of the Family Law Act requires the Court, when deciding whether to make a parenting order, 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 60CC (2) and (3) of the Act.
The matters in subsection 60CC(2) are the primary considerations and concern:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence.
Subsection 60CC(3) contains the additional considerations, which are set out in paragraphs (a) to (m) of the subsection. The additional considerations include such matters as the views of the child, the nature of the child’s relationship with each parent and other persons, the likely effect of any changes in the child’s circumstances and the attitude to the child and to the responsibilities of parenthood demonstrated by each parent.
Subsection 61DA(1) of the Act requires the Court, when making a parenting order, 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. However, the presumption does not apply in cases of abuse or family violence (s.61DA(2)). The presumption may be rebutted if the Court is satisfied that it would not be in the child’s best interests to apply the presumption (s.61DA(4)).
This is an interim hearing. Subsection 61DA(3) provides:
When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the p[resumption to be applied when making that order.
If a parenting order provides, or is to provide, that a child’s parents are to have equal shared parental responsibility, the Court is required by subsection 65DAA(1) to consider whether the child spending equal time with each parent is both in the child’s best interests and reasonably practicable. If the Court does not make an order for the child to spend equal time with both parents, the Court is required by subsection 65DAA(2) to consider substantial and significant time with each parent.
All of the above matters have been considered, where relevant.
Conclusions
This is an interim hearing, and the limitations placed on the Court are well-known. As was stated by the Full Court of the Family Court in Goode v Goode[7]:
…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.[8]
[7] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
[8] (2006) 36 Fam LR 422 at 442 [68]
This particular Application concerns the parties’ youngest child, [Z], and it is likely that the final hearing in March will concentrate mainly, if not entirely, on his situation. Whilst the original Application filed by the father on 21st March 2011 also related to [X] and [Y], the Court no longer has any power to make any parenting order in relation to [X] because he has turned 18.
It is clear that [Y] does not wish to spend any time with his father, as reported by Dr R. It is unlikely that any amount of litigation is going to change that situation in the near future. As Dr R states in his Report:
It would also be better if [Y] and [X] were part of the contact with the father however there would need to be significant repair in the relationship between Mr Brown and the two boys.[9]
[9] Court Expert Report page 27
The best interests of the child [Z] are the paramount consideration. The Court Expert Report makes it clear that there is a benefit to the child in having a meaningful relationship with both parents.
This is not a matter where the Court needs to make any specific orders designed to protect the child from harm caused by abuse, neglect or family violence.
One of the additional considerations in subsection 60CC(3) is set out in paragraph (a) to that subsection, being the views of the child and the weight to be given to those views. The Court may inform itself of views expressed by a child in the ways set out by s.60CD(2) of the Act:
a)by having regard to anything contained in a report given to the Court under subsection 62G(2); or
b)by making an order under section 68L for the child’s interests in the proceedings to be independently represented by a lawyer; or
c)subject to the applicable Rules of Court, by such other means as the court thinks appropriate.
Here, the Court has the benefit of a Report by a Child and Family Psychiatrist and the submissions of the Independent Children’s Lawyer.
The evidence is that [Z] likes seeing his father. [Z] is a boy who was born [in] 2004, so he is eight years and one month old. He is of sufficient maturity and level of understanding that his views should be given some weight.
The evidence of [Z]’s relationship with his father is contained in the Court Expert Report. [Z] has a positive relationship with his father and with the Father’s partner, Ms E.
Dr R described [Z] as having a reasonable relationship with his mother. [Z] did not wish to move from his mother’s care. [Z] also appears to have a positive relationship with his elder brother [Y].
The Family Report contains serious criticisms of the parenting skills and attitudes of the parents, which are more the subject of examination at the final hearing in March.
There is an Apprehended Violence Order in force against the Mother naming the Father’s partner Ms E as the protected person.
This appears to be the time when consideration should be given for [Z] to start spending overnight time with his father. He is certainly of an age where he should be able to deal with spending nights away from his mother and [Y]. [X] no longer lives at the Mother’s home. [W] lives with the Father, and Dr R described [W] as wanting to “reconnect with his brothers and in particular [Z]”.[10] Spending time over a weekend with his father would give [Z] the chance to develop his relationship with [W].
[10] Court Expert Report page 24
Dr R strongly recommends that [Z]’s weekend time with his father should commence at the conclusion of school and conclude at the beginning of school, to avoid possible conflict at changeover. This is supported by the Independent Children’s Lawyer. The Mother claims that [Z] needs to see her before he goes back to school, but there does not appear to be any good reason for this.
Whilst Dr R suggests that a third person could be involved in [Z]’s return to the Mother to avoid direct contact between the parents, there is no apparent third party who could do this. The Father’s partner Ms E has an Apprehended Violence Order in force against the Mother. The two adult brothers, [W], would not be suitable. The Mother’s relationship with [W] has broken down and Dr R believes that her relationship with [X] is breaking down. [X] does not want to see his father.
The Mother complains that it was the Father’s decision to move away from the Central Coast, so he should continue to do the travelling to spend time with [Z]. It may well be argued, however, that the animosity between the parties is such that is probably desirable that they live a fair distance apart from each other. A changeover at [H] Railway Station when [Z] is not to be picked up from school or delivered to school does not appear to be unreasonable, as it means that the parents can share the travelling.
It is in [Z]’s interests that he should continue to attend [C] School in 2013. He appears to be doing well there and a change is unlikely to be in his best interests.
The Mother does not wish to disclose her current address to the Father, because of her complaints about his past behaviour. She has provided her current address to the Independent Children’s Lawyer, but it appears that he is not at liberty to disclose it.
The fact remains that the Mother has, as recently as 4th December, filed an affidavit giving her address as the parties’ former home at [M]. She no longer lives there. She says that she has a redirection notice at the Post Office. That may be the case but it is not appropriate for her to give a false address as an address for service. If she were legally represented, she would be able to use her solicitor’s address as an address for service.
The Mother will need to file and serve a Notice of Address for Service.
The Court is required to consider the presumption of equal shared parental responsibility, even when neither party specifically seeks an order. In this case, the Court is dealing with an application to vary interim orders in the light of a final hearing to take place in three months’ time. Any order allocating parental responsibility on an interim basis must be disregarded when the Court is making final orders, by the operation of s.61DB of the Act.
There is no issue about the animosity between the parents in this case. In my view, subsection 61DA(3) should apply. It is not appropriate in the circumstances for the presumption of equal shared parental responsibility to be applied when making the interim orders to be made.
The final hearing is to take place in March 2013. The Court will regard the best interests of [Y] and [Z] as the paramount consideration when deciding what final orders should be made.
I certify that the preceding eight-seven (87) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 14 January 2013