C and B
[2007] FMCAfam 855
•18 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & B | [2007] FMCAfam 855 |
| FAMILY LAW – Interim parenting order. |
| Family Law Act 1975 (Cth), Pt.VII ss.60B, 60CA, 60CC(2), 60CC(3), 60CC(4), 60CC(4A), 61DA, 64B,65DAA(5) |
| Goode & Goode [2006] FamCA 1344 |
| Applicant: | DBC |
| Respondent: | NB |
| File Number: | ADC 1704 of 2007 |
| Judgment of: | Simpson FM |
| Hearing date: | 20 September 2007 (Heard in Broken Hill) |
| Date of Last Submission: | 20 September 2007 |
| Delivered at: | Adelaide |
| Delivered on: | 18 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Horvart |
| Solicitors for the Applicant: | Angela Ferdinandy |
| Counsel for the Respondent: | Ms Stahlut |
| Solicitors for the Respondent: | Austen Brown Boog Solicitors |
| Counsel for the Maternal Grandmother: | Ms Litchfield |
| Solicitors for the Maternal Grandmother: | Susan Litchfield |
ORDERS
That the father do return the child ELC, born 2 May 2005, to the mother by delivery of E to the mother at 12 noon on Saturday 20 October 2007 at the Broken Hill Police Station.
That subject to paragraphs 3 and 4 of these orders, E shall live with each of her parents as follows:
(a)With the father from 12 noon on Saturday 3 November 2007 until 12 noon on Sunday 4 November 2007 and then on alternate weekends thereafter between the same times;
(b)With the mother at all other times.
That E shall live with each of the parties for such times over the 2007 Christmas period as the parties agree and if the parties fail to agree by further order of the Court.
That subject to paragraph 3 of these orders, if the father makes Broken Hill his place of residence, and during such time as the father remains resident in Broken Hill, E shall live with the mother and the father on a week about basis from 12 noon each Saturday.
That all handovers shall take place at the Broken Hill Police Station or such other place as the parties shall agree.
That E shall not be removed from Broken Hill without the prior written agreement of both parties.
Liberty to apply on short notice is given to the maternal grandmother to renew her application seeking an order that the maternal grandparents spend time with E.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BROKEN HILL |
ADC 1704 of 2007
| DBC |
Applicant
And
| NB |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for interim parenting orders brought by DBC, the father of a child, ELC, born 2 May 2005. The father’s application filed on 29 March 2007 simply seeks such orders as the Court deems fit. His affidavits and submissions put by his Counsel were to the effect that E should remain living with him at Warren, New South Wales and that the applications on behalf of the mother and maternal grandmother, who both live in Broken Hill, should be refused. The father says that the current arrangement for E should remain until the trial of the action for final orders.
The mother filed a response on 8 May 2007 at which time the father was living in Broken Hill. The mother sought interim orders that the father be restrained from leaving Broken Hill with E and residing elsewhere, that the father allow E and the mother to communicate with each other at reasonable times and that the father and his current partner undergo random supervised drug testing.
On 22 May 2007 the father moved his residence from Broken Hill to Warren, some 650 kilometres east of Broken Hill, taking E and his current partner, DG, with him. He removed E without discussing the matter with the mother, the maternal grandparents or the maternal great-grandparents all of whom live in Broken Hill.
As a result of the father’s move the mother filed an amended response on 25 May 2007 seeking recovery orders including that the father return E immediately to the mother.
On 18 June 2007 an application was filed in the action by RB, the maternal grandmother of E. She sought orders allowing her and the maternal grandfather to spend time with E as agreed with the mother and father or as ordered by the Court.
The question to be determined therefore is whether E should remain with the father at Warren until the trial of the action with appropriate orders being made to allow the mother and grandparents to spend time with E or whether an order should be made that results in E returning to Broken Hill with appropriate orders being made as to who the child is to live with and what other orders should be made to allow others to spend time with the child.
For the reasons that follow I have come to the conclusion that, so long as the father does not live in Broken Hill, it is in the E’s best interests that she live solely with the mother. Orders should therefore be made for:
·The immediate return of E to the mother;
·The father to spend time with E in Broken Hill at times suitable to the parties;
The law
Parenting orders are defined by s.64B of the Family Law Act 1975 (Cth) (‘the Act’) which section also specifies the matters that a parenting order may deal with.
The principles governing the Court’s determination of this matter are set out in pt.VII of the Act. I note the objects of this part and the principles underlying them contained in s.60B.
In deciding whether to make particular parenting orders s.60CA requires that I must have regard to the best interests of the child as my paramount consideration.
In determining what is in the child’s best interest I must consider the matter set out in s.60CC(2) (that is the primary considerations) and the matters in s.60CC(3) (the additional considerations).
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm or being subject to or exposed to abuse, neglect or family violence.
The additional considerations are set out in s.60CC(3).
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in his or her parental responsibilities (ss.60CC (4) and 60CC(4A).
In the Full Court decision of Goode & Goode [2006] FamCA 1344 the Court considered how courts should now approach the determination of parenting applications. The Court there directed that in determining such matters, including on an interim basis, the Court should first identify the competing proposals of the parties, the issues in dispute, and any agreed issues, it should then:
a)consider the s.60CC matters relevant (ie the primary and additional considerations) and, if possible make any relevant findings of fact;
b)decide whether the presumption of equal shared parental responsibility to be found in s.61DA must be rebutted because;
i)there are reasonable grounds to believe child abuse or family violence has occurred (subs.61DA(2));
or
ii)in interim proceedings only, where the Court considers that it would not be appropriate in the circumstances to apply the presumption (subs.61DA(4));
c)if the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the children spend substantial and significant time with each parent, unless it is contrary to the children’s best interests as a result of the consideration of any relevant s.60CC matter or is impracticable in the terms of s.65DAA(5);
d)if neither equal time or substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child, when considering applicable matters in s.60CC;
e)if the presumption is rebutted or found not to apply then make the orders considered to be in the best interests of the child, again as a result of applying the relevant s.60CC matters;
f)even in this latter situation, it is open to the Court to make an order for equal time or substantial and significant time, if the Court considers it to be in the best interests of the child concerned.
The affidavit evidence
The mother and father first met either in 2002 (according to the father) or 2003 (according to the mother). The mother says that even before the birth of E the father was violent towards her. Her affidavit filed on 8 May 2007 exhibits four applications for apprehended violence orders against the father as a result of his conduct towards her in August, October and November 2006 and January 2007 respectively. She also exhibited two applications for apprehended violence orders sought by the father against her as a result of her alleged conduct in October and November 2006.
In his affidavits filed on 29 March 2007 and 19 September 2007 the father deposes to the mother taking drugs namely ice, marijuana and speed. He says that it was as a result of the Department of Children’s Services becoming aware of the mother’s drug taking that they contacted him on 12 March 2007 and indicated that E had been taken from the mother’s care due to her drug abuse. He says that he indicated to the Department that he wished E to come to live with him. He says that the Department told him that he was a suitable father and could offer a stable environment for E and that they would be happy if E came into his care. I note from the file that there was a return on a subpoena addressed to the New South Wales Department of Community Services seeking copies of records regarding the mother, the father and E but that no evidence has been put before me from that material that supports the father’s statement that the Department held the view suggested.
In her affidavits filed on 8 May, 25 May, 4 June and 4 September 2007 (there was a further affidavit filed on 16 May 2007 but this document is a duplicate of the affidavit filed on 8 May 2007) the mother admits that she had a problem with drugs in the past but says that she had been making efforts to deal with that problem. She had been attending drug and alcohol counselling through Life Line for nearly two months prior to 8 May 2007.
The mother has annexed to her affidavit of 25 May 2007 a toxicology report from Gribbles Pathology providing the results of a specimen from the mother collected on 5 April 2007. The report indicated that cannabis was detected but that ‘ice’ and ‘speed’ were not detected.
The mother’s affidavit of 4 September 2007 exhibited a letter dated 12 June 2007 from Peter Crossing, her counsellor at Life Line. Mr Crossing says that the mother came to see him on 16 April 2007 after which they had three face to face consultations and six discussions over the phone. He says that on none of these occasions did the mother display signs of intoxication or withdrawal symptoms of drug use. He says that the mother has impressed him with her determination and genuine desire to free herself from her past history of drug use which she has told him has been motivated by a very strong and genuine desire to be a better mother to E.
The maternal grandmother has filed two affidavits: 16 June and 10 September 2007. In her affidavit of 16 June she says that since March 2007 the mother has lived with the maternal great-grandparents at Broken Hill. She says that the mother has “made huge steps forward with the aid of Mr Peter Crossing” and that she and her husband “are very proud of the turn around in the mother’s life”. She says further that the mother has been seeing her general practitioner on a regular basis and has regular drug tests showing that she has been clean of drugs for a long period of time. The mother’s general health has, she says, “improved greatly and she has returned to a proper weight, her complexion has returned, her self esteem has improved and we are very pleased with the improvement in her health”. In her affidavit of 10 September 2007 the maternal grandmother says that she and her husband “fully support the mother in her wish … for the child to live with her”.
An affidavit from the maternal great-grandmother sworn on 1 May 2007 and filed on 8 May 2007 indicates that the maternal great-grandparents are also highly supportive of the mother. She says that the mother has lived with them since 1 April 2007 and will continue to do so. She confirms what the maternal grandmother has said in her affidavit about the improvement seen in the mother’s health and appearance and deposes to the efforts that the mother has made to overcome her drug problem. She deposes to her and her husband’s close bond with E and the happy times that E spent with them. She says that E had her own room with toys and this would still be available to her if she returns to Broken Hill. She concludes with the following passage:
In short, we believe that E is not going to (be) put to an unacceptable risk, if she spends a lot of time with Naomi, her mother. Naomi is a normal, happy girl who is NOT a drug addict. She has already shown great determination to change her life for the better. She has not tried to hide from her past and I am so proud of her for the way she has confronted it. It has not been easy, but I feel that I am getting my granddaughter back. It would be very sad for E if her mother’s past was to be used to prevent her from knowing the love and support of her mother and her mother’s family.
The mother says in her affidavit of 8 May 2007 that the father also has a history of drug abuse but the difference between her position and the father’s is that the father does not acknowledge his drug problem or taken any steps to receive proper treatment.
The affidavits show that prior to the Department of Children’s Services becoming involved on 12 March 2007 the maternal grandparents had been looking after E since 8 March 2007. On 13 March 2007 a meeting took place between representatives of the Department of Community Services (Turner, Simpson and Johnston), the maternal grandparents (S and RB), the father and his partner DG. There was an apparent agreement reached that the father would take E and would return her to the grandparents later in the day. The father did not do so. E has remained living with the father to the present time.
On 29 March 2007 the father commenced these proceedings. In his affidavit in support of E living with him (he was then living and had full time work in Broken Hill) he deposed to the fact that his partner Ms Garner had a number of nieces and nephews who lived in Broken Hill, that he had suitable accommodation in Broken Hill to accommodate E in her own room and that she would have contact with the maternal grandparents. The father objected, however, to the maternal grandparents taking E to Adelaide on a trip on 15 March 2007.
On 20 April 2007 a meeting was held between the mother, the father and a mediator at the Family Relationship Centre in Broken Hill. The matter did not resolve.
On 8 May 2007 the mother filed an affidavit in which she deposed to the fact that she was concerned about the father moving from Broken Hill to Cobar to live. Less than a month after that affidavit was sworn, filed and served, the father had moved from Broken Hill to Warren taking E with him and, as previously stated, without any prior discussion with the mother, grandparents or great-grandparents.
In his affidavit filed on 19 September 2007 the father provides no explanation for his move to Warren or why he failed to discuss the matter with the mother, grandparents or great-grandparents prior to the move. The father clearly should have realised that his move to Warren would cause enormous difficulties for the mother, grandparents and great-grandparents to maintain a suitable relationship with E and that this may not be in E’s best interests. That the move might not be in E’s best interest is particularly so as she was then only two years old and had had up until that time close bonds with the mother, grandparents and great-grandparents. It is a matter that the father should have discussed fully with those parties before deciding whether or not to take the step that he did.
When the matter came before Federal Magistrate Mead on 14 June 2007 there was no argument presented on behalf of the parties about what interim orders should be made. Instead an order by consent was made that E continue to live with the father in Warren, New South Wales and that the mother spend time with E as might be agreed. It was further ordered by consent that E spend time with the mother from 10:00 am on Friday 15 June 2007 to 9:00 am on Monday 18 June 2007, upon it being noted that the mother was then living with the maternal grandparents. (On the evidence I believe that the mother was then living with the maternal great-grandparents but nothing significant arises from this).
On 13 August 2007, following on from the parties attending a Legal Aid Conference, a further order was made by Federal Magistrate Mead, again by consent. It was ordered that the orders of 14 June 2007 continue, that the mother have telephone contact with E, that the mother spend time with E from 12 noon on Friday 31 August 2007 to 12 noon on Monday 3 September 2007 and that handover would take place at the Emmdale Roadhouse unless it was agreed between the parties that the father transport E to Broken Hill. I understand the Emmdale Roadhouse to be approximately halfway between Broken Hill and Warren and is therefore about 300 kilometres from Broken Hill.
The maternal grandmother says in her affidavit that she and the mother travelled to the Emmdale Roadhouse on 31 August 2007 to collect E at 12 noon. When the mother arrived the father was not there nor did he telephone the mother to say that he was not coming. The mother waited for four hours after which she and the grandmother attempted to contact the father both directly and through the father’s solicitor but without success. At about 6:00 pm the mother and grandmother were able to make contact with the father’s partner, Ms Garner, who the grandmother said was “agitated and abusive towards me and complained that she was looking after E all the time and got no thanks for it.” The mother and the grandmother returned to Broken Hill without having seen E.
In his affidavit of 19 September 2007 the father says in explanation for failing to comply with the order that he, Ms Garner and E were at a training session at Parkes (some 150 kilometres south of Warren) and therefore he did not obtain a copy of the orders of 13 August 2007 in time and as a result failed to present E to the mother on 31 August 2007. That explanation is unsatisfactory as he does not say that he did not know that an order had been made that E was to spend time with the mother for three days from noon on 31 August 2007. The fact that the orders were made by consent indicates that he did know the terms of that order. If the father knew that an order had been made for the mother to spend time with E during the three days from noon on 31 August 2007 and that hand over would occur at the Emmdale Roadhouse, he should have complied with the order notwithstanding that he had not received sealed a copy of the orders.
The Section 60CC factors
I take into account the matters referred to in subpara. 60CC(2). The benefits to E of having a meaningful relationship with both of her parents is difficult to achieve when the parents live so far apart. I note that this difficulty has been caused solely by the father’s conduct and could have been avoided at any later stage by the father moving back to Broken Hill with E.
I also take into account the need to protect E from physical and or psychological harm, from being subjected to, or exposed to abuse, neglect or family violence. Both parents allege that the other has been guilty of family violence. The maternal grandmother also deposes to violence by the father against the wife. It is not possible for me to make findings of fact in relation to these issues until the trial of the action. I do however take into account the fact that these allegations of family violence have been made.
The additional considerations that the Court is required to take into account are set out in subs.60CC(3). Firstly, in subpara.(a) I have to take into account any views of E. The views of E carry little weight in this case as she is so young.
Next, in subpara.(b) I must consider the nature of the relationship of the child with each of the child’s parents and any other persons including any grandparents or other relatives of the child. I take into account the fact that E has had a relationship with each of the parents and also the maternal grandparents and great-grandparents. The relationship between E and the grandparents and great-grandparents are particularly important in a situation where each of the parents allege that the other is guilty of violent behaviour and drug abuse. Until the validity of the allegations can be tested by cross-examination the risk to E is best minimised by having E where the grandparents and great-grandparents can have regular contact with E and to observe the conditions in which she is living.
The next factor in sub.para.(c) is 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. The father has demonstrated an unwillingness or inability to facilitate and encourage a close and continuing relationship between E on the one hand and the mother, grandparents and great-grandparents on the other. I point to the evidence of his move to Warren without discussing the matter with these other interested relatives and his failure to comply with the order to allow the mother to spend time on and from 31 August 2007. I consider this a significant factor in deciding what appropriate order should be made.
Sub-paragraph (d) requires me to consider the likely effect of any changes in the child’s circumstances including any change that might result in separation from parents, siblings, grandparents and the like. Whilst it is in E’s best interests for her to continue to have contact with her father, Ms Garner and their child, I also take into account the fact that, were E living in Broken Hill, she would be able to re‑establish or strengthen her relationships with her mother, grandparents and great-grandparents as well as Ms Garner’s extended family.
Sub-paragraph (e) requires that I consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents of regular basis. The father is in full time paid employment and is able to drive. I assume that he works a five day week. I recognise that the father will have a practical difficulty in spending a lot of time with E if she resides in Broken Hill. On the other hand, the mother is not in full time employment, has limited financial means and is unable to drive. She does not have a car nor can she borrow a car. The practical difficulty and expense to the mother in travelling to Warren, if that is where E is to remain, far outweighs any practical difficulty and expense that the father might have in travelling to Broken Hill.
Sub-paragraph (f) requires that I consider the capacity of each of the child’s parents and any other person including any grandparent or other relative of the child to provide for the needs of the child including the child’s emotional and intellectual needs. On the basis of the affidavit evidence that is before me it is difficult to make any findings of fact about the capacity of E’s parents to provide for her needs. I do however again note that the father is in full time paid employment and that as a result for a substantial portion of each week E is in the care of the father’s partner Ms Garner. The mother’s circumstances means that she is available for the full-time care of E.
I am satisfied that sub-paras.(g) and (h) are of no particular relevance to issues in the current application.
Sub-paragraph (i) requires that I consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents. It is inappropriate on the basis of affidavit evidence for me to make any findings of fact about the attitude to the child demonstrated by each of the child’s parents as credit is an issue. As to the responsibility of parenthood demonstrated by each of E’s parents the mother’s admitted conduct of drug abuse is a significant factor against a positive finding in this regard. Having said that, the fact that she has apparently worked hard to overcome her drug difficulties as a result of her wish to look after E demonstrates a potential to become a responsible parent. I am also mindful of the fact that the father’s conduct in removing E from Broken Hill and thereby her contact and relationship with her mother, grandparents and great-grandparents and his failure to comply with the order of 13 August 2007 that the mother spend time with E on and from 31 August 2007 indicates a lack of perception by the father of an important parental responsibility, namely the importance of both parents being involved in the life of their child.
Sub-paragraph (j) requires that I consider any family violence involving the child or a member of the child’s family. As previously mentioned, the mother’s, father’s and grandmother’s affidavits all contain allegations of violence. Proper findings of fact cannot be made in relation to these allegations without the benefit of cross-examination. I am satisfied however, that E’s parents presently have little contact with each other and that this will continue to be the case as a result of my orders, and that therefore the risk of violence is and will be slight.
Sub-paragraph (k) requires that I consider any family violence orders that apply to the child or a member of the child’s family if the order is a final order or the making of the order was contested. Annexed to the mother’s affidavit of 27 April 2007 and filed on 8 May 2007 are two witness statements of the mother used in support of an Apprehended Violence Order (‘AVO’) together with the interim and final AVO. Also annexed is a copy of the father’s AVO complaint against the mother which she says was resolved by way of undertakings and the complaint withdrawn. In the grandmother’s affidavit of 14 June 2007 filed on 18 June 2007 she deposes to a charge of assault brought against the father for an assault of the mother and another in or about August 2006 in relation to which he was found guilty in January 2007, sentenced to two years imprisonment suspended upon him entering a two year good behaviour bond. These assertions were not disputed by the father. I take all of these matters into account.
I would hope that the orders that I propose to make will be least likely to lead to the institution of further proceedings.
Sub-section 60CC(3)(m) requires that I consider any other relevant fact or circumstance. I take into account the fact that the maternal grandparents and maternal great-grandparents live in Broken Hill. The maternal grandmother has deposed to the fact that she and the maternal grandfather are now getting on very well with mother. As earlier mentioned the maternal great-grandparents have been supportive of the mother. These two couples provide a valuable safety net to ensure that E is properly looked after if she is returned to Broken Hill. The grandparents in particular have a ‘close bond’ with E that they want to continue. The bond is severely and progressively weakened with E living in Warren.
Conclusions
Much of the evidence is in dispute in this matter particularly as to violence and drugs. Findings will only be possible at the final hearing. Clearly, at this stage, both parties are capable of having a useful role in E’s life. In these circumstances the presumption of equal shared parental responsibility contained in s.61DA of the Act should continue to apply.
The Court is required by s.65DAA to consider making an order that the child spend equal time with the parents. If the mother and father were both living in Broken Hill it would, in my view, be in E’s best interests for such an order to be made. As the parents presently live so far apart neither equal shared time nor substantial and significant time are practically possible. The father can if he wishes overcome this practical difficulty by moving back to Broken Hill. Although this case has to be decided primarily on the basis of the parents continuing to live 650 kilometres apart I have framed the orders in such a way that the father can choose, if he wishes, to move back to Broken Hill and as a result have the benefit of being able to spend more time with E.
As the current residential arrangements of the parents stand, it is in the best interests of E that she live with the mother in Broken Hill with the father spending time, on a fortnightly basis, in Broken Hill.
I am satisfied that the maternal grandparent’s close bond with E will be facilitated by their reconciliation with their daughter and therefore presently decline to make an order in their favour. I will, however, give the maternal grandmother liberty to apply on short notice.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Simpson FM
Associate: Julie Davey
Date: 18 October 2007
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