Cadogan and Trevor
[2009] FMCAfam 1181
•4 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CADOGAN & TREVOR | [2009] FMCAfam 1181 |
| FAMILY LAW – Parenting – interim – children aged 3 and 4 – intervenor suspected of being biological father of elder child – children living with respondent father and spending time with applicant mother – whether elder child should spend time with intervenor. |
| Family Law Act 1975, ss.60B(2), 60CA, 60CC(2), 60CC(3), 60CC(4) |
| Goode v Goode (2006) FLC 93-286 |
| Applicant: | MS CADOGAN |
| Respondent: | MR TREVOR |
| Intervenor | MR J. F |
| File Number: | MLC 2976 of 2009 |
| Judgment of: | Monahan FM |
| Hearing date: | 4 August 2009 |
| Date of Last Submission: | 4 August 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 4 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Iser |
| Solicitors for the Applicant: | Cohen Kirby & Iser |
| Counsel for the Respondent: | Mr Nehmy |
| Solicitors for the Respondent: | Hillier Quinn Law |
| Counsel for the Intervenor: | Mr Whelan |
| Solicitors for the Intervenor: | Taylor Whelan & Whelan |
ORDERS
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
The child [X] born in 2005 (“[X]”) spend time and communicate with the Intervenor as follows:
(a)for a period of six (6) weeks on Thursday or Friday from 9:00 am to 4:00 pm commencing Thursday 13 August 2009 (and alternating between Thursday and Friday each week); and
(b)thereafter, in each alternate week from 9:00 am Thursday to 9:00 am Friday, with such time to occur in the week when the Applicant is not spending weekend time with [X].
For the purposes of Order 1(b) herein the child shall stay overnight with the Intervenor at the residence of Ms F and Mr F.
Changeovers are to occur as provided for in Order 10 of the Orders of the Magistrates’ Court of Victoria at [omitted] made on 25 March 2009.
AND THE COURT ORDERS THAT:
Pursuant to s 68L(2) of the Family Law Act 1975 the children [X] born in 2005 and [Y] born in 2006 (together “the children”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such:
(a)Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service;
(b)Within 48 hours of notification of such appointment the solicitors for the respective parties do provide to the Independent Children’s Lawyer copies of all relevant documents relied upon; and
(c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
The Independent Children’s Lawyer do prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she will recommend be made as final orders at the final hearing.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia (“the Family Consultant”) on a date and at time/s to be advised for the purposes of the preparation of a Family Report, such report to be released by Monday 23 November 2009.
The Family Report to deal with the following matters:
(i)any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(ii)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975; and
(iii)any other matters that the Family Consultant considers important to the welfare or best interests of the children.
The parties send copies of all of their court documents to the Family Consultant within 7 days of being requested to do so by the Family Consultant.
If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their legal representatives to) notify in advance the relevant Family Consultant of his or her need to attend Court.
All extant applications be adjourned to the Duty List of this Court on 1 December 2009 at 9:45 am for Directions, for the purpose of reviewing the spend time arrangements.
The matter be adjourned to this Court on 11 February 2010 at 10:00am for Final Hearing (with an estimated hearing time of 2 days).
In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them 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 Magistrates Court Regulations.
The Applicant make, file and serve any further Affidavit to be relied upon by 4.00 pm 28 days prior to trial.
The Respondent make, file and serve any further Affidavit to be relied upon by 4.00 pm 21 days prior to trial.
The Intervenor make, file and serve any further Affidavit to be relied upon by 4.00 pm 14 days prior to trial.
The Independent Children’s Lawyer make, file and serve any Affidavit to be relied upon by 4.00 pm 7 days prior to trial.
On or before 4.00 pm 2 days prior to trial, each party [and the Independent Children’s Lawyer] must make, file and serve an Outline of Case document including the following:
PARENTING
1. a list of the documents to be relied upon;
2. a brief chronology;
3. an outline of contentions with respect to:
3.1. whether the presumption of equal shared parental responsibility applies (s.61DA),
3.2. the considerations relevant to equal time and substantial and significant time (s.65DAA);
3.3 each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);
3.4. other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and
3.5. any other matters relevant to the decision; and
4. a statement of the precise orders sought.
AND THE COURT NOTES THAT:
A.In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a) the filing of documents; or
(b) any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
B.To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Cadogan & Trevor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 2976 of 2009
| MS CADOGAN |
Applicant
And
| MR TREVOR |
Respondent
| MR J. F |
Intervenor
REASONS FOR JUDGMENT
Introduction
There are two applications before the Court for consideration. The first application is a parenting application (hereinafter referred to as the “substantive application”) filed by Ms Cadogan (hereinafter referred to as “the mother”) who is seeking various parenting orders in relation to the children, [X] born in 2005 (hereinafter referred to as “[X]”) and [Y] born in 2006 (hereinafter referred to as “[Y]”) (and together referred to as “the children”).
More specifically the applicant mother is seeking orders including equal shared parental responsibility, that the children live with her eight days per fortnight and spend time with her on other specified days. The applicant mother’s application is supported by her affidavit sworn on 17 March 2009 and filed on 18 March 2009 at the [omitted] Magistrates' Court. The applicant mother is legally represented by Mr Iser today.
The second application is an Application in a Case filed on behalf of the intervenor, Mr J. F (hereinafter referred to as “the intervenor”) on 29 July 2009. The Application in a Case concerns the child [X] only and in that application the intervenor is seeking, inter alia, to be joined as a party to the substantive proceedings and a parentage declaration that he is the father of [X].
If that declaration is forthcoming, the intervenor also seeks an order to change [X]’s family name. He is also seeking today an order to spend time with [X]. The intervenor’s application in the case is supported by his affidavit sworn on 6 July 2009 and filed on 29 July 2009 and the affidavit of his mother, Ms F sworn on 3 August 2009 and filed in Court today. Today the intervenor is legally represented by Mr Whelan.
The respondent is Mr Trevor (hereinafter referred to as “the father”) who, in his response to the substantive application filed on 25 March 2009 in the [omitted] Magistrates' Court, opposes the orders sought by the applicant and is seeking different parenting orders in relation to the children. More specifically, the respondent is seeking that the children live with him and spend time with the mother on alternate weekends and another day in the alternate week.
In his response to the Application in a Case filed on 3 August 2009, the father is seeking orders including an order that [X] continue to reside with him. The respondent father relies on his affidavit sworn on 24 March 2009 and filed on 25 March 2009 (“his first affidavit”) and his affidavit sworn on 31 July 2009 and filed on 3 August 2009 (“his second affidavit”). The father’s first affidavit is relevant to the substantive application and the second affidavit is relevant to the Application in a Case. The respondent father is legally represented by Mr Nehmy today.
Background
The circumstances of this case are somewhat unusual. The applicant and the respondent commenced a relationship in 2003. The father says that this relationship commenced in April 2003. Both the mother and the father agree that they separated in April 2007. There were two children born during the relationship, namely [X] (who turns 4 in October) and [Y] (who turns 3 in November).
It would appear that during early 2005 the mother became intimately involved with the intervenor. Although yet to be confirmed by an authorised parentage test, it appears the intervenor is the biological father of [X]. There is no issue between the parties with respect to the parentage of [Y].
Orders were made by the [omitted] Magistrates' Court on 25 March 2009 with the consent of the mother and the father that provided for, inter alia, the mother and father to have equal shared parental responsibility, that a parentage testing procedure be conducted, that the mother and father attend a post separation parenting course, and that the children live with the father and spend time with the mother on alternate weekends and one day in the other week plus Mothers’ Day and other days by agreement.
The matter came before me in my duty list in Melbourne on 6 July 2009. On that occasion I granted the intervenor leave to intervene in the substantive proceedings. I also made orders for a parentage testing procedure. These orders were made with the consent of the parties. The consent orders included a Notation; namely “that the intervenor has sought time with [X] and the respondent and the applicant have refused the request.”
The matter returned to my duty list today.
Agreed and disagreed facts
The dispute today focuses on the intervenor’s Application in a Case. While there is no disagreement between the parties that [X] should spend time with the intervenor, there is disagreement on how much time should be spent and on what days and times.
There is no disagreement that the matter needs the assistance of a family consultant to prepare a report for the Court’s benefit.
There does not appear to be any disagreement that the matter is suitable for the appointment of an independent children’s lawyer.
There is no issue of equal shared parental responsibility to be determined today. Until further order, parental responsibility for both children will remain equally shared between the applicant mother and the respondent father.
The parties’ submissions
The legal representatives for all three parties submitted their preferred minute of orders in respect of the issues in dispute today.
Mr Whelan for the intervenor indicated that his client was, inter alia, seeking (quoting from the intervenor’s Minute):
“That [X] spend time with …Mr J. F from 9.00 am to 6.00 pm each alternative Thursday [and from] 9.00 am to 6.00 pm each alternate Friday (Friday to be not the Friday when [X] spends time with the mother). Daytime contact to be four weeks commencing Thursday 6th [I assume that’s Thursday 6 August] thereafter Thursday 9.00 am to Saturday 1.00 pm on each weekend - such weekends to alternate to the mother’s weekend.”
It was also clear that the overnight time would be spent at the home of the biological paternal grandparents.
Mr Whelan submitted that there was evidence that the intervenor and his parents had spent time in the past with [X], although he admitted that there was some disagreement between the parties as to whether that was occurring recently. That having been said, he submitted that the Notation in the consent orders was evidence that the intervenor had sought to spend time in more recent times, but that the mother and father had refused.
Mr Whelan indicated that the DNA test that has been conducted provides what the Court might describe as prima facie evidence that the intervenor is [X]’s biological father. He submitted that the intervenor was capable of arranging his affairs to spend time with [X] and that should the Court grant overnight time, such time would be spent in the home of his parents (the biological paternal grandparents).
Mr Whelan also submitted that their home was suitable as it contained four bedrooms and a rumpus room and consequently [X] would have her own bedroom.
Mr Iser for the applicant indicated that the mother sought the following order (quoting from the mother’s Minute):
“That Mr J. F spend time with the child [X] from 9.00 am until 4.00 pm on each alternate Thursdays and Fridays commencing Friday 14 August 2009 with the mother of Mr Trevor to deliver and collect [X] if Mr Trevor is unable to do so.”
Mr Iser submitted that the applicant mother was very concerned about how [X] might cope with having to spend significant time and, in particular, overnight time with both herself and also with the intervenor and his family. The mother also raised concerns on how the child would cope with being separated from her young sibling, given their tender years.
Mr Nehmy for the respondent father indicated that his client was seeking, inter alia, the following orders (quoting from the father’s Minute).
“That until further order:
1. The child [X] …spend time and communicate with Mr J. F as follows:
(a) For a period of six weeks on Thursday in each week from 9 am to 4 pm; and
(b)Thereafter in each alternate week from 9 am Thursday to 9 am Friday such time to occur in the week when the mother is not spending weekend time with the child.
2. For the purposes of paragraph (1)(b) herein the child shall sleep overnight at the residence of Ms F and Mr F.”
Mr Nehmy submitted that the father’s proposal might be best described as a midway point between the orders sought by the intervenor and the applicant mother and if adopted provided [X] with a graduated spend time arrangement with the intervenor. Mr Nehmy also submitted that caution was needed and that his client’s orders reflected that caution in the best interests of [X].
Mr Nehmy also submitted that the Court needed to consider the fact that the father has re-partnered, and that his partner, Ms H, has a three-year-old child called [Z], who has allegedly developed a relationship with both [X] and [Y].
The Law
The Full Court of the Family Court in a decision of Goode v Goode (2006) FLC 93-286 (“Goode”) guides the Court’s approach in making interim decisions and interim orders in relation to parental disputes. At paragraph 81 the Full Court noted:
“In making interim decisions the court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.”
This dispute is such a case. More specifically this raises the reality that the Court cannot fully determine issues of credit today as the evidence being presented by the parties is not being tested by cross-examination. That having been said, in the same paragraph, that is paragraph 81 of the Goode decision, the Full Court went on to say:
“However, the legislative pathway must be followed.”
In other words, the relevant provisions of the Family Law Act 1975 (“the Act”) post the 2006 shared parenting amendments must be followed in an interim hearing.
There are some differences in the evidence being presented today by the parties in this case and no doubt the history of this matter will be the subject of evidence and cross-examination at the final hearing.
There is no issue of equal shared parental responsibility to determine today. The dispute today is simply limited to the issue of [X]’s time with the intervenor and under what circumstances that time is to be spent.
In the Goode case, at paragraph 82 the Full Court stated:
“In [determining] an interim case [following the legislative pathway involves] (a) identifying the competing proposals of the parties; (b) identifying the issues in dispute…; (c) identifying any agreed or uncontested relevant facts; …”
I have previously noted these in this decision.
I also note section 60CA of the Act provides:
“In deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.”
In other words, it is the best interests of both [X] and [Y] that determines the outcome today.
To determine the child’s best interests, the Court must consider the primary considerations or factors set out in section 60CC(2) of the Act and the additional considerations referred to in subsection (3) in that provision where relevant. The Court will now canvass these considerations briefly.
Primary considerations: section 60CC(2)
As previously stated, the Court is required under section 60CC(2)(a) to consider firstly:
“The benefit to the child of having a meaningful relationship with both of the child’s parents.”
At this point let me note that “meaningful” does not mean equal but clearly signifies that both parties in a general case should be involved with their children and consequently signifies an expectation of time to be spent. The right of a child to spend time with each parent, and extended family, is clearly a right enunciated in section 60B(2)(a) of the Act.
Whilst biology is a critical factor in parenting, the issue is yet to be definitively determined in this case. Regardless, a child like [X] has a right to spend time with all the family relevant to her life including the parties in this case.
Secondly, the Court is required under section 60CC(2)(b) to consider the need to protect the child or the children, as in this case, from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. There are no specific concerns raised today in respect of [X] spending time with the intervenor.
Additional considerations: section 60CC(3)
With respect to the additional considerations in section 60CC(3), I would firstly note that the “views of the child,” whilst significant, will be difficult to determine in this case given their very young years. Nevertheless, this is something that the family consultant will no doubt be able to assist the Court on and perhaps with the assistance of the independent children’s lawyer should such a request be accommodated by Victoria Legal Aid.
As to “the nature of the relationship of the child with each of the child’s parents and other persons”, again we have different stories here and the parties’ evidence needs to be tested.
As to the “willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child [or children] and the other parent” these are also issues that need to be tested but obviously balanced by the recent events pertaining to the paternity dispute over [X].
The Court must consider “the likely effect of any changes in the child’s circumstances.” Clearly there needs to be some change here. The present situation is complicated because of [X]’s relationship with [Y], and to a lesser extent to [Z], being both relevant in this mix between the parents and the intervenor.
Lastly, in relation to “any other fact or circumstance” I note that the Court has not yet made a parentage declaration in this matter.
Conclusion
This is a difficult decision for the Court to make. It must arrive at a result that is not just in the best interests of [X] but also [Y]. Any time spent by [X] with the intervenor is time that she will not be spending with [Y]. While not a unique problem in our society it is clearly relevant.
I have come to the conclusion that the children’s best interests demand a cautious interim result that will no doubt need refinement or perhaps major change as the matter progresses. The parties agree that the intervenor should be spending time with [X] and the Court agrees. Any change needs to reflect the tender years of both children. They are the focus, and the Court notes that the children’s perception of time is vastly different to those of older children, let alone adults.
After careful consideration, the Court proposes orders that reflect the submissions of the father, with modification.
The Court will also make orders seeking the appointment of an independent children’s lawyer with a request Victoria Legal Aid to fund same. The Court, of course, cannot guarantee that Victoria Legal Aid will oblige.
The Court will make the usual order with respect to obtaining a family report.
The Court will need to set the matter down for a final hearing and will hear argument on whether the matter might benefit from a listing in a duty list perhaps towards the end of the year.
There will be usual orders with respect to the filing of trial affidavits and case outline documents.
I reserve the right to settle the reasons for this decision.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 9 November 2009
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