Carrick and Jobson
[2012] FMCAfam 888
•26 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CARRICK & JOBSON | [2012] FMCAfam 888 |
| FAMILY LAW – Interim arrangements for child aged two years – additional child aged three months potentially effected by proceedings – issues arising regarding paternity of younger child – parties have poor relationship – parties have different cultural background – mother alleges the father is a controlling and violent person – father seeks to spend time with older child pending results of paternity testing in respect of younger child – nature of family violence – nature of interim proceedings – mother proposes that the father should have time with older child subject to supervision at a children’s contact centre – father proposes time be supervised by the paternal grandmother – delay – meaningful relationship – best interest. |
| Family Law Act 1975, ss.60CC; 61DA |
| Applicant: | MR CARRICK |
| Respondent: | MS JOBSON |
| File Number: | ADC 1585 of 2012 |
| Judgment of: | Brown FM |
| Hearing date: | 26 June 2012 |
| Date of Last Submission: | 26 June 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 26 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lindsay |
| Solicitors for the Applicant: | Rudall & Rudall |
| Counsel for the Respondent: | Ms Parker |
| Solicitors for the Respondent: | Georgina Parker Lawyers |
ORDERS
UPON THE ORAL UNDERTAKING of Ms Y. given to the court this day the child’s paternal grandmother will contact the mother if the child X born (omitted) 2009 becomes distressed during any periods of time he is spending with his father pursuant to these orders and make arrangements for the child to be returned to his mother.
BY CONSENT THE COURT ORDERS THAT:
Pursuant to Section 69W of the Family Law Act the parties do within 14 days undertake parentage testing in relation to the child Y born (omitted) 2012 for the purposes of obtaining information to assist in determining the parentage of the said child with the costs of such testing to be paid initially by the applicant and the issue of costs to be reserved to the adjourned date.
Pending receipt of the results of the parentage testing the operation of child support administrative assessment pursuant to section 111C of the Child Support (Registration & Collection) Act 1988 be stayed only in respect of the child Y.
Pursuant to Section 26 of the Federal Magistrates Act the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 16 July 2012 at 2:30pm.
The parties undertake mutual informal discovery within 10 days hereof.
The parties obtain at their joint and equal expense a value of any asset the value of which remain in dispute by no later than 7 July 2012.
Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 18 July 2012 at 11:15am, to discuss the care, welfare and development of the children X born (omitted) 2009 and Y born (omitted) 2012 in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.
Further consideration of the matter is adjourned to 24 July 2012 at 2:15pm for further hearing.
UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:
The children X born (omitted) 2009 and Y born (omitted) 2012 live with the mother.
The child X spend time with the father subject to the following conditions at the following times:
(a)On Monday 3 July 10am and 12.30pm
(b)On Saturday 7 July between 10am and 12.30pm
(c)On Wednesday 11 July between 10am and 12.30pm
(d)On Sunday 15 July between 10am and 1.30pm
(e)On Thursday 19 July from 10am until 1.30pm
(f)On Monday 23 July from 10am until 1.30pm
Each such period of time is to take place at the home of the paternal grandmother and be subject to her supervision.
The child is to be exchanged by the mother and the paternal grandmother at each period of time specified in these orders at the McDonalds Restaurant, (omitted) and an injunction issues restraining the father from attending each such handover.
The maternal grandmother and mother are to exchange mobile telephone numbers within 48 hours of the date of these orders for the purposes of giving effect to these orders but each is restrained and an injunction issue restraining each of them from using the other’s mobile telephone number for any other purpose.
The mother is to provide information to the paternal grandmother in respect of any medical treatment the child may require when he is in the care of the father and the supervision of the paternal grandmother pursuant to these orders.
IT IS NOTED that publication of this judgment under the pseudonym Carrick & Jobson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 1585 of 2012
| MR CARRICK |
Applicant
And
| MS JOBSON |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally immediately following the interim hearing. Given the controversy in the matter, it is appropriate that the reasons be transcribed.
The matter of Carrick & Jobson is listed before me today. The applicant in the proceedings is Mr Carrick “the father” and the respondent is Ms Jobson “the mother”.
By way of background, the parties married on (omitted) 2009. The applicant is about 36 years of age and the respondent is just under 30 years of age. The mother is a person from China originally who came to this country in 2007 to study (omitted) at the University of (omitted).
Ms Jobson met Mr Carrick shortly thereafter and they married in (omitted) 2009. The respondent must have been pregnant at the time and the parties’ child, X, was born on (omitted) 2009.
Today, Mr Carrick seeks orders in respect of X. He also seeks orders in respect of the settlement of matrimonial property issues between the parties. However the pressing issue, from his point of view, is that he has not seen X for some time.
There is a complicating issue. On 5 March 2012, the respondent gave birth to another child, Y. There are issues surrounding his paternity. The parties have agreed that there will be a paternity test undertaken in respect of Y, which will put beyond any shadow of doubt the issue of whether Mr Carrick is or is not Y’s father.
The respondent’s position is that she has no doubt Mr Carrick is Y’s father. The applicant’s position is that Ms Jobson has said things to him which caused him to have some doubt about that. For obvious reasons, this is a major complicating issue in this case, which necessarily precipitates strong emotions in the hearts and minds of each of the parties concerned.
There is no dispute between the parties that they separated in November 2011. That, of course, was prior to Y’s birth. It is also self-apparent that the relationship and subsequent marriage between the parties was not a long one.
Necessarily, it would also seem to be the case that there are many cultural differences between the parties concerned. As I have already remarked to Ms Parker, who is Ms Jobson solicitor’s, I accept that Ms Jobson finds herself in an environment and culture which is very foreign to the one in which she grew up.
It is Mr Carrick’s position that, after the parties separated, he was anxious to reach a consensual agreement with Ms Jobson about both the division of property and arrangements for X’s care. It is his case that he commenced these proceedings very much as a last resort and because he was frustrated that Ms Jobson was unwilling to engage with him, notwithstanding his overtures of mediation.
At any event, it is common ground that since the parties separated, Mr Carrick has had only very brief periods of time with X. There is controversy to why this occurred.
The respondent’s position is that the applicant is a violent and controlling person. It is her case that Mr Carrick did not allow her to have access to financial resources, within the parties’ marriage and is a person who is obsessed with money.
She also asserts that he was violent towards her in the past and subjected her to all manner of sexual indignities She is affronted that Mr Carrick would suggest that he is not Y’s father.
For his part, Mr Carrick has said, through his counsel, Ms Lindsay, he would be delighted if Y is his child but from what the respondent has told him, he has reason to doubt that.
Given this very difficult background, it is not surprising that there are few issues on which the parties agree. Mr Carrick refutes any suggestion that he is the violent and controlling person portrayed by the mother. To the contrary, it is his position that he has been patient and forbearing by not bringing these proceedings until some time after the parties separated as a last resort.
The mother’s position is that she was compelled to leave a violent and unhappy marriage. She has sought assistance from domestic violence workers who have assisted her to obtain accommodation which she wishes to keep secret from Mr Carrick.
In these difficult circumstances, Mr Carrick asks me to make orders which would facilitate him spending time with X. His preference is that X should spend overnight time with him. It is his position that during the parties’ relationship, he played a significant role in providing for X’s care.
In support of his position he relies on a letter from X’s child care centre which indicates that he was the person who picked X up regularly and was the person with whom the operator of the centre discussed matters relating to X’s care.
He also points to the fact that he has facilitated X’s attendance at medical practitioners. It seems to be the case that X, in common with many infants of his age, is a child who suffers from asthma and eczema and there is a letter dated 10 May 2011 addressed to Mr Carrick that an appointment has been made for X at the allergies centre at the (omitted) Hospital. The letter indicates that it would seem that X has been prescribed antihistamines for his various medical issues in the past.
Importantly, Mr Carrick points to a statutory declaration that the respondent mother apparently completed, arising from her application for a Partner’s Visa, which speaks positively of her relationship with Mr Carrick. It is the applicant’s position that this does not sit comfortably with the respondent’s current description of him.
Again, as I pointed out to Ms Parker, I can understand why a person in Ms Jobson’s position would perhaps speak positively to the immigration authorities in order to obtain a visa when her feelings were otherwise. But that, as with many other issues, is one which I cannot resolve definitively in the context of these proceedings.
Nor, of course, can I easily dismiss the allegations which Ms Jobson has brought against Mr Carrick. Mr Carrick is critical of the allegations and points to the fact that there is little, if any, corroborative evidence, to support them.
I, of course, appreciate that by its nature family violence invariably happens behind the closed doors of the family home and accordingly is very often not capable of independent scrutiny. In addition, the victims of such violence may be embarrassed or frightened and so unable to make complaint to appropriate authorities. These considerations may be particularly opposite to a person who is a stranger to this country’s institutions and legal mechanisms.
The mother’s position is that at this stage the court ought to proceed very cautiously. It would be her preference, at this stage, that Mr Carrick should only interact with X at a professional contact centre. I am told that the appropriate contact centre in (omitted) is likely to have a waiting list of about 16 weeks.
In addition, I know that the best such a centre would be able to offer would be a period of around two hours per fortnight. Necessarily, the environment of a children’s contact centre is somewhat institutional in its quality although I know that the people who operate such centres do their very best to make their centres child focused.
So, if I acceded to the mother’s application it is likely that it will be approximately one year, at the least, since Mr Carrick has spent any time with X. As I have already observed, the first three years are very often central to a child forming a close and intimate relationship with a parent.
In terms of how I am to approach this matter, I must, of course, bear in mind that X’s best interests are the paramount or most important consideration. In so doing, I must look to the various matters listed in section 60CC of the Family Law Act.
There are a number of considerations in that section which I am required to take into account in determining how a child’s best interests are to be served.
There are two primary or main considerations. They are, firstly, the benefit a child is likely to derive from having a meaningful relationship with not one but both of his or her parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
In terms of the latter consideration, the emphasis in the legislation is on protecting children from physical or psychological harm. It is not to punish a parent for previous behaviour. The aim is to protect a child from coming to harm.
Necessarily, that role must include some assessment of the risk a person’s behaviour may pose to a child and after such assessment then the court’s duty is to fashion a response which is commensurate to the degree of that risk.
There are also however risks to a child of curtailing or not allowing a possibly beneficial relationship with a parent. The court’s responsibility is to balance those considerations to achieve an outcome which is in the best interests of the child concern.
Other criteria relating to how a court is directed to consider how the best interests of any children concerned may be served by any order which the court makes are set out in section 60CC(3). These criteria are categorised as additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
There is a presumption that it is in a child's best interests for his or her parents to have equal shared parental responsibility for him or her. [section 61DA]. The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
In this case, I am gravely concerned that to wait 16 weeks for a place at the children’s contact centre would not be in X’s best interests because it will make it too long until he reconnects with his father. I accept that this period is precious so far as both Mr Carrick and X are concerned in the two forming a bond with one another.
I do not dismiss the mother’s allegations. I am not in a position, of course, to ascertain the truth or otherwise of them. But, as I say, I must put in place orders commensurate with the degree of risk involved. The risk cuts two ways.
In this case I have heard some brief evidence from the child’s paternal grandmother. Her name is Ms Y. She lives at (omitted). She is not currently working because she left the workforce, I think, about two years ago to care for her mother who was, regrettably, terminally ill with cancer.
She shares her home with her granddaughter, who is aged 14. Her granddaughter is going to school in suburban Adelaide, because her mother lives in the south-east of the state, and Ms Y is providing a home and care while she is doing that.
Ms Y has another child besides Mr Carrick and she has no other grandchildren besides her granddaughter and X. I pause, of course, to note the uncertainty regarding the parentage of Y. Clearly, there is a significant level of mistrust between the maternal and paternal aspects of X’s family.
Ms Y seemed to me to be a frank and honest person. She did not take the opportunity of giving evidence in the witness box to attack Ms Jobson. To the contrary, she said that she still had some regard for Ms Jobson, but, importantly, she told me that she said her only concern is for X.
I have no reason to doubt that she has a great deal of affection for X and would not willingly want him to come to any harm. She knew about his eczema and asthma and I am satisfied that she is an appropriate person to oversee Mr Carrick’s time with the child in the very short term.
I am not sure how long it will take for the parentage testing report to come through. I am told it may be 28 days. The parties have been able to secure an early date for a financial mediation conference on 16 July which is not very long away and they are going to talk, I hope constructively, about their financial issues.
It is also possible for the parties to attend the child dispute resolution conference on 18 July at 11.15 am. Both are willing to attend such an appointment and I will make an order to that effect.
I appreciate that it may not be possible for the issue about Y to have been resolved by that time, but as I said earlier, it is sometimes impossible to get the various things that have to be done in a case like this one, in perfect symmetry. I can appreciate from Mr Carrick’s perspective why there is some urgency about reinstating some level of relationship between him and X.
At this stage, I think in terms of the additional considerations, the most important factors are X’s age. He is still a child of tender years. The difficulty of the parties’ situation with one another and his age militates against overnight time. Certainly there seemed to be issues in terms of how each party views the other and how each sees the other in X’s life as it unfolds.
I think this is the sort of case which dictates a cautious approach, given the period of time which has elapsed since X and Mr Carrick spent any meaningful time with one another.
I am concerned that if I proceed too hastily with any regime, it will perhaps go off the rails and Ms Jobson will be upset and X will be upset and it will have the contrary effect to what Mr Carrick wishes.
On the other hand, I am concerned that if I do what Ms Jobson wants, that will be too cautious and too slow and that will not be in X’s interests. I think there has to be a balance struck between those considerations.
At this stage, given the allegations of family violence, I think it would not be reasonable to apply the presumption of equal shared parental responsibility and accordingly I need not consider either equal time or substantial and significant time. In any event, given X’s age, I am satisfied that either such regime would not be in his best interests.
I suspect that the regime I have in mind will satisfy neither of the parties. Mr Carrick is working on an eight day roster. I am told that he can take some time off. I hope that is the case because I do not think it would be in X’s interests, at this stage, to fashion the arrangement I am going to make to Mr Carrick’s roster.
What I think needs to be done is to start with some time every three or four days or so so that X can become used to Mr Carrick and I think it is also likely to be helpful that Ms Y is there to oversee arrangements, particularly to give some confidence to the mother. In this regard, I propose to take up Ms Y’s undertaking that if X becomes distressed, she will return the child to his mother.
The time needs to be of fairly short duration, given X’s age and to occur with predictability until the results of the parentage testing and the child dispute resolution conference is known. There will be some shorter introductory periods. I have perhaps arbitrarily picked times in the morning and around lunchtime and I trust that they are convenient.
The times I propose for Mr Carrick to spend time with X, subject to the supervision of the paternal grandmother are as follows:
a)On Monday 3 July 10am and 12.30pm
b)On Saturday 7 July between 10am and 12.30pm
c)On Wednesday 11 July between 10am and 12.30pm
d)On Sunday 15 July between 10am and 1.30pm
e)On Thursday 19 July from 10am until 1.30pm
f)On Monday 23 July from 10am until 1.30pm
In the context of these arrangements, I will adjourn the matter to 24 July, 2012, at 2.15 pm, following the family dispute resolution conference, for further hearing, particularly to examine the question of what should happen in respect of further arrangements for X after this introductory period of about a month.
In that regard, what I propose is making the orders as set out at the commencement of the reasons for judgement, subject to the undertaking which Ms Y has said she is willing to provide.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 26 June 2012
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