CARSON & LEARY

[2017] FCCA 1342

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARSON & LEARY [2017] FCCA 1342

Catchwords:
FAMILY LAW – Interim parenting – unacceptable risk of harm considerations for young and vulnerable child – assessment of best interests considerations.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61C, 61DA, 61DB, 65DAA

Cases cited:

Goode v Goode (2007) 36 FamLR 422
Keats & Keats [2016] FamCAFC 156
M & M (1988) 166 CLR 69
Mazorski & Albright [2007] FamCA 520
MRR & GR [2010] HCA 4
Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Banks & Banks (2015) FLC 93-637

Applicant: MR CARSON

Respondent: MS LEARY

File Number: PAC 592 of 2017

Judgment of: Judge Obradovic

Hearing date: 16 June 2017

Date of Last Submission: 16 June 2017

Delivered at: Parramatta

Delivered on: 7 July 2017

REPRESENTATION

Appearing for the Applicant: In person

Counsel for the Respondent: Mr Schroder

Solicitors for the Respondent: Rafton Family Lawyers

PENDING FURTHER ORDERS

1. The mother shall have sole parental responsibility for the child [X] born (omitted) 2014.

2. The child shall live with the mother.

3. The child shall spend time with the father as follows:

   (a)Each Wednesday from 1pm until 3pm, and for the purposes of such time the maternal grandmother, Ms G shall be present.

   (b)The child shall continue to spend time with the father on a supervised basis at the (omitted) Children's Contact Service at (omitted) on a day and at a time offered by the Contact Centre, noting that the child currently spends time with the father each Friday from 1.15pm to 3.15pm.

4. For the purpose of Order 3(a) the parties shall meet at a mutually agreed location.

5. For the purpose of Order 3(b) the father shall be solely responsible for any costs or fees associated with the Contact Centre.

6. The child’s time with the father pursuant to Order 3(a) and 3(b) above shall be suspended to allow the mother to take the child on holidays on not more than two occasions each year and for not more than one week block periods on each occasion provided the mother provides the father with not less than one months’ notice of the dates she proposes to take the child on holidays.

7. The father obtain a report by his treating Psychiatrist Dr I within 28 days of the date of this Order and the father shall be liable for any costs for doing so and shall provide a copy to the mother’s solicitor within 7 days of receiving such report. Such report shall address:

   (a)Any diagnosis;

   (b)Any medication prescribed;

   (c)History of treatment; and

   (d)Any recommendations as to treatment.

8. The mother and father shall keep the other advised at all times of their residential address and residential telephone number and emergency contact number.

9. Each of Mr Carson born (omitted) 1973 and Ms Leary born (omitted) 1975 and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of [X] born (omitted) 2014 (male) from the Commonwealth of Australia.

10. [X] born (omitted) 2014 be and is hereby restrained from leaving    the Commonwealth of Australia.

11. It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List pending further order.

12. Subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List. 

THE COURT FURTHER ORDERS THAT

1. Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer is appointed for [X] born (omitted) 2014 and request the Legal Aid Commission of NSW to provide such representation.

2. The parties are to provide to the Independent Children’s Lawyer, within 48 hours of receiving notice of their appointment, all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

3. The parties are to provide to the Independent Children’s Lawyer immediately upon notification of their appointment, a copy of any subpoena issued in the proceedings.

4. List the matter for directions at 9.30am on 10 October 2017.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 592 of 2017

MR CARSON

Applicant

And

MS LEARY

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are the Reasons for Judgment in relation to interim parenting proceedings concerning the only child of the parties [X] born (omitted) 2014.

2. The parties to the proceedings are the Applicant father, Mr Carson and the Respondent mother, Ms Leary.

3. The proceedings were commenced by way of Initiating Application filed by the father on 13 February 2017.

4. The mother filed a Response to the Initiating Application on 21 March 2017.

5. On 3 April 2017, being the first return date of the proceedings, the parties signed consent orders, inter alia, to the following effect:

   a)That the child live with the mother;

   b)That the child spend time with the father each Tuesday from 1pm to 4pm with such time to be supervised by the maternal grandmother; and

   c)That the child spends time with the father at the (omitted) Children's Contact Service on dates and times as advised by the service following assessment of suitability for supervised contact.

6. The parties were also directed to file and serve an Amended Initiating Application and Amended Response respectively together with a supporting Affidavit. The matter was set down for interim hearing at 10am on 16 June 2017, these being the Reasons following that hearing.

7. The father filed an Amended Initiating Application and Affidavit on 12 May 2017.

8. The mother filed an Amended Response and Affidavit on 1 June 2017. 

Competing Proposals

1. In the Amended Initiating Application filed 12 May 2017 the Applicant seeks a graduated time regime with the child commencing with four hours each Wednesday in the presence of the mother and moving to overnight time with the child each weekend from Saturday to Sunday and each Wednesday to Thursday.

2. The father also seeks communication with the child via Skype and that both parents be informed of any medical emergency or hospitalisation and that the mother obtain a report from her treating psychologist.

3. The mother seeks sole parental responsibility of the child and that the child spend time with the father supervised by the maternal grandmother each Wednesday for two hours and each Friday supervised by the (omitted) Children's Contact Service for two hours (if the service can arrange this time.

4. The mother also seeks that the child be placed on the airport watch list, that the father obtains a report from his treating psychiatrist and that the father arrange and attend a parenting course.

Documents Relied Upon at Interim Hearing

1. The Applicant father relied upon the following documents:

   a)Amended Initiating Application filed 12 May 2017;

   b)Affidavit of Mr Carson filed 13 February 2017; and

   c)Affidavit of Mr Carson filed 12 May 2017.

2. The Respondent mother relied upon the following documents:

   a)Amended Response filed 2 June 2017;

   b)Affidavit of Ms Leary filed 1 June 2017;

   c)Affidavit of Ms Leary filed 21 March 2017; and

   d)Affidavit of Ms G filed 1 June 2017.

3. The following documents became Exhibits in the proceedings:

   a)Exhibit 1 – Sleeve 7 – Subpoena material produced by Ms W;

   b)Exhibit 2 -  Sleeve 6 – Subpoena material produced by Dr I, Psychiatrist;

   c)Exhibit 3 – Sleeve 1 – Subpoena material produced by Dr S – (omitted); and

   d)Exhibit 4 – Recent Facebook post by Father regarding “(omitted)”.

Uncontested Relevant Evidence

1. The father was born on (omitted) 1973 in (country omitted).

2. The mother was born on (omitted) 1975 in Australia.

3. The parties commenced a relationship in approximately (omitted) 2013 and commenced cohabitation in approximately (omitted) 2014.

4. The only child of the parties, [X] was born on (omitted) 2014.

5. The parties separated in approximately September 2014 when the child was approximately four months of age.

6. The father suffers Attention Deficient Hyperactivity Disorder (“inattentive type”) which he is currently prescribed and takes medication for.

The Law

1. The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.

2. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

3. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

4. In determining what is in a child’s best interests, the Court must consider the matters set out in s60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child.

5. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]

   [1] see for example Slater & Light [2011] FamCAFC 1at [45]

6. In applying the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the parents.

7. It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]

   [2] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court

   [3] Ibid at [122]

8. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[4] The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [4] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]

   [5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

9. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[6]

   [6] s61DA(3)

10. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests and reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7]

    [7] MRR v GR [2010] HCA 4 at [15]

11. The Full Court in Goode v Goode[8] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.

    [8] (2007) 36 Fam LR 422, (2006) FLC 93-286

12. As stated by the Full Court in Keats & Keats, in respect of the conduct of interim proceedings:[9]

    …the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.

    [9] [2016] FamCAFC 156 at [9]

Issues in Dispute

1. The central issue for determination is what time the child is to spend with the father and whether such time should be supervised. Such assessment is to be made by the Court at this interim stage with much of the evidence being untested and in dispute; and with very few agreed facts.

Other Relevant Evidence

Evidence in the Applicant Father’s Case

1. The father asserts that during the parties cohabitation following the birth of the child he assisted the mother with bottle feeding the child, bathing the child, putting the child to sleep including settling him during the night, playing with him, changing nappies and that he would attend medical appointments with the mother and child.

2. The father says that the parties’ relationship became strained following the birth of the child and that he “convinced” the mother to move out to the home of the maternal grandmother with the child.

3. The father says that the child would spend time with him during the weekends following the parties’ separation, usually for six to eight hours where he would continue to care for the child in the manner mentioned above.

4. The father says that his time with the child was reduced by the mother following the father undergoing surgery to his foot in November 2014. He says that time did not occur for seven weeks following his surgery despite his requests to the mother. He says that it was not until 20 December 2014 that the mother allowed the child to spend three hours with the father.

5. The father says that this time increased from 7 February 2015 following some “difficult discussions” with the mother, to six hours in a format of three hours in the morning, a two hour break when the child would sleep and the father would leave the maternal grandmother’s house where the visits would occur, and then three hours in the afternoon. He says that this regime occurred on four occasions.

6. The father says in his Affidavit filed 13 February 2017 that during this regime of spending six hours with the child he observed that the child would have some difficulties with sleep and being engaged for the three hours before the child’s nap time and that the mother was not comfortable with this arrangement stating that she felt overwhelmed by the father’s presence in the home and requesting that he leave.

7. The father’s evidence is that from the child’s birth to date his time with the child has been varied by the mother from no time to a maximum of eight hours on any one occasion and that any request by the father for additional time with the child has not been agreed to by the mother.

8. In the father’s Affidavit filed 12 May 2017 he states that he is concerned about the mother’s “high anxiety” and that the mothers anxiety is reflective in the child’s well-being, for example he says the child’s “stuttering seems to get worse”.

9. The father says that the mother is antagonistic when it comes to arguments between the parties.

Evidence in the Respondent Mother’s Case

1. The mother has always been the primary carer for the child

2. The mother says that during the time the parties lived together she found the father to be “controlling, difficult to communicate with and emotionally abusive” with comments from the father such as “you eat too loud, you breathe too loud, you are too noisy when you sleep, you move your hands too much, you have issues” and that the father would belittle her in the presence of other people and would tell her what she was allowed to eat in front of other people.

3. The mother says that the father questioned her and professionals about the issue of breastfeeding the child and that the father was not involved in the care of the child following the child’s birth as suggested by the father in his Affidavit.

4. The mother says that the father “experiences sensory difficulties with sound and movement” and that this is demonstrated by the father’s complaints of the mother regarding her breathing, eating and hand movements.

5. The mother says that the father is socially awkward and makes inappropriate comments when in social settings regarding the mother’s breasts and has made jokes regarding rape and that the mother has observed the father talking to himself and moving his hands in a repetitive fashion and that she has observed the father’s difficulties in processing information if it is “provided in large chunks”.

6. Further, the mother has observed the father during his time with the child as being somewhat vacant and “gazing into space” and having difficulty in focusing on the child. The mother states in her Affidavit filed 21 March 2017 that she has observed the father not paying attention to the child at the swimming pool where the child was struggling in the water, when he was climbing equipment at a park and during a visit to a Reserve when the child ran away towards a busy road.

7. The father does not dispute that these events occurred. In relation to the incident at the swimming pool the father says that he was observing the child at all times and that he was allowing the child to try and stay afloat in the deeper end of the pool for “4 secs” and that this was a lesson that was taught to him as a child by his parents. The father says that he is always next to the child when he climbs and that he stopped the child “5-6 meters from the road” when the child was running towards the mother’s car at the conclusion of the visit.

8. The mother says that on another occasion she has observed the father paying close attention to the child but to the exclusion of his surroundings where he has left belongings at a park such as the child’s scooter and a video camera.

9. The mother says that the father suffers from some physical difficulties with his back and foot and that the mother observed the father in 2014 crawling on his hands and knees saying “I cannot walk properly”. The mother has more recently observed the father’s physical difficulties in placing the child in the car or lifting or being active for more than four hours during the times he has spent with the child and that it is for this reason that the mother is required to be present during the times the father spends with the child.

10. The mother is concerned that the father’s behaviours and physical difficulties will impact on his ability to care for and parent the child in an appropriate manner particularly as the child is becoming heavier and more active and it is for this reason that the child should spend short periods of supervised time with the father so that the child is not at a risk of harm in the father’s care due to his physical and psychological difficulties.

11. The mother says that she has never stopped time between the father and the child and that any scheduled time the father has not spent with the child has been due to the father’s own health issues.

12. The mother agrees that the child should spend time with the father however, that this time should be for shorter periods of time than currently occurs as the child is often tired and difficult to settle and that the time should be supervised in a “safe and supported environment”.

Evidence of Ms G

1. The maternal grandmother, Ms G, filed an Affidavit in these proceedings on 1 June 2017 which the mother relies upon at this interim hearing.

2. Pursuant to the Orders made on 3 April 2017 the maternal grandmother has supervised the father’s time with the child and states that she has observed the following during the father’s supervised visits:

   a)The father play with the child and the father move from one activity to another with the child;

   b)The father provide the child with his mobile telephone so that he can speak with the mother when the child asked to do so or as a distraction when the child was upset. Often the child was handed the father’s mobile telephone for amusement;

   c)The child seeking reassurance and cuddles from the maternal grandmother;

   d)The father being vigilant on some occasions regarding the child’s safety but that he would follow the child around rather than engage with the child;

   e)The child refused to go to the toilet with the father and on one occasion did not want to say goodbye to the child, on other occasions the child did go to the toilet with the father; 

   f)The child enjoyed playing with the father at the park where the father brought bubbles;

   g)Towards the end of the visits the child becoming tired and unsettled;

   h)The father trying to put sunscreen on the child, despite the child’s refusal the father insisted and requested the maternal grandmother’s assistance in applying sunscreen;

   i)The father playing soccer with the child for “just under 10 minutes” but that following this the child returned to play on the father’s mobile telephone;

   j)The child “is always happy to see [Mr Carson] when he arrives. He is not distressed when [Ms Leary] leaves but is reassured by my presence”.

   k)There has not been a situation where the father has experienced challenging childhood behaviour such as tantrums.

Parental Responsibility

1. Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[10] Section 61DA provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order.

   [10] See note 1 s61C

2. As noted earlier, in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[11] The presumption is also rebutted where there are reasonable grounds to believe that a parent has engaged in family violence.

   [11] s61DA(3)

3. The mother submits to the Court that an order for sole parental responsibility is appropriate.

4. The Court having heard from the parties, and taking into consideration all of the evidence, finds that the presumption of equal shared parental responsibility has been rebutted and that an order for sole parental responsibility at this stage of the proceedings is appropriate.  

5. It is noted for the benefit of the parties that in making a final parenting order in relation to a child, the Court must disregard the allocation of parental responsibility made in the interim order.[12]

   [12] s61DB

Section 60CC Considerations

1. The protection of the child from harm is an important matter for the Court’s consideration when weighing up the primary considerations. Indeed, the Court must prioritise the need to protect the child from harm as against the benefit of the child having a meaningful relationship with the parents.

2. Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made. In doing so the Court must weigh up any risk of harm to the child, all the while considering what might be in the child’s best interest. It is the existence and magnitude of the risk of harm that is a fundamental matter to be taken into account in deciding what orders are to be made in respect of what time the child is to spend with the father.[13]

   [13] M & M (1988) 166 CLR 69 at 77

3. Both parents recognise that there is a benefit to the child of having a meaningful relationship with the father. However, in light of the concerns raised in the mother’s evidence, supported to an extent by the father’s evidence, the Court, at this point in time and because of the limited and untested evidence before it, finds that it is in the child’s best interest to act cautiously with respect to the identified risks.

4. On the one hand, the child is only three years old and as such highly dependent on others for his care and welfare, he is highly vulnerable. Even a slight lapse of concentration or attention with such small children can lead to a realisation of a significant risk. On the other hand, the father has a great amount to offer to the child, he is a loving parent.

5. The Court has to weigh up the benefit of the relationship against the identified risks and come to a conclusion as to whether restricting the child’s relationship with the father by limiting time and supervising such time is on balance in the child’s best interest. 

6. The mother has been the primary carer of the child since his birth. She is in all likelihood his primary attachment figure. The child’s views of course, are not only unknown, but given his age would not be given any weight (even were they able to be ascertained). The child’s interaction with his parents is not a matter which is the subject of any expert evidence.

7. The father’s relationship with the child is still somewhat untested. This does not, of itself, mean that spending time with the father will impact negatively upon the child. It is however, a relevant matter in terms of any risks to the child, particularly noting all of the other matters raised in the mother’s evidence.

8. The father lives alone, although there is evidence that he was leasing out space in his apartment as a bed-and-breakfast facility. He says that he would not continue with this practice if the child was to spend time with him at his home. The father lives a few floors up from ground level. His apartment does not have a lock on the sliding door to the balcony – another matter which the father concedes he will need to attend to. He has a number of physical restrictions, which may or may not impact upon his ability to look after a little child.

9. Although there is evidence that the father continues to attend upon his treating practitioners in respect of the Attention Deficit Disorder, and that he continues to receive prescriptions for his medication, there is no expert evidence from the father’s treating specialist or any other relevant expert, who might be able to shed some light on whether the father is compliant with his treatment and medication. The report which forms part of Exhibit 2, albeit somewhat dated (23 March 2013), contains the following:

   [Mr Carson] reported that he has significant difficulty with attention and concentration, for example he reported that he is distracted at work by the ‘vibrations from loud trucks’, often ‘daydreams’, and consistently ‘forget wallet and keys’ and ‘lose track of conversations’. [Mr Carson] reports that these difficulties are significantly impacting on his work performance and quality of life.

   …

   [Mr Carson] reported that when he drives he forgets where he is driving and ‘just continues to drive straight’. [Mr Carson] reported that over time he has developed strategies to assist him with remembering things…

10. On review with the psychiatrist, in November 2013, the father reported that he is adjusting to his medication. The doctor reported that “There has been a marked improvement to his attention, concentration, working memory and in his ability to process information.”

11. The notes of the continued consultation with the psychiatrist, particularly most recent to the interim hearing as at 18 January 2017, indicate as follows:

    a)The father describes that he has been well, that he has some problems with his back flexibility and that he is not working.

    b)He describes the mother as ‘controlling’ and a ‘bully’ and that she won’t cooperate with him.

    c)If the father forgets to take his medication for 2 out of 7 days, it is harder for him to concentrate, to read and to process information.

12. The father’s diagnosed condition is a concern in respect of the father’s capacity to adequately supervise the child. Even when his time with the child was supervised by the mother and the maternal grandmother, there were times when he appeared not to have demonstrated an appropriate level of capacity to supervise adequately and sufficiently a small child. 

13. While a difficult balancing exercise, the Court finds that a likely outcome or impact on a three year old child of inadequate or insufficient supervision is an unacceptable risk of harm, warranting a cautious approach and consequently an order for time between the father and the child to be supervised.  This does not mean that upon further and appropriate evidence coming before the Court that the Court would not form a different view in respect of the father’s capacity. This is only a limited finding.

14. These are only interim orders, and it is likely that if the matter proceeds to final hearing, there may be a time period of at least some twelve months before the matter is decided on a final basis, much depending on whether a Family Report is to be ordered.

15. The length of time that the matter will take to reach readiness for a final hearing is also something which the Court has considered in making these interim orders. At this point of the proceedings, the Court would be assisted by the appointment of an independent children’s lawyer, and for that reason such an appointment is made.

16. The absence of discussion of any particular s 60CC factor above does not reflect any failure to consider it. Rather, it is reflective of the Court’s assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors which were specifically addressed. [14] It is also reflective of the Court’s assessment that the primary considerations in the instance of this matter are of such weight and significance that they are primarily determinative of the issue at the interim stage.

    [14] Banks & Banks (2015) FLC 93-637 at [52].

Conclusion

1. The parties both agree to the child’s name being placed on the Airport Watch List.

2. In all of the circumstances and for all of the reasons set out above, it is in the child’s best for orders to be made as set out at the forefront of these Reasons.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  7 July 2017