Chranley and Smart (No. 4)

[2007] FamCA 340

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART (NO. 4) [2007] FamCA 340

FAMILY LAW - CHILDREN - With whom a child spends time - Children's wishes

Family Law Act 1975 (Cth) Section 60B and Section 60CC

Goode v Goode (2006) FLC 93-286

APPLICANT: Mr Chranley

RESPONDENT: Ms Smart

INDEPENDENT CHILDREN’S LAWYER: Graeme Hemsley

FILE NUMBER: ADF 4779 of 2000

DATE DELIVERED: 20 April 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 20 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Self-Represented

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: Self-Represented

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Bowler

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Graeme Hemsley

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as chranley & smart no 4

Orders

1. Father’s Form 2 Application filed on the 27 February 2007 is dismissed.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 4779  of 2000

Mr Chranley

Applicant

And

Ms Smart

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This an application of the father which is brought by form 2 application, document 202, filed on 27 February 2007 in which the father seeks in paragraph 2, "I seek contact from 5 pm Friday until 5 pm Sunday every second weekend"; in paragraph 3, "I seek contact of half the school holidays."

2. This application in a case is opposed by the mother when she has filed her response form 2A.  She seeks that the current orders in relation to the father spending time with the child continue.

3. The mother and father appear before me unrepresented.  The Independent Children’s Lawyer appears through Counsel Mr Bowler before me today.

4. I have read the documents on the file relevant to this application, being the documents recently filed, and other documents to which I have been referred.

5. The application concerns the best interests of one of the children of the parties, a daughter, who was born in March 1997 and is therefore aged 10.  The application has to be seen in the context of the proceedings in this court, which have been on foot for a considerable period of time.

6. In support of his application the father relies upon his affidavit, document 203, and another affidavit filed more recently, document 217.  I have also heard lengthy oral submissions from the father this morning which, to a large extent, repeats much of the material in the affidavits but also highlights other material that he puts before the court orally.  As indicated, the mother opposes the variations sought by the father.

7. The Family Law Act provisions in relation to children have been significantly amended by the Family Law Amendment (Shared Parental Responsibility) Act of 2006. The proceedings that come before me today make it necessary for me to give full consideration to the issues in this matter, bearing in mind the significant amendments to the Act. In particular I refer to the Full Court decision in the matter of Goode v Goode (2006) FLC 93‑286 in which the Full Court dealt with matters concerning the 2006 amendments and their application to the interim proceedings. I apply the principles set out in the Full Court decision of Goode v Goode (Supra) and the provisions of the amended Act concerning children.

8. I am satisfied on the material before me that the presumption that each parent should have equal shared parental responsibility does not apply in these interim proceedings because it would not be appropriate in these particular circumstances for it to apply.  The ongoing dispute between the parties and the background to that dispute, and the lengthy ongoing proceedings, make it inappropriate to apply the presumption in these interim proceedings.

9. I turn to consider whether in any event it would be in the child's best interest and reasonably practical for the child to spend either equal time or substantial and significant time with each parent and to determine that, if that is not appropriate, what is in the child's best interests in relation to the application for the father to spend time with the child.

10. The principles of the Act make it quite clear that the matters which I have to consider are those set out in section 60B and section 60CC.  In that regard the father proposes that he spend time with the child each alternate weekend from 5 pm Friday until 5 pm Sunday and half of the school holidays.  The mother proposes that the father continue to spend time with the child in accordance with the existing interim orders, namely the order of 16 August 2006, and the orders of 18 November 2004, being the consent amendment to the orders made on 5 October 2004 which currently provide for him to have telephone contact and for him to spend time with the child each alternate Saturday from 11.00 am until 7.00 pm.

11. The difficulty in this matter is to identify the uncontested relevant facts.  It is not disputed that the child has been residing in the care of the mother for many years now whilst the father has for many years been seeking increased time that he spend with the child (and in earlier proceedings in relation to the other daughter of the parties, J).

12. The material before the court is the subject of considerable dispute in relation to many other matters. 

13. The section 60CC factors which I am obliged to take into account significantly refer to the primary considerations as the benefit to the child of having a meaningful relationship with both 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".  Section 60CC(3) sets out the additional considerations, one of which, subsection (a), is "any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views".

1. Similarly, the provisions of that subsection refer to "the nature of the relationship of the child with each of the child's parents and other persons" and "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".  Subsection (d) refers to "the likely effect of any changes in the child's circumstances".

2. The other relevant factors, in my view, are the capacity of each of the child's parents "to provide for the needs of the child, including emotional and intellectual needs" and "the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents".

3. In this matter there are substantial issues to be determined at the trial, which include the capacity of the father to provide for the child's emotional needs, the capacity of the mother to support an ongoing relationship between the father and the child and, significantly, the wishes of the child and the basis of those wishes.

4. I am satisfied that in this particular matter, using those criteria, it is not in the child’s best interest to spend either equal or substantial or significant time on the basis of an interim order with the father.  The matters which influence me in that regard are, in particular, the reference to the last reported interview of the child by Dr M in his report of 25 January 2005.  For the purposes of that report Dr M interviewed the parties and the children S and J.  The interviews with the child S took place in January 2005.

5. I take into account the matters referred to by Dr M in his summary of interview with the child (which begins on page 5 of his report and continues through to page 7).  In particular, the last paragraph of that section says:

   “In discussing contact with her father, [the child] again mentioned that her father's behaviour can sometimes make her feel uncomfortable and even a bit scared, and felt that, although she wanted to continue seeing her father every second weekend, she didn't want to stay with him overnight.  She added that she felt safe with handover being at the [S] police station and it was her preference that contact visits be supervised, mentioning a friend of her father who she trusted called [D].”

6. The report of Dr M concluded on page 9 with certain recommendations, and continues on page 10, where he repeats that:

   “[The child] was clear that she wished to continue seeing her father every second weekend but she didn't want to stay with him overnight.”

7. Dr M then concludes:

   “On the basis of my interviews with the above, it is my recommendation that [the other daughter J’s] wish relating to contact with her father be respected.”

8. In paragraph 7 on that page he concludes that:

   “[The child] reported that contact with her father still provided her with positive experiences, thus she wished to continue seeing her father, but with a number of provisions.”

9. He concludes:

   “It is my opinion that, in order to safeguard her emotional wellbeing, [the child’s] wishes relating to contact with her father also be respected.”

10. Orders have been made by the court for an update of the family assessment by Dr M.  I am informed from the bar table today by counsel for the Independent Children’s Lawyer that he has recently met with S, who has given him instructions that she does not wish to stay overnight with her father.  I am also informed from the bar table that the child was again interviewed by Dr M yesterday and that the report to issue from Dr M will indicate that the child does not want to change the existing arrangements.

11. The child is now 10.  I take into account the report of Dr M where he placed some emphasis upon the child’s views and wishes.  In this difficult matter it is difficult to do other than rely upon the facts which can be described to be more reliable rather than uncontested.  (In this matter it appears that almost every factor is a contested one).

12. In view of the principles set out in Goode v Goode (Supra) and the provisions of the Family Law Act, and placing emphasis upon the child’s wishes, I do not propose to vary the order that the child spend time with her father pending the final hearing of this matter.

13. I interrupt to say the father said something which I did not hear and has now left the room.  The father now returns to the courtroom.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  24 April 2007