Chui and Manning

[2013] FamCA 940

FAMILY COURT OF AUSTRALIA

CHUI & MANNING [2013] FamCA 940

FAMILY LAW – CHILDREN – With whom the child spends time – Risk – Whether supervised contact is appropriate – ORDERS – Where there has been non-compliance with a previous order – Where a Registrar is appointed pursuant to s106A of the Family Law Act 1975 (Cth).

Family Law Act 1975 (Cth) s60CA, s60CC, s61DA, s65AA, s106A.

Cox & Pedrana (2013) 48 Fam LR 651.
Rice & Asplund (1978) 6 Fam LR 570;

APPLICANT: Mr Chui

RESPONDENT: Ms Manning

INDEPENDENT CHILDREN’S LAWYER: Gary Couper

FILE NUMBER: BRC 7938 of 2009

DATE DELIVERED: 4 December 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 28 November 2013

REPRESENTATION

FOR THE APPLICANT:	Mr Chui in person
FOR THE RESPONDENT:	Ms Manning in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Slade-Jones

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Couper Geysen – Family and Animal Law

Orders

IT IS ORDERED

1. That paragraphs 1(a), 1(b), 2, 8, and 18 of the Response to Initiating Application filed 28 October 2013 be dismissed.

IT IS ORDERED BY WAY OF FURTHER INTERIM ORDER

1. The child, B, born … 2009 (“the child”) spend time with the mother as agreed between the parties and, failing agreement, on a supervised basis at the C Town Contact Centre or other such Contact Centre (“the contact facility”).

2. That the time the child spends with the mother commence as soon as possible after the making of this Order.

3. That the parties attend and complete the intake processes of the contact facility within seven (7) days of this Order, and each party be responsible for the costs of their own intake process.

4. Subject to the availability of the contact facility, in the period between the date of this Order and the date on which the child commences Prep in 2014, the child’s time with the mother:

   (a)       occur on a weekly basis; and

   (b)       be for a duration of no less than two (2) hours; and

   (c)occur on a weekday or such other time that the contact facility can accommodate.

5. Subject to the availability of the contact facility, once the child commences Prep in 2014, the child’s time with the mother:

   (a)occur on no less than a fortnightly basis and, if possible, on a weekly basis;

   (b)       be for a duration of no less than two hours; and

   (c)       occur on a weekend day.

6. That the father be responsible for paying any costs levied by the contact facility in relation to each period of supervised time the child spends with the mother at the contact facility.

7. That, on a date between 17 February 2014 and 28 February 2014, as advised, the parties attend upon the Family Consultant for the preparation of an updated short issues report which is to include:

   (a)an assessment of the parties’ attitudes to the child spending time with the other parent;

   (b)as assessment of the nature of the relationships between each party and the child;

   (c)recommendations as to the future time between the child and the mother; and

   (d)any advice that the Family Consultant has for the Court pursuant to section 11E(1)(e)(i) of the Family Law Act 1975 (Cth).

8. That pursuant to s11F of the Family Law Act 1975 (Cth):

   (a)the mother attend at any appointment as notified by the Family Consultant;

   (b)the father attend at any appointment as notified by the Family Consultant;

   (c)each party arrange for the child to attend all appointments as notified by the Family Consultant.

9. The Independent Children’s Lawyer is granted leave to issue a subpoena directed to the C Town Contact Centre, or such facility the parties utilise for contact between the mother and the child, pursuant to these Orders.

10. That the Independent Children’s Lawyer have liberty to apply in relation to the implementation of this Order upon the giving of seven (7) days’ notice in writing.

11. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these Orders.

IT IS ORDERED

1. A Registrar of the Family Court of Australia at Brisbane is appointed pursuant to s 106A of the Act to sign the Form 4C change of Name (Child under 18 years) Application, and to do all acts and things necessary to ensure that such application is validly executed on behalf of the mother.

IT IS DIRECTED

1. That the matter be adjourned for further hearing to 10.00 am on 18 March 2014 before the Honourable Justice Hogan in the Family Court at Brisbane.

2. That the parties file and serve any Amended Application or Response containing particulars of the orders sought and any further affidavits, including any affidavit from any witness intended to be relied on at the hearing, by 4.00 pm on 10 March 2014.

3. That the parties have liberty to file and serve, by 4.00 pm on 12 March 2014, any affidavit material strictly in reply to any affidavit filed and served in accordance with clause (15) of this Order.

4. That by 4.00 pm on Friday 14 March 2014 each party file and serve a list of documents upon which they intend to rely at the further hearing commencing 18 March 2014.

NOTATION

A.The Court recognises the benefit to the child of having the opportunity to spend time with his half-sister D, born … 2002, and requests that the contact facility give consideration to permitting this child to attend with the mother during any supervised time facilitated by the contact facility.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chui & Manning has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7938 of 2009

Mr Chui

Applicant

And

Ms Manning

Respondent

REASONS FOR JUDGMENT

1. On 21 June 2013 I ordered, by way of final parenting Order, that the child B, born in 2009 (“the child”) live with the father. This effected a significant change to his previous living arrangements.

2. I also ordered, pursuant to s 65L of the Family Law Act 1975 (Cth) that the child’s time with the mother be facilitated by a Family Consultant, that a report be prepared by that Consultant and that the matter return before me for a consideration of the time that it is in the child’s best interests that he spend with the mother.

3. I do not intend to repeat the findings outlined in the Reasons for Judgment delivered on 21 June 2013 but, clearly, they remain relevant to a consideration of this issue.

4. On 28 October 2013 the mother filed a Response to Initiating Application (“the Response”) in which she sought, amongst other things, an order that the child return to live primarily with her. Nothing in the evidence establishes that there is, or has been, a sufficient change of circumstance so as to justify embarking on a hearing of this application[1] and, consequently, in so far as it seeks such orders, the Response will be dismissed.

   [1]  Rice & Asplund (1978) 6 Fam LR 570; Miller & Harrington [2008] FamCAFC 150; Marsden & Winch (2009) 42 Fam LR 1; DL & W (2012) FLC 93-496.

The Competing Proposals

1. At this stage, the father seeks that the child’s time with the mother occur on a supervised basis at the C Town Contact Centre. This position is supported by the Independent Children’s Lawyer. It was submitted that such supervision is necessary to deal with the asserted risk that, given the relative recency of the significant change to his primary care arrangements and the impact of this upon the mother and her family, the mother may fail to return the child at the conclusion of his time with her.

2. The mother seeks that the child spend time with her in the manner recommended by the Family Consultant in a Report dated 26 November 2013: Exhibit 6.

Principles

1. In these proceedings, being proceedings for a parenting order (s 64B of the Act) in relation to the child, I may, subject to s 61DA (presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Division 6 of Part VII of the Family Law Act (1975) (Cth) (“the Act”), make such parenting order as I think proper: s 65D of the Act. I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects: s 60B of the Act. In deciding whether to make a parenting order, I must regard the child’s best interests as the paramount consideration: s 60CA and s 65AA of the Act.

2. I have already made a final Order that the father have sole parental responsibility for the major long term issues for the child. For the reasons which underpinned that decision, the presumption that it is in the child’s best interests that his parents have equal shared parental responsibility for him does not apply and “the power to make parenting orders pursuant to s 65D of the Act is ‘at large’ (albeit subject always to the best interests of [the child] being the paramount consideration – see s 60CA; s 65AA).”[2]

   [2] Cox & Pedrana (2013) 48 Fam LR 651, [19].

3. I must determine that which is in the child’s best interests, in terms of the time he is to spend with the mother until the preparation of a further report by a Family Consultant, having regard to the considerations set out in s 60CC of the Act.

4. I previously found that it is more likely than not that the child has a meaningful relationship with his mother and would be attached to her. I consider, at this time, that it is in his best interests that he be afforded an opportunity to continue to develop his relationship with his mother and his half siblings who live with her.

5. I accept the evidence given by the Family Consultant to the effect that the consequences for the child of a failure by the mother to return him to the father’s primary care at the conclusion of time would be that he would be exposed to unnecessary instability and confusion. Such a result is not in any way beneficial to him.

6. I also accept the evidence of the Family Consultant that the mother’s comments to the child, as outlined in paragraph 16 of the Report, did not occur in the context of the child asking a question of the mother about when or whether he would return home. Rather, I find it more likely than not that the comment was simply made by the mother during her interaction with the child.

7. I accept that, taken alone, the comment particularised in paragraph 16 of the Report is somewhat equivocal in that it is also consistent with the mother simply informing the child that he would have an opportunity to spend time at her home (previously shared by him) rather than amounting to an expression of intent to retain the child in her care.

8. However, the comment must also be seen in the context of the mother’s Response to Initiating Application, filed 28 October 2013, wherein she sought an order for the child to return to her primary care and her repeated comments that the child had been “taken” from her.

9. I have regard to the findings previously made by me and expressed in paragraphs 124 and 125 of the Reasons for Judgment delivered 21 June 2013. Those occasions on which the mother failed to provide the child to spend time with the father pursuant to the terms of previous Court Orders demonstrate a willingness to fail to comply with such Orders.

10. I accept the submission of Counsel for the Independent Children’s Lawyer that, at present, things remain “raw” for the mother. As Counsel was at pains to make clear, this is completely understandable and should not be regarded in any way as a criticism of the mother’s reaction to the decision made in June 2013.

11. I consider it more likely than not that, at this time, the mother would significantly struggle to return the child to the father at the conclusion of time should he (the child) in any way, through any conceivable comment, provide a basis for her to conclude that he did not want to leave her care. Such prospect is, given his age, clearly within contemplation. I also consider it more likely than not that, at present, the mother may struggle to contain the expression of her desire that the child return primarily to her care.

12. Given the child’s transition to the father’s primary care in late June of this year and the adjustments likely to have attended this, it would be detrimental for the child to be exposed to unnecessary confusion and instability.

13. The combination of the matters set out above leads me to conclude, at this stage, that the risk that the mother might fail to return the child to the father’s care is such that supervision of time is indicated.  A regime of supervised time between the child and the mother will provide them with the opportunity to continue to develop a meaningful relationship, ensure that the child is returned to the father’s primary care at the conclusion of time and protect him from exposure to any comments by the mother which may have the potential to undermine his stability and understanding that he will continue to live primarily with the father.

14. I consider that this regime, intended to apply for the next three (3) to four (4) months before review by a Family Consultant, will also afford the mother the opportunity of additional time within which to come to terms with the fact that the child’s changed primary living arrangements are intended to continue into the future.

15. I accept the mother’s submission that it would be beneficial to the child if he was able to spend time with his half-sister D. The Order I make will contain a request that the Contact Centre accommodate such opportunity if it is at all possible.

16. I accept the mother’s evidence that she has a motor vehicle and will be able to attend at the Contact Centre.

17. I note that, on previous occasions, a Contact Centre utilised by the parties withdrew its services because the mother failed to pay the fees for supervised time. Counsel for the Independent Children’s Lawyer submitted that, as this previously used Contact Centre and the C Town Contact Centre may be inter-related, there may be difficulties arising out of the existence of this debt.

18. It is imperative that the non-payment of fees does not prevent the child having an opportunity to develop and maintain a relationship with the mother.  This risk remains if the mother is required to contribute to half of the costs of each visit.

19. One of the most important obligations imposed upon a parent with the primary care of any child is to support, in both an emotional and practical way, that child’s relationship with the other parent. Sometimes, as is presently the case here, the performance of this primary and critical obligation requires an “unequal” financial contribution. Whilst I appreciate that, following the implementation of the Orders made in June 2013, the father is currently engaged in the full-time parenting of the child, I consider it more likely than not that he is better able, alone or with the assistance of extended family, to meet any unpaid costs which may prevent the child from exercising the right to have an opportunity to develop and maintain a relationship with the mother in a manner that protects him from the risk of exposure to instability and uncertainty.

20. I am confident, given my findings that the father has been consistently focused upon ensuring that the child is afforded every reasonable beneficial opportunity, that he will continue to demonstrate a responsible attitude to the obligations of parenthood and will support the child having the opportunity referred to above. I emphasise that my determination that the father bear the costs of the supervised time at the Contact Centre between the child and the mother is an interim decision which may well need further consideration following the preparation of the Family Consultant’s Report.

21. Clause 13 of the Order made on 21 June 2013 provided that the child’s name be changed. The mother has not challenged the father’s evidence that she has refused to sign the documents necessary to give effect to this change. In such circumstances I am persuaded that it is appropriate that an Order be made pursuant to s 106A of the Act to facilitate the implementation of Clause 13 of the June 2013 Order.

22. I order accordingly.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 4 December 2013.

Associate:                 

Date:    4 December 2013