CLARK & SHERGOLD

[2012] FamCA 657

FAMILY COURT OF AUSTRALIA

CLARK & SHERGOLD [2012] FamCA 657

FAMILY LAW - CHILDREN – Interim contact orders – best interests of the child -  whether the difficulty of communicating and spending time with the father would substantially affect the children’s right to maintain personal relationships and contact with both parents on a regular basis - where the father filed an interim application for contact with the children – where the Court accepted the mother’s application that the case be dismissed - where the father’s feelings of hostility towards the mother posed a very real risk that should the children spend time with the father the mother’s parenting skills and mental wellbeing would deteriorate

The Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Clark

RESPONDENT: Ms Shergold

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 2675 Of 2008

DATE DELIVERED: 3 July 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 3 July 2012

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Rice More Gibson

INDEPENDENT CHILDREN’S LAWYER Legal Aid NSW

Orders

1. That the father’s Application in a Case filed 31 May 2012 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Clark v Shergold 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 NEWCASTLE

FILE NUMBER: (P)NCC 2675 of 2008

Mr Clark

Applicant

And

Ms Shergold

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is an interim application by Mr Clark (“the father”) for holiday time and communication by telephone and Skype with his children, J, will be aged 10 in a few days’ time, and M, aged 8. 

2. The Application in a Case filed on 31 May 2012 was supported by two affidavits, one of the father himself and one by Mr R, a friend who lives in a cottage on the father’s property.  Mr R speaks highly of the father as a father and a friend.

3. The mother filed a Response on 1 July 2012, effectively seeking that the father’s application be dismissed. She relied on her affidavit filed on

   
   

   9 September 2011.  Effectively, the application of the mother was to dismiss this application. 

4. The Independent Children’s Lawyer and the mother relied on the most recent family report by the family consultant, Mr C dated 9 March 2012.

Brief history

1. The parties are aged in their mid forties.  They met in about 1992 and began living together in May 1995.

2. They separated more than six years ago, in February 2006.  They were divorced in 2008. 

3. The father has a current partner, Ms G, and a son from that relationship, V, born in December 2009.  V is now two and a half.

4. Litigation between the parties began in November 2008.  There has already been a family report by a psychiatrist, Dr G, and three reports of varying lengths prepared by Mr C.

5. Final orders were made by consent between the parties on 29 March 2011.  Those orders provided that the mother have leave to move away from the New England area and establish a new residence for herself and the children.  The orders provided that she have sole parental responsibility for the children and contained detailed provision for the time that the children would spend with their father.

6. About four months later, in July 2011, there was an incident involving the breach of an Apprehended Violence Order (AVO) which led to the father being imprisoned for a time.  That incident has assumed significance since. 

7. On 15 September 2011, after an interim hearing, the consent orders of

   
   

   29 March 2011were suspended.  There has been no time between the father and the children since that suspension.  The mother has moved away, as she was permitted to do, from the New England area earlier than she would have otherwise occurred.

8. The evidence of the mother was that the incident in July and the subsequent events which unfolded have had a significant impact, both on her emotional health and her ability to be confident in parenting the children.  That will be a matter for analysis in the final hearing. 

9. The final hearing has been set down in the first week of December this year.  It is then that the issue of the future conduct of both the parties and their state of emotional and psychological health will no doubt be fully canvassed. 

The current interim proceedings

1. The current proceedings concern parenting arrangements between the date of these orders and the date of final hearing in December this year.

2. In assessing whether it is in the children’s best interest to have communication and spend time with their father, I am directed to consider the considerations set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act). The process is the same whether I am making final or interim parenting orders.

3. The primary considerations are located in s 60CC(2) of the Act. The first being the benefit of the children having a meaningful relationship with both parents and the second being, the need to protect the children from physical or psychological harm, the latter be given more weight.

4. There are also the additional considerations set out in s 60CC(3), which include any other matter the Court deems relevant (s 60CC (3)(m)) of the Act) .

5. Of particular relevance to the determination of this case is the practical difficulty the mother will face if the children are ordered to spend regular time with the father (see s 60CC(3)(e) of the Act).

6. Notably, in his final family report Mr C made the following recommendations in par 36:

   It is recommended that a Judicial decision be made regarding whether or not [the father] can be trusted to behave appropriately in the future towards [the mother]. If the Court is confident that he will, then [the father’s] proposals appear reasonable.  If the Court is not confident that he will, then [the mother’s] proposal appears reasonable.

7. The father, in his submissions, submitted that he was told by Mr C that there was no reason he could not see his children.  That is not what the report says.

8. The father’s focus in his submissions was on his good and loving relationship with his two children.  That does not appear to be seriously in dispute.  It is his attitude to the mother, exemplified by the events of July 2011, and displays of hostility and aggression towards her in his language that is of particular concern.

9. The risk is that the children will be exposed to that anger and hostility, and that the mother’s psychological wellbeing and parenting skills may deteriorate, as a result of the children spending time with the father, particularly in circumstances where they are obliged not to disclose where they are living and what school they are attending.

10. I accept the submission of the father that they are of an age, at almost 10 and eight, to have some say in the matter.  They have more than once expressed the view that they love their father and love spending time with him.  However, as I have stated previously, that is not in issue.

11. The father acknowledges what he described as “appalling behaviour” in July.  However, during the course of his submissions, he went on to make allegations about the mother, which he had not included in his affidavit material, in relation to drug dealing and an attempt by the mother to try to run him over.That submission, made without any supporting evidence, simply appeared as an attempt to criticise and damage the credit of the mother.

12. There is considerable affidavit material already present in the Court which has yet to be tendered into evidence.  There are certainly issues around the father’s attitude to the mother and the children’s exposure to that. 

13. The father is clearly enormously frustrated at not being able to spend time with his children.  However, the orders of March 2011 contemplated that the mother would have sole parental responsibility for the children.  That is the order that was made.  That represents an acknowledgement at that time that the mother was the one who would be providing the majority of care for the children and be ultimately responsible.

14. The risk that her parenting would be destabilised is a high one for the long-term welfare of the children.  The extent to which the mother’s ability to parent the children has been impacted will be a matter, no doubt, for expert evidence on her behalf. 

15. I note that the mother has made arrangements for the children to spend time with members of their extended paternal family on some occasions.  That, too, will be an issue in the final hearing, when paternal family members and perhaps maternal family members will be available to give evidence.

16. At this stage however, the evidence demonstrates the father continues to have a dismissive, even derisive attitude towards the mother.  This exemplifies the risk that the children will be adversely affected by, first, the complete lack of communication between their parents, and, second, by the father’s negative feeling towards the mother on display throughout Court today.

17. In those circumstances, I consider that it is not in the children’s best interests to spend time with their father prior to the final hearing and accordingly the father’s Application in a Case filed 31 May 2012 is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 3 July 2012.

Associate: 

Date:  9 August 2012