COWELL & COX

[2015] FCCA 1955

FEDERAL CIRCUIT COURT OF AUSTRALIA

COWELL & COX [2015] FCCA 1955

Catchwords:
FAMILY LAW – Children – parenting orders – parental responsibility – best interests of the child – where respondent did not attend Court – where father seeks to spend regular time with the parties’ children – two girls aged 5 years and 4 years.

PRACTICE AND PROCEDURE – Orders – consent orders – whether orders can be made by consent where respondent not present at court – where respondent told applicant she either consented or did not oppose the orders sought – where no draft consent order signed by respondent – orders not made as consent orders.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Federal Circuit Court Rules 2001, rr.13.03C, 13.04, 16.05

Applicant: MR COWELL

Respondent: MS COX

File Number: SYC 5969 of 2014

Judgment of: Judge Scarlett

Hearing date: 15 July 2015

Date of Last Submission: 15 July 2015

Delivered at: Sydney

Delivered on: 15 July 2015

REPRESENTATION

Solicitor for the Applicant: Ms Anderson

Solicitors for the Applicant: Aboriginal Legal Service

Respondent: No appearance

ORDERS

1. The Applicant is granted leave to proceed ex parte.

2. All previous parenting Orders are discharged.

3. The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2010.

4. The children X and Y are to live with the Mother.

5. The children X and Y are to spend time with the Father as agreed between the parents and failing agreement as follows:

   (a)For the first three (3) weekends in a four (4) week cycle commencing the first Saturday following the making of these Orders from 9:00 am on Saturday until 8:30 am on Monday except that if the Monday is a public holiday the father’s time is extended to conclude on Tuesday at 8:30 am;

   (b)Notwithstanding any other order on special occasions as follows:

   (i)On the weekend on which Father’s Day falls each year from 9:00 am on Saturday until 8:30 am on Monday;

   (ii)For not less than four (4) hours on each of the children’s birthdays;

   (iii)On the Father’s birthday, from the conclusion of school until 8:00 pm if on a school day or from 9:00 am until 6:00 pm if the birthday falls on a non-school day;

   (iv)In 2015 from midday on Christmas Eve until 2:00 pm on Christmas Day and continuing each alternate year thereafter for the same period;

   (v)In 2016 from 2:00 pm on Christmas Day until midday on Boxing Day and continuing each alternate year thereafter for the same period;

   (c)Notwithstanding any other Order, the Mother is to spend time with the children on special occasions as follows:

   (i)On the weekend on which Mothers’ Day falls each year from 9:00 am on Saturday until 8:30 am on Monday;

   (ii)For not less than four (4) hours on each of the children’s birthdays if she does not otherwise spend time with the children on this day;

   (iii)In 2016 from midday on Christmas eve until 2:00 pm on Christmas Day and continuing each alternate year thereafter for the same period; and

   (iv)In 2015 from 2:00 pm on Christmas Day until midday on Boxing Day and continuing each alternate year thereafter for the same period.

6. In the event that the child Y becomes uncontrollably distressed or expresses a strong desire to return to the Mother when in the Father’s care the Father will contact the Mother immediately and facilitate the return of Y to the Mother’s care.

7. For the purposes of changeover where the children go from the care of one parent to the care of the other:

   (a)changeovers on Monday (or Tuesday if the Monday is a public holiday) during the NSW school term will occur at the school that X attends unless agreed otherwise between the parties in writing; and

   (b)except where otherwise provided in these Orders changeover will occur at the residence of the parent whose care the children are leaving.

8. In the event that the Mother proposes to suspend time with the children for the purpose of a holiday with the children on a long weekend, the Mother must:

   (a)provide the Father with not less than fourteen (14) days’ notice by text message with such notice to include the proposed date of departure, the date of return, the destination and contact details for the children; and

   (b)ensure that the Father has make up time with the children equivalent to the time that the Father was unable to spend time with the children due to the suspension of his time.

9. The Father is authorised to collect the children from any school and/or childcare which they attend and for this purpose the Mother shall do all acts and things necessary to authorise the Father to collect the children from any school or childcare which they may attend forthwith upon their enrolment.

10. This Order authorises Dr B and any medical practitioner, psychologist, psychiatrist or counsellor treating the Mother to notify the Father of any adverse change in her mental health and provide such information as he may request from time to time regarding her compliance with the recommendations of her treating medical practitioner, psychologist, psychiatrist or counsellor.

11. The Mother must attend all scheduled appointments and comply with all reasonable recommendations of her treating medical practitioner, psychologists, psychiatrist or counsellor.

12. The Father is authorised to provide a copy of the Family Report dated 1 May 2015 prepared by Ms J to Dr B or to any other medical practitioner, psychologist, psychiatrist or counsellor treating the Mother.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5969 of 2014

MR COWELL

Applicant

And

MS COX

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application by the Father of two children, X, born on (omitted) 2009, and Y, born on (omitted) 2010.  He is seeking orders that the children should live with the Mother and spend time with him on three weekends in a four week cycle, on special days, such as Father’s Day, birthdays, including his own, Christmas Day, Christmas Eve.  He also proposes that there should be special occasions when the children should spend time with their mother. 

2. There is a specific provision in respect of the younger child, Y, that if she becomes uncontrollably distressed, or expresses a strong desire to return to the Mother when in the Father’s care, the Father will contact the Mother immediately and facilitate the child’s return to the Mother’s care. 

3. The Father proposes changeovers at the school attended by the elder child, X, and otherwise at the residence whose care the children are leaving.  There are provisions proposed whereby the Mother’s treating medical practitioner, psychologist, psychiatrist or counsellor should notify the Father of any adverse changes of the Mother’s mental health. 

4. There is a requirement on the Mother to attend scheduled appointments of her treating medical practitioner, psychologist, psychiatrist or counsellor.  The Father is authorised to provide copies of the family report of 1^st May 2015, prepared by a Regulation 7 family consultant, to Dr B, or any other medical practitioner, psychologist, psychiatrist or counsellor treating the Mother.

Background 

1. The father was born on (omitted) 1987 and the mother was born (omitted) 1991. The parties commenced living together in 2008 and separated in 2010.

2. There are two children of the relationship, X, who was born on (omitted) 2009, and Y, who was born on (omitted) 2010. At the time these proceedings commenced, in September 2014, the children were both living with their maternal grandfather, although that no longer appears to be the case.

Procedural History

1. The father commenced proceedings against both the mother and the maternal grandfather on 24 September 2014. The application was returnable on 26 September 2014, on which date the father was represented by his solicitor, Ms Anderson, the mother appeared in person and the maternal grandfather attended by telephone. He Honour Judge Walker made some interim parenting orders and directed that the parties attend a Child Dispute Conference with a Family Consultant, which they did on 31 October 2014.

2. On 10 November Judge Walker made further interim parenting orders, discharged the grandfather as a Respondent and ordered a Family Report. The Report was completed by Regulation 7 Family Consultant Ms J on 1 May 2015 and shortly afterwards released to the parties.

3. I have had the opportunity of reading the Family Report, which is very helpful.  It seems to me that these proposed orders have been prepared so as to conform to the recommendations made by the Family Consultant.

Applications for parenting orders 

1. These are parenting orders that are being sought.  When a court makes parenting orders, there are a number of matters in Part VII of the Family Law Act 1975 (Cth) to which the court must have regard, being:

   a)Section 60B, setting out the objects and principles of Part VII;

   b)Section 60CA, laying down that the court must regard the best interest of the child (or in this case, children) as the paramount consideration; and

   c)Section 60CC, which in subsections (2) and (3) sets out primary considerations and additional considerations to assist the court in determining what is in the children’s best interests.

2. There is of course a balance between allowing the children to have a meaningful relationship with each parent and the need to protect the children from physical or psychological harm caused from being subjected to, or exposed to, abuse, neglect or family violence. 

3. There are additional considerations in subsection 60CC(3), not all of which are necessarily relevant in this case, although I have considered all those that are. 

4. I note that the Family Consultant did interview the older child, X, and set out her views, and I note that the younger child, Y, did not wish to be observed alone, but was accompanied by X.  The Family Consultant observed the children in the company of both parents. 

5. The court must consider the presumption in section 61DA of the Family Law Act 1975, that it is in the best interests of children for their parents to have equal shared parental responsibility for them, although there are of course circumstances involving abuse or family violence where the presumption does not apply, or where it may be the case that there is evidence that satisfies the court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.  This is not such a case. 

6. It is sought that the parties should have equal shared parental responsibility for the children, and it seems to me to be an appropriate order. 

Substantial and Significant time

1. The court must consider the matters under section 65DAA of the Family Law Act, where the court must consider whether it is both in the best interests of children and reasonably practicable for the children to spend equal time with each parent, or, failing that, substantial and significant time. 

2. This is not an equal time case.  The orders that are proposed, which have been meticulously drafted with a great deal of care, most definitely provide for substantial and significant time with the Father.  In my view, I consider these orders are in the best interests of the children.

Evidence and Submissions

1. The father attended court with his solicitor, Ms Anderson. The mother did not attend Court, although the father gave oral evidence of having spoken to her on the telephone and explained the orders that were to be sought. He said that the mother told him in no uncertain terms that she had no intention of attending Court. The father relied on his affidavits of:

   a)23 September 2014;

   b)15 October 2014; and

   c)8 July 2015. 

2. He also relied on an Amended Application together with an affidavit of Ms K deposing that she had forwarded to the mother:

   a)a letter advising the time and date of the hearing; and

   b)a sealed copy of the Amended Application.

3. The mother did not file a Response or any affidavit.

Orders that are in the best interest of the children

1. I have the benefit of a memorandum, being a minute of the orders sought by the father.  That minute will be marked as exhibit 1.  And whilst I understand that the Mother, from the Father’s evidence, has told the Father that she either consents to or does not object to the orders sought, I am not of the view that I can make these as consent orders. 

2. I do, however, make these Orders as proposed because I am satisfied with the Father’s evidence, which I have heard and which I have read.  I will make orders accordingly 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  17 July 2015