CRESSWELL & CONROY
[2017] FCCA 912
•9 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRESSWELL & CONROY | [2017] FCCA 912 |
| Catchwords: FAMILY LAW – Interim Parenting – three year old child – limited time with father since separation – father is a (occupation omitted) and has a moving roster – what time child should spend with father. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61C, 61DA, 62G, 65DAA |
| Cases cited: Goode v Goode (2007) 36 FamLR 422 Slater & Light [2011] FamCAFC 1 |
| Applicant: | MS CRESSWELL |
| Respondent: | MR CONROY |
| File Number: | PAC 4677 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 31 March 2017 |
| Date of Last Submission: | 31 March 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 9 May 2017 |
REPRESENTATION
| Appearing for the Applicant: | Ms Smythe |
| Solicitors for the Applicant: | Armstrong Legal |
| Counsel for the Respondent: | Ms Breeze |
| Solicitors for the Respondent: | Fife Legal |
PENDING FURTHER ORDER:
That X born (omitted) 2014 shall live with the mother.
That X shall spend time with the father as follows:
(a)Until 1 July 2017, on each of the father’s rostered days off from 10am to 4pm;
(b)Thereafter and until 1 September 2017 on each of the father’s rostered days off from 9am to 5pm;
(c)Thereafter on each of the father’s rostered days off from 9am to 5pm, except that the time shall be extended to commence at 9am and conclude at 5pm on the following day:
(i)On the first weekend every month the father has two consecutive rostered days off; and
(ii)On any one other occasion when the father has two consecutive days off per month.
(d)During periods when the father is on annual leave:
(i)From 9am on 28 November 2017 to 6pm on 1 December 2017; and
(ii)From 9am on 15 January 2018 to 6pm on 21 January 2018.
A reference to the father’s rostered day off is a reference to the rostered days off allocated to the father in the father’s employer’s monthly rostered (occupation omitted) schedule.
That for the purposes of sub-paragraphs (2)(a) and (2)(b) above, the father shall provide to the mother notice of his rostered days off within 48 hours of the father receiving notification of his monthly roster. It is sufficient compliance with this Order for the father to provide to the mother a list of dates and days on which the dates fall on.
That for the purpose of sub-paragraph (2)(b), the father shall nominate the period referred to in (2)(b)(ii) at the same time as notifying the mother of his rostered days off in accordance with paragraph (3) above.
That changeover shall occur at (omitted) McDonalds’s.
Notwithstanding any other order, the child shall spend time with the mother on Christmas Day from 9am to 2pm.
Notwithstanding any other order, the child shall spend time with the father on Christmas Day from 3pm to 8pm, provided the father is not working on that day.
THE COURT FURTHER ORDERS THAT:
Pursuant to section 62G(2) of the Family Law Act1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report.
The Family Report to deal with the following matters:
(a)Any views expressed by the child the subject of parenting orders sought in this case, provided that the child shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the child with each of the child’s parents and with significant other persons.
(c)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.
(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child has been living.
(e)The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)The capacity of each parent, or another person, to provide for the needs of the child, including emotional and intellectual needs.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other children and of either of the child’s parents and any other characteristics of the child that the reporter thinks are relevant.
(h)Each parent’s attitude to the child and to the responsibilities of parenthood.
(i)Any family violence involving the child or a member of the child’s family.
(j)Such other issues as the Family Consultant considers relevant.
The parties shall attend all appointments with the Family Consultant and shall ensure the subject child attend all appointments with the Family Consultant, as requested by the Family Consultant
The Family Consultant may inspect the Court file.
Upon the report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:
(a)A Children’s Court;
(b)A child protection authority;
(c)A State or Territory Legal Aid Authority; and
(d)A convener of any legal dispute resolution conference.
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
The matter is to be listed on a date to be advised following the release of the Family Report.
IT IS NOTED that publication of this judgment under the pseudonym Cresswell & Conroy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4677 of 2016
| MS CRESSWELL |
Applicant
And
| MR CONROY |
Respondent
REASONS FOR JUDGMENT
Introduction
These are the Reasons for Judgment in relation to interim parenting proceedings concerning X born (omitted) 2014.
The parties to the proceedings are the Applicant mother Ms Cresswell and the Respondent father Mr Conroy.
The proceedings were commenced by way of Initiating Application filed by the Applicant on 4 October 2016.
On 29 November 2016 the Court made Orders on a without admissions basis by consent as follows:
1. The child X spend time with the father on the following dates:
a. On Wednesday 30.11.16 from 1pm to 3pm
b. On Saturday 10.12.16 from 10am to 12pm
c. Thereafter twice weekly on the days on which the father is rostered off for a period of two hours as agreed between the parties and failing agreement from 10am to 12pm
d. The first 8 visits shall be supervised without admissions by the father by Ms O.
2. The father will notify the mother of his rostered days off forthwith after receiving them noting that the father has 2 rostered days off per week and the mother will ensure that X is available on the rostered days off.
3. Both parties will forthwith enrol in and complete at the first available opportunity a Post Separation Parenting Course and produce evidence of the same.
4. For the purposes of changeover the supervisor will effect changeover for the first 8 visits and thereafter the father’s nominee will effect changeover, together with the father.
Noting that the mother has requested that the father’s nominee not be the paternal grandfather and noting that should the father have more than 2 rostered days off in any week, the mother nominates the 2 rostered days.
The Court further ordered the parties to attend a Child Dispute Conference on 16 March 2017 and listed the matter for Interim Hearing on 31 March 2017.
The parties attended the Child Dispute Conference on 16 March 2017 as ordered by the Court with a memorandum being prepared by Family Consultant Ms F dated 22 March 2017.
Competing Proposals
The interim orders sought by the Applicant are contained in the Minute of Order dated 31 March 2017 being:
1. That the child X (“the child”) live with the mother.
2. That from 10 April 2017 the child shall spend time with his father for 3 hours on Wednesday each week and each alternate Sunday from 10am till 1pm.
3. That from 10 August 2017, the child shall spend time with his father from 10am till 4pm on Wednesday in each week and each alternate Sunday.
4. That from 10 December 2017, the child shall spend time with his father each Wednesday and each alternate Saturday and Sunday from 10am till 4pm.
5. That from the child commencing school, he spend time with his father each Wednesday evening each week and each alternate weekend from 10am Saturday till 4pm on Sunday.
6. Pending 10 April 2017, the child spend time his (sic) father from 10am to 12pm on the following dates:
6.1 Sunday 2 April 2017; and
6.2 Sunday 9 April 2017.
7. That in order to implement time according to these orders,
7.1 The parties shall meet at (omitted) McDonalds’s.
7.2 The father shall provide to the mother his roster issued by (employer omitted) within 48 hours of receipt; and
8. That notwithstanding any other order, the child shall spend:
8.1 From 10am to 4pm with the mother on Mother’s Day
8.2 From 10am to 4pm with the father on Father’s Day; and
8.3 From 10am to 2pm with the father on Christmas Day.
The interim orders sought by the Respondent are contained in the Case Outline document dated 31 March 2017 being inter alia:
1. That the child X born (omitted) 2014 (“X”) live with the mother.
2. That X spend time with the father as follows:
a. Commencing from the date of these Orders until 7 September 2017 for two days per week between the hours of 9am and 5pm those days being the days that are in accordance with the rostered days off allocated in the father’s monthly rostered (occupation omitted) schedule;
b. From 7 September 2017 to 7 April 2018 for two days per week and one night per week between the hours of 9am and 6pm on the day in which an overnight time period is not to occur and between 9am and 9am the following morning on the day in which an overnight time period is to occur those days and night to occur on the rostered days off allocated in the father’s monthly rostered (occupation omitted) schedule and the overnight time if not otherwise agreed between the parties is to occur on the night of the second rostered day of each week on which the father spends time with X.
c. From 7 April 2018 until the February of the year in which X commences kindergarten for two nights per week being from 9am on the morning of the first night until 9am the following morning those days and nights to occur on the roster days off allocated in the father’s monthly rostered (occupation omitted) schedule.
d. The time in orders 2(a) to (c) above shall occur notwithstanding that the time may fall on a day when X is otherwise enrolled in day care or pre-school.
e. From the first day of February of the year in which X commences school during school terms as follows:
i. every alternate weekend from after school or 3pm on Friday until before school or 9am on Monday or Tuesday if Monday is a public holiday;
ii. every Wednesday from after school or 3pm until before school or 9am on Friday.
f. From the February of the year in which X commences school during the NSW gazetted school holiday periods for a period equal to half the school holidays in a consecutive block being the first half of the school holidays in even numbered years and the second half in odd numbered years.
The Respondent also sought orders for time with the child on special occasions and school holiday time according to his rostered days off.
Documents Relied Upon at Interim Hearing
The Applicant relied upon the following documents:
a)Reply filed 28 November 2016;
b)Affidavit of Ms Cresswell affirmed and filed 28 November 2016;
c)Affidavit of Ms Cresswell affirmed 28 September 2016 and filed 25 October 2016;
d)Affidavit of Ms Cresswell affirmed and filed 31 March 2017; and
e)Minute of Orders dated 31 March 2017.
The Respondent relied upon the following documents:
a)Amended Response filed 30 March 2017;
b)Affidavit of Mr Conroy sworn 29 March 2017;
c)Affidavit of Mr Conroy sworn and filed 15 November 2016;
d)Affidavit of Ms T sworn and filed 15 November 2016; and
e)Case outline document dated 31 March 2017.
The Respondent tendered a pathology report dated 28 March 2017 which became Exhibit ‘1’ in the proceedings.
The Court also had regard to the Child Dispute Conference Memorandum dated 22 March 2017.
The Law
The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.
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.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
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.
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]
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.
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 in
[3] Ibid at [122]
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)
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)
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]
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
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
The issue in dispute is the time that the child is to spend with the father.
The crux of this matter is in fact quite simple.
The father works as a (occupation omitted). He has eight rostered days off per month. The father is provided with his work roster at least a month in advance. That roster is a moving roster and the father is assigned what days he is to work and what days he is to have off by his employer. The only certainty the father has in relation to his roster is that he will have not less than two rostered days off per week and that one of those 2 day periods will occur on a weekend consecutively. The other rostered days off may or may not be consecutive and can fall on any day of the week. The father proposes that the child spend time with him on his rostered days off.
The mother is opposed to the child’s routine in terms of spending time with the father being determined by the father’s work roster. Rather, she proposes set weekly times for the child to spend time with the father and if those times don’t happen to coincide with the father’s rostered days off, then, the child misses out on spending time with the father.
The duration of the time the child is to spend with the father (on the days he is to see him) is also in dispute between the parties.
Uncontested Relevant Facts
The Applicant was born on (omitted) 1985 and is currently 31 years of age. She works part time as a (occupation omitted) and resides in (omitted), New South Wales.
The Respondent was born on (omitted) 1985 and is currently 31 years of age. He works full time as a (occupation omitted) on a moving roster and resides in (omitted), New South Wales.
The parties commenced a relationship in 2003.
There is one child of the relationship, X born on (omitted) 2014 who resides with the Applicant.
The parties separated in mid-late 2015.
From September 2015 until orders were made on 29 November 2016, the child had not spent any time with the father.
Since orders were made by consent on 29 November 2016, the child commenced spending time with the father; initially such time was supervised for eight occasions and then progressed to unsupervised time.
Relevant Considerations
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.
An Apprehended Domestic Violence Order was made for the protection of the mother with the father named as the defendant on 21 January 2016. It is an order made by consent and without admission. The order was for a period of 12 months and is now expired. The allegations which gave rise to the making of the order relate to events around the time of separation.
The Applicant asserts that the Respondent was ‘abusive and controlling’ towards her by threatening to reduce financial support and denigrated her by calling her names such as “lazy, unfit, slut, unmotivated, cunt and boring”. She asserts that he kicked her in the leg on one occasion resulting in bruising. Indeed, the mother submitted that the relationship was one of family violence. The father denies such allegations.
The Respondent describes a number of incidents where he alleges the mother was physically violent towards him, including hitting him in the side of the face causing his skin to be broken and hitting him on the head following an argument. These allegations are denied by the Applicant.
In summary, both parents make allegations of aggressive and violent behaviour by the other parent towards them. There is significant factual dispute about these matters, however, even at their highest the behaviour as alleged by each of the parents appears to have been situational. Given that the parties have been separated for over 18 months, and that the allegations relate to times when the parties were in the relationship, it is the Court’s view that there is any risk of harm to the child if such controversial facts are acted upon, is minimal.
The mother also makes allegations that the father abuses both alcohol and illicit substances. The father denies such allegations. He points to the fact that he is a (occupation omitted) who is subjected by his employer to random tests for alcohol consumption, and that all such tests have returned negative. Upon becoming aware of the mother’s allegation recorded in the Child Dispute Conference Memorandum that he uses ‘ice’, the father has voluntarily undertaken a chain of custody drug screen. That was done on 28 March 2017 with the memorandum being released to the parties after 22 March 2017 and the father saying he only read it on 27 March 2017.
The mother does not submit that there is an unacceptable risk of harm to the child as a result of these matters she alleges relating to the use of alcohol and illicit substances by the father.
After separation the child did not spend any time with the father for over 12 months. The reasons for this are varied, but certainly, such outcome was not in the child’s best interest.
When time resumed, albeit on a supervised basis, the child responded very positively to seeing his father and in his interactions with the father. This much is clear from the notes of the supervisor which are in evidence. It also appears from those notes that the mother was not entirely encouraging of the child’s interaction with the father. Some of those notes indicate as follows:
a)For 30 November 2016 being the first such supervised visit:
Ms Cresswell expressed that she was concerned about how X would react to Mr Conroy and said that X did not understand the concept of “Dad” as he had never had one before.
X was shy and unsure of what was going on at the beginning of the visit but relaxed after around five minutes, after which he did not show any signs of distress or unease. X appeared confident to tell Mr Conroy what he wanted and also chatted happily to Mr Conroy throughout the visit about a variety of subjects, mostly in the context of what they were doing at the time…
b)For 10 December 2016:
X and did not display any signs of distress or unease at any time during this visit. He was happy and affectionate towards Mr Conroy throughout and called him “Dad” each time he talked to him. X appeared comfortable interacting with Mr Conroy and also telling him what he wanted. X was physically affectionate towards Mr Conroy… X held Mr Conroy hand while they were walking and chatted to him throughout the visit…
When told it was time to leave, X said “No. I want to stay here.”… When Ms Cresswell got out of the car and approached X, X backed away and repeated that he didn’t want to leave…
c)For 13 December 2016:
X… ran to greet Mr Conroy…
X was very focused on Mr Conroy and was clearly enjoying his company, paying little attention to the supervisor… X was affectionate towards Mr Conroy and frequently put his arms up to Mr Conroy to be picked up. When sitting down, X sat either on Mr Conroy or very close to him.
When the supervisor told X that his mother had arrived and it was time to go, X became distressed… X was crying and trying to wriggle out of the supervisor’s arms and saying “I want my dad.”
d)For 20 December 2016:
X was visibly excited to see Mr Conroy and smiled and hugged him…
X was advised that mummy was here and that it was time to leave. X was reluctant to leave but when Mr Conroy told him he could take his truck and show mummy he was okay and left willingly with the supervisor. Mr Conroy and X had a hug goodbye and X pushed his truck outside across the crossing to Ms Cresswell where he greeted her happily, showing her his new truck and talking about it.
e)For 31 December 2016:
After discussion with Ms Cresswell, it was agreed that the visit would take place at Mr Conroy’ house…
X let go of [the supervisor’s hand]… and ran to greet Mr Conroy. Mr Conroy picked X up and hugged and kissed him. X reciprocated and appeared happy to see Mr Conroy.
X appeared happy and comfortable in Mr Conroy’s company and did not pay any attention to the supervisor. X did not display any signs of unease and was curious about the new surroundings, wanting to explore and see what was behind all the doors and up the stairs… Mr Conroy was engaged with X throughout the visit and the two talked and played together for the entire two hours.
…
Ms Cresswell indicated after an earlier visit that X had been unwell and that she suspected it was caused by something Mr Conroy had given him to eat and drink…
f)For 8 January 2017:
After greeting X and Ms Cresswell, I told Ms Cresswell that Mr Conroy intended to take X to his house today... Ms Cresswell immediately said “That’s not an option.” I explained to Ms Cresswell that Mr Conroy had pointed out that there are no restrictions in the orders regarding where he takes X and that he felt X would enjoy himself at his house, more so than at the park in the hot weather or at another venue. Ms Cresswell did not provide any explanation for her objection to Mr Conroy’s plans, only repeating “that is not an option” several times. Ms Cresswell went on to say that there were several places Mr Conroy could take X - the (omitted), the park, the mall but that he would not be taking him to his house. I asked Ms Cresswell if she was going to refuse to hand X over for the visits if Mr Conroy did not reconsider and she said yes, X would not be going on the visit if it was going to be at Mr Conroy’ house - again not providing any other explanation.
…
After talking for a while longer, Mr Conroy decided that he would relent and take X elsewhere for the visit as he didn’t want to disappoint X who was expecting to see him.
…
X smiled and reached for Mr Conroy as I handed him over and immediately began talking to Mr Conroy…
g)For 13 January 2017:
Ms Cresswell got X out of the car and gave me a bag of toys which she said had been accumulated over the course of the visits. Ms Cresswell said that X had enough toys at home and that these toys could go back to Mr Conroy…
…
X appeared surprised when first his grandmother and then later his aunty and cousins arrived at the visit. He did not appear at all uncomfortable and after his initial surprise, interacted happily with the other children and adults, engaging in games and chatting to them. X particularly enjoyed blowing and chasing bubbles and the other children joined in the game, chasing and trying to burst the bubbles…
…X chatted continuously to Mr Conroy and his cousins while they were playing and did not show any signs of distress until it was time to leave. X appeared to enjoy the visit and the company of the other family members and did not appear shy or uncomfortable at any time. Mr Conroy was involved and engaged with all of the children throughout and other children interacted easily with both Mr Conroy and X…
…
Mr Conroy checked the time and told X that it was time to go. X said “No!” and continued playing. Mr Conroy picked X up and told him to say goodbye to everyone and walked over to the car with him. X became upset and started to cry and resisted being put into his car seat. Mr Conroy stood next to the car with X and tried to explain to him that it was time to go but that he could come back soon and see the kids. X continued to cry and became more distressed and more resistant to getting into the car. Mr Conroy’s sister suggested that Mr Conroy take one of the children with him… Once X saw that B was in the car, he got in willingly and stopped crying.
…
I took B with me when I took X out to Ms Cresswell. X became upset again and said that he didn’t want to go and cried loudly as I carried him to where Ms Cresswell was parked. Ms Cresswell asked what was wrong and I explained that X hadn’t wanted to leave the visit yet and that B had come with us to try to cheer X up. Ms Cresswell looked at B but didn’t acknowledge him or comment. X continued to cry as Ms Cresswell took him and said “I want my dad”. Ms Cresswell said “You will see your dad again soon”. Ms Cresswell then asked about the truck and I said that it had stayed at Mr Conroy’s house as I had thought she wanted the toys to stay there. Ms Cresswell said that she wanted the other toys she had handed over at the beginning of the visit to stay with Mr Conroy but that the truck was supposed to come back. I said that I would ask Mr Conroy to ensure it went back at the next visit.
h)For 21 January 2017 (the last of the eight scheduled supervised visits):
… X did not appear uncomfortable around other family members and engaged in conversations with them but was interested mostly in engaging with Mr Conroy. Mr Conroy stayed with X throughout the visit except when he went inside to get X food and asked his mother to watch X while he was gone. X continued with what he was doing at the time and did not appear to notice Mr Conroy’s absence which was very brief.
…
When Ms Cresswell arrived and I told X it was time to go he resisted…
…
Ms Cresswell asked if X had been “bombarded with people again” during the visit. I told her who had been present and that X had appeared comfortable around the other family members but had been interested mostly in playing with Mr Conroy. Ms Cresswell said “what on earth happened at the last visit?” and then went on to say that X had been hysterical for 20 minutes after she had picked him up from the visit and had then been very quiet during the afternoon but had made statements about Mr Conroy, saying “My dad is scary” “My dad hits my head” and “My dad is mean”. I told Ms Cresswell that there had been no indication that any of the visits that X finds Mr Conroy scary and commented that X appears comfortable around Mr Conroy - enough so that he actually is quite bossy towards Mr Conroy. Ms Cresswell commented that X gets his bossiness from Mr Conroy and repeated that X had been very unsettled following the previous visit. I told Ms Cresswell that if we had seen any behaviour from either Mr Conroy which indicated that X was uncomfortable, she would have been advised at the time. I reiterated to Ms Cresswell that all of the interactions during supervised contact had been positive and that we had not found it necessary to intervene during the visits with regard to the interactions between Mr Conroy and X.
The mother’s evidence is that the child is adjusting to his spending time with the father. For example, the mother says that on 13 January 2017 the child was hysterically crying and cried all the way home and for a further 10 to 15 minutes. Given that the child spent (on the supervisor’s account) a happy two hours with the paternal family and did not want to leave, it is not surprising that he was unsettled on the way home and for a while after he arrived home.
The child is now spending time with the father which is not supervised. There have clearly been difficulties with that time being facilitated, and it appears at first blush that the father is not the cause of those difficulties. In any event, these are matters upon which findings may ultimately be made, but at this point in time the Court simply notes that time has not occurred in accordance with the Orders made on 29 November 2016. The child has spent less time with the father than the Orders provide for.
The child is still very young, having only recently turned three years old. There is no evidence that he knows days of the week or what occurs on any specific day. There is no expert evidence which might suggest that this particular child must have a set weekly routine. This is not to suggest that the Court does not accept that daily routines for young children may be beneficial to them. However, there is nothing in the evidence which suggests that the weekly routine which the mother proposes is any more beneficial to the weekly routine which the father proposes.
The father submitted that he would consent to an order that the time the child spends with him be on no more than two weekends per month. Given the child’s young years, the mother’s part-time work and all other matters considered, the Court does not find that to place such a restriction on the child’s time with the father is in his best interest (at least not at present). The child will remain living with and spending the vast majority of his time with the mother.
The father’s work roster may mean that there is not the routine which the mother submits is in the child’s best interest. As already stated, there is no evidence to suggest that this child requires a strict weekly routine. The orders which the mother seeks in reality do not mean any more of a routine for the child than the father’s orders – all that they do is deprive the child of spending time with the father if the father’s rostered days off do not fall on the days which the mother is nominating.
The evidence of the supervisor shows that the father is capable of looking after the child’s physical needs. It also shows that the child has clearly enjoyed his interactions with the father and the paternal family. If the child is indeed unsettled after spending time with the father, this could be indicative of the child wanting to spend more time with the father than the interim orders provide for. Indeed, such an inference is supported by the supervisor’s notes of the child’s reluctance to go back to the mother at the conclusion of most of the sessions with the father.
It was submitted on behalf of the mother that time should progress slowly and that there should be consistent and regular time between the child and father. The mother proposes an increasing time arrangement, starting with three hours per day three times per fortnight. That is almost the same amount of time that the child currently is spending with the father, being four hours per week (and thus eight hours per fortnight). The mother proposes that this then be increased after a period of five months to six hours three times per fortnight and then after another four months, to six hours four times per fortnight. It is only when the child commences school that the mother proposes he spend overnight time with the father, which might be in either 2019 or 2020 given that the child will turn 5 in April 2019.
The Court finds that such a slow progression of time, in circumstances where this child after not seeing his father for over 15 months, was able to reconnect so quickly and so well, is contraindicated. The Court finds that the child spending longer periods of time with the father immediately is supported by the independent evidence of the supervisor as well as the evidence of the father.
However, given the child’s age, the Court is still mindful of the child spending prolonged periods away from his primary carer and in the care of his father. For that reason, time will progress more slowly than the father proposes but less slowly than the mother proposes.
Parental Responsibility
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]
[10] See note 1 s61C
Section 61DA provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order. 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)
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
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 not been rebutted. However, neither party sought an order allocating parental responsibility, thus none will be made, leaving the application of s61C intact.
Conclusion
In all of the circumstances and for all of the reasons set out above, it is in the children’s best for orders to be made as set out at the forefront of these Reasons.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 9 May 2017
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