Crosbie and Winsor
[2010] FMCAfam 1477
•4 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CROSBIE & WINSOR | [2010] FMCAfam 1477 |
| FAMILY LAW – Parenting – variation of spend time arrangements – transition to unsupervised time. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 62B, 65DA |
| Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR CROSBIE |
| Respondent: | MS WINSOR |
| Independent Children’s Lawyer: | MS SMITH |
| File Number: | SYC 5443 of 2008 |
| Judgment of: | Monahan FM |
| Hearing date: | 4 November 2010 |
| Date of Last Submission: | 4 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 4 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | None |
| Solicitors for the Applicant: | Self-represented litigant |
| Counsel for the Respondent: | None |
| Solicitors for the Respondent: | Autore & Associates |
| Counsel for the Independent Children’s Lawyer: | None |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
THE COURT ORDERS THAT:
All previous parenting orders be discharged.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
[X] born [in] 2007 (“the child”) live with the Mother.
The child spend unsupervised time with the Father as agreed between the parties or failing agreement as follows:
(a)For a period of six (6) consecutive weeks:
(i)each Tuesday and Thursday from 9:00am to 11:00am commencing the first Tuesday after the making of these Orders; and
(ii)each Sunday for a period of two (2) hours as agreed or failing agreement from 3:00pm to 5:00pm;
(b)For a further period of six (6) weeks after the completion of 3(a) herein each Tuesday, Thursday and Sunday from 9:00am to 1:00pm;
(c)After completion of paragraph 3(b) herein, from then on each Tuesday, Thursday and Sunday from 9:00am to 4:00pm;
(d)From 9:00am to 12 noon on Christmas Day;
(e)From 9:00am to 4:00pm on Father’s Day; and
(f)At all other times as agreed between the parties.
In the event that the child is not able to spend time with the Father on Sundays pursuant to these Orders due to work commitments the Father is to give notice to the Mother’s solicitors seven (7) days in advance of his unavailability.
Changeover occur as follows:
(a)For periods that the Father is to spend time with the child pursuant to paragraph 3(a)-(c) herein the Father shall collect from and return the child to [G] DAY CARE CENTRE, [H] TOWN (“the day care centre”) AND for that purpose the Mother shall forthwith provide to the day care centre the necessary authority permitting the day care centre to release the child to the Father in accordance with these Orders; and
(b)For the periods that the father is to spend with the child pursuant to paragraph 3(d) and (e) herein, or at any other time that the day care centre is not operating, the Father is to collect and return the child from outside [M] POLICE STATION.
Without admission, the Father not consume or administer to himself any illicit substances 12 hours prior to spending time with the child or during the times that the child is in his care.
The parties use a communication book to communicate matters relating to the child only and the communication book is to be packed in the changeover bag.
In the event of any medical condition, significant health issue, hospitalisation, illness suffered by the child or such other emergency situation whilst the child is in the care of either parent:
(a)the Mother is to notify the Father as soon as practicable by way of SMS message to the Father’s mobile telephone; and
(b)the Father is to notify the Mother as soon as practicable by way of SMS message to the Mother’s solicitor’s mobile telephone or such other mobile telephone number as provided by the Mother in writing.
The Mother and Father both submit to the urine analysis testing under the following conditions:
(a)The drug testing shall be by way of a chain of custody urine drug screens with samples supplied in a supervised environment and checked for adulteration;
(b)The drug testing shall be for the following substances, cannabis, metabolites, opiates, sympathomimetic amines, cocaine metabolites, ecstasy and benzodiazepines;
(c)The drug testing shall meet the Australian/ New Zealand Standard 4308/2001;
(d)The results shall be provided to the Independent Children’s Lawyer no later than 24 hours after receipt by the parties; and
(e)Each party shall submit to the random drug testing within 24 hours of receiving a request from the Independent Children’s Lawyer and such request is to be made by the Independent Children’s Lawyer emailing the Father directly and the Mother’s solicitors directly, or in the event that the Mother is no longer represented then the Independent Children’s Lawyer will email the Mother directly.
Each party shall each meet the costs associated with the testing set out in paragraph ten (10) herein.
AND THE COURT NOTES THAT:
(A)The matter remains listed for Final Hearing on 5 September 2011 for an estimate of three (3) days for which trial directions were made by this Court on 9 September 2010.
(B)The Mother gave an undertaking to the Court that she will not be removing the child from the day care centre where the child currently attends on Mondays, Tuesdays and Thursdays from 7:00am to 6:00pm each week and furthermore will not be pursuing proceedings against the Father in relation to the AVO which remains effective for a further four (4) weeks when he attends the day care centre in accordance with the parenting Orders made today.
(C)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Crosbie & Winsor is approved pursuant to s.121(9)(g) of the Family law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5443 of 2010
| MR CROSBIE |
Applicant
And
| MS WINSOR |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MR CROSBIE (“the father”), filed on 16 September 2008 in the Family Court of Australia (“the Application”), against MS WINSOR (“the mother”). In his application, the father is seeking various parenting orders in relation to the child of the relationship, [X], born [in] 2007 (“[X]”).
More specifically, in respect of parenting matters, noting again that his application was filed in September 2008, the father is seeking orders that:
·the parties have equal shared parental responsibility;
·[X] live with the father each Monday from 9:00am until Wednesday 4:30pm;
·[X] live with the father for half the school holidays;
·[X] live with the mother at all other times; and
·while [X] is living with the mother there be communication between [X] and the father by telephone.
The Application is supported by the father’s numerous affidavits filed in these proceedings, together with affidavits from his mother, Ms Crosbie, filed on 28 May 2010, and his partner, Ms M, filed on 2 June 2010. The father is self-represented in these proceedings.
The mother, in her response filed on 8 October 2008 (“the Response”), opposes the orders sought by the father and is seeking different parenting orders in relation to [X]. More specifically, the mother is seeking orders that:
·until [X] turns five (5), time spent with the father be at [C Contact Centre]; and
·upon him turning five (5), one (1) day a week from 10:00am to 5:00pm.
The Court notes that that the Response was filed over two (2) years ago.
The mother has also filed numerous affidavits in these proceedings Two were filed in 2008, and most recently another on 22 October 2010. The mother is legally represented today by Mr Autore.
By an order of Johnston JR, as he then was, on 8 October 2008, an Independent Children’s Lawyer (“ICL”) was appointed. Ms Solimon and subsequently Ms Smith of Legal Aid were appointed as the ICL. Ms Barton appears as the ICL’s agent today.
Background
Despite [X] being just three (3) years of age, the parties have had a long history before the Family Court of Australia and, more recently, before this Court. It would appear that the parties met in 2006, and cohabitated either before [X]’s birth in 2007 (as the father asserts), or after [X]’s birth, (as the mother asserts). The parties separated [in] May 2008, according to the mother, or [in] June 2008, according to the father.
The separation does not appear to have been an amicable one, and it would appear that the parties are in agreement that an altercation occurred between them [in] June 2008. The parties have very different versions of what actually occurred on that date, but it would appear that following that incident an interim Apprehended Violence Order (“AVO”) was applied for by the police on behalf of the mother, but that following undertakings by the father no further AVO was issued at that time.
On 8 October 2008, Johnston JR also made interim parenting orders by consent (“the parenting orders”). Those orders stated:
“1.That an Independent Children’s Lawyer be appointed for the child [X], born [in] 2007 and the Court requests the Director of the Legal Aid Commission of New South Wales to make such appropriate arrangements.
2.That the solicitors for each of the parents forward forthwith to the Director a copy of all documents filed by them in these proceedings on behalf of their clients respectively; and
3.That these proceedings be adjourned to the Judicial Registrar’s Duty List Call-over at 9:30am on 3 November 2008.”
On 3 November 2008, Johnston JR also made orders by consent that provided:
“1. That the child [X] born [in] 2007[…] live with the mother
2. That [X] spend time with the father as follows:-
(a) For a period of four consecutive weeks each Tuesday and Sunday from 10 am to 12 noon, or such other time as agreed between the parties;
(b) The time spent by the father referred to in (a) above be supervised by [X]’s godmother, or such other person as agreed between the parties;
(c) After completion of the time referred to in (a) above, for a further period of four consecutive weeks each Tuesday and Wednesday from 10 am to 12 pm, or such other time as agreed between the parties;
(d) After completion of the time referred to in (c) above, each Tuesday and Wednesday from 10 am to 3.30 pm, or such other time as agreed between the parties;
(e) At such other time as agreed between the parties.
3.That for the purposes of the time to be spent by the father with [X] referred to in order 2(a), the parties meet at [E] KFC, or such other place as agreed between the parties;
4.That without admissions the father shall attend and complete an anger management course. Upon completion of the course the father shall forward a certificate of completion to the independent children’s lawyer;
5.That without admissions the father will not consume, or administer to himself, any illicit substances 12 hours prior to spending time with [X], or during the time that he’s spending with [X];
6.That the mother and father attend a post-separation parenting course;
7.That the parties shall use a communication book to communicate matters relating only to the child. The communication book is to be packed in the changeover bag; and
8.That order 2(d) be suspended on Christmas Eve so that the father spends time with [X] from 10 am to 3.30 pm.”
Following a determination of the father’s contravention application filed on 30 April 2009, Watts J made the following orders on 9 June 2009:
“1.Leave is granted to the parties to inspect documents produced on subpoena by the NSW Police and [E] Contact Service.
2.That the father’s application filed 30 April 2009 is dismissed.
3.Pending further order the orders made on 10 March 2009 be varied to provide that the father spend time with the child [X] each alternate week on a Friday from 4:00pm to 6:00pm and Saturday from 9:30am to 11:30am, at the [C town Contact Centre]. In this regard the mother is to do all things, and sign all documents necessary, to complete the entry requirements of that agency.
4.It is noted the father has indicated that provided the mother has met formalities of the agency by 23 June 2009 the agency is available to commence time on 26 and 27 June 2009.
5.That in addition, the father spend time with the child from 9:30am to 11:30am each alternate Saturday in the intervening periods at [W] Contact Service at [P] Park.
6. […] The parties agree that after the waiting period for that service arrangements will be made to resume time between the child and the father on an ongoing basis each week for a period of not less than two hours on each occasion. It is noted that the mother has indicated to her solicitor today that once the time starts, she’ll be receptive to making arrangements for the father to make up the lost time at the rate of one day per fortnight through the interim period at the [W] Contact Service in addition to those fortnightly occasions;
7.That forthwith upon the father completing the entry requirements for the [W] Contact Service he provide a copy to the mother’s solicitor of his application, and any advice received by him from the [W] Contact Service.”
Following a second contravention application filed by the father on
23 September 2009, his Honour made orders on 26 October 2009 that:
“1.The proceedings are adjourned to the judicial registrar’s duty list callover at 9.30 on 8 December 2009 in relation to a contravention application, AND the matter is marked “Not Reached” today.
2.The Court noted that the father intends to proceed with 29 August 2009, 18 September 2009, and 15 August 2009 and to withdraw the application in relation to the other accounts [sic].
3.The Court also noted that there is an application for a change in the parenting orders and the matter is adjourned for hearing if practicable to 8 December 2009.”
His Honour then heard the contravention application on 8 December 2009. The following orders were made:
“THE COURT FOUND
1.That there has been a breach of the orders made by this Court on 9 June 2009 by the conduct of the mother on 15 August 2009, 29 August 2009, and 18 September 2009, without reasonable excuse.
THE COURT ORDERED
2.That the mother pay to the father, as he may direct, costs as assessed in the sum of $277.00, that payment to be made within 2 months of the first date after today’s date, when the father produces to the mother a certificate from the Child Support Agency saying that he is up to date with his date with his child support obligations.
3.By way of makeup time, the father spend time with the child [X], born [in] 2007, at [W] Contact Service at [H] Park as follows:
(a) On 18 December 2009, from 1:30pm to 3:30 pm.
(b) On 8 January 2010 from 1:30pm to 3:30pm.
(c) On 15 January 2010 between 1:30pm and 3:30pm
and those times are in addition to the times under the existing orders.”
Following several mentions before various registrars during the first half of 2010 on 22 June 2010 Watts J made an order to transfer these proceedings to this Court.
The matter came before me during a duty list on 11 August 2010. On that occasion, orders were made adjourning the matter to 9 September 2010 for mention, and for an interim hearing of the parenting dispute today, being 4 November 2010 (“the interim hearing”).
The father filed an Application in the Case on 6 August 2010 seeking various property orders. At the mention hearing on 9 September 2010, the father’s Application in the Case was dismissed for lack of jurisdiction. On that occasion, the substantive parenting dispute was set down for final hearing on 5 September 2011. The Court also made orders, inter alia, for the preparation of a family report, and dismissed a number of the subpoenas issued by the father.
It is noted that the parties have attended with Ms S, Family Consultant, from which Ms S produced a memorandum dated 24 May 2010. It would appear that Ms S had interviews with the father on 8 February 2009 and 20 April 2010. It would appear that she interviewed the mother on 12 May 2010.
In her report, Ms S outlines the issues in dispute between the parties, or “the key issues in dispute”, as follows:
“1. The developmental needs of the child;
2. The allegations of family violence;
3. High conflict between the parties;
4.Concerns raised by the mother about the father’s mental health;
5.Allegations of drug and alcohol misuse by the father made by the mother;
6.Concerns raised by the father regarding the mother’s mental health;
5.Allegations of illegal drug use by the mother made by the father; and
6.The mother’s commitment to supporting a relationship between [X] and his father.”
After noting her interviews with the parties, and the fact that she had not met with [X], Ms S provides the following summary:
“This assessment provides a preliminary expert advice to the family and to the Court about the issues and the children’s needs. [X] will be three years old in July 2010. He has spent limited time with his father since his parents’ separation, but from what Mr Crosbie says, [X] appears to have begun to develop a relationship with him. Given that observations were not possible, records from the [C] and [W] contact centres may assist the Court in the identifying how Mr Crosbie reacts to and responds to [X].
Ms Winsor has raised serious concerns about [X]’s safety when in Mr Crosbie’s care. If the Court finds that these concerns are warranted, supervision may be required. However, if the Court determines that supervision is not required, and that [X]’s time with his father should be increased, a routine that would allow a gradual increase of time on regular days and potentially covering different times of the day would be appropriate for a child of [X]’s age. For example, three days each week, once in the morning, once in the middle of the day, and once in the afternoon for two hours, then three, and so on.
It seems unlikely, at this point, that Mr Crosbie and Ms Winsor will be able to reach agreement, and so a family report may assist the Court. Given that [X] was not available for the child and family meeting, report interviews over two days, including [X] on two days, and including Mr Crosbie’s current partner and son, would be helpful.
The Child Responsive program has been delayed for approximately 12 months due to the non-attendance of Ms Winsor. In 2009, Ms Winsor’s solicitor advised that it was too difficult for Ms Winsor to attend, and more recently she was ill.
Given the lengthy delays in this matter to date, it may be of assistance to the child and to the family for this matter to be expedited to the Less Adversarial Trial.”
As far as future directions are concerned, apart from recommending it be set for the less adversarial trial, which has not occurred in light of this matter being transferred to this Court, Ms S recommends the preparation of a family report.
Issues
The dispute today focuses on whether the father’s time with [X] should transition to unsupervised time. From my reading of the file, it is clear that shortly before the matter was transferred from the Family Court of Australia, that Court had contemplated holding an interim hearing, but was unable to provide the parties with a date.
The purpose of the interim hearing was to consider whether the “supervised spend time” orders should remain in place, as the mother seeks, or should transition from supervised time to unsupervised time, as the father seeks.
At the commencement of the interim hearing, the ICL handed up to the Court a proposed minute of order (“the ICL Minute”) which was marked as Exhibit “ICL1”. The ICL Minute provides as follows:
“1. That all previous orders be discharged;
2.That the child, [X], born 16 July 2007, live with the mother;
3.That father spend time with [X], born 16 July 2007, as follows:
(a)For a period of six consecutive weeks each Tuesday, Wednesday and Thursday from 9:00am to 11:00am, commencing the first Tuesday of the making of these orders;
(b)After the completion of the time referred to in 3(a) above, and for a further period of six weeks each Tuesday, Wednesday and Thursday from 9:00am to 1:00pm;
(c)Thereafter, each Wednesday and Thursday from 9:00am to 4:00pm;
(d)From 9:00am to 12 noon on Christmas Day;
(e)From 9:00am to 4:00pm on Father’s Day;
(f)At such other times as agreed between the parties.
4.That for the purposes of changeover, the following shall occur:
(a)For periods that the father is to spend time with the child in orders 3(a), 3(b), and 3(c) above, the father shall collect and return the child from [G] Day Care Centre in [H], being the child’s daycare centre, and for that purpose the mother shall forthwith provide to the daycare centre the necessary authority permitting the daycare centre to release the child to the father in accordance with these orders;
(b)For the periods that the father is to spend time with the child in orders 3(d) and 3(e) above, the father is to collect the child from outside [H] Police Station.”
Paragraphs 5 through 9 of the ICL Minute were agreed to by the parties and are concerned with:
·the father agreeing not to consume or administer any illicit substances for 12 hours’ prior to spending time with [X];
·the use of a communication book;
·the mother to notify the father if there’s any significant illness; and
·the parties to submit to random urinalysis testing when directed by the ICL and to meet the costs associated with such tests.
Agreed and disagreed facts
The parties agree (or are not in any significant disagreement) in relation to the following:
·that they had a domestic relationship that ended in May or June 2008;
·that there was an altercation that occurred between them [in] June 2008;
·that a further altercation occurred between them on 18 November 2008. The father and the ICL assert that this occurred as a consequence of the father finding out the identity of the mother’s alleged new partner. That altercation was apparently audiotaped by the mother, and a complaint was subsequently made to the Police. It would appear that an Apprehended Violence Order (“AVO”) was made at [S] Local Court on 10 December 2008 for a two-year period. A copy of that AVO was tendered and marked Exhibit “RM1” today. The AVO expires on 10 December 2010.
The AVO orders that:
“1. The defendant [that is, the father] must not assault, molest, harass, threaten, or otherwise interfere with the protected person [that is, the mother].
2. The defendant must not engage in contact that intimidates the protected person.
3. The defendant must not stalk the protected person, or a person with whom the protected person has a domestic relationship with.
4. The defendant must not go within 200 metres of the premises at which the protected person may from time to time reside or work, or at other specified premises – [locations omitted];
7. The defendant must not approach or contact the protected person by any means whatsoever, except through the defendant’s legal representative;
8. The defendant must surrender all firearms and related licences to the police.
9. The defendant must not approach the school or other premises at which the protected person may from time to time attend for the purposes of education or child care, or other specified premises – [G] Pre School,[H town].”
Specifically relevant to the orders that need to be made today, the AVO provides:
“10.The defendant must not approach the protected person, or such premises or place at which the protected person from time to time reside or work within 12 hours of consuming intoxicating liquor or illicit drugs;
11.The defendant must not destroy or deliberately damage or interfere with the property of the protected person.”
The father was suspended from [occupation omitted] as a result of being charged with intimidation following from the incident on 18 November 2008. The father subsequently pleaded guilty to that charge and was sentenced on 9 April 2009, but it seems that no conviction was recorded. He returned to [work] on 18 May 2009.
As stated previously, orders were made on 10 March 2009 allowing the father to spend time with [X] at a contact centre. The ICL asserts there were initial problems with the implementation of these orders, and the father filed a contravention application alleging non-compliance, and that first application was not proved.
On 26 June 2009, the father’s periods of supervised time with [X] commenced at [C], but moved to [W] from December 2009.
As described above, the father’s second contravention application filed on 23 September 2009 alleging certain breaches of the spend-time orders by the mother, was proved and compensatory time was ordered.
According to the father and the ICL, there have been no further incidents between the parties. The mother, however, asserts in her affidavit that there was an incident on 22 August 2010 when the father turned up early for a contact visit.
The parties disagree on the nature, circumstances and extent of the two altercations referred to in the evidence and summarised above, and they clearly disagree on whether [X]’s best interests would be served by a transition to unsupervised time with the father.
Parties’ Submissions
The Independent Children’s Lawyer
The ICL provided a chronology to the Court as well as the ICL Minute, as stated above. Mr Autore, for the mother, provided the Court with another comprehensive chronology.
The ICL favours the transition to unsupervised time. The ICL advised the Court that she was satisfied that the supervised contact visits had gone well and that she had confirmed this with the contact centre.
The ICL also submitted that the she shared the view of the contact centre that [X] should transition to unsupervised time, and that the supervised spot currently held by the parties should be offered to another family in need.
The ICL was ultimately satisfied that the changeovers could take place at the child’s daycare centre [G], [H], or at [M] Police Station. Overall, ICL considered that [X]’s safety would not be compromised by the transition to unsupervised time, in part because the incidents complained about by the mother happened two years ago, and both parties asserted different stories.
The mother
Mr Autore, for the mother, gave lengthy submissions to the Court as to the mother’s concerns about any transition to unsupervised time. Broadly speaking, these were:
·the risk to the mother and [X] should the times occur unsupervised, as evidenced by the events that occurred in 2008/9; and
·the alleged dishonesty and deceit of the father, as evidenced by the father’s affidavit filed on 6 March 2009, where he attached a copy of signed consent orders dated 3 November 2008 which omitted a paragraph that referred to the father not consuming illicit substances 12 hours before spending time with [X].
Much of the early part of Mr Autore’s submissions was devoted to the issue of the father’s alleged deceit. This was an issue Mr Autore had raised with Loughnan JR when the father’s second contravention application was not reached on 26 October 2009. It would appear that the father filed an affidavit on that very day, giving his explanation as to why he had attached that document to his earlier affidavit.
Mr Autore referred to the history of the parties in 2008/9 and the mother’s evidence as to her concerns about allowing any unsupervised time to occur. In a nutshell, the mother fears for her own safety and that of [X].
At one stage during today’s proceedings, Mr Autore indicated that the mother instructed him that she would be removing [X] from his childcare centre for financial reasons. That submission was later clarified by Mr Autore saying that should the Court consider unsupervised time be suitable then the mother proposed changeovers occur at the child’s daycare centre or, if that centre was closed, [W] Police Station or [M] Police Station. The mother apparently has concerns about changeovers at either [E] or [S] Police Station [reason omitted]. Furthermore, according to Mr Autore, [H] Police Station was unsuitable because it was not a 24-hour manned station.
The father
The father advised the Court that his hours of work were Fridays, 6:00am to 6:30pm, Saturdays, 6:00am to 6:30pm, Mondays, 6:00am to 6:30pm with the balance of his 38-hour week being comprised of one Sunday from 6:00am to 6:30pm every six weeks. The father also indicated that he may have to be available for more Sunday [work] in the near future. While he denied many of the mother’s allegations and would have preferred an order for [X] to spend overnight time with him, the father accepted that the transition arrangements sought by the ICL were appropriate pending final hearing.
Law and discussion
The decision of the Full Court of the Family Court of Australia in Goode & Goode (2006) FLC 93-286 (“Goode”) guides this Court’s approach in making interim decisions and interim orders in relation to parenting disputes. In paragraph 81 of Goode, the Full Court noted:
“In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence, and disputes between parents as to what constitutes the best interests of the child.”
Clearly, this matter is such a case. More specifically, it raises the reality that the Court cannot fully determine issues of credit today, as the evidence being presented by the parties has not been tested by cross-examination. That said, in paragraph 81 of the Goode decision the Full Court went on to say:
“However, the legislative pathway must be followed.”
In other words, the relevant provisions of the Family Law Act 1975 (“the Act”), post-the 2006 Shared Parenting amendments, must be followed in an interim hearing.
It would appear that there is considerable animosity between the parties and no doubt the history of the matter will be the subject of evidence in cross-examination at the final hearing, should it be needed.
There is no dispute as to equal shared parental responsibility to be determined today. The dispute is simply limited to the issue of [X]’s time with the father, and the circumstances under which that time will be spent. That is, whether the time [X] spends with the father should remain supervised, or transition to unsupervised time with changeovers occurring at a suitable venue.
In any event, had the presumption of equal shared parental responsibility been raised, the Court would find that s.61DA(3) of the Act applies in the present circumstances.
In Goode, the Full Court stated that the process for a Court to follow in determining a matter such as this is as follows:
·identify the parties’ competing proposals;
·identify the issues in dispute; and
·identify any agreed and uncontested relevant facts.
These are the steps that the Court has followed above.
At this point, it should be noted that s.60CA of the Act provides:
“In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.”
To determine the child’s best interests, the Court must consider the primary considerations or facts set out in s.60CC(2) of the Act, and the additional considerations referred to s.60CC(3) of the Act, where relevant.
Primary considerations: s.60CC(2)
Section 60CC(2)(a) requires the Court to consider the benefit to [X] of him having a meaningful relationship with both parents. It must be stated at this point that “meaningful” doest not mean “equal,” but it clearly signifies that both parents should be involved with their child, and consequently signifies an expectation of time to be spent. The right of a child to spend time with each parent and extended family is clearly the right of the child’s.
It is most unfortunate that [X] has been unable to spend any time with his extended paternal family given the restrictive nature of contact centres. The Court will, in all likelihood, need to give considerable weight to this factor in the final hearing.
The Court is also required under by s.60CC(2)(b) of the Act to consider the need to protect a child, such as [X], from physical or psychological harm, or from being subjected to or exposed to abuse, neglect, or family violence. There is no doubt it would be in [X]’s best interests to develop a meaningful relationship not just with his mother, but with his father. That needs to be balanced, however, in protecting a child such as [X] from any physical or psychological harm and the like.
Given the nature of the allegations here, the Court is satisfied there is a need to test the issues so as to determine whether [X] has, in any way, been psychologically harmed by whatever has occurred between the parties in his presence and the like. There are issues here warranting investigation. Consequently, the Court needs to tread cautiously in the interim arrangements that will be necessary, given that there is still an outstanding AVO between the parties, and given the nature of the allegations that have been made, which include allegations not just of family violence, but of alleged illicit drug use and excessive alcohol consumption.
The issue of [X] spending time with the father in a supervised setting is also a matter in contention in this case. The Court notes that contact centres play a crucial role in facilitating children spending time with their parent in circumstances where there is a risk at home, whether proven or yet to be determined, in relation to a child. The contact centres are also subject to the competing demands of the public purse, with the consequence that, unless the parties can afford a privately-run contact service or alternative, they may have to wait considerable lengths of time to secure a place, or be prepared to travel great distances to obtain one.
Contact centres generally offer their services as a short-term rather than a long-term solution, and can assist the Court with valuable reports. It is hoped, reflecting Ms S’s view on this, that the ICL will put such a report before the Court in advance of the final hearing.
Additional considerations: s.60CC(3)
As to the additional considerations, it must be said that issues such as the “views of the child”, whilst significant, will be difficult to determine in this case, given that [X] is only three (3) years of age. Nevertheless, this is something that the family consultant will no doubt be able to assist the Court with, perhaps with the assistance of the ICL.
As to the “nature of the relationship between [X] and each of the parties”, again there are different stories presented, and that evidence needs to be tested.
In regard to the “willingness and ability of each of the parties to encourage a continuing and close relationship between [X] and the other party”, that is a crucial factor here. The mother seeks the continuation of the supervised time arrangement between the child and the parent, but of course there may be domestic violence and related considerations that explain her view. These issues need to be tested.
As to the “extent to which each parent has fulfilled or failed to fulfil their responsibilities as parents”, again the Court is faced with different stories. These stories need to be tested, but there are clearly a number of concerns raised in this matter that will require careful attention at the final hearing.
The Court also needs to consider such issues as the “likely effect of any change in the child’s circumstances or in any other fact or circumstance”. Clearly, keeping a child in a supervised contact centre to spend time with a parent is problematic, and given that these current arrangements will need to be in place for some 10 months before a final hearing, that is also of relative concern to the Court.
Conclusion
Having considered the submissions in light of the available evidence and the structured discretion of the Act, the Court agrees with the ICL that [X]’s best interests would be served by a transition to unsupervised time.
The Court has also formed the view that there is merit in having the changeover occur, whenever possible, in such a way as to limit any need for the parties to come into physical contact with one another.
Whilst contact centres can play such a role, the Court notes that the times available for such services are limited. It was, in any event, ultimately proposed by the mother that in the event that unsupervised time should be ordered, the changeovers take place at the child’s daycare centre.
While the Court finds some of the “running instructions”, to use Mr Autore’s words, given by the mother unsatisfactory, she ultimately undertook to keep [X] at his daycare centre. The ICL submitted that [X] currently attends on Mondays, Tuesdays and Thursdays and that the centre is open from 7:00am to 6:00pm. In the absence of agreement to the contrary, such a venue for changeovers is suitable. In circumstances where the child is not at his daycare centre, changeovers will occur at [M] Police Station, which has appropriate security in place.
The Court received a submission that, due to work, the father is only available on a Tuesdays through to Thursdays and some Sundays. Hence, there may be some difficulties for him in attending [X]’s daycare centre on a Monday.
The Court also notes the mother’s submissions that she may have difficulties with the daycare arrangements in the future, as she will soon commence work in a real estate agency [in B]. Given that [X] currently attends the daycare centre on Mondays, Tuesdays and Thursdays, and given the reality that the father is available on some Sundays, there will be a change to paragraph 3 of the ICL Minute to read:
“3. […]
(a). For a period of six (6) consecutive weeks each Tuesday, Wednesday and Sunday for a two (2) hour period at such times as may be agreed upon between the parties, and failing agreement, from 3:00pm to 5:00pm, commencing the first Tuesday of the making of these orders.
(b) After completion of the time referred to in 3(a), for a further period of six (6) consecutive weeks, each Tuesday, Thursday and Sunday, for a four (4) hour period at such times as may be agreed upon between the parties, and failing agreement, from 9:00am to 1:00pm.
(c) As provided, each Wednesday and Thursday thereafter, from 9:00am to 4:00pm; from 9:00am to 12 noon on Christmas Day; from 9:00am to 4:00pm on Father’s Day; and at such other times as may be agreed between the parties.”
With respect to changeovers, paragraph 4 of the ICL Minute will be amended to reflect the reality that the [H] Police Station is not a 24-hour police station, and consequently the Orders will substitute [M] Police Station for [H] Police Station.
The Court notes that the matter remains fixed for final hearing on 5 September 2011, and that on 9 September 2010 trial directions were made in respect of that final hearing.
There will be Orders of the Court reflecting these reasons.
The Court reserves the right to settle the reasons for this decision.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Monahan FM
Associate:
Date: 7 February 2011
0
0
1