Dalley and Dalley
[2015] FCCA 3459
•21 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DALLEY & DALLEY | [2015] FCCA 3459 |
| Catchwords: FAMILY LAW – Children – parenting orders – interim orders. |
| Legislation: Family Law Act 1975 (Cth), s.60CA |
| Cases cited: Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MS DALLEY |
| Respondent: | MR DALLEY |
| File Number: | SYC 4420 of 2011 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 21 December 2015 |
| Date of Last Submission: | 21 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ryan (direct brief) |
| Solicitor for the Respondent: | Mr McCann |
| Solicitors for the Respondent: | Anderson Lawyers |
ORDERS
UNTIL FURTHER ORDER
The Applicant and the Respondent are to have equal shared parental; responsibility for the children X born (omitted) 2003 and Y born (omitted) 2004.
The children X and Y are to live with the Mother.
The children X and Y are to spend time with the Father each Sunday from 9:00am to 5:00pm commencing on Sunday 10 January 2016.
Changeover where the children go from the care of one parent to the care of the other parent is to be effected by the Mother delivering the children to the father at (omitted) Railway Station at the commencement of the Father’s time with the children and collecting the children from the Father at (omitted) Railway Station at the conclusion of the time.
The Father is restrained by injunction from driving the children in a motor vehicle at any time when they are in his care.
The Application is adjourned to 15 February 2016 for further mention.
IT IS NOTED that publication of this judgment under the pseudonym Dalley & Dalley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4420 of 2011
| MS DALLEY |
Applicant
And
| MR DALLEY |
Respondent
REASONS FOR JUDGMENT
By his Amended Response, the father is seeking parenting orders, in respect of the parties’ two younger children, a girl and a boy.
There are as yet, apart from some short consent orders, no other parenting orders in force between the parties. They have two children under the age of 18. There are older children who are not relevant to the Application before the Court today, but the younger children are X, who was born on (omitted) 2003, and Y who was born on (omitted) 2004. The children live with their mother and have done so since the parties separated.
The Father, by his Amended Response filed on 16th October, has sought interim parenting orders relating to the two children, including orders that the parties should have equal shared parental responsibility for the children, they should live with their mother, spend time with him each Sunday from 9:00am until 6:00pm, and there should be orders about telephone communication. He also seeks that the children should spend separate days per week with him during school holidays.
There are other orders which the Father has now sought to amend his earlier Application which will involve, as from 21st November, alternate weekends, Father’s Day, birthdays and half of school holidays in alternating years, and changeover at (omitted) Railway Station.
The Mother opposes those orders in the main, and has expressed concern about the Father’s capacity to care for the children whilst they are in his care.
The Father’s condition that causes a concern arises from serious head injuries which he received in a motor cycle accident in (country omitted) in June 2008. Annexed to the Mother’s affidavit is a copy of a report from Dr W, a trauma surgeon, dated 20th December 2013, relating to the Father’s condition. The head injury which caused a serious brain injury left the Father with significant disturbance of both mental status and emotional behavioural disturbance.
The Father has, as a result of his injuries, suffered from epileptic fits. He is, however, on medication for those. As his solicitor, Mr McCann, informs the Court, the Father currently holds a full New South Wales drivers licence.
The Mother, however, has serious concerns about the Father’s ability to care for the children: one, because of his epilepsy and her concern that he becomes forgetful and may not take his medication; and, two, in relation to his driving a motor vehicle. She deposes in her affidavit at paragraph [7] that she does not trust him to drive the children around because, whilst he has given undertakings on occasions not to drive them, he has broken those undertakings she says on at least some occasions.
The Mother also refers at paragraph [8] of her affidavit to her insistence that the father should see X and Y together so that there is some comfort and security for them whilst the children are with him as the Mother is apprehensive about the Father’s behaviour and reliability in respect of the safety of the children.
These matters are not admitted by the Father. In fact, it is very much the thrust of his case, as set out in his affidavit, affirmed on 7th September, that at the time that he deposed to the affidavit he had only seen the children on four occasions that year, the most recent of those being on Father’s Day. However, Mr McCann tells me that the Father has since seen the children in the month of November.
The Father complains that he does not know where the children attend school. The only contact he has with the mother is by email. He deposes that he wants to be involved in his children’s lives as their father and a parent. He claims that the Mother is denying this privilege to him. He deposes that there is no reason that he is aware of that would prevent him from seeing the children on a weekly basis, or being meaningfully involved in their lives.
The Mother, I should say at this stage, is opposed to the concept of the Father having overnight time with the children.
It is, however, the fact that as a result of some email correspondence between the parties they have agreed that the children would spend time with the Father on Christmas Day from 11:30am until 3:00pm. This would enable the children to have Christmas lunch with their father. The parties have entered into minutes of consent orders, and I have made Orders by consent to that effect. The other Orders relate to the changeover where the Mother delivers the children to and collects the children from the agreed changeover point which is the (omitted) Railway Station. There is also an order that the Father will not drive the children.
The parties have been ordered to attend a Child Dispute Conference with a Family Consultant. At this stage an appointment has not been arranged. The Mother is reluctant to attend a Child Dispute Conference during the school term. She is a school teacher who works on a casual basis, and it is her case that she needs to be available to take casual work when it is offered. She has concerns about financial matters and, indeed, her application for spousal maintenance has been refused, and it was a significant factor in that case. The Father lacked the capacity to pay arising from the incapacities that he has suffered derived from the injuries he had received in the motor cycle accident.
Conclusions
It is, to my mind, understandable that the Mother should feel a concern that she needs to be available for work when the Department says that work is available. She is certainly prepared to attend a Child Dispute Conference during the school holidays but at this stage the Director of Child Dispute Services has informed the parties’ lawyers that appointments have not been made for that far ahead, which would be in the month of April, but an appointment will be made once those dates have been finalised. It would be my intention to mention this matter in the middle of February to make some directions as to how the parenting matter should proceed.
I am of the view that there should be some parenting orders to provide some regularity and stability in the children’s lives. The parties have certainly agreed to one-off set of orders for Christmas Day but there needs to be a regular arrangement so that the parties do not have to engage in a flurry of email correspondence to arrange further one-off times over the months of January and February until the matter can come back to Court.
I would say that the Court has a responsibility under Part VII of the Family Law Act 1975 (Cth) to look at the matters contained in various sections of that Part, particularly 60B which deals with the objects and principles of the Act, section 60CA which provides that when making parenting orders the best interests of the child must be the paramount consideration, section 60CC which sets out the way that a court determines what is in the children’s best interests and section 61DA which deals with equal shared parental responsibility and the presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them. Section 65DAA is relevant where the Court decides to make an order for equal shared parental responsibility.
At this stage the Court has limited information before it. I am not in a position where I can make findings of fact where the assertions of fact are disputed. The Full Court of the Family Court has made that quite clear in the 2006 decision of Goode & Goode[1].
The matters that particularly come to mind at this stage are those set out in subsection (2) of section 60CC of the Family Law Act where the primary considerations are set out in paragraphs (a) and (b). To some extent the Court needs to balance those considerations. The first of those is under paragraph (a) where the Court looks at the benefit to the children of having a meaningful relationship with both of their parents. Under paragraph (b) the Court must look at the need to protect the children from harm, whether it is physical or psychological harm.
In this case, as I said, the Mother has concerns about the children’s physical safety, noting the disabilities that the Father is obliged to endure as a result of his injuries. I am of the view that, for a start, the Court should look at establishing a regular process whereby the children should spend time with their father so that they know when that arrangement is to take place, and so that each parent knows when that arrangement is to take place. There should not, therefore, be a need for so much email traffic between them trying to make specific one-off arrangements.
At the same time, the Court needs to take a conservative view, placing the children’s interests uppermost, until further evidence can be available. It is for that reason that whilst I have considered the submissions by Mr McCann for the Father that the Father does have a full, unrestricted New South Wales driver’s licence, I would, at this stage, take the view that the Father should not drive the children in a motor vehicle whilst they are in his care. Mr Ryan, for the Mother, has expressed concern on the part of his client, where his client says that the Father has made undertakings, but has breached those undertakings. Whether he has forgotten or not, I am unable to tell.
My view is that an injunction, at this stage, should make matters quite clear, that for the time being, at least, the Father should not be driving the children whilst they are in his care. I am not, at this stage, prepared to make an order for overnight time. That may well occur down the track. It may well be, once the parties have attended a Child Dispute Conference, that the Court may revisit the idea of appointing an Independent Children’s Lawyer, under the provisions of section 68L of the Family Law Act 1975.
I have raised that with the parties this morning, and Mr Ryan has pointed out that his client has a concern about involving the children too much in the court process. If it is necessary, in due course I will revisit the question of whether the children’s interests should be independently represented by a lawyer, under section 68L, but I shall not make an order at this stage.
I note that it is necessary for the Father to travel to (country omitted) on Christmas night, and remain there for a little while, due to the serious illness of his mother, and he will not be due to return until 7th January. However, over the January school holidays, and, indeed, well into February, it seems to me that the children can spend time with their father on a Sunday, and that the changeover venue should be the venue where the parties previously agreed to: (omitted) Railway Station. I will make an injunctive order about driving.
As to parental responsibility, under subsection 61DA (3) of the Act, the Court would normally make an order for equal shared parental responsibility when making interim orders. There may well be circumstances where it is not appropriate to do so, but I do not consider that such circumstances arise in this case. I will most certainly make an order that the children are to live with the Mother.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 21 December 2015
[1] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
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