Dalley and Dalley (No.4)
[2016] FCCA 1370
•7 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DALLEY & DALLEY (No.4) | [2016] FCCA 1370 |
| Catchwords: FAMILY LAW – Children – Contravention – contravention of parenting orders – interim orders – views of the children considered – where children are reluctant to spend time with the Father. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CD, 68LA, 70NBA, 70NEA, 70NEB |
| Cases cited: Dalley & Dalley [2015] FCCA 3459 Dalley & Dalley (No.3) [2016] FCCA 959 |
| Applicant: | MR DALLEY |
| Respondent: | MS DALLEY |
| File Number: | SYC 4420 of 2011 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 17 May 2016 |
| Date of Last Submission: | 17 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 7 June 2016 |
REPRESENTATION
| Solicitor for the Applicant: | Mr McCann |
| Solicitors for the Applicant: | Anderson Lawyers |
| Counsel for the Respondent: | Mr Ryan (direct brief) |
| Independent Children's Lawyer: | Mr Bell |
| Solicitors for the Independent Children's Lawyer: | Stephen William Bell |
ORDERS
UNTIL FURTHER ORDER
All earlier parenting Orders are suspended.
The children X born (omitted) 2003 and Y born (omitted) 2004 are to spend time with the Father from 9:00 am to 5:00 pm as follows:
(a)On Boxing Day 26 December in each year;
(b)On Easter Monday in each year;
(c)On Sunday 26 June 2016;
(d)On the Sunday immediately prior to the Father’s birthday in 2017 and subsequent years;
(e)On Sunday 17 July 2016;
(f)On Sunday 16 July 2017;
(g)On Sunday 20 November 2016;
(h)On Sunday 19 November 2017;
(i)On Father’s day in each year; and
(j)At such other times as the parties may agree.
If either of the children expresses a wish not to spend time with the Father on a day prescribed by these Orders then the Mother must inform the Father fourteen (14) days beforehand.
The Father is restrained by injunction from using abusive or offensive language to or in the presence or hearing of either of the children.
The Father is permitted to send the children Christmas cards and gifts and birthday cards and gifts.
Each parent is permitted to communicate directly with either of the children’s schools, sporting bodies and medical practitioners to obtain any necessary information or documents about the children’s progress and this Order shall constitute sufficient authority for such communication.
The Father is permitted to obtain copies of the children’s school reports from the children’s respective schools together with copies of school bulletins, newsletters, information about school photographs and other information normally provided to parents of children attending the particular school.
Each parent must keep the other parent advised of the health of the children or either of them including serious illness, medication or hospitalisation of the children or either of them as soon as is reasonably practicable.
In accordance with the provisions of section 62G of the Family Law Act 1975 the parties and the children are to attend upon a Family Consultant at a time, date and place nominated by the Director of Child Dispute Services for the purpose of interviews to prepare a Family Report on matters concerning the care, welfare and development of the children X born (omitted) 2003 and Y born (omitted) 2004.
The Mother is to file and serve an Application to discharge, vary or suspend the primary order together with an affidavit in support within twenty-eight (28) days.
The parties are to pay their own costs.
The substantive Application is transferred to the docket of Judge Boyle and is listed before Judge Boyle at 9:30 am on 20 July 2016 for the purpose of setting a final hearing date.
IT IS NOTED that publication of this judgment under the pseudonym Dalley & Dalley (No.4) 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
| MR DALLEY |
Applicant
And
| MS DALLEY |
Respondent
REASONS FOR JUDGMENT
Application
These are contravention proceedings. The Court has found that on two occasions the Respondent Mother without reasonable excuse contravened an interim parenting order made on 21st December 2015.[1] The Mother established a reasonable excuse for another contravention on Christmas Day 2015.[2] The matter has come back to Court so that orders can be made to address the two contraventions that have been found.
[1] Dalley & Dalley [2015] FCCA 3459
[2] Dalley & Dalley (No.3) [2016] FCCA 959
After hearing submissions from the parties’ legal advisers, noting that it was the Mother’s case that the children had refused to spend time with the Father, I ordered that the children’s interests should be independently represented by a lawyer under the provisions of s.68L of the Family Law Act 1975 (Cth).
The Independent Children’s Lawyer, Mr Bell, has now attended Court and has provided a detailed and extensive Case Outline. He has proposed that the Orders made on 21 December 2015 should be varied under the provisions of s.70NBA(1)(b)(ii) of the Family Law Act 1975. The reason for this proposal is that the Independent Children’s Lawyer interviewed the children as recently as the day before the hearing and has advised the Court that their views are very much to the effect that they do not want to spend time with their father.
The proposed orders are broadly supported by Counsel for the Respondent Mother and opposed by the solicitor for the Applicant Father.
Submissions
The Independent Children’s Lawyer, Mr Bell, submitted that in his view the children’s complaints about their father were genuine. They were offended by the fact that the Father had sworn at people when they were out with him and said that he had been unable to control his behaviour. This behaviour has caused the children to become scared. Mr Bell submitted that there was a need to protect the children from embarrassment and fear that the Father’s anger would be turned on them.
The older child, X, had written to the Father on 22nd December 2015 stating that she felt scared and unsafe whenever she was around him:
She related an incident that occurred at (omitted) Station on 22 November 2015 where she alleged she was embarrassed by the father swearing at another person and becoming aggressive towards that person. She stated “you make me feel sick before I see you”.[3]
[3] Case Outline filed in Court on 17 May 2016 page 3
There was no evidence that the Father had acknowledged or provided a response to the letter from X.
Mr Bell went on to submit that the Father has had limited time with the children and in the past few years has spent time with the children no more than 4 or 5 times. Further, the medical evidence relating to the serious head injury sustained by the Father in a motorcycle accident in (country omitted) some years ago and the Father’s own admissions show that at times the Father has been unable to control his behaviour and this behaviour caused the children to become scared.
Mr McCann, who appeared for the Father, submitted that his client’s view about the letter from X was that she had been manipulated by the Mother. He said that the Father and the children had been denied the opportunity for a meaningful relationship by the Mother. It was the Father’s case that there should be no change to the interim Orders.
Mr McCann noted that the children’s most recent school reports which had been tendered showed that the children were both doing well at school. This, he submitted showed that the children were not at all traumatised by their father’s behaviour.
Mr McCann supported an order for a Family Report under the provisions of s.62G of the Family Law Act for the purposes of a final hearing on parenting.
It was conceded on behalf of the Father that the Mother would not have a capacity to pay any fine imposed by the Court.
Mr Ryan of Counsel, for the Mother, submitted that his client was broadly in agreement with the Independent Children’s Lawyer (ICL). He told the Court that the ICL had recently spoken to the children and their views should be given some weight.
Conclusions
The Court is considering whether or not to make interim parenting orders as proposed by the ICL. This will as Mr Bell submitted require the Court to consider the best interests of the children under s.60CA of the Act and the various matters under s.60CC.
Section 60CC of the Family Law Act sets out how a court determines what is in a child’s best interests. The primary considerations are to be found in s.60CC(2) and there are also additional considerations in s.60CC(3).
The primary considerations are:
a)the benefit to the child (or children, in this case) of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child (or children) from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
It is clear that the Mother has been the children’s primary carer. Since the Father’s accident in 2008, he has spent relatively little time with the children. This should not mean, however, that there would be no benefit to the children in developing a meaningful relationship with their father. He clearly wants to develop that relationship.
The concern here is that the children particularly X, express a fear of their father’s behaviour when they are with him. It is significant that the children have reiterated this view in a recent interview with the ICL. The Father claims that the children have been manipulated by the Mother but there is no way that the Court can arrive at such a conclusion without testing the evidence by cross-examination.
One matter to be considered and an important matter in this case, is whether the children have expressed any views. One way for the Court to inform itself of views expressed by a child is by way of advice from the Independent Children’s Lawyer (Family Law Act, s.60CD(2)(b)). The Independent Children’s Lawyer is required by s.68LA(5)(b) of the Act to ensure that any views expressed by the child (or children) in relation to the matters to which the proceedings relate are fully put before the Court which Mr Bell has done in this case.
Mr Bell has prepared some draft orders with which the Mother is broadly in agreement but the Father opposes, submitting that the interim Orders made on 21st December 2015 should remain.
In my view, the draft orders are a useful guide and do take account of the children’s expressed views. The children are aged 11 (Y) and nearly 13 (X) and in my view the Court should give some weight to their views. The information about those views is very recent and has come through the Independent Children’s Lawyer who is, by definition, independent.
I note that the orders proposed by the ICL would have the Mother nominating the days when the Father would spend time with the children. I am not satisfied that this is a workable solution, noting the poor communication between the parents at present. I believe that there should be definite dates set to avoid confusion and controversy. I am also of the view that the children should spend some time with their father on Father’s Day for which no provision has been made in the ICL’s draft orders. In addition, I will specifically order that the Father is restrained from using abusing or offensive language to or in the presence or hearing of the children. The ICL reported that the children were offended and embarrassed by the Father’s action s in swearing at other people when they were with him.
I will order accordingly.
In accordance with s.70NEA of the Act, I consider that the contraventions should be dealt with under Subdivision E, noting that no court has previously made an order imposing a sanction or taking an action in respect of a contravention by the Mother of the primary order.
In accordance with s.70NEB(1), which sets out the powers of the Court, I propose to order that:
a)the Mother is to apply to apply for a further parenting order that discharges, varies or suspends the primary order (s.70NEB(1)(c)); and
b)the parties are to pay their own costs (s.70NEB(1)(f)).
I will order a Family Report under the provisions of s.62G(2) of the Family Law Act for the purposes of the final hearing.
As I have no hearing dates left in my docket due to my forthcoming retirement, I will transfer the matter to the docket of Judge Boyle for callover on 20 July 2016 to allocate dates for a final hearing.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 7 June 2016
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