Daly and Flynn
[2010] FMCAfam 488
•31 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DALY & FLYNN | [2010] FMCAfam 488 |
| FAMILY LAW – Parenting – interim – whether changeovers should be supervised – family consultant’s recommendations. |
| Family Law Act 1975, ss.60CA, 60CC(2), 60CC(3), 60CC(4) |
| Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR DALY |
| Respondent: | MS FLYNN |
| File Number: | MLC 1036 of 2008 |
| Judgment of: | Monahan FM |
| Hearing date: | 31 March 2010 |
| Date of Last Submission: | 31 March 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 31 March 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Dr Sheehan |
| Independent Children’s Lawyer: | Ms Jenkinson |
| Counsel for the Mother: | No appearance by or on behalf of Mother |
ORDERS
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship [X] born [in] 2007 (“the child”) attend upon Family Consultant Joy Slattery, or if Ms. Slattery is unavailable another Family Consultant nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry on a date and at time/s to be advised for the purposes of the preparation of a Further Updated Family Report, such Report to be released by no later than
35 days prior to the Final Hearing.The Family Report to deal with the following matters:
(i)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
(ii)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(iii)any other matters that the Family Consultant considers important to the welfare or best interests of the child.
The parties send copies of any of their Court documents to the Family Consultant within seven (7) days of being requested to do so by the Family Consultant.
If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their legal representatives to) notify in advance the relevant Family Consultant of his or her need to attend Court.
AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Paragraphs 4, 5, 6, 7, 8 and 9 of the Orders of this Court dated
23 March 2009 be discharged.
Paragraphs 1, 2, 3, 4, 5 and 6 of the Orders of this Court dated
19 August 2009 be discharged.
The Father spend time and communicate with the child as follows:
(a)for four (4) hours on 3 April 2010, with changeover to occur at [B] Contact Centre (“the Centre”), at such times as may be suitable for the Centre to facilitate changeover, with such time to supervised by the paternal grandmother.
(b)thereafter, for four (4) hours on 9 April 2010, and each Friday thereafter, with changeover to occur at the Centre at such times as may be suitable for the Centre to facilitate changeover, such times to be in the substantial presence of the paternal grandmother and such visits to occur each week until 20 May 2010;
(c)thereafter, commencing 21 May 2010, for six (6) hours each Friday with changeover to occur at the Centre at such times as may be suitable for the Centre to facilitate changeover;
(d)for six (6) hours on Father’s Day, with changeover to occur at the Centre; and
(e)at such other times as may be agreed between the parties, in writing between their lawyers, from time to time.
The parties utilize a communication book which is to travel with the child, such book to contain only very brief notifications to the other parent as to significant issues which must be brought to the attention of the other parent for the child’s welfare and well being.
The Mother keep the Father informed of her current telephone number, email address and a contact address, including any changes thereto within seven (7) days of such changes.
The parties ensure that when the child is transported by motor vehicle she always be appropriately restrained in an age appropriate and weight appropriate ASA approved child restraint.
AND THE COURT ORDERS THAT:
The matter be adjourned to this Court on 8 July 2010 at 10.00 am for Final Hearing before Roberts FM, with an estimated hearing time of
2 days (“the Final Hearing”).
In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations.
The Father make, file and serve any further Affidavit/s and amended Application/s to be relied upon by 4.00 pm 21 days prior to the Final Hearing.
The Mother make, file and serve any further Affidavit/s and amended Response/s to be relied upon by 4.00 pm 14 days prior to the Final Hearing.
The Independent Children’s Lawyer make, file and serve any Affidavit to be relied upon by 4.00 pm 7 days prior to the Final Hearing.
On or before 4.00 pm 3 days prior to the Final Hearing, each party [and the Independent Children’s Lawyer] must make, file and serve an Outline of Case document including the following:
PARENTING
1. a list of the documents to be relied upon;
2. a brief chronology;
3. an outline of contentions with respect to:
3.1. whether the presumption of equal shared parental responsibility applies (s.61DA),
3.2. the considerations relevant to equal time and substantial and significant time (s.65DAA);
3.3 each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);
3.4. other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and
3.5. any other matters relevant to the decision; and
4. a statement of the precise orders sought.
AND THE COURT NOTES THAT:
A. The orders above are based on and in accordance with the proposed orders of the Independent Children’s Lawyer provided to the Court on 26 March 2010.
B. The Mother and her solicitors were excused from appearing today, and the Independent Children’s Lawyer has undertaken to advise the Mother’s solicitors of the content of today’s orders.
C. In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a)the filing of documents; or
(b)any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the Final Hearing date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
D. To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the Final Hearing date.
E. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Daly & Flynn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 1036 of 2008
| MR DALY |
Applicant
And
| MS FLYNN |
Respondent
REASONS FOR JUDGMENT
Introduction
The child relevant to this dispute is [X] born [in] 2007 (“[X]” or “the child”). Despite having only just celebrated her third birthday, [X] has been the subject of proceedings between the parties for more than two years. Whether [X] will still be before this Court at age four will, of course, depend on the future course of these proceedings.
[X]’s father is Mr Daly, aged 42 (“the father”), who is seeking various parenting orders in relation to the child, including equal shared parental responsibility and that the child live with him and spend time with the mother. He is also seeking interim orders that the child remain living with the mother and spend time with him. His application is supported by his affidavits filed in these proceedings, namely his affidavit sworn and filed on 6 February 2008 and his affidavit sworn on 5 March 2009 and filed on 12 March 2009. He also relies on the affidavit of his mother, Mrs D, the paternal grandmother, sworn on 29 October 2009 and filed on 10 November 2009. At the interim hearing conducted by me on 26 March 2010 the husband was legally represented by
Mr Hammill of counsel.
The respondent is Ms Flynn, aged 39 (“the mother”), who in her response filed on 8 February 2008 opposes the orders sought by the applicant and is seeking different parenting orders in relation to the child. More specifically she is seeking sole parental responsibility for [X], and that the time spent by the father with [X] be subject to obtaining a psychiatric assessment of the father and a family report. Clearly, there is a need for the mother to consider an amended response, given that all these reports have now been done. Indeed, there were three family reports released between July 2008 and July 2009. The respondent mother relies on her affidavit sworn on 7 May 2008 and filed on 8 May 2008. At the interim hearing held on
26 March 2010 she was legally represented by Mr Howe of counsel.
Pursuant to an order made by O’Sullivan FM on 12 May 2008,
Ms McGregor was appointed as the Independent Children’s Lawyer (“ICL”) to represent [X]’s best interests. Ms McGregor also appeared in that capacity at the interim hearing before me on 26 March 2010. The matter has come before the Court on several occasions prior to the interim hearing before me on 26 March 2010. On 12 May 2008 orders were made by O’Sullivan FM for both parties to undergo a psychiatric assessment, for both parties to sign the necessary paperwork at [B] Contact Centre, and for a family report to be prepared.
When the matter returned before his Honour on 27 August 2008 interim parenting orders were made by consent, inter alia, for the parties to complete the intake procedures at [B] Contact Centre and for the father to obtain a referral to a psychiatrist acceptable to the ICL. When the matter returned before his Honour on 23 March 2009 for final hearing that did not proceed, and by consent further interim parenting orders were made including, until further order, that:
“2. The parents have equal shared parental responsibility in respect of the child [X]…;
3. The child shall live with the mother;
4. The child spend time and communicate (“contact”) with the father:-
a. at [B] Contact Centre at times as directed by [B] Contact Centre but not less than two hours per fortnight; or
b. otherwise as agreed between the parents from time to time;
5. The contact in 4 above shall be supervised by nominees of [B] Contact Centre and [B] Contact Centre is requested to provide a report on contact upon request from the ICL.
6. The parents shall do all things necessary to facilitate the contact in 4 above.”
In addition there were also various orders in respect of the father’s treatment with Dr E.
When the matter returned before his Honour on 19 August 2009 various parenting orders were made again by consent, including orders that:
“1. Paragraphs 2 to 10 of the orders made 23 March 2009 remain in full force and effect;
2. That the time spent between [X] and the father referred to paragraph 4 of the orders made 23 March 2009 continue as ordered until 22 November 2009.
3. That commencing on 22 November 2009 the paternal grandmother be at liberty to attend the contact centre appointments with the father and it is request that she do so.
4 That the involvement of the paternal grandmother referred to at paragraph 3 herein is conditional upon;
a) her swearing a detailed affidavit to be filed by the father setting out her suitability to supervise the father’s time with [X] and her response to the mother’s allegations regarding her mental health; and
b) the appropriate staff member of [B] Contact Centre be satisfied that the paternal grandmother is an appropriate person to be involved in the time spent between the father and [X].
5. That the father communicate with [X] via telephone as follows:
Wednesdays at 9 am, 6 pm
Noted by the father that the mother may not be available at 6 pm
6. That the mother and father maintain a communication book to communicate issues in relation to [X]’s care, welfare, and development, such book to pass between the parties for all periods of time spent between [X] and the father.”
The orders were accompanied by a number of notations, including as follows.
“A. It is envisaged that the paternal grandmother will attend each scheduled contact visit, however, a failure by her to attend with reasonable excuse shall not be a reason for the father’s time to be suspended, unless the paternal grandmother misses more than two consecutive visits in which case it is the intention that this matter be brought before this Honorable [sic] Court by the parties.
[and]
B. The parties agree that the purposes of the 26 March 2010 hearing will be to determine the arrangements for the father to spend time with [X] away from the contact centre with the paternal grandmother to initially be in substantial attendance, and ready this matter for Final Hearing.”
His Honour also adjourned the matter as foreshadowed to an interim hearing on 26 March 2010. As stated, the matter came before me on that day, along with a number of other matters formerly docketed to his Honour. After allowing the parties time to have discussions I was advised that the parties were in dispute and required a judicial determination of the interim matters, more particularly the issues raised in notation B of the consent orders made on 19 August 2009.
Background
The parties had a brief relationship between May and July 2006, they never cohabited, and the pregnancy that resulted in [X]’s birth in 2007 was unplanned. The mother has two children from a previous relationship, but provides little details about these children in her affidavit. The father asserts that her other children are [Y] and [Z] who are now aged about eight and six respectively. The mother’s counsel confirmed to me in Court on the last occasion that these children live with the mother and spend alternate weekends with their father.
The case to date has been marred by claim and counterclaim about each of the parties, the paternal grandmother, and the deceased maternal grandfather and their respective mental health. There are also assertions made by the mother against the father that he was sexually promiscuous in the past and a gambler. Notwithstanding, what is clear is that the child has only spent limited time with the father without the mother being present, all in a supervised environment.
Issues
The issue in this interim decision focuses on whether the father should spend unsupervised time with the child, and if so its frequency and under what circumstances. The matter is complicated by the distances between the parties’ respective residences which according to Google Maps is approximately 160 km or 1 hour 50 minutes by car. It is also complicated by the husband’s casual employment which it appears precludes him from spending time with [X] on weekends. The father has for the last six months or so been spending time on Fridays at the [B] Contact Centre. Despite his application for final orders seeking for the child to live with him, the father is only at this stage seeking to spend time with the child in accordance with his minute of proposed orders.
The relevant paragraphs of the minute are as follows:
“3. That from Friday 2nd April 2010 and for a period of 2 months the Father have contact with [X] from 10 am to 4 pm with the paternal grandmother (or other responsible adult) to be in substantial attendance…
4. That from Friday 7th May 2010 and for a period of 4 months the Father have contact with [X] from 9 am to 6 pm with the paternal grandmother (or other responsible adult) to be in substantial attendance…
5. That from Friday, 3rd September 2010 for a period of two months the Father have contact with [X] from 10 am Friday to 10 am Saturday (“overnight”) or on an alternate weekly (“fortnightly”) basis and with the paternal grandmother (or other responsible adult) to be in substantial attendance…
6. That to facilitate contact the Father shall collect the child at the start of the contact period from [the child’s home address] and the mother shall collect the child from the Father’s home address at the conclusion of the contact period.
7. That the child telephone contact the father once per week by telephone… To facilitate such contact the respondent shall allow the father to call on Wednesday’s at either 9:00 am or 6:00 pm.
8. Should there be a need for one parent to advise the other of any matter relating to the care and wellbeing of the child such advise [sic] to be reduced to writing to accopmpany [sic] the child at changeover.”
The father asserts that his proposals are consistent with the recommendations made by the family consultant, Ms Joyce Slattery, in her updated family report dated 27 July 2009. What Ms Slattery recommends in her report was as follows, quoting from paragraphs 53 to 60:
“53. At this time it is recommended that Mr Daly and Ms Flynn share parental responsibilities for [X].
54. At this time it is recommended that [X] lives with Ms Flynn.
55. At this time it is recommended that [X] continues to spend time with Mr Daly at the [B] Contact Centre and after six months that Mr Daly’s mother is introduced to [X] at the [B] Contact Centre and that she also attends each visit with Mr Daly. If after a further four months the report from [B] Contact Centre raises no concerns, and Dr E provides a short report to the Independent Children’s Lawyer that raises no concerns then Mr Daly starts spending time with [X] for half a day each week with his mother present, and after two months this increases to one day each week. If these times proceed appropriately for [X] then after a further two months [X] has an overnight stay with Mr Daly with his mother present once a fortnight.
56. It is recommended that when [X] turns five she spend alternate weekends with Mr Daly from Friday from after school to Sunday evening. It is recommended that by this time school holiday times start on a gradual basis for three days to start with and this increases over twelve months to half the school holidays.
57. It is recommended that [X] communicates with Mr Daly by phone once a week.
58. It is recommended that Mr Daly and Ms Flynn attend a parenting orders program at Centacare.
59. It is recommended that Mr Daly and Ms Flynn start using a communication book as a means of passing information to each other about [X].
60. It is recommended that the Independent Children’s Lawyer remain involved if possible for the next twelve months to monitor the progress and receive ongoing brief reports from Dr E and also a report from the [B] Contact Centre at the end of six months to monitor the introduction of Mr Daly’s mother and again at the conclusion of the [B] Contact Centre to monitor the next step of [X] spending time with Mr Daly away from the [B] Contact Centre.”
The ICL proposes a different outcome. The ICL’s minute of proposed orders is also supported by the mother. The ICL’s minute seeks orders including:
“3. THAT until further order the father spend time & communicate with the child [X] born [in] 2007 as follows:
a. for 4 hours on 3 April 2010 with changeover to occur at [B] Contact Centre, at such times as may be suitable for the Centre to facilitate changeover, such time to be supervised by the paternal grandmother;
b. thereafter, for four hours on 9 April 2010, and each Friday thereafter, with changeover to occur at [B] Contact Centre at such times as may be suitable for the Centre to facilitate changeover, such times to be in the substantial presence of the paternal grandmother and such visits to occur each week until 20 May 2010;
c. thereafter, commencing 21 May 2010, for 6 hours each Friday with changeover to occur at [B] Contact Centre at such times as may be suitable for the Centre to facilitate changeover.
d. for six hours on Father’s Day with changeover at [B] Contact Centre.
e. at such time as may be agreed to between the parties in writing between their lawyers from time to time.
4. The parties utilise a communication book which is to travel with [X], such book to contain only very brief notifications to the other parent as to the significant issues which must be brought to the attention of the other parent for [X]’s welfare and wellbeing.
5. The mother keep the father informed of her current telephone number, email address and a contact address, including any changeovers within 7 days of such changes.
6. The father keep the mother informed of his current telephone number, email address, and residential address, including any changeovers thereto within 7 days of such changes.
7. The parties each ensure that when [X] is transported by motor vehicle that she always be appropriately restrained in an age appropriate and weight appropriate ASA approved child restraint.”
The ICL’s minute also contained procedural orders with respect to setting the matter down for hearing and requesting an updated family report.
Agreed and disagreed facts
The parties are not in any disagreement that the current orders providing for equal shared parental responsibility should remain in full force and effect. There is no disagreement that the father should spend time, initially supervised by his mother, the paternal grandmother, with [X], but not in a contact centre.
They disagree as to whether changeovers should occur at [B] Contact Centre or elsewhere, and as to the length of the spend time visits. The father is seeking that changeovers occur at each of their homes; the mother’s home at the commencement of the time and the father’s home at the conclusion of the time spent. He is also seeking overnight time to commence from September 2010. As stated, he is unavailable at this stage to spend Saturdays or Sundays with [X] due to work commitments, but is available on Fridays and apparently now available on Wednesdays. I have assumed his Saturday work would commence after 10 am.
Submissions
Mr Hammill for the father argued that the minute proposed by the father reflects the recommendations made by Ms Slattery in her most recent report. He refers to the fact that notation B to the orders made by consent on 19 August 2009 flagged this direction, and Mr Hammill asserted that it was, in his words, “the clear intention of O’Sullivan FM for those recommendations to now be in place”. In other words, the Slattery recommendations of half a day each week with the mother to be present, and after two months this increases to one day each week.
Mr Hammill submitted that the ICL’s minute does not reflect the Slattery recommendations which he described in his words as, “the view of the expert.” Mr Hammill also submitted that the matter is complicated by the considerable distances between the parties’ residences and the current necessity for the father and the paternal grandmother to drive great distances to spend time with [X]. He submitted that, ideally, a changeover point halfway between the parties was not only fair but practicable, or alternatively that the child is collected at one residence and returned to the other.
Mr Howe for the mother agreed that the interim hearing was about the next step in the father’s time to be spent with the child, but disputed that it was a certainty that Ms Slattery’s recommendations would be adopted without consideration to all the relevant facts and circumstances. Mr Howe asserted that had all the contact visits gone well that may have been the submission of the mother, but submitted that not all the contact visits had progressed well and that there were some issues about the father’s attitude that needed consideration, in particular his issues with communication to the child by phone. As an example, Mr Howe referred to several matters that arose out of the [B] Contact Centre contact centre report (“the report”), and more specifically the affidavit of Ms W, the team leader at [B] Contact Centre, sworn on 17 March 2010 and filed on 24 March 2010.
Mr Howe referred to an entry which appears where the father states in his handwriting:
“I’m extremely concerned at the emotional distraught state that [X] is being presented to in [B] Contact Centre.”
Mr Howe then referred to an entry for the father that stated just above:
“On 18 November 2009 at 9 am when I last attempted to phone contact we spoke about and you agreed [X] needed to see a child psychologist. This conversation was recorded.”
and it goes on.
Mr Howe also referred to page 32 of the report, under the heading, “Reactions of the child and the visiting family member at termination of contact” where it states:
“When time to leave Mr Daly initially asked [X] for a hug and a kiss. [X] moved away from him. He asked if he could shake her hand. She told him he could shake her foot. He said okay, and she held out her leg. He shook her foot. Mrs D asked if she could shake [X]’s foot. [X] moved so she could hold her leg out to her Nan. Mr and Mrs D left the room saying goodbye, [X] looked at them and lent on a horse while watching them leave.”
Mr Howe also referred to some entries on page 29 and 30 of the report under the heading, “Reactions of the child and visiting family member at termination of contact” where it states:
“When told it was time for her father and grandmother to leave, [X] picked up the pictures they had drawn and went to the door to where their mother would be. Mrs D asked [X] for a hug, [X] stood near the couch, Mrs D asked her to shake her hands, [X] put her foot in the air, Mrs D shook her foot saying, ‘a hand & foot shake is just as good.’ Mr Daly asked [X] for a hug and a kiss, he went to her, she moved away, he attempted to kiss her on the head, she ducked away, he then stated, “okay I’ll just say goodbye.” He and Mrs D both said goodbye, [X] stood looking at the door that would go through to her mother. Mr and Mrs D left the room saying goodbye.”
Lastly, Mr Howe took the Court to a reference on pages 28 and 29 of the report under the heading, “Visiting family member’s reactions on arrival to centre and children and visiting family member’s reactions when contact commenced” where it states:
“Mr Daly entered stating hello, Mrs D followed him, writer gave Mr Daly the communication paperwork and he sat reading this. When writer told [X] it was time for her father to come in, [X] lay on the floor in front of the couch as if she was trying to get under it. When Mr Daly entered [X] was lying on the floor, he said hello to her and asked if she was trying to get under there, then commented she wouldn’t fit and the couch would need to be lifted up. [X] stood up, Mr Daly asked for a hug, [X] moved away going to the dolls house picking up horse figurines. Mrs D said hello to [X], [X] continued to play with the figurines.”
Mr Howe submitted that these examples demonstrated that [X] showed, in his words, “no spontaneous affection” for the father and also demonstrated that the father was not child-focused. Mr Howe submitted that the recording of telephone conversations was particularly disturbing. That having been said, the mother’s agreement with the ICL’s proposal for time to be spent away from supervision by [B] Contact Centre was a recognition that there had been, in
Mr Howe’s words, “good progress” made since the orders were made last August.
Lastly, Mr Howe submitted that the child’s best interests demanded orders that focused on the child. The orders should not be about, in
Mr Howe’s words, “reintroducing the child to the father, but rather about introducing the child to the father”.
Ms McGregor asked the Court not to lose sight of the fact that [X] had just turned three and had never lived with the father, and nor is there any history between the parties. These facts, in Ms McGregor’s submission, make the outcomes needed more complex. There is also clear difference of opinion as to what Ms Slattery meant when she used the term “half-day” in her report. Ms McGregor submitted from her own experience that this should translate to three to four hours a day for a three-year-old child.
Ms McGregor suggested that Saturday contact would be better for [X] because it afforded more activities being available for the father to share with his child. Nevertheless, Ms McGregor notes the father’s request for Fridays and has accommodated that in her minute of proposed orders.
Ms McGregor submitted that the supervised changeovers at [B] Contact Centre were needed because the parties simply don’t trust each other and provided a safe, neutral changeover venue. Importantly, a changeover report could be obtained to assist the court at the final hearing.
Ms McGregor submitted that telephone communication with a three-year-old was problematic and possibly not that productive.
Lastly, Ms McGregor asked the Court to order an updated family report and to consider listing the matter for a final hearing in September.
In his response Mr Hammill suggested that Mr Howe for the mother was simply, in his words, “cherry picking” a comment or two from the [B] Contact Centre report.
Mr Hammill submitted there were positive examples in the report that the Court should take note of. Mr Hammill, in particular, took the Court to the final page of the report which attaches a letter from Centacare to the father dated 21 January 2010. That letter, from Ms G, family counsellor, of Our Kids Parenting Orders Program, states:
“Following our phone conversation on Wednesday 9th December 2009 I contacted [B] Contact Centre as agreed to discuss and explore your concerns with them. The feedback that I received indicated that the contact was going well and that [X] settles well even if though [sic] the situation may have been initially distressing. Observations were made that [X] warms to you during the visits, does not hesitate to interact with you and finds it hard to say goodbye to her father.
My conversation with [B] Contact Centre highlights that there are a number of appropriate developmental behaviours being established between you and your daughter and the staff at [B] Contact Centre are very encouraging and positive about their observations between you and [X].
I would encourage you to continue with the contact at [B] Contact Centre and any concerns please raise them with [B] Contact Centre staff.”
Mr Hammill also referred to paragraph 46 of Ms Slattery’s last report where she states, and I quote:
“Since the visits at [B] Contact Centre recommenced in May 2009 Ms Flynn has been facilitating [X] to spend time with
Mr Daly. Whether Ms Flynn has genuine fears about Mr Daly’s mental health is unknown and how Ms Flynn would manage if
Mr Daly starts to spend time with [X] away from the [B] Contact Centre is unknown. The only information about Mr Daly’s mental health will be obtained from Dr E. So far the information obtained in the [B] Contact Centre indicates that Mr Daly is appropriate with [X] and is tending to her at all times. It is my view that no concerns have arisen about Mr Daly’s behaviour or the manner in which Mr Daly conducts himself with [X]. I was very impressed how Mr Daly managed and tended to [X] during the observation session. If no concerns are raised during six months at the [B] Contact Centre and Dr E has no concerns, then it is my view that Mr Daly’s mother should become involved unless it is found that there are concerns about her involvement.”
The father seeks an early final hearing date, preferably in July this year if it was available, and agrees that an updated family report is needed. Unfortunately, the father’s work commitments precluded Saturday contact time.
Mr Howe replied that the wife only receives minimal child support and would find it financially challenging if she needed to drive any considerable distances for changeover.
Law
The Full Court of the Family Court decision of Goode & Goode (2006) FLC 93-286 (“Goode”) guides this Court’s approach in making interim decisions and interim orders in relation to parenting disputes. At paragraph 81 of the Goode decision the Full Court noted, and I quote:
“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.”
This matter is such a case. More specifically this raises the reality that the Court cannot fully determine issues of credit at an interim hearing, as the evidence being presented by the parties to the court has not been tested by cross-examination.
That having been said, in the same paragraph, that is paragraph 81 of the Goode decision, the Full Court went on to say, and I quote:
“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 at an interim hearing.
There is considerable animosity and distrust, it would appear, between the parties in this case, and no doubt the history of the matter will be the subject of evidence and cross-examination at the final hearing. Given the brevity of their relationship, this is not surprising.
There is no issue of equal shared parental responsibility to determine today. The dispute is simply limited to the issue of the child’s time with her father and under what circumstances that time will be spent.
At paragraph 82 of the Full Court decision in Goode the Court indicates that the starting point in determining these issues is to identify the competing proposals, identify the issues in dispute, and identify any agreed or uncontested facts before applying the best interests principle, and I note that I previously noted the proposals and issues in dispute earlier in this decision. Section 60CA of the Act provides, and I quote:
“In deciding whether to make a particular parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration.”
To determine the best interests the Court must consider the primary considerations or factors set out in section 60CC subsection (2) of the Act and the additional considerations referred to in subsection (3) where relevant. I’ll briefly canvass these now.
Primary considerations: section 60CC(2)
Under section 60CC(2)(a), the Court is under an obligation to consider:
“the benefit to the child of having a meaningful relationship with both of the child’s parents;”
At this point let me note that meaningful does not mean equal, but clearly it signifies that both parties 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 a right of the child enunciated in the Act. Consequently, the Court will, in all likelihood, need to give some considerable weight to this factor at a final hearing, should such be needed.
Secondly, the Court is required under section 60CC(2)(b) to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence. There is no doubt that it would be in [X]’s best interests to develop a meaningful relationship, not just with her mother, but with her father. That needs to be balanced in respect of protecting this child from any physical or psychological harm and the like. There are issues here warranting investigation and the Court needs to tread cautiously in the interim arrangements that will be necessary today, given the history of this relationship, the alleged mental health issues affecting the father, the distances between their residences, [X]’s very young age, and her relationship clearly with her siblings.
Additional considerations: section 60CC(3)
I would firstly note that the “views expressed by the child” whilst significant will be difficult to determine in this case, given her very young years. Nevertheless, this is something that the family consultant will no doubt be able to assist the Court on at a final hearing, should such be needed.
As to “the nature of the relationship of the child with each of the child’s parents”, again we have different stories here and the parties’ evidence needs to be tested. As to 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”, this is a crucial factor here. The father appears focused on the number of hours that he’s only been able to spend with the child. His impatience is understandable, but perhaps not particularly child-focused as it could be. The child will remain his child for the rest of his life. That is a fact that the mother cannot ignore or impede.
As to the “likely effect of any change in the child’s circumstances”, clearly there needs to be some change here. Both parties recognise this. Contact centres do not provide a permanent solution to parenting disputes. They are nonetheless crucial in solving short-term protection problems, and in this case assisting a first-time single parent to parent.
As to the section 60CC(4) factor of the “extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent”, again we have different stories here. These stories will need to be tested.
Conclusion
Clearly, the Court will need to provide an outcome on the parties given their failure to agree on one. A reality check is needed, in my view. Whether the matter will benefit from an early final hearing is questionable. Nevertheless, I intend to organise that if possible.
As I won’t be hearing the matter on a final basis, let me state the obvious. If the matter was heard as early as July or as late as September it is unlikely, on the evidence currently before the Court, that the child would primarily live with the father. I understand why he would want that, but it is the child’s best interests that are paramount. The father may wish to reconsider the final orders he is seeking.
The other reality is that at some point down the track it can be expected, subject to evidence to the contrary, that [X]’s interests will be served by her spending substantial and significant time, if not equal time, with the father. But that will not be the outcome today, and nor is it sought. The parties will need to bridge their differences and, if humanly possible, develop a respect for one another as a parent of the child they created. [X] will demand that when she’s old enough to, and the one certainty that can be stated today is that [X] will grow up. But, at present, she is young and vulnerable. Her best interests are clearly served by having two loving parents who it appears clearly are both concerned about her welfare and care, and both wish the child to live with them. Both parties clearly want that role in [X]’s life, and there is no evidence before me today that would stop both parents having a significant role in [X]’s life.
The Court needs to tread cautiously nevertheless in making interim decisions about children, in particular preschool children. After considering the submissions in light of the evidence, and pursuant to the structured discretion in the Act, the Court agrees that the proposals sought by the ICL, with one exception, provide for [X]’s best interests. Ms McGregor is right when she submits that she is not bound by
Ms Slattery’s recommendations and neither is the Court, but it would be naive to think that following a testing of Ms Slattery’s evidence that her expertise would not carry some weight at the final hearing.
Clearly, Ms Slattery is signalling that unsupervised overnight time is on the horizon, but that is an issue that will need to wait until a later day.
I reserve the right to settle the reasons for this interim decision.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Monahan FM
Associate: M. Raggatt
Date: 31 May 2010
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