Delacroix and Delacroix

[2014] FamCA 941

FAMILY COURT OF AUSTRALIA

DELACROIX & DELACROIX [2014] FamCA 941

FAMILY LAW – CHILDREN – INTERIM PARENTING ORDERS – Where the father sought interim orders in relation to parenting – Where the father seeks a parenting arrangement that would see his son stay with the father overnight – Where the mother opposes the application on the basis that the child would be at risk of psychological or physical harm– Where the father had previously been admitted to hospital due to substance abuse – Where the father undertakes not to drink alcohol whilst caring for the child– Where the evidence does not suggest that the child would be exposed to substantial or unacceptable risk while in the father’s care – Best interests of the child – Where orders are made that the child spend overnight time with the father.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA

APPLICANT: Mr Delacroix

RESPONDENT: Ms Delacroix

FILE NUMBER: SYC 4987 of 2013

DATE DELIVERED: 10 September 2014

PLACE DELIVERED: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 10 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tilley

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Christie

SOLICITOR FOR THE RESPONDENT:

Orders (amended on 23 september 2014 pursuant to rule 17.02 of the Family Law Rules 2004):

1. That leave is granted to the legal representatives of the parties to inspect subpoena material produced by Dr KR. 

2. That, pending further order, commencing this coming weekend, the child J born … 2003 is to spend time with his father Mr Delacroix as follows:

   (a)from after school Friday until 12 noon the following Sunday and each alternate weekend thereafter; and

   (b)in the intervening week, from after school on Tuesday until before school the following Wednesday and each alternate week thereafter.  

3. That otherwise the child shall live with his mother Ms Delacroix. 

4. That pursuant to s 62G of the Family Law Act 1975 (Cth) a Family Consultant of this Registry shall prepare a family report for the assistance of the Court. The Family Consultant shall address the matters contained in s 60CC of the Family Law Act 1975 (Cth) in respect of the children H born … 2000 and J born … 2003 and any other matters the Family Consultant considers appropriate:

   (a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b) the nature of the relationship of the child with:

   (i) each of the child's parents; and

   (ii) other persons (including any grandparent or other relative of the child);

   (c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long-term issues in relation to the child; and

   (ii) to spend time with the child; and

   (iii) to communicate with the child;

   (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i) either of his or her parents; or

   (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f) the capacity of:

   (i) each of the child's parents; and

   (ii) any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii) the likely impact any proposed parenting order under this Part will have on that right;

   (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j) any family violence involving the child or a member of the child's family;

   (k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i) the nature of the order;

   (ii)the circumstances in which the order was made;

   (iii) any evidence admitted in proceedings for the order;

   (iv)any findings made by the court in, or in proceedings for, the order;

   (v) any other relevant matter;

   (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m) any other fact or circumstance that the court thinks is relevant.

1. That the parties shall attend all appointments nominated by the Family Consultant and ensure that the children attend all appointments as notified by the Family Consultant.

2. That leave is granted to the Family Consultant to inspect any subpoena material where leave has been granted previously for the parties to inspect. 

NOTATIONS:

1. The Court notes the undertaking of the father that he will not consume alcohol whilst the child J is spending time with him 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Delacroix & Delacroix has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4987 of 2013

Mr Delacroix

Applicant

And

Ms Delacroix

Respondent

REASONS FOR JUDGMENT

1. These are interim parenting proceedings concerning the child, J, who was born in 2003, and is currently 11 years old.  His parents commenced living together in 1993 and married in 1999.  They finally separated on 18 January 2013. 

2. Contested property and parenting proceedings have been fixed for hearing on 1 December this year.  They have not been able to agree on appropriate parenting arrangements for J for the next three months, and it is necessary for the court, therefore, to determine what is an appropriate arrangement for those next three months.

3. The child J has two siblings:  his brother, G, is currently 17 years old, and is a boarder at L School, returning to home to live with his mother and siblings at the weekend; his sister, H, is 14 years old, attends M School, and who lives with the mother and the other children.

4. For reasons it is not necessary to go into, the older children have been able to – or have been forced to, but are able to manage, to organise with their parents when they spend time with their father. 

5. The position with J is unfortunately different.  His parents, effectively, do not communicate at all, or when they do, the communication is spiteful and not helpful.  Each of the parents agrees that it is appropriate for the court to make a determination as to what is an appropriate arrangement for J.

6. Effectively, for the last few months, he has been organising when he spends time with his father whether there is contact between him and his father.  The mother has asked the father not to do so, but realistically, there would be no other way of J organising to spend time with his father.  As the family consultant pointed out, that is quite an appalling position for the child to have been placed in by his parents.

7. The proposals effectively before the court are these:  both parents accept that J will continue to live with his mother.  The father works some weeks involving weekends, and others involving week days.  He, accordingly, proposes that the child spends time with him from after school Friday to before school on Monday, in the first week, and then from after school Friday – or after school Tuesday until before school the following day.

8. The mother proposes that there be no overnight time, or that if there is overnight time, it should be one night a week, being Tuesday night.  The main concern the mother raises is the safety of the child, saying that there is a risk to his wellbeing and safety if he is in his father’s care for an extended time, including overnight.

9. In February 2013, the father was admitted to the C Clinic a few days after taking an overdose of 20 to 25 Temazepam tablets, together with half to three-quarters of a bottle of rum.  He was found by the mother who called an ambulance, and he was taken to the S Hospital, and, ultimately, transferred to the C Clinic.

10. The notes – the discharge summary of the clinic makes it quite clear that they regarded what occurred as a suicide attempt.  They noted – the clinic noted a significantly large history of alcohol consumption by the husband.  It was recommended on discharge he follow up with a psychiatrist.  It was said that he had made a good improvement, and hopefully will remain well.  It was important that he abstain from alcohol. 

11. On 3 June 2013, Dr KR, a consultant psychiatrist, provided a report to the father’s general practitioner.  He noted that the father reported drinking a maximum of one drink a night.  His report concluded by saying:

    [The father] did stop his Fluoxetine after discharge, and is currently not taking any medication.

12. Overall, it seems as though the father has remained in remission, and has been quite well, apart from dealing with the stress of the divorce.  The father will need support dealing with the relationship issues.  Although one reading of the husband’s affidavit might suggest that he was continuing to see Dr KR, it appears that he has not done so since the date of that report. 

13. That evidence indicates that there was a significant problem with the wellbeing of the father, but Dr KR does not identify any particular continuing issue.  The child J has been spending time with his father.  Symptomatic of the parents’ inability to agree on anything, they cannot agree on the amount of time he has been spending with his father.

14. However, the wife said in her affidavit, 4 September 2013, that J usually got picked up by his father after school 3.00 pm every second Friday, and dropped back at 8.30 am on the following day.  The father says that he saw J more frequently than that.  The child said to the family consultant that he is aware that his mother wants him to spend only one overnight on alternate weekend with his father, but he didn’t think that was enough time. 

15. Counsel for the mother accepted that for at least eight months J has been spending overnight time with his father and without any difficulty or concerns arising as to his wellbeing, but, nonetheless, said, in the light of the history to which I’ve just referred, the child remained at risk with overnight time, and raised the question, “How would a child of his age deal with a problem should it arise?”

16. It is to be remembered that I’m hearing this application on an interim basis, and it is neither necessary nor desirable to make final findings of fact.  That being said, it is necessary to determine whether there is evidence capable of establishing that there is such a risk of harm to the child on overnight time that would prevent the court from making an order for such time.

17. The evidence, to me, indicates that, although there was a difficulty, that difficulty, according to Dr KR, has been overcome, and is being managed, and the wife has not been able to point to any incidents of concern when J has spent overnight time with his father, and the child has, himself, not raised any such issues.

18. I am therefore not satisfied that there is evidence capable of establishing that there would be a substantial and unacceptable risk to harm of the child if he was to spend overnight time with his father. 

19. The task of determining what is an appropriate parenting arrangement for J is to be governed by the touchstone as to what is in his best interests. In determining what is in the child’s best interests, the court is to have regard to the matters raised in section 60CC of the Family Law Act1975 (Cth) (“the Act”). The first primary consideration is the benefit to the child of having a meaningful relationship with both of the child’s parents.

20. I did not understand any submission to be made by either party that J did not have and would not benefit from a meaningful relationship with both parents.  There is no suggestion, other than I’ve already discussed, that there is a need to protect J from physical or psychological harm from being subject to abuse, neglect or family violence. 

21. The views of the child are a relevant consideration.  J’s views are quite clear.  He told the consultant that he wanted to spend time with his father, Friday to Sunday, in the week that his father does not work, and Saturday and Monday to Thursday in the week that his father works on a Thursday.  That is a substantial amount of time, and indeed, more than is sought by the father. 

22. It is true, as submitted by counsel for the mother, that the child’s views have been expressed without him having experienced such a regime, and he lacks the practical knowledge as to how it would work and whether it is for his benefit.  As I’ve said, J has been in the difficult position of, effectively, having to determine his own time with his father.  He clearly wishes to spend time with his father and wishes to spend more time with him than one overnight at a time with his father. 

23. Given his age, it is appropriate to give some degree of weight to his views that he should spend some significant time with his father, though I do not place a great deal of weight on his specific view as to how much time should be spent.  J obviously has a close relationship with his mother.  He enjoys spending time with his brother and sister but he also told the family consultant that he enjoyed spending time away from his sister.  It’s not surprising for teenagers of that age.  It would be of benefit for him to continue to see his siblings, and the orders proposed by the father would see that continue. 

24. As is apparent, he has a good relationship with his father, because he told the family consultant he likes to talk to his father on the phone every day, and obviously wants to spend time with him.  It’s apparent that the father wishes to spend time and communicate with J, but the difficulty is any communication between the parents have made that, unfortunately, very difficult. 

25. It was submitted that a substantial change in J’s circumstances, such as significant overnight time, would not be in his best interests because (a) of the risk to which I’ve already referred, but also because he has not experienced this.  There will be significant time in a new house, and he has not spent any extended time outside his mother’s care.  There is force in all those submissions, but the fact also seems to be that J feels quite comfortable in his father’s care.

26. Pursuant to section 61DA of the Act, the court is, when making a parenting order, to apply a presumption that it is in the best interests of the child for the children’s parents to have equal shared parental responsibility for the child. That is something that may be the subject of debate at the final hearing in December. It is not appropriate to embark on a consideration of that matter on the limited material that is available on this interim application. Accordingly, I am satisfied that it is not inappropriate in these circumstances for the presumption to apply to the orders being made today. In those circumstances, section 65DAA has operation.

27. However, it was submitted by the father that the orders proposed by him would enable J to spend significant and substantial time, within the meaning of section 65DAA, with the father, and that would be desirable because it is generally beneficial for a child to have the opportunity to spend time with a parent, both at weekends and at weekdays, thus enabling each of them to share a wider experience of the parties’ lives. Although the section does not apply, I think there is force in the submission.

28. One of the real difficulties in this case is the issue about changeovers.  The family consultant’s strong recommendation was, as far as possible, to remove the child from what she described as the extreme conflict and allegation of risks between his parents.  She opined that based on the status quo and J’s views, he should be spending some time with his father each week.  It would be preferable if all changeovers could occur through school.  The consultant did not expand on what she thought to be an available time. 

29. Taking all these matters into account and having regard to the fact that J has been spending at least every second overnight with his father, seemingly without difficulty, seems to me that it is in his interests that there be time with his father each week, and that that could be overnight time.  As I have said, I think it is in J’s interests for that time to encompass both weekends and weekdays. 

30. If the time were to involve weekends and to eliminate all changeovers – direct changeovers between the parents, that would mean three nights each weekend.  I think that is too much, too soon, in relation to the circumstances of the case, and that there should be overnight time for two nights every second weekend.  I accept that this will involve one face-to-face changeover with the parents.  That is something they will have to accept and manage for the next three months.  There should be as well, seeing as otherwise accepted, one overnight time in the following week. 

31. The father has indicated that he is prepared to give an undertaking to the court that he will not consume alcohol whilst the child is spending time with him.  Given that a final hearing is rapidly approaching, no doubt his adherence to that undertaking will be closely monitored. 

32. Accordingly, as an interim measure, I am satisfied that J’s best interests will be served by him spending time with his father every second weekend from Friday after school until Sunday at 12 noon, and in the following week, from after school, Tuesday, to before school, Wednesday.  Accordingly, I note the undertaking of the father that he will not consume alcohol whilst J is spending time with him. 

33. Commencing this coming weekend, the child J, born in 2003, is to spend time with his father, from after school, Friday, until 12 noon the following Sunday, and that this continue thereafter fortnightly, and that in the following week and thereafter, every alternate week, he spend time with his father from after school, Tuesday, to before school, Monday, and that otherwise, he live with his mother.  And that will be “pending further order of the court”.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 10 September 2014.

Associate: 

Date:  27 October 2014