Dixon and Anor and Dixon

[2015] FCCA 568

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIXON & ANOR & DIXON [2015] FCCA 568

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the child – living arrangements – overnight time.

Legislation:  
Family Law Act 1975 (Cth), ss.60CA, 60CC

First Applicant: MR DIXON

Second Applicant: MS J DIXON

Respondent: MS B DIXON

File Number: SYC 7461 of 2014

Judgment of: Judge Scarlett

Hearing date: 2 March 2015

Date of Last Submission: 2 March 2015

Delivered at: Sydney

Delivered on: 4 March 2015

REPRESENTATION

Counsel for the Applicant: Ms Kennedy

Solicitors for the Applicant: Marks Griffiths & Bova Solicitors

Solicitor for the Respondent: Ms Attaya

Solicitors for the Respondent: Restorative Law Practice

ORDERS

UNTIL FURTHER ORDER

1. The Respondent mother is to spend time with the child [X] born [omitted] 2005:

   (a)Commencing on Thursday 5 March 2015 and concluding on Thursday 9 April 2015 each Thursday from immediately after school until 7:00 pm;

   (b)Commencing on Friday 6 March 2015 and concluding on Friday 10 April 2015 each Friday from immediately after school until 7:00 pm PROVIDED THAT if the child [X] is attending on Dr. W that day then until 7:30 pm;

   (c)Commencing on Sunday 12 April 2015 each alternate Sunday from 10:00 am until 5:00 pm; and

   (d)Commencing on Saturday 18 April 2015 each alternate Saturday from 10:00 am until 5:00 pm.

   IT IS NOTED that publication of this judgment under the pseudonym Dixon & Anor & Dixon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 7461 of 2014

MR DIXON

First Applicant

MS J DIXON

Second Applicant

And

MS B DIXON

Respondent

REASONS FOR JUDGMENT

1. This Application is brought by the applicants, who are the father and paternal grandmother of the child [X], and they are seeking various interim parenting arrangements.  The mother seeks somewhat different arrangements.

Background  

1. When the matter was before the Court on 2 March, the parties entered into some interim consent orders which provided that [X] should live with the Applicants, continue to attend at her current school and attend for counselling with a Dr W and there should be arrangements for the child’s name to be placed on the Family Law Watch List maintained by the Australian Federal Police. There were a number of undertakings given by each party, including an undertaking by the father that he continues to live with the paternal grandmother and that he would not consume alcohol or illicit drugs at any time the child is in his care. 

2. Also, the mother is to be restrained from certain issues that I do not need to go into, but she was to undertake all transport and there were certain joint arrangements made. 

3. That being the case, each party put up to the Court a set of proposed orders to cover the time [X] should spend with her mother over the intervening period.  I was referred to the Child Dispute Conference Memorandum prepared by the Family Consultant, whom the parties saw on Monday, and there were various issues raised there.

Consideration 

1. What was significant as an area of difference between the parties is that although it was agreed that there was a need for some stability in the child’s life, there was a serious issue about whether this child should be spending overnight time with her mother.  This was brought about as a result of the mother’s living arrangements, where it appears that she has two housemates, details of whom have not been immediately made available.  Counsel for the father, Ms Kennedy, expressed a significant degree of concern about these unknown quantities, although the mother’s solicitor submitted that the mother would make arrangements for those people not to be there when the child was spending overnight time with the mother.

Applications for parenting orders

1. Thus, I had two contrasting sets of orders to consider and, of course, in dealing with these matters there are a number of requirements that the Court has to consider, as set out in part VII of the Family Law Act 1975, including those set out in section 60CA, providing that the best interests of the child should be the paramount consideration, and section 60CC, which sets out matters that the Court should consider to take into account what is in the child’s best interests.

2. Primary considerations relate to, first of all, the benefit to the child of having a meaningful relationship with each parent and the protection of the child from physical or psychological harm.  It seems to me that the orders proposed by both parties would facilitate the ongoing benefit to the child of having time with each parent and, for that matter, her paternal grandmother.

Conclusions 

1. I do have concern, however, about the need to protect the child from any potential harm, and the mother’s living arrangements have caused me a significant degree of concern, because the Court does not have information as to who these other people are. In my view, I cannot be satisfied that it is appropriate for there to be overnight time at the mother’s residence for this child at this stage.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  13 March 2015