Eale and Dandridge

[2015] FCCA 3360

FEDERAL CIRCUIT COURT OF AUSTRALIA

EALE & DANDRIDGE [2015] FCCA 3360

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the child – parental responsibility – equal shared parental responsibility – whether appropriate to apply the presumption of equal shared parental responsibility in the circumstances – child aged 5 living with mother – where father has not seen child for 22 months – whether father’s time with child should be supervised – where father seeks unsupervised time with child.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 60CC, 61DA, 62G, 68L, 69W

Applicant: MR EALE

Respondent: MS DANDRIDGE

File Number: SYC 6890 of 2014

Judgment of: Judge Scarlett

Hearing date: 14 December 2015

Date of Last Submission: 14 December 2015

Delivered at: Sydney

Delivered on: 17 December 2015

REPRESENTATION

Solicitor for the Applicant: Mr Russo

Solicitors for the Applicant: Dean Lawyers

Solicitor for the Respondent: Ms Parker

Solicitors for the Respondent: Parker Law

Independent Children's Lawyer: Mr Nasti

Solicitors for the Independent Children's Lawyer: S.P. Nasti & Co Solicitors

ORDERS

UNTIL FURTHER ORDER

1. The Applicant Father is to spend time with the child X born (omitted) 2010 as follows:

   (a)For a period of three (3) months from the date that the Father’s time with the child commences for a period of two (2) hours each month; and

   (b)Thereafter, for a period of two (2) hours per fortnight.

2. The Father’s time with the child is to be supervised by and take place at the (omitted) Children's Contact Centre at (omitted).

3. The time that the Father is to spend with the child X in accordance with these Orders is to be nominated by the (omitted) Children's Contact Centre initially on one occasion per month as provided by Order (1)(a) and then as provided by Order (1)(b) above.

4. The Applicant Father is to be responsible for all fees and costs associated with the supervised time.

5. The Respondent Mother must forthwith make contact with (omitted) Family Support Services for an intake assessment and thereafter ensure that the child X is made available to spend time with the Father at the Contact Centre at the times nominated by the Contact Centre.

6. Within fourteen (14) days of the date of this Order the Mother must inform the child that the applicant is her father.

7. The Mother is to give the Father no less than twenty-four (24) hours’ notice by email if the child is unwell and unable to attend the Contact Centre and thereafter provide medical evidence to the Father and the Independent Children’s Lawyer within seven (7) days.

8. The Father is to give the Mother no less than twenty-four (24) hours’ notice by email if for any reason he is unable to attend the Contact Centre on the nominated day.

9. The Applicant and the Respondent are to attend upon a Family Consultant at a time, date and place nominated by the Director of Child Dispute Services of the Sydney Registry of the Court for the purpose of interviews for the preparation of a Family Report under the provisions of section 62G of the Family Law Act 1975.

10. The parties are to have liberty to restore the matter to the List on seven (7) days’ notice.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6890 of 2014

MR EALE

Applicant

And

MS DANDRIDGE

Respondent

REASONS FOR JUDGMENT

Application for Interim Orders

1. This is an Application by the father of a little girl called X to spend unsupervised time with her on a fortnightly basis for a period of 4 hours on a weekend.

2. The Application is opposed by the mother and not supported by the Independent Children’s Lawyer.

3. The mother proposes that the child’s time with the father should initially be supervised, and take place at a contact centre. Initially, the proposed time would be for two hours per month, for a period of three months, and would then progress to two hours per fortnight.

4. This proposal is supported by the Independent Children’s Lawyer.

Background

1. The parties were in a relationship from 2009 until October 2010. They separated when the mother was pregnant with the child. It is the father’s evidence that the mother left him when he was in hospital.

2. The child X was born on (omitted) 2010. The mother did not place the father’s name on the child’s particulars of birth.

3. The father spent time with the child by arrangement with the mother. The last occasion that he spent time with the child was in January 2014. He deposed in his affidavit of 23 October 2014 that the mother refused to make any further arrangements for him to spend time with the child.

4. The father commenced proceedings by filing an Application and an affidavit in support on 2 November 2014. The Application was returnable on 16 December 2014.

5. The parties attended a Child Dispute Conference under the provisions of s.11F of the Family Law Act 1975 (Cth) on 18 February 2015. The mother did not agree that the Applicant was the child’s biological father and the parties agreed for parentage testing to be undertaken.

6. A number of allegations were made about family violence during the parties’ relationship. There were also allegations, and admissions, of drug use, including marijuana, cocaine and methamphetamine (known colloquially as “ice”).

7. The mother filed a Response on 31 March 2015, seeking orders for parentage testing to be carried out under s.69W of the Family Law Act 1975. This duly took place and a report confirmed that the Applicant is indeed the child’s biological father.

8. On 3 June 2015 an Order was made that the child’s interest should be independently represented by a lawyer in accordance with s. 68L of the Family Law Act 1975.

9. The parties attended a further Child Dispute Conference on 29 July 2015. No agreement was reached. It emerged that the child has a heart condition which might require surgery.

10. The mother subsequently relocated to (omitted), where she has extended family.     

Applications for Parenting Orders

1. The Family Law Act 1975 requires that a court deciding to make a parenting order should consider a number of sections contained in Part VII of the Act. They include sections 60B, 60CA, 60CC, 61DA and, if applicable, section 65DAA. Section 60CA requires the Court to regard the best interests of the child as the paramount consideration.

2. Section 60CC sets out the way that a court decides what is in a child’s best interests. The primary considerations are found in s.60CC(2) and the additional considerations are found in s.60CC(3). The primary considerations require the Court to balance the benefit to the child of having a meaningful relationship with each of the child’s parent against the need to protect the child from physical or psychological from being subjected to, or exposed to, abuse, neglect or family violence. Subsection 60CC(2A) requires the court to give greater weight to the latter consideration.

3. Section 61DA deals with the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. Mr Nasti, the Independent Children’s Lawyer, submits that it would not be appropriate to make an allocation of parental responsibility in the course of these interim proceedings, in all the circumstances. I am inclined to agree with that submission.

4. All of the above sections have been considered, where they are relevant.

Consideration

1. The primary issue is the proper arrangements to be made for the resumption of the child’s contact with her father after a gap of some twenty-two months. This little girl has only recently turned five years of age, so the time when she has not had contact with her father is a considerable proportion of her lifetime. In January 2014 X was only three years and one month old.

2. There are three matters that need to be considered:

   a)the length of time that the child should spend with the father once contact resumes;

   b)the frequency of this contact; and

   c)whether or not the child’s time with the father should be supervised.

3. The father appears to be of the view that the child’s relationship with him will just pick up where it left off in January 2014. This, to my mind, is an unrealistically optimistic opinion. This little girl has not seen him since she was just three, and she has now turned five. The likelihood is that she will have difficulty recognising him at first, and will be shy and reluctant to spend time with him.

4. For the father to expect that this child will happily go off with him unaccompanied for four hours is quite unrealistic. He will almost be a total stranger to her, as she would be unlikely to remember much about him at all, if anything. Such an arrangement would be likely to traumatise the child to such an extent that she could well be terrified of spending any more time with him at all.

5. The father’s proposal is not at all child-focused. It does not appear to be in the child’s best interests.

6. The Family Consultant considered this issue in the Child Dispute Conference Memorandum to Court of 29 July 2015, where she said on page 2:

   X is 4 year 7 months old and has not seen her father since she was 3 years 1 month old. Based on the mother’s report, X may have some awareness that the father is her father but she is unlikely to have a memory of him or any feelings of familiarity or comfort with him.

7. The Family Consultant went on to say:

   If X is to be re-introduced to her father, she would benefit from it occurring in the presence of someone familiar to her, for example a maternal family member or the mother’s friend. If this is not possible, a contact centre may be the best option in order to re-introduce X to her father and for them to commence spending time together.

8. I propose to accept the recommendations of the Family Consultant. The mother’s proposal, supported by the Independent Children’s Lawyer, is for a graduated approach under supervision, initially for two hours a month and then for two hours a fortnight, to take place at a contact centre in (omitted). This would appear to offer a means for the child to be re-introduced to the father in a way that would be less likely to cause her fear or distress.

9. I will order accordingly.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  17 December 2015