ERRINGTON & MADDOCK

[2015] FCCA 1204

FEDERAL CIRCUIT COURT OF AUSTRALIA

ERRINGTON & MADDOCK [2015] FCCA 1204

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – best interests of the child – one child aged 3 years and 6 months – where father seeks graduated increase of time with child – parental responsibility – sole parental responsibility – whether it is in child’s best interests for parents to have equal shared parental responsibility.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DB, 65DAA, 68B

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant: MR ERRINGTON

Respondent: MS MADDOCK

File Number: SYC 3577 of 2014

Judgment of: Judge Scarlett

Hearing date: 7 April 2015

Date of Last Submission: 7 April 2015

Delivered at: Sydney

Delivered on: 10 April 2015

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Ms Gillies

Solicitors for the Respondent: Craddock Murray Neumann Lawyers

Solicitor for the Independent Children's Lawyer: Ms Hayward (as agent)

Solicitors for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

UNTIL FURTHER ORDER

1. Orders 1 to 5 inclusive made on 19 December 2014 are discharged.

2. Orders 1 to 4 inclusive made on 28 January 2015 are discharged.

3. The child X born (omitted) 2011 is to live with the Mother.

4. The Mother is to have sole parental responsibility for the child X.

5. The child X is to spend time with the Father as follows:

   (a)Until 1 July 2015:

   (i)From 4:00pm until 6:00pm each Tuesday and Thursday with the father to collect X from his day-care centre at the commencement of the time and return the child to the Mother’s residence at the conclusion of the time; and

   (ii)From 8:00am until 12:00 noon each Saturday with the exception of the first Saturday of each month for which purpose the father is to collect the child from the Mother’s residence at the commencement of the time and the Mother is to collect the child from the Father’s residence at the conclusion of the time.

   (b)From and after 2 July 2015 until 1 October 2015:

   (i)From 4:00pm until 6:30pm each Tuesday and Thursday with the Father to collect the child from his day-care centre at the commencement of the time and return the child to the Mother’s residence at the conclusion of the time; and

   (ii)From 8:00am until 2:00pm each alternate Saturday for which purpose the Father is to collect the child from the Mother’s residence at the commencement of the time and the Mother is to collect the child from the Father’s residence at the conclusion of the time;

   (c)From and after 2 October 2015:

   (i)From 4:00pm until 6:30pm each Tuesday and Thursday with the Father to collect the child from his day-care centre at the commencement of the time and return the child to the Mother’s residence at the conclusion of the time; and

   (ii)From 8:00am until 4:00pm each alternate Saturday for which purpose the Father is to collect the child from the Mother’s residence at the commencement of the time and the Mother is to collect the child from the Father’s residence at the conclusion of the time.

6. In addition to the times specified in the above Order, the child X is to spend time with the Father on the following occasions:

   (a)From 1:00pm to 6:00pm on Fathers’ Day being the first Sunday in September in each year;

   (b)From immediately after day-care or pre-school until 6:30pm on the Father’s birthday being (omitted) in each year;

   (c)From immediately after day-care or pre-school until 6:30pm on the child’s birthday in each year;

   (d)From 9:00am to 1:00pm on Easter Sunday; and

   (e)From 9:00am until 2:00pm on Christmas Eve.

7. The Father is to give the Mother 14 days’ notice if he will be unable to spend time with the child in accordance with these Orders.

8. The Mother is to give the Father 14 days’ notice if she intends to be away from Sydney such that the Father would be unable to spend time with the child during the Mother’s absence, in which case:

   (a)The Mother is to facilitate telephone contact between the child and the Father one occasion each period of three (3) days; and

   (b)The Mother is to provide the Father with make-up time.

9. The parties are restrained by injunction from:

   (a)Making abusive, critical, derogatory or offensive remarks to or about the other party in the presence or hearing of the child X or permitting any third person to do so;

   (b)Discussing these proceedings with or in the presence or hearing of the child or permitting any third person to do so; and

   (c)Using any video or sound recording device to film or record the other party either in person or on the telephone. 

10. For the personal protection of the Mother the Father is restrained by injunction under the provisions of section 68B of the Family Law Act 1975 from entering or remaining in the Mother’s place of residence.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3577 of 2014

MR ERRINGTON

Applicant

And

MS MADDOCK

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application by the Father for interim orders increasing the amount of time that he is to spend with the parties’ child, X, who was born on (omitted) 2011.  I have previously made interim orders on 19^th December 2014, and orders, by consent, on 28^th January 2015. 

2. The situation is such that I made a decision to appoint an Independent Children’s Lawyer, and I have had assistance from the Independent Children’s Lawyer in deciding this particular matter.  I have heard submissions from the Father, who appears in person, and Ms Gillies, of counsel, who appeared for the Respondent Mother.

3. The history of the parties is that they had an on again, and off again relationship over a number of years.  The Mother returned to live in Australia.  The Father, who is a (country omitted) national, has since arrived in Australia.  He has remarried, and he and his wife now have a little girl, who is eight months old.  Her name is Y.

4. There have been serious differences between the parties in their relationship, especially in respect of the time that the Father spends with the child.  The Mother has claimed that the Father has, in the past, either used or threatened violence towards her, and she says that she is still, to some degree, in fear of him.

5. The circumstances are that whilst there is no disagreement between the parties about the fact that X should spend more time with his father than is currently the case, the parties disagree as to the rate of change, particularly as to the rate of increase in time.  The Father is seeking overnight time with the child, to start, over a graduated program.  The Mother suggests a somewhat more conservative graduated program, on the basis of a view that the Father is seeking too much too soon.

6. Ms Hayward, solicitor as agent for the Independent Children’s Lawyer told the Court that there was no opposition to a graduated increase in time, but that the Father’s proposals, in the view of the Independent Children’s Lawyer, were seeking too much, too quickly. 

7. One matter that needed to be considered was the fact that the child normally goes to bed at 7.30pm, and it was submitted that whilst he is in the care of either parent there should be some consistency in respect of his bedtime, which would mean that he would be safely back home with his mother, unless there is to be overnight time, well before 7.30pm.

8. I have also had recourse to the memorandum from the child dispute conference, to which I was referred by Ms Hayward, for the Independent Children’s Lawyer.  And, again, it was clear that there was support for a graduated increase in time, although, not at the rate that the Father proposes.

9. An order has previously been made relating to the Father attending a circle of security course.  He told the Court that he is on the waiting list, and that the next course available will be in May.  He says he has already done four courses relating to the children, and he believes that he knows what X needs.  He does seek overnight contact, and it is of particularly importance that X builds up a relationship with his new little sister, who was born in (omitted), and, as I said, is only eight months old.

10. The Father is keen for X to obtain the benefit of his (country omitted) heritage, and wishes to spend time with his son, so that they may speak in (language omitted), and X can build up in knowledge of the (country omitted) language, as well as building up his knowledge of English.

11. For the Mother, it was submitted, by Ms Gillies of counsel, that this is not the usual case, in respect of the Father seeking time with the child of this comparatively young age as the father was living in (country omitted) for the first two years of the child’s life, and there needs to be more time spent in developing this child’s relationship with his father.  Ms Gillies, too, referred the Court to the memorandum from the family consultant, produced as a result of the Child Dispute Conference.

12. Ms Gillies also submitted that her client has significant concerns about the Father’s parenting ability, and even though these facts are disputed the Mother asserts that there was family violence when she and the Father were in a relationship.  At this stage it has been pointed out that the child has not yet spent a full day with his father, and it was submitted on behalf of the Mother that it was far too early to progress to overnight time.

13. The child attends day care, which is important for his social development, and is also necessary because the Mother is in full time employment.  She suggests a graduated program of increased time, commencing about July of this year.

14. At the moment this boy is spending time with his father on each Saturday, except the first Saturday, of the month, and the Mother wishes to change that relatively soon to alternate Saturdays, so that she may have alternate weekends free to spend time with the child.  The Mother also seeks to travel outside of Australia with the child, and would be seeking orders in that regard. 

15. I would say that at this stage, noting that these are interim orders, I am not prepared to give a great deal of weight to that consideration.  The best interests of the child are the paramount consideration, and as far as the immediate future is concerned there needs to be some stability, and structure in respect of parenting arrangements.

16. As with any application for parenting orders, the Court must be cognisant of the matters set out in part VII of the Family Law Act 1975 (Cth), particularly: section 60B, which sets out the objects and principles of that part; section 60CA, which provides that the best interests of the child must be the paramount consideration, and; section 60CC, which assists the Court through the primary considerations in paragraph 2, and the additional considerations in paragraph 3, in determining what is in a child’s best interests.

17. The Court must have regard to the provisions of section 61DA of the Family Law Act 1975, which contains a presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility.  However, that presumption does not apply in matters involving family violence, and may be rebutted by evidence which satisfies the Court that it is not in a child’s best interests for the parents to have equal shared parental responsibility.

18. If the Court does make such an order then the Court must consider the matters contained in section 65DAA, relating to whether it is in a child’s best interests, and reasonably practicable, for the child to spend equal time with each parent, or substantial and significant time with each parent. I have considered all of those matters.

19. The Mother, in her Response to an Application in a Case, seeks that the question of parental responsibility should be left until the final hearing. I am not entirely sure why. Section 61DA provides, certainly, at paragraph 3 about parental responsibility when interim orders are made. And it is well known that section 61DB provides that when a Court is considering final parenting orders it must disregard the allocation of parental responsibly made in respect of any interim order.

20. The Court is not in a position to make a finding in respect of disputed areas of fact, because an interim hearing is an essentially truncated procedure, as has well and truly been set out by the Full Court of the Family Court in the leading case of Goode & Goode[1].  The Court is not in a position to test the evidence by way of cross-examination, and where there is competing evidence about disputed area of fact the Court should be reluctant to make any finding of fact.

    [1] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

21. It appears to me, at this stage, that the level of trust between these parents is low, and that there have been allegations, albeit disputed, of family violence. It appears to me that the level of communication between the parents is poor. These matters persuade me to the belief that it would not be in the child’s best interests, on an interim basis, for the parents to have equal shared parental responsibility. That is a matter that will be considered afresh at a final hearing, or when final orders are made. But, at this stage, I propose to make an order that the Mother should have sole parental responsibility. This means that the matters contained in section 65DAA of the Family Law Act need not be considered further.

22. I have considered the best interests of the child as being the paramount consideration.  Looking at the primary considerations, including the benefit to the child of having a meaningful relationship with each of his parents, and the need to protect the child from physical or psychological harm as a result of being subjected to or exposed to abuse, neglect or family violence – those are competing issues, and the Court must engage in a process of balancing those matters in this case.

23. Looking at the additional considerations, I consider the fact that the father has remarried, and that there is some relationship between the father’s new wife and this little boy, which, whilst unexplored in any depth, appears to me to be something which should be encouraged.  There is no evidence before the Court adverse to the concept of a relationship between the father’s wife and this little boy.

24. It is also significant that X has a half-sister, and it would clearly be to his benefit that this relationship should be fostered, and that, really can only be done by his spending time with his father, in his father’s home.  I am conscious of the fact that the Father also has employment responsibilities, and is not usually available for extended periods of time during the week.

25. On balance, I am satisfied that there should be an increase in the time that this child spends with the Father, but not as substantial as the Father submits.  There is a need, in my view, to hasten slowly so that whilst a graduated program should be put into place it needs to proceed at a pace with which this child is comfortable.

26. However, there is a need for this boy to spend more time in the care of his father.  It does appear, to me, that learning to speak (language omitted) at an early age, noting that he has a (country omitted) father, and (country omitted) grandparents, would be a desirable thing, and it is well-known that the acquisition of language skills by children, at a young age, is beneficial to them, not only in their learning to speak their first language, which in this case, is English, but also in increasing their ability to think and learn.  This is, I think, a well-established fact.  The question of X learning to speak (language omitted) seems, to me, to be a desirable step.

27. I have prepared a set of orders, which are interim orders, and they are not as comprehensive as the Mother, in her Response to an Application in a Case, seeks, nor are they as far-reaching, and fast moving as the father seeks.  However, noting the Father’s work commitments, noting the Mother’s work commitments, noting the child’s bed time, I am of the view that orders should be made that provide for a little bit more time for X to spend with his father than the mother proposes, without plunging this child too quickly into a lengthy arrangement, which may not have the desired effect on slowing building up his relationship with his father, and his half-sister.

28. I will be making an order today that the parties attend an interview for a family report, with a family consultant.  That will be several months down the track, noting the demands on the Court.  But, it seems to me, that there are reasons why a clear program should be set in place, so that this child has some structure, and the parents understand, clearly, when X is to be with each parent. 

29. I do propose to make some injunctive orders, including one under section 68B of the Family Law Act, noting the Mother’s expressed concerns about the Father.  She is not keen to have the Father enter her residence, or remain in that residence, certainly, without her invitation.  For the Father to return the child to the Mother’s care at her residence he does not need to go inside the Mother’s house, as long as the Mother knows that he is bringing the child back.

30. I have not made an order in respect of the Family Law Watch List.  What I have done is noted that there is an order already in force, and I have left that order in force.  I have discharged other orders, but the Watch List order remains in force as it stands, at this stage.

31. I am strongly of the view that this is a matter where I should issue an order requiring the parties to attend upon a family consultant at a time, date, and place to be specified, for the purpose of preparing a family report, under the provisions of section 62G of the Family Law Act.

32. I think that the report will take probably closer to five months to prepare, at this stage, but I think that that will be of some benefit, in that the orders providing for some increased time will be in force, and will be acted upon, and the parties will be able to give the family consultant a better idea as to how those arrangements are working.

33. However, if the Mother is going to fund it I will vacate the order for a family report, and I will consider a minute of order, which can be prepared today, setting out that a report from Dr K, the well‑known child and family psychiatrist can be ordered, and he would be a Court Expert under rule 15.09.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  11 May 2015