Fanning and Wilkinson

[2007] FamCA 1293

FAMILY COURT OF AUSTRALIA

FANNING & WILKINSON [2007] FamCA 1293

FAMILY LAW – INTERIM PARENTING ORDERS – LESS ADVERSARIAL TRIAL – identification of issues to be determined during the hearing – need to balance competing primary considerations in the Act in ordering that the child spend time with each of the parents where allegations are raised about violence by the father – lack of evidence at an interim hearing which would enable a determination to be made on this issue – injunctions made to restrain the father from contacting the mother – pending further order mother is to retain sole parental responsibility for the child and the child is to continue to live with the mother and spend time with the father

Family Law Act 1975 (Cth)

APPLICANT: Ms Fanning

RESPONDENT: Mr Wilkinson

INDEPENDENT CHILDREN’S LAWYER: Darryl Perkins

FILE NUMBER: CAC 1857 of 2007

DATE DELIVERED: 3 October 2007

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 3 October 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mrs Evans

SOLICITOR FOR THE RESPONDENT: Ms Lloyd

Orders

Today is the first day of the Less Adversarial Trial, both parents have had an oath or an affirmation administered, as has the Family Consultant.

By way of interim orders pending determination of other issues between the parties, the following will apply: 

1. All previous orders in relation to the time that each of the parents will spend with the child, born on … July 2004, are discharged pending further order (including the finalisation of the appeal lodged by the mother).

2. The child will live with her mother, who will have sole responsibility for her care, welfare and development until further order of this Court.

3. She will spend time with her father on every second weekend commencing on 5 October 2007 from 4:00 pm on that day until 4:00 pm on the following Sunday (this includes long weekends).

4. She will also spend time with her father from 4:00 pm on the Thursday following the weekend referred to above until 4:00 pm on the Friday following such weekend.

5. Each of the parties will attend on the Family Consultant as soon as practicable and will ensure that the child also attends and will follow all reasonable requests from the Family Consultant to attend to enable the Family Consultant in due course to provide further evidence before the Court about any factors relating to the child or either of the parties which would be of assistance to the Court. I request that such information will be available for a further continuation of the Less Adversarial Trial on or about 2:15 pm on 5 November 2007.

6. Pursuant to section 114 of the Family Law Act 1975 (Cth), the father be and is hereby restrained from communicating with the mother except through her solicitor or during the course of court proceedings or in the presence of the Family Consultant and, in particular, is restrained from sending any text messages, emails or SMS messages to the mother.

   (a)However, the prohibition on communication will not extend to matters directly related to the child and her wellbeing centred principally on her sleep patterns, eating habits or any question of illnesses which are contained in writing in the communication book to be exchanged between the parents at the times that the child spends with her father. 

   (b)The order I just made is an order made for the personal protection of the mother and any police officer who believes on reasonable grounds that the father has, since the injunction granted this day, breached the injunction by causing or threatening to cause bodily harm to the person referred to, the mother, or harassing, molesting or stalking that person the police officer may arrest the respondent without warrant.

7. The issues identified between the parties this day, with the assistance of their lawyers are: 

   (a)The ability of the parties to communicate effectively for the benefit of the child.

   (b)Where handovers are to occur.

   (c)The personal security of the mother.

   (d)How and in what ways the responsibility for the child’s care, welfare and development might be shared between the parties.

   (e)The question of the father’s anger management.

   (f)The criminal charges pending against the father and their resolution.

   (g)The surname by which the child will be known.

8. I further indicate that at this stage I do not have sufficient evidence about the proposed physical and financial arrangements each of the parties has for the child or about the involvement of other persons in her life, including but not limited to Mr G, who is the mother's partner, and her parents and also the mother of the father.

9. The parties will, unless the delay would be in the circumstances unreasonable, attend on the ARCK program conducted jointly by the M centre and by Relationships Australia for the purposes of trying together to find appropriate ways of being involved in the parenting of the child.

10. The handovers in respect of each period of time that the child will spend with her father will occur at the M centre unless the parents otherwise agree. 

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1857 of 2007

MS FANNING

Applicant

And

MR WILKINSON  

Respondent

REASONS FOR JUDGMENT

1. In coming to my determination about what arrangements should be made for the best interests of the child until I can further examine the proposals, I indicate the following are the matters I take into account.

2. Under the terms of the Family Law Act 1975 (Cth), I am conscious of the provisions of s 60B, which sets out the Objects of the Act and the Principles that underlie these Objects. These Objects include:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm…; and

   (c)ensuring that children receive …proper parenting to help them achieve their full potential; and

   (d)…that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. The Principles underlying those Objects are that: 

   (a)children have the right to know and be cared for by both of their parents…;

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents…; and

   (c)parents jointly share the duties and responsibilities concerning the care, welfare and development of their children

   …

4. I am conscious that the Act says that parents should agree about the future parenting of their children (s 60B(2)(d)).  I am also conscious of the fact that the Act prescribes that children who have a specific culture should be entitled to have access to that culture (s 60B(2)(e)). 

5. The terms of the Act also provide that in making a particular parenting order I must have regard to the best interests of the child as my paramount consideration (s 60CA). In determining what is in her best interests, the Act says there are two primary considerations (60CC(2)).  These are: 

   (a)the benefit to [the child] of having a meaningful relationship with both of [her] parents; and

   (b)the need to protect [her] from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence.

6. I am also obliged to take into account additional considerations (s 60CC(3)), these being:

   (a)[her] views [about what she wants] ‑ but at her age this is not particularly relevant; 

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

   (i)each of [her] parents and;

   (ii)[with any] other [people], including …grandparents;

   (c)the willingness and ability of each [of you, the father, and you, the mother], to facilitate, and encourage, a close and continuing relationship between [the child] and the other parent;

   (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 [her] parents;

   (ii)or any other person,

   (e)the practical difficulty and expense of [the child] spending time with and communicating with [either of you]…;

   (f)the capacity of:

   (i)each of [you]

   ….

   to provide for [her] needs…, including [her] emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background… of [the child] and of [each of you], and any other characteristics that [I] think are relevant;

   (h)…

   (i)the attitude of [each of you] to [the child] and to the responsibilities of parenthood…;

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

   (k)any family violence order that applies to a child or a member of the child's family…; and, finally,

   (l)whether it would be desirable to make orders that would be the end of proceedings or to avoid orders that would lead to further proceedings

   (m)...

7. This is obviously an interim order - it is an order that is only being made until such time as the other matters can be finalised, so, there will be other orders.  I just want to comment on a couple of the other matters, because I think they are important. 

8. The Act, in its amendments, provided that there were primary considerations which involved the ultimate benefit to the child in having a meaningful relationship with both parents and of equal value, the need to protect her from physical or psychological harm.  It is a bit early for me to be able to come to any definite conclusion about the latter question ‑ that is, whether she needs protection from physical or psychological harm. 

9. It is the case that the Act says that I should regard as a primary consideration for determining her best interests that there can be a benefit to her in having a meaningful relationship with both parents. I have to say to you both that, having listened to you today, that I am very doubtful that you are going to get to the point where you are able to work together sufficiently for the child's benefit for me to be able to make decisions which would probably be in her benefit, which would give each of you an opportunity to share more effectively in her upbringing. 

10. However, if I discover in the course of the proceedings that one or other of you is taking steps to interfere with that, you have heard me read out “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” (s 60CC(c)). If that happens, then that may be a consideration which says to me that there is no benefit to her in having a relationship with that parent. That may apply with either of you.  So it is something that you both need to take into account.

11. None of this says anything about your rights. Nothing says anything about anyone's rights apart from the child's and that she is the important part in this.  I think it is important that, until I am able to work out what would be the best arrangements for her on a continuing basis, that there should be at least the opportunity for her to continue to have some sort of relationship with her father.  I believe that, at this point, there is a relationship between her and her father, the extent of it I am not quite certain about.  That is something that I will have to find out in due course when we have a little more information.

12. I am satisfied that, at the moment, the child receives from her mother ‑ and I am using the word, do not be insulted by it ‑ "adequate" care and care that is reasonable for her in the circumstances.  I say that because I am unable at the moment to make any determination about the quality of the care you are providing.  It is not a criticism of you, any more than it is a criticism of you in saying that I am satisfied that there is "a relationship". I am far from being satisfied that either of you has expressed any willingness or ability to encourage a continuing relationship with the other parent. You both say the words, but you do not walk the walk.  I think that it is probable that if I were to continue arrangements which effectively prevented the child from spending any time with her father, that is likely to have an adverse effect on her into the future, at least until I can make a decision about whether or not it would be in her interests to continue to have any relationship with her father.

13. There are difficulties associated with arrangements for the time that she spends with her father to be on a daily basis.  Part of that is that I am satisfied that the handover arrangements that are being proposed can only really work if they are done through the M centre.  If it is to be done on a daily basis, then there would need to be two trips for each of you each of the two days to the M centre.  There would need to be some arrangements made and put in place each time for the M centre.  There would be advantages in there being fewer times, for example, once at the beginning and once at the end.  That, in itself, would not be a reason for doing it, but there is no reason that I have heard today which would suggest that it would be inappropriate for the child to spend a night with her father, and that is all that is being proposed at the present point.

14. I accept that there are outstanding and unresolved issues around your violence, Mr Wilkinson, as to whether or not it has happened. Whether or not it happened will have a bearing on the child's life, and it is a factor which the Act is very concerned that I should take into account. Whether or not ‑ I do not think, there is no suggestion that you have been violent towards the child herself ‑ if you were to be violent to another person who is important in her life in her presence, that, in itself, would be a very serious matter which would bear upon the final solution/determination to this matter.

15. I am unable at this point to comment on the involvement of third parties such as grandparents in the care of the children or any other factors.  I note that there are difficulties between you, Ms Fanning and the paternal grandmother.  It does not really matter in this context whose fault that is.  It is simply a fact of life, which I need to take into account.  That also restricts my possibilities about handover. If, in fact, there had been agreement about the involvement of the paternal grandmother, then there may have been a more effective way of dealing with daytime arrangements rather than overnight, but I think the combination of those factors operates to preclude that from reasonably occurring.

16. I am conscious of the consequences of family violence in a whole range of things, and it seems to me that if I put in place the injunctions that I said I would ‑ that is restraining orders ‑ then what that does is to bring about a situation which will ensure that so far as it is possible the opportunities for the two of you to get into any sort of dispute, certainly any sort of physical dispute, should be minimised.

17. I am obliged under the Act also ‑ and I raise this because I think it is quite clear that it is not appropriate ‑ that I must operate from a presumption that it is in the best interests of the child for you two to have equal shared parental responsibility for her.  In my opinion, at this time, certainly on an interim basis, it is just not feasible because of the conflict between you.  I think it is desirable, and there is no question about the fact that the child would benefit if her parents were able to communicate.  But you cannot, so that cannot apply. 

18. That precludes my having to consider whether there should be equal time or substantial time for the child with the father at this point.  It does not stop me from looking at the question overall, but it means that I do not have to make that decision at this time.  Even if I were to give consideration to it, I would not change the arrangements as they presently exist until I have heard the rest of the evidence. 

19. So I am not prepared either to agree at this point that there should be an equal sharing of parental responsibility, nor am I prepared at this point to say that it would be in the child's best interests in the short term, at the very least, that there should be equal shared time between the parents. That may change, depending upon the evidence, but it certainly is not open to me to make those decisions in that way at this time.

20. I propose to order that the child will spend time with her father every second weekend from 4 pm on the Friday until 4 pm on the Sunday and to order that she will also spend the extra day and the other week from 4 pm on the Thursday until 4 pm on the Friday.  All handovers are to happen at the M centre.  There are to be no variations to that arrangement.  I will put in place the other injunctions.  I will also give some directions about the collection of other evidence.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Faulks

Associate

Date:  5 November 2007