Ferguson and Monte

[2014] FCCA 838

FEDERAL CIRCUIT COURT OF AUSTRALIA

FERGUSON & MONTE [2014] FCCA 838

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – allegations of family violence – allegations of substance abuse – need to protect child from harm – appointment of Independent Children’s Lawyer.

Legislation:

Family Law Act 1975 (Cth) ss.60CA, 60CC, 61DA, 68L

Cases cited:
Re K (1994) 17 Fam LR 537; FLC 92-461

Applicant: MS FERGUSON

Respondent: MR MONTE

File Number: SYC 7759 of 2013

Judgment of: Judge Scarlett

Hearing date: 10 March 2014

Date of Last Submission: 10 March 2014

Delivered at: Sydney

Delivered on: 10 March 2014

REPRESENTATION

Solicitor for the Applicant: Ms Knight

Solicitors for the Applicant: Marsdens Law Group

Solicitor for the Respondent: Ms Du

Solicitors for the Respondent: M.J. Woods & Co

ORDERS

Until Further Order

1. The interests of the child X born (omitted) 2013 are to be independently represented by a lawyer under the provisions of subsection 68L(2) of the Family Law Act 1975 and to this end Legal Aid New South Wales is requested to arrange this representation.

2. Within fourteen (14) days of the date of this Order the parties are to forward to Legal Aid New South Wales at 323 Castlereagh Street, Sydney, for the use of the Independent Children’s Lawyer when appointed, copies of:  

   (a)The Reasons for this decision;

   (b)All Applications, Responses, affidavits and other relevant documents.

3. The Independent Children’s Lawyer when appointed is granted leave to issue up to ten (10) subpoenas.

4. All earlier parenting Orders are discharged.

5. The Applicant Mother is to have sole parental responsibility for the child X born (omitted) 2013.

6. The child X is to live with the Mother.

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

   (a)Each Wednesday from 9:00am until 1:00pm;

   (b)Each Saturday from 9:00am until 1:00pm; and

   (c)Each Sunday from 1:00 pm until 4:00 pm.

8. For the purposes of Order (7) above the Father’s time with the child X must be supervised by either or both of the following:

   (a)his mother Ms E; or

   (b)his sister Ms T.

9. The time spent by the Father with the child X in accordance with Order (8) above is to take place at the residence of Ms E and Ms T and for this purpose either or both of them Ms E and Ms T are to collect the child from the Mother’s residence at the commencement of the time and return the child to the Mother at her residence at the conclusion of the time. 

10. For the purposes of Order (8) above each of them Ms E and Ms T must within seven (7) days sign an acknowledgment that she has been provided with a copy of these Orders and that she undertakes to supervise the Father’s time with the child X in accordance with these Orders.

11. The Father’s solicitor must file and serve on each of the other parties a copy of the acknowledgements referred to in Order (10) above within ten (10) days of the date of these orders.

12. The Father is restrained by injunction from administering to himself any prohibited substance or drug including but not limited to cannabis at all times when the child is in his care and for twelve (12) hours beforehand.

13. The Father must undergo urinalysis to detect the presence in his system of cannabis or other prohibited substance or drug as requested by the Independent Children’s Lawyer in writing not more than twice a month within twenty-four (24) hours of such request being made.

14. The Father must provide to the Independent Children’s Lawyer the urinalysis result within twenty-four (24) hours of his receipt of that result.

15. The Father is restrained by injunction from going within fifty (50) metres of the Mother’s residence.

16. The Independent Children’s Lawyer is granted liberty to apply on seven (7) days’ notice.  

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7759 of 2013

MS FERGUSON

Applicant

And

MR MONTE

Respondent

REASONS FOR JUDGMENT

Application

1. This is The application before the Court is an interim application for parenting orders.  Proceedings between the parties commenced on 31^st December 2013 when the Mother of the child, X, a little girl who was born on (omitted) 2013, sought parenting orders including a recovery order. 

2. In affidavit material filed in support of the application the Mother deposed the child had been spending some time with the Father, but she claimed the Father had not returned the child.  When the matter came to Court, it transpired that that particular issue of urgency had been resolved as the child had been returned to the care of the Mother. 

3. Since then the parties have been engaged in filing affidavits and attempting to resolve matters at least on an interim basis.  An order was made that they should attend a Child Dispute Conference with a family consultant.  That took place on Friday 28^th February 2014. 

4. Whilst it appeared at least with the family consultant that there had been some resolution of the matter, that transpired not to be the case and the matter was listed for an interim hearing and I heard certain submissions and considered certain evidence last Monday 3^rd March 2014. 

5. I indicated my concern that there was insufficient evidence from the parties to enable a proper decision to be made in accordance with the principles set out in section 60CA of the Family Law Act, which requires the Court to regard the best interests of the child as the paramount consideration.

6. Over the ensuing week the Father’s solicitor filed further affidavit material, a short affidavit from the father and affidavits from his aunt, his mother, Ms E, and his sister, Ms T. 

7. The Mother has filed a further amended initiating application, which varies from the position which she had taken on the earlier date of the hearing.  What the Father is seeking is not that this child should live with him – as he acknowledges the fact that she is a child of tender years, just over a year old – but that he should spend some regular time with her. 

8. And indeed, it appears that there is a most important need for there to be some orders in place to cover that situation.  However, negotiations between the parties have not been successful and there are a number of issues that have acted as an obstacle to the parties reaching a satisfactory resolution, at least on an interim basis. 

9. There are mutual allegations of family violence or threats of family violence and indeed mutual apprehended violence orders.  The Mother complains but the Father disputes that the Father uses prohibited drugs or substances, cannabis, and it is her view that he has smoked cannabis in the presence of the child when the child has been in his care.  He denies that. 

10. The Mother expressed the serious concern about the Father’s tendency, in her view, to issue threats and quite serious threats both to her and to the child.  And she has pointed to the Father’s criminal history, which has been obtained from the police on subpoena. 

11. In fairness, I would have to say that the Father’s history does not assist him at all as there are a number of issues involving matters of violence and there is one matter involving possession of a prohibited drug.  There are also matters involving breach of an apprehended domestic violence order, although Mr Wood for the Father has given an explanation of all of these matters which on her account would make it appear as if they are very minor matters indeed. 

12. However, in the absence of hard evidence as to the circumstances, there still remains a concern. And indeed, one of the matters that the Court must consider under section 60CC of the Family Law Act is the need to get the child from harm and being exposed to or subjected to abuse, neglect or family violence. So that is a serious issue. At the same time, it is a matter of concern that Father and child are not spending time together. Where you have a child, as in this case, who is only just over a year old there is a need to build up an attachment with each parent.

13. The Mother is, has been and for the immediate future will remain the child’s primary caregiver but there is also a need to build up an attachment with this child’s father.  He wants to play a father role.  At the same time, one cannot do other than to hasten slowly with a child of this age.  A large block of time away from the primary caregiver would not be in the child’s best interest and social science theory certainly appears to be that to build up a relationship there should be frequent time with the other parent, even if only of a short duration. 

14. It had been put by the Mother that the Father would spend some three hours on a Sunday each week with the child under the supervision of his aunt, although the Mother has resigned from that position expressing concerns about the aunt as a supervisor. 

15. The Mother’s position now is that the Father’s time should be supervised at a contact centre.  The evidence appears to be that the waiting list for the contact centre is approximately three to four months and the Father has expressed concern about the cost of it.  The parties are at an impasse.  There is a significant amount of conflict between them. 

16. Whilst there are apprehended violence orders in force, I’m told by the parties’ legal advisors that the parties cannot speak to each other, although my view would be that the conflict between the parties is such that there is unlikely to be much in the way of communication between them even if those restrictions were removed by the local Court immediately.  There needs to be a way to break the impasse and I have suggested to the parties’ solicitors that there may well be a reason for the appointment of an Independent Children’s Lawyer.  Both Ms Knight, for the Mother and Mr Wood, for the Father, did not disagree with that proposal – quite the reverse, in fact. 

17. In applications for parenting orders the Court must follow the statutory pathway. Part 7 of the Family Law Act deals with matters relating to children. The objects of Part 7 are set out in subsection 60B(1) of the Act, providing for children’s best interests to be met by:

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

    (b) protecting children from physical or psychological harm; 

    (c) ensuring that they receive adequate and proper parenting;  and

    (d) ensuring that parents fulfil their duties and meet their responsibilities

1. The principles underlying those objects are set out in subsection 60B(2) and include: 

   except when it is or would be contrary to a child’s best interest: 

   (a)  children’s right to know and be care for by both of their parents; 

   (b)a children’s right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development; 

   (c)parents jointly share duties and responsibilities concerning their children’s care, welfare and development;  and

   (d)  parents should agree about the future parenting of their children.

1. Section 60CA of the Act requires the Court, when deciding whether to making a parenting order regard the best interests of the child as the paramount consideration. Section 60CC sets out the way that the Court determines what is in a child’s best interests, by having regard to the primary considerations in subsection (2) and the additional considerations in subsection (3). The Court is required by section 61DA of the Act to apply the presumption that it is in the best interests of the child or the child’s parents to have equal shared parental responsibility for the child.

2. This presumption does not apply in cases of abuse of family violence and it may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility. 

3. In an interim hearing, such as this, where the Court is making interim order, subsection 61DA(3) provides that the presumption will apply unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making interim parenting orders. 

4. In my view, the level of conflict between the parents is so high and the level of communication between the parents is so low that equal shared parental responsibility would not be in the child’s best interests at this stage. 

5. The Mother has sought an order for sole parental responsibility, which indeed is a continuation of the situation in the earlier orders and I am of the view that that is an order that should be made.  I have read with great interest the family consultant memorandum relating to the Child Dispute Conference that took place Friday before on 28^th February 2014. 

6. It appears to me that the recommendations of the family consultant are useful and helpful and have the development of the child’s relation with each parent at the forefront of consideration.  Against this, there needs to be protection from harm for both the child and indeed, for the child’s mother. 

7. I am not satisfied that making an order that the Father’s time with the children should only be that which would be available through the assistance of a contact centre.  A wait of three or four months would be a long period indeed in the life of a child of these tender years and indeed, it would seem to me that you could almost forget the identity of the father after four months, that he would be virtually a stranger to her and that there would be a need to rebuild the relationship to what it is now. 

8. At the same time there must be arrangements that would ensure the child’s safety and relieve the Mother from concerns as to her own welfare.  I have read the affidavits of the Father’s mother, sister and aunt.  I note that the Mother has now expressed the view that she does not consider the aunt to be a supervisor or a suitable person to be a supervisor and indeed, she has not been particularly enthusiastic about the paternal grandmother and aunt, Ms E and Ms T. 

9. However, it does appear that Ms T and the Mother have certainly had the ability to communicate in a civilised and polite fashion even when the Father and the Mother were very much at arm’s length. I think that the question of the intractable conflict between the parties as well as the allegations of substance abuse and the allegations of family violence are all matters that would impel the Court to make an order under s.68L of the Family Law Act that this child’s interests should be separately represented by a lawyer and I propose to make such an order.

10. An Independent Children’s Lawyer would be available to assist the Court and the parties within four to five weeks if I were to make that order today, as I intend to do.  But I am of the view that it would be counterproductive to wait four to five weeks for any arrangement as made for this child to spend some time with the Father.  Provided there are certain safeguards in place it would appear to me that if the Father’s time were to be supervised by either his mother, the child’s grandmother, or his sister, the child’s paternal aunt, that would or should offer the Mother some comfort.  There would need to be an acknowledgement by these people of their responsibilities. 

11. And one of the issues that he was very much at the forefront of the Court’s consideration is the allegation of substance abuse.  It would seem to be obvious that the Father should not administer a prohibited drug or substance to himself whilst this child is in his care or for a reasonable period of time beforehand.  He denies a substance abuse problem and that may or may not be the case.  I do not know.  The trouble is with interim hearings where there are factual issues in dispute because of the abridged process that must be undergone in hearings of this nature, as the Full Court of the Family Court, as referred to in Goode v Goode, the Court is often in the position where it cannot make a finding of fact where the parties are in direct disagreement and there is no corroborating evidence. 

12. One way to obtain corroborating evidence is the Father’s substance abuse or abstinence from substance abuse is by urinalysis to determine the presence of cannabis or other prohibited substance or drug in his system.  In my view, that should be undertaken at the behest of the Independent Children’s Lawyer.  But as I said, there must be a regular program of time, commencing in the near future, so as to avoid the child’s relationship with her father dissipating and to allow it to build up, albeit it slowly, in circumstances that will be conducive to her welfare. 

13. Indeed, in the family consultant memorandum the family consultant set out a sample of a program that would be appropriate for a child of this age and I consider that I should follow this in general terms.  It does mean that this matter will be coming back to Court in four to five weeks’ time but it is important that progress should be made. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 24 April 2014