Fierro and Tafoya
[2010] FMCAfam 1142
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FIERRO & TAFOYA | [2010] FMCAfam 1142 |
| FAMILY LAW – Parenting – interim – equal time – substantial and significant time. |
| Family Law Act 1975, ss.60CA, 60CC, 65DAA |
| Goode & Goode [2006] FLC 93-286 |
| Applicant: | MS FIERRO |
| Respondent: | MR TAFOYA |
| File Number: | SYC 2144 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 9 September 2010 |
| Date of Last Submission: | 9 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 9 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | None |
| Solicitors for the Applicant: | M R Barber & Associates Solicitors & Conveyancers |
| Counsel for the Respondent: | None |
| Solicitors for the Respondent: | James Papas Solicitors |
ORDERS
All extant applications be adjourned to this Court on 9 November 2010 at 9:30am for mention (“the mention hearing”).
The Respondent undertake one (1) supervised urinalysis test within the next fourteen (14) days at his own expense and provide the results of the urinalysis tests forthwith to the Applicant’s solicitor and the Independent Children’s Lawyer, once appointed, upon receiving them.
Pursuant to s 68L(2) of the Family Law Act1975 (“the Act”), [X] born [in] 2006 and [Y] born [in] 2008 (“the children”) be independently represented AND IT IS REQUESTED that Legal Aid Commission of New South Wales, PO Box K847 HAYMARKET, arrange such separate representation and:
(a)Upon appointment, the Independent Children’s Lawyer file a Notice of Address for Service;
(b)Within 48 hours of notification of such appointment the solicitors for the respective parties provide to the Independent Children’s Lawyer copies of all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports; and
(c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
The parties have equal shared parental responsibility for the children.
The children live with the Respondent.
The children spend time with the Applicant commencing forthwith on a fortnightly cycle as follows:
(a)In week 1 from 12 noon Friday until 2:00pm Sunday; and
(b)In week 2 from 12 noon Wednesday until 2:00pm Thursday.
In relation to changeover, paragraph 7 of the Orders made by this Court on 30 July 2010 remain in full force and effect.
AND THE COURT NOTES THAT:
(A)The purpose of the mention hearing is to consider the views of the Independent Children’s Lawyer and the Court may re-consider the issue of the changeover location.
(B)Pursuant to ss.65DA(2) and 62B of the Act the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Fierro & Tafoya is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2144 of 2010
| MS FIERRO |
Applicant
And
| MR TAFOYA |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MS FIERRO (“the mother”) against
MR TAFOYA (“the father”), seeking various parenting orders in relation to the children [X], born [in] 2006 (“[X]”), and [Y], born [in] 2008 (“[Y]”) (collectively “the children”).
More specifically, the mother is seeking orders to the following effect:
a)equal shared parental responsibility;
b)that the children live with her; and
c)that the children spend time with the father every alternate weekend from 10:00am Saturday to 6:00pm Sunday.
The mother’s application is supported by affidavits sworn 27 May 2010 and filed 2 June 2010 and her affidavit sworn and filed 21 July 2010. She is legally represented by Mr Barber today.
The father, in his response filed on 2 September 2010, opposes the orders sought by the mother and is seeking different parenting orders in relation to the children.
More specifically, the father is seeking orders to the following effect:
a)that the children live with the father; and
b)that the children spend time with the mother each Saturday overnight through Sunday and each Wednesday overnight through Thursday.
And through his solicitor today, Mr Papas, the father has indicated that he would not oppose an order for equal shared parental responsibility. He relies on his affidavit sworn 1 September 2010 and filed 2 September 2010.
Background
The parties commenced cohabitation upon their marriage [in] 2005 and appear to have separated on 18 November 2008. I understand divorce proceedings are still pending in this Court. As stated, they have two children: [X], who turns four in October, and [Y], who recently turned two years. It would appear that the parties have had a troubled relationship and until recently were the subject of a Department of Community Services (“DoCS”) investigation.
It would also appear that the parties entered into a parenting plan of sorts in May 2010 in which they agreed that the children would live with the father and spend time with the mother on Saturdays from 10:00am to 5:00pm. It would also appear that the children came into the fulltime care of the mother not long after that agreement was entered into and then subsequently came into the fulltime care of the father.
The mother’s initiating application came before me on 19 July 2010, and on that occasion the mother sought an adjournment through her solicitor, Mr Barber, to 30 July 2010 to enable an application in a case seeking a recovery order to be filed. The mother filed that application in a case on 21 July 2010, and the matter returned before me on 30 July 2010. The father had been served in the intervening period, and he attended as a self-represented litigant on that day.
After hearing submissions from the wife’s solicitors and the husband in person, I made various orders on 30 July 2010 (“the July 2010 Orders”) dismissing the mother’s application in the case and notation (C) to those orders made stated that:
“The Court was advised by Ms C, [position omitted], New South Wales Department of Community Services (the Department), who appeared by way of telephone at the Court’s request, that the Department had closed its file on the parties and the children in June 2010 and that they knew the children were living with the respondent and had no concerns about the children spending time with the applicant.”
The July 2010 Orders also provided that:
a)the children live with the father;
b)the children spend time with the mother commencing 31 July 2010 each Saturday from 12noon to 2:00pm and each Wednesday from 12noon to 2:00pm, and then commencing on 21 August 2010 each Saturday from 12noon until 2:00pm Sunday and each Wednesday from 12noon until 2:00pm Thursday; and
c)changeovers occur at McDonald’s Family Restaurant, [suburb omitted].
The July 2010 Orders also required the parties to attend a child dispute conference on 27 August 2010, and for the matter to return before me today. Notation (B) to the July 2010 Orders states:
“The purpose of the mention hearing is to allow the Court to consider whether the matter would benefit from the appointment of an independent children’s lawyer and whether the spend-time arrangements pursuant to paragraph 6 herein should be revised.”
The parties duly attended a child dispute conference with a family consultant, Ms B, on 27 August 2010. Unfortunately, the parties were unable to resolve their dispute at that conference. Ms B in her memorandum to the Court, dated 27 August 2010, identified the issues in dispute as being:
“… where the children live, how the children spend time and communicate with the parent that they do not live with, and, thirdly, the risk, if any, posed to the children by either their mother or their father.”
In her memorandum, Ms B also identified issues impeding resolution, and given the lateness of the hour, I will not read those into the transcript this evening. That having been said, Ms B noted that there are significant allegations of family violence in this matter. She made recommendations as follows:
a)She did not recommend a child-inclusive appointment before the judicial decision was made;
b)She did believe that further dispute resolution was unlikely to assist the parties;
c)She did recommend that a family report be prepared;
d)She also recommended that a specialist report, namely, a child and family psychiatric assessment, be conducted; and
e)Lastly, that an independent children’s lawyer be appointed.
The issues
When the matter came before me this morning in a very busy duty list, the parties were legally represented. I indicated to the parties that I considered the matter was suitable for the appointment of an Independent Children’s Lawyer (“ICL”) and that I was happy to entertain submissions regarding any change to spend-time arrangements. I was advised by Mr Barber for the mother that she would press for an equal time order today. I stood the matter down for the parties to negotiate, but unfortunately they were unable to agree.
I commenced the interim hearing this afternoon at 5:00pm. Both parties’ legal representatives outlined their party’s respective proposals. Mr Barber, for the mother, as stated, was seeking an interim order for equal time. That proposal was opposed by Mr Papas, for the father. The father was, however, agreeable to the current spend-time arrangements being increased to what I would describe as a “five-nine” per fortnight arrangement. That is, in week one the children would spend, as the father proposes, three days with the mother, Friday through Sunday, and in week two, two days with the mother, Wednesday overnight to Thursday. Put another way, the children would spend three overnights with the mother in a fortnightly cycle.
Both parties, as stated, will consent to an order being made today for equal shared parental responsibility.
Parties’ submissions
Mr Barber submitted to the Court that the father suffers from schizophrenia and that the father’s own evidence supports that he has mental health issues, in particular anxiety state disorder. The mother alleges that the father has abused marijuana in the past and still smokes cannabis. Mr Barber disputed the father’s evidence that the father was the primary caregiver of the children, and, in any event, he had in more recent times placed the children in full-time day care. Mr Barber submitted that, overall, an equal time arrangement was appropriate given the evidence before the Court.
Mr Papas pointed the Court to the parties’ signed agreement in May 2010, that the children should live with the father and spend time with the mother. He also submitted that DoCS had no concerns about the children being in the father’s primary care. The father denied any marijuana use or misuse and would undertake a drug screen if need be.
The law
The Full Court of the Family Court decision of Goode & Goode [2006] FLC 93-286 (“Goode”) guides the Court’s approach in making interim decisions and interim orders in relation to parenting disputes. At paragraph 81 the Full Court stated:
“In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between parents as to what constitutes the best interests of the child.”
Clearly, this matter is such a case. More specifically, it raises the reality that the Court cannot fully determine issues of credit this evening as the evidence that was being presented by the parties has not yet been tested by cross-examination. That having been said, the Full Court made it clear in the Goode decision that the legislative pathway must be followed. In other words, the relevant provisions of the Family Law Act 1975 (“the Act”) post the 2006 shared parenting amendments must be followed at an interim hearing.
There is considerable animosity, it would appear, between the parties in this case, and no doubt the history of the matter will be the subject of evidence and cross-examination at a final hearing if needed. That said, there is no issue of equal shared parental responsibility to determine today. The dispute is simply limited to the issue of whether the mother’s time with the children should be extended, as proposed by the father, or whether the children should reside on an equal-time basis as proposed by the mother.
Given that the parties are agreeable to equal shared parental responsibility, the Court is required to consider, under s.65DAA of the Act whether the children’s best interests would be served by making an order that the children spend equal time or, alternatively, substantial and significant time with each of the parents.
Either outcome requires the Court to consider whether the children spending equal time or substantial time in lieu with each of the parents would be, firstly, in the best interests of the children and, secondly, reasonably practicable given the circumstances. Section 65DAA provides the Court with guidance as to orders for substantial and significant time. Similarly, s.65DAA(5) provides the Court guidance as to the issue of reasonable practicability.
At this point, let me note that s.60CA of the Act provides:
“In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.”
To determine a child’s best interests, the Court must consider the primary considerations or factors set out in s.60CC(2) and when relevant, the additional considerations in s.60CC(3).
Primary considerations: s.60CC(2)
Under s.60CC(2)(a), the Court is required to consider the benefit of a child having a meaningful relationship with both the child’s parents. At this point, let me note that “meaningful” does not mean equal but clearly signifies that both parties should be involved with their children and consequently signifies an expectation of time to be spent. The right of a child to spend time with each parent and extended family is the right of the child. Consequently, the Court will in all likelihood need to give considerable weight to this factor at the final hearing, should it be needed.
That said, the Court is also required under s.60CC(2)(b) to consider the need to protect the children from physical or psychological harm and being subjected or exposed to abuse, neglect, or family violence. There is no doubt at this stage that it would be in the children’s best interests to develop a meaningful relationship with both their mother and their father. That needs to be balanced in protecting children from any harm and the like.
Given the nature of the allegations here, the Court is satisfied there is a need to test the issues of whether the children have been in any way harmed by what has occurred between the parties in more recent times and clearly over a longer period. There are issues here warranting investigation, and consequently the Court needs to tread cautiously in the interim arrangements that will be necessary this evening, given that the Court has not yet had the benefit of the DoCS file in relation to the parties. It is noteworthy that, despite the mother’s concerns about the father’s mental health, DoCS left the children in the father’s care, and the mother accepts for the time being that they should have equal time with both parties.
Additional considerations: s.60CC(3)
With respect to the additional considerations, I would firstly note that the views of the children, whilst significant, would be difficult to determine in this case, given their very young years. Nevertheless, this will be something that the family consultant will no doubt be able to assist the Court on, perhaps with the assistance of the independent children’s lawyer, should such be necessary.
As to issues such as the nature of the relationship between the children and each of the parents, again we have different stories here, and the parties’ evidence will ultimately need to be tested.
As to the willingness and ability of each of the children’s parents to encourage a close and continuing relationship between the children and the other parent, that is a crucial factor here. The parents have each alleged that the other has unilaterally withheld the children from the other.
Conclusion
Having considered the submissions in light of the evidence and the structured discretion of the Act, I am satisfied that an equal time arrangement would not be in the children’s best interests at this point in time.
Until further order, the proposal of the father for the children to live with the mother will be ordered. Changeovers will continue to take place at McDonald’s Family Restaurant, [suburb omitted] and that can be reviewed with input from the ICL when the matter next returns before me.
The father will complete one supervised urinalysis test at his expense in the nest 14 days and the results of that test are to be provided by him upon receipt to the wife’s solicitors and to the ICL once known.
There will be orders of the Court to reflect this decision.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 26 October 2010
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