Finch and Harris
[2016] FCCA 1485
•14 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FINCH & HARRIS | [2016] FCCA 1485 |
| Catchwords: FAMILY LAW – Children – Parenting Orders – Variation of parenting orders – best interests of the child considered – application to vary parenting orders – whether orders should be interim orders or final orders – need for finality – parental responsibility – equal shared parental responsibility – sole parental responsibility – “micro-managing” parenting orders – where child resides with mother – whether mother should be restrained from relocating child’s residence from Sydney Metropolitan Area – where father resides in Adelaide – views of the child – whether child should be given the option of deciding with which parent he wishes to reside once he attains the age of 14 years – where mother should be required to provide written opinion from a psychiatrist as to her fitness to parent the child – anger management – whether mother should be required to attend an anger management course – whether mother should be required to attend a parenting course – family violence – whether evidence of family violence should trigger an order that the child should reside with the father rather than the mother – no power to make an order that a party should obtain a report from a psychiatrist other than as a condition of a parenting order. |
| Legislation: Family Law Act 1975(Cth), ss.60B, 60CA, 60CC, 60CD, 61DA, 65DAA |
| Cases cited: Harris & Finch [2012] FMCAfam 77 Finch & Harris [2014] FCCA 2152 Finch & Harris (No.2) [2014] FCCA 2507 Finch & Harris (No.3) [2014] FCCA 2527 L & T (1999) 25 Fam LR 590; FLC 92-875; [1999] FamCA 1699 Nash & Reis [2013]FMCAfam 11 Rice v Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 VR & RR (2002) 29 Fam LR 39; FLC 93-099; [2002] Fam CA 320 |
| Applicant: | MR FINCH |
| Respondent: | MS HARRIS |
| File Number: | SYC 7893 of 2011 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 8 December 2015 |
| Date of Last Submission: | 8 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 14 June 2016 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
ORDERS
All earlier parenting Orders are discharged.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2003 in respect of all matters concerning the long term care, welfare and development of the said child EXCEPT THAT the Father is to have sole parental responsibility to make decisions about any elective surgery or orthodontic treatment for the child after appropriate consultation with the Mother.
In the event that the Father decides that the child should undergo elective surgery or orthodontic treatment through the private health system rather than the public health system then the Father is to be responsible for the cost of such treatment.
The Father and the Mother are to have sole parental responsibility for all matters concerning the day to day care, welfare and development of the child X at all times when the child is in the care of that parent in accordance with these Orders.
The child X is to live with the Mother.
The child X is to spend time with the Father as follows:
(a)For the first weekend of each month during the New South Wales school term from 6:00pm on the Friday until 8:00pm on the Sunday PROVIDED THAT if the Monday immediately following the weekend is a public holiday in the State of New South Wales then until 8:00 pm on the Monday;
(b)On the weekend that includes Father’s Day in each year from 6:00pm on the Friday until 8:00pm on the Sunday;
(c)For the mid-year school holidays from 9:00am on the day immediately after the last day of the school term until 5:00pm on the day before children are required to attend school at the commencement of the third school term;
(d)For the second half of the school holidays at the end of the first and third school terms in each year from 9:00am on the middle Saturday of the school holiday period until 5:00pm on the day before children are required to attend school at the commencement of the second and fourth school terms as the case may be; and
(e)From 9:00am. on 2 January in each year until 5:00pm on 23 January in each year.
For the purposes of the immediately preceding Order:
(a)The child is to travel between Sydney and Adelaide by regular scheduled airline service as an unaccompanied minor;
(b)The parties are to pay the child’s return airfares in equal shares;
(c)The Mother will be responsible for transporting the child to and from Sydney Airport and the Father will be responsible for transporting the child to and from Adelaide Airport;
(d)The child is to be booked to travel from Sydney to Adelaide on the first available flight scheduled to leave Sydney immediately after the commencement of the time the child is to spend with the Father;
(e)The child is to booked to travel from Adelaide to Sydney on the flight immediately prior to the conclusion of the time that the child is to spend with the Father;
(f)The Father is to make the child’s flight bookings no fewer than fourteen (14) days prior to the date when the child is to travel; and
(g)In the event that the child misses his flight or the departure time of the child’s flight is delayed by twenty (20) minutes or more then the parent responsible for arranging for the child to board the flight must inform the other parent by text message.
In the event that the Father commences to reside in Sydney then:
(a)the provisions of Order (5)(a) are to be suspended and the child is to spend the first and third weekend of each month with the Father from 6:00pm on the Friday until 8:00pm on the Sunday PROVIDED THAT if the Monday immediately following the weekend is a public holiday then until 8:00pm on the Monday; and
(b)changeover where the child goes from the care of one parent to the care of the other parent is to be at a location to be agreed between the parties outside the ticket barriers of the (omitted) Railway Station.
The Father is to have telephone communication with the child X:
(a)On one occasion each Sunday during the school term;
(b)On the child’s birthday;
(c)On the Father’s birthday; and
(d)On Christmas Day.
The Mother is to have telephone communication with the child X on one occasion each Saturday when the child is in the care of the Father.
The parties are to ensure that the child X continues to attend (omitted) High School until the conclusion of his secondary education and are restrained from removing the child from (omitted) High School and enrolling the child at any other High School without the written consent of the other party first had and obtained or Order of the Court.
The Father is permitted to obtain from (omitted) High School at his own expense copies of all the child’s school reports and all newsletters, bulletins, information about school photographs and other documents or information usually provide to parents of children attending the said school and the parties are permitted to provide a copy of these Orders to the Principal of the said school.
The Father and the Mother are each at liberty to attend all functions at the child’s school at which parents are permitted to attend, including school concerts and assemblies, sports carnivals, prize-giving ceremonies and parent-teacher interviews.
The parties must keep each other informed of their current residential address, email address and contact telephone number and advise each other of any change within forty-eight (48) hours of such change occurring.
The Mother is restrained from permitting either Mr A or Mr B to spend time with the child without a responsible adult being present.
The parties are restrained by injunction from abusing or criticising or denigrating each other or any member of each other’s immediate family in the presence or hearing of the child or permitting any third person to do so.
The parties must inform each other of any illness or injury sustained by the child requiring treatment at a hospital or an appointment with a specialist medical practitioner as soon as reasonably practicable and provide each other with the address and telephone contact details of the said hospital or specialist medical practitioner without any unreasonable delay.
IT IS NOTED that publication of this judgment under the pseudonym Finch & Harris is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7893 of 2011
| MR FINCH |
Applicant
And
| MS HARRIS |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Father of a boy called X to vary parenting Orders that were made by consent on 8th May 2013. X was born on (omitted) 2013, so he is now 13 years and 5 months old. He lives with his mother the Respondent and spends time with his father.
The Mother opposes the Application and seeks that it should be dismissed.
Orders Sought
The Father filed an Application in a Case on 28th May 2015, supported by an affidavit sworn that same day. In his Application he sought that all prior Orders concerning the child should be discharged and that some 38 fresh orders should be made.
The Mother filed a Response to an Application in a Case opposing the Orders sought and seeking that the application should be dismissed.
The Father filed an Amended Application in a Case on 20th July 2015, essentially updating or correcting the earlier orders sought.
It became clear at the hearing that even though the Father filed an Application in a Case which would normally be used for interim or procedural orders in ongoing proceedings, he is in fact seeking final orders.
The Orders sought by the Father are in summary that:
a)The child would continue to live with the Mother in Sydney;
b)The Mother would be restrained from moving the residence of the child from outside the Sydney Metropolitan Area;
c)The Father is to have sole parental responsibility for the child in relation to decisions concerning:
i)the child’s health, medical and surgical treatment; and
ii)the child’s dental treatment.
d)The parents would have equal shared parental responsibility in respect of all other matters relating to the child;
e)Upon the child attaining the age of 14 years or in the year that he goes into Year 9 at High School, he is to have the right to elect which parent with whom he wants to live commencing in the year 2018;
f)The child is to attend (omitted) High School and the Mother is to meet the child’s schooling costs;
g)If the Father comes to live in Sydney (he currently resides in Adelaide with his wife) he is to notify the Mother about proposed changes to parenting orders;
h)If the Father continues to reside in Adelaide or takes up residence in another Australian city, he is again to notify the Mother about proposed changes to parenting orders;
i)The Mother is to be restrained from providing the Father’s address and contact details (and those of his wife) to her former friends Mr A or Mr B and the child is not to spend any time alone in the presence of either of those people;
j)The Mother must provide written notice from her treating psychiatrist regarding her fitness to parent the child, confirmation that she is taking her medication and when she last received counselling;
k)The Mother must attend an anger management course;
l)The Mother must attend a parenting a teen course; and
m)If the Mother exposes the child to domestic violence or experience further episodes of deteriorated mental health, the child is to live with the Father and spend time with the Mother as agreed between the parties and the Mother’s treating psychiatrist.
Earlier Proceedings
The parties commenced a relationship in 1999 and were married in 2001. They separated in December 2003 and were divorced in 2005. There parenting Orders made by consent on 10th November 2006.
The Father remarried in 2011. The Mother was formerly in a relationship with Mr A and has two children from that relationship. Those two children live with her. The child X has always lived with the Mother.
The Mother made an Application for a Recovery Order against the Father after he did not return the child to her on 27th December 2011. On 13th January 2012 I made Orders as follows:
(1)The Respondent Father is to return the child X, born (omitted) 2003, to the care of the Mother by 2:00 pm on Tuesday 17 January 2012.
(2)The Applicant Mother is restrained by injunction not to allow Mr B to be alone in the presence of the child X at any time.
(3)Pursuant to the provisions of section 68L of the Family Law Act, the interests of the child X, born (omitted) 2003, is[1]to be represented by a lawyer and Legal aid New South Wales is requested to arrange such representation.
(4)The parties are to forward to Legal Aid New South Wales within seven days copies of all applications, responses, affidavits and other relevant documents to Legal Aid New South Wales for the purposes and use of the Independent Children’s Lawyer when appointed.
(5)The parties are restrained from discussing the proceedings before this court of the apprehended violence order proceedings before the Local Court of New South Wales with the child.
(6)The Court accepts the undertaking of the Mother not to allow the child X to be unsupervised in the presence of Mr A. The Court notes that there are currently apprehended violence proceedings on foot against Mr A.
(7) Costs are reserved.[2]
[1] sic
[2] Harris & Finch [2012] FMCAfam 77
On 8th May 2013 the parties entered into final Consent Orders.
Those Orders provided that (in summary):
a)The parties were to have equal shared parental responsibility for the child;
b)The child would live with the Mother in the Sydney Metropolitan Area;
c)The child would live with the Father in Adelaide:
i)on the Queen’s Birthday long weekend;
ii)on the weekend of Father’s Day;
iii)at Easter;
iv)for the second half of the school holidays in odd numbered years; and
v)for the first half of the school holidays in even numbered years.
There were also Orders about:
a)arrangements for the child’s travel by air between Sydney and Adelaide;
b)the purchase of a backpack for the child;
c)a restraint on the Mother from permitting Mr A to spend any time alone with the child;
d)the use of a communication book;
e)telephone calls;
f)postcards;
g)notification of changes of address;
h)medical treatment for the child;
i)orthodontic treatment for the child at the Father’s expense;
j)counselling support for the child with a psychologist;
k)the schools to be attended by the child;
l)arrangements for the child to play cricket on Saturdays during the season;
m)a non-denigration order; and
n)other ancillary Orders.
The Father commenced contravention proceedings against the Mother in 2014 for breaches of the Orders for:
a)providing mail to the child in an unopened condition;
b)making a medical specialist’s appointment for the child; and
c)making appointments for counselling support sessions with the psychologist.[3]
[3] Finch & Harris [2014] FCCA 2152
The Mother was found to have established a reasonable excuse for contravening the order relating to mail for the child. She was found to have contravened without reasonable excuse the Order for making appointments for the child to receive counselling support from the psychologist. The order for the medical specialist consultation was discharged and a fresh order was made.[4]
[4] Finch & Harris (No.3) [2014] FCCA 2527
The Father commenced proceedings for a temporary variation of the parenting Orders on the basis that he was not living in Adelaide but would be living and working in Sydney for a lengthy period of time. Orders were made providing that, until further Order:
a)The child would spend alternate weekends with the Father;
b)Changeover would take place at (omitted) Railway Station rather than Sydney Airport;
c)The child would play cricket on the weekends when he was spending time with the Father, at the father’s expense;
d)The child would attend (omitted) High School from the first school term in 2015; and
e)By consent, the parties would share equally the costs of the child’s High School enrolment, school fees, school uniforms and shoes.[5]
[5] Finch & Harris (No.2) [2014] FCCA 2507
In that decision, at [37]-[39], I expressed the view that detailed and prescriptive orders described as micromanaging how the parents would care for the child were undesirable. I followed the decisions of Judge Brewster in Nash & Reis[6] and the Full Court of the Family Court in VR & RR.[7]
[6] [2013] FMCAfam 11
[7] (2002) 29 Fam LR 39; FLC 93-099; [2002] FamCA 320
I am still of that view, as it is the Father’s intention that, at least for the time being, X is to remain living with his mother. She should be given the latitude to attend to the child’s needs appropriately without being told what to do every step of the way.
Evidence and Submissions
The Father relied on the following:
a)his Amended Application in a Case;
b)his affidavit of 28th May 2015; and
c)his affidavit of 2nd December 2015.
The Mother relied on her Response to an Application in a Case filed on 16th November 2015 and her affidavit in support filed the same day.
Neither party gave oral evidence nor did they seek to cross-examine the other party.
The Father attended Court by telephone from South Australia. He complained that the Mother had not filed a Financial Statement despite having been directed to do so. He said that she works full time and has been deliberately concealing her income which he claims to be significantly greater than her disclosed income of $24,000.00 per year. As a result he said his child support payments were higher than necessary.
The Father claimed that the Mother had not met her obligations under the previous Court Orders to arrange for the child to have a surgical review nor has she taken the child to an optometrist. He also said that the Mother had failed to have the child’s orthodontic needs attended to.
The Father went on to say that his current wife was expecting a baby and would be unable to work for the next twelve to eighteen months whilst she cared for the baby.
The Father seeks an order that would allow the child to decide with which parent he wants to live once he attains the age of 14. He said that the child had expressed a desire to live with him and continues to express that wish.
In answer to a question from the Bench about his application for an injunctive order restraining the Mother from relocating out of the Sydney Metropolitan area, he said that he did not have a concern about any desire of the Mother to move to some distant part of Australia but he sought a stable environment for the child. He commented that the Mother had moved to various address in Sydney which was destabilising for him.
The Father when asked by the Bench about whether the orders he sought were interim orders or final orders, conceded that they were in fact final orders that he sought. He said that he had been hoping that the orders could have been made sooner.
The Mother in her submission took issue with the fact that the Father was seeking to restrain her from relocating her residence (and that of the child) whilst he had at short notice moved from Sydney to Adelaide, then relocated temporarily back to Sydney and was now relocating back to Adelaide. She said that this was not conducive to the child’s best interests as far as stability is concerned.
The Mother said that she had in fact taken the child to see an optometrist to have his eyes checked and the optometrist had said that no prescription was required.
The child is attending (omitted) High School where he is in Year 7. The Mother said that he has settled in and is doing well.
The Mother also asked the Court to note that she has two younger children by a later relationship aged 10 and 8 years. She said that X has a good relationship with both of his half-siblings.
In answer to a question from the Bench, the Mother said that she was working five days a week and has the opportunity to work on Saturdays and Sundays. She does so when the children are not with her. She also said that she does not intend to relocate out of Sydney and if she were to relocate she would choose Melbourne where her extended family members live. However, she said that the child had lived in Sydney all his life and she did not believe that relocating to Adelaide would be in his best interests.
The Mother said that there had not been any significant change in the child’s life that would warrant a change in the parenting orders at this stage.
The Father in a submission in reply said that there was a need for him to be responsible for the child’s medical, surgical and dental needs were the Mother to fail to act. In reply to this, the Mother said:
“If I could just briefly advise the court that I do not have any issues with the court seeking to make orders in regards to medical and dental arrangements for the child. If that’s in the best interests of the child, I’m happy for the father to participate in those decisions. My only consideration is that I am under the public health system. I’ve been advised that orthodontic treatment is approximately an eight year wait…which is absolutely prohibitive, and if the father would consider bearing the majority of the costs for such treatment, then I certainly wouldn’t [object] to that being done for the child”.
Applications for Parenting Orders
When a court is considering making parenting orders, it must consider the matters set out in Part VII of the Family Law Act 1975 (Cth). In particular, the Court must consider:
a)The objects of Part VII and the principles underlying those objects as set out in section 60B of the Act;
b)Section 60CA which prescribes that the best interests of the child must be the paramount consideration;
c)Section 60CC which sets out how a Court determines what is in a child’s best interests particularly in subsection 60CC(2) (which contains the primary considerations) and subsection 60CC(3) (which contains additional considerations);
d)Section 61DA which 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 (and when the presumption does not apply or is rebutted); and
e)Section 65DAA which requires the Court to consider whether it is both in a child’s best interests and reasonably practicable for the child to spend equal time with each parent or failing that, whether it is in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.
All of those matters have been considered, so far as they are relevant.
Consideration
The Mother raises the issue that there has not been a sufficient change in circumstances to warrant a change to parenting orders (see Rice v Asplund[8]). The Father submits that the child has been expressing the view for several years that he wants to live with his father rather than his mother.
[8] (1978) 6 Fam LR 570; (1979) FLC 90-725
It is a consideration, set out in paragraph 60CC(3)(a) of the Family Law Act 1975, that the Court should consider any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give the child’s views.
Section 60CD of the Act provides at subsection (2) that the court may inform itself of views expressed by a child:
a)by having regard to anything contained in a report given to the court under subsection 62G(2); or
b)by making an order under section 68L for the child’s interests to be independently represented by a lawyer; or
c)such other means as the court thinks appropriate.
In this case, there is no Independent Children’s Lawyer but there are two Family Reports, the first dated 18th September 2012 and the second, an update, dated 26th March 2013. In the earlier Report, prepared when the child was aged nine years, he said he would like to live in Adelaide and he felt safe at his father’s house. There is no more recent information.
To my mind, this is not sufficient to justify an order that the child should leave the residence of his mother with whom he has lived all his life and go to live with his father. It is not appropriate to give a child of fourteen years the power to dictate with which parent he would like to reside. If he were seventeen and a half years old say, the Court would almost certainly give great weight to his views but that is not the case here.
I have previously indicated at [17] and [18] above a reluctance to making orders that “micromanage” the parenting by one or other party. If it is the view of the Father that the Mother’s parenting skills are so deficient that she is unable to look after the child without detailed instructions then he should be making a case that the child should live with him. That is not the case here. It is the view of both parties that at least at this time X should remain living with his mother.
That said there appears to be some merit in the Father’s concerns about the child’s dental and orthodontic needs in particular as well as his more general medical needs. These issues were referred to in paragraphs 13 and 14 of the Family Report released to the parties on 26th March 2013. The Mother stated then and has continued to do so, that she cannot afford to pay for private orthodontic treatment and proposes that the child be treated as a public patient at the Sydney Dental Hospital. However, as the Mother told the Court, the waiting list is a staggering eight years long.
It appears that the Father is concerned that the child’s needs are not being met in this area and one of the reasons would appear to be financial. In my view, the Father should be given the power to make decisions about specific matters of surgery and orthodontic treatment for the child. It follows to my mind that if the Father is to make arrangements for the child to have surgery or orthodontic treatment through the private health system rather than through the public health system, then he should bear the responsibility for paying for it.
The parties should have equal shared parental responsibility for normal medical and dental issues relating to the child.
The Father seeks that the Mother should have a psychiatric assessment as to her suitability to care for the child. It is doubtful that the Court has the power to make a “stand alone” order for the Mother to undergo a psychiatric assessment, although the Court would have the power to do so as a condition of a parenting order if considered appropriate (see L & T[9]). I do not propose to make such an order as I am not persuaded that there is sufficient evidence to justify it.
[9] (1999) 25 Fam LR 590; FLC 92-875; [1999] FamCA 1699
Similarly, I am not persuaded that the evidence is sufficient to justify making an order requiring the mother to undergo either an anger management course or a parenting course.
It does seem clear, however, that the Father’s concerns about the child’s surgical and orthodontic needs have some foundation which is why I propose to make the order providing for him to have sole parental responsibility to make decisions about the child’s treatment in those specific instances. It appears to me that this would be in the best interests of the child.
I am not satisfied that there is sufficient evidence to warrant making an injunctive order restraining the Mother from removing the child from the Sydney metropolitan area.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 17 June 2016
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