Finn and Finn
[2011] FMCAfam 1135
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FINN & FINN | [2011] FMCAfam 1135 |
| FAMILY LAW – Parenting – interim hearing – family report recommendations – father to have unsupervised time – dispute as to changeover location and length of time to be spent. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 64B, 65DAA, 68L |
| Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR FINN |
| Respondent: | MS FINN |
| File Number: | SYC 5733 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 15 August 2011 |
| Date of Last Submission: | 15 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 15 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Not applicable |
| Solicitors for the Applicant: | Belgrave Lawyers Pty Ltd |
| Counsel for the Respondent: | Not applicable |
| Solicitors for the Respondent: | Drexler & Partners |
| Independent Children’s Lawyer: | Peter Baker Solicitors |
ORDERS
The listing of this matter for mention hearing on 1 September 2011 be vacated.
Paragraphs three (3) to five (5) inclusive of the Minute of Consent Orders attached to the Orders made on 22 December 2011 be discharged.
The solicitors for the Respondent make, file and serve a Notice of Address for Service by not later than 4:00pm on 22 August 2011.
The Application in a Case filed by the Applicant on 4 May 2011 be dismissed.
AND THE COURT ORDERS, UNTIL FURTHER ORDER THAT:
The child X, born (omitted) 2010, (“the child”) spend unsupervised time with the Applicant as follows:
(a)from 17 August 2011 until 17 September 2011:
(i)on Wednesdays from 2:00pm to 4:00pm;
(ii)on Saturdays from 2:00pm to 4:00pm;
(iii)on Sundays from 1:00pm to 4:00pm; and
(b)from 18 September 2011 and thereafter:
(i)on Wednesdays from 2:00pm to 5:00pm;
(ii)on Saturdays from 2:00pm to 5:00pm; and
(iii)on Sundays from 1:00pm to 4:00pm.
For the purposes of paragraph five (5) herein, changeovers agree at such a place as may be agreed between the parties and, failing agreement, as follows:
(a)on Wednesdays and Saturdays, at (omitted) Supermarket in (omitted), NSW; and
(b)on Sundays, at a venue agreed between the parties within 48 hours of the date of these Orders and, failing agreement, at a Railway Station located on the (omitted) lines between (omitted) and Central (inclusive) nominated by the Respondent within 72 hours of the date of these Orders.
AND THE COURT NOTES THAT:
(A)Paragraphs four (4) and five (5) herein were made following an interim hearing.
(B)The Family Report of Ms R was released to the parties on 23 June 2011.
(C)The Respondent advised the Court that she proposes to file an Application seeking Orders allowing her to travel with the child to (country omitted).
(D)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (“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 Finn & Finn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5733 of 2010
| MR FINN |
Applicant
And
| MS FINN |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons are being delivered orally and may be settled when time allows or otherwise upon request.
This is an Application in a Case filed on 4 May 2011 by MR FINN (“the father”) against MS FINN (“the mother”) seeking various interim parenting orders regarding X born on (omitted) 2010 (“X”). The father is also the applicant in the substantive parenting proceedings currently before the Court.
More specifically, the father’s Application in a Case seeks to vary the current interim parenting orders to facilitate the father spending unsupervised time with X from 1:00pm to 4:00pm on Sundays and Wednesdays, and from 2:00pm to 5:00pm on Saturdays. The father relies upon his affidavit sworn on 28 April 2011 and filed on 4 May 2011 and was represented today by Mr Tanevski.
The mother has not filed a formal response to the father’s Application in Case but nevertheless relies upon her affidavit sworn on 12 August 2011 and filed today. The mother is legally represented by Mr Doolan, as agent, today.
By an Order made by me on 22 November 2010, an Independent Children’s Lawyer (“ICL”) was appointed pursuant to s.68L(2) of the Family Law Act 1975 (“the Act”) and Ms Baker appears in that capacity today.
Background
The father was born on (omitted) 1974, and the mother was born on
(omitted) 1975 (in (country omitted)). It would appear the parties met in early 2008 and married on (omitted) 2009. Their child, X, was born, as stated, in (omitted) 2010 and is currently sixteen and a half months old.
The parties’ relationship was short lived. The mother asserts that the relationship was marred with domestic violence and disputes over money. The mother asserts that following an incident on 22 July 2009 the police applied for an Apprehended Violence Order (“AVO”) and the father was charged with assaulting the mother. The mother also asserts that the father was sentenced as a result of that incident.
It would appear that the mother left Australia for a trip to (country omitted) in November 2009 and returned following X’s birth in mid-2010 (i.e. approximately seven months after leaving Australia). Following an alleged further incident in September 2010, the mother moved into a women’s refuge and made a complaint to the police that culminated in a final AVO being made at Kogarah Local Court in September 2010. The mother has subsequently left the women’s refuge and is now in rental accommodation in the (omitted) area.
The father commenced the substantive proceedings by way of an Initiating Application filed on 10 September 2010. When the matter came before me for the first time in my duty list on 22 November 2010, I made orders, as stated, seeking the appointment of an ICL, orders restraining the parties, or their agents, from taking X from outside Australia, and also an Airport Watch List order.
The matter had been listed for an interim hearing before me on
22 December 2010 however that did not proceed and the parties entered into interim orders by consent on that date which provide as follows:
“1.That the name of the Child X born (omitted) 2010 (“the child”) remain on the Airport Watch list.
2.That the child live with the Mother.
3.That the Father to spend time with the child through “(omitted)” at such times as agreed by the parties or as determined by that organisation but no less than once per week.
4.The parties must comply with all reasonable requests or directions of the staff at that organisation.
5.The Father shall bear the total cost of any fees due to that organisation.
6.That the parties be and are restrained from using any physical force upon the child.
7.That the parties be and are restrained from denigrating the other party or members of the other parties family to or in the presence of the child.
8.That the Applicant Father to enrol and complete:
(a)An Anger management course
(b)A Parenting after separation course
9.That the Father will provide to the Independent Children’s Lawyer and the mother’s legal representative evidence of his enrolment and completion of the courses set out in Order 8 within 14 days of enrolment and completion.
NOTATION: The parties propose that the time spent with the father shall occur at “(omitted)” at (omitted) each Sunday between 2 pm and 3 pm”
When the substantive matter returned before me on 22 February 2011, I set it down for a final hearing in early 2012 and otherwise adjourned the matter for further mention on 1 September 2011.
The father’s Application in a Case was filed on 4 May 2011. The family report by Ms R, family consultant, was subsequently prepared and released by me on 23 June 2011 (“the Family Report”). To some extent the Family Report has superseded the issue as to whether X’s time with the father should remain supervised.
I note that Ms R made the following recommendations in her report:
“51.It is recommended that X live with the mother.
52.It is recommended that X spend time with the father for two to three hours on three occasions per week. The time does not need to be supervised, however, it may be necessary for changeovers between the parents to be supervised.
53.it is difficult to predict when it will be appropriate for X to spend a further increased amount of time with the father. From a general child developmental perspective, it may be appropriate to initiate single overnight visits once per week when X is two to two-and-a-half years old. This could be gradually increased to an arrangement whereby X spend substantial and significant time with the father from when she is four years old.
54.The recommendation above is dependant upon the parents being able to, both separately and together, monitor X and adjust the arrangement tin a responsive manner according to her needs.
55.It is recommended that, prior to X spending overnights with the father, he complete a parenting course that will improve his awaren3ss and skills of child rearing practices, particularly regarding sleep routines.
56.It is also recommended that Ms Finn access a family support and/or domestic violence counselling service in her local area.”
Issues
There is no longer any dispute between the parties that X’s time with the father should remain supervised. There is also no dispute today that the time to be spent by X with the father should be regular time comprising three periods a week for three hours, although the mother seeks a transition period before the three hours commences.
That said, the parties are in disagreement today in respect of three issues, those being:
a)what days X should spend with the father, noting that both agree that it be three days per week;
b)whether each period should be for three hours each effective immediately as sought by the father or two hours per period for one month and thereafter, three hours per period as sought by the mother. I note that, subject to that issue, the mother is agreeable to the time sought by the father; and
c)whether changeover should occur at (omitted) where the mother lives and as proposed by her, or a halfway point between (omitted) and (omitted) where the father lives and proposed by him and in the course of submissions, he proposed (omitted) Railway Station which is on the (omitted) line.
Submissions
Each of the parties’ legal representatives and the ICL made oral submissions to the Court with respect to the three issues in dispute.
Issue one: days of the week
In respect of this first issue the father submitted that an order for Saturday should be made because the father works during the week, that is Monday to Friday, and for a half day on Saturday. That said, the father acknowledged that being self-employed, he has some flexibility regarding his work hours and should the Court be of the view that Saturday was not an appropriate day he proposed Friday in lieu.
The mother submitted that the father’s affidavit lacked detail about his work hours.
The ICL was unable to make a submission either way but saw some merit in the father’s proposal given his work commitments.
Issue two: length of time
The father submitted that the available evidence from (omitted) was favourable and that a move now to three hours was appropriate. The father also submitted that Ms R was clearly of the view that three hours was appropriate. To be fair, Ms R says “two-three hours”.
The mother submitted that some transition was warranted given that the time spent between X and the father between February and August 2011 has just been two hours once a week.
The ICL submitted that there was merit in the mother’s proposal for a transition period.
Issue three: changeover location
The father submitted that changeovers closer to his residence would enable him to spend more quality time with X. It would also enable X to spend time with the father’s extended family rather than being limited to the (omitted) region. The alternative, of course, would be to increase the time spent by X with the father to allow for travel time.
The mother submitted that, firstly, she was relying on public transport and this made it difficult for her to attend changeovers with the father, in particular those proposed by the father. Secondly, the mother submitted that the father had a motor vehicle. Thirdly, the father pays minimal child support.
The ICL saw merit in both positions.
Law and discussion
All parenting proceedings are governed by the provisions of Part VII of the Act. Parenting orders are defined in s.64B of the Act. Parenting orders deal with where a child is to live, the time a child is to spend with another person or otherwise allocate parental responsibility in relation to a child.
At this point let me note that the guiding principle found in s.60CA of the Act states:
“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.”
Section 60CA through s.60CC of the Act deal with how the Court determines the best interests of a child. The most relevant to the Court are the primary considerations in s.60CC(2) of the Act and the additional considerations in s.60CC(3) where relevant which will be considered briefly in a moment.
In the case of Goode & Goode (2006) FLC 93-286 (“Goode”) the Full Court made it clear that in approaching interim decisions and interim orders the legislative pathway must be followed. In other words the provisions of the Act, post the 2006 shared parenting amendments, must be followed.
Strictly speaking, there is no issue of equal shared parental responsibility for determination in this decision. The dispute today is simply limited to X’s time with the father and under what circumstances that time will be spent. That said, s.61DA of the Act does incorporate a presumption that the Court is required to consider when making a parenting order, namely that the Court must apply the presumption that is in the best interests of a child for that child’s parents to have equal shared parental responsibility.
Section 61DA(2) of the Act makes it clear that the relevant presumption does not apply if there are reasonable grounds to believe there has been abuse of a child or family violence.
Of direct relevance to this interim decision is s.61DA(3) of the Act which states:
“(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.”
This was discussed in more detail in Goode.
In addition, under s.61DA(4) the presumption may be rebutted if it is contrary to a child’s best interests. As I am satisfied that it would not be appropriate to apply the presumption in this decision, I am not required to consider s.65DAA but, that said, the criteria in s.65DAA(3) and (5) is useful and not irrelevant in the case before me.
Conclusion
Having considered the respective applications and submissions in light of the available evidence and the relevant statutory visions, the Court is satisfied of the following.
Firstly, in respect of the timing issue, there is merit in both parties’ proposals as put forward. That said, a decision is needed because the parties are in dispute. Given that the father works, there is merit in ensuring that this continues, hopefully leading to greater child support being generated to assist the mother as $30.00 per month is not sufficient to meet X’s needs. Consequently, the times to be spent until further order will be on Wednesdays, Saturdays and Sundays as proposed by the father.
The second issue is time length. Clearly, Ms R was of view that “two-three hours” was appropriate. Both parties’ proposals reflect Ms R’s recommendation. Some transition would, in my view, assist X though whether one month is needed is, of course, debatable. That said, I have formed the view that the times on Wednesdays and Saturdays should for the next four weeks be two hours, but there should be three hours allowed on the Sunday, effective immediately. As stated, in four weeks time all periods will be three hours.
Thirdly, the changeover issue. Both parties’ proposals are not unreasonable. There are obvious difficulties for the mother however she does have a history of travelling to the (omitted) area each Sunday, at least from February 2011 until last weekend. Consequently, I have formed the view that changeovers on Wednesdays and Saturdays they should occur in (omitted). However, changeovers on Sunday shall occur at an agreed venue, that is agreed within the next 48 hours, and in the event that the parties cannot agree on a venue then within the next 72 hours the mother can nominate a railway station on the (omitted) line between and including (omitted) and (omitted) Railway Station.
There will now be orders and notations to reflect this decision.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 25 October 2011
2
0
0