Fitzroy and Fitzroy

[2016] FCCA 3452

FEDERAL CIRCUIT COURT OF AUSTRALIA

FITZROY & FITZROY [2016] FCCA 3452

Catchwords:
FAMILY LAW – Interim application – best interests of the children is of paramount – consideration – consideration of additional considerations – on an interim basis it is not in the best interests of the child to spend equal time with the respondent – on an interim basis, it is not appropriate to make a mandatory order in relation to the children’s physical access to the respondent – children to live with the applicant on an interim basis – parenting orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 65D, 65DA, 65DAA, 65DAB, 65DAC, 69H

Applicant: MR FITZROY

Respondent: MS FITZROY

File Number: BRC 5947 of 2008

Judgment of: Judge Street

Hearing date: 16 November 2016

Date of Last Submission: 16 November 2016

Delivered at: Brisbane

Delivered on: 16 November 2016

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

ORDERS

1. That the Order made by the Family Court of Australia on 6 October 2009 be discharged.

2. That the children X born (omitted) 2003 and Y born (omitted) 2005 (“the children”) be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Federal Circuit Court of Australia at Brisbane.

3. That the parties and the children shall attend an appointment with Ms I Family Consultant or a Family Consultant nominated by the Senior Family Consultant of the Federal Circuit Court, Brisbane at 9:00a.m. on 17 January 2017 at the Family Court of Australia, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane.

4. That pursuant to section 11 of the Family Law Act 1975, the Family Consultant shall provide an advice to the Court and the parties that may include:

   (a)identification of the issues for the children;

   (b)a consideration of the relevant factors contained in s.60CC of the Act and an appropriate parenting plan for the children until there can be further investigations into the matter; and

   (c)such programs as may assist the parties establish a better functioning co-parenting relationship and more positive and effective communication or that might assist them in the development of their parenting skills.

5. That the Family Consultant shall have leave to inspect any subpoenaed documents.

6. That the Family Consultant provide a written memorandum to the Court.

7. That the father and the mother have equal shared parental responsibility for the children’s long term issues, and the long term issues in relation to the children are to be decided jointly after consultation, which must be agreed in writing and signed by each party.

8. That the children live with the father.

9. That the father facilitate telephone or Skype/Facetime between the children and the mother on a daily basis.

10. That the children, so long as the children wish to do so, spend time with the mother at her (omitted) residence as agreed between the parties in writing and signed by each party, and failing agreement, as per the following:

    (a)for one child on one (1) weekend from Friday afternoon to Sunday afternoon in December 2016 and one child on one weekend in January 2017, and thereafter one weekend for each child during the gazetted school holidays;

    (b)the father is to pay the first return airfare cost of the child from Brisbane to (omitted) and the mother is to pay the cost of then next return airfare from Brisbane to (omitted) on the second visit. Thereafter the parties pay alternate return airfares. 

11. That the children, so long as they wish to do so, spend time with the mother in Brisbane during gazetted school holidays for up to half the school holiday, provided that only one (1) child at a time is permitted to spend time with the mother in Brisbane.

12. That both the children so long as they wish to do so, spend time with the mother from 9:00am to 5:00pm on either 25 December 2016 or 26 December 2017 in Brisbane.

13. That both the children so long as they wish to do so, spend time with the mother on Mother’s Day and the mother’s birthday from 9:00am to 5:00pm in Brisbane.

14. That the children so long as they wish to do so, spend time equal time with the parents between the hours of 9:00am to 7:00pm on each of the children’s birthdays, in Brisbane.  

15. That when the children spend time with the mother in Brisbane, changeover is to occur at the father’s residence.

16. That the parties are at liberty to vary the orders in relation to the time the children spend with the mother by agreement in writing and signed by each party.

17. That the parties are excused from complying with the requirements of s.60I of the Family Law Act 1975 (Cth) (“the Act”).

18. That the father be permitted to enrol the children at (omitted) School for the 2017 school year, at the father’s expense.

19. That neither party is to denigrate or insult the other party or their family in the presence or hearing of the children and is to use their best endeavours to ensure that others do not denigrate or insult the other party or their family in the hearing or presence of the children.

20. That the parties are at liberty to provide proposed signed final parenting orders by consent between the parties to chambers.

21. That this matter be adjourned for Mention to a date to be fixed in the Federal Circuit Court of Australia at Brisbane.

IT IS NOTED:

A.The above parenting orders impose mandatory obligations upon the parents to comply with each order for the benefit of the parenting of the child. Each parent must abide the requirements of each order and a breach of any of the above orders may constitute a contempt giving rise to exposure to imprisonment, sequestration, fine and variation of the above orders which may include loss of access to the child. Attached to this Order is a document, “Parenting Orders – Obligations, consequences and who can help” which further explains the nature of the parenting orders and consequences of contravention and the information provided forms part of the parenting order pursuant to s.65DA(2) of the Act.

B.The court requests that the Independent Children’s Lawyer take appropriate steps to organise a Legal Aid Conference between the parties with a view to reaching a final agreement between the parties.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 5947 of 2008

MR FITZROY

Applicant

And

MS FITZROY

Respondent

REASONS FOR JUDGMENT

Background

1. This is an interim application within the Court’s jurisdiction under s.69H(4) of the Family Law Act1975 (Cth) (“the Act”) in relation to two children now aged 11 and 13. The Court has before it competing applications for the children to be returned to live with their mother and an application for the children to live with the father.

2. There was a parenting order made by a justice of the Family Court of Australia on 6 October 2009 which the father seeks to have discharged on an interim basis pending a final hearing and to permit the two children to reside with the father.

3. The children have been living with the mother up until approximately 17 September 2016. The children came to the father for a school holiday consistent with the orders that were in place from the Family Court of Australia. Prior to this occurring, in July 2016 the mother became aware of an issue of inappropriate contact between the siblings.  The mother did not disclose that fact to the father, consistent with the orders that were in place and the father only became aware of those circumstances in September 2016.That inappropriate contact gave rise to the matter being reported by the teacher and the school to the police. 

4. It also came to the attention of the father in September that there had been an incident involving physical violence from the respondent’s former partner to whom she is still married at the end of 2015. A domestic violence order was obtained by the respondent against the applicant on 15 April 2016. That domestic violence order involved persons including to the two children and a child of the respondent and her former husband. The basis for that protective order is not readily apparent on the material before the Court.

5. The father was interviewed by the (omitted) Police on 6 September.  On that day the father took a call from an Ms E of Child Safety Services, being a case worker working on the case relating to the children as a result of the inter-sibling conduct. The case worker raised with the father concerns in respect of the mental health of the respondent mother. One of the children was taken to the (omitted) base hospital for two days in early September as a result of anxiety. The father continued to ascertain information from Child Safety Services in relation to the welfare of the children. On 8 September 2016, further questions were raised by Ms E with the father in relation to the mother’s welfare. The father ascertained that the mother had been in hospital for three weeks. The father ascertained that the children had been in the care of the mother’s partner while she was in hospital.

6. On 11 September the father became aware that Child Safety Services had interviewed the children and concern was raised in relation to the children’s welfare and the need for an immediate safety plan for the father to look after the children. It was in the circumstances of that safety plan that the father filed the initiating application in this Court for interim relief on 29 September 2016 and final relief in relation to the children. That came before the Court on 19 October 2016 and orders were made for the filing of affidavits to permit and interim determination in respect of a parenting order.

Evidence before the Court

1. The Court has had read two affidavits by the applicant, an affidavit by the respondent and an affidavit by the applicant’s mother. The Court notes that there was a notice of risk filed on 29 September 2016 by the applicant in relation to the respondent and involving the respondent’s partner. Having identified the competing orders sought, the Court had sworn both parties and took further evidence in relation to determining the best interests of the children in the circumstances of the issues that have arisen.

2. The father identified that he works shifts seven days on, seven days off, which he is required to fly to and that the boys stay with his grandparents and his wife who does not work when he is not there.  The father has indicated that the boys have expressed concerns about returning to the mother in her current location. At (omitted), the father gave evidence as to his willingness to facilitate access by the mother to the children but referred to one of the children having expressed suicide ideation. The mother’s evidence confirms similar ideation concerns in relation to one of the children. The mother has been making video-link contact with the children since they have been living with the father. The mother wishes to have reinstated the position of the children living with her. 

3. The Court notes that there is a report from a psychologist dated 19 October 2016 identifying that the children are in safe hands with their father and that they are well-supported by his wife and extended family.  The psychologist acknowledged the importance of both parents having continued access to the boys but expressed concern in the short term in relation to the inadequate picture in respect of the best interest of the boys and expressed the opinion that it was in the best interest of the boys if they did not return to (omitted) at this time. The father is proposing to send the two boys if permitted by the Court, to a private school next year. 

4. The mother gave evidence that last week she accepted a contract to start work at (omitted) where the mother has some family and that she is intending to relocate from (omitted) to (omitted) and maintained that the relationship with her husband is over, although she has not yet filed for a divorce. There was produced on subpoena, electronic material in CD form from the (omitted) Hospital to which the respondent was admitted. The Court did not receive that material into evidence in electronic form as this is an interim application and the Court is not determining the matter on a final basis. It is however, common ground that the respondent spent a period of time in hospital and it is apparent on the material that the respondent has had issues in relation to her mental health and alcohol. 

5. The applicant has however, acknowledged that if the respondent is present in Brisbane, he has no real concerns of the boys being in her presence or seeing her insofar as they wish to. The applicant has however, expressed concern in relation to the boys being required to attend (omitted) or (omitted) and has expressed concern about the boys being compelled to do so in circumstances of the suicide ideation at least of one of the boys. 

Consideration of the object of Part 7 of the Act

1. Under Part 7 of the Act, the Court is required to take into account the objects identified in s.60B of the Act. Relevantly, those objects are ensuring that the 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 children, protecting the children from physical and psychological harm from being the subjected to, or exposed to, abuse, neglect or family violence, ensuring that the children receive adequate and proper parenting to help them achieve their full potential and ensuring that parents fulfil their duties, and meet their responsibilities, concerning care, welfare and development of their children.

Consideration of the principles underlying the objects of Part 7 of the Act

1. Section 60B(2) of the Act identifies the principles underlying those objects, which materially include the children having the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together and that the children have a 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, including grandparents and relatives, and that both parents jointly share duties and responsibilities concerning the care, welfare and development of their children and that the parents should agree about future parenting of their children.

Consideration of the best interests of the children

1. Section 60CA of the Act identifies that whether to make a particular parenting order in relation to a child is one which the Court must regard the best interests of the child as the paramount consideration. That paramount consideration is of considerable importance in the present case. It is that paramount consideration that gives rise to the orders that the Court proposed to make in the present case that the children continue to live with the father.

2. The Court takes into account s.60CC of the Act in relation to determining what is in the best interests of the respective child. The Court has taken into account the primary considerations in relation to the benefit of the child having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subject to or exposed to abuse, neglect or family violence. It is those primary considerations in the present case in respect of protecting the respective child that gives rise to the reason for the Court proposing to make an order that the children on an interim basis live with the father.

Assessment of additional considerations

1. The Court is required to take into account additional considerations. I note in relation to the primary considerations, the Court is required to give greater weight to the primary consideration under section s.60CC(2)(b) of the Act. The Court accordingly, gives greater weight to that factor in determining the order in the present case.

2. The Court has taken into account as additional considerations that on the evidence before it, the children have expressed views of concern in returning to the mother’s location in (omitted). Those concerns appear to be focused on the mother’s former partner. The Court takes into account the nature of the relationship of each child with the parent and it appears on the evidence before the Court that the children are not at risk if living with the father in the interim period. Both parties should however, work towards a situation where eventually the children are spending equal time with both.

3. The Court also has taken into account in respect to the additional considerations, the extent to which the respective parents have taken, or failed to take the opportunity to participate in making decisions about the major long-term issues in relation to the children, spend time with the child and communicate with the child. 

4. In relation to the additional considerations, the Court also takes into account the extent to which each of the child’s parents has fulfilled, or failed to fulfil, their parent’s obligations to maintain the child. Those obligations include complying with the Court’s orders. In this regard, the mother, on the evidence before the Court, failed to comply with the Court orders in relation to notifying the father of the incident that occurred in October last year involving her partner. The mother’s affidavit in that regard appears to downplay the nature of the incident which was described as a kick. It is apparent the kick gave rise to a visible bruising of one of the children. That was an incident that the mother should have reported to the father. A further incident that occurred where the mother was informed of the sibling inappropriate conduct was again, one in respect of which the mother had an obligation to inform the father and with the orders in place, the mother did not do so. That was a substantial and significant matter in relation to noncompliance with the mother’s obligations as a parent to protect the respective children. 

5. The Court takes into account that the father has on one view, breached the orders that were in place in relation to the orders made by Murphy J of the Family Court of Australia. The circumstances explained by the father’s affidavit do minimise the significance of that conduct and the circumstances that the father was seeking to protect the best interests of the children. It is not however, a position where the parents can take into their own hands the determination of what is in the best interests of the Court orders. Both parents must understand the Court orders made by this Court must be obeyed. Failure to comply with the Court orders can give rise to contempt, gaol, sequestration and/or losing rights of access to children. The Court expects both parties to comply with the Court orders that it makes today.

6. The Court takes into account the likely effect of the change in the children’s circumstances, including effective separation from the mother with whom the children have been living. The Court also takes into account the practical difficulties in relation to spending time with the mother and the expense involved in maintaining that personal relationship in circumstances where the mother is currently living in (omitted) and proposes to move to (omitted). The Court has also taken into account the capacity of the respective parents to provide for the needs of the children including their emotional and intellectual needs. The Court has also taken into account on the evidence before it, the maturity and background of the children.

1. The Court has taken into account the respective parents' attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents. The Court has taken into account in the circumstances of the present case, including the allegations of family violence involving the children both between themselves and involving the respondent’s former partner. The Court has taken into account the domestic violence order that was made against her husband.

2. On 15 April 2016, as well as the events that occurred in September 2016 on the affidavit evidence before the Court where the children were left in the custody of the mother’s husband who had engaged in physical violence with the children. The Court takes into account the need to try and prevent further parenting proceedings.

3. The Court also takes into account the power to make the orders sought in respect of this application in making such parenting order as the Court thinks proper under s.65D of the Act. The Court takes into account importance of the equal time obligation identified in s.65DAA of the Act, that the parents have equal shared parental responsibility for the child and that in the longer term the children should spend equal time with each of the parents.

4. The Court is satisfied in the circumstance of the present case, it is not in the best interests of the children on an interim basis for the children to be spending equal time with the respondent mother and that this is an appropriate case in which there should be appointed an Independent Children's Lawyer, and that there should be a Family Consultant Report pursuant to s.11F of the Act in relation to the children.

5. The Court also takes into account the mandatory factors identified in s.65DAA(2)(c), (d) and (e) of the Act. The Court takes into account the meaning of substantial and significant time as explained in s.65DAA(3) of the Act. The Court has taken into account as far as reasonably practicable considerations that the Court is required to have regard to under s.65DAA(5) of the Act.

6. The Court has regard consistent with s.65DAB of the Act to the orders that were made by Murphy J. The Court takes into account the provisions of s.65DAC of the Act in relation to the parents exercising joint parental responsibility for making long-term issues decisions in respect of the children and the obligation that must be imposed upon each party to consult with the other person in relation to the long-term issues and to making genuine efforts to come to a joint decision in that regard. The Court takes into account the duty of the Court under s.65DA of the Act to include particulars of the obligations that the order creates and the consequences that may follow if a person contravenes the order.

7. The Court is satisfied in the present case that there is an urgent need for the parenting order under s.65F of the Act and the circumstances that have been identified. The Court takes into account the requirement of s.65G of the Act in relation to the making of an order that deals with the children living with the father. The Court is satisfied that there are circumstances that have been identified above in respect of the risk to the children, making it appropriate to make the proposed interim parenting order even though the parties have not attended a conference with a Family Law Consultant. For the reasons given, the Court is not satisfied that it is appropriate to make an interim order requiring the children to live with the mother. Further, the Court is not satisfied on an interim basis that it is appropriate to make a mandatory order in relation to the children’s physical access to the mother.

Conclusion

1. The Court is persuaded that it is appropriate to discharge the orders made by Murphy J on 6 October 2009.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  31 January 2017