Forbes and Ballimore
[2016] FamCA 246
•15 April 2016
FAMILY COURT OF AUSTRALIA
| FORBES & BALLIMORE | [2016] FamCA 246 |
| FAMILY LAW – CHILDREN – Proposed interim consent orders – Issues of concern – Orders made on an interim basis pending a more complete consideration after the Child Responsive Program Memorandum. |
| Family Law Act 1975 (Cth) s 60CC(5) |
| SS & AH [2010] FamCAFC 13 |
| APPLICANT: | Mr Forbes |
| RESPONDENT: | Ms Ballimore |
| FILE NUMBER: | PAC | 813 | of | 2016 |
| DATE DELIVERED: | 15 April 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 11 April 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: |
| SOLICITOR FOR THE APPLICANT: | Watts McCray Lawyers |
| COUNSEL FOR THE RESPONDENT: |
| SOLICITOR FOR THE RESPONDENT: | Pigdon Norgate Family Lawyers |
Orders
That each party notify the other as soon as reasonably practicable of any accident or emergency involving the child, B born … 2012 ("the child"), which involves medical treatment or hospitalisation and whilst the child is in their respective care.
That the child shall live with the Mother at all times that he is not otherwise spending time with the Father pursuant to these Orders.
That the child shall spend time with the Father as agreed between the parties in writing and failing agreement, as follows:
3.1That the child spend time with the Father in a fortnightly cycle, as follows:
3.1.1In week 1, from 6:00pm on Tuesday until 9:00am on Friday, commencing 19 April 2016; and
3.1.2In week 2, from 6:00pm on Thursday until 6:00pm on Sunday, commencing 14 April 2016.
3.2On Father's Day, from 9.00am until 5.00 pm, in the event that the child would not otherwise be spending time with the Father pursuant to these Orders.
3.3On the Father's birthday each year, if such day falls on a weekend that the child would not otherwise be spending time with the Father pursuant to these Orders, from 9:00 am to 6:00 pm on such day.
3.4On the child's birthday each year, if such day falls on a weekend that the child would not otherwise be spending time with the Father pursuant to these Orders, from 12:00 pm until 4:00 pm.
3.5For the purpose of Christmas time celebration:
3.5.1The child shall live with the Father from 3.00pm on Christmas Eve to 3.00pm on Christmas Day commencing in year 2016, and each alternate year thereafter; and
3.5.2The child shall live with the Father from 3.00pm on Christmas Day to 3.00pm on Boxing Day commencing in year 2017, and each alternate year thereafter.
3.6For the purpose of Easter time celebration:
3.6.1The child shall live with the Father from 3.00pm on the Thursday before Good Friday to 3.00pm Easter Saturday in year 2017, and each alternate year thereafter; and
3.6.2The child shall live with the Father from 3.00pm on Easter Saturday to 3.00pm Easter Monday in year 2018, and each alternate year thereafter.
Notwithstanding any other Order herein, the child shall live with the Mother as follows, and the child's time with the Father during the following periods shall be suspended:
4.1On Mother's Day, from 9.00am until 5.00pm in the event that the child would not otherwise be spending time with the Mother pursuant to these Orders.
4.2On the Mother's birthday each year, if such day falls on a day that the child would not otherwise be living with the Mother pursuant to these Orders, from 9:00am to 6:00pm on such day,
4.3On the child's birthday each year, if such day falls on a day that the child would not otherwise be living with the Mother pursuant to these Orders, from 10:00am until 2:00pm.
4.4For the purpose of Christmas time celebration:
4.4.1The child shall spend time with the Mother from 3.00pm on Christmas Day to 3.00pm on Boxing Day commencing in year 2016, and each alternate year thereafter; and
4.4.2The child shall spend time with the Mother from 3.00pm on Christmas Eve to 3.00pm on Christmas Day commencing in year 2017, and each alternate year thereafter.
4.5For the purpose of Easter time celebration:
4.5.1The child shall spend time with the Mother from 3.00pm Easter Saturday to 3.00pm Easter Monday in year 2017, and each alternate year thereafter; and
4.5.2The child shall spend time with the Mother from 3.00pm (or the conclusion of pre-school or school on a school day) on the Thursday before Good Friday to 3.00pm Easter Saturday in year 2018, and each alternate year thereafter.
That for the purpose of changeover the Father will collect the child from and deliver the child to the maternal grandparents at their home, at the commencement and conclusion of the Father's time with the child.
That both parties shall sign all documents and do such things to authorise the principal, directors, and all staff of C Preschool to supply both parties all school reports, copies of school photographs, school counsellor's notes, memos, school newsletters, and any other information in relation to the child as requested, and the requesting parent shall do all things necessary and meet all expenses in relation to obtaining same.
That neither party denigrate the other party or members of the other party's family to the child in the presence or hearing of the child.
That both parties be restrained from passing information or messages through the child to the other party.
That the Father be restrained from smoking in the presence of the child and each party shall use their best endeavours to ensure that no other person smokes in the presence of the child.
That the Father be restrained from consuming excessive amounts of alcohol (being no more than three (3) standard drinks within any three (3) hour period) or any non-prescription drugs while the child is in his care.
When the child spends time with the Father in accordance with these Orders, and on a without admissions basis, the Father be restrained from:
11.1Allowing the child to watch television shows or movies with a rating of M15+ or more;
11.2Allowing the child to play video games with a rating of M15+ or more;
11.3Allowing the child access to the Father's computer, laptop or any other electronic device belonging to the Father;
11.4Swearing at the child or otherwise verbally abusing him; and
11.5Physically disciplining the child by hitting him or striking him and the Father will use his best endeavours to ensure that any third party does not physically discipline the child.
That the father will give the Mother twenty four (24) hours notice via text message (SMS) of his intention to attend at the child's pre-school.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Forbes & Ballimore has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 813 of 2016
| Mr Forbes |
Applicant
And
| Ms Ballimore |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an interim parenting application in relation to the child, a little boy of three. the child’s parents separated in April 2013 when he was eight months old. The parents then commenced an interim parenting arrangement by agreement whereby they shared the care of the child almost equally.
The care arrangement continued until February 2016 when the mother withheld the child from his father. The father commenced proceedings in this Court on 24 February 2016, and the matter was listed for interim hearing on 11 April 2016. The father sought a similar arrangement to that currently in place with slightly more time with the child. He also sought a restraint on the mother moving out of the area in which the parties had lived since separation. The mother opposed the father’s application, and proposed orders that involved the child living with her and spending much more limited daytime only time with his father.
Other than the competing applications and affidavits of the parties I am not assisted by any further information in relation to the child and the concerns raised by the parents. In particular, the parents and child have not been interviewed as part of the Child Responsive Program by a family consultant and the earliest time for such an appointment due to the current resources available in the Parramatta Registry is late July, five months after the proceedings commenced, and three months after the interim hearing.
It is common ground that the child had spent no time with his father from the beginning of February 2016 as a result of the mother withholding him until a temporary agreement supported by consent orders provided for some time on the weekend of 2 and 3 April.
When I expressed concern that I may not be able to give meaningful consideration to the competing interim applications until the parents and child had been seen by a family consultant the parties then proposed interim consent orders under which the child would spend equal time with each parent in a fortnightly cycle changing care every four to six days. The father did not pursue his application for the mother to be restrained from moving the child’s residence as he had foreshadowed in his interim application and as I understand it the mother has already moved and the parents now live approximately 65 km apart.
I expressed some concern about whether the interim consent orders were child-focussed and in the child’s best interests and asked the parents for alternate proposals in the event that I declined such orders. The parties declined to make any other proposal and the applicant sought that I make the consent orders without considering whether the orders were in the best interests of the child pursuant to s 60CC(5). The parties pressed their application for consent orders and this judgment deals with that application.
Background
The father who is 40 and the mother who is 27 began living together in about January 2012. They have one child, B, who was born in 2012.
The parents separated in early April 2013 when the child was eight months old. The mother moved out of the former family home with the child. The father remained living in that home which is located in an outer Western Sydney suburb. The mother moved to a home a short distance from the father with the journey taking about 15 minutes by car.
The father almost immediately re-partnered and later married. The father and his wife do not have any children together.
From around August 2013 when the child was one year of age the parents arranged the child’s care in such a way that he lived with the father for 13 nights in a four weekly cycle and the mother for 15 nights. Under these arrangements the child’s care changed every three to four days or possibly even more regularly. There were five changeovers each fortnight.
The arrangement negotiated between the parents concerning the child’s care continued on this basis from August 2013 until February 2016. In February 2016 the mother withheld the child from his father.
The mother’s concerns
According to the mother’s affidavit she is concerned that the child “is at risk while in the [the father’s] care”. She says that she was “never comfortable” the child being in the father’s care “particularly on a regular basis”. She says that she only agreed to the arrangements as she was fearful of the father.
The mother raises a range of risk factors, including the father’s alcohol use. She contends that the father drank heavily throughout the relationship and is concerned that the father continues to consume alcohol while the child is in his care. The mother also alleges that the father is a very heavy smoker and continues to smoke in the child’s presence. One of the mother’s other concerns is the child’s potential exposure to inappropriate media, including horror films which are made by the father and his wife, the content of which the mother describes as “extremely disturbing and is focused around murder and people being stalked”. The mother also expresses concern that the father has made a film involving the child and placed it on the Internet. She says that the father allows the child to watch inappropriate media and also expresses general concern that the child is not properly supervised while in the father’s care. She also makes complaints about excessive and inappropriate physical discipline and makes a particularly serious allegation that the child may be exposed to pornography while in the father’s care. The mother also alleges that the father was verbally and emotionally abusive to her throughout the relationship and says that the child was exposed to this conduct.
The father denies the mother’s allegations of heavy alcohol use, aggressive behaviour throughout the relationship, physical discipline, lack of supervision and exposing the child to any form of inappropriate media. He does not appear to deny however, that the relationship between he and the mother was at times volatile and police were on occasions called.
The father’s concerns
As I understand the father’s case, he is concerned about a lack of stability in the mother’s household. He says that since separation the mother has had numerous partners and has lived with a number of them. From around November 2015 he became concerned that the mother had moved with her current partner to a location approximately 65 km from the area in which both parents previously lived and was concerned about the viability of the equal shared care arrangement in these circumstances. He expresses concern about not knowing the full name of the person with whom the child resides when with his mother and any other details concerning the mother’s household.
The father expressed particular concern about the impact upon the child as a result of the mother withholding him and refusing to allow any communication in circumstances where the child was accustomed to a virtual equal shared care arrangement.
The proposed consent orders
The interim consent orders that the parties seek are that the child continue to live with each of his parents in a shared care arrangement. In each fortnight the child would spend six nights in his father’s care and eight nights with his mother. These are not proposed to be block periods but envisage changeovers occurring on four occasions each fortnight.
It is essentially the parties’ position that this arrangement is a little better than the previous shared care arrangement which involved five changeovers per fortnight, especially given the distance between the parties.
I am unable in the circumstances to make any assessment of the matters in dispute including matters of risk in each household. I essentially have two affidavits which each raise concerns about the child’s living arrangements and parental capacity. Although interim parenting hearings proceed on the basis of the uncontested facts, there is clear authority to the effect that a court may need to weigh the probabilities of competing claims, especially where matters of risk are raised.[1] The Memorandum prepared by a family consultant as a result of the Children and Parents Issues Assessment is generally an invaluable tool in assisting the court to make that assessment. In my view it is unsatisfactory that due to an allocation of resources such an assessment will not be able to be conducted for at least another three months.
[1] See SS & AH [2010] FamCAFC 13; George & George [2013] FamCAFC 182; Deiter & Deiter [2011] FamCAFC 82.
In these circumstances, I am not in a position to make a positive determination that the consent orders proposed by the parties are in the best interests of this child. While I am not required to have regard to the best interest considerations where the parties consent to the orders, I have some disquiet doing so when issues of risk are raised. However, in the circumstances, I can say little more than that any arrangement that reduces the number of changeovers for a child aged three, whose parents live a significant distance from one another is less detrimental than an arrangement where there are a greater number of changeovers. I do however, reiterate the view I expressed in court that given the concerns raised by each of the parties about the other parent’s household and the distance between each of the parent’s households the proposed arrangement does not appear in my view to be particularly child focused.
As the orders proposed are slightly more child focused and provide a little more stability than the previous arrangement and are consented to, I make such orders on an interim basis until the matter is listed for a proper and more complete consideration of an interim application following the release of the family consultant’s Memorandum.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 15 April 2016.
Legal Associate:
Date: 15 April 2016.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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