FOWLER & FOWLER
[2015] FCCA 1682
•17 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FOWLER & FOWLER | [2015] FCCA 1682 |
| Catchwords: FAMILY LAW – Children – parenting orders – interim orders – discharge of earlier interim orders – court expert – expert report – recommendations – best interests of the children – wishes of the children – weight to be given – parental responsibility – equal shared parental responsibility – equal time with each parent – consideration whether equal time would be in children’s best interests – whether equal time reasonably practicable – supervision – no further need for supervision – where children are to live with each parent in an equal time arrangement on a week about basis. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Fowler & Fowler [2014] FCCA 2974 Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MR FOWLER |
| Respondent: | MS FOWLER |
| File Number: | SYC 6064 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 15 May 2015 |
| Date of Last Submission: | 15 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 17 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Macpherson |
| Solicitors for the Applicant: | Warren McKeon Dickson Lawyers |
| Counsel for the Respondent: | Mr Wong |
| Solicitors for the Respondent: | MCW Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms Loumis |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW Campbelltown |
ORDERS
The Orders made on 18 December 2014 are discharged.
The Applicant father and the Respondent mother are to have equal shared parental responsibility for the children X born (omitted) 2005 and Y born (omitted) 2008.
The father is to have sole parental responsibility for making decisions about the day to day care, welfare and development of the children X and Y whilst the children are living with him in accordance with these Orders.
The mother is to have sole parental responsibility for making decisions about the day to day care, welfare and development of the children X and Y whilst the children are living with her in accordance with these Orders.
The children X and Y are to live with each of the parties during the school term and the Autumn, Winter and Spring school holidays as follows:
(a)Commencing on Friday 19 June 2015 with the mother from immediately after school on the Friday of the first week of the fortnight during the school term until the commencement of school the following Friday; and
(b)With the father from immediately after school on the Friday of the second week of the fortnight during the school term until the commencement of school or 3:00 pm the following Friday.
During the December/January school holiday period the children will live with the father for the first half of the school holiday period excluding Christmas Eve, Christmas Day and Boxing Day, which days are the subject of following Orders, and with the mother for the second half of the school holiday period commencing at 3:00 pm on the middle Friday
Notwithstanding the provisions of the immediately preceding Orders, the children X and Y will otherwise live with the father as follows:
(a)In 2015 and all odd numbered years thereafter from 10:00 am on Christmas Eve until 10:00 am on Christmas Day;
(b)In 2016 and all even numbered years thereafter from 10:00 am on Christmas Day until 10:00 am on Boxing Day;
(c)On the father’s birthday being (omitted) if the children are otherwise in the care of the mother on that day then from immediately after school until the commencement of school the following day;
(d)if Father’s Day falls on a weekend when the children are otherwise in the care of the mother then from immediately after school on the Friday immediately before Fathers’ Day until the commencement of school on the following Monday; and
(e)At such other times as the parties shall agree.
Notwithstanding the provisions of the preceding Orders the children will otherwise live with the mother as follows:
(a)In 2015 and all odd numbered years thereafter from 10:00 am on Christmas Day until 10:00 am on Boxing Day;
(b)In 2016 and all even numbered years thereafter from 10:00 am on Christmas Eve until 10:00 am on Christmas Day;
(c)On the mother’s birthday being (omitted) if the children are otherwise in the care of the father on that day then from immediately after school until the commencement of school the following day;
(d)If Mothers’ Day falls on a weekend when the children are otherwise in the care of the father then from immediately after school on the Friday before Mothers’ Day until the commencement of school on the following Monday; and
(e)At such other times as the parties shall agree.
Changeover between the parties where the children are to go from the care of one party to the care of the other will take place at the children’s school if on a school day or otherwise at the residences of the parties.
The parties must keep each other informed of their current residential address, telephone numbers and email address and notify each other of any change within seven (7) days of such change occurring.
The parties are to have telephone contact with the children when the children are not living with them:
(a)No more than once per day;
(b)No later than 7:30 pm; and each party must do all things necessary to facilitate the children being able to take the call from the other party.
Except as provided in the immediately preceding Order the parties are restrained from communicating with the children whilst the children are in the care of the other party by SMS, telephone text message, Facetime, email or any other form of electronic communication.
The parties must do all acts and things necessary to continue the attendance of the children X and Y at the (omitted) Primary School at (omitted) and are restrained from doing any act or thing to remove either or both of the children from the said school without the written consent of the other party or leave of the Court first had and obtained until each child completes her or his primary education.
Both parties are to continue to engage with their current counsellors.
Within seven (7) days of the date of these Orders the parties must contact UNIFAM Sydney on (omitted) to enrol for intake to attend the “Keeping in Contact” program and participate in such program up to completion including but not limited to completing all courses and accepting and following up on all referrals as recommended by UNIFAM.
The parties are restrained from consuming alcohol to excess at any time when the children are in their care or for twelve (12) hours beforehand.
The parties are restrained from administering to themselves any illicit drug at any time when the children are in their care or for twelve (12) hours beforehand.
The parties are restrained from using any form of physical discipline or corporal punishment on either of the children.
The parties are restrained from abusing, criticising or denigrating the other party in the presence or hearing of the children or permitting any third person to do so.
The Application is adjourned to 7 July 2015 at 10am for further mention before Judge Scarlett in Court 3A, level 3, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.
IT IS NOTED that publication of this judgment under the pseudonym Fowler & Fowler is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYC 6064 of 2014
| MR FOWLER |
Applicant
And
| MS FOWLER |
Respondent
REASONS FOR JUDGMENT
This is an application to vary earlier interim parenting orders made by consent on 18 December 2014 providing that the parties’ two children, X and Y, should live with the father and spend time with the mother, initially on a supervised basis. The mother now seeks that the children should return to live primarily with her.
X is nearly 10 years old. She was born on (omitted) 2005. Y is seven years old. He was born on (omitted) 2008. The orders of 18 December were made at a time of a crisis. The evidence is that in October of that year, the mother, who had been drinking, had experienced a form of a breakdown, which had caused considerable distress to the children, and the father brought an application to this Court to vary orders which had been made by consent as recently as 9 October 2014.
When the application came before the Court on 1 December 2014 after significant negotiations between the parties and their legal advisers, orders were made by consent, providing that the children would primarily reside with the father and spend time with the mother under supervision. There was also to be a requirement for the mother to undergo counselling and to undergo compulsory drug tests.
It was agreed that the children would spend time with their mother under supervision until such time as the mother had provided two CDT test results which were not positive for alcohol use. There was to be a further regime once the mother had provided CDT tests and a letter from a counsellor confirming continued weekly engagement. Again, once four CDT tests or more had been provided, the mother’s time with the children should increase, and there should be a further increase in the time after the mother had provided six clean CDT tests.
There were other orders restraining parties from physically disciplining the children, restraining the mother from consuming alcohol, restraining each parent from taking any illicit drugs or medications not prescribed for them, and there were people nominated as suitable supervisors, being friends and including paternal grandparents. There was no agreement about re‑enrolling the children in their particular primary school, the (omitted) School in (omitted). On 18 December, when the matter was before the Court, I heard submissions as to that particular issue. I made orders that day that did provide for the children to continue at (omitted) School, and I set out reasons for that in a decision on that date.
An Independent Children’s Lawyer was appointed. On 11 February this year, orders were made by consent under division 15.2 of the Federal Circuit Court Rules that Dr A, a child and family psychiatrist, be appointed as a single expert witness to inquire into a report on matters relating to the welfare of the children. Dr A has, in fact, done so and has provided a report for the Court. That report was released to the parties on 26 March.
The Parties’ Submissions
It is largely on the basis of Dr A’s report, which contains some very positive aspects, that the mother is seeking a reversal or a revocation of the orders made by consent on 18 December 2014. What she seeks is that the situation should return to the way it was when the parties entered into their consent orders back on 9 October 2014 before the mother’s unfortunate incident.
The positions of the father and the Independent Children’s Lawyer were not entirely supportive of that claim. The father certainly supported a number of the recommendations made by Dr A. The Independent Children’s Lawyer was of the view that the primary determination should be made that on an interim basis, the orders could be discharged, and the situation could revert to the way it was.
Otherwise, in the alternative, the Independent Children’s Lawyer submitted that the parties should have equal shared parental responsibility for the children; that the children should live with each parent equally on a week‑about basis; that the children should remain at their current school, namely, (omitted) School; that there should be a restriction on the parents having communication with the children when the children were in the care of the other parent; that the parties should attend a parenting course, namely, Keeping in Contact, with Unifam; that there should be a restraint from consuming alcohol. This, in fact, was an alternative position put by Ms Loumis for the Independent Children’s Lawyer.
I have read the report of Dr A in detail and with great interest. It is a comprehensive report, and although untested by cross‑examination, it appears to be a report that should be considered very seriously. The doctor reported that the child X said that she felt happy living with her father and his partner, a lady named Ms S. She had the opportunity to see a half‑sister, to play with a girl of her age, and she expressed some sadness about not seeing her mother as much as she would like. Dr A reported at paragraph 47 of his report that the child spoke of missing her mum a lot and said that she wanted to spend more time with her mother. She proposed that it would be good to spend one week on, one week off with each parent. She said, “Not just with mum, not just with dad” and “So I get to spend equal time with both of them.”
Dr A also spoke to the parties’ son, Y, and noted at paragraph 58 of his report that when asked if he wanted to spend more time with his mum, Y responded, “I want to go a week with mum and a week with dad.” Dr A noted this response was suggestive of coaching and discussions about weekend shared care. It echoed his sister’s statement in this regard.
Dr A went on to discuss the issues relating to the children. He had interviewed the parties and immediate family members. Dr A came out with a number of recommendations, to which I have given a great deal of thought. I will quote them in full. There were eight of them. Dr A said at paragraph 153:
I would respectfully recommend to the Court (1) the maintenance of joint parental responsibility; (2) each parent to have sole parental responsibility for the management of the children’s welfare while in their care; (3) the immediate removal of the requirement of supervision for the mother’s contact with the children; (4) the re‑establishment of the children’s primary residence with the mother, with the establishment of extended weekend contact with their father from Thursday until Tuesday each fortnight, enabling the children to have nine days per fortnight in their mother’s care and five nights per fortnight in their father’s care; (5) that both parents maintain their current psychological intervention; (6) undertakings by both parents not to use physical discipline or abuse substances while the children are in their care; (7) both parents should desist from denigrating the other parent; (8) the maintenance of the children’s current schooling.
Those are the recommendations. Counsel for the father, Mr Macpherson, put to the Court that, essentially, his client supported those recommendations with the exception of recommendation number 4, which was the re-establishment of the children’s primary residence with the mother with extended weekend contact with the father from Thursday until Tuesday each fortnight. Mr Wong of Counsel for the mother noted that the father was not now pressing for supervision and submitted that the preponderance of evidence supported resumption of the earlier orders. Against this, Mr Macpherson of Counsel noted that Dr A, although an expert, is just another witness. His evidence would need to be tested and, of course, it is untested in a procedure of this nature. It is well established, of course, in Goode & Goode[1], and other authorities, that the Court is not in a position to make definitive findings of fact when factual issues are in dispute.
[1] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
The only one of Dr A’s recommendations, however, that the father did not accept, was recommendation number 4. He did point out that the Court cannot ignore what had happened in October 2014 when the mother had appeared to have a breakdown and had expressed suicidal ideations saying, “If I had a gun I would blow my head off”, and this, of course, caused a considerable degree of concern and distress for the children.
Application for Parenting Orders
These are interim parenting proceedings. In all parenting proceedings the court must consider the objects and principles of Part VII of the Family Law Act 1975 (Cth), as set out in section 60B of the Act. The court must consider the requirement of section 60CA, which provides that the best interests of the children should be regarded as the paramount consideration. Section 60CC sets out the matters that the Court is required to consider in order to determine what are the children’s best interests. As is so often the case the primary considerations in subsection 60CC(2) are very important. On the one hand the Court must balance the benefit to the children of having a meaningful relationship with each parent, and on the other the Court must consider the need to protect the children from physical or psychological harm caused from being subjected to or exposed to abuse, neglect and family violence. Of those two, the latter must prevail.
It is concerning that the mother’s episode of October 2014 was a crisis that precipitated a significant change in the parenting orders. There were certainly aspects of the mother’s behaviour which would cause significant fear of harm to the children. Against this, the affidavit material filed in support of the parties and the report of Dr A indicate that there has been a considerable amount of positive progress and that the mother is in a much better state than she was last October or even in December when these orders, by consent, were made.
It is also significant when looking at the additional considerations in subsection 60CC(3) that the Court considers the views of the children – which, in this case, can be ascertained from the report of Dr A, the court expert – and the Court should give those views such weight as the court thinks appropriate depending on the children’s age and level of maturity.
I do consider the requirements of section 61DA of the Family Law Act, which relates to the presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. That is a presumption that does not apply in cases of family violence and can be rebutted by evidence that persuades the court that equal shared parental responsibility would not be in the children’s best interests.
If the Court does make an order for equal shared parental responsibility the Court is then required by section 65DAA to consider equal time or substantial and significant time. Under subsection (1) of section 65DAA the Court must consider whether it is both in the children’s best interests and reasonably practicable for the children to spend equal time with each parent or, in the alternative, whether it is both in the children’s best interests and reasonably practicable for them to spend substantial and significant time with each parents. I have considered all of those matters so far as they are relevant.
Conclusions
I am mindful of the fact that the report of Dr A, positive though it is, remains untested. It will no doubt be tested at a final hearing, but it remains untested at this stage. Nevertheless, it is not a report that I would dismiss and, certainly, it is not a report to which I would give no weight. It is a strong and positive document, even in its untested state. Indeed, the husband accepts all of the recommendations except recommendation 4 that there should be a resumption of the situation where the children’s primary residence is with their mother. All of the other recommendations, his Counsel Mr Macpherson, told the Court, were accepted by the father. That is a matter to which I will give considerable weight. I note the recommendations of the Independent Children’s Lawyer, first, as to a reversion to the earlier orders or, second, in the alternative, a week about arrangement with a number of safeguards.
I am satisfied that, at this stage, I should take the more conservative view, noting, as I do, the positive change in the mother. This is one matter – and I note the wishes of the children in this regard – or, at least, the expressed wishes of the children that appear in the report of Dr A – that on an interim basis there should be a shared care arrangement on a week about basis. I am of the view that there should be equal shared parental responsibility. I think that week about shared care is a matter that deserves significant consideration in these circumstances and that shared care arrangement should continue on a week about basis through the school holidays or, at least, the mid-term school holidays.
There should be arrangements for special occasions: Christmas, Christmas Eve, Boxing Day, Father’s Day, Mother’s Day, birthdays and matters of that nature. Changeover can be at school or at the parties’ residence on those occasions when the children are not at school. I am certainly of the view that the children should continue at the (omitted) Primary School. I made the decision on 18 December that they should return to that school and for the reasons I set out in that decision I propose that that situation should continue.
I think it is a positive step for the parties to attend the Keeping in Contact program with Unifam and there should be some restraints on consumption of alcohol to excess and the use of illicit drugs. I believe there would be no opposition to an order restraining the parties from using physical discipline or corporal punishment to the children and an order restraining them from abusing, criticising or denigrating each other, at least in the presence of the children.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 19 June 2015
Key Legal Topics
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Family Law
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Injunction
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Procedural Fairness
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