GARRA-MARSH & GARRA-MARSH
[2012] FMCAfam 277
•16 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GARRA-MARSH & GARRA-MARSH | [2012] FMCAfam 277 |
| FAMILY LAW – Children – parenting – interim orders – parental responsibility – equal shared parental responsibility – sole parental responsibility – best interests of the child – whether appropriate to apply the presumption to apply presumption that it is in child’s best interests for the parents to have equal shared parental responsibility when making an interim order. FAMILY LAW – Children – intractable conflict between parents – independent representation of child’s interests – Independent Children’s Lawyer. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 62G, 68L |
| Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 Re K (1994) 17 Fam LR 537; FLC 92-461 |
| Applicant: | MR GARRA-MARSH |
| Respondent: | MS GARRA-MARSH |
| File Number: | SYC 1541 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 March 2012 |
| Date of Last Submission: | 14 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2012 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Ede |
| Solicitors for the Applicant: | Abrams Turner Whelan Family Lawyers |
| Counsel for the Respondent: | The Respondent appeared in person |
| Solicitors for the Respondent: | No solicitor on the record |
ORDERS
UNTIL FURTHER ORDER
The child X (known as “X”) born (omitted) 2007 is to live with the Respondent Mother.
The Applicant Father is to spend time with the child (omitted) for a period of two (2) hours between the hours of 10:00am and 12 noon on the following occasions whilst he is visiting Australia:
(a)Sunday 18 March 2012;
(b)Wednesday 21 March 2012;
(c)Sunday 25 March 2012; and
(d)Wednesday 28 March 2012.
The Father may telephone the child for a period of ten (10) minutes on the following occasions:
(a)Father’s Day;
(b)The child’s birthday; and
(c)The Father’s birthday.
For the purposes of Order (2) above the Mother or another adult nominated by the Mother is to be present for the duration of the time that the Father spends with the child.
The Mother is to nominate the venue for the Father to spend time with the child as provided by Order (2) above and advise the Father by telephone or text of this venue within twenty-four (24) hours of the date of these Orders.
The Father is restrained by injunction from using or administering to himself any illicit or non-prescribed drug during or for twelve (12) hours before spending time with the child as prescribed by Order (2) above.
Neither party is to abuse, criticise or denigrate the other party in the presence or hearing of the child X or permit any third party to do so.
The interests of the child X (known as “X”) born (omitted) 2007 are to be independently represented by a lawyer and to this end Legal Aid New South Wales is requested to arrange such representation under the provisions of section 68L of the Family Law Act 1975.
The parties are to forward to Legal Aid New South Wales for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits, court orders and all other relevant documents within seven (7) days.
The parties are to attend upon a Family Consultant at a time to be nominated for the purpose of preparing a report under the provisions of section 62G of the Family Law Act 1975 on all matters relevant to the care, welfare and development of the child X, to include the child’s relationships with her parents and other persons of significance to her.
The interim hearing on 23 March 2012 is vacated.
The Applicant Father is to file and serve any affidavit upon which he seeks to rely in relation to the application of the Mother’s application to vary or set aside the binding financial agreement made between the parties on 17 April 2009 and the Child Support Agreement made between the parties on 17 April 2009 by 23 March 2012.
The Application is adjourned to 29 March 2012 for further mention at 10:00 am.
IT IS NOTED that publication of this judgment under the pseudonym Garra-Marsh & Garra-Marsh is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1541 of 2009
| MR GARRA-MARSH |
Applicant
And
| MS GARRA-MARSH |
Respondent
REASONS FOR JUDGMENT
This is an application by the father of a little girl named X (known as “X”) for interim orders allowing him to see and spend time with her whilst he is visiting Australia. He also wishes to communicate with her by telephone, email, Skype and other forms of communication.
The Father, by his application filed 22nd September 2011, seeks interim orders that:
a)the parties should have equal shared parental responsibility for X,
b)X should live with her mother,
c)the child should spend time with him for periods of three hours each third day of his visit,
d)for two blocks each of two days between April and December 2012 after the date of his return to the United Kingdom, and
e)that he should be able to communicate with the child by telephone, email, Skype or other forms of communication.
The Father seeks a final order that X should live with the Mother.
The Mother opposes these orders. She has told the Court that there is no benefit to the child in having any time or communication with her father. By her response filed 17 February 2012, the mother seeks orders that:
a)she should have sole parental responsibility for X and
b)she should have leave to review the binding financial agreement and the child support agreement.
The Father is a citizen of the United Kingdom and lives and works there. He is currently visiting Australia until 30th March this year. The Mother is an Australian citizen and now lives in Sydney. The parties have one child, X, who is known as X. She was born in London on (omitted) 2007 and has dual citizenship of Australia and the United Kingdom.
The parties met in London in 2004 and lived there until 2008. They were married on 4th November 2006. They separated whilst on holiday in Sydney on 5th March 2008 when the Mother left the Father, taking the child with her. The Father returned to the United Kingdom and continues to live and work there. The Mother remained living in Australia with the child.
The parties were divorced in 2009 and the divorce came in to effect on 6th June that year. The Father has remarried and has a child from that marriage. The parties entered into a binding financial agreement and a child support agreement in 2009. There are no parenting orders in existence.
The Father has visited Australia on five occasions since the parties separated:
a)in August 2008,
b)in April 2009,
c)in December 2009,
d)in March 2011, and
e)in March 2012, the current visit.
The Father is due to return to the United Kingdom on 30th March. On each of his prior visits, the Father has spent time with the child, X, by arrangement of the Mother. He has not spent time with her on this occasion because the Mother has not agreed for him to do so.
The parties have each filed lengthy affidavits. The Father deposes that the Mother has dictated the terms on which he has been able to spend time with his daughter on each occasion when he has visited Australia. It is his view that the time he spent with X in March last year was productive and beneficial to the relationship between him and his daughter.
The Mother’s affidavit evidence is entirely to the contrary. She deposes that throughout the marriage the Father was abusive, intimidating and at times violent. She claims that he had a habit of using the drug cocaine on a regular basis. She also states that the child did not respond well to the Father’s company and was upset and unsettled for a considerable time afterwards.
The Father wishes to maintain his relationship with his daughter. However, the Mother claims that contact with the Father would be harmful to the child not only psychologically, but possibly even physically.
In deciding whether to make a particular parenting order in relation to a child, Section 60CA of the Family Law Act makes it clear that a court must regard the best interests of the child as the paramount consideration. A Court determines what is in a child’s best interests by having regard to the primary considerations set out in subsection 60CC(2) of the Act and the additional considerations set out in subsection 60CC(3).
The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are a considerable number of additional considerations, not all of which are relevant, and evidence on some points is not before the Court.
There is no evidence as to any views expressed by the child, and she is, of course, only four years of age, having attained that age on 27th December last year.
The Court considers the nature and relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child. The child lives with the Mother and it is intended that she would remain doing so, and it is the Mother’s evidence that they have a close relationship.
The Mother claims that the child also has a close relationship with her maternal grandparents – in other words, the Mother’s mother and father. The Mother claims that the Father has little or no relationship with the child, which the Father disputes. The Mother has also expressed the view that there is little or no benefit in the child having any relationship with the paternal grandparents.
Against this, it is the Father’s evidence that when he has spent time with X, allowing for the separation between the times when they have seen each other physically, that it has been beneficial and productive.
The Court looks at the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. The Father says that the Mother does not have a willingness to facilitate and encourage a close relationship with X, and the Mother has put on record her view that there is little or no benefit in the child having such relationship.
The Court would consider the likely effect in any changes in the child’s circumstances, including the likely effect on the child of any separation from either of her parents or any other child or other person, including any grandparent, with whom she has been living. In this case, the Father is seeking relatively limited times with the child and, indeed, is suggesting that that time should be in the presence of the Mother. So it is not envisaged in the near future that there would be any separation.
As to the practical difficulty of a child spending time with and communicating with a parent, it is, of course, a fact that the Father lives and works in the United Kingdom. He says that he has sought to communicate with the child by means of telephone, which the Mother denies. But the Father, however, seeks orders that he should be able to have some communication when he is not in Australia by means of telephone, email or Skype.
The evidence would appear to be that the Mother has a capacity to provide for the child’s physical and intellectual needs. The Mother says that she is mindful of the child’s emotional needs and is critical of the Father’s ability in that regard.
The child X herself is a little girl who was born in London, lives in Australia. She was born on (omitted) 2007, has attained the age of four, attends preschool, and in 2013 would commence school at the beginning of term 1. The background of the child is that of a child who was born in the United Kingdom of a British father and an Australian mother.
The Father would be of the view that the Mother’s attitude to the responsibilities of parenthood leaves a lot to be desired in that she is preventing him from spending any time with his daughter. The Mother’s view is that she is very mindful of her responsibilities as a parent and that she is seeking to protect the child from harm by means of exposure to abuse or even violence. There is evidence in the Mother’s affidavit of previous instances of family violence. There are certainly reports that the mother has sought assistance from the police at times during the marriage.
At this stage, the Court is not in a position on an interim hearing to make an order that would be least likely to lead to the institution of further proceedings in relation to the child. There are certainly envisaged further proceedings.
I will revert to the primary considerations, which are the benefit to the child of having a meaningful relationship with both of her parents, and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Father’s view is that it is of benefit to X to have a meaningful relationship with him, as well as with her mother. The Mother’s view is that it is of benefit to X to have a relationship with her, but she does not see any benefit in her having a present or an ongoing relationship with her father.
The Mother is strongly of the view that there is a need to protect the child from psychological harm and, perhaps, from physical harm, from being subjected to the Father and she points to evidence that she has led in her affidavit of behaviour of the Father during the term of the parties’ relationship.
The Court must, under Section 61DA of the Family Law Act, when making a parenting order in relation to a child apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. That presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child has engaged in abuse of the child or family violence, and the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
This, of course, is an application for interim orders, and under subsection (3) of Section 61DA, 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.
It is the situation in this case that the Mother seeks an order for sole parental responsibility. The Father does not seek such an order. It is relevant that if the Court does make an interim parenting order, the Court must, when making a final parenting order, disregard any allocation of parental responsibility made in the interim order. That is so prescribed by Section 61DB of the Act.
This is an interim hearing. The Court cannot make a finding about disputed matters of fact as set out by the Full Court of the Family Court in Goode & Goode[1], and it is especially so in this case where the parties’ evidence is diametrically opposed.
[1] [2006] FamCA 1346; (2006) 26 Fam LR 42; FLC 93-286
The question of parental responsibility is very much a matter that the Mother, in particular, would wish to have resolved certainly on a final basis. I am not of a view, at this stage, in view of the vast difference between the evidence of each party and the lack of independent evidence, that it would be appropriate to make a finding about parental responsibility in this case.
There are serious concerns. The Mother has raised concerns about the welfare of the child and, indeed, her very case is based on the fact that it is not in this child’s best interests to have an ongoing relationship with the Father, either on an interim basis or on a final basis. Certainly, that attitude appears to have become stronger over the previous 12 months and it would appear from the Mother’s evidence that what she sees as the unsettled and disturbed behaviour of the child over the intervening time as a result of spending time with the Father has led her to the view that further time would be not in this child’s best interests.
The Father is seeking to maintain his relationship with the child. It would be clear, if one thing is clear, that if the Court makes no orders about the Father spending time with the child and he has not spent time with her for a year that if a further period of time goes by, it would be harmful, possibly fatal, to the relationship between the Father and the child. It is the Mother’s view that there should not be an ongoing relationship.
What the Court needs is independent evidence and an independent view. Certainly, the parties can provide further evidence, but the evidence from each party would, in effect, do no more than bolster that party’s view, which is oppositional to the view of the other party.
The law provides, under Section 68L of the Family Law Act that the Court may make an order that the interests of a child in parenting proceedings be independently represented. The Full Court of the Family Court as long ago as 1994 in the matter of Re K[2] set out a number of guidelines to assist Courts at first instance in deciding whether independent representation of a child’s best interests would be appropriate. One of the guidelines set out by their Honours is whether there is an intractable conflict between the parents relating to the child. It is clear on the evidence before the Court that there is an intractable conflict.
[2] (1994) 17 Fam LR 737; FLC 92-461
It does appear, therefore, that the interests of this child X should be independently by a lawyer. I propose to make an order that her interests are to be independently represented by a lawyer, and I will make orders in support of that representation by requesting Legal Aid New South Wales to arrange representation. I am aware that there are a number of lawyers who have training and experience in acting in a child’s best interests as Independent Children’s Lawyers. Some of them are employed in-house by Legal Aid New South Wales, others are private practitioners who receive a grant from that particular body. It is not for the Court to determine which would be better.
Another matter that clearly occurs to the Court is that there are opposing views as to the effect on this child of her coming into contact with the Father. The Father’s evidence is that in March 2011, after somewhat tentative beginnings, X responded well towards him. The Mother’s evidence is quite to the contrary. Without embarking on a full hearing and testing that evidence, the Court is not in a position to make a finding of fact. In my view, this is clearly a case where the Court should have the benefit of an independent view, and the appropriate way to do this is to obtain a report by a family consultant under the provisions of Section 62G of the Family Law Act, and I propose to order that a family report should be prepared.
The Mother, of course, has not only sought an order for sole parental responsibility, she has raised the question of financial matters: the binding financial agreement and the child support agreement. She is of the view that these matters should be reopened. That, of course, was only an issue that was raised in the Mother’s response and, certainly, was not the subject of argument before me on Wednesday. In my view, there is no evidence before the Court sufficient to allow a decision to be made either way about that matter, and it is probably more suited for a final hearing. I propose to direct that the Father provide some affidavit evidence to meet that particular set of circumstances.
What the Court is left with, however, is the main question of the Father being in Australia, wishing to spend time with the child, and the Mother opposing that. As I said, if there is no contact between Father and child at this stage and for, perhaps, a further period of 12 months, the consequences on the relationship would be severe, if not disastrous.
I am of a view that there should be some time. It should, however, be in the presence of the Mother so she can reassure herself about the child’s welfare. I am not of the view that a period of three hours at a time, which had been sought by the Father, is appropriate at this stage. It does seem to me that it would be too long, and that may not be in X’s interests.
There is, however, no doubt about the fact that this child should continue to live with the Mother and, indeed, no order is sought to the contrary.
I am aware of the allegations by the Mother of the Father’s drug use, which, quite clearly from her affidavit, has occurred in the past. There is no up-to-date evidence there, but it would certainly be the Court’s view that it should act with caution. The Court is of the view that use of illicit drugs and time with children do not go well together. I am aware of the fact that there is a considerable conflict between the parties. It would not be to the benefit of this child for that conflict to be in evidence in her presence or hearing. Indeed, it would be harmful and unsettling to her, and I propose to make injunctive orders in that respect.
It is for those reasons that the Court makes the following orders until further order. I have nominated 29th March 2012as a time for the Court to consider this matter further as I understand that it is the day before the father is due to leave Australia.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 27 March 2012
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