Gilroy and Gilroy
[2009] FMCAfam 463
•15 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GILROY & GILROY | [2009] FMCAfam 463 |
| FAMILY LAW – Children – allegations of violence, domestic violence, child abuse, neglect, drugs and abusive relationships – splitting of siblings – question of where the children live – whether it is appropriate for the children to spend time overnight with the father. |
| Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA |
| Goode v Goode [2006] FamCA 1346 |
| Applicant: | MS GILROY |
| Respondent: | MR GILROY |
| File Number: | BRC 2478 of 2009 |
| Judgment of: | Burnett FM |
| Hearing date: | 15 April 2009 |
| Date of Last Submission: | 15 April 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 15 April 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Smith & Associates |
| Solicitors for the Respondent: | Legal Aid Queensland |
ORDERS
That the children of the relationship, [X] born in 2001, [Y] born in 2002 and [Z] born in 2006 (“the children”) live with the Mother.
That the children spend time and communicate with the Father at all times as agreed between the parties and failing agreement as follows –
(a)In one week from after school/day care Friday to before school/day care Monday commencing Friday 24 April 2009 and each alternate week thereafter;
(b)In the other week from after school/day care Wednesday to before school/day care Friday commencing Friday 1 May 2009 and each alternate week thereafter.
That the [X] born in 2001, [Y] born in 2002 and [Z] born in 2006 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 Family Court of Australia at Brisbane.
That this matter be adjourned to 11.00 am on 9 July 2009 in the Federal Magistrates Court of Australia at Brisbane.
IT IS NOTED that publication of this judgment under the pseudonym Gilroy & Gilroy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 2478 of 2009
| MS GILROY |
Applicant
And
| MR GILROY |
Respondent
REASONS FOR JUDGMENT
In this application the applicant mother seeks orders broadly in these terms: that the children live with her, and that they spend time with the father but that such time be supervised. There are other orders also sought but those orders merge into the resolution of the principal application which relates to where the children will live.
For his part the father seeks orders that the children live with him, and that they spend time with the mother on alternate weekends. The proposal brokered by me was that the children would live with one party and would spend time with the other from after school and/or childcare on Friday to before school and/or childcare on Monday in the first week and from after school and/or childcare on the Wednesday to before school and/or childcare on the Friday in the other week.
The father consents to that arrangement. The mother consents subject to her concerns about overnight time. I will address that matter in my reasons. However, the effect of the concessions by both parties is to mean that the application resolves into one which requires the determination only of the question of where the children live, and the question of whether or not it is appropriate for the children to spend time overnight with the father, and if it is then that arrangement will be suitable.
As with all applications these applications are made pursuant to Pt.VII of the Act. The principles and objects underlying that Pt VII are set out in s.60B which provides, among other things, the objects of the Act are to ensure the best interests of children are met by ensuring that the children have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting children from physical or psychological harm or from being subjected to or exposed to abuse, neglect, or family violence.
The principles underlying these objects are that children have a right to know and be cared for by both parents and they have a right to spend time on a regular basis with and communicate on a regular basis with both parents.
As to how those particular objects are achieved it requires an analysis commencing, in my view, with s.61DA which imports a presumption of equal shared parental responsibility when making parenting orders. It provides that when making a parenting order in relation to a child the Court must 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. Sub-s.(2) of s.61DA provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another who at the time was a member of the parent's family or family violence.
The term family violence is fairly broad and would encapsulate some of the activity which is complained of in the present affidavits. However, sub-s.(3) provides that when the Court is making an interim order the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order.
In this case, perhaps before embarking upon a discussion of sub-s.(3) in the context of this application, the following observations need to be made: consistent with the decision of the Full Court in Goode v Goode, first, one has to consider the two competing proposals; second, one has to look at only the uncontested facts as they exist, and third of course, the matter of status quo has no currency. The application is commenced on a clean sheet basis.
In this case, so far as it can be ascertained from the material, there are very few uncontested facts. Broadly, the uncontested facts can be seen as these: the parties married in 2000. The first child, [X], was born in 2001, she is now almost a little over 8; the second child, [Y], was born in 2002, he is now about 6 and a half; and the youngest child, [Z], was born in 2006, and she is about 2 and a half.
The parties separated – although there was one instance of separation during the course of the relationship – but the parties finally separated on 6 October 2008. They are largely the uncontested facts.
The contested facts revolve around the usual issues that seem to apply in these sorts of cases: allegations of violence, domestic violence, child abuse, neglect, drugs, and abusive relationships. Each of those particular characteristics can be identified in this particular application. All those matters of course as always are contested, and accordingly a lot of the information which is before me does not assist in the resolution of this interim application.
However, bringing me back to s.61DA(3) the effect of the contested facts of course means that there is nothing in the material which I think would discharge the presumption. The only evidence of violence which is uncontested is an admission by the father that he punched holes in the walls of a house in which they were living some time in 2004 and 2005. The admission is coupled with an explanation which, whilst perhaps not entirely exculpatory, certainly explains why it is he did what he did, and as I have already indicated in the course of debate, indicates at least on his part some insight into a shortcoming. But in any event, so far as any serious allegations are concerned they are all in issue and I am not prepared to act upon them in the context of an interim application.
It follows that the presumption of equal shared parental responsibility ought apply in this context. That leads the Court next to consider then the effect of the presumption which is provided for in s.65DAA. It provides that if a parenting order provides that the parents are to have equal shared parental responsibility for a child the Court must consider whether the children spending time with each of the parents will be in the best interests of the children and consider whether the children spend time with each parent as reasonably practicable, and if it is consider making an order to provide for equal time.
I have put to one side, both in respect of equal time and in due course the discussion of substantial and significant time and the question of reasonable practicality, it is not an issue in this case. The question really becomes a question of whether or not it is in the best interests of the children to have equal time or substantial and significant time, and again that matter does not require any further addressing. The definition is well-known to all parties. That matter also requires addressing by reference to s.60CC, best interests considerations.
In determining best interests, as I have already noted, the Court has regard to the matters that are detailed in s.60CC of the Act which provides the relevant criteria for consideration for both primary and additional considerations. The first are the benefit to the children of having a meaningful relationship with both the child's parents.
In terms of the proposal advanced at least agreed to by the parties it would clearly be the case that neither party could contest that the proposal in respect of where the children live, each proposal affording an opportunity for the children to spend time with the other parent would obviously ensure that the children have the benefit and the capacity to develop a meaningful relationship with each of their parents.
There is one caveat to that. That of course is that the time is not to be overnight time. For reasons that I will address in due course I think overnight time is appropriate and so to that end it seems to me that neither proposal which is accepted can be referred.
Next then is a need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect, or family violence. Again, in the context of this application there is a lot of dispute concerning the facts relating to those matters. For the mother's case it is alleged, for instance, that the father has perhaps exposed the children to neglect by not having them properly cared for, perhaps has exposed the children to neglect by reference to his alleged drug behaviour, and an omission on his part to properly care for the children. Further, it is alleged, for instance, that there is a risk of family violence in the father's household. They are all matters that of course are in dispute and so they do not assist in the resolution of this application.
For the mother's part of course the father says, well, the need for protection from physical or psychological harm are high because the mother is involved in an abusive relationship with her present partner. Again, the children are subject to or at risk of abuse, neglect, or family violence. That of course is in dispute. It follows that irrespective of which case I look at in the absence of any agreed facts it does not seem to me that either case can be advanced to demonstrate that one proposal is preferable to the other in terms of who the children should ultimately live with and spend time with, and accordingly that matter does not assist.
So far as the additional considerations are concerned no evidence is placed before me concerning the views of the children, so that matter is not relevant to the determination.
Next is the nature of the relationship with the children with each of the child's parents. In this case there is nothing advanced by either party to suggest a superior position in terms of relationships. It follows – although the children have been living with both parents until the time of separation, they have lived with them for a short time after separation, and in more recent times they have lived in a disjointed association. None of those matters, I think, in the present circumstances necessarily have impeded upon the relationship the children have with their parents, and to that end it does not assist. Likewise the proposals do not, in my view, advance that consideration either, so to that end that consideration is neutral.
Next is the question of the willingness and ability of each of the children's parents to facilitate and encourage a close and continuing relationship with each of the child's parents. That requires the Court to consider the matters identified in s.60CC(4) which calls upon the Court to consider the extent to which each of the children's parents have filled or failed to fulfil his or her responsibilities as a parent and particularly the extent to which each of the children's parents have taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with the children and to communicate with the children, and have facilitated the other parent to do likewise.
That is a significant consideration in this case for this reason: it seems at least on the evidence in respect of why events occurred involving the removal of the youngest children by the father from the mother, that since that time the mother, she says, has not been allowed to see the child by the father. Putting that to one side – and of course working on the presumption that that again is in issue and the father is misunderstood in relation to those matters – the fact remains that the circumstances surrounding the removal of the child is a matter that relates to what is as a major long-term issue in relation to that child. It was a matter which was not subject to negotiation but rather unilateral action on the part of the father which suggests to me that there is demonstrated on his case a distinct failure to facilitate the other parent to participate in making decisions about major long-term issues which would suggest to my mind that a proposal that sees the children live with the mother is one that would be likely to advance the children's best interests, particularly in the context where the mother could be seen to be one who is more likely to facilitate time rather than being less likely, for whatever reason. So to that end, that particular consideration favours the mother's proposal.
Next is the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from either of their parents. In this case, as I have already noted, the parents have lived largely together and with each other. Perhaps more significantly in the context of this case is the second subsection within sub-s.(d) and that is the effect of any separation of any other child or other person with whom the children have been living.
In this case the father's initial unilateral conduct resulted in the youngest child being removed physically from co-location with the two older children. That, of course, in my view, was quite unsatisfactory. The children of course – children being children of tender years – should be together, at least unless the evidence suggests otherwise. It follows that any order that ought be made is one that will keep the three children together. The two proposals do have that outcome in mind, and so to that end it could be seen that again in that context they are to be preferred to the present arrangement which of course involves the children living separately as they do. But ultimately, of course in the result neither particular proposal could be seen to be preferable to the other given that they will both of course ensure that there is minimal separation from the children from their parents.
So far as questions of practical difficulty and expense are concerned there are no issues that arise in the context of the present application that require addressing.
Next, in terms of the maturity, sex, lifestyle, and background of the children, I take into account the fact that the children are each very young. The two youngest are now school-aged, the youngest is at preschool. I note the evidence of Ms Pratt concerning the way in which the youngest child interacts at preschool, and although I note her distinguishing behaviour between time with her father and time with her mother that evidence does not assist significantly because it is equally likely that the child is unsettled because of interaction with her siblings as it is between herself and her mother as the father would have the Court infer from that material.
So far then as the children are concerned, the characteristics of the children that I think are relevant are that the children are young, they should be kept together, and it seems to me they should also be able to spend time with the father. In that regard I am cognisant of the evidence of Ms Pratt that at least so far as the youngest child is concerned when she spent time with the father there is no evidence to suggest that she was in any sense endangered or harmed and so the only inference that can be drawn from the evidence of Ms Pratt is that the father was reasonably able to care for the youngest child and so I infer from that he is able to care for all three, and for that reason it seems to me that the notion that there should be some supervised time is not necessarily demonstrated in this case.
So far as the attitude to the children and to the responsibilities of parenthood demonstrated by each of the child's parents is concerned that requires me again to consider the s.60CC(4) matters. I have earlier addressed those matters; I cannot add to them any further.
So far as the other considerations are concerned, the last remaining material consideration is that of family violence which I have earlier addressed, and again it seems cannot drawn any inferences from the current context.
Having then considered all the matters provided for under s.60CC, each individually and collectively, it seems to me that the balance weighs in favour of an order that sees the children live with the mother and spend time with the father. In saying that I have considered whether or not there should be equal time as a best interests consideration.
Although not specifically addressed I am required to consider any other circumstances the Court does consider relevant. In that regard I have taken into account the observations and writings of Mitchell Harris and Carla Garrity who published a report in relation to Developmental Guidelines for Children, and in their recommendations provided that for children in the 2 and a half to 5 year bracket, and the 6 to 8 year bracket an appropriate recommendation for parents is that there be a maximum of up to five nights per week in relation to spending time with away from the residential parent, and accordingly the arrangement which I proposed follows that recommendation, and although, as I say, I have considered equal time, in the face of the expert evidence of social workers it seems to me that this is in fact a case where there should be substantial and significant time, as I have indicated, in terms of the proposal which I have put to both parties.
So they will be the orders. It is also sought that there be the appointment of an independent children's lawyer. I think in this case, having regard to the allegations that are involved, an ICL should be appointed and I will appoint an ICL.
Finally, in terms of the actual orders that are sought themselves there is a recovery order sought. I propose, Mr Smith, not to make a recovery order unless Ms Suzuki's client is not prepared to inform me today that the child will not be returned within – how long will it take?
The spending time arrangement can start next week, and I will leave it to the parties to draft something up, circulate it between themselves, and email my Associate, or I should say Cassidy FM’s Associate, and I will make orders in those terms.
It will be in the first week commencing Friday – so this can be the first week – commencing Friday after school and after childcare, as is appropriate. To be returned by the father to school and/or childcare on the Monday morning, and then in the second week – which essentially will be next Wednesday and Thursday – after school on Wednesday and/or childcare on Wednesday to be returned to before school and/or childcare on Friday. The father to collect and drop back.
I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: Beverley Schmidt
Date: 12 May 2009
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