Gleeson and Andrews - [2009] FMCAfam 607

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GLEESON & ANDREWS

[2009] FMCAfam 607

FAMILY LAW – Interim arrangement for child aged 5 months – presumption of equal shared parental responsibility – best interests – relevance of age of child.

Family Law Act 1975, ss.60CC, 61DA

Applicant:

MS GLEESON

Respondent:

MR ANDREWS

File number:

ADC 1796 of 2009

Judgment of:

Brown FM

Hearing date:

22 May 2009

Date of last submission:

22 May 2009

Delivered at:

Adelaide

Delivered on:

22 May 2009

REPRESENTATION

Counsel for the Applicant:

All Family Law

Solicitors for the Applicant:

Ms Lewis

Counsel for the Respondent:

Windevere Bellman

Solicitors for the Respondent:

Mr Oliveri

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

The child [X] born in 2009 live with the mother.
The father spend time with the said child as follows:
(a)Each Saturday commencing 23 May 2009 from 12:00pm midday to 5:00pm; and
(b)Each Tuesday and Thursday commencing 26 and 28 May between 4:00pm and 6:00pm
All handovers to be within the precincts of the [S] Police Station and only the parents are to attend.
The parties are restrained and an injunction issue restraining them from consuming alcohol or illicit drugs in his or her care 12 hours prior to the time the parties spend with the child.
The parties are restrained and an injunction issue restraining them from smoking in any confined space in the presence of the child
The parties are restrained and an injunction issue restraining them from moving the place of residence from outside of the metropolitan area of Adelaide.
Pursuant to section 91B of the Family Law Act 1975, Department for Families & Communities (Families SA) is invited to intervene in these proceedings.
Pursuant to section 69ZW of the Family Law Act, Families SA are ordered to provide to the court on or before 15 June 2009 the following documents:
(a)any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;
(b)any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;
(c)any reports commissioned by the agency in the course of investigating a notification.
In the period of the adjournment the parties each attend upon a family consultant to discuss the arrangements of the care and the family consultant report back to the court in respect of such a meeting on

19 June 2009 at 2:00pm to discuss the care, welfare and development of the child [X] born in 2009 in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.
Further consideration of the matter is adjourned to 19 June 2009 at 4:00pm when it is anticipated the family consultant will be able to provide an oral advice to court.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 1796 of 2009

MS GLEESON

Applicant

And

MR ANDREWS

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally immediately following the interim hearing. Given the welfare concerns raised by both parties, it is appropriate that the reasons be transcribed and provided to each of the parties concerned.
This afternoon, I have to deal with the matter of Gleeson and Andrews. The applicant in the proceedings is Ms Gleeson and the respondent is Mr Andrews. The parties are the parents of a young child, [X], who was born in 2009, so [X] is not yet five months of age.
The proceedings concern interim arrangements for [X]'s care. When I say "interim arrangements" what I mean is this: I am making orders against a background of some urgency and controversy. The only evidence I have at this stage is in the affidavits that the parties and, in Mr Andrews's case, those who are associated with him, have each prepared.
At this stage I have not had the opportunity of seeing either of the parties in the witness box and so I have no opportunity to ascertain the truth of a lot of the things which they say about each other; I just do not know. I cannot tell who is telling the truth from just reading an affidavit and, as I said to Mr Oliveri a moment ago, proceedings like this do not encourage people to say good things about one another.
To the contrary, for obvious reasons, people say bad things about one another and they emphasise all their concerns and they underline as deeply and as thoroughly as they can any past failings of the other person concerned.
If necessary, there will be a long and exhaustive hearing about arrangements for [X]'s care, but that cannot be today. At that future stage, if necessary, I will be able to make findings about issues in dispute between the parties, when they can each be cross examined in depth.
It is also likely that it will be helpful to me to have a report from a psychologist or someone who has got expertise in the needs of a child of [X]'s age. I have not met [X]. I most likely never will, but I am having to make these important decisions about him. Any family report cannot be done overnight and there will have to be some time allowed for that report to be made.
At this stage everyone is still very upset, and I think that makes it difficult for them to focus on agreeing on arrangements for [X]'s care at this stage, and I will have to make a decision. In reaching that decision I will have to be satisfied that whatever I do is likely to be in [X]'s best interests.
I have to do what I think is right for [X]. I am not here to be fair to

Mr Andrews. I am not here to be fair to Ms Gleeson. If I was, the obvious solution to the problem would be that [X] live with one of his parents for a week, say, and then live with his other parent for a week. That would be fair to each of you, but would it be in [X]'s best interests? That is what I have to turn my mind to.
In this case there are all sorts of disputes between you as to what sort of people you are and what sort of parents, more importantly, you are. At this stage each of you say the other is not a very good parent and, of course, I have to take these concerns seriously.
The proceedings began not very long ago now - on 12 May I think it was - when Ms Gleeson brought her application. It was her position at that stage that she had been [X]'s primary provider of care since he was born. It was her case that this had come about because Mr Andrews had been in the workforce and she had been at home.
Ms Gleeson was critical of Mr Andrews and asserted that whilst the parties were in a relationship with one another, he smoked marijuana, and she also asserted that he took ice or methamphetamines, although Mr Andrews vehemently denies that. She says - and these are her words - "He (Mr Andrews) is stoned most of the time in one way or another."
It is the mother's case that the period during which the parties were involved with one another was one characterised by the father being often violent towards her, she says often after he had been drinking or taking drugs, and she asserts that she was pushed on several occasions. It was her case that she thought that the violence towards her was getting worse.
In her affidavit, Ms Gleeson said that she had been breastfeeding [X] until sometime towards the end of April. It was her case that she had tended to [X]'s needs during the night. She said that she was the parent who had always bathed [X] and that Mr Andrews had only done this once. It was her case that she had been the person who had changed [X]'s nappy.
At any event, she deposed that on 7 May she was unwell with gastroenteritis. As a result, she asked the father and his family for help, and Mr Andrews' sister Ms P came to collect [X]. After that, it is her case that she was not able to retrieve [X] from the father and his family, and that was the background to her bringing this application, which she did on 12 May. So a period of about five days elapsed between [X] going into Mr Andrews' care and her bringing these proceedings.
It is Ms Gleeson's case that, after [X] went to his father's care, he indicated to her that he would return [X] to her only if she was willing to sign some sort of document or agreement that the parties would share his care on an equal basis and I think it is the implication of

Ms Gleeson's position that she didn't think that such an outcome was likely to be in [X]'s best interests, given his tender years and the concerns she had about Mr Andrews' parenting ability.
Ms Gleeson asked that her application be listed urgently, and it was. It was listed on 14 May. At that time, given what I had read in

Ms Gleeson's affidavit and particularly bearing in mind that it seemed clear that to a large extent Mr Andrews had taken things into his own hands regarding [X]'s care, and it was also clear that Mr Andrews had been in the paid workforce during the parties' relationship, and necessarily this must have meant that a significant component of [X]'s care must have devolved onto Ms Gleeson, I decided that [X] should be returned to his mother's care.
In order to allow Mr Andrews to put his side of things, the proceedings were adjourned to today, eight days later.
Mr Andrews has wasted no time in filing a response. He has also filed other affidavits in support of his position. He has filed an affidavit of himself, an affidavit of his mother Ms K and an affidavit of his sister Ms P. Necessarily, the aunt of [X] and the paternal grandmother are supportive of the father in these proceedings.
At this stage, at the interim stage, it is the father's position that [X] should live with the parties as follows: firstly, that [X] should live with his father from 9 am on Saturday to 5 pm on Tuesday in one week of each fortnight, and in the other week of each fortnight from 9 am Sunday to 5 pm Tuesday and with his mother for the remainder of the time.
So that would be, on my calculations, five nights out of each 14, that [X] would spend with his father and I think there is no doubt that that is fairly close to an equal time arrangement, so as [X]’s care is concerned.
Mr Andrews concedes that he has been working during the parties' relationship. He says that as a condition of his employment he is subject to random drug and alcohol tests and they have been clear. He refutes any suggestion that he has issues to do with alcohol abuse and denies taking illicit drugs.
It is his case that it is the mother who is the violent and abusive person. It is his case that he believes that the mother has significant issues to do with the control of her temper and it is his case that, whenever he has expressed any mild criticism of aspects to do with her care of [X], the mother has reacted extremely.
He refers to a situation where [X] was crying and upset and was not feeding well, and this was because there was some issue with a bottle he was being fed, and he asserts that when it was suggested that the teat on the bottle be changed, Ms Gleeson responded with screaming and kicked him in the head.
It is also his case, as I understand it, that although he was at work during the day, when he came home he was very closely involved with caring for [X]. He says that he got up when [X] woke during the night. He says there was a time when he had to take a week off because he had a sore back and he says that during this week he cared for [X]. He asserts that he has bathed [X] on many occasions. It is his case that he fears that the mother does not take proper care of [X] in the bath, and left him alone in the bath when she went to get a towel.
It is his case that he has grave concerns about the mother's parenting ability and insight and he confirms that [X] does suffer from gastric reflux, and essentially he says that Ms Gleeson does not have the skills to attend to this condition, and he is supported in these various concerns, I think, by his mother and sister. He also criticises the mother for having issues to do with alcohol, and in particular that she drinks Jim Beam to excess from time to time.
So, as I say, both parties essentially say that the other is a poor parent and I should have very grave concerns if [X] is either with the mother or the father respectively. I am told also that the father and members of his family have made notifications to Families SA, but at this point it seems that the welfare officers have not sought to directly remove [X] from the mother's care or, indeed, from the father's care.
As I said at the outset, whatever orders I make, I have to be satisfied that they are likely to be in [X]'s best interests. The Family Law Act encourages both a child's parents being involved in making decisions about their child and also having as close and meaningful a relationship with the child concerned as is possible.
For that reason, before I make any order in respect of a child I have to consider whether the presumption contained in section 61DA of the Family Law Act should be applied. I am required to consider whether it is likely to be in the best interests of any child concerned for his or her parents to have equal shared parental responsibility for the child concerned.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child concerned has engaged in abuse of the child or family violence. The presumption also does not apply if I am satisfied that it would not be in the best interests of the child concerned for his or her parents to have equal shared parental responsibility, and finally, at the interim stage the presumption may also be rebutted if it is not appropriate for it to be applied.
In this case I am satisfied that it is not appropriate for the presumption to be applied. I reach that conclusion because, as I say, each party says that the other is a poor parent; both raise concerns about family violence by the other; and I think, given [X]'s age, given the poor relationship between the parents and those who are associated with each of them, the presumption simply should not apply at this early interim stage.
Both parties have appeared in court with those who are dear to them. In the mother's case she is here with her own mother, [X]'s maternal grandmother. She is also here with her sister who, I am told, is a child care worker. Those persons have not prepared affidavits. I suspect that has been because there has not been time for it to be done, but their presence here is an indication of their willingness to support

Ms Gleeson.
In determining what is the appropriate outcome, I have to consider the various matters which are set out in section 60CC of the Family Law Act. Section 60CC sets out a long list of matters I have to consider in determining what is likely to be the outcome which will be in the child's best interests.
There are two categories of matter: primary considerations, and there are two of those. I have to consider the benefit of the child concerned having a meaningful relationship with both of his or her parents. I have to consider the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The additional considerations are more lengthy and I will not go through all of them now, but they include the nature of the relationship the child has with each of his or her parents; the willingness of each of the child's parents to facilitate and encourage an appropriate relationship between the child and the other parents; any consequences for the child if there is a change in his or her circumstances, including being separated from one or other of his parents.
I also have to look at the capacity and level of insight of the parties concerned to provide for the child who is involved in the proceedings. It is also of note that I have to consider the maturity and level of development of any child concerned.
There is no principle, I think, that one size of parenting order fits every family or every child. Rather, I have to look at the individual circumstances of any child and his or her parents and fashion the orders which I think will best suit the interests of the child involved. The age of the child concerned is very often a central consideration in this exercise.
In this case it seems to me on balance more likely than not that [X]'s most significant relationship is with his mother. I reach that conclusion because it is conceded by the father that the mother breastfed [X], and [X] is still very young indeed. He is not yet five months of age.
It is also, I think, clear that Mr Andrews was, at least in the past, content to leave [X] in Ms Gleeson's care whilst he went to work. I am not critical of him for working. Of course, it is equally important for a child that he or she has some source of financial support. So I think at this stage I have to consider how [X] can maintain his primary connection with his mother.
I also have to consider how [X] can be protected from harm and, of course, I am concerned about the issues both parties have raised about the other. I have to look at what the father says about the mother - I cannot determine whether it is true or otherwise at this stage - and look at it and say, "Are the concerns so serious that it would be unacceptable for [X] to be left in his mother's care?" and at this stage, particularly given the nature of the issues which have been raised and the fact that in the past Mr Andrews did leave [X] in Ms Gleeson's care, I have come to the conclusion that it would not be unacceptable for [X] to continue to live predominantly with his mother.
In this case, as far as I know, Families SA have not been actively involved in removing [X] from the mother's care. However, I am going to invite the department to intervene in these proceedings and, in addition, pursuant to section 69ZW of the Family Law Act I will order them to provide details of any notifications of child abuse which they have received and what they have done about those notifications.
Of course, [X] has an entitlement to have a relationship with his father and members of his father's family, but at this stage I think the father's proposals for [X] to spend time with him are likely to be too ambitious and, as such, unworkable.
I would have concerns about [X] being away from his mother's care for the periods envisaged by Mr Andrews, given [X]'s tender years. I think it is likely to be better for [X] if he spends short periods of time in his father's care but confined at this stage to periods that fall short of overnight time.
It would be helpful to me and it may be helpful to the parties if they meet with one of the court child and family dispute resolution mediators, and I am going to make arrangements along those lines, and particularly so that the consultant concerned can report back to me about any impressions he has and any views, based on his professional experience, as to what is likely to be in [X]'s best interests.
The mother at this stage proposes that [X] should see his father on Saturday afternoons. She is also proposing another occasion in the afternoon on a work night. I am told by Mr Oliveri, who appears for Mr Andrews, that his client has modified his working hours and rarely works after 2.00 or 3.00 in the afternoon.
At this stage, given the polarised position of the parties, sadly it seems that [X] will have to be exchanged between them at a police station, and it seems that only the parties themselves should be involved in that process.
At this stage I think that it would be ideal for Mr Andrews to be able to spend three occasions each week with [X] for fairly short periods of time. Whether that is workable in the longer term I am not sure, but I suspect at this early stage both parties will have to make some sacrifices to maintain Mr Andrews' relationship with [X].

I am also going to make some injunctions restraining each of the parties from consuming alcohol or illicit drugs whilst [X] is in their respective care, or smoking in his presence in a confined space, and finally I will make orders restraining each of the parties removing [X] from the area of metropolitan Adelaide.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: Ms P Smith

Date: 22 May 2009