GOODWIN & GOODWIN

[2015] FamCA 886

FAMILY COURT OF AUSTRALIA

GOODWIN & GOODWIN [2015] FamCA 886

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the two children are eighteen months and three months old – Where the parties proposed schemes for the father to spend supervised time with the children until the end of 2016, with time gradually increased – Where the Court finds the presumption of equal shared parental responsibility does not apply – Where the Court is of the view further consideration of the interim parenting arrangements should be had in six months – Where the Court is unable to make findings in relation to the competing allegations of family violence  – Orders made.

Family Law Act 1975 (Cth) s 61DA(3)

APPLICANT: Ms Goodwin

RESPONDENT: Mr Goodwin

FILE NUMBER: SYC 1394 of 2015

DATE DELIVERED: 22 October 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 7 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell SC

SOLICITORS FOR THE APPLICANT: Argyle Lawyers

COUNSEL FOR THE RESPONDENT: Ms Kearney

SOLICITORS FOR THE RESPONDENT: Mullane & Lindsay

Orders pending further order

1. That all existing parenting orders in relation to the children:

   ·B born on … 2014; and

   ·C born on … 2015

   are discharged.

2. That B and C live with the mother.

3. That, until 30 April 2016:

   (a)B spend time with the father each Wednesday from 2.00 pm until 4.00 pm and each Saturday from 9.00 am until 11.00 am under the supervision of staff of D Care.

   (b)C spend time with the father each Wednesday from 3.00 pm until 4.00 pm and each Saturday from 10.00 am until 11.00 am under the supervision of staff of D Care.

4. That the parties share equally in the cost of supervision of the children’s time with the father by staff of D Care.

5. That either or both of the paternal grandparents are at liberty to attend the children’s periods of time with the father.

6. That it is noted that the Court intends to give further consideration to interim parenting issues after 30 April 2016 and that any such application should be listed before Stevenson J if reasonably practicable.

7. Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached to the Orders and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Goodwin & Goodwin 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 SYDNEY

FILE NUMBER: SYC 1394 of 2015

Ms Goodwin

Applicant

And

Mr Goodwin

Respondent

REASONS FOR JUDGMENT

The Proceedings

1. Mr Goodwin (“the father”) and Ms Goodwin (“the mother”) are the parents of two children:

   ·B born in 2014 (18 months); and

   ·C born in 2015 (3 months).

   These proceedings concern interim parenting orders.

2. The applicant mother sought orders to the effect that B spend time with the father under the supervision of staff of D Care until 2 July 2016.  This time would consist of 1.5 hours each Sunday and 30 minutes on a weekday until 2 July 2016 and thereafter 4 hours each Saturday or Sunday.  The mother sought no orders in relation to time for C with the father.  On her behalf, however, it was submitted that the present arrangement should continue and that C should spend with the father the final 30 minutes of each supervised period with B.

3. The respondent father sought orders to the effect that B spend time with him each Tuesday and Sunday from 9.00 am until 4.30 pm until 1 December 2015 and thereafter on a gradually increasing basis, culminating in each alternate weekend from 9.00 am on Friday until 6.30 pm on Monday and every Tuesday from 9.00 am until 6.30 pm from 2 December 2016.  The father proposed that C spend time with him each Tuesday and Sunday from 9.00 am until 12 noon until 1 December 2015 and thereafter on a graduated basis, culminating in each alternate Sunday from 4.00 pm until 6.30 pm on Monday and every Tuesday from 9.00 am until 6.30 pm.  The father sought further orders that the children spend time with each parent on special occasions.

Background

1. The father and the mother, who are aged 36 and 32 respectively, began to live together in July 2008 and married in 2012.  They separated on either 24 December 2014, according to the father, or in February 2015 on the mother’s version of events.

2. At the date of separation C was unborn and B was aged either nine or eleven months.  On 10 July 2015 interim orders were made by consent which provided that B spend time with the father, until 10 August 2015, for three hours each Wednesday from 1.00 pm until 4.00 pm under the supervision of staff of D Care.

3. On 10 August 2015 further interim orders were made by consent to the effect that B spend time with the father from 2.30 pm to 4.30 pm each Wednesday and from 9.00 am until 11.00 am each Saturday, under the supervision of staff of D Care.  This time was to occur at the Suburb E Aquatic Centre, F Play Centre, the home of the maternal grandparents or a park in that vicinity.  The orders provided further that C spend time with the father for the final 30 minutes of those periods.  The proceedings were then adjourned for further interim hearing on 7 October 2015.

4. The mother alleged that the father subjected her to violence, anger, intimidation and harassment during the parties’ relationship.  These allegations were denied by the father, who maintained that the mother subjected him to controlling behaviour.  Obviously, it is impossible to make any findings of fact in relation to these competing allegations in the context of interim proceedings.

5. It was common ground that B suffers from allergies and is under the care of a paediatrician, Dr G.  In a letter dated 1 September 2015 to the mother (Annexure “C” to the mother’s affidavit sworn 22 September 2015) Dr G advised as follows:

   DIAGNOSES:

   1.  Food allergy – egg, cashew nut, peanut, kiwi fruit

   2.  Environmental reactions to grasses

   As discussed in the past [B] was diagnosed with the above food allergies in November 2014 when I performed allergy skin prick tests on [B] who was 8 months of age at the time.

   In February 2015, [B] was prescribed an EpiPen for potential exposure to these allergens.

   The EpiPen should be kept with [B] at all times.  An Anaphylaxis Management Plan was issued at the same time stating that in the first instance of potential exposure [B] should be given between 2.5ml and 5mls of Claratyne, followed by the EpiPen if needed.

   We also discussed the fact that [B] also reacts to playing on grass when she can break out in all over body rashes.  When these do not settle down of their own accord, [B] may be given 2.5-5mls of Claratyne.

6. The father met with Dr G on 8 September 2015, following which he wrote a letter (Exhibit 5) in the following terms:

   Firstly, [B’s] grass allergy is not a life-threatening allergy but, if [B] plays on the grass she might develop a rash that can easily be treated with oral antihistamines.

   As regards [B’s] food allergies, while the skin prick tests to egg white and peanut were not as high as that to cashew, it is impossible to predict which of these foods might cause anaphylaxis.  Therefore, they should be rigorously avoided and an EpiPen should always be on hand to be used in conjunction with an Anaphylaxis Management Plan which you have.

   Hopefully in time [B’s] skin prick test, especially that to peanut, might normalize but only time will tell.

7. The mother complained that the father and a supervisor failed to take with them a bag which contained an EpiPen when B spent time with him on 26 August 2015.  The report of the contact supervisor, Ms H (Exhibit 1) read inter alia as follows:

   I returned inside and [Ms Goodwin] pointed to shoes and a jacket that [B] could wear if we went to the park.  I asked [Ms Goodwin] if there was anything else to take apart from the shoes and jacket and [Ms Goodwin] said, that’s right the shoes and the jacket, and that’s all.  There were no other remarks made about things to bring to the park.

8. After this incident the father purchased an EpiPen.  In my view there is no reason to doubt his evidence that he takes this EpiPen on all of his visits with B.

9. On 22 September 2015 the mother’s solicitors wrote to an unspecified person at D Care (Exhibit 2), stating inter alia:

   We are instructed that our client has lost faith in the supervisor [Ms H] and we respectfully request that she no longer be allocated to the supervised visits.  Should [Ms H] be the supervisor, our client will not make [B] available for contact.

   The father was given no opportunity to provide his version of the events of 26 August 2015.  The administration manager of D Care replied to this communication and an alternate supervisor was arranged at short notice.

10. The parties gave competing versions of an incident on 24 December 2014, for which each directed blame at the other.  The relevant COPS entry (Exhibit 3) described an argument which began over the cost of a purchase of cheese.  The mother reported this incident to police on 27 December 2014.  The COPS entry noted inter alia:

    About 8.10 pm Saturday 27 December 2014 the [victim] and her friend attended [Suburb E] Police Station to report the incident.  The [victim] stated, “I want to report a domestic incident.  I want to make this clear, I only want a report to be made.  No statements or anything like that”.  The [victim] told police the above version of events and when police asked if anything physical occurred she declined to provide the details.  The [victim] had no visible injuries.

11. Police officers were involved with the parties on a second occasion on 27 February 2015.  The relevant COPS entry (Exhibit 4) described the allegations by the mother as follows:

    About 7.15 pm on Friday the 27^th of February 2015 police received three phone calls from PN1, [Ms Goodwin], in relation to her ex-husband, PN2, [Mr Goodwin], attending her address at [I Street, Suburb I] and collecting property.  She stated that PN2 had entered the property against her wishes and that he had been sent a letter by her solicitor stating that he was not to go there.  She stated that he must have broken in because she had changed the locks.

    Police were informed that they were “too slow” last time and that her solicitor had informed her that there was “enough” for an Apprehended Violence Order this time…

12. The attending police officers formed the view that:

    …the PN1 had a lawful right to enter and collect property.  It is believed he obtained a key to the premises by entering through an open window and before locating a spare key to the new locks.  There was no forced entry or other damage.

13. The attending police officers reached the following conclusions:

    It is apparent to police that PN1 is attempting to use police domestic violence procedures in an attempt to influence the current civil divorce proceedings.  She had been provided advice in relation to those procedures in an attempt to have police obtain an Apprehended Violence Order on her behalf.  PN2 is attempting to avoid all contact with PN1 and appears to have taken every step to avoid her on this occasion.  He was provided advice about reporting any future incidents and avoiding conflict.

14. The reports by D Care supervisors (Exhibit 1) describe comfortable and loving interactions between B and the father.  It appears that they greet each other affectionately, play together and that the father helps B with her food and drink.

15. In my view, the father displayed sensitivity in relation to C on 19 August 2015.  She was unsettled when the supervisor brought her to the father.  The supervisor reported:

    [Ms Goodwin] was in the middle of breastfeeding and explained that [C] might be a bit unsettled.  I suggested that [C] continue feeding but she said that it could take an hour or longer.  I suggested that I try to bring her to [Mr Goodwin] and that I would take her back if she became distressed.  [Ms Goodwin] cautioned me that she would throw up and provided me with a cloth nappy.

    I embraced [C] and brought her to [Mr Goodwin], advising him that she was likely to throw up.  [Mr Goodwin] embraced [C] for a while.  [B] also sat with [Mr Goodwin] and cuddled into him.  [Ms J] [the paternal grandmother] then had a cuddle of [C], as [Mr Goodwin] played around the floor with [B].  [C] cried a bit showing her hunger.

    [C] continued crying and appeared to want to continue feeding.  [Mr Goodwin] suggested that it was more important that the infant was happy and settled.  He suggested that I take her back to [Ms Goodwin].

Consideration

1. The father sought an order that the parties have equal shared parental responsibility for the children, while the mother’s Further Amended Application in a Case filed on 23 June 2015 was silent on this issue.  As noted above, there were mutual allegations of aggressive and controlling behaviour, concerning which no findings can be made in these interim proceedings.

2. In these circumstances, I will have resort to the provisions of section 61DA(3), as I am satisfied that it is not appropriate to apply the presumption of equal shared parental responsibility.  I am accordingly relieved of the obligation to consider whether it is in the best interests of the children, and reasonably practicable, that they spend equal or substantial and significant time with each parent.  The nonsensical nature of that exercise in relation to children aged 18 and 3 months is glaringly apparent on its face.  Accordingly I am at liberty to determine directly what orders are in the best interests of the children.

3. On 30 September 2015 Family Consultant Ms K met with the parties and prepared a Children and Parents Issues Assessment.  Inter alia, the Family Consultant opined as follows:

   9.[C] (age 3 months) was seen with her mother.  [C] is reportedly being breastfed but she is also being given some bottle feeds.  [C] is not yet of an age at which she would be discriminating amongst her adult care givers.  But she would be in the process of developing attachments to those who are caring for her, primarily her mother.  The current brief periods of time that [C] is spending with her father are unlikely to be giving her the opportunity to develop an attachment to him.

   …

   18.In order for [B] and [C] to establish, maintain and further develop their relationships with their father, they require frequent and predictable time with him that provides for him to be involved in a range of activities and routines.  This would include him feeding, putting them to sleep, changing their nappies, bathing them and playing with them.  It is noted that [C] does take a bottle, therefore, when [C] spends time with her father, he could give her a bottle if she requires feeding.

4. The Family Consultant opined further:

   20.…  Given the vulnerable emotional state of [Ms Goodwin] and her having given birth just three months ago, it is likely that, without professional supervision, the children spending time with their father will cause her stress and anxiety.  This may negatively impact her capacity to facilitate and encourage the children’s relationships with their father.

5. It seems to me that the best interests of the children require that their time with the father continue to occur on a professionally supervised basis for approximately a further period of six months.  I appreciate the cost impost but I am of the view that the mother’s level of anxiety is such that there is a risk that time with the father will simply not occur without that safety net.

6. I have referred above to occasions when the mother has displayed reluctance for the children to spend time with the father, although she has not refused to facilitate their doing so.  I impute no sinister motive to the mother but I am of the view that these events are indicative of her level of stress.  I consider that a continuation of professional supervision is likely to alleviate the mother’s stress and thus facilitate the children’s spending time with the father.

7. I have had regard to the view expressed by the Family Consultant that the current very short periods which C spends with the father are not sufficient to enable her to develop a relationship with him.  Obviously, it is in C’s best interests that she bond with the father and develops a close paternal relationship with him.

8. It seems to me that C’s time with the father should be extended to two periods each of one hour per week.  The father has demonstrated that he will be sensitive to C’s needs and return her to the mother if necessary.  I am confident that he will continue to act in her best interests.

9. I am of the view that B should spend two periods per week, each of two hours, with the father.  The current arrangement is that B spends time with the father each Wednesday and Saturday.  I will base my orders upon that regime, which was entered into by the agreement of the parties.

10. The orders made on 10 August 2015 provided that the paternal grandparents may be present on occasions when the children spend time with the father.  I will continue this arrangement, as it is of benefit to the children to develop relationships with their paternal grandmother and grandfather.

11. I decline to make injunctive orders against the father, as sought by the mother.  Her allegations of violent or inappropriate conduct on his part are untested and, in any event, it seems that he has been given advice by police officers in relation to his interaction with the mother.

12. In the particular circumstances of this separated family, and due primarily to the very young ages of B and C, I take the view that further consideration should be given to interim parenting arrangements in approximately six months.  At stake here is the future relationship of two very young girls with their father.  In my view, the Court should tread very carefully and give consideration to extension of the children’s time with the father, after having had the benefit of updating evidence.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 22 October 2015.

Associate:

Date:  22 October 2015