Haro and Jurado
[2010] FMCAfam 1083
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HARO & JURADO | [2010] FMCAfam 1083 |
| FAMILY LAW – Interim – parenting – whether child’s time with father should remain supervised. |
| Family Law Act 1975, ss.11F, 60CA, 60CC Family Law Rules 2004, Chapter 15 |
| Goode & Goode (2006) FLC 93-286 |
| Applicant: | MS HARO |
| Respondent: | MR JURARDO |
| File Number: | SYC 194 of 2008 |
| Judgment of: | Monahan FM |
| Hearing date: | 11 August 2010 |
| Date of Last Submission: | 11 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 11 August 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Weate |
| Solicitor for the Respondent: | Ms Finn |
| Solicitor for Independent Children’s Lawyer | Mr Bell |
ORDERS
THE COURT ORDERS THAT:
All extant applications be adjourned to this Court on 20 June 2011 at 10:00am for final hearing (“the Final Hearing”) with an estimated duration of three (3) days.
The Applicant make file and serve any further affidavits or other material to be relied upon by the applicant not later than 21 days prior to the Final Hearing and no further affidavits are to be filed without leave of this Court.
The Respondent make file and serve any further affidavits or other material to be relied upon by the respondent not later than 14 days prior to the Final Hearing and no further affidavits are to be filed without leave of this Court.
The Independent Children’s Lawyer make file and serve any further affidavits and other material to be relied upon by them not later than seven (7) days prior to the Final Hearing.
In the event of any applicable filing, setting down, hearing, mediation or enforcement fee or fees (“the fees”) not having been waived, the party responsible for the payment of the fees or any of them pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations 2000.
On or before 4:00pm two (2) business days prior to the Final Hearing the solicitors for each party and the Independent Children’s Lawyer make file and serve an Outline of Case Document not exceeding five (5) pages in the following format:
(a)a list of the documents to be relied upon;
(b)a brief chronology listing significant events;
(c)an outline of contentions with respect to:
(i)whether the presumption of equal shared parental responsibility applies (s.61DA);
(ii)the considerations relevant to equal time and substantial and significant time (s.65DAA);
(iii)each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors); and
(iv)other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc);
(d)any other matters relevant to the decision;
and
(e)a statement of the precise orders sought.
Paragraphs 3 to 7 of the Orders made on 8 June 2010 be discharged.
Pursuant to Part 15.5 of the Family Law Rules 2004, an expert, namely Dr L, psychologist (“the expert”), be appointed to prepare a report (“the expert report”) addressing the following issues:
(a)Whether the child is at risk of being exposed to any physical or psychological harm or from being subject to or exposed to abuse, neglect or family violence;
(b)any views expressed by the child and any factors, such as but not limited to maturity and level of understanding, that may affect the weight to be accorded to those views;
(c)the relationship of the child with each of the child's parents and any other relevant person;
(d)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;
(e)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other person with whom the child has been living;
(f)the capacity of each parent and any other person to provide for the needs of the child, including emotional and intellectual needs;
(g)the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents or any other relevant person;
(h)The effect on the child of any family violence to which they may have been exposed;
(i)The effect on the child of spending equal time, or substantial and significant time, with each parent having regard to the parent’s current and future capacity to:
(i)Implement such an arrangement; and
(ii)Communicate with each other and resolve difficulties that might arise;
(j)The mental state of both parents in so far as it relates to parenting issues;
(k)The Expert’s opinion concerning the allegations of abuse of the child; and
(l)Any other matter the expert considers relevant
and the expert report be funded by Legal Aid New South Wales (“Legal Aid”) or, in the event Legal Aid is unable to do so, both parties bear the expense of the expert report in equal shares.
Leave be granted to the Independent Children’s Lawyer to relist the matter on seven (7) days notice to the Court.
Leave be granted to the Independent Children’s Lawyer to photocopy any subpoenaed material and any exhibits or documents on the Court file for the purposes of forwarding them to the expert to assist in preparing the expert report.
The Application in a Case filed by the Respondent on 29 June 2010 be dismissed.
The Application in a Case filed by the grandmother on 29 June 2010 be dismissed.
AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:
[X] born [in] 2002 (“the child”) live with the Applicant.
The child spend time with the Respondent:
(a)Commencing on 21 August 2010, each alternate weekend on:
(i)Saturday from 9:30am to 7:00pm; and
(ii)Sunday from 9:30am to 7:00pm;
and
(b)Commencing 13 August 2010, each Friday 4:00pm to 7:30pm.
with the paternal grandmother Ms V (“the paternal grandmother”) to supervise the Respondent at all times that the child is in his care.
In the event the Respondent physically disciplines the child, the grandmother shall immediately remove the child and return him to the Applicant’s care.
For the purpose of the child’s time with the Respondent, the Respondent and the grandmother or maternal grandmother shall collect the child from the Applicant at [M] POLICE STATION at the beginning of the Respondent’s time with the child and shall return the child to the Applicant’s residence at the conclusion of the Respondent’s time with the child.
The Respondent is to communicate with the child each evening that he does not spend time with the child at 6:00pm by calling the child on the child’s mobile telephone.
AND THE COURT DIRECTS THAT:
Upon completion, the expert report be forwarded to Chambers by facsimile transmission on [omitted] and by email to the email address [omitted].
AND THE COURT NOTES THAT:
(A)Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Haro & Jurado is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 194 of 2008
| MS HARO |
Applicant
And
| MR JURARDO |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application in a case by MR JURARDO, (“the father”), who is seeking various parenting orders in relation to the child [X] born [in] 2002 (“[X]” or “the child”). The father is the respondent in the substantive parenting proceedings commenced by MS HARO (“the mother”). In the application in a case, the father is seeking orders to the effect that:
·[X], until further order, live with the mother; and
·[X] spend unsupervised time with the father as follows:
a)every Friday from 4:00pm until 7:00pm;
b)every alternate weekend from Saturday 10:00am until 7:00pm; and
c)Sunday from 10:00am until 7:00pm.
The application in a case is supported by the father’s affidavit sworn and filed on 13 July 2010. The father is legally represented by Ms Finn today.
The respondent to the application in a case is the mother however she is the applicant in the substantive parenting dispute.
In the mother’s response to the application in a case filed on 2 August 2010, she opposes the orders sought by the father and is seeking different parenting orders in relation to the children. She is seeking orders to the effect of the retention of supervision of the child’s time with the father, by either the paternal grandmother or a contact centre if she is unable or unwilling to do so.
Although there is agreement today on the days that the child will spend time with the father, the mother is seeking that all times conclude at 6:30pm and that the commencement times, on the alternate weekends, remain at 10:00am.
The mother relies on her affidavit, sworn on 29 July 2010 and filed on 2 August 2010, specifically in relation to the application in a case. The mother is legally represented by Ms Weate today.
By an order made by this Court on 8 June 2010, an Independent Children’s Lawyer (“ICL”) was appointed for [X], and Mr Bell appears in that capacity today.
Background
It would appear that the parties commenced cohabitation in 2000 and separated in 2003. [X] was born [in] 2002 and is currently eight (8) years of age. The parties have a history before this Court and, it would appear, before the Local Court Family Matters in Sydney. Orders, indeed, were made by the Local Court Family Matters on 30 June 2005 that [X] live with the mother and spend time with the father and the paternal grandmother each weekend from 4:00pm Friday until 8:00pm Monday.
A dispute between the parents appears to have arisen in early 2008. That was resolved by comprehensive parenting orders made with the consent of the parties by Baumann FM on 31 October 2008. Those orders, inter alia, provided for a week‑about living arrangement for [X].
There was no formal order from the orders made for [X] to spend time with the paternal grandmother, although she was a party to the consent orders. The Court notes that the orders also provided for the parties to participate in a Positive Parenting Program.
The matter returned to Court this year with the filing of an application by the mother on 27 April 2010. The matter came before the Court in a duty list on 26 May 2010 and on that occasion various orders were made, including an order that the parties attend a child dispute conference under s.11F of the Family Law Act 1975 (“the Act”). There were also orders by consent that [X] live with the mother and spend defined periods of time with the father. The following orders were also made on that day:
·at paragraph 4, that the child live with the applicant, that is, with the mother;
·at paragraph 5, that the paternal grandmother supervise the respondent at all times the child is in the father’s care;
·at paragraph 6, that in the event that the respondent physically disciplines the child, then the paternal grandmother shall immediately remove the child and return him to the applicant’s care; and
·at paragraph 7, that the paternal grandmother has read these orders and consents to comply with the order.
The matter came before this Court again on 8 June 2010 following a child dispute conference with family consultant Ms M. Ms M’s memorandum outlines the issues in dispute and the issues impeding resolution of the dispute. It would appear that the main problems, at that stage, were the ongoing allegations of family violence and child abuse. On that occasion, the Court was informed that the father was then, and remains, on bail, having been charged with offences relating to the child on 28 May 2010. This Court was appraised today that the criminal matter returns to Court in early 2011.
Ms M made two specific recommendations in her memorandum:
·the appointment of an ICL, which has occurred; and
·a specialist report be prepared, namely, ‘a child and family psychiatrist report’ in view of the mental health issues that have been raised.
On that occasion, the parties were able to agree, on an interim basis, for the father’s time with the child to remain on a supervised basis and for the times and dates of the time that [X] would stay. The parties initially had a disagreement over the exact times that the father would collect and return the child and the location of the changeover, however that was subsequently resolved on the day by the parties.
The matter came before this Court again on 29 June 2010. On that occasion, the hearing of the father’s application in a case was adjourned to 11 August 2010, being today.
The paternal grandmother also filed an application in a case on 29 June 2010 seeking two things
·to be joined as a party; and
·to effectively spend time with the child.
The issues
The dispute today between the parties focuses on two matters:
·whether the child’s time with the father should remain supervised and, if so, supervised by the paternal grandmother or a contact service if the paternal grandmother is unable or unwilling to do so; and
·what the times should be for the commencement and conclusion of the child’s time with the father.
The issue of changeover venue is not in dispute due to the current bail conditions of the father that require changeover at [M] Police Station, as reflected in exhibit “AM1”.
Agreed and disagreed facts
There is agreement today that the matter would benefit from a forensic psychiatric report to be ordered, pursuant to Chapter 15 of the Family Law Rules 2004 (“Chapter 15 expert report”). There is also general agreement between the parties that the matter should now be fixed for final hearing.
The parties, as indicated, disagree on the issue of whether the father’s time with the child should remain supervised and the start and finishing times of the weekend time.
The parties’ submissions
The father’s legal representative, Ms Finn, provided the Court with a case outline in support of the father’s case. The essence of Ms Finn’s submissions is that there would be sufficient safeguards now in place to protect the child if the “spend time” moved to an unsupervised basis.
The father is under bail conditions that restrict the father considerably. Those bail conditions are set out in “Annexure C” of the father’s most recent affidavit and exhibit “AM1” has been submitted in respect of the changeovers now having to be at [M] Police Station. Ms Finn also advised the Court that the father is having anger management counselling and is currently engaged in that process.
As to the start and finishing times issue, Ms Finn made two specific submissions:
·firstly, that there are direct buses that the mother could take to enable the time to conclude at 7:00pm, should she need to travel to and from changeover by public transport; and
·secondly, the 7:00pm conclusion time, as proposed by the father and that is apparently currently in place, would enable the child to have a meal with the father and, presumably, the paternal grandmother in sufficient time for the father to deliver the child to [M] Police Station by the 7:00pm deadline.
Ms Weate for the mother also provided the Court with an outline of case document which has been considered. The essence of Ms Weate’s submissions is that there remains real concerns for [X]’s safety should unsupervised time occur. Ms Weate specifically referred the Court to the mother’s most recent affidavit and also to documents subpoenaed from the New South Wales Police; more specifically, a statement of Constable O, and her handwritten notes and photos that were attached.
As to the changeover times issues, Ms Weate submitted that the mother would be disadvantaged by having to travel home after 7:00pm with [X] and they may have difficulties in facilitating [X] to be out of bed in time to meet an earlier start time on weekends.
Mr Bell, as ICL, made submissions on behalf of the child. The essence of Mr Bell’s submissions were:
·firstly, that the matter needed a Chapter 15 expert report and he advised the Court that he had received a grant of legal aid to progress that;
·secondly, there remains a risk to the child if unsupervised time occurs, pending receipt of the expert opinion; and
·thirdly, there appears to be buses available to assist the mother to get to and from [M] Police Station at the times requested by both parties.
The law
The Full Court of the Family Court decision of Goode & Goode (2006) FLC 93-286 (“Goode”) guides the Court’s approach in making interim decisions and interim orders in relation to parenting disputes. At paragraph 81 the Full Court noted:
“In making interim decisions, the Court will still often be faced with conflicting facts, little helpful evidence and disputes between parents as to what constitutes the best interests of the child.”
This matter is clearly such a case. More specifically, it raises the reality that the Court cannot fully determine issues of credit today as the evidence being presented by the parties is not being tested by cross-examination. That having been said again in paragraph 81 of the Goode decision, the Full Court went on to say:
“However, the legislative pathway must be followed.”
In other words, the relevant provisions of the Act, post the 2006 shared parenting amendments, must be followed in an interim hearing.
There is considerable disagreement, indeed animosity, it would appear, between the parties in this case and no doubt the history of the matter will be the subject of evidence and cross-examination at the final hearing, should such be needed.
There is no issue for the Court to determine today in respect of equal shared parental responsibility. The dispute today is simply limited to the issue of [X]’s time with his father and under what circumstances that time is to be spent.
Returning to the Goode decision, the Full Court at paragraph 82 sets out the approach that this Court must take in determining interim cases. The competing proposals, issues in dispute any agreed and uncontested relevant facts have already been identified. At this point it is noted that s.60CA of the Act provides:
“In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.”
Clearly, to determine the child’s best interests, the Court must consider the primary considerations or factors set out in s.60CC(2) of the Act and, where relevant, the additional considerations referred to in sub-s.(3) of s.60CC. With respect to these sections the following comments are made.
Primary considerations: s.60CC(2)
The Court is required under s.60CC(2)(a) to consider the “benefit of a child having a meaningful relationship with both of the child’s parents”. At this point, it is noted that “meaningful” does not not mean equal, but clearly signifies that both parents should be involved with their child and clearly signifies an expectation of time to be spent. The right of a child to spend time with each parent and extended family is clearly a right that the child has under the Act. Consequently, the Court will, in all likelihood, need to give considerable weight to this factor at the final hearing, should such be needed.
The Court is required, under s.60CC(2)(b), to consider the “need to protect the child from physical or psychological harm and being subjected or exposed to abuse, neglect or family violence”. This is the live issue in this case. There is no doubt that it would be in [X]’s best interests to develop a meaningful relationship not just with his mother, but with his father. That needs to be balanced in respect of protecting him from any physical or psychological harm and the like.
Given the nature of the allegations, the Court is satisfied that there is a need to test the issues as to whether the child has, in any way, been physically or psychologically harmed by recent events. In this respect, the Court notes that there are outstanding criminal proceedings yet to be determined involving the father and the child. There are issues here warranting investigation and the Court needs to tread cautiously in the interim arrangements that will be necessary to safeguard the interests of the child. The Court has also noted that there is a current apprehended violence order in respect of the child and the mother.
Additional considerations: s.60CC(3)
With respect to the additional considerations, the issues such as the “views of the child”, “the nature of the relationship of the child with the parents”, “the willingness and ability of the parents to facilitate and encourage a closer continuing relationship” and the like will be flushed out in the fullness of time at the final hearing. The family report or, in this case, the expert report that will be ordered today and the submissions of the ICL will also be crucial to the Court reaching a decision that will finally determine these matters for the parties.
Nevertheless, the Court notes at this stage there is an issue about each party’s willingness and ability to facilitate and encourage a close and continuing relationship.
The Court also has to consider the issues such as the “capacity of each parent to provide for the needs of the child” and so forth.
Conclusion
The Court agrees with the submissions of the mother and the ICL that until further order [X]’s time with the father should remain supervised.
The Court agrees with the submissions of the father, however, that there is merit in the changeover times remaining at 7:00pm and the weekend start times commencing at 9:30am. In this respect, the Court notes that in the Orders made by this Court on 8 June 2010, the changeover time was, indeed, 7:30pm and that time had been reached by agreement between the parties. The Court is satisfied therefore that 7:00pm remains equally appropriate for the child.
In the event that the paternal grandmother is not agreeable to remain the supervisor of the father’s time with the child the Court will consider further submissions.
The Court will separately consider the paternal grandmother’s application in a case.
The right to settle the reasons for this interim decision is reserved.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 18 October 2010
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