Harris and Smith and Anor (No. 2)
[2008] FamCAFC 131
•26 August 2008
FAMILY COURT OF AUSTRALIA
| HARRIS & SMITH AND ANOR (NO. 2) | [2008] FamCAFC 131 |
| FAMILY LAW - APPEAL AGAINST INTERIM ORDERS – WITH WHOM A CHILD LIVES AND SPENDS TIME – RE-EXERCISE OF THE DISCRETION – Where Federal Magistrate made orders that the child live week about with each of his grandmothers on an interim basis – Parties given time to make further submissions on matters relevant to a re-exercise of the discretion after merit found in the appeal –Consideration of Part VII of the Family Law Act 1975 (Cth) as required by the Full Court decision in Goode and Goode (2006) FLC 93-286 – Appeal allowed and orders made in slightly different terms to those of the Federal Magistrate |
| Family Law Act 1975 (Cth) s 60CA, s 60CC, s 61C, s 61DA, s 65DAA Federal Proceedings (Costs) Act 1981 (Cth) |
| Goode and Goode (2006) FLC 93-286 |
| APPELLANT: | Mr Harris |
| 1ST RESPONDENT: | Ms Smith |
| 2ND RESPONDENT: | Ms A (the maternal grandmother) |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Lee |
| FILE NUMBER: | CAC | 1503 | of | 2007 |
| APPEAL NUMBER: | EA | 131 | of | 2007 |
| DATE DELIVERED: | 26 August 2008 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Finn J |
| HEARING DATE: | By way of written submissions |
LOWER COURT JURISDICTION: | Federal Magistrates Court |
LOWER COURT JUDGMENT DATE: | 7 September 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 992 [2007] FMCAfam 993 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Nash |
| SOLICITOR FOR THE APPELLANT: | Legal Aid ACT |
| COUNSEL FOR THE 2ND RESPONDENT: | Ms Lyndon (Solicitor) |
| SOLICITOR FOR THE 2ND RESPONDENT: | McGuiness Eley |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Lee (Solicitor) |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Pappas, j. - attorney |
Orders
That the appeal be allowed.
That Orders 3 and 5 made by the Federal Magistrates Court on 7 September 2007 and the orders made by that Court on 23 October 2007 in so far as those orders continue Orders 3 and 5 made on 7 September 2007, be set aside.
In place of the orders set aside, the following orders be made pending further order:
(a) That the child live week-about with the maternal grandmother and paternal grandmother.
(b) That in the week when the child is living with the paternal grandmother, she facilitate the child’s spending time with the father, including, if convenient to the paternal grandmother, for a substantial part of the week.
(c) That in the week when the child is living with the maternal grandmother, she facilitate the child’s spending such time as is possible with the mother, having regard to the fact that the mother lives in Sydney.
IT IS NOTED that publication of this judgment under the pseudonym Harris and Smith and Anor (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: EA 131 of 2007
File Number: CAC 1503 of 2007
| Mr Harris |
Appellant
And
| Ms Smith and Ms A (the maternal grandmother) |
Respondents
REASONS FOR JUDGMENT
Introduction
On 3 April 2008 I ordered that an appeal by the father against orders made by Neville FM on 7 September and 23 October 2007 (which provided for the father’s nine year old son to live on a week-about basis with his paternal grandmother and maternal grandmother until further order) be stood over for further consideration pending further submissions from all parties. The appeal had been heard by me on 27 March 2008 (as a single judge pursuant to a direction of the Chief Justice given under s 94AAA(3) of the Family Law Act 1975 (Cth)).
In reasons for judgment also delivered on 3 April 2008, I had concluded that there was substance in the father’s grounds of appeal. In the event that I found substance in the appeal, the parties had sought that I should re-exercise the discretion in relation to the child’s interim living arrangements (rather than remit the matter for a further interim hearing in the Federal Magistrates Court).
It was therefore necessary for the parties to make further written submissions directed to such a re-exercise of the discretion. The submissions were to address briefly the matters referred to in paragraph 82 of the decision of the Full Court in Goode and Goode (2006) FLC 93-286, and where a particular finding was sought by any party, there was to be reference to uncontroversial material in the affidavits filed in the proceedings before the Federal Magistrate which would support such a finding (see paragraph 45 of the reasons for judgment of 3 April 2008).
I also provided a program for the preparation of such submissions by the various parties to these proceedings, being the child’s father, his mother, his maternal grandmother and the Independent Children’s Lawyer. The paternal grandmother was also to be given the opportunity to be heard given that she is affected by the Federal Magistrate’s orders.
Initially submissions were to be prepared by the appellant father (with the paternal grandmother being given the opportunity to endorse or otherwise comment on the father’s submissions), with such submissions then being served on the respondent maternal grandmother, the mother and the Independent Children’s Lawyer. The maternal grandmother was then to prepare submissions in response to the father’s submissions (with the child’s mother being given the opportunity to endorse or otherwise comment on the maternal grandmother’s submissions) with submissions then being served on the father, the paternal grandmother and the Independent Children’s Lawyer. The Independent Children’s Lawyer was then to prepare submissions and serve them on all other parties. Finally, the father was to have the opportunity to prepare submissions in reply. The father’s solicitors were then to forward all submissions to my Associate.
In the event, the father’s solicitor sent to the Federal Magistrates Court at Canberra on 28 May 2008, submissions on behalf of the father dated 8 April 2008 (but without any endorsement from the paternal grandmother); submissions on behalf of the maternal grandmother (but without any endorsement from the mother); and submissions (apparently undated) from the Independent Children’s Lawyer. These submissions ultimately found their way to my Chambers.
Enquiries made on 25 June 2008 by my Associate of the solicitor for the father indicated that it was not proposed to submit any reply by the father to the submissions of the maternal grandmother or the Independent Children’s Lawyer.
Given that the interests of the father and the paternal grandmother on the one hand and the interests of the maternal grandmother and the mother on the other would seem to be largely identical, I can only assume that the positions of the paternal grandmother and of the mother (both of whom are unrepresented at this stage of the proceedings) have been adequately represented by the submissions made, respectively, on behalf of the father and on behalf of the maternal grandmother.
Before referring to the content of the further submissions, I will provide a brief summary of the living arrangements for the child up to the time of the proceedings before Neville FM. A fuller background history is contained in my reasons for judgment of 3 April 2008 which should be read in conjunction with these reasons.
Background history
The child’s parents separated when he was about three. During the subsequent six years he lived with his father in Canberra, but spent a considerable amount of time with his maternal grandmother who also lives in Canberra. The maternal grandmother facilitated visits by the child to his mother who now lives in Sydney.
During the July 2007 school holidays, the child went to stay with his mother. She did not return him to Canberra at the end of the holidays, apparently for the reason that the child said he was scared to return to the father’s care.
The father then instituted proceedings in the Federal Magistrates Court for orders for the return of the child and for interim and final orders providing for the child to live with him and to spend time with the mother supervised by the maternal grandmother.
On 7 September 2007 at a hearing before Neville FM at which both parents were represented, orders were made for the maternal grandmother to be joined as a party to the proceedings, for the return of the child to Canberra by 14 September 2007, and pending further order, for the child to live week-about with each grandmother but to spend time with each parent as facilitated by the respective grandmother.
At a further hearing on 23 October 2007 at which both parents were again represented and an Independent Children’s Lawyer appeared, his Honour continued his orders for the week-about living arrangement with both grandmothers and for “facilitated” time with both parents. These are the orders which are the subject of the present appeal.
I mention also by way of background that when I heard the appeal in March this year, it was anticipated that there would be a final hearing of the proceedings concerning the child’s living arrangements in mid June this year (2008). However, in the letter from the father’s solicitors sending the further submissions to the Court, it was stated that the final hearing had now been put over to 18-19 September 2008 on an “over-list” basis.
Re-determination of the interim living arrangements for the child
The legal representatives for the appellant father and respondent maternal grandmother can be seen as having endeavoured in their further submissions to follow the pathway set out in Goode (supra) for the determination of interim parenting matters. I will also endeavour in these reasons to follow that pathway, at least so far as it is possible on the limited material available to me.
The present situation of the child
Before considering the competing proposals of the parties, and thus the issues currently in dispute, it will be useful to identify the present arrangements for the child as they emerge from the submissions of the father and the maternal grandmother.
The child was apparently returned to Canberra on or about 7 September 2007. He has lived week-about with each grandmother since then.
In the weeks in which he lives with his paternal grandmother, his father sees him every day after school at the father’s house and (at least according to the father) cares for him if the grandmother is not available. It is unclear how much time the child spends with his mother in the weeks when he is with his maternal grandmother, particularly since it appears that the mother continues to live and work in Sydney.
It is stated in the father’s submissions that the child attends primary school, but that “he has been unsettled at school since September 2007 and is having difficulties concentrating”. In her submissions, the maternal grandmother appears to dispute that the child is having difficulties at school. She maintains that he “is happy and content” and “loves to go to school”.
Given this apparent dispute, I am not in a position to make any determination about the child’s attitude to, or performance at, school.
I have not been provided with any updating material concerning the relative locations of the homes of either grandmother or of the father, and thus I cannot make an assessment of any logistical difficulties or advantages which the child might experience in attending school from different residences each week or in visiting his father after school or living with his father.
The competing proposals and issues in dispute
It is the father’s case that there is no reason on the evidence why the child should not now be returned to live with him as was the situation for almost six years after the parents’ separation.
The father also proposes that the child should spend time with his mother (who, as I have said, lives and works in Sydney) from 4pm Friday to 6pm Sunday each alternate weekend during school terms and for half of the school holidays.
I mention here that, as I understand it, such a formal arrangement for the child to spend alternate weekends with his mother would be a new feature in the arrangements for the child.
Further, it is not clear to me why on the father’s proposals, the maternal grandmother, who up until this time has played a significant part in the child’s life, including facilitating “contact” with his mother, would no longer have any formal (in the sense of court-ordered) involvement. There may well be good reasons for excluding the maternal grandmother at this stage, but they have not been explained to me.
For her part the maternal grandmother seeks that the orders made by the Federal Magistrate whereby the child lives week-about with each grandmother and spends time with each parent as arranged by the relevant grandmother, remain in place.
It is the maternal grandmother’s case that pending the final hearing of the parenting proceedings it would not be in the child’s best interests to change the arrangements put in place by the Federal Magistrate. In support of her case she relies on her assertion that the current arrangements are not too far removed from the arrangements in place between the father and the maternal grandmother prior to the orders of 7 September 2007, and also on the fact that the father has not taken the opportunity of the further submissions, to inform or update this Court regarding certain criminal proceedings which he is facing in the Supreme Court; she therefore submits that the court would have some concerns about the safety of the child while in the father’s care.
The Independent Children’s Lawyers seeks orders that the child live with the father, but spend time each weekend with the maternal grandmother, during which time he would spend time with the mother. It would seem from the submissions of the Independent Children’s Lawyer that the reason why he seeks these orders is that they would largely accord with the arrangements in place for the child prior to mid 2007. It is submitted by the Independent Children’s Lawyer that there is no evidence of abuse or neglect of the child by the father in the years during which the child lived with the father.
The best interests of the child: s 60CA and s 60CC of the Family Law Act 1975 (Cth)
Section 60CA of the Family Law Act 1975 (Cth) (the Act) provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(1) then provides that in determining what is in a child’s best interests, the court must consider the matters set out in s 60CC(2) and s 60CC(3). I will now endeavour to make findings, so far as I am able on the limited material before me, in relation to the matters in those sub-sections, which are categorised, respectively, as “primary considerations” and “additional considerations”.
s 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
The father asserts in his submissions that the child has a good relationship with both parents. This assertion is not denied by the maternal grandmother. Thus my finding is that he has a good relationship with both parents.
s 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The maternal grandmother submits that there is sufficient evidence to find that on an interim basis there is a need to protect the child from harm or exposure to abuse or family violence, while the father submits that there is not sufficient evidence to support such a finding. The father is supported in this submission by the Independent Children’s Lawyer. On balance I would agree with the father and the Independent Children’s Lawyer that there is not sufficient uncontested evidence to support a finding that at this interim stage there is a need to protect this child from harm or exposure to abuse or violence. I note in passing that the maternal grandmother does not seek to prevent the child spending time with his father (albeit as arranged by the paternal grandmother).
s 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child has expressed a wish to a Family Consultant to live with his mother. But none of the competing proposals would achieve this outcome for him, although all would allow him time with his mother.
s 60CC(3)(b) the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child)
It is agreed and I therefore am able to find that the child has a good or close relationship with both his parents. It is also agreed that he has a good relationship with both his grandmothers, and I can therefore so find.
s 60CC(3)(c) 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
In relation to this matter, the father seeks to rely on the fact that the mother withheld the child from the father in mid-2007. But without knowing much more about that event, I am not prepared to draw any conclusion from it. There is nothing in the material to suggest that the father would not facilitate the child’s relationship with his mother. Indeed the history of the matter and the father’s proposal for the child now to spend regular defined time with the mother indicate to the contrary.
s 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
In relation to this matter, the father relies on the disruption for the child under the present arrangement of having to move house each week, while the maternal grandmother submits that a change from the present week-about arrangement will be disruptive for him. The Independent Children’s Lawyer submits that the effect on the child of a change from the current week-about arrangement is unknown. As in most interim parenting decisions, it is impossible to predict what will be the outcome of the final proceedings. It is particularly difficult in this case where it is not clear to me what will be the proposals to be considered at the final hearing, or indeed even the precise parties (at least on the mother’s side) to those proceedings. In these circumstances there is much to be said for maintaining the present arrangement, thereby avoiding unnecessary disruption to the child. In other words, if I cannot be certain that there will be final orders for the child to live with the father, it could well be disruptive for the child to move him back to the father in circumstances where he may be moved to some other home or homes as a result of a final hearing. There is also the consideration that on the father’s proposal, the orders would provide for alternate weekend (and half school holiday) time with the mother with no provision for a role for the maternal grandmother; this would be a significant change for the child, particularly on an interim basis.
s 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
I have not been referred to any evidence of any practical difficulties for the child in spending time with either of his parents. It should, of course, be remembered that on all of the competing proposals, the child will live in Canberra, apparently with his mother remaining in Sydney. However, under the present arrangement, and also the arrangements prior to July 2007, the child has been able to see his mother even though she lives in Sydney.
s 60CC(3)(f) the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
It is important to observe that there was apparently no complaint or criticism regarding the father’s capacity to care for the child during the six year period prior to July 2007. But, similarly, no complaint or criticism is apparently made by the father regarding either grandmother’s capacity to care for the child, and indeed it seems that prior to these proceedings, the father was prepared to involve the maternal grandmother extensively in the child’s care. The mother’s capacity to provide for the child in the various ways in question is unknown, but it appears that she has not for many years had the same level of involvement in his care as the father or either grandmother.
s 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
These matters are not relevant.
s 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right
These matters are not relevant.
s 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
As already observed, there was apparently no challenge to the father’s demonstrated attitude to the child or to his parental responsibilities prior to July 2007. The mother’s attitudes to the child and to her parental responsibilities are far from clear.
s 60CC(3)(j) any family violence involving the child or a member of the child’s family
As already indicated the necessary evidence is not available to allow a finding to be made about this matter.
s 60CC(3)(k) any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person
These matters have no apparent relevance.
s 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In this case there are to be final proceedings.
Before reaching a conclusion as to what interim arrangements would be in the child’s best interests having regard to the matters in s 60CC, I will refer briefly to certain other provisions of the Act.
Other provisions to be considered according to Goode
The pathway suggested in Goode (supra) requires that following a consideration of the s 60CC matters, a court determining an interim parenting case should next turn its attention to the application of the presumption in s 61DA, being that it is in the best interests of a child for the child’s parents to have equal shared responsibility for the child. In cases where the parents are to have equal shared parental responsibility, the court is then required under s 65DAA to consider whether it would be in the child’s best interests to spend equal time with each parent (if reasonably practicable), and if not, whether it would be in the child’s best interests to spend substantial and significant time with each parent (if it is reasonably practical).
Neither the submissions of the maternal grandmother nor of the Independent Children’s Lawyer referred to the presumption contained in s 61DA.
However, in the submissions on behalf of the father, it was asserted (albeit in the context of s 60CC(3)(j)) that “the presumption of shared parental responsibility applies and there is no evidence at this stage to rebut it”. It was then further submitted (in the context of s 60CC(3)(m)) that equal time is not practical because the mother lives in Sydney, but that the father’s proposal would allow the child to spend as much significant time with the mother as her living and working arrangements permit.
Thus, it would appear that the father seeks to rely on the presumption contained in s 61DA and the matters in s 65DAA which arise as a consequence of the presumption to support his proposal that the child live with him and spend time on alternate weekends with his mother.
In the absence of any argument before me as to how the presumption in s 61DA and the consequences of its application contained in s 65DAA, operate in a case where the dispute is between one parent and a third party, it would not be appropriate for me to express any view on these matters, except to say that I consider it appropriate in this case to hold that pursuant to s 61DA(3), it is not appropriate in the circumstances of this interim case, to apply the presumption.
This conclusion would, in my view, mean that both parents of this child retain the parental responsibility for the child which is vested in them by s 61C of the Act.
Conclusion
It will have been seen that the conclusions which I have been able to reach in relation to the s 60CC matters and which have direct relevance to the competing proposals are that:
the child has a good relationship with both parents and both grandmothers;
there is no criticism of the capacity of the father or either grandmother to care and provide for the child; similarly there is no challenge to the father’s attitude to the responsibilities of parenthood; the mother’s capacities and attitudes in relation to the care of the child are unknown;
there is not sufficient evidence to find that the child would be at risk of harm with the father;
the effect on the child of a change at this time in his living arrangements which have been in place since September last year is unknown, but there must be a concern regarding the disruption to him if those arrangements were to be changed now only to be changed again after the final hearing; further there must be some concern regarding the impact on him if the significant involvement in his life of his maternal grandmother was to be substantially reduced.
While the decision is clearly a finely balanced one, I consider that on balance the child’s best interests would be likely to be best served by maintaining, until the proceedings are finally heard, the present week-about living arrangement with each grandmother rather than reverting to the long-standing arrangement which existed prior to mid 2007 whereby the child lived with the father.
I am conscious, however, in reaching this decision that I do not have any indication from the paternal grandmother that she is willing to continue the week-about arrangement. But I have been told that when in her care, the child spends considerable time with his father. If the paternal grandmother is unwilling to have the child live with her for as much of the time as he has under the Federal Magistrate’s order, then presumably she can arrange for the child to spend more of the time when the child would otherwise be with her with the father, and my orders will reflect this possibility. As I said earlier, the evidence at this stage does not indicate that the child would be at risk with the father.
I would hope that any arrangements made between the paternal grandmother and the father are made with a view to minimising disruption for the child bearing in mind that a final decision concerning his living arrangements is yet to be made.
A particular advantage which I see in maintaining the present week-about arrangement (even if in practice it involves the child spending more time with his father in the week when he lives with his paternal grandmother) is that it will continue the significant involvement of the maternal grandmother in the child’s life. She in turn can facilitate the child’s relationship with his mother.
As I have indicated earlier, the orders sought by the father are a cause of some concern to me in that they would involve moving on an interim basis to the apparently untried arrangement of the child spending each alternate weekend (and half school holidays) with the mother – whose views on this arrangement are also unknown – and with no formal provision for time with the maternal grandmother, who according to all accounts has to date been a significant part of his life.
My orders will therefore be that pending further order:
the child live week-about with the maternal grandmother and paternal grandmother;
in the week when the child is living with the paternal grandmother, she facilitate the child’s spending time with the father, including, if convenient to the paternal grandmother, for a substantial part of the week;
in the week when the child is living with the maternal grandmother, she facilitate the child’s spending such time with the mother as is possible having regard to the fact that the mother lives in Sydney;
Given that my orders are in slightly different terms to those of Neville FM it is necessary that I allow the appeal and set aside his Honour’s orders, replacing them with my own.
Costs
I have not received so far any submissions on costs in relation to the appeal, but given its success, the parties who were before me would be entitled to apply for certificates under the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Finn
Associate:
Date: 26.08.08
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