HEGARTY & NADES

[2017] FamCA 885

FAMILY COURT OF AUSTRALIA

HEGARTY & NADES [2017] FamCA 885

FAMILY LAW – CHILDREN – Parenting orders – whether the mother presents an unacceptable risk to the child – whether the mother can maintain her relationship with the child –no recent incidents of family violence – mother has made reasonable attempts to spend time with the child – order made for gradual increase in unsupervised time between the child and the mother.

Family Law Act 1975 (Cth) Pt VII, ss 4AM, 60, 61, 65

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
M & M (1988) 166 CLR 69
SCVG & KLD (2014) FLC 93-582

APPLICANT: Mr Hegarty

RESPONDENT: Mr Nades

FILE NUMBER: BRC 2649 of 2010

DATE DELIVERED: 19 October 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 19 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cooper

SOLICITOR FOR THE APPLICANT: Beaudesert Legal

THE RESPONDENT: Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Firth

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Dooley Solicitors

it is ordered, on a final basis, by consent

1. That B (“the child”) born … 2008 have such telephone communication with the Mother as he wishes to have and the Father will encourage and facilitate him to do so.

2. That neither parent will expose the child to arguments or family violence.

3. That the Mother will not physically discipline the child or expose the child to the Mother physically disciplining other children in the Mother’s care.

4. That neither parent denigrate the other parent to the child, or in hearing of the child, and will not discuss with the child these proceedings or the circumstances of the child's removal from the mother’s care or allow other persons to do so.

5. That neither parent will expose the child to persons under the influence of illicit drugs or intoxicated by alcohol.

6. That this order is sufficient authority for the child's school to give the Mother information about the child's education progress and other school related activities and supply to the Mother copies of school reports, photographs, certificates and awards obtained by the child at the Mother’s cost, if any.

7. That each parent is to immediately address any major illness or accident or injury and then forthwith notify the other parent within no more than two (2) hours of any medical emergency involving the child that occurs whilst he is in the parent’s respective care. 

8. That this order is sufficient authority for any treating medical practitioner, specialist or dentist to release the child's medical information to the Mother at the Mother's cost, if any.

9. That the parents keep each other informed by text or email of his/her current residential address and all contact telephone numbers and of any change thereto within forty-eight (48) hours of any such change.

IT IS FURTHER ORDERED, ON A FINAL BASIS:

1. That the child spend time with the Mother:-

   (a)For a period of 6 months, and for not less than 12 visits, each alternate Saturday from 9:00am until 5:00pm, commencing Saturday 21 October 2017;

   (b)That from the conclusion of paragraph 10(a), for a period of 6 months, and no less than 12 visits, each alternate weekend from 5:00pm Friday until 12:00pm Saturday;

   (c)That from the conclusion of paragraph 10(b), for a period of 6 months, and no less than 12 visits, each alternate weekend from 9:00am Saturday until 12:00pm Sunday; and

   (d)That from the conclusion of paragraph 10(c) each alternate weekend from 9:00am Saturday until 5:00pm Sunday, or until 5pm on Monday, if the Monday is a public holiday.

School Holidays

1. Until the child is 13 years of age, and once the child’s time with the Mother has progressed to paragraph 10(d) herein, the child spend time with the Mother during school holiday periods, as follows:

   (a)During the Easter, July/July and September/October school holiday period, from 9am Friday until 5pm Monday in the second weekend of the school holiday period.

   (b)For a total of 2 block periods during the Christmas school holiday period from 9am Friday until 5pm Monday, with the Father to advise the Mother, in writing, at least 30 days prior to the Christmas school holiday period of the dates of the 2 block periods. 

2. Once the child turns 13, the child spend block school holiday time as follows:

   (a)For a period of one (1) week with the Mother in the Easter, June/July and September/October school holiday periods; and

   (b)For two (2), one (1) week periods, during the Christmas school holiday periods, with such weeks to be agreed between the parents, but failing agreement, the first and last week of the Christmas school holiday period. 

3. That during the school holiday time as provided for in paragraphs 11 and 12, the time pursuant to paragraph 10 be suspended.

Mother’s Day

1. That in 2018 the child spend time with the Mother on Mother’s Day from 9:00 am until 5:00 pm.

2. That from 2019 the child spend time with the Mother on Mother’s Day from 9:00 am Saturday until 5:00 pm Sunday, with the weekend to be an additional weekend, if it falls on a weekend that the child would not ordinarily be spending time with the Mother.

Child’s Birthday

1. That if the child’s birthday falls on a weekend, and it is not a weekend that the child ordinarily spends with the Mother, the child spend time with the Mother on his birthday from 11:00am until 5:00pm.

Mother’s Birthday

1. If the Mother’s birthday falls on a weekend, and it is not a weekend that the child ordinarily spends with the Mother, the child spend time with the Mother on her birthday from 9:00am until 5:00pm.

Christmas

1. In 2017, the child spend time with the Mother, for Christmas, from 11am until 5pm Christmas Day.

2. From 2018, the child spend time with the Mother for Christmas:

   (a)In even numbered years, from 5pm Christmas Eve until 12pm Christmas Day;

   (b)In odd numbered years, 12pm on Christmas Day until 5pm on Boxing Day.

Changeovers

1. That all changeovers be supervised, and occur through Ms C, with the parties to share the cost equally.

2. That only if Ms C is not available for a changeover, changeovers occur at Service Station, Suburb D, with the Father to be at liberty to nominate another person to attend the changeover on his behalf, and advise the Mother in advance of the changeover the person he had nominated to attend the changeover.

Other Orders

1. That if the Mother fails to attend three (3) visits in a row with the child, without providing any advance notice (less than 24 hours notice) to the Father, in writing, save for in the case of an emergency, that this order as to time between the Mother and the child herein be discharged.

2. Once time between the Mother and the child progresses to overnight time, the parties do all acts and things necessary to ensure the child attends upon Ms E for the purpose of providing support to the child, and to provide a level of comfort to the Father in regards to how time is progressing.  That the cost of such appointment be equally shared by the parties. 

3. That the Independent Children's Lawyer be discharged.

NOTATION

This order is to be read in conjunction with the final orders made by the Honourable Justice Carew, in the Family Court of Australia, on 20 April 2016, which provide that the Father have sole parental responsibility for the child, and that the child live with the Father. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hegarty & Nades has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2649 of 2010

Mr Hegarty

Applicant

And

Ms Nades

Respondent

REASONS FOR EXTEMPORE JUDGMENT

1. The parties to this dispute are Mr Hegarty, whom I will refer to in this judgment as (“the father”), and Ms Nades, whom I will refer to in the judgment as (“the mother”).  The dispute concerns what time their son B (the child) born in 2008 should spend with his mother.  The parties are in agreement that the child should commence to spend unsupervised time with his mother and that is supported by the Independent Children’s Lawyer. 

2. The precise proposals of each of the parties are set out in the material as follows:

   a)the Independent Children’s Lawyer’s proposal has been marked as exhibit 2; 

   b)the mother’s proposal has been marked as exhibit 3, and in addition to the time set out in paragraph 2, the mother seeks alternate weekend time from Friday afternoon until Sunday afternoon, to commence after the completion of the time in paragraphs 1 and 2; and 

   c)the father adopts the position of the Independent Children’s Lawyer, save for paragraphs 1(a) and 1(b) of exhibit 2, in which the father proposes that the Saturday day time occur for a period of six months and that the time pursuant to paragraph 1(b) also be for a period of six months and no less than 12 visits.

3. Each of the parties in their proposal makes provision for school holidays.  Again, the Independent Children’s Lawyer and the father are proposing a much shorter regime than the mother, who is seeking that the child spend time with her for half of school holidays after that initial period of unsupervised time. 

Background facts

1. The mother and father had a brief relationship which commenced on 5 February 2007 and ended on 12 October 2008.  The parties have one child together, the B, born in 2008.  The child is the father’s only child.  The mother has four other children, namely F, born in 1997, G, born in 2000, H, born in 2001 and J, born in 2010.  F’s father is Mr K.  G and H’s father is a Mr L, and J’s father is Mr M.

2. The father has recently re-partnered with a woman by the name of Ms N.  The mother commenced a relationship with Mr M in 2008 and continues to live with him. 

3. When F was eight months old, he was initially placed in the care of the Department of Communities, Child Safety and Disability Services (“the Department”) as a result of the mother having assaulted him.  The circumstances of the assault seemed to arise when the mother, out of frustration, hit F in the face and caused bruising.  The mother subsequently went before the court but no conviction was recorded. However, the mother was placed on two years’ probation.

4. The records seem to be somewhat unclear about what happened to F immediately thereafter.  There seemed to be some continuing involvement by the Department but the mother maintains that F remained in her care until she and Mr K separated. Upon separation the mother left Australia for what was to be a brief period in 1999 and asked Mr K to look after F.  In any event, F has remained with his father since that time. 

5. G and H also have a history of being placed in to the care of the Department and were in foster placements for a number of years.  J too was placed, for a period after his birth, in the care of the Department, but was subsequently returned to his mother.  G and H returned to live with the mother in 2012 where they remain.  They were interviewed for the purposes of the most recent family report.

6. All indications are that G and H are developing a relationship with the child, as they have attended some of the supervised visits and they are progressing well at school. 

7. The relationship between the mother and father ended as a result of a violent assault committed on the father by a Mr O at the home where the mother and father were then living.  The mother was implicated in the assault and ultimately pleaded guilty to a charge of accessory after the fact and sentenced to nine months’ imprisonment, which was immediately suspended.

8. The father commenced these proceedings in 2010 and there have now been five family reports prepared in this matter and a psychiatric assessment of the mother.  It is common ground that the mother has spent very little time with the child since 2008 and had seen him during the period from 2010 to 2013 on only 10 to 12 occasions.  There was then no time spent between the child and his mother from September 2014 until 30 March 2016 when, I believe, the child saw his mother for the purposes of the preparation of the family report.

9. The matter came before me for trial on 20 April 2016 and proceeded to oral evidence, but the parties entered in to a final consent order that made provision for the child to live with his father and for the father to have sole parental responsibility.  The order also provided for an interim order for a re-introduction of supervised time between the child and his mother.  For some unexplained reason, that supervised time did not commence until 18 October 2016. 

10. The child spent time with his mother in a supervised setting each fortnight until March 2017 when the parties seemed to have agreed that the supervision would move from the contact centre to a private arrangement with Ms C.  Those visits occurred on a fortnightly basis, from 21 May 2017 until September 2017, although there were a couple of cancellations by either the mother or the father. 

11. There has been an interruption to time since September 2017 and the mother has not spent time with the child since then.  The mother explained that this was due to a financial reason, but the evidence upon which she relies would seem to indicate that Ms C was prepared to facilitate the mother spending time with the child, at least on some occasions, without moneys owing to her being paid.

12. That is an issue because historically there have been a number of occasions when the child has been taken to the contact centre by the father - when it was still at a contact centre – only to be returned to his father when the mother did not attend. 

13. All of the evidence suggests that the child enjoys seeing his mother and that they have developed a relationship.  On the occasions that the child’s half-siblings have attended, likewise the observations would seem to indicate a developing relationship between them. 

    There is some evidence of violence in the relationship between the mother and Mr M.  Mr M was the respondent in a protection order taken out against him on 2 October 2009, as a result of a violent incident that is described in the subpoenaed material that has been tendered.  The description recorded in those records would indicate an incident of significant violence between the mother and Mr M.  The incident was reported by neighbours and according to the records the mother was calling out that Mr M was attempting to kill her.  The mother reported to the police that she had asked Mr M to get out of her house, Mr M had refused to go and that he had physically assaulted her.

14. At the time, the mother was five months’ pregnant.  The mother also reported that she was kicked in the stomach.  The mother reported that neighbours called the police and it is common ground that Mr M was arrested and removed from the property.  The mother was observed to have a number of injuries including cuts and scratches.  It appears that Mr M, while taking issue with the allegations made against him, initially did not contest the protection order.  While a protection order was made, it is unclear whether or not it remained in force for two years or, as the mother now informs the Court, was withdrawn on application by herself some few days after the alleged incident.  There seems to have been another altercation in 2011 involving Mr M and the mother, to which police attended.

15. What concerns me about these two incidents is what seems to be a propensity of the mother to minimise the violence between herself and Mr M. 

16. However, I note that the Independent Children’s Lawyer subpoenaed the records from the Queensland Police Service to ascertain whether or not there have been any further attendances upon the home of Mr M and the mother, and it would seem that there has not and there has not been any further protection order made.

17. There was an incident involving neighbours of the mother and Mr M in 2016 that involved police.  The mother told Ms P, the report writer, about that incident in March 2016 and she conceded that an incident had occurred and that she was concerned for her family’s safety from the neighbours.  The mother said that she intended to approach the Department of Housing to see if she could obtain a different home in a different area and the evidence before me would indicate that she was successful in her application to the Department of Housing. Therefore, the neighbours are no longer an issue.

18. While there are extremely concerning issues about the mother’s violence, either personally or involvement with others, and what may very well be her minimising current violence in her household, I am urged by both the Independent Children’s Lawyer and the father to accept, on the basis that there is no evidence to the contrary, that the mother’s household is not currently, and has not been for quite some time, a place where the child would be exposed to violence.  It is urged upon me that I should find that if the child were to spend unsupervised time with his mother in the mother’s household, there is no unacceptable risk of harm.

19. The affidavit of Mr M, belatedly relied upon by the mother from April 2016 and her own submissions would indicate that the mother has made great attempts to put in place strategies to protect her children, and the child if he is to have unsupervised time with the mother, from any exposure to violence between herself and Mr M.  What Mr M does say in his affidavit is quite complimentary of the mother.  He unfortunately did not involve himself in the most recent family report, but he was seen for the purposes of the one in April of 2016.

How parenting applications are determined

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer and of course the Court.[1]

   [1] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637

2. The Court is not required to make findings of fact on every factual dispute raised by the parties.[2]

   [2] Baghti & Baghti [2015] FamCAFC 71

3. The objects of the Act are set out in s 60B(1) and are to ensure that the best interests of children are met by:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)parents should agree about the future parenting of their children;

   e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

2. Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

4. ‘Abuse’ in relation to a child, is defined in s 4 of the Act and means an assault (including a sexual assault) or involving a child in a sexual activity or causing the child to suffer serious psychological harm or serious neglect.

5. ‘Family violence’ is defined in s 4AB of the Act and means violent threatening or other behaviour that coerces or controls a member of the person’s family or causes that person to be fearful. Examples of such behaviour are set out in the section.

6. Section 61C provides that each parent has parental responsibility for a child subject to any order made by the Court.

7. Section 61DA provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

8. Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

9. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

10. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[3]

    [3] Banks & Banks (2015) FLC 93-637

11. In cases where it is suggested that a child will be exposed to an unacceptable risk of harm, the Court is required to identify the nature of the harm and assess its magnitude and the extent to which the risk can be ameliorated by an order such as supervision.[4] 

    [4] M & M (1988) 166 CLR 69

Findings and conclusions

1. The particular issues in this case are:

   a)the mother’s history of violence;

   b)the mother’s relationship with Mr M; and

   c)the mother’s history of unreliability in maintaining her relationship with the child.

2. As I have already made an order by consent that the father has sole parental responsibility, it is not a requirement to consider equal time or substantial and significant time between the child and his mother.  However, I will consider what I regard to be in the child’s best interest. 

3. I have considered the background facts and the position of each of the parties and am satisfied that there is no current unacceptable risk of the child spending unsupervised time with the mother.  I am also satisfied that the mother has made significant attempts to maintain her relationship with the child and that the issue relating to the most recent failure to attend is unlikely to be something that will hinder her relationship with the child in the future. 

4. Turning then to consider the competing positions of the parties, given the history to which I have referred, and although I have made a finding that there is no unacceptable risk, I nevertheless cannot overlook the seriousness of the history of violence in which the mother has been involved and her historic, at least, unreliability to maintain her relationship with the child.  While this latest interruption in the time may not be an indication of a likelihood of the mother’s failure to attend in the future, it does support a need to progress slowly and putting in place a self-executing order in the event that the mother fails to attend particularly in circumstances where the parties have been involved in litigation for so many years.  The impact of that on the child is a matter that I am bound to take into account under Division 12A.

5. I propose to adopt paragraph 1 of the orders sought by the Independent Children’s Lawyer as amended by the father, which will provide for the child to spend time with his mother on an unsupervised basis each alternate Saturday for a period of six months and for not less than 12 visits.  Thereafter, for a further six months and no less than 12 visits, each alternate weekend from 5:00pm Friday until 12:00pm Saturday.  I propose to make the order in 1(c) and 1(d) of the proposal made by the Independent Children’s Lawyer.  I note that both of those are supported by the father.

6. In relation to school holidays, again I accept that the proposal put forward by the Independent Children’s Lawyer, and adopted by the father, best meets the child’s needs, at least for a number of the years.  The alternate weekend time will progress to Saturday at 9:00am until 5:00pm Sunday, when the child is about 11.  By the time the child is 13 he would be able to spend block periods of a week with his mother.  The reason I provide for that is that there are, of course, other siblings in the household and whilst G may, in fact, be pursuing her studies elsewhere, and indeed H by then may have other activities that take him away from the home, J is another half-sibling and it is important, in my view, for those children to spend more time together, particularly during school holidays.

7. So there would be an additional paragraph 2(c) which would increase the time from the time that the child turns 13 to block periods of one week during each of the June/July, September/October school holiday periods and for two block periods of one week during the Christmas school holidays at times – for weeks as agreed, and failing agreement, in the first and last week. 

   I consider there is some merit in the suggestion of the mother that the child have an opportunity to speak with the report writer, Ms E.  The mother’s reason for that is to provide a level of comfort for the father and considering what he has been through with the violent assault upon him in 2008 and the mother’s involvement in that, I consider it to be a sensible suggestion by the mother.  If Ms P thinks it is a good idea to see the parties and the child, then I will leave that up to her.  It is not the intention that this would result in any report or any recommendation by Ms P, but merely as a means of providing some support to the child and some comfort to the father, going forward.

8. I propose to include an order that the visit with Ms P occur after the time progresses to overnight. Any costs associated with that consultation will be one to be met by the parties equally. 

9. I otherwise propose to make orders in the terms of the balance of the minute of orders sought by the Independent Children’s Lawyer, being paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11.

10. I intend to include the provision that if the mother fails to attend three visits in a row with the child without providing 24 hours’ notice to the father in writing, save for in the case of an emergency, that all orders as to time between the mother and child herein be discharged.  The reason that I am making that order, as indicated earlier, is that there is evidence before me that the child has been put in a situation in the past where he has attended, been expecting to see his mother and she has not attended.  I also make the order so that the parties do not have to come back to court.

11. I will also make an order that the Independent Children’s Lawyer be discharged.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 19 October 2017.

Associate: 

Date:  6 November 2017.