Henderson and Harry
[2010] FMCAfam 624
•6 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HENDERSON & HARRY | [2010] FMCAfam 624 |
| FAMILY LAW – Parenting – interim – sole parental responsibility sought by father – recovery order sought by mother. |
| Family Law Act 1975, ss.11F, 11C, 60CA, 60CC |
| Rice & Asplund [1979] FLC 90-725 Goode & Goode [2006] FLC 93-286 |
| Applicant: | MR HENDERSON |
| Respondent: | MS HARRY |
| File Number: | SYC 2380 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 6 May 2010 |
| Date of Last Submission: | 6 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 6 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Sloan |
| Solicitors for the Applicant: | Marsdens Law Group |
| Counsel for the Respondent: | None |
| Solicitors for the Respondent: | Watts Mccray Lawyers |
ORDERS
THE COURT ORDERS THAT:
All extant applications be adjourned for mention in the Duty List of this Court on 8 June 2010 at 9:30am (“the mention hearing”).
The Applicant deliver [V], born [in] 2001, (“the child”) to the maternal grandmother (“the grandmother”) at the grandmother’s residence by 6:00pm on 7 May 2010
Pursuant to s.11F of the Family Law Act 1975, both parties attend a child dispute conference with a family consultant in this Registry on
11 May 2010 at 11:00am; pursuant to s.11C of the Act such conference be reportable; and if considered appropriate by the family consultant, the family consultant meet with the child to ascertain any relevant views or opinions the child may have.
The Applicant have leave to issue and file up to two (2) further subpoenas.
Both parties have leave to request these proceedings be relisted on at least 72 hours notice.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
All existing Parenting Orders remain in full force and effect subject to the following variations:
(a)Commencing 14 May 2010, the child spend time with the father each alternative weekend during school terms from the time that school concludes on Friday, or 3:00pm on Friday if a non-school day, until the time that school commences on Monday, or 9:00am on Monday if a non-school day;
(b)Any changeover occuring on a non-school day occur at a place as agreed between the parties or, failing agreement, the grandmother’s residence;
(c)Subject to these orders, both parties be and are hereby restrained from taking the child to any psychologist, psychiatrist or similar health professional or any other form of counselling or program, including speech therapy, without the express written consent of the other party;
(d)Neither party denigrate the other, or the other party’s family to, or in the presence of, or within hearing of, the child; and
(e)The Respondent cause the child to be re-enrolled and both parties ensure that the child remains enrolled at [M] School.
THE COURT NOTES THAT:
(A)The issue of the child attending a speech therapy program may be reconsidered by the Court at the mention hearing.
(B)Pursuant to sections 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 Henderson & Harry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2380 of 2010
| MR HENDERSON |
Applicant
And
| MS HARRY |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the father, MR HENDERSON (“the father”) who is seeking various parenting orders in relation to the child [V] born [in] 2001 (“[V]”).
More specifically, the father is seeking, among other orders, that:
·he have sole parental responsibility for [V];
·[V] live with him; and
·[V] spend time with the mother for certain defined periods.
The father also seeks these orders on an interim basis and, interestingly, has sought to have those interim orders considered by this Court on an urgent ex parte basis.
The father’s application is supported by:
·his affidavit sworn on 19 April 2010 and filed on 20 April 2010 (“his first affidavit”); and
·his most recent affidavit sworn on 5 May 2010 and filed in Court today, 6 May 2010 (“his second affidavit”).
The father is legally represented by Ms Sloan of Counsel today.
The respondent is Ms Harry (“the mother”) who, in her response filed on 27 April 2010, opposes the orders sought by the father and seeks that the existing orders remain in full force and effect and, more relevant to today’s interim hearing, a recovery order be made in relation to [V] returning him to her care.
The mother relies on her affidavit sworn on 22 April 2010 and filed on 27 April 2010. She is legally represented by her solicitor, Ms Vincent.
Background
The relevant background is contained in the parties’ respective affidavits. There appears common ground that:
·the parties commenced a relationship in May 2000;
·separated in December 2000;
·[V] was born [in] 2001 and he is now aged nine years; and
·[V] was born after their separation.
Both parties have re-partnered since separation. The mother married a Mr H in July 2003 and has four children from that relationship, namely:
i)[W], who is five;
ii)[X], who is three;
iii)[Y], who is two; and
iv)[Z], who was born this year.
The father is in a de facto relationship with a Ms A. I understand there are no children of that household apart from [V].
[V] has been the subject of legal proceedings prior to today. Indeed, it appears that the parenting arrangements that have been operational until at least April 2010 flowed from a decision of Purdy J in 2003.
The most recent parenting orders were made by consent in 2006. In summary they provide for:
·the mother to have sole parental responsibility for [V];
·[V] to live with the mother;
·[V] to spend time with the father on alternate weekends from 6:30pm Friday until 6:00pm Sunday
·[V] to spend time with the father for half the school holidays and other special days;
·[V] to communicate with the father by way of telephone at reasonable times; and
·[V] to be taken to specified medical practitioners.
Issues
There are number of issues in dispute. These include:
·the father’s unilateral decision to withhold [V] from the mother since the last school term holidays;
·the father’s unilateral decision to change [V]’s school;
·whether [V] has special needs that require medical and/or therapeutic treatment; and
·whether [V] is safe in the mother’s home.
At the commencement of today’s proceedings I indicated that the matter would benefit from a child dispute conference, possibly involving [V], and I note that an appointment has been made for that purpose for the parties to attend on 11 May 2010.
I also indicated to the parties that the purpose of today’s interim hearing was only to consider the three most pressing issues in the Court’s view. They are whether [V] should:
i)remain in the father’s full time care, or return to the mother as provided for in the existing orders;
ii)remain in [B] School, a school he only commenced in last week, or should return to [M] School, his school since kindergarten and until the end of the first school term of 2010; and
iii)continue to see a psychologist that the father has been taking him to.
Agreed and Disagreed Facts
As previously mentioned, there are final orders currently in place effecting the parties and their child. I did not ask the parties to address me specifically on issues arising from the Full Court’s decision in Rice & Asplund [1979] FLC 90-725, as to whether any variation of the existing orders will be required. I have formed the view that some changes may be necessary down the track and possibly even today.
The parties agree in relation to the following:
·[V] has primarily lived with the mother since birth;
·[V] has enjoyed a continuous relationship with the father since his birth, albeit assisted by comprehensive Court orders; and
·[V] does have some health related issues arising from his asthma and, I understand, was diagnosed with epilepsy but, on the mother’s evidence, has been seizure free for the last two years.
Apart from the immediate dispute regarding his current residence and school, they disagree about the following:
·whether [V] should remain at [B] School or return to [M] School;
·whether [V] needs a school or a non-school program to deal with alleged speech difficulties that he may have; and
·the involvement of [V]’s stepfather and his stepfather’s brother in changeovers, etcetera, involving [V].
Parties’ submissions
Ms Sloan, for the father, confirmed that the father has enrolled [V] is [B] School, which I understand is a private, secular Islamic school that welcomes students from all members of the community. According to Google maps, it is located about 15.9 kilometres or 30 minutes by car from the father’s residence. The father asserts that the decision to enrol [V] in the school stems from the parties’ disagreement over whether a special program is needed to assist [V] with speech therapy. The father also asserts that [B] School has a program to assist students with speech therapy.
Ms Sloan submitted that the parties’ relationship deteriorated significantly from September 2009 and culminated in [V] being unable to participate in a speech therapy program at [omitted]. As to the school, Ms Sloan submitted that [V] is driven to it by the father and, I assume, by his partner and/or by a school bus provided by the school. She also submitted that it is located about 15 minutes by car although, as I indicated, Google maps seems to dispute this. The father asserts that a school bus is also available close to the mother’s residence and, indeed, a stop is available about 50 metres from her home.
As to [V]’s current living arrangements, the father asserts that [V] is well settled in his home and is enjoying his new school. As to the current orders, the father asserts that there have been issues about compliance by the mother, and the conduct and involvement of the stepfather; in particular, the stepfather’s monitoring of phone calls between the father and [V] and his presence at changeovers. In addition, the father asserts the changeovers have been a very difficult experience for [V].
Ms Vincent, for the mother, asked the Court to restore the existing orders today given, in particular, that the parties agree that the mother has been the primary care giver since [V]’s birth and that, with the exception of the last two weeks, he has been a student at [M] School since kindergarten. The mother did not consent to [V] changing residence, changing schools or attending with a psychologist.
The mother disputes the father’s version of events but makes the point, on the father’s own evidence, that he has acted unilaterally and not in [V]’s best interests. Ms Vincent submits that changing residence without a full investigation by the Court, at this stage cannot be justified on the reasons asserted by the father. In particular, she made the comment, as did the Court, that no notices of risk of abuse, for example, have been filed in this matter.
While the mother acknowledges that [V] has indicated that he would like to stay longer with his father, Ms Vincent asserts that such views are not surprising and can not simply justify a major, unilateral change for a child who is just nine-years-old and has four siblings, one of whom [V] is yet to see. Ms Vincent submits there is no evidence before the Court that [V]’s needs are not being met by the [M] School and further submits that the mother travelling to and from [B] School is not practicable.
Law
The Full Court of the Family Court decision of Goode & Goode [2006] FLC 93-286, guides this Court’s approach to making interim decisions and interim orders in relation to parenting disputes. In paragraph 81 of that decision, 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 such a case. More specifically, this raises the reality that the Court can not fully determine issues of credit today, as the evidence being presented by the parties to the Court is not being tested by cross-examination. That having been said, in paragraph 81 of the Goode decision, the Full Court also said:
“However, the legislative pathway must be followed.”
In other words, the relevant provisions of the Family Law Act 1975 (“the Act”), post the 2006 shared parenting amendments, must be followed in an interim hearing.
It would appear there is considerable animosity between the parties in this case and, no doubt, the history of this matter will be the subject of evidence in cross-examination should a final hearing be needed.
There is no issue of equal shared parental responsibility to determine today. The dispute today is simply limited to the issue as to whether [V] should be returned to the mother and consequently returned to
[M] School, or remain in the father’s care and consequently remain in [B] School. The issue of parental responsibility can be reconsidered following the child dispute conference.
Section 60CA of the Act, provides:
“In deciding whether to make a parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.”
To determine the best interests of [V], the Court must consider the primary considerations or factors set out at s.60CC(2) of the Act and the additional considerations referred to in s.60CC(3) of the Act where relevant.
The primary considerations: section 60CC(2)
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child's parents
The Court is firstly required under s.60CC(2)(a) to consider the benefit to [V] having a meaningful relationship with both of his parents. Let me note that meaningful does not mean equal, but it clearly signifies that both parents should be involved a child and consequently 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 enunciated in the Act. Consequently, the Court will in all likelihood need to give some considerable weight to this factor should a final hearing be needed.
Section 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 Court is required under s.60CC(2)(b) to consider the need to protect [V] from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence.
There is no doubt that it would be in [V]’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 a child like [V] from any physical or psychological harm.
Given the nature of the allegations here, the Court is satisfied there is a need to test the issues as to whether [V] has in any way been psychologically harmed by whoever or whatever statements have been made in [V]’s presence.
Additional considerations: section 60CC(3)
I note that the “views of the child”, while significant, are still subject to a process that is yet to be completed. This is something, no doubt, that the family consultant will be able to assist the Court on if considered appropriate.
As to the “nature of the relationship between [V] and each of his’s parents”, again we have different stories here and the parties’ evidence needs to be tested.
As to the “willingness and ability of each of the parties to encourage a close and continuing relationship between the child and the other parent”, that is a crucial factor here. The father made a unilateral decision to withhold [V] from his mother but, of course, there may be considerations that explain his actions. These issues need to be tested.
The Court can consider the “likely effect of any change in the child’s circumstances”. Clearly there needs to be some change here. The present situation can not continue. We can not have children being spirited off by parents for whatever reason, without a proper examination of the reasons for it. [V] has, until the last few weeks, experienced a pattern of some certainty. It needs to return until the investigation is complete.
As to the “extent to which each of the child’s parents has fulfilled or failed to fulfil their responsibilities as a parent”, again we have different stories here. These stories need to be tested. But that having been said, there are issues of concern raised with [V] being withheld by parents for whatever reason.
Conclusion
Pending further order, the Court is satisfied that [V]’s best interests would be served by the existing Court orders being complied with albeit, with some minor modification. Consequently, there will be orders today that [V] be returned to the mother’s care tomorrow, following the end of school.
This will necessitate the mother contacting [M] School and advising them of [V]’s return to school next Monday. It will also require the father to contact the [B] School and advise them of [V]’s return to [M] School. That is important, because it will enable the schools to talk to each other about [V]’s best needs.
The father’s fortnightly time will recommence from Friday, 14 May 2010.
I am satisfied on the material currently before me, that an order is needed to restrain either party from taking [V] to a psychologist or like professional without the consent of the other party, until the Court considers that such an order is appropriate.
I am also satisfied that changes are needed to the changeover arrangements to avoid [V] being exposed to unnecessary conflict between his parents and their partners. Consequently, changeovers on non-school days will occur at place agreed between the parties or, failing agreement, at the maternal grandmother’s residence and [V] will be collected by his father from [M] School each Friday and returned there each Monday on school days.
As indicated there will be orders today requiring the parties to attend a child dispute conference.
I reserve the right to settle to reasons for this interim decision.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 27 July 2010
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