HENRY & RICHARDSON

[2014] FCCA 1860

FEDERAL CIRCUIT COURT OF AUSTRALIA

HENRY & RICHARDSON [2014] FCCA 1860

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – whether father’s time with child should be supervised – parental responsibility – best interests of the child.

CHILD SUPPORT – Evidence – inadequacy of evidence – where a certificate under Child Support (Registration and Collection) Act 1988 (Cth) was not tendered in evidence.

Legislation:

Child Support (Registration and Collection) Act 1988 (Cth), s.116

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 68L

Applicant: MR HENRY

First Respondent: MS RICHARDSON

File Number: SYC 6933 of 2013

Judgment of: Judge Scarlett

Hearing date: 4 August 2014

Date of Last Submission: 4 August 2014

Delivered at: Sydney

Delivered on: 13 August 2014

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Ms Sproston

Solicitors for the Respondent: Sharon Moss Legal

Independent Children's Lawyer: Ms Connor

Solicitors for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

UNTIL FURTHER ORDER

1. The Respondent Mother is to have sole parental responsibility for the child X born (omitted) 2005.

2. The Mother must inform the Applicant Father in writing of all major long-term decisions made in respect of the child X.

3. The child X is to live with the Mother.

4. The Father is to undertake the Circle of Security parenting program or such other parenting program as the Independent Children’s Lawyer.

5. Upon his completion of the program referred to in the immediately preceding Order, the Father is to provide to the Independent Children’s Lawyer and to the Mother’s solicitor a written copy of any certificate or other document certifying his completion of the program.

6. Upon his compliance with the requirements of the two immediately preceding Orders the Father is to spend time with the child X for a period of two (2) hours each alternate weekend, such time to be supervised by the (omitted) Children's Contact Centre at (omitted) or by a private supervision agency at the father’s expense.

7. The parties are to communicate with each other by text message about matters relevant to the care, welfare and development of the child X.

IT IS NOTED that publication of this judgment under the pseudonym Henry & Richardson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6933 of 2013

MR HENRY

Applicant

And

MS RICHARDSON

First Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for parenting orders by the Father of a boy named X, who is nearly 9 years old. The child lives with his mother, the Respondent and is not currently spending time with his father. The Father seeks interim orders that the child spend time with him on a regular basis, unsupervised.

2. The Father’s proposal is opposed by the Mother and the Independent Children’s Lawyer. 

Issues

1. The Mother is agreeable to the Father spending time with the child under supervision, either at the (omitted) Contact Centre or by a private supervisor, such as (omitted). The Mother’s reasons for this approach are her claims that the child has been exposed to conflict both at changeovers and during time previously spent with the Father.

2. The Father is firmly opposed to supervision of his time with the child and has expressed the view that it would not be in his best interests.

3. The Independent Children’s Lawyer does not support unsupervised time between the Father and the child at present, noting concerns expressed by a psychologist, Mr A, who had seen the child on some seven occasions, that the child had exhibited significant distress and worry about the time he had spent, or would spend in the future with his father. Mr A reported that the child’s perception was that he was not safe with his father.

Background

1. Counsel for the Mother, Ms Sproston, prepared a brief chronology in her Case Outline, to which I have had recourse in preparing these Reasons for Decision.

2. The parties were married on (omitted) 2001 and separated on 21^st October 2005. They were divorced on 6^th February 2007.

3. There is one child of the marriage, the boy called X, who was born on (omitted) 2005. He was only about five weeks old when the Father left the matrimonial home.

4. The Father spent time with the child during the day by arrangement with the Mother without there being any parenting orders in place on various occasions up to October 2008, when overnight time commenced. This took place until October 2009.

5. The Father left Australia to live and work in (country omitted) in December 2009. He remained living there until August 2013. However, the Father returned to Australia temporarily on three occasions, during which time he saw the child.

6. After the Father returned to Australia in August 2013 he spent time with the child on three occasions. The Mother then ceased unsupervised time because she claimed that the child was suffering from anxiety about the visits. The Mother maintained then and maintains now that the Father’s time with the child needs to be supervised to deal with his anxiety issues.

7. The Father has declined to take part in unsupervised time with the child and, as a result, has not spent any time with the child since 4^th October 2013. He maintains that supervision of his time with the child is not in the child’s best interests.

8. The Father commenced proceedings in this Court by filing an Application for parenting orders on 22^nd November 2013.

9. On 18^th March 2014 the parties attended a Child Dispute Conference with a Family Consultant.

10. On 8^th April 2014, the Court ordered that that interests of the child should be represented by a lawyer under the provisions of s. 68L of the Family Law Act 1975 (Cth).

Orders Sought

1. The orders sought by the Father are set out in his Application filed on 22^nd November 2013. In summary, he seeks orders that:

   a)the parties should have equal shared parental responsibility for the child;

   b)the child should spend time with the Father (unsupervised):

   i)from 7:00pm on Friday to 8:00pm on Sunday each alternate weekend;

   ii)on his birthdays in alternate years;

   iii)on public holidays and school holidays which should be divided equally between the parties;

   c)at other times the child will (presumably) live with the mother; and

   d)other ancillary orders which are not immediately relevant, although there is a proposed order that would restrict corporal punishment of the child to the parents only, if anyone at all.

2. By her Response filed on 27^th February 2014 the Mother seeks orders that (in summary):

   a)she should have sole parental responsibility for the child;

   b)the child should live with her;

   c)the Father should attend an anger management course and a course known as “Taking Responsibility” with Relationships Australia;

   d)the child should spend supervised time with the Father for 2 hours every alternate Sunday at the (omitted) Contact Centre; and

   e)the Father should refrain from contacting the mother except by text message and only for the purpose of implementing the Orders.

3. The Independent Children’s Lawyer submitted a Minute of Proposed Orders on the day of the hearing, proposing that:

   a)the Father should undertake a program known as the “Circle of Security” or such other program as recommended by the Independent children’s Lawyer;

   b)upon completion of the court, the Father would spend time with the child for 2 hours each alternate weekend either at a contact centre or supervised by a private agency;

   c)the Application should be adjourned for a period of not less than four months.

4. The Minute also noted that a Family assessment was to take place at the Sydney Registry of the Family Court[1] on 21^st August 2014.

   [1] Which is co-located with the Sydney Registry of this Court

Evidence and Submissions

1. The Father relied on the following affidavits:

   a)his affidavit 28^th July 2014;

   b)the affidavit of his current wife Ms K affirmed 31^st March 2014.

2. The Mother relied on the following affidavits:

   a)her affidavit of 16^th June 2014; and

   b)the affidavit of her sister Ms L of 16^th June 2014.

3. The Mother also tendered Child Support Assessments dated:

   a)31^st August 2010;

   b)27^th January 2011;

   c)4^th February 2011; and

   d)13^th January 2014.

4. The Independent Children’s Lawyer, Ms Connor, tendered an email and some subpoenaed material from Mr A, the child’s treating psychologist, and material produced on subpoena by:

   a)Dr S;

   b)The New South Wales Police.

5. The Independent Children’s Lawyer submitted that the material showed that the child had reported to the psychologist his distress and worry about the time he is to spend with his father. For whatever reason, in the current climate it would not be in the child’s best interests to spend time with his father, certainly not unsupervised.

6. Ms Sproston of counsel, for the Mother, submitted that the Father had moved overseas for four years and had only seen the child on three occasions since his return. She further submitted that:

   a)The Father had made repeated allegations that the Mother had changed the child’s surname without consulting him but he did in fact consent to this step;

   b)The Father continues to make allegations that the maternal aunt uses illicit drugs but she has put on an affidavit denying that she does; and

   c)The Father says that he pays child support directly to the child Support Agency but he declared his income to the agency as zero. It was only in the previous week that he had paid off his child support debt.

7. It was also submitted that the Court should have regard to the Child Dispute Conference Memorandum to Court, where the Family Consultant noted that:

   The mother stated that she felt controlled and threatened by the father (that he would remove X form Australia – which the father acknowledged but said that he did not have any intent to do so) and that the father was psychologically and emotionally abusive towards her.[2]

   [2] Child Dispute Conference Memorandum to Court 25.3.2014 page 2

8. Ms Sproston put to the Court that the Father had failed to take the opportunity to spend supervised time with the child.

9. The Father told the Court that the Mother had constantly created a negative atmosphere, especially at changeover. He believed that supervised contact would be distressing to the child. He went on to say that he would prefer to attend changeovers at the (omitted) Contact Centre, conceding that he had not said that before. He said that he believed he would because the Court process had been so lengthy.

10. The Father reiterated that he truly believed that contact at a contact centre would be distressing to the child and not in his best interests. However, changeovers in his view were the only thing causing the child distress.

11. The Father’s position is that he seeks unsupervised time with the child from 9:00am to 6:00pm one day each week, with changeovers to take place at the contact centre.

The Child Dispute Conference Memorandum to Court

1. In the Child Dispute Conference Memorandum, the Family consultant noted that:

   The parents disagree in relation to the nature of X’s relationship with the father and X’s ability to emotionally manage the time that he spends with the father. The father believes that X is happy and content while in his care whereas the mother believes that X suffers from anxiety, fear, intimidation in relation to his father and makes comments about wishing that his father would die. The mother stated that X is being treated for trauma and “traumatic memories” in relation to his father.[3]

   [3] Child Dispute Conference Memorandum to Court 25.3.2014 page 2

2. The Family Consultant noted the following issues impeding resolution:

   Poor parental relationship

   Mistrustful parental relationship

   Whether the mother encourages and supports X’s relationship with his father.

   The father questions the mother’s capacity to make decisions in relation to the best interest of X (such as allegedly changing X’s surname

   The father questions the maternal aunt’s influence on X and alleges that she uses illicit drugs. The mother denies this.

   Geographical distance between the parental homes.[4]

   [4] Ibid

Parenting Applications

1. Where a Court is asked to make parenting orders, it must have regard to the objects of Part VII of the Family Law Act 1975, which are set out in s.60B(1). The Court must also have regard to the principles underlying those objects, which are set out in s. 60B(2) of the Act.

2. Section 60CA requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. Section 60CC sets out the way that the Court determines what is in a child’s best interests, having regard to the primary considerations in subsection 60CC(2) and the additional considerations in subsection 60CC(2).

3. Section 61DA requires the Court to apply the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child. This presumption does not apply in cases of abuse or family violence and may be rebutted by evidence that it would not be in the child’s best interests to apply the presumption.

4. Section 65DAA applies when the Court has made an order that a child’s parents are to have equal shared parental responsibility for the child. If that is the case, the Court must consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent or, in the alternative, whether it is both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.

5. All of the above matters have been considered.

Conclusions

1. Clearly, the best interests of the child are the paramount consideration, and the Court will make orders having regard to that consideration, even if those orders are not to the liking or opinion of one or other of the parties.

2. The primary considerations require the Court to balance the benefit to the child of having a meaningful relationship with both of his parents on the one hand against the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence. The latter consideration must be given greater weight (s.60CC(2A)).

3. The evidence suggests that this boy, nearly 9 years of age, has had very little contact with his father since his parents separated. Part of this has been due to the fact that the father has lived out of Australia for four years until recently.  His mother is, and has been, his primary caregiver.

4. There is evidence from the psychologist, Mr A, that the child has reported significant distress and worry related to the time he had spent, or would spend, with his father. Mr A said in an email to the Independent Children’s Lawyer which was tendered in evidence, that:

   X also presented with a disrupted attachment. Of concern was the distress that X experienced prior to visitations with his father, and X’s perception that he was not safe when he was with his father…

   Given the time since X has seen his father, a return to the relationship would result, in my opinion, in a deterioration and regression in X.

   To support the relationship, and provide the best opportunity for the relationship between X and his father to flourish, I have recommended that X’s father attend counselling or a parenting program that explores attachment and relationships with children (such as the Circle of Security Parenting Program). Visitation could then begin at a contact centre and then reviewed.[5]

   [5] Email 4.8.2014 Mr A

5. This is strong evidence of the child’s level of distress at the thought of spending time with his father and I propose to give it some weight.

6. Turning to the additional considerations in s.60CC(3), the evidence as to the child’s views comes indirectly through Mr A and the Independent Children’s Lawyer. The child himself is not yet 9 years of age, so the weight to be assigned to his views is not as great as if he were of a greater level of maturity.

7. The evidence would suggest that the child has a strong relationship with his mother, who has been his primary caregiver all his life, but that he does not have a strong relationship with his father.

8. The Mother has obviously made decisions about major long-term issues in relation to the child and has spent a considerable amount of time with him. Against this, the father has spent very little time with his son, especially as he has been living out of Australia for four years until last year.

9. It is a matter of great concern that the Father has not taken the opportunity to spend time with his child, even though it has been under supervision. The Mother is offering supervised time at a contact centre on the (omitted), but the Father has taken the view that if his time with the child has to be supervised, then he will not avail himself of the opportunity. Thus, he has chosen not to spend time with his child at all.

10. The Mother has been the child’s primary caregiver and has complained that the Father has been dilatory and tardy in paying child support. The evidence relied on by the Mother in respect of the Father’s history of paying child support was less than satisfactory, in my view. What should have been produced was a certificate under subsection 116(2) of the Child Support (Registration and Collection) Act 1988 (Cth), which provides:

    The mere production of a certificate in writing signed by the Registrar, certifying that an amount specified in the certificate was, on the date of the certificate, due and payable by a specified person to the Commonwealth in relation to a specified maintenance liability or under a specified provision of Part IV, is prima facie evidence of the matters stated in the certificate.

11. Regrettably, this was not done.

12. In my view, the introduction of all-day time between the Father and the child or overnight time would be a significant change in the child’s circumstances which would be likely to cause him distress and anxiety. It does not appear to be in his best interests.

13. Whilst there is no evidence that the Mother lacks the capacity to provide for the child’s needs, including his emotional and intellectual needs, the Father’s insistence that there should be unsupervised time or nothing at all does not indicate a capacity to cater for this child’s emotional needs. Whether or not the child’s anxiety about his father is caused or exacerbated by the attitude of his mother, the fact is that there is evidence that the child suffers from distress and anxiety in contemplating time with his father. It will not do for the Father to brush these concerns aside, claiming that the problem is all due to parental antagonism at changeover. It was only at the interim hearing that the Father eventually conceded that changeovers could take place at a contact centre.

14. There is a clear need for the Father to take steps to undergo a program, such as the Circle of Security Parenting Program, as recommended by Mr A and the Independent Children’s Lawyer, to calm the child’s fears and instil into him the confidence that his father is not going to take him away from his mother or otherwise cause him psychological harm.

15. The recommendations of the Independent Children’s Lawyer appear to be soundly based and I propose to follow them.

16. This is not a case where I believe that it is in the child’s best interests for his parents to have equal shared parental responsibility for him. The relationship between them is poor to non-existent, and there is no level of trust between them. As the Mother is the child’s primary caregiver, she should have sole parental responsibility until further order.     

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  26 August 2014