HILL & DENTON

[2015] FamCA 106

FAMILY COURT OF AUSTRALIA

HILL & DENTON [2015] FamCA 106

FAMILY LAW – CHILDREN – Interim Application - With Whom a Child Spends Time – Best Interests of a Child – Where Application by mother relating to orders made by consent in November 2013 – Where mother seeking two orders – Where Court noted one of the difficulties in interim matters where there are disputes of fact, is the court cannot make conclusions about factual matters unless they are agreed or non-controversial -  Where firstly, the mother sought to delay the progression of the child spending three nights with the father which was due to commence this week - Where mother asserts that the child is not coping with present arrangement of two nights and has concerns about an increase to three nights – Where father does not accept the mother’s assertions or concerns – Where Court noted that the extent to which the present regime is working is not a matter which is agreed – Where Court ordered progression of time continue as per the consent orders and run for a period of a month, at which time will allow the Court the opportunity to revisit the matter should it prove necessary - Where secondly, the mother sought that the father be personally present at each handover – Where consent orders provide that the father or his agent may collect and deliver the child – Where Court not satisfied it is in the best interests of the child for the father to be obliged to be physically present at changeovers – Where application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Hill

RESPONDENT: Ms Denton

FILE NUMBER: CSC 719 of 2012

DATE DELIVERED: 2 February 2015

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 2 February 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Wright

THE RESPONDENT: In person

Orders

1. No earlier than 27 February 2015, pursuant to s11F of the Family Law Act, Ms B, or such other Family Consultant as may be appointed in her place, is to report on the effects, if any, of the child C born … 2012 spending a third night per week with the father pursuant to Order 7(e) of the Consent Orders made 26 November 2013.

2. The parties are to provide all necessary consents for Ms B, or any other Family Consultant appointed in her place, to speak with the parties’ child psychologist, Ms D, should Ms B so wish, and Ms D be willing so to do.

3. The mother’s Application filed 27 January 2015 be dismissed.

4. All parties have liberty to apply on short notice.

5. The costs of today be reserved to the trial Judge.

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 719 of 2012

Mr Hill

Applicant

And

Ms Denton

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By Application in a Case filed 27 January 2015, the mother seeks two orders.  The first is the delay in the progression of the child the subject of these proceedings commencing to spend three nights in the father’s care.  The second is a requirement that the father be personally present at each handover, both to pick up and drop off the child.

2. The history of these proceedings relevant to this application commences with an order that was made by me on 26 November 2013 by consent.  That order was made during the course of a trial in which the mother was seeking permission to relocate with the child from Australia to Country E.  The mother is a Country E national. 

3. The parties, who were all represented at the time – and had the benefit of access to the relevant family report writer – agreed by order 7 to a steadily increasing progression of time being spent by the child with the father.  Relevant to these proceedings is order 7(c), which saw, from 4 August 2014, the father’s time with the child extended to overnight on Sunday, and two days on Wednesday and Thursday.  Then from 4 November, that increased to two nights, being Sunday night and Monday night, and Thursday for most of the day.  Then finally, by order 7(e), it progressed to three nights from 4 February 2015, being Sunday night and Monday night, and also Thursday night. 

4. Turning firstly to the mother’s application to delay the increase due on 4 February, she seeks that that order be suspended until such time that the child is able to cope with having the third overnight time with the father.  Obviously, that progression has not yet commenced.  Rather, the mother, in her affidavit, identifies her concerns in relation to the child not coping well with the periods of separation from her under the present regime of orders, and therefore, in a sense, predicts that the progression to three nights will be unsuccessful, or at least not optimising the progression of the child’s increase in time with the father. 

5. The father, on the other hand, relies upon his affidavit, filed 2 February 2015, in which he effectively says two things.  Firstly, he does not accept that the present arrangement is working poorly.  Secondly, he does not share the mother’s concerns that an increase to three nights will effect any increased stress or other detriment to the child.  He supports that by reference to, albeit in hearsay form, advice that he has received from a child psychologist jointly retained by the parties, who in substance did not, on the father’s evidence, identify any problems that the child was having with the present regime, and by inference, any problems that the child would have, or be likely to have, with the imminent increase in time. 

6. One of the difficulties in litigation such as this, is that on an interim application, where there are disputes of fact, the court cannot make conclusions about factual matters, unless they be agreed or non-controversial.  Plainly, the extent to which the present regime is working is not a matter which is agreed.  It is central to the dispute between the parties.  It is also necessarily therefore in dispute between the parties as to how the increased progression, due to start this Thursday, is likely to play out.  In those circumstances, when there is no agreement and the matter is controversial, I cannot make conclusions based upon findings of fact relevant to the particular matters. 

7. What I am left with then are orders that were made by the parties by consent on 26 November 2013, even accepting that they were then telescoping the orders well into the future, on the one hand, with the parties’ controversy about the efficacy of those orders, on the other.  Of course, I am obliged to act by reference to the paramount consideration, namely the best interests of the child.  However, the dispute between the parties as to factual matters makes the determination of any relevant factor nigh impossible in this case, at least within the ambit of the controversy between the parties. 

8. During the course of argument, I raised with the parties the prospect of an order that would be protective in relation to the child, but nonetheless permit the court to ascertain, at least in the short-term, the likely impact upon the child of any increase in overnight time.  Particularly I suggested that the progression to a third night would commence this Thursday, and run for a period of about a month, at the conclusion of which the family consultant who has had something to do with the parties thus far – Ms B – would be required to meet with the parties, to try and ascertain their view as to the success of the increase in time.  Further, if she thought fit, and if the child psychologist in question, Ms D, were willing to do so, Ms B could speak with Ms D, to get a second source of information as to the impact, and success or otherwise, of the increased time. 

9. In my view, such a regime of orders is in the best interests of the child, for the following reasons.  Firstly, it is of potentially short duration.  In the event that the mother’s fears are correct, and the progress to a third night is unsuccessful, it will enable the court to rapidly be advised of that, and to give the parties – and hopefully by then, the Independent Children’s Lawyer – an opportunity to come back to the court to revisit the increase in time, to see whether or not it should be reversed.  Secondly, it does continue to give effect to the parties’ intentions as at 26 November 2013, as encapsulated in the orders, namely that the father should be having an increasingly extensive role – extensive by reference to duration of time – in the child’s life over time. 

10. I am satisfied that both parents, including the father, have much to offer this child, and although there is no direct correlation between the amount of time that one or other parent spends with the child and the quality of the relationship that develops, I accept that the father will have an increased opportunity to develop a meaningful relationship with the child, by virtue of the third night.  Of course, the risk is that that increased time will reduce the child’s enjoyment of the father’s time, if she continues to suffer separation anxiety from the mother.  That remains to be seen. 

11. So I am satisfied that such an order, being of short duration, and being closely monitored with the opportunity for the court to revisit the matter should it prove necessary, is in the best interests of the child, in these somewhat unusual circumstances.  So although I decline to make the first order sought by the mother in her application, I will make a suite of orders of the kind that I have just discussed. 

12. Particularly, I will make an order which, in substance, will require the family consultant to report shortly after a month from now, and to give the parties the opportunity, should they see fit, to relist the matter before me. 

13. The second order that is sought by the mother is that the father be personally present at each handover, to pick up and drop off the child.  The starting point and consideration of that is order 10 of the consent orders, which specifically contemplated that the father or his agent may collect and deliver the child.  Therefore, in substance, the mother seeks to impose an obligation on the father, to be physically present at all collections, and to preclude him from using an agent. 

14. It appears, as is not unusual, that changeovers have proved to be somewhat problematic in the past, with the father having been the subject of some complaints by the mother, which led to a domestic violence order being made against him.  Whilst it is not particularly helpful to revisit that sort of history in an interim application such as this, it does inform the court that there were legitimate concerns in the father’s mind, which led to the inclusion in order 10 of the capacity to use an agent to effect changeovers. 

15. It appears to me as though the mother’s concerns in relation to the father’s occasional or irregular absences at changeovers have to do with three things.  Firstly, she says – and I am not in a position to determine either way – that it is difficult to effect the changeover of the child, unless it is the father in person to whom she is going.  I infer that there is some resistance on the part of the child to going into her grandmother’s care.  Whether that is true or not remains to be seen.  The second matter is that there appears to be a degree of hostility in communication between the mother and the paternal grandmother.  The third matter, and it may not necessarily be the least of the mother’s concerns, is that it appears as though she believes that on occasion, even though the child has notionally gone into the father’s care, in fact the father has been absent, and the child has been really in the paternal grandmother’s care. 

16. Again, that is not a matter that I can determine in this case at this point.  There is little evidence, if any, in the mother’s material which would support the latter.  Although she apparently has, by reference to subpoenaed material, some means of proving that the father has indeed been absent on occasions when the child was nominally in his care, that is not a matter that I can make any finding about at this point. 

17. All in all, I am left with orders which were made by consent on 26 November 2013, presumably with both parties fully aware of order 10, aware of the history of changeovers between the parties and the hostility that has from time to time attended them, and aware that the paternal grandmother and the mother have not always seen eye to eye.  I am not satisfied, in those circumstances, that there is any basis upon which I should now revisit the father’s obligation to be physically present at handovers.  I am not satisfied that it is in the child’s best interests to require the father to be physically present at changeovers.  Therefore, I decline to make the order sought by paragraph 2 of the mother’s application. 

18. The application filed 27 January 2015 will be dismissed. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 2 February 2015.

Associate:

Date:  2 February 2015