Hinkler and Hinkler
[2011] FMCAfam 714
•12 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HINKLER & HINKLER | [2011] FMCAfam 714 |
| FAMILY LAW – Parenting – interim order – whether Father’s unsupervised day time should extend to overnight time. |
| Applicant: | MR HINKLER |
| Respondent: | MS HINKLER |
| File Number: | NCC 3182 of 2008 |
| Judgment of: | Baumann FM |
| Hearing date: | 29 June 2011 |
| Date of Last Submission: | 29 June 2011 |
| Delivered at: | Canberra |
| Delivered on: | 12 July 2011 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Mr Craney, Craney Family Solicitors |
| Counsel for the Respondent: |
| Solicitors for the Respondent: | Mr Haricharan, Hunter Family Law Centre Pty Ltd |
ORDERS
THE COURT ORDERS, ON AN INTERIM BASIS:
That Order 3.2 of Orders made on 28 February 2011 be varied so that, until further Order, the Father shall spend time with the child each alternate weekend from 9:30am on Saturday until 4:30pm on Sunday including during school holidays. This time is to commence on the weekend of Saturday 16 July 2011.
That unless otherwise agreed in writing, change over is to continue to take place at the [omitted] Contact Centre.
AND THE COURT FURTHER ORDERS:
That the matter is adjourned to 11 October 2011 at 9.00 am for hearing (allocating 2 days).
Both parties file and serve any affidavits upon which they intend to rely by 4.00 pm on 20 September 2011.
That neither party may rely on any documents filed after that date without leave of the Court.
That each party is a liberty to issue such Subpoena as they consider relevant to the issues in these proceedings and such Subpoena shall be made returnable not less than 14 days prior to the hearing date.
That in the event that any further subpoena are issued, the Solicitor issuing such subpoena is to bring to the notice of the Manager, Child Dispute Services the fact that such subpoena has issued with a request that the author of the Family Report inspect such subpoena material prior to the hearing date.
That in the event that either party wishes to cross examine the Family report writer at the final hearing, that party shall provide written notice to the Family Report writer within 14 days from this date and in the event that no notice is given to the Family Report writer and the Family Report writer is unavailable the Family Report will be admitted into evidence without cross examination subject only to evidentiary objection.
That if the Family Report writer is to give evidence by telephone any documents including affidavits sought to be relied on by a party and previously not considered or made available to the Family Report writer are to be sent to the Family Report writer not less than 7 days before the hearing date.
That the Applicant provide to the Respondent within 28 days a draft Chronology setting out the Applicants contentions as to relevant dates and matters contended for by the Applicant and the Respondent within a further 14 days insert into that Chronology the Respondent’s responses as to relevant dates and matters contended for by the Applicant contentions and relevant dates and matters contended for by the Respondent.
That the Applicant is to cause the completed Chronology to be forwarded to the Court for filing not less than 7 clear business days prior to the hearing.
That each party file and serve an outline of case document not less than 7 clear business days prior to the hearing setting out:
(i)a precise Minute of Orders Sought;
(ii)a list of documents to be read in their case; and
(iii)a brief summary of argument touching upon the matters set out s.60CC of the Act with reference to the relevant evidence relied on.
THE COURT NOTES THAT:
A.In the event of any applicable setting down and/or hearing fee not having been reduced on the basis of financial hardship, the Applicant will be required to pay such fees at least 14 days prior to the hearing date.
B.Liberty is granted to vacate the hearing date if terms of settlement are filed.
IT IS NOTED that publication of this judgment under the pseudonym Hinkler & Hinkler is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 3182 of 2008
| MR HINKLER |
Applicant
And
| MS HINKLER |
Respondent
REASONS FOR JUDGMENT
(settled from the ex tempore reasons)
These oral reasons relate to an interim dispute relating to what orders best meet the needs of [X], an only child of a relationship between the parties in this case. [X] is now aged seven and the parties having married in 2003 separated in August 2008. It is not necessary for these oral reasons to traverse the history of the matter after the father’s application was filed in this Court in December 2008, save to indicate that after a period where there was an order for supervised time, which was relating to the mother’s concerns about the father’s prior use of alcohol and the lack of the father’s parenting experience and capacity, the supervised time moved to an unsupervised regime in or about March this year.
Previous to that there was a long delay in ordered supervised time taking place because of delays in a local contact centre. As a result of an order made by consent on 28 February 2011, when the matter in fact had been listed for a hearing, the father was to spend time with [X] each alternate Saturday from 9 am to 5 pm from 5 March and then from 16 April – that is after three such visits – was to spend time with [X] from 9 am to 5 pm each alternate Saturday and Sunday. At the time I made the order sought by the parties there was also an order that there be an updated family report. My hope was that with the progress that had been made the parents might, with the assistance of a family report, resolve the matter on a final basis when it next came before the Court.
Alas that cannot be achieved with the father urging the Court now to increase time to overnight spanning the Saturday and Sunday gap and the mother maintaining the position that overnight time is effectively unsafe for the child at this stage. The mother says that she believes the child will be in a position to extend time with the father overnight from the age of 10, which is approximately three years time.
I heard further submissions on 29 June and have considered on an interim basis those submissions. I have also had a chance to now properly read and consider further material in this matter which although untested can be described as follows:
a)the updated report released 10 May 2011 by Mr P;
b)the affidavits of the father filed 1 June 2011 and 22 June 2011;
c)the affidavit of the mother filed 27 June 2011, attaching importantly a report dated 27 June 2011 from a forensic toxicologist, Dr R (dated 27 June 2011).
The family report by Mr P, built on an earlier report delivered at the commencement of the proceedings by Mr P, recommends that [X] spend overnight time with his father “immediately” and that after three months this should increase to after school Friday to Sunday. Changeovers have continued to be problematic occurring at a contact centre which has reduced the time available to the father because of the availability of the centre by about one hour a day. Whilst there are no apprehended violence orders in operation the mother says she feels anxious about any direct contact with the father at a handover or changeover. Mr P, in making his recommendation, points to the following critical factors in my view:
a)the father’s committed approach in dealing with his prior alcoholism;
b)accepted in the absence of any other evidence the father’s statement that he has abstained from alcohol use for nearly two years now;
c)evidence of the child [X], who says he feels safe in the father’s home (save for some small issues with his 13-year-old sibling, [Y]);
d)the father’s continued primary care of [Y] (age 13) the sibling of [X], and [Y]’s statements to the report writer which corroborate the father’s absence of use of alcohol;
e)the mother’s inability to point to any credible evidence indicating the father is still drinking.
The father’s affidavits give details of the therapeutic engagement, courses and treatment he has undertaken. His other affidavit seems to take on board some of Mr P’s observations that the father must get more involved with the child in fact become more “hands on” in his parenting approach. There is no doubt – and the father does not say – that the mother is other than an excellent carer providing affection, good food and meeting the child’s emotional and physical needs. That the child presents so well to Mr P is largely due to the quality of the mother’s parenting to date.
The mother, as already mentioned, is an experienced parent who parents differently to the father. The father, however, is not an inexperienced parent and that fact and that his style differs from the mother is not a reason to reduce [X]’s opportunity to develop a more meaningful relationship with his father. As far as the father’s alcohol use is concerned, perhaps understandably from the mother’s historical perspective (noting the parents have now been separated for nearly three years) and with a lack of trust, respect and effective communication that exists between them, the mother still holds the view that the child is at risk of harm if he spends overnight time with the father.
The evidence of Dr R, who has not, it seems, met the father, is theoretical in nature and although I have taken his scientifically based comments and concerns relying on the data available to him into consideration, I have assessed overall the risk of the father’s past alcoholic induced behaviour occurring is at this stage minimal. Of course, relapses can never be ignored, but on all the currently available evidence before the Court I am satisfied on an interim basis that it is in [X]’s best interests to commence overnight time with the father immediately.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Baumann FM
Date: 15 July 2011
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