Hooch and Twycross
[2010] FMCAfam 1150
•12 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOOCH & TWYCROSS | [2010] FMCAfam 1150 |
| FAMILY LAW – Interim – adjournment – supervised time – supervisor – changeover location. |
| Family Law Act 1975, s.60CC |
| Applicant: | MS HOOCH |
| Respondent: | MR TWYCROSS |
| File Number: | CAC 195 of 2008 |
| Judgment of: | Monahan FM |
| Hearing date: | 12 August 2010 |
| Date of Last Submission: | 12 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 12 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Durston |
| Solicitors for the Applicant: | Rachel Stubbs & Associates |
| Counsel for the Respondent: | Mr Jackson |
| Solicitors for the Respondent: | Kennedy & Cooke Lawyers |
| Independent Children’s Lawyer: | Mr Walkden |
ORDERS
THE COURT ORDERS THAT:
The contravention application filed 31 May 2010 be withdrawn and dismissed.
All extant applications be adjourned to this Court on 30 August 2010 at 2:15pm for interim hearing.
Paragraph 2.2 of Orders made 1 October 2008 remain suspended.
The children spend time with the Respondent from 12 noon 14 August 2010 until 4:15pm 15 August 2010 in Canberra with all such time to be in the presence of and supervised by his sister, Ms E (“the paternal aunt”) with changeovers to occur at [omitted], CANBERRA or such other location as agreed between the parties.
The Applicant cause the paternal aunt to provide the Independent Children’s Lawyer with an undertaking suitable to the Independent Children’s Lawyer by 4:00pm 13 August 2010 and upon receipt the Independent Children’s Lawyer provide the parties with a copy forthwith.
The Independent Children’s Lawyer have liberty to apply on seven (7) days notice.
The costs of today’s proceedings be reserved.
AND THE COURT NOTES THAT:
(A)Pursuant to ss.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 Hooch & Twycross is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
CAC 195 of 2008
| MS HOOCH |
Applicant
And
| MR TWYCROSS |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter returned before the Court today for the purpose of an interim hearing in relation to whether the current suspension of paragraph 2.2 of the parenting orders made on 1 October 2008 should be reconsidered. That is whether the time the children [X] born in 2001, [Y] born in 2003 (“[Y]”) and [Z] born in 2005 (collectively “the children”) spend with their father should be restored or whether the current suspension should continue. Of course, another possible outcome could have been for any time spent to be supervised.
For reasons beyond the control of the parties, the material subpoenaed from the Department of Community Services (“DoCS”) was incomplete. This is unfortunate, because the nature of the dispute before me involves DoCS joint investigation of a notification made to them. Given this reality, the matter has been adjourned for an interim hearing on 30 August 2010.
Issues
The issue that now arises is whether the Court should reconsider the suspension of the current spend time arrangements, given this delay, or simply put that matter over to the next occasion. Of concern, of course, is the fact that the children have not only spent any time with the father, it would appear, since late May, a period of some two and a half months, and the consequences of the adjournment today will mean a further delay of some two and a half weeks.
In the circumstances, the father has pressed today for paragraph 2.2 of the existing orders to be restored, but that the children’s time be supervised by the children’s paternal aunt, Ms E (“the paternal aunt”). The paternal aunt lives with her teenage children in Canberra. She was present with the father in Court today, but was outside the courtroom when the submissions were made.
The mother opposes this request. If the Court was minded, however, to make a supervised time order, then the mother proposes a third party supervisor, Ms G, who is an acquaintance of the mother and someone the mother asserts is known to the children.
Submissions
Both the parties’ counsel and the Independent Children’s Lawyer (“ICL”) made submissions to the Court. By way of summary, the mother asserts her proposal that provides the necessary protections for the children, and in her alternate proposal, would enable two separate days for them to spend time with the father supervised in the [omitted] area, those dates being this Saturday 14 and on Sunday 29 August 2010.
The father asserts his sister is willing to travel with himself and the children to his residence in NSW, or, alternatively, the time could be spent at her residence in Canberra.
The ICL is supportive of supervised time as an interim order today and has indicated that he could support either of the proposals sought by the parties. The ICL said the matter is complicated because the child, [Y], turns seven this coming Saturday. The ICL provided the Court with some written submissions, including submissions which addressed issues such as the views expressed by the children.
The law
Clearly, the relevant provisions of the Family Law Act 1975 (“the Act”) post the 2006 shared parenting minutes must be followed, even in an interim hearing, such as this today. The Act prescribes that in making these sorts of decisions the Court must regard the best interests of the child as the paramount consideration. That reality requires the Court to consider the so-called primary and additional considerations in s.60CC of the Act.
Primary considerations: s.60CC(2)
Section 60CC(2)(a) of the Act requires the Court to consider the benefit of the child having a meaningful relationship, or the children in this case, having a meaningful relationship with both parents. Meaningful does not necessarily mean equal, but it does signify that both parties should be involved with their children and consequently signifies an expectation of time to be spent. It is the right of children to spend time with each parent and extended family.
That having been said, s.60CC(2)(b) requires the Court to consider the need to protect children, or a child, from physical or psychological harm and being subjected or exposed to abuse, neglect, or family violence. There is no doubt that it would be in these children’s best interests to develop a meaningful relationship not just with their mother, but with their father. That needs to be balanced, however, in respect of protecting these children from any physical or psychological harm, and the like. There are serious allegations being made against the father, and they are yet to be tested.
Conclusion
The Court is satisfied that there is a need for a supervised spend time order between now and when the matter returns in two and a half weeks.
The Court has considered both proposals and their alternate proposals. I have formed the view that the alternate proposal of the father should be accommodated, subject to the change that the children will spend time with the father supervised by the paternal aunt in Canberra this coming weekend. Given that it is [Y]’s birthday, the proposed order will be for the children to travel down to Canberra this Saturday to arrive by 12noon. The children can be collected by the mother at 4:15pm on Sunday.
Changeovers will be at an agreed venue or, failing agreement, [omitted] at Canberra, or otherwise a public place.
As indicated, at all times that the children are with the father they are to be supervised by the paternal aunt, and she will be required to complete an undertaking suitable to the ICL by 4:00pm tomorrow. A copy of that undertaking will be provided to each of the parties.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 5 October 2010
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