IRWIN & DYNON

[2015] FCCA 2515

FEDERAL CIRCUIT COURT OF AUSTRALIA

IRWIN & DYNON [2015] FCCA 2515

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – parental responsibility – best interests of the children.

Legislation:

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

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Re K (1994) 17 Fam LR 537; FLC 92-461

Applicant: MR IRWIN

Respondent: MS DYNON

File Number: PAC 5407 of 2014

Judgment of: Judge Scarlett

Hearing date: 8 September 2015

Date of Last Submission: 8 September 2015

Delivered at: Sydney

Delivered on: 14 September 2015

REPRESENTATION

Solicitor for the Applicant: Mr McDonald

Solicitors for the Applicant: G & D Lawyers

Solicitor for the Respondent: Mr Cohen

Solicitors for the Respondent: David H. Cohen & Co.

Independent Children's Lawyer: Ms Youssef

Solicitors for the Independent Children's Lawyer: Marsdens Law Group

ORDERS

UNTIL FURTHER ORDER

1. All earlier parenting Orders are suspended.

2. The Applicant father and the Respondent Mother are to have equal shared parental responsibility for the children X born (omitted) 2006 and Y born (omitted) 2009.

3. Each parent will have responsibility for day to day decisions concerning the care, welfare and development of the children when the children are in their care.

4. The children X and Y are to live with the father from immediately after school each alternate Thursday to the commencement of school on the following Tuesday commencing on Thursday 17 September 2015 and each alternate week thereafter.

5. The children X and Y are to live with the mother during the off weekend from immediately after school on Thursday until the commencement of school on the following Tuesday commencing on Thursday 24 September 2015 and each alternate week thereafter.

6. The child X will otherwise live with the father.

7. The child Y will otherwise live with the mother.

8. For the purpose of the above Orders changeover where the children go from the care of one parent to the care of the other parent will take place at the children’s school at all times when changeover is to occur on a school day and at the mother’s residence on all other occasions.

9. The children X and Y are to attend the (omitted) Public School and each parent is restrained from removing either of the children from (omitted) Public School without the consent of the other parent or leave of the Court.

10. Both parents are restrained by injunction from physically disciplining either or both of the children or permitting any third person to do so.

11. Both parents are restrained by injunction from leaving either or both of the children in the presence of the paternal grandmother Ms A without the supervision of a responsible adult at all times.

12. Both parents are restrained by injunction from abusing or criticising or denigrating the other parent in the presence or hearing of either or both of the children or permitting any third party to do so.

13. Both parents are restrained by injunction from discussing these proceedings with either or both of the children or showing either of the children any documents connected with these proceedings.

14. Each parent must do all things necessary to permit the children to telephone the other parent between the hours of 5:30 pm and 7:30 pm each Wednesday and for this purpose each parent must inform the other parent of any change to their telephone number within 48 hours of such change.

15. Neither parent is to administer to himself or herself any prohibited drug at any time when either of the children is in his or her respective care or for twelve (12) hours beforehand or permit either of the children to remain in the presence of any person who is under the influence of any prohibited drug.

16. Pursuant to Section 62G of the Family Law Act 1975 the parties are to attend upon a Family Consultant at such time and place as the Director of Child Dispute Services directs for the preparation of a Family Report.

17. The Application is adjourned to 2 February 2016 at 10am for further mention before Judge Scarlett in Court 3A, level 3, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PAC 5407 of 2014

MR IRWIN

Applicant

And

MS DYNON

Respondent

REASONS FOR JUDGMENT

1. This is an application for interim parenting orders.  The circumstances are somewhat unusual and the issues raised are, to say the least, perplexing.  The Independent Children’s Lawyer herself, Ms Youssef, expressed her concerns to the Court and expressed the wish that she had been able to provide to the Court a clear and simple solution, but through no fault of her own has not been able to do so.

2. The matter is made even more difficult because this is, in fact, an interim hearing which, as the Full Court of the Family Court has pointed out in the leading case of Goode & Goode[1], an interim hearing is a necessarily truncated proceeding where it is not usually the case that the parties give oral evidence nor is there evidence tested by cross-examination.  That leaves the Court in the situation where if there is a significant division between the parties on a factual issue, the Court is quite frequently not in a position to make factual findings and, indeed, should not do so.

   [1] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Background   

1. Having described the limitations and the difficulties of this case, the fact is that the father and mother have separated. They have two children, a little boy called X, who was born on (omitted) 2006, and a little girl called Y, who was born on (omitted) 2009. There are a number of issues between the parties, which were sufficient to persuade the Court to appoint an Independent Children’s Lawyer under the provisions of section 68L of the Family Law Act 1975 (Cth). In doing so, I considered the guidelines set out by the Full Court of the Family Court in that well-known decision of Re K[2], which was handed down in 1994.  Notwithstanding the fact that the terminology has changed and what used to be a separate representative for the children is now called an Independent Children’s Lawyer, the guidelines set out by the Full Court, with respect, still appear to me to provide a very useful aid to a trial Court in deciding whether it is in children’s best interests for their interests to be independently represented by a lawyer.

   [2] (1994) 17 Fam LR 537; FLC 92-461

Issues

1. The issues between the parties are significant.  The mother has alleged violent and intimidating behaviour and, indeed, a sexual addiction on the part of the father.  The father has alleged that the mother has inappropriately physically disciplined the children.  The father has serious concerns about the mother’s new partner, who has a significant criminal history and, indeed, has served a prison sentence.  The father has also concerns about the mother’s physical health, although it is the mother’s evidence that her health has improved significantly.

2. The situation was complicated by the mother’s decision to relocate from the Sydney area to the (omitted) area.  In doing so, she relocated the residence of the parties’ daughter, Y.  That involved taking the child out of the primary school that she was attending, namely (omitted) Primary School and enrolling her in a school in the (omitted) area, namely (omitted) Primary School. 

3. The situation then was that the parties were living some distance apart with the son living with the father in Sydney and continuing to attend (omitted) Public School and the daughter living with the mother in (omitted) and then attending a different school.  Shortly before the hearing of this matter, which was on the 8^th of this month, the mother made the decision to relocate back to the Sydney area and to re-enrol the child, Y, at her original school, namely (omitted). 

4. This had the effect of bringing the child physically closer in residence to her father and also returning her to the school where she had attended until relatively recently.  It also meant that she was attending the same school as her elder brother.  One of the issues in this matter has been the fact that the children have been living in separate households and had only been spending time with each other on alternate weekends – and that was as a result of an earlier order made by the Court.

Submissions 

1. The Independent Children’s Lawyer, Ms Youssef, submitted to the Court that it was not in the children’s best interests for them to spend so much time apart.  She was of the view that it is in their interests for them to be together, but the question mark is over the statement in which household should they live? 

2. There are significant concerns that have been raised by the Independent Children’s Lawyer.  Both of these children have learning difficulties and attention deficit hyperactivity disorder, ADHD.  Each parent accuses the other of not addressing those issues.  The mother, in her affidavit of 6 July, complained that the father is not administering the drug Ritalin or administering the drug inappropriately. 

3. Ms Youssef noted that despite the father’s concerns, he had consented to orders leaving the child, Y, in her mother’s care.  Against this, Ms Youssef submitted that the father’s household appears to be more stable and certainly appears to have been more stable in recent months.  The child, X, has continued to attend his normal school. 

4. Some concern has been expressed as to why it has been deemed necessary by the father for the child to see a psychologist.  Ms Youssef expressed the concern about the mother’s most recent evidence of Y refusing to spend time with her father.  All this raises the issue, as Ms Youssef squarely put to the Court, that if the children remain separated their positions will be entrenched and this will not be in their best interests. 

5. Ms Youssef noted that the mother had complained about the children coming into contact with the paternal grandmother.  This, she said, was a legitimate complaint and, indeed, an interim order had been made restraining the children from being left unsupervised in the care of the paternal grandmother.  There appears to be no issue between the parties that this should continue. 

6. The father’s solicitor, Mr McDonald, submitted that his client has demonstrated a capacity to cater for the child, X’s, special needs.  He has organised counselling and extracurricular activities and the results of his attention to X’s special needs has been the child’s good progress at school, as shown by material produced on subpoena.  He expressed the view that the children would struggle to cope with any significant change in their circumstances.  He submitted that if the child Y were to return to the care of the father, she would be moving back to the house where she used to live.  The father has expressed concern, as I have said earlier, about the mother’s use of physical discipline on the children, in particular referring to a claim that the mother had hit the child X with a spoon, called him an idiot and pulled his hair.  The father submits that the child X displays signs of distress when returning from time at his mother’s house, which includes bedwetting. This is the reason why the father has seen fit to have this child see a psychologist.  The father says, but the mother denies, that the mother was aware that this was the reason as to why the arrangement had been made with the psychologist. 

7. As is the case with an interim hearing of this nature, I am not in a position to make a finding one way or another.  The father expresses a concern that the household in which the mother lives is marked by family violence between the mother and her new partner, and the father expresses great concern about the mother’s new partner’s background, including the fact that he has spent a sentence of some four years imprisonment in respect of serious drug charges.

8. The father expresses concern at recent instances where the child, Y, has exhibited signs of distress and has not spent time with him.  It is submitted by Mr McDonald on behalf of the father that changeovers between the parents should, where possible, take place at the children’s school. 

9. I have heard submissions from Mr Cohen, solicitor for the Respondent mother.  He pointed out that the two children were in the primary care of the mother until May of 2014 and that the mother continued to be the children’s primary carer until January of this year when the mother went to (omitted).  As I said, Mr Cohen submitted that his client was never told about X being taken to a psychologist but, as I have also said, I am not in a position to make a decision one way or another.

10. Mr Cohen referred the Court to the memorandum from the Child Dispute Conference where the Family Consultant referred to the mother’s risk factors, mainly being the mother’s bad health.  The Family Consultant noted that each parent thought that the children would be safe staying at the other parent’s home and he reiterated that the mother has been the children’s primary carer.  Mr Cohen noted the mother has now moved back to Sydney and submitted that the children should not be separated.  It was his submission that the children should live with the mother, they should continue to attend (omitted) Public School, and they should spend time with their father.

Consideration

1. I have considered all of these matters.  Like the Independent Children’s Lawyer, I do not have a quick and simple solution.  The matter is more complex than that.  This is an interim hearing.

Applications for Parenting Orders 

1. In any parenting hearing where the Court is asked to make parenting orders, whether orders until further order or final orders, there are certain matters in Part VII of the Family Law Act 1975 to which the Court must have regard. They include section 60B which sets out the objects of Part VII and the principles underlying those objects.

2. Section 60CA of the Family Law Act 1975 is well known and prescribes that the Court must regard the best interests of the child as the paramount consideration. Section 60CC gives a guide to courts in determining what is in a child’s best interest, particularly in subsections (2) and (3). Subsection (2) contains the primary considerations which sometimes need to be balanced by the Court, being, on the one hand, the benefit to the child in having a meaningful relationship with each parent and, on the other, the need to protect the child from physical or psychological harm caused by abuse, neglect or family violence.

3. Subsection (3) sets out the additional considerations and they are numerous.  They include the wishes of the children; they include the relationships of the children, not only with the parents, but with other significant adults; they also include issues of violence.  Not all of them will be relevant but I have considered them all. 

4. Section 61DA of the Family Law Act 1975 refers to the presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them. It will not apply in circumstances of family violence and it can be rebutted by evidence which persuades the Court that such a matter would not be in the children’s best interests.

5. It is usually the case, when the Court is making an interim parenting order, that the parents will have equal shared parental responsibility unless the Court decides that that is not appropriate. I might point out that, under section 61DB of the Family Law Act 1975, when the Court is considering final parenting orders, it must disregard the allocation of parental responsibility in making the interim orders.  Therefore, when the Court is making final orders, it considers the question of parental responsibility afresh.

6. Section 65DAA of the Act applies in circumstances where the Court has made an order for equal shared parental responsibility. Under subsection (1), the Court must consider whether it is both in the best interest of the children concerned and reasonably practicable for the parents to have equal time with the children or, failing that, under subsection (2), whether it is both in the best interests of the children and reasonably practicable for the children to spend substantial and significant time with each parent. I have concerned all of these matters.

7. As I said, this is an interim hearing. I am reluctant to make major changes to the children’s arrangements prior to a final hearing, certainly without the availability of a family report under section 62G of the Family Law Act 1975.

Parental Responsibility 

1. Mindful as I am of section 61DA and 61DB, I propose to order at this stage that the parties are to have equal shared parental responsibility for the children but each parent will have the responsibility for the day-to-day decisions concerning the care, welfare and development of the children when the children are in their care.

Orders in the best interests of the children

1. What is to be the interim arrangement for the children, noting that, at present, they spend weekends together but weekdays apart?  I am mindful of the submissions of the Independent Children’s Lawyer and of each parent that it is in the children’s best interests for them not to be separated but there is no easy answer as to which household is more appropriate.  I do, however, propose to make some alterations to the present arrangements to provide for the children to spend more time in a block with each parent and with each other to enable the children to maintain and build up their relationship with each other and to maintain and build up their relationship with each parent.

2. I am not of the view that there is evidence that would persuade the Court that there is no benefit or little benefit in the children not having a meaningful relationship with each parent.  There is hostility between the parents but it does appear clear that each parent is concerned for the welfare of their son and their daughter.  I have considered the allegations of family violence.  I certainly propose to restrain the parties from using physical punishment on the children.  I am of the view that it will benefit the children’s relationship with each other for them to continue to attend the same school, which they used to do and they are now back doing, and I propose to restrain the parents by injunction from removing either of the children from that school.

3. There appears to be no issue that the children should not be left unsupervised in the presence of the paternal grandmother.  The parents should not abuse or criticise or denigrate each other in the presence or hearing of the children, nor should they discuss these proceedings with the children or show them any Court documents.  There should be, as there has been, telephone communication between parents and children and, in the light of the allegations made, I propose to order that the parties should not administer any prohibited drugs to themselves when the children are in their care or at any time beforehand. 

4. There will be some change, therefore, to the arrangements to allow for the children to spend longer blocks of time, not only together but with each parent.  But these are interim orders, I am reluctant to make a radical change until and unless I have a Family Report that would assist the Court in making that decision.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  15 September 2015