Janeiro and Janeiro
[2016] FamCA 606
•27 July 2016
FAMILY COURT OF AUSTRALIA
| JANEIRO & JANEIRO | [2016] FamCA 606 |
| FAMILY LAW – CHILDREN – Interim parenting – Time with the father – Parental responsibility – Best interests of the child – Child’s special needs – Where there is a benefit to the child in sharing a meaningful relationship with both parents – Assessment of risk of abuse, neglect or exposure to family violence in father’s household – Effect of a change in the child’s circumstances is a significant factor – Parental capacity – No order made in relation to parental responsibility – Orders made for extended time with the father. |
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C, 61DA, 65DAC
| Deiter & Deiter [2011] FamCAFC 82. |
| APPLICANT: | Mr Janeiro |
| RESPONDENT: | Ms Janeiro |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Neilson |
| FILE NUMBER: | PAC | 4764 | of | 2015 |
| DATE DELIVERED: | 27 July 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 21 June 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Maddox |
| SOLICITOR FOR THE APPLICANT: | James Papas Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Picker |
| SOLICITOR FOR THE RESPONDENT: | CM Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta Family Law |
Orders
Orders 2 and 3 of the Orders made by this Honourable Court on 24 November 2015, be discharged.
The child the child B (hereinafter referred to as “the child”) born … 2008, live with the Mother.
The child spend time with the Father as follows:
(a) Each alternate Saturday from 10am to 4.00pm; and
(b) Other times as agreed between the parties.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Janeiro & Janeiro has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 4764 of 2015
| Mr Janeiro |
Applicant
And
| Ms Janeiro |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns B, a boy of almost eight who suffers from various disorders and for that reason has special needs. the child is the only child of the parents who separated after a 17 year marriage.
The parties physically separated in May 2015, when the child was six, but the father did not spend regular time with the child until interim orders were made in November 2015 for the father to spend supervised time each alternate Saturday for three hours. It was made clear in the November 2015 judgement[1] for interim orders that very little was known of the various “best interest considerations” at that stage and that in particular, the parties had not yet participated in a Children’s and Parents Issues Assessment with a family consultant as part of the Child Responsive Program. I indicated that I was prepared to consider the issue of interim orders further, once that assessment had taken place.
[1] Janeiro & Janeiro [2015] FamCA 1157.
In this interim application, the father presses for an increase in his time with the child and proposes that such time be extended to a period of eight hours each Saturday for four weeks, then increase to two days and one overnight each alternate weekend for four weeks and then increase to alternate weekends commencing after school Friday to 6pm Sunday. The father proposes that none of his time with the child be under supervision.
The mother opposes the father’s application but her position changed throughout the interim proceedings. Ultimately, the mother said that she could agree to an order that the father spend time with the child for five hours each alternate Saturday and that such time be supervised for a period of four occasions.
The Independent Children’s Lawyer (“ICL") is of the view that the father’s time with the child should be increased to six hours each alternate Saturday, (though she conceded in the course of the hearing that this could occur each weekend) and that the time need not be supervised. The ICL however, is of the view that it is not in the child’s best interests for overnight time with the father to be introduced at this stage and therefore opposes his application.
The parties have otherwise reached agreement about orders in relation to the father’s engagement with the child’s treating practitioners and the mother providing information to the father in this regard.
The question for me to determine is whether it is in the child’s best interests for there to be an increase in his time with his father as his father proposes.
Background
The father, who is 44 and of European heritage, lived in Europe for the majority of his life until he was 15 when he and his family returned to Australia.
The father has an adult son from a previous relationship who is aged 22.
The father and the mother were married in 1999.
The parties’ only child, B, was born in 2008. There is a dispute between the parties, which is unable to be resolved on an interim basis about the father’s level of involvement in the child’s care in the early years.
In February 2014, the parties separated but continued to live in the same home with the child. From this time the father had little day to day involvement in the child’s care, though, there is a dispute between the parties regarding the reasons for this.
In 2015, the father met Ms C with whom he has subsequently formed a relationship.
In May 2015, there was an incident at the family home, which resulted in police intervention and the father being charged. As I understand it, the charges against the father were dismissed when they were heard in a Local Court and an application for an apprehended domestic violence order (“ADVO”) for the protection of the mother against the father was also dismissed.
Following the incident in May 2015, the father left the family home and the child remained living with his mother. The father only spent limited time with the child following his parents’ separation and his mother insisted prior to the interim orders made in November 2015, that all of the child’s time with his father be supervised.
The child has been diagnosed with Attention Deficit Disorder, Oppositional Defiant Disorder and Social Communication Disorder. He attends a school for children with behavioural disturbances and also a local public school one day per week. At the time of the hearing he is described by his paediatrician as “making nice progress” at his special school. Features of his conditions include that he is quite dysregulated emotionally, can be anxious and highly distracted and exhibits challenging behaviours. In particular, the child is described as displaying low self-regulation and an inability to cope with small changes in his environment. There had previously been some suggestion that the child may have Autism Spectrum Disorder, though this is discounted in reports of his paediatric physician and psychologist.
The father has been spending time with the child on each alternate Saturday for three hours supervised by a private supervision agency since late November 2015. The reports from the supervisor of the child’s time with his father on numerous occasions, which generally occurred at a park and included the father providing a barbecue or other lunch, are very positive. The child is described as relaxed and happy during the visits and the interaction between him and the father is described as warm, loving, attentive and in other positive terms. While the child can be a little difficult at times there is nothing of concern in any of the reports that indicates the father’s incapacity to meet the child’s needs or manage him.
On 11 January 2016, the child and his parents were assessed by a family consultant as part of the Child Responsive Program. the child was briefly observed with each of his parents and the family consultant spoke briefly to the child’s paediatrician.
The father has completed a five session post separation parenting course in 2016 as recommended by the family consultant following her assessment in January.
In March 2016, the father and his partner, Ms C, began living together in a de facto relationship in a four bedroom home with Ms C’s children, aged 18 and 13. The father has prepared a bedroom for the child and says that initially if the orders are made for overnight time he will sleep in the same room as the child and then slowly transition the child to sleep in the room alone. Ms C has not yet been introduced to the child, though the father has informed the child about her.
The father has sufficient flexibility with his employment that he will be able to collect the child from school and return him to school under his proposed orders.
In the course of the interim proceedings the parties agreed that a Court Expert be appointed to assist in the determination of the parenting proceedings. The parties also have an outstanding property dispute. It can therefore be expected that the interim arrangements will be continuing for many months prior to a final hearing.
In addition to the uncontested facts there are a number of matters in dispute, some of which are potentially relevant to the child’s best interests.
In her affidavit the mother alleges that there were occasions when the father’s older child was injured when he was a young child as a result of the father’s neglect, that the father has serious impairment in his parenting capacity, has “anger management issues” and was a perpetrator of family violence. In the course of submissions in the interim hearing however it was conceded on behalf of the mother that she does not contend that there is an unacceptable risk that the child may be exposed to family violence in the father’s household and she resiled from any suggestion that there was a risk the child may be abused or neglected by the father.
Ultimately, it was submitted on behalf of the mother that there was an unacceptable risk of harm to the child in the father’s home should he spend overnight time as the father lacked insight into the child’s special needs and had not demonstrated his parenting capacity “to her comfort”. For this reason the mother contends that supervision is still needed when the father is spending time with the child for an initial period of four weeks. This submission as to the issue of unacceptable risk did not, however, involve the resolution of factual matters.
The law & discussion
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[2].
[2] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346.
In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting. The objects are to ensure that the best interests of the children are met in particular ways such as:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities concerning the care, welfare and development of their children.
a)The principles underlying these objects include: children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
In Deiter & Deiter[3], the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration. As indicated, it is likely that the interim parenting orders will be operational for many months prior to a final hearing.
[3] [2011] FamCAFC 82.
Goode (supra) sets a framework for the conduct of interim proceedings. After identifying the competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts, the first issue to ordinarily be considered is that of parental responsibility.
Parental responsibility
In this matter, the mother seeks in her Response to the Initiating Application an order that she have sole parental responsibility for the child on an interim basis, though this was not addressed in the interim hearing. The father and ICL did not seek an order with respect to parental responsibility for the child and there is no current order for parental responsibility in place. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that each of the parents of a child has parental responsibility for the child.
In Goode & Goode (supra), the Court held that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility the major decisions for long-term care and welfare of children must be made jointly, unless the Court otherwise provides.
Under s 61DA(1), when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply if:
·There are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (s 61DA(2)) or
·When the Court is making an interim order, the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (s 61DA(3)).
At this interim stage, in my view, it would not be appropriate in the circumstances to apply the presumption under s 61DA(1) of the Act that it is in the best interests of the child for the parents to have equal shared parental responsibility for him. The parents currently do not communicate with each other and show no capacity to cooperate with one another. Further, a number of critical facts relating to the child’s best interests are unknown or in dispute (s 61DA(3)).
As the presumption of equal shared parental responsibility is not being applied in these circumstances, the statutory consequences do not follow and the Court must make such order as is in the best interests of the children as a result of consideration of the matters set out in s 60CC.
So far as the mother’s proposed order for sole parental responsibility and orders for the father’s time are concerned, the Court must make such orders as are in the best interests of the children as a result of consideration of the matters set out in s 60CC.
Best interests of the child: s 60CC considerations
Under this section, in determining what is in a child’s best interests, the Court is to consider the matters set out in subsections (2) and (3).
The primary considerations: s 60CC(2)
The primary considerations, which are contained in subsection (2), are:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).
The benefit of a meaningful relationship with both parents
Although the meaning of meaningful relationship is also not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[4]
[4] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].
Both of the parents’ proposals and that of the ICL will result in the child living with his mother and spending significant and regular time with his father. Both parents appeared to acknowledge that there is a benefit to the child in sharing a meaningful relationship with both parents, and these relationships will be fostered under both their proposals.
The need to protect the child from physical or psychological harm
Although the mother appeared to suggest in her affidavit that there is a risk that the child may be subjected to abuse or neglect or exposed to family violence in the father’s household, her counsel resiled from this contention in the course of submissions. Ultimately it appeared that the mother sought orders that four occasions of the father’s time with the child be supervised to provide her with comfort.
I accept the position of the father and the ICL that there is no evidence to suggest that the child is at risk of abuse or neglect in the father’s care or that he will be exposed to family violence in the father’s household. There is no necessity that requires the father’s time with the child to be supervised.
Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant.
The additional consideration: s 60CC(3)
Any views expressed by the children and any factors underlying his views
The child has expressed his views to the family consultant in the course of the Children and Parents Issues Assessment. The family consultant says that the child presented as suffering from some form of developmental delay, did not engage well in the interview with her and stated “I can’t remember” to some questions, giving the family consultant the impression that he was focused on playing his game and did not want to be interrupted.
However, the child did express some views to the family consultant, including that he was happy living with his mother and that he wanted to spend time with his father, but did not want to stay overnight with him. It is reported that the child initially said he wanted to spend time with his father for four hours per visit, then changed his mind and said he would like one day a week with him, before changing again to say he preferred to spend one day per fortnight with his father.
Having regard to the child’s age and disability and that he changed his mind in the course of the short interview, I attach little weight to the specifics of his views, other than his desire to spend time with his father. the child presented at each of the occasions on which he spent supervised time with his father and in the interactions observed by the family consultant as enthusiastic to spend time with his father and that he enjoyed that time. This is consistent with his stated views to the family consultant.
The nature of the relationship of the child with each of his parents, and other significant persons
In the brief observation of the child with each parent and from the information given in the assessment, the child appeared comfortable with both of his parents. He appeared to enjoy the father’s attention and was seen to be spontaneously affectionate towards him. The family consultant observed warm interaction between the mother and the child, which is consistent with her having been his primary carer throughout his life.
The child has not been introduced to the father’s de facto partner and has no relationship with her.
Extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, to spend time with or to communicate with the child
Although it appears to have been the mother’s general contention that the father had little involvement in the child’s care prior to separation and his motivation in seeking the parenting orders is questionable, the father appeared to the family consultant to be genuinely desirous of having a relationship with the child. She did note however, that the father was potentially grandiose with regard to his past level of involvement with the child.
The mother appears to have taken all steps to have the child diagnosed in relation to his difficulties and to arrange treatment. The father for some time, up until the appointment with the family consultant, appeared to question the diagnosis and treatment.
Following separation, when the family continued to live in the same home, it appears that the father had a reduced role in decision-making and spending time with the child. After the parties physically separated in May 2015, the father did not commence these proceedings and seek interim orders in relation to the child until late September 2015. Since that time he has diligently pursued his application to spend more time, including overnight time with the child.
Extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the child
There is no evidence about any child support paid by the father and it can be assumed that the mother has borne the expenses associated with the child since separation. Pursuant to the current interim orders, both parties are obliged to share the costs of supervision of the father’s time with the child.
Any change in the child’s circumstances, including the likely effect of separation from either parent, or other child, or other person with whom the child has lived
In my view, this is the most salient feature in this matter. Under the father’s proposal the child, who has only spent time with him each alternate week for a few hours in a supervised setting, will have a significant increase in that time and after only four weeks, this will move to overnight time and thereafter to alternate weekends, including two overnights.
There is no dispute that one of the features of the child’s conditions is that he is emotionally dysregulated and has particular difficulties in adapting to changes in his environment. The psychological and paediatric reports show that there has been an improvement in the child’s symptoms over time, but they are still present and there are many concerning features of the child’s behaviour which involve careful management.
In my view, the father’s proposal does involve significant changes in the child’s environment. The period of time the child is to spend with his father is to significantly increase and overnight time is to be introduced, in a new home environment and with other people, including the father’s partner and her children who the child has never met. Although significant weight is not attached to the child’s views, he did inform the family consultant that he did not wish to spend overnight time with his father. While there is some concern that his views may be influenced by his mother, there is also a possibility that the child is expressing a general level of discomfort about these proposed arrangements.
I accept the submission of the ICL that on the current evidence, particularly from the child’s medical practitioners, the proposed orders introduce change at too fast a rate and there is a risk that if the child does not cope, this will derail the development of his relationship with his father.
I am of the view that the change entailed in the ICL’s proposal, that is increasing the regularity and length of time that the child spends with his father and that the time be unsupervised, does not raise the same risks to the child as under the father’s proposal, including the likely effect of separation from his mother.
Practical difficulty and expense of the child spending time with and communicating with a parent
There is no practical difficulty associated with any of the proposals for the child to spend time with his father. Some expense is involved in the mother’s proposal that the child’s time with his father continue to be supervised on four occasions.
Capacity of each parent and other persons to provide for the child’s needs, including emotional and intellectual needs
It is central to the mother’s position in the interim application that the father lacks the capacity to provide for the child’s special needs. The issue of parental capacity is central to the parenting application, and it is not possible on an interim basis to make any final determination in relation to the matter.
It is of concern that the father continues to display some level of disbelief in relation to the child’s special needs. Up until very recently, he disputed the diagnoses and his persistence with his application that the child spend overnight time with him in a new environment when the child has well documented difficulties in relation to that issue, raises some concern about his capacity. The family consultant also felt that the father presented as “potentially grandiose” with regard to his past level of involvement with the child, and possibly over estimating his behaviour management skills.
However, in the reports from the supervising agency of the time the father spent with the child following interim orders in November 2015, the father demonstrated a clear capacity to manage the child, including management of the child’s behavioural difficulties in a sensitive and appropriate manner.
Some concerns also arise in relation to the mother’s capacity to genuinely promote the child’s needs to have a relationship with his father. This is also a matter that will need to be resolved at the final hearing. Some concerns arise in my view, at this stage as a result of the mother’s insistence that the child’s time with the father continue to be supervised, albeit for a short period of time.
Maturity, sex, lifestyle, background, including lifestyle, culture and traditions, of the child and of either parent
Issues in relation to the child or parents’ lifestyle, background, culture and traditions are not of significance in this interim application. The child’s special needs are, however, particularly significant in this matter and have been dealt with when considering the other considerations.
Attitude to the child and responsibilities of parenthood demonstrated by each parent
The mother contends that the father had very little to do with the child prior to separation and questions his motivation in bringing this application. This would be a relevant factor when considering the father’s attitude to his responsibilities of parenthood, but is a matter in dispute between the parties and unable to be resolved on an interim basis.
Family violence
Although the mother has previously raised issues of family violence, this matter was not pursued and it was conceded on her behalf that there is no risk that the child would be exposed to family violence.
Both parents raised matters with the family consultant that if pursued could amount to allegations that the other was a perpetrator of family violence. These allegations were not pursued at the interim hearing and no findings in relation to them can be made at this stage. It is noted however that at the time of separation an application was made for an ADVO against the father for the protection of the mother and that he was criminally charged. Subsequently, the charge and application for ADVO were dismissed in the Local Court.
Conclusion
In coming to a decision about what orders are in the child’s best interests, I must balance the various matters to which I have referred. For the reasons given, I have attached particular weight to the nature of the child’s relationship with each of his parents and the likely effect of any changes in the child’s circumstances which would come about as a result of the orders proposed.
In my view, when applying those considerations to this matter it is in the child’s best interests for there to be an increase in the time that he spends with his father to promote the development of that relationship which is important to him. For the reasons given, there is no need for this time to continue to be supervised. However, I attach particular weight to the concerns raised in the reports of the child’s paediatrician and psychologist about the impact of change upon the child and his emotional regulation. In my view, there are real risks associated with introducing the child to a new environment, including the father’s partner and family members and moving to overnight time within the short time frame proposed in the father’s orders.
Having regard to these matters, I am of the view that it is in the child’s best interests for orders to be made as proposed by the ICL. Accordingly, the orders I make are set out at the forefront of this judgment.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 27 July 2016.
Legal Associate:
Date: 27 July 2016
Key Legal Topics
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Family Law
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Civil Procedure
Legal Concepts
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Appeal
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Remedies
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