JANIERO & JANIERO

[2015] FamCA 1157

FAMILY COURT OF AUSTRALIA

JANIERO & JANIERO [2015] FamCA 1157

FAMILY LAW – CHILDREN – Interim parenting – The father seeks to spend unsupervised extended time with the child – The mother seeks that the father spends supervised time with the child – Where the child has special needs – Where the Child Responsive Program Memorandum to Court is expected in around two months – Where little is known about the father’s parenting capacity and relationship with the child – Where orders are made for the father to spend supervised time with the child on a limited interim basis.

APPLICANT: Mr Janiero

RESPONDENT: Ms Janiero

FILE NUMBER: PAC 4764 of 2015

DATE DELIVERED: 23 November 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 23 November 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: James Papas Solicitors

COUNSEL FOR THE RESPONDENT: Ms Picker

SOLICITOR FOR THE RESPONDENT: CM Lawyers

Orders pending further order

(1)The child, B born … 2008, is to live with the mother.

(2)The child is to spend time with the father supervised by Bridging Families or through an alternate supervision service suitable to both parties each alternate Saturday between the hours of 10.00 am and 1.00 pm to commence on Saturday 28 November 2015.

(3)The parties are each to pay one half of the costs of supervision referred to in Order 2.

(4)The matter is to be listed for a First Day intake of the Less Adversarial Trial and further interim hearing on a date to be fixed following the release of the memorandum from the family consultant.

(5)Pursuant to section 68L of the Family Law Act 1975 (Cth), interests of the child, B born … 2008 are to be independently represented by a lawyer in these proceedings.

(6)The Legal Aid Commission of New South Wales, Parramatta Office, is requested to make arrangements as soon as practicable to secure appropriate representation for the child’s interests.

(7)The parties are to provide to the Parramatta Office of the Legal Aid Commission of New South Wales, at Level 5, 91 Phillip Street, Parramatta NSW 2150 or DX 8293 Parramatta, forthwith copies of all documents upon which the parties rely in these proceedings, together with all existing Orders and copies of any relevant reports.

(8)Leave is granted to the Independent Children’s Lawyer, when appointed, to issue such subpoena as he/she considers relevant to the issues before the Court.

(9)Leave is granted to the Independent Children’s Lawyer, when appointed, to have photocopy access to documents produced on subpoena in these proceedings.

(10)The Independent Children’s Lawyer is exempt from fees pursuant to Division 2.3 of the Family Law (Fees) Regulations 2012 (Cth).

(11)Leave is granted to the Independent Children’s Lawyer to relist the matter on short notice by arrangement with the Court in chambers in appropriate circumstances.

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).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4764  of 2015

Mr Janiero

Applicant

And

Ms Janiero

Respondent

REASONS FOR JUDGMENT

1. The matter concerns the short term interim parenting arrangements for the child, a little boy of seven, the only child of the parents who separated in February 2014 following a 17 year marriage.

2. Initially the parties and the child remained in the former matrimonial home together until May 2015 when there was an incident at the home which resulted in police intervention.

3. The father commenced the proceedings by filing an initiating application on 27 September 2015.  He seeks final orders that the parents have equal shared parental responsibility for the child and that the child live in a shared care week-about arrangement.

4. On an interim basis, he seeks orders that the parents have equal shared parental responsibility for the child, that the child live with the mother and spend time with him each Thursday after school until 7.00 pm and each alternate weekend from after school Friday until 6.00 pm Sunday.

5. The mother proposes, on an interim and final basis, that she have sole parental responsibility for the child and that the child spend supervised time with the father each alternate Saturday for three hours, supervised by a private supervision service with the costs of the supervision to be borne by the father.

6. In the course of submissions, the mother’s legal representative indicated that the mother did not oppose such supervised time occurring each week.  She also indicated that a suitable supervisor is currently available each Saturday, to commence this weekend.

7. I noted at the outset of the application that the parents are currently due to see a family consultant for an assessment as part of the Child Responsive Program on 11 January 2016 and expressed the view that I would be in a better position to deal with the application after such an assessment and preparation of a memorandum from the family consultant.

8. It is the father’s position, however, that as the child has not spent regular time with him since May 2015 in circumstances where he is seeking a shared care arrangement and the mother will not consent to anything other than three hours per week and that it be supervised by a private agency (which he says is not warranted and which he cannot afford), that he wishes to pursue this application for interim orders.

9. In the circumstances the application was truncated and the parties had very limited opportunity to make submissions but I did make it clear that this was only a short-term interim application and that I would list it for a more complete interim hearing early in 2016.

10. The father’s case, essentially, is that he was significantly involved in the child’s care prior to separation but that since separation the mother has been obstructive of the father’s relationship with the child and has only allowed the child to have what he describes in his affidavit as “a few fleeting minutes each day” with the child and that is the description of the arrangement that pertained up until actual physical separation.

11. He said that the mother has insisted upon being present on all occasions that the child did spend time with the father.  The father says that the mother is overprotective and that there are no concerns with respect to his parenting capacity that should require that the time he spends with the child be supervised.  As noted, his ultimate application for final orders is that the parents equally share the care of the child.

12. It is the mother’s position that the father was not significantly involved in the care of the child prior to separation and has never cared for the child at all alone.

13. She contends that as the child has special needs, which the father is unable to manage, supervision of their time together is required, at least until the time of the assessment by the family consultant and when a more complete application for an interim orders can be considered by the Court.

14. The mother contends that the child has been diagnosed with attention deficit hyperactivity disorder, oppositional defiant disorder and sensory processing disorder.  A report dated 5 November 2015 directed to “Whom it may concern” from an educational and developmental psychologist states that the child has been attending for psychological treatment since August 2015 for the management of emotional regulation, separation anxiety from the mother and conduct behaviours at school.

15. The mother says, and the psychologist report supports, that the child experiences exacerbation of his uncontrollable behaviour and unsettled symptoms when his routine is interrupted.  The mother contends that the father has no capacity to manage the child and for this reason any time with the father should be supervised.  She also said that the child suffers from separation anxiety and has little rapport with his father.

16. The father’s case is that supervision is not required and in any event, he can’t afford it.  He says that if supervision is by a private service he would not be able to pay it and would not see the child at all which would have a detrimental impact on his relationship with the child.

17. There is, I note, a significant dispute between the parties about financial matters and each party’s financial capacity and each alleges the other is in a superior financial position.  It is a matter which is unable to be resolved at this stage.

18. As previously noted, in the course of the busy duty list, I indicated that a more complete and meaningful consideration of the best interest considerations will be able to be undertaken following the assessment by a family consultant in the course of the Child Responsive Program which will include an interview of the child.

19. In these circumstances I am not able to apply the considerations, in a detailed manner, to this application.  There is no dispute that the child does have special needs, including a separation anxiety and has some quite severe disruptive and oppositional behaviour.

20. On the father’s own case, since the time of separation in February 2014 when the child was five, the father has had no role in day-to-day care of the child and has spent only very short amounts of time with him.

21. The father’s capacity to parent the child, having regard to his special needs is unknown and the nature of their relationship currently is also unknown.  In these circumstances, in my view, caution should be exercised in re-establishing that relationship.

22. In the absence of more information, there may be risks involved in commencing the regime of time proposed by the father which includes overnight time.

23. The mother says she recognises the benefit to the child in spending time with his father and even amended her proposal in the course of submissions to time each weekend.  The cost of the proposal, however, is an impediment to that time occurring, according to the father.

24. As noted there is significant dispute between the parties about their respective financial positions.  In these circumstances, in my view, it is most appropriate for the parties to share the expenses associated with the father spending time with the child, especially as that time is for the benefit of the child.

25. Accordingly I make orders as set out in the forefront of these Reasons for Judgment on a limited interim basis.

    I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 23 November 2015.

    Associate: 

    Date:  21 December 2015