JOSEPH & BISHOP

[2015] FCCA 2765

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOSEPH & BISHOP [2015] FCCA 2765

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – relocation – best interests of the child – where previous interim orders made by consent – whether there is a need for supervision of the father’s time with the child – mental health issues – where order made for the appointment of an independent children’s lawyer – where application to vary earlier consent orders premature – evidence insufficient to remove the requirement for supervision.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 68L

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: MS JOSEPH

Respondent: MR BISHOP

File Number: CRC 115 of 2015

Judgment of: Judge Scarlett

Hearing date: 21 September 2015

Date of Last Submission: 21 September 2015

Delivered at: Coffs Harbour

Delivered on: 22 September 2015

REPRESENTATION

Solicitor for the Applicant: Ms McKinnon

Solicitors for the Applicant: Slater & Gordon

Solicitor for the Respondent: Ms Saliba

Solicitors for the Respondent: Legal Aid NSW

ORDERS

1. The interests of the child X born (omitted) 2010 are to be independently represented by a lawyer and Legal Aid New South Wales is requested to arrange this representation.

2. Within fourteen (14) days of the date of these Orders the parties must forward to Legal Aid New South Wales at Coffs Harbour copies of all Applications, Responses, affidavits and other relevant documents for the use of the Independent Children’s Lawyer when appointed.

3. The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas without charge of further leave of the Court.

4. BY CONSENT UNTIL FURTHER ORDER the Applicant Mother and the Respondent Father are restrained by injunction from relocating the residence of the child X from the (omitted) area.

5. In all other respects the Application for Interim Orders contained in the Response filed on 11 September 2015 is dismissed.

6. The matter is adjourned to Tuesday 24 November 2015 for further mention at 11:30 am.  

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT COFFS HARBOUR

CRC 115 of 2015

MS JOSEPH

Applicant

And

MR BISHOP

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for parenting orders by the Mother of a little girl called X, who was born on (omitted) 2010. X is 5 years old and lives with her mother. It is a part of the Mother’s case for final orders that she wishes to relocate with her husband and the child to the Brisbane area in the new year prior to the commencement of the child’s schooling.

2. There are Interim Orders in force, which were made by consent in this Court on 22^nd July 2015. Those Orders provide that:

   a)The parents are to have equal shared parental responsibility for the child;

   b)The child is to spend time with her father, the Respondent, supervised by the Paternal Grandmother Ms L, each week:

   i)From 10:00 am to 4:00 pm for two visits; and then

   ii)From 10:00 am to 6:30 pm; and

   iii)Any other times as agreed.

3. The Father filed a Response on 11^th September in which he seeks further parenting Orders which would not involve supervision. The Orders that he seeks are:

   1. That the child X born (omitted) 2010 live with the Mother.

   2. That the parents shall have equal shared parental responsibility for the child.

   3.  That the child spend time with the Father as follows:

   a.  Each Saturday from 10:00 am to Sunday at 10:00 am for a period of 8 weeks;

   b.  Each Saturday from 10:00 am to Sunday 2:00 pm for a period of 8 weeks;

   c.  Each Saturday from 10:00 am to Sunday 4:00 pm.

   d.  Any other times as agreed.

   4. That the father live with the Paternal Grandmother while the child is in his care.

   5. That the Mother have the child available for telephone conversations with the Father between 5:00 pm and 5:30 pm each Tuesday with the Father to call the child on the Mother’s mobile phone.

   6. That the parents be restrained from relocating the child from the (omitted) area.

   7. That the parents be restrained from discussing these proceedings with or in the presence of the child.

   8. That neither party denigrate the other or members of their family in the presence of the child or allow any other person to do so.

4. The Mother opposes these Orders.

5. The thrust of the Father’s application is that there is no need for supervision of his time with the child.

Background

1. The Mother was born on (omitted) 1990. She is 25 years of age.

2. The father was born on (omitted) 1985. He is now 30 years old.

3. The parties met when the Mother was 17 years of age and the Father was 22. They started living together in 2007. They separated in April 2011.

4. There is one child of the relationship, the subject child X, who was born on (omitted) 2010. The child was seven months old when the parents separated. She remained living with the Mother.

5. On 6^th September 2011 the parties entered into Consent Orders in the Local Court at Coffs Harbour providing that:

   a)the child would live with the Mother;

   b)the parties would have equal shared parental responsibility for the child;

   c)the Father would spend two nights a week with the child until she reached the age of two years in accordance with his work roster, increasing to three nights once the child attained the age of three.

6. The Mother married on (omitted) 2013. She and her husband have two daughters, aged three years and eleven months respectively.

7. The Father has had mental health issues since the age of 17 and has been prescribed medication for depression. In March 2015 he admitted himself to (omitted) Hospital in (omitted) for a period of a week under the care of a psychiatrist. He is currently not in employment and receives a disability pension or benefit.   

Issues

1. The Mother wishes to continue the supervision of the Father’s time with the child as she is concerned about the Father’s mental health. The Father asserts that his mental health is under control and he does not pose any risk to the child.

2. The Mother, through her solicitor, Ms McKinnon, has consented to an order restraining her from relocating the child’s residence out of the (omitted) area until further order.

3. When the Application came before the Court on 21^st September I decided that it was appropriate to order that the child’s interests should be independently represented under the provisions of s.68L of the Family Law Act 1975 (Cth), noting that the Father’s mental health was a significant issue between the parties (see Re K[1]). 

   [1] (1994) 17 Fam LR 537; FLC 92-461

Evidence and Submissions

1. It is the Father who is the moving party in the current application before the Court as he is seeking to vary the current consent orders by increasing the time the child spends with him and removing the need for supervision.

2. The Father relied on the following affidavits:

   a)his affidavit sworn 10^th September 2015; and

   b)the affidavit of his mother, Ms L, sworn on 8^th September 2015.

3. The Mother relied on the following affidavits:

   a)her affidavit affirmed 1^st  May 2015; and

   b)the affidavit of her husband Mr B affirmed 1^st May 2015.

4. The Mother’s solicitor, Ms McKinnon, tendered material produced on subpoena from:

   a)Medicare;

   b)(omitted) Medical Centre; and

   c)(omitted) Hospital.

5. It is the Father’s case that his mental health issues are not new and are well known to the Mother. He deposed that his mental health has improved as a result of his admission to (omitted) Hospital under the care of Dr P, his psychiatrist, to have his medication reviewed. He stated:

   This treatment was the best treatment I have ever had. Through this process I was provided new medications and treatment that I have responded very well to. I have never felt as good as I have now that I am under this new treatment. [2]

   [2] Affidavit of Mr Bishop 10.9.2015 at paragraph [15]

6. The paternal grandmother, Ms L deposed that:

   a)her son’s treatment plan is very effective and he is completing documentation to return tom work;

   b)whilst she is happy to act as a supervisor she no longer feels that this is necessary; and

   c)it is difficult for her to supervise the Father’s time with the child on some occasions because of her work commitments.[3]

   [3] Affidavit of Ms L 8.9.2015 at [4], [7] and [8]

Applications for Parenting Orders

1. When considering applications for parenting orders, the Court should have regard to the matters contained in Part VII of the Family Law Act 1975, particularly sections 60B, 60CA, which prescribes that the best interests of the child must be the paramount consideration, sections 60CC, 61DA and 65DAA. I have considered the matters in those sections so far as they are relevant.

Conclusions

1. One of the difficulties involved in interim applications is that they involve a “truncated procedure” where the Court considers the affidavit evidence but does not have the opportunity to have that evidence tested by way of cross-examination. This means that it can be difficult, if not impossible, to make findings on disputed issues of fact (see Goode & Goode[4] ).

   [4] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

2. The issue of the Father’s mental health looms large over this case. In my view, the application by the Father to vary the Orders to which he consented in July of this year is premature. It would be useful for the Court to have the submissions of the Independent Children’s Lawyer, who should be in a position within a matter of a few weeks to make inquiries and issue subpoenas.

3. There is a need to obtain some detailed medical evidence about the Father’s current state of mental health and a prognosis, if possible. An affidavit from the Father’s psychiatrist would appear to be necessary, or at least desirable.

4. The application is premature, as I said, and the evidence is insufficient at this stage to make the orders that the Father seeks. The Mother has consented to an injunction restraining her from relocating the child’s residence out of the (omitted) harbour area until further order, and in my view it should apply to both parties.

5. In other respects, however, the Father’s application for interim orders will be dismissed. The proceedings will be adjourned to 24^th November 2015 for further mention at 11:30 am.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  9 October 2015