KIRKPATRICK & HIGGINS

[2015] FCCA 3207

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIRKPATRICK & HIGGINS [2015] FCCA 3207

Catchwords:
FAMILY LAW – Children – parenting – recovery order sought.

FAMILY LAW – Orders – interim orders – alleged family violence – alleged drug use – parties directed to attend Child Dispute Conference.

PRACTICE AND PROCEDURE – Where Application filed at Wollongong Registry but heard at Sydney Registry – where appointment for Child Dispute Conference available at earlier date than at Wollongong Registry – where Application transferred back to Wollongong Registry for further mention.

Legislation:

Family Law Act 1975 (Cth), ss.11C, 11F, 60CA, 60CC, 68L

Applicant: MS KIRKPATRICK

Respondent: MS HIGGINS

File Number: WOC 170 of 2014

Judgment of: Judge Scarlett

Hearing date: 1 December 2015

Date of Last Submission: 1 December 2015

Delivered at: Sydney

Delivered on: 1 December 2015

REPRESENTATION

Solicitor for the Applicant: Mr Cohen (as Agent)

Solicitors for the Applicant: Sydney Family Law Specialists

Respondent: In Person

ORDERS

UNTIL FURTHER ORDER

1. The Applicant mother and the Respondent father are to attend a Child Dispute Conference with a Family Consultant at 10:00 am on Wednesday 23 December 2015 at the Sydney Registry of the Court under the provisions of s.11F of the Family Law Act 1975, reportable under s.11C of the Act.

2. The Respondent father is to file and serve a Response and an affidavit stating the facts upon which he seeks to rely no later than 4:00 pm on Tuesday 8 December 2015.

3. The child, X born (omitted) 2013, spend time with the parents as follows:

   (a)with the Mother from 4.00pm on Friday 4 December 2015 until 4:00 pm on Friday 11 December 2015 and each alternate week thereafter; and

   (b)with the Father until 4:00 pm on Friday 4 December 2015 and then from 4:00pm on Friday 11 December 2015 until 4:00 pm on Friday 18 December 2015 and each alternate week thereafter.

4. Changeover where the child goes from the care of one parent to the care of the other parent is to take place at the McDonald’s Family Restaurant at (omitted) at 4:00 pm each Friday.

5. The Application is adjourned to the sitting of the Court at its Wollongong Registry, Level 1, 43 Borelli Street, Wollongong, New South Wales on Wednesday 9 December 2015 at for further mention at 9:30am before his Honour Judge Altobelli.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

WOC 170 of 2014

MS KIRKPATRICK

Applicant

And

MS HIGGINS

Respondent

REASONS FOR JUDGMENT

1. The Application before the Court has been brought on an urgent basis by the mother of a little boy called X, who was born on (omitted) 2013.  The Application was filed at the Wollongong Registry of the Court, but due to the unavailability of a Judge in Wollongong at the time the Application was listed before me in Sydney. 

Orders sought

1. The mother seeks that the child, X, who is two years of age, be returned to her care.  It is her case that until the parties separated on or about the 20^th of November 2015 she was the primary carer for the child.  The father disputes that claim.  The father, who has not filed any affidavit evidence at this stage, makes a claim that he has been, at least, a carer of the child to the same extent as the mother.  He has also made allegations, which again are not yet in affidavit form, of drug abuse by the mother and of violence.  The mother claims violence by the father.

2. At this stage there is only evidence from one party and the Court is not able to test the evidence or to have evidence which will give anything near a complete picture.  When the matter came before the Court yesterday an order was made for the parties to attend a child dispute conference with a family consultant.  The availability of child dispute conferences in the Wollongong Registry is very limited and the court was informed that an appointment would not be available until February.  This is, of course, too late in the circumstances of this case.

3. Unfortunately, whilst an appointment became available at 10 o’clock this morning, it became unavailable due to the unfortunate illness of the family consultant.  However, inquiries have revealed that an appointment with the family consultants at this registry will be available at 10 o’clock on Wednesday, 23 December 2015.  That is considerably earlier than the arrangements which could be made for Wollongong and it is important that these parties see a family consultant for the purposes of a child dispute conference at the earliest available opportunity.

4. As I said, it is the mother’s case that this child should be returned to her care.  She has a child from a previous relationship, a boy called Y.  Y is four years of age, having been born on (omitted) 2011.  He is the subject child’s, X, half-brother.  Y is in the care of the mother.  It is certainly the case that X, until today, had not seen his mother since the parties separated nor, for that matter, had Y.  The mother has now seen the child, albeit for a short period of time, at the child dispute section of this Registry because the father brought the child in with him.  So the mother has had the opportunity of spending some brief period of time with him.  

5. The mother seeks that this child should be returned to her care immediately.  The father opposes this, raising concerns about what he says are the mother’s failings in her ability to provide parental care.  Notwithstanding those allegations, he has suggested a shared care arrangement either on a split-week or on a week-about arrangement.  At this stage the Court has only limited information and will not have more information until the father’s affidavit material and his response can be filed and the parties can see a family consultant.

6. The father has told the Court that he has made arrangements to see a solicitor, who says that she can have a Response and an affidavit filed within seven days.  This is probably the earliest that can be expected in the circumstances, but it is clearly important for the father to have legal advice from an experienced practitioner in this field.

The relevant law 

1. The Court must regard as the paramount consideration, the best interests of the child (see Family Law Act 1975 (Cth), s.60CA). The best interests of the child involve a consideration of the need for the child to have a meaningful relationship with both parents and the need to protect the child from harm (see s.60CC(2)).

2. There are other matters under subsection 3 of section 60CC of the Family Law Act 1975 which the Court will need to consider in due course once the information is available. 

Conclusions

1. This is a child of tender years.  He is two years and just over two months old.  He needs to be spending regular time with each parent.  He has certainly been away from his mother for longer than would be desirable, but regular time with parents is necessary so that he can build up a proper attachment relationship.

2. It is not an ideal situation for there to be a shared care arrangement, but there needs to be an arrangement put in place so that the child can spend some consistent time with parents, albeit parents who are very much in conflict, until the Court can make an informed decision about interim parenting arrangements.  It is for that reason that I propose, until the Court at the Wollongong Registry is in a position to make interim parenting orders with more complete information, that there will be an arrangement whereby the child spends time with each parent on a week-about arrangement.

3. It will commence on Friday.  The child, X, will remain in the care of the father until Friday afternoon when there will be a changeover at the McDonalds family restaurant at (omitted) and the child will then spend a week in his mother’s care and that arrangement will continue on a week-about basis until the court is in a position to make further orders.  The immediate priority is to get this child back into a regular routine so that he is spending time with each of his parents.

4. As to the father’s allegations of the mother’s failings in respect of drugs and alleged violence, no doubt these will be covered in the father’s affidavit material when it is filed. It may well be that the court will decide at some stage, once this information is available and the parties have seen a family consultant, that the Court will consider this child’s interests should be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975.

5. That, however, is a decision which should, in my view, be made by the Judge who will have the carriage of the matter once that information is available.  For the time being, however, I make the following orders until further order:

6. A copy of the Reasons for Decision when edited will be attached to the Court file for the benefit of the Judge at Wollongong.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  2 December 2015