Knill and Beckett (No 2)

[2018] FamCA 569

FAMILY COURT OF AUSTRALIA

KNILL & BECKETT (NO. 2) [2018] FamCA 569

FAMILY LAW – CHILDREN – Parenting – Whether additional overnight time is appropriate – nature of the relationship between the parties – whether additional time may negatively impact parenting capacity – where gradual change to contact arrangements.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Knill

RESPONDENT: Ms Beckett

INDEPENDENT CHILDREN’S LAWYER: Mrs A Evans

FILE NUMBER: CAC 712 of 2016

DATE DELIVERED: 24 July 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 24 July 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Neilan Stramandinoli Family Law

SOLICITOR FOR THE RESPONDENT: Phelps Reid Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Evans Family Lawyers

Orders

AMENDED UNDER THE SLIP RULE 31 JULY 2018

IT IS ORDERED, UNTIL FURTHER ORDER, BY CONSENT THAT

1. The father spend time with the child, B, as follows:

   (a)In each week from 9am to 5pm Wednesday;

   (b)On a fortnightly basis

   (i)From 9am Saturday until 5pm Sunday, commencing on 28 July 2018; and

   (ii)From 5pm Thursday to 1pm Friday, commencing 2 August 2018;

   (c)On Father’s Day from 9am to 5pm. 

2. All changeovers in respect to Order 1 will take place at Suburb I, Canberra and in the event that Suburb I is unavailable for any changeover, then changeover will occur at the McDonalds, Suburb N.

3. If changeover occurs at McDonalds, Suburb N, the following will apply:

   (a)The mother can utilise a third party to effect changeover on her behalf;

   (b)The parents will not facilitate a changeover of the child directly to the other parent;

   (c)The father must attend in the presence of a third party;

   (d)Both parents are permitted to be in attendance at changeover;

   (e)Changeover will take place inside the McDonalds restaurant; and

   (f)The father will not approach the mother at all.

4. Within seven days of the date of these orders, both parties will do all acts and things to participate in an intake assessment with Suburb I and to complete all requirements of Suburb I to enrol into the supervised changeover program.

5. In the event that fees apply to the changeover program at Suburb I, both parties will pay one half of those costs each.

6. Orders 3 and 4 of the orders made 21 December 2016 are discharged.

IT IS FURTHER ORDERED THAT

1. The matter is listed for trial from 10 through 12 and 15 through 19 October 2018.

2. The father is to file and serve any updated material that he intends to rely upon at the trial of the matter by close of business on 21 August 2018.

3. The mother is to file and serve any updated material that she seeks to rely upon at the trial of matter by close of business on 18 September 2018.

4. Each party is at liberty to issue such subpoena as they consider relevant to the matters at issue in this trial, provided no subpoena should be made returnable later than 14 days before the commencement of the trial. 

5. Seven days in advance of the trial each of the parties is to file and serve with the Court a case outline document that sets out the major contentions that they will rely upon to support the orders that they wish to be made at the trial.

6. In the event that the parties wish to present a tender bundle at the trial then each party is to serve a copy of that tender bundle upon each other party seven days in advance of the trial and to have a clean version ready to use for witnesses in the trial and a copy available for tender at the commencement of the trial. 

IT IS NOTED THAT

1. The father indicates that he intends to rely upon electronic media during the trial being audio or audio visual recordings, the solicitor for the father is directed to liaise with the Registry in advance of the trial to ensure that the facilities are available to enable the playing of that material. 

IT IS FURTHER ORDERED THAT

1. In the event that there is a difficulty with compliance with the orders to prepare the matter for trial the parties are at liberty to at first instance approach the Registrar for amendment to the procedural orders.

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 Knill & Beckett 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 CANBERRA

FILE NUMBER: CAC 712 of 2016

Mr Knill

Applicant

And

Ms Beckett

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter is a dispute pending final hearing listed for October for eight days regarding the number of overnight periods the child will spend with her father. 

2. The dispute was broader than that but the parties’ sensibly resolved issues about the frequency of time that she will spend with her father, the duration of that time and how the handovers will take place leaving just one issue. 

3. At present the orders which temporarily govern that time and were made in December 2016 provide for one overnight period per week between the child and her father.  The dispute is about a second overnight once per fortnight.  It may be observed that in this case all the parties have agreed to an increase in the time with the father.  They disagree, however, about whether part of that should be a second overnight period. 

4. This case is one that is replete with contentious issues about whether or not there has been violence in the relationship, whether or not the child has particular health issues, the mental health of each parent and the role which each of them played in the relationship.  It is in that context that the interim proceedings fall to be determined. 

5. The parties identified a number of factors that they said went to the orders being made.  For the father, the primary matters that were put were that it would be a natural progression from the current arrangements in place for the child to have that second overnight period.  The assertion was made that it sat with a recommendation made by Dr L, the single expert in the proceedings.  It was also observed that it would provide a longer timeframe to allow the father to engage in activities with the child that are presently precluded by a need to hand the child back.

6. The mother notes that they are awaiting a final hearing to resolve what are very difficult factual matters in this case.  She points to alleged abuse of her by the father in the interim, she notes that her mental health is fragile and raises concerns as to the triggering of that by a change in the regime. 

7. She says that Dr L is not in fact supportive of the application made because the recommendation relied upon by the father is predicated upon a determination being made that  the child will, in the long-term, remain in the ACT facilitating high-frequency time between her and the father as being the norm. 

8. The Independent Children’s Lawyer is supportive at this interim point of the mother's position.  She notes the time to trial, notes the factual complexity of the case, notes that there is a lack of evidence that supports the change which is proposed.  She makes the same observations as the mother about Dr L's recommendations being predicated upon a circumstance that is as yet undetermined.  She raises issues concerned with the mental health of the parties and importantly says that the Court should consider doing what it can to decrease conflict between the parties because of the adverse effects that the child suffers from being exposed to the effects of that conflict between the parties. 

9. The matter falls to be determined on the basis of what is in the child's best interests.  There is an order in place already about parental responsibility and on the interim, the parents have not sought to displace that order.  That order does not provide for equal shared parental responsibility and that means that the determination of what is in  the child's best interests for the moment is not governed by a legislative pathway, which itself is predicated upon a finding that there should be equally shared parental responsibility. 

10. Rather, the determination is at large governed by the factors set out in s 60CC of the Family Law Act1975.  Of those factors the matters identified by the parties (about which I note there must be caution because they are not able to be tested and I am unable to make fact findings at this stage of the proceedings), those matters centre upon the benefits of meaningful relationship between the child and her father, although I note that neither position advocated by the parties deprives the child of meaningful relationship with her father.  Each position however changes the mix of benefits that the child has through having time with her father.  They focus upon the nature of the relationships with the parents and their capacity to care for the child and how the arrangements might impact upon the capacity to care for the child, for example, the asserted fragility on the part of the mother in the context of the allegation of further aggression by the father. 

11. What has been agreed to by the parties sees a change in both the frequency and the duration of the time that the child will spend with her father.  She will spend longer blocks of time with her father, they will be less frequent.  The father seeks a greater move than that.  I am satisfied that as to what the parties have agreed to, that is the longer periods of time for the child to spend with her father, will bring further benefits of that relationship to  the child. 

12. However, there are number of problems with the proposal to extend it to a second overnight each fortnight.  One is that runs the risk of destabilising the mother, who is noted may already be hyper vigilant and fragile and who at present continues in a role as a primary carer.  It is not in the child's interest to run that risk particularly absent current evidence to show the benefits to the child of the change that is proposed. 

13. I also place some importance on giving the child a gradual change rather than an abrupt change.  What has been agreed to by the parties is a change for the child, it is a change in frequency, it is a change in the duration of the time so they are each longer periods of time with her father.  To add an additional change for that to span a two night period seems abrupt and carries with it some potential problems. 

14. These orders are then made in a context where I cannot make findings regarding the serious matters that the parties raise with each other.  Orders will be made in accordance with the consent terms that the parties have agreed to which will see an increase in the time that the child spends with her father. 

15. However, in the second weekend the time that the child spends with her father will be from 9am Saturday until 4pm Sunday. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 24 July 2018.

Associate:

Date: 31 July 2018