Lawson and Hill
[2013] FMCAfam 159
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAWSON & HILL | [2013] FMCAfam 159 |
| FAMILY LAW – Parenting – interim hearing – child spending time with father supervised by paternal grandfather – changeovers at contact centre – use of communication book – exchange of questions and answers between mother and paternal grandfather via communication book at changeover – whether the child should spend time with the father and extended family on a day during the Jewish Passover holiday period – transfer of proceedings to Family Court of Australia. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 62B, 64B, 65DA, 65DAA Federal Magistrates Act 1999, s.39 |
| Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR LAWSON |
| Respondent: | MS HILL |
| File Number: | SYC 1626 of 2012 |
| Judgment of: | Monahan FM |
| Hearing dates: | 12 & 13 February 2013 |
| Date of Last Submission: | 13 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 4 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Graves |
| Solicitors for the Applicant: | Cominos Lawyers |
| Counsel for the Respondent: | Not Applicable |
| Solicitors for the Respondent: | Hamish Cumming Family Lawyers |
| Solicitor Advocate for the Independent Children’s Lawyer: | Ms Karagiannis |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
The Contravention Application filed by the Applicant father (“the father”) on 4 February 2013 be adjourned to this Court on 5 April 2013 at 10:00am for mention (“the contravention mention hearing”).
Subject to paragraph one (1) herein, all extant applications be transferred to the Family Court of Australia (“the Family Court”) and be listed for mention before a Registrar of that Court on 15 April 2013 at 10:00am for mention.
The listing of the matter for mention hearing on 7 March 2013 be vacated.
In the event that the father wishes to withdraw his Contravention Application filed on 4 February 2013, he cause a Notice of Discontinuance to be filed within 21 days of the date of these Orders and write to Chambers, the legal representative for the mother and the Independent Children’s Lawyer advising of this, and Chambers will then consider vacating the contravention mention hearing.
The child [X], born [in] 2010, (“the child”) spend time with the father on 27 March 2013, at such times as may be agreed between the parties or, failing agreement, from 11:30am to 4:30pm.
Changeovers with respect to the time that the child spends with the father pursuant to paragraph five (5) herein occur at such place as may be agreed between the parties or, failing agreement, at the [omitted] Contact Service contact centre and, in the event that the contact centre is unavailable, changeover occur in accordance with paragraph five (5) of the Minute attached to the Orders made on 12 February 2013.
The Application in a Case filed on 4 February 2013 and corresponding Response filed on 11 February 2013 be otherwise dismissed.
AND THE COURT NOTES THAT:
(A)The purpose of the contravention mention hearing is, in the event that the father’s Contravention Application is not withdrawn, to consider listing that Application for hearing on a subsequent date.
(B)These proceedings are being transferred to the Family Court following a consideration of the parties’ indications as to the number of witnesses required at the final hearing and the estimated length of the final hearing exceeding four (4) days.
(C)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Lawson & Hill is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1626 of 2012
| MR LAWSON |
Applicant
And
| MS HILL |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings between the Applicant, MR LAWSON (“the father”), and the Respondent, MS HILL (“the mother”). The proceedings concern the child of the parties’ relationship, [X], born [in] 2010 (“[X]”, or “the child”).
This decision relates to the father’s Application in a Case filed on 4 February 2013 (“the AIC”) and also deals with procedural issues associated with the substantive proceedings and a related Contravention Application filed by the father.
Background
These proceedings were commenced by the father by means of an Initiating Application filed on 21 March 2012. The mother, in turn, filed her Response on 27 April 2012. The mother also filed an Amended Response on 11 February 2013, although I have assumed for this decision, that it was her intention to file this document as a Response to the AIC.
The matter came before me for the first time in my duty list on 21 May 2012 and, following an urgent Child Dispute Conference on that date, I made Orders seeking the appointment an Independent Children’s Lawyer (“ICL”), together with interim parenting Orders that provided, inter alia, for the child to live with the mother, for the child to spend time with the father at a contact centre for two hours a week and for the father to attend upon a treating psychiatrist or psychologist and follow the directions of the relevant practitioner.
When the matter returned to Court on 18 June 2012, the parties agreed to further interim parenting orders to the effect that the child spend supervised time with the father for two hours each week, with such time to be professionally supervised by a supervisor from [omitted].
The next relevant occasion that the matter came before the Court was on 19 November 2012. On that occasion, it was listed for mention and possible interim hearing with respect to parenting issues. An interim hearing was averted on that occasion as the parties were able to agree on a series of lengthy interim spend time Orders. Those Orders provided as follows:
“2. [X] shall spend time with his father:
2.1 From 11.30am to 4.30pm every Sunday commencing 25 November 2012, and
2.2 On the following special occasions:
2.2.1 The father's birthday [date omitted] 2013 from 5.00pm to 8.00pm;
2.2.2 Boxing Day 2012 from 1.00pm to 4.00pm.
3. The father's time with the child pursuant to order 2 will be conditional upon the following:
3.1 All time will be supervised by the paternal grandfather Mr L or another supervisor agreed between all parties in writing in advance ("the supervisor");
3.2 All time is conditional upon the supervisor in advance giving, and continuing to comply with, the following undertakings :
3.2.1 To intervene if the father's behaviour becomes excessively agitated, loud, intrusive, or excessively distracted
3.2.2 To cancel any visit where it appears that the father is becoming so agitated or anxious that his behaviour is becoming inappropriate or impulsive such as would in any way cause distress to the child or place the child at risk
3.2.3 To remain present at all times during the visit
3.2.4 To safeguard the child's safety and wellbeing at all times as the supervisor's first priority
3.2.5 Not to allow the father to breach any term of these orders
3.2.6 To advise the mother and the ICL of any event in which the father breaches these orders.
3.2.7 To provide the mother with any requested information at the conclusion of each visit.
3.3 All time is conditional upon the father following all reasonable directions of the supervisor.
3.4 The father shall continue to attend all appointments with, and follow all advice of:
3.4.1 His psychologist Ms T, and
3.4.2 His psychiatrist Dr F including following all recommendations as to medication and treatment prescribed, and including filling all prescriptions for prescribed medications at his own expense.
3.5 The father shall attend on either Dr F or his GP to submit to blood tests once per week for the next four weeks, and thereafter once per month, to check for the presence of any medication prescribed by Dr F, AND the father shall direct and authorise that such results be provided to the ICL and to Dr F as soon as they become available.
3.6 The father shall not personally attend changeovers, and shall remain in the car.
4. All changeovers shall take place at McDonalds, [address omitted].
5. During the father's time pursuant to Order 2, he may take [X] to see his family members at their nursing home, but such visits must be limited to once per fortnight for a maximum of two hours per visit.
6. Subject to order 5 herein, the father is at liberty to include other paternal family members in his time with [X].
7. The father is not to spend time with [X] other than in accordance with these orders.
8. The ICL has leave to disclose the report of Dr W, and a copy of these orders, to Ms T, Dr F, the paternal grandfather and any other agreed supervisor.
9. The parties will do all things necessary to facilitate compliance with these orders, including ensuring that as far as possible the scheduled times chosen by the parties do not clash with [X]’s usual nap time.
10. In the event that [X] is ill and cannot attend contact, the mother shall do all things necessary to provide sufficient notice to the father, and shall provide medical certificate as evidence of such illness.
10A. In the event the supervisor is ill and cannot attend, the contact shall not occur and the father shall provide adequate notice to the mother.
11. In the event that the mother cannot comply with these orders for any reason other than any illness suffered by [X], she shall arrange for makeup time to occur.
12. Each parent shall ensure that the other parent is advised as soon as practicable of:
(a) Medical problems or illnesses suffered by [X] whilst in that parent's care including any hospital admission or other injury;
(b) Any medication prescribed for [X];
(c) The residential address and contact telephone number of the parent; and
(d) Any other matter relevant to [X]’s welfare.
13. The mother shall provide [X]’s daycare facility with a written request to provide the father with copies of all reports, photographs and any other documents.
14. Each parent shall refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of either child, and each party shall do all things necessary to ensure that no other person makes critical comments about the other party in the presence or hearing of either child.
15. That the matter be listed for final hearing (estimate 3 days) at the earliest available opportunity.
16. In the event of breach of these orders by the father, or breach of the undertakings by the supervisor, the time in Order 2 shall be suspended and there be liberty to all parties to relist the matter on 7 days' notice.”
I should note at this stage that an expert report prepared by Dr W was released by me to the parties on 15 November 2012 (“the expert report”). To some extent, the interim Orders made on 19 November 2012 with the consent of the parties, reflected recommendations made in the expert report.
The matter had been listed for mention 7 March 2013 to consider fixing final hearing dates. However, due to the apparent breaking down of the spend time arrangements between the parties in mid January 2013, the father, with the support of the ICL, sought the relisting of the matter. Consequently, an Order was made in Chambers on 25 January 2013 listing the matter for mention on 7 February 2013. I note that in the AIC, which had initially been allocated a return date in April 2013, the father sought an expedited hearing of his Contravention Application.
When the matter came before me on 7 February 2013, I was satisfied that, given the breakdown in the spend time arrangements, the AIC and Contravention Application should indeed be expedited and the Court fixed both applications for hearing in this Court on 12 February 2013.
The matter duly returned to Court on 12 February 2013. However, due to the parties spending much of the day in productive negotiations, it was not until 4:15pm that the Court was apprised of developments.
Whilst there was much agreement between the parties to reinstate the spend time arrangements, it was also clear that there were a number of matters still in dispute. When it became apparent to the Court that the matter could not be concluded after some 45 minutes of hearing time, it became necessary to adjourn the matter to the following day for further oral submissions. That decision proved prescient, given that the matter required nearly two further hours of Court time the following day.
On both 12 and 13 February 2013, the father was represented by Ms Graves of counsel, the mother by Mr Cummings, solicitor (who only obtained his initial instructions on the morning of 12 February 2013), and the ICL was represented by Ms Karagiannis.
Issues and proposals
The parties, with the assistance of their legal representatives and the legal representative for the ICL, were able to present a minute of consent orders that resolved some, but not all, of the issues raised by the parties in the AIC and the Response thereto. The parties also sought to have the matter listed for final hearing.
Apart from considering the issues in dispute relevant to the AIC, I will also canvass the appropriateness or otherwise of listing the matter for final hearing in light of the substantial issues in dispute and the likely hearing length being estimated by the parties as in excess of four days.
The areas in dispute, or to quote Ms Graves, “the four sticking points”, were as follows:
i)whether paragraph 3.6 of the minute attached to the orders made by consent on 19 November 2012 should remain in full force and effect (as the mother seeks) or not (as the father seeks);
ii)whether the child should spend time with the father on 27 March 2013 (as the father seeks) or not (as the mother seeks);
iii)in the context of recent events, whether the child should spend ‘make up time’ with the father for four alternate Saturdays commencing 23 February 2013 (as the father seeks) or not (as the mother seeks); and
iv)whether the father should pay all the costs (that is, $20.00 per day) associated with the parties using a contact centre to facilitate changeovers (as the mother seeks) or whether they should meet those costs equally (as the father seeks).
Only the issue of the benefit or otherwise to the child of spending time with the father on 27 March 2013 remains to be determined in this decision. The Court made Orders and/or determinations in respect of the other ‘sticking points’ by the conclusion of the interim hearing. I will articulate my reasons for those Orders further as part of this decision.
Submissions
Each of the parties, through their legal representatives, and the legal representative for the ICL, provided the Court with oral submissions in respect of the issues in dispute. As stated, there was also a minute of Orders that were approved (with various deletions) resolving some of the issues in dispute. The ICL also provided a short minute of Orders sought relevant to one of the areas of dispute.
The transcript for the interim hearing that commenced late on 12 February 2013 and continued into the following day will, of course, reflect the oral submissions. I do not propose to specifically summarise those submissions in these reasons, but will refer to them during my discussion of the issues in light of the relevant legislation and available evidence.
Law and discussion
All parenting proceedings are governed by the provisions of Pt.VII of the Family Law Act 1975 (“the Act”).Parenting orders are defined in s.64B of the Act. Parenting orders may deal with where a child is to live, the time a child is to spend with another person or may otherwise allocate parental responsibility in respect of the child.
The overarching principle for parenting orders is found in s.60CA of the Act, which states:
“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.”
To determine the best interests of a child, of course, the Court is guided by ss.60CA through 60CC of the Act. This is often referred to as the “legislative pathway”. Of most relevance to these proceedings are the primary considerations contained in s.60CC(2) and the additional considerations in s.60CC(3) (where relevant). I will consider these further later in these reasons.
This being an interim hearing, the Court is guided by the decision of the Full Court of the Family Court of Australia (“the Full Court”) in Goode & Goode (2006) FLC 93-286 (“Goode”). At paragraph 81 of Goode, the Full Court stated:
“In making interim decisions, the Court will still often be faced with conflicting facts, little helpful evidence and disputes between parents as to what constitutes the best interests of the child.”
Clearly, this matter is such a case. More specifically, it raises the reality that the Court cannot fully determine issues of credit at an interim hearing as the hearing is truncated and the evidence being presented by the parties is often still being assembled and is not tested by cross-examination.
That said, the Court must still follow the legislative pathway. In other words, the relevant provisions of the Act, post the 2006 shared-parenting amendments and as further amended by the 2012 family violence amendments (where applicable), must be followed. In this regard, I note that these proceedings were filed prior to the commencement of the 2012 family violence amendments.
Regrettably there appears to be enormous suspicion, animosity and distrust between the parties in this case, and no doubt the history of the matter will be the subject of extensive evidence and rigorous cross-examination at any final hearing, should one be needed.
The matter is also complicated by allegations associated with the mental health of the father and allegations that the mother is not fostering the relationship between [X] and the father. Each party complains about the behaviour of the other, and the mother also raises some criticisms about the paternal grandfather.
In making a parenting order, the legislative pathway requires the Court to consider the presumption in favour of equal-shared parental responsibility. In this case, I note that this is an order that the father seeks on a final basis. The mother seeks orders for sole parental responsibility.
Of direct relevance to an interim hearing such as this is s.61DA(3) of the Act, which states:
“(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.”
This particular provision was discussed by the Full Court at paragraph 78 of Goode, and it is clearly relevant to the case before me. In the circumstances, and given that this is an interim hearing, I am satisfied that, pursuant to s.61DA(3) of the Act, it is not appropriate to apply the presumption at this stage.
Consequently, I am not required at this stage to consider s.65DAA of the Act and, more specifically, whether it would be in the child’s best interests to spend equal or substantial and significant time with each of the child’s parents.
That said, given the circumstances of this case and the legal reality that the parties each have parental responsibility that can be exercised independently of the other, the Court would caution the parties to act responsibly and keep each other appropriately advised in respect of decision-making for [X].
Section 60CC(2) of the Act: primary considerations
The Court is required under s.60CC(2)(a) of the Act to consider the benefit to the child of having a meaningful relationship with both of the child’s parents. At this point let me note that “meaningful” does not mean “equal”, but it clearly signifies that both parents should be involved with their child, and it consequently signifies an expectation of time to be spent.
The right of a child to spend time with each parent and extended family is just that: the right of the child. This case is complicated not just by the extremely poor relationship between the parties but also by the tyranny of distance between the parties’ respective residences and the need to use a contact centre to facilitate changeover. It is also complicated by [X] being so young, that is just a two year old toddler. That all said, the Court will, in all likelihood, need to give considerable weight to this factor in a final hearing, should one be needed.
I am next required to consider, under s.60CC(2)(b) of the Act, the need to protect a child such as [X] from physical or psychological harm and from being subjected to abuse, neglect or family violence.
There is no doubt, as a general proposition, that it would be in [X]’s best interests to develop a meaningful relationship not just with his mother but also with his father. However, that proposition needs to be balanced against the imperative to protect [X] from any physical or psychological harm and the like.
In this case, there is no present disagreement that [X]’s time with the father should occur without professional supervision; rather, there remains agreement, despite recent events, that [X]’s time with the father can be supervised by the paternal grandfather. That said, based on current pleadings, the father seeks that the child spend unsupervised time with him, and the mother seeks that the child spend time with the father in a contact centre.
I note at this stage that the use of a contact centre to facilitate changeover in this matter is primarily to resolve the problems that would appear to have occurred at changeovers between the mother and the paternal father.
Section 60CC(3) of the Act: additional considerations
Turning now to the additional considerations, my comments will be brief, given the ambit of the immediate dispute between the parties.
Issues such as “any views expressed by the child” (noting, of course, the child’s young age), “the nature of the relationship of the child with each of the child’s parents” and “the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent” will be fleshed out in the fullness of time in any final hearing. The testing of the expert report of Dr W, if needed, may also assist in the Court making a final determination.
The Court notes that there is an issue in this case about each party’s “willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent” (as provided in s.60CC(3)(c) of the Act, as in effect prior to the 2012 family violence amendments). The father in particular makes criticisms of the mother in this regard.
The Court also has to consider issues related to “the capacity of… each of the child’s parents… to provide for the needs of the child”, and the like. These are all issues that will require determination at a final hearing.
It was also clear to the Court that there is an issue between the parties relevant to the “…background (including lifestyle, culture and traditions) of the child and either of the child’s parents”.
This relates to the father’s request to spend four hours with the child during days or periods of relevance to the Jewish faith. The father outlines these “Jewish holidays”, as he refers to them, in paragraph 13 of the AIC.
There is also dispute between the parties, relevant to a consideration of the “practical difficulty and expense” of [X] spending time with the father, namely which party or parties should shoulder the cost of using the agreed contact centre for changeovers.
As the father’s application was filed before 7 June 2012, I am also required to consider “the extent to which the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent” (as set out in s.60CC(4) of the Act, as in effect prior to the 2012 family violence amendments). I will simply state that there are different stories currently before the Court in this regard. Those stories will require testing. That said, there are issues of concern to a Court when a child is withheld unilaterally by one parent from the other parent for whatever reason.
Prior to turning to the “four sticking points”, I note that both parties raised other matters in the AIC and Response thereto. As these other matters were not agitated or otherwise pressed during the relatively lengthy interim hearing, the Court will not consider these, and the relief sought thereby will be dismissed with this decision. As stated, only the issue of the child spending time with the father on 27 March 2013 currently requires a decision of the Court. The other “sticking points” have already been resolved, but for completeness I provide the following additional comments respecting the outcome of those issues.
The requirement that the father remain in his motor vehicle at changeovers
This issue dominated the submissions made during the interim hearing. It ultimately became clear to the Court that this issue had become complicated by not only the parties' agreement to use a contact centre for changeover but also by the parties' agreement for the mother to have the opportunity to pose questions to the paternal grandfather to clarify any entries made in the communication book.
Paragraph 6 of the consent Minute attached to the Orders that I made on 12 February 2013 requires the parties to make entries in the communication book relevant to the following areas during the weekly five hour period that the child spends with the father:
i)duration of any sleep;
ii)food and fluid consumed;
iii)details of nappy changes;
iv)any illnesses suffered by the child; and
v)a brief description of activities undertaken.
In the circumstances, particularly given the level of mistrust the mother has of the father, such information should comfort the mother. That said, the parties have also agreed that the mother may pose questions to the paternal grandfather to clarify entries made in the communication book. Presumably this will also assist and comfort the mother in wanting to know the details of what occurred between the father and the child during the five hour spend time periods. While the Court expressed concerns that this process might further inflame the dispute or logically prolong the changeover time, I note that the father has agreed to this measure. The Court's concerns about the additional burden to the contact centre were somewhat allayed when the contact centre advised the ICL that all the contact centre would do is:
·firstly, facilitate [X] and the communication book going from the mother's care to the father's care and vice versa; and,
·secondly, facilitate the transport of any written questions the mother may have of the paternal grandfather, and his written responses thereto, with all such writing to be contained in the communication book.
In other words, the communication book will be read by the mother, her questions will be written into the communication book, handed to a representative of the contact centre, who will then take it to the paternal grandfather, who can read the questions, provide his written responses, and the representative of the contact centre will then return the communication book to the mother. The parties also agreed that the mother would have only one opportunity on each occasion to pose such questions.
Given that I had also indicated to the parties that I saw benefit in the father being able to facilitate the changeover of [X] to a representative of the contact centre, the issue then narrowed to whether the father should be present with the paternal grandfather when the mother’s questions were considered and responded to or else remain in a separate part of the contact centre or in his motor vehicle during that time. In this respect, I note that this was the ICLs proposal and it was not ultimately opposed by the mother.
In the circumstances, I indicated to the parties that until further order the father should be required to leave and not be present during the questioning process. The Court can consider or perhaps reconsider the related issues at any final hearing or such other hearing as may be appropriate. I reiterate again for this decision my concerns that the parties should not place an undue burden on representatives of the contact centre.
The ‘make up’ time request
Given the outstanding Contravention Application filed by the father, I indicated to the parties during the course of their submissions that I saw this sticking point as related to the alleged contraventions and, consequently, I was not prepared to entertain the orders being pressed by the father as part of the AIC. I will return to the issue of the father’s Contravention Application shortly.
The payment of the contact centre fees for facilitating changeover
During the course of submissions, I indicated that I had insufficient evidence before me to entertain the mother’s argument that the father should shoulder the entire cost of using the contact centre for changeovers (being $20.00 per day). In her submissions, Ms Karagiannis for ICL indicated to the Court that, normally speaking, the parties equally contribute to this modest charge. In this case, there is evidence that both parties are in paid employment. Moreover, the use of a contact centre for changeovers was an agreement achieved by the parties. Accordingly, on 12 February 2013, the Court made an Order that the parties share equally in the payment of fees charged by the contact centre for changeovers. A Court may choose reconsider this issue if pressed, if appropriate, or may consider the liability as part of the final hearing.
Spend time arrangements on 27 March 2013 for the Jewish Passover
The second sub-area of dispute is whether the child should spend time with the father for four hours on 27 March 2013. As stated, the father sought orders for the child to spend time with him on various dates that relate to Jewish holy periods or “Jewish holidays”, as he referred to them. Ultimately, the father only pressed the Court to make an order with respect to 27 March 2013, being a date occurring during the Jewish Passover period.
Mr Cumming, for the mother (who opposed any additional time), submitted that the father’s evidence as to his reasons for spending time with the child on 27 March 2013 were non-existent (my words). On my reading of the father’s affidavit material, I would largely agree. That said, it is also clear from the father’s affidavit material that he proposes that the time that the child spends with him on 27 March 2013 would also enable the child to spend time with his extended family.
Although not contained in his affidavit, I note the assertion from the father’s legal representative that he proposes that the child, the father and other family members enjoy a meal together as part of the Passover celebrations. While I note that the parties were able to agree on at least one additional occasion for the child to spend time with the father, that is, 26 April 2013, and were also able to agree, as I understand, to swap days to enable the mother to take the child to the Royal Easter Show on Saturday 30 March 2013, the Court is disappointed that the parties were unable to resolve this particular aspect of the dispute.
It is clear from reading Dr W’s report that there is an issue relevant to culture and/or religion between the parties. Given the relatively minimal amount of time that the child is spending with the father and, in particular, the child’s right to spend time with extended family, such a request made by the father is not unreasonable. In supporting this aspect of the father’s proposal, I note that Ms Karagiannis for the ICL confirmed the availability of the contact centre to facilitate changeover on that day.
Despite this being an interim hearing (with all the time constraints and usual limitations that such a hearing entails), the Court offered both of the parties the opportunity to provide the Court with brief oral evidence in support of their respective positions regarding the child spending time with the father on 27 March 2013. Both parties, through their legal representatives, declined to do so.
In the circumstances, the Court agrees that the benefits to the child of spending time with the father on 27 March 2013 outweigh any detriments the child may suffer. While the Court acknowledges the inconvenience to the mother, I note Mr Cumming’s submission that she is not likely to be working on that day. Consequently, the mother would be able to facilitate changeover without it impacting upon her employment in her own family’s business. Failing agreement as to time, the child will spend time with the father on that day from 11:30am until 4:30pm (in accordance with the current supervision arrangements), with changeover to occur at an agreed venue, or failing agreement, at the relevant contact centre.
Procedural issues
Apart from the substantive parenting proceedings between the parties, there is also a Contravention Application that was filed by the father recently. Although I agreed to expedite the return date of the Contravention Application to 12 February 2013, the application was not ultimately pressed by the father when the matter came before me that day. That outcome is not surprising, given that the parties were on that occasion able to present comprehensive consent terms to re-establish the child spending time with the father. That said, the Court agrees with Mr Cumming, for the mother, that the time has come for the father to indicate whether he seeks to press the Contravention Application or discontinue it.
Given these circumstances, I will list the contravention application for mention hearing at the earliest opportunity, being 5 April 2013 at 10:00am to consider relisting that application for hearing. I will give the father an opportunity to reflect upon whether he may choose to file a Notice of Discontinuance in respect of the Contravention Application, given the reality that he didn’t seek to press the Court to hear the application when it came before the Court on 12 February 2013. Any Notice of Discontinuance should be filed within the next 21 days and, if that occurs, the Court may consider vacating the relevant listing date unless cost issues are to be raised.
As to the substantive proceedings, the Court was asked by the parties and the representative for the ICL to consider listing the matter for final hearing at the earliest opportunity. This was requested for two reasons:
·firstly, the parties have gone to the expense of obtaining an expert report from Dr W which was released by the Court in late 2012; and
·secondly, the parties’ relationship is poor, if not toxic, and they need a judicial decision to resolve their dispute.
Before considering the request, I asked the parties to provide me with details of all the witnesses likely to be called and asked them for an estimated trial length. The father advised that he was likely to rely on the evidence of the four witnesses currently on affidavit, namely, himself, the paternal grandfather, his psychiatrist and his psychologist. In addition, the father would also be seeking to cross-examine Dr W.
The mother indicated that she is also likely to rely on the evidence of four witnesses, namely, herself, the maternal grandmother, the maternal grandfather (who is not currently on affidavit), and the maternal aunt. In addition, the mother proposes to cross-examine Dr W. Given these circumstances and the likely number of witnesses, the parties agreed that the matter is likely to require between four and five days of hearing time.
I do not doubt the parties’ estimate in respect of the minimum time that may be required for final hearing in this matter, particularly given that the four “sticking points” arising from their interim agreement took over two hours of Court time to hear. Given that reality, I indicated to the parties that I would reserve my decision and consider, firstly, whether the matter should be transferred to the Family Court of Australia (“the Family Court”) given the issues and likely trial length and, secondly, whether the Court had the capacity to list (or, as is more likely, over-list) the matter for final hearing of more than four days in a short period of time.
Clearly, the Court determines the priority of its listings, and this Court, like other courts, is faced with large numbers of litigants seeking final determinations. There is only a limited number of judicial resources to deal with these demands. While I can obviously see some merit in listing the matter at the earliest opportunity, particularly as the parties have an expert report, such merits are generally applicable to most cases that appear before this Court. In other words, these parties, like other parties, need certainty in their parenting arrangements.
That said, given the issues in dispute, I have doubts that a final hearing could lead to any long term parenting orders, unless such orders were made by consent, or there was a significant narrowing of the issues in dispute by the time of the final hearing.
Having reflected further on this matter, I am satisfied that the matter should be transferred to the Family Court. This Court has a discretionary power, of course, to transfer proceedings to the Family Court on its own motion as well by application of a party. This power stems from s.39 of the Federal Magistrates Act 1999. The Court also has to be cognisant of the relevant Rules.
For the reasons I have articulated, I am convinced that the demands of this matter are better determined by the Family Court. This accords with the protocol between the Chief Justice of the Family Court and the Chief Federal Magistrate, which contemplates that matters which are likely to exceed a particular length of hearing time, or matters which are complex, ought to be transferred, if appropriate, to the Family Court.
I am also satisfied that the parties would not be unduly prejudiced by a transfer and that the interests of justice will be well served by the matter continuing in the Family Court. I will ask the Family Court to consider listing the matter for final hearing at the earliest opportunity, provided that that Court is satisfied that the issues for determination on a final basis are clear. If any final hearing is not likely to be heard in the short term, the Family Court could also determine if and when a further updated expert report should be ordered.
Conclusion
The Court has considered the parties’ submissions in light of the available evidence and the structured discretion provided by the Act.
There will Orders transferring these proceedings, with the exception of the father’s Contravention Application, to the Family Court.
As I have indicated, the Contravention Application will be listed for mention on 5 April 2013 at 10:00am to consider a further listing for hearing. Should the father decide to file any Notice of Discontinuance in respect of that application, he will be directed to file such within the next 21 days and, if that occurs, the Court may consider vacating the relevant listing date unless cost issues are to be raised.
There will be an Order that the child spend time with the father on 27 March 2013 during such times as are agreed and failing agreement from 11:30am until 4:30pm with changeover to occur as agreed or failing agreement at the relevant contact centre.
The AIC and the Response thereto will be otherwise dismissed.
There will now be Orders and Notations of the Court to reflect these reasons.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Monahan FM.
Associate:
Date: 4 March 2013
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