Leary and Laing
[2007] FMCAfam 221
•20 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEARY & LANG | [2007] FMCAfam 221 |
| FAMILY LAW – Parenting orders – variation of consent orders – contact – child’s best interests. |
| Family Law Act 1975 (Cth) |
| Applicant: | MS LEARY |
| Respondent: | MR LAING |
| File number: | BRM 8591 of 2006 |
| Judgment of: | Burnett FM |
| Hearing date: | 20 March 2007 |
| Date of last submission: | 20 March 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 20 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Ubank |
| Solicitors for the Applicant: | Hogan Stanton Lawyers |
| Counsel for the Respondent: | Mr Billimoria |
| Solicitors for the Respondent: | Compass Legal Solutions |
| Solicitor for the Independent Children's Lawyer: | Legal Aid Queensland |
ORDERS
That the Child [X] born in September 2003 live with the Father.
That the Mother and the Father have joint responsibility for the Child’s day to day care and long term welfare and development.
That the Mother spend time with and communicate with the said Child at all reasonable times as mutually agreed or failing agreement as may be ordered by the Court but unless otherwise agreed or so ordered shall be as follows:
(a)In a fortnight:
(i)in week 1, from 4:00pm Friday to 4:00pm Sunday;
(ii)in week 2, from 4:00pm Wednesday to 4:00pm Thursday;
(b)Thereafter upon the Mother:
(i)Providing a certificate of completion of an anger management course to the Father’s solicitor and the Independent Children’s Lawyer, the course which is requested or agreed by the Independent Children’s Lawyer; and
(ii)Attending counselling with a psychologist as requested or agreed by the Independent Children’s Lawyer regarding her emotional stability with a report to be provided to the Father’s solicitor and the Independent Children’s Lawyer and that report being satisfactory for the Independent Children’s Lawyer, then the Mother’s time to be as follows:
(iii)in week 1, from 4:00pm Wednesday to 4:00pm Sunday;
(iv)in week 2, from 4:00pm Wednesday to 4:00pm Thursday.
(c)Changeover shall occur at Relationships Australia at [address omitted] Queensland and if for any reason if this service is not available, then at [omitted] Police Station;
(d)Telephone communication each day between 6:00pm and 7:00pm when either parent does not have the Child in their care;
(e)From Christmas holiday, commencing 2007, with the Mother to have the Child from 2:00pm on Christmas Day to 5:00pm on Boxing Day with the Father to have the Child from 5:00pm on the day of Christmas Eve to 2:00pm on Christmas Day and alternate in each year thereafter;
(f)For Easter holidays, commencing 2007, with the Father to have the Child from 9:00am on Good Friday to 12:00pm midday on Easter Sunday with the Mother to have the Child from 12:00pm midday on Easter Sunday to Tuesday 9:00am and in each alternate year thereafter;
(g)If the Mother’s birthday occurs on a day when the child is with the Father, the Mother will have the Child from 9:00am to 5:00pm on the day;
(h)If Mother’s Day occurs a day when the child is with the Father, the Mother will have the Child from 9:00am to 5:00pm on the day;
(i)On the Child’s birthday, the parent who does not wake up with the Child shall spend time with the Child from 12:00pm midday to 5:00pm on the day.
That if the Father’s birthday occurs on a day when the Child is with the Mother, the Father will have the Child from 9:00am to 5:00pm on the day.
That if Father’s Day occurs on a day when the Child is with the Mother, the Father will have the Child from 9:00am to 5:00pm on the day.
That the parties shall not allow the said Child to travel with a driver who is unlicensed, disqualified from driving, or in any way not entitled to drive or be in control of a motor vehicle of any sort or description.
That each party shall, at all times, whilst transporting the child ensure that the child is transported in a safe and roadworthy motor vehicle and that the vehicle is fitted with properly fitted and adjusted restraints for use by the Child.
That each of the parties ensures that the other party is promptly notified of any serious illness, injury, medical or like emergency suffered by the Child including the name, address and telephone number of the relevant hospital or medical practitioner.
That the parties shall notify the other of them in writing of any change in residential address and telephone contact details, including home, work and mobile telephone details, within three (3) days after such change or at least seven (7) days prior to any period of contact, whichever is the sooner.
That these Orders shall be sufficient authority for each party to obtain from the Child’s medical practitioner, health carer or counselor any information or report regarding the Child’s health, upon the request and cost of that party.
That these Orders shall be sufficient authority for each party to obtain from the Child’s school or child care centre any information and documentation regarding the child’s progress at school and include school reports, newsletters and school photographs upon the request and cost of that party.
That each party shall be entitled to attend the Child’s school or child care centre from time to time for any sporting events, concerts and cultural events that parents are invited to attend.
That the parties are to ensure that the Child attend all prearranged sporting and extra curricular activities that fall during the time the Child is in the care of the non-resident party.
(1) That the parties agree not to:
(a)denigrate the other party in the presence of the Child;
(b)denigrate the other party’s spouse, family or friends in the presence of the Child.
(c)comment on the other party’s financial or parental or social activities;
(d)seek information regarding the financial, parental or social activities of the other party;
(e)seek information regarding the financial, parental or social activities of the other party’s spouse, family or friends;
(f)expose the Child to the use of obscene and/or profane language by either party or person with whom either party may associate;
(g)use or consume alcohol to excess and not to expose the Child to persons who use or permit to be used or consumed alcohol to excess.
(h)use illicit drugs or prescription drugs to excess nor to expose the Child to persons who use or permit the use of illicit drugs or consumption of prescription drugs to excess.
(2) Each party shall immediately remove the Child from any situation in which anything is said or done, which, if it were said or done by that party, would be in breach of sub-clause (1) of this clause.
That the parties agree to notify each other if they intend to take the Child away for overnight to a distance of more than 250km from each of the parties residences. Consent is not to be unreasonably withheld.
That both parties agree to personally supervise the Child when the Child is in their respective care and shall not leave the Child in the care of another person for longer than twelve (12) hours unless the other party’s consent is first obtained. Consent of either party is not to be unreasonably withheld.
That the Child continue with his tennis lessons on Saturdays and swimming lessons on Tuesdays.
That the parties shall equally share the costs of the Child’s tennis and swimming.
That the Mother shall be permitted to have the Child attend [daycare centre omitted] one (1) day per fortnight whilst the Child is in her care for the Child’s social and educational development.
That the father be permitted to have the Child attend [omitted] Playgroup one (1) day per fortnight whilst the Child is in his care for the Child’s social and educational development.
That this matter be adjourned to 9:30am on 18 June 2007 in the Federal Magistrates Court of Australia at Brisbane.
IT IS NOTED that publication of this judgment under the pseudonym Leary & Laing is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM 8591 of 2006
| MS LEARY |
Applicant
And
| MR LAING |
Respondent
REASONS FOR JUDGMENT
This application comes back before the Court today seeking further orders following orders that were made by the Court on 20 November 2006.
At the outset, I should first deal with the issue as to whether or not the Court should, prima facie, entertain the application to vary orders made on that date, as the application today simply seeks for a variation of parenting orders.
There are, in my view, two significant differences between events on 20 November 2006 and today which would overcome any hurdle that might be placed before the Court in exercising its jurisdiction today and displace the rule in Rice v Asplund. They are: first, that there is now a third party before the Court, in other words the independent children's lawyer has now appeared for the first time and made submissions on behalf of the child; and secondly, that since the last proceeding, a report has been produced by Fiona Demnar, who is a social worker, in respect of the circumstances of this case.
They are, in my view, both characteristics and circumstances which enliven a reconsideration of an earlier order, despite the fact that the order was made in November by consent, and furthermore because, as is apparent from the report of Ms Demnar, there are matters raised in her report which deal with events since that time which, perhaps, could not have reasonably been foreshadowed at the time of the hearing of the application on the last occasion. So I am inclined to entertain the application and proceed then to deal with the substantive issue between the parties.
The parties seek to vary parenting orders which, in broad terms, provide for the child to live with the mother and for the child to spend time with and communicate then with the father on terms which are articulated in greater detail in the orders and which I will not repeat here.
The history of the relationship is well detailed in the report of Ms Demnar and it is perhaps significant to note that the child in this case is about 3 years of age, that is the child, [X], having been born in September 2003. He was living with the mother until about October last year when there was a change in accommodation arising from concerns that the father had about the mother's circumstances and whether or not it was in the best interests of the child to remain living with the mother, particularly because of his concerns that the child was being exposed to drugs.
In this case, there is not a lot of agreement between the parties concerning some of the broad facts underlining the circumstances. I think it is fair to say that the matters were best summarised by Ms Huth in her submissions that agreement between the parties can best be summarised as each should spend time with the other, in other words each parent should have time with the child; and that there has been some acceptance on the part of the mother that there is some inappropriate anger management difficulties which need to be resolved.
Broadly then, so far as the application is concerned, the father seeks orders in terms of those that are proposed by the family report writer, Ms Demnar, and are which outlined at para 77 of her report. The mother seeks, essentially, to have the Court today restate the orders which are presently in place, those having been made on 20 November 2006.
The starting point, of course, is the Court's power to make a parenting order provided for in s.65D which provides:
“For a parenting order the Court may subject to s 61DA which is the presumption of equal shared parental responsibility make such parenting orders as it thinks proper.”
In this case, reverting for a short time back to s.65DA, there is a requirement when making a parenting order that the Court apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. Sub‑section 2 provides:
“The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who at the time was a member of the parent's family or family violence.”
and the term "family violence" is very broadly defined, I think, in s.4 of the Act.
As this is an interim application, sub-s.3 of s.61BA provides that:
“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.”
And, as always, the presumption may be rebutted, as is provided by sub-s.4.
In this case, and I have to say there is a lot of dispute between the parties about the extent of violence but, there is certainly more than ample evidence on the material to indicate that there should be some concern on the part of the Court that the mother does have an unstable and violent predisposition. I accept for the time being that the matter cannot be resolved because it is a matter which is in contention. There is certainly independent evidence which supports that contention and that is the evidence of a number of witnesses to some assaults that occurred, I think, at the applicant's workplace, in particular, I refer to the matters identified in the affidavits of Mr G; Mr T; and Mr O.
But in any event, the effect of the affidavits are, and I accept they are untested and that there is dispute about the overall veracity of them, but the fact remains they each illustrate incidents wherein it could be seen that the mother does appear to have, what could be described as, a predisposition to violence and difficulty dealing with anger. It is a matter, which I say gives rise to considerable concern on the part of the Court, particularly because in relation to the incident that occurred in the workplace, if it in fact occurred, it is said that the child was present and witness to those events. There does not appear to be, on the face of it, any explanation for the event, save but it was a reflection of the mother's incapacity to control her emotions at a time when she was, no doubt, emotionally unstable because of the deterioration of the relationship between the parties.
In any event, I think in these circumstances that it is a situation where, despite the fact that this is an interim application, the presumption should not apply because of that difficulty and the other reported difficulties which, again, I accept for the time being are all untested. But there must be a modicum of truth in there somewhere because there are, for instance, admissions in relation to the inappropriateness of the mother's behaviour made by her to the reporting officer in the family report, such as the admission made by her in relation to her temper, in para 44:
“When she was initially questioned about Mr Laing's reports of her aggressive behaviours at changeover, Ms Leary first denied these reports. She subsequently commented that Mr Laing engaged in similar violent behaviour toward her”
and so on. I am not for a moment saying it is necessarily confined only to one party, but it certainly seems that there probably is a bit of fire where this smoke seems to be emanating from so far as it concerns the respondent mother, premised upon her own admissions.
Likewise, I am concerned about matters that relate to issues of drug taking. They too, give rise to a concern of abuse of the child in an indirect sense in that if a parent is affected by drugs then quite clearly there is a real prospect that a child might, in the course of some affectation by drugs, be subject to abuse misfeasance or nonfeasance or negligence on the part of the parent spending time with the child.
I appreciate that, particularly at the moment, the evidence seems to indicate that the mother has not been, at least at the time of testing, had not recorded any chemical indicia of drug affectation, but again it is a quality of this dispute which, I think, has to be further explored but does occasion, at least on the part of the Court, a basis for considerable concern. So, as I say, I am more comfortable in this instance in not applying the presumption, because I do not think it is appropriate in the circumstances despite the fact that it is an interim application.
That leads the Court to deal with the issues that arise. In terms of what could be regarded as the dealing with the issues of the children's best interests, of course, guidance is mandated by s.60CC which sets out the matters the Court must consider. In terms of the primary considerations, it seems that each party is actually agreed that it would be of benefit to the child to have a meaningful relationship with both of the child's parents and to that end it is probably one of the few items that is not in dispute between the parties.
The next matter, however, is a matter of some considerable dispute, and that is the need to protect the child from physical or psychological harm. That is a matter which, based on the evidence to date and accepting the evidence is untested but relying partly upon what could be described as the objective material, is a matter that rather favours, in my view, the father because the objective material supports, to some extent, his assertions, notwithstanding that, of course, the matters are yet to be tested as they will be at trial.
In terms of additional considerations, I accept Ms Huth's submission, so far as the child is concerned. He is far too young to express any views and to that end, it is really, probably, a neutral consideration.
So far as the nature of the relationship of the child with each of the child's parents it would appear, at least so far as the orders are concerned, that this is again a matter which is neutral in terms of its weight for the purposes of today's application, as it appears from the material, particularly having regard to the report provided by the reporter, Ms Demnar, and her observations of the child with the parents and her speaking to the parents. And again this is probably a matter where both parties can lay claim to equal weight in terms of that consideration.
There is a matter of a relationship with other persons. Ms Demnar comments in her report upon the father's new spouse and it does appear that so far as she is concerned the relationship there appears to be positive. She made the observation that:
“Mrs L's expressed views that she is supportive of [X] and Mr Laing's relationship and considers it important that [X] is also able to develop a relationship with her and his half-sibling. It appears that although she has not sought to provoke further conflict between the parents, her presence has been sufficient to fuel the parental conflict.”
By way of opinion, Ms Demnar noted:
“In my view the circumstances of the parents' separation has been a source of hostile feelings between Ms Leary and Mrs L rather than the experiences of direct contact with each other.”
So it seems on that basis that the child has a good relationship with
Mrs L; has the capacity to develop one, and in particular with his half-sibling; and that that is another matter which weighs in favour of the conclusion drawn by Ms Demnar that the child should be with the father.
Next is the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent. This calls upon the Court to consider, in terms of sub-s.4:
“The extent to which each of the child's parents have fulfilled or failed to fulfil their respective responsibilities as a parent and in particular have taken or failed to take the opportunity to participate in making decisions about major or long term issues in relation to the child spend time with the child and communicate with the child and facilitate or have failed to facilitate the other parent participating in and making decisions about the major long term issues spending time with and communicating with the child.”
I have to say that again in this dispute in the context of this dispute, particularly having regard to the very first matter identified by Ms Huth as a matter of agreement between the parties and that is that each would spend time with the child; but this probably is a matter which favours each party equally, subject to the overriding difficulty, which was clearly identified by Ms Huth and which is clearly apparent on the papers, and that is the communication difficulties that exist between both the applicant and the respondent, and that difficulty is the heart of this entire dispute.
The next matter is the likely affect of any changes in the child's circumstances, including the likely effect in the child of any separation from either of his parents, or any other child. The latter point does not appear to be raised as an issue on the part of Ms Demnar's report, and I should say nor does the former point. It does not appear that in any event what is proposed between the parties is going to lead to extensive separation.
I do note, however, that Ms Demnar makes the observation that there is some element on confusion at the moment being suffered by the child because of the different parenting styles which the parents adopt. Ms Demnar makes a general reference to the fact that the mother regards the father's attitude as being somewhat more permissive than hers and this is an occasion for difficulty between the parties. And they are communication issues which, I think, the parties will need to work on one way or another, irrespective of the final outcome of this application, to resolve.
The next consideration is the practical difficulty and expense of a child spending time with or communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations, again an issue that does not really raise itself in the context of this application and is, to that end, neutral.
Next is the capacity of each of the child's parents to provide for the needs of the child, including emotional and intellectual needs. Again, this is one which could be said to relatively neutral as a consideration. But I do make the observation that if one party or the other has less of a capacity to communicate then it will obviously be a matter which sounds more significantly, in terms of one's capacity to provide for the needs of the child including what I would regard as the usual emotional and intellectual needs, because that brings into question such matters as denigrating statements, and negative statements, by one parent to the child toward the child toward the other parent, which cannot provide a sound emotional basis for any child. That, as I say, is a matter which, again, is implicit in some of the observations made by Ms Demnar and it seems particularly based upon Ms Demnar's assessment of the respondent. She made this observation:
“Ms Leary appears as an uncomplicated person who is demonstrating no instability in her thoughts or mood during interview for this assessment although she probably lacks insight into the affects of her behaviours on others in particular [X]. This appears to be due to immaturity in her emotional functioning and short-sightedness of her actions. She is committed to her parenting responsibilities and demonstrated consistency in managing [X]'s behaviours during the time that he attended the office with her.”
But the fact remains, if she demonstrates, as was apparent to Ms Demnar, this degree of immaturity in her emotional functioning and the short-sightedness of her actions, it must impact upon her capacity to provide for the emotional and intellectual needs of the child. It may well be, of course, that this is simply a temporary matter and that given her young age, by the time that we come to trial there has been a change. But it certainly is a matter that causes the Court some concern.
I should say in contrast, she made the observations so far as the father was concerned that:
“He presented as genuine in his concerns for [X]'s welfare and seems to be supportive of [X] having access to both parents whilst he acknowledges the need for there to be some structure to [X]'s care arrangements and he has some reservations about continuing a week about arrangement. Mr Laing's mood was stable and his language was appropriate given the nature of the discussion. He acknowledged he may need to make attempts to place trust in Ms Leary's parenting abilities to meet [X]'s needs if they are to develop a cooperative parenting relationship in the future.”
The observations made by Ms Demnar, to me, seem to suggest that the applicant father probably has the requisite skills and appreciation of insight to adequately provide for the child's emotional and intellectual needs.
Next is the question of maturity, sex, lifestyle and background of the child, again not a matter of significant weight in favour of either side in this application. Having regard to the fact that the child is a 3 year old boy, no real lifestyle issues, save for the concern that one has about drugs in the household of the respondent mother, but otherwise a relatively evenly based issue.
Certainly no issue arises in relation to the child being of Aboriginal origin or Torres Strait Islander.
Next then is the question of the attitude to the child and of the responsibilities the parent had demonstrated in relation to the child's parents. This is a matter which, again, brings into consideration the question of whether or not each of the parents have fulfilled their responsibilities and facilitated the other parents' responsibilities. It brings into consideration here questions of overall difficulty between the parties communicating for the purposes of contact. It is a matter which is highly contentious in this application and cannot be resolved. But at least it would seem, on the basis of one's assessment in the summary of Ms Demnar's report, that perhaps there is a greater capacity on the part of the father to advance this particular consideration than there is on the mother, and it is a matter that I think weighs in his favour.
Next is a question of any family violence involving the child or a member of the child's family. I can only restate what I have stated earlier, again, highly contentious as an issue between the parties. But there is some suggestion that the mother has, what might be described as a, mercurial temper and it has given occasion for difficulty in this regard.
Next is a question of any family violence order that applies to the child. Again, a neutral consideration in this context. I am informed that the domestic violence order was one obtained by consent and without admission, so nothing is to be inferred from the granting of that order.
But all up, having regard to those considerations and having regard, particularly, to the recommendations which I think are well founded by the report writer, it seems to me, in particular when one has regard to the summary of her assessment, that what has been proposed by Ms Demnar really does, on an interim basis, provide the best possible outcome for the child pending the trial of this matter. Despite the matters that have been raised on the part of the mother, I am of the view that the Court should follow the recommendations of Ms Demnar and I make orders in those terms.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: Bev Schmidt
Date: 13 April 2007
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