Litchfield and Beck
[2010] FMCAfam 969
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LITCHFIELD & BECK | [2010] FMCAfam 969 |
| FAMILY LAW – Children – parenting orders – interim orders – application for recovery order – Independent Children’s Lawyer – allegations of abuse – order to attend psychiatric examination – Family Violence Order in force. |
| Family Law Act 1975, ss.60CA, 60CC, 67Q, 67ZC, 68L |
| Goode & Goode (2006) FLC 93-296 L v T (1999) 25 Fam LR 590; FLC 92-031; [1999] FamCA 1699 Re K (1994) 17 Fam LR 537; FLC 92-461 |
| Applicant: | MS LITCHFIELD |
| Respondent: | MR BECK |
| File Number: | SYC 4751 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 9 August 2010 |
| Date of Last Submission: | 9 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 10 August 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Hamish Cumming Family Lawyers |
| Solicitors for the Respondent: | Lapaine Pomare & Forster Solicitors |
ORDERS
That the respondent father is to return the child [X] born 2006 to the applicant mother by 6:00 pm on Wednesday 11 August 2010.
That the child [X] is to live with the mother.
That the child [X] is to spend time with the father each week from after pre-school on Friday until 6:00 pm on Monday commencing on Friday 13 August 2010.
That all time spent by the father with the said child is to be supervised by the paternal grandmother Mrs Beck or the paternal grandfather or by Mr H.
It is a condition of Order (3) above that the father is to attend upon a psychiatrist and provide a psychiatric assessment to the Court within a reasonable time after the date of these Orders.
That changeover each Friday take place by the mother delivering the child to pre-school each Friday morning and the father is to collect the child from pre-school each Friday afternoon.
That changeover each Monday take place by the father delivering the child to the mother at the A Police Station.
That the mother and father do all things necessary to ensure that the child attends K Pre-School and each party is restrained from removing the said child from K Pre-School or terminating the child’s enrolment there without the written consent of the other party or order of the Court.
That neither party is to use physical discipline on the said child or permit any third party to do so.
That neither party is to denigrate or criticise the other party in the presence or hearing of the said child or permit any third party to do so.
That the father is restrained from sending any telephone text messages to the mother except in case of emergency concerning the child [X].
That as provided by section 68L of the Family Law Act 1975 the interests of the child [X] born 2006 are to be independently represented by a lawyer and Legal Aid NSW is requested to arrange such independent representation.
The parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention of the Independent Lawyer representing the said child’s interests within fourteen (14) days.
In the event that the father fails to return the said child to the mother in accordance with Order (1) above then a Recovery Order is to issue for the said child [X] born 2006 as provided by section 67Q of the Family Law Act 1975.
IT IS NOTED that publication of this judgment under the pseudonym Litchfield & Beck is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4751 of 2010
| MS LITCHFIELD |
Applicant
And
| MR BECK |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the mother of a little girl called [X], who was born 2006, to be returned to her care, failing which a Recovery Order under s.67Q of the Family Law Act is to issue.
The mother also seeks orders that the child should live with her and that she should spend time with the father from 9.00 am on Sunday each week until 6.00 pm on the Monday immediately following. The mother asks that the father’s time with the child should be supervised either by his parents or by his friend Mr H. Changeover is proposed to take place at the A Police Station.
The mother also seeks an order that the child’s interests be separately represented by a lawyer under the provisions of s.68L of the Act.
For his part, the father asks the Court for orders that the child should live with each of them by a somewhat complicated arrangement over a fortnight;
a)In the first week of the fortnight, from 5.00 pm on Wednesday until the commencement of pre-school on the Friday; and
b)In the second week, from 5.00 pm on the Tuesday until 5.00 pm the following Sunday.
For the rest of the time the father proposes that the child should live with him.
The father also seeks orders that all go to prohibiting physical discipline of the child:
3. That the Father and the Mother be restrained from using physical discipline upon the child.
4. That the mother not permit her partner, Mr B, to discipline [X][1] in any way.
5. The Mother is to supervise the child at all times when the child lives with her.
[1] sic
Background
The mother was born in1980, so she is 30 years of age. The father was born in 1970, so he has just attained the age of 40.
The parties met through work early in 2003. They started to live together in 2005, after the mother had become pregnant. The child [X] was born in 2006.
The mother returned to work in 2006. The father’s parents cared for the child at their home.
The parties separated in 2008, when the mother left the home in which they were living. A new arrangement was entered into which involved the child spending some nights with the mother each week and the other nights with the paternal grandparents.[2]
[2] As deposed by the mother in her affidavit affirmed 28th July 2010 at paragraph [18]
From 2010 the child started to spend some time with the father at his home.
After a discussion between the parties, the father returned the child to the care of the mother in 2010. The mother deposed that the child would spend about half a day each week with the father.[3]
[3] Affidavit of Ms Litchfield 27.7.2010 at paragraph [27]
In July the father was to collect the child from the mother. There was an altercation and the father drove off with the child. The mother deposed that the father’s flatmate, Mr H, told her that evening that the father was not going to return the child.[4]
[4] Ibid at [31]-[37]
The child did not attend pre-school the next day. The mother deposed that a teacher at the pre-school told her that the father had said he was enrolling her at as pre-school in Queensland.
Issues
The father wishes to care for the child on a full-time basis, with the assistance of his parents. He is currently off work and has deposed to having plans to operate a [omitted] business and otherwise concentrate on his investment portfolio.[5]
[5] Affidavit of Mr Beck sworn 2 August 2010 at paragraph [43]
It is the father’s view that the child has sustained bruises and has been hit by the mother and her current partner.[6] He has tendered an attendance Certificate from a Dr S reporting some bruises on the child’s leg and noting a history from the patient that she was smacked by the mother’s friend.
[6] Ibid at [48]-[49]
The mother has concerns about the father’s mental health and asserts that he has said that he was diagnosed with bi-polar affective disorder. The father denies that he has been diagnosed with any mental illness but says that he has consulted a psychologist because he has been “under a lot of stress”.[7]
[7] Ibid at [35]
Matters to be considered
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA).
The primary considerations in determining what is in the child’s best interests are the benefit to her[8] in having a meaningful relationship with both of her parents and the need to protect her from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence (s.60CC(2) of the Act).
[8] In this case
Other considerations include any views expressed by the child, the nature of her relationship with each of her parents and other people, including grandparents, the willingness and ability of each of the child’s parents to encourage a close and continuing relationship between the child and the other parent, and the likely effect on her of any separation from either of her parents or from any other child or other person with whom she has been living, the practical difficulty and expense of the child spending time with and communicating with a parent, along with a number of other matters.
The Court must also consider whether the presumption in s.61DA, that equal shared parental responsibility is in the best interests of the child, applies in this particular case (see Goode & Goode[9] ).
[9] (2006) FLC 93-286
Conclusions
This is an interim hearing and the evidence is untested and conflicting. It is not possible to make findings of fact where the evidence conflicts.
Nevertheless, it is clear that this child has spent time with both parents and with her paternal grandparents[10], and all of them have played a role in her upbringing. I am satisfied that there is a benefit to her to have a meaningful relationship with both of her parents.
[10] Affidavit of Mrs Beck 2.8.2010 paragraphs [6]-[12]
The father has expressed concerns about the child’s safety in the care of the mother, particularly because he believes that the mother’s current partner has been smacking her and causing bruises. At the same time, the mother’s evidence of the father’s behaviour on 26th July 2010, which the father describes in his affidavit as “inappropriate”[11] and “regrettable and out of character for me”[12] causes some concern, as the incident took place in the presence of the child and must have been frightening and distressing for her. The mother has a concern about the father’s mental state, which seems to be supported by her accounts of his behaviour.
[11] Affidavit of Mr Beck 2.8.2010 at [34]
[12] Ibid at [38]
I propose to make orders restraining the parties from using physical discipline on the child or permitting any other person from doing so.
There is no evidence about the child’s views and she is too young (four years and six months at the date of hearing) for any views to be taken into account.
There has to be a question about the father’s willingness and ability to facilitate and encourage a close relationship between [X] and her mother, on the mother’s evidence. The mother has deposed to the father refusing to return the child[13], taking her out of pre-school[14] and threatening to enrol in a pre-school in Queensland.[15]
[13] Affidavit of Ms Litchfield 28.7.2010 at [37]
[14] Ibid at [38] and [45], affidavit of Ms Litchfield 6.8.2010 at [20]
[15] Affidavit of Ms Litchfield 28.7.2010 at [45]
The child would be adversely affected by any separation from either parent or from her paternal grandparents, in my view. The question to be decided is how much time she spends with each parent, and in what circumstances.
There should not be any practical difficulty or expense in the child spending time or communicating with each parent. Both parents live in C, which is a suburb of Sydney. The paternal grandparents live in H, which is a nearby suburb.
There appears to be no evidence that the mother is not capable of providing for the child’s emotional, intellectual and other needs. She is in employment which limits her time, but the evidence is that she has made appropriate arrangements for the child to attend a nearby pre-school.
There is a question about the father’s ability to provide for the child’s needs, given the evidence about his decision to take her out of pre-school and enrol her in a pre-school in Queensland. The issue of the father’s stability and mental state needs to be addressed, and I propose to make orders that his time with the child be supervised and that he attend upon a psychiatrist as a condition of spending time with the child (see L v T[16]).
[16] (1999) 25 Fam LR 590; FLC 92-031; [1999] FamCA 1699
The affidavit of the paternal grandmother supports the view that she and her husband are, for their part, capable of meeting the child’s needs.
The child is a little girl of four years. There is no evidence that she is other than at an appropriate stage of maturity for her age. There are no other relevant characteristics.
The child is not an Aboriginal or a Torres Strait Islander.
The mother’s attitude to the child and to the responsibilities of parenthood appear, on the untested affidavit evidence before the Court, to be appropriate. There are question marks over the father’s attitudes at this stage, due to the evidence of his behaviour in July, his refusal to return the child to the mother and the mother’s claim that he had withdrawn the child from pre-school and was planning to enrol her in a pre-school in Queensland. Until there is reliable psychiatric evidence of the father’s mental state the Court would have concerns about allowing the father to spend time with the child unsupervised.
There are family violence issues. The mother complained to the N Police about the father’s behaviour in July and the Police have applied for an Apprehended Violence Order on her behalf. A Provisional Order was issued in July 2010, remaining in force until August 2010. The protected persons are the mother and the child.
Whilst it would be preferable to make orders that would be least likely to lead to the institution of further proceedings, these are interim orders and the matter is continuing.
In my view it is appropriate to order that the child’s interests be independently represented by a lawyer. There are allegations by the father of child abuse by the mother and her current partner, there appears to be an intractable conflict between the child’s parents, the mother has alleged that the conduct of the father is such that it appears to impinge on the child’s welfare, and the mother has raised allegations about the father’s unstable mental state (see Re K[17]).
[17] (1994) 17 Fam LR 537; FLC 92-461
The child should be returned to the care of the mother and live with her. She can spend time with her father, but at this stage this time should be supervised by the paternal grandmother or by the father’s friend Mr H. The mother has suggested that Mr H would be a suitable supervisor, and she has also suggested that the paternal grandparents should carry out this role. I am satisfied from the affidavit of Mrs Beck that she has her granddaughter’s best interests at heart.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 20 September 2010
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