LOCKE & HARDY (Interim Parenting) - [2016] FCCA 1778

FEDERAL CIRCUIT COURT OF AUSTRALIA

LOCKE & HARDY (Interim Parenting)

[2016] FCCA 1778

Catchwords:
FAMILY LAW – Meaningful relationship between children and both parents – change of residence – role of “status quo” – high levels of parental conflict – issues of parental capacity especially of Mother – issues raised by Father and by family consultant about Mother’s mental health – Court’s consideration of evidence on an interim basis without making formal findings.

Legislation:

Family Law Act 1975, ss.60B(1)(a) & (b), 60B(2); 60CA; 60CC(2)(a) and (b); 60CC(3)(ca), (f) & (d), 65DAA(2) and (3)

Cases cited:

Banks & Banks [2015] FamCAFC 36

Crouper & Mitchell [2014] FamCAFC 246

Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422
McCall v Clark (2009) 41 Fam LR 483
Mazorski v Albright (2008) 37 Fam LR 518
Redmond & Redmond [2014] FamCAFC 155
Sigley v Evor (2011) 44 Fam LR 439
Vanzin & Vanzin [2014] FamCAFC 245

Applicant:

MS LOCKE

Respondent:

MR HARDY

File Number:

CAC 385 of 2015

Judgment of:

Judge Neville

Hearing date:

24 February 2016

Date of Last Submission:

24 February 2016

Delivered at:

Canberra

Delivered on (oral reasons):

20 May 2016

Written reasons provided:

14 July 2016

REPRESENTATION

Counsel for the Applicant:

Mr G Stagg

Solicitors for the Applicant:

Pappas J Attorney, Canberra

Solicitor/Advocate for the Respondent:

Mr M Johnson

Solicitors for the Respondent:	Legal Aid ACT
Solicitor/Advocate for the Independent Children's Lawyer:	Mr K Robinson
Solicitors for the Independent Children's Lawyer:	Robinson + McGuinness

ORDERS

Orders 2 and 3 of the Interim Consent Orders dated 19 March 2015 be discharged. The Orders of 19 March 2015 are otherwise to continue to operate.
The children, X (born (omitted) 2009) and Y (born (omitted) 2011) (“the children”) live with the Father.
The children spend time with the Mother for five nights every fortnight, on days to be agreed between the parties and the Independent Children’s Lawyer in writing.
Failing agreement in accordance with Order 3 above, the children are to spend time with the Mother as follows:
(a)In week 1, commencing Friday 27 May 2016, from after school to the following Monday before school, and every alternate week thereafter;
(b)In week 2 commencing Wednesday 1 June 2016, from after school to the following Friday before school and every alternate week thereafter;
The parties and the Independent Children’s Lawyer are to notify Chambers, by way of email, within 21 days from the date of these Orders whether or not a Final Hearing is required in this matter.

THE COURT NOTES THAT:

A.Should the parties require a Final Hearing, Orders (including Trial Directions) will issue in Chambers, setting the matter down for Hearing for two days in 2017, inclusive of an Order for an updated Family Report;
B.Should the parties not require a Final Hearing, the matter may be listed for further Directions on a date and time to be advised.

IT IS NOTED that publication of this judgment under the pseudonym Locke & Hardy is approved pursuant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading LOCKE & HARDY (Interim Parenting)

Details

AGLC: Locke and Hardy (Interim Parenting) [2016] FCCA 1778
Case: [2016] FCCA 1778
Decision Date: 14 July 2016

CaseChat Overview and Summary

This matter concerned interim parenting orders for two children, X and Y, before Judge Neville. The dispute involved the living arrangements and time spent with each parent, following recommendations from a Family Consultant.

The court was required to determine the appropriate interim parenting orders, specifically whether to adopt, modify, or discharge existing consent orders, and to consider the recommendations of the Family Consultant regarding the children's residence, time with each parent, and the need for further assessments or educational programs for the parents. The court also had to consider the mother's submission that all evidence, including the Family Consultant's recommendations, should be tested at a final hearing.

Judge Neville reasoned that at an interim stage, it was appropriate to rely on clear independent evidence, such as that from an experienced family consultant, rather than deferring all decisions until a final hearing, especially when a final hearing was distant. The court applied the principles of protecting children and ensuring they have a meaningful relationship with both parents, as prescribed in Part VII of the relevant Act, considering the best interests of the children. The court noted the father's clear drug screen, the mother's lack of evidence regarding her mental health, and the mother's departure from her father's residence as relevant factors.

The court ordered that the children live with the Father and spend time with the Mother for five nights every fortnight, with specific arrangements for alternate weeks if direct agreement was not reached. Existing interim consent orders were discharged to the extent they conflicted with these new orders, which otherwise continued to operate. The parties were also directed to notify the court within 21 days whether a final hearing was required.

Orders

Orders of the court

1. Orders 2 and 3 of the Interim Consent Orders dated 19 March 2015 be discharged. The Orders of 19 March 2015 are otherwise to continue to operate.

2. The children, X (born (omitted) 2009) and Y (born (omitted) 2011) (“the children”) live with the Father.

3. The children spend time with the Mother for five nights every fortnight, on days to be agreed between the parties and the Independent Children’s Lawyer in writing.

4. Failing agreement in accordance with Order 3 above, the children are to spend time with the Mother as follows:

(a) In week 1, commencing Friday 27 May 2016, from after school to the following Monday before school, and every alternate week thereafter;

(b) In week 2 commencing Wednesday 1 June 2016, from after school to the following Friday before school and every alternate week thereafter;

5. The parties and the Independent Children’s Lawyer are to notify Chambers, by way of email, within 21 days from the date of these Orders whether or not a Final Hearing is required in this matter.

THE COURT NOTES THAT:

A. Should the parties require a Final Hearing, Orders (including Trial Directions) will issue in Chambers, setting the matter down for Hearing for two days in 2017, inclusive of an Order for an updated Family Report;

B. Should the parties not require a Final Hearing, the matter may be listed for further Directions on a date and time to be advised.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In her recommendations, the Family Consultant said (at pars.74 – 80; emphasis added):74. That the children live with their father.75. That the parents share the parental responsibility of the children.76. As long as there are no identified risk factors for the children with their mother, that they spend time with her each alternate weekend from after school on Friday until before school Monday; and in the other week for one overnight during the week.77. If there are concerns for the children’s safety with their mother, then their time with her will require supervision. Presently the only supervision service in the Canberra area is (omitted) Contact and Changeover Service. It is understood that it has over 12 months waiting time. 78. The Court might be assisted in making final decisions in this matter by gaining a mental health assessment from the mother’s General Practitioner at the (omitted) Medical Practice.79. That both parents consider gaining some further psycho –education training regarding understanding children’s needs and how they meet these. The intensive 20 week Circle of Security program that is facilitated by (omitted) Child and Family Services and some private practitioners such as (omitted) Psychology and (omitted) Psychology would be a highly suitable program for this purpose and build on their understanding from the shorter course. 80. That the parents consider how they will into the future; communicate effectively to make decisions regarding their children. A counselling service such as Relationships Australia may be of assistance to the parents for this purpose. The Mother’s Counsel rightly stressed that all evidence, including the evidence of the Family Consultant, needed to be tested at a final hearing. There can be no contest about such a submission. However, at an interim hearing, where there is clear independent evidence such as here from an experienced family consultant and given how far away a final hearing is, the Mother’s submission would, in effect and in reality, require a Court to sit on its hands (so to speak) and to ignore independent evidence. To do so, I suggest, would be an abrogation of the Court’s responsibility to make Orders that (a) relevantly protect children and (b) take all appropriate steps to ensure, in accordance with the prescriptions in Part VII of the Act, that children have a meaningful relationship with both parents to the degree that it is in their best interests to do so.[6] [6] See s.60B(1)(a) and (b); s.60B(2); s.60CA; s.60CC(2)(a) and (b). In short, the Mother’s submissions would require the Court to ignore independent evidence pending all evidence being tested and assessed at a final hearing; in this instance, the independent evidence is the comments and observations by a family consultant. There is also, as noted below, (a) the Father’s clear drug screen, (b) the Mother’s lack of evidence in relation to her mental health, and (c) the Mother leaving the residence of her Father, thereby ostensibly depriving her (and the children) of important support, as well as “relationship time” between the children and one of their Grandparents.

Ratio Decidendi

Legal Principle Established

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