Lomeli and Viera
[2014] FCCA 2470
•17 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LOMELI & VIERA | [2014] FCCA 2470 |
| Catchwords: FAMILY LAW – Children – Parenting Orders – Interim Orders – parental responsibility – sole parental responsibility – best interests of the child – need to protect child from physical or psychological harm – allegations of neglect – mental health issues – where orders made that the child should live with the father until further order. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DB, 65DAA |
| Cases cited: Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MS LOMELI |
| Respondent: | MR VIERA |
| File Number: | NCC 537 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 17 October 2014 |
| Date of Last Submission: | 17 October 2014 |
| Delivered at: | Newcastle |
| Delivered on: | 17 October 2014 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Yarovy |
| Solicitors for the Applicant: | Legal Aid Newcastle Family Law |
| Solicitor for the Respondent: | Ms Filewood |
| Solicitors for the Respondent: | Filewood Carty Lawyers |
| Independent Children's Lawyer: | Mr Winder |
| Solicitors for the Independent Children's Lawyer: | Winders Lawyers |
ORDERS
UNTIL FURTHER ORDER
All previous parenting Orders are suspended.
The Respondent Father is to have sole parental responsibility for the child [X] born [in] 2010.
The child [X] is to live with the Father.
The child [X] is to spend time with the Mother:
(a)each alternate weekend from 4:00pm on Friday until 10:00am on Monday in the [C] area under the supervision of the paternal grandmother MS V or such other person as the parties shall agree; and
(b)on such other occasions and such other places as the parties shall agree.
During the periods when the child is not spending time with the Mother the child is to have telephone communication with the Mother between the hours of 6:00pm and 6:30pm each Tuesday and Friday with the Mother to telephone the Father’s mobile number at the commencement of the time.
The Father is to do all things necessary to facilitate the Mother telephoning to speak to the child by ensuring that his mobile telephone is switched on and kept charged.
The Independent Children’s Lawyer is granted liberty to apply on three (3) days’ notice in respect of all matters concerning the care, welfare and development of the child.
IT IS NOTED that publication of this judgment under the pseudonym Lomeli & Viera is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 537 of 2014
| MS LOMELI |
Applicant
And
| MR VIERA |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for interim parenting orders in respect of the parties’ son [X], who was born on [omitted] 2010. [X] is three years and ten months old.
On 8th October 2014 his Honour Judge Coakes ordered that the Application be listed for interim hearing on 17th October. His Honour also ordered that earlier orders made on 31st March this year should be varied so as to provide that the child [X] should remain with the Father from 6:00pm on Friday 10th October until determination of the interim hearing on Friday 17th October.
By her Application filed on 11th March 2014, the Mother seeks interim orders providing that [X] is to live with her and spend time with the Father on two weekends each month.
In his Response, filed on 27th March, the Father seeks interim orders providing that the child should live with him and spend time with the Mother for five days a month in the Newcastle region and for up to two weekends per month in the [C] region.
On 31st March 2014 the parties entered into Interim Consent Orders providing that the child would live with the mother and spend time with the father each four weeks for seven consecutive nights.
That same day, an order was made that the child [X] should be independently represented by a lawyer under the provisions of s.68L of the Family Law Act 1975 (Cth).
A Family Report has been prepared by Dr H, a Family Consultant. The Family Report was released to the parties on 8th October.
Background
The parties commenced their relationship in 2006 and separated in either October 2010, on the mother’s account[1], or in January or February 2011, according to the father[2].
[1] Affidavit of Ms Lomeli 6.3.2014 at paragraph [3]
[2] Affidavit of Mr Viera 26.3.2014 at paragraph [3]
There is one child of the relationship, [X], who was born on [omitted] 2010. Although he currently lives with the Mother, he is currently spending time with the Father as a result of the orders made on 8th October.
When the Mother left the Father, she took [X] with her.
Over the next two or more years, the child continued to live with the Mother and spend time with the Father, however the Father deposes in his affidavit of 26th March 2014 that he believes that the child had been in fact in the care of the Mother’s sister-in-law, named Ms M, from October 2013.
On the Father’s evidence, Ms M contacted him on 5th December 2013 and said that she had the child in her care, by arrangement with the Mother, but the Department of Family and Community Services had become involved and the Mother was under investigation. The Father and Ms M agreed that the child would be placed in his care on 20th December 2013, but this did not occur.
However, the Father deposed that Ms M returned the child to the Mother, who subsequently delivered the child to him on or about 2nd January 2014. The child remained living with him and spending time with the Mother.
The Mother, on the Father’s evidence, began to accuse him of having kidnapped the child and on 11th March 2014 the Mother filed an Application for the child to be returned to her care or a Recovery Order would issue. This Application was supported by an affidavit from the Mother in which she deposed that she had taken the child to spend time with the Father on 4th January 2014 on the understanding that the child would be in his care for about two weeks. However, she deposed that on 16th January the father sent her a text message saying that she was no longer welcome to visit his home and, presumably, the child would not be returned to her care.
On 31st March 2014, the return date of the Mother’s Application, the parties attended a Child Dispute Conference with a Family Consultant. Later that same day they entered into interim consent orders which provided that, until further order:
a)The Father would return the child to the care of the Mother on Thursday 3rd April;
b)The child would live with the Mother;
c)The child would spend time with the Father for seven consecutive nights each four weeks; and
d)Other ancillary orders.
The Court also ordered that:
a)a Family report should be prepared; and
b)the child’s interests should be independently represented by a lawyer.
The Family Report was released to the parties and the Independent Children’s Lawyer on 8th October 2014. His Honour Judge Coakes then listed the Application for an urgent interim hearing before me on 17th October.
Evidence and Submissions
The Mother relied on the following documents:
a)her Application filed on 11th March 2014;
b)her affidavit of 11th March 2014;
c)the Notice of Abuse, Family Violence or Risk of Family Violence filed on 11th March 2014;
d)the Consent Orders of 31st March 2014;
e)the Child Dispute Conference Memorandum of 31st March 2014; and
f)her affidavit of 16th October 2014.
The Father relied on:
a)his Response filed on 27th March 2014;
b)his affidavit of 26th March 2014;
c)his affidavit of 15th October 2014; and
d)the affidavit of his mother, Ms V, sworn on 15th October 2014.
The Family Report was before the Court and its recommendations were considered.
The Mother submitted that the Orders of 31st March should continue and the recommendations contained in the Family Report should not be followed.
In the Mother’s Case Outline, it was submitted that the recommendations of the Family Consultant should not be adopted because:
a)The events upon which the Family Consultant based her recommendations are historic, the most recent of which having taken place in December 2013;
b)The child has lived with his mother all his life and has spent limited time with his father, as the parties separated when the child was only five months old;
c)There is no evidence as to the likely effect on the child of separation from his mother; and
d)The Family Report does not address the risk of exposure to family violence in the father’s care.
Both the Father and the Independent Children’s Lawyer submitted that the Court should follow the recommendations of the Family Report and place the child in the care of the father.
The Family Report
All of the parties saw the Family Report as a significant document. In preparing her Report, the Family Consultant interviewed the mother, the father and the paternal grandmother, Ms V. She also observed the child with each parent and with his grandmother.
The Family Consultant made the following recommendations:
121.The available information supports the view that the mother is experiencing mental health issues and that the child is neglected while in her care. It is therefore recommended that the father have sole parental responsibility for the child and the child live with the father.
122.It is recommended that the child have supervised time with the mother and that the mother access the appropriate support to address her mental health issues.[3]
[3] Family Report page 25 at [121]-[122]
The Family Consultant set out her concerns in the text of the Family Report, noting the mother’s erratic presentation when she first spoke to her on the telephone, although the mother presented a lot more calmly in the interview.
The Family Consultant’s description of the child’s interaction with each of his parents can be found in paragraphs [102] to [111] of the Report. She described his initial interaction with his father in this way:
103.[X] was initially observed interacting with the father and the paternal grandmother. [X] was hesitant to enter the interview room despite being told his father and paternal grandmother were in there. Upon entering the room slowly and with what appeared to be apprehension, he climbed onto his father’s lap and curled up into a ball and nuzzled his head into his father’s neck. [X] did not make any word of greeting or look at all happy despite his father and paternal grandmother greeting him and saying hello. It was noted that the father lowered his voice and spoke softly and gently with [X] matching [X]’s demeanour. The father asked [X] questions about his day and what he had been doing and he commented that it was great to see him however [X] did not respond – although remained snuggled into the father. The father gently rubbed [X]’s back. The father was clearly in tune to [X]’s needs and was attending to him in a loving and compassionate way although it was clear that the father was genuinely concerned about [X]’s presentation.[4]
[4] Family Report pages 22-23 at [103]
The Report continued:
108.When it was time to end the observation the father explained to [X] that he would see him again the next day, the father said to [X] “do you want to give daddy a hug?” [X] replied “no”, while staring at the floor. The father asked him why and [X] replied “because I’ve missed you”. It is noted that [X] looked at the father with an angry look on his face however he remained sitting very close to the father. The father pulled [X] into his lap and [X] pushed his head again into the father’s neck and curled up in a ball while the father hugged him. Neither said anything but they remained like that for an extended period of time before the father let go and said goodbye to [X] and the father and the paternal grandmother left the room.[5]
[5] Ibid page 23 at [108]
The Family Consultant then observed the child with his mother. She observed a different pattern of behaviour by the child towards the Mother. The Family Consultant stated:
111.Overall it was an unusual set of observations that cannot be easily explained. [X] appeared to be emotional when interacting with his father; he demonstrated love for his father and a desire for comfort however also expressed anger towards him as a result of [X] missing him. For the most part [X] looked very sad. While interacting with his mother he initially dropped his head on the basket in a way that suggested he was feeling overwhelmed, however he then began to play with her and interacted in a way that suggested he was comfortable. [X]’s behaviour was concerning. He did not smile or indicate any joy in any of his interactions. He presented as a boy who was experiencing some difficult and challenging emotions. He certainly did not appear to be a carefree and happy 4 year old.[6]
[6] Ibid page 24 at [111]
The Family Consultant’s evaluation raised a number of matters of concern regarding the Mother’s parenting ability, including:
a)her mental health;
b)the “chaotic environment” that accompanied the Mother as a result of her friend and her friend’s child being present when the interviews were being conducted;
c)the Mother’s apparent underestimation of the child’s need for medical treatment;
d)the Mother’s view that it was acceptable to leave the child for lengthy periods of time with Ms M which suggested to the Family Consultant that "”she lacks insight into the importance of facilitating a consistent and predictable relationship for the child with his primary care giver”[7];
e)the questions about the attachment between the Mother and the child;
f)“The child’s presentation during the family interview raises serious concerns for his emotional stability and psychological development”[8]; and
g)the impact of the mother’s untreated mental health issues on the Mother’s parenting.
[7] Family Report page 25 at [114]
[8] Ibid page 25, [115]
By comparison, the Family Consultant expressed the opinion that the Father had demonstrated his commitment to the child by his constant involvement in the child’s life, including his frequent trips to Queensland to spend time with the child and his decision to leave Queensland and move to New South Wales in order to be more involved with the child.
It was for those reasons that the Family Consultant recommended that the child should live with the Father and the Father should have sole parental responsibility for him.
The Parties’ Proposals
The Mother submitted that the Court should not follow the recommendations in the Family Report but should continue with the present arrangement, whereby the child lives with his mother and spends time with his father for seven consecutive nights each four weeks.
In particular, she proposes orders that:
a)she should attend upon her general practitioner to obtain a referral to an appropriate practitioner to undertaken an assessment and prepare a report as to her mental health;
b)she should arrange for the child to undergo an assessment by a paediatrician.
The Father proposes that the child should live with him, as recommended in the Family Report, and spend time with the mother for five days a month in the Newcastle region and up to two weekends a month in the [C] region.
The Independent Children’s Lawyer supports the recommendations of the Family Consultant that the child should live with the father and the father should have sole parental responsibility for him.
Agreed or uncontested relevant facts
The child has lived mainly with the Mother since the parties separated when he was five months old but the Father has spent time with him on various occasions. The Mother placed the child in the care of her friend Ms M for a period of time. The Mother consented to the child being placed in the care of the Father but subsequently changed her mind and sought his return. The child has been in the care of the Father since 10th October by Order of the Court.
The Relevant Law in regard to Parenting Applications
When the Court is considering making parenting orders, whether final orders or orders until further order, it must have regard to various sections of the Family Law Act 1975 (Cth) that are to be found in Part VII of the Act. In particular, it should have regard to the provisions of:
a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;
b)Section 60CA, which requires the court to regard the best interests of the child as the paramount consideration;
c)Section 60CC, which sets out the way that a court determines what is in a child’s best interests;
d)Section 61DA, which deals with the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child; and
e)Section 65DAA, which requires the court to consider equal time or, failing that, substantial or significant time with each parent where an order has been made that the parents should have equal shared parental responsibility for the child.
All of those matters have been considered, insofar as they are relevant. The matters in sections 60CC, 61DA and 65DAA will be discussed further.
Relevant matters in section 60CC of the Family Law Act
The Full Court of the Family Court said in Goode & Goode[9] that a court at first instance must consider the matters in s.60CC of the Act that are relevant and, if possible, make findings about them, noting at [82] that:
(in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place).
[9] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
In this case, the issues really concern the two primary considerations in subsection 60CC(2), being on the one hand the benefit to the child of having a meaningful relationship with both of his parents and, on the other, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Court is required by s.60CC(2A) to give greater weight to the latter consideration.
It is beyond doubt that this little boy has spent most of his life in the care of his mother, as the parties separated when he was only five months old. The Mother claims that for the next eight months the Father did not spend any time with him at all. What is concerning is that the Family Consultant raises a question about the level of attachment between the child and his mother.
To my mind, the most significant feature in this case is the need to protect the child from physical or psychological harm. The Mother raises a concern about violence on the part of the Father, but what there was took place well in the past and there does not seem to be any evidence that the child is at risk of either being subjected to or exposed to family violence at the hands of his father.
What is of major concern is the possibility of psychological harm to this child from being exposed to the Mother’s erratic behaviour from her apparently untreated mental illness. There are also concerns about neglect, arising from her apparent failure to provide appropriate medical treatment for the child.
What emerges clearly from the Family Report is that [X] is a very sad little boy who misses his father when he is not with him. The Family Consultant described the Father as dealing with this unhappy child in a sympathetic and compassionate manner and the child seemed to gain comfort from being in the close contact with his father.
The child is too young to express his own views, being four years and five months old, but his wish to be with his father emerges strongly from the Family Consultant’s observations.
The child also appears to have a positive relationship with his paternal grandmother, who was present at the interview and deposes in her affidavit as to her willingness and ability to assist in the child’s care.
It is disturbing that the Mother has in the recent past made decisions to have the child spend a lengthy period of time with another person, her friend Ms M. Whilst Ms M appears to be well disposed to the child, according to the Father, it seems to be less than desirable that the child should be with her rather than one of his parents.
Parental responsibility and section 61DA of the Family Law Act
The Court is required to decide whether the presumption in s.61DA applies, that is, that equal shared parental responsibility is in the best interests of the child.
The Family Consultant recommends that the Father should have sole parental responsibility for the child. I agree. I am not satisfied that it is in this child’s best interests for his parents to have equal shared parental responsibility for him at this stage.
In any event, section 61DB of the Act provides that if there is an interim parenting order in relation to a child, the court must, when making a final parenting order, disregard the allocation of parental responsibility made in the interim order. The question of parental responsibility with therefore be considered afresh when the Court makes final parenting orders.
Section 65DAA of the Family Law Act
As I do not propose to make an order that the parties should have equal shared parental responsibility for [X], it is not necessary to consider the matters set out in s.65DAA.
Orders that are in the child’s best interests
I have considered the Mother’s proposals and I do not consider that I should accede to them. In particular, the Mother proposes that an order should be made that she should obtain an assessment from an appropriately qualified practitioner as to the state of her mental health. This appears to be too late, in my view. It has been apparent that the Mother’s mental health is an issue in this case, but the Mother’s proposal to obtain some evidence about it appears to be nothing more than a reaction to the adverse recommendations in the Family Report.
Again, the Mother proposes that she should have the child seen by a paediatrician. Again, too little, too late. The concerns raised both by the Father and Ms M about the untreated sores on the child’s face and his severely infected penis suggest that the Mother should have taken some action on her own initiative, rather than propose that the child should be seen by a paediatrician in what again appears to be a reaction to the Family Report.
It is, of course, a major change in this child’s life to make interim orders that will change his residence so that he lives with his father rather than his mother from now until final orders are made. It is not a matter to be undertaken lightly. However, the issues raised in the Family Report and the observations by the Family Consultant indicate that such a step will give the child a much needed stability and reassurance.
I propose to order that, until further order, the child should live with the Father and that the Father should have sole parental responsibility for him.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 17 October 2014
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