LUCKACS & HAMER

[2014] FamCA 705

FAMILY COURT OF AUSTRALIA

LUCKACS & HAMER [2014] FamCA 705

FAMILY LAW – PARENTING – Interim competing applications – child aged 7 months – child removed from the mother’s care by the father – strong inference that the mother is the child’s primary attachment figure – father retains child pending interim determination – consideration as to best interests of the child – order that child live primarily with the mother and spend defined time with the father

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DAA, 67Q

Marvel [2010] FamCAFC 101
SS &AH [2010] FamCAFC 13
Goode [2006] FamCA 1346
Mazorski & Allbright [2007] FamCA 520

APPLICANT: Ms Luckacs

RESPONDENT: Mr Hamer

FILE NUMBER: PAC 3864 of 2014

DATE DELIVERED: 18 August 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 18 August 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Matthews Folbigg Pty Ltd

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT:

1. The Mother have parental responsibility for the child B born in 2014.

2. The child live with the Mother.

3. The child spend time with the Father as agreed between the Mother and Father in writing with such writing to include SMS or email communication and in default of agreement on 2 days of each week from 8:00am to 5:00pm with those days to be nominated by the Father on not less than 14 days’ notice in writing to the Mother and those days to coincide with days that the Father is available to provide primary care of the child.

4. To facilitate the Father’s time with the child the Mother shall cause the child to be delivered to the Father at the commencement of the Father’s time and the Mother shall cause the child to be collected at the conclusion of the Father’s time provided always that the Father resides no further distance from the premises at C Street, D Town than he currently resides.

IT IS FURTHER ORDERED THAT:

1. The Father be restrained from leaving the child in the unsupervised care of the Paternal Grandmother Kathleen Hamer and at any other time leaving the child unsupervised.

2. Proceedings are adjourned to the Registrar’s list on Tuesday 23 September 2014 at 9:45am for further directions.

IT IS NOTED THAT:

A.Notwithstanding the notice provisions provided for the in the orders made today the parties agree that the child will spend time with the Father on Thursday 21 August 2014 and Saturday 23 August 2014 and Thursday 28 and Friday 29 August 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Luckacs & Hamer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER:  PAC 3864 of 2014

MS LUCKACS

Applicant

And

MR HAMER

Respondent

REASONS FOR JUDGMENT

1. These are interim parenting proceedings that come before the Court in circumstances of urgency where the father has refused to return the subject child B, aged only 7 months to the care of the mother.

2. On 15 August 2014 the mother filed an application commencing parenting proceedings and in circumstances that will be referred to shortly.  In that application she sought final orders that the child, B, born in 2014, live with her and that the child spend time with the father as determined by the Court.

3. She further sought interim orders that pending further order:

   a)That the child live with her;

   b)That the father return the child to the mother;

   c)That a recovery order issue pursuant to s 67Q of the Family Law Act 1975 to procure the return of the child to her.

4. The mother in support of her application relies upon her affidavit filed on 18 August 2014. 

5. Subsequent to the mother filing her application an order was made that day by a registrar in chambers in response to an application for substituted service, as the father’s circumstances were not known so as to effect personal service.  An order was made on 15 August that service of the application and affidavits filed by the mother be affected by email to the father’s email address, …, together with a message as to the nature of the proceedings. 

6. The mother’s application was listed on short notice today, 18 August 2014.

7. The father appears unrepresented today but has filed a response to the mother’s application and affidavits relied upon by him, being his affidavit filed on 18 August 2014 and an affidavit of a Mr F filed on 18 August 2014. 

8. The father, in his response, seeks final orders that provide in summary:

   a)That the parties have equal shared  parental responsibility for the child; 

   b)That the child live with the mother and father on an equal shared basis; 

   c)That the child communicate with the mother and father on an equal shared basis; 

   d)That the father and mother consult each other for issues relating to the child’s education and medical issues; and

   e)That the father and mother provide each other medical reports and school reports relating to the child.

9. On an interim basis the father seeks orders:

   a)That the matter be adjourned until such time as he obtains legal representation; 

   b)That the parents, or father and mother, attend family dispute mediation; and

   c)That the child remain with the father until such time as the mother obtains a mental health assessment from a mental health practitioner in relation to postnatal depression.  

10. The child will be seven months of age on … 2014. 

The mother’s evidence 

1. The mother is presently 30 years of age.  She is presently in employment. 

2. She says that she and the father met in about January 2013 but did not commence cohabitation together until late 2013. 

3. The mother says that prior to cohabitation the father lived with his mother at Suburb G.

4. The father has in his care a child, E, born in 2010, and that child spends some time with his mother. 

5. The mother said that during 2013 she resided in her grandmother’s home in Suburb H.  In May 2013, shortly before the father was required to go to Canberra for the purposes of employment training, the mother became pregnant.  The parties continued to see each other regularly. 

6. Following the father’s return from Canberra in late 2013 the parties moved into the mother’s grandmother’s home for a short period of time until in January 2014 they jointly rented a home at I Street, Suburb J.

7. B was born in 2014 at K Hospital.  The mother was in hospital for four or five days and thereafter returned home to care for their new child.  The mother was on maternity leave from employment from 14 December 2013 until 7 July 2014 whilst the father continued to be in the employed working shift-work.

8. There seems to be no real issue that during this period the mother was the primary carer for not only the child but also the father’s child E from his former relationship, with the father engaging in child care and homemaking as his obligations to his employer permitted him to do. 

9. The child E was enrolled at a kindergarten five days a week but on several days a week, before the birth of the child, the mother would be on leave and the child would stay with her. 

10. The mother makes various allegations in relation the father denigrating his son E and making adverse comments in relation to his own mother.  The allegation by the mother is that the paternal grandmother has an alcohol issue evidenced by observations when attending her home.

11. On 7 July 2014 the mother resumed work.   Her employment involved distribution work.  She says that she visits about clients a day in metropolitan Sydney and Wollongong, and she has only been back at work for about five or six weeks prior to the commencement of these proceedings.

12. During the five-week period that she has been back at work the arrangements in relation to routine have been, for two days each week when the father is not on day shift he cares for the child.  The mother would leave at about 7 am and return about 5 pm.  On two days the child would go to the maternal grandfather’s home and he would care for the child.  The child would be dropped off at about 6.30 am and then the child would be collected later on in the day by the mother from her father’s home.  On the other day she would drive the child to her mother’ home and she cares for the child on that day.  The child would be dropped off about 6.30 am and then she would collect the child from her mother later in the day.

13. The incident between the parties that commenced what would appear to be the deterioration of their relationship was an incident on 7 August 2014 where the father, on anyone’s version of the evidence, left the young child alone at home in a bassinet whilst it appears he left the home, taking with him the child E, to obtain some takeaway food.  Understandably the mother, on arriving home to find her new baby unattended in a bassinet, was distressed and there was an argument between the parties in relation to what had transpired.

14. More recently on 12 August 2014, there was an indication that the paternal grandmother may well be coming to Sydney to reside with the parties for a time.  That caused an issue.  The mother informed the father that if that was to be the case she and the child were going to move out and go to live at her father’s home.

15. On the evening of 13 August 2014 the mother was in bed about 8.30 pm and at that time there was a conversation between the mother and father in which the mother said to the father:

    I’m going to move to dad’s.  I’ve told you heaps of times, if your mum comes, the child and I can’t stay.

16. Subsequently, the father removed the children from their beds and placed them in his motor vehicle.  The mother went outside and there was something of an incident, in fact a most unseemly incident between both of them, with the mother seeking to remove the young child from the car and the father refusing to let her do so.  The police were called and, as there were no orders in place, they were unable to assist.  The mother’s father arrived at the home.

17. Subsequently the father left the home at Suburb J taking with him the two young children and, it appears, taking the children to his mother’s residence at City L.   

18. The mother makes the application to the Court in circumstances where, at the time of the application, the whereabouts of the children were, not with precision, known to her.  She says in her affidavit that she did not know the father’s mother’s address in City L.  The child had not spent a night away from her since her birth.  She was concerned for the child’s psychological welfare and further concerned that the father had previously left the child unattended, as referred to above; that the child would be staying with the father’s mother who, it is alleged has some alcohol issues; that the father was refusing to tell her when he would return the child to the mother’s care; and that the father had shift-work approaching on the weekend of the 16^th and 17^th of August, presumably necessitating the children being left in the care of his mother.   

19. In those circumstances the mother made an urgent application to the Court for a recovery order. 

20. The mother says in her affidavit that she has suffered from depression for many years.  Her depression is monitored by her GP, Dr M, and she takes her medication as prescribed, and she has been well and stable for some years.  The soundness of the mother’s mental health appears to be indicated by her ability to maintain fulltime employment and that the father makes no real complaint about the mother during the six-month period that she remained at home on leave as the primary carer for the children. 

21. The mother now resides at her father’s home at D Town with which the young child is familiar, having stayed there on occasions because of the arrangements between the parties and the maternal grandfather after the mother returned to work and before. 

The father’s evidence

1. The father relies upon his affidavit filed on 18 August 2014. 

2. Much of the background of the relationship is not in issue. The father asserts in his affidavit that he had parental leave during the months of January and February, and during this time he helped care for the children, for the young child and E, as well as performing all domestic duties.  That evidence is in conflict with the evidence of the mother.

3. The father gives a different version of the incident that occurred, the first incident in August 2014, and, of course, a different version, to some extent, of the incident that occurred on 13 August 2014 in which he says in his affidavit,  – this is about 8.30 or so at night:

   I woke up [E], who was asleep in his bedroom, and picked up [the child] from her bassinet.  I exited the house and loaded the children into my car which was parked on the median strip outside.  I then loaded the children’s clothes into the car.

4. The reason why the father embarked upon this conduct is not known. 

5. His affidavit certainly is indicative of some conflict between the parties, particularly in relation to his proposal for his mother to come to the home for a period of time.  It was clear that on the evening of 13 August the mother made it quite clear to the father that she proposed to move to her father’s home. 

6. The strong inference is that the father’s behaviour was simply in reaction to that in an endeavour to secure the children in his care.

7. The father says that he returned from his brother’s home in City L to the house at Suburb J on the afternoon of 15 August 2014.  It appears clear from the evidence that by that stage the wife had elected to move and had taken certain of her items and the children’s clothing and items from the home.

8. The father’s proposal is that he will facilitate care for this seven-month old baby in circumstances where he seeks to have the mother mentally assessed. 

9. The objective evidence appears to be that this issue that he raises in the context of these parenting proceedings has not been an issue during the course of their relationship nor, indeed, during the first six months of this child’s life. 

10. The father’s assertions in this regard should be treated with some circumspection.

11. The father says in explanation as to his behaviour on the evening of the 13^th of August:  

    I believe I was doing the right thing by visiting my mother and brother in [City L] at that time thus allowing the mother some time alone to calm down for a few days whilst I had time off work.

    That assertion is inconsistent with his other assertions as to why he removed the children from the home.

12. The father’s affidavit is supported by an affidavit by Mr F sworn on 18 August 2014.  Mostly the affidavit is a personal reference for the father although Mr F, who appears to have had somewhat of a fleeting engagement with the parties, purports to make some observations in relation to the mother.  Little weight can be attached to that affidavit and the observations contained therein.

13. These are interim parenting proceedings and in Marvel [2010] FamCAFC 101, the Full Court said at paragraph 120:

    As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children.  Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing

14. In Marvel the Full Court also referred to the observations in the Full Court in SS &AH [2010] FamCAFC 13. 

15. The law in relation to parenting is well settled: Goode [2006] FamCA 1346. 

16. S 60B outlines the objects and principles underlying Part VIII of the Act and, in particular, the objects of this Part are to ensure that the children have the benefit of both their parents having a meaningful involvement in their lives;   protecting the children from physical or psychological harm or from abuse or domestic violence; ensuring the children receive adequate and proper parenting; and ensuring the parents fulfil their duties and meet their responsibilities in relation to the care, welfare and development of the children.

17. S 60CA provides that in deciding whether to make a particular parenting order the Court is regard the best interests of the children as a paramount consideration.  

18. S 60CC then outlines the primary and additional considerations the Court is to take into account in determining what is in the best interests of the child.

19. S 61DA of the Act provides that when making a parenting order the Court must apply a presumption that it is in the best interests of the child that the parents have equal shared parental responsibility.  The presumption doesn’t apply where there are reasonable grounds to believe a parent is engaged in abuse of the child or family violence or, in interim proceedings where the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order or if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

20. In the context of this application the Court is satisfied that the actions of the father in removing the two young children, but in particular the seven-month old baby from the home at night and then driving to City L, are circumstances that give the Court give significant concern in relation to the father’s ability to comprehend his responsibilities as a parent and a father. 

21. In the circumstances it is not considered, in the context of this application, appropriate for the presumption to be applied as to shared parental responsibility.  There will be an order that pending further order the mother will have parental responsibility for the child, the child. The court need not have regard to s 61DAA as to equal or substantial and significant time although having regard to the age of the child neither circumstance would be in the child’s best interests.

22. In the absence of the presumption applying, the orders to be made by the Court are to be determined by reference to the considerations set out in s 60CC(3) of the Act. 

23. The additional considerations are set out in s 60CC(3). The Court has had regard to each and every one of the considerations in s 60CC(3) and of those considerations the following are more relevant in the circumstances of this interim application.

24. The nature of the relations of the child with each of the child’s parents: There is no doubt on the evidence of both parties that in regard to the child, B, the mother has been the primary carer for the child, she only having just completed six months fulltime maternity leave after the birth of the child. The Court is comfortably satisfied that the child is primarily attached to the mother but, on the other hand, there is no doubt that, having regard to the father’s involvement afforded to him by reason of his shift-work and otherwise, that the inference is the child has a significant and substantial relationship with the father.  It is appropriate, of course, that those relationships be continued much on the same basis so as to avoid any unnecessary psychological issues for the child. 

25. The next factor is the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of her parents or any other significant person, including a grandparent.  There is no doubt that the child has an ongoing relationship with both the paternal and maternal extended family to some extent, more particularly the maternal family.  But otherwise the child has come from settled circumstances where she has been in the primary care of the mother and, as at today’s date, in most uncertain circumstances in the care of the father. 

1. The Court is satisfied that it would be adverse to the child’s best interests if there was any change, any significant change, in the circumstances that were in place during the period of the parties’ cohabitation after the birth of the child where the mother was the primary carer and the father had significant and substantial time engagement with the child. 

2. There is no issue about the practical difficulty and expense of the child spending time with each of the parents.  They are both working.  They have both put forward proposals to the Court that would facilitate them spending time with the child subject to their work obligations. 

3. The maturity, sex, lifestyle and background of the child:  The child in this case is of very tender age, seven months of age on 24 August 2014.  The child is in a significantly fragile developmental age where the child needs security and a strong and safe primary attachment.  Having regard to the evidence before the Court, much of it, of course, being untested, the strong inference is that that would be serviced by, or met by the child being in the primary care of the mother. 

4. The attitude to the child and responsibilities as a parent demonstrated by each of the child’s parents.  The relationship between the parties has only broken down recently in the last couple of weeks.  Up until the incident that occurred on 7 August 2014 that commenced difficulties between the parties there is no doubt that both of these parties have, as best they can, demonstrated an appropriate attitude to the child and their responsibilities as a parent.  However, thereafter, particularly in circumstances where, for his own reasons, the father removed the two young children from the home late at night and travelled to City L, leaving the mother completely unaware as to the children’s circumstances, demonstrates more recently the adoption of a less than satisfactory attitude by the father to the child and his responsibilities as a parent. 

5. Any family violence involving the child or members of the child’s family:    There are allegations one against the other in relation to what transpired on the evening of 13 August 2014.  Neither version of the events does credit to either of the parties and one would hope that that incident will be put behind them.

6. Any family violence order:   There is no order in existence and it is expected that there would be no application for such an order.

7. Whether it would be preferable to make an order that would least likely lead to the institution of further proceedings in relation to the child:  These are interim proceedings and there will no doubt be further evidence before the Court as the matter progresses through the Court system to a final hearing if the parties are unable to resolve their issue.  Accordingly, it’s appropriate simply to focus on the immediate issues in relation to the young child. 

8. There is no other fact or circumstance the Court thinks is relevant.

9. The primary considerations for the Court to consider under s 60CC(2) are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents.  This can be facilitated by both sets of orders sought by the parties today, but it’s important that that relationship be, as set out by Brown J in Mazorski & Allbright [2007] FamCA 520, one which is important, significant and valuable to the child.

10. This child is of tender years and it is appropriate for the non-primary carer to have regular contact with the child to ensure that the relationship develops in an appropriate way as a secondary attachment. 

11. The second primary consideration is the need to protect the child:  The Court has reservations should the child remain in the father’s care that he will use that circumstance against the mother.  One is not sure, because of the age of the child, as to any psychological harm that may have been occasioned by the child being separated from the mother and, indeed, as at this hearing at 4.20 pm on 18 August not having been reunited with the mother in any significant sense, the child at present being in the care of the maternal grandmother in the precincts of the Court.

12. But the Court has some comfort that as a consequence of the circumstances that led to this litigation and the breakdown of the parties’ relationship that they will reflect upon their behaviour on 12 and 13 August 2014 and provide a more child-focused relationship, one with the other, so that the need to make orders that are protective in their import is not required into the future. 

13. The Court is required, as a consequence of more recent amendments to the Act, to give greater weight to the protective concerns but in the context of this matter they are not overbearing in terms of the two primary considerations.

14. In the circumstances that are before the Court it is for the above reasons in the best interests of young the child that she be returned to her mother’s primary care. 

15. The mother has provided to the Court a minute of orders that seems to provide the father with significant time, that is, two days each week when he’s on leave from his shift to spend with the child, and the Court will make orders to facilitate the mother being given appropriate notice of those days so she can otherwise make arrangements for the child’s care should she need to do so.

16. Having regard to all of the matters referred to above the Court makes the orders set out at the forefront of these reasons for judgment.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 18 August 2014.

Associate: 

Date:  18 August 2014