Macklin and Camburn

[2019] FCCA 3890

FEDERAL CIRCUIT COURT OF AUSTRALIA

MACKLIN & CAMBURN [2019] FCCA 3890

Catchwords:
FAMILY LAW – Parenting – where shared care arrangement for very young children has not worked – where cautious approach to time orders until further assessment of circumstances – where children have primary attachment to mother – where mother alleges father abuses alcohol and has acted violently towards the children – where not satisfied there is any unacceptable risk of harm to the children from the father.

Legislation:

Family Law Act 1975 (Cth), s.11F

Applicant: MS MACKLIN

Respondent: MR CAMBURN

File Number: DNC 482 of 2019

Judgment of: Judge Young

Hearing date: 18 October 2019

Date of Last Submission: 18 October 2019

Delivered at: Darwin

Delivered on: 18 October 2019

REPRESENTATION

Counsel for the Applicant: Mr J. Barry

Solicitors for the Applicant: Darwin Family Law

Counsel for the Respondent: Ms A. McLaren

ORDERS

BY CONSENT UNTIL FURTHER ORDER

1. That the children X and Y, both born in 2017 (“the children”), shall be exchanged at Catholic Care, unless otherwise agreed in text message or writing between the parties, and until arrangements are put in place for exchange at Catholic Care, the father shall collect the children from the maternal grandmother’s residence, with the maternal grandmother to collect the children from the father’s residence at 4.30 PM on Wednesday and 5.00 PM on the weekend.

2. That both parties shall complete their Catholic Care induction as soon as possible.

3. That neither party shall attend each other’s premises, unless otherwise agreed in text message or writing between the parties.

4. Neither party shall drink alcohol such that they are above the legal limit at which they can drive when the children are in their care.

5. That the parties shall communicate by text message and email, except in the case of emergencies, and further they shall not communicate excessively.

6. That neither party shall denigrate the other in the hearing of the children.

AND IT IS ORDERED:

1. That the children live with the mother.

2. That the children shall spend the following time with the father:

   (a)from 9.00 Saturday to 9.00am Sunday each weekend; and

   (b)each Wednesday from 9.00am and 4.30pm.

3. That pursuant to s.11F of the Family Law Act 1975 the parties attend reportable child dispute conference at the Federal Circuit Court of Australia Darwin on 16 December 2019 at 2.00pm with a family consultant, to discuss the care, welfare and development of the children and endeavour to resolve any differences between the parties in relation thereto with the parties to telephone the Case Coordinator Children Dispute Services on 1300 352 000 to confirm their attendance.

4. That following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

5. That the matter be adjourned to 28 January 2020 at 11.00am for further consideration.

IT IS NOTED that publication of this judgment under the pseudonym Macklin & Camburn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 482 of 2019

MS MACKLIN

Applicant

And

MR CAMBURN

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting matter concerning two children who are approximately two and a-half years old: X and Y.  The parents separated on 13 September 2019.  It appears that they initially attempted a shared care arrangement with the children but that, according to the mother, has not worked and the children have become distressed and upset about the arrangement.  That is, if correct, perhaps not surprising given the fact that the children are only two and a-half.  They’re at a sensitive developmental stage. 

3. It would appear that the mother has ceased work presumably some time before the birth of the children and has not returned to work.  The father, it would appear, has continued in full-time employment. 

4. I would infer from that in all probability the primary attachment of the children is to the mother, though I do not make any finding about that.  I think that’s a likely scenario.  In the father’s application he apparently, as far as I can see, wishes the equal shared care arrangement continue.  In circumstances where the Court has not been able to assess whether that’s in the best interests of the children, having regard to the fact that the children are very young and having regard to the fact that there are indications that the mother has been the primary carer of these children, or at least the children have their primary attachment to her, in my view, it is not appropriate on the very limited evidence before me to make an order for equal time where one party says that it’s not working.  In my view, there ought to be a cautious approach until some further assessment can be made of the circumstances. 

5. The mother is opposing the children spending any overnight time with the father, notwithstanding that for an initial period, at least, she was prepared to agree to extensive overnight time. 

6. The mother alleges in her affidavit that the father abuses alcohol and she makes an allegation in her affidavit that on one occasion the father treated Y roughly by throwing her on the bed and she hit her head on the bed frame, receiving a small cut.  She also alleges on another occasion that the father held Y again and pushed her head under the shower half a dozen times or so.  Unfortunately, the affidavit filed by the father did not make a direct response to those allegations, and I asked him to give some oral evidence about that, which he did.  He denied that he had thrown Y down roughly and he denied that he was aware of her cutting her head at any point.  He also said that the shower episode was really just making sure that the child washed the shampoo out of her hair and he certainly didn’t hurt her or intend to hurt her. 

7. The father wasn’t cross-examined about any of those claims.  In the circumstances, I’m not satisfied that there is any unacceptable risk of harm to these children from the father either as a result of him treating them roughly or as a result of him abusing alcohol.  He did tell me that he drinks.  He conceded consuming maybe nothing or up to four or five stubbies of beer even on a weeknight or on special occasions more than four or five stubbies.  I think most health authorities would suggest that that is a concerning level of alcohol consumption.  The father said that if the children were in his care he would not drink.  So I’m going to make an injunctive order that he not drink or be under the influence of alcohol when the children are with him. 

8. I’m not satisfied that he’s an unacceptable risk to these children in any sense, and I think that the mother’s claims that he has harmed the children appear to be inconsistent at least with her initial agreement to the children spending overnight time with him.  Given the ages of the children, I don’t consider, as I’ve already said, that an equal time arrangement is appropriate, given the very, very limited evidence I have heard.  However, I consider that it’s appropriate that the children spend Saturday night with the father.  There will be an order that if the children, however, express any distress or can’t be settled within a reasonable time, the father is to return the children to their mother.  I propose to make orders that the children spend time with their father.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 15 April 2020