MAEDA & BEAULIEU (No.3)

[2020] FCCA 217

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAEDA & BEAULIEU (No.3) [2020] FCCA 217

Catchwords:
FAMILY LAW – Parenting – interim hearing - best interests of the child – where mother withheld the child – where allegations of assault of child by mother – child’s time with father increased.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60CG 61DA, 61F, 65DAA, 65DAB, 65DA, 102NA
Family Law (Fees) Regulation 2012
Federal Circuit Court Rules 2001 (Cth), r.15.28

Applicant: MR MAEDA

Respondent: MS BEAULIEU

File Number: ADC 4412 of 2018

Judgment of: Judge Young

Hearing date: 21 January 2020

Date of Last Submission: 21 January 2020

Delivered at: Darwin

Delivered on: 21 January 2020

REPRESENTATION

Counsel for the Applicant: Ms Green

Solicitors for the Applicant: Phillips Green & Associated

Counsel for the Respondent: Ms Qu

Solicitors for the Respondent: Qu Family Lawyers

Counsel for the Independent Children’s Lawyer: Mr Adey

Solicitors for the Independent Children’s Lawyer: Norman Waterhouse Lawyers

BY CONSENT UNTIL FURTHER ORDER:

1. That the child [X] born … 2014 (“the child”) spend time with the father:

   (a)Each alternate week from the conclusion of school (or 3pm if a non-school day) Friday to the commencement of school Monday (or 10am Tuesday if a public holiday weekend), with time to commence at 3pm on Friday 24 January 2020;

   (b)In the intervening week from the conclusion of school (or 3pm if a non-school day) Thursday to the commencement of school (or 10am if a non-school day) Friday with time to commence on Thursday 30 January 2020;

   (c)On Tuesday 11 February 2020 from the conclusion of school (or 3pm if a non-school day) to the commencement of school (or 10am if a non-school day) Wednesday 12 February 2020; and

   (d)During the first half of each short school holiday period, with time to commence in the April 2020 school holidays.

2. That all handovers that are not conducted at the child’s school are to be conducted by the paternal grandfather MR F MAEDA, inside the McDonalds Restaurant situated on the Cnr of A Street & B Street.

3. That the mother provide the father, on each occasion, in the child’s bag, with the child’s asthma medication, spacer and mask and all instructions, in writing, of the manner and frequency in which the medication is to be administered.

4. That the father:

   (a)administer the child’s asthma medication using the mask and spacer, as per the mother’s written instructions and;

   (b)return to the mother, in the child’s bag, the child’s asthma medication, spacer and mask on each occasion, at the conclusion of the child’s time with the father..

5. The mother and the father do attend upon psychiatrist, Dr C, for the purpose of psychiatric evaluation, with the mother to seek an extension of Legal Aid funding to meet the cost of the report, and the independent children’s lawyer to seek legal aid funding to cover the costs of the father’s report; upon noting that if legal aid funding is not secured for the father’s costs of the report, the father will make payment of all fees to Dr C in respect to the preparation of his psychiatric evaluation report.

6. The Independent Children’s Lawyer organise the parties’ appointments with Dr C and brief Dr C with a copy of all affidavits filed by the parties, orders, the 11F memorandum, and the family assessment report.

7. That the respective psychiatric assessment reports for each party be filed and served within seven (7) days of being released to each party by Dr C.

AND THE COURT ORDERS:

1. That the matter is listed for trial on … 2020 at 10.00am (allowing four days).

2. That each party file and serve on each other party one affidavit of evidence in chief and one affidavit of each witness complying with rule 15.28 of the Federal Circuit Court Rules 2001 intended to be relied upon at trial no later than 28 days prior to the trial.

3. That on or before 28 days prior to trial the applicant pay the setting down fee and such further daily hearing fee should the matter continue to day 3 and the respondent pay such further daily hearing fee on day 2 and day 4 as required pursuant to the Family Law (Fees) Regulation 2012.

4. That at least 48 hours prior to trial, Counsel for each party and the Independent Children’s Lawyer file and serve a Case Outline document which clearly identifies the following:

   (a)a list of the material relied upon;

   (b)a brief chronology listing significant events;

   (c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child (section 60CC factors);

   (d)a list of other contentions relevant to the decision;

   (e)whether the presumption of equal shared parental responsibility applies (section 61DA), and if not the contentions relied upon;

   (f)a list of the considerations relevant to considerations of equal and substantial parenting time (section 65DAA);

   (g)a list of other relevant considerations (including the relevant section number) (for example, sections 60CG, 61F, 65DAB and/or 65DAC); and

   (h)the actual orders sought.

5. That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court.

6. That in the event that either party wishes to cross examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention no later than 14 days before the commencement of the hearing.

7. That in the event that no such notice is given to the family report writer or the family report writer is unavailable, the family report will be admitted into evidence without cross examination.

8. That the matter be listed on … 2020 at 9:30am at the Federal Circuit Court Adelaide for compliance check.

9. That the mention listed for 25 February 2020 be vacated.

THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

IT IS NOTED that publication of this judgment under the pseudonym Maeda & Beaulieu (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 4412 of 2018

MR MAEDA

Applicant

And

MS BEAULIEU

Respondent

REASONS FOR JUDGMENT

Ex Tempore

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 an application in respect of a child, [X], who is approximately five and a half years old.  He has been living with his mother and spending some time with his father, but it seems that has been intermittent and irregular over the period since the parties’ separation in 2017.  Nevertheless, [X] spent a period of up to two months with his father, according to the family report, when his mother was apparently unwell. 

3. The application by the father today, which is for a variation of the existing orders so that [X] should spend equal time with each party, arises out of disclosures made by [X] to the family report writer in a report dated 18 November 2019.  The particular disclosures or allegations made by the child were that his mother repeatedly smacked him, as I read it, largely on the bottom, but also allegations that on occasions, his mother smacked him about the face or head.  It is a little bit unclear precisely what the alleged frequency of that was, but it may have been, according to what was said by the child, on one occasion.

4. The other concerning aspect of that allegation made to the family report writer was that the child became avoidant, cautious and essentially, it appears, shut down after giving the family report writer that information. 

5. The family report writer expressed concern that the child may be at risk of harm in his mother’s care as a result of excessive corporal punishment amounting to assault, which is what a blow or blows around the head of a five and a half year old child would constitute, in my view. 

6. The family report writer’s concerns about the mother and the safety of the child in the mother’s care were exacerbated by her assessment of the mother’s mental health. The mother appears to be having ongoing treatment for some mental health conditions.

7. The family report writer also assessed the mother as self-focused rather than child-focused and had doubts about the mother’s attunement to the child’s needs.  All in all, the picture was one generating concern. 

8. Obviously, at an interim hearing of this kind, it’s not possible for a court to make a finding in relation to contested matters, and this is contested.  The mother denies that she has struck the child and alleges, in fact, that the child was coached by the father to make false allegations against her. 

9. In my view, that allegation raises concerns itself, particularly as there is no evidence whatsoever, apart from the mother’s allegation, that the child was coached.  The mother says that the child apologised to her after the family report interview for telling lies about her. 

10. I must say that I approach that evidence with a great deal of caution and it may be that that evidence in itself reinforces the very serious nature of the concerns about the mother’s parenting capacity.  As I said, I cannot make findings about that but I am satisfied that there are very grave concerns arising in this case about the welfare of this child in his mother’s care. 

11. I cannot, in the absence of cross-examination of the parties form any view about the truth or otherwise of the allegations and counter-allegations that the parties make in this case. Nevertheless, I do have evidence from an independent source, the family report writer, that a child has made an allegation that would arguably constitute, at least on one occasion, a physical assault on a very young child. I must take that seriously.

12. Another factor that arises in the case is the mother has alleged that the father maintained a sexual relationship with her when she was a child.  For the purposes of that, I understand the relevant age of consent in South Australia is 17, that is, on reaching 17, a person can or has the capacity to consent to sexual relationships.  In this case, an examination of the timeline would suggest that [X] was conceived shortly after the mother turned 17. He was born shortly before her 18^th birthday. 

13. The mother alleges that the father conducted a sexual relationship with her when she was below the age of 17 – in fact, from the age of 13. It appears that the mother went to the police in May of last year to renew or make an allegation against the father in relation to this. Her reasons for doing so are unclear. It might be that this is simply a stratagem that she has pursued as part of this case. And, indeed, she has already deployed that allegation in these proceedings and offers that allegation as a reason why she withheld the child from the father in breach of orders since December of 2019.

14. There is no evidence before me beyond the mother’s allegation that the father has maintained a sexual relationship with her when she was a child. I am told by the father’s counsel that he proposes, at this stage at least, to plead not guilty to the charge of maintaining a sexual relationship with a child.

15. The mother’s counsel says that the significance of the charge is that the father may go to jail and therefore it would be inappropriate to increase the child’s time with the father. She does not say that there is some risk to the child flowing from any propensity the father may have for a sexual interest in children. It is not put like that. It is put on quite a different basis and in my view it’s put on an utterly speculative basis. I consider the reason the mother offers for withholding the child, is at this stage at least, completely inadequate and raises further concerns about the extent of the mother’s insight into the needs of this child and her parenting capacity.

16. In other words, there is nothing before me that would appear to justify the mother’s decision to withhold the child since December 2019 in breach of orders. 

17. In December 2019, the parties attended a family dispute resolution conference – that is, after the mother had been to the police with these allegations. She reached an agreement which is signed by both parties and is in evidence before me without objection. The parties agreed the child would spend each alternate weekend from 3 pm Friday to 10 am Monday with the father and on Christmas Day as well.

18. The mother, as I have mentioned, has not adhered to that agreement, in my view, without adequate explanation.

19. I am satisfied that there does need to be some variation of the existing orders to ensure that there is no unacceptable risk of harm to this child while he remains living with his mother.  What is necessary is some arrangement whereby the child spends regular time with his father along the lines of the agreement that was reached in December – that is, from Friday to Monday morning each alternate weekend.  I also think that the child should spend some further time with his father. I would propose to make that overnight time on Thursday in the second week.

20. I am satisfied there ought to be orders that, commencing this Friday, the child is to spend each alternate weekend with the father from 5 pm Friday to 10 am Monday morning or, if the Monday is a public holiday, to 10 am Tuesday morning. 

21. As the trial will not be until November 2020, I also propose to make orders for school holiday time.  The child is to spend half of the school holiday period with the father commencing in the first half of the next holiday, which will be April as I understand it, and then alternating in the second half and so on. 

22. Other than that, the orders to remain in place.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  5 February 2020