MALONE & MALONE

[2013] FCCA 1243

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALONE & MALONE [2013] FCCA 1243

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – best interests of the children – parental responsibility – sole parental responsibility – where equal shared parental responsibility does not apply – where Apprehended Domestic Violence Order in force until 21 January 2014 – need to protect children from harm – supervision – appointment of Independent Children’s Lawyer – three children all aged under four years.

Legislation:
Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 61DB, 68L

Cases cited:
B & B (Access) (1986) FLC 91-758
Oakley & Cooper [2009] FamCAFC 133
Re K (1994) 17 Fam LR 537; FLC 92-461

Applicant: MS MALONE

Respondent: MR MALONE

File Number: SYC 1593 of 2013

Judgment of: Judge Scarlett

Hearing date: 8 August 2013

Date of Last Submission: 8 August 2013

Delivered at: Sydney

Delivered on: 9 August 2013

REPRESENTATION

Counsel for the Applicant: Mr Gould

Solicitors for the Applicant: Pigdon Norgate

Counsel for the Respondent: Ms Wright

Solicitors for the Respondent: AMH Lawyers

ORDERS

UNTIL FURTHER ORDER:

1. The Applicant Mother is to have sole parental responsibility for the children [X] born [in] 2010, [Y] born [in] 2011 and [Z] born [in] 2012 including making decisions about major long term issues relating to the care, welfare and development of the children.

2. The children [X], [Y] and [Z] are to live with the mother.

3. The children are to spend time with the Respondent Father as follows:

   (a)On the Saturday of the fourth weekend in each month commencing 24 August 2013 for a period of two hours at times to be arranged between the parties such times to be supervised at the father’s expense by:

   (i)South-West Contact Service; or

   (ii)Phoenix Rising; or

   (iii)Dial an Angel; or

   (iv)Such other contact service as the parties may agree.

   (b)By telephone for a period of ten minutes between the hours of 8:00 am and 9:00 am:

   (i)on each Saturday other than the fourth Saturday of each month;

   (ii)on Father’s Day;

   (iii)on Christmas Day;

   (iv)on the father’s birthday;

   (v)on each of the children’s birthdays;

   (vi)on St. Patrick’s Day; and

   (vii)on Easter Sunday.

4. When the children are spending time with the father in accordance with these Orders:

   (a)The father is restrained from physically disciplining any of the children by hitting them or striking them and will use his best endeavours to ensure that any third party does not physically discipline the children; and

   (b)The father must ensure that he feeds the children their neocate 1cp formula as prescribed by the Commonwealth Health Department.

5. The father must do all things necessary to enrol in a parenting course provided by Relationships Australia within one (1) month from the date of these Orders and commence attending such course once the course is due to commence.

6. Each of the parents and their servants or agents is hereby restrained from removing or attempting to remove or causing or permitting the removal of all or any of the children [X] born [in] 2010, [Y] born [in] 2011 and [Z] born [in] 2012 from the Commonwealth of Australia.

7. As provided by s.68L of the Family Law Act, the interests of the children [X], [Y] and [Z] are to be independently represented by a lawyer and for this purpose Legal Aid NSW is requested to arrange such representation.

8. The parties’ solicitors are to forward to Legal Aid NSW at 323 Castlereagh Street, Sydney in the State of New South Wales, for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, Affidavits and other relevant documents within fourteen (14) days.

9. The Application is adjourned to Monday 16 September 2013 for further mention at 10:00 am and the Independent Children’s Lawyer is requested to attend Court on that date. 

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 1593 of 2013

MS MALONE

Applicant

And

MR MALONE

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for parenting Orders by the Mother of three little boys

2. I have given consideration to the very helpful submissions that I heard yesterday relating to these three little boys, [X]; [Y] and [Z]. They are all under the age of four and there are specific considerations that a Court exercising jurisdiction under the Family Law Act must consider in respect of children of this age, particularly in the development of attachment.

3. I have considered in determining what is in the best interest of these children the primary considerations with the need for them to have a meaningful relationship with each of their parents and the need to protect the children from physical or psychological harm; from being subjected to or exposed to abuse, neglect or family violence.  Family violence has been a feature in the parties’ evidence.  There is no issue about the fact that there is an apprehended domestic violence order in force until 21 January next year.

4. That order was made in the Local Court of New South Wales at [omitted], after a defended hearing and the Court has had the benefit of receiving not only copies of the orders but the transcript of the proceedings. It will perhaps come as no surprise to the parties that I have decided to accede to the submission put by counsel for the Respondent Father, that the interests of the children should be separately represented by an independent lawyer under the provisions of section 68L of the Family Law Act.

5. I am aware that counsel for the Mother, Mr Gould, did not support that submission, principally on the basis that the children’s ages were such that they would not be able to have a great deal of meaningful interaction with the independent children's lawyer. Well, to some extent, I think that is true. This is not a matter where the Court in considering the requirements of subsection (3) of section 60CC, is going to be looking at the views of the children in any depth, as the court is required to do under paragraph (a). Whatever views they express are not going to be given a considerable amount of weight due to their very young ages.

6. However, the evidence as it is before the Court, contains a number of elements that meet the requirements of the guidelines set out by the Full Court of the Family Court in the well-known decision of Re K which to my mind is still the best and most appropriate authority for the Court to consider whether or not an Independent Children's Lawyer should be appointed.  It is not hard to see that in the evidence, this is a case involving allegations of child abuse, more through neglect I would add than direct imposition of physical violence, although the Mother’s affidavit contained several examples of instances where she says that the Father’s physical handling of the children has been inappropriate and detrimental. 

7. Counsel for the Father referred the Court to other guidelines in Re K, being cases where there is apparently intractable conflict between the parents and cases where the child is apparently alienated from one or both parents.  I am less convinced as to the second of those, although Ms Wright was putting it on the basis that the mother was, in the Father’s view, attempting to alienate the children from the parents.

8. Other instances which come to mind or where the conduct of either or both of the parents is alleged to be anti-social to the extent that it seriously impinges on the child’s welfare and that conduct includes cases where there is a background of serious family violence and of course, where there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the children.

9. There have been mutual allegations in this regard, although the Father, in fairness, has indicated that he is not of a belief that his allegations in respect of the Mother would impact on her ability as a parent.  In my view, the interim arrangements for the children are overshadowed by the existence of the apprehended domestic violence order.  It was arrived at after a defended hearing.  The Father vigorously defended the allegation, just as he vigorously denies allegations of violence or abuse.

10. Nevertheless, a Court having jurisdiction, made the apprehended domestic violence order.  It cannot be ignored, in fact, subsection 63 – CC(3) at paragraph (k) requires the Court to consider the existence of such an order.  When the Court is looking at the primary considerations, those in paragraph (b) of subsection 2 – the protection of children from harm – must be given greater weight than the other primary consideration.

11. It will therefore come as no surprise to the parties that the Court is adopting a cautious approach.  The Father is hindered somewhat by the fact that due to the circumstances of his employment, he resides in Queensland.  He apparently has a three weeks on and one week off work roster, but obviously it is far more convenient for him and understandably so for him to have his residence in Queensland.

12. Accordingly, whilst the Mother has suggested that the Father should have time with the boys fortnightly, it is clearly more suitable for Father, and he has proposed that this be done on a monthly basis.  The Father proposes and the Mother opposes an arrangement where he in fact has the eldest child, [X], overnight, but only has daytime contact, to use the old term, with the two younger boys, [Y] and [Z].

13. At this stage, I am not prepared to go that far.  These are very young children.  Three children under the age of four which imposes a major workload on any parent.  [X] was born [in] 2010.  He is not yet four.  [Y] was born [in] 2011.  He has only recently turned two.  Little [Z] was born [in] 2012.  He is only just over 12 months old.  There is an abundance of information available to the Court which is well known to practitioners of the Court, that children of these tender years, need regular time with their parents.

14. It has been unfortunate that the children have not been able to spend time with their father for a considerable number of months and the reintroduction of the children to the Father will need to be handled with sensitivity and care.  After a break of seven months or so, with children this young, the Father is almost going to be a stranger to them and needs to be reintroduced to build up the relationship.

15. The Court must balance the need for the Father to build up the relationship with the children on the one hand, with the need to ensure their safety on the other.  Accordingly, I am of the view that the children should spend time with their father each month.  Ideally it would be more frequently than that, but the tyranny of distance and the expense of air travel from Brisbane to Sydney and accommodation in Sydney will probably preclude more frequent times that than, at least in the near future.

16. It would be undesirable for the children to see their father at intervals of less than every month and it needs to be understood that it will take a little while for the children to get to know their father again, taking into account their young ages and the length of time that has passed since they have not seen him.  It is not suggested by the Mother that the children should not spend time with their father, let alone not have a relationship with him.

17. I am of the view, and this will probably come as no surprise, that the Father’s time with the children which will be relatively short for the immediate future, will need to be under supervision.  This is an interim order.  It can be reviewed.  It may well be worth considering in the New Year, perhaps, when the restriction of the apprehended violence order no longer takes place, and if arrangements have gone smoothly and, obviously, to the children’s benefit, that the parties would look at reviewing these orders, but that is a matter for the future.

18. There is also a need for the Father to build up or rebuild his relationship with the children by other means.  It has been proposed that there should be communication by Skype. 

19. At this stage the Mother does not have internet access, although the maternal grandparents have offered to make Skype facilities available, but not at a time that is going to assist father, bearing in mind that he is in full-time employment.  At this stage I do not see that there is a clear and workable proposal for Skype communication, but that is not to say that the Court would not give serious consideration to communication by Skype once arrangements can be made, in the comparatively recent future.  

20. An Independent Children’s Lawyer, when appointed, may well be able to assist the parties in coming up with an appropriate arrangement. However, it would be appropriate for there to be telephone communication.  It is not of the same benefit, in my view, as Skype because the parties cannot see each other.  At least, however, the children would have the benefit of hearing their father’s voice.  I accept the fact that, due to the children’s very young ages, that the telephone conversations will not be particularly lengthy or particularly informative. 

21. And that is most notably so in the case of [Z] who, at the age of just under 13 months, is probably unlikely to be able to say anything much on the phone at all.  [Y], one would hope, might be in a slightly better position, but in my view it is only [X] who is going to gain a great deal of benefit from telephone communication with the Father, at this stage.  But I am of the view that the road to communication must be opened, and it is one way for the children to have a regular awareness of the fact that they have a father who wants to spend time with him. 

22. In my view, telephone communication should be for a relatively short period of time:  once a week and on certain special occasions, and I note that Father’s Day is coming up.  There are also orders that will need to be complied with in respect of a restraint on the Father from physically disciplining any of the children.  The Mother also has a concern that the Father needs to feed the children a Neocate 1cp formula for their health, and I think that as a concerned Father that he would need to comply with that. 

23. It would seem to me that enrolling in a parenting course would be of benefit and, whilst there is no immediate evidence of any threat by either parent to remove the children from Australia and not return them,  such that I am certainly not satisfied that there is a need for the children’s passports to be held by the Court or for there to be a watch list order, at this stage I am satisfied that the Court should accede to the request of counsel for the Mother, that there should be an order restraining the parties from removing or attempting to remove the children from the Commonwealth of Australia. 

24. I have not, at this stage, made an order relating to the appointment of a child and family psychiatrist under rule 15.09 of the Federal Circuit Court Rules at this stage. I am aware that the Mother’s legal advisors have provided a list of four well-known practitioners to the Father’s legal advisors, but, as Ms Wright told the Court yesterday, the Father does not reside in New South Wales, the Father’s legal advisors carry on their practice in Brisbane, and the particular doctors suggested are not immediately known to them.

25. I do not think it is unreasonable for them to make appropriate inquiries. The names of the doctors are well-known to the Court:  Dr W, Dr M, Dr R and Dr B.  Finance is obviously one of the concerns.  I note the Father is in employment and he is certainly well paid and there is also evidence that he is paying child support of a significant amount.  But nevertheless, legal expenses can take a toll on parties’ income, and the Father does wish to consider the expense of a Court-appointed expert. 

26. In my view the parties may well be assisted by the input of an Independent Children's Lawyer in respect of that, and my view is that I would not want to make an appointment of a Court expert until the views of an Independent Children's Lawyer be made known. It is, however, a matter that I would like to revisit at a relatively early stage. I have, as I am required to do, considered the question of equal shared parental responsibility, and I am mindful of the requirements of section 61DA of the Family Law Act and mindful of the orders that the Court must consider under section 65DAA if the Court makes an order relating to equal shared parental responsibility.

27. This is, of course, an application for interim parenting orders and any allocation of parental responsibility will be disregarded under the provisions of section 61DB when the Court is making final parenting orders. That said, to my mind the existence and the ongoing effect of the apprehended domestic violence order, and the conclusions that flow from it, support the view that at this stage I should make an order that the mother is to have sole parental responsibility for the children for making decisions about major long-term issues concerning the children’s care, welfare and development.

28. That, of course, is a matter that will be considered afresh, as the Court is required to do, in the final hearing.  In short, those are the Court’s reasons.  I have considered the decision of the Full Court of the Family Court in Oakley & Cooper to which I was referred by Ms Wright of counsel, which is, of course, a decision on appeal from this Court – from the decision of Baumann FM, as his Honour then was.  I have also considered the decision of Gee J in B & B Access (1986) FLC 91758,  referred to me by Mr Gould of counsel for the mother.  In my view the orders that I am making today reflect the cognisance that I have given to those authorities.

29. I require a transcript of my reasons for this decision and those written reasons will be forwarded out to the parties in due course.  I have some sealed copies or about to be sealed copies of the orders which I shall make available to the solicitors for the applicant and the respondent, and a copy will be forwarded to the Independent Children's Lawyer.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  30 August 2013