Mason and McCarthy

[2012] FamCA 1097

FAMILY COURT OF AUSTRALIA

MASON & MCCARTHY [2012] FamCA 1097

FAMILY LAW – Parenting –application for interim orders.

Family Law Act 1975 (Cth)

APPLICANT: Mr Mason

RESPONDENT: Ms McCarthy

FILE NUMBER: MLC 4186 of 2012

DATE DELIVERED: 10 August 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 10 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Jenkinson

SOLICITOR FOR THE APPLICANT: Pearsons Barristers and Solicitors

THE RESPONDENT: No appearance

Orders

1. That the application in a case filed on 9 August 2012 is dismissed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That the reasons this day be transcribed.

3. That all extant applications for final orders are listed for a FIRST DAY OF HEARING before the Honourable Justice Macmillan at 10.00am on 13 September 2012.

4. That the parties and if represented, their legal practitioners, attend the first day of hearing.

5. That notwithstanding applications/responses have already been filed:

   (a)by 4 pm on 24 August 2012, the Applicant file and serve on all other parties, an amended application setting out with precision the orders to be sought at trial; and

   (b)by 4 pm on 31 August 2012, the Respondent(s) file and serve on all other parties, an amended response setting out with precision the orders to be sought at trial.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mason & McCarthy 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 MELBOURNE

FILE NUMBER: MLC 4186 of 2012

Mr Mason

Applicant

And

Ms McCarthy

Respondent

REASONS FOR JUDGMENT

1. This is an application that was brought on urgently upon a request by the practitioners for Mr Mason.  I shall refer to Mr Mason in this application as the applicant and Ms McCarthy as the respondent.  The application was filed yesterday and I have an affidavit which shows that the documents were served on the respondent by both post and by email.  Common sense dictates that the service by post could not be effective because it is now only the following day.  The email seems to have obtained a reaction from the respondent because I am told she has indicated that she is not coming today because she is pursuing an urgent dental appointment. 

2. It is perhaps unfortunate that she is not here.  It would have been much more sensible, having regard to the fact that I am dealing with a two and a half year old child, to know exactly what is happening to him.  The genesis of this application is a sad one. 

3. It appears that B was born in September 2009, so he is not yet three.  It seems common ground, from what I have read, that the child only began to know his father as a result of litigation.  That litigation began only a few weeks ago.

4. I have to consider today what orders are in the child’s best interest. 

5. The case came on at first instance before the Federal Magistrates Court on 19 June.  On that day, it seemed that the applicant’s position was that he wanted to create a relationship with the child.  The background of the respondent is that she is not an Australian citizen but has a permit to stay.  When she filed a response which was prepared for her by Victoria Legal Aid, she sought final orders that the child live with her and that she be permitted to relocate the child to Country C.  Those were the matters that were before the federal magistrate.

6. On that day, the learned federal magistrate made an order precluding the child from leaving the Commonwealth of Australia.  I do not have any reasons for judgment that day, but I have been told and I have no reason to doubt that there was some concern about whether or not, if the order was not in place, then the respondent might simply remove the child from the Commonwealth.  I am not entirely comfortable about that order.  The matter was adjourned for three days and came back before the same federal magistrate, at which time, a family consultant gave viva voce evidence about how, if it all, a relationship between the child and his father, the applicant, could be created. 

7. There are some concerning questions arising out of that evidence, but it seems that as a result of it, the parties went outside and consented to an arrangement that the child would spend some time with the applicant to assist the creation of a relationship.  Today, I have been handed an affidavit from someone from an organisation called D Pty Ltd.  This person purports to have qualifications in early childhood development from some organisation that I do not recognise, but also first aid certificates and emergency care certificates from the Royal Children’s Hospital.  To the extent that the person also describes herself as a professional nanny, I have made the observation that that evidence entitles them to make observations about what they say, but having regard to what Heydon J said in the Makita case, I would seriously question that witness’s expertise to give the opinions that seem to flow from the report. 

8. Be that as it may, evidence provided was that the relationship between the child and the applicant went well.  I have no idea how difficult it was for the child to leave his mother, nor what would have happened if the supervised time was more than the period that it was.  There is a scintilla of evidence because the mother is reported to have told the supervisor at the end of the first period that the child was very clingy.  The mother was asking whether this was normal behaviour. 

9. I express some concern because one could well imagine how a child who had been with his mother all of his life and who had her as his attachment figure being given to some perfect strangers might have some after-effects. 

10. There is no evidence in the affidavit of the supervisor that would satisfy me that I should vary the orders that were made on 22 June, giving the mother the residence responsibilities and the father some limited time.  That leads me to what the application is really all about. 

11. Notwithstanding that in the hearing on 22 June there was a discussion about the fact that the respondent was going to America, the learned federal magistrate still made the order precluding the child from leaving Australia.  I have already expressed my reservation about that order having been made, but it would seem on the evidence that the respondent is going to go to America for a week anyway. 

12. That has brought about the application that was filed yesterday by the applicant, in which he seeks that the child live with him during that duration.  The mother is not here and has not filed any material.  The matter has been brought on urgently, so I have to deal with the matter as best I can. 

13. The application of the applicant is a parenting order, but it is also one that seeks to vary the orders that were only made on 22 June. Section 60CA of the Family Law Act says that if I am to make a parenting order I must consider the best interests of the child as the paramount consideration. In determining what is in the best interests of the child, I must consider the matters set out in section 60CC.

14. In respect of the primary considerations set out in section 60CC(2), I am obliged to consider the benefit of the child having a meaningful relationship with both parents.  I am obliged to consider the need to protect the child from the physical and psychological harm of being exposed to abuse, neglect, or family violence.  None of those matters is relevant, having regard to the fact that the application seeks only a week of parenting responsibility.  The additional considerations are any views expressed by the child and, obviously, having regard to the fact that the child is two and a half years or nearly three years of age, none of that is of any great value.  More importantly, I am obliged to look at the nature of the relationship of the child with each of the parents. 

15. At its highest, the father’s evidence says that he is now starting to have a wonderful time with the child and he thought that his contact under supervision went extremely well.  That does not tell me about the depth and nature of the relationship between he and the child.  As I pointed out in discussion, the child might view the father as a man in a park with a bag of lollies.  It is well-known in social science research that children develop attachments to particular figures, and as they become older they become more bold and venture away from their attachment figure.  I am bereft of evidence in this case about how the child ventures away from his mother.  I have no idea how this child is going to venture away from his mother for a week if she goes to America. 

16. There is some criticism of the mother about the fact that she will not tell the father with whom the child was to spend the week if it was not with him, but on the other hand it may very well be open for me to conclude that because the mother is otherwise a responsible parent, she has left the child with a person with whom he is extremely familiar.  It may, on the other hand, also be that she is desperate to go to America for the purposes, as it would seem, for her future employment situation and, as such, in desperation, having had an order made against her precluding the child leaving the country, she has abandoned the child for the week.  I have no idea what the evidence is in relation to the nature of the relationship with both of these parents. 

17. Another consideration is the extent to which each of the children’s parents – child’s parents has taken or failed to take the opportunity to participate in decision-making and spending time with the child.  It is not for me, on this evidence, to make any criticism of anybody, but it is curious that the relationship between the father and this child is commencing when the child is two and a half or three years of age.  I do not have any evidence about what obligations each of the parents has fulfilled in relation to the maintenance of the child.  There is no evidence before me in relation to that.  The fundamental question which is set out in section 60CC(3)(d), is the likely effect of any changes in the child’s circumstances, including the effect on the child of any separation from either of his parents. 

18. There would seem to be very little concern about separating from his father, the applicant, because he seemed quite happy to go back to his mother according to the supervisor, but I have no idea what effect leaving the child with his father for a week and being separated from his mother will have.  Another consideration is the capacity of each of the parents to provide for the needs of the child, including emotional needs.  I do not know whether the father has the capacity to care for this child.  The federal magistrate seemed to think that there should be some supervised arrangement.  The parties have put in place a paid supervisor which, by default, then becomes the grandmother.  The fact that that order was made only a few weeks ago raises doubts in my mind about the capacity of the applicant to care for this child. 

19. There are also other considerations in relation to the attitude to the childhood and the responsibilities of parenthood demonstrated by each of the parents.  In respect of the respondent, I might be extremely critical of the fact that she is not here today, that she has not provided the details of where the child will be living, but on the other hand it may very well be that she has a plausible excuse and just cannot get here.  It may also be that she has read the material of the father and decided that there is nothing for her to worry about. 

20. I am not prepared to make any determination about today including what caused the father not to have any contact with the child for some two and a half years, which are the most critical periods of a child’s development in terms of attaching themselves to a particular figure. 

21. There are considerations in section 60CC(3) relating to family violence, and although there is some argument raised, apparently, in one of the affidavits of the mother, I do not draw any adverse inference in relation to any of those matters.  Accordingly, this case boils down to me being satisfied on the basis of the assessments of the matters in section 60CC that it would be in the best interests of the child to spend that week, notwithstanding he will not be with his mother any, with his father.  I could not, on any view of that evidence, draw that conclusion.  I must presume that, having regard to the fact that the father consented to the mother having at least the interim arrangements for this care, that he believes she had the necessary capacity to care for him.  On that basis, the application will be dismissed.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 August 2012.

Associate:

Date:  12 December 2012