Masters & Pedrosa

Case [2021] FCCA 1226

FEDERAL CIRCUIT COURT OF AUSTRALIA

Masters & Pedrosa [2021] FCCA 1226

File number(s): SYC 2451 of 2020
Judgment of: JUDGE NEWBRUN
Date of judgment: 4 June 2021
Catchwords: FAMILY LAW - parenting - previous final parenting orders - Rice and Asplund - Mother and ICL permitted to seek fresh parenting orders - best interests of child - interim orders made - proceedings transferred to Family Court of Australia
Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

Federal Circuit Court of Australia Act 1999 s 39

Federal Circuit Court Rules 2001 r 8.02

Cases cited:

Swenson & Brantley (No 2) [2020] FamCAFC 205

Rice & Asplund (1979) FLC 90-725

SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363

Marsden & Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1

Olenghi & Salambo [2021] FamCA 9

Searson & Searson (2017) FLC 93-788

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (No.2) [2010] FamCAFC 101

Eaby & Speelman [2015] FamCAFC 104

Banks & Banks [2015] FamCAFC 36

Morris & Rosetti [2017] FamCA 249

Re W: Publication Application (1997) 137 FLR 205
Number of paragraphs: 108
Date of last submission/s: 27 April 2021
Date of hearing: 27 April 2021
Place: Parramatta
Solicitor for the Applicant: Ms Munk
Solicitor for the Respondent: Ms Kristie
Solicitor for the Independent Children's Lawyer: Mr Samuel

ORDERS

SYC 2451 of 2020
BETWEEN:

MS MASTERS

Applicant
AND:

MR PEDROSA

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

4 JUNE 2021

THE COURT ORDERS PENDING FURTHER ORDER

1.That there has been a significant change in circumstances since the Court’s Final Orders of 24 September 2019 such that, acting in the best interests of the child, E born in 2018, the parties should be permitted to seek fresh parenting orders in relation to the child.

2.That Orders 6 and 7 of the Orders dated 24 September 2019 in Proceedings No. PAC 4209/2018 be and are hereby suspended.

3.That the child spend professionally supervised time with the Father, through the organisation P Contact Centre, on one weekend day each week, for up to 3 hours, as can be practically facilitated by P Contact Centre. 

4.The parties shall share equally the cost of such professional supervision.

5.That the parties are to forthwith complete all intake procedures required by P Contact Centre.

6.In the event that the Father cannot afford to take up professionally supervised time with the child through P Contact Centre, then he shall spend supervised time with the child at a contact centre.  In this event, the parties shall forthwith complete all intake procedures at the contact centre, and they shall share equally the cost of such supervision at the contact centre.  

7.That within 28 days of the date of these Orders, the Father shall attend upon a suitably qualified psychologist or psychiatrist (the mental health professional) for the purpose of undergoing a mental health assessment and obtaining a diagnosis and treatment plan for any mental health issues and/or condition of the Father identified by the…

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Masters & Pedrosa [2021] FCCA 1226
Case
[2021] FCCA 1226
Decision Date

CaseChat Overview and Summary

In the matter of *Masters & Pedrosa*, heard by Newbrun J, the dispute concerned parenting orders for a child born in 2018. The proceedings involved Ms Masters as the applicant and Mr Pedrosa as the respondent.

The court was required to determine whether there had been a significant change in circumstances since the final parenting orders of 24 September 2019, justifying fresh parenting orders in the child's best interests. It also needed to consider the terms of any new orders, including the nature and extent of contact between the child and the father, and the father's mental health.

Newbrun J found that a significant change in circumstances had occurred, necessitating fresh parenting orders. The court's reasoning was guided by the primary consideration of the child's best interests, as stipulated by section 60CC of the *Family Law Act 1975* (Cth). This involved assessing various factors, including the nature of the child's relationship with each parent, the parents' capacity to provide for the child's needs, and the potential impact of any changes in circumstances. The court noted the father's admission to a psychiatric hospital due to adverse mental health and the mother's concerns regarding the child's well-being.

The court ordered that the final parenting orders of 24 September 2019 be suspended and that the child spend professionally supervised time with the father. The parties were ordered to share the costs of this supervision and to complete intake procedures at the designated centre. Furthermore, the father was directed to undergo a mental health assessment and obtain a diagnosis and treatment plan, with the costs to be borne by him. The proceedings were transferred to the Family Court of Australia at Parramatta for a mention date.

Orders

Orders of the court

SYC 2451 of 2020

BETWEEN:

MS MASTERS

Applicant

AND:

MR PEDROSA

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

4 JUNE 2021

THE COURT ORDERS PENDING FURTHER ORDER

1. That there has been a significant change in circumstances since the Court’s Final Orders of 24 September 2019 such that, acting in the best interests of the child, E born in 2018, the parties should be permitted to seek fresh parenting orders in relation to the child.

2. That Orders 6 and 7 of the Orders dated 24 September 2019 in Proceedings No. PAC 4209/2018 be and are hereby suspended.

3. That the child spend professionally supervised time with the Father, through the organisation P Contact Centre, on one weekend day each week, for up to 3 hours, as can be practically facilitated by P Contact Centre.

4. The parties shall share equally the cost of such professional supervision.

5. That the parties are to forthwith complete all intake procedures required by P Contact Centre.

6. In the event that the Father cannot afford to take up professionally supervised time with the child through P Contact Centre, then he shall spend supervised time with the child at a contact centre. In this event, the parties shall forthwith complete all intake procedures at the contact centre, and they shall share equally the cost of such supervision at the contact centre.

7. That within 28 days of the date of these Orders, the Father shall attend upon a suitably qualified psychologist or psychiatrist (the mental health professional) for the purpose of undergoing a mental health assessment and obtaining a diagnosis and treatment plan for any mental health issues and/or condition of the Father identified by the mental health professional.

8. That for the purpose of Order 7 above:

(a) the mental health professional appointed shall be such psychologist or psychiatrist agreed between the parties in writing and failing such agreement the Mother shall nominate three names and the Father shall select one within seven days of nomination by the Mother;

(b) the parties shall provide the mental health professional with all court documents filed by the parties in these proceedings prior to the Father’s first consultation with the mental health professional together with a copy of the Child Dispute Conference Memorandum dated 9 September 2020;

(c) the Father shall follow all recommendations and directions of the mental health professional;

(d) the mental health professional shall prepare a report in relation to his or her assessment, diagnosis and treatment plan for any mental health issues of the Father identified by the mental health professional and provide a copy of such report to the Mother’s legal practitioner and ICL within seven days of completion; and

(e) the Father shall pay the costs of and associated with the appointment of the mental health professional under these Orders.

9. These parenting proceedings are forthwith transferred to the Family Court of Australia at Parramatta, with a mention date to be held in that Court on 17 June 2021 at 10:15am.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Court will now deal with the parties’ competing proposals, as referred to at the outset of these Reasons. EVIDENCE The child is very young, now aged 3 years. The child spent time with the Father following the Court’s final Orders in September 2019 up until about mid-April 2020 when the Mother ceased to facilitate such time occurring. The following organisations and third parties had involvement with the family, within a relatively short period of time after the Court’s final Orders: FACS/DCJ, Police, and the parties’ lawyers. The Father voluntarily admitted himself to the L psychiatric hospital on about 30 April 2020 experiencing adverse mental health, and where he was an inpatient until about 17 May 2020. After the Father’s discharge from the above hospital, the Mother facilitated the child spending time with the Father at a daycare centre(s). The Mother is presently prepared to facilitate the child spending supervised time with the Father, with such time being professionally supervised. The Father asserts that after the final hearing of the parenting proceedings in June 2019, on about 20 July 2019, he did take the child to a police station after he had observed bruises and scratches on his leg and face. He then took the child to hospital for examination. The Court delivered judgement following the final hearing on 24 September 2019. On 27 October 2019, the child came into the Father’s care. The Father asserts that at that time he observed the child’s nostril had been bleeding and he messaged the Mother that the bottom of the nostril seemed to have separated from his cheek. There is a suggestion, on the material before the Court, that the Father, on 18 February 2020, reported to DCJ that the child had a rash on his body The Father asserts that on 29 February 2020 the Mother did not permit him to spend time with the E as he was suffering from a mild case of hand foot-and-mouth disease. The Father asserts that because the Mother would not make the child available to him, he contacted police. There is a suggestion, on the material before the Court, that on about 8 March 2020 the Father informed DCJ that he was concerned that the Mother might be making the child sick on purpose. The Father asserts that on about 28 March 2020, when the child came into his care, he observed the child had an open lesion between his toes and texted the Mother a photo of same, to which the Mother asserted it appeared to indicate tinea. The Father asserts that on 6 April 2020 there was conflict between the parties at changeovers. The Father asserts that there was conflict because the Mother had failed to comply with the Orders and he was trying to balance out the time that had been missed. He asserts that the child was exposed to this conflict and was screaming and distressed. The Father asserts that he made a complaint to the police, the police spoke with both parents and took no action. There is a suggestion, on the material before the Court, that in about early April 2020, a DCJ officer spoke with the Father over the telephone and the Father’s verbal behaviour was manic in that, for example, the Father was very grandiose about his background; it was very difficult for the DCJ officer to interrupt the Father as he would continue to talk; the Father was rapid in his speech; and the Father would jump back and forth between topics.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Court gives significant weight to this need to protect primary consideration.Section 60CC(3) - Additional Considerations (a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views The child is too young to express a relevant view.(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child) The Court refers above to the meaningful relationship primary consideration. (c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child Both parties would appear to have taken up such opportunities.(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child The Mother has fulfilled such obligations. The Father has maintained the child when in his care although it would appear that his level of child support to the Mother is now quite modest.(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living Should the child spend supervised time with the Father, on a regular basis, with a professional supervisory body or at a contact centre, there is a reasonable prospect that the child’s meaningful relationship with the Father can be maintained.(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis Not applicable.(f) the capacity of:i) each of the child’s parents; andii) any other person (including any grandparent or other relative of the child);to provide for the needs of the child, including emotional and intellectual needs The Mother would appear to have such capacities. As to the Father, the Court refers to its discussions above under the need to protect primary consideration, whilst it would appear that he has in the past, for not insignificant periods, provided satisfactorily for the child’s needs. (g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant As to the Father, the Court refers to its discussions above under the need to protect primary consideration.(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right