MCARTHUR & FENNELL

[2017] FCCA 2200

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCARTHUR & FENNELL [2017] FCCA 2200

Catchwords:
FAMILY LAW – Interim parenting orders – final parenting orders made in 2015 under which child live with the father and spend time with the mother – the mother over held the child and filed initiating application proposing orders that child live with her and spend supervised time with the father – the father proposes return to 2015 final orders – consideration of risk factors identified by the mother – held subject to compliance with orders that the child’s time with the father progressively increase and 2015 final orders be reinstituted.

Legislation:

Family Law Act 1975, ss.11F, 13C(1)(c)

Cases cited:

Goode v Goode [2006] FamCA 1346

Rice v Asplund (1979) FLC 90-725

Applicant: MS MCARTHUR

Respondent: MR FENNELL

File Number: AYC 230 of 2012

Judgment of: Judge Jones

Hearing date: 2 August 2017

Date of Last Submission: 2 August 2017

Orders Pronounced:	2 August 2017
Delivered at:	Melbourne

Delivered on: 19 September 2017

REPRESENTATION

Counsel for the Applicant: Ms Kampen of Pogson Cronin

Solicitors for the Applicant: Pogson Cronin

The Respondent appeared in person.

INTERIM PARENTING ORDERS

1. All extant applications are adjourned to the Albury circuit sittings of the Federal Circuit Court on 4 December 2017 at 10.00am for directions.

2. Each of the parties be restrained by injunction from consuming illicit substances.

3. From 17 August 2017 until further Order, the Father and the Mother undertake supervised urine drug screen testing (“the testing”):

   (a)the testing of each party not to occur more than once per month;

   (b)the testing occur at a pathology centre;

   (c)the testing occur randomly and within 24 hours of the other party or their solicitors making a written request for the testing to occur; and

   (d)the results of the testing, on each occasion, be forwarded, as soon as possible, to the other party or their solicitors.

4. The child X born (omitted) 2010 (“the child”) live with the Mother, until the Father secures accommodation with at least two bedrooms and provides confirmation in writing to the Mother’s solicitors.

5. Until the Father securing accommodation pursuant to Order 4 herein, the child spend time with the father as follows:

   (a)commencing 3 August 2017, during school term;

   (i)in the first week, on Sunday from 10.00am to 5.00pm and each alternate Sunday thereafter; and

   (ii)in the second week;

   1.   on Tuesday, from after school until 6.30pm; and

   2.   on Thursday, from after school until 6.30pm.

6. Upon the Father securing accommodation, the child spend time with father as follows for a period of six weeks:

   (a)during the first week, from Friday after school to Monday before school, and each alternate weekend thereafter; and

   (b)During the second week, from after school Wednesday to before school Thursday.

7. Pursuant to Order 6 a) herein, in the event that the Monday is a public holiday, the time with the Father be from Friday after school to Tuesday before school.

8. Upon the completion of the six weeks pursuant to Order 6 above, the Final Orders made 4 June 2015 come into full force and effect.

9. Changeover occurring other than at school is to be effected at McDonald's (omitted).

10. Pursuant of section 13C(1)(c) of the Family Law Act 1975, each of the Mother and the Father forthwith:

    (a)attend and complete, as soon as practicable, the Parenting Orders Program at (omitted) Family Care in (omitted) (“the Program”);

    (b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;

    (c)pay and otherwise be responsible for all costs associated with the Program; and

    (d)provide an appropriate Certificate of Completion of the Program to the other party or their solicitors.

11. The parties forthwith sign all such documents and do all such acts and things as shall be necessary to enrol the Child in the (omitted) Children's Program at (omitted) Family Care in (omitted) (“the Program”), and shall encourage the child’s attendance at the Program.

NOTATION

A.Both parties agree that the charges for assault brought against the Father have been withdrawn.

B.Pursuant to s.65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A hereto and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ALBURY

AYC 230 of 2012

MS MCARTHUR

Applicant

And

MR FENNELL

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. On 2 August 2017 in the Albury circuit sitting of the Federal Circuit Court, I made the Interim Parenting Orders.

2. The Interim Parenting Orders were pronounced following the provision of an oral report by family consultant, Ms D (“Family Consultant Ms D”), at 2.15pm on 2 August 2017 regarding a child inclusive conference conducted pursuant to s.11F of the Family Law Act 1975 (Cth) (“the Act”) with the parties by Family Consultant Ms D that morning. The matter was stood-down to enable the parties to have discussions. No agreement was reached between the parties, and at 4.00pm, the Court heard the submissions of the parties regarding future interim parenting arrangements for the child of the relationship, X born (omitted) 2010 (“X”).

3. The Mother’s solicitor has by email to my chambers, requested that the Court provide written reasons for the Interim Parenting Orders. In the circumstances, the reasons are briefly set out below.

4. The father of X, Mr Fennell born (omitted) 1974 (“the Father”) is 42 years of age and the mother, Ms McArthur born (omitted) 1979 (“the Mother”) is 38 years of age.

5. On 12 June 2012, proceedings commenced in this Court regarding living arrangements for X. After three years of litigation, Final Orders were made by consent by Judge Harman on 4 June 2015 (“the 2015 Final Orders”). In summary, the 2015 Final Orders provided that the parents have equal shared parental responsibility for X, that X live with the Father and spend time with the Mother from after school on Thursday until before school on Tuesday in each alternate week during the school term, and for half of the school holidays. The 2015 Final Orders provided for time arrangements on special occasions.

6. On the material before the Court (notwithstanding the inability of the parties to communicate effectively), the 2015 Final Orders were complied with until 16 May 2017 when, following an incident in front of X at her school between the parents, the Mother over held X.

The current proceedings

1. On 6 July 2017, the Mother filed an Initiating Application seeking only interim orders that X live with her and spend supervised time with the Father.

2. In his Response filed on 1 August 2017, the Father sought to reinstate the 2015 Final Orders. The Father also filed a Contravention Application on 1 August 2017.

3. At the first Court return date on 31 July 2017, the Father had not seen X since 22 May 2017 (the Father’s affidavit filed on 1 August 2017 at [5]).

4. In her affidavit filed 6 July 2017, the Mother’s asserts that X is at risk in the Father’s care. Her reasons are:

   a)allegations of family violence perpetrated by the Father during the relationship;

   b)excessive alcohol consumption by the Father during the relationship and ongoing;

   c)the smoking of cannabis by the Father;

   d)the fact that the Father was charged with common law assault and an Interim Intervention Order (“the IVO”) made in respect of the incident on 16 May 2017 outside of X’s school. The Father was named as the Respondent, and the Mother and X were named as Affected Family Members on the IVO;

   e)information that the Mother had received that the Father had also been charged with common law assault of his former partner, and an Interim Intervention Order taken out with the Father named as the Respondent, and his former partner and older child named as Affected Family Members; and

   f)the accommodation that the Father has lived in (being a caravan) since leaving his former partner. A police summary incident report described the condition of his caravan as filthy (Exhibit M1 at 3).

5. Family Consultant Ms D reported that the parties had agreed that the two charges of common law assault were withdrawn, as was the IVO made in favour of the Mother. The status of the Interim Intervention Order in favour of the Father’s former partner is not clear on the information before the Court.

6. It is also apparent from Family Consultant Ms D’s oral report that the Father was incarcerated, which the Father says for a breach of the IVO made in favour of the Mother. It appears that the Father was incarcerated for a period of four weeks, until the charges and the IVO were both withdrawn.

7. Family Consultant Ms D’s oral report has been reduced to writing in a written memorandum to the Court dated 2 August 2017. Family Consultant Ms D relevantly states (the s.11F written memorandum to the Court at 3):

   ·     There is a past history of litigation involving the parents.

   ·     There is no current direct communication between the parents.

   ·     Since she was a young child, X has lived with [the Father] and, on occasion, spent restricted time with [the Mother]. From [the Father]’s account, until the last few months, he has provided the child with a good level of stability including that he lived in the same residence for a number of years. He reports that the last few months have been very destabilising for him including experiencing a period of imprisonment, separating from his former partner and losing access to X. As stated, [the Mother] said that during the last two years she has stablished [sic] her life and living situation.

   ·     The parents report that for a few years after the Court Orders were made in 2015 they managed to adhere to the Orders without significant issue. However there appears to have been considerable conflict associated with school holiday arrangements. They both report that the communication between them was generally limited.

8. Family Consultant Ms D recommended that, in the interim, the child live with the Mother, with progressively increased time with the Father.

9. The Father deposes in his affidavit filed on 1 August 2017 that he is looking for accommodation, which he told the Court on 2 August 2017 was with the assistance of the NSW Department of Housing. He wants to get a three bedroom unit, as his eldest child (a 17 year old daughter) is intending to live with him at the end of the year (the Father’s affidavit filed on 1 August 2017 at [10]).

10. The Mother deposes that she resides in a three bedroom house and her daughter who is 14 years of age lives with her (the Mother’s affidavit filed on 6 July 2017 at [52]).\

Consideration

1. As the hearing was an interim one, the principles of the Full Court of the Family Court of Australia in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) apply.

2. I have no doubt that X benefits from a meaningful relationship with both parents, subject of course to any risk factors. X has lived predominantly with the Father and there is no suggestion that he has not encouraged a meaningful relationship between X and the Mother. I cannot comment on whether the Mother would facilitate a meaningful relationship between X and the Father, given the numerous protective allegations contained in her affidavit filed on 6 July 2017.

3. I now turn to the risk factors. The Mother’s primary concerns as alleged in her affidavit filed 6 July 2017 were the assault charges and the intervention orders which involved both herself and the Father’s former partner. These can be said to have been resolved, with the parties agreeing that both assault charges were withdrawn, and the IVO naming the Mother and X as Affected Family Members also being withdrawn. There is, of course, the outstanding issue of the Interim Intervention Order against the Father and under which his former partner and eldest daughter are named as Affected Family Members. This intervention order is not in evidence, and on the Father’s evidence, his eldest daughter intends to live with him.

4. I have no doubt that X was exposed to conflict between the parents on 16 May 2017 outside of her school. I cannot make any findings about this, save to say that the parents did not act in X’s best interests by exposing her to this incident. The high level of conflict between the parents seems to be an issue that is exacerbated at changeover.

5. The other risk properly raised by the Mother is the Father’s accommodation. This risk can be addressed by an Order requiring the Father to obtain suitable accommodation before any overnight time with X commences.

6. As to the smoking of cannabis, the Father conceded in oral submissions that he is a recreational user. The Father alleges that the Mother is as well. This must stop, in X’s best interests. This risk factor can be addressed by an Order for random drug screens.

7. X’s living arrangements for at least the last two years have meant that the Father has been the stable person in her life. The Mother says that she has turned her life around and is ready to provide X with a safe and stable home environment.

8. X does not know why her living arrangements have changed and she misses the Father (the s.11F memorandum to the Court at 4). X is, in my view, too young to express views regarding her living arrangements.

9. As I have indicated to the parties, X has only recently been the subject of three years of litigation. The Mother’s application to commence litigation was made only two years after the 2015 Final Orders were made.

10. In the circumstances, and where protective orders can be made to deal with the Father’s living arrangements and alleged drug use, I am satisfied that it is in X’s best interests that orders be crafted to progressively enable the living arrangements for X under the 2015 Orders to resume.

Conclusion

1. I am satisfied that it is in X’s best interests, subject to the father obtaining suitable accommodations and the making of restraints on the parents’ consumption of illicit drugs, that the 2015 Final Orders should remain in place. I so Order.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 19 September 2017