MCCARTHY & MCCARTHY

[2015] FCCA 2700

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCCARTHY & MCCARTHY [2015] FCCA 2700

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – best interests of the child – family violence issues – whether father’s time with child should be supervised.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65H, 68L

Applicant: MS MCCARTHY

Respondent: MR MCCARTHY

File Number: CRC 49 of 2015

Judgment of: Judge Scarlett

Hearing date: 22 September 2015

Date of Last Submission: 22 September 2015

Delivered at: Coffs Harbour

Delivered on: 24 September 2015

REPRESENTATION

Solicitor for the Applicant: Ms Leckie

Solicitors for the Applicant: Leckie Law

Solicitor for the Respondent: Ms McKinnon

Solicitors for the Respondent: Slater & Gordon

Independent Children's Lawyer: Ms Roche

Solicitors for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

1. Order 2 of the Parenting Orders made on 14 April 2015 is discharged.

UNTIL FURTHER ORDER

1. The child X born on (omitted) 2005 is to spend time with the Father from 9:00 am to 1:00 pm each Saturday commencing on 3 October 2015.

2. Changeover where the child X goes from the care of one parent to the care of the other is to take place at the McDonald’s Family Restaurant at (omitted).

3. It is a condition of these Orders that the Father is to continue to attend on his general medical practitioner Dr W on at least one occasion each month and comply with all treatment for management of his mental health issues as recommended by Dr W.

4. BY CONSENT the Father’s time with the child X is to be suspended on the weekends including Saturday 10 October 2015 and 7 November 2015 and in substitution the Father is to spend time with X on Sunday 18 October 2015 from 9:00am to 1:00pm and Sunday 15 November 2015 from 9:00am to 1:00pm.

5. The Application is otherwise adjourned to Tuesday 16 February 2016 for further mention at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT COFFS HARBOUR

CRC 49 of 2015

MS MCCARTHY

Applicant

And

MR MCCARTHY

Respondent

REASONS FOR JUDGMENT

Application

1. The substantive Application is an Application for parenting orders by the Mother of the parties’ three children, Y, aged 17 years, Z, aged 16 years, and X, aged 10 years. The parties have two other children who are both adults. Essentially, the proceedings before the Court at present relate only to their son X.

2. Y was born on (omitted) 1997. Thus, it can be seen that she is only just over a month short of her 18^th birthday. Accordingly, the Court will have no jurisdiction to make any parenting in relation to her on 25^th October under the provisions of s.65H(1)(a) of the Family Law Act 1975 (Cth).

3. Z was born on (omitted) 1999. She is now aged 16 years and 2 months.

4. The only orders that the Mother seeks in respect of Y and Z are that:

   a)The girls live with her;

   b)The parties have equal shared parental responsibility for them; and

   c)That the Father should spend time with the girls as agreed between his daughters and himself.

5. The Mother in her Application filed on 5^th March 2015 seeks orders that the Father spend staged time with X for one supervised contact visit at Interrelate (omitted), progressing to unsupervised conditional upon his undergoing treatment including:

   a)undergoing a psychiatric assessment as to his ability to parent the children;

   b)attending an anger management course; and

   c)attending upon a psychologist and attending such appointments as recommended by the psychologist.   

Background

1. The parties were married on (omitted) 1997 and separated on 21^st September 2012.

2. The Mother filed an Application for parenting and property orders on 5^th March 2015, returnable on 14^th April 2015.

3. On that same day the Mother filed an Application for Divorce. That Application was returnable on 5^th May 2015.

4. The Father filed a Notice of Address for Service on 10^th April and a Response, affidavit, Notice of Risk and a Financial Statement on 13^th April 2015.

5. The parties attended Court on 14^th April 2015. On that day they entered into Interim Consent Orders providing that:

   a)The children would live with the Mother;

   b)The Father would spend time with X “each alternate weekend for one supervised contact visit at Interrelate (omitted) on dates and times subject to the centre’s availabilities”;

   c)Within 14 days the parties would attend Interrelate to participate in a post separation co-operative parenting program;

   d)Within 28 days the parties would attend anger management sessions with Interrelate.

6. The parties entered into some interim property orders and agreed to attend an Access Resolve Mediation Conference. .

7. The parties also agreed that an Independent Children’s Lawyer should be appointed and that Order was subsequently made under the provisions of s.68L of the Family Law Act 1975.

8. On 5^th May 2015 a Divorce Order was pronounced.

9. The parties attended the mediation and came to an agreement to resolve the property proceedings between them. On 22^nd July 2015 the Court made final property Orders by consent. The parenting proceedings were adjourned to 21^st September 2015.  

Orders Sought

1. The Mother seeks to continue the present Orders made by consent on 14^th April. She is of the view that the Father’s time with the child X should be supervised pending his having the treatment sought in her Application.

2. The Father, however, seeks a relaxation of the restrictive Orders and a lengthier period of time with the child. The Orders that he seeks are set out in a Minute of Proposed Orders submitted by his solicitor, stating:

   1. That Order 2 of the Parenting Orders made 14 April 2015 be discharged.

   2. That subject to Order 4 below, the child X spend time with the father from 9am to 4pm Saturday and 9am to 4pm Sunday each alternate weekend commencing the first weekend of the 4^th school term in 2015.

   3. That changeovers take place at McDonald’s restaurant (omitted).

   4. That Order 2 be stayed until the Independent Children’s Lawyer is of the view that it is in X’s best interests to spend time with the father unsupervised and until which time X will continue spending time with the father supervised at Interrelate (omitted).

3. The Independent Children’s Lawyer does not support the Father’s application, pointing out that there had been an Apprehended Domestic Violence Order in force for 12 months from 13^th August 2014.

Issues

1. The issue concerns the Father’s past behaviour both before the parties separated and after separation. The facts sheet on the Application set out in some detail the behaviour complained of by the Mother, described in the facts sheet as the Victim:

   The Victim states that during the relationship the defendant was at times violent and verbally abusive. There has[1] been two occasions since the separation where the defendant has fronted the Victim’s house uninvited and damaged property when refused entry. The Victim further advised Police that the defendant has been diagnosed with depression as well as passive aggressive disorder which she believes plays a role in how he treats her and the children.

   [1] sic

2. The facts sheet also described in some detail an incident on 2^nd August 2014 where the Father abused the Mother at the (omitted) where the child was playing soccer. Both at half time and after the game he approached the Mother and used abusive language towards her, yelling and shouting. Parents of other children became involved and told him to desist from his behaviour as other children were crying. A male referee told the father to leave, which he did.

3. The Mother was in (omitted) that same night while the parties’ daughters W, Y and Z remained at home. Two of the daughters spoke to the Mother on the telephone saying that the Father had been ringing and leaving disturbing telephone messages. The Police were called and listened to five telephone messages recorded over a period of just over an hour. 

4. A Provisional Apprehended Violence Order was made later that night and the Father was required to attend the Macksville Local Court on 13^th August 2014. The Court made a Final Apprehended Domestic Violence Order against the Father on 13^th August which remained in force for 12 months. The protected persons named in the Order were the Mother, the parties’ daughters W (an adult born on (omitted) 1996 and therefore 18 years of age at the time), Y and Z, and the parties’ son X.

5. As well as the Mandatory Orders, the Court made Additional Orders:

   a)restraining the Father from going within 100 metres of the Mother’s residence;

   b)restraining the Father from approaching or contacting the protected persons except through his legal representative, or as agreed in writing, or as permitted under by an order or directions under the Family Law Act 1975 for the purpose of counselling, conciliation or mediation; and

   c)restraining the father from destroying or deliberately damaging or interfering with the property of the protected persons.

6. It is the Father’s case that he did not consent to the Apprehended Domestic Violence Order on 13^th August 2014. He deposed in his affidavit of 13^th April 2015 that he had no history of psychiatric illness which required him to obtain medical treatment other than depression in 2012. He stated that at the time of his behaviour he was having problems in adjusting to the breakdown of the marriage and not having the care of the children. He also claimed that he did not require “either a psychologist or a psychiatrist”  to provide him with treatment.[2]

   [2] Affidavit of Mr McCarthy 13.4.2015 at paragraph [18]

7. The Father relied on a letter from his general medical practitioner, Dr W, dated 30^th May 2015, stating that:

   He was diagnosed with major depressive disorder non melancholic situational subtype related to relationship breakdown and dysfunctional family dynamic at 2012. He was suicidal and attempted suicide with overdose on Feb 2012 subsequently discharged from mental health unit (omitted) Hospital after two weeks in patient admission. He saw psychiatrist for 12 months from (omitted) Mental Unit, Community Outpatient clinic.

   He has been treating for anxiety and depression for in the past 3 years in the context of ongoing tension with his ex-wife, dealing with custody, long standing communication break down and losing contact with 5 children. However he managed to maintain his job as a (omitted) which he is very proud of.

   He has been comply[3] with management for his mental health issues including taking medication, attending psychotherapy, psychological counselling, skills, strategies training with myself as I am a mental health care provider and also clinical psychologist Dr W. He has been attending mediation and supportive parental classes and anger management course at Interrelate.  

   [3] sic

Applications for Parenting Orders

1. Where a court is dealing with an application for a parenting order it must consider the matters set out in Part VII of the Family Law Act 1975, notably ss. 60B, 60CA, 60CC, 61DA and 65DAA.

2. All of these matters have been considered in this case insofar as they are relevant.

Parental Responsibility

1. No order has been made with respect to parental responsibility up to the present time. Subsection 61DA(1) of the Act contains the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child, but the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence, which is clearly the case here, noting the fact that a family violence Order has only recently expired.

2. Subsection 61DA(3) provides that when a court is making an interim order the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied. It would not be appropriate, in my view, and I will make no order providing for the parents to have equal shared parental responsibility for X. It is a matter best left for the Court making final orders.

Orders in the Best Interests of the Child

1. Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

2. Section 60CC sets out the way a court determines what is in a child’s best interests. Subsection 60CC(2) contains the primary considerations and subsection 60CC(3) contains the additional considerations to which the court must have regard.

3. There is a balancing act for the court to undertake when assessing the primary considerations. On the one hand, the court must consider the benefit to the child of having a meaningful relationship with both of his parents, on the other the court must give weight, and greater weight, to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence.

4. In my view, the evidence does not indicate a need for ongoing supervision of the Father’s time with X. There is evidence that he has taken steps to address his behaviour that led to the Apprehended Domestic Violence Order and he is apparently compliant with treatment from Dr W. The fact that it has apparently not been thought necessary to extend the Apprehended Domestic Violence, which expired in August, is an encouraging sign.

5. That said, I am not persuaded that it would necessarily be in the child’s best interests to go from spending his time with his father under supervision for two hours once a fortnight to seven hours on both the Saturday and the Sunday each alternate weekend. It would be better to take a more cautious approach at this stage.

6. I will order that the requirement for supervision is to cease and the child can spend time with his father for a period of four hours on alternate Saturdays, from 9:00am to 1:00pm.

7. I am not of the view that it is desirable to make Order 4 as submitted by the Father, staying the increase in time with the child and the removal of supervision until the Independent Children’s Lawyer forms the view that it is in the child’s best interests to implement the change. To my mind, that appears to be usurping the function of the Court and, in addition, imposing a heavy responsibility on the Independent Children’s Lawyer.

8. It is the Court that must decide whether the Father’s time with the child should be supervised or not, and what is an appropriate length of time for the Father to spend with the child.

9. The matter will be adjourned to the sittings of the Court in February next year. It will be appropriate, depending on the way matters progress, for these parenting arrangements to be reviewed when the matter is next before the Court.

10. I note that, since these Orders were originally handed down, the parties have agreed to suspend the orders on Saturday 10 October and Saturday 7^th November so as not to interfere with arrangements already made by the Mother and, in substitution, the Father will spend time with the child on Sunday 18^th October and Sunday 15^th November 2015.

11. A Minute of Order to that effect has been submitted and I have ordered accordingly.  

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  6 October 2015