McClelland and Rhodes - [2019] FCCA 357

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCCLELLAND & RHODES

[2019] FCCA 357

Catchwords:
FAMILY LAW – PARENTING – Child aged 5 – where the parties were in a same sex relationship which ended prior to the child’s conception – where the parties remained living under one roof after their relationship ended and were both involved in efforts by the mother to achieve pregnancy by artificial insemination – where the parties agreed that they would both parent the child conceived by the mother – where after about eighteen months the mother sought to renege on this agreement and became resistant to the applicant spending time with the child – where the applicant has applied for an order that she be able to spend defined time with the child – where the applicant has standing to bring the application pursuant to s.65C (c) of the Family Law Act – where after proceedings were commenced the mother revealed that the child had not been conceived by artificial insemination but had been conceived as a result of a sexual relationship with a local man – where the local man has been confirmed by DNA testing to be the father of the child but has never wished to be a party to the proceedings and spends limited time with the child – where the child is developmentally delayed but has a fond relationship with the applicant – where the matter is finely balanced but where in the particular circumstances of this case including the mother’s hostility to the time occurring, the risk of conflict at changeovers, the mother’s mental health and the distance the parties live apart it is not considered to be in the child’s best interests for orders to be made for the applicant to spend time with the child.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 65C

Cases cited:

Aldridge & Keaton [2009] FamCAFC 229

Church & Overton & Anor [2008] FamCA 953
Hearn & Sempers [2017] FCCA 3557

Mankiewicz & Anor & Swallow & Anor [2016] FamCAFC 153
McCreadie & Oram & Anor [2018] FCCA 2318

Applicant:

MS MCCLELLAND

Respondent:

MS RHODES

File Number:

NCC 616 of 2016

Judgment of:

Judge Terry

Hearing dates:

3 & 5 April 2018

Date of Last Submission:

5 April 2018

Delivered at:

Newcastle

Delivered on:

27 February 2019

REPRESENTATION

Counsel for the Applicant:

Mr Greenaway

Solicitors for the Applicant:

Burke & Mead Lawyers

Counsel for the Respondent:

Mr Betts

Solicitors for the Respondent:

The Family Law Firm

Counsel for the Independent Children’s Lawyer:

Ms Bridgett

Solicitors for the Independent Children’s Lawyer:

Denise Clark Solicitor & Advocate

ORDERS

The child [X] born … 2014 shall spend time with the applicant on the next two occasions the child is due to spend time with him pursuant to the interim orders made on 9 June 2017.
Thereafter all outstanding orders concerning the child are discharged.
All outstanding applications are otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym McClelland & Rhodes is approved pursuant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McClelland and Rhodes

Details

AGLC: McClelland and Rhodes [2019] FCCA 357
Case: [2019] FCCA 357
Decision Date: 27 February 2019

CaseChat Overview and Summary

This matter concerned applications relating to the parenting arrangements for a child, [X], born in 2014. The applications were heard by Judge Terry.

The court was required to determine the best interests of the child, [X], in light of the competing interests of the parties. Specifically, the court had to consider the benefit to the child of having a meaningful relationship with both parents, the need to protect the child from abuse, neglect, or family violence, the child's views (if any), and the nature of the child's relationship with each parent and other significant persons.

Judge Terry found that the primary consideration of fostering a meaningful relationship with both parents did not strongly assist in determining the orders, as the applicant was a reluctant parent and the proposed orders would not impede his developing a relationship if he chose. The court noted a risk of incidents at changeovers between the parents due to their deteriorated relationship, which would necessitate third-party involvement. The court also considered the child's strong attachment to his mother, who had always been his primary carer, and observed warm and loving interactions between them. While the child's bond with his father was unclear, the court noted a positive and attuned relationship between the child and the applicant, Ms McClelland, as observed in previous child inclusive conferences.

The court ordered that the child, [X], would spend time with the applicant on the next two occasions scheduled under interim orders. Thereafter, all outstanding orders concerning the child were discharged, and all other outstanding applications were dismissed.

Orders

Orders of the court

The child [X] born … 2014 shall spend time with the applicant on the next two occasions the child is due to spend time with him pursuant to the interim orders made on 9 June 2017.

Thereafter all outstanding orders concerning the child are discharged.

All outstanding applications are otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The primary considerations are the benefit to the child of having a meaningful relationship with both of his parents and the need to protect the child from being subjected to or exposed to abuse, neglect or family violence. The first primary consideration does not assist me. The orders sought by the applicant will not impact on the child having a meaningful relationship with his mother. The father is at best a reluctant parent and the orders will not interfere with him developing a relationship with the child if he chooses to do so. I must consider the need to protect the child from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence. It was not suggested that the child would be subjected to or exposed to abuse, neglect or family violence in the separate care of either the applicant or the mother. The relationship between them has deteriorated to the point where there is a risk of an incident at changeover. This could be managed if a third party became involved in the handovers but it is a concern and is something I will need to take into account. The mother raised some care issues in connection with the applicant but these are best dealt with when considering parenting capacity. I must consider any views expressed by the child and the weight to be given to those views. Neither party suggested that [X] had a view about future parenting arrangements. I must consider the nature of the child’s relationship with each of his parents and other persons (including a grandparent or other relative of the child). The mother has always been [X]’s primary carer and she is his primary attachment figure. The applicant did not dispute this and the family report writer said as follows:It is noted that the mother and child’s interaction appeared warm and loving, they were clearly comfortable with each other and the mother was appropriately child focused. [4][4] Family Report paragraph 112 The family report writer also said as follows: When the child saw the mother he dropped the family consultants hand and ran the distance to the mother. The mother bent down to his level and scooped him up as he threw himself into her arms. The mother and child were both laughing.[5] [5] Family Report paragraph 110 It is unclear whether and if so to what extent [X] has a bond with his father. Mr A has never visited [X] in Sydney and the last time he saw him was in a paddock near his home for three hours. The mother said that she encouraged [X] to call the Mr A “Dad” when he saw him but his understanding of that concept given his developmental delay is unknown to me as is whether he actually does call Mr A “Dad”. The child sees his maternal grandparents regularly. He was warmly responsive to and engaged with them at the family report interviews and I am satisfied that he has a good relationship with them. [X] also has a bond with the applicant. The family consultant who conducted a child inclusive child dispute conference in 2016 said as follows:Ms McClelland entered the room and crouched down to [X]’s level. He immediately approached her and put his arms out to her for a hug. He seemed very happy to see her and then grabbed her hand and dragged her towards the puppet theatre. Thereafter they engaged in play which was a delight to observe. Ms McClelland appeared to have a good knowledge of what [X] liked and how to engage with him. [X] giggled and laughed continuously with real joy when Ms McClelland was playing with him. She followed his lead and scaffolded his activities. He was proximity seeking with her, staying within arm’s reach and engaging in lots of affection and incidental touching with her. Ms McClelland didn’t appear to be overwhelming towards him as alleged by the mother. [X] responded to Ms McClelland’s cues (e.g. to pack up) and gave him positive reinforcement. Overall Ms McClelland appeared to be very attuned to [X] and he was very responsive to her. A mutually loving and attuned relationship was observed. It appeared to be very genuine and not superficial in any manner.[6][6] Child Inclusive Conference memorandum dated 7 September 2016.