MCDONALD & MCDONALD
[2015] FCCA 1125
•30 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCDONALD & MCDONALD | [2015] FCCA 1125 |
| Catchwords: FAMILY LAW – Children – parenting orders – interim orders – variation of earlier orders – best interests of the children – where father’s time with the children is taking place at a contact centre – whether the father’s time with the children should continue to be supervised – whether father’s time with children should increase prior to final hearing. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DB, 65DAA |
| Cases cited: Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 McDonald & McDonald [2014] FCCA 567 |
| Applicant: | MS MCDONALD |
| Respondent: | MR MCDONALD |
| File Number: | SYC 7594 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 20 April 2015 |
| Date of Last Submission: | 20 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Givney |
| Solicitors for the Applicant: | Broun Abrahams Burreket |
| Solicitor for the Respondent: | Mr Corish |
| Solicitors for the Respondent: | Corish & Co Specialist Family Lawyers |
ORDERS
UNTIL FURTHER ORDER
All earlier parenting Orders are discharged.
The father and the mother are to have equal shared parental responsibility for the children of the marriage X born (omitted) 2012 and Y also born (omitted) 2012.
The children X and Y are to live with the mother.
The children X and Y are to spend time with the father as follows:
(a)For a period of two (2) hours each alternate Saturday at the (omitted) Contact Centre; and
(b)From 10:00 am to 12:00 noon on the Sunday of the off week under the supervision of Phoenix Rising at the father’s residence at the cost of the mother.
In order to facilitate the children’s time with the father as set out in Order (4) (b) above the mother is to deliver the children to the father’s residence at the commencement of the time and collect the children from the father’s residence at the conclusion of the time.
The parties are to attend upon Dr A for the purpose of updating the Court Report of 5 November 2014 on 21 July 2015 and such other times as Dr A may nominate and for this purpose the mother is to pay the proper fee due to Dr A in the first instance.
IT IS NOTED that publication of this judgment under the pseudonym McDonald & McDonald is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7594 of 2013
| MS MCDONALD |
Applicant
And
| MR MCDONALD |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the mother of twin boys aged two years and five months to vary Interim Parenting Orders made on 25 March 2014[1]. Those Orders provided that:
a)the parties were to have equal shared parental responsibility for the children;
b)the children were to live with the mother;
c)the children were to spend time with the father between 9:00 am and 11:00 am each Thursday and Sunday at the home of and in the presence of the children’s paternal aunt.
[1] McDonald & McDonald [2014] FCCA 567
Orders Sought
The mother now seeks further interim orders providing that:
a)the interim orders for the father’s time with the children made on 25 March 2014 should be discharged;
b)the father should have time with the children:
i)for a period of two hours at the (omitted) Contact Centre each alternate Saturday; and
ii)from 10:00 am to 12:00 noon each alternate Sunday [falling in the weekend after the alternate Saturday contact – i.e. the off week) and that the time should be supervised by Phoenix Rising at the cost of the mother; and
c)the parties should attend upon Dr A, the duly-appointed Court Expert, for the purpose of updating his report and that the parties should bear the cost of this updated report in equal shares.
The father, by his Amended Response to an Application in a Case filed on 10 April 2015, seeks the following interim orders:
1. That Orders made 25th March 2014 by his Honour Judge Scarlett be amended by deleting Orders 3 to 6 and substituting the following:
1.1 That the children X born (omitted) 2012 and Y born (omitted) 2012 spend time with the Applicant Father as follows:
1.1.1 each weekend on Saturday for a period of 6 hours, from 10:00 am to 4:00 pm or at such other weekend times or day as are available to the parties for the Interrelate Contact Centre to supervise the handover of the children so that the children spend 6 hours with the father or as close thereto as possible.
1.1.2 each Wednesday for a period of 2 hours, from 4:00 pm to 6:00 pm or at such other midweek times or day as area available to the parties for the Interrelate Contact Centre to supervise the handover of the children, so that the children spend 2 hours with the father or as close thereto as possible.
1.2 That the parties shall forthwith do all acts and things and pay all such charges incurred equally, in order to arrange for the Interrelate Centre to supervise the handovers of the children for the purpose of Order 1.1 and if one party pays the whole of the expenses the other party shall reimburse the first party within 14 days.
1.3 In the event that the children become unduly distressed at the handover or during his periods of care, then the father will do all acts as reasonably necessary to contact the Respondent mother and make suitable arrangements to return the children to her care.
1.4 The parties are to communicate by text message and email about issues relating to the children and the handovers and the parties shall notify each other of their mobile phone numbers and email addresses for this purpose.
1.5 The parties shall exchange a diary at changeovers, such diary to be provided by the Father and the mother shall put in the diary all information of relevance relating to the children’s health and welfare and the father shall give the mother an account of the activities and food and any relevant events during his periods of care of the children.
1.6 Such additional or alternative times and arrangements as the parties may at any time agree in writing, including that the handovers be at the local McDonalds rather than at Interrelate.
2. The parties be restrained from relocating the children outside the (omitted) Sydney metropolitan area without an agreement in writing or court order.
Background
The mother was born on (omitted) 1977. She is now 37 years of age.
The father was born on (omitted) 1978. He is now 36 years of age.
The parties were married on (omitted) 2011. They commenced to reside together from that date.
There are two children of the marriage, twin boys called X and Y. They were born on (omitted) 2012. They are now two years and five months of age.
The parties separated on 3 April 2013. The children remained living with the mother.
The father commenced spending time with the children at the mother’s residence and under her supervision.
On 20 December 2013 the father commenced proceedings in this Court by filing an Application for parenting orders and an affidavit in support. The Application was returnable on 17 March 2014 and an interim hearing took place that day. The parties were directed to attend a Child Dispute Conference with a Family Consultant but this was not able to take place until 15 April 2014.
On 25 March 2014 a decision was handed down in respect of the interim application, resulting in the orders referred to in paragraph [1] above.
The father commenced spending time with the children in accordance with the Orders.
On 28 April 2014 the mother filed an Application in a Case seeking that the father’s time with the children should be supervised.
On 2 May 2014 the mother unilaterally suspended the father’s time with the children.
On 19 May 2014 the parties entered into interim consent orders relating to the appointment of Dr A, a Child, Family and Adult psychiatrist, as Court Expert to prepare a Court Report.
In August 2014 the parties agreed that the father would spend two hours each week with the children on a supervised basis at the Interrelate Contact Centre at (omitted). That time commenced on 14 September 2014.
The Report was issued to the parties by Order of this Court on 25 November 2014.
On 15 December 2014 the Interim Application was listed for hearing on 20 April 2015. The Application was listed for final hearing on 14 October 2015 to go for three days.
Evidence and Submissions
The mother relied on her affidavits of:
a)28 April 2014;
b)5 May 2014; and
c)13 April 2015.
She also relied on the affidavit of her brother, Mr S, of 16 May 2014 and the Court Expert Report of Dr A.
The father relied on his affidavit of 10 April 2015 and the affidavit of his mother, Ms K, of 9 April 2015.
Counsel for the mother, Mr Givney, referred the Court to the report of Dr A, where the Doctor stated that:
a)At the conclusion of the assessment, the children continued to scream in an inconsolable manner in the care of the paternal family;[2]
b)[The mother] asserted that the Father lacked the capacity to appropriately respond [to] the children’s developmental needs and this became frustrated and agitated during interactions with them…Her concerns were supported by the observed interactions between the Father and the children. Repeatedly during the assessment they became inconsolably distressed during interactions with him. The Mother was observed to reassure and support the children’s interactions with the Father…[3]
c)…I did not, however, find that the Mother had “alienated” the children from their Father. The Father’s views in this regard were regarded to be developmentally inappropriate;[4]
d)The children would be likely to be acutely distressed by removal from their Mother’s care.[5]
e)The Mother had prioritised the children’s developmental needs. She was seen to attend appropriately to their emotional and intellectual needs…[6]
f)It appeared likely that the Father underreported the inappropriate and excessive degree of his collecting and hoarding. It was possible that he would fulfil the criteria of a hoarding disorder.[7]
g)The children were observed to exhibit signs of separation anxiety.[8]
[2] Court Expert Report paragraph [88]
[3] Ibid at [96]
[4] Ibid at [98]
[5] Ibid at [100]
[6] Ibid at [102]
[7] Court Expert Report at paragraph [109]
[8] Ibid at [111]
Mr Givney asked the Court to consider the following matters:
a)The views of Dr A that clearly support a submission that the mother is an extremely competent parent of whom he made no criticism;
b)The proceedings will be heard on a final basis in October 2015;
c)The mother will be responsible for all costs of supervision;
d)The young ages of the children (2 years and 5 months);
e)The apparent continuance by the children to suffer separation issues from the mother and rejection of their father’s care prior to contact happening;
f)The children’s emotional welfare appears to be at risk in the event that the father has unsupervised time with them; and
g)There is a strong likelihood that the mother’s capacity as a parent will be affected should the Court grant Orders for unsupervised time at this stage of the children’s development.
The father’s solicitor, Mr Corish, submitted that the issues for determination were:
a)Should the father’s time with the children continue to be supervised at Interrelate (omitted);
b)Whether the father’s time with the children should be increased on each Saturday or Sunday from 2 hours to 6 hours;
c)Whether the father also spend time with the children on each Wednesday evening for two hours on an unsupervised basis; and
d)Whether the handover take place and be supervised by Interrelate.
Mr Corish submitted that it is an appropriate time in respect of interim parenting arrangements to move away from the Interrelate Contact Centre and allow the children to spend time with the father and his extended family on an unsupervised basis in their family environment.
Whilst he acknowledged that the problem of the children exhibiting separation anxiety when separating from their mother was observed to be significant up to October 2014, when the assessment for the Court Expert Report took place, in the six month period since the father began supervised time for two hours each Saturday in September 2014, this problem of separation anxiety has greatly reduced, as the reports from the Contact Centre show.
It is further submitted that there is no real issue of there being an unacceptable risk of harm to the children in the unsupervised care of their father. Whilst bruising to a child is always a concern, noting that the mother had observed a bruise on the child Y 24 hours after the children had been in the care of their father on 1 May 2014, there was no evidence to link the bruising with any insidious or neglectful conduct by the father or that he was involved or at fault. Dr A did not consider that there was an unacceptable risk of the children spending unsupervised time with the father.
The only other allegation made by the mother against the father was that he had a hoarding disorder. This is denied by the father and there was no real evidence that would concern the Court. There were photographs tendered that showed that the father’s new residence appeared to be clean and tidy.
Mr Corish submitted that the two independent reports before the Court should be of most significance.
First, the records of the Interrelate Contact Centre showed the father’s consistency and effort and the improving relationship with the children, as well as the improving demeanour of the children at handovers.
Second, the Report by Dr A contains recommendations that the father seeks to adopt, namely:
a)the maintenance of joint parental responsibility;
b)the maintenance of the children’s primary residence with their mother;
c)the continuation of the current supervised contact visits at the contact centre for a period of six months (backdated to September 2014 and therefore the six month period expiring in mid-March 2015);
d)thereafter the recommended contact return to the family environment;
e)that the mother should provide details of the children’s likes and dislikes; and
f)overnight time should not commence until the children are aged three years after November 2015 but no order is sought about this.
Mr Corish noted that the mother sought that the parties should have further interviews with Dr A for the purpose of updating the Court Expert Report but submitted that the father was not in a position to pay half of the required fee at this stage. The father is currently not in employment.
Applications for Parenting Orders
This is an interim hearing and the Court must follow the necessarily limited procedure referred to in Goode & Goode[9].
[9] [20016] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
The Court must have regard to the matters contained in Part VII of the Family Law Act 1975 (Cth), particularly:
a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;
b)Section 60CA, which requires the Court to regard the best interests of the child (or children, in this case) as the paramount consideration;
c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;
d)Section 61DA, which deals with the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child; and
e)Section 65DAA, which requires the Court to consider equal time or substantial and significant time with each parent where an order has been made that the parents should have equal shared parental responsibility for the children.
All of those matters have been considered insofar as they are relevant.
Equal Shared Parental Responsibility
The previous Interim Orders provided that the parties should have equal shared parental responsibility for the children and Dr A recommends that this should continue. This appears to be appropriate and in the children’s best interests at this stage, although parental responsibility will be considered afresh at the final hearing (see s.61DB).
Section 65DAA of the Family Law Act
This is not a case where it is in the children’s best interests for the parties to have equal time with the children, as Dr A states in his report. He recommends that overnight time with the father should not be considered prior to the children attaining the age of three years. Neither party is seeking an order for equal time or substantial and significant time with each parent.
Orders that are in the children’s best interests
Dr A recommends the maintenance of the children’s primary residence with the mother. The father does not seek to challenge this arrangement.
What is in contention is the amount of time the children spend with their father and the circumstances in which that time is spent. Obviously, the Court must take into account the balance between the primary considerations set out in s.60CC(2) of the Act, namely the benefit to the children of having a meaningful relationship with each of their parents on the one hand and the need to protect the children from physical or psychological from being subjected to or exposed to abuse, neglect or family violence.
In this regard the Court is obliged to act conservatively and give greater weight to the matters in s.60CC(2)(b). There is no suggestion that the father is likely to abuse the children or subject them to violence or expose them to violence. The concern is that the father’s relationship with these young children is still somewhat tenuous and their primary relationship is with their mother.
The concern about separation anxiety on the part of the children is a real one and the increase in the father’s time with the children should proceed gradually. The father’s proposal contains too great an increase at this time.
The mother’s proposal sensibly contains an arrangement which would allow the children to become familiar with their father’s new home, which up to now they have not seen, and would give them a change from the contact centre every other weekend. In addition, time with the father on a Sunday should allow the children to be with him for a time on Fathers’ Day, which falls on the first Sunday in September, and will occur before the final hearing in October. The parties are encouraged, without the need for a formal order to be made, to make sure that this happens.
Accordingly, I propose to make the Orders sought by the mother.
The Court Expert Report
It is clearly of benefit to order that the parties attend upon Dr A for interviews so that an updated report may be prepared prior to the final hearing. The mother seeks that the parties share the cost of preparing an updated report in equal shares. However, the father is currently not in employment and Mr Corish told the Court that he is currently unable to afford to pay half the cost of the updated report. Accordingly, as I am of the view that an updated report is highly desirable, I will order that the mother should pay the cost of the report in the first instance and the matter can be reconsidered at the final hearing in October.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 4 May 2015
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