MCDONALD & MCDONALD

[2014] FCCA 567

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCDONALD & MCDONALD [2014] FCCA 567

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – two children aged 16 months – where the father has not spent time with the children since December 2013 – best interests of the children – parental responsibility – where parties have not yet attended a Child Dispute Conference.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant: MR MCDONALD

Respondent: MS MCDONALD

File Number: SYC 7594 of 2013

Judgment of: Judge Scarlett

Hearing date: 17 March 2014

Date of Last Submission: 17 March 2014

Delivered at: Sydney

Delivered on: 25 March 2014

REPRESENTATION

Counsel for the Applicant: Ms Eldershaw

Solicitors for the Applicant: KDB Holmes Solicitors

Solicitors for the Respondent: Craddock Murray Neumann Lawyers

ORDERS

UNTIL FURTHER ORDER

1. The Applicant and the Respondent are to have equal shared parental responsibility for the children of the marriage X born (omitted) 2012 and Y also born (omitted) 2012.

2. The children X and Y are to live with the Respondent mother.

3. The children are to spend time with the Applicant father between the hours of 9:00 am and 11:00 pm on Thursday and Sunday each week at the home of the children’s paternal aunt Ms N at (omitted).

4. The children’s time with the father is to be spent in the presence of the said Ms N.

5. For the purpose of changeover, the father and the paternal aunt are to collect the children from the mother’s residence at (omitted) at the commencement of the time and the mother is to collect the children from the residence of the paternal aunt at the conclusion of the time.

6. The father is restrained by injunction from entering the mother’s residence except on the invitation of the mother.

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

MR MCDONALD

Applicant

And

MS MCDONALD

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the father to spend time with the parties’ two infant children, twin sons born on (omitted) 2012.

2. The parties separated nearly a year ago, on 3 April 2013. The mother and the children live with the mother’s parents and her three brothers whilst the father remains living at the former matrimonial home. It is common ground that the father has not spent time with either of the children since the end of December 2013.

3. The evidence is that the relationship between the parties is less than positive. There are allegations by the father that the mother has suffered from post natal depression, which she denies. The mother makes allegations about the father’s mental state, and she claims that he has displayed angry and aggressive behaviour towards her. She states that she realises the importance of the father having a relationship with the children but she expresses doubts about his ability to look after them.

4. It is the mother’s evidence that the father displays obsessive behaviour and has a tendency to hoard items. She deposed in her affidavit of 12 March 2014 that the father had a collection of more than 100 lawnmowers, which he kept in the backyard of the family home. Annexed to her affidavit are photographs showing the lawnmowers in the backyard, lined up in ranks four-deep. The photographs do not show 100 or more lawnmowers, but it is possible to count about 30 of them.

5. It was put to the Court on behalf of the father that he has disposed of a number of the lawnmowers since the photographs were taken.

6. There is evidence of a poor relationship between the parties and the members of each other’s extended families. The mother seeks an order restraining the paternal grandparents from spending time with the children.

7. The father gives evidence of an altercation between himself and the mother’s brothers at the mother’s home, which led to the father commencing apprehended violence proceedings against each of the brothers. The summonses were withdrawn on undertakings.

Orders sought

1. The father seeks interim orders that:

   a)The parties should have equal shared parental responsibility for the children;

   b)The children should live with their mother;

   c)the children should spend time with him on two occasions a week, for a period of two hours, at the home of his sister, Ms N; and

   d)the parties should attend a parenting after separation course.

2. The mother seeks orders that:

   a)The children should live with her;

   b)The children should spend time with the father on two occasions each week, one of which would be at a Contact Centre and the other at a shopping centre or a park under the supervision of the paternal aunt and one of the mother’s brothers;

   c)That the father should be restrained by injunction from allowing the children to spend any time with his parents; and

   d)The parties should attend a parenting after separation course.

3. The Application was returnable on 17 March 2014, at which time the parties were directed to attend a Child Dispute Conference with a Family Consultant under the provisions of s.11F of the Family Law Act 1975 (Cth). The Conference is to be reportable.

4. The parties are to attend a conference at 2:00 pm on 15 April. Notwithstanding the fact that the Court would be greatly assisted by the Memorandum to the Court that will become available after the conference, Counsel for the Applicant insisted that the Court should make some interim parenting orders on the first return date.

5. I have heard submissions from both parties’ lawyers and I have considered the orders that they each propose. 

Applications for Parenting Orders

1. The objects of Part VII of the Family Law Act 1975 are set out in s.60B(1) of the Act and the principles underlying those objects are set out in s.60B(2).

2. Section 60CA requires the Court to regard the best interests of the children as the paramount consideration, and s.60CC gives guidance as to how the Court determines what the children’s best interests may be.

3. Section 61DA requires the Court to apply the presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them, although this presumption does not apply in cases of abuse or family violence and may be rebutted by evidence that satisfies the Court that it would not be in the children’s best interests to apply the presumption.

4. When the Court is making interim orders, as is the case here, s.61DA(3) provides that the presumption will apply unless the Court considers that it would not be appropriate in the circumstances.

5. If the Court does make an order for children’s parents to have equal shared parental responsibility for them, s.65DAA requires the Court to consider whether it would be both in the children’s best interests and reasonably practicable for the children to spend equal time with each parent. If the Court does not form that view, it must then consider whether it would be in the children’s best interests and reasonably practicable for the children to spend substantial and significant time with each parent.

6. All of these matters have been considered, insofar as they are relevant.

Conclusions

1. The Court would be assisted by a Memorandum from the Family Consultant once the parties have attended the Child Dispute Conference. In my experience, Family Consultants in this Court are usually able to offer useful insights into the issues and make helpful suggestions about the future progress of the matter.

2. I have warned the parties that any parenting orders to be made at this stage are likely to be conservative in nature, due to the lack of information from the Family Consultant. In an interim hearing, where facts are disputed, the Court is unable to make conclusive findings of fact due to the truncated nature of the proceedings and the inability to test the parties’ evidence by way of cross-examination (see Goode & Goode[1] at [68]).

   [1] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

3. It is a matter of concern that, on the evidence of both parties, the father has not spent any time with either of these children for nearly three months. It is a matter of general knowledge that children under the age of four years need to develop an attachment to their parents, and it is concerning that the children are not being given an opportunity to develop an attachment to their father. It is not the mother’s case that the children should never have any relationship with their father.

4. The children are in the primary care of their mother, and it is uncontroversial that they should continue to be. However, if they have not seen their father for nearly three months, at the age of 16 months that would have very little recollection of him. What is needed is a program where the children spend short but relatively frequent times with him.

5. Each party proposes two periods, each of two hours, each week. However, they differ greatly on the way that this should be implemented.

6. The father proposes that his sister, Ms N, who is on affidavit, would assist him in caring for the children and suggests that the children’s time with him should take place at Ms N’s home. She deposed in her affidavit of 16 March 2014 that she is the mother of two children aged six and three. The mother does not appear to object to her, as she proposes that Ms N should be one of two supervisors of the children on one occasion each week.

7. The mother proposes that the children should spend time with their father at a contact centre once a week and that on the other occasion each week they should spend time with Ms N and one of her brothers (unspecified) at a park or a shopping centre on the other occasion.

8. The mother’s proposal does not recommend itself for several reasons.

9. First, it is unclear why there is a need for the children to attend a contact centre. If the father poses such a threat to the children’s wellbeing that there is a need for supervision, it would appear to be more logical that all of the time should be at a contact centre. This does not appear to be necessary on the evidence currently before the Court.

10. The choice of one of the mother’s brothers as a supervisor appears to be problematic. It is not clear whether the mother proposes the one brother each time, or whether the joint supervisor can be any one of the brothers. As there is evidence of a poor relationship between the father and each of the brothers, leading to an application for an Apprehended Violence Order, there is a likelihood of further conflict between them, which would not be in the children’s best interests if an altercation were to break out in their presence.

11. The mother’s proposal offers two different scenarios each week, with changing venues and supervisors. This would not appear to be conducive to allowing these two very young children to get into a routine which would allow them to develop a comfortable and safe relationship with their father.

12. The application for an injunction restraining the paternal grandparents from coming into contact with the children is draconian, to say the least, and I am not prepared to make such an order without hard evidence.

13. If it is a fact that the father lacks the skills to care for young babies, then he will need to learn, just as other fathers do.

14. I am of the view that at this stage, the father’s proposal that he spends time with the children twice a week in the home of his sister and in her presence is the proposal that is more likely to meet the best interests of the children for the time being. The orders that I propose to make are intended to meet the primary considerations in s.60CC(2) of the Act, which are:

    a)an endeavour to assist the children to develop a meaningful relationship with their father; and

    b)to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence.   

15. The proposed arrangements may be reviewed once the parties have attended the Child Dispute Conference in April and have had a chance to consider any recommendations that the Family Consultant might make. This is not to be taken as an indication that further interim hearings will take place every time the matter is mentioned before the Court.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  25 March 2014