McLeod and Lang

[2014] FCCA 2737

FEDERAL CIRCUIT COURT OF AUSTRALIA

McLEOD & LANG [2014] FCCA 2737

Catchwords:
FAMILY LAW – Children – parenting orders – parental responsibility – sole parental responsibility – equal shared parental responsibility – best interests of the child – one child aged 3 years and 8 months – where mother failed to attend court on hearing – recovery order.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 67Q

Cases cited:
McLeod & Lang [2013] FCCA 1218

Applicant: MR MCLEOD

Respondent: MS LANG

File Number: SYC 2834 of 2012

Judgment of: Judge Scarlett

Hearing dates: 20 - 21 November 2014

Date of Last Submission: 21 November 2014

Delivered at: Sydney

Delivered on: 21 November 2014

REPRESENTATION

Counsel for the Applicant: Ms Sloane

Solicitors for the Applicant: Marsdens Law Group

Respondent: No appearance

Counsel for the Independent Children’s Lawyer: Mr Fermanis

Solicitors for the Independent Children’s Lawyer: Gonzalez & Co

ORDERS

1. All previous parenting orders are discharged.

2. The Respondent Mother shall have sole parental responsibility for decisions about the long-term care, welfare and development of the child, X born on (omitted) 2011 until the child turns 6 years of age or until the child commences attending school (whichever is the earlier) and then the parties shall have equal shared parental responsibility for X thereafter.

3. The Respondent Mother is to keep the Applicant Father informed about the welfare and education of the child.

4. The Respondent Mother is to provide the Applicant Father with details of the child’s pre-school or school and the child’s health care professionals and provide an authority to the child’s pre-school or school and the child’s health care professionals to discuss the child with the Applicant Father.

5. The Mother shall have the sole responsibility for making decisions about the day to day care welfare and development of the child whilst the child resides with her.

6. The Father shall have the sole responsibility for making decisions about the day to day care welfare and development of the child whilst the child resides with him.

7. The child shall live with the mother, except for the times set out below when she shall live with the father.

8. The child shall live with the father as follows, with Orders 8.3 to 8.14 being conditional upon the father’s compliance with Orders 23 to 25 herein:

   8.1Each Saturday from 9:00am to 11:00am at the residence of the child’s paternal grandfather; and

   8.2Each Sunday from 9:00am to 11:00 am at the residence of the child’s paternal grandfather, with such times to be supervised by the paternal grandfather.

   8.3From the making of these orders for a period of three (3) months:

   1.3.1Each Sunday from 10:00 am to 2:00 pm; and

   1.3.2Each Tuesday from the conclusion of pre-school to 7:30pm, or from 3:00 pm to 7:30pm if the child is not in pre-school on that day.

   8.4Following the conclusion of time in Order 8.3 for a period of three (3) months:

   1.4.1Each Sunday from 10:00 am to 6:00 pm

   1.4.2Each Tuesday from the conclusion of pre-school to 7:30pm, or from 3:00 pm to 7:30 pm if the child is not in pre-school on that day.

   8.5Following the conclusion of time in Order 8.4 for a period of three (3) months:

   1.5.1Each alternate weekend from 6pm Saturday to 6pm Sunday

   1.5.2Each alternate Tuesday from the conclusion of pre-school to 7:30pm, or from 3pm to 7:30pm if the child is not in pre-school on that day.

   8.6Following the conclusion of time in Order 8.5, until the child commences school:

   1.6.1Each alternate weekend from 6:00 pm Friday to 6:00 pm Sunday; and

   1.6.2Each alternate Tuesday from the conclusion of pre-school to 7:30pm, or from 3pm to 7:30pm if the child is not in pre-school on that day.

   8.7Once the child commences school:

   1.7.1Each alternate weekend from the conclusion of school on Friday to commencement of school the following Monday; and

   1.7.2Each alternate Tuesday from the conclusion of school to 7:30pm.

   8.8For half of all school holiday periods (as dictated by the school which the child attends) by agreement between the parties and failing agreement for the first half in all even numbered years and the second half in all odd numbered years and for the purposes of this order:

   1.8.1.1the holiday period shall commence at 9:00am on the day immediately following the last day of the school term;

   1.8.1.2the holiday period shall conclude at 5:00pm on the day immediately before the first day of the next school term; and

   1.8.1.3if there is an odd number of days in the school holiday period changeover shall occur at 12:00pm on the day that is the midpoint between the first and last days of that school holiday period and if there are an even number of days in the school holiday period then changeover shall occur at 9:00am on the first day of the second half of that school holiday period.

   8.9At Christmas time by agreement but failing agreement from 5:00pm on 24 December until 5:00pm on 25 December in each odd numbered year and from 5.00pm on 25 December until 5.00pm on 26 December in each even numbered year, provided that all other time is suspended between 5:00pm on 24 December and 5:00pm on 26 December each year;

9. Each Easter by agreement but failing agreement, in odd years to be from 2:00pm on Easter Sunday to 4:00pm on Easter Monday, and in even years to be from 9:00am Easter Saturday to 2:00pm Easter Sunday, provided that all other time is suspended from 9:00am Easter Saturday to 4:00pm Easter Monday.

   8.10On Father’s Day from 10:00 am to 7:00 pm.

10. On the Applicant Father’s birthday from 10:00 am to 7:00 pm if the Applicant Father’s birthday falls on a weekend day and from 3:00 pm to 8:00 pm if the Applicant Father’s birthday falls on a weekday.

    8.11On the child’s birthday from 3:00 pm to 8:00 pm.

    8.12At such other times as agreed between the parties.

11. In the event that the Respondent Mother fails to comply with Order 8 by failing to make the child available to spend time with the Applicant Father on the first occasion following the making of these Orders after 24^th November 2014, that:

    9.1any person from time to time holding or acting in the capacity of a Police Officer of the Commonwealth or of a State or Territory; or

    9.2any person holding or acting in the office of a Child Recovery Officer;

    is authorised and directed, with such assistance as he or she requires or they require and, if necessary, by force:

    9.3to stop and search for any vehicle, vessel or aircraft, and search any premises or place for the purposes of finding the child.

    9.4to enter and search the premises or place situate at  .

    9.5to recover the child.

    9.6to deliver the child to the Applicant Father.

    9.7to arrest, without warrant, the Respondent Mother in the event that the Respondent Mother again removes or takes possession of the child unless in accordance with these Orders.

12. For the purpose of Order 8 the father or his nominee shall collect the child from the mother's residence at the commencement of each period that the child is to spend time with the father, and the mother or her nominee shall collect the child from the father's residence at the conclusion of each period. However, where the father’s time commences or concludes at pre-school or school, the father or his nominee shall collect the child from the pre-school or school or deliver the child to the pre-school or school.

13. Notwithstanding Order 7, if the child is not already in the Respondent Mother’s care, the Respondent Mother is to spend time with the child on special occasions as follows:

    11.1On Mother’s Day from 10am to 7pm.

14. On the Respondent Mother’s birthday from 10am to 6pm if the Respondent Mother’s birthday falls on a weekend day and from 3pm to 8pm if the Respondent Mother’s birthday falls on a weekday.

15. That both parties will be restrained from denigrating each other (or each other's extended family) in the presence or hearing of the child and both parties will do all things necessary to ensure that no other person makes critical comments about the other party (or the other party's family) in the presence or hearing of the child.

16. The Respondent Mother must encourage and foster the child's relationship with the Applicant Father.

17. The Applicant Father and Respondent Mother are hereby restrained from consuming prohibited drugs.

18. The Applicant Father and Respondent Mother are hereby restrained from consuming alcohol to excess in the presence of the child or for 12 hours before and during any period the child is in his or her care.

19. The parties must keep each other informed of their residential addresses and home and mobile contact phone numbers and notify the other party of any change of those details within 24 hours of such a change occurring.

20. The parties must notify each other in the event of any illness or injury occurring to the child whilst in their care and provide full particulars of any medical practitioner, health service provider or institution attended by the child and provide any authority and direction necessary to enable the other party to obtain all necessary information concerning the child from those organisations.

21. Both parties are permitted to liaise directly with the child’s school and sporting bodies to obtain any necessary information about his progress and that both parties do all things necessary to facilitate this order.

22. Both parties are permitted to attend any sporting, school or social events that the child is participating in regardless of which parent’s care he is in at that time.

23. That both parties must do all things necessary to authorise the Principal of any school attended by the child to provide the other party with copies of his school reports, newsletters, notices as they fall due and inform both parties of any school activities to which parents are invited.

24. To the extent that the Father has not done so already, the Father is to enrol in a post-separation parenting course within 14 days of these orders.

25. The Father is to complete the post separation parenting course referred to in Order 21.

26. The Father shall submit to a chain of custody urinalysis within 24 hours of a written request by the Independent Children’s Lawyer to do so, such urinalysis to be:

    23.1Under supervision;

    23.2In accordance with Australian and New Zealand Standard 4308:2008;

    23.3At the expense of the Father.

27. The ICL shall request no more than three tests in accordance with Order 23 over a period of three months from the date of these orders. The Father shall provide copies of the results to the Independent Children’s Lawyer within 24 hours of receipt.

28. Upon the Father providing three consecutive clear drug results in accordance with Order 23, the Father’s time in accordance with Orders 8.3 to 8.14 shall commence and such time shall be unsupervised.

29. The Independent Children’s Lawyer shall be discharged six (6) months after the making of these orders.

30. The Father, within 28 days of these orders, shall enrol for the purposes of undertaking an assessment for drug and alcohol programmes, and shall follow any reasonable directions of that service.

31. Within seven (7) days the Applicant Father must serve a copy of the Orders on the Respondent Mother by ordinary prepaid post to Mother’s residential address and via Facebook to the Facebook address of the Mother’s partner, Mr A.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 2834 of 2012

MR MCLEOD

Applicant

And

MS LANG

Respondent

REASONS FOR JUDGMENT

1. I do not have any difficulty with making the other orders that are proposed by Counsel for the Independent Children’s Lawyer and Counsel for the Applicant father, as they appear to me to address the situation as we now know it. 

2. What the Court has is an application for parenting orders by the father of a little girl called X, who was born on (omitted) 2011.  X is three years and eight months old.  She lives with her mother and should be spending time with her father, but the evidence before the Court is that the mother has not permitted the child to spend any time with the father since about February or March of this year, notwithstanding the interim orders made by this Court on 29 August 2013.

3. The mother chose not to attend Court for the hearing, although, curiously, she attended the Court precincts yesterday and apparently sought advice from the duty lawyer.  However, at no time did she set foot inside the courtroom and the hearing commenced at 2.15 pm yesterday afternoon.

Background

1. The father was born on (omitted) 1986. The mother was born on (omitted) 1989.

2. The parties commenced their relationship in (omitted) 2010. Early in 2011 the mother moved in with the father at his parents’ home in (omitted).

3. The parties’ daughter X was born on (omitted) 2011.

4. In mid 2011 the parties moved into the home of the maternal grandmother.

5. On 12 December 2011 the father was seriously injured in a motor cycle accident, suffering injuries to the brain and his right shoulder.

6. The parties were married on (omitted) 2012.

7. They separated on 1 April 2012.

8. The father had no contact with the child from the date of separation until August of that year.

9. The father consented to an Apprehended Domestic Violence Order to be in force for a period of 12 months.

10. The father commenced proceedings in this Court by filing an Application for parenting orders on 17 May 2012. The Application was returnable on 16 July 2012.

11. On 16 July 2012, when both parties were legally represented, they entered into interim consent orders providing that:

    a)the child would live with the mother;

    b)the child would spend time with the father, initially for two hours a fortnight at a contact centre; and then

    c)for three hours each Tuesday under supervision and for two hours each Sunday, again under supervision;

    d)the father would submit to drug screen analysis each Monday morning.

12. The Court ordered that an Independent Children’s Lawyer should represent the child’s interests.

13. On 3 September 2012 the requirement for the father to undergo drug screen analysis was varied from weekly to monthly.

14. The parties entered into further interim consent orders on 17 June 2013 increasing the frequency with which the father would spend time with the child.

15. On 9 August 2013 the Court heard an interim Application by the father. A decision was handed down on 29 August 2013 (McLeod & Lang[1]). The Court ordered that:

    a)The child was to live with the mother;

    b)The mother was to have sole parental responsibility, subject to the requirement that she informs the father about matters concerning the child’s care, welfare and development and consulted the father about medical treatment for the child;

    c)The child was to spend time with the father:

    i)For two hours each alternate Saturday at (omitted) Contact Centre;

    ii)For two hours each other Saturday at the residence of the child’s paternal great grandmother; and

    iii)For two hours each Sunday at the home of the paternal great grandmother or such other place as the parties may agree.

    [1] [2013] FCCA 1218

16. An order was made for the preparation of a Report by a Court Expert, Dr B, a Consultant Clinical Psychologist. Dr B's Report was released to the parties on 3 December 2013.

17. On 4 March 2014 the Application was listed for final hearing.

Applications for parenting orders 

1. When a Court is considering making a parenting order, it must have regard to various sections contained in Part VII of the Family Law Act1975 (Cth).

2. In particular, section 60B sets out the objects of Part VII and the principles underlying those objects. Section 60CA of the Act requires the Court to regard the best interests of the child as the paramount consideration. Section 60CC sets out in subsections (2) and (3) the primary and the additional considerations, which are designed to assist the Court in determining what is in a child’s best interests.

3. Section 61DA deals with the law relating to equal shared parental responsibility. Section 65DAA of the Act comes into force where the Court has made an order for a child’s parents to have equal shared parental responsibility and requires the Court to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent or, failing that, substantial and significant time.

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

Evidence and Submissions

1. The father relied on his trial affidavit of 31 October 2014 and the affidavit of his father, Mr E, affirmed the day before.  They each gave oral evidence.  It emerged from the father’s evidence that he has been in a relationship with a young lady named Ms A for approximately four months and is planning to commence living with her very soon.

2. She lives in a two-bedroom unit and there will be a spare room, which he intends to set up for the child to use when she stays with him.  Unfortunately, Ms A was not on affidavit, although she attended Court.  It would have been helpful if there had been affidavit evidence from her, as she clearly plays an important role in the father’s life.  The father deposed in his affidavit that he is not currently using illicit drugs.

3. However, there have been previous episodes of drug use, which led to Mr Fermanis of Counsel, who appeared for the Independent Children’s Lawyer, asking the father what, if any, guarantees he could offer that he would not relapse in the future.  The father conceded that he could not give any guarantees.  He said he now drinks rarely.  It is the father’s evidence that he has not been able to spend time with his daughter since early this year.  It is perhaps surprising that the father has not commenced contravention proceedings before now.

4. The mother has not filed any affidavit since she filed those of her mother and herself on 28 March 2013. 

5. The Independent Children’s Lawyer, in his case outline, submitted there are three issues the Court needs to resolve: 

   a)what orders should be made in respect of X spending time with her father; 

   b)should the time that the child spends with the father be supervised for any period of time; and 

   c)if the Court were to order that the mother is to have sole parental responsibility for the child whether the order should be conditional upon the mother doing certain things.

6. Deciding these questions has not necessarily been made any easier by the mother’s inexplicable failure to attend Court.  There is no doubt that she was aware that the matter was listed for hearing.  She in fact attended the Court building, but left without coming into Court, which had the effect of delaying the start of the proceedings for several hours.  It did not otherwise assist her case.

7. I have had the benefit of reading the orders proposed by the Independent Children’s Lawyer with suggestions and valuable input from Counsel for the father.  It seems to me that the orders proposed are in line with the expert report prepared by Dr B.  The orders propose an ongoing arrangement so that the father can spend regular and productive time with his daughter.

8. It is one of the primary considerations, which the Court should look at, the benefit of the child of having a meaningful relationship with both of her parents.  It is due to the mother’s actions in recent months that the father has not been able to spend time with his daughter and has not been able to act in a way that would promote X having a meaningful relationship with him.  That situation is going to have to change and I am persuaded after hearing the father’s evidence in the witness box that he has a sincere and genuine wish to build up a meaningful relationship with is daughter.

1. He is clearly committed to this and it would certainly appear to me quite strongly that it would be in this little girl’s interests to have this relationship with her father. 

2. The Court must consider the need to protect the child from physical or psychological harm caused by being subjected to or exposed to abuse, neglect or family violence.  Whilst it is a concern that the father has had some involvement with illicit drugs in the past and the not too recent past, the orders proposed by the Independent Children’s Lawyer are intended to ensure that the father does not involve himself in drug taking in the future and I believe that these orders will certainly suffice to protect this little girl from any harm in that regard.

3. The outcome is, in some ways, difficult for the father to put into effect, as the mother has, in my view, deliberately stayed away from Court and has distanced herself from the entire Court process.  Her way of dealing with the orders made by this Court last year appears to be to completely ignore them.  That is a most undesirable situation and does not reflect well on the mother.

4. Whatever the father’s failings may have been in the past, he has strongly pursued his wish to spend meaningful and beneficial time with his daughter.  His legal advisers have brought a case, which appears to me to be sensible and realistic as well as being child focused.  It is unfortunate the mother has not behaved in a similar way.  Noting the amendments to order 9 and order 27 that have been discussed and approved by the Court, I propose to make orders in accordance with paragraphs 1 to 27, inclusive, with the Independent Children’s Lawyer short minutes of order, which I have marked with the letter A, and I have made appropriate notations to those particular orders.

5. In respect of order 9, after the word “orders” in the first paragraph, I have added the words “after 24 November 2014” and in respect of order 27, on the second line, I have deleted the word “with” and substituted the word “for” so that the phrase will read, “Undertaking an assessment for drug and alcohol programs.”  In all other respects, orders will issue in accordance with the short minutes of order proposed by the Independent Children’s Lawyer.

6. I am satisfied that the circumstances of this case are such that the appointment of the Independent Children’s Lawyer should be continued for a period of six months from today and I would hope that at the end of that period of time, the Independent Children’s Lawyer can be discharged without the need of any further Court action.  I would, however, say at this stage that the input by the Independent Children’s Lawyer and Counsel for the Independent Children’s Lawyer has provided assistance to the Court, which the Court gratefully acknowledges.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  25 November 2014