MCLEOD & LANG

[2013] FCCA 1218

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCLEOD & LANG [2013] FCCA 1218

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the child – parental responsibility – child aged 2 years and 5 months – application to vary interim parenting orders – whether need for supervision of father’s time with child to continue.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 61DB, 62G, 65DAA, 68L

Applicant: MR MCLEOD

Respondent: MS LANG

File Number: SYC 2834 of 2012

Judgment of: Judge Scarlett

Hearing date: 9 August 2013

Date of Last Submission: 9 August 2013

Delivered at: Sydney

Delivered on: 29 August 2013

REPRESENTATION

Solicitor for the Applicant: Mr Mokhtar

Solicitors for the Applicant: Marsdens Law Group

Solicitor for the Respondent: Ms Mantel

Solicitors for the Respondent: Bankstown Legal

Counsel for the Independent Children's Lawyer: Mr Fermanis

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

UNTIL FURTHER ORDER

1. All previous parenting Orders are discharged.

2. The child X born (omitted) 2011 is to live with the Respondent Mother.

3. The Mother is to have sole parental responsibility for the child X provided that:

   (a)She informs the Father about all matters concerning the child’s care, welfare and development; and

   (b)She consults the father about any proposed medical, surgical or hospital treatment concerning the child.

4. The child X is to spend time with the Father as follows:

   (a)Each alternate Saturday at the (omitted) Contact Centre or such other contact centre as the parties may agree in consultation with the Independent Children’s Lawyer for a period of two (2) hours, such times to be determined by the contact centre and for that purpose both parties are to do all things necessary to participate in the contact centre’s intake process within seven (7) days or such further time as the contact centre shall determine;

   (b)Each other Saturday from 9:00am to 11:00am at the residence of the child’s paternal great grandmother;

   (c)Each Sunday between the hours of 9:00am and 11:00am at the home of the child’s paternal great grandmother or at such other place as the parties may agree in consultation with the Independent Children’s Lawyer;

   (d)For a period of two (2) hours on:

   (i)Christmas Day;

   (ii)The Father’s birthday; and

   (iii)The child’s birthday;

   (e)At such other times as the parties shall agree.

5. For the purposes of Order (4) above:

   (a)The Father is to be solely responsible to meet the fees required by the contact centre and the Mother is to be responsible to ensure that the child is delivered to and collected from the contact centre and any other place where the child is to spend time with the Father;

   (b)The Father must not consume any alcohol or administer to himself any illicit drug at any time when he is spending time with the child or for twelve (12) hours beforehand; and

   (c)The Father must not smoke tobacco or any other substance on any occasion when he is spending time with the child.

6. The Father is not to permit his mother Ms S to attend upon the residence of the paternal great grandmother on any occasion when he is spending time with the child at the residence of the paternal great grandmother in accordance with these Orders.

IT IS NOTED that publication of this judgment under the pseudonym McLeod & Lang & Anor 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

Application

1. This is an Application to vary the current interim parenting Orders which were made by consent on 17^th June 2013. It is a little difficult to understand why the Applicant seeks a variation of the interim Orders only two months after they were made by consent, especially as the parties’ lawyers do not seem to have been particularly well provided with instructions.

2. There is an issue about supervision of the Father when he spends time with his daughter, who is a little girl born (omitted) 2011 and is therefore two years and just under five months old. The Mother wants to retain the supervision, whilst the Father believes that it is no longer necessary, or, if it is still necessary, why the supervision could not be conducted by his father.

3. The other issue, which only emerged after the hearing was well under way, is that the Father will no longer be able to spend time with his daughter on Tuesday afternoons, as he has recently obtained employment and will be on call for five days a week, Mondays to Fridays.

4. There is also an issue about a report. The Independent Children’s Lawyer would prefer to obtain a report from a Part 15 Court Expert, and has suggested Dr B, a Clinical Psychologist, who is experienced in this field and is well-known to the Court.

5. The difficulty is that the parties do not have the funds to meet the cost of a report by Dr B. They are each legally aided and the Independent Children’s Lawyer hopes to obtain a grant of aid to cover the cost of a report. If a grant of aid is not available, then the Court will order a Family Report under the provisions of s.62G of the Family Law Act 1975 (Cth).

Background

1. The father is a 27 year old man who was born on (omitted) 1986. The Mother was born on (omitted) 1989 and is therefore 24 years of age.

2. The parties commenced living together early in 2011 and were married on (omitted) 2012. They separated on 1^st April 2012.

3. There is one child of the relationship, a girl named X, who was born on (omitted) 2011. X lives with her mother.

4. The Father commenced proceedings by filing an Application for parenting Orders and an affidavit in support on 17^th May 2012. The Application was returnable on 16^th July 2012.

5. In his affidavit sworn on 16^th May 2012 the Applicant describes an argument on 31^st March 2012 which led to the parties’ separation the following day. He also deposed that the Police served him with a Provisional Apprehended Violence Order naming the Mother as the protected person and charged him with common assault. He stated that he entered a plea of not guilty to the assault charge on 16^th May 2012 although he consented without admissions to the interim Apprehended Domestic Violence Order.

6. The proceedings were listed for hearing at (omitted) Local Court on 2^nd July 2012.

7. The Applicant deposed that he was living with his parents at (omitted), along with his twin brother and his elder brother. The mother was living with her mother at (omitted).

8. The Applicant also deposed that he had previously taken drugs after he had been involved in a car accident in 2007 in which he was injured and his then girlfriend was killed. However, he stated that he had not used drugs since before he and the mother were married in January 2012.

9. The mother filed a Response and an affidavit in support on 10^th July 2012, seeking Orders that:

   a)the child should live with her;

   b)she should have sole parental responsibility for the child; and

   c)the child should spend time with the father fortnightly under supervision of a contact service.

10. The Mother deposed in her affidavit sworn on 6^th July 2012 that she was concerned about the child’s safety in the presence of the Father’s mother and of the Father. Her reasons for concern about the Father were “his drug taking, excessive alcohol consumption and outbursts of violence…”[1] 

    [1] Affidavit of  Ms Lang 6.7.2012 at paragraph [118]

11. The Mother expressed concern about the Father’s mother, who suffers from bipolar disorder. She states in her affidavit that she does not want to leave the child in the paternal grandmother’s care because she did not consider that the grandmother was attentive to the child’s needs.

12. The Mother deposed in her affidavit that in March 2012 the Father used violence towards her, shaking her back and forth and throwing her down on a bed.[2] She further deposed that on 23^rd March the Father was driving whilst he was extremely drunk, drove erratically and hit her several times. She got out of the car and he chased her, throwing her down onto the road and later throwing her into some bushes.[3]

    [2] Ibid at [70]

    [3] Ibid at [72]-[87]

13. The Mother stated that on the day she separated from the Father she went to the Police and complained about the Father’s behaviour. She deposed that the Police issued an Apprehended Violence Order against the Father the following day. She stated:

    On 2 July I attended a hearing for the AVO. The AVO remains in place until 2 July 2013[4]

    Affidavit of Ms Lang 6.7.2012 at [104]

14. On 16^th July 2012 the parties attended Court. They were directed to attend a Child Dispute Conference with a Family Consultant, which they did that day. The Family Consultant reported in her Memorandum to the Court that the parties had reached agreement that:

    a)The child would live with the Mother; and

    b)The child would spend time with the Father each Tuesday from 3:00pm to 6:00pm and each Sunday from 9:00am to 11:00 or 12.00pm, supervised by the maternal grandmother. 

15. Matters that remained in dispute were:

    a)Parental responsibility; and

    b)Long term arrangements for the child to spend time with her father.

16. The Family Consultant reported a number of family safety factors:

    a)The Mother alleged that the Father behaved in a controlling and obsessive manner;

    b)The Mother alleged that the Father may have mental health problems;

    c)The Mother alleged the Father was physically violent towards her on numerous occasions;

    d)The relationship appeared to have been characterised by conflict;

    e)The Mother alleged the Father abused methamphetamine and other drugs;

    f)The Father alleged that the Mother had a history of recreational drug use; and

    g)The Mother reported that she was prescribed dexamphetamine for adult ADHD.

17. The Family Consultant made these comments:

    X spending time with her father, whilst supervised by the maternal grandmother, will enable X to re-establish familiarity with him whilst having the reassuring presence of her grandmother. Supervision will also be sufficient to manage the alleged risk issues.

    The maternal grandmother appears willing and able to supervise the father’s time with X.

    There may be a risk of conflict between the maternal grandmother and the father if the maternal grandmother raises concerns about the alleged risk issues or about the father’s behaviour with X.[5]

    [5] Family Consultant Memorandum to Court 16 July 2012

18. On 16^th July 2012 the parties entered into Interim Consent Orders providing that:

    a)The Father would submit to drug screen analysis with a pathologist each Monday morning;

    b)The child would live with the Mother;

    c)The child would spend time with the Father:

    i)For 2 hours at a contact centre on alternate Sundays over a period of four weeks;

    ii)Then, from 3:00pm to 6:00pm each Tuesday at the home of the child’s maternal grandmother in the presence of the maternal grandmother and the paternal grandfather or the paternal great-grandmother; and

    iii)From 9:00am to 11:00am each Sunday at the home of the paternal great grandmother in the presence of the maternal grandmother and either the paternal great grandmother or the paternal grandfather.

19. On that same day, an Order was made under s.68L of the Act that the child’s interest should be independently represented by a lawyer.

20. The Interim Orders were varied by consent on 3^rd September 2012 to reduce the frequency of the Father’s drug screen analysis from weekly to monthly.

21. The child’s maternal grandmother, Ms E, deposed in her affidavit sworn on 28^th March 2013 that the Mother and child were living with her at an address in (omitted). She expressed concerns about the Father’s ability to interact with the child and care for her. She also deposed that the Mother has formed a new relationship with a man named Mr A.[6]

    [6] Affidavit of Ms E 28.3.2013 at paragraph [36]

22. The Mother also deposed that she was living at that address in her affidavit of the same date.

23. The Father deposed in an affidavit sworn on 6^th May 2013 that he had been spending time with the child according to the Orders. He made critical comments about the Mother’s friend Mr A, saying that to the best of his knowledge “Mr A is a known ice addict and a violent person”.[7]  

    [7] Affidavit of Mr McLeod 6.5.2013 at [27]

24. The Father also deposed that he, too, has formed a new relationship with a woman called Ms H. The Father described an incident that occurred on 4^th May 2013 when he visited the child at the maternal grandmother’s home, accompanied by Ms H. When he asked Ms H to take some pictures of the child on her phone, the maternal grandmother refused to allow her to take any pictures. Ms H left and the Father was engaged in a lengthy argument with the Mother and her mother.

25. On 17^th June 2013 the parties entered into consent Orders, varying the earlier Orders. The Consent Orders provide that:

    a)The child continues to live with the Mother;

    b)The child is to spend time with the Father:

    i)Each Tuesday from 3:00pm to 6:00pm at the maternal grandmother’s residence;

    ii)Each alternate Saturday at the (omitted) contact Centre for a period of two hours;

    iii)The Father is to meet the contact centre fees;

    iv)Each alternate Saturday from 9:00am to 11:00am at the paternal great grandmother’s place of residence; and

    v)At other times as agreed.

    c)The paternal grandmother is to be restrained from attending the residence of the paternal great grandmother during the times the child is there spending time with the father.

26. The Father sought that there should be an interim hearing to vary the parenting Orders to remove the requirement for supervision.

Evidence

1. The Father relied on his affidavit sworn on 6^th August 2013. The Mother relied on her affidavit of 28^th June 2013.

2. As I indicated previously, it is difficult to ascertain exactly what orders the parties are seeking, as neither had provided a minute of proposed Orders. The Mother herself did not attend Court, as her solicitor told the Court that she had recently given birth.

3. However, the Father’s proposals appear to be that:

   a)He wishes the supervision of his time with the child to cease; and

   b)He is no longer able to spend time with the child between the hours of 3:00pm and 6:00pm on Tuesdays because of work commitments.

4. The Mother’s position appears to be that:

   a)The Father’s time with the child should be at a contact centre or at her mother’s house, not at the paternal great grandmother’s house[8]; and

   b)She does not agree that the Father should have any unsupervised time with the child at all “until she is at least another year older and she does not need to have her nappy changed and she is able to communicate better”.[9]

   [8] Affidavit of  Ms Lang 28.6.2013 at [25]

   [9] Ibid at [24]

5. The parties’ affidavits do little more than repeat the issues that have been set out in their earlier affidavits.

Submissions

1. Counsel for the Independent Children’s Lawyer, Mr Fermanis, submitted that there was no cogent reason why supervision should continue in the long run. The Father has provided urine samples which have proved clean. There is no real evidence that the child has been returned to the Mother in a bad state. There is not a case for supervision on a final basis.

2. Mr Fermanis suggested that the release of a family report or a Court Expert Report would demonstrate that supervision need not continue.

3. The Father’s solicitor, Mr Mokhtar, submitted that the Father has undergone numerous chain-of-custody drug tests, all with negative results. He currently lives with his parents.

4. The Father has recently obtained employment after having been unemployed for a period of time. He will be working on weekdays and will be on call five days a week. He will always be available on weekends.

5. Mr Mokhtar said that the contact centre has no places available. He also told the Court that supervision by Dial an Angel would cost $447.00 for three hours.

6. The Mother’s solicitor, Ms Mantel, submitted that the Mother was concerned about leaving the child in the care of the paternal grandmother because she suffers from a mental illness. The Mother also has serious doubts about the Father’s parenting skills.

The Law to be Applied in Parenting applications

1. When a Court is deciding whether to make a parenting order, it is required by s.60CA of the Family Law Act to regard the best interests of the child as the paramount consideration.

2. The Court determines what is in the child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC. The primary considerations in s. 60CC(2) are:

   a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

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

3. The Court is required by s.60CC(2A) to give greater weight to the need to protect the child from harm in s.60CC(2)(b).

4. The additional considerations are to be found in s.60CC(3). Not all of them will necessarily be relevant but they include the nature of the relationship of the child with each of the child’s parents and other persons, including grandparents and the likely effect of any change in the child’s circumstances.

5. When a Court is making a parenting order in relation to a child, subsection 61DA(1) provides that the Court must apply a presumption that it is in the child’s best interests for his or her parents to have equal shared parental responsibility.

6. The presumption does not apply in cases of abuse of the child or family violence (s.61DA(2)) and may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for the child (s.61DA(4)).

7. Where the Court is making an interim parenting Order, the presumption of equal shared parental responsibility applies unless the Court considers that it would not be in the child’s best interests for the presumption to be applied (s.61DA(3)). In any event, when the Court is making a final parenting order it is required by s.61DB to disregard the allocation of parental responsibility made in the interim order.

8. Where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, s.65DAA(1) requires the Court to consider whether the child spending equal time with each of the parents would be:

   a)in the best interest of the child; and

   b)reasonably practicable.

9. If the Court does not make such an order, it is then required by s.65DAA(2) to consider whether equal time with each of the parents would be:

   a)in the best interests of the child; and

   b)reasonably practicable.

10. All of the above matters have been considered, insofar as they are relevant.

Conclusions

1. This matter appears to be “drifting” rather than proceeding swiftly towards a final resolution, and it appears that part of the problem has been caused by the fact that both the Applicant and the Respondent have had a change of legal representation.

2. However, it is in the best interests of this little girl that the court proceedings should be resolved as soon as reasonably practicable. Her best interests are more important than the wishes of either parent.

3. The communication between the parties is poor, as can be seen by their affidavits. It does not appear that, at this stage, an order for equal shared parental responsibility is at all practicable. I propose to make an interim order that the Mother should have sole parental responsibility for the child, subject to some conditions.

1. The best wishes of the child remain the paramount consideration. The Court needs to balance the benefit to the child of having a meaningful relationship with each parent on the one hand against the need to protect her from harm.

2. The current Orders provide for the child to spend time with the Father for up to three hours each Tuesday and for two hours each Saturday. However, as the Father will be at work on Tuesdays, he will no longer be able to spend time with his daughter on Tuesdays. That means that the child will only spend time with her father for two hours once a week.

3. It is well established that children under the age of four years need to spend frequent time with their parents to enable an attachment to develop. It is not in this child’s best interests at her age not to see her father for six days in a row. Ideally, she would see him every few days, as was the case up to now, but this no longer appears to be viable.

4. Consequently, I am of the belief that it is in this child’s best interests for her to spend time with her father on Sundays as well as on Saturdays. A period of up to three hours would be beneficial, and certainly not less than two hours would be required.

5. Whilst this is not a case where the Court would make orders for the child to spend substantial and significant time with the Father at this stage, there are some days of particular significance that should be considered, such as birthdays, Christmas Day and Father’s Day.

6. Against this, the Court needs to consider the child’s safety. The Mother has expressed concern about the Father’s inadequate parenting skills, drug use, smoking near the child and excessive alcohol consumption. The Father will need to work on his parenting ability so that he can ensure that his little girl is kept safe, has nappies changed and has other needs attended to.

7. It is for this reason that I am not prepared at this stage to dispense with the requirement for the Father to spend time with his daughter with an adult supervisor, but this requirement should only continue for a few months. In view of the Mother’s concerns about the Father’s mother, it seems that she would not be regarded as a suitable person at this stage.

8. However, I am not convinced that it will continue to be necessary for the Father to see his child only at the residence the Mother shares with her mother. This is hardly an environment that is conducive to the Father building up his own parenting skills. In addition, his complaints about the maternal grandmother’s restrictive attitude towards allowing photographs being taken of the child by the Father’s girlfriend and other matters, if they are established, do not suggest that the maternal grandmother should continue to act as supervisor.

9. I am not convinced that the Mother’s proposal that the Father should only spend time with the child at her residence or at a contact centre, as set out in her affidavit of 28^th June 2013, is an arrangement that should continue. The Mother deposed:

   I only agree that the applicant should have time with X either in a contact centre or at my mother’s house where X feels comfortable in a normal friendly environment. I do not agree that X should spend time at the paternal great grandmother’s house where there is a feeling of hostility from her paternal family and they are trying to cover up what is really happening. I believe that the great grandmother is unwell and that she is unaware of how Mr E and Mr McLeod are trying to control and manipulate the situation.[10]

   [10] Affidavit of Ms Lang 28.6.2013 at [25]

10. This paragraph is speculative and unhelpful but it is typical of the standard of the affidavit material emanating from both parties.

11. The parties’ lawyers should file affidavits by the parties and by other people who play a role in the child’s life, confining themselves to facts rather than statements of opinion. If a party is to be proposed as a supervisor, that person should be on affidavit. So far, only the maternal grandmother has deposed to any affidavit setting out her role in the proceedings. The Father has not filed any affidavit from anyone who may be assisting him in the care of his child.

12. I propose to order a Family Report under the provisions of s.62G of the Family Law Act, as no information has been provided by the Independent Children’s Lawyer to the effect that a grant of legal aid will be available to meet the costs of a court expert.

13. As each party has formed a new relationship, the new partners should be available to be interviewed for the purpose of the Family Court. Ideally, they should be on affidavit as well.

14. The Orders may be reconsidered once the Family Report is available.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  28 August 2013