Meyer and Metz

[2017] FCCA 2010

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEYER & METZ [2017] FCCA 2010

Catchwords:
FAMILY LAW – Interim parenting issues.

Legislation:

Family Law Act 1975 (as amended), ss.60CC(2) & (3)

Cases cited:

Goode & Goode [2006] FamCA 819

Applicant: MR MEYER

Respondent: MS METZ

File Number: ADC 4062 of 2016

Judgment of: Judge Mead

Hearing date: 6 March 2017

Date of Last Submission: 6 March 2017

Delivered at: Adelaide

Delivered on: 6 March 2017

REPRESENTATION

Solicitors for the Applicant: Clelands

Solicitors for the Respondent: Phillips Green & Associates

Solicitors for the Independent Children's Lawyer: Legal Services Commission of South Australia

ORDERS

1. That during the period of the adjournment:

   (a)[X] born 2005 and [Y] born 2007 live with the father;

   (b)the said children spend time with the mother on:

   (i)each alternate weekend during school term time from the conclusion of school Friday (or 4:00pm if a non-school day) to the commencement of school Monday (or 9:00am if a non-school day) commencing 10 March 2017 and NOTING the time extends to the commencement of school Tuesday in the event of a long weekend; and

   (ii)from 5:00pm on 22 April 2017 to the commencement of school on 1 May 2017.

2. That pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer be appointed to represent the interests of the children [X] born 2005 and [Y] born 2007 and to facilitate such appointment the parties respective solicitors do forward all documents filed to date to Mr Graham Russell of the Legal Services Commission of South Australia on or before 10 March 2017.

3. That during the period of the adjournment the Independent Children's Lawyer use his or her best endeavours to meet with [X] and [Y] so as to explain to them the role of the Independent Children's Lawyer and to be in a position on the adjourned hearing to make submissions as to both interim and procedural matters including a Family Assessment Report.

4. That by consent and until further order the mother shall not discuss these proceedings and the proceedings currently before the (omitted) Magistrates Court with the said children or show the said children any document connected with either proceedings.

5. That by consent and until further order each party shall forthwith inform the other of any serious illness or injury sustained by the children or either of them whilst in their care.

6. That by consent and until further order the mother be restrained and injunctions are hereby granted restraining her from:

   (a)consuming alcohol or using illicit substances for 8 hours prior to or during the time the children spend time with her pursuant to these orders; and

   (b)communicating directly with the children or either of them in relation to the time they are to spend with her.

7. Directions and interim issues adjourned to 11 May 2017 at 4:15pm.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4062 of 2016

MR MEYER

Applicant

And

MS METZ

Respondent

REASONS FOR JUDGMENT

1. This matter comes before the Court today with the parties in dispute as to parenting arrangements for [X], who is nearly 12 years old, and [Y], who is nine and a half.  The facts in terms of the children’s arrangements are not in dispute, and that is that until 4 December 2016 the parties, who by then had been separated for about two years, shared the care of the children.  What is however alarming is the amount of violence that these children appear to have been exposed to as alleged by each of the parties, each of course blaming the other of them.  Either by bad luck or circumstance it is the mother who has ended up being charged in relation to criminal offences which, according to Mrs Green, are being strenuously contested.

2. Nevertheless, it was the mother who was arrested.  I understand it is common ground that it was the police who suggested that the father come and collect the children.  It is the father with whom the children have been living since 4 December 2016.  For whatever reason, whether because of lack of cooperation on the part of the father or the mother lacking significant interest, which of course is the father’s position, these children have spent very little time with the mother since 4 December 2016.

3. What I have to be concerned about is not whatever status quo might have been the position, because that as a test of ongoing interim orders came to a halt in 2006 when judgment in the matter of Goode & Goode was handed down.

4. I must consider the interim arrangements for the children based on the objects and principles of the Act and the best interests of the children as determined by a consideration of the factors in section 60CC of the Family Law Act.

5. Clearly both parties thought it was in the children’s best interests for two years to have a close and meaningful relationship with the other parent, because they facilitated a week-about arrangement.  The Court now however has to decide what is in the children’s best interests on an interim basis.  That is never an easy task in circumstances where none of the evidence before the Court is tested.  What however is beyond dispute is that there is an intervention order in place where the protect person – persons in fact – are the father and his partner, and the children have been living almost solely in his care since 4 December 2016 following upon an incident in respect of which the mother has been arrested and charged with offences of violence.

6. Section 60CC tells the Court the factors that it needs to take into account when determining what is in a child’s best interests. Section 60CC(2) refers to what are called primary considerations, that is, the most important considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents, and the second is the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence. These children have clearly been exposed to family violence because both parties say they have, and both parties, as I say, blame the other.

7. The parties have also been mindful to ensure that the children have a meaningful relationship with both of their parents, and that is continuing at the moment by way of the children spending alternate weekends after school Friday to the start of school on Monday with their mother.  That arrangement apparently was put in place a month or so ago and two occasions have occurred. 

8. I am satisfied that such an order would firstly maintain the relationship between the children and their mother and secondly, ensure that the parties were as far apart as possible and the children had a period of relative peace rather than being exposed to what seem to be coming and going from each other’s premises and appalling incidents happening with monotonous regularity which no doubt was extremely distressing for both of the children.

9. The Court then needs to take into account any views expressed by the children, and of course there is nothing before the Court about that at the moment, and the nature of the relationship of the child with each of the child’s parents.  No doubt these children have good relationships with each of their parents or their parents would not have sustained an equal shared parenting arrangement for two years.  As to taking the opportunity to participate in making decisions, again that is something that the parties seem to have done over two years, and they have each maintained the children across that two-year period.

10. As to the likely effect of any changes in their circumstances, including the likely effect on the child of any separation from either of his or her parents, or other child or person with whom he or she has been living, [X] and [Y] have now been in the father’s primary care for three months.  There is no evidence before the Court that would suggest that that is having a deleterious effect on their psychological wellbeing or their physical wellbeing and of course, the order that I am making today is really by way of a holding order until further information can come before the Court.  I am not satisfied that that is an issue of any particular significance.

11. As to the capacity of the child’s parents to provide for the needs of the child, including emotional and intellectual needs, there are significant questions being raised quite frankly with respect to both parents at this point in time.  No findings are possible at this time, but this is a situation where the children have been in their father’s primary care for three months with apparently no negative impacts, and I note my concern that I should not make orders that, as Ms T says, have to be changed again if that is found to be in the children’s best interests.

12. As to the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents and family violence involving the child or a member of the child’s family, I have already referred to the intervention order that is in place, the pending criminal proceedings, and my concerns as to the capacity of each of the parents to put the needs of the children first.

13. Taking all of those matters into account, I am satisfied that it would not be in the best interests of [X] and [Y] to change their current arrangements at the moment until I have more information.  In light of the very high level of violence alleged by each of the parties, I am not going to make any order today for a family report but rather I am going to order an independent children’s lawyer and for that lawyer to meet with the children prior to us coming back to see where we should go from there.

14. For those reasons, the order will be

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Mead

Date:  22 August 2017