MORONI & SHAWN
[2011] FamCA 93
•25 January 2011
FAMILY COURT OF AUSTRALIA
| MORONI & SHAWN | [2011] FamCA 93 |
| FAMILY LAW – Children – Interim Proceedings – Related proceedings between one mother and two fathers |
| Family Law Act 1975 (Cth): s 60CA, s 60CC(2), s 60CC(3), s 60CC(4) s 61DA(1), s 61DA(3), s 65DAA |
| APPLICANT: | Ms Moroni |
| RESPONDENT: | Mr Shawn |
| FILE NUMBER: | CAC | 65 | of | 2011 |
| DATE DELIVERED: | 25 January 2011 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 25 January 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Urquhart |
| SOLICITOR FOR THE APPLICANT: | Legal Aid Commission (NSW) |
| COUNSEL FOR THE RESPONDENT: | Self-represented litigant |
Orders
IT IS ORDERED THAT:
Until further Order each of the parents will have parental responsibility for B, born … October 1999.
The child will live with her mother except for the times that she spends with her father which will be on every second weekend from 4.00pm on the Friday until 4.00pm on the Sunday unless the parents otherwise agree and for half of the school holidays.
The child’s father will return her to her mother at 4.00pm on Friday 28 January 2011.
a. The child’s grandmother, Ms C, will be present when the child is retuned to her mother.
b. The child will be delivered to her father at or about 4.00pm on the following Friday and each second Friday thereafter.
c. The child will be returned by Mr Shawn, in this case, to Ms Moroni on the following Sunday at 4.00pm at her home.
The proceedings are otherwise adjourned to 11.00am on 24 February 2011 for the first day of a Less Adversarial Trial or for further Orders in this matter subject to Mr Shawn being able to file prior to that time a parenting questionnaire and his setting out either in that document or another, the Orders that he seeks should be made in relation to where the child will live and the time she will spend with each parent in the future.
This is a matter in which the child should be separately represented and I request that the Legal Aid Office in the ACT arrange for such representation.
It is noted that such representation may be conducted by the same person who satisfies the role of Independent Children’s Lawyer in respect of D, born … December 2002, in related proceedings.
The proceedings in relation to D and the child will be consolidated for the purposes of further hearings before this Court.
Neither parent of the child will discuss the mother’s mental health or any other allegations that may be made in relation to the child’s father and each parent will refrain from saying unkind or unpleasant things about the other parent in the presence of B.
In each matter D and the child are free to telephone the other parent when she is with one parent at any reasonable time.
IT IS NOTED that publication of this judgment under the pseudonym Moroni & Shawn is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
FAMILY COURT OF AUSTRALIA
| MORONI & BOLAND | [2011] FamCA 93 |
| FAMILY LAW – CHILDREN – Interim proceedings – Related proceedings between one mother and two fathers |
| Family Law Act 1975 (Cth): s 60CA, s 60CC(2), s 60CC(3), s 60CC(4) s 61DA(1), s 61DA(3), s 65DAA |
| APPLICANT: | Joanne Louise Moroni |
| RESPONDENT: | Neil Joseph Boland |
| FILE NUMBER: | AYC | 79 | of | 2008 |
| DATE DELIVERED: | 25 January 2011 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 25 January 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Urquhart |
| SOLICITOR FOR THE APPLICANT: | Legal Aid Commission (NSW) |
| COUNSEL FOR THE RESPONDENT: | Self-represented litigant |
Orders
IT IS ORDERED THAT:
All previous Orders are discharged.
Until further Order each of the parents will have parental responsibility for D, born … December 2002.
Until further Order the child will spend time with each of her parents on a week‑about basis commencing on Friday 28 January 2011 at 4.00pm when the child’s father will return her to her mother at her mother’s home.
a. When the child is returned, her maternal grandmother, Ms C, will be present.
At 4.00pm on the following Friday the child’s grandmother will return her to her father for the continuation of the arrangements that are set out in these Orders on an interim basis.
The proceedings are otherwise adjourned to 11.00am on 24 February 2011 for the first day of a Less Adversarial Trial or for further Orders if that is not feasible and to enable Mr Boland, with the assistance of his lawyer, to provide a parenting questionnaire and in that document or a separate document the Orders that he seeks to be made in relation to the future arrangements about where the child will live and the time she will spend with each of her parents.
5a. This is a matter in which the child should be separately represented and I request that the Legal Aid Office in the ACT arrange for such representation.
5b. It is noted that such representation may be conducted by the same person who is the Independent Children’s Lawyer in respect of B, born … October 1999, in related proceedings.
The proceedings in relation to the child B and the child D will be consolidated for the purposes of further hearings before this Court.
Neither parent of the child will discuss D’s mother’s mental health or any other allegations that may be made in relation to the child’s father and each parent will refrain from saying unkind or unpleasant things about the other parent in the presence of the child.
In each matter B and D are free to telephone the other parent when she is with one parent at any reasonable time.
IT IS NOTED that publication of this judgment under the pseudonym Moroni & Boland is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 65 of 2011
| Ms Moroni |
Applicant
And
| Mr Shawn |
Respondent
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: AYC 79 of 2008
| Ms Moroni |
Applicant
And
| Mr Boland |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
These are interim proceedings brought under Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The objects of part VII of the Act require that children should be encouraged to have a relationship with each of their parents. The Act incorporates (by inference) the Convention of the Rights of the Child. This provides that the focus should be on what are the children’s interests rather than what are the rights of the parents.
In particular, I refer to s 60B(2) of the Act:
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Under s 60CA of the Act, in deciding whether to make a particular parenting order about a child a Court must have regard to the best interests of the child as the paramount consideration. Again, it is not a question of what might be best for either parent but what it best for the child.
In s 61DA(1) the Act prescribes that when I am making a parenting order the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility of the child. This presumption does not apply in a number of instances. In particular, where the court is making an interim order, (which I am,) the presumption applies unless the court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order (s 61DA(3) of the Act refers).
Both in relation to Mr Shawn and Mr Boland (the respondent who is related to a suit also made by the mother which I hear today) and the children’s mother in each matter, it is not appropriate in this interim matter that that presumption should apply. It is difficult to imagine in these fraught circumstances that the parties could reasonably work together to make decisions. It is important that each of them should recognise that they have a responsibility for the children and should apply that separately when the children are with that parent, but it is not the case that at this point I would apply that presumption. Not applying that presumption means that it is not necessary for me to consider the matters identified in s 65DAA as to whether or not there should be an order for the child to spend either equal time or substantial and significant time with each parent.
It seems to me, for the reasons I have discussed with the parties and their counsel in the matters before me today, that the arrangements that have previously existed in respect of the girls before their mother’s unfortunate accident mean that the children do need to spend time with both of their parents, at least on an interim basis, until the various concerns that the parents have expressed can be properly investigated and evidence about the relevant matters could be put before the Court in an acceptable and an admissible way.
Accordingly, in the orders I have made, I have taken the view that I should act in the children’s best interests, as those interests are prescribed under s 60CC(2) of the Act. They should have a meaningful relationship with both of their parents on an interim basis and the orders I have made go as far as they might reasonably do that this point to ensure that that is so (s 60CC(2)(a) of the Act refers).
Second, the primary consideration I also must take into account is the need to protect the children from physical or psychological harm or being exposed to abuse or neglect or family violence (s 60CC(2)(b) of the Act refers). In my opinion, given the agreement by both Mr Shawn and Mr Boland to the arrangements that persisted before the accident and given the evidence before me in relation to the parental support available to the children’s mother, at least on an interim basis, it is unnecessary for me to be concerned at this point on an interim basis with this as a primary consideration.
I note that the fathers have expressed the view that the children want to spend at least more time with their fathers and have some concerns about spending time with their mother. This is a factor I am appropriately taking into account under s 60CC(3)(a) (the views expressed by the child) but is a matter which will be more effectively dealt with by an Independent Children’s Lawyer who can determine how the children’s views can be taken into account and to provide a basis on which I can assess their maturity and the weight that should be given to those wishes.
I am unable, at this point, to make any definitive determination about the nature of the relationship of the children with each of the parents (s 60CC(3)(b) of the Act refers). I accept, however, that the parents had, over a long period, prior to the accident, accepted that there should be an involvement with the children with their respective fathers and with their mother and for considerable periods in each case.
In such circumstances, I am satisfied that each of the parents, at least at that point, believe that the relationship between the children and the other parent was one of importance and one which should be fostered. That reflects also, the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent (s 60CC(3)(c) of the Act refers). That is not apparent to me in the course of the proceedings I had before me today but I have no doubt that the matters between the parties have prevented the parents from looking very clearly at what is to happen in the future and how it is to happen.
The likely effect of any changes in the children’s circumstances, including the effect on them of any separation from either of the parents (s 60CC(3)(d) of the Act refers), is something that I have taken into account in the sense that I have made provision that they will have an opportunity to spend time with each of the parents on an interim basis.
I have looked at that the capacity of each of the parents to provide for the children (s 60CC(3)(f) of the Act refers). I have taken into account in this regard of the arrangements that existed before the accident and the ability that each of the parents apparently acknowledge the other had in terms of looking after the children.
I have taken account of the attitude of each of the parents to the responsibilities of parenthood (s 60CC(3)(i) of the Act refers). In this regard, it is difficult to assess the concerns that each of them express but it is something that I will be able assess in more detail once the process of the Less Adversarial Trial has been more effectively implemented.
I am not aware, at this stage of any issues relating to family violence. Again, that is a matter which I can take into account in the future.
I also look to the fact that, at this point, it is difficult for me properly to assess the extent in accordance with s 60CC(4) of the Act that each parent had undertaken or failed to undertake his or her responsibilities as a parent. Again, these are matters that can be considered in more detailed hereafter.
In the meantime, it seems to me that each of the parents has to, in colloquial terms, “take a chill pill”, and start to work out in a sensible and cool-headed way what is going to be best for these girls in the future. I hope that the arrangements that I put in place will help them come to that conclusion, at least, prior to the time when I can look at all the relevant evidence.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 25 January 2011.
Senior Legal Associate:
Date: 23 February 2011
Key Legal Topics
Areas of Law
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Family Law
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