Mullens and Allen

[2012] FamCA 923

FAMILY COURT OF AUSTRALIA

MULLENS & ALLEN [2012] FamCA 923

FAMILY LAW – INTERIM PARENTING – Expert evidence as to the father’s parenting capacity – Changes made to interim Orders as to the father’s supervised time with the children – Change of supervisor - Father to spend supervised overnight time with the children for specified periods on dates to be agreed between the parties

Family Law Act 1975 (Cth)

APPLICANT: Ms Mullens

RESPONDENT: Mr Allen

FILE NUMBER: PAC 3135 of 2010

DATE DELIVERED: 11 October 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: 11 October 2012

JUDGMENT OF: Collier J

HEARING DATE: 11 October 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Wade

Fairfax Lawyers

SOLICITOR FOR THE RESPONDENT:

Mr Reeves

Marsdens Law Group

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Hafey
(as agent for Ms Ryan)
Legal Aid Nsw

Orders

1. That I discharge the Orders made in this Court on 14 May 2012.

2. That the parties shall have equal shared parental responsibility for the children B born … January 2006 and C born … November 2007.

3. That the subject children shall live with the mother.

4. That, pending further order, the father shall spend time with the children for four (4) weeks overnight on one (1) occasion in each week and thereafter, until the matter is finalised, for two (2) occasions overnight in each week.

5. It is noted that the parties are to endeavour to prepare consent orders to reflect this issue.

6. That the father’s time with the children shall be supervised by his present partner who I note has executed an undertaking which has been made an Exhibit of this Court.

7. It is noted that on weekdays the time that the father’s partner shall supervise shall commence at 3.30 pm.  I acknowledge that that may mean that the father will need to collect the children from school without being accompanied by the supervisor.

8. That I confirm dates are to be allocated as soon as possible for a two (2) day hearing to conclude this matter.

9. That in the event of any difficulty liberty is granted to the parties and the Independent Children’s Lawyer to relist the matter upon twenty-four (24) hours notice to the parties and to the Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mullens & Allen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3135 of 2010

Ms Mullens

Applicant Mother

And

Mr Allen

Respondent Father

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. The matter I have heard this afternoon concerns the amount of time the parties’ children, B, born in January 2006 and C, born in November 2007, spend time with the father.

2. The children live with their mother.  At present, the father is spending time with the children pursuant to a number of Consent Orders that have been previously made in this Court.  The mother’s case, as I apprehend it, is that she has concerns as to the father’s capacity to care for the children.

3. Those concerns may be described as:-

   ·the allegations of sexual abuse that were previously raised;

   ·the father’s inability, because of suffering from Attention Deficit Hyperactivity Disorder, to make proper plans and carry out proper processes for the care of the children; and

   ·what was described as his inability to provide optimum care for the children.

The material before me

1. I have read the material identified to me.  Today, I have also heard oral evidence of Dr D by telephone.  Dr D prepared a report, which became an exhibit, in these proceedings.  That report, which was dated 2 August 2012, indicated that the father was no longer medicated.  Further, in Dr D’s opinion, the father was managing without such medication.  Dr D was of the view that the condition suffered by the father presented no real difficulty for him in spending time with the children, provided that he took proper steps to put in place reminders, alarms and other devices to enable him to ensure that things required to be done were done.

2. Dr D was cross-examined by the mother’s solicitor.  It was put to him that the father appeared to have ceased his own medication of his own volition.  Further, it was put to Dr D that the father had not been attending at what might have been considered optimum intervals for review.  Notwithstanding these matters being put to him, Dr D did not resile from his basic position.  These matters were said to be of particular significance in relation to the administration of medication to the parties’ son, who has also been diagnosed with Attention Deficit Hyperactivity Disorder.

3. Notwithstanding the challenges to Dr D’s evidence, I have come to the conclusion that there must be some changes made to the interim Orders of 14 May 2012.  Those Orders were, of course, made by consent.  Pursuant to those Orders, the father was to spend time with the children, such time was to be supervised by his father.  The paternal grandfather, in a document filed in the father’s case, has indicated he cannot continue to provide supervision.

The Law to be Applied

1. These are parenting proceedings. What is required by section 60CC of the Family Law Act 1975 (Cth) is to balance the requirement of a meaningful relationship between the children and both parents against the need to protect the children.

2. I turn then to the section 60CC(3) factors that would be applicable.

3. I have no indication of the children’s wishes (subparagraph (a)). 

4. As to subparagraph (b), it is clear that the mother has a good relationship with the children.  I am also satisfied that, until the father’s time with the children was interrupted or suspended, that he also, having regard to all the matters involved, had a good relationship with the children.

5. I am not able to make any finding in respect of how each party has endeavoured to include the other in decision-making and spending time with the children (subparagraph (c)).

6. I propose to make a change to the current Orders, and I am satisfied that the effects of that change (subparagraph (d)) will be for the benefit of the children, in that it will foster a relationship with their father and increase his time with them from its present, quite restricted times, whilst ensuring the children are protected.

7. I propose to continue an order for supervision, but by the father’s partner rather than his father.

8. I am not able to make any meaningful comment about the ability of either parent to care for the children and have regard to the responsibilities of parenthood and caring for the child (subparagraphs (f) and (i)).  I am satisfied that the mother has provided care for the children to a satisfactory or better than satisfactory degree.  I am satisfied that the father, when the children have spent time with him, has provided appropriate care.

9. In making any parenting order, I am required to find that there will be equal shared parental responsibility, unless either such a finding is not to apply because of family violence, or it is rebutted on the evidence (section 61DA).  So far as I am concerned, the parents seem to be working to some degree collaboratively for the benefit of the children.  I see nothing in the material that I have read that would disturb the presumption, either by having it not apply or by rebutting it.  Accordingly, I propose to order that the parties have equal shared parental responsibility for the children.

10. Having done that, I am required to consider whether the children’s time with each parent should be either equal time or significant and substantial time (section 65DAA).  Equal time is not contended for.  Significant and substantial is nowhere defined in the Act, and in my view, it must depend on the circumstances of each particular case.  In this situation, I am satisfied that the father should, as allowed by his roster (which has been, I am satisfied, a factor throughout this parties’ marriage and the lives of the children) commenced to spend overnight time with the children.

11. I would propose that there would be orders for him for a period of four weeks, to spend one occasion of overnight time each week with the children.  Thereafter, until the matter is concluded, he shall spend two days, including overnight, of each week with the children, again dependant upon his roster.

12. The parties have agreed that the appropriate way for this to be done is for them, with knowledge of the father’s roster and other matters known to them, draw up a proposal.  Provided that agreement is reached and orders are then drawn by consent, they can be forwarded to me and they will be made in chambers.  In the event that the parties cannot reach agreement, then I will allow the matter to be restored to the list on very short notice.

13. Further, I note that on weekdays the inability of a supervisor for a short time may mean that the father will need to collect the children from school without being in the company of that supervisor. 

14. I confirm that dates are to be allocated as soon as possible for a two day hearing, hopefully to conclude this matter.

15. The Orders that I make are set out at the commencement of these reasons for Judgment.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 11 October 2012.

Legal Associate:

Date:    7 November 2012