Newman and Sables

[2016] FCCA 722

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEWMAN & SABLES [2016] FCCA 722

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – one child aged 3 years – parental responsibility – equal shared parental responsibility – best interests of the child – allegations of family violence – allegations of alcohol abuse – mental health issues.

Legislation:

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

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant: MR NEWMAN

Respondent: MS SABLES

File Number: SYC 3874 of 2014

Judgment of: Judge Scarlett

Hearing date: 6 July 2015

Date of Last Submission: 6 July 2015

Delivered at: Sydney

Delivered on: 4 April 2016

REPRESENTATION

Counsel for the Applicant: Ms Boyle

Solicitors for the Applicant: Abrams Turner Whelan

Counsel for the Respondent: Mr Batey

Solicitors for the Respondent: Mills Oakley Lawyers

ORDERS

UNTIL FURTHER ORDER

1. All earlier parenting Orders are discharged.

2. The Father and the Mother are to have equal shared parental responsibility for the child X born (omitted) 2013.

3. The child X is to live with the Mother.

4. The child X is to spend time with the Father from the date of these Orders until 31 December 2016 as follows:

   (a)From 8:00 am to 6:30 pm each Tuesday;

   (b)From 8:00 am to 6:30 pm each Sunday with the exception of Mother’s Day and the Mother’s birthday being (omitted) 2016; and

   (c)From 2:00 pm to 6:30 pm on Christmas Day 2016.

5. From and after 1 January 2017, the child X is to spend time with the Father as follows:

   (a)From 8:00 am to 6:30 pm each Tuesday with the exception of the child’s birthday namely (omitted) 2017 when the Father’s time with the child will conclude at 12:30 pm;

   (b)From 8:00 am to 6:30 pm each Thursday;

   (c)From 8:00 am to 6:30 pm each Sunday with the exception of Mother’s Day;

   (d)From 9:00 am to 2:00 pm on Christmas Day 2017 and all odd numbered years thereafter; and

   (e)From 2:00 pm to 6:30 pm on Christmas Day 2018 and all even numbered years thereafter.

6. The Father is restrained from consuming alcohol at any time that the child is spending time with him in accordance with these Orders or for twelve (12) hours beforehand.

7. The parties are restrained from using critical or derogatory comments towards each other in the presence or hearing of the child or from permitting any third person to do so.

8. Changeover where the child goes from the care of one parent to the care of the other in accordance with these Orders is to take place at McDonald’s Family Restaurant at (omitted).

9. The parties are restrained from being accompanied by extended family members at changeover.

10. The parties are to keep each other informed of their current residential address and their mobile and landline telephone numbers and advise each other of any change within twenty-four (24) hours of such change occurring.

11. Each party must inform the other party of any serious illness or injury sustained by the child requiring admission to hospital or treatment by a specialist medical practitioner as soon as is reasonably practicable to do so.

12. The substantive Application is transferred to the docket of Judge Henderson for further mention.  

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3874 of 2014

MR NEWMAN

Applicant

And

MS SABLES

Respondent

REASONS FOR JUDGMENT

Application in a Case

1. This is an Application by the Father of a little boy named X for interim orders providing that the child should spend time with him on a regular basis. X is still only young; he was born on (omitted) 2013, so he is three years and two months old.

2. The Mother is not opposed to the child spending time with the Father, but her proposal is for significantly less time than the Father seeks.

Background

1. The parties are both 42 years of age. The Mother was born on (omitted) 1973. The Father was born on (omitted) 1974.

2. The parties were married on (omitted) 2011. There is one child of the marriage, X, who was born on (omitted) 2013.

3. The parties separated under the one roof on 3^rd March 2014 (according to the Father) or 14^th March 2014 (according to the Mother).

4. The Mother commenced proceedings in the Family Court on 24^th June 2014, seeking property orders only.

5. The Father filed a Response on 31^st July 2014, seeking both property and parenting orders. He also filed an Application in a Case, seeking interim parenting orders.

6. On 19^th September 2014, Senior Registrar Campbell made interim parenting Orders, providing that:

   a)The parties should have equal shared parental responsibility for the child;

   b)The child would spend time with the father:

   i)From 8:30 am to 12:30 pm on Tuesday and Thursday of each week;

   ii)From 2:00 pm to 6:00 pm each Sunday;

   iii)For four hours on the child’s birthday;

   iv)From 2:00 pm to 6:00 pm on Christmas Day 2014; and

   v)At other times as agreed.

   c)At all other times the child was to live with the mother.

7. On 14^th January 2015 the parties entered into final Consent Orders resolving the property issues between them. The Registrar transferred the parenting proceedings to the Federal Circuit Court.

8. The parties and the child attended a Children and Parents Issues Assessment with a Family Consultant on 11^th and 17^th February 2015.

9. On 30^th April 2015 the parties agreed that the Father would spend time with the child as follows:

   a)From 8:00 am to 12:30 pm each Tuesday and Thursday; and

   b)From 2:00 pm to 6:30 pm each Sunday.

Orders sought

1. By his Amended Application in a Case filed on 3^rd July 2015, the Father seeks orders that there should be a graduated program of time with him, in three stages:

   a)From the date of the hearing to 1 December 2015;

   b)From 2 December 2015 until 2 June 2016; and

   c)From 3 June 2016 onwards,

2. The first stage proposed by the Father provides for these times:

   a)8:30 am to 2:00 pm and 3:00 pm to 5:00 pm each Tuesday and Thursday;

   b)8:30 am to 12:30 pm and 1:30 pm to 6:00 pm each Sunday;

   c)For 10 hours on the child’s birthday with a one hour break to allow the Mother to breast feed the child; and

   d)From 9:00 am to 7:30 pm on Christmas Day 2015 with a one hour break to allow the Mother to breast feed the child.

3. The second stage, from 2 December 2015 until 2 June 2016, provides for these times:

   a)8:30 am to 5:00 pm each Tuesday and Thursday;

   b)8:30 am to 6:00 pm each Sunday “with the father to choose and advise the mother five days beforehand”[1];

   c)For ten hours on the child’s birthday; and

   d)From 9:00 am to 7:30 pm on Christmas Day 2016.

   [1] Whatever that means

4. The third stage proposed by the Father, from 3^rd June 2016 onwards, provides for these times:

   a)8:30 am on Tuesday to 5:00 pm on Wednesday of each week during the school term

   b)8:30 am on Saturday to 5:00 pm on Sunday each alternate weekend;

   c)Two periods of two days and nights from 8:00 am on the first day to 5:00 pm on the third day during the mid-year school holiday periods; and

   d)Three non-consecutive periods of seven days and six nights during the Christmas school holiday periods.

5. In her Response to an Application in a Case filed on 25^th August 2014, the Mother sought orders that:

   a)The parties should have equal shared parental responsibility for the child; and

   b)the child should spend time with the Father:

   i)from 8:30 am to 12:30 pm each Tuesday;

   ii)from 2:00 pm to 6:00 pm each Sunday;

   iii)from 2:00 pm to 6:00 pm on Father’s Day;

   iv)for four hours on the child’s birthday; and

   v)for periods of four hours on Christmas Day in each year.

6. It should be noted that the child was a month under three years old when the Response was filed.   

Evidence and Submissions

1. The Father sought to rely on the following documents:

   a)his Response filed on 31^st July 2014;

   b)his amended Application in a Case filed on 3^rd July 2015;

   c)his financial statement filed on 29^th July 2014 (no longer required);

   d)his affidavit of 29^th July 2014;

   e)his affidavit in response of 29^th August 2014;

   f)his affidavit of 31^st March 2015;

   g)his updating affidavit of 3^rd July 2015; and

   h)the affidavit of Mr V of 3^rd July 2015.

2. The mother relied on the following documents:

   a)her Reply filed on 30^th June 2015;

   b)her affidavit of 25^th June 2015;

   c)her affidavit of 22^nd August 2014; and

   d)the affidavit of Mr A of 17^th April 2015 (no longer required).  

3. Each party relied on the Child Responsive Program Memorandum of 17^th February 2015.

4. Counsel for the Father, Mr Batey, submitted that the Mother was seeking a significant reduction in the Father’s time with the child from the Orders made by Registrar Campbell on 19^th September 2014. He noted that the family consultant had observed that the child related well to each parent and had suggested that an increase in the Father’s time with the child should “progress in a gradual and incremental manner”.[2]

   [2] Child Responsive Program Memorandum 17.2.2015 page 5 paragraph [20]

5. Mr Batey further submitted that there were no negatives in the Father continuing to build his relationship with the child and there was no evidence that would cause the court concern that the child would be at risk in the Father’s care.

6. Ms Boyle of Counsel, who appeared for the Mother, submitted that the parties had poor communication skills and there was a difficulty in changeovers. The parties had difficulties in their relationship prior to separation and throughout the marriage. The Mother was still breastfeeding the child on demand, which needed to be accommodated.

7. It was further submitted that the Father was seeking quite lengthy times with the child, especially on special occasions. The Father’s proposal involved six changeovers, whilst the Mother was seeking longer hours but with fewer changeovers. The parties’ capacity to communicate is important, and the communication between the parties is poor.

Agreed or uncontested relevant facts

1. The child has lived with the Mother since the parties separated and has spent time with the Father by arrangement.

The Child Responsive Program Memorandum

1. Both parties sought to rely on this document, which is dated 17^th February 2015. The Family Consultant met with the parents individually on 11^th February and with the child X on 17^th February 2015.

2. The Family Consultant noted that the key issues appeared to be:

   a)How much time X should spend with each parent;

   b)Allegations of family violence;

   c)Allegations of substance use;

   d)Allegations of mental (ill) health; and

   e)Cultural issues.

3. The Family Consultant observed the child with each parent individually and noted that:

   Changeovers were observed as X went from Mr Sables to Mr Newman and vice versa. X greeted each parent warmly and he transferred between his parents without distress. X appeared comfortable with each parent and played with each of them with enthusiasm. Both parents appeared enthralled by X and allowed X to lead play.[3]

   [3] Child Responsive Program Memorandum 17.2.2015 page 2 at paragraph [10]

4. The Family Consultant referred to various risk factors raised by the parties:

   a)The Mother alleged, but the Father denied, that the Father had been verbally and sexually abusive towards her and that the child had been negatively treated by being exposed to verbal abuse from the Father towards her;[4]

   b)The Mother alleged but the Father denied that the Father had acted in a physically forceful and angry manner towards the child, which led to a mandatory notification being made by her domestic violence counsellor in 2014 when the Father allegedly shook the child;[5]

   c)The Mother alleged but the Father denied that the Father’s alcohol use was excessive during the parties’ relationship and she expressed a concern about the Father’s ability to care for the child for this reason;[6]

   d)The Father described the Mother as:

   …an anxious, paranoid and controlling person, who would restrict his time with X, made it difficult for him to spend time with his family, and would respond in an immature and inappropriate manner when upset.[7]

   [4] Child Responsive Program Memorandum 17.2.2015 page 3 at [11]

   [5] Ibid at [12]

   [6] Ibid at [13]

   [7] Ibid at [14]

5. The child’s emotional well-being was also raised by the Mother, who stated that the child was displaying “antisocial, clingy, and self-harming behaviour during the relationship (as a result of X witnessing Mr Newman verbally abusing her) and that this behaviour has increased since X has been spending more time with Mr Newman.[8]

   [8] Ibid at [15]

6. The Father denied this allegation, describing X as a “happy and easy going child”.[9]

   [9] Ibid

7. The Family Consultant noted that the parental relationship appeared to be “mistrustful”. She also noted that the Mother attended changeovers accompanied by members of her extended family, which caused some difficulties.

8. The Family Consultant recommended that:

   a)the Court may want to consider the appointment of a child and family psychiatrist to assess the family (this has now been done and a Psychiatric Report from Dr C is now to hand[10]);

   b)If there are any changes to the current parenting arrangements:

   …they should progress in a gradual and incremental manner;[11] and

   [10] The Report was not considered for the purpose of this decision as it was not available at the time the parties’ Counsel made their submissions

   [11] Ibid at [20]

9. It would be in the child’s best interests that changeovers occur in the presence of the parents only.

The Relevant Law in regard to Parenting Applications

1. When the Court is considering making parenting orders, whether final orders or orders until further order (i.e. interim orders), it must have regard to various sections of the Family Law Act 1975 (Cth) that are to be found in Part VII of the Act. In particular, the Court should have regard to:

   a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;

   b)Section 60CA, which requires the Court to regard the best interests of the child as the paramount consideration;

   c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;

   d)Section 61DA, which deals with the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child; and

   e)Section 65DAA, which requires the Court to consider equal time or substantial and significant time with each parent where an order has been made that the parents should have equal shared parental responsibility for the child.

2. All of those matters have been considered so far as they are relevant.

Relevant matters in section 60CC of the Family Law Act

1. The Full Court of the Family Court of the Family Court in Goode & Goode[12] held that a Court at first instance should consider the matters in s.60CC that are relevant and, if possible, make findings about them, noting that:

   (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place)[13].

   [12] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

   [13] (2006) 36 Fam LR 422 at 445 [82]

2. In this instance, as is so often the case in interim hearings, the issues really concern the two primary considerations in subsection 60CC(2), being on the one hand the benefit to the child of having a meaningful relationship with both of his parents and, on the other, the need to protect the child from physical or psychological harm from abuse, neglect or family violence. The Court is required by s.60CC(2A) to give greater weight to the latter consideration.

3. The evidence of the Family Consultant in the Child Responsive Program Memorandum is that the child appears to have a warm and loving relationship with both of his parents. It would appear, therefore, to be in his best interests for these relationships to develop further. This would mean that he should spend more time with his father, but this will require that he must be protected from physical or psychological harm from abuse, neglect or family violence.

4. Whatever the circumstances were when the parents were together, the fact that the parents are now separated should mean that the risk of family violence by the Father to the Mother has abated. There is no strong evidence to suggest that the child would be at risk if he were to spend more time in the care of his father.

5. The Mother has raised concerns about the Father’s consumption of alcohol, and how it may have a negative effect on his ability to look after his son when the child is in his care. Whilst the Father denies excessive use of alcohol, it should not be too burdensome for him to abstain from the consumption of alcohol whilst the child is in his care or immediately beforehand.

6. It would appear that it is in the child’s best interests for there to be a gradual and graduated increase in his time with his father. However, the Mother’s point about the number of changeovers proposed by the Father has some force. As the communication between the parents is not good, the number of changeovers should be reduced to a minimum. There appears to be some force in the Family Consultant’s recommendation that the parties should not be accompanied by extended family members at changeover.

Equal Shared Parental Responsibility and section 61DA of the Family Law Act

1. The Court is required to decide whether the presumption in s.61DA of the Act that equal shared parental responsibility is in the child does or does not apply.

2. The Father, in his Amended Application in a Case filed on 3^rd July 2015 does not seek any order about parental responsibility. However, the Mother seeks such an order in her Response to an Application in a Case filed on 25^th August 2014.

3. Whilst subsection 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence, it is noteworthy that the Mother seeks such an order, notwithstanding the fact that she is the party who has alleged family violence by the Father.

4. I propose to make an order until further order that the parents should have equal shared parental responsibility for the child. It is the case that s.61DB of the Act provides that if there is an interim parenting order in relation to a child, the Court must, in making a final parenting order, disregard the allocation of parental responsibility made in the interim order. This means that at a final hearing the allocation of parental responsibility must be considered afresh.

Section 65DAA of the Family Law Act

1. Section 65DAA of the Act requires the Court, if it has made an order that the parties are to have equal shared parental responsibility for the child, to consider whether:

   a)the child spending equal time with each of the parents would be in the best interests of the child; and

   b)the child spending equal time with each of the parents would be reasonably practicable.

2. I am not satisfied that equal time with each parent would be either in the best interests of the child or reasonably practicable. This little boy is too young and there is a need for the establishment of more time with his father. The poor communication between the parents is also a contra-indication.

3. The same reasons apply to the consideration required under s.65DAA(2), whether substantial and significant time with each parent would be both in the child’s best interests and reasonably practicable.

Orders that are in the child’s best interests

1. I am satisfied, though, that there should be a graduated increase in the time that this child spends with his father. The orders will not be as far-reaching as the Father seeks, but slightly more than the Mother has proposed. The number of changeovers will be kept to a minimum to avoid conflict between the parents, which would not be in this child’s best interests. Parental conflict in the presence or hearing of a child can be destabilising and distressing to a child.

The future progress of this matter

1. Due to the fact that I have no longer any dates available for final hearings, as I will be retiring in July, the matter will be transferred to the Case Management Judge in this Registry for reallocation to another Judge.         

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date: 4 April 2016