NEWTON & NEWTON

[2019] FCCA 2822

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEWTON & NEWTON [2019] FCCA 2822

Catchwords:
FAMILY LAW – Parenting – first return – urgent listing – spend time with arrangements – where the father has not spent time with the child for 8 months.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60I

Cases cited:

Goode & Goode (2006) FLC 93-286
Banks & Banks (2015) FLC 93-637
Eaby & Speelman (2015) FLC 93-654

Applicant: MR NEWTON

Respondent: MS NEWTON

File Number: SYC 5421 of 2019

Judgment of: Judge Morley

Hearing date: 16 September 2019

Date of Last Submission: 16 September 2019

Delivered at: Sydney

Delivered on: 16 September 2019

REPRESENTATION

Solicitors for the Applicant: Ms Di Marco of Heras Law

Solicitors for the Respondent: Mr McEwan of Miller & Young Solicitors

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1. Within 3 days, the mother do all things necessary to have the Skype App installed on whatever device [X] will receive communication from her father, pursuant to orders to be made today and to maintain that Skype App on whatever device will be used for communication between father and child, pending further orders.

2. The father communicate with the child [X] born … 2011, each Tuesday, Thursday and Saturday at some time between 6:00pm and 7:00pm, by his choice of telephone call, use of the WeChat App or use of the Skype App, those Apps both providing opportunity for video calling, and in that regard, the father is to initiate the communication, and in that regard the mother is to provide to the father through his solicitors detail of her mobile telephone and any Tablet or computer available to the child while residing with the mother that can be utilized for WeChat and Skype communication.

3. The proceedings are listed for interim hearing on the issue of the time, if any, that the father should spend with the child [X], and if time is to be spent, on what, if any, conditions, at 3:00pm on 8 October 2019.

4. The Respondent is to file and serve by 4.00pm on 1 October 2019 any Response pursuant to rule 4.03(1) and (2) of the Federal Circuit Court Rules 2001, and on filing such Response is to also file and serve with the Response an Affidavit that complies with rule 4.05(1) of the Federal Circuit Court Rules 2001.

5. A B language interpreter is requested to be made available for the assistance of the mother at the interim hearing at 3:00pm on 8 October 2019.

6. The Applicant father file and serve a further affidavit correcting some typographical and date errors in his affidavit, and annexing all documents referred to in that affidavit, by 4:00pm on 20 September 2019.

THE COURT NOTES:

A.The Court is advised on behalf of the Respondent mother that she has made application for a grant of Legal Aid and that the result of that application is not yet known, and nevertheless, the direction for the mother to file documents in preparation for the next occasion is made in full knowledge that she is still awaiting her grant of Legal Aid.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5421 of 2019

MR NEWTON

Applicant

And

MS NEWTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings commenced by an Initiating Application filed for the Applicant father (“the father”) on 19 August 2019, pursuant to which leave was granted to list the application today as the first return date and direction made for service of the documents on the Respondent mother (“the mother”) by 21 August 2019 by 4:00pm. 

2. The father filed an Affidavit of Service, indicating that the Initiating Application, affidavit of Mr Newton, sworn 14 August 2019, Notice of Risk filed with the Application, the required brochure, being ‘Marriage, Families and Separation’ under the Federal Circuit Court Rules 2001 and a letter from the father’s solicitors, were all served on the Respondent mother on 24 August 2019 at 7.20am at Location C, Town D.

3. Attached to that Affidavit of Service, which was sworn by Mr E, but no occupation was given, is an Acknowledgement of Service form, dated 24 August 2019. 

4. Mr E deposes in his affidavit that he said to the person served:

   Are you Ms Newton?

5. To which the female replied:

   Yes

6. That person signed the Acknowledgement of Service form. 

7. In the father’s affidavit filed with the Application, he indicates that the parties were in a cohabitive relationship from May 2009 until early 2015, and they were married on … 2009.  The parties were divorced sometime in 2016.  The child of their relationship, [X] (“[X]”), was born on … 2011, making her seven years and … months of age at the present time. 

8. The parties attended Family Dispute Resolution on 6 June 2015, and a parenting plan was produced as a result of that Family Dispute Resolution mediation. It is referred to in the affidavit as ‘Annexure B’ but is not Annexure B to the affidavit. The father deposes that the mother did not comply with the arrangements set out in the referred to parenting plan.

9. The father deposes that for a period of time from 2016 until June 2018, he was homeless due to his financial circumstances.  As a consequence, there were long periods of time when the father did not have any contact with the child, [X]. The father does not specify the occasion with dates; he simply indicates that for a period of about three months, he was residing with a good friend of his named ‘Mr F’ and that during that period of time, the mother agreed for [X] to spend overnight time with the father, from midday Friday until Sunday afternoon. 

10. The father deposes that on other occasions, the father spent time with [X] on Saturdays at the mother’s home at Town D. 

11. The father deposes that in May 2019, with the assistance of an organisation, he moved into accommodation at Location G, Town H, being a two-bedroom unit.  The father deposes that in June 2019, he organised for an appropriate bed to be provided in the second bedroom of that unit. 

12. The father’s affidavit evidence seems to have come upon an inconsistency at that point, speaking about moving into Town H in May 2019, conflicting with the previous paragraph, which talks about that accommodation being found for him in May 2018.  I take it to mean from the affidavit that his accommodation in Town H commenced in May 2018.

13. After obtaining the accommodation at Town H in May 2018, the father deposes that an arrangement was made with the mother for him to spend time with [X] each weekend, from after school on Friday until 3:00pm on Sunday, with the parties meeting at Location I to effect changeovers. The father deposes in his affidavit that following an argument between the parties at a changeover about financial issues, in December 2019, but logically it must refer to 2018, any contact between [X] and the father ceased.

14. On 2 July 2019, the parties attended Family Dispute Resolution with a Family Dispute Resolution practitioner who certifies, pursuant to section 60I of the Family Law Act 1975 (Cth) (“the Act”), that both parties attended the Family Dispute Resolution and both made a genuine effort to resolve the issues in dispute. The issue of the certificate, pursuant to the legislation, indicates that no agreement was reached, because the certificate is not to be issued in a matter where agreement is reached between the parties.

15. The father deposed in his affidavit that when he was 19 years of age he was diagnosed with bipolar disorder Type 1. He deposes that when he is compliant with medication and his medication is working, the disorder does not impact on his day-to-day functioning.  However, he deposes when medication is not working or he is not compliant with his medication, he can have difficulties, including becoming paranoid, and difficulties relating to people.  The father deposes that he attended at his current treating medical practitioner in August 2019, received a prescription, and that he is compliant with that medication. 

16. Upon the matter coming before the Court today on the first return date, no Response or affidavit has been filed by the mother.  The mother is represented before the Court today by Mr McEwan, who has properly filed a Notice of Address for Service in the matter.  Mr McEwan has not had opportunity to date to take full instructions from his client, or to prepare documents be filed on her behalf in compliance with the rules in the event that she seeks to be an active party and contest this matter. 

17. However, it is very close to the expiry of time provided under the Federal Circuit Court Rules 2001 for the filing of any Response and affidavit following service of the documents. 

18. On the father’s evidence, there has been a complete breach in his relationship with [X] since December 2018. The Court is informed very properly by Mr McEwan from the bar table today, on behalf of the mother and on instructions, that the father has not had any contact with the child [X] since January of 2019.  It being now September of 2019, that is a breach of some eight months, at the least, in the relationship between father and child. 

19. Whilst there is no evidence before the Court at the present time in relation to a risk to the child in the care of the father, whether during daytime only or overnight, the Court is advised by Mr McEwan that he has instructions that will lead to the filing of documents on behalf of the mother that will address matters of risk. 

20. On that basis, consent is sought by the Court to there being three opportunities per week for the father to have communication with [X] by his choice of telephone, an application known as ‘WeChat’ or the application known as ‘Skype’. Such communication is proposed to be on Tuesday, Thursday and Saturday, between 6:00pm and 7:00pm. 

21. It is indicated by Mr McEwan, properly on behalf of the mother, that his instructions are that she will agree to two occasions per week, but not three.

22. On the basis that any risk to be asserted by the mother to the child from spending time with or communicating with the father would, presumably, be the same risk that applies to two occasions per week, of pure communication, as it would apply to three occasions per week, of pure communication, I find in the best interests of [X] to make an order that she communication with her father on three occasions per week, pending the making of interim orders following an interim hearing of this matter to take place on 8 October 2019, at 3:00pm. 

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. In making any parenting order, the Court is obliged by the Act to determine what order is best to be made in the best interests of [X] by considering the matters set out in section 60CC of the Act, which are the primary considerations in subsection (2) of that section, being the benefit to [X] of having meaningful relationship with both of her parents. There is nothing before the Court to indicate that [X] would have anything but a meaningful relationship with her mother, and so I need not address that in any detail.

2. The evidence before the Court from the father, and noting that the Court at present has no evidence from the mother, indicates that there has been a relationship between the father and [X], though the level of that relationship cannot be ascertained from the evidence, and that is no criticism whatsoever of the father or his legal advisors, because he has simply detailed the opportunity he has had since the parties separated in 2015 to spend time with [X]. The father indicates that there have been long periods of time during the time since separation, when he has been unable to spend time with [X] due to his own circumstances. 

3. It is of great concern to the Court that the relationship between father and child has been in abeyance for the period of at least eight months, and for a child who, during that period of time was nearly seven years of age and is now a month off turning eight years of age, a hiatus of eight months in relationship with a parent can have a very serious and even damaging effect on the level and depth of the relationship between parent and child.

4. It is with that concern in mind, that the Court is considering making orders in relation to communication between father and child pending an interim hearing. 

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

1. The second primary consideration is the need to protect [X] from any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. 

2. As said earlier in these short reasons, the mother’s indication that she is prepared to agree to an order proposed by the Court that the father communicate with the child on two occasions per week would indicate that any risk that attaches to communication between the father and the child is not such that it should prevent that communication, and any reason why the child can communicate with the father on two occasions per week but would encounter greater risk, if she was communicating with the father on three occasions per week, would not seem to stand to any logic.

3. I find that the benefit to [X] of having a meaningful relationship with her father and re-establishing that relationship in even the most limited way by contact three times a week is not outweighed by any need to protect [X] from being exposed to any physical or psychological harm from family violence, abuse or neglect. Accordingly, I find that the weighting requirement in subsection (2A) of section 60CC does not require me to refrain from making suggested orders for contact between father and child.

Additional Considerations

1. In relation to the additional considerations, the Full Court of the Family Court of Australia said in Banks & Banks[1] and in various other cases of recent time, including Goode & Goode[2] and Eaby & Speelman,[3] that in considering the additional considerations the Court does not have to give attention to each and every one of those considerations or to give them attention in any specific order, but should give attention to such of them as are relevant to the proposed parenting orders under consideration.

   [1] Banks & Banks (2015) FLC 93-637.

   [2] Goode & Goode (2006) FLC 93-286.

   [3] Eaby & Speelman (2015) FLC 93-654.

2. Accordingly, the Court notes that the Court has no evidence before it yet of any views expressed by [X], and has only very limited evidence in relation to the nature of the relationship between [X] and her mother. There is no question before the Court that casts any doubt on that relationship, nor is there any circumstance that would be caused by the orders under contemplation of being made that would harm that relationship.

3. The nature of the relationship between [X] and her father is of great concern to the Court in that there has been, as said, the eight month hiatus, and it is based on getting that relationship reconnected in, even in a limited way, that the Court contemplates making the orders under review. 

4. The Court has, virtually, no evidence on which it could make any proper consideration of the parenting-capacity of either of the parties or matters going to maturity, sex, lifestyle and background of [X] or either of the parents. 

5. In relation to the likely effect of any change in [X]’s circumstances, including the likely effect of any separation from either of her parents or any other significant person, the Court considers that the separation of at last eight months that has occurred between [X] and her father is a reason why an order should be made today and not delayed until a proposed interim-hearing date, so as to re-establish contact between father and child so that no more time goes past without any form of relationship being re-established between father and child. 

6. The Court is not given any indication that [X] has any Indigenous connection, nor am I given any evidence before the Court today in relation to family violence issues. 

7. It is proposed to set this matter down for what in effect is an extremely urgent interim hearing at 3:00pm on 8 October 2019, a day on which the Court has at least one final hearing listed, so that once documents are filed by the mother, some attention can be given to re-establishing the father and child spending time with each other, subject to any appropriate risk to be taken into account by the Court and dealt with, whether by way of appropriate orders or by further investigation before time between father and child would recommence. 

8. Accordingly, I make the orders as set out at the start of these reasons.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Morley

Associate: 

Date:  4 October 2019