Noakes and Cullen and Ors
[2016] FCCA 1815
•26 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NOAKES & CULLEN & ORS | [2016] FCCA 1815 |
| Catchwords: FAMILY LAW – Parenting – interim dispute over arrangements for 5 year old child – where all parties have reached agreement as to interim arrangements – where ICL refuses to consent to the agreement – where ICL with the support of recommendation of the family report writer argues that time with the biological father should increase at the sacrifice of time with the biological mother and stepfather – Held that the arrangements reached by the parties reflect the arrangement which is in the child’s best interests and interim orders made as per that arrangement. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, Pt VII |
| Cases cited: Goode & Goode (2006) FLC 93-286 Harris & Caker [2010] FAMCA 1046 Mazorski & Albright (2008) 37 FamLR |
| Applicant: | MS NOAKES |
| First Respondent: | MR CULLEN |
| Second Respondent: | MR NOAKES |
| Intervenor: | MS PENFOLD |
| File Number: | BRC 7626 of 2011 |
| Judgment of: | Judge L. Turner |
| Hearing date: | 16 June 2016 |
| Date of Last Submission: | 16 June 2016 |
| Delivered at: | Brisbane |
| Orders pronounced on: | 7 July 2016 |
| Reasons provided on: | 26 July 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Northside Lawyers & Consultants |
The First Respondent appeared in person
| Solicitors for the Second Respondent: | Gary Rolfe Solicitors |
| Counsel for the Intervenor: | Ms Galbraith |
| Solicitors for the Intervenor: | Hm Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr George |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Queensland |
ORDERS
That the undertaking provided by Ms L on 30 October 2015 be discharged.
That the child X born (omitted) 2011 lives with the Intervenor MS PENFOLD.
That the child spends time with each of the other parties on a 9-week rotating cycle as outlined in Annexure “A” to these Orders.
That the child also spend time with Mr Cullen each third Monday each month commencing Monday 4 July 2016, with the Mr Cullen to collect the child from the mother’s residence at 8:15am on Monday morning and deliver the child to school and collect the child from school at 2:30pm and return to the mother’s residence at 4:30pm.
That for the purpose of the mother’s time with the child, the time will be supervised by her mother, Ms E and except as otherwise agreed, Ms Penfold will drop X to Ms B’s residence at the commencement of time and collect X at the conclusion of time.
That for the purpose of Mr Noakes’s time with the child, the time will be supervised by his mother Ms L with changeover to occur at (omitted) in (omitted).
That if any party cancels or does not attend (other than Ms Penfold) the stipulated or agreed times then there will be no make-up time.
That if Ms Penfold cancels the visit, Ms Penfold will provide a reason and/or a medical certificate (if the child is sick) to the other party who was to spend time with the child.
That if Ms Penfold cancels the visit, Ms Penfold will use her best endeavours to provide made up time to the other party as soon as reasonably practicable.
That during the time the child is with any party, that party shall:
(a)respect the privacy of the other party and not question the child about the personal life of the other party; and
(b)speak of the other parties respectfully.
That each of the parties is restrained from discussing adult issues between the other parties with the child, or within the hearing of the child.
That Ms Penfold, Ms Noakes, Mr Noakes and Mr Cullen each have authority to contact the child’s school and obtain at their cost any information regarding the child’s progress at school including photos, school reports and newsletters.
That Ms Penfold, Ms Noakes, Mr Noakes and Mr Cullen are each permitted to attend all parent/teacher interviews, sports days and any extra-curricular activity involving the child that parents are invited by the school to attend, provided that each party shall be of good behaviour to the others.
That Ms Penfold, Ms Noakes and Mr Cullen are each authorised by these Orders to obtain, at their request and cost from the child’s medical or other allied health providers, any information or reports relating to the child.
That each party be at liberty to attend all extra-curricular and school activities attended by the child including but not limited to Easter hat parades, sports carnivals and events, award ceremonies and soccer provided that the parties conduct themselves in an appropriate manner.
That the parties agree to only attend the child’s soccer on their weekend with the child unless otherwise agreed.
That each party be restrained insulting or denigrating the other parties in the presence of hearing of the child and each party will ensure that any other person abides with this injunction.
That Mr Noakes will continue to receive ongoing treatment with Mr A.
That each party will read document P-4 to Ms Penfold’s affidavit, filed 29 May 2016 and use their best endeavours to comply with that document when caring for X.
That each party is authorised to contact the Child Development Unit at (omitted), to discuss X’s development needs.
That pursuant to Section 62G of the Family Law Act 1975 the parties and the child X born (omitted) 2011 attend upon a Family Consultant, as appointed by the Senior Family Consultant of the Federal Circuit Court of Australia, on a date and time to be advised, for the purposes of the preparation of a family report to be made available to the Court.
That in addition to reporting any matters that the Family Consultant considers important to the welfare of the child and the factors contained in s.60CC of the Act the following opinions should be included:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
(b)that the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the child.
That it should be noted a child should not be required to express his or her views in relation to any matter but in the event that a child does express views, the Family Consultant should also canvass and report the views and likely consequences of and for the child if the Court did not reach a conclusion which accorded with the child’s views.
That the Federal Circuit Court of Australia be responsible for payment of the cost of preparation of the Family Report.
That the Family Consultant shall have leave to inspect subpoenaed documents produced to the Court.
That upon the Report being provided to the Court, the Court will release a copy to each party (or if represented, to the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
That unless a party objects, in writing, within fourteen (14) days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so, for a purpose related to the care, welfare or development of the child to whom these proceedings relate:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
That this matter be adjourned for Mention at 9:30am on 16 December 2016 in the Federal Circuit Court of Australia at Brisbane.
IT IS NOTED that publication of this judgment under the pseudonym Noakes & Cullen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 7626 of 2011
| MS NOAKES |
Applicant
And
| MR CULLEN |
First Respondent
| MR NOAKES |
Second Respondent
| MS PENFOLD |
Intervenor
REASONS FOR JUDGMENT
Introduction
The applicant and the first respondent are the biological parents of X, aged five years.
The second respondent and the intervenor are the step-parents of X.
At the final hearing in this matter (which was listed in June 2016) the parties reached interim agreement as to the future parenting arrangements for the child.
However, the Independent Children’s Lawyer (ICL) refused to agree to the order, putting forward a proposal which increased X’s time with her biological father but at the detriment of her time with her biological mother and her stepfather, whose frequency of spend time with periods with the child would be significantly reduced.
The family report writer, although an interview with the child had not occurred for some eight months, in essence, supported the proposition of the ICL.
Issue
The issue for determination is whether the court makes orders on an interim basis which reflects the parties proposals, which reflect the ICL’s proposal, or whether another order be made by the court.
Evidence
In determining this issue regard has been had to:-
a)The material as marked on the Court file.
b)The family reports and the oral evidence of the family report writer.
c)The oral submissions of the parties.
d)Part VII Family Law Act 1975.
e)The Full Court decision of Goode & Goode (2006) FLC 93-286 which sets out the pathway to follow at interim hearings and warns against making findings on disputed facts.
f)Other relevant authorities.
All parties, except for Mr Cullen, who is the biological father, are legally represented.
The only cross-examination that occurred was that of the family report writer.
Mr Cullen chose not to cross-examine the family report writer.
Otherwise the decision has been made based on the material filed and the submissions.
Findings of fact are made on the balance of probabilities, having regard to the evidence and in what follows statements of fact constitute findings of fact.
Before considering this issue it is useful to capture the relevant history of this matter.
Relevant facts
The stepmother is aged 28 and is in receipt of a Centrelink payment.
The biological father is aged 34 and is employed.
The stepfather is aged nearly 29 and is in receipt of Centrelink payments.
The biological mother is aged nearly 27 and is in receipt of Centrelink payments.
In 2010 the biological mother and the stepfather commenced cohabitation.
In 2010 the biological mother and the stepfather married.
Just prior to the child’s birth, the biological mother and the stepfather separated.
In (omitted) 2011 the child, X, was born and the stepfather assumed that X was his biological child.
In mid-2011 the stepfather commenced living with the stepmother.
At two months of age the stepfather took X in to his care.
In October 2011 final parenting orders were made by consent between the biological mother and the stepfather whereby:-
a)X live with the stepfather;
b)The stepfather and biological mother have equal shared parental responsibility for the child; and
c)The biological mother spend short daytime periods with the child supervised by the maternal grandmother and the step-paternal grandfather with time to become unsupervised once the biological mother provided clear drug screen tests.
In November 2011 the biological mother, through her lawyers, sent correspondence to the father “doubting and disputing the fact that you are the biological father of the child and requesting DNA testing.”
From 2011 the mother spent short supervised visits with X which, over time, resulted in unsupervised day visits.
In 2012 the biological mother lost a child through stillbirth.
In 2012 the stepfather ceased the biological mother’s time with the child.
In early 2013 court proceedings were reopened by the biological mother who was seeking weekend time, holiday time and special event with the child.
In April 2013 the stepfather and biological mother entered in to interim consent orders whereby the mother spend supervised time with the child at a contact centre.
In June 2013 the first family report was released by Ms L which recommended that X live with the stepfather and spend supervised time with the biological mother and it was further recommended that the stepfather and the biological mother undergo psychiatric assessment.
In October 2013 the ICL was appointed.
In November 2013 interim orders were made for the biological mother’s time with the child to be supervised by the grandparents and for DNA testing to occur.
In March 2014 the biological mother and the stepfather divorced.
In May 2014 Dr D, psychiatrist, released a psychiatric report for the biological mother and stepfather.
In respect to the biological mother, it was assessed that there was “no evidence of any major mental illness.”
The same assessment was made of the stepfather.
The following recommendation emerged from the report:-
a)“Given the about formulation it would not be my view that either parent would be deprived of the capacity to make long-term decisions with respect to the child as a result of psychiatric illness.”
b)“It would not be my view that the mother would be at significant risk of harm to the child whilst the child was in the care of the mother unsupervised or on a supervised basis as long as the mother was not under the influence of substances whilst caring for the child.”
c)“With respect with the father, I note that there were no significant concerns that the child has been harmed whilst in the primary care of the father, except insofar as the father may be challenged in supporting the relationship of the child with the mother.”
In or around mid-2014 the stepmother and the stepfather separated but continued to live under the one roof with X; with the stepmother being primarily responsible for the care of the child.
In July 2014 DNA tests were ordered in respect to Mr C, a person named by the biological mother as being a possible biological father.
DNA test results show that neither Mr C nor the stepfather were the biological father to the child.
In October 2014 it was suggested that Mr Cullen may be the biological father of the child.
At this time the mother was spending time with the child for two hours every two weeks supervised.
In October 2014 the stepmother was given leave to intervene in the proceedings.
In November 2014 Dr S, released her neuropsychological assessment for the biological assessment for the biological mother where the following findings were made:-
a)“On current assessment Ms Noakes’ intellectual functioning fell in the extremely low range.”
b)“In summary, I do not think that Ms Noakes has the capacity to independently parent X. I think she will find it difficult to prioritise X’s welfare. I think that although she has the best of intentions by reason of her impaired intellectual functioning combined with the other problems noted she will have difficulty transferring these intentions in to an action independently. I think that Ms Noakes will always need assistance in caring for X and I do not think that Ms Noakes could independently care for X. I think that this will require consistent support.”
In November 2014 the stepmother and the stepfather physically separated with X staying in the primary care of the stepmother.
In November 2014 the stepmother filed her response seeking orders whereby the child live with the stepmother and spend supervised time with the biological mother and overnight time and special event time with the stepfather.
In November 2014 the stepmother and the stepfather entered in to a parenting plan whereby the stepmother provide the biological mother with time with X.
Since November 2014 the stepfather has been spending overnight with the child.
In December 2014 the biological mother filed a Notice of Child Abuse alleging that X was at risk of family violence in the household of the stepmother and the stepfather.
In January 2015 the mother filed a copy of a Domestic Violence Order (DVO) attained by the stepmother against the stepfather which included the child X and provided for good behaviour by the stepfather.
In or around January 2015 it emerged that Mr Cullen was the biological father for X.
In January 2015 leave was given at the stepfather’s request for the stepfather to withdraw from the proceedings and for the biological father to join the proceedings and a further family report was ordered.
In February 2015 the biological father filed a response seeking time with the child together with an affidavit explaining that the biological father is in a long-term homosexual relationship and that the child was conceived as a result of an isolated encounter with the mother whilst the biological father was inebriated.
As at February 2015 the biological father had not met X and deposed at [11] of his affidavit “I understand that X has known Mr Noakes to be her father and the psychology of me becoming part of her life is certainly going to be a long journey” and at [13] “I am not joining these proceedings to fight for custody of X.”
In April 2015 the second family report was prepared by the family consultant Ms J.
The stepfather did not attend the family report interviews.
It is noted in the report that X remains of the understanding the stepfather is her father [14] and that the child refers to both the stepmother and the biological mother as Mum [15].
The family report writer further captured the following:-
a)“Mr Cullen was seeking to spend time with X and as yet does not have a firm view of how this might be structured. Mr Cullen indicated a preference for his time with X to be flexible and as agreed between the parties” [21].
b)“Mr Cullen is working fulltime on a shiftwork basis for which he receives his roster two months in advance” [20].
c)“Ms Penfold is seeking that X live with her and continue to spend supervised time with Ms Noakes as per the current arrangements. Ms Penfold indicated a preparedness for X to spend time with Mr Cullen and to remain flexible to facilitate such time independently” [23].
As to the observations of the child with the adults it was noted by the family report writer that:-
a)“X was observed to notice Ms Noakes but shows some delay in responding to her presence … After a short time X greeted Ms Noakes with a big smile and a big hug and frequently accompanied her to the observation room.” [74]
b)“X was observed to be easily engaged in play and was quite talkative with Ms Noakes. Ms Noakes was observed to provide much age appropriate encouragement to X. From engaging particular activities Ms Noakes was observed to be age-appropriate in all interactions of X.” [75]
c)“Ms Penfold was observed to engage with X in a very age-appropriate way and X was observed to interact well with Ms Penfold. X was observed to seek physical proximity at times and continued to be quite talkative during her play with Ms Penfold.” [79]
d)“Overall X was observed to be an easygoing child was able to manage her behaviour and emotions throughout the day. There were no discernible differences in X’s behaviour when spending time with any of the above adults other than signs of recognition and preference for Ms Penfold whom she likely regards as her mother.” [82]
As to the introduction of Mr Cullen to the child, the family report writer noted the following:-
a)“Ms Penfold was observed to explain to X that she would be meeting her ‘second dad’ and explained to X that she has two dads just like she has two mums. X was observed to be quite non-responsive to this information making no verbal responses and indicating that she wanted to continue playing.” [79]
b)“Mr Cullen was introduced to the observation and Ms Penfold was observed to make appropriate introduction. X was observed to be quite squirmy indicating a desire to be playing rather than talking.” [82]
c)“Mr Cullen was observed to play with X in a very child-focused way allowing X to be quite directive in her play. Mr Cullen engaged with X in much imaginative play and X was observed to behave as though she was quite comfortable in his presence.” [81]
In evaluation the family report writer commented:-
a)“the issue of X spending time with her other parental figures does not appear to be in dispute. However, by virtue of the large number of people in X’s life, there’s a possible risk that X will become overwhelmed with an obligation to maintain frequent contact with each of them.”[83]
b)“With regard to contact, it is clear that X has built a relationship with Ms Noakes over time and it is considered important that this relationship be able to develop.”[92]
c)“It is my assessment that Ms Penfold has a high level of commitment to X and a good insight into X’s developmental and emotional needs.”[94]
d)“Regarding Mr Cullen’s application to spend time with X, this assessment has been unable to identify any reasons why this should not occur. In the absence of any concerns identified by the writer and the absence of any concerns raised by any party, it is considered appropriate that X begin to spend time and develop a relationship with her biological father.”[95]
e)“It is my opinion that X have the opportunity to spend time with Mr Cullen for approximately two hours twice a week.”[96]
f)“For X’s emotional security, it is again my suggestion that Ms Penfold remain in attendance for the first three visits between X and Mr Cullen, in order that X develop a sense of trust and familiarity with Mr Cullen.”[98]
g)“Due to the large number of people seeking to be involved in X’s life and the number of changes X has already been subjected to, it is my opinion that X would benefit from stability in her primary placement. In light of X’s agreed placement history to date, it is likely that Ms Penfold is X’s primary attachment figure.”[101]
h)“It is my opinion that this relationship should be maintained in order to increase the likelihood that X will develop strong and enduring attachment relationships with the other important parental figures in her life.”[101]
The family report writer recommended that:-
a)The child live with the stepmother.
b)The child spend three hours each fortnight with the biological mother.
c)The child spend regular and frequent time with the biological gather such as twice weekly visits for a total of two hours each with additional time as agreed.
d)The child spend time with the stepfather as agreed with by the stepmother.
In May 2015 the parties entered into interim parenting orders whereby:-
a)the step-father be reinstated in the proceedings;
b)the step-mother have sole parental responsibility for the child and the child live with the step-mother; and
c)the child spend time with her biological father and her step-father and biological mother as agreed, or failing agreement, with the biological mother for supervised visits at a contact centre.
In or around May 2015 the step-father’s time with X ceased.
In June 2015 the step-father filed an amended response seeking equal shared parental responsibility with the stepmother for the child and overnight time, holiday time and special event time with the child.
In August 2015 the biological mother gave birth to a girl, Y, the father being her current de facto.
In October 2015 a Court order was made for a neuropsychological assessment of the stepfather and for interim orders for the stepfather to spend time with the child.
In October 2015 the third family report was released by Ms J.
As at the date of the family report interviews, the following arrangements were in place for the child:-
a)The child was living with the step-mother.
b)The child was spending two hours each fortnight supervised time with the biological mother.
c)The child was spending three hours each fortnight with the step-father, supervised by the step maternal grandfather.
d)The child was spending regular time with the biological father, supervised by the step-mother.
Observations were conducted by the family report writer, where it was noted in the family report that:-
a)“There were no significant observable differences in X’s behaviour during any of the observation sessions. With all adults, X was observed to engage in imaginable play and to maintain a steady stream of conversation. All adults were observed to be very responsive to X, taking her lead and engaging with her at her level. X appeared comfortable and at ease with each of the parental figures in her life.”[84]
b)“Overall, X was observed to be an easy going and amenable child who was mostly able to manage her behaviour and emotions throughout the very long day of the interviews.”[86]
In evaluation, the family report writer reiterated her concerns that “by virtue of the large number of people in X’s life there is a real risk that X will become overwhelmed with an obligation to maintain frequent contact with each of them.”[87]
The family report writer noted that “X displayed a level of familiarity with all parental figures and displayed limited behavioural changes when engaging with a wide range of adults on the day of the interview.”[89]
The family report writer observed that “Overall, X is very fortunate to have a large network of biological and psychological parents and respective extended family members within a close geographical distance. It is clear to me that all of these people care for X a great deal.”[89]
The family report writer concluded:-
a)“This assessment has not identified any risk to X’s safety or wellbeing in the care of Ms Penfold … It is my assessment that Ms Penfold has a high level of commitment to X. I did not identify any problems with Ms Penfold’s parenting capacity or her ability to facilitate X’s ongoing relationships with other parental figures.”[91]
b)“Likewise, there appears to be no dispute that Mr Cullen’s relationship with X is developing well and this relationship is a positive influence in her life. There were no concerns raised by any party as to his ability to provide for X or to meet her needs. It is clear that Mr Cullen is dedicated to X and that her relationship with him is progressing well. Mr Cullen appears to be productive in his role as a new father, as evidenced by his action to enrol in parenting courses and improve his knowledge and be a consistent and regular presence in X’s life.”[92]
c)“Overall, this assessment has not identified any risks to X’s safety or wellbeing in the care of Mr Cullen. It is similarly my assessment that Mr Cullen has a high level of commitment to X and is motivated to gain a thorough understanding of her developmental and emotional needs. I did not identify any issues with Mr Cullen’s parenting capacity or his ability to facilitate X’s ongoing relationship with other parental figures.”[93]
d)“It remains clear to me that X has built environment to supervise their time together. In my opinion, X’s safety needs would be amply addressed by the presence of one of the other adults in Ms Noakes’s life in the role of support person, rather than a supervisor.”[99]
e)“In addition, biological ties are important to people’s biological relationship, often play a role in the life task of identity, formation and the development and self knowledge. This is true of both parental relationships and sibling relationships, both of which would be maintained if X was to continue spending regular time with her mother and sister.”[100]
f)“By all accounts, Mr Noakes has played a large role in X’s parenting, sharing the primary responsibility with Ms Penfold from the age of eight weeks until the age of three and a half years. It was apparent during the observation time that X shares a close relationship with Mr Noakes and this does not appear to be in dispute.”[105]
g)“In my opinion, X’s relationship with Mr Noakes is sufficiently developed to withstand a reduction in time.”[107]
h)“As such, combined with the possibility that Mr Noakes’ anger and propensity may pose a risk to X and X’s future decrease in free time, it is my opinion that X’s time with Mr Noakes should be significantly reduced.”[108]
The family report writer made the following recommendations:-
a)X live with the stepmother.
b)X spend regular and frequent unsupervised time with the biological father with time to steadily increases, accumulating in a shared care arrangement with X when X commences year one.
c)X spend time with the biological mother for a minimum of four hours each fortnight and for additional time as agreed with biological mother’s time to be supervised.
d)That X spend time with the stepfather as agreed upon.
In November 2015 Dr S released a neuropsychological report for the stepfather where the following findings were made:-
a)“On current assessment Mr Noakes does have impaired intellect. Mr Noakes’ intellectual capacity fell in the extremely low range.”
b)“There are limitations from the practical point of view on his capacity to properly parent X.”
In December 2015 court orders were made by consent for X to be known by the surname “Cullen”.
Between March/April to June 2016 the biological father spent only two periods of time with X, one of which was in the presence of the stepmother.
In June 2016 the matter proceeded to a final hearing.
The biological father and biological mother failed to file any affidavits of evidence in chief.
It was at the final hearing that the parties reached interim orders which are disputed by the ICL.
As at the date of the final hearing all parties are living in close proximity to each other and the biological mother is expecting her third child to her defacto partner.
X
Before a discussion of the proposals, comment must be made as to X.
X is a child that faces serious hurdles.
It is thought that X may have has Foetal Alcohol Syndrome as a consequence of her biological mother’s alcohol intake during the pregnancy although this has not been proven.
In any event X has learning disabilities and developmental issues:-
a)X has delayed speech and attends speech therapy.
b)X has difficulties in processing information.
c)X has been under the long term care of a paediatrician.
d)X suffers from epidermal nervous, a large dry and raised patch of skin around her chest and side.
e)X has behavioural issues which can result in violent tantrums where she can throw herself on the floor and hit people.
X has been attending school-based counselling which involves her seeing a therapist from Act for Kids.
In a guideline provided by the therapist the following comments were made as to X:-
a)“X can be over-familiar with others. If X does not learn appropriate boundaries she is at a higher risk of abuse than her peers.”
b)“X can often get confused about the role of different adults in her life. It is important that X is given the space and time to make sense of her environment. This means allowing X to choose whether she is calling someone by their role or by their name. Forcing X to identify you by your role can add to the confusion she has around her relationships.”
c)“X can become upset and unsettled when confronted with a change in her environment or routine. When anxious about change X can cling to her caregiver or other adults for assurance.”
d)“Although there are bound to be unforeseen changes to X’s routine it is important that it is kept as consistent as possible. One area of inconsistency is contact. It is recommended that X have a consistent contact routine and that Ms Penfold is aware of any potential changes so that she can prepare X.”
In May 2016 a team assessment report was provided by the Child Development Service who assessed the child between March and May 2016.
The following is captured in the report:-
a)“X has specific developmental difficulties that present ongoing challenges for her and her family.”
b)“X’s skills and abilities across all areas of development, (thinking and reasoning, language motor self-care and social and emotional) are in the low average to below average range compared to a child of her age.”
c)“This will impact on many areas of her life and in particular affect her ability to reach the curriculum at school. This will greatly impact on her ability to interact and socialise with her peers. X’s motor coordination and thinking difficulties also impact on her self-care skills meaning that she requires more assistance from her carers to do tasks at home than is typical for most children of her age.”
d)“X has significant attention difficulties and can be very motor active. This impacts her abilities across all areas of development. As X finds it challenging to focus and concentrate long enough to listen, process information and learn, these developmental difficulties will affect X’s ability to cope in many everyday situations especially when others may not understand her and she struggles to get her message across effectively.”
e)“It would be best for X that everyone working with her across all her environments both at home and at school has a shared understanding of her strengths and her developmental difficulties.”
The law
I will now turn to the law.
The principles governing the termination of competing parenting applications are set out in Part VII Family Law Act 1975.
In essence when making a parenting order the court must consider what is in the best interests of the child pursuant to section 60CA.
But as succinctly put by Murphy J in Harris & Caker [2010] FamCA 1046 at [46]:
“best interest” is not the application of a theoretical construct but rather the practical application of a number of considerations relevant to the individual needs, desires, hopes and aspirations of the particular child … … of this parenting relationship.”
As discussed by the Full Court in Moose & Moose [2008] FamCACF 108 at [66], the role of the judicial officer making orders which are in the best interests of a child is to determine the best interest having regard to:
“The matters set out in section 60CC(2) and (3) guided in consideration of the provisions by the objects set out in section 60B(1) and the principles underpinning it contain the section 60B(2).”
As to the primary considerations of the leading authority in Mazorski & Albright (2008) 37 FamLR, Brown J refers to such considerations as the “twin pillars”, where:-
a)The first pillar is the importance of the child to have a meaningful relationship with both parents; and
b)The second pillar is the need to protect children from physical and emotional harm.
Proposals
That now brings us to the respective proposals.
The proposed interim orders sought by the parties will result in the following parenting arrangements for X:-
a)The stepmother and the biological father have equal shared parental responsibility for the child.
b)The child live with the stepmother.
c)The child spend time with the biological father as follows that for every nine week cycle:-
i)In week 2 for five hours on Saturday and five hours on Sunday.
ii)In week 5 for five hours on Saturday and five hours on Sunday.
iii)In week 8 for five hours on Saturday and five hours on Sunday.
iv)Every third Monday that the biological father collect the child from the stepmother’s residence at 8.15am Monday, collect the child from school at 2.30pm and return the child to the stepmother’s residence at 4.30pm.
d)The child spend time with the biological mother in every nine week cycle:-
i)In week 1 for four hours on Saturday with such time to be supervised by the maternal grandmother, and
ii)In week 6 for four hours on Saturday with such time to be supervised by the maternal grandmother.
e)The child spend time with the stepfather in every nine week cycle:-
i)In week 4 for four hours on a Saturday such time to be supervised by the step paternal grandmother.
ii)In week 9 for four hours on a Saturday with such time to be supervised by the step paternal grandmother.
In essence the proposal provides for:-
a)The biological father to spend day time periods for some eight days each nine week period, with two of these days being on a Monday which will involve the biological father with taking and collecting the child from school.
b)The biological mother spending four hours every four to five weeks with the child.
c)The stepfather spending four hours every four to five weeks with the child.
For the biological mother and the stepfather, this represents a decrease in their frequency and the amount of time they currently spend with the child.
The ICL’s proposal is in a nine week period the biological father spend time with the child for nine days with each day being on a weekend and for eight hours a day.
The ICL then proposes that in September 2016 the biological father commence spending full weekends with the child every third weekend from 10.00am Saturday to 4.00pm Sunday.
As to the biological mother’s time with the child the ICL proposes four hours every six weeks supervised by the maternal grandmother.
As to the stepfather’s time with the child the ICL proposes four hours every six weeks supervised by the step paternal grandmother.
Conclusion
During the interim hearing, I, on more than one occasion, expressed concern to the ICL and the family report writer as the impact on X in increasing her time with the biological father and the impact on X having her time reduced to her biological mother and stepfather.
Unfortunately, after hearing submissions and going through all the material and the evidence in preparing the judgment my concerns have not been alleviated.
Firstly the question arises as to whether an increase in time between the child and the biological father, is in the best interests of the child.
No one disputes that the biological father is a kind, devoted and committed person who is overjoyed to find out that he is a father.
The biological father has expressed that he is eager to be part of X’s life and in time would like to be an equal carer of the child in a shared care arrangement with the stepmother.
This proposed outcome was referred to as the “end game” on more than one occasion by the ICL’s counsel and it was promoted that the ICL’s proposal supported by the family report writer is designed to assist the biological father in achieving that end game sooner rather than later.
But despite all good intentions, the evidence supports that the biological father’s involvement with this child to date has been fleeting and inconsistent as illustrated by the following:-
a)His first introduction to X was at the family report interviews for the second report which was released in May 2015.
b)Unfortunately, the evidence as to the extent of time the biological father has spent with X since then is almost non-existent.
c)It appears that between May 2015 and the next report released in October 2016 that any time that has occurred had been in the presence of the stepmother.
d)As to how frequent that time has been and what activities the biological father has done with X is unknown.
e)It is also unknown as to the extent of the biological father’s partner’s involvement with the child.
f)Unfortunately a failure by the biological father to file a trial affidavit has made a true assessment of the situation difficult.
g)Whilst the stepmother’s trial affidavit speaks glowingly of the “excellent relationship” the biological father has with the child it does not set out what time has been occurring since October 2015 between the biological father and X.
h)It was only from the bar table and much to the surprise of the ICL and the family report writer that the biological father due to work difficulties has not spent much time with X over the previous twelve weeks with time occurring for short periods on two occasions, one of which was in the presence of the stepmother.
i)The biological father indicated that he was looking for alternate employment so as to enable him to be freed up so that he can commit himself more to caring for X.
j)It appears that the biological father was not actively involved in the management plan developed by the child development for X with the team assessment report noting that the feedback and goal setting options were attended to by the stepmother, the biological mother and the maternal grandparents.
X is a child with special needs where routine is important.
Whilst there can be no question as to the biological father’s intention to be part of X’s life, I find that there is insufficient evidence before the court as to:-
a)The one-on-one time taking place between the biological father and the child.
b)The biological father’s understanding and handling of X.
c)Whether the biological father has the ability and capacity to be committed to X and all that X brings with her
d)Whether with her primary attachment being with the stepmother whether X could cope with increased time with the biological father including overnight time leading to shared care.
e)How time has been going for X between X and the biological father from X’s point of view.
So the “end game” I find, is still a long, long way away.
It is for this reason I make orders for the biological father’s time with X in accordance with the proposal put forward by the parties.
This provides the biological father with day time periods every two to three weeks.
If the biological father follows the interim orders then this will provide reassurance to the court as to his level of commitment and will also provide an indication as to how X is coping and adjusting.
I also favour a Monday time (as proposed by the parties) instead of Sunday time (as proposed by the ICL) as this will enable the biological father to be involved with X in her routine and her schooling, both of which are important aspects in moving forward to additional time.
As to overnight time I find that it is premature to make any such order at this time and that this is an issue for consideration at the next mention date after the biological father has spent regular time with X.
I now turn to the issue of the reduction of time for the biological mother and the stepfather to X as proposed by the ICL to once every six weeks.
Despite the many faults and concerns raised as to the biological mother and stepfather both of these adults have played a significant role in this little girl’s life.
Both have taken the responsible and admirable step of reducing the frequency of their time with X to once every four to five weeks to enable the biological father to be more actively involved in X’s life.
I acknowledge that it is confusing for X to have so many adults in her life but the upside is that she is very loved and supported and this is a child that needs as much love and support as can be given.
At this point I see it as of no benefit to anyone and in particular for X for her time to be further reduced to once every six weeks with the biological mother and the stepfather.
I therefore adopt the proposal put forward by the parties.
As to the future direction of this matter, I order that a further family report be prepared and that interviews not take place until November 2016 with the matter to be mentioned before me in December 2016.
I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Judge L. Turner
Date: 26 July 2016
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
-
Jurisdiction
-
Procedural Fairness
-
Remedies
-
Standing
0