O’BRIEN & NICHOLAS

[2015] FCCA 2636

FEDERAL CIRCUIT COURT OF AUSTRALIA

O’BRIEN & NICHOLAS [2015] FCCA 2636

Catchwords:
FAMILY LAW – Interim parenting – where mother’s concerns unsubstantiated.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant: MS O'BRIEN

Respondent: MR NICHOLAS

File Number: WOC 510 of 2015

Judgment of: Judge Altobelli

Hearing date: 7 September 2015

Date of Last Submission: 7 September 2015

Delivered at: Wollongong

Delivered on: 12 October 2015

REPRESENTATION

Solicitors for the Applicant: Bailey Mullard Lawyers

Solicitors for the Respondent: Williamson Isabella Lawyers

ORDERS PENDING FURTHER ORDER

1. That the Child, X born (omitted) 2013 (“the Child”), live with the Mother.

2. That the Child spend time with the Father as follows: -

   (a)For the first three months after the making of these orders, for four hours each Saturday or Sunday, as agreed, but failing agreement on each Sunday between 9:00am and 1:00pm.

   (b)Thereafter, for a further three months, for a period of six hours each Saturday or Sunday, as agreed, or failing agreement between 9:00am and 3:00am.

   (c)Thereafter, until further order, for a period of eight hours each Saturday or Sunday, as agreed, or failing agreement between 9:00am and 5:00pm.

   (d)For three hours on Christmas Day, as agreed, but failing agreement between 9:00am and 12:00pm.

3. That the Father is required to be medication compliant and to regularly attend his treating mental health professional and abide by any recommendations made by the same.

4. That the Father is to provide to the Mother a report from his treating mental health professional each six months, with the first report due six months from the date of these orders, and with such report to set out the frequency of his attendances on his treating mental health professionals, a current assessment of his mental health, and a statement of the treatment given.

5. That the Father is to undertake (by provision of urine screen in accordance with the Australian/NZ standard 4308:2008 or any subsequent approved standard) urinalysis for drug screening once every two months as requested by the Mother and provide copies of the results of the tests to the other party within 48 hours of receipt of same.

6. That the Mother and Father be hereby restrained by Injunction from:

   (a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the child’s.

   (b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the child or permitting any other person to do so.

7. That the Father be hereby restrained by injunction from being under the influence of, or consuming, drugs or alcohol during the time he spends with the Child and for a 24 hour period prior to his time with the Child.

8. That there be no order in relation to parental responsibility.

FURTHER ORDERS

1. Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the Child X born (omitted) 2013 and the Legal Aid Commission of New South Wales is requested to provide such representation. 

2. The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 or DX 5 SYDNEY forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

3. Leave be granted to the Independent Children’s Lawyer to issue such additional subpoena as they consider relevant to the issues before the Court.

4. Leave be granted to the Independent Children’s Lawyer to have photocopy access to documents produced on subpoena in these proceedings. 

5. Leave be granted to the Independent Children’s Lawyer to relist the matter on short notice by communication with Chambers in appropriate circumstances.

6. The matter be listed for a 2 day Final Hearing commencing 8 December 2016 at 10:00am in the Wollongong registry.

7. The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with Rules 24.03 and 24.04 of the Federal Circuit Court Rules 2001 or as otherwise directed by the Registry Manager by the date of filing of further material.

8. The matter be adjourned to 9 November 2015 at 2:00pm for Mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 510 of 2015

MS O'BRIEN

Applicant

And

MR NICHOLAS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about X, born (omitted) 2013, now two years old.  These Reasons for Judgment explain the interim orders that the Court has made for X to spend time with his father.

Background

1. X’s mother is the Applicant in this case.  She is 28 years old.  X’s father is the Respondent, and he is 24 years old.  The relationship subsisted between 2012 and 2014.  On 11 December 2014, the parents entered into a parenting plan that provided for X to spend time with his father every second Saturday morning commencing on 20 December 2014 until the following Sunday evening.  The parenting plan also provided for Christmas contact at 2014, Easter Sunday, and X’s birthday.  It is common ground that this agreement was entered into and implemented. 

2. Neither parent was entirely satisfied with the arrangement.  The Mother asserts she experienced problems with the Father, particularly at changeovers.  The Father asserts that the Mother was not diligent in complying with their agreement.  It is not possible in the context of these interim proceedings to resolve these factual differences.  The fact is that the parents entered into the parenting agreement and it was implemented. 

3. In any event, it is the Mother’s evidence that she arranged for X to spend time with his father every Wednesday and every second weekend from the beginning of 2015.  She was responsible for delivering X, and picking him up.  There continued to be incidents at changeover.  The Mother says she became concerned about how X was coping with the time with his father.  Some time after May this year she ceased contact with the father.

The Competing Proposals

1. The order that the Mother sought is contained in her solicitor’s Case Outline.  She proposes an order for sole parental responsibility, that X live with her, and spend supervised time with the Father at Catholic Care Children’s Contact Service for two hours each alternate weekend. 

2. The Father’s proposal is contained in his Response filed 31 July 2015.  He agrees that X should live with his mother, but proposes that X spends time with him for three months from 9:00am to 5:00pm each Saturday or Sunday as agreed, but failing agreement on each Sunday, and then after three months from 9:00am Saturday to 5:00pm Sunday each alternate weekend, and 9:00am to 5:00pm on Sunday each other weekend.

The Evidence

1. The Mother relied on the following documents:

   ·Initiating Application filed 2 June 2015;

   ·Affidavit of Ms O'Brien sworn 29 May 2015;

   ·Affidavit of Ms O'Brien sworn 1 September 2015; and

   ·Outline of Case filed 1 September 2015.  The Outline of Case document sets out some brief written submissions. 

2. The Father relied on the following documents:

   ·Response filed 31 July 2015;

   ·Affidavit of Mr Nicholas sworn 29 July;

   ·Affidavit of Mr Nicholas sworn 31 August 2015; and

   ·Affidavit of the paternal grandfather, Mr J, sworn 29 July 2015.

3. Documents were produced on subpoena by the Department of Family and Community Services and New South Wales Police.  In addition, the Father’s urine screens were tendered in evidence.

The Applicable Law

1. In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

   (a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)     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).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

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

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

6. In MRR v GR [2010] HCA 4, the High Court said

   8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

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

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(c)    consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

1. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

2. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Pt VII of the Act and the way to proceed in interim matter, and I will incorporate into these reasons a number of paragraphs from the Full Court’s judgment.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Overview of the Submissions Made

1. The Mother’s case for supervised time at a supervised contact centre was based on her assertions about the Father – the Father’s aggressive behaviour, the family violence perpetrated, concerns about his mental health, concerns about consumption of drugs and alcohol, and issues about his parenting capacity.  She asserts, and it is not disputed, that she was the primary carer for X.  She concedes that whilst X has not been spending regular time with the Father since May 2015, he was seeing him each alternate weekend and some midweek nights for dinner, but she asserts that X would return home unsettled and sometimes sick.  She submits, and there seems little doubt, that the co-parenting relationship is a poor one and that communication between them is problematic.

2. The Father’s case, shortly stated, is that the Mother’s concerns are plainly inconsistent with her past actions, and in particular the parenting plan entered into in December 2014 which provided for him to spend regular time with X, including overnights.  He asserts, and it was not disputed, that this arrangement was implemented in general terms right up until May 2015.  He denies that he has a drug and alcohol problem.  It is common ground that he has complied with the request for a urine sample and that these have been satisfactory.  It is not in dispute that he is engaged full time as a (occupation omitted), a matter that he says is inconsistent with the Mother’s concerns about alcohol.  He agrees that he has suffered mental health problems, but asserts that these are under control and that he is medication compliant.  He disputes the assertions of family violence made by the Mother.

Discussion

1. It is impossible for X to have a meaningful relationship with his father unless he is spending time with him.  That is currently not taking place.  It is hard to discern from the Mother’s evidence any suggestion that X did not have a meaningful relationship with his father until the contact stopped in May.

2. The Mother’s assertion of risk of harm to X, such that his time should be supervised at a supervised contact centre, is based on a number of allegations which are, firstly, inconsistent with the previous history of the matter and, secondly, are unsubstantiated.  Most of the concerns that the Mother has about the Father predate the parenting plan from December 2014.  Whatever the concerns that the Mother had about the Father, they did not prevent her from actively facilitating X’s time with his father until May this year.  In any event, the more objective facts before the Court suggest that any risk issue can be managed without using a supervised contact centre.  Despite the Mother’s subjective beliefs about the Father’s drug taking, the fact is that his tests have all been satisfactory.  Maintaining a reasonable regime of random urinalysis will be an adequate safety net.  Whilst the Mother’s concerns about the Father’s alcohol use are borne out by the Prescribed Concentration of Alcohol (PCA) conviction last year, the fact is that he is a full-time driver, which suggests that the consequences on him are very serious indeed, even putting aside the issues before the Court. 

3. The Father’s mental health condition was a matter well-known to the Mother.  By requiring the Father to continue to be medication compliant and otherwise limiting his time with X, even this issue can be managed.  The Mother’s allegations of violence and abuse are by no means satisfactorily established through the documents tendered in evidence.  Clearly it is important that the transitions are to be managed so that the parents minimise any opportunities to have contact with each other.

4. In short, the Mother has not satisfied the Court that the risk of harm issues are such that contact must take place at a supervised contact centre.

5. Once the risk issues have been dealt with, the focus becomes finding a developmentally-appropriate parenting arrangement.  The arrangement has to be manageable not just for X, but for his mother as well, who presents as a somewhat apprehensive and anxious mother.

6. X is only two years old.  Whilst there is a history of him spending overnight time with the Father, the Court is not prepared to make an order to that effect, given the concerns that the Mother has and the level of conflict between the parents.  In many ways, the orders that the Court proposes will take X back to a fairly low base from which to resume his time with his father, and is developmentally appropriate and sensitive. 

7. For the first three months from the date of these orders, the Father should be able to spend time with X for four hours on each Saturday or Sunday, but failing agreement on each Sunday and between 9:00am and 1:00pm.  Thereafter for a further three months, that time can increase to six hours, and thereafter until a final hearing it can increase to eight hours.  The orders will provide a number of protective mechanisms.

8. In terms of the future progress of this case, the Court accepts that the Father’s mental health is an ongoing issue that needs to be properly investigated and then considered in the context of how to make longer-term orders.  Indeed, an expert may well be needed in this regard, so an Independent Children’s Lawyer will be appointed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:  12 October 2015