O'Donahue and Masters

[2007] FamCA 1698

FAMILY COURT OF AUSTRALIA

O'DONOHUE & MASTERS [2007] FamCA 1698

FAMILY LAW – CHILDREN – With whom a child spends time – Interim orders – Father suffering from physical, psychological and pharmaceutical issues as a result of an accident – Mother reluctant for the father to care for the child for any significant periods – Consideration of s60CC factors – Interim report indicates no psychological harm likely to the child nor any observed physical impediments to the father’s capacity to care for the child – Child to spend additional time with the father at a modest pace

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA

Good & Goode (2006) FLC 93-286

APPLICANT: Mr O’Donohue

RESPONDENT: Ms Masters

FILE NUMBER: DNC 589 of 2007

DATE DELIVERED: 3 December 2007

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Burr J

HEARING DATE: 3 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Sivyer

SOLICITOR FOR THE APPLICANT: Withnalls

COUNSEL FOR THE RESPONDENT: Mr Story

SOLICITOR FOR THE RESPONDENT: David Charles Story

Orders

1. That the parties attend a Directions hearing before the Honourable Justice Burr at 9.45 am (Adelaide time) on Wednesday 23 January 2008 in relation to issues impacting upon the child … (“[the child]”) born … January 2006, with liberty to the parties and their legal representatives to attend that hearing by telephone link.

2. That the question of whether the costs of the preparation of the family report to be undertaken by Ms K should be borne by the Court or by the parties be also adjourned to the Directions Hearing before the Honourable Justice Burr at 9.45 am (Adelaide time) on Wednesday 23 January 2008.

AND IT IS FURTHER ORDERED, DURING THE PERIOD OF THE ADJOURNMENT TO 23 JANUARY 2008 THAT:-

1. The child live with the mother.

2. The child spend time with the father as follows:-

   (a)    from 9.00 am until 3.00 pm on Tuesday 4 December 2007;

   (b)    from 9.00 am until 3.00 pm on Tuesday 11 December 2007, Thursday 13 December 2007 and Sunday 16 December 2007;

   (c)    from 9.00 am on Tuesday 18 December 2007 until 12 noon on Wednesday 19 December 2007;

   (d)    from 9.00 am until 3.00 pm on Friday 21 December 2007;

   (e)    from 9.00 am on Monday 24 December 2007 until 3.00 pm on Tuesday 25 December 2007;

   (f)     from 9.00 am until 6.00 pm on Sunday 6 January 2008;

   (g)    from 9.00 am until 6.00 pm on Tuesday 8 January 2008;

   (h)    from 3.00 pm on Thursday 10 January 2008 until 3.00 pm on Friday 11 January 2008;

   (i)     from 3.00 pm on Tuesday 15 January 2008 until 6.00 pm on Wednesday 16 January 2008;

   (j)     from 12 noon on Monday 21 January 2008 until 6.00 pm on Tuesday 22 January 2008.

3. That all handovers at the commencement and conclusion of each period of time to be spent by the child with the father be conducted at Centacare but in the event that such facility is not available, then by utilising the services of Mr C.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 589  of 2007

MR O’DONOHUE  

Applicant

And

MS MASTERS  

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The parties to these proceedings have a daughter … (“[the child]”) born in January 2006 and who is hence almost 2 years of age.  The parties have been unable to agree how the child is to share her time between her two parents.  There is comprehensive material on the file contained in the Affidavits filed by the parties.  I do not intend to canvass all of that factual detail at great length.  The detail in the Affidavits which is relevant and the concerns of the parties can be summarised fairly briefly, in my view.

2. The parties experienced an on again / off again relationship over a period of a few years.  It involved cohabiting both here in Australia and in Canada.  The father’s occupation in the aviation industry took him to Canada in order to pursue further career opportunities.  Certainly that was his wish.  He was supported, at times, by the mother in that regard.  He was involved in a horrific accident which led to him suffering some extremely severe injuries and which has involved him in a lengthy period of rehabilitation and recuperation which, of itself, has included a number of surgical interventions.  As I understand it, he will also be involved in further surgical interventions and other medical treatment.  However it is claimed by the father and it appears clearly to be the case on the evidence and indeed it is not denied by the mother, that he has made significant and incredible progress from the consequences of that horrific accident.  The mother’s concerns, quite appropriately, have been that the father has not been in a position of being able to spend any extended periods of time with the child not just as a consequence of some of the physical disabilities associated with the accident, but also as to its psychological effect upon him.  The recovery process has involved him needing to have a number of pharmaceutical interventions in order to assist in his recovery.  The culmination of the psychological, physical and pharmaceutical concerns of the mother has meant that she has been most reluctant for the father to care for the child for any significant periods of time and I must say, I understand her reluctance.  However the time must come, provided that the father is able to demonstrate that he has sufficiently recovered physically and psychologically to care for the child, when she will spend a good deal of time with him.

3. It was with a view to answering some residual concerns as to the father’s psychological health that Orders were made on 7 November 2007 by Judicial Registrar Forbes that Ms K prepare an interim report to give the Court some additional direction in determining what might be in the child’s best interests.  That report has now been provided by Ms K and is dated 30 November 2007.  It is thus a report that the parties have not had a great deal of opportunity to consider and to absorb.  To their credit, they have engaged in some discussions and negotiations in order to see whether they can arrive at any common ground.  Again, to her credit, the mother has conceded what in her view would be a significant period of additional time for the child to spend with the father.  Equally though, I can understand the father’s frustration and impatience in terms of re-establishing his relationship with his daughter at the earliest opportunity.

4. In making a decision in these matters, even on an interim basis, the Full Court in the matter of Goode & Goode (2006) FLC 93-286 has required Judges in my position to deal with all of the relevant pieces of the legislation, that legislation having undergone significant amendment on 1 July 2006. One thing that has not changed in terms of what I must have at the forefront of my mind in determining this matter is that pursuant to Section 60CA of the Family Law Act 1975 as amended, the Court must regard the child’s best interests as the paramount consideration.

5. In deciding what might represent the child’s best interests, the Court is directed to Section 60CC of the Act and there is a raft of individual matters that need to be considered.  That Section is divided into primary considerations and additional considerations. The primary considerations are:-

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

1. The mother does not question this.  She acknowledges that it is in her daughter’s best interests that she knows who her father is and be able to engage with him in a loving manner.  She acknowledges that it is essential for the child’s development that she develops a meaningful relationship with her father.

2. The matters disclosed in Ms K’s report, and which I will deal with in a little more detail shortly, indicate that there is considerable benefit to the child in developing a more meaningful relationship with her father.

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

1. This primary consideration is relevant and directly relates to the matters that have troubled the mother.  The parties in these proceedings do not suggest that the child would be the victim of abuse or violence in the care of the other parent, but certainly in the mother’s case she is concerned as to the need to protect the child from any psychological harm, that psychological harm having been brought about by what she perceives as the father’s own obstacles since his horrific accident. However I am satisfied from the provisions of the interim psychological report from Ms K that the child would not experience any psychological harm in the care of her father.

2. The additional considerations of Section 60CC 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 wishes;

1. The child is not yet 2 years of age and hence this sub-section is not relevant to my determination.

(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);

1. The father does not challenge in any way the excellent relationship between the child and the mother.  The only area in which this particular issue emerges is as to the mother’s concerns, and properly put before the Court, as to the child’s relationship with her father given his horrific recent experience.  It is here that Ms K provides comfort to the Court and to the mother.  I will not detail all of the matters raised by Ms K but she did include a period of observed interaction between the child and her father.  She also included an inspection of the premises where the father resides.  I quote from just part of the report, namely paragraph 4, where Ms K said:-

   “[The child] and her father were observed for an hour interacting in a warm, engaging and loving manner.  There is a strong bond between the two and [the child] is talkative, playful and affectionate with her father.  She refers to him as ‘Daddy’ and hugs and kisses him readily.  [The father] was observed to provide a snack for [the child]; he changed her nappy; gave her drinks and played with her with her toys.  [The father] regularly nursed her, she sat on his knee frequently and he carried her upstairs for a nappy change. ….”

   More importantly, at the end of that paragraph, Ms K said:-

   “There were no observed physical impediments to his capacity to care for his daughter.”

2. Paragraph 6 of Ms K’s report is also particularly pertinent:-

   “With respect to [the father]’s psychological status and how this may impact on his capacity to care for [the child], his mood was observed to be of a buoyant quality.  His affect was not flattened’ he was alert, communicated easily, quickly and appropriately; he was not distractible, he demonstrated good mental control, and his reaction times in responding to ongoing contingencies in the home and with [the child] were brisk.  Although expressing sadness with the current parenting dispute he did not appear overtly depressed or anxious. …”

3. ….  Overall, I perceive that Ms K’s report provides substantial and significant support for the father increasing the time that he spends with the child and demonstrates, in my view, that his relationship with the child is one which is comfortable, loving and ought to be encouraged.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

1. The submissions put to me this afternoon by Mr Story on behalf of the mother indicate significant reluctance on the mother’s part to facilitate the relationship on what she would consider to be too hasty a basis.  However, I do not see that as demonstrating any lack of willingness on her part to encourage the relationship.  Simply put, she is keen to exercise caution when it comes to her young daughter.

(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;

1. The proposals that I have in mind to give effect to an expansion of the relationship between the child and her father are not such that, in my view, they would have any detrimental affect upon the child.  There will be a change in that she will be spending some additional times with her father and I propose that there be some overnight occasions included in that.  I have considered Ms K’s report as to what effect that might have upon the child however I am comforted by Ms K’s report on the closeness of the relationship and the closeness of the bond between the child and the father.   

2. I think though, quite clearly, that this sub-section requires me to consider what effect it might have also upon the mother and it is for that reason that I intend to move somewhat cautiously in terms of extending the relationship between father and daughter.  Presently, the mother represents the most important person in the child’s life and it is important both psychologically and emotionally that the mother be able to exercise her role as the child’s primary carer and thus too dramatic a change may have some consequences upon the mother’s emotional capacity to deal with that role.  In short, it is not appropriate that the Orders be so expansive as to create considerable distress on the part of the mother.

(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;

1. This sub-section is not relevant for my determination.

(f)the capacity of:

(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;

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

1. Again, this sub-section brings me back to Ms K’s report and I am satisfied, on an interim basis, that some additional time that the child can spend with her father will be good for her and will satisfy her emotional 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;

and

(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;

1. These sub-sections are not relevant for my determination.

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. I believe I have covered all relevant matters that might arise for my consideration pursuant to this sub-section when dealing with the earlier sub-sections, particularly sub-sections (b) and (f).

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

and

(k)any family violence order that applies to the child or a member of the child's family; if:

(i)     the order is a final order; or

(ii)    the making of the order was contested by a person;

and

(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;

and

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

1. In my view, sub-sections (j), (k) and (l) are not relevant and in relation to sub-section (m), there are no other facts or circumstances that I need consider.

2. Sub-section (4) requires me to consider:-

3. Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

   (a)    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; and

   (b)has facilitated, or failed to facilitate, the other parent:

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

   (ii)    spending time with the child; and

   (iii)   communicating with the child; and

   (c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

4. As I said earlier, I am satisfied that neither parent has presented in any unreasonable way as obstructing or opposing the relationship that the child has with both of her parents.  Whilst the father would have wanted the matter to move much more quickly, I do not deem the mother’s approach as having demonstrated any failure on her part in fulfilling her obligations as a parent in not allowing more extensive contact between father and daughter.

5. The balance of Section 60CC is not relevant for my determination.

6. I then need to consider Section 61DA but unless Counsel urges me, it is my view that that is a matter for determination on a final basis when the trial of the proceedings is undertaken in the event that the parties are unable to reach final agreement.  In my view, there are a number of appropriate reasons for me not to consider the balance of the provisions of the Act on an interim basis but rather on a final basis.

7. This then leaves me to consider what Orders I think are appropriate.  A summary of my position is that there ought to be some additional time the father spends with the child and it ought to include overnights, but it ought to be taken at a modest pace.  Taking into account the commitments that each of the parties have – in the father’s case the requirement for him to attend in Adelaide for some further medical treatment and to catch up with family members between Wednesday 5 December and Monday 10 December 2007 and, in the mother’s case a nine day holiday from 26 December 2007, I need to work around those times.

I certify that the preceding twenty six paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Burr.

Associate

Date:  3 December 2007