Oates and Hamilton

[2009] FamCA 1271

FAMILY COURT OF AUSTRALIA

OATES & HAMILTON [2009] FamCA 1271

FAMILY LAW – CHILDREN – interim proceedings – with whom a child lives – best interests – where the mother has made serious allegations of violence by the father against both her and the children – where the father has raised allegations of neglect against the mother – where the Independent Children’s Lawyer supports the mother’s application – children to live with each parent on a week about basis

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

APPLICANT: Ms Oates

RESPONDENT: Mr Hamilton

INDEPENDENT CHILDREN’S LAWYER: Julie Redman

FILE NUMBER: ADC 3758 of 2009

DATE DELIVERED: 7 DECEMBER 2009

PLACE DELIVERED: ADELAIDE

PLACE HEARD: ADELAIDE

EX TEMPORE REASONS OF: BURR J

HEARING DATE: 7 DECEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MS RIENIETS
SOLICITOR FOR THE APPLICANT:	DENISE RIENIETS & ASSOCIATES

COUNSEL FOR THE RESPONDENT:	MR CHILDS
SOLICITOR FOR THE RESPONDENT:	MORGAN WARD

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	MS WOOD
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	ALDERMAN REDMAN

Orders

UPON NOTING the mother’s agreement to the father being able to relocate from the regional centre of B with the children to the Adelaide suburban area:

1. As and from 6.00 pm on Friday 11 December 2009 the children W born … June 2005 and O born … June 2008 live with the mother for one week in every two to the intent that the children live with the father for the other week in every two.

2. All handovers at the commencement and conclusion of each period of time the children live with the parties be conducted inside the Adelaide Police Station.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3758 of 2009

MS OATES

Applicant mother

And

MR HAMILTON

Respondent father

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me today competing applications between the parties in respect of their two children W born in June 2005 and O born in June 2008, those children being respectively 4 ½  years of age and 18 months of age.

2. The history of the parties’ relationship has already been extensively canvassed in the Affidavits filed by them. 

3. The Family Law Act 1975 as amended imposes upon this Court an obligation to make orders, be it on an interim or a final basis, that reflect the best interests of the children as the paramount consideration and that arises under Section 60CA of the Act. That Section directs the Court’s attention to Section 60CC in determining how it is that the children’s best interests can be reflected by any parenting order that the Court makes and Section 60CC is divided into “primary considerations” and “additional considerations”.

4. The two primary considerations stand almost in complete contrast to one another but nonetheless throw up what the legislature considers to be the most important issues that impact upon this determination.  The first of them is:-

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

   and the second is:-

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

5. In this particular matter it is the latter of those two which looms the largest in the documents filed by the parties to these proceedings.  There are allegations made by the mother of serious violence within the household of the parties prior to their separation, that violence having been directed at both the mother herself and the children, and her two children T and Y of her previous relationship.  Her allegations as I said, are particularly serious and include allegations that the father in these proceedings had threatened to kill the children. 

6. The father raises a number of concerns about the mother which in large part could be categorised as issues of neglect.  In his most recent affidavit he annexes reports from the V Child Care Centre at B and the C School at B.  In combination both reports speak highly of his care and management of the children.  In the latter of those reports it is identified by C School that on a comparative basis in their view the father undertook a parenting role in relation to the children T and Y far more diligently than did the mother and included in that report are comments from T’s class teacher which are to the effect that T was always presented on time, with lunch, in clean clothes, with good personal hygiene and alert and ready for the day’s educational tasks.  The teacher described the presentation of T whilst he was in the mother’s care as being almost in complete contrast citing no food, poor hygiene, poor presentation including being presented with an offensive odour, tired and falling asleep during the school day.

7. Thus, as is not uncommonly the case in proceedings before this Court, the Court is faced with two entirely different pictures.  The possibilities that emerge are that one is entirely correct and the other is absolutely false or somewhere in between.  

8. There are a number of additional considerations to which the Court is obliged to have regard to in determining both interim and final orders in matters where a parenting order is to be made.  Most in this instance are either not relevant for the Court’s determination or are again matters about which the Court cannot make any finding with any sense of comfort or confidence. 

(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. This sub-section is not relevant for my determination today.

(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. Each makes a suggestion that the relationship of the children with the other parent is not as sound as it should be nor is it as sound as the relationship enjoyed by them individually.  However, the parties each played a significant role during the course of their relationship in caring for the children and the Court is not yet equipped to determine whether or not one party has such a superior relationship with the children as to define a primary care arrangement with one of them as against a shared care arrangement.

(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. Again it is too premature to be able to make a determination in that regard and the Court will be greatly assisted and informed by the Family Report that has already been ordered in these proceedings.

(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 change being sought here by the mother is that the children live with her for one week in every two.  Most of the concerns raised in the father’s documents and as elicited in the report from C School are to the effect of the elder two children’s presentation at school.  The mother must be well and truly on notice as to the allegations that are being made against her.  If the Court moves to a shared care arrangement now, the Family Consultant will have an opportunity to determine very quickly what impact that change has had upon the children, be it of a positive or a detrimental impact.  If the mother has been guilty in the areas of neglect indicated by the father, then the Family Consultant will readily be able to identify those matters and that could prejudice the mother’s case going forward. 

2. One area of concern for the Court and the Independent Children’s Lawyer on the previous occasion the matter was before the Court was the mother’s capacity to provide suitable accommodation for the children.  Both the Independent Children’s Lawyer and I are now satisfied, based on the Affidavit of the mother filed on 6 November 2009.

3. In my view, the other matters raised pursuant to Section 60CC(3) being the additional considerations do not raise any other matters for the Court’s consideration during the period of the adjournment which have not already been dealt with by me, those other issues generally being directed to the attitudes to the children, the responsibilities of parenthood demonstrated by the parents and issues of family violence.

4. The Independent Children’s Lawyer upon whom the Court places a good deal of reliance, certainly during the interim stages of the proceedings, has indicated support for the mother’s application and a move during the period of the adjournment to a shared care arrangement.  It was raised by Counsel for the Independent Children’s Lawyer in terms which regrettably often need to be used in these proceedings when such conflicting allegations are made by one party as against the other as “risk management” and I accept that given the seriousness of the allegations raised by each of the parents as against the other, there could well be an element of risk management in any order that the Court makes.  The issue here, as I understand it from the Independent Children’s Lawyer, as to better managing that risk is to give each of the parents an opportunity to have one week in every two with the children and thus be vigilant as to their care, health, condition and general wellbeing, thus enabling them to raise with the Family Consultant or with the Independent Children’s Lawyer in the meantime any serious issues of concern that might require the Court’s attention.

5. Thus doing the best I can on the conflicting information available to the Court but supported by the Independent Children’s Lawyer in the matter, I order that the parties move to a week and week about arrangement in terms of caring for the children W and O.

In Chambers

1. Such an arrangement, in the absence of any evidence to the contrary upon which the Court could presently rely, accords with the presumption which arises in Section 61DA and the consequences which flow therefrom for equal shared care (Section 65DAA).

I certify that the preceding seventeen (17) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Burr

Associate: 

Date:  7 December 2009