OWEN & OWEN
[2012] FMCAfam 1218
•21 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OWEN & OWEN | [2012] FMCAfam 1218 |
| FAMILY LAW – Children – parenting – orders – interim orders – best interests of the children – parental responsibility – equal shared parental responsibility – sole parental responsibility – three children aged 16, 9 and 3 years – high conflict between parents – conflicting evidence – difficulty about making factual findings in interim hearing – serious conflict between parents – need to reduce the number of changeovers to limit opportunities for conflict - alienation – estrangement. PRACTICE AND PROCEDURE – Directions for case management – estimated length of hearing – where both parenting and property matters in issue – whether proceeding should remain in the Federal Magistrates Court – whether proceeding should be transferred to Family Court – consideration of Protocol between Family Court and Federal Magistrates Court – discretionary transfer of proceedings to the Family Court. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 61DB, 65AA, 65DAA Federal Magistrates Act 1999 (Cth), s.39 |
| Calvert & Calvert [2008] FMCAfam 101 Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MR OWEN |
| Respondent: | MS OWEN |
| File Number: | SYC 2554 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 16 August 2012 |
| Date of Last Submission: | 16 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 21 November 2012 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Thompson |
| Solicitors for the Applicant: | Etheringtons Solicitors |
| Counsel for the Respondent: | Mr Fermanis |
| Solicitors for the Respondent: | Cominos Lawyers |
| Solicitor for the Independent Children’s Lawyer: | Mr Hearl |
| Solicitors for the Independent Children’s Lawyer: | Delaney Lawyers |
ORDERS
UNTIL FURTHER ORDER:
The Respondent Mother is to have sole parental responsibility for the child of the marriage [X] born [in] 1995.
The Applicant Father is to spend time with the child [X] at such times in accordance with the wishes of the child.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the children of the marriage [Y] born [in] 2003 and [Z] born [in] 2009.
The children [Y] and [Z] are to live with the Mother.
The children [Y] and [Z] are to spend time with the Father as follows:
(a)For a block period of time each fortnight during the school term encompassing alternate weekends commencing immediately after school or pre-school as the case may be on the Thursday of the first week of the fortnight and concluding at the commencement of school or pre-school on the following Tuesday;
(b)From 6:00pm on Christmas Eve until 11:00am on Christmas Day in 2012 and from 11:00am on Christmas Day until 6:00pm on Boxing Day in 2013;
(c)For the first week of the Autumn, Winter and Spring school holidays commencing immediately after school or pre-school on the final day of the school term and concluding at 6:00pm on the middle Saturday of the school holiday period;
(d)For two (2) separate weeks during the January school holidays in 2013 as follows:
(i)From 9:00am on Monday 7 January to 6:00pm on Sunday 9 January 2013; and
(ii)From 9:00am on Monday 21January to 6:00pm on Sunday 27 January 2013; and
(e)For a block period of time during the weekend encompassing Father’s Day commencing immediately after school or pre-school as the case may be on the Thursday before Father’s Day and concluding at the commencement of school or pre-school on the Tuesday morning immediately after Father’s Day; and
(f)From immediately after school or pre-school as the case may be until 6:00pm on the father’s birthday and each of the children’s birthdays if such day should fall on a day when the children would not otherwise be spending time with the father as provided by these Orders.
The children [Y] and [Z] will not spend time with the Father during the block period of time encompassing Mother’s Day but will spend the next block of time with the father the following week from immediately after school or pre-school as the case may be on the Thursday after Mother’s Day until the commencement of school or pre-school on the following Tuesday.
For the purposes of the above Orders the Father will collect the children from school or pre-school as the case may be and return them to school or pre-school whenever these Orders provide that the children’s time will commence or conclude immediately after or immediately before school or pre-school and at all other times he is to collect the children from and return the children to the Mother [location omitted].
The Father is restrained from consuming alcohol during or for a period of twelve (12) hours prior to the children spending time with him in accordance with these Orders.
The parties are restrained from denigrating or criticising each other in the presence or hearing of any of the children [X], [Y] and [Z] or from permitting a third person to do so.
IT IS NOTED that publication of this judgment under the pseudonym Owen & Owen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2554 of 2012
| MR OWEN |
Applicant
And
| MS OWEN |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Father for interim parenting orders relating to the parties’ three children, [X], [Y] and [Z].
[X] was born [in] 1996, so is about to attain the age of sixteen years.
[Y] was born [in] 2003. She is nine years and seven months old.
[Z], the youngest child, was born [in] 2009. She is only three years and three months old.
Orders Sought
The Father seeks orders that:
a)He should have sole parental responsibility for [Y] and [Z], or, in the alternative, that the parties have equal shared parental responsibility for the two girls;
b)There should be no parenting orders in relation to the oldest child, [X], other than that the Mother be restrained from taking him to counselling;
c)The younger children should live with him and spend time with their mother on alternate weekends, on Wednesday nights and for half of the school holidays; and
d)The Mother should be restrained from taking the children to counselling.
The Mother, for her part, seeks orders that:
a)She should have sole parental responsibility for [X];
b)The parties should have equal shared parental responsibility for the two girls [Y] and [Z];
c)The Father should spend time with [X] in accordance with [X]’s wishes; and
d)The Father should spend time with the older girl, [Y]:
i)On alternate weekends from after school Friday until 6:00pm Sunday during the school term;
ii)On Tuesday evening until Wednesday morning;
iii)For half of the school holidays; and
iv)On Father’s Day, Christmas Day and other special occasions; and
e)The Father should spend time with [Z]:
i)On alternate weekends from after school Friday until 6:00pm Sunday during the school term;
ii)From 10:00am to 2:00pm on Saturdays; and
iii)On Father’s Day, Christmas Day and other special occasions.
Background
The Father was born [in] 1969. He is 43 years old. The Mother was born [in] 1972. She is 40 years old.
The parties were married [in] 1995 and separated under the one roof in January 2011. Initially, the Father lived in the sunroom of the parties’ home but moved out to the garage in April 2011. In June of that year he obtained rental accommodation, with two bedrooms, one of which he furnished for use by the girls.
From June onwards, the girls were attending at the Father’s residence almost daily. [X] did not attend, as his relationship with the Father had broken down between January and March.
On 7th August 2011 [Z] suffered a caustic burn injury as a result of an accident in the Mother’s home. She was hospitalised initially at [omitted] Hospital and later at the Burns Unit in [omitted] Hospital.
The Father commenced proceedings by filing an Application for parenting and property orders on 4th May 2012. The Application was returnable on 21st May 2012.
On 21st May 2012 the parties were directed to attend a Child Dispute Conference with a Family Consultant, which was to take place on 4th June.
The Mother filed a Response on 23rd May 2012, opposing the parenting and property orders sought by the Father.
The parties attended the Child Dispute Conference on 4th June, but no agreement was reached. In the Report to the Court, the Family Consultant noted the disputed allegations of threatening and verbally abusive behaviour by one parent to the other.
The Family Consultant a number of issues relating to the children:
·[X] was having no contact with his father, which the Father suggested was a consequence of his having been “demonised” by the Mother.
·The Mother reported a suicidal ideation by [X].
·The Mother acknowledged that both girls enjoyed spending time with their father.
·[Z] is still of a young age:
“Children of [Z]’s age and stage of development require stability and consistency of care and do not always manage overnight time with the other parent.”
·The sibling relationships may need to be a factor in determining the parenting arrangements.
·Given the family violence concerns it may be in the interest of all parties for the number of transitions from one parent to the other to be reduced.
The Family Consultant recommended the appointment of an Independent Children’s Lawyer.
On 4th June 2012 the parties were directed to attend a Conciliation Conference with a Registrar in respect of the property matter and an order was made that the children’s interests should be independently represented by a lawyer under the provisions of s.68L of the Family Law Act.
The Mother filed an Amended Response on 20th July 2012, seeking different parenting orders than the ones she had previously sought.
The parties attended a Conciliation Conference on 2nd August 2012 but did not resolve their property issues.
Evidence
The Father relied on the following documents:
a)his Application filed on 4th May 2012;
b)his affidavit sworn on 10th August 2012;
c)the affidavit of Ms A sworn on 8th August 2012;
d)the affidavit of Mr S affirmed on 10th August 2012; and
e)the affidavit of Mr F sworn on 5th May 2012.
The mother relied on the following:
a)her Amended Response filed on 20th June 2012;
b)her affidavit sworn on 5th August 2012; and
c)the affidavit of Ms H sworn 8th August 2012.
It is the Father’s evidence from his affidavit he has, since about six months from his separation from the mother, which he dates at 1st January 2012, obtained rental accommodation in the form of a two bedroom granny flat which he rents from Mr S and Ms S. He occupies one bedroom and the children [Y] and [Z] occupy the other when they are with him.[1]
[1] Affidavit of Mr Owen 10.8.2012 at paragraphs [6] and [7]
He deposes that he played a major role in the care of the children during the time when the parties were together. Since the separation he has continued to play a major role in relation to [Y] and [Z].[2]
[2] Ibid at [9]
The Father works as a [omitted] of a business where, although his hours are from 7:30am to 5:00pm on weekdays and from 8:00am to 4:00pm on alternate Saturdays, he has flexibility in his hours and can take time off during the day. This allows him to take [Z] to and from child care and take [Y] to and from school[3].
[3] Ibid at [10]
By comparison, the Mother works further away and does not have the same flexibility in her work. She leaves for work at around 7:45am and returns home at 6:30pm.[4]
[4] Ibid at [11]
The Father deposes that until about March 2012 the two younger children were with him for about 80% of the time, with the Mother’s consent, including staying overnight. However, the Mother stopped this arrangement in the middle of March 2012 once he had consulted a solicitor for legal assistance.[5]
[5] Affidavit of Mr Owen 10.8.2012 at [12]
The Father deposed that on 11th March 2012 the Mother attended his flat at about 10:55pm, using offensive language and demanding that the children should be returned to her immediately. He returned the children to the Mother and complied with her demands to return the girls to her overnight for fear that she would cause a further scene and he would lose his accommodation. The children spent some overnight time with him over Easter.[6]
[6] Ibid at [14]-[15]
The Father denied the allegations made by the Mother about his behaviour. He claimed that until the Mother made false allegations about his behaviour towards [X] he and [X] had had a good relationship. In April 2012 [X] asked the Father to assist him to learn to drive. The Father deposed:
I have taken the approach that it is better to give [X] time and space and wait for him to come around.[7]
[7] Ibid at [27]
In his affidavit the Father is critical of the standard of care given to the children by the Mother and by her mother, Ms N, who lives with her and the children. He states:
[Ms Owen’s] work schedule does not allow her to care for the children before and after school and child care nor to take them to and from school or child care other than on Wednesday, her day off.[8]
[8] Ibid at [28]
The Father deposes that whilst there are three bedrooms in the Mother’s home, neither [Y] nor [Z] have their own room. The Mother has one bedroom, her mother has another and her sister and her husband has a third. As a result, [Y] often appears tired and cannot find items of clothing or equipment that she needs for school. He takes [Y] to school.[9]
[9] Ibid at [30]
The Father expresses concern at what he sees as the Mother’s failure to recognise the level of supervision that the children need. He cites the example of the incident where [Z] suffered a burn injury as a result of oven cleaning fluid over her. She required hospitalisation including skin grafts. He took leave from his employment from 8th August until 11th September to care for [Z][10].
[10] Affidavit of Mr Owen 10.8.2012 at [31]
The Father sets out his proposals for the two children to live with him in his flat for ten nights each fortnight. He says that he has an appropriately furnished bedroom for the girls and can attend to the girls’ needs. He says that he can take them to and from school and child care which, he says, “are co-located and a short distance from my work”.[11]
[11] Ibid at [44]
He proposes that the children should spend alternate weekends with their mother, along with every Wednesday, which is the Mother’s day off work, and “appropriate holiday time”.
Ms A is one of the Mother’s sisters. She is married and lives in [omitted]. In her affidavit she describes having seen the Father during the marriage taking an active role in looking after the children.
Ms A deposed that she had attended the former matrimonial home since separation and has observed the Father attend to take [Y] to school and has returned in the evening to take the children to his home to spend time with them. She also confirms the Father’s observations (at paragraph [30] of his affidavit) that the Mother, her mother, her sister Ms H and Ms H’s husband are constantly watching movies on television.
Ms A expressed concern about the incident where [Z] suffered a caustic burn injury to her inner thigh at a time when there were four adults in the house. She says that her sister Ms H has refused to care for the children, saying:
“Children are not my responsibility”.[12]
[12] Affidavit of Ms A 8.8.2012 at paragraph [24]
Ms A expresses doubt in paragraphs [25] to [31] of her affidavit that the father ever physically abused [X]. She also deposed that [X] telephoned her to ask why she was supporting his father in Court and disclosed that he had read the affidavits, because his mother had given them to him to read.[13]
[13] Affidavit of Ms A 8.8.2012 at [36] - [44]
Mr S affirmed his affidavit on 10th August 2012. He and his wife are the Father’s landlords. He describes the father in positive terms and sets out his observations of the Father’s interactions with his son [X]. He knew [X] from having taught him at high school in 2011. He also describes his observations of [X] at school as “smiling, pleasant, his eyes alert with a warmth in them. He did not relate to the negative picture I had painted of unhealthy home environments.”[14]
[14] Affidavit of Mr S 10.8.2012 at [13]
Mr S set out in his affidavit his observations of the Father in company with [Y] and [Z]. Again, he described the Father’s interactions with the girls in positive terms:
I have never heard [Mr Owen][15] shout or yell at the children. He speaks in a normal voice and tone. I often see the girls behaving in an affectionate and loving manner towards [Mr Owen]. By this I mean that they will hold his hand, hug him and cuddle him.[16]
[15] Mr S refers to the father as “[omitted]” throughout his affidavit.
[16] Affidavit of Mr S at [24]
The Father also relies on the affidavit of Mr F, who is the Group Manager at the Father’s workplace. He speaks highly of the father, saying:
…Often needing to take time from working hours to get them[17] to & from school or caring for them when sick or injured. He has shown great dedication to his parenting tasks & made it his main priority during the separation.[18]
[17] i.e. his children
[18] Affidavit of Mr F 5.5.2012 at paragraphs [1]-[2]
The Mother relies on her affidavit sworn on 5th August 2012 and the affidavit of her sister, Ms H sworn on 8th August 2012.
In her affidavit, the Mother states that she was always the primary carer for the children and the Father “hardly assisted” her with their care. She sets out at paragraph [8] of her affidavit her typical routine during the week, which involves getting up at 5.30 am on weekdays, preparing school and work lunches for the family, preparing food for the evening meal, and ironing clothes before leaving for work. She arrives home at approximately 6:30pm and cooks the evening meal.[19]
[19] Affidavit of Ms Owen 5.8.2012 at paragraph [8]
The Mother sets out at paragraphs [9] to [19] of her affidavit an extensive description of abuse by the Father directed at [X], progressing from being “verbally aggressive” with him to “physically manhandling [X] in a violent manner”.[20] She deposes that early one morning in December 2010 [X] disclosed to her that he wanted to commit suicide and then revealed to her “the full extent of the physical and emotional abuse that he was subjected to at the hands of [Mr Owen].”[21]
[20] Ibid at [9]-[10]
[21] Ibid at [11]-[13]
Later in her affidavit, at paragraph [16], the Mother deposes that on one occasion “around 2008-2009” she heard a commotion and:
I heard [Mr Owen] fighting with [X] and then I saw [Mr Owen] grabbing [X] by the collar of his short and pushed and kept pushing him on [X]’s chest and he said to [X] come on mate “you want to fight, come on let’s fight, be a man, come on hit me…I will beat the crap out of you”.[22]
[22] Ibid at [16]
The Mother denies that she has ever given [X] court documents to read and claims that she has done her best to protect him from being involved in the current proceedings.
At paragraphs [20] to [24] of her affidavit the mother deposes that the Father had a history of drinking to excess throughout the marriage. She expresses concern that the Father continues to drink whilst he has the care of the two girls [Y] and [Z].
The Mother goes on to depose:
I did not mention the issue with the alcohol previously, because I wanted to protect [Mr Owen] and I did not want the children to think that they have the worst father. I do not want to protect [Mr Owen] anymore. [23]
[23] Affidavit of Ms Owen at [24]
The Mother also deposed that, after she applied for an administrative assessment of child support in September 2011, the Father became very insistent in demanding that the two girls should stay with him overnight. He would arrive in the evening and cause a scene, so the Mother “stopped resisting overnight time for [Mr Owen] with the children, because the situation in my opinion was getting dangerous”.[24]
[24] Ibid at [27]-[33]
The Mother sets out the current parenting arrangements at paragraphs [34] to [38] of her affidavit:
a)The Father spends time with the girls each alternate weekend from after school Friday until 6:00pm on Sunday;
b)The Father collects the girls from the Mother’s home at 8:30am every morning except Wednesday and delivers them to school and pre-school;
c)The Father collects the girls from school and pre-school every afternoon except Wednesday and takes them back to his workplace until 5:30pm, and then delivers them back to her at about 8:00pm.
The Mother does not agree that it is necessary for the Father to call at the home at approximately 8:30 every morning to collect the girls to take them to school or pre-school:
I say that I am available to take the girls to their schools every morning.[25]
[25] Ibid at [38]
The Mother proposes that [Z] should remain at child care until about 6:00pm or 6:20pm, when she can collect the child on her way home from work. She also proposes that her mother is available to collect [Y] from school and can bring her home and care for her until the Mother arrives home from work. The Mother works for four days a week as an [omitted] at [suburb omitted]. She states:
I usually start work at 9:00 am until 5:00 pm. I need approximately one hour to travel to and from work each day.[26]
[26] Affidavit of Ms Owen at [41]
The Mother also claims that the Father’s proposal for the girls does not take into consideration their relationship with their brother:
I have observed that [X] and the girls are very close and have a genuine loving and protective relationship with each other. To separate the girls from [X] for extensive periods of time would be cruel and certainly not in the best interests of the girls.[27]
[27] Ibid at [44]
The Mother denies that there was any fault involved in the circumstances of [Z]’s being burned with oven cleaner, and says that it was purely an accident.
The Mother also sets out that the two girls spent a week with their father during the July school holidays. She stated that the girls returned home “with fevers and running noses and in fact the girls missed the first days of their school”.[28]
[28] Ibid at [61]
She states that the girls complained to her that the Father had smacked or hit [Z], had shouted at [Y] “at least three times a day” and [Y] complained to her:
“It was the worst holiday ever mummy”.[29]
[29] Ibid at [62]-[64]
The Mother made a report to the Department of Community Services.
The Mother deposed that [X] complained to her that her sister Ms A had been abusive and intimidating to him and that he wanted to report the incident to the Police at [omitted] Police Station.
The Mother’s sister Ms H swore an affidavit on 8th August 2012. At paragraph [4] sub-paragraphs (a) to (u) of her affidavit she denies the contents of the affidavit of her sister Ms A.
Ms H describes in her affidavit at paragraph [5] that the first time [X] told her about “his father abusing him physically and emotionally was in approximately 2007”.
Ms H is very critical of the involvement of her sister Ms A and their other sister Ms R, who she claimed turned up at the house without invitation on 6 July. She states that when [X] asked her to leave:
…she became very angry, screaming and shaking and standing right in front of [X]’s face and was very abusive to [X] and said words to the following effect: “don’t ever speak to me like this”.[30]
[30] Affidavit of Ms H 8.8.2012 at paragraph [7]
Submissions
The Independent Children’s Lawyer, Mr Hearl, submitted that the evidence of the parties was so conflicting that the prospect of a definitive factual finding on contested issues is remote. In particular, there is no objective evidence as to the impact of the parental conflict on the two younger children, [Y] and [Z]. Accordingly, the Court should be cautious about changing the existing arrangement that has been in place since March of this year. Although it is not ideal, it appears to be working.
There is no objective evidence that the children are suffering. It is hard to ascertain what impact that any change to these arrangements would have on the children’s relationships with their parents, their brother and other members of their extended family.
Mr Hearl submitted that there is no evidence, or at least no independent evidence, of the relationship between [X] and the two girls. He is a boy of almost 16 years of age, so it is likely that there is very little interaction between him and the girls.
The Independent Children’s Lawyer is not suggesting any significant change to the existing arrangements. The parties’ evidence is completely at odds. There is no Family Report to assist the Court.
Ms Thompson, for the Applicant Father, submitted that the Father’s concerns about the children have been outlined. She outlined the Father’s proposal which differed slightly from that set out in the Case Outline, as:
a)In the first week of each fortnight, the children would live with the Father from 6:00pm on Sunday until 10:00am on the following Sunday, with the children spending Tuesday night with their mother; and
b)In the second week of each fortnight, the children would live with the Father from 6:00pm on Sunday until 6:00pm on the following Friday, and again they would spend the Tuesday night with their mother.
It was submitted that there was no evidence that the Mother could take [Y] to school or [Z] to pre-school on the four days a week when she is at work. The Mother has Wednesday off work each week.
This arrangement, it was submitted, leaves in place much of the existing arrangements but has the advantage of reducing the number of changeovers each week. In the alternative, Ms Thompson submitted that the Court should fall back on the proposal in the Father’s case outline.
It was submitted for the Father that the two younger children are in no danger of harm when they spend time with the Father in the staff area at his workplace, or at all. However, the Father has clear concerns about the children being exposed to harm if they remain in the care of their mother. The circumstances of the caustic burn to [Z] have not been properly explained.
Ms Thompson referred the Court to the decision of Altobelli FM in Calvert & Calvert[31], where his Honour gave a comprehensive review of the literature on alienation of children from a parent at paragraphs [23] to [43].
[31] [2008] FMCAfam 101
The Mother’s allegations of family violence are unsupported and it is significant that there is no family violence order in place.
The Father seeks an order that he should either have sole parental responsibility for the girls or that the parents should have equal shared parental responsibility for them.
Counsel for the Respondent Mother, Mr Fermanis, submitted that the Mother’s proposal was a significant departure from the present arrangement, involving the Father spending time with the children from after school on Friday until Thursday morning in alternate weeks and in the of week from after school on Thursday until before school on Friday. Again, the reason for the proposal is to reduce the number of changeovers between the parties.
Whilst it was conceded that the Father’s proposal had some practical desirability, there were also difficulties in that the proposal failed to take into consideration the effect on the relationship between the two girls and [X] and between the two girls and their mother.
The Mother seeks that she should have sole parental responsibility for [X] and that the parties should have equal shared parental responsibility for the other two children.
It was submitted that there was no risk of harm to the children in their mother’s care.
Mr Fermanis told the Court that, because the Mother has Wednesdays of from work, she takes the children to and from school and pre-school on Wednesdays.
As for the Father’s proposed order seeking a restraint on the Mother arranging counselling for [X], it was submitted that this was reasonable in principle but the Court should wait until the child’s wishes were known.
In a submission in reply, the Independent Children’s Lawyer said that it did not appear that a Single Expert report was required but that there should be a Family Report by a Family Consultant.
Mr Hearl agreed that it was desirable to minimise disruption to the children by reducing the number of changeovers between the parties to reduce friction. Clearly, as the Mother does not go to work on Wednesdays, the children should be in her care on Tuesday night and all day on Wednesday.
[X], however, is in a different category.
The Relevant Law
Section 60CA of the Family Law Act requires the Court, in deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration (see also s.65AA). A Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC of the Act.
The primary considerations are set out in s.60CC(2), being the benefit to the child of having a meaningful relationship with each parent and the need to protect the child from physical or psychological harm from abuse, neglect or family violence.
Under the recent amendments to the Family Law Act, there is now an added subsection 60CC(2A), which provides:
In applying the considerations set out in subsection (2), the court is to give grater weight to the consideration set out in paragraph (2)(b).
Subsection 61DA(1) requires the Court, when making a parenting order, to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child. The presumption does not apply in cases where there are reasonable grounds to believe that a parent has engaged in abuse or family violence (s.61DA(2)). The presumption may be rebutted by evidence that satisfies the Court that applying the presumption would not be in the child’s best interests (s.61DA(4)).
When the Court is making interim orders, 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 (s.61DA(3)). Section 61DB provides that if there is an interim parenting order in relation to a child, the court must, in making a final parenting order, disregard the allocation of parental responsibility made in the interim order. Parental responsibility is considered afresh when the Court is making a final parenting order.
If the presumption of equal shared parental responsibility does apply, the Court is required by s.65DAA(1) to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent. If the Court decides that it is not, the Court must then consider whether it is both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent (s.65DAA(2)).
All of those matters have been considered in respect of the parenting orders relating to the three children.
Conclusions
It is certainly the case that the parties’ evidence on a number of significant issues differs greatly, to the extent of being diametrically opposed. It is well-nigh impossible, in interim proceedings where evidence is not tested by cross-examination, to make findings of fact on controversial issues. That does not mean, however, that the Court does not give critical examination to the affidavit or other evidence presented. It may be the case that, taking a party’s evidence at its highest, the Court may not be persuaded that the evidence supports a particular part of the party’s case.
Where parties put differing proposals to the Court as to interim parenting orders for a child, the Court may well subject these proposals to a critical analysis in order to determine whether those proposals will in fact be in the child’s best interests.
Whilst the Independent Children’s Lawyer counsels the Court to make relatively little change to the existing arrangements, both the Mother and the Father propose more significant changes to the current arrangements, even to the extent or providing alternative proposals.
The Court is not bound by any of the parties’ proposals. The Court’s duty under s.60CA of the Act is to make parenting orders by placing the best interests of the child or children concerned as the paramount consideration.
As the Independent Children’s Lawyer has rightly pointed out, the child [X] is in a different category to his two younger sisters. Not only is there a significant age difference, as [X] is seven years older than [Y] and over thirteen years older than [Z], but the relationships between [X] on the one hand and the two girls on the other with their father is markedly different.
It is for these reasons that [X]’s situation will be considered separately from the situation of his two sisters.
[X]
Considering parental responsibility, the Father seeks no orders other than an injunctive order restraining the Mother from taking the child to counselling. The Mother seeks an order for sole parental responsibility.
It is not in issue that the relationship between [X] and his father has broken down. The Father blames the mother for “demonising” him to the child. The Mother asserts that the gulf between [X] and his father is a direct result of the Father’s physical and emotional abuse of the child over a number of years. This assertion is supported by the Mother’s sister Ms H in her affidavit. The Father denies the allegations.
The Father’s solicitor has referred the Court to the decision of Altobelli FM in Calvert & Calvert[32]. In his judgment, his Honour referred to academic publications by a number of authorities, including Kelly and Johnston:
[32] supra
Thus Kelly and Johnston describe the continuum of child-parent relationships after separation as ranging from:
a) positive relationships with both parents;
b) affinity with one parent;
c) allied children;
d) estranged children;
e) the alienated child.[33]
[33] [2008] FMCAfam 101 at [28]
In this case, there is insufficient evidence to decide exactly where [X] would be on the above continuum. It would require a social science practitioner to decide whether [X] should be characterised as “alienated” or “estranged” from his father. It is certainly clear, however, that the relationship between [X] and his father is not good at this stage, and has not been so since earlier this year.
The relationship between [X]’s mother and father is presently so poor that there is no prospect of realistic communication between them about issues concerning [X]. Accordingly, the interim order to be made is to provide that the Mother should have sole parental responsibility for [X].
There is not sufficient evidence to make the injunctive order sought by the Father restraining the Mother from taking [X] to counselling. This is a matter that may need to be considered by a Family Consultant in a Family Report.
The Father is not seeking any other parenting order in respect of [X]. The Mother seeks an order that the Father should spend time with [X] in accordance with [X]’s wishes. It is to be hoped that [X] and his father may reach a stage that they can resume a relationship in some form, but with a boy who is nearly seventeen years of age there is little point in prescribing any further parenting regime.
The Mother has deposed to incidents of violent, abusive or aggressive behaviour by the Father towards [X] in the past. However, there is no family violence order in force and the mother’s claims remain untested. Bearing in mind the need to protect the child from physical or psychological harm from subjected to family violence, caution would dictate that no specific parenting order should be made in respect of [X] except to provide that he should be able to spend time with his father as he wishes.
In my view it would be in [X]’s best interests to order that the Father should spend time with him according to [X]’s wishes.
[Y] and [Z]
The Father seeks an order that he should have sole parental responsibility for the two girls [Y] and [Z] but the Mother seeks an order for equal shared parental responsibility.
As these are interim proceedings, subsection 61DA(3) provides that the presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
There is evidence of a high degree of conflict and a poor degree of communication between the parties. Against this, each parent seeks orders that the children will spend time with the other parent. The Family Consultant reported in the Memorandum to the Court of 4 June 2012 that the mother “appears to acknowledge that both [Z] and [Y] enjoy spending time with their father”.[34]
[34] Family Consultant Memorandum to Court 4.6.2012 page 2
Taking those matters into account, I do not consider that it would not be appropriate in the circumstances for the presumption to be applied.
Accordingly, the parties will have equal shared parental responsibility for the two girls [Y] and [Z].
If a parenting order provides that children’s parents are to have equal shared parental responsibility for them, subsection 65DAA(1) requires the Court to consider whether the child spending equal time with each parent is both in the best interests of the children and reasonably practicable.
If the Court does not make such an order, then consideration must be given to an order that would involve the children spending substantial and significant time with each parent.
This exercise requires the Court to consider what is in the children’s best interests, by considering the matters in subsections 60CC(2) and (3) of the Act. There is evidence that having a meaningful relationship with both parents is in the children’s best interests.
However, the Court must give greater weight to the need to protect the children from physical or psychological harm by being subjected to or exposed to abuse, neglect or family violence.
The Father has expressed concern about the safety of the girls in the Mother’s care, noting that there does not seem to be an adequate explanation for the caustic burn injury suffered by [Z]. The Mother has deposed in her most recent affidavit to examples of excessive drinking by the Father, but, again , this is untested.
There is no evidence that would be sufficient to find that the Mother’s expressed fear that the children may suffer harm in their father’s care has been established.
It is in the best interests of the children that they should spend time with their father and their mother.
There is no independent evidence of the views of the two girls on this issue, although [Z], at least, is far too young for any weight to be given to any views she expresses.
The parties have a significant relationship with each of the two girls and, apparently, their maternal grandmother, who lives in the same household.
The children are already spending time with each parent on a regular basis, although both parents are seeking to change the ratio of days each fortnight that the children spend with each parent.
The Independent Children’s Lawyer has counselled against making any significant change to the current arrangements, although he is of the view that the numbers of changeovers each week should be reduced to avoid, or at least, reduce the friction between the parents brought about by frequent contact.
The degree of conflict between the parties is such that an equal time arrangement is not at all practicable, even if it were in their best interests.
It appears to be in the children’s best interests and reasonably practicable, notwithstanding the discord between their parents, to spend substantial and significant time with each parent.
However, the current arrangement is flawed, In that it involves too many changeovers. Neither parent’s proposal offers a solution that is in the children’s best interests.
The Father’s proposal, that the children should live with him, involves too radical a change in the children’s lives, reducing their time with the Mother to four nights per fortnight. [Z] is still very young, as the Family Consultant has pointed out, and substantial time away from her mother may be difficult for her to manage.
The Mother’s proposal, as set out in her affidavit, appears to be lacking in logic. Given that the Mother does not go to work on Wednesdays, it seems curious that she would propose, as she does in her case outline, that [Y], but not [Z], should spend every Tuesday night with her father, from after school on Tuesday until the commencement of school on the Wednesday. If ever there were a day in the week when it would be convenient for the Mother to take [Y] to school, it would be Wednesday, when the Mother does not have to go to work.
It is hard to accept the Mother’s contention that it is not necessary for the Father to attend at her home at 8:30am each day to take the girls to school and pre-school, because she is available to take the girls every morning, as she states at paragraph [38] of her affidavit. The Mother says at paragraph [41] that she starts work at [suburb omitted] at 9:00am and she needs approximately one hour to travel to and from work each day. On the Mother’s own evidence, she would have to leave home with the girls before 8:00am each day to deliver the girls to school and pre-school at [B] and then get to work at [suburb omitted] by 9:00am.
The Mother’s proposals for the girls to be collected from school and pre-school each afternoon are equally puzzling. She suggests at paragraph [40] that her mother is available to collect [Y] from [B] School and take her home. It is a matter of public knowledge that schools usually finish between the hours of 3:00pm and 4:00pm.
Why, then, would the Mother propose at paragraph [39] that [Z] should remain at pre-school, at the [B] Early Learning Centre in the grounds of [B] School[35], until her mother can collect her some time between 6:00 and 6:20pm?
[35] Father’s affidavit paragraph [4]
It is difficult to understand why [Y], aged 9, should be able to go home from school some time after 3:00pm but [Z], aged 3, has to stay at pre-school in the same location for another three hours or so.
The Mother’s proposal is illogical and hardly appears to be in the children’s best interests.
In my view, an arrangement that is in the children’s best interests would involve:
a)[Y] and [Z] being together whenever they spend time with their father;
b)A reduction in the number of times that the children change from the care of their mother to the care of their father; and
c)The children spending all of Wednesdays during the school term with their mother.
A way to reduce the likelihood of conflict between the parties is for changeover to take place at school. Consequently, the children should spend a block of time in the first week of each fortnight with their father from immediately after school or pre-school on Thursday until the commencement of school or pre-school on the Tuesday, whether or not the Monday is a public holiday. The Father would take the children to school or pre-school on the Friday, Monday and Tuesday morning. He may well need to wash and iron the children’s clothes over the weekend and perhaps arrange to keep some spare underclothes and casual clothes for them at his home.
The children would spend the weekend that includes Mother’s Day with their mother and the weekend that includes Father’s Day with their father, from after school on Thursday until the commencement of school on the Tuesday.
In this way, the children would spend a block of five nights per fortnight with their father and nine nights a fortnight with their mother.
The children should spend a week during the mid year school holidays with their father and two separate weeks in the January school holidays with him
The children would also spend time with their father on Christmas Eve, Christmas Day and Boxing Day with their father in an alternating arrangement as proposed by the mother in her Amended Response.
For more abundant caution, an order will be made as proposed by the Mother in her Amended Response restraining the father from consuming alcohol prior to or during the times when the children are spending time with him.
The Future Progress of this Application
The parties are in dispute about property and parenting matters and have been unable to resolve any of the issues between them. There is an Independent Children’s Lawyer. It seems clear that a Family Report will be needed.
The parties’ lawyers need to turn their minds to the length of time these proceedings will take to hear. With all matters in issue, it is unlikely that the final hearing will be resolved in less in anything under four days and may well take longer.
In January 2010 the Chief Federal Magistrate and the Chief Justice of the Family Court published a protocol for the division of work between the Federal Magistrates Court and the Family Court. The protocol provides that certain final hearings should ordinarily be heard in the Family Court, including matters likely to take in excess of four days of hearing time.
If it is the case that the final hearing of this matter is likely to take more than four days of hearing time, then it would be appropriate for an order to be made transferring the proceeding to the Family Court under the provisions of section 39 of the Federal Magistrates Act 1999.
The Court invites submissions from the parties’ lawyers and the Independent Children’s Lawyer on this subject.
I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 20 November 2012
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