PADELFORD & TSUI

[2016] FamCA 380

FAMILY COURT OF AUSTRALIA

PADELFORD & TSUI [2016] FamCA 380

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the father seeks orders that he spend time with the child on a graduated basis, increasing to unsupervised overnight time – Where the mother seeks orders that the father’s time with the child be supervised for two hours per week –Where the child has cerebal palsy and has spent no time with the father in two years – Where there are disputed allegations of family violence – Presumption of equal shared parental responsibility not applied – Orders made for the child to live with the mother – Orders made for the father to spend supervised time with the child.

Family Law Act 1975 (Cth)

APPLICANT: Mr Padelford

RESPONDENT: Ms Tsui

FILE NUMBER: SYC 442 of 2014

DATE DELIVERED: 20 May 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 28 April 2016

REPRESENTATION

THE APPLICANT: Mr Padelford appeared on his own behalf

COUNSEL FOR THE RESPONDENT: Mr Livingstone

SOLICITOR FOR THE RESPONDENT: Armstrong Legal

Orders pending further order

1. The child M born on … 2010 (“the child”) will live with the mother.

2. M will spend time with the father from 1.00 pm until 3.00 pm each Thursday subject to the following conditions:

   (a)the first four such periods will be supervised by a member of staff of E Org, whose fees shall be paid by the father;

   (b)the father’s daughter D or a person nominated by the mother will be present on all subsequent occasions;

   (c)the father may select as the venue for these periods his home at C Street, Town B subject to any determination by the supervisors from E Org; and

   (d)the parties will effect changeovers at Suburb F Railway Station or such other place as they may agree in writing from time to time.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Padelford & Tsui has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 442  of 2014

Mr Padelford

Applicant

And

Ms Tsui

Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings concern parenting arrangements for the child M, who was born in 2010 and is currently five years of age.  Specifically, the issues for determination are what time the child should spend with the father and if there any necessity for supervision.

2. The applicant father, Mr Padelford, sought the following orders:

   1.The application is to allow the Child [B] to spend an increasing amount of time with the Father over a period of three months.  The process is divided into a series of ‘steps’.

   2.Step 1 of graded transition.  the child to spend one session of two hours at [C Street, Town B] per week with supervision if requested by the mother.

   a.The first occurrence to be Saturday 30th April 2016, and to continue for two Saturdays (to include 7th May, 2016)

   b.Handover to be either at the Suburb F train station at 11.15 am and the return at 2.45;  OR outside the RSL in [Town B] at 12.00, and return at 2.00.  The wife to select which is most convenient for her.

   c.Supervision.  If the mother seeks supervision, then she may select one of three options.

   i.As recommended by [Ms G], the applicant’s daughter [Ms D] (age 22 and in 3rd year of a University course …) be in attendance while the child and father are together.

   ii.The mother nominate a friend or colleague to be present at her expense.

   iii.A professional supervisor is selected by the mother.  Both mother and father to submit cheques or other payment to cover the full costs of the supervision to the mother’s lawyers.  If the supervisor reports violent, threatening, or intimidating behaviour by the father, then the father’s cheque pays the costs;  but if there is no more anxiety than may be expected after an almost 2 year absence on contact, then the mother’s cheque be used to pay for the supervisor’s costs.

   iv.This arrangement is for 2 weeks, unless changed by written agreement between mother and father.

   3.Step 2 of graded transition.  the child to spend one session of four hours per week at [C Street, Town B] with no supervision unless Step 1 is not successful, in which case arrangements for Step 1 should continue.

   a.The first occurrence to be Saturday 14th May, and continuing to and including May 28th.

   b.Handover to be either at the [Suburb F] train station at 9.15 am and the return at 4.45;  or outside the RSL in [Town B] at 10.00, and return at 4.00.  The wife to select which is most appropriate.

   c.This arrangement to occur for 3 weeks, unless changed by written agreement between mother and father.

   4.Step 3 of graded transition.  [The child] to spend two sessions in each week of at least four hours at [C Street, Town B] with no supervision.

   a.The first occurrence to be Saturday 4th June, the second session to be on Tuesdays.

   b.Handover to be either at the [Suburb F] train station at 9.15 am and the return at 4.45;  or outside the RSL in [Town B] at 10.00, and return at 4.00.  The wife to select which is most appropriate.

   c.This arrangement to continue to and include 14^th June.

   5.Step 4 of graded transition.  the child to spend two days with one overnight per week at [C Street, Town B] with no supervision.

   a.The first occurrence to be Friday 17 June or Saturday 18 June.

   b.Handover to be either at the [Suburb F] train station at 9.15 am and the return at 4.45 on the following day;  or outside the RSL in [Town B] at 10.00, and return at the following day at 4.00.  The wife to select which is most appropriate.

   c.The mother to add her contact details to the child’s SKYPE account, so when the child stays overnight in [Town B], he is able to say goodnight to her.

   6.The parties may modify these arrangements in orders 2-5 by written agreement.

   7.Both parties will keep each other fully informed of reports treatments relating to the child’s health and spasticity, and to discuss and agree on arrangements for the child’s schooling.

   8.That the court appoint an Independent Children’s Lawyer.

   9.Both parties to declare all income, benefits and outgoings in order for the Court to assess their ability to provide for a stable home environment for the child.

   10.Long term parenting arrangements to be determined by the LAT process.

3. The respondent mother, Ms Tsui, sought the following orders:

   1.That the Respondent Mother has sole parental responsibility for the child [M] born … 2010 (“the child”).

   2.That the child lives with the Respondent Mother.

   3.That within thirty (30) days of the date of these orders, the Applicant Father do all things necessary to enrol into and attend a support program for parents with children of cerebral palsy, in respect of understanding the physical, emotional, social and practical challenges of parenting a child with cerebral palsy, as run by the Cerebral Palsey Alliance.

   4.That within seven (7) days of the date of these orders, the parties do all things necessary to retain the organisation, namely “[E Org]” for the purposes of implementing supervised contact visits taking place between the child and the Applicant Father.

   5.That the child spends supervised time with the Applicant Father each Thursday from 1:00 pm to 3:00 pm.

   6.That for the purpose of implementing Order 5 above, unless otherwise agreed between the parties:

   6.1The child’s time with the Applicant Father take place at the McDonald’s Restaurant located on the corner of the [H Street, Town I], NSW ...

   6.2The child’s time with the Applicant Father at all times be supervised by the organisation [E Org], with such costs of any supervisor to be paid by the Applicant Father.

   6.3The Applicant Father refrain from making critical or derogatory remarks about the Respondent Mother or members of her family in the presence or within the hearing of the child and do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Respondent Mother or members of her family in the presence or within the hearing of the child.

   6.4The Applicant Father is restrained by injunction from discussing the proceedings and his relationship with the Respondent Mother or with or within the hearing of the child and the Applicant Father do all things reasonably necessary to ensure that no other person discusses the proceedings or the parents’ relationship with or within the hearing of the child.

   6.5The Applicant Father is restrained by injunction from yelling at or within the hearing of the child and the Applicant Father do all things reasonably necessary to ensure that no other person yells at or within the hearing of the child.

   6.6The Applicant Father is restrained by injunction from physically disciplining the child and the Applicant Father does all things reasonably necessary to ensure that no other person physically disciplines the child.

   6.7The Applicant Father implement any strategy guidelines as may be recommended by any medical professional in which the child may attend from time to time, to ensure consistency and care.

   7.Should the Applicant Father not comply with Orders numbered 6.2 to 67 [sic] when the child is in his care, the child is returned to the Respondent Mother immediately by the supervisor or arrangements be made by the supervisor for the Respondent Mother to collect the child.

   8.That if a supervisor is unavailable to supervise the child’s time with the Applicant Father, the Applicant Father’s time with the child is suspended unless otherwise agreed between the parties.

   9.That the Applicant Father be at liberty to telephone the child whilst the child is living with the Respondent Mother on the mobile telephone number as provided by the Respondent Mother, with such call being facilitated by way of a voice call between 8:30 am and 9:30 am each Tuesday.

   10.That for the purposes of communication pursuant to Order 9 above, the following applies:

   10.1The Respondent Mother will encourage the child to have communication with the Applicant Father by providing the telephone to the child to answer the telephone and to encourage the child to return a missed call by the Applicant Father as soon as reasonably possible; and

   10.2The Respondent Mother do all things necessary to ensure that the mobile telephone remains charged, operable and otherwise not in use for a substantial period of time during the period of time in which the Applicant Father may call pursuant to Order 9 above.

   11.That for the purpose of communication between the parties in respect to child related issues, the parties communicate by way of a communication book that travels with the child at changeover, and for matters of an urgent nature, the parties will instead communicate by telephone call.

   12.That for the purpose of facilitating communication pursuant to Orders 9 and 11 above, each party do all things necessary to notify the other party of a change in their contact telephone number(s) as soon as reasonably possible, and within twenty-four (24) hours of any such change.

   13.That the Respondent Mother refrain from making critical or derogatory remarks about the Applicant Father or members of his family in the presence or within the hearing of the child and do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Applicant Father or members of his family in the presence or within the hearing of the child.

   14.That the Applicant Mother is restrained by injunction from discussing the proceedings and their relationship with the Applicant Father with or within the hearing of the child and the Respondent Mother do all things reasonably necessary to ensure that no other person discusses the proceedings or the parents’ relationship with or within the hearing of the child.

Background

1. The father and the mother, who are aged 66 and 41 respectively, met in Asia in approximately March 2000.  They are both highly qualified scientists.  The parties commenced a relationship in about August 2009, when the father lived and worked in the United States and the mother in Country J.

2. The parties married in 2010 in Country J but continued to live in different countries.  It appears that the mother was unable to obtain a visa which would permit her to live and work in the United States.  In May 2011 the mother, her daughter K and the child moved to Australia and took up residence in the father’s home at C Street, Town B.  The father spent three weeks with the mother and the children, before he returned to the United States.

3. The father and his daughter Ms D who is now aged 22, returned to Australia from the United States in August 2013.  Between May 2011 and August 2013 the father travelled to Australia to spend time with the mother and the child every two to three months.  He paid household expenses directly and provided cash to the mother.

4. Between November 2011 and February 2012 the maternal grandmother came to Australia from Asia and lived in the Town B property.  She returned to Asia in February 2012, when her husband fractured his leg.  According to the mother her intention had been to re-enter the workforce while she had assistance with the care of K and the child from the maternal grandmother.

5. Between 20 September 2013 and 3 November 2013 the mother and the children were in Asia, with the father’s consent.  On 20 September 2013 the father emailed the mother and advised her that he was contemplating a separation.  On 5 November 2013 the father informed the mother “I want a divorce as soon as possible.”

6. On 16 November 2013 the father returned to the United States for employment purposes.  On 2 January 2014 the mother moved out of the Town B property, taking the child and K with her.  Currently the mother and the children live in Department of Housing accommodation.

7. The father returned to Australia in January 2014 and has since lived at the Town B home with his daughter D.  She is a student at L University, where she is undertaking a degree in psychology.  The father has travelled to the United States for work purposes and, in fact, the date for the interim hearing was selected to accommodate the needs of his employment.

8. M spent time with the father in January, February and March 2014 for two hours on each Saturday when he was in Australia.  Between March and May 2014 the father was in Asia for employment reasons.  On the father’s return to Australia, the mother refused to allow the child to spend time with him on an unsupervised basis.  The father did not agree to this proposal.

9. During November 2014 there was limited telephone communication between the child and the father.  Since approximately May 2015 they have communicated by Skype once per week.  There has been no face-to-face contact between the child and the father for almost two years.

10. The mother made allegations that the father subjected her to violence and controlling behaviour.  These allegations were denied by the father and I cannot make findings in relation to such disputed issues in the context of an interim hearing, where there is no testing of evidence.

11. M is a special-needs child who has been diagnosed with spastic diplegia, which is commonly known as cerebral palsy.  The mother has had extensive involvement with a specialist team at N Hospital in relation to the child’s condition and treatment.  The father has had little or no involvement in the child’s diagnosis and very limited contact with his health care professionals.  It would seem that the father has been afforded limited, if any, opportunity for further participation in the management of the child’s condition.

12. On 9 December 2014 the parties and the child attended an interview with Family Consultant Ms G who prepared a Memorandum dated 13 January 2015.  The Family Consultant observed the child’s interaction with each of his parents.

13. The Family Consultant made these observations as to the child’s interaction with the father:

    5.[M] demonstrated pleasure on seeing his father and he sought to engage with him throughout their time together.  He appeared to be comfortable and relaxed in his company.  Likewise, his father engaged with him in an easy and playful matter.  [Mr Padelford] was also observed to be responsive to the child and to engage in appropriate parenting behaviour throughout the observation.

14. The mother repeated her allegations of violence, verbal abuse and anger on the part of the father to the Family Consultant.  She also expressed concern as to the father’s ability to care for the child and noted that he has suffered from two strokes.

15. The father revealed to the Family Consultant that he has suffered from depression since the death of his daughter Ms D’s mother in a car accident in 1994.  The father made the Family Consultant aware that he has consulted a psychologist.  Copies of reports from two psychologists were annexed to the father’s affidavit sworn on 24 January 2014.

16. The Family Consultant offered these opinions:

    17.Clearly, [Ms Tsui] and [Mr Padelford] made better friends than they did partners and better partners in a distance relationship than in close proximity to one another.  From both of their accounts, it would seem that the time they spent actually living together was stressful for all concerned.  One of the common effects of stress is irritability, which, in the normal course of events, tends to subside when the stress is relieved.

17. The Family Consultant expressed the view that “[M] needs to start spending time with his father, on whatever basis this is to happen.”  She made no specific recommendations and, in my view, did not endorse supervision by the father’s daughter Ms D.  The Family Consultant merely noted:

    7.Whether [Mr Padelford’s] physical health problems constitute a risk factor depends on the severity of his difficulties, in particular whether there is any likelihood of his suffering a major stroke or a serious diabetes-related episode whilst the child is in his sole care.  Any risk to the child in the event of such catastrophic event would of course be mitigated if [Ms D] were also to be present.

Consideration

1. I have referred above to the disputed allegations of family violence, in relation to which I can make no findings in the context of this interim hearing.  In these circumstances, I propose to apply the provisions of section 61DA(3) and make no presumption that it is in the child’s best interests that the parties’ have equal shared parental responsibility.

2. The proceedings have been listed for a trial for five days in November 2016.  Accordingly, I am called upon to make interim orders which will govern the time which the child will spend with the father for the next five months.

3. On the face of the situation, the mother’s proposal for supervision by staff of E Org seems to have considerable merit.  There has been no

   
   

   face-to-face contact between the child and the father for almost two years.  The father suffers from health problems and has had no recent experience in dealing with the child’s special needs.

4. The father informed the Court, however, that neither party can afford professional supervision.  I have some reservations about that proposition, given that the father travels internationally for work-related purposes and must have funds available for that purpose.  Further, the father proposed as one alternative orders which would have each of the parties provide cheques to meet the cost of a professional supervisor.

1. On the face of the mother’s affidavit, she is significantly anxious about a reintroduction of the child spending unsupervised time with the father.  It seems to me that there is considerable merit in her proposal for supervision by staff of E Org.  I will make orders which will provide for such supervision for a period of four weeks, at the cost of the father.

2. It seems to me that the father’s daughter D could thereafter ensure the child’s safety during his time with the father.  Additionally, the father proposed that the mother nominate “a friend or colleague” to be present during the child’s time with the father.  This combination of alternatives should result in the child being able to spend time with the father in safety, which in turn may alleviate the mother’s anxiety.

3. I do not propose to make orders which will introduce overnight time at this stage.  the child’s reaction to a resumption of face-to-face time cannot be predicted with any certainty but the observations of the Family Consultant of his interaction with the father provide a basis for optimism.

4. I will make orders which allow the child to spend time with the father at the Town B home.  I accept the evidence of the father to the effect that this alternative is preferable to a McDonalds restaurant, because it is quieter and offers more activities.

5. I will not order that the father attend a support group for parents of children who suffer from cerebral palsy.  It seems to me, however, that he would be well-advised to do so.

6. I will not make an order granting sole parental responsibility to the mother.  In my view, that determination is best made after a testing of the evidence at trial.  I will make an interim order that the child live with the mother.  I will not make the injunctive orders sought by the mother, which rest on her contested allegations in relation to the father’s conduct.

7. I will order that changeovers take place at Suburb F Railway Station.  The father lives at Town B and the mother proposed that the child spend time with him at I Town.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 20 May 2016.

Associate: 

Date:  20 May 2016