PADLEY & PADLEY

[2015] FCCA 2281

FEDERAL CIRCUIT COURT OF AUSTRALIA

PADLEY & PADLEY [2015] FCCA 2281

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – parental responsibility – best interests of the child – one child aged 2 years – mental health issues raised – separate representation of child – appointment of Independent Children’s Lawyer – time with child – supervision – whether father’s time with child should be supervised – whether unacceptable risk – Watch list – Family Law Watch List – whether child’s name should be placed on Family Law Watch List – whether injunction to restrain parties from removing child from Australia necessary – where no evidence child has an Australian passport – no evidence of any risk that child will be removed from Australia.

EVIDENCE – Relevance – whether evidence of psychiatric treatment in 2006 relevant to proceedings in 2015.

PRACTICE AND PROCEDURE – Application for parenting orders – interim orders – application for interim orders – where interim orders sought identical to final orders sought – undesirability of seeking inappropriate interim orders – “cut and paste pleading” undesirable.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DB, 65DAA, 68L

Cases cited:
Re K (1994) 17 Fam LR 537; FLC 92-461

Applicant: MR PADLEY

Respondent: MS PADLEY

File Number: SYC 1219 of 2015

Judgment of: Judge Scarlett

Hearing date: 11 August 2015

Date of Last Submission: 11 August 2015

Delivered at: Sydney

Delivered on: 13 August 2015

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Ms Winfield

Solicitors for the Respondent: Eleanor Murphy & Company

ORDERS

UNTIL FURTHER ORDER

1. The Applicant and the Respondent are to have equal shared parental responsibility for the child X born (omitted) 2013.

2. The child X is to live with the Respondent mother.

3. The Applicant father is to spend time with the child X as follows:

   (a)from 9:30 am to 12 noon each Monday;

   (b)from 8:00 am to 11:30 am each Thursday and for this purpose the father is permitted to attend the child’s swimming lessons;

   (c)from 9:30 am to 12 noon each Sunday except for Mother’s Day;

   (d)from 9:30 am to 12 noon on the child’s birthday and the father’s birthday; and

   (e)at such other times as the parties shall agree.

4. For the purpose of facilitating the above Orders, changeover where the child goes from the care of one parent to the care of the other parent will take place as follows:

   (a)On Mondays at (omitted) Park or (omitted) Library as the parties shall agree;

   (b)On Thursdays at the (omitted) Leisure Centre;

   (c)On Sundays at (omitted) Park; and

   (d)At such other place or places as the parties shall agree.

5. The Applicant must comply with all reasonable directions and take such medication as prescribed by his psychiatrist Dr D and his general medical practitioner for such period of time as his respective medical practitioners consider necessary.

6. The interests of the child X born (omitted) 2013 are to be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975 and for this purpose Legal Aid New South Wales is requested to arrange such representation.

7. Within fourteen (14) days from the date of these Orders the parties must forward to Legal Aid New South Wales at 323 Castlereagh Street Sydney for the use of the independent children’s lawyer when appointed copies of all Applications, Responses, affidavits and other relevant documents.

8. The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas without charge. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1219 of 2015

MR PADLEY

Applicant

And

MS PADLEY

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for interim parenting orders by the father of a little girl called X, who was born on (omitted) 2013. X lives with her mother and has not spent time with her father since 11 June 2015, when an incident occurred that caused the mother to suspend the father’s time with the child.

Orders sought

1. The orders that the parties claim that they seek are unsatisfactory in their form.

2. The Initiating Application filed on behalf of the father, prepared by a former solicitor, contains some 24 proposed final orders and 28 proposed interim orders, most of which appear to be identical to the proposed final orders, including an order for review of arrangements on the child’s fourth birthday. As the child has only recently attained the age of two years, this proposed interim order appears to take an overly pessimistic view of the time that it will take to finalise the matter.

3. It is an all too common practice amongst some lawyers to seek a plethora of final orders and then repeat those proposed final orders as interim orders. At best, this practice can be seen as a disguised attempt to expedite the proceedings, and, at worst, as an example of “cut and paste pleading”, where proposed orders are repeated without any thought as to whether they are really appropriate as interim orders at all.

4. I might also add that proposed orders 20, 21 and 22 all require the parties to agree about certain matters. If the Court had the power to make people agree there would be significantly fewer matters proceeding to either interim or final hearing.

5. The interim orders sought by the mother vary significantly from those set out in the mother’s Response. The orders now sought by the mother are contained in a document tendered at the commencement of the hearing. In this document, misleadingly titled “The Parties Agree on an Interim basis until further order”, the mother seeks orders that:

   a)The child X should live with the mother and spend supervised time with the father at a Child Contact Service Centre in Sydney;

   b)The parties are to do all things necessary to place their names on a waiting list of an unspecified contact centre;

   c)changeover take place by the mother delivering the child to and collecting the child from the selected contact centre;

   d)the mother is to facilitate telephone and Skype contact between the child and her father on at least two occasions each week;

   e)the parties are to be restrained by injunction from removing the child from Australia; and

   f)the child’s name and particulars should be placed on the Family Law Watch List maintained by the Australian Federal Police. 

Background

1. The father was born on (omitted) 1975 and the mother was born on (omitted) 1978. They were married on (omitted) 2011 and separated on 17 October 2014.

2. There is one child of the marriage, X, who was born on (omitted) 2013. She is now aged two years and about two weeks. She lives with her mother and has, since the parties separated and until 11 June 2015, been spending regular time with the father but of relatively short duration.

3. The father is apparently not in employment at present. The mother is employed on a part time basis as an (occupation omitted) at a (employer omitted) in the (omitted) suburbs of Sydney.

4. The parties had arranged for the father to spend time with the child on a regular and frequent basis each Monday, Thursday and Sunday for periods of between two and three and a half hours, according to the day. There was no overnight time arranged and the arrangement was clearly insufficient to meet the father’s wishes.

5. Matters were brought to a head by an incident that occurred on Thursday 11 June 2015, when the mother handed the child over to the father at 8:00 am at a swimming pool where the child usually attends swimming lessons. The circumstances are described by the parties in some detail by the mother in her affidavit of 30 July 2015 and by the father, in considerably less detail, in his affidavit of 20 July 2015.

6. The mother deposed that at about 9:40 am, after the swimming lesson, the father went past her with the child in a pram and headed off towards the (omitted) Shopping Centre. It is her evidence that he did not tell her where he was going or when he would return the child to her care. Annexed to her affidavit are printouts of telephone text messages from her to the father, including an exchange at 10:57 am where the mother asked the father where he and the child were. He replied:

   “X is safe. X is with me. I will meet you at 530pm at (omitted) Leisure Centre.”

7. The mother texted him:

   “You will bring her back at 11:30 am as planned”

8. On the mother’s evidence, the father returned the child to her at 5:30 pm.

9. The father’s evidence is that he notified the mother at 11am that he would return the child at 5:30 pm and subsequently did so. He explained his behaviour by saying:

   “These few hours are the only time doing normal activities that I have had alone with my daughter since 17 October 2014.

10. It is common ground that the father has not spent any time with the child since that day, because the mother has not allowed any contact between father and child.

Issues

1. The father’s mental health is an issue and to this end the mother’s counsel tendered subpoenaed police and medical records of the father relating to matters from 2003 to 2006. The father has complained that this material is no longer relevant. The father has tendered an affidavit by his treating psychiatrist, Dr D, in which he states that the father has a diagnosis of Schizoaffective Disorder. Dr D further states that this condition appeared to be in full remission in 2009 and has remained in full remission since that time.

2. The mother claims in her affidavits that the father’s mental state deteriorated during the last few months prior to the parties’ separation in October 2014.

3. On the day of the hearing the parties entered into Consent Orders appointing Dr A, a Child and Family Psychiatrist, as a Court Expert to prepare a Report under the provisions of Rule 15.09.

4. The father claims in his affidavit material that the mother’s psoriatic arthritis poses a significant difficulty for her in attending to the requirements of parenting this child.

Applications for Parenting Orders

1. The Court is required to take into account the matters set out in Part VII of the Family Law Act 1975 (Cth) when it is considering making parenting orders, including sections 60B, 60CA, 60CC, 61DA and 65DAA.

2. Section 60B sets out the objects and principles of Part VII of the Act.

3. Section 60CA provides that when a court is considering making a parenting order the best interests of the child must be the paramount consideration.

4. Section 60CC sets out the matters that the Court should take into account when considering what are the best interests of the child, including, in subsection (2), the primary considerations and, in subsection (3), the additional considerations.

5. Section 61DA refers to the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility but also sets out the circumstances where the presumption does not apply or where the presumption has been rebutted by evidence that satisfies the court accordingly. Under subsection 61DA(3), when a court is making an interim order, it is usual for there to be an order for equal shared parental responsibility unless the Court considers that in the circumstances it is not appropriate.

6. I might comment at this stage that under section 61DB of the Family Law Act when a court is making final parenting orders it is required to disregard the allocation of parental responsibility made when making the interim order.

7. Section 65DAA of the Act will apply where a court makes an order in respect of equal shared parental responsibility and includes a consideration of whether it is in the child’s best interests and reasonably practicable for the child to spend equal time with each parent or, failing that, whether it is in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.

8. I have considered all of those matters, where relevant.

The best interests of the child

1. There is some force to the father’s objection to the relevance of the tendered material relating to his psychiatric history and involvement with the Police in the period up to 2006. This information did not come as a surprise to the mother and she was clearly aware of at least some of this information when she and the father commenced their relationship. Clearly, it did not restrain her from marrying the father in November 2011 or having a child by him in 2013.

2. How much weight, then, should be placed on historical material from 2006 and beforehand in an interim application in 2015? The answer is clearly, very little. Rather than dragging up the past, the mother would do well to concentrate on matters that are more immediate.

3. The orders sought by the father, which include the child spending a block period of three days and two nights in his care each week, are to my mind unrealistic in the circumstances.

4. It is clear that there was an arrangement between the parties which involved the father spending time with the child for periods of several hours at a time on three days each week. It is well understood that with children under the age of four years, there is a need for time with the non-residence parent on a frequent and regular basis to enable the development of an attachment relationship.

5. This arrangement was suspended by the mother as a result of the father’s actions on Thursday 11 June, which appear to have been ill-advised and irresponsible. It will not do for a party to take the law into his own hands by taking a child away from the parent with whom the child normally lives without advice about where the child will be or, until pressed, when the child will be returned.

6. It is hardly surprising that the mother has lost confidence in the father’s ability to act responsibly when the child is in his care as a result of that incident.

7. That said, the proposed arrangements for supervised time are ill-formed and incomplete. I am not persuaded that there has been shown a need for supervised time, although there will need to be some tightly drafted orders. A return to an arrangement near to that which was in existence up to 11 June would seem to be desirable in the immediate future.

8. There is no evidence whatsoever that there is any need for the child’s name to be placed on the Watch List maintained by the Australian Federal Police.

9. I have considered the question of parental responsibility. At this stage, I propose to follow the requirements of subsection 61DA(3) and make an order until further order that the parties should have equal shared parental responsibility. Having said that, when the matter comes to a final hearing, under the provisions of s. 61DB the Court will disregard the allocation of parental responsibility made today and will consider the question of parental responsibility afresh. By that time, the Court will have the benefit of a court expert report prepared by Dr A.

10. I have considered the requirements of section 65DAA of the Family Law Act. I am not satisfied that it is in the best interests of this child or reasonably practicable to make an order that the child should spend equal time with each parent. I think the parties are a long way from that and indeed I am not satisfied that it is either in the best interests of the child or reasonably practicable for there to be an order for substantial and significant time. What the parties need to do is to go back to an arrangement which, despite the father’s dissatisfaction with it, did go some way towards meeting the child’s need to have a secure relationship with her mother and to develop a meaningful relationship with her father, noting the fact that this little girl is only just over two years of age and enabling her to see her father on a regular and frequent basis to build up an attachment towards him.

11. I am satisfied that there is a clear need for the child’s interests to be independently represented by a lawyer under s.68L of the Family Law Act. In doing so, I have considered the requirements of that well known authority, Re K,[1]and even though it refers to terminology no longer in use under the Family Law Act as it currently stands, it remains to my mind, with the greatest of respect the most reliable guide to a trial court when considering whether or not a child’s needs are best served by the appointment of an Independent Children’s Lawyer.

    [1] Re K (1994) 17 Fam LR 537; FLC 92-461

12. The evidence that is in issue relating to the father’s mental state and whether or not this precludes him from playing a more active role in the parenting of his child is clearly an issue that I have taken into account. I am of the view that this Court and an Independent Children’s Lawyer will benefit from the report that is to be prepared by Dr A, who is well known to the Court as a court expert in such matters.

13. I note that the father is currently not legally represented. He has previously been represented by solicitors. At this stage, he is doing it on his own and the Court is aware that it is a difficult task to be a self-represented litigant. The advantage of being legally represented, of course, is that one has an independent person with knowledge of the law who is not emotionally involved in the proceedings. A self-represented litigant cannot be in that position. That is another reason, not the only reason but another reason, why I am clearly of the view that the child’s interests will be best met by the appointment of an Independent Children’s Lawyer.     

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date: 24 August 2015