Paintal & Paintal (No. 2)

[2021] FamCA 76

FAMILY COURT OF AUSTRALIA

Paintal & Paintal (No. 2) [2021] FamCA 76

File number(s):	CAC 273 of 2014
Judgment of:	GILL J
Date of judgment:	19 February 2021
Catchwords:	FAMILY LAW – children – oral application to vary current interim orders – best interests of the child – child’s right to participate in her culture – order made
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	8
Date of hearing:	19 February 2021
Place:	Canberra
Solicitor for the Applicant:	Self-representing
Solicitor for the Respondent:	Ms Lloyd
Solicitor for the Independent Children's Lawyer:	Ms McGregor

ORDERS

CAC 273 of 2014

BETWEEN:

MR PAINTAL

Applicant

AND:

MS PAINTAL

Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	19 FEBRUARY 2021

THE COURT ORDERS THAT:

1.X will be in her father's care from Friday 19 February 2021 from the finish of school until the commencement of school on 22 February 2021.

2.Although X is otherwise due to spend time with the father on the following weekend, that time will now be spent with the mother as with the weekend after also to be spent with the mother with the arrangements reverting to the alternate weekend pattern from there.

IT IS FURTHER ORDERED THAT

3.I direct the preparation of a family report and that the parties do all things necessary to participate in the preparation of that report, including delivering X for the purposes of the preparation of that report.

4.Pursuant to s 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and for that report to consider in particular:

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

(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence including an assessment of any such risk that the child may be exposed to and the impact both in the short term and long term in the event that the child is exposed to abuse, neglect or family violence;

(c)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 the child’s parents;

(ii)Any other child or other person (including a grandparent or other relative of the child including a sibling or step-sibling) with whom the child has been living; and

Including an assessment of the nature of the child’s present and prospective attachments in terms of the orders sought by each of the parties;

(d)The capacity of:

(i)Each of the child’s parents; and

(ii)Any other person (including any grandparent or other relative of the child)

to provide for the needs of the child, including emotional and intellectual needs and any circumstances that may diminish that capacity by reason of physical disability, mental disability or risk of abuse;

(e)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Family Consultant thinks are relevant;

(f)The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents;

(g)Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child;

(h)Any other fact or circumstance that in the opinion of the Family Consultant is relevant.

5.The Family Consultant is granted leave to inspect all documents produced in these proceedings on subpoena.

6.The report prepared by Ms CC will not be received into evidence in the proceedings.

IT IS NOTED THAT

7.The trial will proceed on the dates allocated to it, but may be the subject of an adjournment in the event that the updated family report is not available for the trial or, if in the conduct of the trial it becomes plain that an updated family report is no longer required then the trial may be completed within that period. 

IT IS ORDERED THAT

8.In participating in the preparation of the family report the father, having observed that he will not take part in any observation process with X, is excused from any obligation to do so.

IT IS FURTHER ORDERED THAT

9.The Independent Children’s Lawyer and the mother are to file and serve within 7 days of today’s date a notice setting out which of the father’s witnesses they require for cross-examination and an estimate as to how long each of them anticipates being in the cross-examination of those witnesses.

10.Provided the subpoenas are able to be answered no later than 1 March 2021, the Independent Children’s Lawyer is granted leave to issue subpoenas to CYPS and DVCS in this matter. 

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

GILL J

1. This matter concerns an oral application for a change in weekends for X.  X is currently spending alternate weekends with her father and he proposes that there be a temporary change in the orders such that although X is not scheduled to spend time with him this weekend, she should do so and by way of make-up time then spend the following two weekends with her mother. 

2. The basis of this urgent oral application is that X’s grandfather has recently died and it is the father's wish that X participate in religious ceremonies that he says that she should be a part of.  One particular religious ceremony is to occur 16 days after the death of the grandfather and appears to be a ceremony that involves the participation of the family for which the father describes as the grandchildren being an essential part of that ceremony.  It appears to be uncontroversial that X has already been involved in what has followed the death of her grandfather having described to her mother having seen her deceased grandfather.

3. There is controversy about the necessity of her involvement in the cultural rites this weekend.  The father says that it is essential, while the mother says that it is not an event for women and children to participate in.

4. The Independent Children’s Lawyer correctly identified two key considerations, one being X’s right to participate in her culture, but also the necessity to protect X from harm.  It may be observed that regardless of whether X is meant to participate directly in the 16^th day ceremony, her involvement with her family in and around that day may be a matter of importance both to her understanding her culture and to her working through grief in relation to her grandfather.

5. Against that, concern is raised that such an attendance will be traumatising for X.  The mother gives direct evidence of X’s upset following involvement in respect of her grandfather's death, noting that seeing her grandfather was a shock for X and that X has experienced nightmares and apparently heard his voice since that day.

6. The father's material is silent as to the impact on X of having been involved in what has followed her grandfather's death. 

7. It may be observed that these matters are finely balanced.  The matter which tips the balance is that if it is important for X, as part of her culture, to participate in some way both in management of her grief and in participation of a culture in what has followed the grandfather's death and be involved either in the 16^th day ceremony or with her family during the undertaking of the 16^th day ceremony, if the Order as sought by the father is not given, it will be an opportunity forever lost.  It is unclear what impact her participation in this will have in her processing of her grandfather's death, noting that it seems quite clear that she is already greatly upset by it. 

8. Under those circumstances, the balance tips to making the Order as sought by the father.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       24 February 2021