Palma and Samford

[2013] FCCA 1233

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALMA & SAMFORD [2013] FCCA 1233

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the child – parental responsibility – equal shared parental responsibility – one child aged 10 years.

Legislation:
Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 61DB, 65DAA

Applicant: MR PALMA

Respondent: MS SAMFORD

File Number: SYC 1620 of 2013

Judgment of: Judge Scarlett

Hearing date: 5 August 2013

Date of Last Submission: 5 August 2013

Delivered at: Sydney

Delivered on: 9 August 2013

REPRESENTATION

Counsel for the Applicant: Ms Kennedy

Solicitors for the Applicant: Armstrong Legal

Counsel for the Respondents: Ms Messner

Solicitors for the Respondents: Eddy Neumann Lawyers

Counsel for the Independent Children's Lawyer: Ms Anderson

Solicitors for the Independent Children's Lawyer: Sarah Bevan Family Lawyers

ORDERS

UNTIL FURTHER ORDER:

1. The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child [X] born [in] 2003.

2. The child [X] is to live with the Mother.

3. The child [X] is to spend time with the Father as follows:

   (a)From 1:30 pm to 5:30 pm each alternate Saturday;

   (b)From 1:30 pm to 5:30 pm on Father’s Day;

   (c)From 1:30 pm to 5:30 pm on Christmas Eve;

   (d)From immediately after school until 7:00 pm on the child’s birthday; and

   (e)From immediately after school until 7:00 pm on the Father’s birthday.

4. The Father’s time with the child in Order (3) above is to be in the presence of either of the following:

   (i)Ms S; or

   (ii)Ms K.

5. The Father is to pay the amount of $50.00 to whichever of the persons mentioned in Order (4) above is present when the Father spends time with the child.

6. The Father is restrained from consuming alcohol or administering to himself any illicit drug at any time when the child [X] is in his care or for twelve (12) hours beforehand.

7. The Father is to spend time communicating with the child [X] by Skype as follows:

   (a)Each Wednesday between 8:00 pm and 8:30 pm; and

   (b)Each Sunday between 8:00 pm and 8:30 pm.

8. The parties are restrained from using any form of physical discipline on the child when she is in the care of either one of them under these orders.

9. The parties are restrained from discussing these proceedings with or in the presence or hearing of the child.

10. The parties are restrained from making any critical or derogatory remarks to the other in the presence or hearing of the child.

11. Dr R is appointed as Court Expert under Rule 15.09 to inquire into and prepare a Report on matters relevant to the care, welfare and development of the child [X] including any mental health issues relating to the parties.

12. The parties are to pay one half of the fee required by Dr R for the preparation of her Court Expert Report.

13. The Respondent is to file and serve a Financial Statement within 28 days.

14. The parties are to attend a Conciliation Conference before a Registrar on a date to be fixed by the Court.

15. Each party is granted leave to issue a further five (5) subpoenas.

16. The Application is adjourned to Monday 9 December 2013 for further mention at 10:00 am.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 1620 of 2013

MR PALMA

Applicant

And

MS SAMFORD

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Father for parenting orders in respect of the parties’ daughter, who is ten years old. The child lives with her mother, the Respondent, and will continue to do so. The Father is not seeking an order that the child should live with him on a full-time basis, either as a final order or an interim order.    

2. This is also a matter where I have given consideration to the orders submitted by, or suggested by the parties and noted the competing submissions. I have come to the view that, for the time being, the Father’s time with the child, [X], should be in the presence of an approved supervisor, but I stress that that is an interim order and time will tell. 

3. I am not so persuaded that the Father’s behaviour, certainly in respect of illicit drugs or alcohol, would be such as to make supervision a long-term necessity, especially, bearing in mind the material that was tendered on the last occasion. 

4. I am, of course, mindful of the fact that the child, [X], is 10 years of age. She has been having Skype communication with her father but not a great deal of face to face communication, but that is something that does need to be dealt with. Again, I am looking at the primary considerations under subsection (2) of section 60CC of the Family Law Act 1975 (Cth), and, clearly, face to face time between Father and child is going to assist [X] to have a meaningful relationship with the Father. I do have to consider issues of the child’s safety, her protection from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

5. The evidence does not support the proposition that there is a serious and long-term threat to the child from the Father.  It is a view, however, that the child needs to build up a secure and happy relationship with him. 

6. The Father wishes to build up this relationship and has agreed initially to his time with the child being supervised.  The suggestions were Dial an Angel, at the Father’s expense. Again, the Father’s adult child, Ms G, who is a half-sister to [X]; or a couple who are friends of the Father’s were suggested. 

7. The Mother has proposed two other people.  One of the difficulties in this regard is that the Father has not provided affidavit evidence from these people.  Ms G, I think, is a resident of New Zealand, although will be visiting Australia shortly.  And, in the absence of that evidence and bearing in mind the fact that the child may not know these people very well, if at all, I am somewhat reluctant to place them in that role.  Against this, the Mother has provided affidavits of Ms S and Ms K, and in the affidavit evidence of these people they set out an extensive relationship with the child. 

8. True it is that they are people who would not be regarded by the Father as independent, but there is nothing in the material before me to suggest that they would be inappropriate, and for the benefit of easing [X] into a comfortable face to face relationship with the Father, I am satisfied that, at this stage, that these people’s services should be employed.  They are paid for babysitting by the Mother at a price that is not unreasonably expensive. 

9. This is a case where there is Skype communication.  The Mother has suggested it, and in my view that is a suitable method of keeping the relationship going.  I do propose to impose a restraint on physical discipline of the child, which I think should apply to both parents.

10. There is some affidavit evidence from the Mother which caused some concern about discussions she had had with the child about the proceedings, or the Father’s wishes.  Ms Kennedy of counsel made submissions which were critical of the Mother in that the affidavit showed that she was putting to the child a proposition that the Father is just not seeking. 

11. There is no application, either for an interim or a final order that the child should live with the Father.  It is accepted that she is going to live with the Mother.  Discussions with the child about the possibility of living with the Father full time, to my mind, are unhelpful. 

12. In my view the parties should not be discussing these proceedings with this little girl at all.  They should not be criticising, or making critical remarks to or about each other in the child’s presence.  There are some issues relating to the Mother’s allegations of the Father’s mental health, and the Mother’s concerns about the Father’s consumption of drugs or alcohol, although the evidence does not seem to support any great concerns on that regard. 

13. It does not seem to me, however, that imposing a ban on the Father consuming alcohol or administering illicit drugs to himself when he is spending time with his daughter is going to be any hardship to him and may reassure the Mother. 

14. It does appear to me that, as recommended by the family consultant, a Court expert should be appointed to prepare a report. A child and family psychiatrist, Dr R, has been suggested and she is one of a number of child and family psychiatrists who provide reports for this Court on a regular basis. 

The Law to be Applied in Parenting Proceedings

1. In making the parenting orders that I propose to make, I have considered the requirement of s.60CA of the Family Law Act 1975 that in deciding whether to make a parenting order the Court must regard the best interests of the child as the paramount consideration. The 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. As well as the primary considerations in s.60CC(2), to which I have referred at [4] above, I have also considered the matters set out in s.60CC(3), insofar as they are relevant.

2. Subsection 61DA(1) of the Act requires the Court, when making a parenting order, to apply a presumption that it is in the best interests of the child concerned for the child’s 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 of the child has engage in abuse of the child or family violence (s.61DA(2)). The presumption may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for his or her parents to have equal shared parental responsibility.

3. When the Court is making an interim order, as is the case here, subsection 61DA(3) provides that the presumption of equal shared parental responsibility applies unless the Court considers that it would not be appropriate.

4. The father in his Application seeks equal shared parental responsibility. The mother seeks an order for sole parental responsibility. It does not appear that, on an interim basis, it would be inappropriate to make an order that the parties are to have equal shared parental responsibility for their daughter.

5. In any event, when the Court is making a final parenting order, it is required by s.61DB to disregard the allocation of parental responsibility made in the interim order.

6. Where the Court makes a parenting order providing that a child’s parents are to have equal shared parental responsibility for the child, s.65DAA(1) requires the Court to consider whether spending equal time with each parent would be both:

   a)in the child’s best interests; and

   b)reasonably practicable.

7. Neither party seeks an order for equal time. In view of the fact that the father has not spent a great amount of time with his daughter recently, an equal time arrangement would seem to be neither in the child’s best interests nor reasonably practicable.

8. If the Court does not make an order for the child to spend equal time with each parent, the Court is required by s.65DAA(2) to consider whether spending substantial and significant time with each parent would be both:

   a)in the child’s best interests; and

   b)reasonably practicable.   

9. The interim parenting orders sought by the parties fall short of substantial and significant time with the father, and this is a fair indication that neither party considers that it would be either in this child’s best interests or reasonably practicable at this stage.

Property Orders

1. The other issue that I note is that there are actually property applications being brought by the parties which, so far, have not been given any attention in Court by the parties’ lawyers.  In fact, the Mother has not yet filed a financial statement which she is going to have to do, but I will allow her 28 days.  The parties are also going to have to attend a conciliation conference before a Registrar, so I will make that order.  The parties are to attend a conciliation conference before a Registrar of the Court at 2.15 pm on 24 September 2013, and I will make the usual directions about full and frank disclosure, compliance with rules 24.03, 24.04, market appraisals and valuations, information about superannuation, filing a conciliation conference document or case outline, providing information about contribution-based entitlements, subsection 75(2) adjustments, draft orders, joint balance sheet, attending the conference in person with their lawyers, and making a genuine effort to reach agreement.  If someone does not attend the conciliation conference or comply with these directions the Registrar will be empowered to terminate the conference and send the matter back to court, and I can assure the parties that I and my colleagues take a dim view of people who do not comply with those directions for conciliation conferences. 

2. So, apart from that I shall make orders to that effect until further order.

3. The reason for the adjournment date of 9 December is that I would be hoping by then that we would have a Court Expert report and certainly by that date the conciliation conference will be well and truly done. 

4. As for subpoenas, each party will have leave to issue a further five subpoenas.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  28 August 2013