Peterson and Cochrane (No. 2)

[2008] FamCA 712

FAMILY COURT OF AUSTRALIA

PETERSON & COCHRANE (NO. 2) [2008] FamCA 712

FAMILY LAW – CHILDREN – Parenting proceedings – Father charged with 19 criminal offences involving young children – father's application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Peterson

RESPONDENT: Mr Cochrane

FILE NUMBER: CSC 1098 of 2007

DATE DELIVERED: 4 March 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Cairns

JUDGMENT OF: Moore J

HEARING DATE: 28 February 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Wright of Murray Lyons Solicitors

SOLICITOR FOR THE RESPONDENT: Ms Rogers of Miller Harris Lawyers

Orders

1. The father’s application as contained in his Response to an Application in a Case filed 20 February 2008 is dismissed.

1. The matter is adjourned to the Registrar’s list at 9.30am on 26 March 2008 for further directions.

1. The father pay the mother’s costs of and incidental to the proceedings today, the quantum to be agreed and if not agreed as assessed, payment to be made on or before one month after agreement or assessment, whichever occurs.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CSC 1098 of 2007

MS PETERSON

Applicant

And

MR COCHRANE

Respondent

REASONS FOR JUDGMENT

1. Mr Cochrane and Ms Peterson are the parents of a 7 year old daughter. [dob .../7/00]. 

2. On 7 June 2004 interim consent orders were made in the Federal Magistrates Court about their daughter’s arrangements.  Those orders provided for the child to live with her mother and spend time with her father each week from Sunday mornings until Wednesday mornings.  It appears to have been a satisfactory arrangement for all concerned.  That ceased in mid-November 2007 when the father was arrested and charged with child related offences.  There can be no greater precision about the charges he is facing because, despite since having filed evidence in the Federal Magistrates Court and in this Court, the father has not identified the charges and nor has he given any information about the conditions attaching to his bail.  Whatever the underlying allegations, there is no suggestion he has committed any offence against his daughter. 

3. On 20 December 2007 the mother filed an application in the Federal Magistrates Court seeking to suspend the interim orders in so far as they provide for time to be spent with the father.  In her affidavit filed in support of it [read and relied on again here] she related the events of November as far as she knew them to be, as well as her uncertainty whether the father’s contact with the child at her school may have been a breach of his bail conditions.  The matter came before the learned Federal Magistrate on 21 December.  In his brief affidavit filed that day the father said he was seeking to have supervised time with the child until the criminal charges are resolved.  He pointed out that he had been caring for her three nights each week, he had not seen her since being charged and there was no allegation he had done anything inappropriate towards his daughter.  He proposed the supervision be undertaken by the mother’s partner or the partner’s mother, neither of whom he knew, or by a friend, whom he nominated.  He expressed concern that the charges may take a lengthy period of time to resolve and it may be many months before he can see his daughter with whom he has a close and loving relationship. 

4. After hearing submissions, the learned Federal Magistrate suspended the orders of June 2004, provided for the child to live with her mother who was given sole parental responsibility for her, and transferred the matter to the Magellan list of this Court on a date to be fixed.  His Honour’s reasons are not available. 

5. Subsequently on 8 January the father had his solicitors write to the mother’s solicitors advising he had been to an interview with Relationships Australia, he would like to have time with the child there, and extended an invitation to the mother to complete an intake interview.  She declined, by letter dated 22 January.  He advised through his solicitors that he would be attempting to have the matter re-listed. 

6. Indeed he filed an application on 20 February seeking orders to secure the parents’ attendance at the Contact Centre for intake assessment and subsequent supervision there of his time with their daughter.  The mother’s filed a response seeking its dismissal. 

7. The mother’s solicitor approached the police prosecutor to obtain a copy of the charge sheet and the conditions of bail but they could not be provided.  Nonetheless, the solicitor’s evidence is that she was advised by the police that one of the bail conditions prohibited his contact, either directly or indirectly, with any Crown witness including his daughter.  Taking up the police prosecutor’s suggestion, the solicitor contacted the arresting office and requested a copy of the documents but this met with the same response.  On 21 February the solicitor wrote to the father’s solicitors seeking the documents but they have not been forthcoming. 

8. The police again interviewed the child on the evening of 27 February and, according to the mother’s evidence, she was told that the child will be a Crown witness. 

9. When the matter was called on 28 February I raised a preliminary issue of process; namely, whether the application was properly before me sitting as a judge at first instance or whether the remedy, if aggrieved by the order of the learned Federal Magistrate on 21 December, was to appeal that order.  I took the view that to qualify for the former there would need to be established a change of circumstances [Rice and Asplund (1979) FLC 90-725]. Brief submissions were made on the point, the case argued for the father being to the effect that his proposal for supervision at the Contact Centre constitutes a change of circumstances, not having been proposed or considered when argued before the learned Federal Magistrate.

10. Without his Honour’s reasons, I do not know whether the application for supervised time was rejected for lack of a suitable supervisor or for some other reason.  The argument for re-agitation rather than appeal strikes me as being without merit but I permitted the substantive case to be put given the relatively narrow scope of the issue and the slender state of the evidence.  Having heard the submissions, I came to the view that the 21 December orders ought not be varied and the father’s application should be dismissed. 

11. In coming to that conclusion I am mindful of the discussion by the Full Court in Goode (2006) FLC 93-286 about the application of the relevant provisions of Part VII to interim applications and the continued application, to an extent, of the approach discussed in Cowling (1998) FLC 92-801. That is to say, the enquiry on an interim hearing must necessarily be of limited scope and findings will not usually be made on issues related to the substantive merits of the case. Nonetheless, as the provisions of Part VII are said to demonstrate the intention of the legislature to favour substantial involvement of both parents in a child’s life, instead of preserving the status quo or a well settled environment as an interim arrangement the structure of the Act must be followed. Therefore consideration must be given to the application of the presumption of equal shared parental responsibility and, if it applies, to the resulting obligation to consider if equal time or substantial and significant time is in the child’s best interests, having regard to the specified primary and additional considerations, and if either is reasonably practicable. Of course the requirement to consider the need to protect a child from harm or other considerations relevant to assessing best interests may lead to the conclusion that those outcomes are contra-indicated and some other result is appropriate. Best interests may also be met by maintaining for the child a continuation of a settled environment. All of this is to be undertaken within the framework of the stated objects and underlying principles.

12. Turning to the brief evidence presented here, there could be no conclusions reached about most of the considerations relevant to an evaluation of best interests as set out in s 60CC.  Nonetheless, it can be accepted for present purposes that there was a long standing arrangement for the father to have his daughter in his care for three nights per week and that was apparently successful during the 3 ½ years it was in operation.  It may be that other considerations would weigh in the father’s favour if evidence were available about them.  But as matters presently stand, I could not conclude it would be consistent with this child’s best interests to have contact with him, even supervised. 

13. At the heart of that decision are the criminal charges he is facing [unknown] and the conditions attaching to his bail [unknown but said to prohibit contact with the child] and the apparent intention of the Crown to call the child as a witness [according to the mother].  I reject the contention, implicit in the father’s application, that this Court should make an order permitting him to come into contact with his daughter in circumstances where he has presented nothing to demonstrate the conditions attaching to his bail, he has not provided the mother with the information she requested, but has left it to her to make enquiries and deduce what she can of it, including from newspaper reports.  I also reject the proposition, put in his case, that he is caught in a chicken and egg dilemma; namely, the bail conditions could be varied in the State Court if this Court were to permit contact with his daughter, yet this Court will not allow contact while ever contact is prohibited as a condition of his bail.  Whatever might be the decision of the State Court if confronted with an application to vary his bail conditions, there is no evidence here from anyone involved in those proceedings [he is represented by a different firm of solicitors] to give any substance to the proposition that the conditions could be varied to allow contact if there are orders providing for it in this Court.  I would have thought it obvious that the conditions attaching to his bail are the result of considerations directed to his particular circumstances in light of the charges he is confronting and quite unrelated to considerations relevant to the best interests of his daughter.  And that leads to the other important consideration; namely, the intention of the Crown to call his daughter as a witness.  If that is right – it is a hearsay offering – it is difficult to see that supervision would effectively address the potential difficulties that might arise from the father spending time with and communicating with his daughter while the criminal trial is pending. 

14. In summary, there are considerations pointing to this child’s interests being served by a resumption of time spent with her father, albeit now supervised pending the outcome of the criminal charges against him - the long standing and apparently successful arrangements agreed to by the parents some years ago is an indicator of that.  But that is outweighed by considerations arising from the conditions apparently attaching to the father’s bail, obviously imposed for reasons related to his circumstances in light of the charges, and from the particular position in which this child finds herself of being a Crown witness when those charges are heard. 

15. The orders set out earlier are those made at the close of submissions and also reflect the determination of the costs claim that followed. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date: