Pickering and Saltmarsh

[2014] FamCA 370

FAMILY COURT OF AUSTRALIA

PICKERING & SALTMARSH [2014] FamCA 370

FAMILY LAW – CHILDREN – Interim – With whom a child spends time – application by father to introduce overnight time – mother proposing orders not substantially different – relatively recent reintroduction of time following prolonged absence - best interests of the child – meaningful relationship with both parents – orders made for overnight time on alternate weekends. 

Family Law Act 1975 (Cth) s 61DA, 60CA, 60CC

Goode & Goode (2006) 36 Fam LR 422

APPLICANT: Mr Pickering

RESPONDENT: Ms Saltmarsh

FILE NUMBER: ADC 2604 of 2012

DATE DELIVERED: 6 June 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 20 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dickson

SOLICITOR FOR THE APPLICANT: Angela Ferdinandy Solicitor

COUNSEL FOR THE RESPONDENT: Mr Jordan

SOLICITOR FOR THE RESPONDENT: Pederick Lawyers

Orders

1. The child D born … 2007 live with the mother

2. The child spend time with the father commencing 14 June 2014 each alternate weekend between 9.00 am Saturday and 5.00 pm Sunday.

3. The mother be at liberty to be accompanied by another person at handovers PROVIDED THAT person is not MR C.

4. That the parties at their joint and equal expense obtain and file an updated family assessment from Ms H.

5. That the assessment be undertaken if possible no earlier than three [3] months from the date of these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pickering & Saltmarsh 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 ADELAIDE

FILE NUMBER: ADC 2604 of 2012

Mr Pickering

Applicant

and

Ms Saltmarsh

Respondent

REASONS FOR JUDGMENT

Introduction

1. This judgment relates to the interim parenting arrangements for the child D born in 2007, (“the child”).   The child currently lives with the mother and spends time with the father each Saturday.

2. By way of an Application in a Case the father sought orders that introduced overnight time on each alternate weekend.   The mother filed a Response opposing the orders sought by the father and yet proposed orders not substantially different.   

3. It is indicative of the acrimonious relationship the parties now share that when comparing the two proposals over the same three month period the difference between the two lies in only a few hours.   

4. The mother also sought further orders that would permit third parties to attend handover in her place should she not be able to attend.   While a number of proposed individuals were listed in the mother’s application the father took exception to the mother’s son from a former relationship attending handovers.

Background

1. The mother was born in 1974 and is currently 40 years of age.   She has a 20 year old son, Mr C, from a previous relationship.   Mr C lived with the parties for the duration of their relationship.   

2. The father was born in 1960 and is currently 53 years of age.   He has an adult daughter, Ms P, from a previous relationship.   The father is no longer in contact with Ms P.

3. Although the precise date is in dispute the parties commenced cohabitation in 2002.  There was a brief period of separation in 2003 before the parties reconciled and eventually married in March 2006.   

4. The child D was born in 2007.  The child suffers from a number of food allergies that can result in anaphylactic shock if not monitored and treated appropriately.

5. The mother states their relationship was characterised by the father’s controlling behaviour and domestic violence.  The father denies these allegations.

6. On 21 April 2012 an incident occurred between the father and Mr C during which the mother alleges the father assaulted her son.  This is denied by the father who says Mr C was the aggressor.  The parties separated and the mother moved out of the matrimonial home with the child and Mr C.

7. On 7 May 2012 an altercation occurred between the mother and father at the former matrimonial home.  The father was subsequently charged with aggravated assault. 

8. In April 2013, the husband pleaded guilty to one count of aggravated assault.  The father received a two month suspended sentence and was placed on a 12 month good behaviour bond.

Procedural History

1. The proceedings had a lengthy history in the Federal Circuit Court of Australia before the matter was transferred to the Family Court of Australia in March 2014.   I do not set out in full the history of the matter but what follows is that which is pertinent to the Application in a Case currently before the Court.

2. The father filed an Initiating Application on 9 July 2012 for final orders that the parties share parental responsibility and the child live with each party on a week about basis. 

3. The mother filed a Response on 2 August 2012 which sought final orders that she have sole parental responsibility and the child live with her.  In relation to time spent with the father, the mother left this to the discretion of the Court.

4. On 13 August 2012 orders were made in the Federal Magistrates Court (as it then was) for the child to live with the mother.   No orders were made for the child to spend time with the father.  The matter was then adjourned at the request of the parties while the father dealt with the criminal proceedings. 

5. On 7 May 2013 orders were made for the preparation of a family assessment report and, pending a positive recommendation from Ms H, the child would commence supervised time with her father on six occasions at the contact centre with each visit to be two hours.

6. Following Ms H’s report released in June 2013 orders were made by consent in August 2013 for the father to have telephone communication with the child twice weekly for a period of 30 minutes.  A notation on the order states the Court would appreciate “favourable consideration being given by the Co-ordinator at the [B Contact Centre] to the earliest possible start date” for the child’s time with her father. 

7. The matter was next before Judge Mead on 11 December 2013 when orders were made for the child to spend time with the father, effectively on a weekly basis, outside of the contact centre.  The orders required the time to be supervised by the paternal aunt before eventually progressing to unsupervised time on the third occasion.

8. In early 2014 it would appear the parties were having difficulties complying with the order for telephone communication and on 14 March 2014 the father filed a Contravention Application.

9. On 26 March 2014 the contravention application filed by the father was dismissed by consent upon noting the parties would take steps to ensure and better facilitate the telephone communication between father and child.   Further orders were made by Judge Mead providing the child spend time with the father each Saturday between 9.00 am and 5.00 pm.  Judge Mead then transferred the proceedings to the Family Court of Australia upon noting the increasing complexity of the matter.   

10. By way of an Application in a Case filed 14 April 2014 the father sought orders that would see the child spend overnight time with the father from 5.00 pm Friday until 5.00 pm Saturday each weekend for a period of six weeks before eventually increasing, over a period of weeks, to each alternate weekend time from Friday evening until Monday morning with overnight time on the intervening Tuesday. 

11. In her Response filed 13 May 2014 the mother sought orders that would see the child spend time with the father each alternate weekend from 9.00 am Saturday until 5.00 pm Sunday for a trial period of three months.  At the conclusion of which the parties would attend upon Ms H for the preparation of an updated report.   

12. The mother also sought financial orders not relevant to the determination of the parenting matters.

13. The matter came before me on 20 May 2014.   At the commencement of the hearing the father handed up a further affidavit seeking to respond to the issues raised in the mother’s affidavit material.

Family Assessment Report

1. Ms H prepared a family assessment report dated 13 June 2013. 

2. When the interviews and observed interactions were conducted the child had not seen the father since May 2012.   Notwithstanding the hiatus Ms H observed the following:

   [The child] presented as sharing a strong emotional attachment with both parents…This was reflected in the positive interactions and affection shared during play sessions, and [the child’s] reports on activities enjoyed, albeit she had few memories of her father, reporting she was 4 years when she last saw him.   [The child] was excited to meet with [the father] for the play session, informed him she missed him and was reluctant to leave the session, concerned when she would see him again.

3. However, as Ms H identified, the child “is not of an age, or maturity level to make a well informed decision regarding preferred care arrangements” and had a “limited understanding of the serious nature of the conflict” between her parents.  Ms H also raised concerns in relation to the father’s ability to care for the child over an extended period of time given his current limited parenting role.

4. The mother’s ability to facilitate a relationship between the child and the father was also an area of concern identified given the mother’s anxiety over the father’s ability to care for the child and statements made by the mother during the interviews indicating she had informed the child of the aggravated assault.

5. Ultimately Ms H recommended a gradual extension of time from supervised weekend afternoon visits to visits of several hours, before eventually moving to overnight stays.  This was dependant on whether the father could adequately ensure the child’s daily care and prioritise her emotional needs.

The Law

1. Part VII of the Family Law Act 1975 (Cth) provides a framework for making parenting orders on both an interim and final basis. The most relevant sections are:

   Section 60CA

   Child's best interests paramount consideration in making a parenting order

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.   

   Section 60CC

   How a court determines what is in a child’s best interests

   (1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).   

   Primary considerations

   (2)The primary considerations are:

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

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.   

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b). 

   (2A)In applying the considerations set out in subsection (2), the court is to give greater weight      to the consideration set out in paragraph (2)(b).   

   Additional considerations

   (3)Additional considerations are:

   (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   (b)    the nature of the relationship of the child with:

   (i)     each of the child’s parents; and

   (ii)    other persons (including any grandparent or other relative of the child);

   (c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

   (i)     to participate in making decisions about major long-term issues in relation to the child; and

   (ii)    to spend time with the child; and

   (iii)   to communicate with the child;

   (ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

   (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   either of his or her parents; or
   any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain person relations and direct contact with both parents on a regular basis;

   (f)     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;

   (g)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 court thinks are relevant;

   (h)    if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)     the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)    the likely impact any proposed parenting order under this Part will have on that right;

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

   (j)any family violence involving the child or a member of the child’s family;

   (k)if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

   (i)     the nature of the order;

   (ii)    the circumstances in which the order was made;

   (iii)   any evidence admitted in proceedings for the order;

   (iv)    any findings made by the court in, or in proceedings for, the order;

   (v)     any other relevant matter;

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

   (m)   any other fact or circumstance that the court thinks is relevant.   

   Consent orders

   (5)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).   

   Right to enjoy Aboriginal or Torres Strait Islander culture

   (6)For the purposes of paragraph (3)(h), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)to maintain a connection with that culture; and

   (b)to have the support, opportunity and encouragement necessary:

   (i)     to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)    to develop a positive appreciation of that culture.   

   Section 61DA

   Presumption of equal shared parental responsibility when making parenting orders

   (1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.   

   Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

   (2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

   (b)family violence.   

   (3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.   

   (4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.   

2. The appropriate legislative pathway to follow when considering interim parenting orders was outlined by the Full Court in Goode v Goode (2006) 36 Fam LR 422 at 445.

Consideration

Primary considerations

1. Both the mother and father recognise the importance of the child having a meaningful relationship with both of her parents (s60CC(2)). 

2. The mother maintains she continues to “fear the husband and his presence and…fear any relationship with him in the future”.  The mother’s proposed orders indicate a willingness to set aside her own misgivings in order to facilitate a meaningful relationship between the child and the father.

3. While the father had previously assaulted the mother neither party made submissions about the need to protect the children from physical or psychological harm or being exposed to abuse, neglect or family violence (s 60CC(2)) into the future. 

Additional Considerations

1. The father sought to emphasise the views of the child in support of an increase in time.  The observations of Ms H suggest that the child wishes to spend time with the father, but the child is only seven years of age and as such her views are of limited assistance.

2. The mother submitted it was not her intention to deprive the child of time with her father but rather that it was in the best interest of the child to adopt a cautious approach to any increase in time with the father.  Given the relatively recent reintroduction of unsupervised time between the father and child there would appear to be merit in that approach.

3. While there are no practical difficulties in respect of the child spending increased time with the father, I am concerned that the father’s proposal would have an impact on the child’s relationship with her mother.  The child attends school every day and would be deprived of leisure time with her mother for a period of six weeks.  To a young child this may seem a significant period of time and may adversely affect her relationship with the mother.

4. A particular concern of the mother’s is the level of vigilance the father applies to the child’s food allergies.  The mother drew the Court’s attention to the recent Easter long weekend during which the father took the child to hospital twice in one day in relation to a suspected allergic reaction.  I note that the reaction was not of a serious nature but I am concerned by the father’s failure to notify the mother of the events of the day.

5. The father sought to address the mother’s concerns in this regard in the affidavit handed up during the hearing.  The father argues he is “fully trained and experienced in using the EpiPen” and is vigilant when it comes to the child’s allergies.  He cites his repeated attendance at the hospital as an example of his approach to the child’s allergies.  He further states that had it been a serious incident he would have informed the mother. 

6. I am satisfied that both parents have demonstrated the capacity to care for the child’s physical, emotional and intellectual needs.

7. Regular alternate weekend time with the father will provide the child and the father an opportunity to establish a meaningful relationship whilst giving the mother and child the opportunity to enjoy and benefit from weekend time.

Conclusion

1. The mother also sought orders that would allow her agents to attend handovers.  The mother nominated her son as one such individual.  This was opposed by the father.  The relationship between the father and Mr C appears to be one with a history of physical and verbal conflict such an order may risk exposing the child to yet more conflict and lead to further litigation.

1. However, recognising the mother is still fearful of the father it is appropriate that a third party, other than Mr C, be able to accompany her to any handover and provide the mother with emotional support. 

2. Taking into consideration the observations and recommendations of Ms H and the factors outlined above I propose to make orders as set out at the commencement of these reasons.

I certify that the preceding forty-five(45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 6 June 2014.

Associate: 

Date:  6 June 2014