Raker and Raker

[2015] FamCA 1161

FAMILY COURT OF AUSTRALIA

RAKER & RAKER [2015] FamCA 1161

FAMILY LAW – CHILDREN – Interim Parenting – Application by the father for interim parenting orders including parental responsibility and with whom the child lives with and spends time with – Father makes allegations in relation to the mother’s drug use and her partner’s sexual misconduct – The mother has not filed any material and there is no Child Responsive Program Memorandum yet – Where there is very limited information concerning the circumstances but on the limited information available there is some support for the father’s contention of the mother’s drug use – Interim orders to operate for a very short period until preparation of Memorandum and interim hearing – Best interests of the child for the child to live with the father and spend supervised time with the mother.

APPLICANT: Mr Raker

RESPONDENT: Ms Raker

FILE NUMBER: WOC 571 of 2014

DATE DELIVERED: 24 November 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 23, 24 November 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Crawford Ryan Lawyers Pty Ltd

RESPONDENT – LITIGANT IN PERSON: Ms Raker

Orders

1. The child, B born … 2009 shall live with the father.

2. The mother shall spend time with the child B for two (2) hours every fortnight under supervision of Interrelate Suburb C or any other supervisor as agreed between the parties and for any additional time as agreed between the parties.

3. For the purposes of Order 2:

   (a)       Each party must contact Interrelate Suburb C within 7 days to arrange an appointment for assessment for suitability and attend the assessment.

   (b)       Each party must comply with any appointment made by Interrelate Suburb C, comply with all reasonable rules of Interrelate Suburb C and comply with all reasonable requests or directions of the staff of Interrelate Suburb C.

   (c)       The mother shall pay the fees nominated by Interrelate Suburb C for the provision of the service.

4. Each of the parents is to attend and the father is to make the child available to Child Dispute Services at 9.00am on 15 March 2016 for the purposes of a Child and Parents Issues Assessment.

5. Each of the parents is to file a Parenting Questionnaire prior to the next court event.

6. The matter will be listed for the first day of a Less Adversarial trial and consideration of the balance of the father’s application for interim orders on a date to be fixed upon release of the Memorandum.

7. The mother is to file and serve a Response and any affidavit upon which she intends to rely in relation to any interim orders that is sought by the mother or in relation to the balance of the father’s application for interim orders within 21 days.

8. Leave is granted to the Applicant father to issue a subpoena on Ms D.

9. The Applicant father’s costs are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Raker & Raker 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 PARRAMATTA

FILE NUMBER: WOC 571  of 2014

Mr Raker

Applicant

And

Ms Raker

Respondent

REASONS FOR JUDGMENT

1. This matter concerns the interim parenting arrangements for a six year old little boy, B, the only child of the parents, who separated in July 2013 and divorced in August 2014, following a five year marriage.  Following the parties’ separation in July 2013, the child B, who was then four, initially lived with his mother and spent time with his father each alternate weekend and during school holidays.  Subsequently, he has come into the care of his father, and since that time, if I understand it correctly, he has not spent any time with his mother.

2. The father’s application for interim orders that he have sole parental responsibility for the child, that the child live with him and spend supervised time with the mother is supported by a number of affidavits. In these affidavits the father sets out his contentions concerning events following separation and concerns that he says he has about the mother’s care of the child.  The mother has not filed any affidavit, and in her Initiating Application she sought orders only in relation to property.  The parenting proceedings were commenced by the father in his Response.

3. Yesterday, when the matter was listed for hearing in relation to interim parenting matters the mother sought an adjournment of those proceedings.  The father did not pursue his application in relation to many of the interim orders set out in his Initiating Application, but he did seek to press his application in relation to parental responsibility and orders in respect of the child’s living arrangements and spending time with his mother.  It seemed that both parties agreed with my observation that I would be greatly assisted by some form of assessment by a family consultant prior to determining the interim parenting application.

4. When I informed the parties that the earliest possible appointment with a family consultant for the purposes of participation in a Child and Parents’ Issues Assessment would be on 15 March 2016, the mother said that she consented to the father’s proposed order that the child live with him in the interim, but opposed his proposed orders that he be allocated sole parental responsibility, and that the time the child spends with her be supervised.  While the father proposed that the child spend supervised time with the mother for two hours each fortnight, the mother proposed that the child spend unsupervised time with her each alternate Saturday from 10.00 am to 6.00 pm.

5. The issue for me to determine is whether it’s in the best interest of the child for the orders to be made with respect to parental responsibility and time with the mother as proposed by each of the parents on a short-term interim basis, pending the hearing of the interim application in March 2016.  As the mother has not filed any affidavit, the only material before the Court is that filed by the father.  As previously indicated, it is not in dispute between the parties that following separation the child lived with his mother and spent time with his father pursuant to an agreement between the parties.

6. The father has re-partnered, and he and his current wife also have an eight month old child together.  Although it is not entirely clear, it also appears to be the case that on 18 October 2015 the father withheld the child from the mother and informed her via email that he would not return the child to her.  By return email, the mother made a proposal for the return of the child to her at a police station, and said that if the father failed to do so she would be seeking a recovery order in relation to the child.  The father did not return the child to the mother in accordance with the proposal, and has since enrolled the child in school in E Town.

7. The father subsequently informed the mother through correspondence between their respective legal representatives that his concerns related to the mother’s alleged drug use and failure to provide a safe environment for the child, and a disclosure made by the child to the father that the mother’s partner had sexually interfered with him.  It is essentially the father’s contention that the mother has significant shortcomings in her parental capacity as a result of her misuse of illicit drugs and allowing the child to be exposed to the sexual misconduct of her partner, and that the time the child spends with his mother should be supervised due to these concerns.

8. So far as drug use is concerned, the father annexes various Facebook entries in which the mother refers to drug use, including on a number of occasions when the child was in her care.  Other entries appear to relate to arrangements made by the mother to obtain illicit drugs.  It appears to be the father’s contention that as a result of the mother’s drug use she’s not adequately supervising the child, and the child is neglected.  He refers to complaints said to have been made by the child that he had to prepare his own breakfast and ready himself for school, as his mother was asleep.

9. The other significant allegation made by the father is that the child had disclosed that the mother’s partner touched his private parts.  According to the father’s affidavits, this disclosure was first made to the paternal grandmother.  Unfortunately, the father, on his own evidence, engaged in a highly leading conversation with the child concerning this allegation. 

10. The father also makes a number of other allegations concerning the care of the child, including an allegation that the mother removed the child from school in which he was enrolled, and that there has been some police involvement in changeover arrangements between the parents. He also makes allegations concerning the mother’s current partner. 

11. These matters will be more fully canvassed at the interim hearing next year, after the initial assessment with the family consultant.  Unfortunately, the interim parenting application was truncated, as it was heard in the course of a busy list and in circumstances where both parties acknowledge that it would be more appropriate for the application for competing interim orders to be determined when there was a Memorandum available from a family consultant and the mother had also filed an affidavit.

12. However, as the mother did not consent to the father’s interim proposal, particularly for her time with the child to be supervised and for the father to be allocated sole parental responsibility, some consideration of the matters in dispute was required to be undertaken.  On the limited information available, there does seem to be support for the father’s contention that the mother has been misusing illicit drugs and at times that has occurred when she has had the child in her care.  The extent to which her drug-taking has impacted upon her parental capacity is less clear.

13. The allegation in relation to the disclosure concerning alleged sexual misconduct is more problematic, particularly due to the questioning by the father in relation to this disclosure, as revealed in his affidavit.  It is also most unfortunate that the father chose to deal with the matter by withholding the child from the mother and enrolling him in a new school in a new area, especially where it appears that this is the third school in which the child has been enrolled in a period of less than twelve months.

14. However, in circumstances where the mother consents for the child to remain living with his father, it would appear to be in the child’s best interest for that arrangement to continue. So far as parental responsibility is concerned, although there is a presumption that equal shared parental responsibility is in the child’s best interests, the presumption does not apply if the Court considers that it would not be appropriate in the circumstances for it to apply when making an interim order. 

15. In my view, it is not appropriate in these circumstances, where very limited information concerning the circumstances of the child is known to make any order with respect to parental responsibility.  So far as the requirement for supervision of the mother’s time with the child is concerned, on the limited information available there is support for the father’s contention concerning the mother’s drug use, and, in my view, given the level of disruption in this child’s life caution should be exercised.  As the father’s proposed order allows for that supervision to occur by any person agreed between the parties, as well as nominating a specific contact centre, and the mother has not identified any particular impediment posed by supervision, but rather submits it’s not warranted, it appears to be an appropriate proposal.

16. In these circumstances, particularly in the absence of any material filed by the mother or through a Memorandum provided by a family consultant, I am of the view that for the limited period of time in which the interim orders will operate that it is in the best interest of the child for the father’s proposed interim orders to be made.

17. Accordingly, I make the orders as set out at the forefront of these Reasons for Judgment.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 24 November 2015.

Associate:

Date:  21 December 2015