Ramsay and Wade (No.3)
[2014] FCCA 2051
•26 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAMSAY & WADE (No.3) | [2014] FCCA 2051 |
| Catchwords: FAMILY LAW – Children – parenting orders – interim orders – where substantive parenting Application is part-heard – where children have not spent time with father for six months – best interests of the children – benefit to children in having a meaningful relationship with both parents – need to protect children from physical or psychological harm – urinalysis ordered. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 68B |
| Cases cited: Ramsay & Wade-Ramsay [2012] FMCAfam 1436 Ramsay & Wade-Ramsay [2014] FCCA 1431 Ramsay & Wade (No.2) [2014] FCCA 1989 |
| Applicant: | MR RAMSAY |
| Respondent: | MS WADE |
| File Number: | SYC 5648 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 20-22 August 2014 |
| Date of Last Submission: | 22 August 2014 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2014 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Reeve |
| Solicitors for the Applicant: | Marsdens Law Group |
| Counsel for the Respondents: | Ms Murphy (direct brief) |
| Counsel for the Independent Children's Lawyer: | Mr Ladopoulos |
| Solicitors for the Independent Children's Lawyer: | John Spence & Associates |
ORDERS
UNTIL FURTHER ORDER
All previous parenting Orders are discharged.
The mother and the father are to have equal shared parental responsibility for the children [X] born [in] 2008 and [Y] born [in] 2010.
The children [X] and [Y] are to live with the mother.
The children [X] and [Y] are to spend time with the father as follows:
(a)From 10:00 am on Saturday 30 August 2014 until 12 noon on Sunday 31 August 2014;
(b)Commencing on Friday 5 September 2014, on each alternate weekend from the end of school on Friday until the start of school on Monday;
(c)From the end of school until 6:00 pm on:
(i)The father’s birthday [date omitted];
(ii)[X]’s birthday [date omitted]; and
(iii)[Y]’s birthday [date omitted];
(d)During the school holiday period at the end of Term 4 in 2014, unless otherwise agreed between the mother and the father in writing, for two (2) periods of seven (7) consecutive nights commencing at 10:00 am on Saturday 5 January 2015 until 10:00 am on the following Saturday and at 10:00 am on Saturday 19 January 2015 until 10:00 am on the following Saturday; and
(e)At such other times as the mother and father may agree in writing.
For the purposes of facilitating Order (4) above handover shall take place at [X]’s school if occurring at the end or start of a school day and otherwise shall occur at the McDonald’s Family Restaurant at [P].
The mother must take all reasonable steps to ensure that her brother
Mr W is not present at handovers.
The father must ensure that the children are not left in the presence of [N] unless at least one of the following adults is also present:
(a)the father;
(b)the paternal grandmother, Ms R;
(c)the paternal grandfather, Mr R; or
(d)the paternal aunt, Ms N.
The father is restrained from:
(a)consuming any alcoholic drink; and
(b)administering to himself any prohibited drug
at any time when he is spending time with the children or for the period of twenty-four (24) hours immediately preceding such time.
The father must submit to a chain of custody urinalysis within twenty-four (24) hours of a written request to do so by the Independent Children’s Lawyer, such urinalysis to be:
(a)under supervision;
(b)in accordance with the Australian/New Zealand standard 4308:2008 Procedure for the collection, detection and quantitation of drugs of abuse in urine; and
(c)at the expense of the father with respect to any costs of such testing.
The mother and father:
(a)are restrained from discussing with the children:
(i)the alleged incident between [X] and his cousin on 22 July 2012; and
(ii)these proceedings; and
(b)must ensure that no other person discusses the matters referred to in subparagraph (a) above, with or in the presence of hearing of the children.
The mother and father are restrained from denigrating each other and/or the members of each other’s family in the presence or hearing of the children and shall ensure that the children are not allowed to remain in the presence or hearing of any other person who is denigrating the parties or their family members.
The mother must notify the father in writing of the details of the school or pre-school and extra-curricular activities which the children attend, such notification to be provided within seventy-two (72) hours of the date of these Orders.
The mother and the father must use a communication book for the purposes of communicating about matters relating to the care and welfare of the children.
The father must enrol in and complete an anger management course at the earliest possible time.
The parties must attend at the rooms of Dr L at a date and time advised by Dr L for the purposes of preparing an updated Family Report and such attendance is to be with the children [X] and [Y].
IT IS NOTED that publication of this judgment under the pseudonym Ramsay & Wade (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 5648 of 2012
| MR RAMSAY |
Applicant
And
| MS WADE |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for interim parenting orders brought at the instigation of the Independent Children’s Lawyer. The Application is unusual in that it has been made during part-heard proceedings for final parenting orders. The proceedings, including a part-heard contravention application, were heard over three days, from 20 to 22 August and the Application for final orders has been adjourned, part-heard, to 2 and 3 October 2014.
Relevant Procedural History
On 19 December 2012 the Court delivered an interim parenting decision (Ramsay & Wade-Ramsay[1]) where I made orders providing that (in summary) until further order:
[1] [2012] FMCAfam 1436
a)the mother was to have sole parental responsibility for the parties’ two young children, [X], born [in] 2008, and [Y], born [in] 2010;
b)the children were to live with the mother;
c)the children were to spend time with the father at the home of his parents as follows:
i)each Wednesday from 4:00 pm until 7:00 pm;
ii)each Sunday from 9:00 am until 11:30 am;
iii)on Christmas Day 2012 from 9:00 am until 11:30 am;
iv)on Father’s day from 9:00 am until 11:30 am; and
v)at such other times as the parties agreed.
d)The time spent by the father with the children was subject to the following conditions:
i)all times were to be under the direct supervision of the children’s parental grandmother;
ii)the children were not to be brought into contact with a particular cousin;
iii)the father was not to consume any alcoholic drink when spending time with the children or for 24 hours beforehand;
iv)the father was not to administer to himself any prohibited drug when spending time with the children or for 24 hours beforehand; and
v)the father was to submit to chain of custody urinalysis as directed by the Independent Children’s Lawyer on no fewer than two occasions each month.
The Orders that were made on 19 December 2012 were made after an interim hearing where some serious allegations had been made, including:
a)family violence by the Father directed towards the Mother, her parents and her brother;
b)alcohol abuse by the Father;
c)the use of illicit drugs by the Father over a significant period of time; and
d)an allegation that the children’s cousin, then aged 13, had sexually abused the little boy by placing a biscuit in the child’s bottom.
The parenting orders were varied slightly as to times by interim consent orders made on 7 February 2013.
A Court Expert report was ordered to be provided by a Clinical Psychologist, Dr L, and the parenting proceedings were subsequently set down for final hearing in August 2014.
In the intervening period, however, the Father filed an Application- Contravention on 20 March 2014, in which he claimed that the Mother had contravened the interim parenting orders on no fewer than eight occasions between 20 February and 16 March 2014.
The Application was heard on 28 April 2014 and, on 8 July 2014, I found that the Father had established a case against the Mother in respect of all eight of the contraventions alleged (Ramsay & Wade-Ramsay[2]). As the Mother was not legally represented at the time, I adjourned the Application and granted leave to the Mother to file and serve an affidavit setting out the facts upon which she sought to rely in support of any contention she may wish to make that she had a reasonable excuse for all or any of the contraventions.
[2] [2014] FCCA 1431
The Application was adjourned part-heard to the first day of the substantive parenting proceedings. By that time, the Mother had obtained her current representation by Ms Murphy of Counsel.
The Mother relied on her affidavits of 18 July and 1 August 2014, along with affidavits by her brother and her mother. The affidavits had been prepared with a view to their being used in both the contravention proceedings and the substantive parenting proceedings, but Ms Murphy indicated to the Court which paragraphs of the affidavits were to be relied on for the purpose of the contravention proceedings.
The Mother (who has now reverted to the use of her maiden name without the hyphenated addition of the father’s surname), her brother and her mother all gave oral evidence and were subjected to cross-examination.
The contravention proceedings were unable to be completed at that stage, as the Mother’s Counsel told the Court that her client wished to rely on a video disc showing vision from a closed-circuit television camera of a handover that took place on 16 February 2014 at the McDonald’s Restaurant at [P]. The disc did not become available until the afternoon of Friday 22 August.
After submissions as to whether or not the Mother had established a reasonable excuse for the contraventions, I delivered a decision on 26 August that the Mother had established a reasonable excuse in respect of the contraventions on 20 and 23 February 2014 but not in respect of the six latter counts (Ramsay & Wade (No.2))[3]. In my reasons for decision at [14], I expressed concern that the children’s time with the Father had not resumed:
What is of great concern is that count 3 through to count 8, dating from 27 February to 16 March, have shown that the children were constantly withheld from spending time with the father and, indeed, at the time of the hearing last week, had still not spent time with the father, which is actually past the time set out in the contraventions.[4]
[3] [2014] FCCA 1989
[4] Ibid at [14]
The substantive parenting proceedings are part heard. The Father and his mother have given their evidence. Dr L, the court expert, has given some evidence by telephone but will give further evidence on a later occasion and will provide an updated report. The Mother is part heard in her evidence in the substantive case.
Noting that the substantive proceedings will still take up to a further three days, as so much time had to be devoted to the contravention proceedings, the Independent Children’s Lawyer has proposed some interim orders that would vary the interim orders of 19 December 2012 as modified by the consent orders of 7 February 2013. One of the aims is to recommence the Father’s time with the children.
Orders sought
The Independent Children’s Lawyer tendered a Minute of Proposed (interim) Orders providing that (in summary):
a)the mother and the father should have equal shared parental responsibility for the children;
b)the children should live with the mother;
c)the children should spend time with the father:
i)from 10:00 am on Saturday until 12 noon on Sunday 24 August;
ii)commencing Friday 5 September each alternate weekend from the end of school on Friday until the start of school on Monday;
iii)from the end of school until 6:00 pm on the father’s birthday and the children’s birthdays;
iv)for two periods of seven consecutive nights during the school holidays in January 2015; and
v)other times as agreed;
d)handovers to take place at the child [X]’s school when appropriate or otherwise at McDonald’s Family restaurant at [P];
e)the mother should take all reasonable steps to ensure that her brother does not attend the handovers;
f)the father must ensure that the children are not left in the presence of the cousin referred to in paragraph [13] above unless one of the following adults are present:
i)the father;
ii)the paternal grandmother;
iii)the paternal grandfather; or
iv)the paternal aunt;
g)the father should be restrained from consuming any alcoholic drinks or administering to himself any prohibited drug whilst spending time with the children;
h)the father should submit to chain of custody urinalysis within 24 hours of a request by the ICL;
i)the parties are to be restrained from discussing with the children and ensure that no other person discusses with them:
i)the alleged incident with the cousin on 22 July 2012; or
ii)these proceedings;
j)the mother and father should be restrained from denigrating each other or members of their families;
k)the mother should advise the father of the details of the children’s school and pre-school;
l)the parties should use a communication book;
m)the father should attend an anger management course; and
n)the parties should attend a further interview with Dr L for the purpose of preparation of an updated Family Report.
The Mother opposed the proposed orders. Her Counsel submitted that parenting orders should only be made on a final basis at the conclusion of the final hearing. She submitted that the Mother felt that she would be prejudiced by the making of interim orders.
The Father’s solicitor, Mr Reeve, told the Court that the Father agreed with the proposed interim orders but also sought additional time with the children, namely overnight on Wednesday of each week.
The proposed interim orders should be seen in the light of the final orders sought by the parties.
The Father now seeks orders that the children should live with him and the parties should have equal shared parental responsibility for the children. He proposes that the children should spend time with their Mother:
a)each Wednesday afternoon from 4:00 pm to 6:30 pm;
b)on alternate weekends from 4:00 pm on Friday to 7:30 pm on Sunday, with the time being extended to 6:00 pm on Monday if on a long weekend;
c)for half of the school holidays;
d)on the children’s birthdays, at Christmas and on Mother’s Day;
e)changeover to be at the father’s residence for pick-up and the mother’s residence for return; and
f)the mother to be restrained by injunction from attending changeovers with her brother.
The Mother’s proposed final orders are that (in summary):
a)The mother should have sole parental responsibility for the children;
b)The children should live with her;
c)The father to undergo a full psychiatric assessment by a psychiatrist with expertise in depression, anger management and drug and alcohol addiction;
d)The children should spend time with their father at the [omitted] Children’s Contact Service each week subject to the father providing evidence of successful completion of eight separate programs;
e)The father should be permitted to telephone the children once a week;
f)The father should be subject to restrained by various injunctions as to his behaviour under the provisions of s.68B of the Family Law Act 1975 (Cth); and
g)The father is to allow the mother to obtain passports for the children, which she would retain in her possession.
Evidence and Submissions
Dr L gave evidence by telephone. He confirmed his view that the children should spend time with their father on weekends, starting immediately with the child [X] and, after a lead-in period, following on with the younger child [Y]. He had formed the view that the children had a strong relationship with their father. Whilst there might be some distress at first once contact was re-established he believed that the children would be able to cope with staying overnight with their father.
Dr L noted that there had been difficulties at handovers and said that it was important that the children should not be exposed to conflict at handovers. It would be preferable if the Mother’s brother were not to be present. It would be best if the handovers could minimise the conflict between the parents.
In answer to questions in cross-examination by Mr Reeve for the Father, Dr L said that the Mother had a heightened apprehension about the Father. The maternal grandmother had impressed him as a person who had a negative view of the Father. Interestingly, Dr L said that at the time when he had seen the parties he noted the children’s joy at seeing their Father. He was also receptive to the idea of the children’s transition between the parents taking place at school, so as to avoid their meeting face to face.
Dr L also said that both parents, in his opinion, had an unfortunate communication style and suggested that they should attend mediation. He agreed with the proposition put to him by Mr Reeve that continued supervision was unnecessary, saying that there did not need to be a person supervising the Father’s time with his children.
In answer to a question put to him by Ms Murphy of Counsel for the mother, Dr L said that the Father had had a drug dependency and at the time he undertook the assessment he suggested a further six months for the Father to undertake drug tests.
Further, Dr L expressed the view that it was self-evident that the Mother would have difficulty coping with the children spending overnight time with their Father, but he did not think that the children would have difficulty doing so. Ideally, the children should be together when spending time with their father but initially that might be “a bit tough” for [Y].
Counsel for the Independent Children’s Lawyer did not support the interim orders proposed by the Father. The Independent Children’s Lawyer opposes the additional night sought by the Father at this stage.
However, the submission was that the proposed orders were consistent with the evidence of Dr L. Noting the Mother’s evidence, and taking it at its highest, there was, he submitted, no unacceptable risk to the children in spending time with the Father. The Mother’s evidence in respect of parental responsibility supported an order that the parties should have equal shared parental responsibility for the children.
Parenting Applications
When a Court is required to make parenting orders, it must have regard to the objects of Part VII of the Family Law Act 1975, which are set out in s.60B(1). The Court must also have regard to the principles underlying those objects, which are set out in s.60B(2) of the Act.
Section 60CA requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child (or children, as in this case) as the paramount consideration. Section 60CC sets out the way that the Court determines what is in children’s best interests, having regard to the primary considerations in subsection 60CC(2) and the additional considerations in subsection 60CC(3).
Section 61DA requires the Court to apply the presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them. This presumption does not apply in cases of abuse or family violence and may be rebutted by evidence that it would not be in the children’s best interests to apply the presumption.
Subsection 61DA(3) provides:
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 the order.
Section 65DAA applies when the Court has made an order that a child’s parents are to have equal shared parental responsibility for the child. If that is the case, the Court must consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent or, in the alternative, whether it is both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.
All of those matters have been considered.
Conclusions
The substantive proceedings have reached the stage where all of the evidence in chief has been taken. Dr L has been cross-examined on his report, and it appears clear that an updated report would be beneficial.
The Mother is still in cross-examination, but her evidence in chief is before the Court. As Mr Ladopoulos submitted, it is usually the case that a party’s evidence improves in cross-examination, so the Mother’s evidence has, for the most part, been taken at its highest.
The Court cannot ignore the evidence in the recent contravention proceedings. The video disc of the changeover at the McDonald’s Restaurant at [P] in February, tendered as part of the Mother’s case, was very informative. The alacrity with which the child [X] rushed up to his father and embraced him was a clear illustration of the child’s attachment to his father, which in part bears out the evidence of Dr L that both children had a strong relationship with him. It seems clear that there is a benefit to the children in having a meaningful relationship with their father.
The Mother has an anxiety about the children’s well-being in the care of their Father, and I am, of course, conscious of the need to protect the children from harm from being subjected to abuse, neglect or family violence. Dr L is not of the view that the children need to be supervised in their Father’s care. I am not satisfied that the children should only see their Father at a contact centre. I cannot see any justification for it.
There is a need for the question of the Father’s drug dependency to be laid to rest. Drug abuse is inimical to good parenting, as is alcohol abuse. The Father will need to undertake urinalysis to ensure that he does not relapse into drug use. The Father should certainly not be affected by drugs or alcohol when the children are in his care.
It is in the children’s best interests that their time with their Father should resume without delay. Changeovers have been problematic and it is clear that, where possible, changeovers should take place at the elder child’s school, to avoid confrontation and conflict between the parents.
The orders proposed by the Independent Children’s Lawyer are clearly intended to advance the children’s welfare and I propose to make them. I am not satisfied that at this stage I should make the further order for overnight time sought by the Father.
The parties should attend upon Dr L to update the report.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 4 September 2014
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