RANGAN & RANGAN

[2015] FCCA 1868

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANGAN & RANGAN [2015] FCCA 1868

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the children – parental responsibility – whether it is appropriate to make an order for parental responsibility – where mother left matrimonial home taking the children with her – where father has had only limited time with the children – allegations of family violence – where mother has filed no material – whether children should reside with father – whether father’s time with children should be supervised – whether mental health issues affect mother’s ability to care for the children – Independent Children’s Lawyer – appointment of Independent Children’s Lawyer.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 68L

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Re K (1994) 17 Fam LR 537; FLC 92-461

Applicant: MR RANGAN

Respondent: MS RANGAN

File Number: SYC 2488 of 2015

Judgment of: Judge Scarlett

Hearing date: 2 July 2015

Date of Last Submission: 2 July 2015

Delivered at: Sydney

Delivered on: 2 July 2015

REPRESENTATION

Counsel for the Applicant: Ms Winfield

Solicitors for the Applicant: Paul Marsh & Associates Solicitors

Solicitor for the Respondent: Ms Burton

Solicitors for the Respondent: Salvos Legal Humanitarian

ORDERS

UNTIL FURTHER ORDER

1. The children [X] born [omitted] 2010 and [Y] born [omitted] 2012 are to spend time with the Applicant Father each weekend from 9:00am on Saturday until 5:00pm on Sunday.

2. The children [X] and [Y] will spend time with the Respondent Mother at all other times.

3. For the purposes of changeover where the children go from the care of one parent to the care of the other in order to facilitate the above Orders the mother or her nominee being a responsible adult known to the Father is to deliver the children to the Father in the Food Court of the [omitted] Shopping Centre at [omitted] at the commencement of the time and the Father is to return the children to the Mother or her nominee being a responsible adult known to the Father at the same place.

4. The interests of the children [X] born [omitted] 2010 and [Y] born [omitted] 2012 are to be independently represented by a lawyer in accordance with the provisions of section 68L of the Family Law Act 1975 and Legal Aid NSW is requested to arrange this representation.

5. The parties must forward to Legal Aid NSW at 323 Castlereagh Street Sydney within ten (10) days for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits and other relevant documents.

6. The Independent Children’s Lawyer is granted leave to issue up to twelve (12) subpoenas without charge.

7. The Respondent Mother must file and serve a Notice of Address for Service forthwith.

8. The Respondent Mother must file and serve a Response and an affidavit setting out the facts upon which she seeks to rely within seven (7) days.

9. The Application is adjourned to Monday 17 August 2015 for mention only at 10:00 am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2488 of 2015

MR RANGAN

Applicant

And

MS RANGAN

Respondent

REASONS FOR JUDGMENT

Application

1. The application before the Court is an application by the Father of two children: 

   a)[X], who was born on [omitted] 2010; and

   b)[Y], who was born on [omitted] 2012. 

2. The Father is seeking orders by way of interim orders which would involve the children returning to his care from the care of the Mother. 

Background

1. The fact is that the parties separated in April of this year.  The Mother left the former matrimonial home with the children.  The Father was not aware of her whereabouts. He commenced proceedings by filing an application on 22^nd April which involved Commonwealth information orders, location orders in an effort to find out where the Mother was so that she could be served.  Eventually, service was successful. 

2. The Mother attended Court for the first time on 10^th June 2015.  She was not represented, although she was referred to the duty lawyer for advice.  The Mother was directed to file and serve a response and an affidavit stating the facts upon which she sought to rely within 21 days.  She did not do so.

Child Dispute Conference

1. The parties were directed to attend a child dispute conference with a Family Consultant, which took place on Wednesday, 17^th June at 10:00am.  The Family Consultant noted that the Mother did not attend the child dispute conference in person, and the Family Consultant noted that a message had been received via the NEC that the Mother wished to participate via phone, and that she had organised to do so two days prior.  That arrangement could not be confirmed, but the Family Consultant rang the Mother, and she participated by telephone. 

2. The Father attended the conference in person.

3. The Family Consultant noted that issues in dispute were parental responsibility, how much time in which the children should live or spend time with each parent and whether the children’s time with their father should be supervised.  The Mother indicated that she had gone with the children to a refuge, but is now living in private rental accommodation.  She reported being fearful of the Father and made allegations of family violence. 

4. The Father denied any issues of family violence, but made a number of detailed allegations about his concerns relating to the Mother’s mental health over a period of time.  The Family Consultant considered the risk of harm to the children noting that the Mother alleged the Father caused harm to the children by abusing her in front of them, yelling at them and not treating them appropriately and fairly and by pushing the older child, [X].  The Father denied all of this.

5. It became quite clear to the Family Consultant that there was a significant lack of trust between the parties.  It was an issue that the Father had not seen the children since 30 March.  The Mother did report that the children missed their father and wanted to see him.  The Mother appeared to be the primary caregiver prior to the children’s separation, but the children had had regular consistent contact with their father.

6. The Mother proposed that the Father should commence spending time with the children supervised by a supervision agency, a fee for service agency known as Connecting Families.  The Father said that he agreed to do this initially in order to see the children.  I am informed today that the Father has seen the children on one occasion, namely, 28^th June for a period of two hours under supervision.  That time took place entirely in the food court of the [omitted] Shopping Centre at [omitted].

7. The Family Consultant made a number of recommendations noting that information was required about the Mother’s mental health status, nothing the need of the Court to consider each parent’s evidence about the Mother’s allegations of family violence and the likelihood that face to face changeovers of the children would be inappropriate.  There was also the alleged risk to the children in the care of the Mother with respect to her mental health, and the Mother’s allegation of the risk to the children in the care of the Father with respect to family violence.  The Family Consultant recommended that an Independent Children’s Lawyer may be of benefit.

Evidence and Submissions 

1. When the matter came to Court this morning, the Mother had not filed any material.  She was, however, represented by a solicitor from Salvos Legal Humanitarian who indicated that she had recently obtained instructions.  The Mother had endeavoured to obtain legal aid from Legal Aid New South Wales, but had been unsuccessful in obtaining grant, although an appeal had been made to the Legal Aid Review Committee.

2. First of all, I dealt with objections by the Mother to access to material produced on subpoena from various hospitals and health providers.  The Mother’s solicitor, in my view, took a responsible and pragmatic view by seeking that she should inspect the material first, and, provided that there were no concerns, that the material then could be made available to the Father’s legal advisors.  I indicated to the parties that I would not be authorising the release of any documents produced under subpoena to either of the parties themselves, and that the material must remain within the control of one of the lawyers connected with the case.  The lawyers, from my understanding, complied faithfully with that direction.

3. The fact is that the Father expresses sufficient concern about the Mother’s mental state, that he seeks that the children should be returned to his care, and that they should reside with him until these proceedings can be finalised.  The Mother opposes this.  The Mother, in fact, sought an adjournment today as her solicitor, try as she might, had not been able to obtain the necessary instructions to prepare a response and an affidavit or some affidavits in support.  This was due, as I understand it, to the fact that the Mother’s solicitor had only received her instructions relatively late.

Application for Adjournment 

1. The question of an adjournment was considered.  I declined the application for an adjournment as I was of the view that the children’s interests required that they should resume spending time with their father, and I noted that there had only been one incident since the end of March.

Appointment of an Independent Children’s Lawyer

1. I considered that it was appropriate that the interests of the children should be independently represented by a lawyer, and the legal advisors for each party did not demur from that suggestion.  Indeed, it would seem on the basis of the evidence that was tendered that there are a number of reasons that come within the guidelines set out by the well-known decision of Re K[1] that would indicate a need for the children’s interests to be represented.

   [1] (1994) 17 Fam LR 537; FLC 92-461

Applications for Parenting Orders

1. When a Court is being asked to make parenting orders, it must regard the best interests of the child or children as the paramount consideration.  There are a number of matters set out in Part VII of the Family Law Act 1975 (Cth) which the Court must consider including:

   a)section 60B, which sets out the objects and the principles of the Act;

   b)section 60CA, which enshrines the notion that the best interests of the child or children must be the paramount consideration;

   c)Section 60CC, which assists the Court through the primary considerations in subsection (2) and the additional considerations in subsection (3) to determine what is in a child’s best interests.

2. Section 61DA contains the presumption that it is in children’s best interests for their parents to have equal shared parental responsibility, but that does not apply in cases of abuse or family violence, and, indeed, there may be reasons where the Court is satisfied by evidence that equal shared parental responsibility would not be in the children’s best interests. It is the usual case parties would have equal shared parental responsibility on an interim application as set out in subsection 61DA(3).

3. If the Court does make an order for equal shared parental responsibility, the Court must consider the matters set out in section 65DAA including deciding whether it is in the children’s best interests and reasonably practicable for them to spend equal time with each parent or, failing that, for them to spend substantial and significant time with each parent.

4. I have considered all of these matters.  Not all of them are relevant, but I am firmly of the view that this is a matter where the children’s interests should be independently represented by a lawyer, and I shall make that order today.

5. I consider the best interests of the children.  I note the primary considerations in subsection 60CC(2) whereby the Court must balance on the one hand the benefits of the children of having a meaningful relationship with both parents and, on the other, the need to protect the children from physical or psychological harm caused from being subjected to or exposed to abuse, neglect or family violence.

6. As I said earlier, there are additional considerations in subsection 60CC(3).  One of those, of course, is in paragraph (a) of that subsection where the Court would consider the views of the children and assign such weight to the children’s views as their age and state of maturity was appropriate.  I have no evidence about the children’s views except the report from the Family Consultant that the Mother said that the children were missing their father.

7. There is an absence of evidence from the Mother which means that the Court only has the Father’s evidence to go on plus the independent evidence which comes from the Child Dispute Conference Memorandum to the Court and comes from the subpoenaed material from the various medical providers in respect of the mother.

8. There are also two other documents tendered by Ms Burton, the Mother’s solicitor, from a Ms B and a Ms R, the latter a Catholic chaplain, in support of the Mother and which set out that the children in the Mother’s care were clean, well-nourished and appeared to be happy and well-looked after.  I take all of that material into account.  The Court does consider whether there is a family violence order in force or whether there have been any convictions for assault or other matters of violence.  There is no family violence order.  On the evidence before me, there is no application for an Apprehended Domestic Violence Order.  What there is consists of the Mother’s claims to the Family Consultant that she was subject to family violence. 

Conclusions

1. It is clear that independent assistance by way of an Independent Children’s Lawyer will be most important in ascertaining what are in the children’s best interests. In my view, this is a case where I am not satisfied that it is appropriate to make any orders for parental responsibility at this stage. That may change after a further hearing. I propose to bring this matter back to court after an Independent Children’s Lawyer has been appointed and is able to make the necessary enquiries. I can then consider the question of parental responsibility. I therefore do not need to consider the requirements of section 65DAA.

2. But I get back to the best interests of the children and the need to protect them, on the one hand, from harm as opposed to the benefit to them from having a meaningful relationship with each parent.  They are not in a situation at the moment where they are able to have a meaningful relationship with each parent so far as their father is concerned, having seen him for a period of only two hours since the end of March, and that under supervision in the food hall of the [omitted] Shopping Mall.  That can hardly be regarded as a natural environment for the children to spend time with the parent for any length of time.

3. Is this a case where the Court should make an order now directing that the children should be removed from the care of the Mother and placed in the care of the Father until further order?  I am not satisfied that the Court has sufficient evidence to make what could be quite a draconian decision.  There is no evidence that, apart from the Father’s concerns about the Mother’s mental health and, indeed, some of the supporting evidence that she poses any threat to the children and it appears that the children are being well looked after in her care, although it is a fact that the Mother is not doing anything positive to promote the relationship between the children and their father, which cannot be in their best interests.

4. These children need to see their father regularly.  They are aged five years and three years and they need to spend time with him, but they need to spend time with him in circumstances where they will not be at risk of harm.  I have considered the need, if there is a need, for the children’s time with the Father to be supervised.  The evidence does not indicate that.  The evidence, to my mind, is insufficient to warrant the children spending time with their father for a short period of time under supervision. 

5. There is certainly a concern as expressed by the Family Consultant about changeovers if they would involve the parents meeting face to face as the Mother expresses a fear of the Father due to her allegations of family violence.  They remain, however, allegations, of course, because the Mother has not provided any evidence in respect of her claims of family violence, but that does not mean that she does not have a fear and that the Court should not give any weight to that concern.  I am mindful of the fact that whilst, for the most part, prior to separation, the Mother appeared to be the children’s primary caregiver.  There is evidence that the Father spent a considerable amount of time as a parent and caregiver to these children. 

6. In my view, the evidence would allow there to be some frequent time.  It needs to be for longer than two hours and it can include overnight time.  A changeover venue needs to be in a place that is independent and open.  The only changeover venue that appears to be appropriate at this stage would be the food court at the [omitted] Shopping Centre where the children spend supervised time with their father quite recently.  It may well be that the mother can arrange for a responsible adult to be present at the changeover with the children and I am informed by Ms Burton for the Mother that the Respondent’s mother is available to assist her.  She may be well a suitable person. 

7. The matter needs to come back to court relatively soon, but it needs to come back to court once there is an Independent Children’s Lawyer appointed and once the mother has, in fact, filed her material.  Her solicitor indicated that she would need a further week to file and serve that material and I propose to allow that time.  The parties will need to contact Legal Aid New South Wales because Legal Aid will be informed by the Court of the appointment of an Independent Children’s Lawyer. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  16 July 2015