S & S
[2007] FMCAfam 898
•2 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & S | [2007] FMCAfam 898 |
| FAMILY LAW – Parenting orders – father with epilepsy – risk of harm to children. |
| Family Law Act 1975 (Cth), ss.60B, 60CC(2) (3), (4) & (4A), 65DAA(1)(a) & (b), (3) & (5), 69ZT(2) & (4) and 69ZV(1), (2) & (5) Federal Magistrates Act 1999 (Cth) ss.3 and 42 Federal Magistrates Court Rules2001 (Cth), rr. 1.03 and 16.01 |
| B & B [2007] FMCAfam 82 Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346 Hungerford & Tank [2007] FamCA 637 |
| Applicant: | B D S |
| Respondent: | N A S |
| File Number: | NCC 2506 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 27 September 2007 |
| Date of Last Submission: | 27 September 2007 |
| Delivered at: | Darwin (by telephone-link to New South Wales ) |
| Delivered on: | 2 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hamilton |
| Solicitors for the Applicant: | Paul Stubbs Law Office |
| Counsel for the Respondent: | Ms McKinnon |
| Solicitors for the Respondent: | Crane Butcher McKinnon |
ORDERS THAT UNTIL FURTHER ORDER
The Applicant spend time with the Children from 9.00 am to 6.00 pm each Sunday.
The Applicant spend time with the Children each Wednesday from 5.00 pm to 7.00 pm.
At least two (2) members of the Applicant’s family are to be present with the Applicant and the Children during the Applicant’s time spent with the Children, provided that they are family members able to deal with the Applicant’s medical issues.
The Applicant spend time with the Children at any other time agreed between the parties, such time spent to be in the presence of:
(a)the Respondent Mother; or
(b)at least two (2) members of the Applicant’s family.
The Respondent Mother is to deliver and pickup the Children from:
(a)the Applicant’s residence; or
(b)such other place as may from time to time be agreed by the Applicant and Respondent,
at the beginning and end of each period of time spent with the Applicant.
The Applicant have telephone communication with the Children for a half hour in total between 6.30 pm and 7.30 pm each Monday and Friday on a landline number to be provided in writing by the Respondent’s solicitors to the Applicant’s solicitors, with the Respondent to ensure the Children are available to take the call which is to be made by the Applicant.
The children [H] born 2000 and [T] born 2007 are to be separately represented, and the Legal Aid Commission New South Wales is requested to arrange such representation.
(a)Both parties must provide to the Legal Aid Commission New South Wales copies of any relevant orders and reports forthwith.
(b)Both parties must provide the Legal Aid Commission New South Wales with copies of any applications and affidavits on which the party relies forthwith.
(c)The Registry Manager is requested to forward a copy of these orders promptly to the Senior Solicitor, Family Law Litigation, of the Legal Aid Commission New South Wales of these orders.
The parties have leave to inspect the documents produced under the subpoena issued to The Medical Records Manager, North Coast Area Health Service, Medical Records and the Independent Children’s Lawyer, when appointed, have leave to inspect and photocopy those documents. The return date for this subpoena of 9.30 am on 12 October 2007 be vacated.
The proceedings be adjourned to 10.00 am on 8 November 2007 at the Federal Magistrates Court, New South Wales , for directions.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
NCC 2506 of 2007
| B D S |
Applicant
And
| N A S |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, B D S,[1] has epilepsy. He seeks interim orders from the Court to be able to spend time with his children, [H] (born 2000) and [T] (born 2002).[2]
[1] “Father”.
[2] “Children”.
The respondent, N S,[3] opposes the orders sought by the Father, and seeks orders that:
a)an Independent Children’s Lawyer[4] be appointed;
b)the time the Children spend with the Father be reviewed once the ICL obtains an expert’s report in relation to the Children’s needs; and
c)the proceedings be transferred to the Court in New South Wales.
[3] “Mother”.
[4] “ICL”.
Issues
The principal issue in this case is whether, and, if so, on what terms, the Children ought spend time with the Father, having regard to the epilepsy from which the Father suffers and whether that poses a risk of physical or psychological harm to the Children for the purposes of s.60CC(2)(b) of the Family Law Act, 1975 (Cth).[5]
[5] “FL Act”
Consideration of the other issues raised by s.60CC(2)(a) and (3) is nevertheless still required. Transfer of the proceedings to New South Wales is not in issue, and future proceedings will be in New South Wales.
Hearing and Orders
This matter was heard in the New South Wales duty list on 27 September 2007. At that time the Court made orders, until further order, as follows:
(1) The Applicant spend time with the Children from 9.00 am to 6.00 pm each Sunday.
(2) The Applicant spend time with the Children each Wednesday from 5.00 pm to 7.00 pm.
(3) At least two (2) members of the Applicant’s family are to be present with the Applicant and the Children during the Applicant’s time spent with the Children, provided that they are family members able to deal with the Applicant’s medical issues.
(4) The Applicant spend time with the Children at any other time agreed between the parties, such time spent to be in the presence of:
(a) the Respondent Mother; or
(b) at least two (2) members of the Applicant’s family.
(5) The Respondent Mother is to deliver and pickup the Children from:
(a) the Applicant’s residence; or
(b) such other place as may from time to time be agreed by the Applicant and Respondent,
at the beginning and end of each period of time spent with the Applicant.
(6) The Applicant have telephone communication with the Children for a half hour in total between 6.30 pm and 7.30 pm each Monday and Friday on a landline number to be provided in writing by the Respondent’s solicitors to the Applicant’s solicitors, with the Respondent to ensure the Children are available to take the call which is to be made by the Applicant.
(7) The children [H] born 2000 and [T] born 2007 are to be separately represented, and the Legal Aid Commission New South Wales is requested to arrange such representation.
(a) Both parties must provide to the Legal Aid Commission New South Wales copies of any relevant orders and reports forthwith.
(b) Both parties must provide the Legal Aid Commission New South Wales with copies of any applications and affidavits on which the party relies forthwith.
(c) The Registry Manager is requested to forward a copy of these orders promptly to the Senior Solicitor, Family Law Litigation, of the Legal Aid Commission New South Wales of these orders.
(8) The parties have leave to inspect the documents produced under the subpoena issued to The Medical Records Manager, North Coast Area Health Service, Medical Records and the Independent Children’s Lawyer, when appointed, have leave to inspect and photocopy those documents. The return date for this subpoena of 9.30 am on 12 October 2007 be vacated.
(9) The proceedings be adjourned to 10.00 am on 8 November 2007 at the Federal Magistrates Court, New South Wales, for directions.
The Court told the parties that it would deliver reasons for judgment at a later date.[6] These are those reasons.
[6] The delivery or publication of reasons for judgment at a later date is a course open to this Court. The Court is to act as informally and expeditiously as possible: Federal Magistrates Act 1999 (Cth), ss.3 and 42, (“FM Act”); Federal Magistrates Court Rules 2001 (Cth) r.1.03 (“FMC Rules”), and the FMC Rules expressly provide for the Court to give any judgment or make any order at any stage in a proceeding: r.16.01; and to use streamlined procedures: r.1.03. The Court, whilst not expressly a superior court is not an inferior court either, exercising powers in relation to concurrent jurisdiction with the Family Court in many aspects of the FL Act, and with the Federal Court in many areas (including, for example, workplace relations and bankruptcy), and to the exclusion of the Federal Court in many aspects of migration law, where this Court now exercises the original jurisdiction of the High Court with the power to issue prerogative relief. The combination of powers and jurisdiction make it clear that the Court is neither superior nor inferior (in the traditional nomenclature), but rather the lowest level Ch III Court under the Constitution, and one with power to make orders and deliver judgment separately.
Interim Parenting Orders – principles and procedures
The judgment of the Full Court of the Family Court of Australia in Goode & Goode[7] concerned interim parenting orders. The Full Court of the Family Court of Australia in Hungerford & Tank,[8] a case concerning final orders, said that the failure to follow the steps laid out in Goode was an error of law. The steps identified in Goode are as follows:
[7] (2006) 206 FLR 212; [2006] FamCA 1346 (“Goode”).
[8] [2007] FamCA 637 at para. 62 per Warnick, May and Boland JJ.
“(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”[9]
[9] Goode, FLR at 235-236 per Bryant CJ, Finn and Boland JJ; FamCA at para. 82 per Bryant CJ, Finn and Boland JJ. See also B & B [2007] FMCAfam 82 at paras. 2-5 per Wilson FM (“B & B”).
Equal Shared Parental Responsibility
The FL Act presumes that there will be equal shared parental responsibility. There is no agreement on equal shared parental responsibility for the purposes of interim orders, but both parties agree that there ought to be equal shared parental responsibility for the purposes of final orders.
If the parties agree on equal shared parental responsibility in the long term, there is no reason to deny it on an interim basis, and the presumption therefore applies.
Time Spent
The Court must consider whether the Child spends equal time with each parent, that being presumed to be in the best interests of the Child.[10] Equal time with each parent is qualified by a requirement that it be reasonably practical.[11]
[10] FL Act, s.65DAA(1)(a).
[11] FL Act, s.65DAA(1)(b).
It is not presently reasonably practicable for the Children to spend equal time with each parent because of the Father’s epilepsy, and the consequent necessity for other persons to be present during any time the Father spends with the Children.
The question therefore becomes how much substantial and significant time, or other time, the Father should spend time with the Children. To determine these questions it is necessary to have regard to the relevant primary and secondary considerations in, and underlying objects of, the FL Act.[12]
Primary Considerations – section 60CC(2)
[12] FL Act, ss.60CC(2), (3), (4) and (4A) and 60B.
Benefit to the Children of having a meaningful relationship with both parents – section 60CC(2)(a)
There can be no doubt that the Children ought to have the benefit of a meaningful relationship with both parents. The question here is how that is to be achieved in circumstances where the Father has epilepsy, and is prone to seizures. It appears that the Father is capable of having a meaningful relationship with the Children, as for one year prior to separation he cared for them (with assistance) for three days a week whilst the Mother worked.[13]
[13] Father’s Affidavit, sworn 8 August 2007, para. 15 (“Father’s Affidavit”).
Risk of Harm to the Children – section 60CC(2)(b)
The Mother says that the Father’s epilepsy results in him becoming disoriented and aggressive during seizures, and that he salivates profusely and makes strange frightening noises when coming out of a seizure, and that he is impossible to reason with at these times.[14] The Mother says that the impact of the seizures on the Children needs to be assessed. More critically, the Mother says that the Father was violent toward the Children when they lived together as a family.[15] The Mother also says that the Father’s parents are not suitable persons to supervise the time the Children spend with the Father, saying that they minimise the Father’s medical condition, have poor insight into the impact of the condition on the Children, and that the Children do not feel safe with them when the Father has a seizure.[16]
[14] Mother’s Affidavit, sworn 14 September 2007, paras. 13-14. (“Mother’s Affidavit”).
[15] Mother’s Affidavit, para. 16.
[16] Mother’s Affidavit, para. 21.
At hearing Counsel for the Mother pressed the Court to examine documents subpoenaed from the Medical Records Manager, North Coast Area Health, and Counsel for the Father raised no objection to the Court doing so.[17]
[17] Transcript, pp.8-9.
The Court examined the subpoenaed documents which indicated that:
a)the Father had been aggressive with the Children and had hit the youngest child in or about November 2004;[18]
[18] Transcript, p.9.
b)the Father had of his own volition been to a general practitioner, and obtained a referral for assessment and admission to hospital;[19]
[19] Transcript, p.9.
c)the Father reported several years of marital problems, and a very controlling wife;[20]
[20] Transcript, p.9.
d)the matter was referred to the Department of Community Services, and the relevant check list indicated that:
i)the Children had been hit several times of late (that is in or about November 2004);
ii)the Children were, at that time, in the care of the Father, and that the Father was a reliable adult to care for the Children;[21] and
iii)there was no domestic violence;[22]
e)in early December 2004 a registered nurse took notes indicating that:
i)there were problems in the marital relationship and the Mother, and her family, were very domineering;[23] and
ii)the youngest child was very strong-willed and exhibited tantrum behaviour;[24]
f)there had been no hospitalisation of the Father in 2005 or 2006;[25] and
g)the Father had a seizure in May 2007 for which he was hospitalised.[26]
[21] Transcript, p.10.
[22] Transcript, p.10.
[23] Transcript, p.10.
[24] Transcript, p.10.
[25] Transcript, p.10.
[26] Transcript, p.10.
In summary, the subpoenaed material, on which the Mother sought to rely,[27] was to this effect:
a)the Father hit the Children, perhaps several times, in or about November 2004;
b)there is no further indication of violence toward the Children since November 2004;
c)the Children were in the Father’s care at that time (November 2004); and
d)there is no evidence that any other person or persons were caring for the Children at the time of the Father’s violence toward the Children in November 2004, alternatively, if there was, there is no indication who that person was or those persons were.[28]
[27] Transcript, pp.8-9.
[28] Transcript, p.10.
Apart from the violence in November 2004 there is no evidence of violence towards the Children, although the Mother makes very generalised allegations not inconsistent with the November 2004 violence.[29]
[29] Mother’s Affidavit, para. 16.
The Father’s evidence is that:
a)because of his seizures he has to be with a responsible person every day, and that currently his mother, father, relatives and friends fulfil that supervisory role;[30]
b)the Mother mostly undertook the supervisory role during the relationship and attended to the Father during and after his seizures, except when she was working or absent from home;[31]
c)the Children throughout their lives were exposed to the Father’s seizures and the special requirements necessary to deal with them;[32] and
d)during the final year of the relationship with the Mother the Father was responsible for domestic work within the household whilst the Mother was at work, and he was assisted in those tasks by his mother, or occasionally his mother-in-law.[33]
[30] Father’s Affidavit, para. 8.
[31] Father’s Affidavit, para. 9.
[32] Father’s Affidavit, para. 9.
[33] Father’s Affidavit, para. 15.
Annexed to the Father’s affidavit is a joint report from Professor Samuel Berkovic, AM, MD, FAA, FRACP, FRS, the Director, Epilepsy Research Institute of Comprehensive Epilepsy Program, and Dr Marie O’Shea BA(Hons), MA, PhD, MAPS, Deputy Director, Department of Clinical Neuropsychology/Clinical Co-ordinator, Seizure Surgery Follow-Up & Rehabilitation Program, both at Austin Health in Melbourne.[34]
[34] Annexure A to the Father’s Affidavit, (“Berkovic-O’Shea Report”).
The Berkovic-O’Shea Report indicates that:
a)the Father’s seizures began in 1991 when he was aged 15;[35]
b)seizures may be accompanied by drowsiness, confusion and sometimes aggression;[36]
c)the Father was scheduled to have invasive monitoring in October 2007, in order to determine whether further surgery, which may improve his condition, is possible;[37]
d)as a consequence of the frequency, nature and unpredictability of the seizures the Father “requires a degree of supervision in order to reduce the possibility of harm to himself and others”;[38]
e)the Father “does require supervision when in the company of young children”;[39]
f)from a medical perspective, supervision of the Father by a health professional was not required;[40]
g)supervision of the Father requires an awareness of “his epilepsy, the unpredictability of the events, the nature of the events … and … a basic knowledge of management during and following the seizures”;[41]
h)family members familiar with the Father’s condition and all the attendant management issues are “typically” the most appropriate persons to assume the supervisory role;[42]
i)heightened levels of stress have “a very deleterious effect on seizure control”, and the current proceedings “may have been contributory to major seizure a short time ago necessitating a hospital admission”;[43] and
j)the Father’s health would be assisted by a speedy resolution of the current proceedings.[44]
[35] Berkovic-O’Shea Report, p.1.
[36] Berkovic-O’Shea Report, p.1.
[37] Berkovic-O’Shea Report, p.1.
[38] Berkovic-O’Shea Report, p.2.
[39] Berkovic-O’Shea Report, p.2.
[40] Berkovic-O’Shea Report, p.2.
[41] Berkovic-O’Shea Report, p.2.
[42] Berkovic-O’Shea Report, p.2.
[43] Berkovic-O’Shea Report, p.3.
[44] Berkovic-O’Shea Report, p.3.
Having considered the above evidence it appears to the Court that:
a)there is no specific evidence of violence towards the Children post November 2004, and even then the Father recognised the problem sufficiently to voluntarily seek assessment concerning it;
b)the Mother’s assertions of harm being likely to be caused by time spent with the Father are inconsistent with the Children being left in the care of the Father for a day a week for the final year prior to separation in January 2007;
c)by reason of the Children having lived with the Father for most of their lives they will have witnessed many seizures, given that they are aged 7 and 5, [45] and there is presently no evidence to suggest that they have suffered psychological harm from witnessing past seizures, or that they will suffer future psychological harm from witnessing future seizures;
d)the Father must be supervised if the Children are in his presence;
e)the Father must be supervised by persons (and preferably family members) with knowledge of his epilepsy and its consequences and the ability to deal with those issues; and
f)provided that the conditions referred to in (d) and (e) are complied with there is no real or unacceptable risk of physical harm to the Children.
[45] The Father admits to one or two seizures a week: para. 2 of Annexure K to the Father’s Affidavit: confirmed by the Berkovic-O’Shea Report, p.1 (“two times per week”).
The FL Act presumes that it is in the best interests of children to spend equal time, and if not equal time, then substantial and significant time, with each parent. Given the conclusions reached in the proceeding paragraph that presumption is not displaced here, save that spending equal time with the Children is not reasonably practicable for reasons set out above.[46] The Father has epilepsy – he is not a pariah – and it cannot be (given the conclusions reached above) in the best interests of the Children not to spend time with their Father simply because he has epilepsy.
[46] See para. 11 above.
The Children spending time with the Father might, as a partial, and albeit at this stage interim resolution of the parenting issue, improve the Father’s health. That can only have a flow-on benefit to the Children being able to spend time with a fitter Father.
Other considerations – section 60CC(3)
Views expressed by the Children – section 60CC(3)(a)
There are no views expressed by the Children in a form which the Court is prepared to admit for the purposes of these proceedings. The Mother does say that the Children do not feel safe when the Father is having a seizure or coming out of a seizure.[47] However, it is a very general assertion, not specifically said to be based on anything said or done by the Children, or, if it is based on anything said or done, the saying or doing is not sufficiently set out to warrant the Court treating the Mother’s evidence as admissible for the purposes of it being a representation made by the Children (or one or both of them: which merely highlights the problem), and even if admissible the Court would not be prepared to give it any, or any sufficient weight, so as to outweigh relevant issues and considerations otherwise dealt with in these reasons.[48]
[47] Mother’s Affidavit, para. 21.
[48] FL Act, ss.69ZT(2) & (4) and 69ZV(1), (2) & (5).
Relationship of the Children to parents and other significant persons – section 60CC(3)(b)
The Mother has been the primary carer of the Children since separation in January 2007.
Prior to separation, the Father was as a carer, and if not primary carer certainly a substantial secondary carer (with assistance from his mother, and occasionally mother-in-law) of the Children, including for three days a week for the year pre-separation.[49]
[49] Father’s Affidavit, paras. 14-15.
The Children have only seen their Father sporadically since separation.[50]
[50] Mother’s Affidavit, para. 20; Father’s Affidavit, para. 21.
The evidence of the Children’s relationship with the Father since separation shows evidence (unchallenged by the Mother in the Mother’s Affidavit filed after the Father’s Affidavit) of a reluctance by the Mother to foster the Children’s relationship with the Father, down to and including a refusal to properly facilitate:
a)reasonable telephone communication between Father and Children;[51]
b)reasonable means of telephone communication, being money for a phone card, between Father and Children;[52] and
c)limiting face-to-face time spent between the Father and the Children.[53]
[51] Father’s Affidavit, paras. 26 and 31.
[52] Father’s Affidavit, para. 33.
[53] Father’s Affidavit, para. 34.
There is nothing in the evidence that indicates that the Children have, or would have, absent intervention by the Mother, anything other than an appropriate relationship with their Father (within the reasonable bounds imposed by his epilepsy).
Parental facilitation and encouragement of a close and continuing relationship between Children and other parent – section 60CC(3)(c)
There is nothing to indicate that the Father is taking other than appropriate steps to facilitate and encourage the relationship between the Children and the Mother, in the limited time that the Mother has made the Children available to spend time and communicate with the Father.
As set out above[54] the Mother has not properly facilitated a close and continuing relationship between the Children and the Father. Based on the available medical evidence there is no reason for the Mother to seek to control the Father’s time spent with the Children in the way that she has in recent months by insisting that she be in attendance when the Children spend time with the Father, or that time spent occur at a contact centre.[55]
[54] See para. 29 above.
[55] Mother’s Affidavit, paras. 19 and 21.
The proper approach to parental facilitation, to allow the Father to continue to develop his relationship with the Children, is to allow the Father to see the Children, without the Mother having to be present, but with appropriate supervision as indicated in the Berkovic-O’Shea Report.
Likely effect of changes in Children’s circumstances – section 60CC(3)(d)
Until January 2007 the Children lived with the Father. The November 2004 incidents apart,[56] there is no indication of adverse effects upon the Children. The Mother, who now seeks the appointment of an Independent Children’s Lawyer and an assessment of the Children’s needs before the Children spend time with the Father, did however allow the Children to be supervised by the Father, with assistance, for a period of a year pre-separation, and prior to that he appears to have assisted with the Children on a daily basis.[57]
[56] See paras. 16(a) and (d), 17 and 18 above.
[57] Father’s Affidavit, paras. 14-15, which are not refuted in any way by the Mother’s Affidavit, filed later.
The Children have thus been with or around their Father all their lives until January 2007, and exposed to his epilepsy.[58] In those circumstances the withdrawal of the Father from the Children is likely to have an adverse effect upon them.
[58] Father’s Affidavit, para. 9.
Likewise, the withdrawal of time spent with paternal grand-parents who appear to have seen, and frequently assisted the Father with the supervision of, the Children during recent years, is likely to have an adverse effect on the Children.[59]
[59] Father’s Affidavit, paras. 34-36; Mother’s Affidavit, para. 21.
The Mother seeks to control who is present when the Father spends time with the Children, and seeks orders that time be spent with her present or at a contact centre in New South Wales . On the basis of the Berkovic-O’Shea Report there is no reason for time spent to be at a contact centre, if appropriate family members are available to assist with time spent supervision. Indeed there is no evidence that a person or persons appropriate to assist the Father with supervision is even available at the contact centre. And, as Counsel for the Father so cogently made the point,[60] there is no reason why the Mother should be the only person to supervise the Father during time spent with the Children. Such a restriction would be likely to have an adverse effect on the Children by limiting the nature of their contact with the Father’s family. It might also distort any subsequent assessment process by a family consultant because of the perception it may create in the minds of the Children as to the Mother’s dominance in the relationship.
[60] Transcript, p.8.
There is no evidence that the Children are likely to be effected adversely by spending some time with their Father, provided suitable supervision is in place.
Practical difficulty and expense of Children spending time and communicating with parents – section 60CC(3)(e)
There does not appear to be an issue concerning expense: the Mother’s financial position is superior to that of the Father and this is reflected in the “live with” arrangements. However, for the purposes of time spent with the Father there is no evidence that the Father cannot afford any necessary expense.
The practical difficulties are really those related to supervision of time spent. Given the evidence of the Berkovic-O’Shea Report it seems that any practical difficulty can be overcome by ensuring that there are two adult family members cognisant of and able to deal with the Father’s medical issues present to supervise the Father’s time spent with the Children. As indicated above,[61] there is no necessity for the Mother to be present at all times that the Father spends time with the Children, but, if the parties agree there is no reason why she ought not be present.
[61] See paras. 33 and 37 above.
Transport is a difficulty as the Father does not drive, but in terms of changeover, and at least for interim purposes, there ought be no difficulty with the Mother providing transport as she seemingly has been doing.
Capacity to provide for the needs of the Children – section 60CC(3)(f)
The Father has capacity to provide for the needs of the Children for periods of time spent, subject to the availability of appropriate supervision. The Mother clearly has greater financial, physical and emotional capacity to provide for the needs of the Children. There is no suggestion from the Father to the contrary.
The Father ought therefore be allowed, on an interim basis, to spend time with the Children, subject to the availability of appropriate supervision, pending final determination of the issues.
Maturity, sex, lifestyle and background of Children and Parents – section 60CC(3)(g)
This is adequately dealt with above.[62]
[62] See paras. 14, 16-22, 26-30, 34-35, 37-38 and 42-43 above.
Aboriginal and Torres Strait Islander Children – section 60CC(3)(h)
Not applicable in this case.
Attitude to the Children and parental responsibilities – section 60CC(3)(i), (4) and (4A)
Neither parent exhibits an inappropriate attitude to the Children.
The Mother’s attitude to her parental responsibilities has, on the evidence presently before the Court,[63] fallen short of what is required, particularly in relation to facilitating the Father spending time and communicating with the Children.[64]
Family Violence or Family Violence Orders involving the Children or a member of the family– section 60CC(3)(j) and (k)
[63] Principally, that of the Father, largely unchallenged.
[64] See paras. 28-29 above.
This issue is discussed above.[65]
[65] See paras. 14, 16-18 and 22(a) and (b) above.
Order less likely to lead to further proceedings – section 60CC(3)(l)
This is not a matter which requires consideration as the case is listed for further directions at the Court’s New South Wales sittings on 8 November 2007, at which time a final hearing date will probably be fixed.
Consideration
The Father does not, on a proper consideration of all the evidence, pose an unacceptable risk of physical harm to the Children, if any time the Children spend with him is properly supervised. Nor, by reason of the Children’s prolonged exposure to the Father’s epilepsy is there any unacceptable risk of there being psychological harm to the Children from spending time with the Father, properly supervised. The Court will therefore order that the Children spend time with the Father, properly supervised.
The medical evidence indicates that it is most appropriate for a person or persons supervising the Father to be aware of his epilepsy, and to have basic knowledge of how to manage the Father’s seizures and their aftermath.[66] Typically, family members are best suited to the role.[67] From an abundance of caution, and to ameliorate the concerns of the Mother about a single person (other than her) supervising the Father during time spent with the Children, the Court will order that the Father be supervised by two family members with the requisite awareness and knowledge of how to manage the Father’s epilepsy when spending time with the Children. The Mother or two family members may also supervise periods of time spent otherwise agreed in addition to any specific times ordered by the Court.
[66] See para. 21(g) above.
[67] See para 21 (h) above.
For reasons outlined above it is appropriate, on an interim basis, that the Mother be responsible for transport to and from changeover.[68]
[68] See para. 41 above.
The Father should be allowed to have telephone communication with the Children for a half hour twice a week, with the Mother to ensure that the Children are available to take the Father’s call.
The question arises as to how much time the Father ought to spend with the Children. In all the circumstances of this case the Court considers that it is appropriate, at least for interim purposes, for the Father to spend substantial and significant time[69] with the Children. Given the fact that the Children have not spent time with the Father, and no overnight time, since separation (and albeit that that is a consequence of the Mother’s failure to properly fulfil her parental responsibilities),[70] the Court considers that the Children’s best interests would be served, and it would be reasonably practicable,[71] given the Father’s epilepsy and the two person supervision requirement, by the Children spending a day a week (but not overnight) with the Father on a non-school day and an evening a week on a school day, until the Court orders otherwise. This will allow the Children to be with the Father for some weekend activities and part of their daily routine on a weekday.[72]
[69] As defined in FL Act, s.65DAA(3).
[70] See paras. 28-29 and 47 above.
[71] FL Act, s.65DAA(5).
[72] FL Act, s.65DAA(3).
Given the ages of the Children, and the somewhat strained and difficult circumstances of this case, it is appropriate for an Independent Children’s Lawyer to be appointed to represent the interests of the Children.
The matter will otherwise be adjourned for further directions at New South Wales on 8 November 2007 at which time orders setting the matter down for hearing, and associated procedural orders, will probably be made.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: M Hewitt
Date: 2 November 2007
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