SANGUINI and Winky
[2010] FMCAfam 1096
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SANGUINI & WINKY | [2010] FMCAfam 1096 |
| FAMILY LAW – Parenting – interim – supervised spend time arrangements – Part VII, Family Law Act 1975 – s.60CC primary and additional considerations. |
| Family Law Act 1975, ss.60CA, 60CC |
| Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR SANGUINI |
| Respondent: | MS WINKY |
| File Number: | SYC 2938 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 19 August 2010 |
| Date of Last Submission: | 19 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 19 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Parker |
| Solicitors for the Applicant: | Susan Parker, Lawyer |
| Counsel for the Respondent: | Ms Menkes (as agent) |
| Solicitors for the Respondent: | Varnai Morrison |
ORDERS
All extant applications be adjourned to this Court on 25 November 2010 at 9:30am for mention (“the mention hearing”).
AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:
[X] born in 2008 (“the child”) spend time with the Applicant as follows:
(a)Commencing 22 August 2010, from 11:00am to 1:00pm each Sunday; and
(b)Commencing immediately, from 11:00am to 1:00pm one day each week on either Monday, Tuesday or Wednesday provided the Applicant notifies the Respondent at least seven (7) days prior to the date.
For the purposes of paragraph 2 herein, any time the Applicant spends with the child is to be supervised by the Respondent, the child’s maternal grandmother, namely MS W, or any other adult person as agreed between the parties.
Any person supervising the Applicant pursuant to paragraph 3 herein must provide a respectable distance between themselves and the Applicant so as they can still observe the Applicant but do not interfere with the interactions between the Applicant and the child.
For the purposes of paragraphs 2 herein, changeover is to occur at meeting place A, Sydney.
The Orders made in paragraphs 3 to 5 herein be suspended from 17 September 2010 until 2 October 2010 (“the Respondent’s holiday”).
The Applicant nominate:
(a)one date before the Respondent’s holiday; and
(b)one date after the Respondent’s holiday
to spend time with the child from 11:00am to 1:00pm in addition to time spent pursuant to paragraph 2 herein.
The Respondent, either directly or through her legal Representative, make two requests for the Applicant to undertake a urinalysis test (“the test”) and each request made must be at least:
(a)seven (7) days apart; and
(b)14 days before the mention hearing.
Within 48 hours of receiving a request pursuant to paragraph 7 herein, the Applicant undertake the test at his own expense.
The Applicant provide the results of the test to the Respondent or her legal representative forthwith upon receiving them.
AND THE COURT NOTES THAT:
(A)Paragraph 7 herein is to allow the Applicant to spend time with the child in lieu of time lost as a result of paragraph 6 herein.
(B)Pursuant to ss.65DA(2) and 62B of the Family Law Act1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Sanguini & Winky is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2938 of 2010
| MR SANGUINI |
Applicant
And
| MS WINKY |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MR SANGUINI (“the father”) who is seeking various parenting orders against MS WINKY (“the mother”) in respect of the child [X] born in 2008 (“[X]”).
More specifically, the father is seeking final orders that would allow him to spend substantial and significant time with [X]. He relies on his affidavit sworn 11 May 2010 and filed 14 May this 2010. He is represented by his solicitor, Ms Parker, today.
The mother in her amended response filed on 15 June 2010 opposes the order sought by the father and is seeking different parenting orders in relation to [X], more specifically a different spend time arrangement than that proposed by the father.
Of relevance today is the mother’s request for interim orders that involve drug screening to be undertaken by the father and a restriction on his consumption of alcohol and illicit drugs prior to and during any time he spends with [X]. She also proposes that until further order, such time be spent on a supervised basis.
The mother relies on her affidavit sworn 8 June 2010 and filed 10 June 2010 and she is legally represented by Ms Menkes, as agent for Varnai Morrison, today.
Background
It appears the parties commenced cohabitation in 2005 and separated in 2009. [X] was born, as I have indicated, in 2008 and is now just two years old.
The separation does not appear to have been amicable and it appears that an apprehended violence order was made in the mother’s favour in December 2009 and ended in June this year.
The father acknowledges the past history of drug and alcohol problems and also admits he has been diagnosed with an illness. He is also experiencing difficulties in securing permanent accommodation and permanent employment. He is currently in emergency accommodation and awaiting responses to his numerous applications for suitable and more permanent accommodation.
I am advised that he will be commencing some work as a tradesman at [omitted] shortly and this may result in some regular casual work.
The issues
The issues today are whether the father should:
a)continue to spend supervised time with [X] each Sunday or not; and
b)be required to undertake any further drug screens pending any further interim or final resolution of the dispute.
The parties are in agreement that time should be facilitated between [X] and the father on Sundays, that being the arrangement that has existed up until fairly recently.
Given the mother’s inability now to supervise or otherwise attend at changeovers on Sundays due to her more recent employment on that day, she now proposes her mother, the maternal grandmother, as the suitable supervisor. Her name is MS W (“the maternal grandmother”).
As stated, the father agrees to changeovers being facilitated by the maternal grandmother but disputes the need for any supervision of his time with the child.
The second issue, as I have indicated, relates to the merits of the father undertaking any further drug screens as proposed by the mother.
Submissions
Both parties’ legal representatives provided the Court with submissions.
Ms Menkes, for the mother, highlighted three reasons why supervision was still required. Firstly, the father’s past history of drug and alcohol abuse; secondly, the very young age of the child and, thirdly, the father’s lack of experience in caring for such a young child.
Ms Parker for the father acknowledged that the father’s quest for suitable accommodation remains a problem in progressing the matter forward because of the father’s desire to find that suitable accommodation before embarking on his proposed interferon treatment for his illness at the [omitted] Hospital.
Ms Parker also submitted there is no longer any need for supervision, particularly given the most recent clean drug screen and the fact that the time to be spent will be in public places. Given the most recent clean drug screen, and the costs involved, she also submitted that there was no further need for such a testing regime.
The law
The Full Court’s decision in Goode v Goode (2006) FLC 93-286 guides the Court’s approach in making interim decisions and interim orders in relation to parenting disputes.
At paragraph 81 of the Goode decision, the Full Court noted:
“In making interim decisions, the Court will still often be faced with conflicting facts, little helpful evidence and disputes between parents as to what constitutes the best interests of the child.”
Clearly, this matter falls into that category.
More specifically it raises the reality that the Court cannot fully determine issues of credit today as the evidence being presented by the parties has not been tested by cross-examination.
That having been said, the Full Court decision of Goode reminds courts such as this that the legislative pathway must be followed, in other words, the relevant provisions of the Family Law Act 1975 (“the Act”) post the 2006 shared parenting amendments must be followed at an interim hearing.
There is no issue of equal shared parental responsibility to determine today. The parties have entered into consent orders for that order to exist for the time being.
The dispute today is simply limited to the issue of [X]’s time with the father and under what circumstances that time is to be spent. That having being said, at some point the Court will need to consider whether equal time or more likely, given the circumstances currently before the Court, substantial significant time between [X] and the father is in her interests and reasonably practicable.
Clearly the Goode decision requires the Court to identify the competing proposals of the parties, identify the areas of dispute and identify any agreed and uncontested facts, and I have previously outlined those this morning.
At this point let me note s.60CA of the Act requires the Court:
“In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.”
That in turn requires the Court to consider the factors set out in s.60CC, and I will just briefly make some comments.
Primary considerations: s.60CC(2)
As to s.60CC(2)(a), the Court is required to consider “the benefit of the child having a meaningful relationship with both of the child’s parents”.
At this point let me note that “meaningful” does not mean equal, but clearly signifies that both parties should be involved with their child and clearly signifies an expectation of time to be spent. The right of a child, such as [X], to spend time with each parent and extended family is clearly a right that she has.
Consequently, the Court will in all likelihood need to give some considerable weight to this factor at a final hearing, should such be needed.
The Court is required under s.60CC(2)(b) to consider the need to protect a child, such as [X], from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence.
There is no doubt at this point in time that it would be in [X]’s best interests to develop a meaningful relationship not just with her mother, but with her father. That needs to be balanced in respect of protecting a child such as [X] from any risk of harm.
There are issues here warranting investigation. The Court obviously needs to tread cautiously in the interim arrangements that will be necessary today given the father’s past history of substance abuse and his unfortunate problems associated with securing suitable accommodation.
Additional considerations: s.60CC(3)
As to the additional considerations, they will become more relevant to the Court as the matter progresses.
Conclusion
Having considered the submissions and the available evidence in light of the structured discretion in the Act, I am satisfied that until further order [X] should spend weekly time with her father each Sunday from 11:00am until 1:00pm in default of agreement to the contrary, with such time to be supervised by the mother, if available, or if unavailable, by the maternal grandmother or such other supervisor as agreed between the parties.
By supervision, I mean that [X] and father should be given the opportunity to interact in public places and that the supervisor should remain a sufficient distance away to enable that to occur, but close enough to observe.
The parties will continue to meet for changeovers at an agreed place, and in default of agreement, meeting place A, Sydney.
The father will be required to undertake two further supervised urine drug screens, at his expense, within 48 hours of receiving notice from the mother’s solicitors before the matter returns to Court.
The father’s spend time will need to be adjusted to accommodate the mother’s proposed plan to take a two-week vacation with [X] in late September 2010. For that purpose, I note that that would be between the dates of 18 September 2010 and 2 October 2010. I propose that the order be styled in such a way that two make-up times be provided to the father before and after that vacation.
In addition, there will be an order today that if the father is able to accommodate spending time with the child between 11:00am and 1:00pm on either a Monday, a Tuesday or a Wednesday, then he should do so provided he provides the mother with at least seven days’ notice of that request, and it would be on the understanding that it would be supervised by the mother, the maternal grandmother or such supervisor as agreed between the parties.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 5 October 2010
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