Schafer & Becker
[2007] FMCAfam 525
•25 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SCHAFER & BECKER | [2007] FMCAfam 525 |
| FAMILY LAW – Children – parenting order – time spent – interim orders – allegations of extreme violence. EVIDENCE – Admissibility of subpoenaed material. PRACTICE AND PROCEDURE – Transfer to Family Court. |
| Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Family Law Act, 1975 (Cth), ss.60CC(3), 61DA, 65DAA(1) Federal Magistrates Court Rules, 2001 (Cth), r.8.02(4)(a)-(f) |
| B & B [2007] FMCAfam 82 Altobelli FM “The Search for Wisdom: Relocation in the Era of Shared Parental Responsibility |
| Applicant: | MS SCHAFER |
| Respondent: | MR BECKER |
| File Number: | DNC 32 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 26 June 2007 |
| Date of Last Submission: | 26 June 2007 |
| Delivered at: | Brisbane (by telephone to Northern Territory) |
| Delivered on: | 25 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Davis |
| Solicitors for the Applicant: | Davis Norman |
| Respondent: | Mr Becker in person |
ORDERS
The Court orders, that until further order:
Orders made on 26 June 2007 continue, as varied by Order 2 of these orders.
The Father spend time with the Children from 9.00 am on 1st Saturday of the September/October 2007 gazetted Queensland school holidays until 5.00 pm on the 2nd Sunday of those holidays, with the Father to collect and return the Children from the Mother’s residence in North West Queensland, or such place as is agreed between the Mother and Father.
And the Court further orders that:
The Applicant Mother’s application for transfer of this matter to the Family Court be dismissed.
That this matter be listed for final hearing in Darwin on 1 November 2007 commencing at 10.00am NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.
That the applicant pay the hearing fee of THREE HUNDRED AND SIXTY FOUR DOLLARS ($364.00) or file a remission certificate in respect thereof within 21 days of today’s date.
That both parties file and serve all affidavits of evidence they propose to rely on at final hearing on or before close of Registry filing on
22 October 2007.That 24 hours prior to the final hearing counsel for each party provide to the other, and to the Associate to Federal Magistrate Lucev an Outline of Case document.
That pursuant to Section 68L of the Family Law Act 1975 (as amended) that the children E, born in 1999 and J, born in 2001 be separately represented and that such representation be arranged by the Legal Aid Commission of the Northern Territory AND that to expedite the appointment of the Independent Children’s Lawyer within (7) days of the date hereof each party do cause to be furnished to the said Commission a copy of all documents filed herein by that party.
IT IS NOTED that publication of this judgment under the pseudonym Schafer & Becker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
DNC 32 of 2007
| MS SCHAFER |
Applicant
And
| MR BECKER |
Respondent
REASONS FOR JUDGMENT
Application
The Applicant Mother, Ms Schafer (“Mother”), seeks interim parenting orders concerning the Children of her relationship with the Respondent Father, Mr Becker (“Father”).
There are two children of the relationship E, born in 1999, and J, born in 2001 (“Children”).
The issue in dispute in the interim proceedings is about the quantum and nature of time spent by the Father with the Children in the time prior to final hearing.
Evidence
Documents relied on – Mother
The Mother relies upon her affidavit filed 17 January 2007 (“Mother’s Affidavit”).
The Mother also sought to make reference to various subpoenaed material. The Court deals with the admissibility of that material below.
Although not evidence the Mother relied upon the findings made in the judgment of the Family Court of Australia in Schafer v Becker.[1]
[1] Unreported, Family Court of Australia, O’Ryan J, 27 September, 2002 (“Schafer”).
Documents relied on – Father
The Father relies upon his affidavit filed on 24 April 2007 (“Father’s Affidavit”).
Family Report
There is no current family report available. Orders were made by the Court (by Federal Magistrate Terry) on 12 June 2007 for the provision of a Family Report to be released to the parties on 28 September 2007.
Background facts
Uncontroversial relevant background facts include the following:
a)Father and Mother were in a relationship for a period of four years, seemingly from about 1997 to late 2001;[2]
b)the Child E was born in 1999 and is now 7 years of age, and the Child J was born in 2001 and is now 6 years of age;[3]
c)the judgment in Schafer resulted in orders that the Children live with the Mother in North West Queensland, and that they spend time with the Father, at various times;[4] and
d)the Children have lived with the Mother since separation, and spent some time with the Father.[5]
The Evidence – in more detail
[2] Schafer para. 3 per O’Ryan J; Mother’s Affidavit, para. 2; Father’s Affidavit, para. 2.
[3] Mother’s Affidavit, para. 3; Father’s Affidavit, para. 3.
[4] Schafer, pp.17-20 per O’Ryan J.
[5] Mother’s Affidavit, paras. 8 & 9; Father’s Affidavit, para. 9.
Mother’s evidence – more detail
The Mother’s Affidavit evidence, summarised, is as follows:
a)that the Father has spent little time with the Children since 2003;
b)that when the Child E returns from time spent with his Father he is “out of control”, “violent”, “destructive” and “abusive”, and in particular he is violent and abusive towards his Mother and family members;[6]
[6] Mother’s Affidavit, paras. 10 – 12 and 14.
c)the Mother has sought various assistance with the Child E’s behaviour, including undertaking various courses herself and seeking professional assistance for the Child E;[7]
[7] Mother’s Affidavit, para. 13.
d)that she believes the Father is not providing an appropriate level of care for the Child E, and is encouraging the Child E to be anti-social and to misbehave toward the Mother;[8]
e)that whilst spending time with the Father in December 2006:
i)the Mother’s mother was advised that the Child E had broken his leg and was going into surgery;[9]
ii)the Father refused to provide information to the Mother on the condition of the Child E;[10]
iii)the hospital in Northern Territory refused to provide medical information to the Mother, even after she drove to Northern Territory from North West Queensland, and she believes that this occurred on the instructions of the Father;[11]
iv)that after the Child E’s release from hospital, the Mother went to the Father’s home (to see the Child E), and the Father, in the presence of the Child E, “went berserk” screamed very aggressively, and was yelling and spitting, and was so angry at the Mother that the Mother says she was fearful for her safety;[12] and
v)the Mother went to the police in Northern Territory, but they did not assist, allegedly (in the view of the police officer whom the Mother says she spoke to) because there were insufficient officers on duty to attend at the Father’s home to deal with his allegedly “well known volatility.”;[13] and
f)that the Father refused to return the Child E to the Mother at the conclusion of the Father’s time spent in January 2007[14] (and in submissions reference was made to a recovery order for the Child E made by this Court – by Federal Magistrate Brown – on or about 24 or 25 January 2007).[15]
[8] Mother’s Affidavit, paras. 15-16, 27 and 31.
[9] Mother’s Affidavit, para. 18.
[10] Mother’s Affidavit, para. 20.
[11] Mother’s Affidavit, paras. 19-20.
[12] Mother’s Affidavit, paras. 21-22.
[13] Mother’s Affidavit, para. 23.
[14] Mother’s Affidavit, paras. 25-26.
[15] Transcript, pp. 2-3.
Materials subpoenaed by the Mother
The Mother caused a subpoena to issue to the Northern Territory Commissioner of Police, seeking the production of police documents concerning the Father. Those documents were duly produced, and on 20 March 2007 the Court made an order allowing the subpoenaed documents to be viewed and copied by the parties. At hearing, the Mother sought to tender the documents as a bundle. The documents were marked for identification, and the Court indicated that it would rule on their admissibility in the written reasons for judgment. The documents include:
a)the Father’s criminal history;
b)various documents concerning incidents involving:
i)The Mother;
ii)The Fathers older daughter (who is 18 years of age);
iii)The Father’s current partner; and
iv)The Father and the police,
over many years.
For the purposes of the interim hearing the Court will not admit the subpoenaed documents. The documents:
a)do not reveal that any family or domestic violence orders have been taken out;
b)do not reveal that there has been any violence in, or in relation to the Children, or that they have been exposed to any violence; and
c)reveal that the one matter which went to Court (involving the Father and the police), and upon which considerable emphasis was placed in the hearing, was dismissed with a costs order in favour of the Father.
In the circumstances, the bundle of often repetitious hearsay documents which reveal no actual or potential risk of exposure of the Children to violence, and which seek to potentially significantly prejudice the Father will not be admitted for the purposes of the interim application.
Whether the documents are admissible, or the matters they reveal might be the subject of evidence, is a matter which might be revisited for the purposes of the final hearing, and the above ruling is not meant to preclude that from occurring.
Father’s evidence – more detail
The Father’s Affidavit evidence summarised, is as follows:
a)that he has had as much contact as possible with the Children since they moved to North West Queensland, and attaches a schedule indicating that he has spent 244.5 days with one or both of the children from December 2002 to December 2006, including one substantial period of 123 days with the Child E from June to October 2004;[16]
[16] Father’s Affidavit, para. 9 and annexure A.
b)that his relationship with the Mother was excellent until December 2006 and that he complied with all court orders to that time;[17]
[17] Father’s Affidavit, para. 10.
c)that he encourages the Children when in his care to contact their mother;[18]
[18] Father’s Affidavit, para. 11.
d)that the Children are generally well behaved when with him; that he does not encourage the Child E to behave badly, but that it takes about a week to curb the foul language when the Child E spends time with him;[19]
[19] Father’s Affidavit, paras. 12-14
e)that the Child E broke a leg when at a friend’s house on 15 December 2006, that he was hospitalised, and that upon his return to his Father’s home the Father obtained a doctor’s certificate (knowing that the Mother was on her way and wanting to pick up the child Eli and take him back to North West Queensland) indicating that the Child E was not able to travel for a few weeks;[20]
f)that there was subsequently an argument between Mother and Father at the Father’s home, as a consequence of the Mother trying to remove the Child E, and though there was foul language from the Mother and shouting from the Father (seemingly in the presence of the Child E) there was no spitting, threatening or violence;[21]
g)there have subsequently been threats made to the Father by the Mother and her mother to the effect that the Father will not see the Child E for a long time;[22]
h)he acknowledges that an application for a recovery order was made but says that the Mother and he had in fact agreed that the Child E would be returned at the end of the school holidays in late January;[23]
i)that he has concerns about the treatment and care of the Child E whilst in the Mother’s care, notably that:
i)the Child E complains about violence being inflicted on him whilst in the care of the maternal grandparents (whilst the Mother is working), and cites one witnessed incident of abusive language;[24]
ii)the Child E complains that his Mother has choked him and torn his shirt;[25] and
j)that it has been difficult to speak with the Children by telephone since January 2007, and says that the Mother refuses to allow the Children to speak to the Father.[26]
[20] Father’s Affidavit, paras. 18-31 and annexure B.
[21] Father’s Affidavit, paras. 32-35
[22] Father’s Affidavit, paras. 39-40.
[23] Father’s Affidavit, para. 41.
[24] Father’s Affidavit, paras. 42, 45 and 47.
[25] Father’s Affidavit, para. 45.
[26] Father’s Affidavit, paras. 53-54.
Principles to be applied and procedure to be followed
The judgment of the Full Court of the Family Court of Australia in Goode & Goode[27] concerned interim parenting orders. Nevertheless, that judgment was until recently “the only authoritative guidance on the effect of the changes” in the law relating to relocation wrought by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) effective 1 July 2006.[28] More recently, the Full Court of the Family Court of Australia in Hungerford v Tank,[29] said that the failure to follow the steps laid out in Goode was an error of law.
[27] (2006) 206 FLR 212; [2006] FamCA 1346 (“Goode”).
[28] Altobelli FM “The Search for Wisdom: Relocation in the Era of Shared Parental Responsibility”, paper delivered at 10th Australian Family Lawyers Conference, 8-13 June 2007, p.10.
[29] [2007] FamCA 637 at para. 62 per Warnick, May and Boland JJ.
Therefore, the Court adopts what was said by this Court in B & B[30] where the Court said, when dealing with an application for interim orders:
[30] [2007] FMCAfam 82 (“B & B”).
The principles to be applied on the determination of an interim application such as the present were recently reconsidered by the Full Court of the Family Court in Goode & Goode [2006] FamCA 1346. The best interests of the children remain the paramount consideration: Section 60CA of the Act; Goode & Goode [2006] FamCA 1346 at [69].
The framework in which those best interests are to be determined are the factors adumbrated in s.60CC of the Act. The objects and principles contained in s.60B of the Act provide the context in which the factors in s.60CC are to be examined, weighed and applied in the individual case Goode & Goode [2006] FamCA 1346 at [10].
In Goode & Goode [2006] FamCA 1346 the Full Court was particularly concerned with the effect the amendments introduced by the Family Law (Shared Parental Responsibility) Act 2006 had on the approach that a court should take on, relevantly, an interim application. At [72] their Honours concluded that the amending Act evinced a legislative intent in favour of the substantial involvement of both parent’s in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence, and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the children.
In following the “legislative pathway”, their Honours set out a procedure to be followed on an interim application, at [82] as follows:
“In an interim case that would involve the following:
(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.”[31]
[31] B & B at paras. 2-5 per Wilson FM.
Issues and Orders Sought
The essential issue presently in dispute and to be determined is whether the Father’s time spent with the Children should be restricted and supervised by reason of the father’s alleged violent disposition and the possibility that the Children will be subject or exposed to violence.
The disputed issues are reflected in the nature of the orders sought:
a)The Mother seeks interim orders that:
i)that the Orders made 27 September 2002 be suspended.
ii)that the Father spend time with the children at a supervised contact centre at such times as can be arranged between the parties and the contact centre.
iii)further/Other orders as the Court deems appropriate.
b)The Father seeks final orders that:
i)the Children born in 1999 and 2001 live with the Mother.
ii)the Children spend time with and communicate with the Father at all reasonable times by agreement between the parties, at least as follows:
1. by telephone at all reasonable times;
2. for the entire 2007 Easter Queensland gazetted school holiday period and than each alternate year thereafter;
3. for the entire June/July Queensland gazetted school holiday period in each year;
4. in 2008 for the entire September/October Queensland gazetted school holiday period and each alternate year thereafter;
5. for the second half of the Christmas Queensland gazetted school holiday period in 2008 and each alternate year thereafter; and
6. in the event that the Father is in the North West Queensland area he can spend time with the Children for up to five (5) hours at a time upon giving the Mother not less than seven (7) days notice of his intention to spend time with the Children.
iii)the Father will be responsible for collecting the Children from the Mother’s residence at the beginning of any periods of time the Children are to be in the care of the Father. The Father will be responsible for returning the Children to the Mother’s residence at the end of any period of time the Children are to be in the care of the Father.
iv)the Mother and the father each have sole responsibility for the day to day care, welfare and development of the Children when the Children are in each of their care.
v)the Father and the Mother equally share responsibility for the long term care, welfare and development of the Children.
vi)the Father and Mother each provide to the other at all times their respective land line and mobile telephone numbers.
vii)without limiting parental responsibility by the party pursuant to the Orders each of the Father and Mother keep the other parent informed in respect of:
1. any serious medical or health matters concerning the Children;
2. any matter relating to the school which the Children attend and the school curriculum; and
3. any change of residence of the Children.
viii)the Father be at liberty to obtain any information regarding the Children’s education from the Children’s education providers.
ix)the Father be at liberty to visit the schools attended by the children from time to time for parent/teacher interviews, events, activities or functions routinely attended by parents.
x)the Father and the Mother are to notify each other forthwith of any illness or accident (other than trivial nature) suffered by either of the Children whenever they are in the Father’s or the Mother’s respective care and further they are to advise each other of the name and telephone number of each treating doctor or like professional attended by either of the Children as a result of such illness or accident.
xi)in the event that either of the Children are hospitalised for any reason the part where the Children are living at the time is to notify the other party within two (2) hours of such hospitalisation and in that event the other party is at liberty to visit the Child daily during the period of hospitalisation.
xii)the Father and Mother be restrained from saying anything to or in the presence of either Child which is in any way derogatory of the other parent, the other parent’s partner and family members of the other parent.
Presumption of equal shared parental responsibility – section 61DA(1)
When the Court makes a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: s.61DA, Family Law Act, 1975 (Cth) (“FL Act”). The presumption “is directed to the decision making responsibility of the parents.”[32]
[32] B & B at para. 16 per Wilson FM.
The application of the presumption invokes the time spent provisions of s.65DAA(1) of the FL Act.
Time Spent
Section 65DAA(1) of the FL Act provides that:
“Equal time
(1) If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
In order to determine whether equal time with each parent is in the best interests of the Child it is necessary to consider the primary and additional considerations in s.60CC(2)and(3) of the FL Act.
Primary Considerations – section 60CC(2)
Benefit to the child of having a meaningful relationship with both parents – section 60CC(2)(a)
There is no doubt that the Children will benefit from having a meaningful relationship with their parents.
The emphasis here must be on the benefit to the child, and not the ongoing dispute between the parents:
“a lack of meaningful relationship between the parents does not necessarily amount to a lack of benefit to the Child from a relationship with both parents.”[33]
[33] PS & OS [2007] FMCAfam 285 at para. 23, per Lucev FM.
There is no evidence, or no sufficient evidence, at this interim stage to indicate that the Children are not benefiting from the relationship they are presently having with their parents, and that that relationship is not meaningful.
The need to protect the Child – section 60CC(2)(b)
There is no admissible evidence that the Father has exposed or subjected the Children to violence, subject to what is said below about the events of 16 December 2006. The Child E broke his leg last December 2006, but on the evidence that was a normal childhood accident. On the evidence, as it presently stands, there can be no suggestion that the accident and broken leg were a consequence of the Father’s neglect.
Likewise, there is little or no evidence that the Mother has exposed or subjected the Children to violence, subject to what is said below about the events of 16 December 2006.
In relation to the 16 December 2006 incident the evidence indicates that both parents were involved in the altercation, and that there was much shouting and angst exhibited. That might be expected where a child with a broken leg is sought to be moved by a concerned mother, but seemingly against medical advice. Each of the parents attitude and concern are understandable, but as the evidence stands there is no evidence of sufficient gravity to warrant changing existing time spent orders on the basis of any need to protect the Children from abuse, harm or neglect.
Other considerations – section 60CC(3)
Views expressed by the Child – section 60CC(3)(a)
There is no evidence of views expressed by the Children, and even if there were it would be of limited utility given their age.
The nature of the relationship of the Child with each of the parents – section 60CC(3)(b)(i)
There is no evidence that the nature of the relationship of the Children with each of the parents is other than a normal relationship.
The nature of the relationship of the Child with other persons – section 60CC(3)(b)(ii)
The evidence of the Children’s relationship with other persons is limited. There is little cogent evidence of the Children’s relationship with the Father’s current partner, but it appears that she acted appropriately in caring for the Child E when he was in hospital. The evidence of the Children’s relationship with the Mother’s parents does indicate that there may be (and it is put no higher than that) some strains in that relationship. Whether those strains are anything more than an isolated incident or two, or incidents as part of a relatively normal relationship between grandparents and a naughty grandchild, it is not possible to determine on the available untested evidence.
The willingness and ability of each of the Parents to facilitate and encourage a close and continuing relationship between the Child and other Parent – section 60CC(3)(c)
Until December 2006 there is nothing to indicate any difficulty in regard to the Parents facilitation of their respective relationships with the Children. The incident where the Child E broke a leg has seemingly caused some significant tension in the relationship between the Parents. On the limited evidence presently before the Court the Mother (and the Mother’s mother) is evincing some intention to curtail the relationship with the Father, but that may, and hopefully is, simply an expression of frustration arising from the broken leg incident.
The Father for his part gives limited evidence of a willingness to maintain the Children’s relationship with the Mother when they spend time with him.
Likely effect of changes in Child’s circumstances, including separation from parents and others – section 60CC(3)(d)
The Mother’s proposed interim orders will significantly limit the Father’s ability to spend unsupervised time with the Children prior to final hearing. The Father’s proposed interim orders do not significantly change the status quo.
Given that the only events of any significance, on the limited evidence in the interim hearing, are the broken leg incident (about which there is dispute as to the level of altercation between the parents) and the necessity or otherwise for the recovery order (which is also disputed), the Court is of the view that the significance of those issues, on the presently available disputed evidence, is not such as to warrant major changes in the time that the Children spend with the Father.
Practical difficulty and expense of Child spending time and communicating with parents and whether that will substantially affect the Child’s right to maintain personal relations and direct contact with both parents on a regular basis – section 60CC(e)
There was some evidence that both parties caused difficulties in relation to communication with the Child during and post the broken leg incident. However, given that the Court has since made further orders, particularly in relation to the Father’s telephone contact, there ought be no ongoing difficulty in this regard, pending a final hearing.
Capacity to provide for the needs of the Child, including emotional and intellectual needs – section 60CC(3)(f)
The Court is of the view that both parents can provide for the Child’s needs. There was some suggestion in the Mother’s evidence that the Father might subordinate the Children’s needs to those of his work, a suggestion that the Father disputes. The evidence on the interim application is not such as to warrant a finding to that effect.
Maturity, sex, lifestyle and background of Child and Parents – section 60CC(3)(g)
These issues are largely dealt with elsewhere in these reasons for judgment.
Aboriginal and Torres Strait Islander Child – section 60CC(3)(h)
Not applicable in this case.
Attitude to the Child and the responsibilities of parenthood demonstrated by each parent – section 60CC(3)(i)
There was evidence from both parents that the other was not fully exercising the responsibilities of parenthood due to work commitments separating them from the Children. The Father disputed the Mother’s evidence (because the Father filed an affidavit after the Mother). The evidence on the interim application does not warrant a finding, other than that the parents appear to exhibit appropriate attitudes to the Children and the responsibilities of parenthood, having regard to their social, economic and geographic circumstances.
Family Violence – section 60CC(3)(j) and (k)
To the relevant extent this issue is discussed in paras. 27-29 above.
Order less likely to lead to further proceedings – section 60CC(1)
This is not an issue given the proximity of a final hearing.
Extent of fulfilment of parenting responsibilities – section 60CC(4) and (4A)
In the context of parents who have separated the Court is required to consider the extent to which the parents have fulfilled their various responsibilities as parents since separation.
In this case many of the relevant issues are discussed above, but in short, it is the Court’s view that each parent has properly fulfilled their parental responsibilities since separation, save for the disputed issues surrounding the recovery order, their attitudes to each other in the course of the 16 December 2006 incident, and the possible threat to terminate the Father’s time spent with the Children.
To the extent that there has been any failure by either parent it is not sufficient to warrant any adverse finding by the Court.
Consideration
As indicated above the presumption of equal shared parental responsibility applies in this case. Nothing was put to the contrary, and an order concerning equal shared parental responsibility was included in orders made by the Court on 26 June 2007, and will be reiterated in the interim orders.
Where a parenting order provides for equal shared parenting responsibility the Court must consider whether the Child spends equal time with each of the parents as that is presumed to be in the best interests of the Child: s.65DAA(1)(a), FL Act. That is qualified by a requirement that the Court consider whether the Child spending equal time with each of the parents is reasonably practicable: s.65DAA(1)(b).
Here, there is no issue that the Children:
a)will live with the Mother, consistent with the order in Schafer, and as they agree; and
b)equal time with parents is not reasonably practicable.
The question then arises as to whether the Child spending substantial and significant time with each of the parents is in the best interest of the Child: s.65DAA(2)(c); and the making of such an order is reasonably practicable: s.65DAA(2)(d), FL Act. It is so, in the Court’s view. In so determining, and as set out above the Court has considered all of the relevant considerations.
The only really contentious issue in this matter was the issue of violence. Although it may be said that the Father has a violent pre-disposition, there is no evidence before the Court on the interim application which indicates any real change since the decision in Schafer, and certainly nothing to establish that the Children are likely to be exposed to or be the subject of violence.
In those circumstances there is no reason to fundamentally alter the time spent and other arrangements as they existed prior to this application. However, bearing in mind the orders made by this Court on 26 June 2007, and the proximity of the final hearing, the Court proposes to continue the operation of the orders made on 26 June 2007 until further order, and to order that the Father spend time with the Children in the forthcoming school holidays. The time that the Father will spend with the Children has been slightly extended to take account, in part at least, for the time lost for the June/July school holidays arising from the hearing and orders made by the Court on 26 June 2007, and to accommodate necessary travel time between Northern Territory and North West Queensland.
Transfer to Family Court
When the matter came on for hearing on 26 June 2007 the Mother made application to transfer the matter to the Family Court. Albeit a general federal law case the Court dealt with the requirements for transfer in Genovese v BGC Construction:[34]
“The making of an order to transfer proceedings from this Court to the Federal Court is discretionary: s.39(1) and (2) Federal Magistrates Act 1999 (Cth). The order is not able to be appealed: s.39(6) Federal Magistrates Act. There are, however, factors which it is mandatory for the Court to take into account under s.39(3)(a)-(d) of the Federal Magistrates Act, which provide as follows:
(a)any Rules of Court made for the purposes of subsection 40(2); and
(b)whether proceedings in respect of an associated matter are pending in the Federal Court; and
(c)whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and
[34] Genovese v BGC Construction [2006] FMCA 1507 (“Genovese”).
(d) the interests of the administration of justice.”
Rule 8.02(4)(a)-(f) of the Federal Magistrates Court Rules, 2001 (Cth) provides for other factors to be considered as follows:
(a)whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;
(b)whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceedings is not transferred;
(c)whether the proceeding will be heard earlier in the Federal Magistrates Court;
(d)the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties;
(f)for family law or child support proceedings, whether the hearing of the proceeding is likely to take longer than 2 days.
In relation to this matter:
a)there are no pending proceedings in respect of an associated matter in the Family Court;
b)the resources of this Court are sufficient to hear and determine the proceeding;
c)the interests of the administration of justice[35] are probably best dealt with by the matter remaining in and being managed by this Court;
d)the matter does not involve a question of general importance;
e)the transfer of the matter is unlikely to lessen the cost and convenience to the parties;
f)the matter is likely to be heard earlier in this Court (the orders list it for final hearing on 1 and 2 November);
g)there is no particular procedure unavailable in this Court which necessitates consideration of a transfer;
h)the wishes of the parties are divided – the Mother seeks transfer to the Family Court, the Father seeks that the matter remain in this Court; and
i)the hearing is likely to be of less than two days duration.
[35] As to which see Genovese at paras. 24-28 per Lucev FM.
There is nothing in the circumstances of this case which warrant transfer to the Family Court, and the Mother’s application for transfer is dismissed.
Orders
The Court makes orders as set out in the Orders immediately prior to these Reasons for Judgment, and considers that those orders are in the best interests of the Children.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Lucev FM
Deputy Associate: J. Semler
Date: 25 July 2007
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