Sealey and Allcorn

[2020] FCCA 2567

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEALEY & ALLCORN [2020] FCCA 2567

Catchwords:
FAMILY LAW – Parenting – application concerning a child who is three years old – where the child spends equal time with each parent in a week about arrangement – the mother asserts the child is not coping well with a week about arrangement – where it may be inferred that the father’s employment includes considerable time travelling away – where there is poor communication between the parties – vary current week about arrangement.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(2)(b), 60CC(3)

Applicant: MS SEALEY

Respondent: MR ALLCORN

File Number: ADC 1852 of 2020

Judgment of: Judge Young

Hearing date: 25 August 2020

Date of Last Submission: 25 August 2020

Delivered at: Darwin

Delivered on: 25 August 2020

REPRESENTATION

Counsel for the Applicant: Ms Lee

Solicitors for the Applicant: Legal Services Commission

Counsel for the Respondent: Mr Boehm

Solicitors for the Respondent: Scammell & Co

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the parties have equal shared parental responsibility for the child X born in 2016.

2. That the child X born in 2016 remain with the father until 4.00pm Sunday 30 August 2020.

3. That the child spend time with the father from 9.00am each alternate Thursday until 4.00pm the following Sunday on the proviso the father is not engaged in paid employment at the time the child is spending time with him.

4. That the parties do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court to be undertaken by either Ms B or Ms C or as agreed between the parties and when completed is to be attached to an affidavit and filed.

5. That the Family Report to deal with the following matters:

   (a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

   (b)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)any other matters that the family assessor considers important to the welfare or best interests of the said child.

6. That the costs of such assessment and the report arising from such assessment to be borne equally by the parties.

7. That the matter be adjourned to 3 December 2020 at 9.30am (NT time) for further consideration.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 1852 of 2020

MS SEALEY

Applicant

And

MR ALLCORN

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an interim parenting argument concerning X who is three years and 10 months old.  He is presently in, effectively, a shared care arrangement with his parents on a week about arrangement. 

3. There is some argument about whether or not the mother was pressured or otherwise into the agreement.  I cannot make any particular finding about that, it is not appropriate on an interim hearing.  Nevertheless, the fact is that there was an agreement of some sort and it has been in place for some considerable period.

4. The mother who is the applicant, asserts that the child is not coping well with the week about arrangement.  The father says, on the contrary, that the child appears to be coping quite well.  That is not a matter that I can resolve. 

5. Ordinarily, with a child of three years and 10 months old, I would have some significant reservations about whether a child so young was developmentally capable of dealing with a week about shared care arrangement.  I think, there has to be a very significant question mark about that.  While I cannot make a finding about it, I have very serious concern that what the mother asserts may be correct and what the father asserts may be underplaying matters somewhat.

6. The other issue is that it appears that the father has been in full-time employment and is in full-time employment at the moment.  His affidavit material is unsatisfactory, in my view, about his working arrangements, working hours and place of work.  I say, ‘place of work’ because he says in his affidavit or affidavits that he is “employed as a transport worker”.  At times, he says he “works interstate”.  It would be my suspicion that any interstate transport worker was, very likely, spending overnight time away.

7. In the absence of specific evidence from the father, it is very difficult for me to form a view about that.  In my view, it was the father’s responsibility to bring forward evidence that addressed the Court’s concerns about that.  It was raised by the mother in her affidavit at an earlier point and, in my view, the father’s failure to address this squarely is a deficiency in his material. 

8. I think an inference is available that the evidence would not assist his case if it was put forward clearly and in some detail.  So I think I am able to draw an inference from this material that the father has, at times, spent considerable time travelling away and that the child has spent considerable time being cared for by the paternal family.

9. The other factor that is significant is the fact that there is poor communication between these parents which is referred to in the Child Dispute Conference memorandum dated 5 August 2020 where the family consultant was of the view that the child’s young age and poor communication between the parents, a lack of an effective co-parenting agreement if I can put it that way, would be a factor that would militate against the success of a shared care arrangement. 

10. In my view, all those observations are justified, if not necessarily by the particular evidence in this case, though there is clearly evidence of poor communication, but there is a general concern that these Courts, or the Family Law Courts have, in administering the Family Law Act, where there is a shared care arrangement or an equal time arrangement when the communication between the parents is poor. That, of course, is reflected in the terms of the Act itself which requires a Court, where there is agreement for shared parental responsibility, as there is in this case, to consider whether or not an equal time arrangement is practicable. That’s very difficult to do on an interim basis.

11. The family consultant recommended that there should be a family assessment report in this case.  I am not satisfied, particularly having regard to the poor communication between the parents, their evident distrust and, perhaps, hostility, that they are, at present, working cooperatively, in this child’s best interests in an equal time arrangement. 

12. While the primary considerations are obviously the benefit to the child of having a meaningful relationship with both of the child’s parents, in this case, I am not satisfied that either of the proposals made by the parents are likely to interfere with that. I see nothing to suggest that a meaningful relationships is at risk. There is no need to consider the matters in section 60CC(2)(b) in this case.

13. So this is very much a matter of impression but I am of the view that there is material to suggest, particularly at the child’s young age and particularly the, really, uncontroverted evidence of a poor relationship and poor communication between the parents, that the present arrangement may not be working for the child.

14. Having regard to the matters in section 60CC(3), the child is too young to express a view. There is no suggestion that the child does not have an excellent relationship with his parents and, indeed, probably, the paternal family who seem to be closely involved in his care.

15. There is no real criticism of either of the parents or of their capacity and there is no real issue of family violence.  However, I consider that another fact or circumstance that is relevant is, as I have said, the child’s age and the extent of poor communication between the parents and my concern that this arrangements appears not the best one for X, at the moment.

16. I asked Mr Boehm to seek instructions about what his client would propose if I was disposed to vary the existing equal time arrangement.  Mr Boehm told me that he was instructed to propose that the child spend from Thursday 9 am to Sunday 4 pm on alternate weekends with the father on the proviso that the father was available to care for the child during that time.  By that it is meant that, essentially, the father is not in employment during that period, is not at work.  It is not intended, of course, that he would be always present.  I am aware that the paternal family play a part in the care of the child but what is really meant is that the father is not employed during those periods, or in paid employment.

17. Ms Lee, for the mother, in substance, said that she saw no real objection to that proposal, even though she was unable, it appears, to obtain instructions.  She said that that proposal was not inconsistent, in broad terms with her instructions so I propose to make an order in the terms that Mr Boehm proposes.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 11 September 2020