SELLWOOD & HART

[2016] FCCA 2061

FEDERAL CIRCUIT COURT OF AUSTRALIA

SELLWOOD & HART [2016] FCCA 2061

Catchwords:
FAMILY LAW – Objection to order sought by father for child inclusive conference.

Legislation:

Family Law Act 1975: ss.60CD, 65DAA

Cases cited:

Rice v Asplund (1979) 6 FamLR 570

Morton & Berry [2004] FAMCA 208

Applicant: MR SELLWOOD

Respondent: MS HART

File Number: NCC 2817 of 2013

Judgment of: Judge Myers

Hearing date: 8 July 2016

Date of Last Submission: 8 July 2016

Delivered at: Newcastle

Delivered on: 8 July 2016

REPRESENTATION

Counsel for the Applicant: Mr Graham

Solicitors for the Respondent: Byrnes Lawyers

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. Pursuant to section 11F of the Family Law Act 1975 the parties attend a child inclusive child dispute conference with a family consultant in this Registry on a date to be advised AND the parties are advised that if a person fails to comply with this order or any instruction the consultant gives to the person the consultant must report the failure to the court AND the Applicant and Respondent are to do all things necessary to facilitate the attendance of the child/children promptly at the commencement of the conference.

THE COURT REQUESTS THAT the family consultant ascertain the child’s views about the father and how much time he might spend with the father

1. The matter is adjourned to 21 September 2016 at 9.00 am for a directions hearing in the Federal Circuit Court of Australia sittings at Wauchope for the purposes of allocating a date to determine the Rice & Asplund argument and the threshold issues between the parties.

THE COURT NOTES THAT:

(A)Counsel has made enquiries and ascertained that Ms J is available to interview the parties and the child on 30 or 31 August 2016. 

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT NEWCASTLE

NCC 2817 of 2013

MR SELLWOOD

Applicant

And

MS HART

Respondent

REASONS FOR JUDGMENT

EXTEMPORE

1. This is a decision in a matter relating to whether the Court should or should not order a child-inclusive memorandum report at the request of counsel for the father, opposed by the solicitor for the mother. By way of background, the child the subject of the proceedings is X born (omitted) 2004 now aged 12 years. Final parenting orders were made in respect of the child on 23 June 2015 following the final hearing on 27 and 28 November 2014 and 12 and 13 February 2015 before Judge Coakes. The orders made by Judge Coakes provided that the parties have equal shared parental responsibility, that X live with the mother and spend time with the father each alternate weekend for half the school holidays and otherwise on special occasions. When considering the provisions of section 65DAA subparagraph (3) the time provided to the father could be considered as less than substantial and significant time.

2. The father seeks orders pursuant to his amended initiating application whereby the orders be varied and the child would spend time with the father essentially each alternate weekend from Friday until Monday, each Wednesday overnight and for half of the school holidays and otherwise on special occasions.  The father deposes within his affidavit filed 21 June 2016 under the heading “X's Wishes”;

   Final parenting orders were made by the Federal Circuit Court on 23 June 2015. As a result, my time with X was dramatically reduced.  Since that time, X has consistently asked me why he can not spend more time with me and expressed his wishes to spend more time with me.

3. The respondent mother relies upon her response filed 6 July 2016 in which she seeks orders that the father’s amended initiating application be dismissed and the father pay the mother’s costs of the proceedings.  Both parties agree that the Court should seek to determine the question of significant change in circumstances as a discrete threshold issue.  Counsel for the father seeks the court order a child-inclusive memorandum for the purposes of obtaining the child’s views that might be considered by the Court in determining whether to allow the father’s application considering Rice v Asplund (1979) 6 FamLR 570 and then perhaps move on to a determination of whether the existing orders should be varied.

4. The solicitor for the mother objects to the Court ordering a report on the basis that the Court should not obtain further information about the child but rather be bound to a position where it must consider the judgment of Judge Coakes and the evidence of the parties, absent a report about the child’s current views.  During the course of the previous parenting proceedings, Judge Coakes ordered a family report prepared by family consultant Ms J.  The mother and child were interviewed by family consultant Ms J on 16 April 2014.  It is not controversial the father could not be interviewed on that day because of illness.  The child was not observed with the father or re-interviewed after that date.

5. In the family report prepared on 17 April 2014, the family consultant noted:

   X said he did not feel comfortable at his father’s home and does not enjoy spending time with the father’s partner, Ms M. 

6. X indicated to the family report writer he wished to remain living with the mother and does not wish to enter into a shared care arrangement. It is recorded in the family report that X reported to the family consultant he did not view the father’s home as his real home; that he was not comfortable there and did not have a close relationship with the father’s partner. The family report went on to suggest X was scared of the father and his anxiety increased when he has to spend time with the father.  The Court referred counsel for the father and solicitor for the mother to a decision of the Full Court in Morton & Berry [2004] FAMCA 208.

7. The Court considers how the views of the child are expressed pursuant to section 60CD. The Court has considered the decision in Morton & Berry.  The Court cannot seek to determine the application by the mother to dismiss the father’s application applying the principle in Rice & Asplund without taking into account the best interest principle.

8. The views expressed by the child and any factors, such as the child’s maturity and level of understanding, that the court thinks are relevant to the weight it should give those views is a consideration the Court must take into account when determining what is in the best interest of X.  The Court finds that in order that it take into account the best interest considerations, it should have evidence of the child’s views and such evidence as the family consultant’s opinion of the child’s maturity and level of understanding.  The Court finds in favour of the application of the father. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Myers

Date: 11 August 2016