Sheehan and Reece& Anor

[2013] FCCA 1619

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHEEHAN & REECE& ANOR [2013] FCCA 1619

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA

Applicant: MS SHEEHAN

First Respondent: MS REECE

Second Respondent: MR MCQUEEN

File Number: CRC 130 of 2013

Judgment of: Judge Scarlett

Hearing date: 18 September 2013

Date of Last Submission: 18 September 2013

Delivered at: Coffs Harbour

Delivered on: 18 September 2013

REPRESENTATION

Solicitor for the Applicant: Ms Grewal

Solicitors for the Applicant: MBT Lawyers

Counsel for the Respondent: Ms Corcoran

Solicitors for the Respondent: Legal Aid NSW

Second Respondent:  No appearance

ORDERS

UNTIL FURTHER ORDER

1. The Orders made by consent in the Local Court of New South Wales at Coffs Harbour on 4 June 2013 are discharged.

2. The child X born (omitted) 2005 is to live with the First Respondent Maternal Grandmother.

3. The child X is to spend time with the Applicant Mother as follows:

   (a)Each alternate weekend during the school term from after school on Friday until 4:00 pm on Sunday;

   (b)In the Term 1, Term 2 and Term 3 school holidays from 10:00 am on  the first Saturday after the school term ends until 4:00 pm on the Saturday immediately following;

   (c)For two (2) periods each of one week during the Christmas/January school holidays being:

   (i)From 10:00am on 2 January to 4:00pm on 9 January; and

   (ii)From 10:00am on 16 January to 4:00pm on 23 January in each year;

   (d)From 10:00am to 4:00pm on Mother’s Day;

   (e)On the child’s birthday from immediately after school until the commencement of school the following morning if the day falls on a school day and from 10:00am to 4:00pm if the day falls on a day other than a school day;

   (f)From 4:00pm on Christmas Day to 4:00pm on Boxing  Day;

   (g)From 4:00pm on Easter Sunday to 4:00pm on Easter Monday; and

   (h)At such other times as the parties shall agree.

4. In the event that the child is spending time with the Mother in accordance with Order (3)(a) above then he is to spend time with the Maternal grandmother from 10:00am to 2:00pm on that day.

5. Neither party is to denigrate or criticise the other party in the presence or hearing of the child or permit any other person to do so.

6. All handovers that do not occur at school are to take place at the Interrelate Contact Changeover service.

7. The child is to attend upon the school counsellor or any other counsellor as may be recommended.

8. These Orders act as an authority for the Mother to obtain copies of school reports, circulars, photographs and other material on behalf of the child directly from his school.

9. These Orders act as an authority for the Mother to obtain any information on behalf of the child from any medical professional who may be dealing with him at any time.

10. The Mother and the Grandmother are to attend upon a Family Consultant for the purposes of a Child Dispute Conference under the provisions of section 11F of the Family Law Act and as provided by section 11C of the Act the conference is to be reportable.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT COFFS HARBOUR

CRC 130 of 2013

MS SHEEHAN

Applicant

And

MS REECE

First Respondent

MR MCQUEEN

Second Respondent

REASONS FOR JUDGMENT

1. The application before the Court is an Interim application.  It is an application by the Mother of a child, whose name is X, for interim orders regarding the amount of time that X should spend with her. 

2. The Interim application is brought against the background of the substantive application which the commenced on 29^th May and which was returnable at the local court at Coffs Harbour on 4^th June 2013.  The two Respondents are the maternal grandmother and the child’s father.  The child’s father has not taken part in these proceedings to date, and there appears to be no issue that he has not taken any part in the child’s life for a considerable period of time.

3. X was born on (omitted) 2005.  He is eight years of age.  He has been living with the First Respondent, the grandmother, for approximately five years. 

4. The Mother’s proposal would see that he spends a significantly greater amount of time with her, not quite to the extent that it is a complete change of residence, but a significant change.  What happened at the Local Court on 4^th June, is that the parties entered into Interim Consent Orders.  Those orders provided that, until further order, X should live with the Maternal Grandmother, and he would spend time with the Mother each alternate weekend from Friday after school until 4:00pm on the Sunday, commencing the Friday after the matter came to Court. 

5. He would also spend any other time as agreed between the parties.  The changeover was to take place at Interrelate, (omitted).  There are a variety of ancillary orders.  Of procedural importance was that the proceedings were transferred by the learned magistrate to this Court and were returnable before this Court for the first time on Monday.  It was then made clear by the Mother’s solicitor that the Mother was seeking the interim orders that are pressed.

6. It is significant that the Interim orders sought by the Maternal Grandmother, which are set out in her response filed on the 6^th of this month, offer a considerably greater amount of time spent by the child with the mother, although not to the extent of the interim orders sought by the Mother in her application. 

7. The time proposed in the response continues with the alternate weekends.  It includes a week in the terms 1, 2 and 3 school holidays and two blocks each of 1 week during the Christmas-January school holidays and on special occasions such as Mother’s Day, the child’s birthday, Christmas Day, Easter Sunday and other times. Nevertheless, the parties have been unable to agree as to what should be the appropriate orders. 

8. It is the Mother’s case that the time that she seeks with the child is necessary to allow him to maintain his relationship with her and with his other siblings, who live with her.  She does not believe that the current arrangements are sufficient to allow for that maintenance.  From the Grandmother’s point of view, the Mother’s orders represent a significant change in this child’s life, bearing in mind the fact that he has lived with her and she has been his primary caregiver for approximately five years. 

9. I note that there has not yet, at this stage, been anything in the way of a Child Dispute Conference, which would appear to me to be a useful procedure. 

10. How then should the Court deal with the matter? Of course, section 60CA of the Family Law Act requires a Court, when deciding whether to make a particular parenting order, to regard the best interests of the child as the paramount consideration. Section 60CC of the Act gives guidance to a court in determining what is in a child’s best interests.

11. The Court is required to consider the matters in subsections (2) and (3) of section 60CC. The primary considerations are in subsection (2) and include the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

12. There are additional considerations set out in subsection (3) of section 60CC. They include any views expressed by the child, any factors such as the child’s maturity or level of understanding that the Court thinks it relevant to the weight that it would give to the child’s views. I would comment at this stage that a child who is only eight years of age, not an enormous degree of weight would be given. It includes the nature of the relationship of the child with each of the child’s parents and any other person, such as a grandparent or other relative.

13. It includes the extent to which each of the child’s parents have taken or failed to take the opportunity to spend time with child, communicate with the child, participate in making decisions about major long-term issues.  It includes the practical difficulty and expense of a child’s spending time with and communicating with a parent, and it particularly concerns the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation of (1) either of his parents or (2) any other child or other person, including any grandparent or other relative of the child with whom he or she has been living.

14. In my view, at this early stage in the proceedings, the Mother’s proposal goes too far, and I am not satisfied that it is in this child’s best interests for there to be such a radical change in his circumstances.  I am of the view that it is clearly appropriate for there to be a gradual re-introduction of time with his mother.  I note that he has lived in a stable environment, in the one house with the one caregiver and attended the one school for the previous five years, whereas the Mother, it appears, has had a somewhat peripatetic lifestyle, living in a variety of residences in two different states, although it appears that she has now returned permanently to the (omitted) area.

15. It is of benefit to this child to have a meaningful relationship with his mother. It appears that he does not have a meaningful relationship with his father, but that appears to be due to the fact that the Father has not chosen to have any significant relationship or recent relationship with this child or other children. I am required to consider the question of parental responsibility. Section 61DA of the Act sets out the presumption, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child. That presumption does not apply in cases of abuse or family violence, may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.

16. Subsection 3 of section 61DA provides that, when the Court is making an interim order, the presumption applies, unless the Court considers that it would not appropriate in the circumstances for the presumption to be applied when making that order. Well, the fact is that it is not appropriate. The mother clearly wishes to play a significant role in the life of her child, and she is currently spending time with him under the existing orders, and she wishes to do more. The same cannot be said about the Father. He is conspicuous by his absence, and the likelihood in the near future that he is going to take any active part in these proceedings, let alone in his son’s life, seems to be remote.

17. Essentially, the two parties who are seeking orders relating to this young boy are his mother and his maternal grandmother.  As I said, it is inappropriate, in the circumstances, to apply the presumption of equal shared parental responsibility.  So I will not make any orders in that regard.  I am of a view that, notwithstanding the relatively short time since the interim consent orders were made in June of this year, that orders on an interim basis should be made to provide that X should spend more time with his mother. 

18. I am not persuaded, as I have made clear, that the extent of the orders proposed by the Mother is appropriate, but it appears clear to me, and I think I expressed this view during the hearing, that the orders proposed by the maternal grandmother offer significantly more time than the interim orders agreed to on 4^th June.  They appear to me to have the advantage of continuing to offer this boy a stability in his residence and schooling and caregiving, whilst providing an increase of time that he spends with his mother, not that there is to be an increase per se during the school term, except for special occasions such as Mother’s Day, but the provision of blocks of time of up to a week during the school holidays, in my view, would be beneficial for him to not only maintain but build up a meaningful relationship with his mother.

19. I am of the view that these parties would benefit from a Child Dispute Conference with a family consultant, and I propose to make such an order.  This does mean that I will be discharging the interim orders made in the Local Court, and I will be making further orders, which are very much in line with those proposed by the First Respondent. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  14 October 2013