Sheridan and Sheridan

[2011] FamCA 509

FAMILY COURT OF AUSTRALIA

SHERIDAN & SHERIDAN [2011] FamCA 509

FAMILY LAW - CHILDREN – interim orders – with whom a child lives – where the proceedings were previously resolved by consent with orders that the child be cared for in a shared care arrangement – where the child has been exposed to family violence in the father’s household – best interests – orders that the child live with the mother and spend time with the father.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Sheridan

RESPONDENT: Ms Sheridan

FILE NUMBER: ADC 2309 of 2009

DATE DELIVERED: 21 June 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 21 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan

SOLICITOR FOR THE APPLICANT: Lynch Meyer

COUNSEL FOR THE RESPONDENT: Mr Richards

SOLICITOR FOR THE RESPONDENT: Norman Waterhouse Lawyers

Orders

IT IS FURTHER ORDERED DURING THE PERIOD OF THE ADJOURNMENT THAT:

1. IT IS DIRECTED that the parenting orders are suspended.

1. The child H born on … September 2001 live with the mother.

1. The child H spends time with the father as follows:

(a)each alternate Saturday commencing Saturday 2 July 2011 from 7.30 am to 6.00 pm;

(b)each alternate Sunday commencing Sunday 10 July 2011 from 9.00 am to 5.00 pm;

(c)each Wednesday from conclusion of school until 8.30 pm;

ON CONDITION that the father collect and return the child H to the mother’s home SAVE AND EXCEPT when the child is attending school when the collection is from the school.

1. Leave is granted to the parties to issue a subpoena to the South Australian Police for information concerning either party or the child H.

1. Pursuant to s62G (2) of the Family Law Act 1975 as amended a family consultant provide to the Court a report on such matters as are relevant to these proceedings in respect of the care, welfare and development of the child H born on … September 2001 and that such report (if possible) be released to the parties on or before the 22 August 2011.

1. The final proceedings of this matter are adjourned to Friday 2 September 2011 at 9.15 am before the Honourable Justice Dawe when further consideration will be given to the order in relation to the child H.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  ADC 2309 of 2009

Mr Sheridan

Applicant

And

Ms Sheridan

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which concerns the welfare of the child of the parties, H.  H was born in September 2001 and is therefore approaching 10 years of age. 

2. There have been considerable previous proceedings in relation to H’s welfare which resulted in a final consent order in the Federal Magistrates Court, which provided for H to live in a shared care arrangement on a week-about basis. 

3. The affidavit material, which is recently filed, sets out some of the history prior to those final orders and the other matters which have occurred since.  The Court notes that the arrangements are such that notwithstanding the past difficulties between the parties and the concerns each had concerning the final orders to be made in relation to H, final orders were made by consent.

4. However, it is also clear that there have been ongoing difficulties between the parties, not only in relation to H’s welfare, but on the face of it an intractable inability to come to any sensible arrangements concerning financial matters. 

5. In relation to the interim orders that have to be made concerning H, I take into account the dominant provisions of the Family Law Act 1975 (Cth) (“the Act”) in Part VII dealing with the matters which need to be taken into account when determining what is in the best interests of the children. I take into account the uncontested facts and weigh the contested facts up with the uncontested facts in relation to the recent authority from the Full Court.

6. What appears to be uncontested in this matter is that H was living in a shared care arrangement with his parents but that an incident occurred on 29 May 2011 which prompted the mother to retain the care of H and to bring proceedings before the Court, which resulted in the interim orders which the Court made on 3 June 2011.

7. The father in his affidavit material, now filed in response to the mother’s claim, admits that on 29 May 2011 he had an argument with his then partner (a woman with whom he was then living in a de facto relationship) described in the affidavit as B.  He says in paragraph 4 of his affidavit filed on 10 June 2011:

   “Late in the evening of 29 May 2011 [B] and I had an argument.  I asked her to leave the house, but she refused.  I tried to put her outside by putting my arm around her and steering her to the front door.  However, as I did, she grabbed the doorframe and we both fell and she chipped a tooth.  I deny there was a severe physical assault.”

8. The affidavit then continues to provide information that the police attended and an ambulance attended.  The father was arrested and his partner was taken to hospital.

9. The father maintains in his affidavit that H did not witness the incident, the arrival of the ambulance or the arrival of the police. The admission, however, is that it appears that there was a physical interaction between the father and his partner which would fall within the definition of family violence in section 4 of the Act. On behalf of the father, it is maintained that H was not a witness to the incident and, as such, there is no indication that he has suffered any trauma or that the relationship between the father and the child has been disturbed.

10. However, it is clear from the information on the Court file that H has become aware of the incident.  In previous material filed the mother was also alleging that she was concerned about H’s welfare because of the atmosphere and difficulties being experienced in the household of his father.

11. The Court is not able to determine the other factors which are in dispute at this stage.  Taking into account the serious nature of the allegations and the impact that observations of violence, and difficulties arising as a result, thereof, can have upon the future welfare of the child, I am not satisfied that it is in H’s best interests, at this stage, pending the receipt of a proper Family Assessment report, to return to the shared care arrangement provided for in the consent order. 

12. On an interim basis, therefore, and placing significant weight on the provisions of section 60CC and the primary considerations, it is in H’s best interests for him to remain resident with the mother but spend time with the father. That is pending the receipt of a report which will clearly deal with the issues concerning all of the factors and, in particular, the emphasis being placed by the Act on the meaningful relationship with each of the child’s parents.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 21 June 2011.

Associate: 

Date:  29 June 2011