Simard and Jaffri

Case •

[2014] FCCA 3006

•

18 December 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIMARD & JAFFRI [2014] FCCA 3006
Catchwords:
FAMILY LAW – Children – parenting – parenting orders – interim orders – best interests of the child – one child aged 6 years – where father seeks increased time with child including overnight time – whether family report should be ordered – whether a child psychologist should be appointed as a Court Expert to provide a report.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DB, 65DAA, 62G
Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Simard & Simard (Jaffri) [2014] FCCA 2355
Applicant: MR SIMARD
Respondent: MS JAFFRI
File Number: PAC 5603 of 2011
Judgment of: Judge Scarlett
Hearing date: 15 December 2014
Date of Last Submission: 15 December 2014
Delivered at: Sydney
Delivered on: 18 December 2014

REPRESENTATION

Solicitor for the Applicant: Ms Weate
Solicitors for the Applicant: Jennifer Weate & Associates
Counsel for the Respondent: Mr Mobellan
Solicitors for the Respondent: Core Legal

ORDERS

UNTIL FURTHER ORDER

  1. All earlier parenting Orders are suspended.

  2. The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child [X] born [omitted] 2008.

  3. The child [X] is to live with the Mother.

  4. The child [X] is to spend time with the Father as follows:

    (a)Each alternate Saturday from 10:00am to 6:00pm commencing on Saturday 20 December 2014;

    (b)From 1:00pm to 7:00pm on Christmas Eve each year;

    (c)From 10:00am to 6:00pm on the Sunday immediately prior to the Father’s birthday being [date omitted] in each year;

    (d)From 10:00am to 6:00pm on Fathers’ Day in each year;

    (e)From 10:00am to 2:00pm on the child’s birthday being [date omitted] 2015 and from 10:00am to 2:00pm on the Sunday immediately prior to the child’s birthday in 2016 and thereafter.

  5. Changeovers where the child goes from the care of one parent to the care of the other in accordance with these Orders are to take place at the McDonald’s Family Restaurant at [omitted] New South Wales and to avoid confusion the car park of the Restaurant is regarded as a part of the said Restaurant.

  6. Each party may communicate with the child [X] by telephone between the hours of 7:00pm and 7:30pm on occasions when the child is in the care of the other party in accordance with these Orders.

  7. The parties are restrained by injunction from abusing, criticising or denigrating the other party in the presence or hearing of the child or permitting any third person to do so.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PAC 5603 of 2011

MR SIMARD

Applicant

And

MS JAFFRI

Respondent

REASONS FOR JUDGMENT

Application

  1. This is an Application by the Father for further interim parenting orders seeking more time with his son [X], who was born on [omitted] 2008 and is now six years old. The Mother, in her Amended Response, concedes that there should be some increase in the time that [X] spends with his father, but significantly less than the time the Father seeks.

Background

  1. The background facts are set out in Simard & Simard (Jaffri)[1], an interim decision handed down on 10th October this year. In that decision, the following Orders were made until further order:

    [1] [2014] FCCA 2355

    (1)     All earlier parenting Orders are suspended.

    (2)The Applicant and the Respondent are to have equal shared parental responsibility for the child [X] born [omitted] 2008.

    (3)The child [X] born [omitted] 2008 is to live with the Respondent Mother.

    (4)The child [X] is to spend time with the Applicant Father each alternate Saturday from 11:00 am to 3:00 pm commencing on Saturday 11 October 2014.

    (5)Changeover between the Applicant and the Respondent is to take place at the McDonalds Family Restaurant at [omitted] unless otherwise agreed by the parties in writing.

    (6)Each party may communicate with the child by telephone between the hours of 7:00 pm and 7:30 pm on occasions when the child is in the care of the other party in accordance with these Orders.

    (7)THE COURT NOTES that the surname of the Respondent is [JAFFRI].

  2. These Orders were in the nature of “pre-interim” Orders, sought by the Applicant Father in order to cover the period between the first return date of his Application until an interim hearing could take place on 15th December 2014.   

Orders Sought

  1. The Father, by his Amended Initiating Application filed on 4th December 2014, seeks Interim Orders providing:

    a)That [X] spend time with the Applicant Father each alternate Saturday from 9.00am to 5.00pm commencing:

    i)20th December 2014, and then:

    ii)3rd January 2015.

    iii)17th January 2015, and

    iv)31st January 2015; and then

    b)Each alternate Saturday from 9.00am to noon Sunday commencing:

    i)14th February 2015 and

    ii)28th February 2015

    iii)14th March 2015

    iv)28th March 2015, and

    c)In order to effect changeover for the above time with the Father provided for above, the father shall collect [X] from McDonalds Family Restaurant at [omitted] and the mother collect [X] from the Father at [address omitted].

    d)Commencing Friday 10th April 2015, each alternate weekend and the father shall collect [X] from the Mother at 5:00pm on Friday afternoon from McDonalds Family Restaurant at [omitted] if it is a school holiday (noting 10 April 2015 is a school holiday day) and otherwise from the conclusion of school, at the school where the child attends on Friday afternoon and the Mother shall collect [X] at noon on the following Sunday from the Father at [address omitted].

    e)That commencing the June/July 2015 school holidays [X] have school holiday time with the Father for one half of all school holidays for New South Wales Term 1, 2, 3 school holiday period, for a period of 7 nights for the first half in odd numbered years and the second half in even years.

    f)In order to facilitate changeover the Father shall collect [X] on the first day of the school holiday time he is to spend with his father from McDonalds Family Restaurant at [omitted] and the Mother shall collect [X] from [address omitted].

    g)That [X] spend the three weeks of the December/January school holiday break with his father as agreed and failing agreement the third and fourth weeks and the week immediately prior to school recommencing.

    h)In order to facilitate changeover the Father shall collect [X] at Midday on the first day of the time he is to spend with his father from McDonalds Family Restaurant at [omitted] and the Mother shall collect (the child) from [address omitted].

    i)That [X] spend from noon Christmas Eve until 5:00pm Christmas Day on each even year commencing 2014 and 5:00pm Christmas Day until 5:00pm Boxing Day each odd year commencing 2015, with the Father collecting from McDonalds Family Restaurant at [omitted] and the Mother shall collect (the child) from [address omitted].

  2. The Mother, by her Amended Response, seeks these Interim Orders:

    1.  All earlier parenting orders are suspended.

    2. That the parties have equal shared parental responsibility for [X], born [omitted] 2008 (“the child”).

    3.  That the child is to live with the Respondent Mother.

    4. That the child is to spend time with the applicant Father each alternate Saturday from 10am to 6pm commencing 20 December 2014.

    5. That the child also spend time with the Applicant Father from 1:00 pm Christmas Eve 2014 to 7:00 pm that same day. The child is to be dropped off by either the Respondent Mother or her partner, Mr S, and the child will be collected by the Respondent Mother.

    6. All changeovers are to take place at McDonalds Restaurant at [omitted] unless otherwise agreed by the parties in writing.

    7. The Applicant Father may communicate with the child by telephone between the hours of 7:00 pm and 7:30 pm on occasions when the child is living with the Respondent Mother in accordance with these Orders.

    8. Not before 31 January 2015, the child be assessed by an accredited child psychologist to ascertain the impact and appropriateness of the child staying overnight with the Applicant Father.

    9. A report be prepared by an accredited child psychologist which addresses the welfare of the child and makes recommendations regarding the impact and appropriateness of the child staying overnight with the Applicant Father and filed with the Court no later than 20 February 2015.

    10.That the matter be re-listed not earlier than 27 February 2015 for further interim orders to be made, taking into account the recommendations made by the child psychologist regarding the impact and appropriateness of the child staying overnight with the Applicant Father.

Evidence and Submissions

  1. The Father relied on his affidavit of 28th October 2014. In his affidavit he confirmed that on 2nd July 2010 he was found guilty of common assault and contravention of an apprehended violence order. Without a conviction being recorded, he was directed to enter into a good behaviour bond for a period of two years under the provisions of s.10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) on the conditions that he accept the supervision of the NSW Probation and Parole Service and obeyed all reasonable directions of that service for counselling, educational development and alcohol rehabilitation.

  2. The Father deposed that he recommenced spending time with the child on Saturday 11th October when he met him at the McDonalds Family Restaurant at [omitted]. He again spent time with the child on 25th October, when there was an altercation between him and the Mother. He complained that when he arrived back at McDonalds with the child and was getting the child out of the car, the Mother approached him and went to collect the child.

  3. The Father stated that he said to the Mother:

    “I am to return [X] to you at McDonalds not at the car park”.  

  4. The Mother replied:

    “You’re a fucking immigrant who can’t read fucking English; you need a dictionary.”[2]

    [2] Affidavit of Mr Simard 28.10.2014 at paragraph [23]

  5. The Mother relied on the following affidavits:

    a)her affidavit of 5th December 2014; and

    b)the affidavit of her mother, Ms J, of 5th December 2014.

  6. In her affidavit, the Mother deposed that on 11th October 2014 the Father was accompanied by a woman who gave her name as [omitted]. In respect of the exchange on 25th October, the Mother deposed that when the Father arrived at McDonalds to return the child, she went up to the Father’s car and he said:

    “No, inside McDonalds”

  7. She states that she replied:

    “The car park is still McDonalds premises”.[3]

    [3] Affidavit of 5.12.2014 at [29]-[31]

  8. The Mother complained in her affidavit that the child subsequently exhibited defiant behaviour towards her and behaved in a “rude and belligerent” manner towards her.[4]

    [4] Ibid at [32]-[36]

  9. The Father’s solicitor, Ms Weate, submitted that there would be little prospect of the Father having a meaningful relationship with the child if the Mother’s proposed orders are made by the Court. The Father, on the other hand, had demonstrated his willingness to facilitate a meaningful relationship with the child and the child’s mother by complying with the previous orders. However, the Mother had moved a significant distance away from Sydney with the child, without advising the Father, and had not provided any of the Father’s details to the child’s school.

  10. Ms Weate submitted that it was too early to order a Family Report at this stage.

  11. Mr Mobellan of Counsel, for the Mother, submitted that apart from the one incident the arrangements for the Father’s time with the child have gone largely without incident. However, he cautioned against increasing the time too rapidly, pointing out that the Mother had proposed a more gradual increase in the Father’s time. The Mother had a concern about what arrangements the Father would make for looking after the child when he is at work.

  12. Mr Mobellan referred the Court to the concerns raised by the Mother in the Child Dispute Conference. In the Child Dispute Conference Memorandum, the Family Consultant reported that the Mother had claimed to have stopped the child spending time with his father because of her concerns about the impact that it was having on the child’s psychological wellbeing.

The Relevant Law in regard to Parenting Applications

  1. When the Court is considering making parenting orders, whether final orders or interim orders (orders until further order), it must have regard to various sections of the Family Law Act 1975 (Cth) that are to be found in Part VII of the Act. In particular, it should have regard to the provisions of:

    a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;

    b)Section 60CA, which requires the Court to regard the best interests of the child as the paramount consideration;

    c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;

    d)Section 61DA, which deals with the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child; and

    e)Section 65DAA, which requires the Court to consider equal time or, failing that, substantial and significant time, with each parent where an order has been made that the child’s parents should have equal shared parental responsibility for the child.

  2. All of those matters have been considered, insofar as they are relevant.

Relevant matters in section 60CC of the Family Law Act

  1. The Full Court of the Family Court in Goode & Goode[5] requires the Court at first instance to consider the matters in s.60CC that are relevant and, if possible, make findings about them, noting that:

    in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.[6]

    [5] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

    [6] (2006) 36 Fam LR 422 at 445 [82]

  2. As is so often the case, the issues really concern the two primary considerations in s.60CC(2),being on the one hand the benefit to the child of having a meaningful relationship with both parents and, on the other, the need to protect the child from physical or psychological harm from abuse, neglect or family violence. Notwithstanding the previous matters of assault and contravention of an apprehended violence order, which led to the father being placed on a good behaviour bond for two years (which has now expired), there seems little risk to the child in the care of the father, provided that he is reintroduced to him slowly and carefully.

  3. The evidence is that this child knows who his father is and has not reacted adversely to spending some time with him. true it is that the Mother has complained that the child has been acting out after each time with the Father, there is nothing to show that this is more than would normally be expected.

  4. The Mother has spoken of her concerns over the child’s psychological wellbeing after spending time with his father, but the evidence in her affidavit does not give much support to the mother’s proposal that the child should be seen by a child psychologist. Presumably, this request, in the Mother’s proposed orders 8 and 9, refers to the appointment of a psychologist as an expert under Division 15.2 of the Rules, but there appears to be little by way of solid evidence to support this proposal. It seems to be more appropriate to order a Family Report under the provisions of section 62G of the Act.

  5. I note that the Father’s solicitor submits that it is too early to order a Family Report, the reality of the Court’s workload is that a final hearing is probably about a year off, so the Family Report would be unlikely to be prepared for a number of months yet.

Equal shared parental responsibility and section 61DA of the Act

  1. The Court is required to decide whether the presumption in s.61DA that equal shared parental responsibility in the best interests of the child does or does not apply.

  2. The Mother, in her Amended Response, seeks an order for equal shared parental responsibility. The Father’s Amended Application is silent on the topic.

  3. The Orders made on 10th October provided that the parties should have equal shared parental responsibility for [X]. The incidents of violence are historical, in my view, and would not operate in such a way as to lead to a finding that the presumption does not apply. It seems to be appropriate for there to be an order until further order for the parties to continue to have equal shared parental responsibility for [X].

  4. When the Court is making final orders, it will look again at the presumption of equal shared parental responsibility, as the Court is required by s.61DB to disregard the allocation of parental responsibility made in the interim orders.

  5. I intend to order that the parties are to have equal shared parental responsibility for the child.

Section 65DAA of the Family Law Act

  1. This is not a matter where it would either be in the child’s best interests or reasonably practicable for the child to spend equal time with each parent. The parties live too far away from each other, for a start, and the degree of mistrust and hostility between them is too great. One only has to consider the incident in the McDonalds car park in October to see that the parties are a long way apart in their communication.

  2. There is no reason why the Father should have insisted on taking the child into McDonalds rather than handing him over to the Mother in the car park. If, as the Father says, but the Mother does not mention, the Mother used the abusive language to the Father, that does not show either party in a good light. I will order that the car park is to be regarded as a part of the McDonalds Family Restaurant, but I will also restrain the parties from denigrating each other in the child’s presence or hearing.

Orders that are in the child’s best interests

  1. In my view, there should be an increase in the Father’s time with his son, but the amount of time that he seeks is too much too soon. I favour the Mother’s more modest proposal, as it will serve the purposes both of increasing the Father’s time in a way that will allow for the development of the relationship but will also be an arrangement with which the Mother can be comfortable.

  2. The orders proposed by the Mother, however, do not provide for special days, such as occasions and events that are of particular significance to the child or occasions and events that are of special significance to the Father (see s.65DAA(3)). Accordingly, I have provided for the child to spend time with the Father on Christmas Eve, Fathers’ Day and on or near the child’s birthday and the Father’s birthday. These are days that are of significance in the relationship between a father and his child.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  23 December 2014


Key Legal Topics

Areas of Law

  • Family Law

Legal Concepts

  • Injunction

  • Procedural Fairness

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Simard and Simard [2014] FCCA 2355
Goode & Goode [2006] FamCA 1346