Simard and Simard

[2014] FCCA 2355

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIMARD & SIMARD [2014] FCCA 2355

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – parental responsibility – equal shared parental responsibility.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cased cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant: MR SIMARD

Respondent: MS SIMARD

File Number: PAC 5603 of 2011

Judgment of: Judge Scarlett

Hearing date: 8 October 2014

Date of Last Submission: 8 October 2014

Delivered at: Sydney

Delivered on: 10 October 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 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 11:00am to 3:00pm 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 7:00pm and 7:30pm 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 SIMARD.

IT IS NOTED that publication of this judgment under the pseudonym Simard & Simard 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 SIMARD

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for interim parenting orders by the Father of a little boy called X, who is five years old.  X will turn six on (omitted) this year.  The Father has not seen his son since 26^th August last year. 

2. The Father claims that this is because:

   (a) the Mother refused to allow him to see the child on that date and subsequently, and

   (b) the Mother changed her address and did not tell him her new address, so he was not able to locate her until after he commenced legal proceedings.

3. The parties have now attended a Child Dispute Conference with a family consultant.  It appears from the Child Dispute Conference they have agreed on some limited issues, namely, that they should share parental responsibility equally, and that the child, X, should continue to live primarily with his mother.

4. The parties were married on (omitted) 2007.  There is one child of the marriage, X, who is born on (omitted) 2008.  The parties separated on 21^st February 2009 and were divorced on 16^th March 2012.  The child remains living with the Mother. 

5. The Applicant and the Respondent entered into consent orders in the Family Court at Parramatta on 9^th December 2011.  Those provided that:

   a)The parties would have equal shared parental responsibility for the child.

   b)The child would live with the Mother.

   c)The child would spend time with the Father:

   i)From Monday after day care until 6:00pm on Wednesday each week.

   ii)Every fourth Saturday until 6:00pm the following Wednesday.

   iii)On Father’s Day.

   iv)At Christmas.

   v)During school holidays commencing in 2011.  And I note when the child was less than three years old.

   vi)On the child’s birthday.

   vii)At other times as agreed.

6. The Father claims that the Mother has been obstructing him from seeing his son since March last year, culminating in her outright refusal on 26^th August 2013.  He deposes in his affidavit of 27^th February 2014 that he has only spoken to his son on the telephone on about five occasions since that date for a few minutes at a time, and not at all since October last year.  Through his solicitor he sought a location order so that his application could be served on the Mother. 

7. His solicitor, Ms Weate, told the Court that he is desperate to see his son, and accepts that there may be a need to reintroduce time with him after such a long separation.

8. In her affidavit of 6^th October 2014 the Mother claims that the Father was violent towards her during the marriage, to the extent that she obtained an apprehended violence order against him on 19^th June 2009.  That order was enforced for a period of 12 months.  She also claims that the Father was placed on a two year good behaviour bond at Burwood Local Court for having breached the order.

9. The Mother also express’s concerns about the Father’s parenting ability, noting that he had, in the past, left the child alone or in the care of other people, including her mother, at times when the child was spending time with him.  The Mother has repartnered.  She has a young child by this new relationship, and she has an older child by a previous relationship.

10. The Father wishes to resume his relationship with the child.  He seeks interim orders that:

    a)The parties should have equal shared parental responsibility for X.

    b)The child would continue to live with his mother.

    c)The child would spend time with him:

    i)From Friday after school until 5:00pm on Sunday each week.

    ii)All of the school holidays.

11. The Mother does not agree with those proposed orders.  But in her response she suggests that:

    a)The parties should have equal shared parental responsibility.

    b)X should live with her.

    c)X should spend time with his father for four hours on Saturday from 11:00am to 3:00pm.

    d)Changeover should be at (omitted).

    e)The parties can communicate with the child between 7:00pm and 7:30pm each day when the child is in the care of the other party.

12. The application came before this court on Wednesday.  And the party’s legal representatives had some serious discussions, but were unable to reach an accommodation on the issue between the parties, namely, the amount of time that X should spend with his father to recommence – recommence his contact with him.  There is, of course, no disagreement between the parties as to equal shared parental responsibility, or that X should continue to live with his mother.

13. The parties had seen a family consultant on the Friday the 3^rd of this month.  And the Child Dispute Conference memorandum of the Court has been made available to the parties and to the Court.  I found this document to be interesting and helpful.  In the memorandum the family consultant summarised the agreements between the parties, noted that the issue remaining in dispute was how much time that X should spend with his father, made reference to family safety factors, set out in some detail what she described as issues relating to the children.

14. It is interesting to see that the family consultant said, and I quote, if X was in a pattern of spending regular time with his father it may be distressing for him and disruptive to his relationship with his father to not spend time with him in so long.  If X is to re-establish a relationship with his father the two may need to begin spending time together, although, given the length of time since X has seen his father, the time may need to initially be limited to a few hours to make sure X feels comfortable with his father. 

15. That said, the Mother has raised concern about X’s psychological wellbeing and safety when spending time with his father.  Supervised visits could be considered as an option, but given that the concerns raised might not present an immediate risk to X’s safety supervision may not be necessary, and an alternative option could be for X to begin spending a short unsupervised amount of time with his father once a week or once a fortnight, and for an assessment of X to be conducted after a period of time to consider the impact the time spent is having on X.

16. If X was to begin unsupervised time and it became apparent, however, that X was experiencing significant psychological harm as a result of spending unsupervised time with his father then the time may need to cease or become supervised.  Both parents were agreeable to supervision, however.

17. As I said, I found this memorandum from the family consultant to be interesting and useful.  In dealing with applications for parenting orders, and looking at the relevant law, when the Court is considering making parenting orders, whether final orders or orders until further order, it must have regard to various sections of the Family Law Act 1975 to be found in part 7 of the Act. In particular, it should have regard to the provisions of section 60B, section 60CA, section 60CC, section 61DA and section 65DAA.

18. Section 60B sets out the objects and principles of part 7 of the Family Law Act. Section 60CA is particularly important in that it provides that when making or considering making a parenting order the court must regard the best interests of the child as the paramount consideration. Section 60CC sets out how it is that a court determines what is in a child’s best interests. The primary considerations are in subsection 60CC(2). The additional considerations are in subsection (3) of section 60CC.

19. Primary considerations involve a balance, if you like, between the benefit to the child of meaningful relationship with each parent on the one hand and the need to protect the child from physical or psychological harm from – from being subjected to or exposed to abuse, neglect or family violence.  Of the two the court is required by subsection (2)(a) to place greater weight on the requirements in paragraph (b), the need to protect the child from harm.

20. Subsection 60CC(3) sets out a number of requirements, not all of which are relevant.  But they include such things as the views of the child and the strength of the child’s relationship with each parent.  Again, matters relating to family violence or family violence orders.  And I note that in this case there have been allegations of past family violence.  And there was – and there was, on the mother’s evidence, an apprehended violence order which appears to have expired possibly four years ago.

21. I have considered all of these matters. Section 61DA brings with it the presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. That presumption may be – presumption does not apply in cases of abuse or family violence. The presumption may be abutted by evidence that satisfies the court that it is not in the child’s best interests for the parents to have equal shared parental responsibility.

22. There is, under subsection (3), a statement that – in – when the Court is considering making an interim parenting order – that equal shared parental responsibility should apply unless the court considers that that is not appropriate.  I deal with parental responsibility at this stage by noting that the parties have consented to interim orders that there should be equal shared parental responsibility, and I see no reason to disturb that agreement between the parties.

23. Of course, under section 65DAA of the Act if the Court does make an order that there should be equal shared parental responsibility the court then must consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent. If the court is not so satisfied the court must then, under subsection (2) of section 65DAA consider whether it is both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent. Again, I have considered all of these matters.

24. In the circumstances noting the background and the allegations I could not be satisfied that it is either in the child’s best interests or reasonably practicable to spend equal time with each parent.  And at this stage I’m not satisfied that it is either in his best interests or reasonably practicable to spend substantial and significant time with his father.  However, this is not a case where it is being put to the Court that this child should not have a relationship with his father.  It is a matter of concern and regret that for more than a year this little boy and his father have not seen each other face-to-face or spend time in each other’s company, and that they have only spoken on the telephone on several occasions, the last of which appears to have been about a year ago.

25. It will, in my view, require time, and cooperation by each parent to re-establish this boy’s relationship with his father. It would seem to me undesirable on the evidence before me that X should have no relationship with his father. I have compared the two proposals that have been put to the court in the application in a case and in the Mother’s response. It goes without saying that the Court is not bound to follow one or other proposal. The Court must follow the precept of section 60CA – that the best interests of the child must be the paramount consideration.

26. At this stage it seems to me that the orders sought by the Father are, perhaps, optimistic and would bring too much too soon.  He is seeking during the school term each week from Friday after school until 5:00pm on Sunday.  Every weekend of the term.  And he is seeking orders for all of the New South Wales school holidays.  With respect, this seems to me to be a bit much for a boy who is not yet six years old and has not seen his father or spent any time in his father’s company for over a year.  That might be disruptive to him. I cannot be satisfied that I should make those orders. 

27. I have looked at the orders proposed by the Mother as interim orders, which are significant less expansive, being four hours with the Father on Saturdays from 11:00am to 3:00pm, plus telephone communication between – or presumably Skype or something else between 7:00pm and 7:30pm with an agreed changeover at the McDonald's restaurant in (omitted).  It is far less than the Father seeks at this stage, although it was put to me by Ms Weate, who appeared for the Father on Wednesday and appears today that this man is most anxious to resume contact with his child.  At the moment he is not seeing him at all and has not seen him for over a year, and this is clearly causing him a great deal of anxiety and concern.

28. There should be a commencement, and it needs to be phased in.  I am disposed at this stage to make orders until further order in line with the rather sparse orders suggested by the Mother in the response.  I realise that there has been something less than what is regarded in the Sydney registry as an interim hearing.  But I was aided by the thoughtful submissions by Ms Weate for the Father and Mr Mobellan for the Mother.  And I’m of the view that the Father’s time with the child should restart, and it should start as soon as it can.

29. It is for those reasons that I make the following orders until further order.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  10 October 2014