Sprout and Skeeter
[2010] FMCAfam 1074
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SPROUT & SKEETER | [2010] FMCAfam 1074 |
| FAMILY LAW – Interim – parenting – recovery order – whether time spent should be supervised. |
| Family Law Act 1975, ss.11F, 60CB, 60CC, 67U, 67V |
| Goode & Goode (2006) FLC 93 |
| Applicant: | MS SPROUT |
| Respondent: | MR SKEETER |
| File Number: | SYC 2728 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 9 August 2010 |
| Date of Last Submission: | 9 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 9 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Morris |
| Solicitors for the Applicant: | Lavulo Lawyers |
| Counsel for the Respondent: | Ms Court |
| Solicitors for the Respondent: | John Spence & Associates |
ORDERS
THE COURT ORDERS THAT:
All extant applications be adjourned to this Court on 9 September 2010 at 9:30am for mention.
Pursuant to s.11F of the Family Law Act 1975, the parties attend a Child Dispute Conference with a Family Consultant in this Registry today and, pursuant to s.11C, such conference be reportable.
Pursuant to s 68L(2) of the Family Law Act 1975 (“the Act”), [X] born in 2005 and [Y] born in 2007 (“the children”) be independently represented AND IT IS REQUESTED that Legal Aid Commission of New South Wales, arrange such separate representation and:
(a)Upon appointment, the Independent Children’s Lawyer file a Notice of Address for Service;
(b)Within 48 hours of notification of such appointment the solicitors for the respective parties provide to the Independent Children’s Lawyer copies of all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports; and
(c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
The Respondent make, file and serve a Response and an Affidavit in support on which he intends to rely by no later than 4:00pm on
16 August 2010.
The Applicant and the Respondent attend and complete, as soon as practicable, a Parenting Apart post-separation parenting program ("the Program") at an organisation as agreed by the parties or, in default of agreement within seven (7) days of the date of these orders, at an organisation nominated by Relationships Australia (“the organisation”), and:
(a)do everything reasonably necessary to enrol in, undertake and successfully complete the Program;
(b)if applicable, pay all costs associated with their participation in the Program;
(c)attend and complete, as soon as practicable, any further course or program recommended by the organisation; and
(d)provide a copy of the certificate of completion of the Program/s to the other parties’ or their solicitors.
The Respondent return the children to the care of the Applicant by 11:00am on 10 August 2010 in accordance with paragraph 7 herein.
In relation to paragraph 6 herein, the Respondent deliver the children to their current day care centre, [omitted], Suburb A (“the centre”) by no later than 11:00am on 10 August 2010 and the Respondent is to provide a sealed copy of these orders to the centre by that time and date.
In relation to paragraph 6 and 7 herein the Applicant collect the children from the centre not earlier than 4:00pm and no later than 6:00pm on 10 August 2010.
On 11, 12 and 13 August 2010, the Applicant is to deliver the children to the centre by no later than 11:00am and the Applicant is to collect the children no earlier than 4:00pm and no later than 6:00pm on each of those days.
In relation to paragraphs 7 - 9 herein the Respondent is to ensure that all fees for the children attending the centre up to and including
13 August 2010 are paid in full.The Respondent undertake two (2) supervised urinalysis tests within three (3) weeks of the date of these orders.
For the purpose of paragaph 11 herein, the Respondent will undertake each supervised urinalysis test within 24 hours of being requested to do so by the Applicant’s solicitor and shall cause a copy of the test results to be given to the Applicant’s solicitor within 24 hours of receiving such results.
AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:
The children live with the Applicant.
The children spend time with the Respondent as agreed between the parties or, failing agreement, from 9:00am Saturday until 5:00pm Sunday each weekend.
For the purposes of paragraph 14 herein, all changeovers are to occur at a public place as agreed and failing agreement, Meeting Place A, Suburb B.
In the event that the children remain in childcare or pre-school after 13 August 2010 then the children are to be enrolled in and attend the centre.
AND THE COURT NOTES THAT:
(A)For the purposes of paragraph 5 herein, the parties are to attend a course type as recommended by Ms S, Family Consultant, in her Memorandum dated 9 August 2010.
(B)Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Sprout & Skeeter is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2728 of 2010
| MS SPROUT |
Applicant
And
| MR SKEETER |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MS SPROUT (“the mother”), who is seeking various parenting orders against MR SKEETER (“the father”), in respect of their two children, [X], born in 2005, and [Y], born in 2007 (“the children”). More specifically, the mother is seeking orders to the following effect:
·a recovery order in respect of the children;
·that until further order the children live with the mother and she have sole parental responsibility for them;
·that the children spend time with the father but such time be supervised; and
·that the father undertake drug screening.
The mother’s application is supported by her affidavit affirmed and filed on 29 July 2010, and she is legally represented by Mr Morris today.
The father has not yet filed a response and supporting affidavit in respect of these proceedings however the Court notes that he was served late last month. There will be orders today for him to file a response and a supporting affidavit within the next seven (7) days. He is legally represented by Ms Court today.
Background
The parties, it would appear, commenced cohabitation in 2002 and separated in November 2009. There are no current parenting orders in place, although it would appear that the parties signed what might best be described as a “parenting plan” on 4 May 2010. An attempt to have consent orders made in the Family Court of Australia reflecting the parenting plan was unsuccessful. On 19 May 2010 Registrar Crawford made an order to dismiss the application for two reasons:
·firstly, because the children’s birth certificates had not been filed; and
·secondly, and perhaps more importantly quoting from the relevant correspondence:
“The proposed consent parenting orders are drafted as a settlement of agreements reached between parties rather than precise orders and are not drafted in a manner capable of being made as orders of the Court. Each party should seek independent legal advice. If it is the parties’ intention that there be a parenting plan only, orders are not required.”
Issues
The dispute today focuses solely on a recovery order sought by the mother. It would appear that the children have not spent time with the mother, or otherwise lived with the mother, since late May 2010 which, at face value, is disturbing.
The family consultant’s memorandum
It was foreshadowed earlier today to the parties that an order would be made today under s.11F of the Family Law Act 1975 (“the Act”) to require the parties to undertake a child dispute conference with a family consultant from this registry. The parties were able to obtain an appointment this morning and attended before family consultant Ms S. In her family consultant memorandum, Ms S records that the parties did not reach any agreement on the following issues:
·parental responsibility;
·who the children live with; and
·who the children spend time and communicate with.
Ms S’s memorandum is lengthy, and identifies the issues raised by the parents who were interviewed separately, what each of the parents want, and the issues identified by the family consultant. As to those issues, she states:
“The parents’ accounts of their histories of interaction with the children vary widely.
If the children have been cared for equally by both parents then any interim arrangement should ensure that they each spend significant time with each parent.
The children are still quite young and [Y] in particular is in an important stage of his attachment development. The instability that the children have experienced over the past nine months will have had an impact on their relationships with both parents and is likely to be confusing and frightening to them.
The parents have each held the children from the other. It would be in the children’s best interests for the parents to gain an understanding of the likely long term impact on children of being exposed to their parents’ conflict. A Parenting After Separation or Kids in Focus course may be appropriate.”
Ms S also records in her memorandum that there are significant allegations of family violence in this matter.
Ms S also makes a number of specific recommendations as follows:
·the parties attend a “Parenting After Separation” course or “Kids in Focus” course;
·that a family report be prepared in due course and that a specialist report relating to a drug and alcohol assessment of the father be undertaken; and
·the appointment of an Independent Children’s Lawyer (”ICL”).
Ms S also makes the following comment in her concluding comments:
“Given the vast differences in the parents’ accounts of each other’s involvement in the children’s day-to-day care, contact with the children’s childcare services, namely [omitted], in Suburb B, and the preschool they are currently attending – the mother does not have this information – may assist the Court. It would not be in the children’s best interests to experience any further change in preschool. However, if there is any reason to move them, going back to a prior childcare facility would be less difficult for them.”
Agreed and disagreed facts
The parties agree that the children have been in their father’s care since late May 2010 and have not spent time with the mother since that time. The mother asserts that the children had been deliberately withheld. The father asserts that he has attempted to contact the mother.
The parties also agree that the father has sought an apprehended violence order (“AVO”) against the mother that is returnable on 10 August 2010 at B Local Court. The mother indicated she will be defending that application.
The parties’ submissions
Mr Morris gave submissions on behalf of the mother and Ms Court gave submissions on behalf of the father.
Mr Morris submitted that a recovery order should be made, or the children otherwise returned to the care of the mother, because she has, until recently, been the primary carer of the children. That having been said, the mother acknowledged that the children had spent regular time with their father prior to more recent events since they separated. The mother asserts that the father’s time with the children should be supervised and that he should submit to a drug screening test. The mother is self-employed and otherwise able to care for the children on a full-time basis. She resides in a property with her two elder children and no-one else. Mr Morris indicated that the mother will consent to the parenting programs recommended by the family consultant.
Ms Court, submitted that the father would be in a position to file his material in response to the mother’s application within seven (7) days. She also confirmed that the children had not spent time with the mother since the end of May 2010 and asserted this followed a period of time when the children had allegedly been withheld from the father. Ms Court submitted that the parties had earlier this year agreed to a shared parenting plan. The father was agreeable to undertaking drug testing and complete the courses recommended by the family consultant. Although the father is not employed, he is training for a trade that requires three (3) days of attendance per week, those being Mondays, Wednesdays, and Fridays. The father asserts that the children are in day care five (5) days a week at the [omitted] at Suburb A.
The father lives in a housing commission house that he formerly shared with the mother, the children, and presumably her other children, until they separated. The parties had been living in the house for two (2) years, and the lease has some three (3) years remaining. He asserts no other person or friends reside at the home apart from himself and the children.
In response, Mr Morris confirmed that the parties had some Department of Community Services involvement in 2007 and 2008. He further submitted that the mother is not engaged in any study and questioned why the father removed the children to a new day care centre further away from his residence in Suburb B.
The law
Under s.67U of the Act the Court has the power to make a recovery order as it thinks proper. This provision is subject to s.67V of the Act in that deciding whether or not to make an order, the Court must regard the best interests of the child, or children, as the paramount consideration. Section 60CB through s.60CC of the Act deal with how the Court determines the issue of the best interests of children.
The Court is also assisted by the Full Court decision in the case of Goode & Goode (2006) FLC 93-286 (“Goode”) which guides the Court’s approach in making interim decisions and interim orders with respect to parenting disputes. At paragraph 81 of that decision the Full Court noted:
“In making interim decisions, the Court will still often be faced with conflicting facts, little helpful evidence, and disputes between parents as to what constitutes the best interests of the child.”
Clearly this matter is such a case.
More specifically, this raises the reality that the Court cannot fully determine issues of credit today, as the evidence being presented by the mother and the submissions from the father have not been tested by cross-examination. That having been said, again in paragraph 81 of the Goode decision, the Full Court went on to say:
“However, the legislative pathway must be followed.”
In other words, the relevant provisions of the Act post the shared parenting amendments must be considered at an interim hearing such as this.
There is considerable animosity, it would appear, between the parties in this case, and no doubt the history of the matter will be the subject of evidence and cross-examination at a final hearing, should such be needed.
Clearly, the Goode decision requires the Court to identify the competing proposals suggested by the parties, identify the issues in dispute, and identify any agreed and uncontested relevant facts. The mother is proposing that the children return to her full-time care and spend supervised time with the father. The father is asking the Court to, effectively, sanction the earlier agreement entered into between the parties which would, in effect, be a three and a half day each shared parenting arrangement. The issues and contested and agreed facts have been identified above.
At this point, s.60CA of the Act should be noted as it states:
“In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.”
Consequently it is not just the issue of the recovery order that is guided by that provision, but it is, in fact, the issue of what happens if the child is recovered or if the recovery order is declined.
To determine the children’s best interests, the Court must consider the primary and additional factors set out in s.60CC of the Act where relevant. These will be briefly canvassed now.
Primary considerations: s.60CC (2)
The Court is required under section 60CC(2)(a) to consider:
‘The benefit of the child of having a meaningful relationship with both of the child’s parents.”
At this point, it is noted that “meaningful” does not mean equal, but it clearly signifies that both parties should be involved with their children and consequently signifies an expectation of time to be spent. The right of a child to spend time with each parent and extended family is clearly a right that the child has under the Act. Consequently the Court will need to give considerable weight to this factor at a final hearing, should such be needed.
The Court is also required under s.60CC(2)(b) to consider the “need to protect the child, or children in this case, from physical or psychological harm and being subjected to or exposed to abuse, neglect, or family violence”. There is no doubt that it would be in the children’s best interests to develop a meaningful relationship not just with their father, but with their mother, and vice versa. That needs to be balanced, however, in respect of protecting the children from any physical or psychological harm. Given the nature of the allegations here, the Court is satisfied that there is a need to test the issues as to whether the children have been in any way psychologically harmed by what has occurred in recent times. There are issues here warranting investigation, and the Court needs to tread cautiously in the interim arrangements that will be necessary today, given also that there is an outstanding apprehended violence order proceedings between the parties in another Court.
There are also allegations of drug use and family violence made by the mother against the father. As a result the issue of the children spending time with their father in a supervised setting is also a live issue in this case. It is worth noting at this point that contact centres play a crucial role in facilitating a child spending time with a parent in circumstances where there is a risk of harm, proven or yet to be determined, in relation to a child. The demand on their services is strong, leading to long delays in obtaining places in the relevant centres, not just in Sydney but across the country.
Additional considerations: s.60CC(3)
Firstly, with respect to the “views” of the child, while significant, it will be difficult to determine in this case because of their very young years. Nevertheless, this will be something the family consultant will no doubt be able to assist the Court on with the assistance of the ICL who will be appointed today.
As to the “nature of the relationship between the children and each of the parents”, again, we have different stories and the parties’ evidence needs to be tested.
The “willingness and ability of each of the children’s parents to encourage a close and continuing relationship with the other parent” is clearly another crucial factor here. The father made a unilateral decision to withhold the children from their mother, but, of course, he may have reasons to explain his actions. The father also asserts that the children were similarly withheld from him prior to more recent events. These are all issues that need to be tested.
As to the “extent to which each of the children’s parents have fulfilled or failed to fulfil their responsibilities as a parent”, again, we have different stories. These stories need to be tested, but having said that, there are issues of concerns raised with children being withheld by parents for whatever reason.
The Court is also required to consider the “likely effect of any change in the children’s circumstances”. Clearly, there needs to be some change here. The present situation cannot continue. We cannot have children being spirited off or withheld by various parents for whatever reason without a proper examination of the reasons for it.
As to “any other fact or circumstance”, the Court has some concerns about the delay taken by the mother in seeking the return of the children.
Conclusion
As indicated, there will be an order today seeking the appointment of an ICL and a request to New South Wales Legal Aid to fund same. The Court is satisfied that the children should, until further order, return to the mother’s care, as she is clearly able to parent them on a full-time basis.
The Court is not satisfied, however, that there is sufficient evidence that the children should spend supervised time with the father. They should, however, spend significant and substantial time with him.
Consequently, as from tomorrow afternoon, the children will be returned to the mother’s care. Given that the children are presently enrolled in day care, the Court propose an order that the children be delivered to their day care centre by the father by 11:00am at the latest, and the mother shall thereafter ensure that she collects the children from that day care centre before the centre closes and after the hour of 4:00pm. The Court has considered what would normally occur in these sorts of day care centres with the children, and proposes a transition that will not just benefit the children, but will reflect as normal a routine as possible. This course of action will, of course, require the father to ensure that the day care centre is aware that the mother will be collecting the children from the day care centre.
Until further order, the children will live with their mother and spend each weekend with their father as agreed and, failing agreement, from 10:00am Saturday until 5:00pm Sunday.
Failing agreement as to a changeover venue, the Court proposes that the default position will be a public place as agreed, and failing agreement, Meeting Place A at a venue to be determined.
There will also be an order today for the father to submit to two supervised drug urinalysis tests.
There will be orders today for both parties to enrol and complete the parenting courses as recommended by the family consultant.
If the children are to remain in day care, they will remain enrolled at their current day care centre at [omitted], Suburb A. Regardless, they will remain in that day care centre for the remainder of this week, and the father will ensure that the fees for this week are paid. This will ensure that the children are not too disrupted by this transition in their parenting.
The right to settle the reasons for this interim decision is reserved.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 30 September 2010
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