Staley and Birch

[2019] FamCA 470

FAMILY COURT OF AUSTRALIA

STALEY & BIRCH [2019] FamCA 470

FAMILY LAW – PARENTING – Where there are orders in place for the Father to spend regular and significant time with the child – where the orders are not being complied with and the Father has not seen the child since November 2018 – where the child is living with the Mother while she recovers from surgery – where the Mother is able to travel to the Canberra region on weekends with the child which means that time with the Father could be facilitated – where there is a history of family violence – where the matters raised by the Mother do not justify the suspension of time with the Father – where the lack of time with the Father undermines the child’s ability to have a meaningful relationship with the Father.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Staley

RESPONDENT: Ms Birch

INDEPENDENT CHILDREN’S LAWYER: Ms Theodore

FILE NUMBER: CAC 1456 of 2017

DATE DELIVERED: 10 July 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 9 July 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Pyrmont Legal

COUNSEL FOR THE RESPONDENT: Mr Stretton

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, ACT

Orders

1. Orders 1 to 9 of the Orders made on 14 November 2017 are discharged.

2. Pending further order and unless otherwise agreed in writing X, born … 2012, will live with the Mother.

3. For the three weekends immediately following these Orders X shall spend time with the Father from 12pm Saturday until 12pm Sunday.

4. Unless otherwise agreed in writing, handover for the above order shall occur by the Mother delivering and collecting or causing X to be delivered and collected from the D Service Station in Suburb B.

5. Thereafter, X shall spend time with the Father each weekend from after school Friday until school Monday.

6. Unless otherwise agreed in writing, the Father shall collect or cause X to be collected from and return or cause X to be returned to his school at Suburb C at the times identified in the above Order.

7. The parties shall attend and bring X to a Child Inclusive Conference on 16 September 2019 in the following manner:

   (a)The Father may retain X from the previous weekend until attending the Child Inclusive Conference with X at the Canberra Registry of the Family Court of Australia at 10am on 16 September 2019;

   (b)The Mother shall attend the Canberra Registry at 9:30am on 16 September 2019;

   (c)Each party shall comply with directions as to their conduct and as to X for the duration of the Child Inclusive Conference as given by the Family Consultant; and

   (d)Following the Child Inclusive Conference X may leave the Child Inclusive Conference with the Mother.

8. The matter is adjourned to 10am on 3 October 2019.

9. The Mother is to file and serve a Response and a single consolidated affidavit from each witness she intends to rely upon in these interim proceedings by 4pm on 26 August 2019.

10. The Father is to file and serve his reply, if any, by 4pm on 13 September 2019.

11. The parties are at liberty to issue such subpoenas as are necessary for the proper preparation of this matter for interim hearing.

12. In issuing subpoenas the parties are directed to liaise with each other as to who the subpoenas shall be directed towards and the terms of those subpoenas before seeking the issuing of such.

13. The changeover point in the previous orders will be amended to be the D Service Station in Suburb B

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Staley & Birch has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1456 of 2017

Mr Staley

Applicant

And

Ms Birch

Respondent

REASONS FOR JUDGMENT

1. These proceedings were commenced by an Application and Affidavit filed by the Father on 22 May 2019.  There he sought to remedy a position that had arisen where, contrary to orders that provided for him to have regular and significant time with his seven year old son X, he has spent no time with X since November 2018, other than one session with a psychologist. 

2. These circumstances come about within an extraordinary background.  It is uncontroversial that the Mother shot the Father, although it is perhaps controversial why that occurred.  The Mother then spent approximately 14 months in jail and the Father acted as the primary carer for X while the Mother was in jail and appears to have facilitated regular visits to the Mother during that time. 

3. Following, or at some point following the Mother's release X, entered into her full-time care and at some period there was a six-month hiatus in the time that he spent with his Father. 

4. In November 2016 orders were made for the Father to have regular time with X.  There are further extraordinary circumstances.  After the apparent resolution of the dispute between the parties as to the time that X would spend with the Father, a resolution occurring in October 2016 where the parties appeared with the assistance of a Family Consultant to agree that there should be regular and significant time between X and his Father, the Mother has ceased providing X for time with the Father either in accordance with the orders that were made in November 2016 or in accordance with the agreement that was struck with the assistance of the Family Consultant. 

5. The Mother has also incurred a life-threatening illness, undergone serious surgery on 22 May 2019, and has withdrawn X from school so that X has been able to stay with her as she has recovered from that surgery in Sydney. 

6. X’s normal place of residence is near Town G, New South Wales, just outside the Australian Capital Territory (“the ACT”).  X usually attends school within the ACT and his Father lives in the ACT. 

7. The Father's Application filed on 22 May 2019 was made returnable on 24 May 2019.  It was then adjourned under the particular circumstances that faced the Mother to allow the parties to properly present their cases.  Despite the adjournment neither party filed further material.  The Father did not file any further material and this was on the basis that there was nothing further that he could add at that point.  He appears to have been in the dark as to the arrangements that have been made for X.

8. The Mother filed no material whatsoever.  On the return date of 9 July 2019 the Mother sought a further adjournment which was refused.  The Mother then sought leave to give oral evidence herself and for her mother to also give oral evidence.  The giving of that leave was not opposed and was granted. 

9. Opposing cases were then presented for the parties.  The Mother's position was that X should have no time with his Father.  The reasons that she advanced was that she says that X, aged seven years old, was resistant to spending time with his Father and that he did not want to.  This included a refusal she said on X's part to speak to the Father on the telephone.  She alleged that the Father had not taken opportunities to spend time with X, presumably being opportunities during the time that the Father was still regularly seeing X.  The Mother alleged that the Father walked out of a psychological appointment for X and cancelled the second one, although the Father alleges the Mother did not turn up at the second one, his point of view apparently being supported by material in Exhibit F1. 

10. The Mother further alleged that while X said that he misses his Father and loves his Father, X said that he is frightened because his Father yells at the people around him, although does not yell at X.  On the reasons presented by the Mother a number of the necessary considerations were raised.  For example, of the primary considerations at s 60CC(2) the Mother's case disclosed some risk of exposure to possible family violence, although, on the Mother's case this was vaguely expressed and it was unclear if it was something which in fact constituted family violence, being the yelling described by X.

11. X's views and his relationship with each of his parents were also raised which seemed to introduce some ambivalence on X's part to spending time with his Father.  The Mother also raised parenting capacity, alleging inadequacies in the Father by necessary implication.  These matters were not such as to justify the radical step of there being no ongoing time with the Father when it may be inferred that there is an important relationship between the Father and X especially given that the Father was X's primary carer for an extended period of 14 months while the Mother was in jail.

12. An opposing position to that put by the Mother, was advocated for both by the Father and the Independent Children's Lawyer who brought together a common position that there should be reversal of the arrangements so that X would live with the Father.  They pointed to the Father's prior history of full-time care of X, the Mother's failure to disclose X's current living arrangements until the hearing, and a high absentee rate from X from school, noting that he has missed half of his schooling in 2019 under circumstances which even taking into account the Mother's illness were without adequate explanation.  They also noted that the Mother was withholding X from the Father in the context of X's exposure to the extremely uncertain and difficult circumstances being faced by the Mother with her serious illness.  These matters engaged, amongst the considerations at s 60CC, issues of the benefits of a meaningful relationship for X with each of his parents and raised issues of parenting capacity. 

13. These particular matters were raised in the context of other circumstances.  In October 2018 the parties attended upon a Family Consultant and came to an agreement that there would be frequent, regular and significant time between X and the Father.  Little has occurred to negate such an agreement since that time.  In fact, Exhibit F1 indicates that apparently after this agreement (and after the principal negative advanced that the Mother identified to justify withholding X) she had contemplated and agreed to X spending further time with the Father.  It is also the case that X is in unstable circumstances at present, in terms of living with the Mother as she recovers from her surgery.  These circumstances are understandable given the extreme circumstances which currently face the Mother.

14. What was also identified, as falling from the maternal grandmother in her evidence, is that despite the fact that the Mother is currently living in Sydney as she undergoes further treatment until 29 July 2019, she is in fact attending in the greater Canberra region each weekend with X at present.  This is apparently in order to do work on the property which is being put up for sale.  That means it is not the case that either the Mother or X have to remain in Sydney for the whole of the period of the Mother's treatment pending the end of July. 

15. Sensibly, neither the Independent Children's Lawyer nor the Father offered a prediction of how X would cope with the sort of changes that they had suggested.  Those changes as suggested by each of them are significant changes with significant potential to increase upset for X as he would face the removal from his very ill Mother.  It is perhaps obvious in the circumstances of this case that whatever orders are made now will be of a highly temporary nature pending better evidence to enable further resolution of what temporary arrangement should be in place for X pending final hearing in the matter.

16. X’s separation from his Father under those circumstances is not adequately justified, and it shall continue no longer.  It undermines the benefits that he might receive from meaningful relationship with his Father and undermines the meaningful relationship itself.  The maintenance of such an important relationship is of importance for X amidst all the other uncertain circumstances that he currently faces.  While this is a matter of considerable importance to X it is not of such a grade as to justify a change of the residence from living with the Mother, which might be expected to cause significant upheaval for X and for him to face circumstances about which it cannot be predicted how he will respond.

17. In the light of these matters and in the understanding that the Mother is currently travelling with her parents each weekend to the Canberra region and therefore has a continuing capacity to do so, orders will be made for X to spend time with the Father despite the issues that have been raised by the Mother.  The time with the Father ought to be reinstated without disrupting the primary care provided by the Mother.  These will be temporary arrangements pending further interim hearing. 

18. I had indicated to the parties my hope to relist the matter in a further six to eight weeks.  However, a Child Inclusive Conference has become available on 16 September 2019 and the proceedings will return before me after that date as that will enable the parties both to put adequate material before me and to enable some independent assessment of X, particularly in the circumstances where he will have been spending regular time with his Father leading up to that Child Inclusive Conference.

19. At present, there appear to be no orders in respect of parental responsibility.  The history of this matter raises a reasonable basis to suggest that there has been family violence.  I note that the Mother has shot the Father and the Mother alleges that the Father was violent.  These matters being raised are sufficient to mean that the presumption in favour of equally shared parental responsibility does not apply. 

20. I was not addressed by the parties as to the allocation of parental responsibility and intend to make no order as to parental responsibility at this stage which leaves the parties in a position where they each have parental responsibility.

21. While there is a lack of evidence about the appropriate mechanisms by which therapy could be provided for X, it appears to be a reasonably open conclusion that therapy for X would be important at this point in time given the major matters that he is having to address in his life, such as the absence that he has experienced from his Father and the terrible illness which the Mother has suffered.  While orders were urged upon me to compel X being taken to therapy, in the absence of evidence as to how or who that might be occasioned with, I will not make such an order, but I note that the current parental responsibility arrangements will permit either party to arrange therapy for X. 

22. Taking into account as the most significant of the considerations raised the nature and importance and benefits of meaningful relationship for X with both parents and notwithstanding the instability in disruption that X currently faces living with his Mother, noting that the stability of that relationship and living with the Mother is important to preserve at this point even if what surrounds it is unstable, in the face of the matters raised by the Mother in respect of the Father having limited traction in terms of demonstrating risk or cogent reason for X not to spend time with the Father and in the context of the history of both parents being carers for X, orders will be made for X to live with the Mother.  Orders will be made to graduate the Father's time with X rapidly into frequent time.  The frequency of that time will be in a pattern which it may be expected could not be sustained in the long-term but will facilitate the reintegration of X with his Father by the frequent spending of time with the Father for periods of reasonable duration. 

23. The arrangements for X to spend time with the Father will provide that for the next three weekends he will spend time with his Father from midday Saturday to midday Sunday.  Thereafter, he will spend each weekend with X from after school on Friday until before school on Monday.

24. The rationale for this particular arrangement is that enables the Mother to complete the current phase of her treatment which I have been told is due to finish on 29 July 2019.  The arrangements may then continue pending return before this Court. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 9 July 2019.

Associate:

Date:  18 July 2019