Staley and Birch (No 2)

[2019] FamCA 1029

FAMILY COURT OF AUSTRALIA

STALEY & BIRCH (NO. 2) [2019] FamCA 1029

FAMILY LAW – interim orders by consent – time spent with parties – non-compliance with court orders – potential change in residence of child 

Family Law Act 1975 (Cth)
APPLICANT:	Mr Staley

RESPONDENT: Ms Birch

INDEPENDENT CHILDREN’S LAWYER: Ms Mistry

FILE NUMBER: CAC 1456 of 2017

DATE DELIVERED: 20 December 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 20 December 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Pyrmont Legal

SOLICITOR FOR THE RESPONDENT: Self-representing

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

Orders

1. The proceedings are adjourned for hearing at 10am on 22 January 2020.

2. If the Mother seeks to oppose the making of the orders on that occasion then she is to file and serve a Response and an affidavit containing the evidence she intends to rely upon by 4pm on 13 January 2020.

3. The Father may file any amended Application in a Case and further affidavit by 4pm on 17 January 2020.

4. The Mother and Father are prohibited from discussing the proceedings with X other than to advise X that the Independent Children's Lawyer wishes to see him.

5. It is requested that Family Consultant Ms J prepare a short memorandum in relation to the facilitated handover that took place on 18 December 2019 of X between his parents and that this be made available to the Court and the parties in advance of the proceedings on 22 January 2020. 

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

EX TEMPORE REASONS FOR JUDGMENT

1. Interim orders by consent were made in the Federal Circuit Court on 14 November 2017 that provided for X, who was born in 2012, to transition to an arrangement where he was living with his Mother but spending time with his Father on a 9:5 arrangement. 

2. The Father filed affidavit material and an Application in a Case on 22 May 2019, which were heard on 9 July 2019 at which time it was established that previous arrangement had broken down and in fact the Father had spent no time with X since November 2018.

3. The Mother filed no material at that stage and was granted leave to give oral evidence.  The circumstances of that are described in the judgment handed down on 10 July 2019.

4. At that stage fresh orders were made, until further order, for X to live with the Mother and for a transitioning arrangement for X to live each weekend with his Father from Friday to Monday. 

5. Arrangements were made for the parties and X to participate in a Child Inclusive Conference and the matters were adjourned to 3 October 2019. 

6. The Mother was again directed to file a Response and Affidavit.  She did not.  By consent on the next occasion the parties came to an agreement that X should spend time with each them on a week about arrangement.  The Mother was at that stage represented by counsel. 

7. The matter came back before me for further directions on 18 December 2019 following the Father filing an Application in a Case on 16 December 2019 seeking a recovery order, that X live primarily with him and spend time with the Mother on an alternate Friday to Monday arrangement.  That matter was listed for hearing today, 20 December 2019.

8. At the time of the directions X was supposed to be with his Father but the Mother had not provided X.  X was, however, at the Court and a facilitated handover took place.  Orders were made that permitted the Mother to file material by 4pm on 19 December 2019.  Again she did not do so.  At that stage orders were made that the proceedings would be conducted on undefended basis if the Mother did not file.  However, rather than conduct the matter on an undefended basis the Mother has been heard as to her opposition to the Father's orders sought.

9. The circumstances then described by the Father are in general terms as follows. 

10. Although the week about orders provided the changeover to occur at school on a school day the last time that changeover had occurred at school was on 18 October 2019. 

11. Since then, on 1 November 2019 X was not at school and the parties negotiated a handover at a service station, which I observe was the fall-back arrangement should X not be at school on a school day.  

12. On 15 November 2019 again X was not at school.  On this occasion the Mother refused to conduct the changeover at the service station.  The Father attended Town G, where the Mother lives, and asked her to rendezvous at the local supermarket.  She did not.  The Father involved the police who attended at the Mother's home and after a period of 40 minutes X then left with the Father.  X was distressed but the Father says quickly recovered. 

13. The next occasion was 29 November 2019 and again X was not at school but it was negotiated that there be a handover at the service station.  Following that the Father observes that he was contacted by the police and also by the local welfare department. 

14. On 13 December 2019 again X was not school.  The Mother forwarded a medical certificate which appears at Annexure B of the Father's affidavit, in which a doctor describes X as suffering from psychosomatic nausea, vomiting and abdominal pain in relation to spending time with his Father and describing his Father's home as a “house of horrors".  That medical certificate specified that X was unfit for school.  It has not at any time been made clear what the circumstances were of that consultation, including who provided the information to the doctor, whether it was the Mother or whether it was X, or whether it was X in the Mother's presence.  I simply do not know.

15. The Father has provided school attendance records which have now been supplemented by Exhibit ICL1 which show that X has missed substantial periods of time at school this year including following the making of the most recent consent orders for week about time.  The Father describes X's time with him since July 2019 as being calm, enjoyable, happy and content. 

16. I note that in the Child Inclusive Conference at [35] the Family Report Writer noted that the school had observed X to be happy in leaving with his Father from school. 

17. The Father also says that on 13 December 2019 X called him saying “I am scared of you and I don't want to come to your home.  If I have to come to your home I'll run away."  The Father says that this is not characteristic of X.

18. The Child Inclusive Conference conducted on 19 September 2019 contained observations as to the Mother's presentation at that time and noted that her presentation was at times rambling and nonsensical.  The Family Report Writer suggested that there be a psychiatric assessment of the Mother and also suggested an increase of X's time with his Father despite matters raised by X of being worried that the Father would yell at him (I observe not worried because the Father had yelled at him) and X's complaints that each of his parents discussed the proceedings.  Although X had some complaints to make about time with his Father, his description of his time with his Father was positive.

Discussion

1. There is no order in relation to parental responsibility at present; the circumstances that there being no such order are set out in the previous judgment.  The key considerations today relate to the benefits of meaningful relationship with X with each of his parents, parenting capacity of each of the parents, the nature of the relationship that X has with each parent, whether X is likely to be exposed to family violence which has been a strong allegation in this case, or neglect potentially because of the Mother's mental health.  A further matter that looms large are the effects of non-compliance with the orders that specify that X will spend time with his Father. 

2. The Father seeks a change in the current week about arrangement such that X would live with him but spend each alternate weekend with the Mother.  The Independent Children's Lawyer supports such a change taking place. 

3. The two primary issues that revolve around that change relate to the capacity of the Mother and the risk of harm and neglect to X in her care and the Mother's non-compliance. 

4. I observe that such orders do not reduce the compliance issue because the issue of whether or not the Mother will handover X will still occur at the same frequency. 

5. It was suggested that I should make a floating recovery order.  I am not prepared to issue a recovery order in such a manner as I cannot be satisfied in advance that the issue of such would be in X's best interests. 

6. The Independent Children's Lawyer and the Father spoke to issues of capacity in relation to the Mother.  In particular the Independent Children’s Lawyer noted that there seems to have been an acceleration of issues in respect of the Mother.  Those escalating issues include matters that are contained in Exhibit ICL1 where the Mother had noted previously that she was struggling to cope and that she may harm X in the future.  It is not clear from the records when it is that the Mother was supposed to have said such things.  The Mother does not accept that she said such things. 

7. The second matter is the loss of home for the Mother.  In the records it was indicated that that home would be repossessed within six months.  Although it is not in evidence, from the bar table the Mother says that she has already lost that home. 

8. The third matter is that at face value X has had very poor school attendance all year and in particular since the making of the consent terms.  We are, however, about to commence school holidays, yesterday having been X's last day at school for the year.

9. A further matter pointed to in particular by the Father was that the Mother has been involved in a motor vehicle incident while X was travelling in the front seat of the car.  However, I am not able to form a view that this presents clear evidence of a parenting deficit on the Mother's part. 

10. On balance, these matters are concerning but they do not speak clearly to a change in the current arrangements being in X's best interests, at least not during holiday time.  That may be a different scenario when it comes to school term time. 

11. The most pressing issue that I observe is whether or not the Mother will be compliant in handing X over.  Although it is not a good solution it appears that the best solution at present is to adjourn the proceedings to 10am on 22 January 2020.  It is not ideal because it prolongs the parties’ exposure to the Court.  What I do observe however, in particular for the benefit of the Mother, is the continued non-compliance by her may mean that a change in who X lives with will be in his best interests.  I cannot predict if that will be the outcome at present because I will have to assess the evidence as it comes before me and judge that evidence on the merits as they arise.  But the Mother should be under no misapprehension that if she withholds X in the time leading up to 22 January 2020 it is difficult to see that I could have any confidence in any assurance that she gives me that she will comply with orders to handover X in the future.  The ball very much rests in the Mother's court at this point on that matter. 

12. The Mother is now on notice that the Independent Children's Lawyer and the Father both seek a change in X's primary residence and that a strong part of that may well be non-compliance with the orders on her part.  At present I decline to make the orders sought and adjourned them.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 20 December 2019.

Associate: 

Date:  15 January 2020