Tallis and Carmody

[2014] FCCA 2459

FEDERAL CIRCUIT COURT OF AUSTRALIA

TALLIS & CARMODY [2014] FCCA 2459

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the child – one child aged 4 years 9 months – allegations of family violence – need to protect child from harm – benefit of having a meaningful relationship with both parents – appointment of Independent Children’s Lawyer.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DB, 65DAA, 68L

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Re K (1994) 17 Fam LR 537; FLC 92-461

Applicant: MR TALLIS

Respondent: MS CARMODY

File Number: NCC 2509 of 2014

Judgment of: Judge Scarlett

Hearing date: 17 October 2014

Date of Last Submission: 17 October 2014

Delivered at: Sydney

Delivered on: 21 October 2014

REPRESENTATION

Solicitor for the Applicant: Ms Kremmer

Solicitors for the Applicant: Catherine Henry Partners

Solicitor for the Respondent: Mr Coyle

Solicitors for the Respondent: The Family Law Firm

ORDERS

UNTIL FURTHER ORDER

1. The Applicant Father is to have sole parental responsibility for the child [X] born [omitted] 2010.

2. The child [X] is to live with the Father.

3. The child [X] is to spend time with the Respondent Mother as follows:

   (a)each alternate weekend from 5:00pm on Friday until 5:00pm on Sunday commencing on Friday 24 October 2014; and

   (b)each other Saturday from 10:00am until 5:00pm.

4. It is a condition of the immediately preceding Order that the Mother do all such things as may be necessary to ensure that her husband MR CARMODY is not present at any time when the child is spending time with her.

5. For the purposes of giving effect to Order (3) above the Mother is to collect the child [X] from the Father’s home or such other place as the parties shall agree at the commencement of the time and return him to the Father’s home or such other place as the parties may agree at the conclusion of the child’s time with her.

6. The Mother is to have telephone communication with the child [X] for a period of up to ten (10) minutes between the hours of 5:00 and 5:30pm each Monday, Wednesday and Thursday and for this purpose the Father is to do all such acts and things as may be necessary to ensure that the child is available to take the call from the Mother.

7. The Father and Mother are restrained by injunction from using any physical discipline on the child or permitting any other person to do so.

8. In accordance with the provisions of section 68L of the Family Law Act 1975 the interests of the child [X] born [omitted] 2010 are to be independently represented by a lawyer and Legal Aid New South Wales is requested to arrange this representation.

9. Within fourteen (14) days of the date of these Orders the parties must forward to Legal Aid New South Wales at Newcastle copies of all Applications, Responses, affidavits and all other relevant documents for the use of the Independent Children’s Lawyer.

10. The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas without charge.

11. The application is adjourned to Monday 9 February 2015 before Judge Coakes at the Federal Circuit Court at Newcastle for further directions at 9:30 am.

12. The Independent Children’s Lawyer is granted liberty to apply to restore the matter to the list on seven (7) days’ notice.

13. THE COURT NOTES the undertaking made by MR CARMODY on 17 October 2014 that:

    (a)He will refrain from living at the home of his wife but will live instead at the home of his mother MS C at [address omitted]; and

    (b)He will only visit or be at the home of his wife the Respondent MS CARMODY at times when the wife’s mother is present or the child [X] is elsewhere.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2509 of 2014

MR TALLIS

Applicant

And

MS CARMODY

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for parenting orders by the Father of a little boy called [X], who was born on [omitted] 2010. [X] is 4 years old and will turn 5 in [omitted]. His father has kept the child in his care since 18^th September, as a result of disturbing allegations that the Mother’s husband had been using violence and abusive language towards him.

2. The Mother denies the allegations and complains that she has not been able to see the child since then. She seeks orders that the child should be returned to her care.

Background

1. The parties were in a relationship, which the Father claims was “on/off”[1], for over three years. During that time the child [X] was born. The parties separated when the child was about a year old.

   [1] Affidavit of Mr Tallis 24.9.2014 at paragraph [28]

2. The Father deposed in his affidavit of 24^th September 2014 that he had been spending regular time with the child since the parties separated, by arrangement with the Mother.

3. There were no parenting orders in place. The Mother deposes in her affidavit of 16^th October that the agreed arrangement was that the child would spend time with the Father from 10:00am on Tuesday until the following Wednesday afternoon each week.

4. The Mother is now married to one Mr Carmody. There is one child of that marriage, a boy named [Y], who was born on [omitted] this year. The Mother also has two step-daughters, from her husband’s previous relationship, aged 3 years 10 months, and 2 years 6 months. They all live with her and her husband, as has [X] until recently.

5. The Father has formed a new relationship with a lady who is expecting twins in [omitted] next year. They have been in a committed relationship for two years.

6. The circumstances that precipitated this Application arose from a report to the Father by a mutual friend called Ms A that the Mother’s husband had been using violence to discipline the child [X], causing him bruising and soreness. Ms A has since provided an affidavit in which she deposes that both Mr Carmody and the Mother use excessive physical force to discipline the children in their care, including [X].  

Procedural History

1. The Father, having decided to retain the child [X] in his care on 18^th September, reported the allegations to the Police at [omitted] on 21^st September and notified the NSW Department of Family and Community Services the following day.

2. The Father then filed his originating Application and supporting affidavit on 24^th September. At that stage, the Father was not legally represented, but since then he has engaged the services of his current solicitors.

3. The Father filed a Notice of Child Abuse, Family Violence, or risk of Family Violence on 2^nd October 2014.

4. The Mother sought her own legal representation and on 9^th October her solicitor, Mr Coyle, filed a Notice of Address for Service, a Response and an affidavit by the Mother.

5. The Father’s Application was returnable on 15^th October. On that date, both parties were represented. I ordered that:

   a)the parties should file further affidavits; and

   b)the parties should attend a Child Dispute Conference with a Family Consultant on 17^th November 2014.

6. The Application was then adjourned to 17^th October 2014, on which date I heard submissions from the parties’ lawyers.

Evidence and Submissions

1. The Father relied on the following documents:

   a)his Initiating Application filed on 24^th September;

   b)his Notice of Child Abuse filed on 2^nd October;

   c)his affidavit of 24^th September;

   d)his affidavit of 13^th October; and

   e)the affidavit of Ms A of 15^th October.

2. The Mother relied on the following documents:

   a)her Response filed on 9^th October;

   b)her affidavit of 9^th October;

   c)her later affidavit of 16^th October;

   d)the affidavit of Mr Carmody of 9^th October;

   e)the later affidavit of Mr Carmody of 16^th October; and

   f)the affidavit of the maternal grandmother Ms S.

3. The Father’s solicitor, Ms Kremmer, submitted that the need to protect the child from harm required him to remain in the care of the Father, noting that there was evidence of harm inflicted on the child not only by the Mother’s husband, but by the Mother as well. She also submitted that the Mother had admitted use of illicit drugs, which were concerning.

4. It was submitted that the Mother’s time with the child should be supervised. She nominated a proposed supervisor, a Mr M, who is a registered foster carer.

5. For the Mother, Mr Coyle submitted that the child should return to her care. There was no adequate evidence that the Father would provide a secure and stable home for the child. The affidavit of Ms A, which was relied on by the Father, was prolix and irrelevant. Again, the Court knows nothing about the proposed supervisor, Mr M, as he is not on affidavit.

6. Mr Coyle submitted that the Mother’s husband would undertake to move out of the parties’ home until this matter could be resolved. He conceded the cramped nature of the Mother’s household, but said that it was not unsafe or unsuitable. It was suitable on a short-term basis.

7. Further, it was submitted that the Mother had been the child’s primary carer, and until Ms A had decided to make these allegations the Father was perfectly to have his child live with the Mother.

8. Mr Coyle referred the Court to the decision of the Full Court of the Family Court in Goode & Goode[2] and said that the agreed and uncontested facts were that:

   a)The Mother had not seen the child for six weeks until she saw him at Court on the morning of the hearing;

   b)She had had the briefest of opportunities to speak to the child on the telephone;

   c)The child had lived with the Mother all his life until 18^th September; and

   d)There was no prospect of an available appointment for a Child Dispute Conference before the middle of November.

   [2] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

9. The Mother’s case was that there was no credible evidence that the child was at risk in the Mother’s household. Even if there were, the proposal by the Mother’s husband to move out of the house absolutely eliminated any risk.

10. In a brief submission in reply, Ms Kremmer stated that it was not only the Mother’s husband whose behaviour was a cause for concern, but also the Mother herself.

The Parties’ Proposals     

1. The Father, in a short Minute of Orders Sought, proposed (in summary) that until further order:

   a)The child should live with him;

   b)The child should spend time with the Mother on three occasions each week for at least two hours under the supervision of Mr M;

   c)Changeover between the Mother and Father should be at the Father’s residence;

   d)The Mother would be at liberty to telephone the Father to speak to the child;

   e)The child should not come into contact with the Mother’s husband; and

   f)The parties should attend before a Family Consultant under s.11F of the Family Law Act.[3]

   [3] There is already an appointment for the parties to attend a Child Dispute Conference on 17 November

2. The Mother seeks orders that (in summary):

   a)The parties should have equal shared parental responsibility for the child;

   b)The child should live with her;

   c)The child should spend time with father:

   i)Each alternate weekend;

   ii)For half of the school holidays at the end of Terms 1, 2 and 3 of the school year;

   iii)For half of the Christmas holiday period; and

   iv)On special occasions.

   d)The Mother’s husband should provide to the Father’s solicitors a copy of all results of urinalysis tests ordered in proceedings in the Court between himself and a former partner.

Agreed or uncontested relevant facts

1. The child has lived with the Mother since the parties separated and spent time with the Father by arrangement. The child has been in the care of the Father since 18^th September 2014. The Mother had not seen the child until the morning of the hearing. She had spoken to the child on the telephone.

The Relevant Law in regard to Parenting Applications

1. 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 (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 substantial and significant time with each parent where an order has been made that the parents should have equal shared parental responsibility for the child.

2. All of those matters have been considered, insofar as they are relevant. The matters in sections 60CC, 61DA and 65DAA will be discussed further.

Relevant matters in section 60CC of the Family Law Act

1. The Full Court in Goode & Goode[4] 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)[5].

   [4] supra

   [5] (2006) 36 Fam LR 422 at 445 [82]

2. In this case, the issues really concern the two primary considerations in subsection 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. The Court is required by s.60CC(2A) to give greater weight to the latter consideration.

3. There is no doubt that this child has spent most of the time in the care of his mother and, since 18^th September, has barely seen her at all. He has only spoken briefly to her on the telephone. For a child of his age, there is a need for him to spend regular time with his mother, provided that there is no unacceptable risk of harm to him.

4. Although some allegations are made that the Mother has used physical force on the child to discipline him, and there are allegations that she uses illicit drugs, I am not satisfied that the evidence is so strong that there is an unacceptable risk of harm to this child if he resumes spending time with his mother.

5. The main allegations are directed against the Mother’s husband. It is claimed that he has spoken to the child, and other children in the household, in a loud and threatening manner. More seriously, it is alleged that he has lifted the child up by his wrists and then dropped him to the floor, causing pain and bruising. If this is in fact the case, there is an unacceptable risk of harm to the child. It will not do to say that the child should be in the care of the Mother whilst her husband is present, because the allegations are that this abuse has happened whilst the Mother has been present. Apparently, she has been powerless to prevent this happening.

6. In my view, the Mother should spend time with the child only when her husband is not present in the home. I am not satisfied that it would be necessary for her time with the child to be supervised at this stage, provided her husband is not present. It does seem to be unrealistic to expect the Mother’s husband to take up residence elsewhere, at least on a temporary basis, which indicates strongly that the child should live primarily with his father for the time being.

7. It is significant that this child has a half-brother and two step-sisters living in his mother’s household, and arrangements need to be made that he resumes spending time with them.

8. In my view, this case calls for the appointment of an Independent Children’s Lawyer to represent this little boy’s interests under the provisions of s.68L of the Act. Neither of the parties’ legal advisers opposed this course.

9. The decision of the Full Court of the Family Court in Re K[6] provides useful guidance to the Court in deciding whether a child should be separately or independently represented. The allegations of family violence point strongly towards the need for such an appointment. In Re K, the Full Court set out a number of criteria, including:

   Cases involving allegations of child abuse, whether physical, sexual or psychological.[7]

   [6] (1994) 17 Fam LR 537; FLC 92-461

   [7] 17 Fam LR 537 at 555; FLC 92-461 at 80,773

10. There are no allegations of sexual abuse, but there are allegations which, if substantiated, would amount to both physical and psychological abuse.

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 is in the best interests of the child does or does not apply.

2. The Mother in her Response seeks an order for equal shared parental responsibility. The Father, in his Short Minute of Orders, does not seek any order.

3. In my view, the Court is required to consider the question. There are allegations of family violence which are central to the Father’s case and, indeed, the precipitating factor that brought about the Father’s Application. Subsection 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child or family violence.

4. I propose to find that the presumption does not apply and order, until further order, that the Father should have sole parental responsibility for the child. I note that s.61DB of the Act provides that if there is an interim parenting order in relation to a child, the Court must, in making a final parenting order, disregard the allocation of parental responsibility made in the interim order. The question of parental responsibility will therefore be considered afresh when the Court makes final parenting orders.

Section 65DAA of the Family Law Act

1. As I do not propose to make an order that the parties should have equal shared parental responsibility for the child but that, until further order, the father should have sole parental responsibility for him, it is not necessary to consider the matters set out in s.65DAA.

Orders that are in the child’s best interests

1. In my view, the orders that are in the child’s best interests at this stage are that, until further order:

   a)The Father should have sole parental responsibility for the child;

   b)The child should live with the Father;

   c)The child should spend time with the Mother on alternate weekends and each other Saturday, on the condition that the Mother’s husband should not be present at any time;

   d)The Mother should have regular telephone communication with the child three times a week;

   e)The parties should be restrained by injunction form using any physical discipline on the child; and

   f)An Independent Children’s Lawyer should be appointed to represent this child’s interests.

2. The Mother’s husband has provided an undertaking to the Court that he will refrain from living at the home of his wife and will live with his mother, and that he will only visit the home of his wife at times when the wife’s mother is present or the child is elsewhere.

3. The Court notes that undertaking.

4. There will be a necessary lapse of time whilst an Independent Children’s Lawyer is appointed and makes his or her inquiries. I consider that the parenting orders made will meet the child’s best interests in the meantime and that the Application can be adjourned until early in the New Year. However, the Independent Children’s Lawyer will be granted liberty to apply to bring the matter back to Court on seven days’ notice should he or she consider it necessary.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  21 October 2014