TAMBE and Rangan
[2010] FMCAfam 1092
•18 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TAMBE & RANGAN | [2010] FMCAfam 1092 |
| FAMILY LAW – Interim – parenting – recommendations of family consultant – child refusing to spend time with father – need for child inclusive family therapy. |
| Family Law Act 1975, ss.60CA, 60CC |
| Goode & Goode (2006) FLC 93-286 Re K (1994) FLC 92-461; 17 Fam LR 537 |
| Applicant: | MR TAMBE |
| Respondent: | MS RANGAN |
| File Number: | SYC 3074 of 2009 |
| Judgment of: | Monahan FM |
| Hearing date: | 18 August 2010 |
| Date of Last Submission: | 18 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Knox |
| Solicitors for the Applicant: | Fox & Staniland |
| Counsel for the Respondent: | Mr Tockar |
| Solicitors for the Respondent: | Campbell Paton & Taylor |
ORDERS
THE COURT ORDERS THAT:
All extant applications be adjourned to this Court on 6 December 2010 at 9:30am for mention (“the mention hearing”).
The final hearing dates of 19 August 2010 and 20 August 2010 be vacated.
The contravention application of the Applicant filed on 27 May 2010 be withdrawn and dismissed.
Pursuant to s.68L(2) of the Family Law Act1975 (“the Act”), [X] born [in] 2002 (“the child”) be independently represented AND IT IS REQUESTED that Legal Aid Commission of New South Wales, PO Box K847 HAYMARKET, 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 COURT ORDERS UNTIL FURTHER ORDER THAT:
Both parties do all necessary acts and things to participate in therapeutic counselling with Ms R (“the Counsellor”) of [C], [O], or such other counsellor as agreed between the parties, at such times and frequencies as recommended by the Counsellor; and
(a)The child attend upon the Counsellor at such times and frequency as arranged by the Counsellor;
(b)Both parties pay 50% of the costs of the child’s counselling sessions;
(c)Such counselling be reportable; and
(d)The Court reconsider the liability for the payment of costs for counselling at the final hearing.
Both parties do all necessary acts and things to promptly contact [O] FAMILY CENTRE at [omitted] (“the [O] contact centre”) in order to:
(a)Make an appointment to begin the intake process;
(b)Advise the [O] contact centre of the change-over times and dates that will occur there; and
(c)That each party be responsible for 50% of the costs of the change-over’s at the [O] contact centre.
Both parties do all necessary acts and things to also promptly contact [H] CONTACT SERVICE at [omitted] (“the [H] contact centre”) in order to:
(a)Make an appointment to begin the intake process;
(b)Do all acts and things requested by the [H] contact centre so that when change-overs occur in Sydney the services of this contact centre can be used.
(c)That each party be responsible for 50% of the costs of the change-over’s at the [H] contact centre.
Paragraph 4(d) of the Orders made by this Court on 27 July 2009 and paragraph 4 of the Orders made by this Court on 16 March 2010 be suspended.
The child spend time with the Applicant in [O] as follows:
(a)Either Saturday 21 August 2010 or Saturday 28 August 2010 from 12 noon until 5:00pm with such date is to be nominated by the Applicant within 24 hours of today’s orders and in the event that he is unable to spend time with the child on these dates he is also to advise the Respondent accordingly.
(b)Commencing Saturday 3 September 2010 and every four (4) weeks thereafter from Saturday 12 noon until 5:00pm and Sunday 9:00am until 4:00pm and in the event that the child wishes to spend overnight time with the Applicant during this period the parties will respect the child’s wishes and facilitate such overnight time.
(c)Change-overs are to occur at such places as agreed between the parties and failing agreement at the [O] contact centre.
The wording in paragraph 6(i) of the Orders made by this Court on
27 July 2010 be discharged and replaced with the following words:“6. (i) As far as possible the Applicant shall at all times have the child in his personal care when he is spending time with him.”
All other parenting orders remain in full force and effect.
AND THE COURT NOTES THAT:
(A)The purpose of the mention hearing is to consider the progress of the family therapy and whether the matter may benefit from a further interim hearing on that day, or alternatively, by obtaining a further Family Report and listing the matter for final hearing.
(B)Pursuant to ss.65DA(2) and 62B of the Act, 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 Tambe & Rangan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3074 of 2009
| MR TAMBE |
Applicant
And
| MS RANGAN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MR TAMBE (“the father”) who is seeking various parenting orders in relation to the child, [X] born [in] 2002 (“the child” or “[X]”). More specifically, the father is seeking final orders for equal shared parental responsibility and for [X] to spend substantial and significant time with him. The father’s application is supported by his various affidavits filed in these proceedings, together with the affidavits filed in these proceedings on behalf of his mother, the paternal grandmother, his sister, the paternal aunt, and his partner. He is legally represented by Ms Knox of counsel today.
The respondent is MS RANGAN (“the mother”) who in her response filed in these proceedings opposes the order sought by the father and is seeking different parenting orders in relation to [X]. More specifically, she is seeking orders that the parties have equal shared parental responsibility, but not in respect of all issues, and she is also seeking a different spend time regime to that proposed by the father. The mother relies on her affidavits filed in these proceedings, as well as the affidavits filed in these proceedings by her mother, the maternal grandmother, her father, the maternal grandfather, and her employment supervisor. She is legally represented by Mr Tockar of counsel today.
Background
The parties’ affidavits outline the history of their relationship. It would appear the parties commenced cohabitation in 1998 and separated in April 2005. [X] was born [in] 2002, making him currently eight years of age. The mother and [X] moved from Sydney to [O] in December 2005.
The father commenced these proceedings in 2009. The matter initially came before Altobelli FM on 30 June 2009. It returned before his Honour on 24 July 2009 for interim hearing, and on that occasion his Honour made orders inter alia seeking a family report and affixing the matter for final hearing on 15 March 2010.
Soon afterwards on 27 July 2009, his Honour delivered judgment and made various interim orders including orders:
·for equal shared parental responsibility;
·for the child to live with the mother;
·for the child to spend defined overnight time with the father; and
·other associated orders.
The matter returned before his Honour for final hearing on 15 March 2010, but the matter was not reached. His Honour listed the matter with priority for a three day final hearing before me and also made orders varying paragraph 4(d) and 4(g) of the orders he had made on 27 July 2009.
On 6 May 2010 I made orders in chambers by consent seeking an updated family report. Indeed, two family reports have now been prepared in this matter by family consultant, Ms M. Her first report is dated 22 February 2010, and her second report is dated 20 July 2010. When the matter came before me today I indicated to the parties that I had concerns about allowing the matter to be heard on a final basis. My reasons were based upon the parties’ affidavit material and the second family report referring to the difficulties the parties have experienced in facilitating [X]’s time with the father or, perhaps put another way, [X] has demonstrated reluctance to spend time with his father.
It would appear [X] has only spent minimal time with his father over the last couple of months, and the most recent time being two (2) days in early July. I also indicated to the parties that, because they had agreed to participate in child inclusive family therapy, there were concerns about finally determining the matter pending the progression of that process.
It was also indicated to the parties that I formed a preliminary view that the matter might be assisted by an Independent Children’s Lawyer (“ICL”), given the circumstances and in light of the Full Court’s comments in Re K (1994) FLC 92-461.
Following submissions on these issues, I indicated to the parties that these issues might be assisted by Ms M giving the Court some brief oral evidence. Ms M was subsequently able to do this. By this stage the mother had indicated her preference for the Court to determine these issues today on an interim basis only, pending the family therapy process. At the conclusion of Ms M’s evidence the father was also in agreement, subject to a qualification that the matter should proceed today on an interim basis only.
The family consultant’s evidence
Ms M was asked three specific questions by the Court:
a)the benefit of the proposed child inclusive family therapy process and whether such process be reportable or non-reportable;
b)whether the process should occur prior to the hearing of the matter on a final matter; and
c)regardless of b), what were the advantages and disadvantages of the parties utilising a contact centre to facilitate changeovers between the mother and the father in respect of [X] at the commencement of all spend times with the father.
Ms M was of the opinion that the matter would benefit from the proposed child inclusive family therapy process and that it should occur before a final decision is made. She also saw benefits in it being both reportable and it being unreportable, but, ultimately, saw benefit in being able to have the counselling feed into a possible supplementary report prior to any final hearing. Ms M was also supportive of the proposed use of a contact centre to facilitate changeover and indicated it had been her intention for such a recommendation to appear in her second report.
Agreed and disagreed facts
The parties, as indicated, are now in agreement that the matter should not be determined on a final basis today, despite the obvious delay and cost involved in not doing so.
The parties are also in agreement about the proposed child inclusive family therapy but disagree, to some extent, about whether it should be reportable.
They are in agreement that a contact centre should be used to facilitate the child’s time with the father. They disagree, however, on the frequency, times, and conditions for such contact.
The parties also disagree on whether the matter might benefit from a further interim hearing in three (3) months or so.
The parties’ submissions
Both parties’ counsel gave the Court submissions in relation to the interim issues in dispute. The father presented the Court with a proposed minute of orders (“the minute”) which the mother indicated partial agreement with.
In relation to paragraph 1 of the minute, the mother was in agreement with the father’s proposal that the parties be restrained, until further order, from subpoenaing material from [C] in [O]. The mother had no objection to the proposed child inclusive family therapy being reportable while the father submitted that there were benefits to the therapy being unreportable.
In relation to paragraph 2 of the minute, the mother was in agreement that the restraint proposed, that is, no recording of communications at changeovers, etcetera, was appropriate provided such a restraint was mutual. It would appear the father’s complaint arises from an acknowledgement by the mother that she has made such recordings in the past. The mother asserts that the father has also videotaped changeovers in the past.
In relation to paragraph 3 of the minute, there is agreement about the therapeutic counsellor being Ms R of [C], [O], and for the parties to pay their associated costs and one half of the costs of [X]. The mother proposes that the Court reconsider the liability for these costs at the final hearing.
In relation to paragraph 4 of the minute, there is disagreement about whether the earlier orders that had been made in respect of the child spending time with the father, particularly in Sydney, to begin, by default, at the completion of the counselling process or the next three (3) months, whichever occurs first. The mother submitted that this is an issue for the Court to consider, indeed reconsider, if the parties are not in agreement.
In relation to paragraphs 5 and 6 of the minute, there was agreement between the parties, that is, in relation to applications being made to the use of, and payment for, contact centres for changeovers in [O] and in Sydney.
In relation to paragraph 7 of the minute, there was agreement that the interim arrangements will involve the child spending time with the father in [O], but disagreement as to the frequency and start times and whether it should include overnight, although the father did indicate that he was in agreement for the first weekend being for daytime only.
In relation to paragraph 8 of the minute, there was agreement that the matter needs to return to Court in three (3) to four (4) months’ time but, as indicated, disagreement over whether it should be for mention or for interim hearing.
The law
The Full Court of the Family Court decision of Goode & Goode (2006) FLC 93-286 (“Goode”) guides this Court’s approach in making interim decisions and interim orders in relation to parenting disputes. At paragraph 81 the Full Court stated:
“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.”
This matter is such a case. More specifically it raises the reality that the Court is not fully determining issues of credit today as the evidence being presented by the parties to the Court has not been tested by cross-examination. That having been said, in Goode the Full Court indicated that the legislative pathway in the Family Law Act 1975 (“the Act”) must be followed. In other words, the relevant provisions of the Act, post the 2006 shared parenting amendments, must be followed in relation to all hearings, including interim hearings.
There is no issue of equal shared parental responsibility to determine today. The dispute is simply limited to the issues of [X] spending time with his father and under what circumstances that time is to be spent, and the proposed therapeutic counselling process.
In Goode the Full Court at paragraph 82 sets out the approach that this Court must take in determining interim cases. Clearly, the Court is required to identify the competing proposals of the parties, identify the issues in dispute, and identify any agreed or uncontested relevant facts, as has been noted earlier.
At this point it should also be noted that the Court must be guided by the principle enunciated in s.60CA of the Act that states:
“In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.”
To determine the child’s best interests the Court must consider the primary considerations or factors set out in s.60CC(2) of the Act, and the additional considerations referred to in s.60CC(3), where relevant.
Primary considerations: section 60CC(2)
The Court is required under s.60CC(2)(a) to consider “the benefit to 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 parents should be involved with their child, and clearly 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. Consequently the Court will, in all likelihood, need to give some considerable weight to this factor at a final hearing, should it be needed.
The Court is required under s.60CC(2)(b) to consider the “need to protect a child”, such as [X], “from physical or psychological harm and being subjected to, or exposed to, abuse, neglect, or family violence”. There is no doubt here that it would be in [X]’s best interest to develop a meaningful relationship, not just with his mother, but with his father. That needs to be balanced, however, in respect of protecting a child, such as [X], from any harm and the like. There are issues here warranting investigation, and the Court needs to tread cautiously in the interim arrangements that will be necessary today given that, for whatever reason, [X] has refused to spend time with his father in more recent times. The reasons for this can be the subject of evidence and cross-examination at the final hearing. The result of it, however, is a need for urgent family therapy which both parties now accept is the right way forward with the support of a family consultant.
Additional considerations: section 60CC(3)
The Court has heard the child’s views loud and clear at this point, and the proposed family therapy is clearly needed to put the child’s relationship with his father back on a positive track. Why the relationship fell off the rails can be considered in due course.
Conclusion
The Court is satisfied, after considering the submissions and the available evidence in light of the structured discretion, that there should be an order today for the parties and [X] to have family therapeutic counselling with Ms R of [C] of [O] at such times and frequencies as recommended by Ms R. That counselling will be reportable. Furthermore, paragraph 1 of the minute will also be made today.
In respect of paragraph 2 of the minute, these orders will be made, subject to the restraint being mutual. In respect of paragraphs 3(a) and (b) of the minute, those orders will also be made today, as will orders 5 and 6 as proposed by the father.
The matter will return before this Court for mention on 6 December 2010 at 9:30am for the Court to be appraised as to the progress of the therapeutic counselling and to consider whether the matter might benefit from a further interim hearing on that day, or, alternatively, the obtaining of an updated family report and listing for final hearing.
Given the circumstances, the Court will be prepared on that occasion to review the benefits of resuming any of the time to be spent by the child with the father in Sydney and the summer holiday arrangements that will inevitably be needed at that time of the year.
The Court remains of the view that the matter will be assisted by the appointment of an ICL, and an order to that effect will be made today.
As to the interim spend time arrangements, there is merit in both parties’ proposals. Alternate weekends would provide more frequent time to be spent between the child and his father, but the distances to be travelled must be considered. Consequently, the once per month proposal of the father is appropriate, subject to the Courts view that an early short period to re-establish the relationship between the child and the father as soon as possible is also needed.
The child will spend time with the father once a month in [O] from 12 noon to 5:00pm, Saturday, and from 9:00am until 4:00pm, Sunday, commencing on the weekend of Saturday, 3 September, and will include 4 September which is, of course, Father’s Day.
The child will also spend time with his father, should the father be able to facilitate this, from 12 noon until 5:00pm either this coming Saturday or the following Saturday. The choice will be the father’s as he will need to facilitate being able to travel to [O]. Either way, he will be required to advise the mother as to which weekend he would wish to spend time with the child, or whether he is unable to spend time with the child, within 24 hours of today’s order. The Court also considers this important, even though it may inconvenience the parties and provide little notice, but it will aid, in the Court’s view, the re-establishing of the relationship between the child and the father.
With respect to the monthly weekend times to commence in early September, the Court has also formed the view that, in the event that [X] indicates to the parties that he wishes to spend overnight time with the father on those occasions, then the parties will respect that wish and facilitate [X] spending time with the father in [O] overnight, in other words, effectively from 12 noon, Saturday, until 4:00 pm, Sunday.
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: 5 October 2010
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