Thomas and Taylor
[2007] FMCAfam 1154
•22 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THOMAS & TAYLOR | [2007] FMCAfam 1154 |
| FAMILY LAW – Contact – interim hearing – best interests of the child the paramount consideration – need to protect the child from harm – where father has no accommodation sufficient to allow overnight contact. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 68L, 68LA(3) |
| Applicant: | KAREN MAY THOMAS |
| Respondent: | RODNEY MARK TAYLOR |
| File Number: | CRC 94 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 November 2007 |
| Date of Last Submission: | 19 November 2007 |
| Delivered at: | Coffs Harbour |
| Delivered on: | 22 November 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Burridge Harris & Flynn |
| Appearance for the Respondent: | Respondent appeared in person |
ORDERS
Until further order, Order 3 made on 2nd May 2007 is suspended.
Pursuant to s.62G(2) of the Family Law Act 1975 the parties and the children of the relationship are to attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia on a date and at times to be advised for the purposes of the preparation of a family report, such report to be released by 11 February 2008. The family report is to deal with the following matters:
(i)Any views expressed by the children and any factors such as the said children's maturity or level of understanding that would affect the weight that the Court should place on those wishes;
(ii)The matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(iii)Any other matters that the family consultant considers important to the welfare or best interests of the children.
The parties are to send copies of all of their Court documents to the family report writer within seven days of being requested to do so by the family report writer.
The application is adjourned to 11 February 2008 for further mention.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
CRC94 of 2007
| KAREN MAY THOMAS |
Applicant
And
| RODNEY MARK TAYLOR |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This application concerns two children of the parties. The parties in fact have three, a girl named Sharon, a boy named James and a girl named Jessica. Sharon Kate Taylor was born in 1991. James Mark Taylor was born in 1993 and Jesica May Taylor was born in 1999.
The child Sharon lives with her maternal grandparents at W. James and Jessica live with their mother and have done since interim orders were made by consent on 2nd May 2007.
By her amended application filed on 16th November 2007, the mother seeks orders that the two children not spend time with their father.
Until 9th November 2007 the situation was that the children were to spend alternate weekends during the school term and half of each school holidays with the father. The mother wishes to change this arrangement for these reasons:
a)The father has spent little or no time with James,
b)The father's accommodation arrangements have constantly changed and his present accommodation is unsatisfactory,
c)
The father's mental health is unstable and he attempted suicide on
23rd December 2006in the presence of Jessica.
On 9th November 2007 Donald FM suspended contact between the father and Jessica. The mother's solicitor, Ms Steiner, asks the Court for a family report. She has told the Court the father has seen James only once since the orders were made. The mother is concerned that the father has no fixed address and he left his previous accommodation in a state of squalor as a result of failure to pay rent. The mother is concerned that the father's accommodation now is a bed-sit which is inadequate for overnight contact with the children.
The father told the Court that James wishes to see him but is afraid to express his views. He is currently living at G. He concedes that it is less than satisfactory but says he will obtain a three bedroom house before his lease expires at the end of January. In fact, he will do so before Christmas. He says the bed-sit is divided into two bedrooms. He has no employment, saying that he is unable to commence work whilst he was required to attend Court for these proceedings.
In considering what orders, if any, should be made on an interim basis, I am mindful of the requirements of s.60CA of the Family Law Act 1975 (Cth) that 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. I also note s.60CC of the Family Law Act sets out the primary and additional considerations for determining what is in the child's best interests.
In considering the primary considerations, the Court must balance the benefit to the child of having a meaningful relationship with both parents against the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. In this regard I am concerned about the father's current accommodation as set out in the mother's affidavit and the father's own submissions to the Court. His current temporary accommodation in a bed-sit is not, to my mind, suitable for overnight contact between the father on the one hand and a 14 year old boy and an 8 year old girl on the other.
Until there is evidence that the father has suitable accommodation I am not satisfied that the children should spend any night in the father's home.
I am also aware that the Court should give consideration to any views expressed by the children and take into account relevant factors in giving weight to those views. The father says that James, now aged 14, wants to spend more time with him but is afraid to speak out.
He makes no submissions in respect of the child Jessica.
It is clear that a boy aged 14 and a girl aged 8 should be able to express their views about spending time with their father. With this in mind I have ordered under s.68L of the Family Law Act that the children's interests in the proceedings be independently represented by a lawyer and I have asked the Legal Aid Commission of New South Wales to arrange this representation.
The Independent Children's Lawyer should be able to give the Court some information about the nature of the relationship of Jessica and James with their parents, especially the father. The father says he has a good relationship with James but the mother deposes to the contrary. The mother has described Jessica as having been quiet and withdrawn when she returned from a recent visit to the father.
In my view, the children's best interests must be paramount and I consider that the Court should order a family report to be prepared.
In the meantime, I am not satisfied that I should vary or revoke the interim order made by Donald FM on 9th November 2007 suspending contact between the father and Jessica.
Until the Court has the benefit of a submission from the Independent Children's Lawyer about the adoption of a course of action that is in the best interests of the children, (see s.68LA(3)), and until the Court has the benefit of a family report, I consider the Court must take a conservative view and limit the time spent by James with the father. There should be no overnight contact.
The father will need to provide the Court with details of the place where contact with James can take place in safety and comfort during the day on a weekend. Until the Court can receive the submission of the Independent Children's Lawyer on that point, it will be necessary to suspend the order made on 2nd May 2007 relating to the arrangements for James to spend alternate weekends and half the holidays with his father.
There are no contact orders in respect of the child Sharon that need to be varied at this time.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 18 January 2008
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