Tilley and Hambly

[2013] FCCA 541

FEDERAL CIRCUIT COURT OF AUSTRALIA

TILLEY & HAMBLY [2013] FCCA 541

Catchwords:  
FAMILY LAW – Parenting – interim – same sex relationship – 15 month old child – where non-biological mother has not spent time with the child for some two months – where numerous serious issues have been raised by each parent against the other – where biological mother staying with the child in a refuge – where grandparent available to be present for any time to be spent by non biological mother – where non-biological mother actively involved in the care of the child prior to separation – Held – that non-biological mother spend time with the child every weekend from Saturday to Sunday and during the day on Wednesday – Independent Children’s Lawyer appointed.

Legislation:  

Family Law Act 1975, Pt VII, ss.60B, 60CC

Goode & Goode (2006) FamCA 1346

Applicant: MS TILLEY

Respondent: MS HAMBLY

File Number: BRC 3709 of 2013

Judgment of: Judge Leanne Turner

Hearing date: 5 June 2013

Date of Last Submission: 5 June 2013

Delivered at: Brisbane

Delivered on: 7 June 2013

REPRESENTATION

Counsel for the Applicant: Mr Andrew

Solicitors for the Applicant: R S M Law

Solicitors for the Respondent: Turnbull & Company Solicitors

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER

1. That the child, [X] born [in] 2012, live with Ms Hambly provided:

   (a)Ms Hambly remain living at the refuge supplied by [omitted] Support Centre;

   (b)Ms Hambly attends all appointments as required by her treating psychiatrist Dr W.

2. That Ms Tilley spend time with the child as follows:

   (a)commencing Saturday 8 June 2013 and every weekend thereafter from 9:00am Saturday to 4:00pm Sunday;

   (b)commencing Wednesday 12 June 2013 and every Wednesday thereafter from 9:00am to 4:00pm.

3. That in the event Ms Hambly returns to employment then Ms Tilley is to be provided with the option of spending time with the child during those work hours that Ms Hambly will be unavailable to care for the child.

4. That during the spend time periods as referred to in Orders 3 and 4 that either Mrs T or Mr T, the Grandparents of the child, are to be present.

5. That changeover occur at the Grandparents’ residence at [omitted] and that Ms Tilley is not to be present.

THE COURT ORDERS

1. That the child, [X] born [in] 2012, be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings.

2. That this matter be adjourned to 26 July 2013 at 9:30am in the Federal Circuit Court of Australia at Brisbane.

3. That the parties have liberty to apply on short notice.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRC 3709 of 2013

MS TILLEY

Applicant

And

MS HAMBLY

Respondent

REASONS FOR JUDGMENT

Ex-tempore

Introduction

1. The parties were in a same sex relationship from mid 2009 until 12 March 2013.

2. In [omitted] 2012 the child [X] was born with the respondent being the biological mother, having conceived [X] through artificial insemination with the consent of the applicant. 

3. Since separation, the applicant has not spent any time with the child.

4. An application is before the Court to determine the interim arrangements for [X]. 

Issues

1. The issues that I am required to determine on an interim basis are:

   a)With whom should [X] live?

   b)What time should [X] spend with the other parent?

2. In considering the issues I have had regard to:

   a)the materials as marked on the Court file, including the Forms 4 Notice of Child Abuse;

   b)the oral submissions of the parties;

   c)the exhibit;

   d)Part VII Family Law Act1975 (Cth) and in particular section 60B and section 60CC;

   e)the pathway to be followed in interim hearings as addressed in Goode & Goode (2006) FamCA 1346;

   f)the limitations placed on making findings as to disputed facts as noted in Goode & Goode. 

3. Findings of fact are made on the balance of probabilities having regard to the evidence, and in what follows, statements of fact constitute findings of fact.

4. Before considering the issues, it is a useful exercise to consider the relevant agreed and disputed facts. 

5. The agreed facts are few and far between:

   a)The respondent has been under the care of a treating psychiatrist since 2003 in respect to an anxiety disorder, panic attacks and agoraphobia. 

   b)The parties commenced their relationship in 2009. 

   c)[X] was a planned birth. 

   d)[X] was born in [omitted] 2012. 

   e)Since [X]’s birth, both parties have been involved in her care and upbringing, and have been assisted by the applicant’s mother.

   f)An argument occurred in March 2013. 

   g)The parties separated on 12 March 2013 when the respondent left the house with [X] without informing the applicant of her intention to separate.

   h)On 13 March 2013 the Police applied for a DVO on behalf of the respondent against the applicant. 

   i)The application makes no mention of the alleged sexual abuse by the applicant against [X]. 

   j)The application did not include [X], and an interim order was not sought. 

   k)The application has been adjourned until August 2013. 

   l)Attempts to negotiate with the respondent for time between the applicant and the child and have been unsuccessful. 

   m)In April 2013 the applicant completed an anger management course. 

   n)Since separation, the respondent has been living with the child in a women’s shelter.

6. The disputed facts are numerous:

   a)Whether the applicant has perpetuated family violence against the respondent, and if so, the extent of such violence.

   b)Whether [X] has been subjected to domestic violence from the applicant, and if so, the extent of the violence and the impact of the violence on the child.

   c)Whether [X] has been sexually abused by the applicant.

   d)Whether [X] is at risk in the care of the applicant. 

   e)Whether the respondent has more serious mental health issues than is indicated in the short reports prepared by her treating psychiatrist, Dr W.

   f)Whether the respondent’s mental health issues impact on her ability to care for [X].

   g)Whether [X] is at risk in the care of the respondent.

   h)Whether the respondent has neglected [X].

   i)Whether there has been drug misuse by either party.

   j)The extent each party has played in the care of [X].

7. This list is by no means an exhaustive list of the disputed facts and demonstrates the complexities of the issues surrounding the parties in this parenting matter. 

8. The material filed by both parties is extensive, disturbing and conflicting, and must be tested in the appropriate manner and at the appropriate time.

9. Both parties have requested the appointment of an independent children’s lawyer, and I agree. 

10. This will assist the Court enormously in working out what long term arrangements are best for [X] where the parties’ relationship is so dysfunctional. 

11. For the purposes of the interim hearing, however, little can be done to address all of the disputed facts, and the Court is left in the situation of looking at what arrangements can be put in place on an interim basis to ensure that [X] is safe, well looked after and able to maintain a meaningful relationship with both of her parents.

12. It is in the context of these disputed and agreed facts that I must now consider the issues.

With whom should [X] live?

1. The applicant is seeking a recovery order and wants [X] to live with her. 

2. The respondent wants [X] to remain living with her. 

Conclusion

1. I find, having considered all the evidence, that on an interim basis, it is in [X]’s best interest to remain living with the respondent, based on the following:

   a)Whilst the extent of the applicant’s day to day involvement in the care of [X] is in dispute, it is evident that as the stay at home parent, the respondent has been the primary carer for [X] since her birth and has continued in this role, albeit of her own doing and choice, since separation.

   b)

   [X] is in a secure and stable environment at the women’s shelter, as confirmed in the affidavit of Ms S, family support writer. At [5], [7] and [8] of her affidavit, Ms S observes that the respondent’s unit is “clean, tidy and well organised”. The respondent seems to be “relaxed and organised in a stable routine, with [X]’s needs being well balanced with her own”.

   
   

   Ms S comments that the respondent is “very responsive to [X]’s emotional and physical needs and that [X] is always well dressed in clean clothing and appears to be thriving”.

   c)The respondent is being supported within the women’s shelter, both emotionally and physically, as is also evident in Ms S’s affidavit. 

   d)Dr W expresses no concerns as to the respondent caring for [X] in her current mental state.  In his letter written on 1 May 2013, he describes the respondent as being “currently quite stable” and that “there are no signs of depression despite the several recent stresses she has been under”.  In Dr W’s short report of 22 May 2013, Dr W dispels many of the allegations raised by the applicant, concluding that from his observations with the respondent, that the child appeared to be “well cared for” and that the respondent exhibited great warmth and tenderness towards the child and handled her “with competence” describing the respondent to be a “mature, responsible person”. 

   e)Whilst I accept that Dr W is the long-term treating psychiatrist who has prepared the letter and report at the request of only the respondent, I must acknowledge that Dr W is a health professional who has been actively involved with the respondent for many years, and I must, in the absence of any evidence to the contrary, accept the professional opinion that Dr W sees no difficulty in the respondent in her current mental state caring for [X].

   f)The subpoenaed documents provide little support to the applicant’s arguments, as they provide only snapshots of short periods of time, often out of context as to what was happening at the time due to the extensive disputed facts, with the last notes being made almost 12 months ago when [X] was only a few months old. 

2. I therefore find that on an interim basis, it is in the child’s best interests that [X] remain living with the respondent. 

3. I have, however, made these living arrangements conditional upon the respondent remaining at the women’s shelter and the respondent attending all appointments as required by Dr W.

What time should [X] spend with the other parent? 

1. The applicant, as a fallback position only, is seeking, if unsuccessful in her recovery order, for [X] to live with her every weekend from 9.00am Friday to 5.00pm Sunday, and every Wednesday night from 9.00am Wednesday to 9.00am Thursday, with such time to occur in the presence of her parents, the grandparents, with changeovers to occur at the grandparents’ home in the absence of the applicant.

2. The respondent is seeking orders whereby [X] spend time with the applicant every fortnight from 9.00am Saturday to 4.00pm Sunday, such time to be supervised by the grandparents. 

3. Currently the applicant is working but has flexibility of hours to be able to spend one day each week on a Wednesday with [X]. 

4. The respondent is not working but is considering returning to work part time in three months or so with [X] to be placed in child care on the Thursday and Friday.

Conclusion

1. I find that it is in [X]’s best interests to spend frequent and regular time with the applicant, and such frequent and regular time can be achieved by [X] spending time with the applicant every weekend from 9.00am Saturday to 4.00pm Sunday and every Wednesday from 9.00am to 4.00pm, such time to be in the presence of the grandparents.

2. My findings are based on the following:-

   a)[X] has a meaningful relationship with the applicant which must be nurtured and maintained, and at the tender age of 15 months, where for the last two months the child has not seen the applicant, this can only be achieved by [X] spending frequent time with the applicant.

   b)As the respondent is not working at this stage, weekend time by the applicant each weekend will not impact on the quality time the respondent spends with [X]. 

   c)The proposition of the applicant of three nights each week is too much too soon for such a young child. 

   d)The structure provided by the orders will enable [X] to spend time with the applicant for three days each week. 

   e)To order supervised time as suggested by the respondent in light of the disputed facts is not achievable at the interim hearing, but to have the time occur in the presence of the grandparents will provide the respondent with some assurance that [X] will be adequately and properly cared for when with the applicant.

   f)Further, as pointed out by the respondent’s legal representative, the reoccurrence of alleged events are unlikely to reoccur now that the alleged events have been exposed. 

3. In addition to the times orders, I have also made provision that in the event that the respondent returns to work, then the applicant is to be given an opportunity to care for [X], if her work permits, on such days that the respondent intends to place [X] into day care.

4. As to changeovers, I find that the grandparents’ residence in the absence of the applicant is a suitable arrangement.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge L. Turner

Associate: 

Date:  14 June 2013